This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Linda Welsh, et al.,





Millennium Engineering Corp.,

d/b/a Depotstar, et al.,



Filed March 15, 2005

Affirmed in part, reversed in part, and remanded
Klaphake, Judge


Anoka County District Court

File No. C2-02-10419


Clair E. Schaff, Connor, Satre & Schaff LLP, 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for appellants)


Malcolm P. Terry, Messerli & Kramer P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN  55402 (for respondents)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Linda Welsh, Michelle Herdegen, Natalie Stanius, and Rose Sutherland sued their former employer, respondent Millennium Engineering Corporation, alleging sexual harassment and gender discrimination in violation of the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363.03, subd. 1(2)(b), (c), 363.01, subds. 14, 41(3) (2002).  The district court granted summary judgment, determining that appellants failed to set forth sufficient evidence to establish claims of a hostile work environment and gender discrimination.

            Because we conclude that appellants Welsh, Herdegen, Stanius, and Sutherland failed to establish by substantial evidence a genuine issue of material fact of sexual harassment, we affirm the district court’s summary judgment as to the claims of sexual harassment.  For the same reason, we affirm the district court’s summary judgment as to the gender discrimination claims made by Welsh, Herdegen, and Sutherland.  But because we conclude that appellant Stanius raised a colorable claim of gender discrimination, we reverse and remand that claim to the district court for trial.


            1.         Standard of Review

            Summary judgment is granted if the pleadings, depositions, other discovery materials, and supporting affidavits show that there are no disputed material facts and a party is entitled to judgment as a matter of law.   Minn. R. Civ. P. 56.03.  A genuine issue of material fact must be established by substantial evidence, which is evidence legally sufficient to withstand a directed verdict at trial.  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  The district court must not weigh the evidence or decide issues of fact, but only determine whether genuine factual issues exist.  Id.  The nonmoving party must present enough evidence to show that its theory of the case is “reasonable” rather than “merely possible.”  Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S. Ct. 1348, 1356 (1986)).  The reviewing court views the evidence in a light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            2.         Sexual Harassment

             Appellants allege that they were subjected to sexual harassment because respondent permitted a hostile work environment that significantly affected the terms and conditions of appellants’ employment because of their sex.  A so-called “hostile environment,” in terms of sexual harassment, is one where “sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature” is “sufficiently pervasive so as to substantially interfere with the plaintiff’s employment or to create a hostile, intimidating or offensive work environment.”  Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997) (quoting, in part, Minn. Stat. § 363.01, subd. 41). 

            A three-part procedure, the McDonnell-Douglas test, is used to analyze sexual harassment allegations.  Klink v. Ramsey County, 397 N.W.2d 894, 901 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).[1]  First, the plaintiff must establish a prima facie case of sexual harassment; second, the burden of production shifts to the defendant to present a legitimate non-discriminatory reason for its actions; and third, the plaintiff has the ultimate burden of persuading the factfinder that defendant’s reasons are pretextual.  Giuliani v. Stuart Corp., 512 N.W.2d 589, 593 (Minn. App. 1994).  Here, the district court concluded that appellants failed to make out a prima facie case of harassment. 

            To determine whether a complainant has alleged a prima facie case of hostile working environment, five factors are considered:  (1) whether the employee belonged to a protected group; (2) whether the employee was subjected to unwelcome sexual harassment; (3) whether the harassment was based on sex; (4) whether the harassment affected a term, condition, or privilege of employment; and (5) whether the employer was aware, based on actual or imputed knowledge, of the harassment, and failed to take remedial action.  Klink, 397 N.W.2d at 901.  The district court concluded that appellants failed to establish sufficient evidence of the fourth element:  whether the conduct affected a term or condition of employment. 

            Our review of the record leads us to conclude that the district court was correct: respondent’s management permitted a working atmosphere that was often juvenile, vulgar, and insensitive, but taken as whole, appellants’ allegations are not sufficient as a matter of law to support a claim of hostile environment.  Sexual harassment must be “sufficiently severe or pervasive so as to alter the conditions of the victim’s employment and create an abusive working environment.”  Klink, 397 N.W.2d at 901 (quotation omitted).  To determine whether an environment is sufficiently hostile, courts are directed to look at the totality of the circumstances, including frequency and severity of conduct, whether the conduct is physically threatening or humiliating or merely offensive, and whether the employee’s work performance suffers.  Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275, 2283 (1998).  The district court here concluded that appellants’ allegations by and large described isolated or infrequent conduct that did not interfere with appellants’ job performance. 

            However desirable it may be, employers are not obliged to maintain a “pristine working environment.”  Klink, 397 N.W.2d at 902.  Even accepting as true all of appellants’ allegations and noting the offensive nature of some of these allegations, we conclude that appellants failed to establish a prima facie case of sexual harassment by a hostile environment.

            3.         Gender Discrimination Based on Disparate Treatment

            In evaluating a claim of gender discrimination based on disparate treatment,[2] the three-part McDonnell-Douglas analysis is used:  plaintiff presents a prima facie case of discrimination, including proof of discriminatory motive; the employer is given the opportunity to present evidence of a legitimate, non-discriminatory reason for its action; and the plaintiff, in order to prevail, must persuade the factfinder that the employer’s justification is either unworthy of credence or a pretext for discrimination.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). 

            The elements required to establish a prima facie case of gender discrimination vary according to the circumstances of the case.  Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995).  Generally, unless there is explicit, inculpatory evidence of discriminatory intent, one must show that (1) plaintiff was a member of a protected class; (2) plaintiff was qualified for the employment position; (3) despite this, plaintiff was subject to an adverse employment action.  See id.; Sigurdson, 386 N.W.2d at 720.  Where plaintiff’s employment is terminated, one must generally show that another person of similar or lesser qualification was given the employment opportunity.  Hutson, 63 F.3d at 776.  Where a reduction in force occurs, however, this may be impossible to show; therefore, plaintiff must make some additional showing that discrimination was a factor in the termination.  Id.  This may take different forms, including statistical evidence.  Id. at 777.  It may be enough to show that members of a non-protected class absorbed plaintiff’s duties.  See Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 324 (Minn. 1995).

            Here, the district court properly concluded that appellant Herdegen failed to establish a prima facie case of gender discrimination.  Herdegen was not terminated but quit to pursue another employment opportunity and failed to provide any evidence that she was forced to quit. 

            Further, although appellants Welsh and Sutherland made a prima facie showing, they failed to rebut respondent’s legitimate, non-discriminatory reason for its action:  the layoff of these employees was a bona fide reduction in force tied to a loss of business.  The district court thus did not err in granting summary judgment in favor of respondent as to Welsh and Sutherland.

            We conclude, however, that appellant Stanius has raised a genuine issue of material fact as to her termination.  Stanius was terminated within a day after announcing that she was pregnant; a managing employee previously told her not to think of getting pregnant.  Stanius received mixed employee reviews, but the decision to terminate her was apparently made only after she announced her pregnancy.  Respondent produced no legitimate, non-discriminatory reason why Stanius’ termination occurred when it did.  These facts are material and create a genuine issue that precludes summary judgment.  For this reason, Stanius’ claim of gender discrimination is remanded to the district court for trial.

            Affirmed in part, reversed in part, and remanded.

[1] Klink was modified by Cummings v. Koehnen, 568 N.W.2d 418, 420 n.2 (Minn. 1997), to the extent that a plaintiff need not show that the harassment was “based on sex,” but otherwise remains good law.

[2] This case presents the issue of disparate treatment, or intentional discriminatory treatment, rather than disparate impact, which includes actions that are facially neutral, but fall more harshly on one group than another.  See Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 441 n.12 (Minn. 1983).