This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Lakes and Pines Community Action Council, Inc.,
Filed February 14, 2006
Kanabec County District Court
File No. C8-04-247
Cynthia M. Stange, Stange Law Firm,
Thomas P. Carlson, Michelle M. Soldo, Carlson & Soldo,
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.
Appellant challenges the district court’s order granting summary judgment in favor of respondent and dismissing her claims under the Minnesota Human Rights Act and 42 U.S.C. § 1983, arguing that there are genuine issues of material facts precluding summary judgment. Because appellant failed to establish that genuine issues of material fact exist; and respondent is entitled to judgment as a matter of law, we affirm.
The facts are
largely undisputed. In January 2002,
appellant Corinne Parker was hired as a Head Start “home visitor” by respondent
Appellant was hired as a probationary employee and required to attend new employee training and orientation. During orientation, appellant signed respondent’s confidentiality agreement and was provided a copy of the policy. Appellant was then assigned 11 Head Start families, including the family at issue.
In late February
2002, appellant conducted her first home visit with the family at issue. Their home was located 20 miles outside of
Following the visit, appellant met with supervisory staff to report the incident. When appellant stated that she suspected that R.C. was a sex offender, she was informed that the agency does not have a policy of maintaining that information, but that appellant could inquire with the sheriff’s department. Appellant was cautioned that she was prohibited from disclosing information obtained about R.C. to others.
The next day, appellant verified with the sheriff’s department that R.C. was a Level III sex offender. During the meeting with an officer at the sheriff’s department, she disclosed that she had visited R.C.’s home as part of the Head Start program. As a result of appellant’s knowledge of R.C.’s sex offender status, appellant experienced physical symptoms of anxiety and had difficulty completing home visits with other clients. Appellant discussed her concerns regarding R.C.’s sex offender status with her sister.
In March 2002, appellant attended multiple meetings with supervisory staff to address appellant’s concerns about R.C.’s criminal background. Appellant’s supervisors stated that they were unaware of R.C.’s criminal background, and that the agency did not conduct criminal background checks on participants because it cannot exclude an eligible family from the Head Start program on this criterion. Appellant’s supervisors also stated that respondent had served R.C.’s family for two years without incident, and that she was not at risk.
Appellant insisted that Head Start participants needed to be informed of sex offenders in the program and that she intended to disclose R.C.’s sex offender status to other participants. Appellant was warned that the confidentiality policy barred disclosure of the information, and that she could be terminated for doing so. As a result of the meetings, respondent developed an interim action plan to address appellant’s concerns, which included temporarily holding home visits at the agency with supervisory staff observation until appellant and the family established a comfortable working relationship; and facilitating a meeting between appellant and R.C. for the purpose of allowing appellant to confront R.C. about his offensive remark.
Appellant proposed that respondent adopt a policy of informing staff and program participants when an offender is enrolled in the program. The program director stated that appellant could submit her proposal in writing for consideration. Subsequently, appellant submitted a letter outlining her policy proposal regarding notifying program participants and staff about enrolled sex offenders. On March 28, 2004, respondent acknowledged receipt of the policy proposal and stated that it would be taken under consideration. Later that day, respondent rejected the proposal.
Appellant acknowledged disclosing R.C.’s sex offender status and enrollment in the Head Start program to her sister, other program participants, fellow employees, and the sheriff’s department. On April 8, 2002, respondent’s governing council, which consisted of program participants and community members, passed a resolution to terminate appellant’s employment based on her unauthorized disclosures of participant information. Appellant was subsequently terminated.
Following her termination, appellant filed charges against respondent with the Minnesota Department of Human Rights, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration. After conducting investigations, these agencies dismissed the charges.
Appellant then filed a suit alleging sexual harassment/hostile work environment and reprisal in violation of the Minnesota Human Rights Act (MHRA) and violation of her constitutional right of free speech under 42 U.S.C. § 1983. Respondent moved for summary judgment, and the district court issued an order granting respondent’s motion on all three claims and dismissing appellant’s complaint. This appeal follows.
D E C I S I O N
On appeal from summary
judgment, this court makes two determinations: (1) whether there are any
genuine issues of material fact; and (2) whether the district court erred in
its application of the law. State by Cooper v. French, 460 N.W.2d 2,
Appellant argues first that the district court erred by granting summary judgment on her claim that she was subjected to sexual harassment creating a hostile work environment. Respondent argues that the undisputed facts establish that the single remark was not sufficiently severe to impact appellant’s employment, and that it took timely and appropriate action in response to appellant’s concerns.
The MHRA prohibits
an employer from discriminating against an employee on the basis of sex.
To establish a prima
facie case of sexual harassment based on hostile work environment, a plaintiff
must show (1) the conduct is unwelcome, (2) the conduct consists of “sexual
advances, requests for sexual favors, sexually motivated physical contact or
other verbal or physical conduct or communication of a sexual nature,” (3) the
conduct is sufficiently pervasive so as to substantially interfere with the
plaintiff’s employment or to create a hostile, intimidating, or offensive work
environment, and (4) “that the employer knows or should know of the
existence of the harassment and fails to take timely and appropriate
action.” Cummings v. Koehnen, 568 N.W.2d 418, 424 (
Here, appellant based her sexual harassment claim on R.C.’s inquiry during a home visit as to whether he could watch her urinate. Although the comment was unwelcome and sexual in nature, the undisputed facts fail to establish the remaining elements of a prima facie case of sexual harassment, i.e., that the comment was sufficiently severe and pervasive so as to substantially interfere with appellant’s employment, and that respondent had knowledge of the harassment and failed to act in a timely and appropriate manner.
It is undisputed that R.C.’s comment was isolated and unaccompanied by physical contact or further menacing behavior. Whether harassment is sufficiently severe to constitute discrimination must be determined based on the totality of the circumstances, including examination of the nature, frequency, intensity, and duration of the conduct. Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987), abrogated on other grounds by Cummings, 568 N.W.2d at 420 n.2. Although a single act of sexual harassment can be enough to state a hostile work claim, the incident must be extremely serious. See, e.g., Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003) (single incident of grabbing employee’s buttocks did not demonstrate hostile work environment); see also Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App. 1999) (when interpreting cases under the MHRA, this court gives weight to federal court interpretations of Title VII claims because of substantial similarities between the two statutes). Clearly, this single incident does not rise to the level of actionable sexual harassment under the MHRA.
Appellant argues that it was the single incident coupled with respondent’s “oppressive” prohibition against disclosure of R.C.’s sex offender status to third parties that created a hostile work environment. Appellant fails to acknowledge, however, that respondent is required by Head Start regulations to create and enforce a confidentiality policy protecting the privacy of program participants. Because of appellant’s disclosure of RC’s sex offender status to her sister, other program participants, and the sheriff’s department during the course of her employment with the Head Start program, and her advocacy of the participants’ right to know, such disclosures revealed R.C.’s participation in the Head Start program, which is a violation of the confidentiality policy. An employer’s enforcement of a confidentiality policy applicable to all employees fails to create a hostile work environment under the MHRA.
there is no evidence in the record that respondent failed to take timely and
appropriate action in response to the incident.
Appellant attempts to create a fact issue by asserting that respondent
knew that R.C. was a Level III sex offender and failed to apprise her of this
information. But this misconstrues the
relevant issue, i.e., whether respondent knew or should have known of the sexual harassment and failed to take
timely and appropriate action. It is
undisputed that R.C. participated in the Head Start program for two years
without incident and was not restricted from contact with adults and children
as part of his probation. Thus,
respondent could not have anticipated R.C.’s inappropriate comment. And the MHRA, as a remedial rather than
preventative statute, does not require employers to maintain a “pristine” work
environment; instead, the emphasis is on how an employer addresses issues as
they arise. Cont’l Can Co., Inc., 297 N.W.2d 241, 249 (
Because the undisputed facts fail to establish two elements of a prima facie case of sexual harassment/hostile work environment, the district court did not err in granting summary judgment in favor of respondent on that claim.
Appellant next contends that the district court erred in granting summary judgment on her claim of reprisal discrimination because she presented evidence that she was wrongfully terminated for engaging in “statutorily protected conduct,” i.e., reporting the incident with R.C. and requesting a policy change regarding sex offender notification for program participants. Respondent argues that this conduct is not “statutorily protected,” and thus, appellant failed to establish a prima facie element of her reprisal claim.
MHRA prohibits an employer from engaging in intentional reprisal against an
employee because that employee filed a charge of discrimination or opposed an
employer’s discriminatory practices forbidden under the MHRA.
employee engages in “statutorily protected conduct” when she opposes employer
practices that violate the MHRA. See
Further, appellant failed to allege facts establishing the “causal connection” element of a prima faciecase of reprisal, i.e., how termination directly resulted from statutorily protected conduct. It is undisputed that appellant signed a confidentiality policy restricting the sharing of client information; that appellant was repeatedly warned that disclosing such information could result in termination; that she shared R.C.’s sex offender status and involvement in the program with others; and that the stated reason for appellant’s termination was failure to comply with the confidentiality policy. Thus, appellant has failed to establish factually that she was engaged in statutorily protected conduct resulting in her termination.
Because the facts alleged by appellant failed to establish two elements of a prima facie case of reprisal, the district court did not err in granting summary judgment on that claim.
Third, appellant argues that the district court erred in granting summary judgment on her 42 U.S.C. § 1983 claim because whether respondent is a state actor is a factual issue that cannot be resolved on summary judgment. In the alternative, appellant contends that, if respondent is held to be a private actor, she was wrongfully terminated under the public policy exception to the at-will-employment doctrine.
relevant portion of the First Amendment of the Federal Constitution provides
that “Congress shall make no law . . . abridging the freedom of speech, . . .” U.S. Const. amend.
the facts asserted by appellant, i.e., that respondent is a state actor because
it administers the federal and state Head Start program, receives governmental
funding, provides pre-school education, and is required to follow the federally
promulgated Head Start Policy Manual, are insufficient to establish that
respondent is a state actor under Rendell-Baker,
the controlling United States Supreme Court decision. In Rendell-Baker,
the Supreme Court reiterated its holding that private action is attributable to
the state “only when [the state] has exercised coercive power or has provided
such significant encouragement, either overt or covert, that the choice must in
law be deemed to be that of the State.” 457
regard to the first factor, the Court held that the fact that a private school
received almost all of its funds from the government did not transform its
action into state action.
Second, the Court found
that even extensive state regulation is insufficient to establish a private
entity as a state actor unless the contested action is compelled or influenced
by such regulation.
Third, to be
considered a state actor under a “public function” analysis, the private entity
must perform a function that is “traditionally the exclusive prerogative of the State.”
Fourth, under a
“symbiotic relationship” analysis, the state must profit from the private
entity’s alleged constitutional violations.
Because the facts asserted by appellant fail to establish that respondent is a “state actor” for section 1983 purposes, the district court did not err in granting summary judgment on this claim.
contends that, even if respondent is held to be a private actor, she was
wrongfully terminated under the public policy exception to at-will-employment for
speaking out about a recognized matter of public concern, i.e., public
notification of sex offenders residing in the community. But appellant’s claim fails as a matter of
law because it does not allege that she was terminated for “refusing to
participate in an activity that the employee, in good faith, believes violates
any state or federal law or rule or regulation,” which is a requirement for a
valid claim under the public policy exception.
Phipps v. Clark Oil & Ref.
Corp., 408 N.W.2d 569, 571 (