This opinion will be unpublished and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
Kimberlee S. Monson,
Northern Habilitative Services, Inc.,
Rappuchi Construction & Maintenance Co., et al.,
Filed March 28, 2006
St. Louis County District Court
File No. C3-04-300802
V. John Ella, Stephen H. Parsons, Mansfield, Tanick & Cohen, P.A., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402-4511 (for appellant)
Carl Crosby Lehmann, Kathryn M. Nash, Gray, Plant, Mooty, Mooty & Bennett, P.A., 500 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-3796 (for respondent Northern Habilitative Services)
Roger C. Justin, Rinke-Noonan, P.O. Box 1497, St. Cloud, MN 56302-1497 (for respondent Rappuchi Construction & Maintenance)
Considered and decided by Willis, Presiding Judge; Worke, Judge; and Collins, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges summary judgment dismissing her claims for hostile-employment-environment sexual harassment and constructive discharge. We affirm.
Respondent Northern Habilitative Services, Inc. (NHS) provides residential and other services to persons with disabilities. Since 1990, NHS has leased office space from respondent David Rappuchi (Rappuchi). Rappuchi operates Rappuchi Construction & Maintenance Co., Inc. (RCMC) and maintains his office at the same building as that occupied by NHS. Rappuchi acts as a general contractor for NHS’s new construction and remodeling projects. He is included on the NHS employee e-mail lists, and his office is connected to NHS offices through an intercom system.
Appellant Kimberlee S. Monson (Monson) began working for NHS through a temporary agency in December 1998 and was employed full time by NHS since February 1999. Monson’s duties included performing bookkeeping work for Rappuchi once each month. That arrangement stemmed from a 1996 agreement between respondents whereby the NHS receptionist would perform bookkeeping services for Rappuchi and RCMC in exchange for a reduction in NHS’s rent.
Shortly after Monson started working at NHS, Rappuchi began giving her small gifts such as candy bars and cans of her favorite soda, Tab, when she performed her bookkeeping services. Rappuchi also began leaving Monson notes to accompany his gifts. Monson considered the notes to be “flirting” in nature, but did not remember what they said.
an NHS holiday party in January 2003, Rappuchi repeatedly told Monson “You’re
the prettiest girl here. Did I tell you
how beautiful you look?” Rappuchi tried
to help Monson with her coat as guests left the party for another
establishment. She told him she could do
it herself, but he persisted until they were engaged in a “tug of war.” Then Monson offered, and Rappuchi accepted, a
ride to the next bar. When they arrived there,
Rappuchi held Monson and offered to assist her across the icy parking lot, but
again she resisted and walked to the bar on her own. Thereafter, Rappuchi told Monson that she was
beautiful several more times and added, “You don’t know how special you are to
me, do you? I know, why don’t you and me
just – why don’t me and you go to
A few months later, on April 1, 2003, Monson found a piece of wood instead of candy inside a candy bar wrapper that Rappuchi left for her. Monson stated in her deposition that she considered the joke “harassing” and “insulting.” But at the time she made no complaint of it; indeed, a few days later, Rappuchi e-mailed Monson to ask if she was mad at him for the joke and she responded:
Are you kidding? That was a great joke! And laugh!!!!? We all did!
. . . .
I could never be “mad” at you Dave, but I’m sorry if you got that impression. It never occurred to me to get mad at you. Your jokes crack me up – big time, and sooooo thanks again!!
In September 2003, Rappuchi e-mailed Monson to set a date for her to do his books, stating: “Yup it’s that time of the month again for Kim to spend all of my money. Any special requests for candy bars? Steak or Shrimp? Pizza delivery? Wednesday good for you?” Monson stated in her deposition that the e-mail upset her and made her concerned that Rappuchi was spying on her because she had served steak and shrimp to a friend at her home the previous weekend. But at the time she responded, “Thursday (the 25th) actually works better for me . . . No special requests, even though now I’m hungry [smiley face].”
Two days later, Monson went to do Rappuchi’s bookkeeping and found the following note, which the parties and the district court have termed the “Teera letter”:
My name is Teera, I am your snack for today. I am big on chocolate, not on fat. I am very happy that you are eating me. See you ate my cousin Bill last week and my brother Sam the week before. You also ate my grandfather Musket. You must have bought him at an old store or something we don’t sit on the shelves very long. I can’t wait for you to eat me so I can visit my relatives inside you. Will you please give me one of your Tab showers?
A Three Musketeers candy bar was left with the note. Rappuchi explained in his affidavit that he got the idea for the note from an M & M’s commercial in which the candy characters talked to the person eating them.
claims to have found the “Teera letter” shocking, and she promptly brought it
to Tom Ruper (Ruper), one of the NHS owners.
She also told Ruper of her concerns about the gift-giving and the
That same day, Ruper told Rappuchi that Monson would no longer do his bookkeeping. Later, Monson herself told Rappuchi that his inappropriate behavior was the reason she would no longer work for him. Ruper again met with Rappuchi to confirm that Monson was upset about the “Teera letter” and to ask him to avoid contact with her altogether. Rappuchi agreed not to speak to or e-mail Monson again.
Monson acknowledged that Rappuchi did not initiate contact with her again. She briefly encountered Rappuchi once in the basement of the building when she was distributing paychecks and may have seen him in passing one other time within the NHS offices. She received one e-mail that Rappuchi sent to NHS’s “all users” e-mail list and after Monson complained of it, NHS blocked her from receiving “all user” e-mails sent by Rappuchi.
Monson later complained to NHS management about seeing Rappuchi or his van near the building or around town. She asked NHS management to tell Rappuchi to stay out of her sight. Ruper said that he could not do so because Rappuchi owned two of the buildings that NHS occupies, had an office and a shop in those buildings, and was NHS’s primary general contractor.
Monson requested and was given a leave of absence from November 19 to December 9, 2003. When she returned to work, Ruper and another NHS owner met with her to discuss the situation with Rappuchi. The owners summarized Monson’s concerns and NHS’s responses to those concerns. Ruper reminded Monson that Rappuchi agreed to avoid contact with her and advised her that if she did encounter Rappuchi, she could walk away or call upon one of the NHS owners for assistance.
The day Monson returned from her leave of absence, she overheard a coworker mention Rappuchi’s name over the phone. She asked the coworker to understand her situation and not to speak Rappuchi’s name. The coworker replied by asking Monson not to listen in on her personal phone calls. The next day Monson left work early. She resigned the following day, December 12, 2003, believing that she would get no support and that the atmosphere at work had been “poisoned.”
On July 19, 2004, Monson filed a complaint contending that she was subjected to sexual harassment by respondents NHS and Rappuchi in violation of the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08 (Supp. 2003). The complaint alleged hostile-employment-environment sexual harassment, reprisal, constructive discharge, and aiding and abetting a violation of the MHRA. Respondents were granted summary judgment dismissing all claims. In this appeal Monson argues that the district court erred by finding that (1) Rappuchi is not liable as her “employer” under the MHRA; (2) she failed to establish a prima facie case of sexual harassment under the hostile work-environment theory; and (3) she was not constructively discharged.
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, 4
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. . . . [T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (
is no genuine issue of material fact for trial when the nonmoving party
presents evidence which merely creates a metaphysical doubt as to a factual
issue and which is not sufficiently probative with respect to an essential
element of the nonmoving party’s case to permit reasonable persons to draw
different conclusions.” DLH, Inc. v.
Russ, 566 N.W.2d 60, 71 (
The MHRA prohibits “employer[s]” from
discriminating in employment practices “because of . . . sex.” Minn. Stat. § 363A.08, subd. 2 (Supp. 2003). An employer is defined as “a person who has
one or more employees.” Minn. Stat. § 363A.03, subd. 16 (Supp. 2003).
The district court held that Rappuchi was not Monson’s employer because he did not control the terms and conditions of her employment and did not pay her for her work. The court reasoned that the relationship between Monson and Rappuchi was similar to one between coworkers “because both parties worked for NHS, [Monson] as a payroll specialist and Rappuchi as their primary contractor.” Although the district court did not expressly apply the four-factor test, we do so here and agree with the district court’s conclusion that Rappuchi was not Monson’s employer under the MHRA.
The first factor, interrelation of
operations, “refers to whether the entities share office space, sell services,
or transfer employees.” Doe v. Lutheran High Sch., 702 N.W.2d
322, 329-30 (
The second factor inquires as to
“whether the same individuals manage and control the two entities.”
The third and most important factor is whether there is centralized control of labor relations. Harborage I, 585 N.W.2d at 858. This court has recognized centralized control where the entity challenging its employer status was involved in calling the claimant to his position and addressing complaints about his work, Doe, 702 N.W.2d at 329; where one individual handled all labor relations matters, including sexual harassment complaints, for both entities, Harborage I, 585 N.W.2d at 859-60; and where the human resource director of one entity consulted and was involved in employment matters at the other entity, Fahey, 525 N.W.2d at 572. Unlike the cases finding centralized labor control, here there is no sign of any uniform organization or regulation of labor policies between Rappuchi and NHS. NHS supplied Rappuchi with the occasional services of one employee, Monson. The record shows that NHS, not Rappuchi, controlled Monson’s employment situation. NHS hired and paid her. NHS also controlled whether Monson performed services for Rappuchi, as demonstrated by NHS’s act of withdrawing her from that assignment. These facts do not show centralized control of labor relations between Rappuchi and NHS.
The fourth and final factor is whether the entities share common ownership or financial control. NHS and Rappuchi’s company RCMC are independent entities. There is no indication that NHS and Rappuchi shared ownership or financial control over either company.
At most, Rappuchi and NHS have slightly interrelated operations and the other three factors are altogether lacking. Although all four factors are not necessarily required, one is not determinative. Harborage I, 585 N.W.2d at 858. Therefore, we are satisfied that the district court did not err by granting Rappuchi’s motion for summary judgment because Rappuchi did not qualify as Monson’s employer under the MHRA.
The MHRA provides that it is an
unfair discriminatory practice for an employer to “discriminate against a
person with respect to hiring, tenure, compensation, terms, upgrading,
conditions, facilities, or privileges of employment” on the basis of sex.
includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, . . . or creating an intimidating, hostile or offensive employment . . . environment.
Minn. Stat. § 363A.03, subd. 43
(Supp. 2003). An employee’s MHRA claim
is analyzed under the three-part, burden-shifting test established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973). Sigurdson
v. Isanti County, 386 N.W.2d 715, 719-20 (
To establish a prima facie case of
sexual harassment based on a hostile work environment, a plaintiff must show that
(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) “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 (
In a painstaking order drawn from a well-developed record, the district court concluded that Monson did not establish three of the four requirements for a prima facie case of hostile-employment-environment sexual harassment. Specifically, the district court found a sufficient basis to conclude that Rappuchi’s behavior was sexual in nature, but that (1) Monson’s conduct did not suggest that Rappuchi’s behavior was unwelcome; (2) Rappuchi’s conduct was not severe or pervasive enough to create a hostile work environment; and (3) NHS responded adequately to Monson’s claim of harassment. Because neither party disputes the district court’s finding that Rappuchi’s behavior could reasonably be construed as sexual in nature, our analysis will focus on the other three factors.
For conduct to be deemed unwelcome,
the complaining party must show that she “neither solicited it nor invited it
and regarded the conduct as undesirable or offensive.” Beach
v. Yellow Freight Sys., 312 F.3d 391, 396 (8th Cir. 2002) (quotation
omitted) (analyzing a sexual harassment claim under the MHRA). The proper inquiry is whether the plaintiff’s
conduct indicated that the alleged harassment was unwelcome.
The district court found that Rappuchi’s conduct was not shown to be unwelcome, primarily because Monson’s reactions did not, until she reported the “Teera letter,” indicate that it was unwelcome. Monson argues that a fact issue remains because the following shows that Rappuchi’s conduct was unwelcome: (1) she rejected his Las Vegas invitation and ran away from him; (2) she reported the Las Vegas invitation to Twa, who was an NHS maintenance supervisor; (3) she reported the “Teera letter” to NHS management; (4) she turned down his lunch and dinner invitations; and (5) she demonstrated that his conduct was unwelcome through her demeanor and disposition. We disagree.
Accepting the facts that Monson alleges as true, her own conduct belies her claim that Rappuchi’s conduct was unwelcome. Monson contends that she was bothered by Rappuchi’s actions at the January 2003 holiday party, but she then offered him a ride to the next bar two blocks away. Although she says that she became uncomfortable with Rappuchi’s notes and gifts of candy in January 2003, Monson continued to accept the gifts, even indicating to Rappuchi the candy bar she preferred, as late as August 2003. After the April Fools’ Day wooden-candy-bar spoof, Monson had the opportunity to tell Rappuchi that she was uncomfortable with the situation when he e-mailed her and specifically asked if he had upset her. Although she claims to have found the joke “harassing” and “insulting,” in an e-mail beset with exclamation points she responded that the joke was “great” and that she could “never be ‘mad’ at [Rappuchi]” and was “sorry if [he] got that impression.” And while she interprets another of Rappuchi’s e-mails as indication that he was spying on her, Monson at the time responded, “No special requests, even though now I’m hungry [smiley face].”
Although Monson insists that she considered Rappuchi’s behavior unwelcome, her claim is not substantiated by any outward manifestations of such an attitude. The district court did not err by finding that Monson failed to establish that Rappuchi’s conduct was unwelcome.
Severe or pervasive conduct
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
v. Ramsey County, 397 N.W.2d 894, 901 (Minn. App. 1986) (quotation omitted),
review denied (Minn. Feb. 13, 1987), abrogated on other grounds by Cummings,
568 N.W.2d at 420 n.2 (
The district court found that Monson failed to produce evidence showing that Rappuchi’s conduct was so severe and pervasive that it affected the terms and conditions of her employment. Monson argues that she established that her harassment was subjectively and objectively offensive because Rappuchi consistently demeaned and frightened her over a nine-month period. We disagree.
Monson analogizes the “Teera letter”
to graffiti in Beach v. Yellow Freight
Sys., 312 F.3d 391 (8th Cir. 2002).
In Beach, the complainant
worked for a freight- transportation company and was subjected to increasingly
offensive graffiti displayed on the company’s freight cars over the course of
four years. 312 F.3d at 394-95. The graffiti included explicit drawings and
phrases such as “give Al Beach a buck and he’ll f--k you in the butt” and “Al
Beach sucks c--k.”
Subjectively, Rappuchi’s behavior apparently disturbed Monson to the point that she decided to take a leave of absence and eventually resign. But Rappuchi's conduct, however sophomoric and obnoxious it may have been, was not objectively severe or pervasive enough to satisfy the high threshold for actionable harm. As to frequency and duration, Monson received the candy gifts from Rappuchi once a month when she did his books; the incidents that Monson cites as the most offensive—the Las Vegas proposal and the “Teera letter”—occurred eight months apart; Rappuchi’s only physical contacts with Monson occurred when he once tried to help her into her coat and once tried to help her across the ice on the parking lot; and much of Rappuchi’s banter persisted in the context of Monson’s seeming appreciation of his gifts and jokes. The district court did not err by finding that Monson failed to show that Rappuchi’s conduct was severe or pervasive enough to establish a subjectively and objectively hostile work- environment.
hold an employer liable under the MHRA, a plaintiff must show that “the
employer knows or should know of the existence of the harassment and fails to
take timely and appropriate action.” Cummings, 568 N.W.2d at 424 (quotation
omitted). The employer must take prompt
and appropriate action to correct the harassment once the employer knows or
should have known of the harassment. Fore v. Health Dimensions, Inc., 509
N.W.2d 557, 561 (
The district court found that NHS’s response was both timely and adequate because it took appropriate action as soon as it was made aware of Monson’s alleged harassment. Monson contends for the first time on appeal that her statement to Twa at the holiday party constituted a “report of sexual harassment.” Accordingly, Monson argues that the district court erred by not treating that report as notice to NHS that she was being subjected to sexual harassment.
This court will generally not
consider matters not argued and considered in the district court. Thiele
v. Stich, 425 N.W.2d 580, 582 (
Instead, we confine our examination to whether NHS’s response to the September 2003 harassment complaint was adequate. Factors to consider when determining the adequacy of the employer’s action include the amount of time elapsed between the notice of harassment and the remedial action, the options available to the employer, disciplinary action taken against the harasser, and whether or not the measures ended the harassment. Stuart v. Gen. Motors Corp., 217 F.3d 621, 633 (8th Cir. 2000) (analyzing a harassment claim under Title VII).
Here, Monson reported harassment to Ruper on September 25, 2003. That same day, Ruper removed her from the situation by informing Rappuchi that she would no longer do his bookkeeping. Ruper said nothing to Rappuchi about the letter or Monson’s complaint because he and Monson had agreed that he would not do so. But when Ruper learned that Monson herself had informed Rappuchi about the real reason she was no longer working with him, Ruper returned to Rappuchi to confirm Monson’s concerns and ask that Rappuchi have no contact with her. Not one day passed between Monson’s report of harassment and NHS’s remedial actions.
And the record reflects that NHS’s remedial actions were effective because, as Monson acknowledged in her deposition, Rappuchi never spoke to her or e-mailed her directly again after Ruper asked him not to do so. At her request, NHS blocked Monson from receiving the “all users” messages from Rappuchi. Monson did see Rappuchi once when she went downstairs to hand out checks to the maintenance crew, but there was no physical or verbal contact on that occasion. Monson’s complaint against Rappuchi addressed his intentional behavior toward her and that behavior ceased completely as soon as the day after she complained.
Summary judgment is appropriate if an
employee fails, under the MHRA, to present a prima facie case of employment
discrimination. Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475, 482 (
A “constructive discharge” occurs when
the employer creates “intolerable working conditions with the intention of
forcing the employee to quit.” Diez v.
The district court found that Monson was not constructively discharged because she did not allow NHS a reasonable opportunity to resolve the complained-of conditions. The record supports that finding. Monson initially complained to management on September 25, went on leave from November 19 until December 9, and abruptly resigned on December 12, 2003. Immediately after Monson complained, NHS asked Rappuchi to avoid contact with her, and Rappuchi complied.
Monson argues that the following facts show that she was constructively discharged: (1) NHS denied her requests to keep Rappuchi away from her; (2) she saw Rappuchi in the basement of the NHS building and his van outside the building; (3) she had emotional reactions when she saw Rappuchi; (4) a coworker made rude comments to her; and (5) other coworkers ignored her. We disagree that constructive discharge is established by these facts.
The facts, when viewed in a light
most favorable to Monson, do not establish objectively intolerable working
conditions. First, the record supports
NHS’s contention that it could not fulfill Monson’s request to keep Rappuchi
away altogether, because Rappuchi owned the building and regularly did business
with NHS. Second, even if her passing encounters
with Rappuchi were not accidental, he made no attempt to even speak to her. Third, her focus on her reaction to seeing
Rappuchi ignores the fact that the test determining whether working conditions
are intolerable is an objective one. Pribil, 533 N.W.2d at 412. The relevant inquiry is whether a reasonable
person would find the conditions intolerable, not whether Monson did.
Moreover, constructive discharge is a “companion tort” that requires a showing of an “underlying illegality.” Huyen v. Driscoll, 479 N.W.2d 76, 81 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992); see also Barrett v. Omaha Nat’l Bank, 726 F.2d 424, 428 (8th Cir. 1984) (stating that “[a]n employee is constructively discharged when he or she involuntarily resigns to escape intolerable and illegal employment requirements”). Therefore, our conclusion that she failed to establish the underlying illegality of sexual harassment supports the district court’s grant of summary judgment against Monson on her constructive-discharge claim.
Summary judgment is mandatory against
a party who bears the burden of proof and who fails to establish an essential
element of the claim. Lloyd v. In Home Health, Inc., 523
N.W.2d 2, 3 (
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Klink was modified by Cummings, 568 N.W.2d at 420 n.2, to the extent that a plaintiff need not show that the harassment was “based on sex,” but is otherwise unaffected.
 When interpreting cases under the MHRA, this court
gives weight to federal court interpretations of Title VII claims because of
the substantial similarities between the two statutes.