This opinion will be unpublished and

may not be cited except as provided by

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






Ali Dunham, et al.,


Wayzata Country Club,


Filed September 19, 2006

Affirmed; motion denied

Minge, Judge


Hennepin County District Court

File No. MC 03-1838



Jill Clark, Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427 (for appellants)


Hal A. Shillingstad, Andrea D. Kiehl, Flynn, Gaskins & Bennett, L.L.P., 333 South Seventh Street, 2900 Metropolitan Centre, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellants, former members of respondent country club, brought an action against respondent for alleged discriminatory treatment and improper termination of their membership.  Appellants challenge the district court’s determination that they failed to prove claims tried to the district court under the Minnesota Human Rights Act (MHRA) for retaliation and gender discrimination.  Appellants also claim that various procedural irregularities and the district court’s refusal to instruct the jury on their tort claim require a new jury trial.  Finally, appellants ask this court to strike a portion of respondent’s appendix.  By notice of review, respondent challenges the district court’s determination that respondent is subject to the MHRA.  Because respondent has a nondiscriminatory explanation for terminating appellants’ country club membership and because appellants failed to show a causal connection between the alleged discriminatory acts and the termination, we affirm the district court’s determination that the membership was not terminated because of retaliation or gender discrimination.  Further, because appellants were not prejudiced by the district court’s limiting the jury’s consideration to the contract claim or by procedural irregularities during the jury’s deliberations, we affirm the district court’s denial of appellants’ motion for a new trial.  Finally, we deny appellants’ motion to strike.


            Appellants Ali and Audian Dunham sued respondent Wayzata Country Club (WCC) after WCC terminated their family membership in December 2002.  Appellants’ claims were bifurcated for trial.  The district court conducted the first phase of the trial in which the parties submitted evidence and argument on gender discrimination and retaliation claims under the Minnesota Human Rights Act (MHRA), Minn. Stat.             §§ 363A.01-.41 (2004).  The jury considered a breach-of-contract claim during the second phase and returned a verdict that WCC did not breach its contract with appellants.  Subsequently, the district court issued its findings of fact and conclusions of law, ordering judgment for WCC on all of appellants’ MHRA claims.

            Appellants moved for a judgment notwithstanding the verdict, for a new trial, and to compel discovery.  The district court denied each motion.  This appeal followed, with WCC filing a notice of review challenging the district court’s determination that WCC was a public accommodation subject to the MHRA.  In addition, appellants move to strike a portion of WCC’s appendix.

            Appellants joined WCC in 1988 as full golf members shortly after moving to Minnesota.  Appellants utilized their WCC membership for social and business-entertaining purposes.  Mrs. Dunham particularly enjoyed the golf opportunities and was women’s club champion several times.  Before their membership was terminated, appellants dined at the club a number of times a week and their children participated in many club activities.  Appellants characterized WCC as “an extended family to us and our children.”

            Yet appellants’ WCC membership was troubled with complaints of misconduct.  In 1993, Mrs. Dunham was admonished for reprimanding club employees in three separate incidents; she, however, denied the allegations.  In 2000, appellants were reprimanded for failing to adhere to a “no jeans” dress code, and on January 12, 2001, Mrs. Dunham was cited for an alcohol-related incident after a WCC employee alleged that Mrs. Dunham verbally berated him when he offered to arrange a ride home for her.  Appellants met with club officials to discuss these allegations of misconduct and received a letter of reprimand, which warned that additional misconduct could result in more serious penalties.

            In January 2001, Mrs. Dunham learned that Mr. Dunham was having an affair with Mrs. Dunham’s close friend, Karen Roer.  Roer and her family are also WCC members.  Once the affair came to light, the allegations against Mrs. Dunham of misconduct at WCC intensified.  Appellants suggest that these allegations were part of a campaign against them by other WCC members.

            On June 7, 2001, Mrs. Dunham allegedly approached Roer in front of other WCC members, gave her the “finger,” and, addressing Roer’s friends, said that “[y]ou better hope she’s not sleeping with one of your husbands.”  Then, on June 15, 2001, Mrs. Dunham allegedly said to Roer, “My daughter knows what you did with her father,” in front of other WCC members.  Because Roer had obtained a temporary harassment restraining order against Mrs. Dunham, Mrs. Dunham was arrested after one of these verbal altercations.  In July 2001, WCC’s executive committee held a disciplinary hearing regarding these events and suspended appellants’ WCC membership for three months beginning August 1, 2001.  In addition, on August 29, 2001, Roer obtained a two-year restraining order against Mrs. Dunham.

            On the evening of June 27, 2002, an incident occurred that culminated in the termination of appellants’ membership.  Earlier that day, Mrs. Dunham and a few friends had competed in a special WCC women’s golf event.  Roer complained to WCC officials that Mrs. Dunham called her a “slut” just prior to the shotgun start of the golfing event.  Mrs. Dunham disputed even seeing Roer prior to the start of the event, much less insulting her.  One of Mrs. Dunham’s guests wrote a letter to a WCC official corroborating this.  Another WCC member, a friend of Roer, claimed that Mrs. Dunham confronted Roer in the ladies’ locker room, but no one else witnessed that alleged event.

            That evening, Roer alleged that Mrs. Dunham passed by Roer’s poolside table and, in front of Roer’s children, called Roer a “slut” and asked whether Roer “was proud of herself.”  Sherry Frederickson, who was sitting with Roer, tried to intervene because children were present.  According to Mrs. Dunham, however, she merely made a comment to Frederickson because they were friends and Mrs. Dunham was surprised to see Frederickson socializing with Roer.  Mrs. Dunham denies calling Roer a “slut” and further claims that Roer tried to goad her into a fight.  A certified polygraph examiner determined that Mrs. Dunham truthfully described the events of that evening.  However, because the alleged interaction with Roer violated the restraining order, Mrs. Dunham was again arrested at WCC and criminal charges were filed.

            After a three-day trial, Mrs. Dunham was acquitted of violating the restraining order.  However, the WCC house committee, which reviews misconduct complaints by members, recommended that the board of directors appoint a committee to further investigate the June 27 incident.  Appellants were given a hearing notice that specifically included five allegations of misconduct on June 27, 2002.  The committee waited until it could review testimony from the criminal proceeding.  Ultimately, the investigating committee held a hearing at which appellants presented evidence in their favor and addressed possible sanctions, including expulsion. 

            By letter dated November 22, 2002, appellants were informed that the board had decided to terminate their WCC membership.  This determination was made on a recommendation of the committee which found that Mrs. Dunham committed willful misconduct under the WCC bylaws when she allegedly called Roer a “slut” in front of her children on June 27, 2002.  Appellants’ membership terminated on December 20, 2002.




            The first issue is whether the district court erred in determining that appellants’ WCC membership was not terminated because of retaliation or gender discrimination, as prohibited by the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.41 (2004).  On appeal, this court is not bound by the district court’s legal determinations under the MHRA.  See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003) (noting that a reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue).  The MHRA prohibits discrimination in places of public accommodation.  Minn. Stat. § 363A.11, subd. 1(a)(1).  It further provides that it is a discriminatory practice to “deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex . . . .”  Id.  The language of the MHRA is broadly interpreted to accomplish the remedial purposes of the act.  Minn. Stat. § 363A.04; U.S. Jaycees v. McClure, 305 N.W.2d 764, 766 (Minn. 1981).

A.  Public Accommodation

A threshold issue is whether WCC is a “public accommodation” as that phrase is defined in the MHRA.  See Minn. Stat. § 363A.03, subd. 34.  On summary judgment, the district court determined that WCC was subject to the MHRA because WCC failed to prove that it was a private facility as a matter of law.  WCC requests this court to reverse that accommodation determination, citing concerns that it might be prejudiced in future litigation.  We decline to reverse for two reasons.  First, because we conclude that the district court did not err in determining that appellants failed to demonstrate that the termination of their membership was retaliatory or the result of gender discrimination, WCC’s argument is moot.

Second, WCC would not be precluded from litigating its status as a public accommodation in future litigation.  A party is estopped only if it had a full and fair opportunity to litigate an issue.  Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 448 (Minn. 2000).  WCC’s status was determined on summary judgment.  Normally the issue would then be litigated at trial.  However, here the district court concluded that its summary judgment decision was a ruling on the merits and did not permit testimony on the issue.  As a result, WCC has not fully litigated this issue, we do not have a fully developed record for review, and WCC would probably not be collaterally estopped from arguing its public/private status in another case.

B.  Merits

            MHRA claims of retaliation and gender discrimination are analyzed under the McDonnell-Douglas burden-shifting analysis.  McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  See Anderson v. Hunter, Keith, Marshall & Co., Inc., 417 N.W.2d 619, 623-24 (Minn. 1988) (gender discrimination); Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 367 (Minn. App. 2003) (retaliation), aff’d, 684 N.W.2d 404 (Minn. 2004).  Under the McDonnell-Douglas test, the plaintiff must first demonstrate a prima facie case by a preponderance of the evidence.  Ray, 664 N.W.2d at 367.  The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision.  Id.  Finally, if the defendant meets its burden, the plaintiff must then prove that the legitimate reason offered by the defendant was merely pretextual.  Id.

            1.  Retaliation

            The MHRA prohibits any reprisal, including retaliation, against an individual who has complained of an allegedly discriminatory practice.  Minn. Stat. § 363A.15(1).  To prove a prima facie case of retaliation the plaintiff must establish: (1) statutorily protected conduct; (2) adverse action; and (3) a causal connection between the two.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).  The district court determined that appellants failed to establish a prima facie case of retaliation because the evidence did not demonstrate a causal connection between Mrs. Dunham’s complaints of gender discrimination and the termination of appellants’ WCC membership.

            The record demonstrates that Mrs. Dunham complained on several occasions, and over a number of years, of perceived gender discrimination at WCC.  For example, Mrs. Dunham testified that she campaigned to change the rules regarding the use of life jackets at the WCC pool.  Even though WCC eventually changed its policy, Mrs. Dunham felt that some members started treating her like a “female troublemaker.”  Mrs. Dunham also testified that she tried for years to improve the caliber of the women’s golf tournaments.  In addition, Mrs. Dunham made complaints to WCC officials about being treated differently because she is a woman, and the response was that she “[stood] out from the norm” and that she needed “to get in line.”

            The district court determined that too much time had passed between these complaints and the termination to establish a nexus.  “[A] gap in time between the protected activity and the adverse . . . action weakens the inference of retaliation that arises when a retaliatory act occurs shortly after a complaint.”  Weiland v. El Kram, Inc., 233 F. Supp. 2d 1142, 1154 (N.D. Iowa 2002) (quoting Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 731 (8th Cir. 2002) (other quotation omitted)); see also Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (finding an interval of two months between discrimination complaint and termination insufficient to establish a causal link).  After reviewing the record, we conclude that substantial evidence supports this finding and that the district court did not err in concluding that appellants failed to establish that their membership was terminated in retaliation for complaints of gender discrimination.

            2.  Gender Discrimination

            The district court also determined that appellants failed to make a prima facie showing that their membership was terminated because of gender discrimination and that even if a prima facie showing could be made, WCC had a legitimate, nondiscriminatory reason for termination.  In making this determination, the district court had to weigh the conflicting testimony of various witnesses.  In a discrimination case, the reviewing court will afford great deference to the district court’s findings of fact, especially when the district court had to assess the relative credibility of witnesses and the weight to be given to conflicting testimony.  Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).

                        a.  Prima Facie Showing

            Appellants allege that their termination was the last step in a long pattern of gender discrimination.  But some of the allegations made by appellants are not actionable under the MHRA and others were contested.  First, Mrs. Dunham alleges that she was discriminated against because she could not play in the all-male WCC Master’s Tournament and Pro’s Closing Event in 1992.  However, gender-specific sporting events that do not “substantially reduce comparable athletic opportunities for the other sex” and that are “necessary to preserve the unique character of the team, program, or event” are not actionable examples of gender discrimination.  Minn. Stat. § 363A.24, subd. 2.  Mrs. Dunham also complained of inferior women’s locker room facilities.  We note that locker rooms are exempt from the MHRA.  Id., subd. 1.

            Mrs. Dunham also alleged that the women’s golfing events were “silly,” especially in comparison to the men’s events, which “had true rewards of skill and competition.”  However, Mrs. Dunham also testified that when she tried to make some changes to the women’s golfing program, most of the difficulties she encountered were from other female WCC members opposed to change.  The problem is not discrimination, it is disagreement.

            Other allegations of gender discrimination were subject to conflicting testimony.  For example, appellants claim that a de facto prohibition exists on women’s use of certain dining facilities at certain times, but a former female WCC board member testified that there were no restrictions on access to any dining table.  Moreover, while Mrs. Dunham alleged that men were given preferential tee-times, another female member of WCC testified that tee-times were assigned in a gender-neutral manner.  Finally, Mrs. Dunham argued that the “no jeans” policy was administered in a discriminatory way that affected mostly women and children.  Evidence showed that it was the mostly female house committee that instituted the policy, and WCC employees testified that they enforced the policy to the best of their ability, as fairly as possible, and without discriminating against women.

            Appellants also contend that by terminating their membership, WCC treated them differently from other similarly situated WCC members.  Appellants specifically compare their situation with that of two other male members.  First, Mike Brandt is a former WCC member who was expelled because of an incident involving Mrs. Dunham in 1992.  He belligerently confronted Mrs. Dunham for attempting to enter the all-male Masters Tournament, calling her profane names and attempting to physically intimidate her.  WCC determined that Brandt’s behavior constituted misconduct and expelled him from membership.  Appellants assert that Brandt’s wife was able to continue her membership and that Brandt had guest privileges at the club after his expulsion, both of which were denied to appellants.  But this comparison demonstrates that willful misconduct does result in expulsion from WCC, and the record does not reveal that appellants’ expulsion, if it indeed was a more severe sanction than Brandt’s, was the result of gender discrimination.

            Second, appellants testified that WCC member Norm Nafstad used inappropriate language, calling a member and her guest “hookers” and “whores” in reference to the fact that they were sitting at the bar without their husbands.  Appellants contend that Nafstad’s behavior was equally as offensive as Mrs. Dunham’s, if not more so, and yet he was not expelled.  WCC explained that, as this was the first time a WCC member lodged a written complaint against Nafstad, WCC sent a warning letter.  Appellants argue that Nafstad was notoriously poorly behaved.  But as the district court noted, evidence offered by appellants of other members’ behavior that went unpunished “more clearly goes to the issue of what punishment should be imposed, rather than who ultimately gets punished.”

            In weighing this conflicting testimony, the district court determined that the evidence did not demonstrate a prima facie case of gender discrimination.  Based on the record and the deference accorded the district court’s findings, we conclude that the district court did not abuse its discretion in resolving the credibility issues against appellants and determining that the evidence did not support a prima facie showing of discrimination.

                        b.  Legitimate, Nondiscriminatory Reason

            In addition to determining that appellants did not make a prima facie showing, the district court went on to determine that WCC had a legitimate, nondiscriminatory reason for terminating appellants’ membership.  The WCC bylaws clearly provide that one consequence of willful misconduct is termination of membership.  If WCC decided that appellants engaged in willful misconduct, this constitutes a legitimate reason for termination.  See Koons v. Aventis Pharms., Inc., 367 F.3d 768, 778 & n.6 (8th Cir. 2004).

            The letter from WCC terminating appellants’ membership indicates that the board based its decision on item 2(e) of WCC president Karl Reuter’s letter to appellants advising them of the allegations of misconduct against them.  Item 2(e) specifically refers to Roer’s allegation that Mrs. Dunham called her a “slut” in front of others on the evening of June 27, 2002.  The termination letter states that other allegations were not investigated and the conflicting accounts were not reconciled by the board because it found that item 2(e) constituted willful misconduct. 

            Appellants contend that, because Mrs. Dunham was acquitted of criminal charges for that incident and because she passed a polygraph test in which she denied Roer’s version of events, the evidence demonstrates that this event never took place and that WCC’s explanation for its decision was a pretext.  We disagree with appellants’ claim that the board was constrained by the outcome of the criminal proceedings.  The standard of proof in the criminal proceeding is beyond a reasonable doubt.  A criminal court determination that the harassment restraining order was not violated does not mean that the WCC board and the district court in a civil proceeding were precluded from determining that, by a preponderance of the evidence, the incident occurred and that it constituted willful misconduct.  Although of interest, polygraph tests are of limited relevance.  The results of such tests are not admissible in criminal or civil proceedings and the board was free to disregard them in its deliberations.  See State v. Schaeffer, 452 N.W.2d 719, 722 (Minn. App. 1990); M.N.D. v. B.M.D., 356 N.W.2d 813, 819 (Minn. App. 1984); cf. Minn. Stat. § 181.75 (2004).


            The second issue is whether the district court erroneously denied appellants’ motion for a new trial, which appellants premised on several alleged procedural errors.  Our standard of review for a denial of a motion for a new trial is determined by the nature of the alleged error.  When a motion for new trial is based on a question of law, review is de novo.  Dostal v. Curran, 679 N.W.2d 192, 194 (Minn. App. 2004), review denied (Minn. July 20, 2004).  Denial of a motion for new trial based on an alleged evidentiary error is reviewed for abuse of discretion.  See Myers v. Winslow R. Chamberlain Co., 443 N.W.2d 211, 215 (Minn. App. 1989), review denied (Minn. Sept. 27, 1989).

            Appellants moved for a new trial pursuant to Minn. R. Civ. P. 59.01(a), which states:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:       (a) Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial . . . .


Minn. R. Civ. P. 59.01(a).  In order to prevail on a motion for a new trial, appellants had to demonstrate that they were prejudiced by the alleged irregularities.  See In re Shigellosis Litig., 647 N.W.2d 1, 8 (Minn. App. 2002) (“In evaluating a motion for a new trial, the district court must consider both the claimed error and whether prejudice has resulted to the moving party.”), review denied (Minn. Aug. 20, 2002).

            A.  Jury Question

            Appellants argue that they were prejudiced because appellants’ counsel was not able to respond to a question posed by the jury during deliberations.  Generally, if the district court gives a new jury instruction without sufficient procedural safeguards, it is grounds for a new trial.  Cambern v. Sioux Tools, Inc., 323 N.W.2d 795, 797 (Minn. 1982); see Ramfjord v. Sullivan, 301 Minn. 238, 250-51, 222 N.W.2d 541, 549 (1974).  However, where it is not clear that the presence of counsel would have made a difference, such error is not reversible error.  Johnson v. St. Charles Mun. Liquor Store, 392 N.W.2d 909, 912 (Minn. App. 1986).           

            Here, the jury posed the following question to the district court: “When rendering our decision, are we allowed to make a collective statement?”  The district court attempted to contact counsel for both parties.  The district court was able to reach counsel for WCC, but could not reach counsel for appellants and left a message indicating the nature of the question and the district court’s anticipated response.  The district court answered the jury’s question in the negative, without elaborating.  Even if the failure to wait for counsel to return the district court’s call was error, it is not reversible error in this case.  The jury did not have a question about the jury instructions and did not seek an additional legal definition or an answer to another legal question.  Therefore, the presence of counsel would not have affected the outcome, especially where the district court believed that the jury was requesting permission to take action outside of its proper function.  The district court did not abuse its discretion by denying appellants’ motion for a new trial on this basis.

            B.  Exhibit 59

            In preparing this appeal, appellants learned that exhibit 59 was not sent back with the jury for deliberations.  Appellants contend that this failure is grounds for a new trial.  Exhibit 59 is the termination letter from WCC.  The district court denied appellants’ motion for a new trial, determining that the evidence was duplicative of trial testimony.  Although we agree with appellants that this exhibit is a crucial document, we note that this document was extensively discussed during the trial and its contents and effect were clear.  We also note that the parties submitted numerous exhibits to the jury, many of which were letters making allegations against appellants and discussing the nature and extent of the misconduct that eventually led to the termination of their membership.  “A new trial will not generally be granted on the basis of evidence that is merely contradictory, impeaching, or cumulative.”  Dostal, 679 N.W.2d at 194.  We conclude that the record supports the determination of the district court and that it did not abuse its discretion in denying a new trial on this basis.

            C.  Nature of Claim

            Appellants allege that the district court erred when it failed to submit their wrongful-termination claim to the jury along with their breach-of-contract claim.  When appellants filed their suit, they made separate claims for tortuous wrongful termination and for breach of contract.  The breach-of-contract action was premised on WCC’s alleged failure to follow the procedures set out in the bylaws, the only “contract” between appellants and WCC.  This “contract” defines the duty to appellants and the tort claim was therefore related to the contract claim.  Alternatively, WCC’s duty was defined by the MHRA.  Either appellants could have established that their membership was wrongfully terminated because WCC breached its contract and failed to follow its own procedures, or because WCC impermissibly discriminated based on gender.  Because the wrongful-termination claim was redundant of the other two claims, failure to submit the tort claim to the jury is not error.  Appellants’ claims were considered and rejected by both the district court and the jury.


            The last issue is whether the court should grant appellants’ motion to strike the version of exhibit 48 appended to WCC’s brief.  Exhibit 48 is a part of the house committee minutes from July 31, 2002, when the committee voted to recommend that the board look into allegations of misconduct by Mrs. Dunham.  The redacted version of the exhibit, as attached in WCC’s appendix, does not contain a paragraph alluding to the allegations of misconduct against Norm Nafstad.  Appellants claim that this omitted paragraph shows that they were treated differently from other club members and that the full, nonredacted version is essential to this court’s review.  WCC responded that although it had no objection to including the nonredacted version of exhibit 48 in the record on appeal, a redacted version was entered into evidence at trial.  Because this exhibit was a part of the record and appellants had full opportunity to call this court’s attention to the omitted material, the error, if any, is inconsequential and the motion is denied.

            Appellants further contend that they were prejudiced by the fact that the redacted version of the exhibit was admitted into evidence rather than the full version.  However, appellants did not object when WCC offered exhibit 48 into evidence.  Whether the failure to object was a result of confusion at the time of trial or deliberate, clearly there was no objection.  Therefore, this argument is waived. 

            Affirmed; motion denied.