This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Judy Frieler,





Carlson Marketing Group, Inc.,



Filed July 24, 2007


Shumaker, Judge


Hennepin County District Court

File No. 27-CV-05-011378



Joni M. Thome, Frances E. Baillon, Halunen & Associates, 220 South Sixth Street, Suite 2000, Minneapolis, MN 55402 (for appellant)


Gregory J. Stenmoe, Steven W. Wilson, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Alleging that she was subjected to sexual harassment in violation of the Minnesota Human Rights Act (MHRA), that a hostile work environment was created when her supervisor sexually harassed her on the job, and that respondent Carlson Marketing Group, Inc. (CMG) is liable for assault and battery as her employer under the doctrine of respondeat superior for her supervisor’s alleged actions, appellant Judy Frieler appeals summary judgment granted in favor of CMG.  The district court determined that Frieler failed to show a material fact dispute that:  (1) CMG knew or should have known of the unwitnessed and unreported sexual assaults that she alleged or that CMG failed to respond appropriately to the allegations once they surfaced; (2) that the alleged assailant, Ed Janiak, was not her supervisor for the purpose of assigning liability vicariously to CMG for a hostile work environment; and (3) that sexual harassment was not a well-known, widespread, industry hazard for the purposes of Frieler’s assault-and-battery claims.  Because Frieler failed to show a material fact dispute about whether CMG knew or should have known about harassment, even if her work environment was considered hostile for the purpose of granting summary judgment, and because Frieler failed to establish that sexual harassment is a well-known hazard in her particular type of workplace, we affirm the district court’s determination. 


            Judy Frieler began working in the bindery department of CMG as a part-time collation clerk in 1991.  During the last two years of her employment, Frieler became interested in full-time work, and her manager, David Weber, encouraged her to apply for a full-time position.  Weber told her to talk with Ed Janiak, the supervisor who was hiring for the full-time position.  Frieler had known Janiak for many years, and although they worked in different departments, Frieler testified that she and Janiak would joke around, that they had a playful relationship, and that she had no concerns about working with Janiak at the time.

            On February 23, 2005, soon after she spoke with Janiak about a full-time position, Frieler alleges that he physically and sexually assaulted her for the first of four times.  He called her into a private room, locked the door, grabbed her in a bear hug, pressed his erect penis against her stomach area, and grabbed her buttocks.  Frieler stated that Janiak kept telling her that she should get used to such treatment because he was going to be her boss.  Frieler did not tell anyone about this incident. 

On March 2, 2005, Janiak allegedly assaulted Frieler a second time in the same private room, having called her in to discuss job-related matters.  This time he grabbed her waist, repeatedly tried to kiss her, and Frieler could feel his erect penis against her body.  He also told her that she would have to learn “to take it” and “to handle him.”  Janiak released Frieler and before leaving the room told her not to tell anyone.  Frieler testified that she was terrified, but believed that if she told anyone in management, she would not get the job that she wanted.  She told her sister-in-law, her sister, her son, a friend, and her ex-husband about the assaults but did not tell anyone at CMG.   

On March 7, 2005, Janiak allegedly assaulted Frieler a third time in a locked and secure room located in the warehouse area after he told Frieler that he needed to show her something for her new job.  He grabbed her, groped her left breast, rubbed his penis against her stomach, and tried to kiss her as she struggled to get away.  Frieler did not inform CMG of the incident. 

On March 9, 2005, Janiak allegedly assaulted Frieler a fourth time in the Sales Room.  Later that day, Frieler was offered, and she accepted, a full-time job.  The next day, Frieler told coworker Debbie Tobako that she was being harassed by a guy at work.  Later that day, she had lunch with Tobako and Vickie Streich—a group leader in the department where Frieler worked—and told them that Janiak had been assaulting Frieler ever since Frieler had applied for the full-time position.

That same day, Frieler met with Weber, her manager, and Angela Krob and Jackie Dahl, both of whom were in the human-resources department.  Crying and shaking, she told them about the alleged multiple assaults.  The company immediately began investigating, meeting with Frieler several times.  Krob and Dahl gave Frieler the option of continuing to work, but Frieler chose to be placed on paid leave.

Krob and Dahl met with numerous coworkers to investigate the matter but discovered no evidence to substantiate Frieler’s claims.  On March 11, they met with Janiak and told him that Frieler had complained of sexual harassment.  Janiak denied the allegations and quit his job on March 14, stating as a reason his serious health issues caused by job-related stress and a desire to spend more time with his family.  Janiak’s coworkers threw him a brief retirement party, and Weber told him he was sorry to see him leave the job.  Frieler returned to her part-time job after two weeks’ leave, and she testified that she was told by Krob and Dahl not to discuss the incident.  Frieler worked for a few days, but felt uncomfortable when her coworkers accused her of making up the allegations.  On the day she was to start her full-time position, she called in sick.  She was diagnosed with post-traumatic stress disorder and depression, requested further leave, and then sent CMG a letter through her attorney, stating that she would not be returning to work.


On appeal from summary judgment, this court “ask[s] two questions:  (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 (Minn. 1990). 

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.  On appeal, the 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 (Minn. 1993) (citation omitted).  No genuine issue for trial exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quotation omitted).  To defeat a motion for summary judgment, a party “must do more than rest on mere averments,” id. at 71, and must establish a genuine fact issue for trial with “sufficient evidence to permit reasonable persons to draw different conclusions,” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (emphasis omitted).  Although Frieler argues that summary judgment should seldom be granted in employment-discrimination cases, including sexual-harassment claims, this notion was rejected in Dietrich v. Canadian Pacific Ltd., in which the supreme court “express[ed] [its] disapproval of the court of appeals’ sweeping statement that summary judgment is generally inappropriate in discrimination cases.”  536 N.W.2d 319, 326 n.9 (Minn. 1995).

Sexual Harassment

            Alleging sexual harassment in violation of the MHRA, Frieler agues that CMG created a hostile work environment when Janiak sexually harassed her while she was attempting to perform her job duties, that CMG knew, or should have known, of Janiak’s conduct, and that the intolerable working conditions were exacerbated by CMG’s handling of the investigation and by coworkers’ comments to her about the incident.  The district court held that Frieler failed to establish a material fact dispute that CMG knew, or should have known, of the alleged assaults and then failed to take timely and appropriate corrective action.  The district court also noted that Frieler failed to show that Janiak was her supervisor for the purpose of assigning vicarious liability to CMG for Janiak’s actions.  Frieler contends that she established a material fact dispute over whether CMG is vicariously liable for the hostile work environment created by Janiak.  We disagree. 

Under the MHRA, sexual harassment may consist of “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature . . . .”  Minn. Stat. § 363A.03, subd. 43 (2006).  To prevail on her claim of sexual harassment based on a hostile work environment, Frieler must show that:

(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action.


Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001).  The sexual harassment must have been so severe or pervasive that it altered the conditions of her employment and created an abusive work environment.  Id.  To successfully oppose summary judgment, Frieler must show a genuine fact issue on all the elements that would establish a prima facie case.  Russ, 566 N.W.2d at 71. 

Under federal law, which was extensively briefed by both parties and on which the court relied, if Frieler establishes fact issues as to these elements, and if Janiak was a supervisor with immediate authority, CMG is subject to vicarious liability for the hostile environment created by the supervisor.  Burlington Indus, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998); Faragher v. Boca Raton, 524 U.S. 775, 87, 118 S. Ct. 2275, 2292-93 (1998).  For a claim of harassment by a non-supervisory personnel, Frieler must show that her employer knew or should have known of the harassment and failed to take proper action.  Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999)But we need not address whether Janiak had supervisory capacity because Frieler brought her claim under the MHRA, and Minnesota has not adopted the supervisor/nonsupervisor distinction, or formally recognized the Faragher/Ellerth standard.

Because the Faragher/Ellerth standard does not apply, and because Frieler failed to establish a fact dispute that CMG knew, or should have known, about the harassment before she reported the harassment, she has not made a prima facie showing.  Bersie v. Zycad Corp., 417 N.W.2d 288, 291 (Minn. App. 1987) (affirming judgment for employer when employer was not told of harassment and when the conduct was not so severe and pervasive that employer was put on notice), review denied (Minn. May 5, 1988).  Frieler asserts that an amendment to the MHRA sexual-harassment definition, effective August 1, 2001, eliminates the requirement that the employer know, or should know, about the harassment and fails to take timely action.  2001 Minn. Laws, ch. 194, § 1, at 724; see Minn. Stat. § 645.02 (2006) (stating that unless specified differently in an act, laws become effective August 1 following final enactment).  But in Goins, the Minnesota Supreme Court set forth a five-part test for sexual-harassment claims, retaining the “knew or should have known of the harassment and failed to take appropriate remedial action” language, and this court has applied that standard since.  See Gagliardi v. Ortho-Midwest, 733 N.W.2d 171, 176-77 (Minn. App. 2007) (applying Goins test without addressing the specific issue of the effect of the 2001 amendment).

Frieler argues that she presented sufficient evidence to establish that the severe and pervasive nature of Janiak’s conduct created a hostile work environment such that a question of fact is presented as to whether CMG knew or should have known about the harassment.  But a fact issue must also be shown specifically as to whether CMG knew, or should have known, about the sexual harassment and not just whether the alleged conduct was severe.  The district court assumed, taking the evidence in the light most favorable to Frieler as the nonmoving party, that Janiak’s conduct was severe enough to “constitute substantial interference with [Frieler’s] work environment and may even rise to a hostile environment.”  The court went on to note that “the crux of the issue . . . is whether [CMG] knew or had reason to know of Janiak’s actions . . . .”  The district court correctly applied the Goins standard.

The record, which includes Jackie Dahl’s investigation notes and several depositions of Frieler, Janiak, and employees of CMG does not reveal a material fact dispute that CMG had any knowledge of the accusations.  Frieler admits that she did not tell anyone connected with CMG about the alleged assaults, fearing that, if she told, she would not get the new job.  It was not until after the fourth assault that she told a coworker and met with Weber, Krob, and Dahl, after which the company investigated the situation.  The alleged incidents took place in isolated and locked rooms, and no one was present to witness the incidents.  Furthermore, Janiak and Frieler left the rooms at separate times to avoid detection.  The facts show that Janiak did not harass Frieler at any time after she reported the incidents, and the two had no further contact. 

Additionally, Janiak had no prior accusations or complaints against him in the 18 years of his employment at CMG that would have put the company on notice of possible future accusations.  Although Frieler asserts that “Janiak’s sexual advances, flirtations and comments were well known within the workplace and nothing had ever been done to change his behavior” and that he was known as a “pervert” and a “dirty old man,” Frieler cites nothing in the record to support these allegations.  Additionally, Frieler testified that she was shocked when Janiak made advances to her, because he had never done so before. 

During Dahl’s investigation of the matter, she spoke with several women who worked with Janiak.  Tammy Latzig, who reported directly to Janiak, stated that she had worked with Janiak for 17 years, never felt uncomfortable around him, and did not believe that he would do such a thing.  Tobako also told Dahl that she had worked at the company for 11 years and could not believe the accusations against Janiak, and that she believed that Frieler was unable to handle her job.  Although Frieler stated in her complaint that she did not report the incident after the second assault because she knew that Janiak had been reported for sexual harassment before, in her deposition she said she was unaware of any prior reports against Janiak. 

Even though Frieler attempts to link the severity of the alleged behavior with the “known or should have known” element, she failed to establish a fact dispute that the incidents were also obvious to others or that Janiak had any history of sexually inappropriate behavior toward female coworkers that should have put CMG on notice.  The fact that the alleged conduct was hostile and abusive does not automatically create a fact issue about whether CMG knew or should have known about the behavior.  There are two separate parts of the analysis, and fulfilling one does not create a fact issue as to the other.  Therefore, we hold that there is no genuine fact issue about whether CMG knew about the harassment or had reason to be on notice that Janiak might harass a coworker. Summary judgment was properly granted.  See Bersie, 417 N.W.2d at 291 

Frieler also alleges that her coworkers’ comments after the incident should be taken into account and that CMG knew about these comments but did nothing to stop them.  But this is a claim of sexual harassment, and her coworkers’ comments, although unpleasant and unwelcome, did not constitute harassment under the MHRA.  Moreover, these comments are insufficient for Frieler’s hostile-work-environment claim.  See Burkett v. Glickman, 327 F.3d 658, 662 (8th Cir. 2003).  (“Offhand comments and isolated incidents of offensive conduct (unless extremely serious) do not constitute a hostile work environment.”)

            The undisputed facts also establish that CMG took reasonable and appropriate action to correct the alleged harassment as soon as Frieler did complain.  Personnel immediately investigated the matter and put Frieler on paid leave when she indicated she did not want to work, isolating her from her alleged attacker.  CMG investigated the matter, spoke with Frieler and Janiak’s coworkers, and found no evidence to confirm the very serious allegations.  Although Frieler argues that Janiak was never reprimanded, he quit before the investigation was completed.  It is undisputed that by the time Frieler was to return to her normal job duties, Janiak was no longer employed at CMG and that no sexual harassment occurred after Frieler told CMG of Janiak’s behavior.  CMG “maintained[ed] an appropriate anti-harassment policy and promptly implement[ed] that policy when [Frieler] complain[ed] about harassing conduct.”  McCurdy v. Arkansas State Police, 375 F.3d 762, 771 (8th Cir. 2004). 

Assault and Battery

            Frieler also asserts that the district court erred in dismissing her assault-and-battery claims.  Under the principle of “respondeat superior, an employer is vicariously liable for the torts of an employee committed within the course and scope of employment.”  Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999) (quotation omitted). This liability is based not on fault of the employer, but rather on the policy determination that acts committed within the scope of employment should be allocated to the employer as a cost of doing business.  Id. Vicarious liability may be imposed for an employee’s intentional tort when the tort  (1) occurs within work-related limits of time and place; and (2) is related to the employee’s duties.  Hagen v. Burmeister & Assocs., Inc., 633 N.W.2d 497, 504 (Minn. 2001).

            The district court held that the issue in dispute was whether the tort was related to Janiak’s duties, because the facts are undisputed that the incidences occurred in the workplace.  Therefore, this court reviews the second factor, whether an act is related to an employee’s duties, in considering whether the act was foreseeable.  Id.  As distinguished from foreseeability in direct-negligence actions, which is defined as “a level of probability which would lead a prudent person to take effective precautions,” foreseeability as a test for respondeat-superior liability “merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.”  Fahrendorff, 597 N.W.2d at 912 (quotation omitted).  

            Frieler asserts that sexual harassment is a well-known hazard in her particular workplace because CMG promulgated a policy to prevent and address it, and therefore Janiak’s conduct should have been foreseeable to the company.  The district court disagreed, noting that because “sexual assaults among employees within the marketing industry are not a well-known hazard, the action by Janiak was not foreseeable, and [CMG] should not be held vicariously liable for his tortious conduct.” 

            There is relatively little caselaw on what will be considered a well-known workplace hazard for a particular industry.  But affidavits and expert testimony are important considerations in establishing what constitutes a well-known hazard for a particular industry and are necessary to present a material fact dispute that will survive a summary judgment.  See id. at 911-12(concluding that affidavit stating that sexual abuse by group-home staff was a “well-known hazard” in industry presented material factual issue on whether employee’s sexual assault was foreseeable); P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn. 1996) (concluding that summary judgment for school district was appropriate in light of lack of evidence, such as expert testimony or affidavits, demonstrating that a sexual relationship between teachers and students is a “well-known hazard”); Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1982) (finding fact issue as to whether employer was liable on a respondeat-superior claim for a psychologist’s sexual misconduct with a patient when plaintiff provided expert evidence that sexual relations between a psychologist and patient are a well-known hazard).  This evidence is essential because, in assessing respondeat superior liability, courts must determine whether the “overall nature of the employer’s business and the employee’s duties are such that, as a policy matter, vicarious liability for intentional torts is a ‘foreseeable cost of doing business.’”  Longen v. Fed. Express Corp., 113 F. Supp. 2d 1367, 1372 (D. Minn. 2000) (quoting Fahrendorff, 597 N.W.2d at 912).  Frieler’s personal opinion is not sufficient to create a fact issue on foreseeability.

            Although Frieler points to CMG’s reporting procedures for sexual harassment and the company’s sexual-harassment training for new employees as indicators that sexual harassment is a foreseeable risk of CMG’s business, she provides no expert testimony or affidavits establishing that sexual harassment is an industry hazard in warehouse work or, more specifically, in collation work.  Because her mere assertions failed to establish that sexual harassment is a well-known hazard in her particular workplace, summary judgment was properly granted as to the tort claims.