This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1122

Irene Wade Benjamin,

Appellant,

vs.

County of Hennepin,

Respondent.

Filed November 26, 1996

Affirmed

Lansing, Judge

Hennepin County District Court

File No. EM954172

Irene Benjamin, 650 1st Street S.E., St. Cloud, MN 56304 (Pro Se Appellant)

Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, 2000A Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This appeal challenges summary judgment dismissing Irene Benjamin's claims against her employer, Hennepin County. Because we find no genuine issues of material fact and because the district court did not err in its application of the law, we affirm.

FACTS

Irene Wade Benjamin is a Native American woman who worked for Hennepin County as a clerical assistant in the alcohol receiving center. During her employment Benjamin became concerned with the mistreatment of Native American clients at the receiving center. In August 1992 she complained about this mistreatment in a written memorandum to the center's director who responded by setting up an employee/management work group. Although Benjamin and the employees she recommended for inclusion were appointed to the group, she decided in mid-September not to participate.

The allegations of mistreatment at the receiving center gained public attention after they were reported in the Native American Press. By late 1992 the allegations were being reported widely in the press, and the FBI had begun an investigation into some of the claims. A number of employees were reprimanded as a result of an internal investigation.

Benjamin alleges that after the public disclosure of her allegations, she began to experience difficulties at work. She claims that she was repeatedly harassed by co-workers, that her concerns about the harassment were ignored by management, that her hours were cut, and that she was denied office space and support needed to complete her job. Benjamin also claims that the county improperly withdrew or limited its permission to allow her to "smudge," a Native American ritual consisting of burning a small amount of sage, in order to purify her workplace.

While Benjamin was on an extended medical leave, the receiving center was closed, reorganized and reopened as an overnight shelter facility, resulting in changes in administration and clerical duties. Upon her return to work, Benjamin was reassigned to a different workspace, and the amount of overtime she was allowed to work was reduced. Benjamin was on another extended medical leave during the summer of 1993 when she returned for a meeting with the county in which she was offered a full-time clerical position at a different location. Benjamin rejected that offer.

In January 1993 Benjamin filed complaints with the Minnesota Department of Human Rights and the federal Equal Employment Opportunity Commission. Both complaints were dismissed. In December 1994 Benjamin filed a complaint with the district court. The district court granted summary judgment for the county. Benjamin now appeals.

D E C I S I O N

Summary judgment is proper when there are no issues of material fact and when one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal the reviewing court determines whether there are genuine issues of material fact and whether the district court erred in its application of the law. Sigurdson v. Carl Bolander & Sons, 532 N.W.2d 225, 228 (Minn. 1995). We apply these standards to Benjamin's appeal from the dismissal of her statutory claims for (1) racial discrimination, (2) religious discrimination, and (3) retaliation, and her common law claims for (4) intentional infliction of emotional distress and negligent supervision, hiring, and retention.

I

Benjamin's racial discrimination claim is brought under the Minnesota Human Rights Act (MHRA) which provides: "[I]t is an unfair employment practice * * * [f]or an employer because of race * * * to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment." Minn. Stat. § 363.03, subd. 1(2)(c) (1994). Race discrimination claims under the MHRA are analyzed under the three-part McDonnell Douglas test. Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). The ultimate burden of persuasion remains at all times with the plaintiff. Saint Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2747-48 (1993).

Reviewing the evidence in a light most favorable to Benjamin, Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), we conclude that she failed to establish a prima facie case under the "hostile environment" theory of racial discrimination and also failed to provide any evidence to rebut the county's evidence providing legitimate reasons for any disparate treatment she may have experienced.

To establish a prima facie case under the hostile work environment theory, Benjamin's burden is to show, among other elements, that she was "subjected to unwelcome racial harassment which had the purpose or effect of unreasonably interfering with the terms, conditions, or privileges of [her] employment." Williams v. Metropolitan Waste Control Comm'n, 781 F. Supp. 1424, 1426 (D. Minn. 1992) (citing Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 402 N.W.2d 125, 131 (Minn. App. 1987), aff'd, 425 N.W.2d 235 (Minn. 1988)). The record contains no evidence of racially hostile remarks or behavior directed at Benjamin, and, thus, the district court correctly granted summary judgment for lack of a prima facie case based on the hostile environment theory.

"The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094 (1981). Assuming that Benjamin has made out a prima facie case of disparate treatment, she still has failed to provide evidence that would rebut the county's overwhelming evidence that the changes in her employment circumstances were due to changes in the program and/or Benjamin's own behavior. During her absence the receiving center was converted into an overnight shelter, and medical detoxification functions, including third floor clerical duties, were curtailed. Weeks before Benjamin returned to work, the county had already begun considering the reassignments and reduction in clerical hours needed given the changes. Likewise, these changes ultimately affected nearly all of the clerical staff, not just Benjamin.

To prevail at trial, Benjamin must show "that [her] employer's explanation is unworthy of credence." Rutherford v. County of Kandiyohi, 449 N.W.2d 457, 463 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990). Because she has failed to produce any evidence that the county's proffered reasons were pretextual, summary judgment was appropriate. See, e.g., id.; Albertson v. FMC Corp., 437 N.W.2d 113, 117 (Minn. App. 1989); Rademacher v. FMC Corp., 431 N.W.2d 879, 884 (Minn. App. 1988) (holding that summary judgment appropriate when plaintiff failed to rebut legitimate reasons for termination).

II

Benjamin's second claim alleges discrimination on the basis of religion under the MHRA. See Minn. Stat. § 363.03, subd. 1(2)(c) (1994). Religious discrimination claims turn on whether an employer has "reasonably accommodated" religious practices in the workplace. See, e.g., Wilson v. U.S. West Communications, 58 F.3d 1337, 1341-42 (8th Cir. 1995); Pinsker v. Joint Dist. No. 28J, 735 F.2d 388, 390-91 (10th Cir. 1984); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 144 (5th Cir. 1982).

An employer meets its obligation when it "demonstrates that it has offered a reasonable accommodation to the employee." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69, 107 S. Ct. 367, 372 (1986). In order to "reasonably accommodate" an employee's religious practice, the employer need not accept an accommodation proposed by the employee. Rather, the employer's offer must simply be reasonable. Id.

After co-worker complaints and concerns about the fire code, Benjamin was presented with three separate alternatives to accommodate her smudging request: (1) to smudge in the smoker's room; (2) to smudge in her supervisor's office; or (3) to smudge at her desk after 4:30 p.m. when her co-workers were gone for the day. Benjamin rejected all three. Because the ritual was intended to purify her workplace, the first two options would not accomplish its purpose. However, Benjamin rejected the third option, smudging after hours, because she "rode the 4:20 bus home." Mere inconvenience is not enough to make an accommodation unreasonable. The law does not "require employers to accommodate an employee's religious practices in a way that spares the employee any cost whatsoever." Pinsker, 735 F.2d at 390-91. The district court did not err in its application of the law.

III

Benjamin asserts claims of retaliation under two separate statutory provisions. The first provision, the "Whistleblower" statute, makes it unlawful to terminate or otherwise discriminate against an employee who "in good faith, reports a violation or suspected violation of any federal or state law." Minn. Stat. § 181.932, subd. 1(a) (1994). The second provision, the vulnerable adult reporting statute, prohibits retaliation in employment against "any person who reports in good faith suspected maltreatment" pursuant to the vulnerable adult reporting act. Minn. Stat. § 626.557, subd. 17(a), (c) (Supp. 1995).

The McDonnell Douglas analysis is used to prove a violation of the Whistleblower Act. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119 n.7 (Minn. 1991); McGrath v. TCF Bank Sav., 502 N.W.2d 801, 806 (Minn. App. 1993). Even assuming that Benjamin established a prima facie case, she has not provided evidence that could rebut the county's legitimate reasons for any adverse treatment. The district court did not directly address Benjamin's claim under the vulnerable adult reporting statute, section 626.557, and we have not been asked to determine whether that claim should be analyzed under a separate standard or whether it is preempted by other claims. The record is replete with unrebutted evidence that the county acted with legitimate and nondiscriminatory reasons rather than in retaliation for Benjamin's whistleblowing, and summary judgment is appropriate on both retaliation claims.

IV

There are four elements of proof necessary to sustain a claim for intentional infliction of emotional distress: "(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983). Conduct amounting to intentional infliction of emotional distress must be "'so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.'" Id. at 439 (citation omitted). Because no evidence was presented that Benjamin was subjected to extreme and outrageous conduct, summary judgment was appropriate.

Negligent hiring and retention are based on direct liability and "address risks created by exposing members of the public to a potentially dangerous individual. These theories of recovery impose liability for an employee's intentional tort * * * when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. App. 1993) (citation omitted), review denied (Minn. Apr. 20, 1993). Negligent supervision similarly requires an underlying danger or harm to the employee but is based on vicarious liability and therefore incorporates a scope-of-employment limitation. Id. Because Benjamin has failed to demonstrate any underlying tort or threat of danger she experienced due to the behavior of other county employees, her negligence claims were correctly dismissed on summary judgment by the district court.

Affirmed.