This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Sandra Fiecke,



Ascension Place, a Minnesota

non-profit corporation, et al.,


Filed April 1, 1997


Huspeni, Judge

Hennepin County District Court

File No. 963540

Karla R. Wahl, 4840 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402 (for Appellant)

Ellen G. Sampson, Daniel L. Palmquist, Leonard, Street and Deinard, P.A., 150 S. Fifth St., Suite 2300, Minneapolis, MN 55402 (for Respondents)

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



Appellant brought a claim of sexual orientation harassment, alleging violations of the Minnesota Human Rights Act and a city ordinance. The district court dismissed her claim. Because the alleged conduct forming the basis for appellant's claim occurred in 1991 and the Act was not amended to prohibit sexual orientation harassment until 1993, and because the district court did not have jurisdiction over a claim of ordinance violation, we affirm the dismissal.


Appellant Sandra Fiecke was employed as program director by respondent Ascension Place, a shelter for battered and abused women; respondent Nancy Massey was its executive director. Fiecke was dismissed for inadequate performance in December 1991, after working for 11 months.[1]

Seven months after her dismissal, Fiecke, a heterosexual, filed a charge against respondents with the Minneapolis Department of Civil Rights. Her charge alleged that: (1) Massey told Fiecke that Fiecke had "L.P.," or lesbian potential; (2) Fiecke confronted Massey about discussing Fiecke's sexual preferences with other staff; (3) Fiecke was falsely accused of sexually harassing another person and put on probation for three months;[2] (4) Fiecke was terminated because she had complained about comments on her sexuality, the behavior of other staff, and the false accusation of sexual harassment, not because of poor performance; and (5) Fiecke believed that her dismissal was a reprisal for opposing the first four incidents.

A year and a half after filing her charge, Fiecke decided to pursue the matter in district court and requested the civil rights department dismiss her charge, which it did. She served and filed in district court a complaint stating that throughout her employment by respondent "she was treated differently than other employees on the basis of her sexual orientation and was subjected to sexual harassment on the basis of her sexual preference * * *." The complaint alleged one count of sexual orientation discrimination and harassment "in violation of the Minneapolis code of Ordinances, Chapter 139.40(b)(2)(3)(k)(3) and the Minnesota Human Rights Act [MHRA], Minn. Stat. § 363.01 et seq.," and one count of reprisal.

Respondents promptly served interrogatories, requests for admissions, and requests for production of documents, and scheduled Fiecke's deposition, which was cancelled. Fiecke served interrogatories on respondents 18 months later, and respondents moved to dismiss for failure to state a claim and failure to prosecute. The district court granted the motion, holding (1) that it lacked subject matter jurisdiction over the MHRA claim because in 1991, when the conduct complained of occurred, the MHRA did not include a cause of action for discrimination based on sexual preference and the 1993 amendment to the MHRA recognizing a cause of action for discrimination based on sexual preference was not retroactive; and (2) that it lacked jurisdiction over the claim brought under the Minneapolis Code of Ordinances because Fiecke had not exhausted her administrative remedies. Fiecke challenges the dismissal.


In reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980).

1. The MHRA Claim

It is undisputed that the conduct of which appellant complains occurred in 1991. At that time the MHRA, specifically Minn. Stat. § 363.03, subd. 1(2)(1990), provided that it was an unfair employment practice for an employer to refuse to hire, to discharge, or to discriminate against a person

because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, or age * * *.

In 1993, the words "sexual orientation" were added before the words "or age." Laws 1993, c. 22, §§ 8-15. Appellant alleges only discrimination based on her heterosexual orientation. In 1991 this discrimination was not prohibited by statute. Courts cannot make a statutory amendment retroactive absent clear, unambiguous legislative intent on the face of the statute. Minn. Stat. § 645.21 (1994). The prohibition against retroactive application has twice been applied to the MHRA: Carlson v. Independent Sch. Dist. No. 623, 392 N.W.2d 216, 220 (Minn. 1986); Buchholz v. Capp Homes, Inc., 321 N.W.2d 893, 894-95 (Minn. 1982).

Appellant argues that the MHRA should be liberally construed to permit her claim. In support she cites State by McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985) (liberally construing the phrase "marital status" to prohibit discrimination against unmarried persons of opposite sexes living together); State ex rel. Cooper v. Mower County Social Servs., 434 N.W.2d 494 (Minn. App. 1989) (same); and State ex rel. Johnson v. Porter Farms, Inc., 382 N.W.2d 543, 547 (Minn. App. 1986) (same). However, the phrase "marital status" is in the statute, and is therefore subject to liberal construction. The phrase "sexual orientation" was not in the relevant statute, and courts cannot liberally construe what is not there. Moreover, courts cannot supply that which the legislature omits or inadvertently overlooks. Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963). See also Maytag Co. v. Commissioner of Taxation, 218 Minn. 460, 463, 17 N.W.2d 37, 40 (1944) (where a statute enumerates persons or things to be affected by its provisions, there is an implied exclusion of those not enumerated).

Finally, we distinguish Cummings v. Koehnen, 556 N.W.2d 586 (Minn. App. 1996) (holding that sexual harassment can occur between two persons of the same sex), review granted (Minn. Feb. 26, 1997), cited during oral argument by appellant's attorney as highly pertinent if not dispositive. First, Cummings involved a claim not for sexual orientation harassment but for sexual harassment, based on six incidents between a male employee and his male supervisor. In each incident, the employer either made or proposed actual physical contact of a sexual nature. Two incidents included both physical contact and offensive language; two others involved physical contact only; and two involved language only. Id. at 588. All of the incidents described in Cummings met the statutory definition of sexual harassment: "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. § 363.01, subd. 41 (1996).

Here, the challenged conduct was alleged to be not sexual harassment, but rather sexual orientation harassment or reprisal. Two incidents were remarks made by appellant's supervisor, who told appellant she had "L.P." (or lesbian potential) and questioned appellant about her sexuality.[3] The third incident was that appellant was falsely accused of sexual harassment, allegedly in reprisal for having objected to others' activities and treatment of her, and the fourth incident was her termination, again allegedly in reprisal for her objection to the sexual orientation discrimination. The challenged conduct is thus readily distinguishable from that in Cummings.

Moreover, the sexual harassment alleged in Cummings occurred between September 1, 1993, and November 1, 1993, when sexual harassment was clearly prohibited by Minn. Stat. § 363.03, subd. 1(2) (1992). The sexual orientation harassment complained of by appellant occurred in 1991, when sexual orientation harassment was not prohibited by statute. Again, Cummings is clearly distinguishable.

The statute prohibits discriminating against various classes of persons because of their membership in that class. See, e.g., Ridler v. Olivia Pub. Sch. Sys. No. 653, 432 N.W.2d 777 (Minn. App. 1988) (striking down decision to hire female applicant less qualified than male applicant because decision was based on applicants' genders). The 1993 amendment added another protected class or another prohibited basis for discrimination. Appellant's argument that the amendment merely expanded the already illegal discrimination against those of a particular sexual orientation to include behavior not involving sexual activity or language is unpersuasive.

2. The Minneapolis Ordinance Claim

The district court dismissed appellant's claim for violation of a Minneapolis ordinance on the ground that she had not exhausted her administrative remedies. We uphold the dismissal, but we base our decision on different grounds.[4] We conclude that the district court, in fact, lacked jurisdiction to hear the claim.

Appellant argues that her right to bring her claim in district court was conferred by the notice she received from the Minneapolis Department of Civil Rights, telling her she could bring a civil action 45 days after filing her complaint with the department if a hearing had not been scheduled or the department had not entered into a conciliation agreement. However, such a notice from a city department cannot create new causes of action for the district courts. The notice pertains only to the timing of transferring a case that is entitled to be brought in district court.

Moreover, if appellant had obtained a ruling from the civil rights commission, the district court would have had no jurisdiction to review that ruling. An appeal from the decision of the civil rights commission would be made to this court pursuant to the Administrative Procedures Act, Minn. Stat. §§ 14.01-14.70 (1994). A department notice cannot confer jurisdiction denied by state statute.[5]

Appellant's claim under the MHRA was properly dismissed because the challenged conduct was not prohibited at the time it occurred; her claim under the Minneapolis ordinance was properly dismissed because the district court has no jurisdiction over claims brought exclusively under the city ordinance.


[ ]1While Fiecke argues that her dismissal was in reprisal for her objecting to the sexual orientation discrimination, she offers nothing to counter respondent's claim that she was dismissed for inadequate performance.

[ ]2Fiecke claims she was falsely accused of sexual harassment because she objected to others' treatment of her, to others' activities because those activities included kissing and touching between female staff members at a staff retreat, and to the supervisor's discussing appellant's sexuality with other staff.

[ ]3If appellant had brought a claim for sexual harassment, these would be the only two allegations to qualify as conduct included under the statutory description. We note that "[t]he 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." See Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986) (holding that vulgarity and lewdness in the work environment did not constitute harassment), review denied (Minn. Feb. 13, 1987) (quotation omitted).

[ ]4An appellate court will not reverse a correct decision simply because the trial court based its conclusion on the wrong reasons. Bains v. Piper, Jaffray & Hopwood, Inc., 497 N.W.2d 263, 270 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).

[ ]5We note that while the Minneapolis ordinance prohibiting discrimination on grounds of sexual orientation was upheld by this court and then by the supreme court, the plaintiff there first obtained a ruling from the commission; that ruling was challenged in this court. Potter v. LaSalle Court Sports & Health Club, 384 N.W.2d 873, 874 (Minn. 1986); Potter v. LaSalle Sports & Health Club, 368 N.W.2d 413, 415 (Minn. App. 1985). There was no district court decision.