This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




Coleen TeBockhorst, et al.,



Bank United of Texas,

d/b/a Commonwealth United Mortgage, et al.,


Timothy Eagen,


Filed August 19, 1997


Kalitowski, Judge

Hennepin County District Court

File No. 952067

James C. Wicka, William B. Butler, Messerli & Kramer P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402-4218 (for Appellants)

R. Scott Davies, Donna J. Bailey, Briggs and Morgan, 2400 IDS Center, 80 South 8th Street, Minneapolis, MN 55101 (for Respondents Bank United and Theriault)

Robert L. McCollum, Pamela S. Zhulkie, McCollum, Crowley, Verhanen, Moschet & Miller, Ltd., 1950 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for Respondent Timothy Eagen)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Appellants Coleen TeBockhorst, Caryl Carson, and Jim Klotz argue the district court erred in granting summary judgment against them on their claims of defamation, hostile environment sexual harassment, quid pro quo sexual harassment, gender discrimination, reprisal, aiding and abetting, constructive discharge, wrongful termination, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring, retention, and supervision. We affirm.


On appeal from summary judgment, a reviewing court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). In doing so, the court views the evidence in the light most favorable to the nonmoving party. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). However, a party cannot rely on speculation or general assertions to create a genuine issue of material fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). Further, "[s]ummary judgment is appropriate when a party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case.'" Iacona v. Schrupp, 521 N.W.2d 70, 72 (Minn. App. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986)). No deference need be given to the district court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I. Defamation

To establish a defamation claim, a plaintiff is required to prove that the defendant published: (1) a statement of fact; (2) that was false; (3) that concerns the plaintiff; and (4) that tends to harm the plaintiff's reputation and to lower him or her in the estimation of the community. Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn. App. 1989), review denied (Minn. Feb. 9, 1990). To determine whether a statement is one of fact or opinion, appellate courts consider: (1) the statement's precision and specificity; (2) the statement's verifiability; (3) the social and literary context in which the statement was made; and (4) the statement's public context. Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).

In Minnesota, the statute of limitations for bringing a defamation claim is two years. Minn. Stat. § 541.07(1) (1996). The two-year period begins to run on the date the defamatory statement is published, not when the statement is discovered by the plaintiff. McGovern v. Cargill, Inc., 463 N.W.2d 556, 558 (Minn. App. 1990). Lack of knowledge of a defamatory publication will not toll the statute of limitations. Wild v. Rarig, 302 Minn. 419, 449, 234 N.W.2d 775, 794 (Minn. 1975); McGaa v. Glumack, 441 N.W.2d 823, 825 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989). Fraudulent concealment, however, tolls the statute of limitations until discovery, or reasonable opportunity for discovery, of the publication by the exercise of ordinary diligence. Wild, 302 Minn. at 450, 234 N.W.2d at 795.

To support her defamation claim against Theriault and Bank United of Texas (Bank), TeBockhorst alleges that employees of Bank, including, but not limited to Theriault, made the following defamatory statements: (1) TeBockhorst made poor management decisions; (2) TeBockhorst made poor hiring decisions; (3) the closure of the Bloomington branch was due to TeBockhorst's incompetence; and (4) TeBockhorst did not know what she was doing. The district court determined that the four allegedly defamatory statements were either inadmissible hearsay or qualifiedly privileged. We agree. TeBockhorst could not recall who told her about the statements or who made the alleged statements. In addition, we agree that the statements were qualifiedly privileged. See Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256 (Minn. 1980) (statements made upon a proper occasion, with a proper motive, and based on reasonable or probable cause are privileged).

The district court also determined that Carson failed to establish a prima facie case of defamation. We agree. Carson alleges that three statements made concerning her are defamatory: (1) Carson's files were in bad shape; (2) Carson was "hitting" on Eagen and Hastings; and (3) Carson was a "troublemaker." These statements are not legally defamatory. Further, Carson did not mention the first statement in her deposition as being defamatory, and did not attribute the second statement to any particular individual.

The district court dismissed TeBockhorst's defamation claim against Eagen because it was not brought within the statute of limitations. We agree. Eagen allegedly made the defamatory statements on February 22, 1994. TeBockhorst did not make a motion to amend her complaint to include these statements until May 31, 1996. Further, TeBockhorst has not established that Eagen fraudulently concealed information regarding this claim that she could not have discovered by reasonable diligence. Finally, TeBockhorst's argument under Minn. R. Civ. P. 15.03 fails because her claim against Eagen did not arise out of the same conduct alleged in the original complaint.

II. Sexual Harassment

The Minnesota Human Rights Act (MHRA) makes it an unfair employment practice, except when based on a bona fide occupational qualification:

For an employer, because of * * * sex, 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) (1996). The MHRA defines discriminate, "for purposes of discrimination based on sex," to include sexual harassment. Minn. Stat. § 363.01, subd. 14 (1996).

The supreme court has adopted the three-part analysis of McDonnell Douglas for disparate treatment claims brought under the MHRA. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). When a prima facie sexual harassment claim cannot be established by direct evidence, a test has been established by the courts to determine whether it can be established indirectly. The test for establishing a prima facie case of sexual harassment, modeled after the test established in McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824, is whether:

1. The employee belongs to a protected group.

2. The employee was subject to unwelcome sexual harassment.

3. The harassment complained of was based on sex.

4. The harassment complained of affected a "term, condition, or privilege" of employment.

5. Employer liable based on knowledge or imputed knowledge of the harassment and failure to take remedial action.

Johnson v. Ramsey County, 424 N.W.2d 800, 808 (Minn. App. 1988) (citing Klink v. Ramsey County, 397 N.W.2d 894, 901 (Minn. App. 1986)), review denied (Minn. Aug. 24, 1988).

In Klink, this court quoted from Continental Can Co. v. State of Minnesota, 297 N.W.2d 241 (Minn. 1980), where the supreme court stated:

It is invidious, although less recognizable, when employment is conditioned either explicitly or impliedly on adapting to a workplace in which repeated unwelcome sexually derogatory remarks and sexually motivated physical contact are directed at an employee because she is a female. Repeated, unwarranted, and unwelcome verbal and physical conduct of a sexual nature, requests for sexual favors and sexually derogatory remarks clearly may impact on the conditions of employment.

Klink, 397 N.W.2d at 900 (citing Continental Can, 297 N.W.2d at 248). The supreme court, however, has further stated that the MHRA "does not impose a duty on the employer to maintain a pristine work environment." Continental Can, 297 N.W.2d at 249.

Foul language and vulgar behavior in the workplace does not automatically trigger an actionable claim of sex discrimination by a worker who finds such language and conduct offensive or repulsive.

Klink, 397 N.W.2d at 901.

The district court must examine the totality of the circumstances, including the nature of the incidents and the context in which they occurred, when examining a sexual harassment claim. Johnson, 424 N.W.2d at 808-09 (citing Continental Can, 297 N.W.2d at 249). a. Quid Pro Quo Sexual Harassment

To establish a prima facie case of quid pro quo sexual harassment, a claimant must show: (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; and (4) her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment. Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995).

Both TeBockhorst and Carson claim their refusal to submit to Theriault's and Eagen's sexual advances resulted in their demotion and termination. Assuming the first three factors were met, the district court rejected TeBockhorst's claim because she failed to prove her submission to Theriault's unwelcome sexual conduct was an express or implied condition for receiving job benefits. We agree. The only adverse employment action that TeBockhorst alleges Bank took was the elimination of her branch manager position and her reassignment as a loan officer. TeBockhorst claims this occurred because of her "public rebuff" of a sexual advance by Theriault a few weeks earlier. The record, however, establishes that upper-level management, not Theriault, decided to close TeBockhorst's branch and that the decision was made before TeBockhorst publicly rebuffed Theriault. Further, there is no evidence that Bank management knew about Theriault's unwelcome sexual conduct toward TeBockhorst when they made the decision to close the branch.

The district court also assumed Carson had established the first three factors of her quid pro quo sexual harassment claim, but rejected her claim because Carson failed to establish that her refusal to submit to Eagen's advances affected the terms or conditions of her employment. We agree. The evidence indicates the decision to terminate Carson was not made by Eagen, and Eagen was not informed of the decision until after it was made. Accordingly, the district court properly granted summary judgment to Bank on these claims.

b. Hostile Work Environment Sexual Harassment

To establish a prima facie case of hostile work environment sexual harassment, the party must demonstrate:

1. The employee belongs to a protected group.

2. The employee was subject to unwelcome sexual harassment.

3. The harassment complained of was based on sex.

4. The harassment complained of affected a "term, condition, or privilege" of employment.

5. Employer liable based on knowledge or imputed knowledge of the harassment and failure to take remedial action.

Johnson, 424 N.W.2d at 808 (citation omitted).

Again, the district court assumed the first three elements of the offense had been met for TeBockhorst's claim. The court, however, determined that the last two elements had not been satisfied. We agree. First, the incidents were infrequent and, while objectionable, not particularly severe. Second, TeBockhorst testified that she was not physically threatened by Theriault. And finally, Theriault's behavior was not so objectionable that TeBockhorst did not want to continue working for Bank. Her claimed physical manifestations, depression, etc., did not occur until after she resigned.

Further, there is no evidence in the record that Bank knew or should have known about the alleged sexual harassment. TeBockhorst never reported any alleged incidents of sexual harassment. In addition, the record indicates that after Bank was put on notice of the alleged harassment, Bank investigated the matter and took appropriate action.

The district court also rejected Carson's hostile work environment sexual harassment claim. The court properly determined that the alleged unwelcome sexual advance by Eagen did not alter the terms or conditions of Carson's employment because: (1) it was a single incident; and (2) Carson presented no evidence that the complained-of conduct interfered with her work or detracted from her job performance.

III. Gender Discrimination

To establish a prima facie claim of gender discrimination, a claimant must prove: (1) she is a member of a protected class; (2) she sought and was qualified for opportunities that were available to others; (3) despite her qualifications, she was denied these opportunities; and (4) after the denial, the opportunities remained available or were given to other persons with qualifications equal to or less than hers. Sigurdson, 386 N.W.2d at 720.

TeBockhorst's gender discrimination claim fails because she was not seeking an opportunity available to others. The record indicates that the Bloomington branch was closing and the Maple Grove branch manager position was not vacant. Further, by resigning, TeBockhorst rejected Bank's offer to open and manage a satellite branch.

IV. Reprisal

To establish a prima facie claim of reprisal, a claimant must demonstrate that: (1) she engaged in statutorily protected conduct; (2) adverse employment action was taken against her; and (3) a causal connection exists between the two. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

The district court determined appellants did not establish a prima facie claim because they did not engage in protected conduct or demonstrate a causal connection between their conduct and adverse employment action taken against them. We agree. Neither TeBockhorst nor Carson reported the alleged sexual harassment until after they were no longer employed by Bank, and Klotz's actions do not amount to opposition to discriminatory conduct.

V. Aiding and Abetting

Minn. Stat. § 363.03, subd. 6(1) (1996), makes it an unlawful discriminatory practice for any person "[i]ntentionally to aid, abet, incite, compel, or coerce a person to engage in any of the practices forbidden" by the MHRA. Because appellants have not established any underlying MHRA claims, this claim fails.

VI. Constructive Discharge

Because "[c]onstructive discharge is a companion tort," the complaining party must establish some underlying illegal act to maintain this claim. Huyen v. Driscoll, 479 N.W.2d 76, 81 (Minn. App. 1991) (citing Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 428 (8th Cir. 1984) (because plaintiff failed to prove her claims of sexual harassment and retaliation, she did not establish underlying illegality necessary to support a constructive discharge claim)), review denied (Minn. Feb. 10, 1992). Because TeBockhorst has failed to establish an underlying illegality, her constructive discharge claim fails.

VII. Wrongful Termination

The district court determined that appellants failed to establish a prima facie claim for wrongful termination because they were at-will employees. Where an employment relationship is at-will, an employer may dismiss an employee at any time, for any reason, or for no reason, and, likewise, an employee can quit at any time for any reason. Pine River State Bank v. Metille, 333 N.W.2d 622, 627 (Minn. 1983).

Appellants claim that allowing Bank to demote or terminate employees for reporting sexual harassment violates public policy. This argument fails because the record indicates that appellants did not report specific incidents of sexual harassment prior to their alleged demotion or termination.

VIII. Intentional Infliction of Emotion Distress

To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must show: (1) that the complained-of conduct was extreme and outrageous; (2) the conduct was intentional and reckless; (3) it caused plaintiff emotional distress; and (4) the emotional distress was severe. Hubbard, 330 N.W.2d at 438-39. The use of this tort is limited to cases involving particularly egregious facts. Id. at 439. Thus, a high threshold standard of proof is required to avoid summary judgment on this claim. Id.

"It is for the court to determine in the first instance whether the defendants' conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Schibursky v. IBM, 820 F. Supp. 1169, 1183 (D. Minn. 1993) (granting summary judgment in favor of defendants on summary judgment motion). The conduct required to sustain this cause of action must be "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community." Id. (quoting Hubbard, 330 N.W.2d at 439). In addition, the requisite emotional distress must be "so severe that no reasonable man could be expected to endure it." Id.

The district court concluded that, because appellants failed to establish respondents' conduct was so atrocious that it passed the bounds of decency and would be utterly intolerable in a civilized society, their claim under this theory failed. In light of the record and the applicable case law, we conclude the district court did not err. While respondents' conduct is inexcusable, it does not rise to the level of misconduct required for this tort.

IX. Negligent Infliction of Emotional Distress

If a plaintiff cannot show a direct invasion of her rights, such as defamation, malicious prosecution, or other willful, wanton, or malicious conduct, she must demonstrate that she is within a "zone of danger" to establish a basis for negligent infliction of emotional distress. Id. at 1184 (citing Lee v. Metropolitan Airport Comm'n, 428 N.W.2d 815, 823 (Minn. App. 1988)). To be within the "zone of danger," the plaintiff must show that the defendants "placed her within a zone of danger of physical impact, prompting reasonable safety concerns and causing severe emotional distress and resultant physical injury." Id. (citing Lee, 428 N.W.2d at 823).

Because appellants have failed to establish a defamation claim, and the record does not indicate that respondents' conduct was willful, wanton, or malicious, appellants must prove they were in physical danger or feared for their safety. It is undisputed that appellants were not in physical danger or feared for their safety. Accordingly, the district court did not err in granting summary judgment against appellants on this claim.

X. Negligent Hiring, Retention, and Supervision

To establish a claim for negligent hiring, retention, or supervision, a plaintiff must present some evidence of a threat of or actual physical injury caused by the defendants' actions. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 443 (Minn. App. 1996). The district court determined that appellants' claim under this theory failed because appellants did not allege that they suffered actual injury from respondents' conduct or feared being physically injured by respondents. We agree.