This opinion will be unpublished and

may not be cited except as provided by

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




Debbora Olson,



City of Lakeville, et al.,


Filed, September 9, 1997


Toussaint, Chief Judge

Dakota County District Court

File No. CX966170

Joanne Jirik Mullen, Barbara J. Felt, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

William J. Everett, Jodeen A. Kozlak, 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402 (for respondents)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Kalitowski, Judge.


TOUSSAINT, Chief Judge

Appellant Debbora Olson challenges the district court's grant of a motion for summary judgment to respondents City of Lakeville (the City) and David Krings. Olson argues that the district court erred in concluding (1) as a matter of law the Minnesota Human Rights Act (MHRA) preempts common law claims of negligent retention and supervision based on sexual discrimination in the workplace and (2) that Olson failed to establish a genuine issue of material fact to overcome summary judgment on her claims of sexual harassment, indirect sexual discrimination, reprisal, and aiding and abetting. Because (1) the MHRA preempts Olson's claims of negligent retention and supervision based on sexual discrimination and (2) the district court did not err in concluding that Olson did not present evidence establishing a prima facie case of sexual discrimination, we affirm.



This court is not bound by a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n., 358 N.W.2d 639, 642 (Minn. 1984). A reviewing court considers the district court's interpretation of a law de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (citing Doe v. Minnesota State Bd. of Med. Examiners, 435 N.W.2d 45, 48 (Minn. 1989)).

Olson alleges the district court erred in dismissing her claims of negligent retention and negligent supervision on the ground that the MHRA preempts them. Olson claims the City, her former employer, sexually discriminated against her in contravention of the MHRA and negligently retained and supervised employees who engaged in sexual harassment and indirect sexual discrimination.

In Minnesota, an employer may be liable for negligent retention when its employee's acts cause physical injury or a threat of physical injury. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-443 (Minn. App. 1996). Employer liability for negligent supervision may lie if an employee's act causes some form of physical injury. Id. at 443. This court has declined to expand employers' common law duty of care to include liability for sexual harassment perpetrated by employees absent physical injury or a threat of physical injury. Id.

A plaintiff may simultaneously pursue claims under the MHRA and common law negligence claims stemming from the same factual circumstances. Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736, 745 (Minn. 1997). However, the claims of negligence must be founded on a duty of care independent of obligations arising out of the MHRA. See Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990) ("The legislature did not design the MHRA to redress intentional offensive physical contact already addressed by a tort battery action.")

Here, Olson's negligence claims are not parallel with her sexual harassment claim, but rather are identical, and we conclude that the district court that did not err in holding the MHRA preempts them.


In reviewing a district court's grant of summary judgment, we consider whether (1) there are genuine issues of material fact and (2) the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citing Offerdahl v. University of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988); see Admiral Merchants v. O'Connor & Hannan, 494 N.W.2d 261, 265 (Minn. 1992). We 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) (citing Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954)).

A. Olson's Sexual Harassment Claim

Olson alleges she was subjected to a hostile work environment as an employee of the City's building inspection department. She claims the primary perpetrator of the sexually harassing conduct was a female co-worker, junior to Olson, who discussed her sexual activities and shared sexual jokes with other employees within earshot of Olson, and engaged in flirtatious behavior with male employees.

Sexual harassment consists of "sexually motivated physical contacts, sexually derogatory statements and verbal sexual advances." Continental Can Co., Inc. v. State, 297 N.W.2d 241, 249 (Minn. 1980). Sexual harassment can be a form of disparate treatment sexual discrimination. Id. at 248. In disparate treatment sexual discrimination cases, Minnesota has adopted the three-part McDonnell-Douglas test. Sigurdson v. Isanti County, 386 N.W.2d 715, 719-720 (Minn. 1986); see McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) (establishing burdens of persuasion in sexual discrimination cases). The McDonnell-Douglas test first requires a plaintiff to present evidence establishing a prima facie case of sexual discrimination. Sigurdson, 386 N.W.2d at 720 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981)).

An employee may present a prima facie case of hostile environment sexual harassment, by establishing the following five factors (1) the employee belongs to a protected class, (2) the employee was subject to unwelcome sexual harassment, (3) the alleged harassment was based on sex, (4) the harassment affected a "term, condition, or privilege" of employment, and (5) the employer knew or should have known about the harassment. Bersie v. Zycad Corp., 417 N.W.2d 288, 290 (Minn. App. 1987) (citing Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982)), review denied (Minn. May 5, 1988). In determining whether an employee has proven a prima facie case of sexual harassment, a court must examine "all the circumstances surrounding the conduct alleged to constitute sexual harassment, such as the nature of the incidents and the context in which they occurred * * * [.]" Continental Can Co., Inc., 297 N.W.2d at 249.

"An employer is not required to maintain a pristine working environment." Klink v. Ramsey County, 397 N.W.2d 894, 902 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). Merely overhearing foul language and epithets which may be considered offensive does not automatically trigger an actionable claim of sexual harassment. Klink, 397 N.W.2d at 901-02. Sexual harassment must be severe and pervasive enough to create an abusive work environment. Id.

Although the language and conduct Olson observed in the workplace may have offended her, neither amounted to severe and pervasive sexual harassment. Olson does not allege that City employees engaged her in sexual discussions and she acknowledged she was never the subject of unwanted physical contact. The workplace discussions about sex and her co-worker's bantering with male employees may have been inappropriate and insensitive, but they did not amount to purposeful sexual harassment. See Id. at 902. The district court properly concluded Olson failed to establish a prima facie case of sexual harassment under the MHRA and dismissed the claim.[1]

B. Olson's Indirect Sexual Discrimination Claim

The MHRA proscribes sexual discrimination "with respect to [an employee's] hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment." Minn. Stat. § 363.03, subd. 1(2) (1996). In indirect sexual discrimination cases involving allegations of disparate treatment, the McDonnell-Douglas test applies. Sigurdson, 386 N.W.2d at 719-20. The McDonnell-Douglas test requires that a plaintiff prove a prima facie case of discrimination. Sigurdson, 386 N.W.2d at 719-20. The burden then shifts to the employer to provide "some legitimate, non-discriminatory reason" for its actions. Id. To overcome a summary judgment motion, the plaintiff must establish a genuine issue of material fact about whether the employer's justification is pretext. See Geraci v. Eckankar, 526 N.W.2d 391, 396 (Minn. App. 1995) affirming summary judgment where appellant did not offer sufficient evidence to establish genuine issue of material fact on pretext issue), review denied (Minn. Mar. 14, 1995).

An employee may show pretext

"either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."

Sigurdson, 386 N.W.2d at 720 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). The courts do not serve as "super-personnel department[s] that re-examine[] an entity's business decisions," and, thus, the proper scope of inquiry on the issue of pretext "is limited to whether the employer gave an honest explanation of its behavior." Krenik v. County of LeSeuer, 47 F.3d 953, 960 (8th Cir. 1995) (quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994)).

Olson claims her supervisor Krings assigned her fewer of the more desirable commercial inspections than her male counterparts during her tenure as a building inspector for the City. She alleges she did more computer work than the male inspectors who worked for the building inspection department.

The City presented evidence that Olson was the only building inspector for the City lacking International Conference of Building Officials (ICBO) certification. Certification demonstrates that an individual has higher proficiency and skill as a building inspector. Olson twice attempted to become certified, but failed the required test. Although the City acknowledged that Olson did more computer work than the male inspectors, it asserted that Olson was more proficient at using a computer than any of the male inspectors in the department. Olson developed a computer database for the department and she admitted she enjoyed the experience.

Olson presented no evidence casting doubt on the legitimacy of the City's explanations. Despite her lack of certification, she performed numerous commercial inspections for the City. Olson provided no evidence of disparity in the City's assignment of non-commercial inspections. Her salary was equal to or greater than those of other inspectors. The City gave her regular raises. Olson's supervisor rated her highly in regular performance reviews and praised her work as an inspector. We conclude the district court did not err in determining Olson failed to prove a prima facie case of indirect sexual discrimination.

C. Reprisal

To establish a prima facie case of reprisal an employee must provide evidence of the following factors (1) the employee engaged in statutorily protected conduct, (2) the employer took adverse employment action against the employee, and (3) a causal connection exists between the employee's conduct and the employer's action. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

The record is devoid of evidence establishing that the City engaged in adverse action in response to Olson's allegations of sexual harassment and indirect discrimination. Olson claims the City assigned her no commercial inspections after she complained to her supervisor and she was constructively discharged. Although Olson received no commercial inspection assignments in the months after her complaint, the record shows there were a limited number of such inspections available during those months. Moreover, Olson was not as qualified for commercial inspections as the City's other inspectors because she never obtained ICBO certification. The record does not support Olson's claim that she was constructively discharged. Instead, Olson walked away from her position with the City after an argument with a co-worker that was unrelated to the allegations in this matter. The district court's did not err in dismissing Olson's reprisal claim on summary judgment.

D. Aiding and Abetting

Because Olson's underlying claims of sexual harassment and indirect sexual discrimination failed to survive summary judgment, the district court correctly concluded her supervisor Krings could not be liable for aiding and abetting these practices.


[ ]1The district court also held as a matter of law that heterosexual same-sex sexual harassment is not actionable under the MHRA. We note that this constituted a misstatement under controlling Minnesota law. See Cummings v. Koehnen, 556 N.W.2d 586, 589 (Minn. App. 1996) (claims of sexual harassment are cognizable "without regard to the harasser or victim's gender or sexual orientation"), review granted, (Minn. Feb. 26, 1997). However, the district court went on to conduct an independent analysis of Olson's sexual harassment allegations without regard to the sex of the alleged harasser and correctly concluded she did not establish a prima facie case. Our decision concerning Olson's sexual harassment claim is not dependent on the district court's erroneous statement of the law.