This opinion will be unpublished and

may not be cited except as provided by

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




Brenda Fears,



Seagate Technology Incorporated,


Commissioner of Human Rights,


Filed January 27, 1998


Foley, Judge**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Minnesota Department of Human Rights

DHR/OAH Nos. 3-1700-9884-2/ER19942007

Jesse Gant III, The Gant Law Office, 500 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for relator)

James M. Baldwin, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent Seagate Technology)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.


FOLEY, Judge

Relator filed a complaint with the Minnesota Department of Human Rights contending that her employer discriminated against her. After a hearing, an administrative law judge (ALJ) ruled in favor of the employer. Relator seeks review by certiorari. We affirm.


Seagate Technology, Inc. (Seagate) manufactures computer disc drives and their components. Seagate employs relator Brenda Fears, an African American woman. In the fall of 1993, Fears worked in the "Station 2" area performing a pattern verification operation. The purpose of this task was to ensure that the component parts matched their accompanying written record, called a "traveler form."

Employee Linda Lubitz was a trainer who assisted the manager. On November 1, 1993, Lubitz assigned work to Fears by using the offensive racial verse, "eenie, meenie, miney, moe, catch a nigger by the toe." Fears reported this incident to her manager, who told Lubitz not to use that verse again. Dissatisfied with this response, Fears reported the matter to the human resources department. Within 24 hours, the manager's supervisor told Lubitz that Seagate would not tolerate this language and warned Lubitz that if the behavior were repeated, she would be subject to severe disciplinary action, including termination. On November 18, Seagate issued a written reprimand to Lubitz and included it in her permanent personnel file.

Meanwhile, Seagate had increasing problems with the shipment of components to the wrong customers. To resolve this problem, engineers determined that Seagate should move the pattern verification operation to the "final visual area," where the final inspection occurred before the components were shipped to customers. Consequently, Seagate reassigned Fears to perform pattern verification at the new location. This occurred within a week after Seagate issued the written reprimand to Lubitz.

In the final visual area, Fears's new supervisor was Conn Hemmesch, who had a reputation for being demanding. On February 2, 1994, he issued Fears a written warning because she failed to correlate several traveler forms with their components, resulting in incorrect shipments. No other employees received written warnings for these errors. In late February, Hemmesch discussed with Fears his concerns about her production level and absences from the work area. In early March, he issued her a written warning with a work improvement plan. When he had taken this action with other employees, they resigned rather than complete the plan, and he expected Fears would do the same. On March 10, Hemmesch reduced Fears's rating in a performance evaluation from Level 3 to a less-than-satisfactory Level 2. On April 11, he issued her a final warning.

During this period, Fears worked closely with the human resources department, expressing her concern that Hemmesch was observing her closely and disciplining her because of her race. The department assisted her, but also concluded Hemmesch had a basis for his supervisory actions. On May 5, 1994, Fears met and sustained the requirements of a Level 3 operator, and she was removed from the work improvement plan.

Meanwhile, on March 28, 1994, Fears overheard another employee use a racial term. Cindy Wilson, a Caucasian employee, discussed certain traveler forms with another African American employee, and referred to the documentation as "nigger-rigging." The comment was reported to Hemmesch. That day, he interviewed Wilson, who admitted making the comment, and he warned her that further use of the offensive term would result in discipline up to and including termination. Two days later, on March 30, Seagate issued a written warning to Wilson that was placed in her permanent personnel file.

A number of other incidents or problems arose, which Fears asserts show discrimination and reprisal. Fears also contended Seagate failed to accommodate her disability, which is a skin irritation caused by a mask she was required to wear.


Standard of Review

The decision of the ALJ constituted the final decision of the Department of Human Rights. Minn. Stat. § 363.071, subd. 2 (1996). In a certiorari appeal, this court may reverse or modify the ALJ's decision only if it is unsupported by substantial evidence in view of the entire record, is arbitrary and capricious, or is affected by error of law. Minn. Stat. § 14.69 (1996); see Minn. Stat. § 363.072, subd. 1 (1996) (providing parties may seek judicial review in accordance with chapter 14).


It is an unfair employment practice for an employer to discriminate against a person based on race with respect to "hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment." Minn. Stat. § 363.03, subd. 1(2)(c) (1996). This case involves "disparate treatment" because Fears alleges that the employer treated her less favorably than others based on her race. See Sigurdson v. Isanti County, 386 N.W.2d 715, 719 n.1 (Minn. 1986) (describing disparate treatment cases). Disparate treatment cases are subject to the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Sigurdson, 386 N.W.2d at 719. Under that analysis, the employee must first present a prima facie case of discrimination. Id. at 720. The specific requirements for a prima facie case vary from case to case. Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978). The burden then shifts to the employor to present some legitimate, nondiscriminatory reason for its action. Sigurdson, 386 N.W.2d at 720. To prevail, the employee then must show that the employer's stated reason or justification is actually a pretext for discrimination. Id.

A. Racial Harassment

Racial harassment by a co-employee may constitute actionable racial discrimination. Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 425 N.W.2d 235, 239 (Minn. 1988); see Continental Can Co. v. State, Dep't of Human Rights, 297 N.W.2d 241, 246 (Minn. 1980) (holding prohibition against sex discrimination includes sexual harassment).

A prima facie case of such a hostile working environment requires proof:

[F]irst, that [the person] belongs to a protected group; second, 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; and third, that the [employer] knew or should have known of the harassment in question and failed to take prompt action.

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); Continental Can, 297 N.W.2d at 247). It is undisputed that Fears, an African American, belongs to a protected group. The ALJ, however, determined that the two instances of racial slurs, separated by approximately five months, did not create a hostile work environment or rise to the status of actionable race discrimination as a matter of law.

Whether harassment is sufficiently severe to constitute discrimination must be determined based on the totality of the circumstances, including examination of the "nature, frequency, intensity, context, duration, and object or target" of the conduct. Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986) (addressing sexual harassment), review denied (Minn. Feb. 13, 1987). We agree with the ALJ that these two isolated instances, although reprehensible, did not arise to actionable discrimination as a matter of law.

The ALJ further concluded that, even if the slurs constituted actionable race discrimination, liability is not fixed against an employer unless the employer knew of the slurs and failed to take remedial action. See Minneapolis Police Dep't, 425 N.W.2d at 239 (finding no prima facie case where, after complainant reported racial remarks, department undertook immediate investigation, warned employee about allegedly objectionable behavior, disciplined her, and separated complainant and offender); Continental Can, 297 N.W.2d at 249 (act does not require "pristine" working environment, but imposes duty on employer to take prompt and appropriate action when it knows or should have known of conduct constituting sexual harassment by co-employees).

Fears's supervisors issued prompt oral reprimands to the offending employees, including orders not to repeat the racist remarks and warnings that a recurrence could subject them to severe disciplinary measures, even termination. Although the first written reprimand against Lubitz was not issued until two and one-half weeks had passed, the ALJ determined the delay occurred because the supervisors were uncertain how to handle the situation and one supervisor was out of the country. We note that in the incident with Wilson, the written reprimand was issued two days after the incident occurred. Contrary to Fears's argument, the law does not require that the offender be terminated but instead requires the employer to take prompt actions reasonably calculated to end the harassment. Davis v. Tri-State Mack Distribs., Inc., 981 F.2d 340, 343-44 (8th Cir. 1992); see Fore v. Health Dimensions, Inc., 509 N.W.2d 557, 561 (Minn. App. 1993) (holding that forced resignation is among strongest disciplinary actions employer could take). Based on the law and the evidence here, the ALJ's conclusion that Seagate took prompt remedial measures was not arbitrary, capricious, or an error of law, and was based on substantial evidence.

B. Failure to Promote Claim

Fears next claims that Seagate discriminated against her based on her race by failing to promote her to various positions for which she applied. To raise a prima facie case of discrimination in failure to promote cases, a plaintiff must show:

(1) she is a member of a protected group; (2) she was qualified and applied for a promotion to an available position; (3) she was rejected; and (4) similarly situated employees, not part of the protected group, were promoted instead.

Shannon v. Ford Motor Co., 72 f.3d 678, 682 (8th Cir. 1996).

The ALJ found that Fears failed to establish a prima facie case. According to Seagate's selection criteria, she was not qualified for the promotion because of her performance rating or because substantially more qualified employees were promoted instead. Fears claims that the ALJ failed to consider the fact that supervisor Hemmesch rated her performance and contends that his discrimination, harassment, and reprisals made it impossible for her to receive a promotion. The ALJ concluded, however, that Hemmesch had a documentable basis for his disciplinary actions. Given these factors in the record, our review shows that the ALJ's conclusion that Fears failed to establish a prima facie case was based on substantial evidence and was not arbitrary or capricious.

C. Differential Treatment Based on Race

Fears also claimed that she was subject to harsher discipline by Hemmesch because of her race. To support that claim, Fears cites the fact that she received a written reprimand based on the traveler error on the same day she had complained of discrimination to the human resources department. To establish by circumstantial evidence a prima facie case of racial discrimination in the terms and conditions of employment, a plaintiff must establish that (1) she is a member of a protected class, (2) she was disciplined, and (3) the "discipline imposed was harsher than that imposed on comparably situated whites." Wilmington v. J.I. Case Co., 793 F.2d 909, 915 (8th Cir. 1986) (evaluating claims of discrimination based on disparities in job assignments and discipline).

The ALJ was persuaded that Fears had established a prima facie case, although the ALJ considered it a "close call." First, she was the only employee to receive a written warning because of the traveler errors and, second, the record established that Hemmesch subjected her to close observation while there was no similar close observation of co-workers.

Because the ALJ determined Fears had met her initial burden under the McDonnell Douglas test, the burden shifted and required Seagate to articulate legitimate, nondiscriminatory reasons for the differential treatment. Sigurdson, 386 N.W.2d at 720. The ALJ found Seagate did so, determining Hemmesch had documentable reasons for the disciplinary actions he took against Fears. The ALJ found that, although Hemmesch was a zealous enforcer, he took all of his actions based on circumstances that merited some form of counseling or discipline. The ALJ recognized that Hemmesch's aggressive approach was inconsistent with the corporate "supervisory culture" at Seagate, but found no evidence that this attitude was reserved only for Fears or other minority employees. Finally, the ALJ found Fears failed to show Seagate's legitimate nondiscriminatory reasons were a pretext masking illegal race discrimination. These decisions are supported by substantial evidence and are not arbitrary and capricious.

Fears also contends that she was subject to disparate treatment based on her race because she was not given the same overtime opportunities received by others, her merit increase was lower than those who were similarly situated to her, she was required to obtain a physician's note to use the bathroom, she was the only employee who was penalized for not working during down time, and she was placed on a work improvement program. The ALJ found that, although Fears did not receive overtime as often as she desired, she was physically unable to perform the duties required for the job that merited the greatest amount of overtime. Her merit raise was lower because it was pro-rated to take into account a leave of absence. Once Fears obtained a medical note, Seagate accommodated her needs for frequent bathroom breaks. The other disciplinary actions had similar documentable bases. These findings were based on substantial evidence and are not arbitrary and capricious.


Fears argues that Seagate engaged in a reprisal against her after she complained about the racial slurs uttered by Lubitz. See Minn. Stat. § 363.03, subd. 7 (making it unfair discriminatory practice for employer to bring reprisal against anyone who filed a complaint opposing a forbidden practice). The McDonnell Douglas burden-shifting scheme for analyzing discrimination claims applies to claims of reprisal or retaliation. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). To establish a prima facie case of reprisal, the employee must establish: (1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Id.

The ALJ found that Fears had established a prima facie case of reprisal arising out of her transfer from Station 2 to the final visual area. Specifically, the ALJ found she had engaged in statutorily-protected conduct, in that she complained about Lubitz's racial verse, there was a temporal connection between the two by virtue of Fears's transfer occurring within the same week that Lubitz was disciplined, and the transfer resulted in an adverse personnel action by the employer, because Fears came under the supervision of Hemmesch, a highly demanding supervisor.

The ALJ went on to conclude, however, that Seagate met its burden of showing that the transfer of Fears's work station was based on legitimate business reasons. Seagate's engineers had determined that it was necessary to move the pattern verification function performed by Fears to a later stage in the process to prevent erroneous shipments. The ALJ concluded that Fears failed to show that this reason was a pretext for illegal discrimination. Fears argues that the conflicting testimony and other evidence show she was transferred as retaliation for complaining about Lubitz's discriminatory statement. As the trier of fact, the ALJ had to weigh conflicting evidence and differing inferences. By explaining its reasoning for its decision, it presents a reasoned, rather than arbitrary, decision. In re Minnesota Power, 545 N.W.2d 49, 50 (Minn. App. 1996).

In this case, the ALJ credited Seagate's reason for the transfer and found it was based on legitimate business reasons. This decision was not arbitrary and capricious and was based on substantial evidence.


Finally, Fears contends that Seagate discriminated against her on the basis of a disability, citing the skin irritation she suffered from use of a paper mask that Seagate provided. She contends Seagate should have accommodated her by providing a cloth mask that she asserts was available.

The McDonnell Douglas three-step analysis applies to disability discrimination claims. Sigurdson v. Carl Bolander & Sons Co., 532 N.W.2d 225, 228 (Minn. 1995). Under the Minnesota Human Rights Act (MHRA), except when based on a bona fide occupational qualification, it is an unfair employment practice to discriminate based on disability. Minn. Stat. § 363.03, subd. 1(2)(c). A disabled person is defined as:

[A]ny person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

Minn. Stat. § 363.01, subd. 13 (1996). Generally, the employer is required to reasonably accommodate the known disability. Minn. Stat. § 363.03, subd. 1(6).

Fears was first required to show that she was disabled within the meaning of the MHRA. Fahey v. Avnet, Inc., 525 N.W.2d 568, 573 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). Fears claims that the need for a cloth mask affected her performance of her employment duties, thus limiting her in the major life activity of work. The ALJ found that Fears did not show that her impairment, the skin irritation from the mask, materially limited one or more major life activity. See id. at 573-74 (concluding that plaintiff's hand impairment did not materially limit her major life activity of working because she could still do a different job; plaintiff did not meet definition of "disabled person" under MHRA). The ALJ held that, even assuming the skin condition was a disability within the purview of the Act, Seagate accommodated her alleged disability by providing her with a hypoallergenic face mask that reduced the skin irritation. The ALJ ruled properly and we find no error.

In light of our decisions above, it is unnecessary to address Fears's argument that she is entitled to damages.