This opinion will be unpublished and

may not be cited except as provided by

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




Mary O'Toole,



Blue Earth County,


Filed January 13, 1998


Willis, Judge

Blue Earth County District Court

File No. C0951998

Donald E. Horton, David R. Kett, Horton and Associates, 4930 West 77th Street, Suite 210, Minneapolis, MN 55435 (for Appellant)

Ann R. Goering, Joseph J. Langel, Ratwik, Roszak & Maloney, 730 Second Avenue South, #300, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.



Appellant Mary O'Toole challenges the district court's grant of summary judgment to respondent Blue Earth County, claiming that she proved a prima facie case of both sex and reprisal discrimination. We affirm.


Appellant Mary O'Toole worked for respondent Blue Earth County in its personnel department from 1980 until the department was eliminated in 1995. In early 1995, O'Toole's supervisor, personnel director Ed Kunkel, requested and was granted a transfer to a different department. The county board found that Kunkel's transfer created an opportunity to save money by eliminating the entire personnel department and contracting out the work. On March 31, 1995, the assistant county administrator in charge of the human services and personnel departments, Dennis McCoy, told O'Toole that her position was going to be eliminated. O'Toole asked to contract with the county to provide personnel services, but the county commissioners stated in affidavits that they wanted to hire an established organization, rather than an individual. The county ultimately contracted with a hospital for personnel services at a cost of approximately half of the combined salaries of Kunkel and O'Toole.

O'Toole brought several claims against the county, including claims of sex and reprisal discrimination in violation of the Minnesota Human Rights Act (MHRA). O'Toole claims that her exclusion from participation in various meetings while she was employed by the county was sex discrimination. She claims that the county engaged in reprisal discrimination by eliminating her job and by refusing to contract with her to provide personnel services. The district court granted summary judgment to the county on all claims; O'Toole challenges the grant of summary judgment on her sex and reprisal discrimination claims. By notice of review, the county challenges the district court's application of the elements of a prima facie case of sex discrimination.


On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Evidence must be viewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A reviewing court is not bound by and need not give deference to 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).

In analyzing sex and reprisal discrimination claims under the MHRA, Minnesota courts apply the three-part burden-shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986) (sex discrimination); Hubbard v. United Press Int'l Inc., 330 N.W.2d 428, 444 (Minn. 1983) (reprisal discrimination). The plaintiff first must prove a prima facie case of discrimination. Sigurdson, 386 N.W.2d at 720. If the plaintiff presents a prima facie case, the burden shifts to the defendant to present evidence of a legitimate, nondiscriminatory reason for the action, and the plaintiff is then given the opportunity to show that the proffered reason is a pretext for discrimination. Id.

I. Sex Discrimination

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). To establish a prima facie claim of discrimination, a plaintiff must show that: (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 equivalent to plaintiff's. Sigurdson, 386 N.W.2d at 720.

O'Toole argues that three incidents support her claim of sex discrimination: (1) she was temporarily excluded from a September 1992 union hearing that was attended mostly by men; (2) Kunkel failed to send her an e-mail message about a meeting in January 1995, but he notified the other attendees, who all were men; and (3) she was excluded from a March 1995 meeting attended by three men regarding the settlement of a reemployment compensation claim.

The district court concluded that O'Toole met her burden of proving a prima facie case of sex discrimination, but the county argues that the court misapplied the test for a prima facie case by omitting the requirement that O'Toole show that she sought and was qualified for opportunities the employer made available to others. The district court decided this element was relevant only in cases of failure to hire, failure to promote, and unequal pay claims and was unnecessary with respect to O'Toole's claim. The district court's decision was error. The qualification requirement has been applied in Minnesota in cases similar to this one. See, e.g., Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 325 (Minn. 1995) (applying qualification requirement to alleged discrimination when plaintiff's job eliminated in reduction-in-force). The district court here concluded that if it were necessary for O'Toole to show that she was qualified for opportunities that were available to others, her claim must fail because she cannot establish this element in the incidents she cites. We agree with regard to two of the incidents: O'Toole was invited as an observer to attend the union hearing, which did not relate to her job; and she did not have authority to make any decision at the meeting regarding settlement of the reemployment compensation claim.

But O'Toole was qualified to attend the meeting involved in the e-mail incident. Although Kunkel failed to give e-mail notice to O'Toole, she in fact participated in that meeting when the omission was discovered. Because O'Toole participated in the meeting, she cannot show that she was denied an opportunity despite her qualifications, which is the third element required for presenting a prima facie case. See Sigurdson, 386 N.W.2d at 720.

Even if O'Toole had proved a prima facie case of sex discrimination, the district court found that the county presented legitimate, nondiscriminatory reasons for all three incidents: (1) O'Toole arrived late to the union hearing, and the county attorney asked her to wait until a break to enter; (2) Kunkel's failure to send an e-mail notice to O'Toole was a clerical error, for which Kunkel was reprimanded after O'Toole complained; and (3) not realizing that O'Toole was behind him, an assistant county attorney closed McCoy's office door, inadvertently excluding O'Toole from a brief meeting that Kunkel was permitted to attend.

To show that the county's reasons are pretextual, O'Toole argues that Kunkel's alleged past sexual harassment of other women in the office supports her claim of sex discrimination. But Kunkel was only involved directly in one of the incidents cited by O'Toole: his failure to give her e-mail notice of a meeting that she attended when the omission was discovered. Based on this record, the district court did not err in concluding that the "evidence does not tend to develop a reasonable inference of discrimination on the part of defendant against plaintiff."

II. Reprisal Discrimination

O'Toole argues that the trial court misapplied the law in determining that she had not proved a prima facie case of reprisal discrimination. The MHRA provides that it is

an unfair discriminatory practice for any * * * employer * * * to intentionally engage in any reprisal against any person because that person:

(1) Opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter[.]

Minn. Stat. § 363.03, subd. 7 (Supp. 1997).

A prima facie case of reprisal is shown by establishing: "(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two." Hubbard, 330 N.W.2d at 444.

O'Toole claims that the county's elimination of her position and its subsequent refusal to contract with her for personnel services constitute reprisal discrimination for her following activities that were protected under the MHRA: (1) presenting the county with an affirmative action plan showing an existing statistical underutilization of women in official and administrative positions, (2) advising against downgrading the positions of two female employees, and (3) complaining about Kunkel's mistreatment of her based on her sex.

The district court found that O'Toole did not prove a prima facie case of reprisal discrimination because the activities she identifies are not protected under the MHRA. In presenting the affirmative action program, O'Toole, as part of her job, made recommendations that the county determined to be unrealistic because there were no anticipated job openings in the near future. The district court found that the county's inability to satisfy a hypothetical model was not evidence of discrimination in any individual hiring decision. We agree. With regard to O'Toole's memorandum to McCoy suggesting that a discrimination complaint may result if the positions of two women were downgraded, the district court found that O'Toole failed to prove discrimination against the two women. But it was not necessary for the court to reach that issue because O'Toole's memorandum was not a complaint opposing a practice forbidden under the MHRA. See Carter v. Peace Officers Standards and Training Bd., 558 N.W.2d 267, 273 (Minn. App. 1997) (holding that employee did not oppose a practice forbidden under MHRA by writing letters raising issues of possible discrimination). Finally, with regard to O'Toole's claim that her complaints about Kunkel's mistreatment of her were protected conduct, the district court noted it had already determined that O'Toole had not shown sex discrimination by Kunkel. Alleging discrimination when no discrimination has occurred is insufficient to establish a cause of action for reprisal discrimination. See Dietrich, 536 N.W.2d at 327 (finding employee's verbal protests and letters to management alleging discrimination not protected conduct under MHRA when evidence supported trial court's finding of no discrimination). Because none of the conduct O'Toole identifies is protected under the MHRA, the district court did not err in concluding that she failed to prove a prima facie case of reprisal discrimination.




Judge Bruce D. Willis