This opinion will be unpublished and

may not be cited except as provided by

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




Patricia S. Grosberg,



Listening Ear Crisis Center Project, Inc.,


Filed March 2, 1999


Amundson, Judge

Douglas County District Court

File No.C3-97-585

DeAnna M. McCashin, Schoep & McCashin, Chtd., 1321 Broadway, Suite 100, Alexandria, MN 56308 (for appellant)

Julie Fleming-Wolfe, 1654 Grand Avenue, St. Paul, MN 55105 (for respondent)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Amundson, Judge.



Appellant Patricia Grosberg appeals from summary judgment in favor of respondent Listening Ear Crisis Center Project, Inc. (LECC). Grosberg alleges that she was unlawfully discharged on the basis of two protected classifications: (1) sexual preference; and (2) disability. Grosberg asserts that LECC's proffered reasons for her termination were merely pretext for discrimination. We affirm.


Respondent LECC is an organization that works with victims of domestic violence, sexual assault, and other crimes. Grosberg became aware of the organization while undergoing treatment for drug abuse required as a result of a drug-related criminal conviction. After Grosberg underwent court-mandated chemical dependency treatment with therapist Maryann Rollie, a member of the LECC board of directors, Rollie recommended that Grosberg volunteer for LECC. Grosberg volunteered with LECC for a short while and was hired for a full-time position with the organization in December 1993.

At the time she was hired, Grosberg believed the LECC board members were aware of her criminal history and chemical dependency. Grosberg also believed the board members were aware of her sexual orientation, but acknowledged that she never felt that the board members treated her any differently after learning of her sexual orientation or history of chemical dependency.

On November 27, 1995, the board hired Jodi Ritter as LECC's new executive director. Soon after, conflicts arose between Ritter and Grosberg. Ritter testified that Grosberg was often argumentative with her and that, during Ritter's first five months as director, she spent much of her time dealing with personnel problems caused by Grosberg's "blow ups." In fact, Ritter documented discord as early as January 1996.

On April 29, 1996, Jennie Hervern, a board member, terminated Grosberg. The termination occurred after Ritter called and informed Hervern that she was resigning because she could no longer deal with Grosberg. Hervern determined that in order to keep Ritter, Grosberg had to be discharged. In fact, Hervern testified that, although Grosberg consistently received good reviews on her performance as an advocate for victims of domestic abuse, she had considered terminating Grosberg on prior occasions because of her aggressive behavior, which made other staff members uncomfortable or even fearful. Finally, although Ritter acknowledged that Grosberg did an acceptable job with most aspects of her work, she testified that Grosberg refused to comply with Ritter's policy of requiring LECC employees to follow up on victims.

After being terminated, Grosberg brought this action against LECC, alleging unlawful discrimination, wrongful termination, and intentional infliction of emotional distress. LECC moved for summary judgment. The district court granted summary judgment on all claims and dismissed the suit. Grosberg only sought review of the summary judgment dismissing her discrimination claim.


On appeal from summary judgment, we determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995). In order to establish a genuine issue of material fact, a party may not rely on the mere existence of a scintilla of evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

Grosberg is appealing summary judgment with respect to her disability and sexual-orientation discrimination claim brought pursuant to the Minnesota Human Rights Act, which provides:

Except when based on bona fide occupational qualification, it is an unfair employment practice:

* * * *

(2) For an employer, because of * * * disability [or] sexual orientation * * *

(b) to discharge an employee; or

(c) 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)(b)-(c) (1996).

To survive summary judgment, Grosberg must first establish a prima facie case of discrimination. Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995). The United States Supreme Court set forth the steps for establishing a prima facie case where direct evidence of discriminatory motive is lacking. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S. Ct. 1817, 1824 (1973); Bersie v. Zycad Corp., 417 N.W.2d 288, 290 (Minn. App. 1987). To prove a prima facie case under the McDonnell test, appellant must show: (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) despite her qualifications, she was discharged; and (4) that the employer assigned a person of the same qualifications to do the work. 411 U.S. at 803, 93 S. Ct. at 1824; Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). The parties agree that Grosberg successfully established a prima facie case of discrimination, and the establishment of a prima facie case is not at issue in this appeal.

Once the employee establishes a prima facie case of discrimination, the burden shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for its action. Isanti County, 386 N.W.2d at 720. At this stage, we look for evidence that the employer's "actions were related to some legitimate business purpose." Id. LECC's proffered reasons for terminating Grosberg were: (1) she failed to follow LECC policies and procedures; (2) her behavior towards Ritter and other staff members was aggressive and disruptive; and (3) LECC did not want Ritter to resign. These reasons constitute a legitimate, nondiscriminatory purpose for discharging Grosberg.

If the employer is successful in producing evidence of a nondiscriminatory purpose, the employee then has the burden of persuading the court that the stated purpose of the employer was mere pretext for discrimination. Id. Summary judgment is appropriate where a plaintiff, having established a prima facie case of discrimination, fails to provide evidence establishing that the employer's proffered reasons for its employment decision were pretext for discrimination.[1] Albertson v. FMC Corp., 437 N.W.2d 113, 116 (Minn. App. 1989).

The district court found that there were no genuine issues of material fact raised by Grosberg showing that LECC's proffered reasons for her discharge were pretextual. A material fact is one that would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). Even when viewing all of the evidence in the light most favorable to Grosberg, we conclude that she failed to present facts sufficiently different from those presented by LECC that would indicate any disputed issues of material fact precluding summary judgment.

Grosberg asserts that because her evaluations were positive prior to Ritter's hiring, there is a disputed issue as to whether her termination was based on discrimination. The evidence, however, shows that Grosberg did not get along with Ritter and Ritter interpreted Grosberg's aggressive behavior as insubordination. Ritter made attempts to remedy the problem, but eventually decided to resign to avoid dealing with Grosberg. To prevent Ritter's resignation, the board, through Hervern, decided to terminate Grosberg. LECC has established a legitimate, nondiscriminatory reason for its decision to terminate Grosberg. In contrast, Grosberg has not asserted any genuine fact issues that support her allegations as to pretext. Therefore, the district court properly granted summary judgment in favor of LECC.


[1] Grosberg asserts that the district court erred in requiring direct evidence of discrimination, stating that, pursuant to the McDonnell test, plaintiffs need only present circumstantial evidence. While it is true that plaintiffs need not provide direct evidence to establish a prima facie case, they must present material evidence to refute the employer's proffered legitimate reasons for the employment decision. The district court applied the correct legal standard in granting summary judgment.