may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Bridget A. Bormann,
Opus Northwest, L.L.C.,
a foreign limited liability company,
Filed March 9, 1999
Hennepin County District Court
File No. 9714191
Douglas A. Kelley, John M. Lee, Steven E. Wolter, Douglas A. Kelley, P.A., Suite 2530 Centre Village Offices, 431 South Seventh Street, Minneapolis, MN 55415; and
Regina M. Chu, Regina M. Chu, P.A., Suite 500, 701 Fourth Avenue South, Minneapolis, MN 55415 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Mulally, Judge.[*]
Appellant Bridget Bormann challenges the trial court's summary judgment in favor of respondent, her employer, in an action alleging employment discrimination, sexual harassment, and constructive discharge. We affirm.
In 1996, appellant, a senior secretary in the real estate department at Opus Northwest, began to ask various managers at Opus whether there were opportunities for her to advance within the company. Opus hired Daniel Queenan as a real estate representative in April 1997.
Appellant argues that the Queenan hiring was discriminatory and also contends that vice president Murnane sexually harassed her, conduct that she says worsened and accelerated after Queenan was hired. The alleged behavior includes attempted kisses, suggestive comments, and unwanted physical contact. While on vacation in June 1997, appellant phoned Opus president Rauenhorst to discuss Murnane's behavior. Rauenhorst said he would look into the matter and have vice president Heller call her back. Heller called the next day and apologized to appellant on behalf of both Opus and Murnane, told appellant that Opus took the alleged incidents seriously, and promised to do further investigation into the incident. Heller also told appellant that she could be reassigned so that she would not have to work directly with Murnane. After this telephone conversation, appellant never returned to work. Instead, she resigned on June 26, 1997.
Appellant commenced this lawsuit after leaving Opus, alleging gender discrimination and sexual harassment in violation of the Minnesota Human Rights Act, Minn. Stat. ch. 363 (1998), and constructive discharge. The trial court entered a final judgment granting Opus's motion for summary judgment.
On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While this court views the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).
For employment discrimination cases, the three-step McDonnell Douglas test requires that the courts determine if the plaintiff has proven by the preponderance of the evidence a prima facie case of discrimination; if this is done, whether the defendant can meet a burden to articulate a legitimate, nondiscriminatory reason for its action; and if this burden is carried, whether the plaintiff can prove by a preponderance of the evidence that the purported nondiscriminatory reasons are not the true explanation for the action but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093 (1981). The trial court was correct in finding that appellant had introduced neither direct nor indirect evidence establishing a prima facie case of discrimination.
A prima facie case of employment discrimination may be established by direct evidence of discrimination. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). Appellant contends that Heller's statements to her about her chances for advancement within Opus rise to the level of direct evidence of sex discrimination. Heller apparently told appellant during a January 1997 performance review that "it was too difficult for a secretary to move into management" and that appellant "had been hired as a secretary and that was as far as she was going to go." Appellant contends that because all of Opus's secretarial positions were at that time held by women and because most people perceive that secretaries are women, Heller's comments were gender-related. But Minnesota case law suggests that direct discrimination must make overt reference to a protected class. See, e.g., id. (employer announced females would not be considered); LaMott v. Apple Valley Health Care Ctr., Inc., 465 N.W.2d 585, 589 (Minn. App. 1991) (employer stating it would not rehire plaintiff until she had no physical impairment). Heller's statements do not rise to this level.
When direct evidence of discrimination is lacking, an appellant may establish a prima facie case of discrimination by showing: (1) that she is a member of a protected group; (2) that she sought and was qualified for opportunities that the employer made available to others; (3) that despite her qualifications, she was denied those opportunities; and (4) the opportunities remained available or were given to other persons with appellant's qualifications. Sigurdson, 386 N.W.2d at 720; see also Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 711 (Minn. 1992).
Respondent concedes that appellant is a member of a protected group and that she sought and was denied opportunities for advancement at Opus. Respondent challenges only whether appellant was qualified for the positions that she sought. Appellant "needs only show that [s]he met the minimum objective qualification of the job." LaMott, 465 N.W.2d at 589 (citation omitted).
Appellant acknowledges that she does not have the objective qualifications needed for the job described as "real estate representative," the position developed for Queenan. Appellant nevertheless insists that Queenan's job description was developed to fit his qualifications and that at some point before he was hired, there existed an opening for a position that required lesser qualifications. Appellant has not met her burden of proof to show such a position was needed or announced by Opus.
Appellant attempts to show that an entry-level management position was contemplated by Opus and announced to her by vice president Scott, as well as by Murnane and Heller, who allegedly encouraged appellant to apply for such a position. Appellant cannot demonstrate that there was need for a low-level position. The only evidence in the record is that Queenan held, as real estate representative, the lowest level professional position in Opus's real estate group and that Heller testified that the real estate group's needs were for a real estate representative or a leasing agent.
Appellant attempts to imply the existence of a lesser position by showing that Opus never posted a position. But we are not satisfied that a prima facie case can be inferred from the failure to post a position.
As an alternate theory, appellant attempts to show that she sought advancement at Opus, and she was held back. See, e.g., Shannon v. Ford Motor Co., 72 F.3d 678 (8th Cir. 1996); Winbush v. Glenwood State Hosp., 66 F.3d 1471 (8th Cir. 1996). But this theory is not supported by specific evidence, and appellant has not shown any evidence that suggests that the reason that she was not seriously considered for the real estate representative position was because of her gender. See Shannon, 72 F.3d at 683; Winbush, 66 F.3d at 1481.
Because we hold that appellant has not established her prima facie case, we decline, as did the trial court, to analyze whether there were non-discriminatory reasons for respondent's actions and whether respondent's proffered reasons were merely a pretext for discrimination.
2. Sexual harassment claim
To establish a prima facie case of sexual harassment, appellant must show: (1) that she belongs to a protected group; (2) that she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was sufficiently severe to interfere unreasonably with work performance or to create an intimidating, hostile, or offensive work environment; (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Bersie v. Zycad Corp., 417 N.W.2d 288, 290 (Minn. App. 1987). Respondent concedes that appellant belongs to a protected group, that Murnane's alleged conduct was unwelcome, and that it was based on sex.
The parties agree that Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367 (1993), provides useful guidance for determining whether harassing conduct rises to the level of creating a hostile or offensive work environment. In Harris, the Supreme Court reaffirmed its determination to identify a hostile environment without either "making actionable any conduct that is merely offensive" or "requiring the conduct to cause a tangible psychological injury." Id. at 510 U.S. at 21, 114 S. Ct. at 370. The Court also provides both an objective and a subjective standard for harassment. Id.
A reasonable person would not find that Murnane has created a hostile or an abusive work environment at Opus. While inappropriate, Murnane's alleged conduct was neither especially frequent nor severe.
Even if the objective standard were arguably met in this situation, appellant produces no proof that the environment was subjectively hostile. Appellant admits that she would have continued working at Opus if she had been promoted to a management-level position. Moreover, appellant concedes that she saw most of these events as insignificant.
Finally, appellant also contends that respondent failed to remedy the situation adequately. But appellant's conduct in quitting her employment immediately after reporting the harassing behavior did not allow for respondent to do anything more than what it did. Its response was adequate.
Because appellant has made out a claim for neither gender discrimination nor sexual harassment, her claim for constructive discharge also fails.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.
 Similarly, appellant contends that Murnane's alleged harassing behavior is also direct evidence of discrimination. But appellant concedes that Murnane was not involved in hiring Queenan and that those involved in the hiring decision were not informed of Murnane's alleged harassing behavior until after Queenan was hired.
 Moreover, appellant does not argue that Queenan performs a job at Opus for which the real estate representative job qualifications are not needed.
 We analyze this case in terms of the prima facie case. But in this case, the discussion touches on all of the McDonnell Douglas factors, because appellant's prima facie claim depends singularly upon showing that she possessed necessary qualifications. Respondent's non-discriminatory reason for not promoting appellant is her lack of qualifications. To show pretext, appellant must again show that she was qualified for the position.