Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, 2000A Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This appeal challenges summary judgment dismissing Irene Benjamin's claims against her employer, Hennepin County. Because we find no genuine issues of material fact and because the district court did not err in its application of the law, we affirm.

The allegations of mistreatment at the receiving center gained public attention after they were reported in the Native American Press. By late 1992 the allegations were being reported widely in the press, and the FBI had begun an investigation into some of the claims. A number of employees were reprimanded as a result of an internal investigation.

Benjamin alleges that after the public disclosure of her allegations, she began to experience difficulties at work. She claims that she was repeatedly harassed by co-workers, that her concerns about the harassment were ignored by management, that her hours were cut, and that she was denied office space and support needed to complete her job. Benjamin also claims that the county improperly withdrew or limited its permission to allow her to "smudge," a Native American ritual consisting of burning a small amount of sage, in order to purify her workplace.

While Benjamin was on an extended medical leave, the receiving center was closed, reorganized and reopened as an overnight shelter facility, resulting in changes in administration and clerical duties. Upon her return to work, Benjamin was reassigned to a different workspace, and the amount of overtime she was allowed to work was reduced. Benjamin was on another extended medical leave during the summer of 1993 when she returned for a meeting with the county in which she was offered a full-time clerical position at a different location. Benjamin rejected that offer.

In January 1993 Benjamin filed complaints with the Minnesota Department of Human Rights and the federal Equal Employment Opportunity Commission. Both complaints were dismissed. In December 1994 Benjamin filed a complaint with the district court. The district court granted summary judgment for the county. Benjamin now appeals.

Reviewing the evidence in a light most favorable to Benjamin, Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), we conclude that she failed to establish a prima facie case under the "hostile environment" theory of racial discrimination and also failed to provide any evidence to rebut the county's evidence providing legitimate reasons for any disparate treatment she may have experienced.

To establish a prima facie case under the hostile work environment theory, Benjamin's burden is to show, among other elements, 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." 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)). The record contains no evidence of racially hostile remarks or behavior directed at Benjamin, and, thus, the district court correctly granted summary judgment for lack of a prima facie case based on the hostile environment theory.

"The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094 (1981). Assuming that Benjamin has made out a prima facie case of disparate treatment, she still has failed to provide evidence that would rebut the county's overwhelming evidence that the changes in her employment circumstances were due to changes in the program and/or Benjamin's own behavior. During her absence the receiving center was converted into an overnight shelter, and medical detoxification functions, including third floor clerical duties, were curtailed. Weeks before Benjamin returned to work, the county had already begun considering the reassignments and reduction in clerical hours needed given the changes. Likewise, these changes ultimately affected nearly all of the clerical staff, not just Benjamin.

To prevail at trial, Benjamin must show "that [her] employer's explanation is unworthy of credence." Rutherford v. County of Kandiyohi, 449 N.W.2d 457, 463 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990). Because she has failed to produce any evidence that the county's proffered reasons were pretextual, summary judgment was appropriate. See, e.g., id.; Albertson v. FMC Corp., 437 N.W.2d 113, 117 (Minn. App. 1989); Rademacher v. FMC Corp., 431 N.W.2d 879, 884 (Minn. App. 1988) (holding that summary judgment appropriate when plaintiff failed to rebut legitimate reasons for termination).

An employer meets its obligation when it "demonstrates that it has offered a reasonable accommodation to the employee." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69, 107 S. Ct. 367, 372 (1986). In order to "reasonably accommodate" an employee's religious practice, the employer need not accept an accommodation proposed by the employee. Rather, the employer's offer must simply be reasonable. Id.

After co-worker complaints and concerns about the fire code, Benjamin was presented with three separate alternatives to accommodate her smudging request: (1) to smudge in the smoker's room; (2) to smudge in her supervisor's office; or (3) to smudge at her desk after 4:30 p.m. when her co-workers were gone for the day. Benjamin rejected all three. Because the ritual was intended to purify her workplace, the first two options would not accomplish its purpose. However, Benjamin rejected the third option, smudging after hours, because she "rode the 4:20 bus home." Mere inconvenience is not enough to make an accommodation unreasonable. The law does not "require employers to accommodate an employee's religious practices in a way that spares the employee any cost whatsoever." Pinsker, 735 F.2d at 390-91. The district court did not err in its application of the law.

The McDonnell Douglas analysis is used to prove a violation of the Whistleblower Act. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119 n.7 (Minn. 1991); McGrath v. TCF Bank Sav., 502 N.W.2d 801, 806 (Minn. App. 1993). Even assuming that Benjamin established a prima facie case, she has not provided evidence that could rebut the county's legitimate reasons for any adverse treatment. The district court did not directly address Benjamin's claim under the vulnerable adult reporting statute, section 626.557, and we have not been asked to determine whether that claim should be analyzed under a separate standard or whether it is preempted by other claims. The record is replete with unrebutted evidence that the county acted with legitimate and nondiscriminatory reasons rather than in retaliation for Benjamin's whistleblowing, and summary judgment is appropriate on both retaliation claims.

Negligent hiring and retention are based on direct liability and "address risks created by exposing members of the public to a potentially dangerous individual. These theories of recovery impose liability for an employee's intentional tort * * * when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. App. 1993) (citation omitted), review denied (Minn. Apr. 20, 1993). Negligent supervision similarly requires an underlying danger or harm to the employee but is based on vicarious liability and therefore incorporates a scope-of-employment limitation. Id. Because Benjamin has failed to demonstrate any underlying tort or threat of danger she experienced due to the behavior of other county employees, her negligence claims were correctly dismissed on summary judgment by the district court.

Affirmed.