This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-953

 

Corinne Parker,

Appellant,

 

vs.

 

Lakes and Pines Community Action Council, Inc.,

Respondent.

 

Filed ­­­February 14, 2006

Affirmed

Dietzen, Judge

 

Kanabec County District Court

File No. C8-04-247

 

Cynthia M. Stange, Stange Law Firm, 300 Rosedale Square Office Building, 2803 Lincoln Drive, Roseville, MN 55113-1312 (for appellant)

 

Thomas P. Carlson, Michelle M. Soldo, Carlson & Soldo, PLLP, 1052 Centerville Circle, Vadnais Heights, MN 55127 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

           

            Appellant challenges the district court’s order granting summary judgment in favor of respondent and dismissing her claims under the Minnesota Human Rights Act and 42 U.S.C. § 1983, arguing that there are genuine issues of material facts precluding summary judgment.  Because appellant failed to establish that genuine issues of material fact exist; and respondent is entitled to judgment as a matter of law, we affirm. 

FACTS

 

The facts are largely undisputed.  In January 2002, appellant Corinne Parker was hired as a Head Start “home visitor” by respondent Lake and Pines Community Council.  Respondent is a Minnesota nonprofit corporation that administers a Head Start program serving economically and socially challenged pre-school children and their parents.  Respondent receives federal and state funding for its Head Start program and is required to follow Head Start Performance Standards, including developing a written confidentiality policy.  Respondent’s confidentiality policy provides that the identity of individuals served by its programs is confidential, and “[n]o information about a client requested by anyone outside the Agency will be given out unless the requesting party falls under the need-to-know basis and is included within the Program Disclaimer.  This includes whether or not a person is or was served by the Agency.”  Employees are required to sign the confidentiality policy and acknowledge that violations may be grounds for dismissal. 

            Appellant was hired as a probationary employee and required to attend new employee training and orientation.  During orientation, appellant signed respondent’s confidentiality agreement and was provided a copy of the policy.  Appellant was then assigned 11 Head Start families, including the family at issue. 

In late February 2002, appellant conducted her first home visit with the family at issue.  Their home was located 20 miles outside of Mora, Minnesota, and beyond appellant’s cell phone range.  During the visit, appellant asked to use the restroom, and was told that, due to construction, the only functioning restroom was located in the basement and was covered by a sheet hanging from the ceiling.  When appellant went to the basement, the father (R.C.), who was working in the basement, asked appellant, “Can I watch?”  Appellant stated that she was “rattled” by what R.C. had said and how he said it, and she told him to go upstairs.  Appellant completed the home visit, and identified safety and neglect concerns within the home that she later reported to child protection. 

            Following the visit, appellant met with supervisory staff to report the incident.  When appellant stated that she suspected that R.C. was a sex offender, she was informed that the agency does not have a policy of maintaining that information, but that appellant could inquire with the sheriff’s department.  Appellant was cautioned that she was prohibited from disclosing information obtained about R.C. to others. 

The next day, appellant verified with the sheriff’s department that R.C. was a Level III sex offender.  During the meeting with an officer at the sheriff’s department, she disclosed that she had visited R.C.’s home as part of the Head Start program.  As a result of appellant’s knowledge of R.C.’s sex offender status, appellant experienced physical symptoms of anxiety and had difficulty completing home visits with other clients.  Appellant discussed her concerns regarding R.C.’s sex offender status with her sister.

In March 2002, appellant attended multiple meetings with supervisory staff to address appellant’s concerns about R.C.’s criminal background.  Appellant’s supervisors stated that they were unaware of R.C.’s criminal background, and that the agency did not conduct criminal background checks on participants because it cannot exclude an eligible family from the Head Start program on this criterion.  Appellant’s supervisors also stated that respondent had served R.C.’s family for two years without incident, and that she was not at risk. 

Appellant insisted that Head Start participants needed to be informed of sex offenders in the program and that she intended to disclose R.C.’s sex offender status to other participants.  Appellant was warned that the confidentiality policy barred disclosure of the information, and that she could be terminated for doing so.  As a result of the meetings, respondent developed an interim action plan to address appellant’s concerns, which included temporarily holding home visits at the agency with supervisory staff observation until appellant and the family established a comfortable working relationship; and facilitating a meeting between appellant and R.C. for the purpose of allowing appellant to confront R.C. about his offensive remark.   

Appellant proposed that respondent adopt a policy of informing staff and program participants when an offender is enrolled in the program.  The program director stated that appellant could submit her proposal in writing for consideration.  Subsequently, appellant submitted a letter outlining her policy proposal regarding notifying program participants and staff about enrolled sex offenders.  On March 28, 2004, respondent acknowledged receipt of the policy proposal and stated that it would be taken under consideration.  Later that day, respondent rejected the proposal. 

Appellant acknowledged disclosing R.C.’s sex offender status and enrollment in the Head Start program to her sister, other program participants, fellow employees, and the sheriff’s department.  On April 8, 2002, respondent’s governing council, which consisted of program participants and community members, passed a resolution to terminate appellant’s employment based on her unauthorized disclosures of participant information.  Appellant was subsequently terminated. 

Following her termination, appellant filed charges against respondent with the Minnesota Department of Human Rights, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration.  After conducting investigations, these agencies dismissed the charges. 

Appellant then filed a suit alleging sexual harassment/hostile work environment and reprisal in violation of the Minnesota Human Rights Act (MHRA) and violation of her constitutional right of free speech under 42 U.S.C. § 1983.  Respondent moved for summary judgment, and the district court issued an order granting respondent’s motion on all three claims and dismissing appellant’s complaint.  This appeal follows. 

D E C I S I O N

On appeal from summary judgment, this court makes two determinations: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is properly granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  Appellate courts must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  But some “metaphysical doubt” as to a material fact is not enough to prevent summary judgment; a “scintilla” of evidence is insufficient to resist summary judgment, as is “merely colorable evidence.”  See DLH, Inc. v. Russ, 566 N.W.2d 60, 70-71 (Minn. 1997) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 106 S. Ct. 2505, 2511 (1986)); see also Celotex Corp. v. Cantrell, 477, U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).  To defeat summary judgment, a party must show “substantial evidence” sufficient to avoid a directed verdict at trial.  Id. at 70.  “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). 

I.

Appellant argues first that the district court erred by granting summary judgment on her claim that she was subjected to sexual harassment creating a hostile work environment.  Respondent argues that the undisputed facts establish that the single remark was not sufficiently severe to impact appellant’s employment, and that it took timely and appropriate action in response to appellant’s concerns.

The MHRA prohibits an employer from discriminating against an employee on the basis of sex.  Minn. Stat. § 363A.08, subd. 2(c) (2004).  Sexual harassment is a form of sex discrimination prohibited under the MHRA.  Id. § 363A.03, subd. 13 (2004).  Sexual harassment includes unwelcome sexual advances and other verbal or physical conduct or communication of a sexual nature which has the purpose or effect of creating a hostile employment environment.  Id., subd. 43 (2004).

Minnesota courts use the McDonnell-Douglas framework to determine whether a violation of the MHRA has occurred.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 441-42 (Minn. 1983) (adopting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).  The employee has the initial burden of establishing a prima facie case of discrimination.  Id. at 442.  The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for any adverse employment action.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  The employee then must show that the stated reason is a “pretext for discrimination.”  Id.

To establish a prima facie case of sexual harassment based on hostile work environment, a plaintiff must show (1) the conduct is unwelcome, (2) the conduct consists of “sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature,” (3) the conduct is sufficiently pervasive so as to substantially interfere with the plaintiff’s employment or to create a hostile, intimidating, or offensive work environment, and (4) “that the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action.”  Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997).  This is a high threshold.  Id. 

Here, appellant based her sexual harassment claim on R.C.’s inquiry during a home visit as to whether he could watch her urinate.  Although the comment was unwelcome and sexual in nature, the undisputed facts fail to establish the remaining elements of a prima facie case of sexual harassment, i.e., that the comment was sufficiently severe and pervasive so as to substantially interfere with appellant’s employment, and that respondent had knowledge of the harassment and failed to act in a timely and appropriate manner. 

It is undisputed that R.C.’s comment was isolated and unaccompanied by physical contact or further menacing behavior.  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, and duration of the conduct.  Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987), abrogated on other grounds by Cummings, 568 N.W.2d at 420 n.2.  Although a single act of sexual harassment can be enough to state a hostile work claim, the incident must be extremely serious.  See, e.g., Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003) (single incident of grabbing employee’s buttocks did not demonstrate hostile work environment); see also Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App. 1999) (when interpreting cases under the MHRA, this court gives weight to federal court interpretations of Title VII claims because of substantial similarities between the two statutes).  Clearly, this single incident does not rise to the level of actionable sexual harassment under the MHRA. 

Appellant argues that it was the single incident coupled with respondent’s “oppressive” prohibition against disclosure of R.C.’s sex offender status to third parties that created a hostile work environment.  Appellant fails to acknowledge, however, that respondent is required by Head Start regulations to create and enforce a confidentiality policy protecting the privacy of program participants.  Because of appellant’s disclosure of RC’s sex offender status to her sister, other program participants, and the sheriff’s department during the course of her employment with the Head Start program, and her advocacy of the participants’ right to know, such disclosures revealed R.C.’s participation in the Head Start program, which is a violation of the confidentiality policy.  An employer’s enforcement of a confidentiality policy applicable to all employees fails to create a hostile work environment under the MHRA.  

            Further, there is no evidence in the record that respondent failed to take timely and appropriate action in response to the incident.  Appellant attempts to create a fact issue by asserting that respondent knew that R.C. was a Level III sex offender and failed to apprise her of this information.  But this misconstrues the relevant issue, i.e., whether respondent knew or should have known of the sexual harassment and failed to take timely and appropriate action.  It is undisputed that R.C. participated in the Head Start program for two years without incident and was not restricted from contact with adults and children as part of his probation.  Thus, respondent could not have anticipated R.C.’s inappropriate comment.  And the MHRA, as a remedial rather than preventative statute, does not require employers to maintain a “pristine” work environment; instead, the emphasis is on how an employer addresses issues as they arise.  Cont’l Can Co., Inc., 297 N.W.2d 241, 249 (Minn. 1980), abrogated on other grounds by Cummings, 568 N.W.2d at 423 n.6.  It is also undisputed that, after appellant reported the incident, respondent met with appellant on multiple occasions to discuss safety concerns, temporarily discontinued home visits, and allowed appellant to conduct the visits in the center under staff supervision.  Appellant concedes that respondent’s response to her sexual harassment claim was timely. 

Because the undisputed facts fail to establish two elements of a prima facie case of sexual harassment/hostile work environment, the district court did not err in granting summary judgment in favor of respondent on that claim.  

II.

Appellant next contends that the district court erred in granting summary judgment on her claim of reprisal discrimination because she presented evidence that she was wrongfully terminated for engaging in “statutorily protected conduct,” i.e., reporting the incident with R.C. and requesting a policy change regarding sex offender notification for program participants.  Respondent argues that this conduct is not “statutorily protected,” and thus, appellant failed to establish a prima facie element of her reprisal claim.

            The MHRA prohibits an employer from engaging in intentional reprisal against an employee because that employee filed a charge of discrimination or opposed an employer’s discriminatory practices forbidden under the MHRA.  Minn. Stat. § 363A.15 (2004).  Reprisal includes any form of intimidation, retaliation, or harassment.  Id.  To establish a prima facie case of reprisal and thus defeat a motion for summary judgment, a plaintiff must show:  “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001). 

            An employee engages in “statutorily protected conduct” when she opposes employer practices that violate the MHRA.  See Minn. Stat. § 363A.15.  But alleging discrimination when no discrimination has occurred does not constitute protected activity.  See Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995) (finding employee’s verbal protests and letters to management alleging discrimination is not protected conduct under the MHRA when evidence supports district court’s finding of no discrimination).  As set forth above, the single incident does not constitute actionable sexual harassment.  And appellant’s letter requesting a policy change did not oppose an employer practice prohibited under the MHRA; instead, it merely raised concerns about respondent’s policy regarding sex offender notification, an issue wholly unrelated to the purposes of the MHRA. 

Further, appellant failed to allege facts establishing the “causal connection” element of a prima faciecase of reprisal, i.e., how termination directly resulted from statutorily protected conduct.  It is undisputed that appellant signed a confidentiality policy restricting the sharing of client information; that appellant was repeatedly warned that disclosing such information could result in termination; that she shared R.C.’s sex offender status and involvement in the program with others; and that the stated reason for appellant’s termination was failure to comply with the confidentiality policy.  Thus, appellant has failed to establish factually that she was engaged in statutorily protected conduct resulting in her termination. 

            Because the facts alleged by appellant failed to establish two elements of a prima facie case of reprisal, the district court did not err in granting summary judgment on that claim. 

III.

Third, appellant argues that the district court erred in granting summary judgment on her 42 U.S.C. § 1983 claim because whether respondent is a state actor is a factual issue that cannot be resolved on summary judgment.  In the alternative, appellant contends that, if respondent is held to be a private actor, she was wrongfully terminated under the public policy exception to the at-will-employment doctrine. 

State Actor

            The relevant portion of the First Amendment of the Federal Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, . . .”  U.S. Const. amend. I.  Federal law provides a cause of action for those whose civil rights, including the right to free speech, have been violated by state actors under 42 U.S.C. § 1983.  Individual and private entities are not normally liable for violations of rights secured by the United States Constitution.  Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S. Ct. 2744, 2752 (1982).  Thus, to prevail on a section 1983 claim, a plaintiff must establish: (1) deprivation of a right, privilege, or immunity secured by the Constitution or laws of the United States; and (2) that the conduct complained of was committed by a person acting under the color of state law.  See 42 U.S.C. § 1983, see also Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2769-70 (1982).  Acting under “color of state law” is equivalent to “state action” under the Fourteenth Amendment.  Rendell-Baker, 457 U.S. at 838, 102 S. Ct. at 2769-70. 

            Here, the facts asserted by appellant, i.e., that respondent is a state actor because it administers the federal and state Head Start program, receives governmental funding, provides pre-school education, and is required to follow the federally promulgated Head Start Policy Manual, are insufficient to establish that respondent is a state actor under Rendell-Baker, the controlling United States Supreme Court decision.  In Rendell-Baker, the Supreme Court reiterated its holding that private action is attributable to the state “only when [the state] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”  457 U.S. at 840, 102 S. Ct. at 2771 (citing Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 2786 (1982)).  The Court considered four factors in determining whether this standard was met:  (1) the source of the private actor’s funds; (2) the impact of governmental regulations on the conduct of the private actor; (3) whether the private actor was performing a public function; and (4) whether a “symbiotic relationship” existed between the private actor and the government.  Id. at 840-43, 102 S. Ct. at 2771-72.

            In regard to the first factor, the Court held that the fact that a private school received almost all of its funds from the government did not transform its action into state action.  Id. at 840-41, 102 S. Ct. at 2771.  Similarly, respondent’s receipt of governmental funds for its Head Start program does not support a finding of state action. 

Second, the Court found that even extensive state regulation is insufficient to establish a private entity as a state actor unless the contested action is compelled or influenced by such regulation.  Id. at 841, 102 S. Ct. at 2771.  Here, it is undisputed that, while Head Start regulations require administers of Head Start programs to create and implement a confidentiality policy, the substance of the policy, and its interpretation and enforcement are solely attributable to respondent, a private nonprofit.  And the decision to terminate appellant was made by respondent’s program director and the Head Start Policy Council rather than government officials or appointees. 

Third, to be considered a state actor under a “public function” analysis, the private entity must perform a function that is “traditionally the exclusive prerogative of the State.”  Id. at 842, 102 S. Ct. at 2772 (emphasis in original) (citation omitted).  In Rendell-Baker, the Court found that, although education is a public function provided by the state, it is not exclusive to the state.  Id.  Specifically, government funding of an alternative private high school for maladjusted students was deemed a new state undertaking.  Id.  Similarly, pre-school education has not traditionally been a component of the K-12 public education provided by the state, and government funding of pre-school programs for low-income families has been a fairly recent development. 

Fourth, under a “symbiotic relationship” analysis, the state must profit from the private entity’s alleged constitutional violations.  Id. at 842, 102 S. Ct. at 2772.  Here, there is no evidence in the record that the state profited from respondent’s decision to terminate appellant. 

            Because the facts asserted by appellant fail to establish that respondent is a “state actor” for section 1983 purposes, the district court did not err in granting summary judgment on this claim. 

            Private Actor

Appellant contends that, even if respondent is held to be a private actor, she was wrongfully terminated under the public policy exception to at-will-employment for speaking out about a recognized matter of public concern, i.e., public notification of sex offenders residing in the community.  But appellant’s claim fails as a matter of law because it does not allege that she was terminated for “refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation,” which is a requirement for a valid claim under the public policy exception.  Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571 (Minn. 1987).

Affirmed.