This opinion will be unpublished and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

A06-11

 

Priscilla Womack,

Appellant,

 

Nelson Womack,

 

Appellant,

 

vs.

 

City of Minneapolis,

Respondent.

 

Filed September 5, 2006

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File Nos. EM 04-3152, EM 04-3153

 

 

Jill Clark, Jill Clark, P.A., 2005 Aquila Avenue N., Golden Valley, MN 55427 (for appellants)

 

Karin E. Peterson, Ann E. Walther, Rice, Michels & Walther, LLP, 10 Second Street N.E., Suite 206, Minneapolis, MN 55413 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Wright, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellants challenge the district court’s summary judgment dismissing their employment-discrimination claims.  Because there are no genuine issues of material fact as to whether respondent engaged in unfair discriminatory practices, we affirm. 

FACTS

Appellants Nelson and Priscilla Womack, an African-American married couple, worked for respondent City of Minneapolis in its park-board department.  Nelson Womack worked as a Youth Program Specialist from approximately December 2000 until October 2, 2002, when the city terminated his employment.  Priscilla Womack is a Code 8 (part-time) employee and still works part time for the park board. 

Facts as to Nelson Womack

Nelson Womack’s duties as a program specialist were to develop youth-and-community-outreach programs.  The position required, among other things, a valid Minnesota Class C driver’s license.  The program director, Heidi Pope, hired Womack with the belief that he met this job requirement.  When she later discovered that he did not have the requisite driver’s license, she “decided to try to help [him] by extending his probationary period to enable him time to secure a valid Minnesota Class C driver’s license.”  Womack was not given any driving duties during this time.  He encountered several difficulties in obtaining his Minnesota license, including settling an outstanding fine with the Pennsylvania Department of Motor Vehicles.  Pope extended his probationary period twice to give him “ample time to resolve the issue and [obtain] a valid Minnesota Class C driver’s license.” 

            Womack was issued a temporary paper license in November 2001 and the park board allowed him to transport children in the park-board vans.  The following March, Womack was cited for driving after cancellation, and his license was eventually suspended for failure to appear or pay the fine.  Although Womack did not know why his license was cancelled, he did not report the citation to the park board, and he continued to transport children in the park board’s vans.   In September 2002, after investigating an accident with a van signed out to Womack, the park board discovered that his license had been suspended.  The following month, the city terminated Womack for driving its vans without a valid Minnesota driver’s license. 

            Womack’s union filed a grievance through its arbitration procedure, and the arbitrator found that the park board had just cause to terminate Womack.  Womack never raised the issue of racial discrimination in the arbitration proceeding. 

            Following his termination, Womack would sometimes come into the Peavey Park recreation center where his wife worked to deliver lunches or to pick her up after work.  In October 2003, shortly after Womack filed a charge of racial discrimination with the Minnesota Department of Human Rights (MDHR), an employee of the park board asked Womack to leave the lobby of the recreation center.  Womack believed that he was “banned” from the recreation center as a reaction to his charge with the MDHR.  But Womack continued to visit the recreation center after the incident, and the park board did not take any action against him. 

Facts as to Priscilla Womack

Priscilla Womack worked for the park board as a Code 8 part-time employee.  Code 8 employees are considered temporary employees and are limited to working a maximum of 1,600 hours a year.  They are not guaranteed any hours or any benefits, except they have the “right of recall for such work occurring in the next and subsequent seasons.”  In 2000, Priscilla Womack worked 256.5 hours; in 2001, she worked 1,021.5 hours; in 2002, she worked 1,489.5 hours; in 2003 she worked 1,600.5 hours; and in 2004 she worked 355.5 hours. 

Priscilla Womack was hired as a lead-program specialist with a pay-scale classification of Recreation Specialist B, step 4.  This classification allowed her an hourly wage of $11.48, which is higher than the other two Recreation Specialist Bs employed by the park board: Darrell Young, who is African American, and Evelyn Eddans, who is Caucasian.  Salary for the Recreation Specialist B classifications requires matching funds from another source, and Womack’s specific position was funded by a program called “Weed and Seed.” 

In 2003, the park board lost funding and had to eliminate the Recreation Specialists B classifications.  The park board determined that Womack, Young, and Eddans would be reclassified to Attendant IV for pay-scale purposes and that this classification was the most appropriate because the duties of the three employees coincided with the duties of the Attendant IV classifications.  At the time of the reclassification, Womack was “working as a front-desk receptionist and performing phone answering and general supervision duties.”  The reclassification reduced her pay to $9.70 per hour. 

            The park board’s recreation-center manager, Jeffrey Wells, explained to Womack that she was being reclassified because they lost funding and because her present job duties were those of a receptionist rather than those of a lead-program instructor.  Although Womack complained to Wells about her pay cut, she never raised any issues of racial discrimination. 

When Nelson Womack was asked to leave the park in October 2003, Priscilla Womack contacted Sarah Cedarblade, her direct supervisor, to complain about the incident.  Because Womack allegedly swore at her, Cedarblade suspended her for four days.  Womack disputed Cedarblade’s reason for her suspension.  Nonetheless, her suspension did not adversely affect her hours, as Womack worked the maximum 1,600.5 hours in 2003. 

The park board hired another employee in late 2003 after Priscilla Womack had worked the maximum number of hours available to her for that year.  This employee, a Caucasian woman, earned $7.80 per hour.  In 2004, the park board, which had less money in its budget than it had in 2003, offered Womack the opportunity to work hours at the new employee’s lower hourly wage, but she turned it down.  The new employee was then given more hours of work, and Womack was given fewer hours—a total of 355.5 for the year—at her hourly rate of $9.70.

            In October 2003, the Womacks both filed charges of racial discrimination with the MDHR against the city.  The MDHR dismissed both charges in January 2004 on the grounds that the “evidence does not substantiate the [Womacks’] allegations of discrimination . . .[and that] the nature of the evidence considered indicates that additional investigation is not warranted in this case.” 

            Following the dismissal, the Womacks brought separate pro se suits in district court against the city in March 2004, again alleging racial discrimination but adding claims of reprisal, marital discrimination, and constitutional violations.  Shortly thereafter, the Womacks obtained legal counsel and consolidated their cases.  In May 2005, the district court granted the city’s motion for summary judgment.  This appeal followed.

D E C I S I O N

Standard of Review for Summary Judgment

 

Whether summary judgment was properly granted is a question of law reviewed de novo.  Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).  We review 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).  We 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).  Summary judgment is appropriate 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).  In a claim of unlawful employment discrimination, summary judgment is appropriate if the employee (1) fails to show genuine fact issues on the elements of a prima facie case of discrimination, or (2) having shown such fact issues nevertheless fails to show a genuine fact issue as to whether the “employer’s proffered nondiscriminatory reasons for its employment decision were pretextual.”  Albertson v. FMC Corp., 437 N.W.2d 113, 116 (Minn. App. 1989). 

I.

Racial-Discrimination Claims

            The Womacks allege that the park board violated the Minnesota Human Rights Act (MHRA) by engaging in unfair employment practices based on their race.  Under this act, it is an unfair employment practice for an employer to discriminate against a person based on race with respect to “hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.”  Minn. Stat. § 363A.08, subd. 2 (2004). 

Minnesota courts use the McDonnell-Douglas analysis to determine whether a violation of the MHRA has occurred.  Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986).  Thisanalysis consists of a prima facie case, an answer, and a rebuttal.  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973).  The employee has the initial burden of proving a prima facie case of discrimination.  Id. 

Nelson Womack’s Racial-Discrimination Claim

Nelson Womack failed to show fact issues that would establish a prima facie case of discriminatory discharge and summary judgment was appropriate.  The prima facie case for a discriminatory discharge claim consists of a showing that: (1) the employee is a member of a protected class; (2) the employee was qualified for the job from which he was discharged; (3) he was discharged; and (4) the employer assigned a nonmember of the protected class to do the same work.  Hubbard v. United Press Int’l., Inc., 330 N.W.2d 428, 442 (Minn. 1983). 

Womack was not qualified for the job because he did not hold a valid Minnesota driver’s license.  The record reflects that the park board hired Womack on the condition that he obtain the required license, and it twice extended the probationary period for him to do so.  Womack eventually acquired a paper license, but that was suspended after Womack failed to pay a fine for driving with a cancelled Pennsylvania license.[1] 

Furthermore, the claim fails because the park board replaced Nelson Womack with members of the protected class to do the same work, first Karl Gilleylen and then John Myles, both of whom held valid Minnesota driver’s licenses and were African American.  The district court correctly dismissed Nelson Womack’s discriminatory-discharge claim.

Priscilla Womack’s Hostile-Work-Environment Claim

Summary judgment was also appropriate on Priscilla Womack’s claim that the park board fostered a hostile work environment.[2]  Womack contends that a hostile work environment was created when Sarah Cedarblade made numerous racially derogatory comments.  She asserts that Cedarblade referred to African Americans on more than one occasion as having “big ugly noses” and stated that they “don’t want to work.”  Further, Cedarblade asked her why black kids were “so dumb” and why black people had “brillo pad hair.”  Finally, she contends that Cedarblade frequently came close to her and said “something stinks.” 

To establish a prima facie case for a hostile work environment claim, complainant must show: (1) membership in a protected group; (2) complainant was subject to unwelcome racial harassment; (3) a causal nexus between the harassment and the employee’s membership in a protected group, (4) the harassment affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt action.  Wenigar v. Johnson, 712 N.W.2d 190, 206 (Minn. App. 2006).  To determine whether an environment is sufficiently hostile or abusive to support a claim, courts look “at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”  Id.at 207 (quotation omitted). 

According to Womack’s own documentation, these comments were infrequent.  Cedarblade allegedly made the “brillo pad hair” and the “big ugly nose” comment once each and the “something stinks” comment eight times over the span of eight months.  The frequency of the comments cannot be considered to be pervasive as to “unreasonably interfere” with Womack’s work performance.  Additionally, there is no causal nexus between the comment that “something stinks” and Womack’s African-American heritage. 

Furthermore, Womack has not demonstrated how these comments affected the terms, conditions, or privileges of employment.  Womack intimates that because Cedarblade had racial prejudices, she refused to reinstate Womack’s hours the following year.  But the park board offered an unrefuted legitimate reason for reducing Womack’s hours, namely the lack of funding for the position.  The park board hired another employee at a lower wage for Womack’s position, which is a reasonable measure to address the budget concerns.  Womack has not presented evidence to show a genuine fact issue on whether the budget was a mere pretext for discrimination. 

II.

Reprisal Claim

            The Womacks also allege that the park board engaged in reprisal because they filed the MHRA claim.  The MHRA forbids reprisal against any employee who opposes a practice forbidden under the Act, or has filed a charge with the MDHR.  Minn. Stat. § 363A.15(1) (2004).  It is a reprisal for an employer to engage in any intimidating, harassing behavior or to “depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status.”  Minn. Stat. § 363A.15 (2004). 

A prima facie case of reprisal consists of a showing that: (1) complainant engaged in statutorily protected conduct; (2) adverse employment action was taken by the employer; and (3) a causal connection exists between the two.  Hoover v. Nw. Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn. 2001).  An employee engages in “statutorily protected conduct” when he opposes employer practices that violate the MHRA.  See Minn. Stat. § 363A.15. 

Nelson Womack alleged the park board engaged in reprisal on two occasions: (1) when it terminated him after he had complained of discrimination to board members and (2) when it excluded him from the park.  But Womack never alleged racial discrimination during his arbitration hearing, nor does he, on appeal, cite to anything in the record or present any evidence to show that he made such a complaint to the park board or that he was terminated for anything other than his failure to qualify for the job.  Womack must present more than mere allegations to survive summary judgment.  See DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  Further, simply alleging unlawful 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 oral protests and letters to management alleging discrimination is not protected conduct under the MHRA when evidence supports district court's finding of no discrimination). 

Nelson Womack’s argument that the park board retaliated by excluding him from the park also fails.  He cannot establish that such behavior was “adverse employment action,” as he had already been terminated before this incident occurred.  Although it is not clear why he was excluded from the park, he did not present any evidence to show that this exclusion was connected with his employment.

The district court also dismissed Priscilla Womack’s reprisal claim, concluding that, prior to filing her complaint with the MDHR, Womack’s complaints only focused on her husband’s termination and her reclassification, and therefore “[o]nly those employment decisions by the [b]oard that occurred after she filed her complaint are relevant to her retaliation claim.”  Because there is no evidence on the record that Womack complained of the racial discrimination prior to filing her claim, the court’s observation is correct.  

Thus, the only relevant allegedly adverse employment action is the park board’s reduction of Priscilla Womack’s hours for 2004 after she had filed her discrimination complaint with the MDHR.  But as indicated above, Womack was not guaranteed any hours.  And the park board replaced Womack with an employee willing to work at a lower wage.  This was a reasonable measure to address the budget issue.  Womack has presented no other evidence to show a genuine fact issue as to whether the park board’s reduction in her hours constituted retaliatory action. 

III.

Marital-Discrimination Claim

            The Womacks contend that the park board engaged in marital discrimination when it reclassified Priscilla Womack’s employment status, adjusted her hours, and suspended her.  To constitute marital discrimination under the MHRA, the alleged discrimination must be directed toward the institution of marriage itself.  Kepler v. Kordel, 542 N.W.2d 645, 648 (Minn. App. 1996), review denied (Minn. Mar. 19, 1996).  Because none of the park-board’s actions are direct attacks on the institution of marriage itself, the district court correctly dismissed this claim. 

 

IV.

Constitutional Claims

Lastly, the Womacks argue that their due-process rights to freely associate and to maintain intimate relationships under Article 1, § 7 of the Minnesota Constitution were violated, asserting that Nelson Womack was prohibited from entering the park and was told to leave the recreation center once. 

            The district court correctly found that the claim was without merit.  The record shows that the park board did not take legal action against Nelson Womack; that the park board never threatened or attempted to arrest him; and that he visited his wife subsequent to being asked to leave.  Essentially, Nelson Womack argues that one incident of being asked to leave the recreation center violated his constitutional right to associate with his wife.  There is no evidence that the park board “banned” Womack from visiting the park.  Further, the Womacks have not demonstrated that Minnesota recognizes a private cause of action for their constitutional claims.  See, e.g., N. Star Legal Found. v. Honeywell Project, 355 N.W.2d 186, 188 (Minn. App. 1984) (noting that Minnesota has not recognized a cause of action under Minn. Const. art. 10, § 1), review denied (Minn. Jan. 2, 1985).

Affirmed.