Stacey R. Everson, Stephen W. Cooper, The Cooper Law Firm, Ch., 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401-2526 (for appellant)

Joan M. Quade, Malcolm P. Terry, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for respondents)

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

MULALLY, Judge

Appellant challenges the district court's grant of summary judgment on her claims for sex discrimination, sexual harassment, and numerous common law claims regarding her employment with and termination by respondent. We affirm.

Appellant Robin Langehaug was employed by respondent Mary T., Inc., in its Trillium assisted living home. Respondent Scott Foss was appellant's supervisor.

A former employee at the Trillium home instigated a great deal of sexual banter and innuendo in the office, often with respondent Foss. Foss made sexual comments as well. Other staff members apparently engaged in similar conduct, such as writing inappropriate comments in the office communications book. These antics made appellant feel uncomfortable at work.

On July 8, 1995, appellant wrote a letter to Foss's supervisor. In the letter she described a staff meeting held after another employee told Foss about alleged office gossip that he was having an affair. The letter detailed appellant's concerns about Foss's conduct at the meeting and alleged favoritism toward some staff.

In reviews throughout her employment, appellant was reprimanded for not being punctual or maintaining schedules. On August 15, 1995, appellant was put on a development plan that, among other things, required her to be on-time and to call in if she had trouble maintaining her schedule. The development plan indicated that termination was a possible consequence of noncompliance. On September 11, 1995, appellant was late for work but filled out her time card as if she had come in on time. On September 15, 1995, appellant was terminated for failing to follow her development plan.

Appellant filed suit against respondents for sex discrimination, sexual harassment, intentional infliction of emotional distress, defamation, and numerous common law negligence claims. The district court granted respondents' motion for summary judgment on all claims. This appeal followed.

McDonnell Douglas analysis is applied where, as in this case, there is no direct evidence of discrimination. Bersie v. Zycad Corp., 417 N.W.2d 288, 290 (Minn. App. 1987), review denied (Minn. May 5, 1988). Under this test, the employee must establish a prima facie case of discrimination. Id. The burden then shifts to the employer to produce evidence of a nondiscriminatory purpose for its action. Id. If the employer is successful, the employee has the burden to rebut the preferred nondiscriminatory purpose. Id.

To establish a prima facie case of sexual harassment against an employer there must be proof of conduct that was: (1) unwelcome; (2) of a sexual nature; (3) substantially interfering with the plaintiff's employment or creating a hostile work environment; and (4) known or should have been known by the employer but the employer failed to take timely and appropriate action. Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997).

The district court found that there was no genuine issue of material fact. 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). Upon review of the record we find that there is not an issue of material fact on the claim of discrimination by harassment.

Even viewing all of the evidence in the light most favorable to appellant, she did not produce facts to show that sexual communication in the work place interfered with her employment. See Cummings, 568 N.W.2d at 424 (harassment must substantially interfere with plaintiff's employment). Only appellant's statements that the workplace banter was unprofessional and made her uncomfortable establish the fact that it interfered with her employment. But employers are not required to maintain a pristine work environment, free of offense. Continental Can Co. v. State by Wilson, 297 N.W.2d 241, 249 (Minn. 1980).

Additionally, appellant did not produce evidence that her employer knew of sexual harassment and failed to take timely and appropriate action. Appellant complained to respondent Mary T., Inc., only of respondent Foss's favoritism to certain employees (which appellant did not contend, in her letter, was based on an impermissible factor) and inappropriate language in a meeting where he used the words "boinking" and "f* * *ing." The record reflects that Mary T., Inc., put Foss on a development plan to improve the way that he ran meetings and to more constructively address disciplinary issues.

The district court did not err in granting summary judgment on the ground that appellant failed to establish a prima facie case of sexual harassment.

Here, appellant failed to establish a prima facie case of discrimination by showing that she was treated less favorably than other employees because of an impermissible classification. See Hubbard Broadcasting, Inc. v. United Press Int'l, Inc., 330 N.W.2d 428, 442 (Minn. 1983) (crux of discriminatory discharge claim is that employer treated plaintiff less favorably than others on basis of impermissible classification). Appellant failed to produce evidence that nonmembers of the protected class were favored in their terms of employment.

Appellant contends that the "sex-plus" analysis of Pullar v. Independent Sch. District No. 701, 582 N.W.2d 273, 277 (Minn. App. 1998), makes her claim survive this deficiency in the prima facie case because single women were treated better than married women.[1] But Pullar required a comparison between members of a subclass of a protected group and a similarly situated subclass of nonmembers. Id. Here, appellant produced no evidence that married women were treated differently from married men in the terms of their employment.

The district court did not err in granting summary judgment on appellant's discrimination claims.

A claim may not be maintained for trial unless it is pleaded or voluntarily litigated by the opposing party. Roberge v. Cambridge Coop. Creamery Co., 243 Minn. 230, 234, 67 N.W.2d 400, 403 (1954). The complaint may be amended, but a claim is lost if the party fails to do so in a timely manner. Hohenstein v. Goergen, 287 Minn. 512, 514, 176 N.W.2d 749, 751 (1970). There was no evidence that appellant ever attempted to amend the complaint.

Appellant's complaint contains numerous counts, none of which mentions a reprisal cause of action under the MHRA. Without more specific notice that appellant intended to maintain a legal claim of reprisal, the complaint failed to adequately plead that claim. See Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (primary function of notice pleading is to give adverse party notice of theory on which claims are based). The district court did not err in granting summary judgment on the reprisal claim.

A claim for intentional infliction of emotional distress requires proof of extreme and outrageous conduct. Hubbard, 330 N.W.2d at 438-39. It is not sufficient that this behavior simply be inappropriate, but must pass the boundaries of decency and be utterly intolerable." Id. at 439. While the behavior exhibited by respondent Foss and the employees of respondent Mary T., Inc. was juvenile, inappropriate, and offensive, appellant failed to show that it was atrocious and beyond the bounds of decency. See Lund v. Chicago & N.W. Transp. Co., 467 N.W.2d 366, 370 (Minn. App. 1991) (vulgarity is not actionable unless "especially shocking or egregious"), review denied (Minn. June 19, 1991); Lee v. Metropolitan Airport Comm'n, 428 N.W.2d 815, 823 (Minn. App. 1988) (behavior not actionable if of a "type commonly encountered in people's daily lives," even if more extreme than that usually encountered).

A claim for negligent retention or negligent supervision requires that the plaintiff prove a threat of physical injury or actual physical injury. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 443 (Minn. App. 1996). While appellant mentioned physical injury in her complaint, she failed to create a genuine issue as to whether she suffered a physical injury or a threat of physical injury.

A negligent hiring claim requires plaintiff to prove that the employer had notice of the employee's dangerous propensities at the time of hiring. Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). Appellant failed to show that respondent Mary T., Inc., acted unreasonably in its hiring practices or had notice of any employee's propensity for dangerous behavior.

A claim for negligent infliction of emotional distress requires plaintiff to prove that she was placed in a "zone of danger" of physical injury or was subjected to malicious conduct. Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). Appellant did not show that she was placed in any zone of danger of physical injury or that she was subjected to this kind of malicious conduct.

Each of appellant's claims fails as a matter of law. The trial court did not err in dismissing any of these claims.

As a matter of law, "troublemaker" is not actionable because of its indefinite character. McGrath v. TCF Bank Savings, FSB, 502 N.W.2d 801, 808 (Minn. App. 1993). Similarly "bitch" is not actionable. Lee, 428 N.W.2d at 821. Saying that appellant had problems with her job performance is similarly vague because it implies no specific conduct attributed to appellant such that it would be actionable. See McGrath, 502 N.W.2d at 808 (statement must be of a specific nature such that it could be understood as fact to be actionable).

Falsity is an element of defamation. Frankson v. Design Space Int'l, 394 N.W.2d 140, 142 (Minn. 1986). Appellant has failed to produce evidence to contradict respondent's evidence that she falsified her time card. Therefore, appellant failed to establish a prima facie case of defanation. The district court did not err in granting summary judgment on appellant's defamation claim.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Marital status is also an impermissible grounds for discrimination in employment. Minn. Stat. §363.03, subd. 1(2). But appellant never pleaded or alleged this form of discrimination.

[2] Appellant also asserted a claim of negligent training, but Minnesota only recognizes negligent hiring, negligent retention, and negligent supervision in negligence suits against an employer for actions of employees. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995), review denied (Minn. July 20, 1995).