This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-104

Jody Gilbert,

Appellant,

vs.

IMI Cornelius, Inc.,

Respondent.

Filed June 1, 1999

Affirmed

Short, Judge

Anoka County District Court

File No. C9979638

Sheila Ketelsen Dokken, Eric D. Satre, Connor, Satre, & Schaff, L.L.P., 580 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Marko J. Mrkonich, Heidi E. Kapacinskas, Littler Mendelson, P.C., Suite 3970 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

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

SHORT, Judge

After allegedly being harassed in the workplace by her supervisor, Jody Gilbert sued her employer, IMI Cornelius, Inc. (Cornelius), for sexual harassment, gender discrimination, and reprisal under the Minnesota Human Rights Act. On appeal, Gilbert argues the trial court erred in summarily dismissing her claims. We affirm.

D E C I S I O N

On appeal from summary judgment, this court examines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990), see Minn. R. Civ. P. 56.03 (setting forth trial court standard for summary judgment). Although we view the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

Gilbert argues the trial court improperly granted Cornelius summary judgment because her male supervisor leered at her and called her offensive names, and Cornelius mishandled her complaints. See Minn. Stat. § 363.01, subd. 41(3) (1998) (requiring employers to take appropriate action to stop sexual harassment); Tretter v. Liquipak Int'l, Inc., 356 N.W.2d 713, 715 (Minn. App. 1984) (holding combination of offensive comments, leering, and touching are actionable sexual harassment). But, for sexual harassment to be actionable, a plaintiff must show: (1) intentional, unwelcome sexual harassment sufficiently severe or pervasive to affect the conditions of employment or create an abusive working environment, and (2) that the employer knew or should have known about the harassment and failed to take timely and appropriate action. See Minn. Stat. § 363.01, subd. 41 (1998) (defining sexual harassment under Minnesota Human Rights Act); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986) (stating sexual harassment must be severe or pervasive); Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997) (defining plaintiff's prima facie case).

Although the supervisor's behavior may have been unwelcome sexual harassment, Gilbert did not complain to Cornelius about this behavior until four years after its commencement, or provide Cornelius with a written statement of the harassment until three months after Cornelius requested it. Moreover, before Gilbert voiced her complaints, Cornelius posted, distributed, and maintained anti-discrimination policies that defined a reporting method that could circumvent a supervisor, and provided harassment training sessions for employees and management. Once notified, Cornelius took prompt and timely action in response to the behavior by: (1) immediately telling Gilbert's supervisor to cease the offensive behavior; (2) giving the supervisor another copy of Cornelius's anti-discrimination policy; and (3) conducting an investigation and interviewing witnesses over a two-month period after receiving Gilbert's written statement.

Given these undisputed facts, Gilbert has not shown that Cornelius knew or should have known about the harassment, or that it failed to take prompt corrective action. See Cummings, 568 N.W.2d at 424 (noting employer is not strictly liable for harassment perpetrated by supervisor unless employer knew or should have known of harassment and employer failed to take action); cf. Burlington Indus., Inc. v. Ellerth, ___ U.S. ___, ___, 118 S. Ct. 2257, 2270 (1998) (holding employer is not liable when no tangible adverse employment action occurred, employer exercised reasonable care to prevent and correct harassing behavior, and employee failed to use employer's procedures to safeguard against harassment). Under these circumstances, the trial court properly dismissed Gilbert's sexual harassment claim against Cornelius as a matter of law.

II.

Gilbert also argues the trial court erred in granting summary judgment for her employer because she suffered gender discrimination and reprisal. Although Gilbert makes claims she was treated differently and reprimanded at work because she reported the sexual harassment, Gilbert is still employed by Cornelius, has been promoted, and has received a raise. Thus, Gilbert has not established that she suffered an adverse employment action. See Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 323-24, 327 (Minn. 1995) (holding plaintiff bears burden of showing he or she suffered adverse employment action when others did not). Under these circumstances, the trial court did not err by granting summary judgment and dismissing Gilbert's claims as a matter of law.

Affirmed.