Joseph J. Roby, Jr., Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent University of Minnesota, Duluth Branch)

Barbara A. Burke, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416 (for respondent Professor Randall Gordon)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.

Anne Yochum and Jennifer Elijah, students at the University of Minnesota, Duluth, brought an action against Professor Randall Gordon and the university alleging sexual harassment. The district court awarded summary judgment to Gordon and the university. Yochum and Elijah now appeal that judgment. Because there are no genuine issues of material fact and respondents are entitled to judgment as a matter of law, we affirm.

Subsequently, Gordon called her several times, gave her a birthday card, sent her an article and letter in which he tried to persuade her to date him, and encountered her on several occasions. She skipped class on one occasion. Elijah called him in November, again informing him that she was not interested. Elijah received a grade of A or A- in her class, which she felt was fair. Prior to winter quarter, Elijah mentioned to her advisor that a professor was "coming on" to her; he directed her elsewhere for assistance, if necessary.

Appellant Yochum enrolled in a class Gordon taught during the fall and winter quarters of the 1996-97 school year. On February 17, 1997, he met with her to discuss her research assignment. He handed her a letter very similar to the one he had given Elijah, and Yochum became upset. The next day he put his hand on her back and shoulder. She called him that day to indicate she was not interested. After confiding in another professor, who successfully urged her to report the incident, an investigation was conducted by Debra Peterson-Perlman from the university's Office of Equal Opportunity (OEO). The university's investigation was prompt and resulted in a warning, issued three days after Yochum met with Peterson-Perlman, to Gordon to have no further contact with Yochum. Gordon gave Yochum a grade of B or B+ for the class, which she felt may have been higher than she deserved.

In the spring of 1997, Elijah enrolled in a class that met on the same floor as Gordon's office. She encountered him six times in meetings that she believed he orchestrated. Elijah, who continued to find these contacts upsetting, attended peer counseling. She was also referred to Debra Peterson-Perlman who met with her on April 23, 1997, conducted an investigation, and, on April 25, 1997, advised Gordon that he could have no further contact with Elijah.

On May 6, Peterson-Perlman again met with Gordon, repeating that he should have no further contact with either Yochum or Elijah, and warning him that no retaliation would be tolerated. After a disciplinary hearing on June 2, Gordon was suspended without pay or benefits for fall quarter 1997. This lawsuit followed.

When reviewing an appeal from a summary judgment, an appellate court must determine whether any genuine issues of material fact exist and whether the district court erred in its interpretation of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, the court must view the evidence in the light most favorable to the party against whom the judgment was granted. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982).

The determinative question, however, is whether there is a genuine issue of material fact as to the second element of a prima facie case, which requires that the harassment be severe, persistent, or pervasive and substantially interferes with the education of appellants or creates an intimidating, hostile, or offensive educational environment. Minn. Stat. § 363.01, subd. 41; Cummings, 568 N.W.2d at 424; see In re Discipline of Peters, 428 N.W.2d 375, 381 (Minn. 1988) (recognizing pervasive problem of sexual harassment in academic setting). In considering this issue, courts are to examine the language and conduct by considering the "nature, frequency, intensity, location, context, duration, and object or target." Klink, 397 N.W.2d at 901.

In Peters, an attorney discipline action against the dean of a law school, the unwelcome sexual conduct included instances of the dean caressing the women's hair, putting his hands around and squeezing their waists or rib cages, putting his arm around their shoulders, pulling women towards his body, and making suggestive comments. 428 N.W.2d at 376-78. Likewise, in federal cases involving educational institutions, actions which were sufficient to constitute pervasive sexual harassment generally included explicit sexual comments or physical contact. See Chontos v. Rhea, 29 F. Supp.2d 931, 935-36 (N.D. Ind. 1998) (describing sexual harassment by professor in which he forcibly kissed and fondled student and had engaged in a number of similar unwelcome sexual advances in past); Douglas v. Dabney S. Lancaster Community College, 990 F. Supp. 447, 461-62 (W.D. Va. 1997) (holding evidence sufficient to defeat summary judgment where defendant made repeated sexual comments, propositioned plaintiff, and threatened plaintiff's career).

In this case, Gordon's conduct and contact, while inappropriate (and recognized as such by the university when it suspended Gordon for an academic quarter without pay or benefits), did not rise anywhere near the level of Peters, Douglas, or Chontos. Gordon's conduct did not constitute actionable sexual harassment as a matter of law.

Additionally, appellants cite a report by another student that Gordon had inappropriately hugged her, contending this constituted notice to the university. See id. Appellants provide an unsworn transcription by a lawyer of an interview with this student. A party opposing summary judgment must set forth facts that are admissible in evidence, and hearsay evidence is not admissible at trial and may not be considered in deciding a summary judgment motion. Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976).[2]

While it is not necessary to reach the issue of the university's responsibility in light of our finding that there was no actionable sexual harassment as a matter of law, we nonetheless conclude that there is no genuine issue of material fact as to UMD's responsibility and affirm the district court in all respects.

Affirmed.

[1] Appellants also contend that the significant punishment imposed by the university is insufficient because he was later promoted to full professor. The duty of the employer is to stop the harassment by taking timely and appropriate action. Minn. Stat. § 363.01, subd. 41(3); Continental Can Co. v. State, 297 N.W.2d 241, 249 (Minn. 1980). The university told Gordon to have no further contact with appellants and he complied. He forfeited pay and benefits, as required by the results of a disciplinary hearing. Appellants have not cited any law or authority recognizing the university as liable for harassment under these circumstances.

[2] Nor is this the only problem with relying on this incident as notice. The unsworn interview transcription also lacked foundation for admissibility and is excludable for that reason. See Hopkins v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991) (holding letter lacked foundation necessary for admissibility and should not be considered in summary judgment).