Assata Kenneh, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0174

Assata Kenneh,
Appellant,

vs.

Homeward Bound, Inc.,
Respondent.

Filed January 14, 2019
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CV-17-391

Gerald T. Laurie, Laurie Law & ADR, St. Louis Park, Minnesota (for appellant)

Marko J. Mrkonich, Emily A. McNee, Littler Mendelson, P.C., Minneapolis, Minnesota
(for respondent)

Leslie L. Lienemann, Culberth & Lienemann, LLP, St. Paul, Minnesota (for amicus curiae
Employee Lawyers Association of the Upper Midwest)

Frances E. Baillon, Baillon Thome Jozwiak & Wanta LLP, Minneapolis, Minnesota; and

Brian T. Rochel, Teske, Katz, Kitzer & Rochel, PLLP, Minneapolis, Minnesota (for amicus
curiae National Employment Lawyers Association Minnesota Chapter)

Justin D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota (for amicus
curiae Minnesota Association for Justice)

Considered and decided by Halbrooks, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the summary -judgment dismissal of her hostile -work-
environment claims under the Minnesota Human Rights Act (MHRA), Min n. Stat.
§§ 363A.01-.44 (2018), arguing that the district court erred by applying the incorrect legal
standard and failing to make inferences in her favor, and that this court should abandon the
“severe or pervasive” standard for hostile-work-environment claims. We affirm.
FACTS
Respondent Homeward Bound , Inc. is a nonprofit organization that operates
residential facilities for disabled persons. In October 2014, appellant Assata Kenneh
started working for Homeward Bound as an assistant program supervisor at Fernbrook
House. She continued to work for Homeward Bound on a part -time basis until February
2016, when she was promoted to the position of program resource coordinator. The
following month, Kenneh met Anthony Johnson, a maintenance coordinator for Homeward
Bound. Johnson provided maintenance services at Homeward Bound’s various locations,
and he and Kenneh occasionally interacted when he was performing work at her location.
Kenneh was uncomfortable around Johnson because she believed that his behavior was
inappropriate.
On April 5, 2016, Kenneh filed a complaint with human resources about Johnson’s
behavior. The complaint listed three specific incidents. First, Kenneh reported that, when
she started working at Fernbrook House , Johnson stopped by her office to introduce
himself and fix her desk. Kenneh claimed that Johnson started “talking sexually” and

3
licking his lips and told her she did not need to move out of the way because he “likes it
pretty all day and night.” On the second occasion, Johnson stopped by her office with a
wad of cash and stated that he “like[s] to” carry large sums of money. The two left her
office and went to the vending machine and to get leftover food from a coworker’s
retirement party. Johnson did not tak e any food, and when Kenneh asked him what he
liked to eat he responded , “Do you really want to know what I eat? I eat women.” The
third incident occurred at a gas station near Fernbrook House. Kenneh claimed that
Johnson pulled into the gas station and began to ask her questions about where she was
going and what she was studying in school. He left immediately after she did without
getting any gas. Kenneh reported the incidents to human resources because she believed
Johnson was “verbally inappropriate” with her.
Homeward Bound placed Johnson on paid suspension and interviewed both Kenneh
and Johnson. On April 18, the director of human resources sent Kenneh a letter stating that
the results of the investigation were inconclusive. The letter indicated that Johnson had
received additional training as a result of Kenneh’s complaints and that retraining would
continue on an ongoing basis. Finally, the letter said that Kenneh should immediately
report any future incidents of harassment . Kenneh did not file any additional complaints
with human resources, but asserts that she subsequently complained to her supervisor on
two occasions. She was dissatisfied with Homeward Bound’s response and on June 29
asked to transfer to a flex-schedule position to avoid seeing Johnson. The parties disagree
as to what happ ened next. Kenneh claims that Homeward Bound denied her request and
terminated her employment. Homeward Bound claims that Kenneh threatened to resign if

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she was not transferred to a flex schedule and that it subsequently denied her request and
accepted her resignation.
Kenneh filed a complaint , alleging claims under the MHRA based on sexual
harassment and reprisal. In addition to the incidents mentioned in the human -resources
complaint, Kenneh alleged that Johnson offered to cut and style her hair and would
frequently call her “beautiful” and “sexy.” She also claimed that Homeward Bound
terminated her position in retaliation for her complaint to human resources. Homeward
Bound moved for summary judgment, arguing that the alleged conduct did not meet the
standard for sexual harassment and that Homeward Bound took appropriate remedial
actions. Homeward Bound also argued that it was entitled to summary judgment on
Kenneh’s reprisal claim because she failed to establish a causal connection between her
complaint to human resources and any adverse employment action.
The district court granted Homeward Bound’s motion for summary judgment on
both claims. The district court determined that Johnson’s actions did not meet the standard
for sexual harassment. The district court further determined that Kenneh failed to establish
a causal connection between her complaint and any adverse employment action. This
appeal follows.
D E C I S I O N
We review summary-judgment decisions de novo. Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010). We “determine whether the
district court properly applied the law and whether there are genuine issues of material fact
that preclude summary judgment.” Id. The evidence is viewed in the light most favorable

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to the party against whom summary judgment was granted. STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76 -77 (Minn. 2002). A genuine issue of material fact
exists if a rational fact -finder, when considering the record as a whole, could find for the
non-moving party. Coursolle v. EMC Ins. Grp., Inc. , 794 N.W.2d 652, 657 (Minn. App.
2011), review denied (Minn. Apr. 19, 2011).
I.
To prevail on her claim of sexual harassment based on a hostile work environment,
Kenneh must show that
(1) she is a member of a protected group; (2) she was subject
to unwelcome harassment; (3) the harassment was based on
membership in a protected group; (4) the harassment affected
a term, condition or privilege of her employment; and (5) the
employer knew of or should have known of the harassment and
failed to take appropriate remedial action.
Goins v. W. Grp. , 635 N.W.2d 717, 725 (Minn. 2001). To establish that the harassment
affected a term, condition, or privilege of e mployment, Kenneh must show that the
harassment was “so severe or pervasive” as to alter the conditions of employment and
create a hostile working environment. Id. The Minnesota Supreme Court has determined
that
[t]he objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim did in fact perceive
to be so. In ascertaining 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 a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.

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Id. (quotations and citations omitted). There is a “high threshold” to establish actionable
harm based on sexual harassment. Cummings v. Koehnen , 568 N.W.2d 418, 424 (Minn.
1997).
Kenneh argues that the district court erred in granting summary judgment on her
hostile-work-environment claim. She contends that the district court failed to consider all
of the relevant circumstances and that , when the circumstances are properly viewed , they
establish that she experienced severe or pervasive sexual harassment. She argues that ,
instead of considering the totality of the circumstances, the district court impermissibly
relied on comparing the alleged conduct to prior cases. But the cases cite d by the district
court are instructive in distinguishing between conduct that meets the standard for sexual
harassment and conduct that is offensive but not actionable.
In Geist-Miller v. Mitchell, this court addressed what conduct constitutes actionable
harm. 783 N.W.2d 197, 203 (Minn. App. 2010). We observed that the appellant’s
harassment allegations primarily involved “inappropriate sexual banter and [ the]
unsuccessful pursuit of a relationship ,” which were the “types of conduct that lack the
severity and level of interference” required to establish severe or pervasive harassment. Id.
We distinguished between conduct that is “boorish, chauvinistic, and decidedly immature”
and that which is “physically threatening or intimidating.” Id. at 204 (quotation omitted).
We noted that the employer’s attempt to kiss the appellant and instances in which he
touched her hair and leg were more severe than the inappropriate remarks, but still did not
amount to actionable harm. Id. at 203. Finally, this co urt determined that the appellant’s

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assertions that the conduct made her uncomfortable, embarrassed, and upset were
insufficient to establish that the harassment was severe or pervasive. Id. at 204.
Here, Kenneh’s allegations relate primarily to Johnson making inappropriate
remarks and gestures toward her. Kenneh claims that Johnson would lick his lips whenever
he saw her and would call her “beautiful” and “sexy.” While these actions may be boorish
and immature, they do not rise to the level of actionable harm. See id. at 203-04 (noting
that “inappropriate sexual banter” does not constitute actionable harm). And , as noted
above, the fact that Kenneh was “uncomfortable, embarrassed, and upset” about Johnson’s
behavior does not render the conduct actionable sexual harassment.
But even if Kenneh’s allegations rose to the level of severe or pervasive sexual
harassment, summary judgment was properly granted because Homeward Bound took
remedial action when it learned of the harassment allegations. In order to establish a claim
based on a hostile work environment , a plaintiff must show that the employer was aware
of the harassment and failed to take remedial action. Goins, 635 N.W.2d at 725. Here,
Kenneh’s comp laint to human resources reported three incidents of alleged sexual
harassment. Kenneh reported that on one occasion Johnson started “talking sexually” and
licked his lips, on another he told her he liked to “eat wome n,” and on a third occasion he
spoke with her at a gas station near Fernbrook House and asked her what she was studying
in school. Her report did not include that he would make an inappropriate licking gesture
whenever he saw her or that he referred to her as “beautiful” and “sexy.”
Homeward Bound investigated the complaint and subsequently retrained Johnson
on the sexual-harassment policy. It also indicated that it would provide additional training

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on an ongoing basis and urged Kenneh to report any future incidents. Kenneh claims that
she complained to her supervisor on two other occasions, but did not file any additional
complaints. And she was unable to identify when she complained to her supervisor.
Kenneh argues that Homeward Bound failed to interview other employees who would have
supported her allegations. But Kenneh reported to human resources that there were no
witnesses to the incidents and that , while she had told one other employee about the
situation, she had not discussed it with her in detail. On this record, Kenneh has not made
a sufficient showing that Homeward Bound was aware of ongoing harassment and failed
to take appropriate remedial action.
Finally, Kenneh and the amici curiae argue that we should abandon the severe -or-
pervasive standard for sexual harassment. They argue that the Minnesota Supreme Court
impermissibly read the “severe or pervasive” language into the statutory definition of
sexual harassment, which does not include the language. See Minn. Stat. § 363A.03, subd.
43 (defining “sexual harassment”). They are correct that the definition of “sexual
harassment” does not include the “severe or pervasive” standard. Id. But this court is
bound by supreme court precedent and does not have the authority to abandon a standard
established by the supreme court. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.
App. 1987) (“[T]he task of extending existing law falls to the supreme court or the
legislature, but it does not fall to this court. ”), review denied (Minn. Dec. 18, 1987) .
Accordingly we decline to abandon the severe-or-pervasive standard.

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II.
Kenneh argues that the district court erred by granting summary judgment on her
reprisal claim. Th e MHRA prohibits reprisal against an employee who files a complaint
about an unfair discriminatory practice. Minn. Stat. § 363A.15. A prima facie case of
reprisal requires a showing that the complainant engaged in statutorily protected conduct,
that the employer took adverse action against the complainant, and that a causal connection
exists between the two. Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548
(Minn. 2001).
Kenneh argues that the district court erred in determining that she failed to establish
a prima facie case of a causal connection between her complaint and termination of
employment. The district court determined that the claimed causal connection was based
solely on the temporal connection —a three -month period —between her complaint to
human resources and her termination. A temporal connection alone is generally
insufficient to establish a prima facie case of a causal connection. See Smith v. Allen Health
Sys., Inc., 302 F.3d 827, 832 (8 th Cir. 2002) (stating that generall y more than a temporal
connection is required to create a genuine factual issue on reprisal); see also Kipp v. Mo.
Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (observing that an
“interval of two months . . . dilutes any inference of causation”); Rasmussen v. Two
Harbors Fish Co., 832 N.W.2d 790, 796 (Minn. 2013) (stating that the court has “relied on
federal law” in interpreting the MHRA and will “continue to do so”). Kenneh claims that
she complained to her supervisor “about two tim es about it” but was unable to identify

10
when the conversations occurred and acknowledged that she did not file another formal
complaint.
Kenneh asserts that the only reason for the interval between her complaint and
termination is that Homeward Bound “kne w it would face a retaliation lawsuit if it could
not find some pretext for letting her go” and “waited to terminate her until it found the right
opportunity.” She contends that Homeward Bound used her request to change schedules
as a pretext to terminate her employment and claim that she resigned and that it had been
waiting to do so since her initial complaint. But Kenneh does not cite to anything in the
record to support this argument; it is based merely on her own conjecture. To defeat a
summary-judgment motion, a party cannot rely on “general assertions” but rather “must
demonstrate that specific facts exist which create a genuine issue for trial.” Johnson v. Van
Blaricom, 480 N.W.2d 138, 140 (Minn. App. 1992). Kenneh fails to point to any specific
facts in the record to support her claim. Accordingly, the district court did not err in
granting summary judgment in favor of Homeward Bound on the reprisal claim.
Affirmed.