Barbara Henry,

1
STATE OF MINNESOTA

IN SUPREME COURT

A21-0004

Court of Appeals Moore, III, J.
Concurring in part, dissenting in part,
Anderson, J, Gildea, C.J.

Barbara Henry,

Respondent/Cross-Appellant,

vs. Filed: February 8, 2023
Office of Appellate Courts
Independent School District #625,
a/k/a Saint Paul Public Schools,

Appellant/Cross-Respondent.
________________________

Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., Bloomington, Minnesota,
for respondent/cross-appellant.

Sarah E. Bushnell, Jeffrey M. Markowitz, Christine W. Chambers, Arthur, Chapman,
Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for appellant/cross-respondent.

Keith Ellison, Attorney General, Katie C. Olander, Kelly S. Kemp, Assistant Attorneys
General, Saint Paul, Minnesota, for amicus curiae Commissioner, Minnesota Department
of Human Rights.

Mark R. Bradford, Colin S. Seaborg, Bassford Remele, P.A, Minneapolis, Minnesota, for
amicus curiae Minnesota Defense Lawyers Association.

Laura A. Farley, Nichols Kaster, PLLP, Minneapolis, Minnesota;

Brian T. Rochel, Kitzer Rochel, PLLP, Minneapolis, Minnesota; and

2
Elizabeth M. Binczik, Fabian May & Anderson, PLLP, Minneapolis, Minnesota, for
amicus curiae National Employment Lawyers Association – Minnesota Chapter.

Leslie L. Lienemann, Celeste E. Culberth, Culberth & Lienemann, LLP , Saint Paul,
Minnesota; and

Justin D. Cummins, Cummins & Cummins , LLP, Minneapolis, Minnesota, for amicus
curiae Employee Lawyers’ Association for the Upper Midwest.
________________________

S Y L L A B U S

1. The employee did not create a genuine issue of material fact on her claim of
a hostile work environment based upon age under the Minnesota Human Rights Act, Minn.
Stat. §§ 363A.01 –.50 (2022), when the conduct alleged was not sufficiently severe or
pervasive for a reasonable person to find the work environment to be hostile or abusive.
2. To establish an adverse employment action in the form of constructive
discharge as part of a discrimination claim under the Minnesota Human Rights Act, an
employee is not necessarily required to prove the existence of a hostile work environment,
but must demonstrate that the employer’s actions were intended to force the employee to
quit—as the employee did here—either by demonstrating (1) that the employer deliberately
created intolerable working conditions with intent to force the employee to quit, or (2) that
resignation was a reasonably foreseeable consequence of the employer’s discriminatory
actions.
3. The employee did not establish the adverse employment action element of a
claim of age-based disparate treatment under the Minnesota Human Rights Act by relying
on the cumulative effect of the employer’s actions.
3
Affirmed in part and reversed in part.
O P I N I O N
MOORE, III, Justice.
This case arises out of an age-based employment discrimination claim under the
Minnesota Human Rights Act. Minn. Stat. § 363A.08, subd. 2 (2022). Respondent/cross-
appellant Barbara Henry alleged that she suffered a hostile work environment and disparate
treatment culminating in constructive discharge during her employment at appellant/cross-
respondent Saint Paul Public Schools (School District). The district court granted summary
judgment for the School District on both claims, ruling in part that Henry had “voluntarily
resigned her position without taking advantage” of the School District’s anti-discrimination
policies. The court of appeals reversed summary judgment on the disparate treatment claim
but affirmed summary judgment on the hostile work environment claim. We affirm the
court of appeals’ conclusions that (1) the School District’s alleged actions do not rise to
the level of pervasiveness or severity needed to support a hostile work environment claim,
and (2) a genuine issue of material fact exists as to whether Henry was constructively
discharged. We reject, however, the court of appeals’ consideration of the “cumulative
effect” of the School District’s alleged actions in analyzing the disparate treatment claim.
Therefore, we affirm in part and reverse in part.
FACTS
The facts giving rise to this lawsuit are largely undisputed. Barbara Henry worked
as a network technician for the School District from 1997 to 2017. Henry was on the
infrastructure team and worked primarily on maintaining the School District’s wireless
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connectivity and wide area network. She was promoted to the position of network
technician II in 2007 at the age of 47. She received excellent performance reviews for most
of her career with the School District, and former supervisors and colleagues spoke highly
of her work ethic and work performance.
In 2014, the School District hired Idrissa Davis to serve as the new Deputy Chief of
Technology Services. Davis had a background in corporate information technology
services and sought to use that experience to make the School District’s technology
department more e fficient. In 2016, Davis brought in Sonya Zuker as the Director of
Production Services. Around the same time, Davis hired Vicky Shine to be the Technology
Services Manager. The reporting hierarchy after Shine began working for the School
District was as follows: Henry reported to Shine, Shine reported to Zuker, and Zuker
reported to Davis.
In fall 2016, Zuker and Shine conducted the first performance reviews of the
infrastructure team since Davis was hired. The evaluations rated whether employees’
performance was below standards, met standards, or exceeded standards. For the first time
in her 19- year employment with the School District, Henry received a below -standards
rating. Her performance review identified specific examples of deficiencies, including
failing to meet deadlines, lack of visibility during work hours, failing to use the School
District vans for travel (as required by the School District’s policy), and speaking to Zuker
in an agitated voice after being excluded from a training session.
On November 4, 2016, Zuker recommended placing Henry on a performance
improvement plan (PIP ) due to the below-standards performance review. The letter
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explaining the recommendation stated that Henry was “managing a fraction of the required
work” for her position and “[o ]n several occasions” had “been resistant to : adopting
processes, providing additional assistance to non-wireless projects, completing tasks as
assigned or within established parameters,” and meeting deadlines.
On November 22, 2016, Zuker and Shine gave Henry another written performance
review, again giving her an overall below-standards rating. This performance review
identified specific examples of the deficiencies that led to the below-standards ratings,
including missing deadlines, not responding to requests, missing a meeting, continuing to
use her personal vehicle, and failing to share her knowledge with coworkers.
The same day, Zuker delivered a PIP to Henry, requiring the following
improvements: (1) “prioritize and manage multiple tasks” and “[r]emain focused on the
task at hand so that it can be completed in a timely manner but also maintain flexibility to
switch gears if necessary and reprioritize as things come up;” (2) “[b]e able to meet
deadlines to 100% completion;” (3) “[p]roactively identify knowledge gaps and initiate
solutions on how to close those gaps;” (4) “remain visible throughout the day and inform
[manager] of her whereabouts if outside of the office;” (5) “[e]nsure attendance for all
scheduled meetings; ” (6) “use remote tools to troubleshoot wireless and phone issues
whenever possible;” (7) “initiate and request additional training and resources to efficiently
perform all job duties;” and (8) “coordinate the cross training and transfer of knowledge to
members of the team when requested to do so.”
In April 2017, Shine completed a follow-up review of Henry’s performance. As in
the review of only 5 months earlier, Henry received a below-standards rating overall. The
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post-PIP review again identified specific examples of Henry’s performance deficiencies,
including gaps in knowledge, problems following through on requests, missed deadlines,
issues with visibility and abiding by the required work schedule, the continued use of her
personal vehicle, and the failure to follow through on career development and training
opportunities. Based on these deficiencies, Shine, Henry’s direct supervisor,
recommended that the School District terminate Henry’s employment.
On May 5, 2017, Dav is wrote a letter to Henry explaining that he was considering
terminating her employment for failing to meet the terms of the PIP. The letter advised
Henry that before a termination decision was made, she could present a statement in her
defense directly to Davis with her union representative present. Instead, after consulting
with her union steward, Henry retired before the meeting occurred. She was 57 years old.
After Henry resigned, she filed a timely charge of age discrimination with the
Minnesota Department of Human Rights
1 and then filed a complaint in district court.
Henry alleged in her complaint that the School District engaged in disparate-treatment age
discrimination in violation of the Minnesota Human Rights Act (Human Rights Act) when
it constructively terminated her in 2017. See Minn. Stat. § 363A.08, subd. 2. Henry also
claimed that the School District’s discriminatory actions “created a hostile work
environment.”

1 The Minnesota Department of Human Rights investigated Henry’s claims but
ultimately dismissed Henry’s charge. The Department found no probable cause to
conclude that discrimination had occurred because Henry failed to establish that the alleged
discriminatory conduct was an adverse employment action.
7
During the discovery process, Henry’s counsel deposed several of Henry’s former
supervisors and coworkers. Zuker, who supervised Henry’s direct supervisor, explained
that Davis used PIPs to force employees out by either forcing them to resign or terminating
them. Zuker stated that Henry was “specifically target[ed]” for “performance” issues and
that Davis instructed her “to make it look like [Henry] was not performing” by writing the
PIP in a way that Henry could not achieve. Zuker specifically testified about notes she
took during a meeting with Davis in March 2017 in which he instructed her to make
Henry’s PIP “unrealistic” and to pile on extra work so Henry would no t pass the
performance evaluation, which would ultimately lead to her termination. In her notes from
this meeting, Zuker wrote “[Henry]— out by May—rehire.” Zuker testified that, although
she did not believe the statements made in Henry’s performance reviews were necessarily
false, she agreed they were “exaggerated,” and that Henry’s PIP was “unwarranted.”
Zuker testified that she did not recall Davis ever saying anything about Henry’s age,
but recalled that on one occasion, Davis instructed her not to allow Henry to participate in
a training. Zuker explained that this decision was made because Henry was being
“performance managed, so rather than train [her] up so [she] can perform better,” Davis
instructed Zuker to “just take away formal training and not spend the money on [her].”
Zuker also stated about the department generally:
If I look at the track record of who is —who was asked to leave or forced to
leave, they are all of our older staff, you know, for whatever reason, whether
it’s salary, whether it’s specifically age, all of our staff who were forced out,
whether to make their lives miserable or because they were picked out, they
are all of our older staff.

8
A former coworker who supervised Henry for a year testified that he believed Davis
was targeting older employees so he could bring in younger employees. He also testified
that he believed Davis discriminated against Henry based on her age and that while he
managed Henry, her work was exceptional. He recalled Davis saying that “problems
within the department are because people are too old and that they’re overpaid white
people.” This former coworker also testified that Davis created an environment where
employees were reluctant to report discriminatory conduct for fear of retaliation.
Another of Henry’s former supervisors testified that there was a pattern of
management trying to get rid of older employees with many years of service and replacing
them with younger employees. He described Davis’s management style as “hostile.” He
also testified that during the 15 years he managed Henry, she performed her job at a level
that “exceed[ed] standards” in “all categories.”
A different former coworker also believed there was “a pattern” of Davis getting rid
of older employees to replace them with younger employees. She stated that “every month
or every few months,” a different person over 40 was “gone.” She further testified that
Davis specifically targeted Henry and that Henry’s placement on a PIP was “unfounded,”
noting that Henry was being disciplined for things other employees routinely did.
Specifically, she explained that other employees were driving their personal vehicles rather
than the School District’s van, but Henry was “the only one that was singled out for it.”
She also acknowledged that it was common for Davis “to belittle or mock” and yell at
people during meetings.
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Henry believed that she was being discriminated against based on her age. She
explained that this belief was based on being at the top of her pay scale and because budget
cuts were anticipated. She further testified that she heard Davis remark that most of the
network team was “nearing retirement, so within the next five years, you know, there will
be a turnover.” Henry also described an incident during an infrastructure team meeting
when Davis said that “long-term employees should consider retirement and travel like his
parents.” Henry testified that she believed Davis was looking directly at her when he made
this comment.
The School District moved for summary judgment on Henry’s age discrimination
claims. The School District argued that Henry’s constructive-discharge-based disparate
treatment claim is untenable because she neither suffered an adverse employment action
nor took advantage of the School District’s anti-discrimination policies by reporting her
concerns before retiring. The School District also argued that Henry could not show that
she experienced a hostile work environment because the criticism that she received at work
falls short of the legal standard for unwelcome harassment. Henry responded that there are
several key fact disputes that preclude summary judgment. She also asserted that “there is
substantial evidence that she was forced to quit her position and that she would have been
terminated no matter how she performed.”
The district court granted summary judgment to the School District, ruling that
Henry “failed to show the existence of a fact dispute” that would preclude summary
judgment. The court concluded that Henry “voluntarily resigned her position without
taking advantage of [the School District’s] anti-discrimination policies,” causing her claim
10
to fail under the Human Rights Act. In reaching this conclusion, the court relied on federal
precedent, stating that a plaintiff cannot establish constructive discharge if she quits
without giving her employer a reasonable chance to remedy the mistreatment or work out
the problem. See Blake v. MJ Optical, Inc., 870 F.3d 820, 826 (8th Cir. 2017). Because
Henry “did not pursue any administrative remedy that was available to her,” the court
determined that her “claim cannot survive on these facts, no matter how egregious the
underlying circumstances that she is alleging.” In addition, while acknowledging that
Henry had “submitted evidence that purports to show a culture of systematic age
discrimination” in her work environment, the court determined that Henry had “not shown
how she was the victim of any workplace behaviors that rose to the level of harassment
based on her age.”
The court of appeals affirmed in part, reversed in part, and remanded. Henry v.
Indep. Sch. Dist. # 625, 964 N.W.2d 667, 681 (Minn. App. 2021). The court of appeals
concluded that Henry had “presented sufficient evidence of disparate-treatment age
discrimination to withstand summary judgment” under the McDonnell Douglas
burden-shifting framework. Id. at 681; see McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Specifically, the court of appeals concluded that she had established a prima
facie case of age discrimination under McDonnell Douglas by producing sufficient
evidence to establish that she suffered an adverse employment action in two different ways:
first, by presenting evidence that she had been constructively discharged; and second, by
“the cumulative evidence” of the School District’s actions. Henry, 964 N.W.2d at 678–79.
11
The court of appeals rejected the School District’s argument that the affirmative
defense we adopted in Frieler v. Carlson Marketing Group, Inc., 751 N.W.2d 558, 570–
71 (Minn. 2008), precludes Henry from claiming a constructive discharge to support her
disparate treatment claim.2 In doing so, the court of appeals explained that “the Minnesota
Supreme Court has declined to extend the Frieler defense beyond
hostile-work-environment claims.” Henry, 964 N.W.2d at 679 (citing Schmitz v. U.S. Steel
Corp., 852 N.W.2d 669, 678 (Minn. 2014)). And the court of appeals had no need to apply
the Frieler defense to the hostile work environment claim, concluding that the evidence
was insufficient to establish the existence of an age-based hostile work environment
because the conduct at issue “[did] not rise to the level of pervasiveness or severity
required” to support a hostile work environment claim. Id. at 681.
We granted the School District’s petition for review on four issues: (1) whether a
hostile work environment is an element of constructive discharge; (2) whether the
affirmative defense we recognized in Frieler applies to constructive discharge claims;
(3) whether we should recognize “cumulative” adverse employment actions “as an
independent theory apart from hostile work environments and constructive discharge”; and

2 In Frieler, we adopted an affirmative defense—first recognized in two U.S.
Supreme Court cases —for employers facing claims of “workplace supervisor sexual
harassment” under the Human Rights Act. 751 N.W.2d at 568–69; see Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 764–65 (1998); Faragher v. City of Boca Raton, 524 U.S.
775, 804–08 (1998). “In circumstances when no tangible employment action is taken
against the employee,” an employer may raise an affirmative defense to liability or
damages for supervisor harassment if the employer establishes: (1) the employer exercised
reasonable care to prevent and correct promptly any harassing behavior, and (2) the
employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer to avoid harm. Frieler, 751 N.W.2d at 570–71.
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(4) if we recognize the theory of “cumulative” adverse employment actions, whether the
Frieler affirmative defense applies to that theory. We also granted Henry’s request for
conditional cross-review on the issue of whether she presented sufficient evidence of an
age-based hostile work environment to survive summary judgment.
ANALYSIS
This case comes to us on appeal from the district court’s grant of summary judgment
in favor of the School District on Henry’s age-based disparate treatment and hostile work
environment claims under the Human Rights Act, Minn. Stat. §§ 363A.01–.50 (2022). We
review a district court’s summary judgment decision de novo. Kenneh v. Homeward
Bound, Inc., 944 N.W.2d 222, 228 (Minn. 2020). In doing so, we examine whether there
are any genuine issues of material fact and whether the district court properly applied the
law. Id. We view the evidence in the light most favorable to the nonmoving party—here,
Henry—and resolve all doubts and factual inferences against the moving party —here, the
School District. See Warren v. Dinter, 926 N.W.2d 370, 375 (Minn. 2019). We do not
weigh evidence or assess credibility at the summary judgment stage; instead, we ask
whether “reasonable persons might draw different legal conclusions from the evidence
presented.” Kenneh, 944 N.W.2d at 228. If so, summary judgment must be denied. Id.
We have noted that summary judgment is a “blunt instrument,” and we are cautious not to
“usurp[] the role of a jury when evaluating a claim on summary judgment.” Id. at 232
(citation omitted) (internal quotation marks omitted). “The construction of the Human
Rights Act’s provisions is a question of law that we review de novo.” Id. at 228.
13
The Human Rights Act provides that an employer may not, because of age,
“discharge an employee,” or “discriminate against a person with respect to hiring, tenure,
compensation, terms, upgrading, conditions, facilities, or privileges of employment.”
Minn. Stat. § 363A.08, subd. 2(2)–(3). In construing the Human Rights Act, we look to
both Minnesota case law and federal case law arising under similar federal statutes, Title
VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act (ADEA).
Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999); Dietrich v.
Canadian Pac., Ltd., 536 N.W.2d 319, 323 n.3 (Minn. 1995). Federal case law, however,
does not “bind Minnesota courts in the application of [the Human Rights Act].” Kenneh,
944 N.W.2d at 231. “Historically, the Human Rights Act has provided more expansive
protections to Minnesotans than federal law.” Id. at 229.
In addressing the issues for which we granted review, we begin with the hostile
work environment claim because both the School District and Henry petitioned for our
review on aspects of the court of appeals’ hostile work environment analysis. In Part I, we
address Henry’s challenge to the court of appeals’ affirmance of summary judgment on her
hostile work environment claim. In Part II, we address the concept of constructive
discharge as part of a disparate treatment claim, beginning with the standard applicable to
establish an adverse employment action —including its relationship to the existence a
hostile work environment—and then applying that standard to this case. Finally, in Part
III, we address whether the “cumulative effect” of an employer’s actions can constitute an
alternative theory for establishing a disparate treatment claim.
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I.
Henry challenges the court of appeals’ determination that summary judgment in the
School District’s favor was proper on her hostile work environment claim. Henry alleges
that, acting on Deputy Chief Davis’s instructions, her supervisors repeatedly singled her
out for trivial conduct an d placed her on a n intentionally unachievable PIP based on
performance issues that were false or exaggerated. Henry maintains that these actions by
School District management amounted to age-based harassment that was sufficiently
severe and pervasive so as to create a hostile work environment and for her claim to survive
summary judgment.
Generally, “verbal and physical harassment directed at an employee . . . may
constitute discrimination in the terms and conditions of employment” under the Human
Rights Act. LaMont v. Indep. Sch. Dist. # 728, 814 N.W.2d 14, 21 (Minn. 2012). We have
never addressed an age-based hostile work environment claim, but we have considered
hostile work environment claims in the sexual harassment/discrimination context. See,
e.g., Kenneh, 944 N.W.2d at 231–32; Rasmussen v. Two Harbors Fish Co., 832 N.W.2d
790, 798–99 (Minn. 2013); Frieler, 751 N.W.2d at 565. In that context, we require
plaintiffs alleging a hostile work environment to show: (1) they are a member of a group
that has protected status under the Human Rights Act; (2) they were subject to unwelcome
harassment; (3) the harassment was based on their membership in a protected group; and
(4) the harassment affected a term, condition, or privilege of their employment. Frieler,
751 N.W.2d at 571 n.11. The discriminatory conduct creating the hostile work
environment must be so severe or pervasive so as “to alter the conditions of employment
15
and create an abusive working environment.” Kenneh, 944 N.W.2d at 230. The
“harassment must be more than minor: ‘the work environment must be both objectively
and subjectively offensive in that a reasonable person would find the environment hostile
or abusive and the victim in fact perceived it to be so.’ ” Id. at 230–31 (quoting LaMont,
814 N.W.2d at 22). Federal courts addressing hostile work environment claims based on
age apply the same severe-or-pervasive standard and similarly require the elements listed
above in cases involving alleged supervisor harassment. See, e.g. , Rickard v. Swedish
Match N. Am., 773 F.3d 181, 184–85 (8th Cir. 2014).
Though our cases interpreting the Human Rights Act have used the same “severe -
or-pervasive framework” as federal courts interpreting federal law, we have st ressed that
our reliance on federal case law “does not mean that the conclusions drawn by those courts
in any particular circumstances bind Minnesota courts in the application of our state
statute.” Kenneh, 944 N.W.2d at 231. Specifically, we have explained that our severe-or-
pervasive standard “must evolve to reflect changes in societal attitudes towards what is
acceptable behavior in the workplace.” Id. “Each case must stand on its own
circumstances,” and fact-finders “must consider the totality of the circumstances” in each
case, “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.” Id. at 231 (citation
omitted) (internal quotation marks omitted). Thus, “[p]ervasive incidents, any of which
may not be actionable when considered in isolation, may produce an objectively hostile
environment when considered as a whole.” Id. at 232.
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The court of appeals affirmed summary judgment for the School District on Henry’s
hostile work environment claim, concluding that the conduct at issue did not rise to the
level of pervasiveness or severity required to demonstrate that the alleged harassment
affected a term, condition, or privilege of her employment. Henry, 964 N.W.2d at 681.
We agree. Though the question of whether alleged harassment is sufficiently severe or
pervasive is generally a question of fact for the jury, see Kenneh, 944 N.W.2d at 232, a
reasonable juror could not conclude that the evidence here, when viewed objectively,
demonstrates that Henry suffered verbal or physical harassment so severe or pervasive that
it “alter[ed] the conditions of employment and create[d] an abusive working environment.”
See id. at 230. Henry testified that Davis, the Deputy Chief of Technology Services, was
trying to get rid of her due to her age, but she also testified that Davis never yelled at her
or otherwise acted unprofessionally toward her. None of Henry’s colleagues recalled Davis
ever being unprofessional toward her. While Henry and Henry’s supervisor both testified
to hearing Davis make age-related comments in the workplace, a reasonable juror could
not conclude that these comments amounted to severe or pervasive harassment of Henry.
Absent some more objectively hostile or abusive behavior directed at Henry, what
she is left with are the performance-related measures the School District took against her.
Though, as we discuss below, these measures were seemingly designed to make her quit,
they are a different form of discrimination than the type required to establish a hostile work
environment. Notably, Henry did not allege any age-based verbal or physical harassment.
Instead, she alleged that due to her age, the School District unfairly placed her on a PIP
with the purpose of forcing her to quit. This allegation is more accurately characterized as
17
aged-based disparate treatment than a hostile work environment, which is a different theory
of discrimination.3
We therefore affirm the court of appeals’ determination that summary judgment was
proper on Henry’s hostile work environment claim because the School District’s conduct
in relation to her was not sufficiently severe or pervasive when viewed in the light most
favorable to Henry.
II.
Having found that Henry’s hostile work environment claim fails, we next turn to
Henry’s claim of age-based disparate treatment. The School District challenges the court
of appeals’ conclusion that Henry presented sufficient evidence to establish a prima facie
case of age-based disparate treatment. See Henry , 964 N.W.2d at 680. Specifically, the
School District challenges whether Henry established an adverse employment action ,

3 The dissent erroneously concludes that Henry never presented a theory of disparate-
treatment age discrimination to the district court. Although Henry’s complaint does assert
a single count of age discrimination in violation of the Human Rights Act, we construe
pleadings liberally, “in civil rights cases especially.” L.K. v. Gregg, 425 N.W.2d 813, 819–
20 (Minn. 1988). There is no bar to pleading alternative or overlapping theories of
liability— here an age discrimination claim based on disparate treatment and an age
discrimination claim based on a hostile work environment. The district court considered
both theories, and the court of appeals considered both theories. After reviewing “the
complaint and record,” the court of appeals explained that Henry raised “two theories of
discrimination,” specifically determining that she “sufficiently alleged a disparate-
treatment age-discrimination and hostile-work-environment claim.” Henry, 964 N.W.2d
at 675 & n.2. Because the School District did not challenge this determination in its petition
for review and has forfeited this issue, we consider both theories of age discrimination. See
In re Estate of Figliuzzi, 979 N.W.2d 225, 231 n.4 (Minn. 2022) (noting that issues not
raised in a petition for review are forfeited); see also Hagen v. Burmeister & Assocs., Inc.,
633 N.W.2d 497, 501 (Minn. 2001) (treating a “theory of recovery” that was litigated and
not challenged “as if it had been pled”).
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which is one element of a disparate treatment claim. We start with the legal standards that
govern Henry’s disparate treatment claim and then move to an analysis of the specific
issues raised to our court in the constructive discharge context.
We analyze Henry’s claim of disparate -treatment age discriminati on under the
framework set out in McDonnell Douglas, 411 U.S. 792. See Hanson v. Dep’t of Nat. Res.,
972 N.W.2d 362, 372– 73 (Minn. 2022) ; Feges v. Perkins Rests., Inc., 483 N.W.2d 701,
710–11 (Minn. 1992) (applying McDonnell Douglas to an age discrimination claim under
the Human Rights Act). This framework applies on summary judgment when a plaintiff
relies on circumstantial rather than direct evidence of age discrimination. 4 Hanson, 972
N.W.2d at 372–73.
There are three steps in the McDonnell Douglas burden-shifting framework: first,
the plaintiff must establish a prima facie case of discrimination; second, the employer must
articulate a legitimate, nondiscriminatory reason for its conduct; and third, the plaintiff
must prove that the reason offered by the defendant is merely a pretext for discrimination.

4 The court of appeals rejected Henry’s claim that she presented sufficient direct
evidence of age discrimination to survive summary judgment. Henry, 964 N.W.2d at 676.
The court of appeals concluded that, “[g]iving Henry the benefit of all reasonable
inferences supported by the evidence, . . . the record does not contain direct evidence of
age discrimination sufficient to withstand summary judgment.” Id. Henry challenges this
conclusion in her briefing here; however, she did not request review of that issue in her
request for conditional cross-review. Therefore, the sufficiency of Henry’s direct evidence
is not properly before us, and we decline to reach that issue. See Garcia-Mendoza v. 2003
Chevy Tahoe, 852 N.W.2d 659, 668 (Minn. 2014). Nor did Henry challenge the application
of the McDonnell Douglas framework itself to her claim. We recently acknowledged the
“debate about the continuing viability of the McDonnell Douglas framework.” Hanson,
972 N.W2d at 377. However, because Henry did not raise this issue, we apply the
McDonnell Douglass framework to her claim.
19
Id. at 373. Neither the analys es of the district court nor the court of appeals proceeded
beyond the first step. We therefore focus our analysis on the question of whether Henry
submitted sufficient evidence to establish a prima facie case of disparate-treatment age
discrimination.
To establish a prima facie case of age discrimination based on disparate treatment,
a plaintiff is generally required to show that: (1) she belongs to a protected class; (2) she is
qualified for the position; (3) she suffered an adverse employment action; and (4)
circumstances exist that give rise to an inference of discrimination. See Dietrich, 536
N.W.2d at 323–24; Feges, 483 N.W.2d at 711; Rahlf v. Mo-Tech Corp., Inc., 642 F.3d 633,
637 (8th Cir. 2011). The School District does not contest that the evidence, when viewed
in the light most favorable to Henry, would support a finding that Henry satisfies elements
(1), (2), and (4). 5 The School District challenges the court of appeals’ conclusion that a
genuine issue of material fact exists as to whether Henry presented sufficient evidence to
create a fact issue regarding element (3), that she suffered an adverse employment action.
Henry, 964 N.W.2d at 679.
The School District argues that Henry’s prima facie case fails because she
voluntarily resigned her position and did not suffer any tangible adverse employment

5 Whether Henry satisfied the fourth element, an inference of discrimination, was
disputed before the court of appeals. The court of appeals concluded that the record
supports a reasonable inference that age discrimination motivated the School District’s
conduct towards Henry. Henry, 964 N.W.2d at 680. The School District did not petition
for review on this issue, nor does it raise that issue in its briefing. We therefore accept the
court of appeals’ conclusion on that element without addressing that issue and instead focus
on the disputed adverse employment action element.
20
action. Henry maintains, and the court of appeals agreed, that a reasonable juror could
conclude that she suffered an adverse employment action in the form of constructive
discharge. See id. We turn to that issue now, first addressing the elements of constructive
discharge and then applying the framework to Henry’s age- based disparate treatment
claim.
A.
In the limited number of cases when we have discussed the concept of adverse
employment actions, we have generally followed federal law and required plaintiffs to
demonstrate “some tangible change in duties or working conditions” that leads to “some
material employment disadvantage.” Bahr v. Capella Univ. , 788 N.W.2d 76, 83 (Minn.
2010). “[M]inor changes in working conditions are insufficient.” Id.; see also Kerns v.
Cap. Graphics, Inc., 178 F.3d 1011, 1016–17 (8th Cir. 1999) (explaining that “[m]inor
changes in duties or working conditions that cause no materially significant disadvantage
do not meet the standard of an adverse employment action”). Examples such as
“[t]ermination, cuts in pay or benefits, and changes that affect an employee’s future career
prospects are significant enough to meet the standard, as [are] circumstances amounting to
a constructive discharge.” Kerns, 178 F.3d at 1016 (internal citation omitted); see also
Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 825 (8th Cir. 2006) (“Just like any other
discharge, a constructive discharge is an adverse employment action.”).
Henry maintains that she satisfies the adverse employment action element of her
disparate treatment claim because she was constructively discharged. “Under the
constructive discharge doctrine, an employee’s reasonable decision to resign because of
21
unendurable working conditions is assimilated to a formal discharge for remedial
purposes.” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). Without addressing the
merits of Henry’s constructive discharge claim, we agree with federal courts and with
Henry that a plaintiff can satisfy the adverse employment action element of a disparate
treatment claim under the Human Rights Act by demonstrating constructive discharge.
Our court has had few opportunities to discuss constructive discharge beyond
general principles, but we have previously described constructive discharge as requiring:
(1) objectively intolerable working conditions that are (2) created by the employer with the
intention of forcing the employee to quit. See Navarre v. S. Wash. Cnty. Schs., 652 N.W.2d
9, 32 (Minn. 2002). We have not, however, discussed these elements in detail. We now
take this opportunity to do so, and address each of these elements in turn.
1.
We first turn to the element of objectively intolerable working conditions, including
whether those conditions must be connected to an assertion of a hostile work environment
to establish a constructive discharge under the Human Rights Act. Though we are not
bound by federal law in our application of the Human Rights Act, see Kenneh, 944 N.W.2d
at 231, it provides a useful starting point given our limited case law on constructive
discharge. And we agree at the outset with federal courts that the test is an objective one:
constructive discharge arises when the “working conditions [are] so intolerable that a
reasonable person would have felt compelled to resign.” Suders, 542 U.S. at 147
(emphasis added).
22
The requisite i ntolerability in working conditions necessary to establish a
constructive discharge is circumstance-specific and, importantly, will vary depending on
the underlying theory. The School District maintains that Henry can establish constructive
discharge only if she can prove that she quit due to intolerable working conditions arising
from a hostile work environment. Because Henry’s hostile work environment claim fails,
the School District argues, her constructive -discharge-based disparate treatment claim
must fail too. But hostile work environment claims are distinct from disparate treatment
claims, and as noted above, we analyze them differently. Abel v. Abbott Nw. Hosp., 947
N.W.2d 58, 71 n.5 (Minn. 2020); see also Winspear v. Cmty. Dev. Inc., 574 F.3d 604, 607
(8th Cir. 2009) (recognizing that constructive discharge and hostile work environment
claims are “wholly distinct causes of action” with “different elements”).
While both disparate treatment and hostile work environment claims require some
action that is related to the plaintiff’s protected status, the difference is in the form of the
workplace conduct. A disparate treatment claim is based on differential treatment due to
a plaintiff’s protected status, while a hostile work environment claim is based on harassing
conduct due to a plaintiff’s protected status. This distinction is why some courts have
“disallowed hostile work environment claims which are really recast claims of disparate
treatment.” Schweizer v. City of Phila., Civ. A. No. 17-5388, 2019 WL 2950127, at *9–10
(E.D. Pa. July 9, 2019) (collecting cases from Delaware and Pennsylvania federal district
courts). Consider, for example, a female employee alleging that she was passed over for a
promotion in favor of a less-experienced male employee, or a black employee alleging that
he was not offered the same opportunity to work overtime as his white coworkers because
23
of his race. Neither have necessarily suffered harassment, but both have experienced
discrimination that affects the terms, conditions, and privileges of employment.
Accordingly, though plaintiffs alleging constructive discharge based on disparate treatment
or hostile work environment must always demonstrate working conditions that warrant
quitting, the discriminatory workplace conduct that catalyzes resignation will differ
depending on the underlying theory because the theories aim to address different forms of
discrimination.
A plaintiff alleging constructive discharge due to a hostile work environment must
prove that she quit due to intolerable harassment that satisfies the severe-or -pervasive
standard. See Kenneh, 944 N.W.2d at 230–31. In other words, she must allege an
“aggravated” case of hostile work environment, where harassment was so severe or
pervasive that a reasonable person would have felt compelled to resign—“harassment
ratcheted up to the breaking point.” Suders, 542 U.S. at 147–48. A plaintiff alleging
constructive discharge based on disparate treatment, however, may not have experienced
harassment that “contaminates the psychological aspects of the workplace,” but has still
suffered illegal discrimination in the form of unfavorable treatment based on her protected
status. Lampkins v. Miltra QSR KNE, LLC, 383 F. Supp. 3d 315, 330 (D. Del. 2019) (citing
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64–67 (1986)). Requiring such plaintiffs
to satisfy the requirements of a hostile work environment claim would improperly blur the
distinctions between both the elements that underpin each cause of action and the kinds of
harm each cause of action is intended to address.
24
The School District’s position—namely, that Henry’s constructive discharge claim
is inextricably intertwined with her hostile work environment claim—is flawed because it
fails to recognize this distinction and mischaracterizes Henry’s claim. The School District
suggests there is only one type of constructive discharge— one that arises from a hostile
work environment. But this position is based on too narrow a reading of the U.S. Supreme
Court’s decision in Suders. In that case, which involved allegations of workplace sexual
harassment resulting in constructive discharge, the Court explained that hostile-
environment constructive discharge claims require a plaintiff to prove a hostile work
environment “so intolerable that a reasonable person would have felt compelled to resign.”
Suders, 542 U.S. at 147. The Court noted, however, that the case concerned an employer’s
liability for “one subset” of constructive discharge claims—that is, hostile- work-
environment-based constructive discharge claims, which the Court described as a
“compound claim.” Id. at 143, 147. The School District’s characterization of Suders as
merging hostile work environment requirements into all constructive discharge claims—
including Henry’s—is unpersuasive because there are other types of constructive
discharge, including those resulting from disparate treatment.
Thus, we hold that the objectively intolerable conditions necessary to support a
constructive discharge based on disparate treatment are not necessarily the same as those
required to support a constructive discharge based on a hostile work environment. The
requisite objectively intolerable conditions for a constructive discharge based on disparate
treatment can occur “[w]hen an employer acts in a manner so as to have communicated to
a reasonable employee that she will be terminated, and the plaintiff employee resigns.”
25
E.E.O.C. v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th Cir. 2002). In other words, a
disparate-treatment-based constructive discharge can occur where, due to the employer’s
illegal discrimination in the form of unfavorable treatment based on the employee’s
protected status, “the handwriting [is] on the wall and the axe was about to fall.” Id.
(citation omitted) (internal quotation marks omitted). In such circumstances, an employee
facing disparate treatment based on her protected status “would not be acting unreasonably
if [she] decided that to remain with [her] employer would necessarily be inconsistent with
even a minimal sense of self-respect, and therefore intolerable.” Hunt v. City of Markham,
219 F.3d 649, 655 (7th Cir. 2000).
2.
Next, our reference to the constructive discharge standard in prior cases also
included the requirement that plaintiffs making a claim of constructive discharge
demonstrate that the employer’s actions were intended to force the employee to quit.
Navarre, 652 N.W.2d at 32. Some federal courts that require employer intent permit
plaintiffs to prove the element by showing that the employee’s resignation was a
“reasonably foreseeable consequence of the employer’s discriminatory actions.” Phillips
v. Taco Bell, 156 F.3d 884, 890 (8th Cir. 1998).
To the extent we have not done so expressly in prior cases, we adopt this employer-
intent requirement and hold that a plaintiff alleging disparate-treatment-based constructive
discharge under the Human Rights Act may satisfy this requirement in one of two ways:
(1) by demonstrating that the employer deliberately created intolerable working conditions
with the intent of forcing the employee to quit, or (2) by demonstrating that resignation
26
was a reasonably foreseeable consequence of the employer’s deliberate actions. Requiring
employer intent keeps constructive discharge on par with actual discharge as an adverse
employment action. See Suders, 542 U.S. at 141.
Because we adopt the employer-intent requirement, we decline to require, as the
district court did here, that plaintiffs alleging disparate-treatment-based constructive
discharge notify their employers of the intolerable conditions or otherwise attempt to
mitigate the alleged mistreatment before resigning. The district court granted summary
judgment for the School District on the basis that Henry had failed to give the School
District a reasonable chance to remedy the alleged mistreatment. In reaching this
conclusion, the district court relied on precedent from the 8th Circuit holding that a plaintiff
may not prevail on a constructive discharge claim if she “quits without giving [her]
employer a reasonable chance to work out a problem.” Blake, 870 F.3d at 826 (citation
omitted) (internal quotation marks omitted). But the case relied upon by the district court
was a sexual harassment case in which the employee “never told anyone there was a
problem in need of fixing.” Id. As a result, the employee was unable to show any intent
to force her to quit, or that resignation was a reasonably foreseeable consequence.
A claim of constructive discharge based on disparate treatment, however, is
different. We decline to adopt a mitigation requirement in cases of constructive discharge
based on disparate treatment because it is inconsistent with our employer-intent
requirement. When an employer is intentionally trying to get rid of an employee, it makes
little sense to also require that employee to give the employer a chance to work out the
problem. In such circumstances, requiring an employee to notify the employer and try to
27
resolve the situation before quitting will often be an exercise in futility that serves only to
create an extra obstacle to the employee’s recovery (as reflected in the summary judgment
order here). We therefore decline to impose a mitigation requirement on plaintiffs claiming
disparate-treatment-based constructive discharge. And to the extent such a mitigation
requirement has been adopted by certain federal courts, 6 we emphasize again that we are
not bound by federal law in our application of the Human Rights Act. Kenneh, 944 N.W.2d
at 231.

6 The Eighth Circuit has also referred to the same requirement “that an employee is
not constructively discharged if she quits without giving her employer a reasonable chance
to work out a problem” in a case involving allegations of pregnancy discrimination.
Trierweiler v. Wells Fargo Bank, 6 39 F.3d 456, 460 (8th Cir. 2011) (citation omitted)
(internal quotation marks omitted) (alteration omitted). In that case, the plaintiff quit on
the last day of her pregnancy-related medical leave and later filed a pregnancy-related
constructive discharge claim under federal law, “assert[ing] that after Wells Fargo learned
that she was pregnant, her supervisors made impossible attendance demands with the
intention of making her quit.” Id. at 459. The court cited the employee’s failure to “ma[k]e
any attempt to work out her concerns with Wells Fargo about maternity leave or [her
supervisor’s] attendance demands” in support of the determination that “she has failed to
show that Wells Fargo intended to force her to quit or that it could have reasonably foreseen
that she would do so.” Id. at 460–61. But the claim did not fail on that basis alone. Instead,
the court found that the requirement to establish constructive discharge was not met
because “[t]he record instead reflects that while [the employee] was on her first pregnancy
related leave, her supervisors and HR decided to seek assistance from Wells Fargo’s
WorkAbility program to explore possible accommodations for her absences.” Id. at 460.
The court concluded that “[t]his shows an intent to maintain an employment relationship
with [the employee], not to cause her to quit.” Id. (emphasis added). We do not dispute
that an effort by the employee at mitigation may be relevant to whether the employer
“intended to force her to quit or that it could have reasonably foreseen that she would do
so.” See id. But what we hold is that an employee’s failure to engage in such mitigation
is not fatal to establishing a disparate treatment constructive discharge claim when the
employee can otherwise demonstrate that the employer deliberately created intolerable
working conditions with intent to force the employee to quit, or that resignation was a
reasonably foreseeable consequence of the employer’s deliberate actions.
28
We stress that the type of disparate-treatment-based constructive discharge we
recognize today contains an objective component. Constructive discharge occurs only
when an employee shows that she was forced to resign when a reasonable person would
agree that her employer’s discriminatorily motivated actions, and her working conditions,
had become unbearable.7 Suders, 542 U.S. at 147. This could include situations where an
employment environment becomes unbearable to a reasonable employee because the
employer has made it clear that the employee had reached the end of the line—in other
words, “the handwriting [was] on the wall,” and the employee quit “just ahead of the fall
of the axe.” Lindale v. Tokheim Corp.¸ 145 F.3d 953, 956 (7th Cir. 1998). But a working
condition does not become intolerable or unbearable merely because “a prospect of
discharge lurks in the background.” Cigan v. Chippewa Falls Sch. Dist., 388 F.3d. 331,
333 (7th Cir. 2004). Employees who quit for subjective reasons—that is, motivations other
than a reasonable belief, stemming from disparate treatment, that firing is an “imminent

7 We emphasize that the employer-intent requirement of constructive discharge in the
disparate treatment context does not require an employee to show the employer’s actions
were motivated by discrimination. This is because a prima facie case for disparate
treatment already separately requires the employee to show that the circumstances give rise
to an inference of discrimination. See Dietrich, 536 N.W.2d at 323–24; Feges, 483 N.W.2d
at 711; Rahlf v. Mo- Tech Corp., Inc., 642 F.3d 633, 637 (8th Cir. 2011). It would be
duplicative to require an employee to present evidence of an employer’s discrimina tory
purpose for both the adverse employment action element—which constructive discharge
can satisfy—and the inference of discrimination element. The School District does not
contest the court of appeals’ conclusion that the circumstances gave rise to an inference of
age discrimination—the School District only challenges that Henry satisfied the adverse
employment action element of a prima facie case by demonstrating she was constructively
discharged. Accordingly, we accept the court of appeals’ conclusion on the inference of
discrimination element and focus on the employer’s intent only as it relates to forcing the
employee to quit.
29
and inevitable event”—cannot successfully claim constructive discharge. Chapin v. Fort-
Rohr Motors, Inc., 621 F.3d 673, 680 (7th Cir. 2010); see also Judge v. Shikellamy Sch.
Dist., 905 F.3d 122, 125 (3d Cir. 2018) (explaining that, in evaluating whether a
constructive discharge occurred, “the ultimate issue is not what [the plaintiff] herself felt
or believed, but whether a reasonable person under the circumstances ‘would have felt
compelled to resign’ ” (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir.
2010))); Yearous v. Niobrara Cnty. Mem’l Hosp. By & Through Bd. of Trs., 128 F.3d 1351,
1356 (10th Cir. 1997) (stating that for purposes of determining whether a constructive
discharge occurred, “[a] plaintiff’s subjective views of the situation are irrelevant”).
B.
Having determined how a plaintiff can establish constructive discharge under a
disparate treatment theory, the remaining issue is whether a reasonable juror could
conclude that Henry has done so here.
Through supervisor Zuker’s deposition testimony, Henry presented evidence which,
when viewed in the light most favorable to her, demonstrates that School District
management took a number of deliberate steps calculated to make Henry’s working
environment unbearable so that she would resign. Specifically, School District
management (1) initiated three performance evaluations of Henry in less than a year, even
though a performance evaluation had not been completed for approximately 2 years; (2)
exaggerated Henry’s trivial performance issues and used the exaggerated issues to support
disciplinary action; (3) placed Henry on an unachievable PIP intended to cause her to resign
or be terminated; (4) issued a written letter threatening to terminate Henry if she did not
30
accomplish the goals set out in the PIP; (5) reprimanded Henry for conduct more harshly
than other employees; (6) denied Henry the opportunity to attend a training session; (7)
made comments that the problems within the department were because people “are too old”
and permitted Davis to create an environment where employees were reluctant to report
discriminatory conduct for fear of retaliation; and (8) made comments saying that long-
term employees near retirement should “consider retirement and travel like his parents.”
As established above, an employee alleging constructive discharge under a disparate
treatment theory must demonstrate that she resigned to escape objectively intolerable
working conditions created by the employer with the intent of forcing the employee to quit.
An employee may satisfy the employer-intent requirement by demonstrating either that the
employer deliberately created intolerable working conditions with intent to force the
employee to quit, or that resignation was a reasonably foreseeable consequence of the
employer’s deliberate actions.
Applying this test to these facts and viewing them in the light most favorable to
Henry, we conclude that her constructive discharge claim survives summary judgment
because “reasonable persons might draw different legal conclusions from the evidence
presented.” Kenneh, 944 N.W.2d at 228. First, Henry must present evidence that the
School District acted in a manner calculated to make her resign. Zuker testified that Deputy
Chief Davis instructed her to place Henry on a PIP and ensure she was “out by May” so
that the department could rehire. This evidence demonstrates an intent on the part of the
School District to force Henry to quit. Testimony from other School District managers
31
who supervised Henry and described the PIP as unnecessary and unachievable is further
evidence of the School District’s intent to force Henry to quit.
Second, under the standard articulated above for constructive discharges based on
disparate treatment, Henry has provided evidence that her working conditions were
objectively intolerable. A jury could find that a reasonable person faced with an
unachievable PIP based on performance reviews consisting of trivial and exaggerated
allegations would feel compelled to resign, particularly after receiving a letter explaining
that termination was being considered. This conclusion is especially true given the sudden
and extreme change in the tenor of Henry’s performance evaluations—she had not received
a negative performance review in the nearly 20 years she had been working for the School
District but was suddenly being reprimanded for things as minor as clocking in a minute
late. The handwriting was on the wall for Henry, and taken as true, Zuker’s testimony
suggests that Henry was going to be fired no matter what. Given that reality, Henry
understood that her “choice [was] to either accept termination and have that on [her]
employment record or have retirement as [her] status.” A jury could conclude that it was
not unreasonable given those circumstances for an employee in Henry’s position to retire
rather than have a termination on her employment record.
To be clear, the act of placing an employee on a PIP alone does not establish de
facto grounds for a constructive discharge claim. As stated in a memorandum of agreement
between the School District and Henry’s union, “individual improvement plans are an
appropriate method through which to identify job-related performance areas of concerns
and provide an opportunity for employees to improve performance.” We emphasize that
32
the placement of an employee on a PIP does not, by itself, constitute an adverse
employment action, particularly when the PIP is “reasonable” and/or “minimally onerous.”
See Bernard v. St. Jude Med. Ctr. S.C., Inc., 398 F. Supp. 3d 439, 461–62 (D. Minn. 2019);
Payan v. United Parcel Serv., 905 F.3d 1162, 1173 n.3 (10th Cir. 2018) (compiling circuit
court case law). But Henry has presented sufficient probative and non-speculative
evidence from former supervisors and coworkers that her PIP was neither reasonable nor
minimally onerous.
In Fischer v. Anderson Corp., for example, the Eighth Circuit explained that a PIP
could amount to constructive discharge if the employee produces evidence that the PIP was
“setting [the plaintiff] up to fail” or was filled with unreasonable requirements. 483 F.3d
553, 557–58 (8th Cir. 2007). The court was careful to note that to withstand summary
judgment, the nonmoving party must substantiate allegations with sufficient probative
evidence that would permit a finding in her favor based upon more than mere speculation,
conjecture, and fantasy, and that an employee does not meet that standard by pointing to
another employee’s “facially impossible to perform PIP” when his PIP was “otherwise
reasonable.” Id. at 557 n.6.
We agree with the Fischer court that an employee alleging constructive discharge
based on a PIP cannot simply rely on the mere existence of the PIP to prove her claim. But
Henry’s argument that the PIP was setting her up to fail is not based on mere speculation,
conjecture, or fantasy. It is based on direct testimony from her supervisor, who was
instructed by the Deputy Chief of the division, to exaggerate issues in Henry’s performance
reviews, “pile on the work,” and shorten deliverable dates to make her projects impossible
33
to complete—all for the purpose of getting rid of her. See Perret v. Nationwide Mut. Ins.
Co., 770 F.3d 336, 339 (5th Cir. 2014) (indicating that evidence showing that termination
was “inevitabl[e]” after an employee was placed on PIP s could support a conclusion that
the employer’s use of PIPs created a situation in which a reasonable employee would have
felt compelled to resign). Viewed in the light most favorable to Henry, a reasonable jury
could find that her PIP and the circumstanc es surrounding it amount to constructive
discharge.
Based on this evidence, we conclude Henry has established a genuine issue of
material fact as to whether she suffered an adverse employment action in the form of
constructive discharge. We therefore affirm the court of appeals and remand to the district
court.
8
It may seem incongruous to conclude that Henry’s work environment was
sufficiently intolerable to support her constructive-discharge-based disparate treatment
claim but not sufficiently offensive and hostile to support her hostile work environment
claim. But we note again that there is an important distinction between a disparate
treatment claim (of which constructive discharge can be a part) and a hostile work
environment claim. Thus, it is possible to conclude, as we did above, that Henry failed to
present sufficient evidence of age-based harassment causing a hostile work environment

8 Because Henry has presented sufficient evidence that she suffered a disparate-
treatment-based constructive discharge independent of her hostile work environment
claim, we need not reach the related issue, raised by the School District, of whether the
affirmative defense that we adopted in Frieler, 751 N.W.2d 558, should apply “in the
age-based hostile- work-environment context” and to “age-based
hostile-work-environment constructive-discharge claims.”
34
while also concluding here that a jury could find the School District’s age-based differential
treatment created intolerable working conditions that led to her reasonable decision to quit.
III.
Finally, we turn to the court of appeals’ alternative determination that there is a
genuine issue of material fact as to “whether Henry suffered an adverse employment action
based on the cumulative evidence she submitted.” Henry, 964 N.W.2d at 679. Analyzing
Henry’s disparate treatment claim, the court of appeals stated:
[T]he concept of an adverse employment action is broader than proof of
discharge or constructive discharge, and may also be proved if an employee
presents evidence that, when considered cumulatively, could lead a
reasonable juror to conclude that she suffered “a tangible change in working
conditions that produces a material employment disadvantage.”

Id. at 678 (quoting Spears, 210 F.3d at 853).
This statement from the court of appeals suggests that Henry can satisfy the adverse
employment action element of a prima facie case of disparate treatment employment
discrimination under the Human Rights Act under a cumulative effects theory. We have
never discussed, much less adopted, a cumulative effects theory. This theory would permit
plaintiffs to establish an adverse employment action based on the aggregation of discrete
acts that would not otherwise amount to a constructive discharge or would not otherwise
be actionable if considered in isolation. See Abel, 947 N.W.2d at 71 n.5 (distinguishing
discrimination claims based on discrete acts from hostile work environment claims);
Watson v. McDonough, 996 F.3d 850, 856 (8th Cir. 2021) (declining to aggregate
individual events “to find an adverse employment action”). Under the circumstances of
this case, where Henry has not persuasively argued that the court should adopt this type of
35
theory, we decline to adopt the court of appeals’ expansion of “the concept of an adverse
employment action” under the Human Rights Act. Henry, 964 N.W.2d at 678.
We reverse the court of appeals’ determination that Henry satisfied the adverse
employment action element of a disparate treatment claim under a cumulative effects
theory.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals in part and
reverse in part.
Affirmed in part and reversed in part.
C/D-1
C O N C U R R E N C E & D I S S E N T
ANDERSON, Justice (concurring in part, dissenting in part).
In her complaint, Barbara Henry alleged a single count of age- based employment
discrimination against Saint Paul Public Schools (School District) under the Minnesota
Human Rights Act, Minn. Stat. §§ 363A.01 –.50 (2022). From the single count in the
complaint, the court reads both a disparate treatment claim and a hostile work environment
claim. I agree with the court that the record does not support Henry’s claim that the School
District created a hostile work environment. And I agree with the court that there is no
cumulative effects theory that could support a disparate treatment claim. But I disagree
with the court’s conclusion as to Henry’s disparate treatment claim based on her alleged
constructive discharge. I would therefore affirm in part and reverse in part the decision of
the court of appeals and affirm the district court’s grant of summary judgment in favor of
the School District.
The court holds that Henry presented sufficient evidence to establish a prima facie
case of disparate-treatment age discrimination because she was constructively discharged.
It determines that the constructive discharge satisfies the adverse employment action prong
of Henry’s prima facie discrimination case —even though Henry alleged that she was
constructively discharged as a result of a hostile work environment and the court rejects
Henry’s hostile work environment claim. In presenting her case to the district court, Henry
asserted that she was constructively discharged because the School District created a
hostile work environment. In holding that Henry’s constructive discharge is separate from
her hostile work environment claim, the court relies upon a theory that she never pleaded
C/D-2
to the district court and improperly concludes that such a theory must go to a jury. For that
reason, I respectfully dissent.
Henry stated in her complaint that the actions of the School District “created a
hostile work environment that was severe and pervasive, which required [her] to be
constructively discharged.” And when laying out the actions of the School District that
“were so severe or pervasive” so as to create a hostile work environment, she specifically
listed the constructive discharge as one of those actions. She used the same facts and
arguments supporting her hostile work environment claim to support her constructive
discharge claim. Accordingly, Henry asserted to the district court multiple times that she
was constructively discharged because of the hostile work environment the School District
created, tying the two claims together.
The court concludes that this case does not present a hostile- work-environment
constructive discharge claim and reasons instead that Henry’s claim falls into a different
“subset” of constructive-discharge employment discrimination claims that do not rely on a
hostile work environment. Pa. State Police v. Suders, 542 U.S. 129, 143 (2004). In doing
so, the court holds that there are certain claims in which a plaintiff need not prove the
existence of a hostile work environment to prove that she was constructively discharged.
But Henry alleged here that she was constructively discharged because of the hostile work
environment the School District created.
Although we have never explicitly addressed what is required to prove constructive
discharge that resulted from a hostile work environment, the Supreme Court’s explanation
of the concept in Suders, 542 U.S. at 143–49, is instructive here. See generally Cont’l Can
C/D-3
Co. v. State, 297 N.W.2d 241, 246 (Minn. 1980) (stating that the court has applied
“[p]rinciples developed in Title VII cases by federal courts” when construing the
Minnesota Human Rights Act), superseded by statute, Act of Mar. 23, 1982, ch. 619,
§§ 2–3, 1982 Minn. Laws 1508, 1511, as recognized in Frieler v. Carlson Mktg. Grp., Inc.,
751 N.W.2d 558, 564 –65 (Minn. 2008). The Supreme Court explained that when a
plaintiff claims “constructive discharge resulting from” a hostile work environment, the
hostile work environment claim is a “lesser included component” of the constructive
discharge. Suders, 542 U.S. at 143, 149. “Creation of a hostile work environment is a
necessary predicate to a hostile-environment constructive discharge case.” Id. at 149. That
is because a constructive discharge based on a hostile work environment “presents a ‘worse
case’ harassment scenario, harassment ratcheted up to the breaking point,” or “harassment
so intolerable as to cause a resignation.” Id. at 147–48.
The court concedes that “Henry’s complaint does assert a single count of age
discrimination,” but because we construe pleadings in civil-rights cases liberally and the
district court and court of appeals considered both theories, the court concludes that both
the age discrimination claim based on disparate treatment and the age discrimination claim
based on a hostile work environment are properly before the court. See supra at 17 n.3.
But in this state, appellate courts have the power to “take any . . . action as the interest of
justice may require.” Minn. R. Civ. App. P. 103.04. Appellate courts also have the
responsibility to “ ‘decide cases in accordance with law,’ ” which is “ ‘not to be diluted by
counsel’s . . . failure to specify issues or to cite relevant authorities.’ ” State v. Vasko,
889 N.W.2d 551, 556 (Minn. 2017) (quoting Moorhead Econ. Dev. Auth. v. Anda ,
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789 N.W.2d 860, 875 (Minn. 2010)). In this court’s own de novo review of the complaint
and record in this case, see Kenneh v. Homeward Bo und, Inc. , 944 N.W.2d 222, 228
(Minn. 2020), the court should therefore apply the correct legal standard and decline to
address two separate claims when Henry’s complaint alleged only one.
Moreover, even if the two separate theories were properly litigated and correctly
before this court, Henry’s disparate treatment claim based on a constructive discharge
would, in my view, also fail. To prove a constructive discharge, the plaintiff must
demonstrate (1) objectively intolerable working conditions (2) created by the employer
with the intention of forcing the employee to quit. See Navarre v. S. Wash. Cnty. Schs.,
652 N.W.2d 9, 32 (Minn. 2002). I disagree with the court’s conclusion that Henry
presented sufficient evidence for a jury to reasonably conclude that the School District
intentionally created intolerable working conditions or that Henry’s resignation would be
a reasonably foreseeable consequence of its actions. See supra at 29-34. In reaching its
conclusion on whether Henry’s working conditions were objectively intolerable, the court
cites the initiation of performance evaluations, Henry’s placement “on an unachievable PIP
[performance improvement plan],” the issuance of a letter threatening to terminate Henry
if she did not accomplish the goals in the PIP, reprimands Henry received, the School
District’s refusal to allow Henry to attend training sessions, and comments that “problems
within the department were because people ‘are too old’ ” or that long-term employees
should “consider retirement.” Supra at 29-30. But as the court points out, an employee
cannot support a constructive discharge merely because it is “facially impossible” when it
is “otherwise reasonable.” Fischer v. Anderson Corp., 483 F.3d 553, 557 n.6
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(8th Cir. 2007). And the alleged discriminatory comments and other factual assertions do
not support a showing of “underlying illegality” related to the PIP sufficient to overcome
summary judgment in favor of the School District. See Huyen v. Driscoll, 479 N.W.2d 76,
81 (Minn. App. 1991), rev. denied (Minn. Feb. 10, 1992). As the Eighth Circuit concluded
in Handenburg v. Principal Mut. Life Ins. Co., although these facts are troubling and “no
doubt made work less enjoyable . . . and might have induced stress for [Henry], there is
simply not enough evidence to support a finding that her supervisors’ conduct created the
compulsion to quit that is necessary for a constructive discharge.” See 118 F.3d 570, 575
(8th Cir. 1997).
Although the discussion above sufficiently explains why the School District was
entitled to summary judgment, I would also hold that the affirmative defense we adopted
in Frieler applies to such age discrimination claims based on a constructive discharge
resulting from a hostile work environment, so the School District would have additionally
been entitled to the Frieler affirmative defense had the case proceeded to trial on that claim.
In Frieler, we held that in the context of a supervisor sexual harassment claim where there
is no tangible employment action against an employee, an employer may raise an
affirmative defense to a hostile work environment claim by proving “(1) ‘that the employer
exercised reasonable care to prevent and correct promptly any sexually harassing
behavior,’ and (2) ‘that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.’ ” 751 N.W.2d at 571 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).
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The United States Supreme Court has explained that “[a] constructive discharge
involves both an employee’s decision to leave and precipitating conduct.” Suders,
542 U.S. at 148. In the case of a hostile work environment, “[t]he former involves no
official action,” whereas “the latter, like a harassment claim without any constructive
discharge assertion, may or may not involve official action.” Id. When harassment
“culminates in a tangible employment action, such as discharge, demotion, or undesirable
reassignment,” the Ellerth/Faragher affirmative defense we recognized in Frieler is
unavailable to employers. See Suders, 542 U.S. at 137 (citation omitted) (internal
quotation marks omitted).
Here, Henry voluntarily left her employment with the School District. Henry has
failed to demonstrate that her departure was precipitated by an official act by the School
District, other than Henry’s placement on a PIP, which alone is insufficient to constitute
an adverse employment action, see Bernard v. St. Jude Med. Ctr. S.C., Inc.,
398 F. Supp. 3d 439, 461–62 (D. Minn. 2019), and falls short of a tangible employment
action “such as discharge, demotion, or undesirable reassignment,” Suders, 542 U.S. at 137
(citation omitted) (internal quotation marks omitted). The testimony of at least one other
employee casts some doubt on the legitimacy of the PIP, but even so, that makes it, in my
view, merely “less certain” that “the supervisor’s misconduct has been aided by the agency
relation,” so there is justification in “affording the employer the chance to establish,
through the Ellerth/Faragher affirmative defense, that it should not be held vicariously
liable.” Suders, 542 U.S. at 148– 49. Although the court notes that “[w]hen an employer
is intentionally trying to get rid of an employee, it makes little sense to also require that
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employee to give the employer a chance to work out the problem,” see supra at 26, it is
less clear here that any employer- sanctioned misconduct has occurred. Applying the
Frieler defense to age discrimination claims based on a hostile work environment
constructive discharge encourages conciliation rather than litigation against employers
who may or may not have had reason to know of the misconduct of a particular supervisor
or group of supervisors.
Accordingly, because Henry has alleged a constructive discharge based on a hostile
work environment, but no hostile work environment existed, summary judgment for the
School District was appropriate. I further conclude that the School District would have
had recourse to the Frieler affirmative defense for such an age discrimination claim based
on a constructive discharge resulting from a hostile work environment. I therefore would
affirm in part and reverse in part the decision of the court of appeals and affirm the district
court’s grant of summary judgment in favor of the School District.

GILDEA, Chief Justice (concurring in part, dissenting in part).
I join the concurrence in part and dissent in part of Justice Anderson.