Barbara Henry, Appellant,

1
STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0004

Barbara Henry,
Appellant,

vs.

Independent School District #625,
a/k/a Saint Paul Public Schools,
Respondent.

Filed July 26, 2021
Affirmed in part, reversed in part, and remanded
Florey, Judge

Ramsey County District Court
File No. 62-CV-19-4732

Jeffrey D. Schiek, Philip G. Villaume, Villaume & Schiek, P.A., Bloomington, Minnesota
(for appellant)

Sarah E. Bushnell, Christine W. Chambers, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M. , Presiding Judge; Jesson , Judge; and
Florey, Judge.
SYLLABUS
In addition to discharge and constructive discharge, an employee can show she
suffered an adverse employment action by presenting evidence of circumstances that, when
considered cumulatively, could lead a reas onable juror to conclude that the emp loyee
experienced a tangible change in working conditions that produced a material disadvantage
to the employee’s employment.

2
OPINION
FLOREY, Judge
Appellant challenges the summary -judgment dismissal of her age -discrimination
claim under the Minnesota Human Rights Act (MHRA ). Minn. Stat. § 363A.08 (2020).
Appellant asserts that the district court erred by determining that she did not present
sufficient evidence of (1) a prima facie case to sustain her disparate -treatment age -
discrimination claim or (2) an age-based hostile work environment. We conclude that the
record evidence crea tes a genuine issue of material fact as to whether appellant suffered
discrimination, based on her age, with respect to the terms of her employment. The record
evidence is insufficient, however, to establish the existence of an age -based hostile work
environment. Therefore, we affirm in part, reverse in part, and remand.
FACTS
Appellant Barbara Henry sued her former employer, respondent St. Paul Public
Schools (SPPS), alleging that SPPS engaged in age discrimination in violation of the
MHRA. The following facts are undisputed:
Henry was hired by SPPS’s technology services department as a network technician
I in 1997. She was promoted to network technician II in 2007 at the age of 47. Henry was
part of the technology services infrastructure team, and she worked primarily on
maintaining the district’s wireless connectivity and wide area network. Henry received
excellent performance reviews for most of her career at SPPS, and her former supervisors
and colleagues spoke highly of her work ethic and performance.
3
In 2014, SPPS hired Idrissa Davis as deputy chief of technology services. In 2016,
Davis hired Sonya Zuker 1 to be the director of production services and Vicky Shine to be
the technology services manager. From that point on, Henry reported to Shine, Shine
reported to Zuker, and Zuker reported to Davis.
In the fall of 2016, Zuker and Shine performed the first formal performance reviews
of the infrastructure group since Davis was hired. The evaluation s rated whether
employees’ performance was below standards, met standards, or exceeded standards.
Henry received a belo w-standards rating. Her performance review identified specific
examples of deficiencies —including rarely meeting deadlines, a lack of visibility during
work hours, failure to use an SPPS van for travel (as required by SPPS policy), and
speaking to director Zuker in an agitated voice.
On November 4, 2016, Zuker wrote a letter explaining her recommendation to place
Henry on a Performance Improvement Plan (PIP). The letter stated, in pertinent part:
After reviewing the job description of Network
Technician 2 . . . Barb’s day-to-day work performance
addresses superficially 50% of the responsibilities. When
unpacking what those responsibilities entail, Barb is
managing a fraction of the required work . . . .

. . . .
On several occasions, Barb Henry has been resistant to:
adopting processes, providing additional assistance to non-
wireless projects, completing tasks as assigned or within
established parameters, and completing tasks by deadlines.
Additionally, Barb has demonstrated a lack of self-control
when faced with uncomfortable situations.

1 We are using this spelling of Sonya Zuker because it is the spelling used in the record,
but we note that appellant’s brief spells her last name as “Zucker.”
4

The letter concluded:

With the overview provided above, I support the
decision to place Barb Henry on a Performance Improvement
Plan to address the following:

• Meeting deadlines
• Utilizing opportunities for success
• Performing all responsibilities as outlined in Job
Description
• Providing training to team members around areas of
expertise
• Documenting processes to allow for other Network
Technician 2’s to perform similar work
• Improving relationships with peers, supervisor and
leadership team

Henry received another wri tten performance review from Shine on November 22,
2016. Henry again received an overall below-standards rating . The November
performance review identified specific examples of the deficiencies that led to the below -
standards ratings—including missing deadli nes, not responding to requests , missing a
meeting, continuing to use her personal vehicle rather than the SPPS van , and failing to
share her knowledge with other coworkers.
On November 22, 2016, a PIP was delivered to Hen ry, requiring the following
improvements:
• “[P]rioritize and manage multiple tasks. Remain
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”;
• “Be able to meet deadlines to 100% completion”;
• “Work out a plan to complete all assigned projects in a
timely manner and inform her manager ahead of time
5
should she require additional time and resources to meet
appropriate deadlines”;
• “Proactively identify knowledge gaps and initiate
solutions on how to close those gaps”;
• “Report to [the office] at the beginning and end of her
shift. . . . [C]ommunicate with her manager prior to the
start and end times as soon as there is a deviation”;
• “[R]emain visible throughout the day and inform
[manager] of her whereabouts if outside of the office”;
• “Ensure attendance for all scheduled meetings”;
• “[U]se the District van provided to Technology Services
when visiting sites to resolve issues. Ms. Henry will not
be reimbursed for mileage w hen a personal vehicle is
used”;
• “[U]se remote tools to troubleshoot wireless and phone
issues whenever possible”;
• “[I]nitiate and request additional training and resources
to efficiently perform all job duties”; and
• “[C]oordinate the cross training and transfer of
knowledge to members of the team when requested to
do so.”

In April 2017, Shine performed a follow up review of Henry’s performance. Henry
again received a below-standards rating overall. The post -PIP review again identified
specific examples of Henry’s perform ance deficiencies, including: gaps in knowledge of
required information, problems following through on requests, missing deadlines,
problems with visibility and abiding by the required work schedule, submitting mileage
reimbursement requests for her personal vehicle despite being asked to use the SPPS van,
and failing to follow through on career development and training opportunities.
Considering the deficiencies identified in the post -PIP review, Shine recommended that
SPPS terminate Henry’s employment.
6
On May 5, 2017, Davis wrote a letter to Henry explaining that he was considering
terminating her employm ent for failing to meet the terms of the PIP. The letter advised
Henry that before Davis made a termination decision, she could present a statement in her
defense directly to Davis with her union representative present. Instead, under the advice
of her union representative, Henry retired before the meeting occurred. She was 57 years
old.
In September 2017, Henry filed a charge of discrimination with the Minnesota
Department of Human Rights, alleging age discrimination by SPPS. The department
investigated Henry’s claims, but ultimately dismissed Henry’s charge, finding no probable
cause to conclude that discrimination had occurred. Henry then filed a complaint in district
court, alleging that SPPS had engaged in age discrimination in violation of the MHRA.
Supervisor and Employee Testimony
During the discovery process, counsel deposed several of Henry’s former
supervisors and co -workers. Zuker testified that Henry was “specifically target[ed]” for
“performance” issues and that Davis instructed her “to make it look like she was not
performing.” She said that she believed Henry’s below -standards performance reviews
and PIP were “exaggerated.” Zuker testified that, although she did not believe that the
statements made in Henry’s performance reviews w ere false, she would have addressed
Henry’s performance issues by coaching and mentoring Henry instead of placing her on a
formal PIP.
Zuker further testified that Davis directed her to write the PIP in a way that Henry
could not pass. Zuker specifical ly testified about notes she took during a meeting with
7
Davis on March 27, 2017. She stated that Davis instructed her to make Henry’s PIP
“unrealistic” and to pile on extra work so Henry would fail and not pass the performance
evaluation, which would ulti mately lead to her termination. In her notes, Zuker wrote
“[Henry]–out by May –rehire.” Zuker testified that in her opinion, Henry’s PIP was
“unwarranted” and that she did not believe that disciplinary action should have been taken
against Henry. She als o explained that Davis used PIPs to force employees out by either
forcing them to resign or terminating them.
Zuker also testified that on one occasion, Davis instructed her to not allow Henry to
participate in a training. Zuker explained that this was b ecause Henry was being
“performance managed,” so “rather than train [her] up so [she] can perform better, just take
away formal training and not spend the money on the person.”
Zuker testified that she did not recall Davis ever saying anything about Henry’s age,
and she 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.

James Dykstra, a co -worker and Henry’s supervisor for one 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 also recalled Davis saying that
8
“problems within the department are because people are too old and that they’re overpaid
white people.”
Bryan DeGidio, one of Henry’s former supervisors, testified that there was a pattern
of management trying to get rid of older employees with a lot of service and replacing them
with younger employees. He described Davis’s management style as “hostile.” He also
testified that while he managed Henry for approximately 15 years, she performed her job
at a level that “exceed[ed] standards” in “absolutely all categories.”
Carla Gabriel, a former co-worker, also testified that she believed that 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.”
Gabriel 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 that other
employees routinely did. Specifically, Gabriel explained that oth er employees were
driving their personal vehicles rather than driving the SPPS van, but Henry was “the only
one that was singled out for it.” She also stated that it was common for Davis “to belittle
or mock” and yell at people during meetings.
Henry testified that by the time she received Davis’s May 2017 letter, she believed
that she was being discriminated against based on her age. She explained that she believed
that SPPS was targeting her based on her age because she was 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.”
9
SPPS filed a motion for summary judg ment. In its order granting the motion, the
district court wrote:
It is undisputed that several of Mr. Davis’ employees found
him “hostile, abusive and confrontational” and that his
management style fostered a culture of retaliation. It is further
undisputed that at least seven employees, including [Henry],
have now alleged that their jobs were eliminated or they were
forced out of their position by Mr. Davis because of their age
and high salary.

The district court ultimately concluded that Henry “failed to show the existence of a fact
dispute that would bar the Court from ruling on her claim” and that Henry “voluntarily
resigned her position without taking advantage of [SPPS’s] anti -discrimination policies,”
causing her claim to fail under the MHRA.
Henry appeals.
ISSUES
1. Do genuine issues of material fact exist precluding summary judgment on
Henry’s disparate-treatment age-discrimination claim?
2. Do genuine issues of material fact exist precluding summary judgment on
Henry’s age-based hostile work environment claim?
ANALYSIS
Summary-Judgment Standard
On appeal from summary judgment, we review de novo whether there are any
genuine issues of material fact and whether the district court err ed in applying the law.
Ruiz v. 1st Fid. Loan Servicing, LLC , 829 N.W.2d 53, 56 (Minn. 2013). “We view the
evidence in the light most favorable to the party against whom summary judgment was
10
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 when the evidence could lead a rational fact-
finder to find for the nonmoving party. DLH, Inc. v. Russ , 566 N.W.2d 60, 69 (Minn.
1997).
Henry raises two theories of discrimination: a disparate treatment based on age and
an age-based hostile work environment. We will address each in turn.2
I. MHRA Disparate-Treatment Age-Discrimination Claim

Henry alleges that SPPS violated the MHRA by discriminating against her because
of her age. The MHRA provides that an employer may not, because of age, “discriminate
against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions,
facilities, or privileges of employment.” Minn. Stat. § 363A.08, subd. 2(3) (2020). Under
the MHRA, “[t]he prohibition against unfair employment or education practices based on
age prohibits using a person’s age as a basis for a decision if the per son is over the age of
majority.” Minn. Stat. § 363A.03, subd. 2 (2020). In construing the MHRA, we apply
Minnesota caselaw and “law developed in federal cases arising under Title VII of the 1964
Civil Rights Act.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).
Under the MHRA, an age -discrimination plaintiff alleging disparate treatment can
use either of two methods to survive summary judgment: (1) the direct method of proof or
(2) the three-part burden-shifting test set out in McDonnell Douglas Corp. v. Green , 411

2 Henry’s complaint alleges only a single count of age -based discrimination under the
MHRA. Based on our de novo review of the complai nt and record, we determine that
Henry has sufficiently alleged a disparate -treatment age-discrimination and hostile-work-
environment claim.
11
U.S. 792, 98 S. Ct. 1817 (1973). Goins v. W. Grp ., 635 N.W.2d 717, 724 (Minn. 2001).
Henry contends that she submitted sufficient direct evidence to survive summary judgment,
or alternatively, that she submitted sufficient circumstantial evidence to survive the
McDonnell Douglas analysis.
A. Direct Evidence of Age Discrimination

We first address Henry’s claim that she presented sufficient direct evidence of age
discrimination to survive summary judgment . Direct evidence shows a “specific link
between the alleged discriminatory animus and the challenged decision , sufficient to
support a finding by a reasonable fact finder that an illegitimate criterion actually motivated
the adverse employment action.” Aulick v. Skybridge Am s., Inc., 860 F.3d 613, 620 (8th
Cir. 2017) (quotation omitted); see also Naguib v. Trimark Hotel Corp., 903 F.3d 806, 811
(8th Cir. 2018) (“Direct evidence shows a specific link between the alleged animus and the
termination sufficient to support a substantially strong inference that the employer acted
based upon that animus.” (quotation omitted)). Direct evidence “may include evidence of
actions or remarks of the employer that reflect a discriminatory atti tude, comments which
demonstrate a discriminatory animus in the decisional process, or comments uttered by
individuals closely involved in employment decisions.” King v. United States , 553 F.3d
1156, 1161 (8th Cir. 2009) ( quotation omitted). “But stray r emarks in the workplace,
statements by nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process do not constitute direct evidence.” Aulick, 860 F.3d at 620 ( quotation
omitted).
12
Henry contends that the following constituted direct evidence of age discrimination:
Zukers’s testimony that Davis wanted her to design the PIP so that Henry would fail; the
testimony that negative portions of the performance reviews were exaggerated; Davis’s
comment that problems within the department w ere “because people are too old ” and
Henry’s former supervisors’ and co -workers’ statements that Davis discriminated against
her because of her age. Henry argues that Davis’s comment in particular is enough to allow
her claim to survive summary judgment. She cites to Beshears v. Asbill , 930 F.2d 1348
(8th Cir. 1991) in support of her argument. There, the Eighth Circuit Court of Appeals
determined that the plaintiff presented direct evidence of age discrimination where at least
five employees testified that they heard the company’s president make a statement to the
effect that “older employees have problems adapting to changes and to new policies,” and
at least one of the comments was made in relation to the employer’s decisional process as
it pertained to the employment decisions in controversy. Id. at 1354. Here, however, Henry
only presented evidence from one manager that Davis made an age -based comment and,
more importantly, there is no evidence that Davis made this comment in relation to the
decisional process.
Giving Henry the benefit of all reasonable inferences supported by the evidence, we
conclude that the record does not contain direct evidence of age discrimination sufficient
to withstand summary judgment.
B. McDonnell Douglas Analysis

Because Henry did not present direct evidence of disparate treatment, we consider
whether Henry’s claim survives summary judgment under the McDonnell Douglas burden-
13
shifting analysis. See Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 323 (Minn. 1995)
(applying McDonnell Douglas test to claim un der MHRA). There are three steps in the
McDonnell Douglas analysis: first, the plaintiff must establish a prima facie case of
discrimination; second, the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its conduct; and third , the plaintiff must prove by a
preponderance of the evidence that the reason offered by the defendant is merely a pretext
for discrimination. Id. The district court concluded that Henry did not meet the first step
of the McDonnel Douglas analysis by showing a prima facie case of age discrimination,
and as a result, neither the district court nor the parties addressed the other steps. Because
we conclude that Henry did present sufficient evidence to meet the first step of the test, we
need only address this step.
1. Prima Facie Case of Age Discrimination
To establish a prima facie case of age discrimination, Minnesota courts generally
require a plaintiff to show that: (1) she belongs to a protected class; (2) she is qualified for
the position; (3) she was discharged; and (4) she was replaced by a person outside of the
protected class. Pribil v. Ar chdiocese of St. Paul & Minneapolis , 533 N.W.2d 410, 412
(Minn. App. 1995); see also, e.g., Elliott v. Montgomery Ward & Co., 967 F.2d 1258, 1260
(8th Cir . 1992). But the requirements of the prima facie case for employment
discrimination may vary depending on the circumstances involved. McDonnell Douglas,
411 U.S. at 802 n.13 , 93 S. Ct. at 1824 n.13; see also Swierkiewicz v. Sorema N. A., 534
U.S. 506, 512, 122 S. Ct. 992 , 997 -98 (2002) ( observing that t he required prima facie
operates as a “flexible evidentiary standard” that was “never intended to be rigid,
14
mechanized, or ritualistic”); Friend v. Gopher Co., 771 N.W.2d 33, 37 (Minn. App. 2009)
(noting that the prima facie case “varies depending on the type of employment decision”
and explaining that the purpose of the prima facie case is “to disprove the most obvious
legitimate bases for the employment decision, thereby allowing the inference that the
decision was motivated by discrimination”). If a plaintiff establishes a prima facie case,
she creates a presumption that the employer unlawfully discriminated against her. Texas
Dep’t of Cmty. Affs. v. Burdine , 450 U.S. 248, 254, 101 S. Ct. 1089, 10 94 (1981). The
burden of establishing a prima facie case is not onerous. Id. at 253, 101 S. Ct. at 1094.
To survive summary judgment, Henry was required to allege facts that establish a
prima facie case of age discrimination. Therefore, to establish a p rima facie case of age
discrimination under the facts of this case, we determine that Henry must allege facts that
show that (1) she is a member of the protected class; (2) she was qualified for her position;
(3) she suffered an adverse employment action ; and (4) circumstances exist that give rise
to an inference of discrimination. See, e.g., Rahlf v. Mo –Tech Corp., 642 F.3d 633, 637
(8th Cir.2011) (applying same test to analyze age-discrimination claim ); Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) ( applying this prima facie test to
analyze a pregnancy-discrimination claim); Wheeler v. Aventis Pharm., 360 F.3d 853, 857
(8th Cir. 2004) (using same test to analyze race-discrimination claim).
There is no dispute that t he evidence, viewed in a light most favorable to Henry,
would support a finding that Henry is a member of a protected class and that she was
qualified for her position. We therefore turn our attention to whether Henry produced
15
sufficient evidence to establish that she suffered an adverse employment action and that
circumstances exist that support an inference of discrimination.
i. Adverse Employment Action
To survive summary judgment on the third element, Henry must point to evidence
sufficient to prove that she suffered an adverse employment action. “An adverse
employment action is a tangible change in working conditions that produces a material
employment disadvantage.” Spears v. Mo. Dep ’t of Corr. & Human Res., 210 F.3d 850,
853 (8th Cir. 2000); see also Jones v. Fitzgerald, 285 F.3d 705, 714 (8th Cir. 2002) (stating
that the Eighth Circuit has “consistently held a change in non-tangible working conditions,
no matter how unpleasant, fails to constitute a ‘material employment disadva ntage’
necessary to establish an adverse employment action”).
An employee can prove an adverse employment action by presenting evidence of
either her discharge or constructive discharge. See Pribil, 533 N.W. 2d at 412. But, the
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.” Spears, 210
F.3d at 853; see e.g. Phillips v. Collings, 256 F.3d 843, 848-49 (8th Cir. 2001).
The evidence, when viewed in the light most favorable to Henry, shows that during
Davis’s tenure as director, SPPS: (1) initiated three performance evaluations of Henry in
less than a year, even though a performance evaluation had not been completed for
approximately two years; (2) exaggerated Henry’s trivial performance issues, and used the
16
exaggerated issues to support disciplinary action; (3) placed Henry on an unachievable PIP
with the intent of causing her to either resign or be terminated; (4) issued a written letter
threatening to t erminate Henry if she did not accomplish the goals set out in the
unachievable PIP; (5) reprimanded Henry for conduct more harshly than other employees;
(6) specifically den ied Henry the opportunity to attend a training session ; and (7) made
comments through Davis that t he 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 as they believed it could jeopardize their
positions.
A reasonable juror could find that Henry’s placement on an unachievable PIP—
based on performance reviews consisting of allegedly trivial and exaggerated allegations—
constituted a material disadvantage to Henry’s employment, particularly when considering
that Henry presented evidence that the PIP was put in place with the intent to cause Henry
to either resign or be terminated. More importantly, a reasonable juror could find that the
cumulative effect of SPPS’s actions caused Henry to suffer an adverse employment action.
Cf. Wilson v. Miller , 821 F.3d 963 , 967 (8th Cir. 2016) (explaining that a n unfavorable
performance evaluation is actionable a s an “adverse employment action ” when the
employer subsequently uses the evaluation as a basis to detrimentally alter the terms and
conditions of the recipient’s employment); Ellis v. Houston, 742 F.3d 307, 323-24 (8th Cir.
2014) (holding that evidence showing that the plaintiff was “singled out for additional work
details” and the subject of “reports for trivial or unsubstantiated allegations” that could
support disciplinary action could establish an adverse employment action); Phillips, 256
17
F.3d 843 at 848-49 (finding that “uncharacteristica lly long and extraordinarily negative”
performance evaluation that was “like no other received by [plaintiff] or any of his co -
workers,” when combined with a “ Corrective Action Plan” and mandatory “remedial
training,” constituted adverse employment action); Benner, 380 F. Supp. 3d at 897–98 (D.
Minn. 2019) ( concluding that the “cumulative effect” of the defendant’s actions, which
included reprimands, investigations, and other conduct, precluded summary judgment).
Therefore, we determine that a genuin e issue of material fact exists as to whether Henry
suffered an adverse employment action based on the cumulative evidence she submitted.
Henry also argued before the district court and argues on appeal that she was
constructively discharged. To establish const ructive discharge, an employee must show
that the employer created intolerable working conditions with the intention of forcing the
employee to resign or that the employer could reasonably foresee that its actions would
result in the employee’s resignation. Pribil, 533 N.W.2d at 412-13. Constructive discharge
is considered objectively, and arises “only when a reasonable person would find the
conditions of employment intolerable.” Tidwell v. Meyer ’s Bakeries, Inc. , 93 F.3d 490,
494 (8th Cir. 1996).
Here, a reasonable juror could find that the facts as listed above, when viewed in the
light most favorable to Henry, created intolerable working conditions. Further, Zuker’s
testimony that Davis instructed her to place Henry on a PIP and ensure sh e was “out by
May” so that the department could rehire is evidence that Davis had the intent to force
Henry to quit. Therefore, we determine that a genuine issue of material fact exists as to
whether Henry was constructively discharged.
18
SPPS argues that H enry cannot claim constructive discharge because she
unreasonably failed to take advantage of alternative corrective measures offered by SPPS,
and therefore SPPS can invoke the Frieler affirmative defense. The Frieler defense allows
an employer to avoid liability against an employee’s claim of hostile work environment by
showing both (1) “that the employer exercised reasonable care to prevent and correct
promptly any . . . harassing behavior,” and (2) “that the plaintiff employee unreasonably
failed to tak e advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Frieler v. Carlson Mktg. Group, 751 N.W.2d 558,
570-71 (Minn. 2008) (quotations omitted). But, the Minnesota Supreme Court has declined
to extend the Frieler defense beyond hostile-work-environment claims, and we decline to
do so here. See Schmitz v. U.S. Steel Corp., 852 N.W.2d 669, 678 (Minn. 2014) (declining
to extend the affirmative defense to claims beyond hostile -work-environment s exual
harassment). As such, the Frieler defense is inapplicable to Henry’s claim of an age-based
disparate-treatment-discrimination claim.
ii. Inference of Discrimination
To prove the fourth element of the prima facie case, Henry must show that
circumstances exist that give rise to an inference of discrimination. A plaintiff can satisfy
the fourth part of the prima facie case in a variety of ways, such as by showing biased
comments by a decisionmaker. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011)
(quotations omitted). And evidence of pretext, which is normally considered at the third
step of the McDonnell Douglas analysis, may also satisfy this aspect of the plaintiff’s prima
facie case. Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003). Thus, viewing
19
the evidence in a light most favorable to Henry, we conclude that there is a genuine issue
of mater ial fact as to whether circumstances exist that give rise to an inference of
discrimination.
In Ryther v. Kare 11, the Eighth Circuit Court of Appeals determined that evidence
demonstrating a “general pattern of discrimination against older employees” —which
included comments about the plaintiff being an “old man” and an “old fart” and saying he
was “too old to be on the air” —supported an inference of discrimination. 108 F.3d 832,
842-44 (8th Cir. 1997) (quotation omitted). The court noted that, while stray remarks alone
do not give rise to a reasonable inference of age discrimination, “such evidence can, if
sufficient together with other evidence of pretext, support a reasonable inference of age
discrimination.” Id. at 842. “Other evidence” that may be r elevant includes evidence of
the employer’s “general policy and practice with respect to older persons’ employment.”
Id. (quotation omitted).
The most persuasive evidence in support of an inference of discrimination is Davis’s
statement that the problem i n the department was the “old people.” The testimony from
the technology services employees and supervisors about the retaliatory culture created by
Davis and his intent to replace older, higher paid employees with younger, cheaper ones is
also relevant. Cf. MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1057-58 (8th Cir. 1988)
(observing, in a similar context, that evidence showing a decline in the ratio of older
employees to younger employees “is certainly not conclusive evidence of age
discrimination in itself, but it is surely the kind of fact which could cause a reasonable trier
of fact to raise an eyebrow, and proceed to assess the employer ’s explanation for this
20
outcome”). While much of this testimony can be described as no more than the employees’
opinions of Davis’s conduct, which is insufficient to support Henry’s argument that her
age was a determining factor in SPPS’s conduct, there is evidence of a pattern of employees
over the age of forty either being terminated from or leaving the technol ogy-services
department during Davis’s tenure.
Thus, while the statement of Davis alone is not, in itself, sufficient to sustain
Henry’s claim, it is relevant evidence which , together with other evidence of age
discrimination—such as the purported pattern of eliminating older and higher -paid
employees and the evidence of exaggerated performance reviews and an intentionally
unachievable PIP—creates a genuine issue of material fact as to whether discrimination
occurred. Accordingly, we conclude that the record, when considered in the light most
favorable to Henry, supports a reasonable inference that age discrimination motivated
SPPS’s conduct towards Henry.
Henry produced sufficient evidence to establish a prima facie case of disparate-
treatment age discrimination. Genuine issues of material fact exist that preclude summary
judgment on that theory. Therefore, we reverse the district court’s grant of summary
judgment and remand for further proceedings on this theory.
II. Age-Based Hostile Work Environment
Henry also claims that SPPS, and in particular Davis, created a hostile work
environment based o n her age. To succeed on a hostile -work-environment theory, a
plaintiff must show that (1) she belongs to a protected group ; (2) she was subject to
unwelcome harassment; (3) a causal nexus exists between the harassment and the protected
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group status; (4) the harassment affected a term, condition, or privilege of her employment;
and (5) the defendant knew or should have known of the harassment and failed to take
proper action. Tademe v. St. Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003). “Even
if a plaintiff demonstrates discriminatory harassment, such conduct is not actionable unless
it is so severe or pervasive as to alter the conditions of the plaintiff ’s employment and
create an abusive working environment.” Goins, 635 N.W.2d at 725 (quotations omitted).
The 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.” Faragher v. City of Boca Raton , 524 U.S. 775, 787, 118 S. Ct. 2275,
2283 (1998). 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.” Id. at 787–88, 118 S. Ct. at 2283 (quotation omitted).
Here, the record does not support He nry’s claim. While a number of technology -
services employees assert that Davis created a hostile work environment, their perception
is not sufficient to make out a hostile -work-environment claim. See Sanders v. Lee Cnty.
Sch. Dist. No. 1, 669 F.3d 888, 893 (8th Cir. 2012) (explaining that “[t]he intolerability of
working conditions is judged by an objective standard, not the employee’s subjective
feelings” (quotation omitted)). Further, the conduct at issue here does not rise to the level
of pervasivenes s or severity required to sustain a hostile -work-environment claim.
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Because no genuine issue of material fact exists, and SPPS is entitled to judgment as a
matter of law, the district court did not err by granting summary judgment on this issue.
DECISION
We conclude that Henry presented sufficient evidence of disparate -treatment age
discrimination to withstand summary judgment, and we reverse and remand on that claim.
We affirm summary judgment on Henry’s age-based hostile-work-environment claim.
Affirmed in part, reversed in part, and remanded.