Debra Lynn Johnson, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0101

Debra Lynn Johnson,
Appellant,

vs.

SICO America, Inc.,
Respondent.

Filed September 13, 2021
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-19-19613

Debra Lynn Johnson, Eden Prairie, Minnesota (pro se appellant)

Craig A. Brandt, Megan J. Renslow, Moss & Barnett, P.A., Minneapolis, Minnesota (for
respondent)

Considered and decided by Bratvold, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant-employee argues the district c ourt erred by finding that her Minnesota
Human Rights Act age-discrimination claim was time-barred and by granting summary
judgment for respondent-employer. Because we conclude that the district court’s grant of
summary judgment may be sustained on the merits, we affirm.

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FACTS
Respondent SICO America, Inc., (SICO) is a Minnesota-based manufacturing
company that designs and manufactures long-lasting, mobile, folding products—like tables
and stages—to help organizations make effective use of their space. SICO hired appellant
Debra Lynn Johnson (Johnson) as a space desi gner in the marketing department in 1978.
In 2015, SICO hired 57-year-old Patricia van der Lugt (van der Lugt) as its director of
marketing. Upon joining SICO, van der Lugt became Johnson’s di rect supervisor.
Johnson’s dissatisfaction with SICO, and va n der Lugt’s dissatisfaction with Johnson,
began shortly after Johnson started reporting to van der Lugt.
In her affidavit, van der Lugt affirmed th at she first noticed “a recurring pattern of
a need to follow up with [Johnson] on work assignments” starting in 2015. According to
van der Lugt, Johnson frequently failed to complete projects on time and would often
communicate that projects were complete when they were not actually finished. Johnson’s
skills in the technology-base d aspects of her job also fell below van der Lugt’s
expectations, particularly Johnson’s ability to use Revit, a three-dimensional space
planning software that allows designers to create visual representations of rooms.
Johnson’s annual performance evaluation for 2015, which ha d feedback from Johnson’s
colleagues, contained the comment that Johnson “[c]ould improve on timeliness of projects
and show a greater sense of urgency.” The vast majority of Johnson’s colleagues, however,
found her to be “pleasant to work with.” And van der Lugt signed Johnson’s 2015
performance appraisal, which stated th at Johnson’s overall job performance was
“[e]xcellent,” the highest rating possible.

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Between 2015 and 2016, personnel in the marketing department changed. In 2015,
SICO fired two individuals. That same year, van der Lugt hired J.S. as an advertiser. When
J.S. joined SICO, he was in his twenties. Then in 2016, Johnson’s colleague and fellow
space designer resigned from SICO and van der Lugt hired L.E. to fill the vacant space
designer position because of her knowledge of Revit. When L.E. joined SICO, she was in
her early forties. From March 2016 on, van der Lugt’s direct reports were Johnson, J.S.,
and L.E.
Johnson felt that her relationship with van der Lugt was different from the
relationship that van der Lugt had with J.S. and L.E. According to Johnson, the relationship
between van der Lugt and J.S. was “atypical,” and she described an instance in which van
der Lugt invited J.S. to her home to take photo s of a new SICO product. J.S. and van der
Lugt drank alcohol during the photoshoot and J.S. “wound up staying the night because he
couldn’t drive home.” Van de r Lugt never invited Johnson to her home. Similarly, van
der Lugt included J.S. and L.E. on work trips with her, but never included Johnson, which
a SICO employee testified “seemed strange.” When Johnson asked van der Lugt why she
was not invited to attend the work trips van der Lugt responded, “Why do you think?” At
work, van der Lugt left Johnson out of team meetings and lu nches. At one point, after
Johnson told van der Lugt that years ago she taught herself to use a computer program, van
der Lugt told Johnson that she wanted “the old [Johnson] back” who had tried to bring new
ideas and technology into the marketing department.
Continuing into the latter part of 2016, van der Lugt’s dissatisfaction with Johnson
and her work product grew. In October, van der Lugt sent Johnson an email stating that a

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project Johnson completed in Revit was not “acceptable work.” But Johnson had requested
more training in Revit the year before and van der Lugt denied the request. Van der Lugt
directed Johnson to send all future Revit jobs to van der Lugt for approval before sending
them to customers. Further, van der Lugt asked Johnson to set up a meeting to discuss how
she planned to address the inconsistencies in her work. In November 2016, Johnson failed
to timely report her weekly projects, contrary to van der Lugt’s instructions.
In Johnson’s annual performan ce evaluation for 2016, van der Lugt said that her
overall job performance “[n]eeds [i]mprovement,” which was the second to lowest rating
possible. Johnson disagreed with van der Lugt’s evaluation of her performance and
expressed her concerns to SICO’s human resources manager (HR manager). Johnson told
HR manager that she felt van der Lugt was tr ying to force her out of her position. HR
manager told Johnson to keep track of and document her concerns with van der Lugt, but
HR manager took no further action. In the employee comments section of her performance
evaluation, Johnson wrote that she disagreed with some comments made about her work
performance. Yet both Johnson and van de r Lugt signed Johnson’s 2016 performance
evaluation.
In 2017, van der Lugt continued to be displeased with Johnson’s work performance.
Throughout the year, van der Lugt sent Johnson multiple emails explaining her
dissatisfaction with Johnson’s ability to prioritize work, manage deadlines, multi-task, and
track details. In April 2017, van der Lugt recommended to SICO’s president (president)
that the company place Johnso n on a performance improvement plan. In June 2017, van

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der Lugt met with SICO’s chief executive officer (CEO) to discuss Johnson’s work
performance.
Later that month, presiden t met with Johnson and informed her that van der Lugt
was not satisfied with Johnson’s work perform ance. President stated that van der Lugt
would continue to assign Johnson space desi gn projects that she determined were a good
fit for Johnson, but that Johnson would also be asked to handle additional responsibilities
including completing projects fo r president as his executive assistant and working as the
receptionist. Johnson told pres ident that she “wasn’t happy,” “wanted to keep her job,”
and felt like the change in her job duties was “age discrimination.” President became upset
that Johnson used the wo rd “discrimination,” and stated that since she did, he needed to
call human resources into the meeting. HR manager joined the meeting and stated that she
felt it would be more appropriate for Johnson to go on a performance improvement plan,
rather than changing her role at SICO.
In July 2017, HR manager and van der Lugt met with Johnson to discuss a proposed
performance improvement plan. Because Johnson felt the proposed performance
improvement plan was too difficult, SICO prepared an updated performance improvement
plan and gave it to Johnson in early August 2017. Two da ys later, Johnson met with
SICO’s chair (chair) whom she knew well from working for the company for nearly four
decades. Johnson told chair that the issues that van der Lugt raised about her job
performance were not true and were making he r look like a bad employee. Chair stated
that he told van der Lugt that she could not place Johnson on a performance improvement
plan because SICO does not do that “to long-term employees.”

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That same day van der Lugt sent Johnson an email with the subject line of “Moving
Forward.” In the moving forward email, van der Lugt stated that Johnson would not be
placed on a performance improvement plan, a nd instead, she would relocate from the
marketing department to a cubi cal outside of chair’s office. The email also stated that
while Johnson would be provided a computer that was equipped with computer automated
design software, she would no longer work in Revit, have acce ss to the space design
mailbox, or schedule space design jobs. Rather than taking the next job on the project list,
Johnson would now be assigned design projects and other tasks by both van der Lugt and
L.E. Under this new arrangement, all of Johnson’s space design projects needed to be sent
to L.E. for approval before they could be sent to a customer, even though Johnson
continued to report to van der Lugt. Finally, Johnson’s pay and hours remained unchanged.
After transitioning to her new role Johns on consistently communicated with L.E.
and van der Lugt seeking work assignments, but was rarely given work. Instead, van der
Lugt would respond, “we will let you know if we have anything for you” and L.E. would
tell Johnson, “I have it cove red.” Johnson similarly ema iled HR manager and president
and stated that she had nothing to work on. HR manager told Johnson to “raise a stink
then, just like you did about the [performance improvement plan]. Maybe [van der Lugt]
will take notice. All you can do is be a squ eaky wheel now if you have no work.” And
president told Johnson that it was more appropriate for her to discuss her work assignments
with van der Lugt. Between August and December 2017, Johnson worked on three design
projects. She received two of the three jobs from L.E. and she rece ived the third from a
salesperson who asked Johnson to complete the job when L.E. was out of the office. In the

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fourteen months before Johnson’s job reassi gnment, she completed an average of 19.6
design projects per month.
In November 2017, Johnson filed a char ge with the federal Equal Employment
Opportunity Commission (the EEOC) and th e Minnesota Department of Human Rights
(the MDHR) alleging that SICO was discrimina ting against her because of her age. That
same day, Johnson announced her retirement from SICO by email to van der Lugt. Johnson
stated:
The reason behind my retirement at this time is that I can no
longer work under the intolerable conditions of the past several
months and I see no steps being taken to make improvements.
I cannot sit back in the corner being ignored and not given any
design jobs or projects to work on.

Since Johnson’s retirement, SICO has not hi red a space designer to replace her because
L.E. can handle all of SICO’s space design needs.
The next month, acting on a pro se basis, Johnson served SICO with a handwritten
complaint. After retaining counsel, Johns on served an amended complaint alleging age
discrimination, reprisal, constructive discha rge, and intentional infliction of emotional
distress.
1 SICO moved for summary judgment and the district court granted SICO’s
motion.
This appeal followed.

1 Johnson does not challenge the district court’ s dismissal of her intentional-infliction-of-
emotional-distress claim on appeal.

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DECISION
Johnson argues that the district court e rred by granting summary judgment on her
age-discrimination and reprisal claims. We review a district court’s decision to grant
summary judgment de novo. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC , 790
N.W.2d 167, 170 (Minn. 2010). In doing so, we examine whether the district court erred
in its application of the law and whether there are any genuine issues of material fact. Id.
We view the evidence in th e light most favorable to th e nonmoving party and do not
reweigh facts or make credibility determinations. Stringer v. Minn. Vikings Football Club,
LLC, 705 N.W.2d 746, 753-54 (M inn. 2005). Summary judgmen t must be denied when
reasonable persons might draw different legal conclusions from the evidence presented.
Kenneh v. Homeward Bound, Inc. , 944 N.W.2d 222, 228 (Minn. 2020). But “we may
affirm a grant of summary judgment if it can be sustained on any grounds.” Doe 76C v.
Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
I. Johnson’s age-discrimination claim
To survive summary judgme nt on an employment-discrimination claim under the
Minnesota Human Rights Act (the MHRA), a plaintiff may show discriminatory intent by
direct evidence or by using circumstantial evidence under the three-part burden-shifting
test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hoover v. Norwest Private Mortg. Banking , 632 N.W.2d 534, 542
(Minn. 2001). Johnson claims that she showed SICO’s discriminatory intent by both direct
and circumstantial evidence.

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A. Direct evidence
Direct evidence is evidence of conduct or statements by the employer’s decision-
makers that sufficiently reflect the alleged discriminatory attitude and permit the fact-finder
to infer that the discriminatory attitude was more likely than not a motivating factor in the
employer’s adverse employment decision. Walton v. McDonnell Douglas Corp., 167 F.3d
423, 426 (8th Cir. 1999). 2 But “[n]ot all comments that may reflect a discriminatory
attitude are sufficiently related to the adve rse employment action in question to support
such an inference.” Id. For example, stray remarks or statements by decision-makers
unrelated to the decision-making process itse lf do not support the inference that the
discriminatory attitude was a motivating factor in the adverse employment decision. Id.
Johnson argues that van der Lugt’s statem ent that she wanted the “old [Johnson]
back” is direct evidence of age discrimination. The district court found that Johnson failed
to establish that van der Lugt’s statemen t was a motivating factor for any adverse
employment decision. We agree. Johnson testified that the comment was made during
one of her discussions with van der Lugt, but that she does not remember when. There is
no evidence that van der Lugt made an ageist statement in relation to any decision-making
process. And the record shows that the “old” Johnson that van der Lugt wanted back was

2 This court relies on federal caselaw interpreting anti-discrimination laws when the federal
statute and the provision of the MHRA at issue are similar. See Wenigar v. Johnson, 712
N.W.2d 190, 205 (Minn. App. 2006) (“To help us determine if a cause of action exists
under the MHRA, it is appropriate to call on the interpretations of the federal anti-
discrimination statutes when the provisions of the federa l statute and the MHRA are
similar.”); see also Bahr v. Capella Univ., 788 N.W.2d 76, 83 (Minn. 2010) (“In construing
the MHRA, we apply law develo ped in federal cases arising under Title VII of the 1964
Civil Rights Act.” (quotation omitted)).

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the Johnson who used to try to bring ne w ideas and technology to the marketing
department. Thus, van der Lugt’s statemen t does not support the inference that any
discriminatory attitude was a motivating factor in an adverse employment decision against
Johnson. Viewing the ev idence in the light mo st favorable to Johnson, we conclude that
the record does not contain direct evidence of age discrimination su fficient to withstand
summary judgment.
B. Circumstantial evidence
Johnson may also show di scriminatory intent on behalf of SICO through
circumstantial evidence under the McDonnell Douglas test. Hoover, 632 N.W.2d at 542.
The McDonnell Douglas test has three steps: first, an employee must establish a prima
facie case of discrimination by a preponderance of the evidence. Dietrich v. Canadian
Pac. Ltd., 536 N.W.2d 319, 323 (Mi nn. 1995). Second, if the employee proves a prima
facie case, the burden of production shifts to the employer to prove a nondiscriminatory
reason for the adverse employment action. Id. And third, if the employer establishes a
nondiscriminatory reason for the adverse em ployment action, the employee must prove
that the employer’s legitimat e reasons for the adverse empl oyment action were a pretext
for discrimination. Id.
To establish a prima facie case for age di scrimination, Minnesota courts generally
require a plaintiff to show that: (1) she is a member of a protected class, (2) she had the
qualifications for the position at issue, (3) she was discharged, and (4) she was replaced by
a person outside the protected class. Pribil v. Archdiocese of St. Paul & Minneapolis, 533
N.W.2d 410, 412 (Minn. App. 1995). But th e requirements of the prima facie test for

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employment discrimination may vary dependi ng on the circumstances of the case.
McDonnell Douglas, 411 U.S. at 802 n.13; see also Friend v. Gopher Co., 771 N.W.2d 33,
37 (Minn. App. 2009) (stating that the purpose of a prima facie showing “is to disprove the
most obvious legitimate bases for the employme nt decision”). To establish a prima facie
case under the facts here, Johnson must show that (1) she is a member of a protected class,
(2) she was qualified for her position, (3) she suffered an adverse employment action, and
(4) the circumstances give rise to an inference of discrimination. Henry v. Indep. Sch. Dis.
#625, __N.W.2d__, __, 2021 WL 3136521, at *6 (Minn. July 26, 2021).
The parties do not dispute that the first a nd second elements in the prima facie test
for age discrimination are met. Turning to the third element, the district court determined
that Johnson failed to establish a prima facie case for age discrimination because she failed
to show that she suffered an adverse employment action. 3 Johnson argues that she was
subject to an adverse employment action because SICO constructively discharged her.
“A constructive discharge occurs when an employee resigns in order to escape
intolerable working conditions caus ed by illegal discrimination.” Pribil, 533 N.W.2d at
412 (quotation omitted). To prove constructive discharg e the employee must show (1) a

3 In its order, the district court notes that Johnson “asks the Court not to treat constructive
discharge as a separate claim, but rather to view it in the context of her age discrimination
and reprisal claims.” Based on its order, it is not clear whether the district court treated
Johnson’s constructive discharge claim as a se parate claim. “[C]onstructive discharge is
not an independent, free-standing cause of action. Rather, constructive discharge is a
doctrine that may be invoked by a plaintiff in some employment-related actions to prove
that, even though the plaintiff resigned from his or her job, the defendant should be deemed
to have made an adverse employment action.” Coursolle v. EMC Ins. Group, Inc. , 794
N.W.2d 652, 660 (M inn. App. 2011), rev. denied (Minn. Apr. 19, 20 11). Thus, if the
district court found that constructive discharge was a separate claim, it erred.

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reasonable person in her situa tion would find the working co nditions intolerable, and
(2) the employer intended to fo rce her to quit or retire. Id.; see also Shea v. Hanna Min.
Co., 397 N.W.2d 362, 368 (Minn. App. 1986) (“Constructive discharge may also occur
when the employer has created a situation in which a reasonable person would feel
compelled to resign or retire.”). An employee can satisfy the second element through direct
evidence that “her employer consciously meant to force her to quit” or by proving that the
employer could reasonably foresee that it s actions would lead to the employee’s
resignation. Pribil, 533 N.W.2d at 412. When determ ining whether a reasonable person
would find the working conditio ns intolerable, we do not consider Johnson’s subjective
feelings. Id. Instead, the test is objective and tu rns “not on [Johnson’s] actual reaction,
but on the reaction of a reasonable employee in [her] position.” Id. (quotation omitted).
The district court determined that having a “new desk location in the same building,
with no reduction in her hours worked, are not such intolerable conditions that would give
rise to a constructive discharge claim.” The di strict court, however, glossed over the fact
that SICO effectively exiled Johnson from the marketing department and took away
virtually all of her design work. An “employer can render working conditions intolerable
through inaction as well as action.” Sanders v. Lee Ctny. Sch. Dist. No. 1 , 669 F.3d 888,
893 (8th Cir. 2012). Even so, the totality of Johnson’s working conditions do not constitute
intolerable conditions. Viewed from an objective standard, a reasonable employee whose
desk was relocated, who was assigned a lower volume of work, and w ho was left out of
gatherings, without a reduction in their hour s or pay, would not find their working
conditions intolerable. Because Johnson failed to show that her working conditions were

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intolerable, she has failed to establish a pr ima facie claim for constructive discharge and
has thus failed to show that she suffered an adverse employment action.
Viewing the evidence in the lig ht most favorable to Johnson, we conclude that the
record lacks circumstantial evidence of age discrimination sufficient to withstand summary
judgment.
II. Johnson’s reprisal claim
Johnson also argues that the district court erred by granting summary judgment on
her reprisal claim. It is an unfair discriminatory practice to intentionally engage in reprisal
against any person who opposed an employment practice forbidden by the MHRA. Minn.
Stat. § 363A.15 (2018). “A reprisal includes, but is not limited to, any form of intimidation,
retaliation, or harassment.” Id. A reprisal claim is analyzed under the three-part
McDonnell Douglas burden-shifting test. Hoover, 632 N.W.2d at 547. To satisfy the first
part of the test, an employee must s how a prima facie claim for reprisal. Dietrich, 536
N.W.2d at 323. A prima facie case for reprisal consists of three elements: “(1) statutorily-
protected conduct by the employee; (2) adve rse employment action by the employer; and
(3) a causal connection between the two.” Hoover, 632 N.W.2d at 548 (quotation omitted).
Here, because Johnson has failed to es tablish an adverse employment action by
SICO, the second element of a prima facie claim for reprisal is not satisfied and her reprisal
claim fails as a matter of law. Viewing the evidence in the light most favorable to Johnson,
we conclude that the record lacks evidence of reprisal su fficient to withstand summary
judgment.

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Johnson also argues that the district court erred by determining that her age-
discrimination claim was time-barred. But we may affirm a grant of summary judgment if
it can be sustained on any grounds. Doe 76C, 817 N.W.2d at 163. Because the record
lacks evidence of age discrimination or reprisal sufficient to withstand summary judgment,
we affirm the district court’s grant of summary judgment on the merits and need not reach
Johnson’s statute-of-limitations argument.
Affirmed.