Kenneh v. Homeward Bound, Inc., A18-0174

• Citation: 944 N.W.2d 222
• Decision Date: 03 June 2020
• Docket Number: A18-0174
• Parties: Assata KENNEH, Appellant, v. HOMEWARD BOUND, INC., Respondent.
• Court: Supreme Court of Minnesota (US)

944 N.W.2d 222

Assata KENNEH, Appellant,

v.HOMEWARD BOUND, INC., Respondent.

A18-0174

Supreme Court of Minnesota.

Filed: June 3, 2020

Gerald T. Laurie, Laurie Law & ADR, Saint Louis Park, Minnesota; and Kelly A. Jeanetta, Kelly A. Jeanetta Law Firm, LLC, Minneapolis, Minnesota, for appellant.

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

Leslie L. Lienemann, Celeste E. Culberth, Culberth & Lienemann, LLP, Saint Paul, Minnesota, for amicus curiae Employee Lawyers Association of the Upper Midwest.

Christy L. Hall, Jess Braverman, Ashlynn M. Kendzior, Gender Justice, Saint Paul, Minnesota, for amicus curiae Gender Justice.

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

Lindsay J. Brice, Minnesota Coalition Against Sexual Assault, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition Against Sexual Assault.

Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota; and Margaret R. Ryan, Louise A. Behrendt, Meagher & Geer, P.L.L.P., for amicus curiae Minnesota Defense Lawyers Association.

Joseph G. Schmitt, Mark J. Girouard, Nilan Johnson Lewis PA, Minneapolis, Minnesota; and Sara G. McGrane, Meggen E. Lindsay, Brandon J. Wheeler, Felhaber Larson, Minneapolis, Minnesota, for amicus curiae Minnesota Management Attorneys Association.

Frances E. Baillon, Baillon Thome Jozwiak & Wanta LLP, Minneapolis, Minnesota; and Brian T. Rochel, Teske, Katz, Kitzer & Rochel, PLLP, Minneapolis, Minnesota, for amicus curiae National Employment Lawyers Association, Minnesota Chapter.

Amy E. Lauricella, Standpoint, Minneapolis, Minnesota, for amicus curiae Standpoint.

OPINION

McKEIG, Justice.

Appellant Assata Kenneh sued her former employer, respondent Homeward Bound, Inc., for sexual harassment in violation of the Minnesota Human Rights Act, Minn. Stat. §§ 363A.01 –.44 (2018). The district court granted summary judgment in favor of Homeward Bound after concluding that Kenneh failed to allege conduct sufficiently severe or pervasive to support a claim for sexual harassment. The court of appeals affirmed. Kenneh asks this court to abandon the severe-or-pervasive standard adopted from federal case law interpreting Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e (2018). Because the severe-or-pervasive standard continues to provide a useful framework for analyzing the objective component of a claim for sexual harassment under the Minnesota Human Rights Act, we decline to overturn our precedent. We further conclude that the conduct alleged by Kenneh was sufficiently severe or pervasive for a reasonable person to find the work environment to be hostile or abusive. Therefore, we affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

FACTS

This case comes to us on appeal of the district court's grant of summary judgment against appellant Assata Kenneh on her claim for sexual harassment under the Minnesota Human Rights Act. We view the evidence—and summarize it here—in the light most favorable to her. See McGuire v. Bowlin , 932 N.W.2d 819, 822 (Minn. 2019).

Kenneh began working for respondent Homeward Bound, Inc., a nonprofit organization that operates residential care facilities for people with disabilities, in 2014. Kenneh transitioned to working as a Program Resource Coordinator at the Brooklyn Park location in February 2016. Shortly after she started in this new position, she met the maintenance coordinator, Anthony Johnson. Because Johnson worked at multiple sites, he was not at the Brooklyn Park location every day.

Kenneh alleges that Johnson engaged in multiple incidents of sexual harassment from approximately February until June 2016. On their first encounter, Johnson complimented Kenneh on her haircut. He asked her who had cut her hair and where she lived. Although Kenneh said that her cousin cut her hair, Johnson said that he would cut her hair, at her home or at his. Kenneh was alarmed by the idea that a person she had just met would invite her into his home. Not long after their first encounter, Johnson walked by Kenneh's office and saw her struggling to open her desk drawer. He offered to help. As Kenneh started to move out of his way, he told her that she did not need to move because he "likes it pretty all day and all night." He also told her he liked "beautiful women and beautiful legs." Kenneh got out of her chair to avoid contact with him. While he was working on her desk, Johnson began talking to her in a seductive tone and licked his lips in a suggestive manner.

On March 24, Johnson stopped by Kenneh's office, blocking her door with his body. Kenneh made up an excuse to leave her office to avoid Johnson. She told him that she was going to buy something to drink from a nearby gas station. In what Kenneh viewed to be a sexually suggestive tone of voice, Johnson insisted on taking Kenneh to the onsite vending machine. Kenneh complied. On their way back from the vending machine, Kenneh suggested that Johnson could take some of the cake left over from a party held earlier that day. Johnson turned to look at Kenneh, licked his lips, and said in a seductive tone, "I don't eat any of this." When Kenneh asked Johnson what he meant, he said, "I will eat you—I eat women." Kenneh quickly walked past him and went back to her office alone.

On March 31, Kenneh was buying gas when Johnson drove up alongside her car. He rolled down the window and asked Kenneh where she was going. Kenneh answered Johnson's questions. When Kenneh pulled out of the gas station, she noticed Johnson left immediately after her, without putting gas in his car.

Kenneh told her supervisor about Johnson's comments and conduct the following day. Her supervisor was alarmed and asked Kenneh to make a written complaint. Kenneh's written complaint stated Johnson had been very verbally inappropriate with her and identified three specific incidents of harassment, including the desk-repair incident, Johnson's statement that he eats women, and that Johnson followed her to the gas station. Homeward Bound placed Johnson on paid leave pending an investigation. Human Resources personnel interviewed Kenneh and Johnson, at which time Kenneh also reported their first conversation about her hair. Johnson denied that each incident happened as alleged by Kenneh.

On April 11, the Director of Human Resources met with Kenneh and informed her that the investigation was inconclusive. She assured Kenneh that Johnson would receive additional sexual harassment training and would be instructed not to be alone with Kenneh. The Director sent Kenneh a letter the following week repeating what they had discussed.

Neither Kenneh's complaint nor Homeward Bound's investigation stopped Johnson's behavior. Instead, Johnson stopped by Kenneh's office more frequently, blocking her door with his body. Whenever Johnson would see Kenneh, he would gesture with his tongue, simulating oral sex. He continued to call her "sexy," "pretty," or "beautiful" every time that he saw her, despite Kenneh's requests for him to stop. Kenneh tried to ignore Johnson but he would stand in her doorway, watching her. When she turned toward the door and made eye contact with him, he simulated oral sex with his tongue.

Kenneh complained to her supervisor about Johnson's ongoing behavior on two more occasions to no avail. On June 1, Kenneh arrived late to work and was unprepared for a meeting. When her supervisor spoke with her about her attendance, Kenneh replied that she did not want to come to work because of Johnson. On June 29, Kenneh asked her supervisor if she could return to a flex-schedule position that would allow her to avoid interactions with Johnson. Homeward Bound denied her request for a transfer and terminated her employment.

Kenneh brought an action against Homeward Bound, claiming violations of the Minnesota Human Rights Act, including a claim for sexual harassment.¹ Kenneh alleged that Johnson's conduct created a hostile work environment. The district court granted summary judgment to Homeward Bound. Stressing "the high bar" that courts have set for sexual harassment claims based on a hostile work environment, the district court reluctantly determined that the conduct alleged did not meet the severe-or-pervasive standard for actionable sexual harassment. The district court found that "[s]ome of the conduct was boorish and obnoxious" and that the statement, "I will eat you. I eat women," was "both objectively and subjectively unacceptable." Nonetheless, the district court determined that the conduct, "however objectionable, does not constitute pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act."

The court of appeals affirmed. Kenneh v. Homeward Bound, Inc. , No. A18-0174, 2019 WL 178153 (Minn. App. Jan. 14, 2019). In addition to determining that Kenneh did not experience "severe or pervasive" sexual harassment, the court of appeals concluded that Kenneh did not make a sufficient showing that Homeward Bound was aware of ongoing harassment and failed to take appropriate remedial action. Id. at *3. We granted Kenneh's petition for review on issues related to her sexual harassment claim.

ANALYSIS

This case comes to us on appeal from summary judgment and our review is de novo. Visser v. State Farm Mut. Auto. Ins. Co. , 938 N.W.2d 830, 832 (Minn. 2020). On appeal from summary judgment, we examine whether there any genuine issues of material fact and whether the district court erred in its application of the law. Jennissen v. City of Bloomington , 938 N.W.2d 808, 813 (Minn. 2020). The construction of the Human Rights Act's provisions is a question of law that we review de novo. LaPoint v. Family Orthodontics, P.A. , 892 N.W.2d 506, 513 (Minn. 2017). We view the evidence in the light most favorable to the...