Nicole Bergstrom-Ek v. Best Oil Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 98-1037
_____________

Nicole Bergstrom-Ek, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Best Oil Co., d/b/a/ The Little Stores, *
and Lola Aune, *
*
Appellees. *
_____________

Submitted: June 10, 1998
Filed: August 11, 1998
_____________

Before LOKEN and HEANEY, Circuit Judges, and JONES1, District Judge.
_____________

JONES, District Judge.

Nicole Bergstrom-Ek appeals from a final judgment entered in the District Court
for the District of Minnesota granting Best Oil, Co. d/b/a The Little Stores (“Little
Stores”) summary judgment on several state law claims and judgment as a matter of
law on Ek’s claims of sex discrimination based on pregnancy and reprisal. We affirm

1
The Honorable John B. Jones, United States District Judge, United States
District Court for the District of South Dakota, sitting by designation.
the District Court’s ruling on the summary judgment motion, but reverse the grant of
judgment as a matter of law and remand for further proceedings.

I. BACKGROUND

Ek brought this action for sex discrimination based on pregnancy under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the
Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) and the Minnesota Human
Rights Act, Minn. Stat. §§ 363.01-363.15 (“MHRA”), and reprisal under the MHRA.
Prior to trial, the District Court granted Little Stores’ and Aune’s motion for summary
judgment on several of Ek’s state law claims. On the first day of trial, prior to jury
selection, the District Court reconsidered its ruling on the summary judgment motion
and granted summary judgment in favor of Little Stores and Aune on the remaining
negligence claims. As a result of this ruling Aune was dismissed as a party defendant.
At the close of Ek’s case during the jury trial, the District Court granted judgment as a
matter of law to Little Stores on Ek’s sex discrimination and reprisal claims.

Resolving all factual conflicts in favor of Ek and giving her the benefit of all
reasonable inferences, the record reveals the following facts. See Manning v.
Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 689 (8th Cir. 1997) (discussing the
applicable standard to review a grant of judgment as a matter of law). Ek began her
employment with Little Stores at the West End Little Store (“West End”) in Duluth,
Minnesota in October 1993 as a sales clerk, earning minimum wages. Ek was 19 years
old. Throughout Ek’s employment at West End, Lola Aune was the manager. In early
January 1995, Ek was selected to be promoted to assistant manager and began training
for the paperwork duties she would have as an assistant manager. Aune told Ek that Ek
would have a good chance of becoming the manager of West End because at some time
Aune would probably move to a new store on Central Avenue. On January 12, 1995
Ek received an excellent review for her job performance and was given a $.30 per

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hour raise, which became effective January 29, 1995. Ek learned she was pregnant a
few days after she received this review. Ek told Aune she was pregnant one or two
days after she learned of her pregnancy.

Ek had an excellent working relationship with Aune until she told Aune about her
pregnancy in mid-January 1995. They socialized outside of the workplace on at least
four occasions between October 1993 and January 1995. However, their relationship
changed after Ek informed Aune of her pregnancy. During their first conversation about
the pregnancy, Aune told Ek to get an abortion. Aune said Ek was “stupid,” that the
father would never “stick around” and that Ek would end up on welfare. Aune offered
to take Ek to the Twin Cities to get an abortion and also offered to pay for an abortion.
Ek refused to have an abortion. Lynette Lone, a sales clerk at West End, witnessed the
negative change in Aune’s behavior toward Ek after Aune learned of Ek’s pregnancy.
Lone heard Aune tell Ek to get an abortion on more than six different occasions. Aune
did not deny that she discussed the issue of abortion with Ek. Aune testified that rather
than telling Ek to get an abortion, she told Ek if she were in Ek’s situation she might
have an abortion

On one occasion Aune called Ek’s home and talked to Ek for a long period of
time trying to persuade her to get an abortion. During this phone conversation, Aune
again offered to pay for an abortion and provide transportation to the Twin Cities. Ek
again told Aune that she would not have an abortion. Once Ek refused to have an
abortion, Aune said she would push Ek down a flight of stairs to cause a miscarriage,
that Ek would have no way to pay for a baby, and that insurance would not cover the
cost of delivering the baby because Ek was pregnant before she was promoted. On
another occasion, Aune invited her cousin to come into West End and tell Ek how much
it costs for the birth of a baby. In February 1995 Aune and another Little Stores
manager told Ek she would not be able to move up in the company because she could
not take care of a child and manage a career. Ek wanted to be happy about being
pregnant, but Aune made her feel completely miserable.

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 In January 1995, Aune, Ek and Curt Solomon (Aune’s supervisor) met to discuss
Ek’s promotion to assistant manager. During this conversation Aune told Solomon that
Ek was pregnant and that Aune told her to get an abortion. Solomon inquired whether
Ek wanted to have an abortion. Ek told him “no.” Aune was not disciplined for
discussing Ek’s pregnancy on work premises or for suggesting that Ek have an abortion.

Although lifting heavy items, such as pop crates, was part of Ek’s regular job
duties, Aune made Ek lift such items more often than she was required to do before she
became pregnant. Ek did not have a doctor’s order restricting her activities, but Ek
believed lifting such heavy items would harm her pregnancy. On one occasion Ek
brought in a doctor’s order requesting that Ek not work that evening. When Aune
received the order she said if Ek’s pregnancy was going to cause any restrictions on her
work, Aune would reevaluate Ek’s position.

On March 10, 1995, Ek ended her employment at West End. Aune was not
present in the store that day. Denise Bond, Aune’s aunt, was working at the store on
March 10, 1995. Bond was an assistant manager with whom Ek did not have a good
working relationship. Bond ordered Ek (who was an assistant manager in training) to
stock the pop cooler. Following a discussion between Ek and Bond regarding Bond’s
order, Ek called Aune to settle the dispute. Ek was upset at the manner in which Bond
ordered her to stock the pop cooler and also told Aune she was concerned that carrying
the heavy pop crates would harm her pregnancy. Aune told Ek she would be okay
because she was not that far along in her pregnancy and told her to just put up with
Bond and go stock the cooler. Aune refused to allow Ek to speak with Curt Solomon
who was in the same store where Aune was working that day. Ek ended her
employment at West End immediately after the conversation with Aune.

Ek left a message for Chris McKinney, a part-owner of Little Stores, to call her
on the day she quit. A few days later, when Chris McKinney called her back, Ek

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informed him of the reasons she quit at West End including her concerns about her
pregnancy and the way Aune had been treating her. Thereafter Ek spoke with Mike
McKinney, another part-owner of Little Stores, who informed Ek that two other Little
Stores had openings for assistant managers and that Ek could choose between them.
Ek chose the Spirit Valley Little Store (“Spirit Valley”), which was only four blocks
from Ek’s home. When Ek arrived at Spirit Valley to begin her employment, she was
informed that she was only scheduled for 20 hours per week. At West End, Ek had
been working 40 to 45 hours per week. The company policy required assistant
managers to work at least 35 hours per week, and guaranteed such hours to assistant
managers. Ek performed sales clerks’ duties at Spirit Valley, rather than the additional
duties of an assistant manager. When Ek asked the manager of Spirit Valley about the
reduction in Ek’s hours, he responded that they were overstaffed and Ek was led to
believe it would continue like that. The manager did not say how long the reduction in
hours would last, and Ek did not further pursue the issue. Ek did not call Mike
McKinney regarding the reduction in hours. Ek saw one schedule and worked two
shifts prior to quitting at Spirit Valley. Prior to Ek quitting at West End, Aune explained
to Ek the way the Little Stores got rid of undesirable employees, whom they did not
have sufficient grounds to terminate, was to reduce their hours. Ek provided one
specific example of when Aune utilized this method. Aune reduced the hours for a
female employee with several medical problems, whom Aune did not have sufficient
grounds to terminate, even to the point of not scheduling her for any hours for a one-
week period.

Prior to Ek’s employment at West End, two other young female sales clerks had
experiences with Aune similar to that described by Ek. We note that conflicting
testimony was presented regarding these two individuals, but we will resolve all factual
conflicts in favor of Ek. See Manning, 127 F.3d at 689. Carol Ranua was a sales clerk
at West End from August 1991 to June 1992. Ranua was terminated two or three days
after informing Aune she was pregnant. Aune asked Ranua whether she was sure she
should have a baby. Aune required Ranua to lift heavy items and was hostile to her

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after learning of Ranua’s pregnancy. On one occasion, Solomon (Aune’s supervisor)
and Aune mocked Ranua for refusing to carry a heavy box of canned goods up a ladder,
despite knowing Ranua was pregnant. Ranua had been written up on approximately
four different occasions prior to being fired, which Little Stores asserts was the reason
for her termination. Ranua informed Mike McKinney of her belief that she thought
Aune fired her because of her pregnancy. Following an investigation, Mike McKinney
concluded sufficient grounds existed for Ranua’s termination. Aune was not subjected
to any type of disciplinary action in relation to Ranua’s termination.

Jennifer Carr/Norman worked at West End from September 1991 to January
1992. After Carr told Aune she was pregnant, Aune was hostile to Carr, called Carr
names such as “bitch” and “whore,” and made Carr lift heavy items and shovel snow
more often than she made Carr do prior to learning Carr was pregnant. Aune
approached the father of Carr’s baby while he was a customer at West End and told him
he was “stupid,” he was messing up Carr’s and his lives and asked him whether he had
heard about condoms. After Carr quit, she talked to Mike McKinney but could not
remember whether she told him why she thought Aune was treating her badly. Carr
wrote a lengthy letter to Mike McKinney explaining Aune’s actions, but did not
explicitly state she thought Aune was treating her badly because of her pregnancy.
Mike McKinney warned Aune not to repeat the rude comments she made to Carr’s
boyfriend and not to discuss the pregnancy on work premises. Mike McKinney offered
to transfer Carr to the Spirit Mountain Little Store. Carr worked at Spirit Mountain for
one day and quit because her hours were cut and no one would talk to her or tell her
what to do.

As noted above, the District Court granted summary judgment to Little Stores on
Ek’s state-law claims. At the close of Ek’s case during the jury trial, the District Court
granted Little Stores’ motion for judgment as a matter of law on Ek’s claims for sex
discrimination based on pregnancy under Title VII and the MHRA, and reprisal
discrimination under the MHRA. Regarding the sex discrimination claim, the District

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Court found that no reasonable juror could conclude Ek was constructively discharged
because Ek did not give Little Stores a reasonable opportunity to resolve the problem.
Regarding the reprisal claim, the District Court found Ek failed to present sufficient
evidence to show Little Stores engaged in retaliatory conduct.

II. DECISION

A. Judgment As A Matter of Law

We review de novo the district court’s grant of judgment as a matter of law,
applying the same standard used by the district court. Manning, 127 F.3d at 689.
“‘Judgment as a matter of law is appropriate only where the nonmoving party has
presented insufficient evidence to support a jury verdict in his or her favor, and this is
judged by viewing the evidence in the light most favorable to the nonmoving party and
giving him or her the benefit of all reasonable inferences from the evidence, but without
assessing credibility.’” Harvey v. Wal-Mart Stores, Inc., 33 F.3d 969, 970 (8th Cir.
1996) (quoting, Abbott v. City of Crocker, 30 F.3d 994, 997 (8th Cir. 1994)).

1. Sex Discrimination Under Title VII and the MHRA

Title VII of the Civil Rights Act of 1964 and the MHRA declare it unlawful for
an employer to discharge “or otherwise to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment, because
of such individual’s ... sex ....” 42 U.S.C. § 2000e-2(a)(1); see also, Minn. Stat. §
363.03, subd. 1(2) and (5). As amended by the Pregnancy Discrimination Act, sex
discrimination under Title VII includes discrimination “on the basis of pregnancy,
childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). The MHRA likewise
prohibits discrimination against “women affected by pregnancy, childbirth, or
disabilities related to pregnancy or childbirth ....” Minn. Stat. § 363.03, subd. 1(5).

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 Although Ek focuses the argument in her briefs on quid pro quo sexual
harassment and hostile work environment sexual harassment, the District Court did not
evaluate her claims under these two theories. The District Court stated in its written
opinion regarding Little Stores’ and Aune’s summary judgment motion that the parties
agreed the McDonnell Douglas2 burden-shifting test should be applied to Ek’s claims.
(Joint App. at 54). The District Court further stated it was “unclear as to the particular
discrimination theory under which Ek is proceeding, but believes that she has alleged
a disparate treatment theory based upon constructive discharge ....” (Joint App. at 55).
Moreover, Ek agreed at the time of argument on Little Stores’ motion for judgment as
a matter of law that the McDonnell Douglas analysis was the proper measure of
evaluating Ek’s claims. Trial Transcript, p.387-412.

We agree with the District Court that Ek’s claims are properly evaluated under
a disparate treatment theory. See Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d
570, 574 (8th Cir. 1997) (finding the plaintiff’s claims were best suited to analysis under
a disparate treatment theory of constructive discharge because she claimed that due to
her pregnancies her employer “subjected her to criticism, discipline, and general
harassment in the workplace to the extent that the job-induced stress became too much
for her to endure”). Ek is similarly claiming that, due to her pregnancy, Aune subjected
her to criticism and general harassment in the workplace to the point that Ek was forced
to quit. The Supreme Court of Minnesota adopted the McDonnell Douglas analysis for
disparate treatment claims brought under the MHRA. Sigurdson v. Isanti County, 386
N.W.2d 715, 719-20 (Minn. 1986). Therefore, we will simultaneously discuss Ek’s sex
discrimination claims under Title VII and the MHRA.

To prevail on a sex discrimination claim under a disparate treatment theory, Ek
must present proof of discriminatory intent. Marzec v. Marsh, 990 F.2d 393, 395 (8th
Cir. 1993) (citations omitted). Ek relied upon circumstantial evidence to prove

2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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discriminatory intent and, therefore, we analyze the facts in this case under the burden-
shifting test set forth in the McDonnell Douglas line of cases. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993); Aikens, 460 U.S. at 713-15; Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas,
411 U.S. at 802. Ek is required to establish a prima facie case by presenting evidence
which demonstrates: “(1) she was a member of a protected group; (2) she was qualified
for her position; and (3) she was discharged under circumstances giving rise to an
inference of discrimination.” Hanenburg, 118 F.3d at 574, citing, Tidwell v. Meyer’s
Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996). If Ek is successful in establishing a
prima facie case, the burden of production shifts to Little Stores to offer a
nondiscriminatory reason for its action. Lang v. Star Herald, 107 F.3d 1308, 1311 (8th
Cir.) cert. denied, ___ U.S. ___, 118 S.Ct. 114 (1997), citing, Stevens v. St. Louis Univ.
Med. Ctr., 97 F.3d 268, 270-71 (8th Cir. 1996). If Little Stores offers a
nondiscriminatory reason, the burden shifts to Ek to show that she has sufficient
admissible evidence from which a rational factfinder could find that Little Stores’
proffered reason was false or not the real reason for its action, and that intentional
discrimination was the real reason. Id.

It is clear Ek has established the first two elements of her prima facie case. Ek
was a member of the protected class of pregnant women and Little Stores does not
dispute that Ek was qualified for her position. Regarding the third element, because
Little Stores did not actually terminate her, Ek is required to offer evidence sufficient
to demonstrate she was constructively discharged. See Hanenburg, 118 F.3d at 574.
“An employee is constructively discharged ‘when an employer deliberately
renders the employee’s working conditions intolerable and thus forces her to quit her
job.’” West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir. 1995) (quoting,
Smith v. World Ins. Co., 38 F.3d 1456, 1460 (8th Cir. 1994)); see Bersie v. Zycad
Corp., 399 N.W.2d 141, 146 (Minn.App. 1987) (stating that “‘[a] constructive
discharge occurs when an employee resigns in order to escape intolerable working

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conditions caused by illegal discrimination’”) (quoting, Continental Can Co., Inc. v.
State, 297 N.W.2d 241, 251 (Minn. 1980)). The employer must have acted with the
intention of forcing the employee to quit. Johnson v. Bunny Bread Co., 646 F.2d 1250,
1256 (8th Cir. 1981). “Constructive discharge plaintiffs ... satisfy Bunny Bread’s intent
requirement by showing their resignation was a reasonably foreseeable consequence of
their employers’ discriminatory actions.” Hukkanen v. International Union, 3 F.3d 281,
285 (8th Cir. 1993). An objective standard is employed to determine whether an
employee was constructively discharged. “‘An employee may not be unreasonably
sensitive to her working environment. A constructive discharge arises only when a
reasonable person would find her working conditions intolerable.’” West, 54 F.3d at
497 (quoting, Bunny Bread, 646 F.2d at 1256). If an employee quits without giving her
employer a reasonable chance to work out the problem, the employee is not
constructively discharged. West, 54 F.3d at 498.

For purposes of the motion for judgment as a matter of law, the District Court
assumed a reasonable person would find Ek’s working conditions intolerable. Given
the standard for evaluating a motion for judgment as a matter of law, we conclude Ek
has presented sufficient evidence to support a jury verdict in her favor on this element
of constructive discharge. Aune constantly tried to convince Ek to have an abortion,
even after Ek told Aune she would not have an abortion. Some of these statements, and
other statements regarding Ek’s pregnancy, were made in front of Ek’s co-employees
and customers at West End. Aune required Ek to lift heavy items more often than
before Aune learned of Ek’s pregnancy. Aune’s behavior toward Ek changed from
friendly and courteous to mean and hostile.

Regarding the issue of intent, Ek presented evidence that in the absence of
justifiable cause to fire an employee Little Stores’ method of getting an undesirable
employee to quit was to reduce such employee’s hours. Moreover, despite Mike
McKinney’s knowledge of other young pregnant females who complained of Aune’s
discriminatory conduct, no disciplinary action was taken against Aune, except the

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verbal warning in connection with Carr not to discuss employees’ pregnancies on work
premises. Based upon this evidence, a reasonable jury could conclude it was reasonably
foreseeable to Little Stores that other pregnant employees would quit because of Aune’s
discriminatory conduct.

The District Court ruled Ek was not constructively discharged based on its
finding that Little Stores was not given a reasonable opportunity to work out the
problem. When Ek left her shift at West End before it was over on March 10, 1995, she
immediately called the owners of Little Stores to inform them of Aune’s discriminatory
conduct. A few days later Mike McKinney offered Ek a position as an assistant
manager at two different stores. Ek accepted this offer and chose Spirit Valley.
However, upon Ek’s arrival at Spirit Valley she was only scheduled for 20 hours per
week and assigned the duties of a sales clerk. Although Ek did not again call Mike
McKinney, she attempted to resolve the issue of the reduction in her hours with the
manager of Spirit Valley. The manager informed Ek that Spirit Valley was overstaffed
and Ek understood the reduction in hours would continue. Ek worked two shifts at
Spirit Valley and quit. Although Little Stores makes the general assertion that Ek’s
hours would have increased, there is no evidence in the record to support that assertion.
After being harassed by Aune for nearly two months, being told she could transfer to
another store with an opening for an assistant manager and then learning Spirit Valley
was overstaffed, Ek decided to quit. At the time she made this decision, Ek possessed
knowledge of Little Stores’ method of getting an undesirable employee to quit. Based
upon the evidence presented at trial, we conclude Ek presented sufficient evidence for
a reasonable jury to conclude she gave Little Stores a reasonable opportunity to work
out the problem.

Having found that Ek presented sufficient evidence to support a jury verdict in
her favor on the issue of constructive discharge, we conclude Ek established a prima
facie case of sex discrimination based upon pregnancy. Therefore, we conclude the
District Court erred in granting Little Stores’ motion for judgment as a matter of law

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at the close of Ek’s case on Ek’s Title VII and MHRA claims of sexual discrimination
based upon her pregnancy. We reverse and remand for a new trial on these claims.3

2. Reprisal Claim Under MHRA

The MHRA makes it unlawful for employers to “intentionally engage in any
reprisal against any person because that person ... opposed a practice forbidden [by the
MHRA] or has filed a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this Chapter.” Minn. Stat. § 363.03, subd.
7(1). A reprisal is defined under the MHRA as including “any form of intimidation,
retaliation or harassment” including assignment to a “lesser position in terms of wages,
hours, job classification, job security, or other employment status.” Minn. Stat. §
363.03, subd. 7(2). The three-part analysis set forth in McDonnell Douglas is
applicable to a claim of reprisal under the MHRA. Hubbard v. United Press Int’l, Inc.,
330 N.W.2d 428, 444 (Minn. 1983). In order to establish a prima facie case of reprisal
discrimination, Ek must demonstrate: (1) that she engaged in statutorily protected
conduct; (2) there was an adverse employment action by Little Stores; and (3) a causal
connection existed between her conduct and the adverse employment action. Id. at 444.

Ek engaged in statutorily protected conduct by complaining about Aune’s
discriminatory conduct to Little Stores’ owners. In connection with the second element,
Ek presented evidence that following her transfer to Spirit Valley her hours

3
We note our recommendation that when faced with a motion for judgment as
a matter of law, the trial court should usually allow the case to go to the jury and review
the ruling, if necessary, upon a properly filed motion after the jury returns a verdict.
Harvey v. Wal-Mart Stores, Inc., 33 F.3d 969, 970 (8th Cir. 1994), citing, Dace v. ACF
Indus., Inc., 722 F.2d 374, 379 n.9 (8th Cir. 1983). This procedure eliminates the need
for a new trial in the event this Court decides on appeal that judgment was not properly
granted in favor of the moving party. Id.

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were cut by more than fifty percent and she was not assigned to perform the duties of
an assistant manager. Ek presented evidence that upon speaking with the manager of
Spirit Valley she was led to believe the reduction in hours would continue because of
overstaffing at that store. There was no evidence presented at trial to contradict Ek’s
understanding that the reduction in her hours would continue. Although the second
element is not as clearly established as the first element, we conclude Ek demonstrated
an adverse employment action by Little Stores in terms of reduced hours (resulting in
reduced wages) and reduced job responsibilities.

Ek must also establish a causal connection between her complaint to Little
Stores’ owners regarding Aune’s discriminatory conduct and the adverse employment
action. Although Ek does not present any direct evidence of a causal connection, this
element “may be demonstrated indirectly by evidence of circumstances that justify an
inference of retaliatory motive, such as a showing that the employer has actual or
imputed knowledge of the protected activity and the adverse employment action follows
closely in time.” Hubbard, 330 N.W.2d at 444-45. It is clear that Little Stores had
actual knowledge of Ek’s protected activity and that the reduction in Ek’s hours
followed closely in time. Ek was transferred to Spirit Valley within a few days of
leaving West End. Ek’s hours were immediately reduced to twenty hours and she was
not assigned the duties of an assistant manager at Spirit Valley. In addition, evidence
was presented that Little Stores’ method of getting an undesirable employee to quit was
to reduce such employee’s hours. We conclude Ek has demonstrated a causal
connection sufficient to establish her prima facie case of reprisal discrimination.

We conclude that Ek has established a prima facie case of reprisal pursuant to the
test set forth in McDonnell Douglas. We, therefore, reverse the District Court’s grant
of judgment as a matter of law to Little Stores on Ek’s reprisal claim, and remand for
further proceedings consistent with this opinion.

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B. Summary Judgment

We review de novo the district court’s grant of summary judgment. Davis v.
Fulton County, 90 F.3d 1346, 1350 (8th Cir. 1996) (citation omitted). Summary
judgment should be granted “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). We must view the evidence in the light most
favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). “The non-moving party, however, may not rest upon mere denials or allegations
in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for
trial.” Davis, 90 F.3d at 1350, citing, Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).

The District Court granted Little Stores’ motion for summary judgment on Ek’s
claims of intentional infliction of emotional distress, negligent infliction of emotional
distress, negligent supervision, negligent retention, violation of the Minnesota
Whistleblower’s Statute, Minn. Stat. § 181.932, and aiding and abetting reprisal against
Aune under the MHRA. On the first day of trial, prior to jury selection, the District
Court reconsidered its ruling on Little Stores’ motion for summary judgment and
granted summary judgment in favor of Aune and Little Stores on Ek’s claims of
negligence, negligent supervision, and negligent investigation. We have carefully
considered all arguments regarding these state law claims and have reviewed the entire
record in relation thereto. We find that there is no genuine issue of material fact and
that summary judgment was properly entered in favor of Little Stores and Aune on these
state law claims.

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 III. CONCLUSION

For the reasons stated herein, we find that the District Court erred in granting
Little Stores’ motion for judgment as a matter of law at the close of plaintiff’s case.
We reverse and remand the case for proceedings consistent with this opinion on Ek’s
claims of sex discrimination based on pregnancy under Title VII and the MHRA and
reprisal under the MHRA. We affirm the District Court’s decision in all other respects.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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