She also asserted various contract and tort claims based on fraud, misrepresentation, and defamation. An advisory jury returned a special verdict in Zycad's favor, finding no defamation and no sexual discrimination and/or sexual harassment. The trial court adopted those findings and directed entry of judgment for Zycad. On appeal, this court concluded the trial court's findings were not adequate and remanded for appropriate findings. See Bersie v. Zycad Corp., 399 N.W.2d 141 (Minn.Ct.App. 1987). Although this court suggested Bersie had made a prima facie showing of sex discrimination, the issue on appeal was limited only to whether the trial court's findings were adequate. See Bersie, 399 N.W.2d at 144.

Bowen v. Superwood Corp., 395 N.W.2d 738, 743 (Minn.Ct.App. 1986), pet. for rev. denied (Minn. Jan. 2, 1987). The dissent cites Bersie v. Zycad Corp., 399 N.W.2d 141 (Minn.Ct.App. 1987), for the proposition that a remand is necessary when the trial court failed to explicitly apply McDonnell Douglas. In Bersie, no less than ten incidents of alleged abuse occurred.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This court has adopted a McDonnell Douglas-type prima facie showing for cases involving sexual harassment. Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn.App. 1987); Klink v. Ramsey County, 397 N.W.2d 894, 901 (Minn.App. 1986), pet. for rev. denied (Minn. Feb. 13, 1987).

Though the corresponding prohibitions in the MHRA are worded differently, Minnesota courts apply substantially the same standards in construing that statute. See Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn.App. 1987). Thorn's complaint alleged that her co-workers subjected her to pervasive and unwanted sexual harassment that "substantially interfered with the Plaintiff's employment" and "created an intimidating, hostile, and offensive employment for the Plaintiff."

"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 conditions caused by illegal discrimination'") (quoting, Continental Can Co., Inc. v. State, 297 N.W.2d 241, 251 (Minn. 1980)).

The MHRA cases upon which plaintiff relies provide little support for her argument. Each involves conduct far more frequent and egregious.See, e.g., Cummings, 568 N.W.2d at 420 (harasser pinched plaintiff's buttocks and inner thigh, grabbed plaintiff's hips to simulate anal sex, and repeatedly subjected plaintiff to sexually explicit and derogatory taunts); Costilla v. Minnesota, 571 N.W.2d 587, 589-90 (Minn.Ct.App. 1997) (a longer-than-two year period when harasser touched, grabbed, propositioned, and threatened plaintiff, and made offensive phone calls to her at home); Bersie v. Zycad Corp., 399 N.W.2d 141, 142-43 (Minn.Ct.App. 1987) (harassers compared plaintiff to a prostitute, massaged her neck and shoulders, and intimidated her physically by blocking her path and invading her personal space). Plaintiff correctly notes that a single severe incident may be actionable under the MHRA, but she alleges nothing rising to this level.

She argues that it is necessary only to show evidence creating an inference of unequal treatment in order to establish a prima facie case. See Bersie v. Zycad Corp., 399 N.W.2d 141, 145 (Minn.App. 1987), citing Danz v. Jones, 263 N.W.2d at 399-400. However, we have held in order to establish a claim of co-employee harrassment it is necessary to show not only discriminatory treatment but also the employer's failure to take prompt action when it knew or should have known of the co-employee's conduct.

See Henry, 988 N.W.2d at 884 (explaining that constructive discharge may satisfy adverse-employment-action requirement of claim under the Minnesota Human Rights Act, Minn. Stat. §§ 363A.01-.50 (2022)); see also, e.g., Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn.App. 1987) (recognizing, in reversing judgment in favor of employer on sexual-harassment claim, that appellant, who resigned, could claim constructive discharge). So long as Sweasy establishes a breach of the settlement agreement

If an employee voluntarily terminates his or her own employment by quitting, the employer may defend against the employee's subsequent claim by arguing that there was no adverse employment action. See, e.g., Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn.App. 1987) (applying MHRA). In that circumstance, a plaintiff may invoke the constructive discharge doctrine to establish an adverse employment action despite his or her resignation.

Whether an employee's working conditions would be intolerable to a reasonable person is a question of fact, usually to be decided by a jury. Navarre v. S. Wash. Cnty. Sch., 633 N.W.2d 40, 57 (Minn. App. 2001), rev'd on other grounds, 652 N.W.2d 9 (Minn. 2002); see also Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn. App. 1987) (stating that "[t]he ultimate weighing of the evidence rests with the fact-finder" when attempting to show constructive discharge). A demotion can create intolerable working conditions.