United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3332

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Ellen Quinn, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

St. Louis County, a municipal *

corporation, *

*

Appellee. *

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Submitted: May 12, 2011

Filed: September 6, 2011

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Ellen Quinn sued her employer, St. Louis County, under the Minnesota Human

Rights Act (MHRA), Minn. Stat. §§ 363A.01-.43, and the Family Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-54, and asserted other state common law claims

including breach of employment contract. Quinn appeals the dismissal of her breach

of contract claim with prejudice, the denials of her motions for leave to amend her

complaint, the denial of her motion for reconsideration, and the adverse grant of
summary judgment on her MHRA and FMLA claims by the district court.1

 We

affirm. 

I.

In February 2007, Quinn, a St. Louis County employee, reported that she had

been sexually harassed by Steve Raukar, a County Commissioner. The County

launched an investigation into the charges. Quinn and the County eventually

negotiated a settlement agreement in which Quinn released the County from any legal

liability in exchange for the County’s assurance that it would not terminate her other

than for just cause for seven years. 

After Quinn complained of sexual harassment, she experienced stress, anxiety,

and depression. She took FMLA leave from May 14, 2007, to August 10, 2007, on

the advice of her physician. When Quinn returned to work, several incidents occurred

that led Quinn to believe the County was retaliating against her for reporting sexual

harassment. County employees accused her of lying about the sexual harassment, her

office was moved, and after she painted her office a custom color it was immediately

repainted white. In addition, Quinn testified that she was excluded from attending

out-of-state marketing meetings and workshops and from changing the County’s video

and sound systems, even though she was involved with these tasks in the past. Quinn

also recounted that throughout the fall of 2007, several County Commissioners were

quoted in the local media as challenging the veracity of her sexual harassment

complaint. 

In early 2008, the County hired Alan Mitchell, the attorney who had represented

Commissioner Raukar during the investigation into Quinn’s charges of sexual

1

The Honorable Ann D. Montgomery, United States District Judge for the

District of Minnesota.

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harrassment, as County Administrator and Quinn’s boss. Soon after, Quinn visited

her doctor because she felt anxious and depressed about working with Mitchell. 

Quinn recalled that during a meeting, Mitchell called her a “problem employee,”

stated that they did not “need to go out for dinner or for drinks or on a date to get

along,” and instructed her to “work hard.” Quinn requested that the Deputy County

Administrator be her supervisor rather than Mitchell, but Mitchell refused. 

Over the next few months, Mitchell accused Quinn of tardiness in turning in a

project that she had turned in on time, yelled at her in front of her coworkers during

a meeting, indicated that she might not be granted FMLA leave if she requested it, and

warned her in writing to report to work on time every day and obtain advance

approval for any absence. 

In March 2008, Quinn’s anxiety and depression had increased to the point that

her doctor advised that she take leave from work. Quinn asked for and received an

adjusted work schedule of three days per week. Quinn stopped reporting for work in

early April 2008, using sick leave until May 14, when she was eligible for FMLA

leave. In August 2008, Mitchell informed Quinn that her FMLA leave had expired

and requested that she obtain an independent medical examination to confirm her need

for full-time, non-FMLA leave. In September 2008, an independent physician

confirmed that Quinn was unable to work for the County, and Mitchell authorized

Quinn’s use of her remaining sick leave. In December 2008, Mitchell received a letter

from Quinn’s doctor stating that she would never be able to return to work for the

County. 

 

In May 2009, Quinn sued the County, asserting claims for MHRA reprisal

discrimination, FMLA interference, FMLA retaliation, breach of contract, and other

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claims.2

 The County moved to dismiss Quinn’s claim for breach of her employment

contract under Federal Rule of Civil Procedure 12(b)(6). Quinn responded, asking the

court to either deny the motion to dismiss on the merits or allow Quinn leave to amend

her complaint. The district court denied leave to amend and granted the County’s

motion, finding that both Quinn’s original complaint and her first proposed amended

complaint failed to state a claim for breach of her employment contract, and

dismissing Quinn’s claim with prejudice. Quinn moved for leave to amend her

complaint a second time, which the district court denied. Quinn then moved for

reconsideration, requesting that the court either allow her to amend her complaint or

amend its order dismissing her claim without prejudice, which the district court

denied. The County moved for summary judgment on Quinn’s MHRA and FMLA

claims. The district court granted the County’s motion. 

On appeal, Quinn raises several issues with respect to the district court’s rulings

related to her breach of employment contract claim, and she challenges the district

court’s adverse grant of summary judgment. 

II.

Quinn attempts to revive her breach of employment contract claim on several

grounds: (1) her original complaint sufficiently stated a claim under Federal Rule of

Civil Procedure 12(b)(6), and the district court required her complaint to include facts

beyond that required by Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); (2) in the

alternative, the district court should have dismissed her claim without prejudice rather

than with prejudice; (3) the district court abused its discretion in denying her first and

second motions to amend her complaint; and (4) the district court abused its discretion

in denying her motion for reconsideration.

2

Quinn also sued for disability discrimination under the MHRA, defamation,

intentional infliction of emotional distress, and negligent infliction of emotional

distress. Quinn does not appeal the dismissal of these claims.

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We do not reach the merits of Quinn’s arguments because any error with respect

to the dismissal of Quinn’s breach of employment contract claim was harmless. See

Fed. R. Civ. P. 61 (requiring all errors and defects that “do not affect any party’s

substantial rights” to be disregarded). In order to establish breach of employment

contract in Minnesota, an employee must show that she was discharged from

employment. Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412

(Minn. App. 1995). If the employee was not actually discharged—as here, where

Quinn resigned from her employment with the County—the employee may meet the

element by showing constructive discharge, which occurs when the employer creates

intolerable working conditions with the intent of forcing the employee to quit. Id.

In addition to being an element of Quinn’s breach of employment contract

claim, constructive discharge was also one of Quinn’s theories of recovery on her

MHRA reprisal claim. See Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410,

418 (8th Cir. 2010) (acknowledging constructive discharge as a theory of recovery for

retaliation). As discussed in detail infra, Quinn failed to generate a genuine issue of

fact as to constructive discharge in the context of her MHRA reprisal claim. See infra

III(A) at 9-10. Discovery revealed that no genuine issue of fact exists as to whether

the County constructively discharged Quinn, and as such, even if Quinn’s breach of

employment contract claim had survived the County’s motion to dismiss, it would not

have survived summary judgment. Accordingly, any error that occurred at the motion

to dismiss stage was harmless in the unusual circumstances of this case, and we affirm

the dismissal. See Fed. R. Civ. P. 61; Wright v. Miller, 96 F.3d 1445 (5th Cir. 1996)

(unpublished per curiam) (holding that error in dismissing claim under 12(b)(6)

harmless because summary judgment was appropriate on all claims); cf. Gibb v. Scott,

958 F.2d 814, 816-17 (8th Cir. 1992) (district court’s failure to convert 12(b)(6)

motion to summary judgment motion when considering matters outside pleadings may

be harmless when record supports summary judgment), and Toxgon Corp. v. BNFL,

Inc., 312 F.3d 1379, 1382-83 (Fed. Cir. 2002) (suggesting that treating error in

dismissing claim on 12(b)(6) as harmless is appropriate because a 12(b)(6) motion can

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be converted to summary judgment motion under federal rules). But see Rose v.

Hartford Underwriters Ins. Co., 203 F.3d 417, 420-21 (6th Cir. 2000) (rejecting

argument that district court’s error in denying leave to amend was harmless because

it would have granted summary judgment on claim eventually based on the later

developed record).

III.

Quinn also challenges the district court’s grant of summary judgment

dismissing her MHRA reprisal claim and her FMLA interference and retaliation

claims. We review the district court’s grant of summary judgment de novo, taking the

facts in the light most favorable to the nonmoving party and drawing all reasonable

inferences in the nonmoving party’s favor. Fercello v. Cnty. of Ramsey, 612 F.3d

1069, 1077 (8th Cir. 2010). “Where there is no dispute of material fact and reasonable

fact finders could not find in favor of the nonmoving party, summary judgment is

appropriate.” Id. We may affirm the district court’s ruling for any reason that the

record supports. Wilson v. Spain, 209 F.3d 713, 716 (8th Cir. 2000). 

A. MHRA Retaliation

Under the MHRA, employers may not retaliate against employees for reporting

sexual harassment. See Minn. Stat. § 363A.15.3

 In order to establish a prima facie

case of retaliation under the MHRA,4

 an employee must show that (1) she engaged in

protected conduct, (2) she suffered a materially adverse employment action, and (3)

3

In interpreting the MHRA, we apply Title VII standards. See Fercello v. Cnty.

of Ramsey, 612 F.3d 1069, 1074 n.2 (8th Cir. 2010); see also Bahr v. Capella Univ.,

788 N.W.2d 76, 83 (Minn. 2010) (stating that Minnesota courts “apply law developed

in federal cases arising under Title VII” in construing the MHRA).

4

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

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a causal connection exists between the materially adverse employment action and the

protected conduct. Fercello, 612 F.3d at 1077-78. The County moved for summary

judgment in part5

 based on Quinn’s failure to establish an issue of fact on whether she

suffered a materially adverse employment action. 

An employee suffers a materially adverse employment action in the context of

a MHRA retaliation claim when the employer engages in conduct that would dissuade

a reasonable employee from making a discrimination claim. Devin v. Schwan’s Home

Serv., Inc., 491 F.3d 778, 787-89 (8th Cir. 2007), abrogated on other grounds by

Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43, 1058 (8th Cir. 2011) (en

banc). The materially adverse employment action element may be met by an

employer’s single act “that produces a material employment disadvantage,” such as

termination, a cut in pay or benefits, or a change that undermines an employee’s future

career prospects. Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir.

1999). The element may also be met by the “cumulative effect” of an employer’s

alleged retaliatory conduct, if the acts, considered in the aggregate, would dissuade

a reasonable employee from reporting discrimination. Fercello, 612 F.3d at 1083-84;

Devin, 491 F.3d at 787-88. Similarly, the materially adverse employment action

element may be met by a series of acts by the employer that, considered collectively,

amount to constructive discharge. See Helton v. Southland Racing Corp., 600 F.3d

954, 961 (8th Cir. 2010).

 After carefully reviewing Quinn’s response to the County’s motion for

summary judgment, we conclude that Quinn did not adequately explain to the district

court why the disputed facts she listed were material to her theory that the County’s

actions, either individually or in the aggregate, would have dissuaded a reasonable

5

The County also moved for summary judgment on the basis that Quinn’s claim

was barred by the one-year statute of limitations for reprisal claims, see Minn. Stat.

§ 363A.28, subd. 3, and the district court agreed. Because we affirm on other

grounds, we do not reach the statute of limitations issue. 

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employee from reporting sexual harassment. A party cannot defeat a summary

judgment motion by asserting “the mere existence of some alleged factual dispute

between the parties”; the party must assert that there is a “genuine issue of material

fact.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also

Fed. R. Civ. P. 56(a). In order to show that disputed facts are material, the party

opposing summary judgment must cite to the relevant substantive law in identifying

“facts that might affect the outcome of the suit.” Anderson, 477 U.S. at 248. The

nonmoving party must then categorize the factual disputes in relation to the legal

elements of her claim. Id.; Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th

Cir. 2006). 

In order to survive the County’s motion for summary judgment, Quinn needed

to explain the legal significance of her factual allegations beyond mere conclusory

statements importing the appropriate terms of art. Doe ex rel Thomas v. Tsai, 2011

WL 3300686, at *3 (8th Cir. Aug. 3, 2011); Holland v. Sam’s Club, 487 F.3d 641, 644

n.5 (8th Cir. 2007). Quinn failed to provide meaningful legal analysis explaining

how, under the applicable law, the disputed facts might prove Quinn’s MHRA reprisal

claim at trial. Rodgers, 435 F.3d at 908. Specifically, Quinn did not argue that the

County’s actions, either individually or in the aggregate, would have dissuaded a

reasonable employee from reporting sexual harassment. See Devin, 491 F.3d at 787-

88 (providing reasonable employee standard). Instead, Quinn’s responsive motion

merely recounted her factual allegations and declared them “reprisal.” See Rodgers,

435 F.3d at 908 (conclusory statements insufficient to establish material question of

fact). 

The only non-conclusory explanation we glean from Quinn’s motion as to why

the County’s acts, either individually or in the aggregate, would have dissuaded a

reasonable employee from reporting sexual harassment is the assertion that Quinn felt

harassed. But the standard is objective—whether the employer’s actions would have

dissuaded a reasonable employee from reporting illegal conduct. Quinn’s subjective

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views are legally inconsequential. Fercello, 612 F.3d at 1081. Quinn simply did not

frame her argument before the district court using the appropriate, objective standard.6

Quinn also alleged that the County’s actions amounted to constructive discharge

in attempting to establish a materially adverse action. See Helton, 600 F.3d at 961. 

In support of her constructive discharge theory, Quinn cited applicable law and

employed meaningful analysis. To prove constructive discharge, “a plaintiff must

show (1) a reasonable person in [her] situation would find the working conditions

intolerable, and (2) the employer intended to force [her] to quit.” Fercello, 612 F.3d

at 1083 (quoting Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 616 (8th

Cir. 2007)). A plaintiff may satisfy the intent requirement through evidence that her

resignation was a reasonably foreseeable consequence of the employer’s actions. Id.

Quinn argued that a reasonable juror could conclude from the disputed facts she listed

that her working conditions were intolerable and that the County intended to force her

to quit. 

Although Quinn used the appropriate legal standard to attempt to establish a

material question of fact, no reasonable juror could conclude from the record facts that

the County intended to force Quinn to quit or that her resignation was a reasonably

foreseeable consequence of the County’s actions. To the contrary, the County

attempted to accommodate Quinn’s illness by adjusting her work schedule and

allowing her to take time off to recover. See Fercello, 612 F.3d at 1083 (granting time

off and accommodation of work schedule show intent to maintain employment

relationship); Devin, 491 F.3d at 790 (offering to discuss plaintiff’s options in order

to retain plaintiff as employee undercuts constructive discharge claim). In addition,

after Quinn took full-time leave, the County consistently encouraged Quinn to return

to work. For example, in a letter from the County to Quinn, the County wrote, “While

6

To the extent Quinn raises additional arguments on appeal, she waived these

arguments by failing to present them to the district court. Holland v. Sam’s Club, 487

F.3d 641, 644 (8th Cir. 2007). 

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we want you to return to work healthy, we do want you to return to work. You have

been a valued employee of St. Louis County and we have critical public information

work which needs to be done. We will continue to work with you to find a schedule

that would accommodate your needs and also fulfill the County’s requirements for

your job performance.” App’x at 96. Similarly, in an email from Mitchell to Quinn,

he wrote, “I must reiterate that the clear desire of St. Louis County is to have you back

at your job performing the service that you were originally hired for.” Id. at 101. The

record indicates that the County intended to maintain an employment relationship with

Quinn, and no reasonable factfinder could conclude that the County intended to force

Quinn to quit. See Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir. 2008)

(holding that plaintiff failed to generate issue of fact on employer’s intent to force

resignation when employer expresses desire for plaintiff to return to work). 

Accordingly, Quinn’s constructive discharge theory fails as a matter of law. 

Finally, we reject Quinn’s perfunctory invitation to reverse because the district

court ignored facts and inappropriately resolved issues of fact. Quinn’s brief lists

various facts that the district court allegedly ignored, asserts that the district court

resolved certain issues of fact in the County’s favor, and concludes that a genuine

issue of material fact exists. But Quinn neither explains why the facts to which she

refers are material, Tsai, 2011 WL 3300686 at *3, nor categorizes the factual disputes

in relation to the legal elements of her claim, Anderson, 477 U.S. at 247-48. 

Because Quinn failed to generate an issue of fact as to whether she suffered a

materially adverse employment action, summary judgment was appropriate as to

Quinn’s MHRA retaliation claim.

B. FMLA Interference

Quinn alleges that the district court erred in granting summary judgment in

favor of the County on her FMLA interference claim because the court failed to

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adequately analyze her claim. Specifically, Quinn argues that the district court did not

consider the fact that the County discouraged her from taking FMLA leave and

refused her requests before approving them. 

Under the FMLA, employers are prohibited from interfering with, restraining,

or denying an employee’s exercise or attempted exercise of any right contained in the

FMLA. 29 U.S.C. § 2615(a)(1). Quinn is right that FMLA interference includes “not

only refusing to authorize FMLA leave, but discouraging an employee from using

such leave,” as well as “manipulation by a covered employer to avoid responsibilities

under [the] FMLA.” 29 C.F.R. § 825.220(b). However, the employee must also show

that the employer denied the employee entitlements under the FMLA. Wisbey v. City

of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010), abrogated on other grounds by

Torgerson, 643 F.3d at 1042-43, 1058. Quinn does not contest the district court’s

finding that she received the full twelve weeks of FMLA leave to which she was

entitled each year she requested it. See 29 U.S.C. § 2612(a)(1) (providing that eligible

employees are entitled to twelve weeks of medical leave each year). Accordingly,

summary judgment was properly granted on Quinn’s FMLA interference claim. 

C. FMLA Retaliation

Quinn also argues that the district court erred in granting summary judgment

in favor of the County on her FMLA retaliation claim. An employer may not retaliate

against an employee for exercising her FMLA rights. 29 U.S.C. § 2615(a)(2).7

 “To

7

Because the County does not challenge it, we accept Quinn’s characterization

of her contention that the County “retaliated against her for the exercise of [her

FMLA] rights” as a FMLA retaliation claim under 29 U.S.C. § 2615(a)(2), Opposition

Motion at 37. We note, however, that we have previously indicated that when an

employee claims she suffered an adverse employment action because she exercised

her rights under the FMLA, the claim may be more appropriately analyzed under 29

U.S.C. § 2615(a)(1), than under 29 U.S.C. § 2615(a)(2). See, e.g., Scobey v. Nucor

Steel-Ark., 580 F.3d 781, 790 n.9 (8th Cir. 2009) (“Under the statute, retaliation for

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establish a prima facie case of FMLA retaliation, an employee must show that she

engaged in activity protected under the Act, that she suffered an adverse employment

action by the employer, and that a causal connection existed between the employee’s

action and the adverse employment action.” Darby v. Bratch, 287 F.3d 673, 679 (8th

Cir. 2002).

Quinn failed to generate an issue of fact as to whether she suffered an adverse

employment action. The only adverse employment action Quinn asserted in the

context of her FMLA retaliation claim was constructive discharge,8

 which, as we have

explained, the record does not support. See supra III(A) at 9-10.9

 Accordingly,

summary judgment was properly granted on Quinn’s FMLA retaliation claim.

exercising one’s FMLA rights appears to be just one aspect of what is meant by

‘interference,’ not a separate claim.” (citing Phillips v. Matthews, 547 F.3d 905, 913-

15 (8th Cir. 2008) (Colloton, J., concurring))).

8

Quinn makes additional arguments in support of an adverse employment action

on appeal, but she waived these arguments by not presenting them to the district court. 

Holland, 487 F.3d at 644. 

9

Every circuit that has addressed the issue has held that the “materially adverse”

standard for Title VII retaliation claims, Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 57 (2006), applies to FMLA retaliation claims. See, e.g., Cole v. Illinois,

562 F.3d 812, 816 (7th Cir. 2009) (requiring an adverse action giving rise to an FMLA

retaliation claim to be “materially adverse,” which means any action that would

dissuade a reasonable employee from exercising her rights under the FMLA);

McArdle v. Dell Prods., L.P., 293 F. App’x 331, 337 (5th Cir. 2008) (unpublished per

curiam) (holding that Burlington Northern applies to retaliation claims under the

FMLA; DiCampli v. Korman Cmtys., 257 F. App’x 497, 501 (3d Cir. 2007)

(unpublished) (applying Burlington Northern to FMLA retaliation claim); Metzler v.

Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006) (same). 

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IV.

For the foregoing reasons, we affirm the district court.

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