This opinion is nonprecedential except as provided by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
                                     A23-0991

                                  Karen Painter, PhD.,
                                      Appellant,

                                           vs.

                     Board of Regents of the University of Minnesota,
                                      Respondent.

                                   Filed April 1, 2024
                                        Affirmed

                                    Cochran, Judge

                             Hennepin County District Court
                                File No. 27-CV-21-8723

Karen Painter, Mendota Heights, Minnesota (pro se appellant)

Douglas R. Peterson, University of Minnesota General Counsel, Lisa L. Beane, Senior
Associate General Counsel, Minneapolis, Minnesota (for respondent)

      Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and

Klaphake, Judge. ∗

                           NONPRECEDENTIAL OPINION

COCHRAN, Judge

      Appellant challenges the summary-judgment dismissal of her sex-discrimination

and reprisal claims under the Minnesota Human Rights Act (MHRA), Minn. Stat.


∗
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
§§ 363A.01-.50 (2022 & Supp. 2023). 1 Appellant’s MHRA claims against respondent

arise from respondent’s decision to deny a promotion to appellant. Because no genuine

issues of material fact exist regarding whether respondent’s proffered nondiscriminatory

reason for declining to promote appellant was a pretext for discrimination or reprisal, we

affirm. We also grant respondent’s motion to strike, and we deny appellant’s motions.

                                          FACTS 2

       Appellant Karen Painter began working for the University of Minnesota’s School

of Music (SoM) as a non-tenured associate professor in 2007. The SoM is part of the

College of Liberal Arts.      Painter was a professor in the SoM’s musicology and

ethnomusicology division, which was one of eight divisions within the SoM. In 2011, the

university promoted Painter to a tenured associate-professor position. In 2018, Painter

sought promotion to full professor. The university denied the promotion. Before turning

to the specific facts surrounding the denial of the promotion, we provide some general

background on the promotion policies and procedures at the university.




1
  The MHRA was amended in 2023. 2023 Minn. Laws ch. 52, art. 19, §§ 45-72, at 325-
38. Previous versions of the MHRA were in effect both during the underlying events and
when the district court granted respondent’s motion for summary judgment. The
amendments do not change the substance of the sections applicable to Painter’s claims.
We therefore cite the current version of the MHRA. See Interstate Power Co. v. Nobles
Cnty. Bd. of Comm’rs, 

 (Minn. 2000) (recognizing “general
rule . . . that appellate courts apply the law as it exists at the time they rule on a case”).
2
 Consistent with the standard of review, our recitation of the facts is based on the evidence
viewed in the light most favorable to the nonmoving party. See Kenneh v. Homeward
Bound, Inc., 

, 228 (Minn. 2020). “[W]e do not weigh facts or make
credibility determinations.” 

                                              2
       The University’s Standards for Tenure and Promotion

       At relevant times, tenure and promotion at the university, and within the SoM, were

governed by a “Faculty Tenure” policy adopted by respondent Board of Regents of the

University of Minnesota. Under the policy, the basis for awarding a promotion to full

professor was determined by an assessment “of the candidate’s record of scholarly research

or other creative work, teaching, and service.” The university maintained procedures to

“assist in implementation” of the Faculty Tenure policy. The procedures provided that the

university’s academic units must, in compliance with section 7.12 of the Faculty Tenure

policy, “have a document specifying the indices and criteria that will be used to evaluate

candidates, and those criteria will apply to all candidates for tenure and/or promotion in

the unit.” This document was known as the “7.12 Statement.”

       The SoM’s 7.12 Statement detailed how a candidate’s research, teaching, and

service were evaluated. Because the SoM consisted of eight divisions with varying

disciplines, “the term ‘research’ encompasse[d] a wide variety of professional activities.”

Thus, the 7.12 Statement included division-specific criteria for evaluating a candidate’s

research.   The criteria for musicology candidates provided that, “candidates [were]

expected to have attained professional recognition on the basis of high-quality scholarly

publications and activities associated with their field.” Such publications were “most

commonly” either “a book, monograph, or edition, representing original research or

analysis” or “articles in professional journals, book chapters, and essays in scholarly

volumes.” Additionally, the 7.12 Statement indicated that a “written work is considered to

be published when it satisfies two standards: it is under contract, and in production.”


                                             3
       Regarding teaching, the 7.12 Statement provided that candidates “must be effective

teachers.” A candidate’s effectiveness as a teacher was evaluated by consideration of

twelve benchmarks, including the candidate’s courses taught, contributions made to the

curriculum of the department, evaluation by peers, development and review of instructional

material, and student-feedback ratings.      As for service, the 7.12 Statement required

candidates to “actively participate in advancing the interests of the department, the college,

and university for the benefit of the institution, the profession, and the community.”

       Separate from the SoM’s requirements, the College of Liberal Arts had guidelines

for promotion and tenure, which included instructions for how promotion and tenure

dossiers should be prepared by candidates. Under those guidelines, “in cases of promotion

to the rank of professor, scholarly research and/or creative work, teaching and service shall

be considered from the time since last promotion.”

       Painter Applies for Promotion

       Painter’s application for full professorship underwent a multi-level review process,

consistent with the university’s Faculty Tenure policy. The process began after Painter

indicated that she was interested in promotion to full professor. Painter was assigned

another professor, or “caseworker,” to help her prepare her application dossier. Once

completed, the research portion of Painter’s dossier was submitted to six external

reviewers, whose feedback became part of Painter’s application file.

       From there, the first layer of Painter’s review process began when Painter’s

caseworker presented her case file at a faculty meeting consisting of full professors from

the SoM. The minutes from the October 2, 2018 faculty meeting reflect that the professors


                                              4
had concerns about Painter’s teaching and research. The professors discussed issues with

Painter’s organization of classes, noting that “students were frustrated by the lack of clear

direction,” and that Painter’s student reviews corroborated concerns raised by a peer

reviewer. The minutes state that Painter’s research component “hinge[d] entirely on [her]

planned book,” which was “neither reviewed nor under contract.” The professors noted a

“conspicuous absence of articles in the field” and questioned why Painter did not wait to

apply for promotion “until there’s a contract for her book.” The SoM’s professors voted

against promoting Painter in an anonymous poll by a vote of 14 to 1, with 4 professors

abstaining.

       At the second layer of review, the SoM’s director issued his “professional opinion”

on Painter’s application. The director agreed with the faculty vote, concluding that

Painter’s dossier did not meet the requirements for promotion. The director noted that,

despite some favorable comments from external reviewers about Painter’s scholarly

research, the research component had to be scrutinized under the 7.12 Statement’s

musicology-specific criteria. The director observed that Painter had just “one refereed

article that would qualify for inclusion” under the 7.12 Statement, and that Painter’s “book

manuscript [was] not yet officially under contract or publication.” The director cited one

external review that noted Painter’s manuscript was “unusual” in that it had “not yet been

peer-reviewed, [was] not under preliminary contract, nor [had] it reached its final form.”

The reviewer added that the manuscript “badly needs editing.” Because Painter did not

have a robust body of peer-reviewed articles and did not have a book under contract or




                                             5
ready for publication, the director concluded that Painter did not meet the “research

threshold for promotion as outlined in the [SoM’s] 7.12 statement for musicology.”

       And, regarding Painter’s teaching component, the director stated that “Painter’s

teaching has drawn mixed responses.” The director also noted that her student-evaluation

data were “below university norms in a number of areas.” The director concluded that

Painter’s teaching did not meet the criteria for promotion either. On October 15, 2018, the

director submitted a letter to the dean of the College of Liberal Arts expressing his opinion

that Painter failed to meet the criteria for promotion.

       The College of Liberal Arts’ promotion-and-tenure committee performed the third

layer of review. The committee consisted of professors from various departments across

the college. In November 2018, the committee met and created a report on Painter’s bid

for promotion. The committee discussed Painter’s student and peer evaluations, which

were ambivalent about Painter’s teaching. Of note, Painter’s student-evaluation scores

were “uniformly low” in the category of whether students would recommend her as an

instructor. Yet, Painter’s dossier included “uniformly strong teaching letters from [her]

colleagues.” A majority of the committee believed that Painter at least met the teaching

requirement “with reservations.”

       As for Painter’s research, the committee members focused on the 7.12 Statement

and observed that Painter’s book manuscript “cannot be considered for promotion.” The

committee members found Painter’s remaining publication record “vague and

inconsistent” and “noted only one peer reviewed article.” Following their discussion, the




                                              6
committee members voted unanimously that Painter did not meet the overall requirements

for promotion.

       At the fourth layer of review, the dean of the College of Liberal Arts received the

promotion-and-tenure committee’s report and evaluated Painter’s promotion file. The

dean determined that Painter met the criteria for service but failed to satisfy the criteria for

teaching and research. The dean wrote that he “await[ed] the book being in print or in final

contract to publish status” and that there was “a broad and consistent pattern of student

comments expressing concerns about her teaching.” The dean therefore recommended that

Painter “retain the current rank of associate professor with tenure.”

       The fifth and final level of review concluded on May 2, 2019, when the provost

informed Painter in a letter that she had “not yet met the [SoM’s] 7.12 criteria for promotion

to full professor.” The provost emphasized “the near consensus” within the SoM and the

College of Liberal Arts that Painter did not meet the research requirement. The provost

noted that she did “not necessarily agree that [Painter] ha[d] not met School or College

expectations for teaching,” but still encouraged Painter to address the teaching concerns

raised throughout the review process. The provost concluded, based on Painter’s dossier,

that Painter would not receive a promotion to full professor at that time.

       Painter’s Discrimination Reports

       Painter made several reports of discrimination throughout her promotion process.

Painter’s first report was to the university’s Office of Equal Opportunity and Affirmative

Action (EOAA) a few weeks before the first layer of review by the SoM faculty. The

EOAA determined that Painter’s concerns “were not ripe for investigation given that the


                                               7
promotion process was ongoing.” After the promotion process concluded, Painter again

contacted the EOAA, which thereafter initiated its investigation into Painter’s claims that

“certain male faculty members in the SoM have engaged in multiple acts of sex

discrimination and retaliation.”

       Among the individuals implicated by Painter’s reports were Professors A, B, and C,

who were among the SoM professors eligible to vote on her promotion. Painter alleged

that Professor A had made sexually inappropriate comments about her, including

commenting on her skirt length and describing her behavior as “seductive” in an email.

The EOAA determined that Professor A’s conduct was “unwelcome conduct of a sexual

nature” but did “not rise to the level of sexual harassment or another form of gender-based

discrimination.”    Painter also claimed that Professor A retaliated against her for

participating in an unrelated EOAA investigation into Professor A’s conduct in 2013. The

alleged retaliation included a ten-page letter that Professor A submitted to Painter’s

promotion file in October 2018, in which Professor A criticized Painter for her involvement

with the 2013 investigation. The EOAA determined that Professor A’s letter likely

constituted retaliation, but also that there was insufficient evidence that Professor A or his

letter negatively influenced other SoM professors during Painter’s promotion bid.

       Painter also claimed that Professor B retaliated against her after she reported that

Professor B had been asking students a sexually inappropriate question during oral doctoral

exams. The EOAA determined that a student also reported concerns over the question

directly to Professor B. Once Professor B learned of concerns over the sexual nature of

the question, Professor B acknowledged that the question was inappropriate, shared the


                                              8
student’s report with his supervisors, and stopped asking the question on future exams.

Painter alleged that, in response to her involvement, Professor B retaliated against her by

making inappropriate comments about her during the SoM faculty discussion about her

promotion bid. The EOAA concluded that there was insufficient evidence that Professor B

had discriminated or retaliated against Painter.

       Finally, the EOAA investigated Painter’s claims that Professor C had also retaliated

against her for encouraging a student to report Professor C for sexual harassment in 2011.

The EOAA determined there was insufficient evidence that Professor C retaliated against

Painter during her promotion bid because it was unclear that Professor C even knew about

Painter’s involvement with the student’s report at the time of Painter’s promotion bid. 3

       Painter also filed complaints with the university’s Senate Judicial Committee (SJC)

and the Minnesota Department of Human Rights (MDHR). Like the EOAA, the SJC and

MDHR found insufficient evidence to tie Painter’s promotion denial to any discriminatory

or retaliatory animus.

       The Lawsuit

       In July 2021, Painter sued the Board of Regents, alleging that the university

discriminated against her based on sex, age, marital and familial status in violation of the

MHRA and that the university retaliated against her in violation of the MHRA. Painter

also brought three other claims. The university filed a motion to dismiss. The district court

granted the motion with respect to all of Painter’s claims except for sex discrimination and


3
  In a declaration, Professor C stated that he did not know of Painter’s involvement in the
student’s report until 2022, well after her failed promotion bid.

                                             9
reprisal under the MHRA. Painter filed an amended complaint alleging only the two

remaining MHRA claims.

       The university thereafter moved for summary judgment. The district court granted

the university’s motion. In its decision, the district court reasoned that Painter had shown

a prima facie case of sex discrimination and retaliation under the MHRA but also that the

university had articulated a legitimate, nondiscriminatory reason for refusing to promote

Painter to full professor—namely, that Painter failed to meet the SoM’s criteria for

promotion.    And the district court determined that Painter failed to show that the

university’s proffered reason was pretextual. Accordingly, the district court concluded that

the university was entitled to summary judgment on Painter’s MHRA claims.

       Painter appeals.

                                        DECISION

       Painter challenges the district court’s decision to grant summary judgment to the

university on her MHRA claims, raising several arguments. In addition, both Painter and

the university seek relief based on motions filed during this appeal. We first address

Painter’s summary-judgment arguments and then turn to the pending motions.

I.     The district court did not err by granting summary judgment on Painter’s
       MHRA claims.

       We review a grant of summary judgment de novo to determine “whether there are

any genuine issues of material fact and whether the district court properly applied the law.”

Henry v. Indep. Sch. Dist. No. 625, 

, 880 (Minn. 2023). “In determining

whether there are genuine issues of material fact, we view the evidence in the light most



                                             10
favorable to the nonmoving party and resolve all doubts and factual inferences against the

moving parties.” Hanson v. Dep’t of Nat. Res., 

, 372 (Minn. 2022)

(quotation omitted). “Fact issues exist when reasonable persons might draw different

conclusions from the evidence presented.” 

 “We will affirm a grant of summary

judgment if no genuine issues of material fact exist and if the [district] court accurately

applied the law.” 

.

       The MHRA makes it unlawful for an employer, because of sex, to “discriminate

against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions,

facilities, or privileges of employment.” Minn. Stat. § 363A.08, subd. 2(3). The MHRA

also prohibits an employer from “intentionally engag[ing] in reprisal against any person”

because that person “opposed a practice forbidden under [the MHRA].” Minn. Stat.

§ 363A.15. “A reprisal includes, but is not limited to, any form of intimidation, retaliation,

or harassment.” Id.

       When a party moves for summary judgment on an MHRA employment-

discrimination claim and the claim does not involve direct evidence, courts employ the

burden-shifting framework set out by the United States Supreme Court in McDonnell

Douglas Corp. v. Green, 

 (1973), to allocate the burdens between the plaintiff

and the defendant. See Hanson, 972 N.W.2d at 372-73; Hoover v. Norwest Priv. Mortg.

Banking, 

 (Minn. 2001). The McDonnell Douglas analysis has three

steps: first, the employee has the burden of showing a prima facie case of discrimination.

Hanson, 972 N.W.2d at 373. Second, the burden shifts to the employer, who must

articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id.


                                             11
Third, the burden shifts back to the employee, who must establish that the employer’s

proffered legitimate, nondiscriminatory reasons are pretext for discrimination. Id. The

same three steps apply to a summary-judgment analysis of an MHRA reprisal claim.

Hoover, 

.

       Painter challenges the district court’s determination that she failed to allege

sufficient facts to survive summary judgment on the third step—whether the university’s

proffered reason for refusing to promote Painter was pretextual. Assuming without

deciding that the parties met their respective burdens at steps one and two, we conclude

that the district court correctly determined that Painter failed to establish a genuine issue

of material fact regarding pretext.

       To survive summary judgment on the pretext prong, the employee must establish a

disputed issue of material fact about “whether the employer gave an honest explanation of

its behavior.” Benassi v. Back & Neck Pain Clinic, Inc., 

 (Minn.

App. 2001), rev. denied (Minn. Sept. 11, 2001). The employee can establish pretext by

showing that the proffered reason is “untrue” or that the adverse employment action was

motivated by an “improper reason.” Hanson, 972 N.W.2d at 373.

       Painter argues that the university’s nondiscriminatory reason for refusing to grant

her promotion to full professor—i.e., that Painter did not meet the criteria in the

7.12 Statement for research and teaching—is untrue. Painter contends that a variety of

evidence casts doubt on the honesty of the university’s explanation for why she was denied

promotion. That evidence relates to the conduct of Professors A, B, and C, statistics

regarding female and Black professors who work for the SoM, procedural “irregularities”


                                             12
during the promotion process, and the university’s “inconsistent” explanations for denying

Painter’s promotion. She argues that this evidence, individually and collectively, creates a

genuine issue of material fact regarding whether the university’s proffered reason is mere

pretext for a discriminatory or retaliatory motive.

       Before examining Painter’s purported evidence of pretext, we note that Painter’s

brief on appeal does not adequately cite the record. And, where she does include citation,

Painter cites her first complaint, which was later amended.        “To forestall summary

judgment, the nonmoving party must do more than rely on unverified or conclusionary

allegations in the pleadings or postulate evidence which might be produced at trial.”

W.J.L. v. Bugge, 

 (Minn. 1998) (quotation omitted); see also DLH,

Inc. v. Russ, 

 (Minn. 1997) (“[T]he party resisting summary judgment

must do more than rest on mere averments.”). Although Painter has largely failed to meet

her burden to produce any evidence beyond mere speculation, we nonetheless address her

arguments regarding pretext and conclude that they fail based on the evidence in the record

before us.

       A.     Retaliation

       First, Painter argues that evidence of conduct by Professors A, B, and C creates a

genuine dispute of material fact that the university’s reasons for refusing to promote her

were pretext for a retaliatory motive. We are not persuaded.

              1.     Professor A

       The EOAA determined that Professor A retaliated against Painter for her

involvement in a 2013 investigation into another staff member’s complaint of


                                             13
Professor A’s discriminatory conduct. The EOAA found that Professor A retaliated by

(1) sending “highly critical emails to Painter” in 2017 “in order to criticize Painter’s

involvement in the 2013 investigation”; (2) sending an email to Painter, the SoM director,

the College of Liberal Arts dean, and another administrator on October 29, 2018, in which

Professor A again criticized Painter for her involvement in the 2013 investigation; and

(3) “submitting a 10-page letter to Painter’s promotion file, where it would be read by the

decision-makers on Painter’s promotion case,” again to criticize Painter for her role in the

2013 investigation.

       Painter argues that the EOAA’s findings, along with the fact that Professor A once

served as the director of the SoM and “continued to serve in the SOM as a highly paid full

professor,” create a genuine issue of material fact regarding whether Professor A’s

retaliatory conduct impacted her promotion case. This argument is not supported by the

record.

       First, Professor A testified at his deposition that he did not discuss Painter’s

promotion bid with anyone at the SoM before casting his electronic vote. And the SoM

minutes of the faculty meeting where Painter’s bid was discussed show that Professor A

was not present. Second, Professor A did not submit the ten-page letter to Painter’s

promotion file until after the SoM faculty voted 14 to 1 against Painter’s promotion and

the SoM director indicated his opposition to promoting Painter. Thus, the undisputed

evidence reveals that Painter’s bid for promotion was already faring poorly before

Professor A submitted his criticisms of Painter to her promotion file. And the dean testified

that Professor A’s letter played no role in his decision to recommend against promoting


                                             14
Painter. Relatedly, the EOAA found no evidence that Professor A’s “letter affected the

decision on Painter’s promotion.” The record overwhelmingly rejects Painter’s position

that Professor A influenced the promotion procedure beyond casting a single vote.

              2.     Professor B

       Painter asserts that she produced evidence that Professor B “was angry at Painter

for having complained about his conduct in May 2018” and retaliated against her during

the SoM faculty discussion on her promotion bid. But Painter’s only support for this claim

is her own speculation and references to her complaint. Nothing in the record suggests that

Professor B retaliated against Painter.      The record does not even reflect whether

Professor B voted on Painter’s bid, and, even if he did vote, his single vote is immaterial

considering the SoM faculty voted against Painter’s promotion by a 14 to 1 vote.

              3.     Professor C

       Likewise, Painter’s arguments regarding Professor C are no more than speculation.

Painter claims that a reasonable inference is that Professor C retaliated against her for

encouraging a student to report Professor C for sexual harassment in 2011 by voting against

her bid for promotion. But the undisputed declaration of Professor C is that he did not even

know Painter was involved in that report until four years after the SoM faculty’s vote.

Thus, no reasonable juror could conclude that Professor C retaliated against Painter in

2018, thereby making the university’s proffered reason pretextual.

       As a result, the evidence pertaining to Painter’s male colleagues, although troubling,

is insufficient to permit a reasonable inference that the university’s reasons for denying

Painter’s promotion were pretextual.


                                             15
       B.     Statistical Evidence

       Nor are we persuaded that statistics relied upon by Painter regarding SoM professors

create a genuine issue of material fact as to pretext. Courts have considered whether the

use of statistical evidence can create a genuine issue of material fact precluding summary

judgment on an employment-discrimination claim. One federal appellate court noted that,

“[w]hile statistical evidence may create an inference of discrimination, the evidence may

be so flawed as to render it insufficient to raise a jury question.” Furr v. Seagate Tech.,

Inc., 

 (10th Cir. 1996). 4 In Furr, the Tenth Circuit concluded that the

plaintiff’s statistics did not create a jury question because the statistics “grouped all

employees together regardless of specialty or skill and failed to take into account

nondiscriminatory explanations for the disparate treatment by showing disparate treatment

between comparable individuals.”        

 (quotation omitted).      Similarly, when

considering an employment-discrimination claim under the MHRA, this court held that

“[i]t is incumbent on the party basing an argument on statistical data to demonstrate that

the proffered conclusions are statistically significant.”           Albertson v. FMC Corp.,

 (Minn. App. 1989). “[T]he mere recitation of statistics, without

some evidence tending to show that they indicate a meaningful phenomenon, does not

show that the statistics are probative of [pretext].” 

.




4
 When construing MHRA employment-discrimination claims like Painter’s, Minnesota
courts often rely on federal employment-discrimination cases for their persuasive
value. Henry, 988 N.W.2d at 880.

                                              16
       Citing    only   her    complaint,    Painter   asserts    the   following    “statistical

evidence”: (1) “very few women were hired or promoted as full professors in the academic

area [of the SoM] before 1990”; (2) since 1990, “only one woman was promoted to full

professor in the academic area and she was promoted in 2022 after Painter filed this

lawsuit”; (3) “over the last thirty years, at least 15-17 men have been promoted to full

professor or hired laterally at full professor in the academic area”; (4) at the time of the

complaint’s filing, all eight full professors in the academic area were men, and “of the eight

associate professors in the academic area, two are men who are decades younger than the

six associate professors who are women”; and (5) the SoM has not promoted or laterally

hired any Black full professors, further demonstrating the SoM’s preference for white men.

       Painter fails to establish how these statistics show a “meaningful phenomenon”

within the SoM. See id. Painter merely asserts that the SoM has failed to hire women in

the academic area without offering any statistical evidence of the number, sex, and

qualifications of prior candidates. Thus, Painter’s statistics provide no means to determine

whether the SoM has consistently failed to hire and promote women who were comparable

to their male counterparts. See Furr, 

. We therefore conclude that the

statistical evidence Painter relies on is “so flawed as to render it insufficient to raise a jury

question.” See 

.

       C.       Procedural Irregularities

       Without citing the record, Painter asserts that at least 11 alleged procedural

irregularities impacted her promotion process. Painter attributes the various irregularities

to the EOAA, the College of Liberal Arts dean, the SoM, and its director. Painter faults


                                               17
the district court for addressing “some of these procedural irregularities and not others.”

But the district court had no reason to address such irregularities because Painter’s

argument below was not focused on specific procedural irregularities. Rather, she argued

that the actions of her male colleagues within the SoM support an inference that the entire

promotion process was tainted by the first layer of review. Issues raised for the first time

on appeal are not properly before this court. Thiele v. Stich, 

(Minn. 1988). Therefore, we conclude that Painter has forfeited an argument based on

procedural irregularity.

       In any event, her argument is not supported by evidence in the record. First, it is

unclear why the alleged procedural irregularities in the EOAA’s investigation of Painter’s

complaints of discrimination would suggest that her promotion process, itself, was biased.

Additionally, Painter offers no evidence of the standard procedures that the SoM, the

university, or their employees deviated from in assessing Painter’s bid for promotion.

Painter’s argument fails to amount to more than speculation, which is insufficient to

survive summary judgment. See Russ, 

.

       D.     Inconsistent Explanations

       Finally, Painter refers to “inconsistent explanations” from the university regarding

the reason for denying her promotion to suggest that there is a disputed issue of material

fact regarding pretext. Painter assets that while some levels of review deemed her teaching

insufficient, the promotion-and-tenure committee was “split” on whether she met the

teaching criteria, and the provost did “not necessarily agree” that Painter failed to meet the

expectations for teaching.


                                             18
       This argument is unpersuasive for two reasons. First, the record reflects that, at

each level of review, there was some hesitation about Painter’s teaching component

because evaluators had to grapple with Painter’s mix of both positive and negative

feedback. Evaluators noted that Painter received praise from students and colleagues for

her expertise in her subject area but was also routinely criticized for organizational

shortcomings. Evaluators also emphasized Painter’s student-feedback data, which fell

below departmental norms. Because Painter’s teaching received mixed feedback, there

was naturally some nuance among the levels of review on the role of Painter’s teaching

component in the denial of her application for promotion. But this does not mean that the

explanations were inconsistent. Moreover, that there were disagreements among the

various levels about Painter’s teaching suggests that the layers were insulated from each

other and less susceptible to being affected by retaliatory colleagues at the first layer of

review, as Painter suggests. 5

       Second, there was a “near consensus” at each level of review that Painter had not

met the research criteria for a promotion. The university’s polices reflect that research is

a critical component in a candidate’s promotion bid. The SoM faculty noted Painter’s

“conspicuous absence of articles in the field” and questioned why Painter applied for


5
  Painter argues that the district court erred by stating that the Board of Regents performed
a sixth level of review because the Board of Regents only plays a role in the approval, not
the denial, of promotions. The university concedes that the Board of Regents did not
“affirm” the decision to deny Painter’s promotion. Despite the district court’s erroneous
characterization of the role of the Board of Regents, our review is de novo, and we conclude
that the analysis remains the same whether there were five or six layers of review. The
district court’s error was harmless, and we will therefore ignore it. See Minn. R. Civ. P.
61.

                                             19
promotion in 2018 instead of waiting until her book was under contract. Likewise, the

SoM president wrote, “With one refereed publication . . . since tenure, a more robust body

of peer reviewed or refereed articles/essays, or published book (or book contract) is

lacking.” The promotion-and-tenure committee voted ten to one that Painter failed to meet

the research criteria for promotion, noting that Painter’s “articles were not enough for

promotion” and her book “still had ‘rough edges’ and needed more work for publication

before promotion should be considered.” Both the College of Liberal Arts dean and the

university provost concurred with these conclusions. Given the overwhelming opposition

to Painter’s promotion based on the critical research component, we conclude that Painter’s

argument that the university had inconsistent explanations is unavailing.

       We are not persuaded otherwise by Painter’s reliance on Veikos v. Trustees of Univ.

of Penn., Case No. 2:20-cv-04408-JDW, 

 (E.D. Penn. Jan. 11, 2022), an

unpublished federal decision in which a professor’s employment-discrimination claim

survived summary judgment. Although Minnesota courts applying the MHRA in the

employment-discrimination context often look to federal Title VII caselaw for “guidance,”

see Friend v. Gopher Co., 

 (Minn. App. 2009), we are not bound by

federal decisions, Hinckley Square Assocs. v. Cervene, 

 (Minn.

App. 2015). Veikos is also readily distinguishable on its facts and would not compel us to

reverse even if it were binding. See Veikos, 

, at *3-5.

       In sum, Painter has not presented evidence sufficient to create a genuine issue of

material fact on whether the university’s refusal to promote her was based on a

discriminatory or retaliatory motive rather than her research and teaching record. Thus,


                                            20
the district court properly granted summary judgment to the university on Painter’s MHRA

claims. 6

II.    Motions

       The parties filed several motions with this court following the filing of Painter’s

reply brief. The university moves to strike Painter’s reply addendum, which consists of

the six external reviews conducted during Painter’s promotion process. The university

argues that the documents in the reply addendum are not part of the record because they

were not submitted to the district court. The university also seeks to strike the portions of

Painter’s reply brief that reference the addendum.

       The record on appeal consists of “[t]he documents filed in the trial court, the

exhibits, and the transcript of proceedings.” Minn. R. Civ. App. P. 110.01. We cannot

base our decision on any matters outside the record. Thiele, 

. We

“will strike documents included in a party’s brief that are not part of the appellate record.”

Est. of King, 

, 415 (Minn. App. 2023) (quotation omitted). The external

reviews were summarized in other documents in the record, but the reviews themselves

were not filed with the district court and are not part of the record on appeal. We therefore

grant the university’s motion to strike Painter’s reply addendum and pages four through


6
 Painter also claims the district court erred by dismissing her suit without addressing “the
other claims in the complaint.” Painter appears to argue that she sufficiently pleaded claims
for (1) “pay discrimination” and (2) emotional damages arising from a hostile work
environment independent of her 2018 promotion denial. Painter’s argument relies on
several portions of her original complaint that were omitted from her amended complaint
after the district court granted the university’s motion to dismiss several of Painter’s claims.
Painter also did not argue these theories below, and they are therefore forfeited on appeal.
See Thiele, 

.

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six of her reply brief. We further note that our decision does not rely on any of the stricken

materials.

       In response to the university’s motion, Painter filed her own motion to strike, along

with motions to remand and for sanctions. Painter moves to strike one sentence from the

respondent’s brief, which states, “The professors who reviewed Painter’s record—and

agreed that promotion was not warranted—included experts in her field from outside the

University . . . .” Painter argues that the university misstates the opinions of those experts

in her field that submitted external reviews to her application file. The university responds

that this sentence “is based on record evidence”—specifically, the SoM summary

documents that referenced the external reviews. Based on our review of the record, we

agree with the university. While Painter may disagree with the university’s interpretation

of that record evidence, it was not improper for the university to make an argument based

on evidence in the record.

       Painter also moves to strike the university’s addendum because it includes “internal

letters prepared by [SoM] faculty and administrators” that reflect “only part of Painter’s

promotion file . . . and occasionally reference the external reviewers’ letters without

acknowledging the external reviewers’ strong support for Painter’s promotion.” This

argument is unpersuasive because all of the documents included in the university’s

addendum were filed in the district court and are part of the record on appeal. For these

reasons, we deny Painter’s motion to strike.

       Next, Painter argues that this case should be remanded back to the district court

because “the University submitted only parts of Painter’s promotion file to the district


                                               22
court” but the district court “was led to believe that all relevant portions of Painter’s

promotion file were part of the record.” Painter cites no caselaw in support of her

contention that the university was required to submit “all relevant portions” of her

promotion file when it moved for summary judgment. Nor does she explain how the court

“was led to believe” that all relevant portions of her promotion file were part of the record

submitted by the university. And Painter fails to acknowledge that when she responded to

the university’s motion for summary judgment, she could have submitted the external

reviews and any other documents from her promotion file that the university did not submit.

We therefore discern no basis to grant Painter’s motion for remand.

       Finally, Painter moves this court to sanction the university’s counsel pursuant to

Minnesota Rule of Professional Conduct 3.3, which concerns “Candor Toward the

Tribunal.” Painter asserts that the university’s counsel “made intentional or extremely

reckless misrepresentations to this Court and to the district court about Painter’s external

review letters.” Painter claims that omitting the reviews from the record amounts to an

“egregious deceit upon the district court.” We disagree. The record does not suggest that

the university’s counsel violated rule 3.3. And, again, if Painter wanted to challenge the

university’s characterization of the external reviews, she had the opportunity to file the

external reviews with the district court. We therefore deny Painter’s motion for sanctions.

       For these reasons, the university’s motion to strike is granted and Painter’s motions

to strike, for remand, and for sanctions are denied.

       Affirmed.




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