STATE OF MINNESOTA
IN COURT OF APPEALS
Regents of the University of Minnesota, et al.,
Filed November 25, 2003
Hennepin County District Court
File No. CT-01-00036
Richard T. Wylie, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for appellant)
Mark B. Rotenberg, General Counsel, Brian J. Slovut, Associate General Counsel, Office of the General Counsel, University of Minnesota, 360 University Gateway, 200 Oak Street Southeast, Minneapolis, MN 55455-2006 (for respondents)
Considered and decided by Wright, Presiding Judge; Harten, Judge; and Anderson, Judge.
1. The district court has jurisdiction to consider claims based on statutory causes of action notwithstanding a grievance panel order that would otherwise be subject to certiorari review.
2. A Phase III panel determination stating both that the grievant is not entitled to relief and that the university/employer is to refrain from impeding the grievant’s professional future, without a written agreement stating otherwise, does not create contractual rights enforceable by the grievant.
3. The Uniform Arbitration Act does not apply where a party has failed to seek arbitration or in the absence of a written agreement to arbitrate a claim.
4. The failure to file a complaint alleging an unfair labor practice with the commissioner precludes litigation of the claim in district court under the Public Employees Labor Relations Act.
5. A property owner is only required to give reasonable notice of intent to terminate a license to a licensee with personal property on the owner’s premises.
6. The Minnesota Whistleblower Act, Minn. Stat. § 181.932 (2002), extends protection only to current employees and not individuals without an employment relationship at the time of the alleged wrongful act.
G. BARRY ANDERSON, Judge
Appellant Jong Lee challenges the district court’s grant of summary judgment arguing that (1) the district court was correct in determining the court had jurisdiction to review the Phase III panel decision; (2) the district court erred in determining the Phase III panel decision did not create enforceable contract rights; (3) the Minnesota Uniform Arbitration Act (“UAA”), Minn. Stat. § 572.18 (2002), and the Public Employee Labor Relations Act (“PELRA”), Minn. Stat. § 179A.13, subd. 1 (2002), apply to a Phase III panel decision; (4) the district court erred in dismissing Lee’s wrongful eviction claim because she was not given proper notice; and (5) the district court erred in dismissing her whistleblower claim because the university retaliated against her when it chose not to inform university employees of the directive stated in the Phase III panel’s decision. Because we conclude that the district court did not err in its decision to grant summary judgment on all counts, we affirm.
Appellant Jong Lee was an employee of the University of Minnesota’s Medical School from 1987 through 1998. Appellant is both female and a United States citizen of Korean national origin. Respondent university employed the other named respondents at various times and in various capacities.
In 1992, the university hired appellant as an unpaid visiting scholar in Dr. John Winklemann’s lab. While there, Winklemann permitted appellant to work on appellant’s protein project focusing on the development of pure human antibodies. Appellant showed Winklemann a report about her development and claims that Winklemann took a sample, along with her paper reporting her invention, and used the information without appellant’s authorization in a 1993 grant proposal. Appellant reported the incident to the university, but to no avail. After a second objection, a university patent attorney allegedly determined that the protein invention was in fact appellant’s. In June 1993, the university waived its rights to commercialization of the invention, and that same year, appellant applied for a patent, subsequently granted in 1998.
In August 1994, Dr. Thomas F. Ferris (a named defendant) and Dr. Silvia Azar appointed appellant to a 20% research associate position in the Renal Diseases and Hypertension Division in the Department of Medicine. Her position was temporary and annually renewable. Appellant continued her own experiments in Azar’s lab on her own time, with her own money, and with Azar’s permission. She continued to produce the antibodies, which she stored in the ultra-cold freezer in Azar’s lab.
Within the next six months, appellant presented two grant proposals for research funding; both were subsequently denied. Dr. Hostetter, on behalf of the university, informed appellant on March 15, 1996, that her position would not be renewed for the fiscal year beginning July 1, 1997. On or about April 26, 1996, appellant filed a grievance arising out of the non-renewal and also challenged Hostetter’s denial of her grant proposals. On May 29, 1996, Hostetter withdrew the employment termination but required appellant to fund her own position.
On October 3, 1996, appellant filed a complaint with the University’s Academic Advisory Committee, alleging academic misconduct by Winklemann, claiming Winklemann’s grant application included her work without her authorization. After an investigation, it was determined that Winkelmann committed neither academic misconduct nor any other inappropriate professional behavior.
On January 7, 1997, Frank Cerra, the Provost for the Academic Health Center, reinstated appellant to her previous position with back pay. Appellant then withdrew her grievance on February 6, 1997. Appellant continued to work in her position with no relevant events occurring for over a year. Then, on June 26, 1998, the university notified appellant that her position would not be renewed as of September 30, 1998. On August 11, 1998, appellant filed an internal grievance under the university’s procedures, alleging the termination of her position was based on retaliation and discrimination. She also objected to the monitoring of her daily activities and limitations on her laboratory access, and she asserted the existence of a hostile work environment. Appellant sought reinstatement to her position with full grant application opportunities, lab access, and other relief.
The University Grievance Policy (“UGP”) provides for four phases of review. Phase I is an informal meeting between the grievant and the administrator responsible for the challenged decision. Phase II is a meeting between the grievant and the supervisor of the administrator. Phase III is a hearing before a three-person panel with limited powers. The panel may grant back pay, restore benefits actually lost, and reinstate the employee. Phase IV is arbitration.
On August 25, 1999, a three-member Phase III panel heard appellant’s grievance. The panel issued a report on October 15, 1999, upholding appellant’s termination and declining to reinstate the appellant. The panel concluded that there was “no clear evidence that the [appellant] was discriminated against on the basis of ethnicity or gender, or that the [appellant] was retaliated against by the [u]niversity.” The panel, however, noted that although no rules were violated, there was “persuasive evidence of undesirable professional behavior toward the [g]rievant and lack of guidance of the [g]rievant.” The decision of the panel was as follows:
(1) the University has violated no regulations, and that no relief be granted to the Grievant, and
(2) that the Medical School be directed to refrain from impeding the Grievant’s professional future, either within or outside the University of Minnesota.
The University Grievance Officer notified appellant in a memorandum that “[i]f the Phase III panel decision is favorable to the grievant, the [u]niversity will implement it . . . . If the decision . . . is not favorable to the grievant, the grievant may choose to proceed to Phase IV arbitration . . . .” Appellant did not appeal the decision to Phase IV arbitration.
After the panel issued its decision, appellant continued to use Azar’s lab both for her own work and to help Azar with her research. Before January 2000, the university never demanded rent from appellant for the lab, never asked her to leave, and never brought a court action to have her vacate. By January 2000, appellant had collected over 28,000 ml of antibodies requiring storage in an ultra-cold freezer. Then, because of planned remodeling, the university posted a sign on the laboratory doors stating, “Construction is to begin in these laboratories. Locks will be changed and access denied as of January 31, 2000. Please have any personal belongings removed by that date.” Appellant located a replacement for the ultra-cold freezer she had been using in Azar’s lab, found lab space near the university, and purchased replacement equipment to continue her work. Approximately a month after the university’s deadline to move from the premises, the replacement freezers failed and most of her samples were destroyed. Appellant never complained that the notice to vacate was inadequate, and she did not seek a remedy from the university until after the replacement freezers malfunctioned.
I. Did the district court properly dismiss appellant’s claims for the alleged failure to comply with the grievance decision?
II. Did the district court properly dismiss appellant’s claim for wrongful eviction?
III. Did the district court properly dismiss appellant’s whistleblower claim?
On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A motion for summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03; Asmus v. Ourada, 410 N.W.2d 432, 434 (Minn. App. 1987). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). A genuine issue of material fact exists when the nonmoving party presents evidence that creates a doubt as to a factual issue that is “probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. A genuine issue for trial must be established by substantial evidence. Id. at 69-70.
Whether a court has subject-matter jurisdiction is a question of law and is reviewed de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000).
II. Dismissal of appellant’s claim for wrongful eviction
The district court did not err in dismissing appellant’s claims for the alleged failure to comply with the grievance decision, for wrongful eviction, or for violation of the Whistleblower Act.
 The statute here reads: “A copy of any complaint alleging an unfair labor practice must be filed with the commissioner at the time it is brought in district court.” Minn. Stat. § 179A.13, subd. 1.