IN COURT OF APPEALS
Carrie J. Gee,
Filed July 26, 2005
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
File No. C2-03-007689
Stephen H. Parsons, Marshall H. Tanick, Phillip J. Trobaugh, Mansfield, Tanick & Cohen, P.A., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402-4511 (for appellant)
Mike Hatch, Attorney General, Gary
R. Cunningham, Assistant Attorney General,
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
S Y L L A B U S
Walking and seeing are major life activities for purposes of determining whether a physical impairment constitutes a disability under the Minnesota Human Rights Act, Minn. Stat. § 363A (2004).
O P I N I O N
This is an appeal from a summary judgment dismissal of claims for disability discrimination and whistleblower retaliation. Because the district court applied an incorrect standard to determine that Carrie Gee is not a disabled person for purposes of the Minnesota Human Rights Act, we reverse and remand the dismissal of Gee’s disability-discrimination claim. We affirm, however, the district court’s dismissal of Gee’s whistleblower claim because the evidence is insufficient to establish that she made a good-faith report of a violation of federal or state law.
F A C T S
Gee was employed at the
science-education position’s notice of vacancy, which states the qualifications
for hiring, indicates that “ABD candidates will be considered; however, the
doctorate must be completed by the end of the 2002-2003 academic year.” Gee contacted faculty at the
Concurrently with these events, Gee began experiencing medical problems. In March 2001 she was diagnosed with insulin-dependent diabetes mellitus. For the next three weeks, she was hospitalized and had seven surgeries, one of which involved the amputation of the big toe on her right foot. Gee continued to have medical difficulties throughout the 2001-2002 academic year. In August she had two additional surgeries, including a partial excision of the first metatarsal in her right foot and laser surgery on her left eye for diabetes retinopathy.
Gee walks with a quad-footed cane to maintain balance and to keep weight off her right foot, and she wears a leg brace. As a result of her condition, she cannot walk long distances, climb stairs easily, or stand for long periods. She has difficulty reading because of blurred or double vision.
In a search-committee meeting, Ballard and Dr. Karl Matz both indicated that Gee should not be considered for the tenure position because she was ABD and had little evidence of written scholarship. The committee chose to exclude her from further consideration. Ballard informed Gee on March 29, 2002, that the search committee was not considering Gee for the tenure-track position. Six days later, she also informed Gee that she would not be considered for a fixed-term position. The committee decided to extend an offer to another person, who was an ABD candidate. This person did not accept the offer, and the position remained open.
During her employment at MSU, Gee supported an effort to reactivate a student chapter of Education Minnesota (EdMN), an educators’ union that had ceased activity in 1999. Beginning in August 2001, Gee worked directly on the reactivation. In her affidavit, Gee asserts that she encountered resistance from Ballard, who opposed the organization, and Matz, who was the faculty advisor to Kappa Delta Pi, the honor society for education students. In response to a request from the local field representative of EdMN, Gee contacted Carol Skorr, an administrative assistant who worked closely with Ballard, about the balance in the student organization’s account. When Gee inquired about the balance, Skorr told her that the account contained only ten or twenty dollars. Gee expressed surprise because a percentage of each student member’s dues had been rebated to the account for the organization’s use. Gee asked what the funds had been spent on; Skorr replied that it was spent “on students.”
On February 6, 2002, Gee attended a faculty meeting at which Ballard informed another faculty member that there was “plenty of money” for the student organization. Gee told the faculty members the substance of her conversation with Skorr. Gee made a second inquiry of Skorr about the expenditures. In her deposition testimony, Gee asserts that she made the second inquiry because she “was concerned about the conflicting information” and its effect on her efforts to reactivate EdMN. Ballard confronted Gee about her inquiries and told her that the account’s status was not her business and that she should not upset Skorr. Gee ultimately obtained information on the use of the funds but not until after March 29, 2002.
Gee sued in July 2003, alleging disability discrimination and retaliation for reporting the possible diversion of the EdMN funds. MSU moved for summary judgment on both claims. The district court granted the motion for summary judgment on Gee’s whistleblower claim, concluding that the only statement that could be considered a report was not made for the purpose of exposing an illegality. The district court also granted summary judgment dismissing the disability-discrimination claim, concluding that Gee had established a genuine issue of material fact on whether she was qualified for the tenure-track position but not on whether she had a disability as defined by the Minnesota Human Rights Act. Gee appeals the dismissal of both claims.
I S S U E S
I. Does a physical impairment that materially affects a person’s ability to walk and see constitute a disability under the Minnesota Human Rights Act?
II. Did the inquiry about the absence of
money in the student-group account constitute a good-faith report of a
violation of law that is protected by
A N A L Y S I S
appeal from summary judgment, we determine whether there are any genuine issues
of material fact and whether the district court erred in its application of the
v. Cecil Newman Corp., 632 N.W.2d 666, 672 (
The Minnesota Human Rights Act (MHRA)
prohibits an employer from discharging, refusing to hire, or discriminating
against a person with respect to terms or conditions of employment on the basis
of a person’s disability. Minn. Stat.
§ 363A.08, subd. 2 (2004). A
plaintiff may establish a prima facie case of discrimination either by offering
direct evidence of discriminatory intent or by establishing an inference of
discriminatory intent under the McDonnell-Douglas shifting-burden analysis. Hoover v. Norwest Private Mortgage Banking,
632 N.W.2d 534, 542 (
The district court evaluated Gee’s disability-discrimination claim using the McDonnell-Douglas analysis and determined that Gee must demonstrate that (1) she was disabled within the meaning of the MHRA, (2) she applied and was qualified for the job posted by MSU, (3) despite her qualifications she was rejected, and (4) the position remained available after her rejection or was given to someone else with her qualifications. See Hoover, 632 N.W.2d at 542 (listing elements necessary to establish prima facie case). Only the first two elements were disputed in the motion for summary judgment. On the second element the district court determined that Gee established a genuine issue of material fact on whether she was qualified for the position. But the court granted summary judgment based on its conclusion that Gee did not establish that she was disabled or that a genuine issue of material fact existed on the question of whether she was disabled.
The MHRA defines disability as “any condition
or characteristic that renders a person a disabled person.” Minn. Stat. § 363A.03, subd. 12
(2004). A “disabled person” is in turn
defined as “any person who (1) has a physical, sensory, or mental impairment
which materially limits one or more major life activities; (2) has a record of
such an impairment; or (3) is regarded as having such an impairment.”
The MHRA does not define “major life
activities.” In the absence of a state
law definition of this phrase,
Under federal law, major life activities are
“those activities that are of central importance to daily life.”
For purposes of this appeal, it is uncontested that Gee has a physical impairment, but MSU disputes that Gee’s physical impairment limits a major life activity. The district court concluded that Gee was not disabled because her diabetes did not limit the major life activity of working. In reaching this conclusion, the district court disregarded Gee’s assertion that she is disabled because her diabetes limits her ability to walk and see and instead required a nexus between the impairment and a limitation on her ability to work. We conclude that this is an incorrect standard because neither the plain language of the statute nor the federal definitions that guide our interpretation of the statute support this narrow reading of the MHRA.
First, the MHRA provides that an impairment
can affect “one or more” major life activities.
Second, the federal definition and
interpretation of “major life activities” include both walking and seeing. The federal regulation explicitly includes
both walking and seeing as major life activities, and other jurisdictions have
applied similarly inclusive definitions.
See, e.g., Brown v. BKW Drywall Supply, Inc., 305
F. Supp. 2d 814, 825 (S.D. Ohio 2004) (stating that walking is major life
activity); Haggar Apparel Co. v. Leal,154 S.W.3d 98, 100 (
In support of the narrow interpretation that
limits “major life activities” to the “ability to obtain and retain
employment,” the district court and MSU rely on two cases: State by
Cooper v. Hennepin County, 441 N.W.2d 106 (
The district court’s reliance on Hayes is similarly affected by the
change in the law. Hayes states that the phrase “major life activities” must be
considered “through the prism of the individual’s employability.” Hayes,
21 F. Supp. 2d at 972. Hayes lacks persuasive force both
because its analysis of “major life activities” relies on Cooper and because it also relies on the superseded federal
regulation for its reasoning.
Gee has introduced evidence that her diabetes and related complications cause her difficulty in walking, climbing stairs, standing for long periods, reading, and seeing. Because we conclude, as a matter of law, that walking and seeing are major life activities under the MHRA and because Gee asserts that her physical impairment limits her ability to walk and see, the district court should have examined whether Gee is materially limited in her ability to engage in these major life activities. Consequently, we reverse the district court’s narrow reading of “major life activities” and remand for a determination of whether Gee is materially limited in the major life activities of walking or seeing.
Gee also asserts that she is disabled under
the MHRA because she is regarded as having an impairment. MSU, however, contends that Gee is precluded from
review of this issue on appeal because she failed both to plead the issue and
to raise it in the district court. The
district court explicitly noted that Gee failed to raise this issue. That failure
prevented the development in the district court of a reasonable basis
for review, and we conclude that the issue of whether Gee is regarded as
impaired is waived on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582
Finally, MSU requests that we affirm summary judgment on the alternate ground that Gee has failed to establish a genuine issue of material fact on whether she was qualified for the position. The district court concluded that Gee established a triable issue on whether the phrase “ABD candidates” in the vacancy posting referred to candidates applying for the position who have ABD status. The court noted that the departmental chair’s encouragement of Gee’s application supports this interpretation. MSU points to no dispositive fact or law that would provide a basis for reversing the district court on this determination.
law prohibits an employer from discharging or otherwise discriminating against
an employee who, “in good faith, reports a violation or suspected violation of
any federal or state law or rule adopted pursuant to law to an employer or to
any governmental body or law enforcement official.”
The statute does not define “report” or provide specific guidance in its interpretation. This court has previously applied the common meaning of the term and concluded that it means either (1) “[t]o make or present an often official, formal, or regular account of” or (2) “[t]o relate or tell about; present.” Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 536 N.W.2d 20, 23 (Minn. App. 1995) (quoting American Heritage Dictionary 1531 (3d ed. 1992)).
The district court concluded that Gee’s conduct amounts to reporting in only one instance: her statement to the other staff that the account had less than twenty dollars in it. The record supports that determination. Although Gee twice discussed with Skorr the lack of money in the account, the conversations were inquiries and not reports. Her comments to coworkers and supervisors at the staff meeting, however, qualify as a report of the information she acquired from Skorr. The critical issue is, thus, whether this communication was a good-faith report of a violation of state or federal law or rule.
In determining whether a report of a
violation or suspected violation of the law is made in good faith, we look
beyond the content of the report and consider the employee’s purpose in making
the report. Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (
The district court concluded that, at the time of the report, Gee did not have a good-faith belief that a violation of law had occurred. Gee stated in her deposition that she made the inquiries to fulfill her responsibilities as a faculty advisor to the student organization, not because she suspected any illegal activity. Similarly, when she conveyed the information to her coworkers, she did so, not with the purpose of exposing an illegality, but to contradict Ballard’s assertion that the organization had plenty of money. No evidence in the record indicates that Gee had any suspicion of illegal activity at the time of making the statement at the meeting, and the statement does not imply wrongdoing. Gee acknowledges in her deposition that she did not learn the reason for the budgetary discrepancy until after March 29, 2002, the date of the adverse employment action. The statement therefore does not easily fit the standard of exposing an illegality.
Even if we were to consider the statement as suggesting illegal conduct, Gee had the burden to demonstrate that the suspected misconduct implicated a violation of law. She has not satisfied this requirement. During the briefing and argument of the summary-judgment motion, Gee suggested that MSU’s conduct implicated laws against embezzlement and theft. But Gee has offered no evidence to demonstrate that MSU’s conduct meets the elements required to establish either offense. Neither at summary judgment nor on appeal has Gee shown that the use of the funds implicated a violation of law or rule. Gee failed to meet her burden to establish a claim for whistleblower retaliation, and we affirm the dismissal of that claim.
D E C I S I O N
Because the evidence is insufficient to demonstrate that Gee made a good-faith report of a violation of the law, we affirm the district court’s dismissal of her whistleblower claim. Because “major life activities” under the MHRA include walking and seeing and the district court imposed an incorrect standard by evaluating only the major life activity of work, we reverse the district court’s dismissal of Gee’s disability-discrimination claim and remand.
Affirmed in part, reversed in part, and remanded.