This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-955

Jayne Blanchard,
Appellant,

vs.

Northwest Publications, Inc.,
d/b/a St. Paul Pioneer Press,
Respondent.

Filed January 25, 2000
Affirmed
Short, Judge

Ramsey County District Court
File No. C9974715

Jeffrey R. Anderson, Joanne Jirik Mullen, Barbara J. Felt, Jodean A. Thronson, Reinhardt & Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

Laura J. Davis, Employee Relations/Labor Counsel, St. Paul Pioneer Press, 345 Cedar Street, St. Paul, MN 55101 (for respondent)

 

Considered and decided by Anderson, Presiding Judge, Short, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

For five years, Jayne Blanchard was employed as a theatre critic by Northwest Publications, Inc. (hereinafter "Pioneer Press"). After her termination for "proven dishonesty," Blanchard sued Pioneer Press for sex discrimination, retaliation and reprisal, and wrongful termination in violation of public policy. On appeal, Blanchard argues the trial court erred by: (1) directing a verdict on her discrimination claim; and (2) summarily dismissing her reprisal and public policy claims. We affirm.

D E C I S I O N

I.

A directed verdict motion presents a question of law regarding the sufficiency of the evidence to present a fact question for the jury. Minn. R. Civ. P. 50.01; see Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405, 408 (Minn. 1998) (reinstating trial courtís directed verdict because evidence presented was insufficient to create question of fact for jury); M.W. Ettinger Transfer & Leasing Co. v. Schaper Mfg., Inc., 494 N.W.2d 29, 34 (Minn. 1992) (finding trial court properly granted directed verdict where insufficient evidence existed to submit negligence claim to jury). In a bench trial, the defense motion made at the close of the plaintiffís case is not a directed verdict, but a rule 41 motion to dismiss. Compare Minn. R. Civ. P. 41.02(b) (involuntary dismissal) with Minn. R. Civ. P. 50.01 (directed verdict); see Fidelity Bank & Trust, Co. v. Fitzimons, 261 N.W.2d 586, 587 n.1 (Minn. 1977) (noting proper motion at end of plaintiffís case would have been dismissal under rule 41.02, not directed verdict). On appeal from an involuntary dismissal under rule 41.02(b), we reverse only where the trial court abused its discretion. See Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984) (applying abuse of discretion standard to involuntary dismissal).

At the close of Blanchardís case, the trial court found:  (1) no disciplinary action was taken against Blanchard because of her gender; (2) Pioneer Pressís reasons for firing Blanchard were nondiscriminatory and credible; (3) Pioneer Pressís treatment of a male reporter for his soliciting behavior did not demonstrate that Pioneer Pressís reasons for terminating Blanchard were pretextual; (4) Blanchard lied to her editor during the investigation and made or adopted by acquiescence untrue statements on the Barbara Carlson radio show; (5) no evidence was presented that another employee committed a similar offense and was treated more favorably by Pioneer Press; and (6) Pioneer Press, as a rule, terminates employees upon discovery of dishonesty. After a careful review of the record, we conclude the trial courtís findings are supported by the evidence. See State by Burnquist v. Bollenbach, 241 Minn. 103, 109, 63 N.W.2d 278, 282-83 (1954) (deferring to trial courtís determination of witness credibility and refusing to set aside findings supporting dismissal unless clearly erroneous). Under these circumstances, the trial court did not abuse its discretion in dismissing Blanchardís discrimination claim.

II.

In response to a motion for summary judgment, the nonmoving party must present "specific facts" demonstrating a material issue of fact exists. Minn. R. Civ. P. 56.05; Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). We view the evidence in the light most favorable to the nonmoving party to determine whether genuine issues of material fact exist and whether the trial court correctly applied the law. Fahrendorff by Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 909-10 (Minn. 1999); Ciardelli v. Rindal, 582 N.W.2d 910, 912 (Minn. 1998); Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Blanchard argues the trial court improperly granted summary judgment on her reprisal claim. See McGrath v. TCF Bank Savings, 509 N.W.2d 365, 366 (Minn. 1993) (holding plaintiff may prevail on reprisal claim despite employerís legitimate reason for discharge if illegitimate reason "more likely than not" motivated termination) (citing Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988)). To establish a prima facie case of reprisal, Blanchard must show statutorily-protected conduct, adverse employment action, and a casual connection between her conduct and Pioneer Pressís action. Cross v. Cleaver, 142 F.3d 1059, 1071 (8th Cir. 1998); Hubbard v. United Press Intíl, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

The record demonstrates: (1) Blanchard worked as a theatre critic for Pioneer Press from 1992 until her termination in 1997; (2) during her employment, Blanchard complained about alleged disparate treatment of women and an editorís reference to her marital status; (3) in April 1997, Blanchard was suspended for one week without pay because her financial involvement with a local theater company created a conflict of interest with her employment; (4) in May 1997, Blanchard again was suspended for one week without pay because she wrote, and Pioneer Press published, a theatre story quoting as its chief source an actress with whom Blanchard had a financial relationship; (5) on May 8, 1997, Blanchard appeared on the Barbara Carlson radio show and engaged in banter about the circumstances of her suspension, her employerís treatment of other employees, and personal matters relating to a co-worker and his wife; (6) on May 13, Blanchard repeatedly denied that she was or knew the source for the radio hostís misinformation about the co-worker, but the host confirmed Blanchard was the source of all the information; (7) Blanchard later admitted she provided the host with the information about her employment and her co-worker; (8) in May 1997, Blanchard provided false information regarding her employment status to two news organizations; and (9) on May 16, 1997, Pioneer Press terminated Blanchard for "proven dishonesty."

Blanchardís complaints about the alleged disparate treatment do not immunize her unprofessional conduct. See Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir. 1988) (holding Title VIIís protection from retaliation does not protect unsatisfactory performance). The proximity of Blanchardís protected acts with Pioneer Pressís adverse action is insufficient to prove a causal connection without a demonstration that "but for" the protected activity, Blanchard would not have suffered the adverse employment action. Fields v. Phillips Sch. of Bus. & Tech., 870 F. Supp. 149, 153 (W.D. Tex. 1994), affíd mem., 59 F.3d 1242 (5th Cir. 1995); see Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992) (holding termination six months after protected activity was insufficient to establish casual connection).

Blanchard failed to offer any evidence establishing pretext for Pioneer Pressís proffered nondiscriminatory reasons for her termination. See Kennedy v. GN Danavox, 928 F. Supp. 866, 872 (D. Minn. 1996) (assigning plaintiff burden of proving adverse employment action motivated by intentional discrimination); Hermeling v. Montgomery Ward & Co., 851 F. Supp. 1369, 1378 (D. Minn. 1994) (holding actions and comments by nondecisionmaking employee cannot provide basis for charging other employees with discriminatory intent); Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988) (recognizing summary judgment is appropriately granted when employee fails to set forth evidence establishing pretext for employerís proffered nondiscriminatory reasons). Under these circumstances, the trial court properly granted summary judgment on her retaliation and reprisal claims.

Blanchard also argues the trial court improperly granted summary judgment on her common law public policy claim. See Novosel v. Nationswide Ins. Co., 721 F.2d 894, 898-99 (3d Cir. 1983) (recognizing common law cause of action exists where no statute governs terminations in violation of public policy). But common law claims for retaliatory discharge have been displaced by the state Whistleblower Act. See Minn. Stat. ß 181.932 (1998) (protecting employees from adverse employment action resulting from reporting employerís violation of law); Thompson v. Campbell, 845 F. Supp. 665, 676 (D. Minn. 1994) (noting Minnesota courts have not recognized a common law wrongful discharge claim) (citing Piekarski v. Home Owners Sav. Bank, 956 F.2d 1484, 1493 (8th Cir. 1992); Steinbeck v. Northwestern Natíl Life Ins. Co., 728 F. Supp. 1389, 1394 (D. Minn. 1989)); Bolton v. Dept. of Human Servs., 527 N.W.2d 149, 154 (Minn. App. 1995) (recognizing common law retaliatory discharge claims displaced by Whistleblower Act), revíd on other grounds, 540 N.W.2d 523 (Minn. 1995). Thus, Blanchard has no common law claim for discharge in violation of public policy independent of Minn. Stat. ß 181.932. Under these circumstances, the trial court properly granted summary judgment on her common law public policy claim.

Affirmed.