This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-1418

Carol Phillips,
Appellant,

vs.

City of Dayton, et al.,
Respondents.

Filed February 29, 2000
Affirmed in part, reversed in part, and remanded
Klaphake, Judge
Schumacher, Judge, dissenting

Hennepin County District Court
File No. 98-2473

John E. Mack, Mack & Daby, P.A., P.O. Box 302, New London, MN 56273-0302 (for appellant)

Julie Fleming-Wolfe, 1654 Grand Ave., St. Paul, MN 55105-1804 (for respondents)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

Appellant Carol Phillips challenges the district court’s grant of summary judgment dismissing her age discrimination, disability discrimination, retaliatory discharge, and breach of contract claims. The district court granted summary judgment on all claims based solely on its determination that appellant had resigned from her job. Because this presents a genuine issue of fact that is material to a claim of age discrimination or retaliatory discharge, the district court erred in granting summary judgment on these claims.

Because it is unclear whether the city made any quasi-judicial determination, we remand on appellant’s breach of contract claim for further consideration. Because appellant failed to establish a prima facie case of disability discrimination, we affirm the district court’s dismissal of that claim.

D E C I S I O N

On appeal from summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997). In reviewing a grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party; if a party fails to establish a prima facie element of a claim, however, summary judgment is appropriate. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).

Age Discrimination and Retaliatory Discharge

Appellant contends that the district court erred in determining that she resigned. To establish a prima facie case of age discrimination or retaliatory discharge, a plaintiff must prove that she was discharged. See Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 539 (Minn. App. 1997), review denied (Minn. Jun. 11, 1997); Ward v. Employee Dev. Corp., 516 N.W.2d 198, 201 (Minn. App. 1994), review denied (Minn. July 8, 1994). Whether an employee quit or was discharged is generally a question of fact. Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 29 (Minn. App. 1984).

In this case, there is no direct evidence that appellant resigned. The record contains letters from city staff to respondent informing her that her paid medical leave would expire November 3, 1997, that her failure to respond would be considered a resignation, and that her resignation would be processed effective November 3, 1997. The record also contains a letter from appellant’s attorney, dated November 4, 1997, stating that appellant had no intention of resigning. The record is silent as to whether the city council approved the actions of city staff or whether the city council took any other action in this matter. Because there are competing inferences from these facts on whether appellant quit or was discharged, the district court erred in dismissing appellant’s age discrimination and retaliatory discharge claims.

Breach of Contract

Judicial review of an administrative body’s termination decision must be invoked by writ of certiorari. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). A municipality’s decision to discharge a public employee is quasi-judicial, requiring review by writ of certiorari, even though the public employee may attempt to bring a breach of contract action in district court against the municipality. See Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996); Mowry v. Young, 565 N.W.2d 717, 719 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997).

Appellant argues that the district court had jurisdiction to hear this breach of contract claim because the city council never made any quasi-judicial decision to discharge her. Respondent claims the record supports the existence of a quasi-judicial decision from which to invoke a writ of certiorari.

On the record before the district court and as presented to us, a question of fact exists on whether the city council took any administrative action to discharge appellant. Without other evidence to clearly show that the city council acted or authorized city staff’s actions, we cannot determine whether summary judgment is appropriate on this claim. We therefore remand for the district court to determine this jurisdictional issue and for a ruling on the appropriateness of summary judgment on the breach of contract claim.

Disability Discrimination

Under the Minnesota Human Rights Act, an employer engages in an unfair employment practice if it fails to "make reasonable accommodation to the known disability of a qualified disabled person." Minn. Stat. § 363.03, subd. 1(6) (1998). A plaintiff must show that he or she is disabled in order to establish a prima facie case. Lindgren v. Harmon Glass Co., 489 N.W.2d 804, 808 (Minn. App. 1992) review denied (Minn. Oct. 20, 1992). A person is defined as disabled if she

(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.

Minn. Stat. § 363.01, subd. 13 (1998). A qualified disabled person is one who "with reasonable accommodation, can perform the essential functions required of all applicants for the job in question." Minn. Stat. § 363.01, subd. 35(1).

Appellant argues that her bladder incontinence and other physical and mental manifestations of job-related stress rendered her a "qualified disabled person." She claims that a major life activity, working, was limited by her mental and physical problems. Respondent argues that it was not aware that appellant’s physical problems interfered with her ability to work.

Although working is a major life activity, an individual qualifies as disabled if she is unable, because of a medical impairment, to perform a particular class of jobs. Fahey v. Avnet, Inc., 525 N.W.2d 568, 574 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). The record does not support the conclusion that appellant’s bladder incontinence and migraines prevented her from working. See id. (finding hand ailment not disability because it did not prevent typist from securing job not requiring typing). Rather, the record shows that appellant was seeking work elsewhere and was working part time at her health club. Given this, she cannot establish she was a qualified disabled person under Minn. Stat. § 363.01.

In addition, there is no evidence to show that the city knew or regarded appellant as disabled. During her employment, she did not inform the city that she suffered from a disability or medical impairment nor did she ask for any reasonable accommodation. Appellant merely stated to city staff that she had to use the bathroom more frequently. Mere awareness by supervisors of an employee’s medical condition is insufficient to establish that the employer regarded the employee as disabled. Hayes v. Blue Cross Blue Shield of Minn., Inc., 21 F.Supp.2d 960, 972 n.7 (D. Minn. 1998); see also Kelly v. Drexel Univ., 94 F.3d 102, 109 (3rd Cir. 1996) (employer’s awareness of employee’s impairment not enough to show employer regarded employee as disabled or that negative employment action resulted).

Given these undisputed facts, appellant failed to establish that her medical conditions constituted a disability or a record of disability, or that she was regarded as disabled as required by the MHRA. Although the district court did not specifically address appellant’s claim of disability discrimination, summary judgment was appropriate as a matter of law because appellant failed to meet her burden of proving a prima facie case on this claim.

Affirmed in part, reversed in part, and remanded.

 

SCHUMACHER, Judge (dissenting).

I respectfully dissent. Because there is no factual dispute surrounding appellant's resignation, the trial court correctly dismissed her claims on summary judgment.

Respondent employed appellant full time from July 1984 until November 1997. From August 5, 1997, until November 3, 1997, appellant exhausted her paid sick leave and vacation time for medical and psychological reasons. Respondent determined that appellant resigned from her position effective November 3, 1997, because she never requested from the city council an extended unpaid medical leave of absence beyond that date as required under respondent’s personnel policy and did not otherwise return to work.

Between August and October of 1997, respondent made numerous written requests to appellant and her treating physician to provide a medical certificate stating the purpose and expected duration of her leave of absence. In early October, respondent informed appellant in writing that she would need to return to work by November 3 or receive city council approval for an extended unpaid medical leave of absence. Also in early October, appellant’s treating physician informed the city council that appellant "will not be able to return to this position due to medical and psychological reasons." In response to the letter from her physician and because she had not requested city council approval for an extended medical leave, respondent’s staff informed appellant on October 30 that her resignation would be processed effective November 3.

Respondent gave appellant every opportunity to provide it with the required medical information as well as sufficient notice that she needed to obtain city council approval before November 3 for an extended medical leave. Because appellant failed to return to work as requested and failed to follow respondent’s established policy to obtain approval for an unpaid medical leave, the district court correctly concluded there was no genuine issue of material fact that appellant resigned.