This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






John Scheiderich, et al.,





City of Minneapolis,



Filed August 1, 2000


Lansing, Judge


Hennepin County District Court

File No. 989436


James R. Hilbert, Daniel R. Shulman, John G. Shulman, Shulman, Walcott & Shulman, P.A., 121 West Franklin Avenue, Minneapolis, MN 55404 (for appellants)


Jay M. Heffern, Minneapolis City Attorney, Burt T. Osborne, Assistant City Attorney, 350 South Fifth Street, Room 230, Minneapolis, MN 55415 (for respondent)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            In an appeal from a district court order denying a motion to vacate judgment, three former Minneapolis firefighters challenge the court’s findings that the failure to request a trial de novo following arbitration was inexcusable neglect and that it is unlikely that they could prevail on their disability discrimination and reprisal claims.  Because the record supports the district court’s findings and because the court properly applied the law to the facts, we affirm.


John Scheiderich, Leslie Winslow and Richard Johnson, three former firefighters  for the City of Minneapolis, sued the city, alleging disability discrimination, failure to reasonably accommodate disability, and reprisal under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363.03, subds. 1(2), (6), 7 (1998), similar violations of the Americans with Disabilities Act, 42 U.S.C. § 12112 (1994), and violations of the Minnesota Whistleblower Act, Minn. Stat. § 181.932 (1998).  At the end of their city employment, all three were working as inspectors in the Fire Prevention Bureau because of their physical inability to perform the firefighter duties.  The city discharged Johnson after deciding that he was physically unable to perform the inspector duties or any other departmental light-duty job.  Scheiderich and Winslow terminated their employment for reasons they contend amount to constructive discharge. 

The parties selected nonbinding arbitration as the pretrial alternative dispute process mandated in civil cases.  See Minn. Stat. § 484.76, subd. 1 (1998); Minn. R. Gen. Pract. 114.01.  Following a hearing at which both parties were represented, the arbitrator found for the city because the firefighters offered no evidence of damages, and because their liability evidence lacked the specificity required to satisfy their burden of proof. 

The district court notified the parties of the arbitrator’s decision and included a letter from the arbitration coordinator outlining the procedure for appeal and a form for making an appeal.  The rules permit a party to appeal by requesting a trial de novo within 20 days of the filing of the award.  Minn. R. Gen. Pract. 114.09(e).  If no appeal is filed within 20 days, the court enters judgment on the arbitration award.   Minn. R. Gen. Pract. 114.09(d)(2).  The firefighters’ attorney did not file a motion for a trial de novo and apparently did not send a copy of the court’s notice to his clients.  The district court entered judgment and notified all parties.  The firefighters’ attorney moved to vacate the judgment under Minn. R. Civ. P. 60.02(a).  The district court denied the firefighters’ motion, and this appeal followed.


            The Minnesota Rules of Civil Procedure provide relief from judgment under limited circumstances, including “[m]istake, inadvertence, surprise, or excusable neglect.”  Minn. R. Civ. P. 60.02(a); see also Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 489-90 (Minn. 1997) (holding that party may bring motion to vacate arbitration judgment for mistake or excusable neglect under rule 60.02(a)).  To prevail on a motion to vacate judgment for one of these four reasons, the moving party must demonstrate (1) a reasonable claim on the merits; (2) a reasonable excuse for failing to comply with the rules; (3) it acted with due diligence after notice of the error; and (4) that no substantial prejudice will result to the other party if the motion to vacate is granted.  Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d  454, 456 (1952).  A reviewing court will uphold the district court’s decision to grant or deny a rule-60.02 motion absent a clear abuse of discretion.  Charson v. Temple Israel, 419 N.W. 2d  488, 490 (Minn. 1988).

            It is undisputed that the firefighters’ attorney acted promptly once he learned that judgment had been entered and that the city will not be substantially prejudiced if the motion to vacate is granted.  Our inquiry, therefore, centers on the first two factors—the merits of the claim and whether there was a reasonable excuse for failing to comply with the rules.  The district court concluded that the firefighters had not adequately demonstrated either factor.


            The district court initially concluded that the firefighters’ attorney failed to provide a reasonable excuse for neglecting to file for a trial de novo.  The court noted that the attorney offered no explanation for his inaction other than a lack of awareness of the rule, despite the fact he was provided with a copy of the rule when notified of the arbitrator’s decision. 

The firefighters argue that the excusable-neglect factor is met whenever plaintiffs are not personally at fault and the responsibility for error rests entirely on the attorney.   See Nguyen, 558 N.W.2d at 491 (recognizing courts often grant relief from judgments when entered through no fault of client).  But the case law does not support so broad an interpretation.  See, e.g., Kubiszewski v. St. John, 498 N.W.2d 490, 494 (Minn. App. 1993) (affirming denial of motion to vacate even when no indication of plaintiff error), rev’d on other grounds, 518 N.W.2d 4 (Minn. 1994); Ayers v. Rudolph’s Inc., 392 N.W.2d 647, 650 (Minn. App. 1986) (same); State v. $14,000 Dollars in Various Denominations of United States Currency, 345 N.W.2d 277, 280 (Minn. App. 1984) (same).

The cases cited by the firefighters excusing attorney error with blameless clients are distinguishable because the attorneys in those cases provided reasonable explanations for their mistakes.  See Nguyen, 558 N.W.2d at 491 (noting inadvertent failure of attorney’s legal assistant to file request for trial de novo with court when request properly served on opposing party); Pearce v. Lindstrom, 443 N.W.2d 857, 858-60 (Minn. App. 1989) (attributing failure to file for trial de novo to miscommunication with client, interruption of holiday season, and clients’ out-of-state residence).

In this case, we cannot conclude that the district court abused its discretion by finding that the firefighters’ attorney’s neglect was inexcusable.  The court reasonably found that the attorney’s mistaken belief that the arbitrator’s decision was not binding, coupled with his apparent failure to read the simple one-page letter that accompanied the decision and explained the procedure, exceeded the scope of excusable neglect under rule 60.02(a).  Hinz directs a weighing of all four factors, however, and thus we consider the remaining factor of whether the firefighters have demonstrated that they are likely to prevail on the merits.  See Nguyen, 558 N.W.2d at 490.


In order to establish a prima facie case of disability discrimination, the plaintiff must show that (1) he is a disabled person within the meaning of the statute; (2) he is otherwise qualified for the job; (3) he was discharged or subject to other adverse action by the employer; and (4) he was replaced by or the work was reassigned to a non-disabled person, or he was denied opportunities available to non-disabled persons.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 442 (Minn. 1983); see also Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 324 (Minn. 1995) (stating elements of prima facie case vary according to specific factual elements of claim).

As part of the prima facia elements, the firefighters must show that they are qualified disabled persons.  A “qualified disabled person” is one who, “with reasonable accommodation, can perform the essential functions required of all applicants for the job.”  Minn. Stat. § 363.01, subd. 35 (1998).

We note that the record offered by the firefighters is essentially their own affidavits and partial transcripts of their depositions and consists primarily of conclusory statements.  See Charson, 419 N.W.2d at 491 (noting moving party must establish meritorious claim by more than conclusory allegations for relief to be granted from final order of judgment).  But more significantly, the firefighters have not provided any evidence that they were treated differently from non-disabled employees.  They do not allege that their work was re-assigned to non-disabled employees or that they were denied opportunities offered to non-disabled employees.  While the firefighters claim they were subjected to unwarranted and overly severe discipline and demeaning treatment by supervisors, the record contains no evidence they were treated differently from non-disabled employees.  

            The firefighters also fail to allege facts sufficient to show that the city did not provide reasonable accommodation for their disabilities.  A threshold issue in claiming an employer failed to provide reasonable accommodation for a disability is whether the employee ever requested an accommodation.  29 C.F.R. App. § 1630.9 (1998).  The employer must know of the disability and the employee’s desire for an accommodation.  Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999); see also Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996) (“the ADA does not require an employer to assume that an employee with a disability suffers from a limitation”).  There is no evidence in the record that any of the three firefighters requested an accommodation for his disabilities.  The generalized complaints contained in the affidavits were not linked to a particular disability or a request for accommodation.

Because the firefighters have failed to establish even a prima facie case of disability discrimination or refusal to make reasonable accommodation, we do not address the firefighters’ claim of reprisal.  Through their failure to show that they requested a reasonable accommodation, the firefighters also failed to demonstrate a likelihood of success on their reprisal claim.  See Dietrich, 536 N.W.2d at 327 (reprisal plaintiff just show he engaged in statutorily protected conduct).

            The firefighters’ final claim is that the city violated the state Whistleblower Act, Minn. Stat. § 181.932, subd. 1(a) (1998), by ignoring complaints they made to the city about excessive workloads.  To establish a prima facie case under the whistleblower statute, an employee must show that (1) he engaged in statutorily protected conduct; (2) the employer took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action.  Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).  To implicate the whistleblower statute, an employee’s complaint must be made with the intent to expose an illegality and must implicate a violation of an actual federal or state law.  See Obst v. Microtron, Inc., ___ N.W.2d ___, ___, No. CX-98-798, 2000 WL 967979, at *5 (Minn. June 29, 2000).

The firefighters assert that their complaints about excessive workload could lead to violations of the fire code, presumably because inspectors might not have time to observe all potential conditions that might violate the code.  This claim is simply too tenuous and too unsupported to demonstrate any likelihood that they would prevail.  See id. at ___ , 2000 WL 967979, at *5-6 (finding no violation of whistleblower statute where no violations of federal standards for motor-vehicle safety item and no intent to expose illegality); see also Donahue v. Schwegman, Lundberg, Woessner & Kluth, 586 N.W.2d 811, 814 (Minn. App. 1998) (finding statute only protects employees who expose violations of law designed to promote public’s morals, health, safety, and welfare and noting public-policy requirement supports traditional careful limitation to at-will employment exceptions), review denied (Minn. Feb. 18, 1999).

The firefighters failed to demonstrate a meritorious claim of disability discrimination and also failed to provide sufficient evidence to support a claim that they engaged in statutorily protected conduct under the Minnesota Whistleblower Act.  The record supports the district court’s conclusion that the firefighters did not have a reasonable case on the merits.  The district court was well within its discretion in denying the motion to vacate judgment.