This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1015

 

Dorothy Dahnke,

Appellant,

 

vs.

 

Hub City North Central, L.P.,

a Delaware corporation, a wholly owned

subsidiary of Hub Group, Inc.,

Respondent.

 

Filed February 13, 2001

Affirmed in part, reversed in part, and remanded

Holtan, Judge*

 

Hennepin County District Court

File No. 9816861

 

 

John A. Murray, Sjoberg & Tebelius, P.A., 2145 Woodlane Drive, Suite 101, Woodbury, MN 55125 (for appellant)

 

Gregory J. Stenmoe, Tamika R. Nordstrom, Briggs and Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Holtan, Judge.


U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

            This is an appeal from a summary judgment in favor of respondent employer in a discrimination and reprisal lawsuit.  Appellant contends that there were genuine issues of material fact precluding summary judgment and argues that the district court’s rulings were erroneous in several other respects.  We reverse and remand the summary judgment as to the reprisal claim, but otherwise affirm the district court.

FACTS

            Respondent Hub City matches customers who need freight transportation services with major carriers and negotiates the rates between the two.  In 1983, respondent hired appellant and her husband, Ed Dahnke, to open an office in Minneapolis.  Ed Dahnke was the vice president in charge of the Minneapolis office and appellant asserts that she was the general manager.  Although it was undisputed appellant was designated general manager at times, she admitted she did not have authority to hire or fire employees, to set, change, or increase salaries, or to discipline employees.

            In May 1996, respondent acquired American President Lines, a competitor in Minneapolis, in an attempt to bolster business at its Minneapolis office.  Respondent’s parent company hired Lionel Chinelly, who had previously worked for American President Lines, and respondent allowed him to use an office at its Minneapolis facility.  Chinelly also did some work and received some compensation from respondent.  Respondent did not hire Chinelly directly until May 1998.  At the time of the acquisition, respondent removed appellant’s responsibilities for negotiating rates and instead gave her customer services duties.  Respondent also removed appellant’s title as general manager.

            In December 1996, the original owner sold his interest in Hub City and, effective January 1, 1997, a new president, James Gaw, was named.  Gaw personally interviewed the employees at Hub City’s Minneapolis office in late January.  When he met with appellant, she told him she was being discriminated against, citing the fact Chinelly had the same duties she had, yet was being paid twice as much and received more vacation.  Gaw described her as combative and later learned that two key employees threatened to leave if she remained.  Gaw decided to reorganize the Minneapolis office and terminated appellant, effective February 18, 1997.

            In July 1997, Gaw hired a 62-year-old man as the general manager and a 51-year-old man in the sales area.  In October 1997, eight months after appellant’s termination, a 30-year-old woman was hired to perform the customer service duties.

            Appellant filed a charge of discrimination with the Minnesota Department of Human Rights (MDHR), which determined probable cause existed to believe that an unfair discriminatory practice had been committed.  Appellant then sued respondent Hub City.  The district court granted summary judgment in respondent’s favor and Dorothy Dahnke appeals.

D E C I S I O N

            When reviewing a summary judgment, an appellate court must determine whether there are any genuine issues of material fact and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  An appellate court must view the evidence in the light most favorable to the nonmoving party.  State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

I.

            We first address the issue as to the evidence properly considered in a summary judgment motion.  Such evidence must be admissible at trial.  Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976); Minn. R. Civ. P. 56.05.  The district court declined to consider findings made by the MDHR in its probable cause determination, ruling that they were not determinative, did not defeat the motion for summary judgment, and were hearsay.  Appellant contends the report, as well as a witness questionnaire completed by an MDHR investigator, would be admissible at trial under the public records exception to the hearsay rule, Minn. R. Evid. 803(8), and should have been considered in the summary judgment motion.  She argues the information is relevant because it impeaches claims made by respondent.

            First, it is not necessary that evidence offered to defeat a summary judgment motion be “determinative” as to the factual issues raised.  Instead, the only relevant factual inquiry is whether the evidence shows the existence of a genuine issue of material fact, which must be resolved through a trial.  Minn. R. Civ. P. 56.03; Anderson v. Mikel Drilling Co., 257 Minn. 487, 494, 102 N.W.2d 293, 299 (1960).

            Second, we address the district court’s decision to exclude the commissioner’s probable cause report as hearsay.  Although it is hearsay, it is not necessarily inadmissible.  Minn. R. Evid. 803(8) provides that reports of public agencies and factual findings made “pursuant to authority granted by law” are admissible hearsay unless “the sources of information or other circumstances indicate lack of trustworthiness.”  Here, the commissioner responded to the statutory duty to “promptly inquire into the truth of the allegations of the charge” and to determine “whether or not there is probable cause to credit the allegation of unfair discriminatory practices.”  Minn. Stat. § 363.06, subd. 4(1) (1998).

            Respondent argues that because a court order was necessary to gain access to the report, it was not “public” data.  But rule 803(8) applies to data collected by public agencies; the fact that a report contains data that is not public does not preclude the applicability of rule 803(8).  See In re Morton, 386 N.W.2d 832, 834-35 (Minn. App. 1986) (holding prepetition screening report containing “private” data admissible in civil commitment case).  Unless the district court determines that the report is untrustworthy, it is admissible.[1]

            Appellant also argues that the report is admissible for impeachment.  It appears that portions of the report could be offered as prior inconsistent statements.  Such impeachment usage is not precluded by the hearsay exclusion because the prior statements are not offered to prove their truth.  See Minn. R. Evid. 801(c) (hearsay is a statement offered to “prove the truth of the matter asserted”).  The district court did not address the possible impeachment use of the report, but such use would relate solely to credibility, and credibility determinations are not appropriate on summary judgment.  See Couillard v. Charles T. Miller Hosp., Inc., 253 Minn. 418, 421-22, 92 N.W.2d 96, 99 (1958) (holding that if summary judgment is not appropriate, plaintiff must be given opportunity to prove its version of facts at trial).

II.

            An employer is prohibited from discriminating against employees based on their age or sex.  Minn. Stat. § 363.03, subd. 1(2) (1998).  The Minnesota courts have adopted the three-part McDonnell Douglas analysis for addressing discrimination claims.  Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

            The employee has the initial burden of establishing a prima facie case of discrimination.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 441 n.12 (Minn. 1983).  The burden then shifts to the employer to articulate a legitimate and nondiscriminatory reason for the adverse employment action.  Id. at 441-42 n.12.  If the employer does so, the burden shifts back to the employee to show that the employer’s proffered reason was a pretext for discrimination.  Id. at 442 n.12.

            We first address the prima facie case.  The plaintiff must make a prima facie showing of discrimination by a preponderance of the evidence.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  This requires proof of discriminatory motive; where direct evidence is not available, as here, a plaintiff may show discrimination by indirect means.  Id.  The specific elements may vary, depending on the particular fact situation.  Id.

To establish a prima facie case of age or sex discrimination based on discharge or demotion, appellant must show that (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was demoted despite her qualifications; and (4) the employer assigned one not a member of the protected class to do the same work.  See Hubbard, 330 N.W.2d at 442 (addressing discharge); Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998) (addressing demotion).  Appellant met the first three factors, but the district court determined she did not make a showing as to the final factor.

At issue is whether appellant made a showing as to the final factor.  Traditionally, the prima facie case requires the demoted or discharged person “to show that he was actually replaced by one individual or that his position was still open and [the employer] was seeking a similarly qualified applicant.”  Hindman, 145 F.3d at 992.  Evidence that the employer used several other employees to take over the responsibilities of the plaintiff, thereby effectively replacing him, may also be used.  Id.; see Sigurdson, 386 N.W.2d at 720 (addressing discrimination in employment opportunities, and requiring a showing that “opportunities remained available or were given to other persons with plaintiff’s qualifications”).

            We first address the adverse action of demotion.  In May 1996, when respondent acquired its competitor, the person who had originally hired appellant in 1983 altered her duties without changing her salary.  Appellant asserts that she was “in charge of the office personnel,” and the MDHR probable cause determination refers to witness statements that she had supervisory authority over her staff.  Where her salary was unchanged and she admittedly did not have the authority to hire or fire employees, to recommend salary increases or bonuses, or to provide written evaluations, her general allegations that she was in charge of office staff are insufficient to produce the specific facts required to avoid summary judgment on her demotion claim.  See Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986) (holding summary judgment proper “when the nonmoving party fails to provide the court with specific facts indicating” genuine issue of fact) (citation omitted).  Consequently, the district court properly determined she did not make a prima facie case of discrimination as to the demotion.

            The second adverse action taken against appellant was discharge in February 1997.  In July 1997, five months after appellant’s termination, respondent hired a 62-year-old man as general manager, and a 51-year-old man for sales, both members of appellant’s age class.  Appellant, apparently raising only age discrimination claims on the discharge, contends that the hiring of a 30-year-old woman eight months after her termination to replace her was discriminatory.  She also cites several office memos that spoke of the need to hire additional customer service personnel, two of which were written before her departure.  We agree with the district court that the facts were insufficient to show discriminatory action.  Because appellant failed to present a genuine issue of material fact as to a prima facie case of discriminatory discharge, the district court properly granted summary judgment.

III.

            The next issue is whether the district court properly granted summary judgment against appellant on her reprisal claim.  To establish a prima facie case of reprisal, appellant was required to show (1) that she engaged in statutorily protected conduct; (2) that respondent took adverse employment action against her; and (3) that a causal connection exists between her protected conduct and the action taken by respondent.  Hubbard, 330 N.W.2d at 444.  It is undisputed that respondent took adverse employment action against appellant by discharging her; at issue is whether she engaged in statutorily protected conduct and whether a causal connection existed between the conduct and the discharge.

            An employer may not intentionally engage in reprisal against an employee because she “[o]pposed a practice forbidden under this chapter or has filed a charge” or otherwise participated in an MDHR investigation or proceeding.  Minn. Stat. § 363.03, subd. 7(1) (1998).  Appellant contends here that her complaints to the new president about discrimination were statutorily protected conduct because she opposed discrimination, a practice forbidden under the chapter.

            Respondent contends that because appellant did not complain specifically of discrimination as to age or sex, she did not engage in statutorily protected conduct.  But appellant testified in her deposition that she specifically told Gaw that she was being discriminated against, complaining that she “was paid less than anybody in the office and had been there the longest,” and that her junior male counterpart, Chinelly, was getting twice as much salary and more vacation than she was.  This presents at least a genuine issue of material fact as to whether appellant engaged in protected conduct.

            Next, a causal connection between protected conduct and adverse employment action may be shown indirectly by evidence of circumstances justifying an inference of retaliatory motive

                        such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.

 

Hubbard, 330 N.W.2d at 445 (citation omitted).  In Hubbard, the fact that the discharge occurred two days after the plaintiff filed a complaint constituted a prima facie showing of a causal connection.  Id.  In contrast, a period of four months between the allegation of sexual harassment and the discharge in itself was insufficient to show a causal connection, although it did not necessarily preclude causation as a matter of law.  Thompson v. Campbell, 845 F. Supp. 665, 675 (D. Minn. 1994).

            Appellant complained of discrimination directly to the new president of her company, who fired her two weeks later.  Under Hubbard, appellant has at least established a genuine issue of material fact as to causation.  See Tretter v. Liquipak Int’l, Inc., 356 N.W.2d 713, 715 (Minn. App. 1984) (upholding award for reprisal, finding sufficient evidence of causal connection, where service manager recommended plaintiff be demoted three months after he was told to stop sexually harassing her, she was laid off six months later, and she was not rehired despite her seniority and experience).  The district court’s summary judgment as to the reprisal claim is reversed and remanded for further proceedings.

IV.

            An employer must provide an employee who is separated from employment with a copy of the employee’s personnel record on request.  Minn. Stat. § 181.961 (1998).  Respondent promptly sent a copy of appellant’s personnel document to her at her request.  But appellant contends respondent violated the statute by failing to send her a copy of a document that concerned her but was not in her personnel files.  Written documents by a supervisor that are kept within the supervisor’s possession are not part of the personnel file.  Minn. Stat. § 181.960, subd. 4(7) (1998).  Consequently, summary judgment was properly granted on this claim.

            Affirmed in part, reversed in part, and remanded.

 



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] In contrast, the witness questionnaire does not appear to fall within the reach of rule 803(8), and would not be admissible.