This opinion will be unpublished and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

C6-01-471

 

David Evanoff,

Appellant,

 

vs.

 

Minneapolis Public Schools,

Special School District #1,

Respondent.

 

Filed August 21, 2001

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 00-7235

 

Robert A. Manson, 2233 Hamline Avenue North, Suite 609, Roseville, MN 55113 (for appellant)

 

Donald M. Lewis, Sandra L. Conroy, Halleland Lewis Nilan Sipkins & Johnson, P.A., 600 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant David Evanoff challenges the district court’s grant of summary judgment in favor of respondent Minneapolis Public Schools contending the district court erred in determining:  (1) appellant failed to establish a prima facie case of retaliatory discharge; and (2) there were no genuine issues of material fact for trial.  We affirm.

D E C I S I O N

 

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

 

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  This court “view[s] the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). 

I.

The Minnesota whistleblower statute prohibits an employer from discharging 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.

 

Minn. Stat. § 181.932, subd. 1(a) (2000).  An employee may “establish a prima facie case of retaliatory discharge,” by showing:

(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.

 

Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996) (citation omitted), review denied (Minn. Feb. 26, 1997). 

            Appellant contends there is a genuine issue of material fact as to a causal connection between his report of asbestos to the Minnesota Department of Labor and Industry and his termination from employment as an electrician with respondent.  We disagree.  A causal connection may be demonstrated where the adverse employment action occurs “closely in time” after an employer’s knowledge of an employee’s report.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 445 (Minn. 1983) (citation omitted).  Generally, if the adverse action occurs more than one year after the report, the adverse action is considered too remote to establish a causal connection.  See, e.g., Oliver v. Digital Equip. Corp., 846 F.2d 103, 110-11 (1st Cir. 1988) (finding no strong suggestion of retaliation where complaint was made in March 1981 and employee was discharged in December 1983); Hubbard,330 N.W.2d at 445 (stating that the passage of two days between the protected action and the adverse consequence was sufficient to create inference); Tretter v. Liquipak Int’l, Inc., 356 N.W.2d 713, 715 (Minn. App. 1984) (finding causal connection where employee was demoted five months after sexual harassment was reported, and laid off six months after demotion).  Here, respondent terminated appellant more than one year after he filed an asbestos complaint, which renders the adverse action too remote to establish an inference of retaliatory motive.  See Hubbard,330 N.W.2d at 445 (noting that a causal connection may be established by evidence of circumstances justifying an inference of retaliatory motive).

Appellant contends that adverse action was taken against him one month after his report of asbestos was filed when respondent implemented a return-to-work plan.  We disagree.  On October 12, 1995, respondent held a meeting with appellant and his attorney to discuss a return-to-work plan.  Under the plan proposed by respondent, appellant agreed to be assigned to a “light-duty assignment with the Honeywell corporation on a state-funded project.”  Appellant’s participation on this project was to be phased in over a four-week period where appellant would increase his workday from five hours to eight hours.  The plan also required appellant to provide medical verification before respondent would approve additional sick time. 

The plan devised by the parties was not an adverse action.  Rather, it was a compromise designed to accommodate appellant’s injuries and curb his absences.  Moreover, appellant was not terminated after failing to adhere to the plan.  Instead, a second plan was established in June 1996.  And it was only after appellant failed to meet the requirements of the second plan that he was terminated.  Thus, we conclude the imposition of a return-to-work plan does not constitute an adverse action.

            The remoteness in time between appellant’s report of asbestos and his termination and appellant’s history of absenteeism negate any inference of a retaliatory motive.  Therefore, the district court did not err in granting summary judgment because of appellant’s failure to establish a prima facie case of retaliatory discharge.  SeeDLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (“A moving party is entitled to summary judgment when there are no facts in the record giving rise to a genuine issue for trial as to the existence of an essential element of the nonmoving party’s case.” (emphasis added) (quotation and citation omitted)).

II.

            Appellant also contends that the district court erred in granting summary judgment because he raised several genuine issues of material fact.  We disagree.  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  Russ, 566 N.W.2d at 69 (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  A genuine issue for trial “must be established by substantial evidence.”  Id. at 69-70 (quotation omitted).  What constitutes substantial evidence is not defined, but the standard “has been applied to require evidence sufficient to avoid a directed verdict at trial.”  Russ, 566 N.W.2d at 70 (quotation omitted).

            Appellant argues that other employees “with similar [health] issues were not terminated,” which raises the inference that his discharge was retaliatory.  But once an employer has articulated a legitimate, nondiscriminatory reason for the discharge, the former employee bears the burden of showing that the proffered reason for the discharge was a pretext for discrimination.  Hubbard, 330 N.W.2d at 442 n.12.  Here, appellant failed to meet this burden because he did not present any substantial evidence tending to show that he was similarly situated with other employees who were not terminated.  Therefore, appellant failed to raise any genuine issues of material fact and the district court properly granted summary judgment in favor of respondent.

            Affirmed.