This opinion will be unpublished and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

C5-01-753

 

Bonnie A. Peterson,
Appellant,

vs.

State of Minnesota, et al.,
Respondents.

 

Filed December 4, 2001

Affirmed

Forsberg, Judge*

 

Hennepin County District Court

File No. 0012753

 

Charles L. Friedman, Friedman Law Office, 4000 Aldrich Avenue South, No. 1, Minneapolis, MN  55409 (for appellant)

 

Mike Hatch, Attorney General, Gary R. Cunningham, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN  55101-2128 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Foley, Judge,* and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N

 

FORSBERG, Judge

            This appeal is from a summary judgment in favor of respondent-employer State of Minnesota on appellant Bonnie A. Peterson’s claims for failure to reasonably accommodate her disability and for reprisal under the Minnesota Human Rights Act.  We affirm.

FACTS

            Respondent Office of Administrative Hearings (OAH) hired Peterson as a workers’ compensation judge in 1987 and assigned her to the Minneapolis office to serve as a hearing judge.  Effective August 2, 2000, OAH transferred Peterson to the St. Paul office to work as a settlement judge.

            While employed by OAH, Peterson made 14 claims for work-related injuries under the Workers’ Compensation Act (WCA).  Several of those injuries occurred when she traveled to remote locations to conduct hearings.  Peterson also suffers from a non-work-related disability in her right hand.  As a result of her injuries, Peterson’s work assignments have been subject to medical restrictions, including restrictions on driving time and on the use of her hand for specific tasks, including typing.

            On June 30, 2000, Peterson was assigned to conduct two discontinuance cases under Minn. Stat. § 176.239 as a replacement judge.  Peterson left the office that day without conducting the hearings.  A factual dispute exists as to whether Peterson left because she was ill or because she did not know how to handle a discontinuance case.  Respondent Kenneth Nickolai, the chief administrative judge for OAH, suspended Peterson without pay for three days for leaving without conducting the hearings.  Peterson grieved the suspension, and Nickolai reduced it to a written reprimand.  In her grievance of the suspension, Peterson stated that she believed a March 2000 trip to Worthington exceeded her medical restrictions and that since the trip, she had suffered from nausea and increased pain.

            Effective August 2, 2000, Nickolai assigned Peterson to work as a settlement judge in the St. Paul office.  Although the responsibilities of hearing judges differ from those of settlement judges, both positions are in the same classification and pay range.  Peterson presented evidence that computer use by hearing judges ranges from five minutes to one hour per day, while computer use by settlement judges averages two hours per day.  Peterson’s supervisor, respondent Janice Culnane, stated in an affidavit that in response to Peterson’s complaint that computer use exceeded her one-hour-per-day medical restriction, OAH made accommodations, including eliminating all motion work because it requires a high volume of computer work; converting electronic format files to paper and assigning Peterson to work on older files still in paper format; providing Peterson with a Qualified Rehabilitation Consultant (QRC) of her choice; and providing her with the desk/work-station unit that she requested.  OAH also provided Peterson with computer adaptations, including different mouse varieties, an alternate keyboard, mouse wrist support, and keyboard wrist support.

            OAH denied Peterson’s request to be assigned back to Minneapolis to work as a hearing judge.  Nickolai stated in his affidavit that out-state travel is an essential part of the work of a hearing judge.  Culnane explained:

Minn. Stat. § 176.306 requires the Chief Administrative Law Judge to schedule “worker’s compensation hearings on as regular a schedule as may be practicable in no fewer than six widely separated locations throughout the state, including at least four locations outside of the seven county metropolitan area and Duluth, for the purpose of providing a convenient forum for parties to a compensation hearing.”  All compensation judges in the hearing division are set for a week of road trips every four to five weeks.

 

OAH presented evidence that Peterson refused to cooperate in efforts to evaluate her job capabilities.  OAH wanted Peterson to submit to a functional-capacities evaluation (FCE) to objectively evaluate her abilities.  Peterson also resisted her QRC’s suggestion that she observe Peterson for an eight-hour day to determine how much time Peterson uses the computer.

D E C I S I O N

            On appeal from summary judgment, this court must review the record to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  This court must view the evidence in the light most favorable to the nonmoving party.  Id.  But

summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

 

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994) (citation omitted).  The party seeking reversal has the burden of demonstrating error.  Bloom v. Hydrotherm, Inc.,499 N.W.2d 842, 845 (Minn. App. 1993), review denied(Minn. June 28, 1993).

I.

            It is an unfair discriminatory practice for any * * * employer * * * to intentionally engage in any reprisal against any person because that person:

            (1) Opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter * * * .

 

            A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment.  It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in the activities listed in clause (1) or (2):  refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1) or (2).

 

Minn. Stat. § 363.03, subd. 7 (2000).

In order to establish a prima facie case of reprisal an employee must establish:  (1) that she engaged in statutorily protected conduct; (2) an adverse employment action by the employer; and (3) a causal connection between the two.

 

Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995).

In reprisal cases, Minnesota courts apply the three-part test established by the United States Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  Potter v. Ernst & Young, LLP, 622 N.W.2d 141, 145 (Minn. App. 2001).  Under the McDonnell-Douglas analysis,

[t]he employee-plaintiff has the initial burden of establishing a prima facie case of discrimination.  Once the employee has established a prima facie case of reprisal, the burden shifts to the employer to articulate a legitimate and non-discriminatory reason for the adverse employment action.  The burden then shifts back to the employee to show that the proffered reasons were not the true reason for the action, but were instead a pretext for discrimination.

 

Id. (citing McDonnell-Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824-25).

 

            Statutorily protected conduct

            Although Peterson does not specify what conduct of hers was statutorily protected, she appears to rely on her July 2000 grievance and a request for an accommodation to work from home two days a week.  Requesting a reasonable accommodation is statutorily protected conduct.  Minn. Stat. § 363.03, subd. 1(6) (2000); Hoover v. Norwest Private Mortgage Banking, 605 N.W.2d 757, 766 (Minn. App. 2000), aff’d in part, rev’d in part, 632 N.W.2d 534 (Minn. 2001).

            Adverse employment action

            Peterson argues that the position of settlement judge requires her to do work that exceeds her medical restrictions and, therefore, transferring her to work in that position meets the statutory definition of reprisal.  Respondents argue that the definition of reprisal by an employer should be limited to the examples specifically listed in Minn. Stat. § 363.03, subd. 7.  We disagree.  The definition of reprisal is very broad; it “includes, but is not limited to, any form of intimidation, retaliation, or harassment.”  Minn. Stat. § 363.03, subd. 7; see also Ludwig v. Northwest Airlines, Inc., 98 F. Supp. 2d 1057, 1069 (D. Minn. 2000) (explaining that “[a]dverse employment action is that which materially alters the terms or conditions of the plaintiff’s employment” and that plaintiff need “not suffer from blatant adverse employment action, such as a demotion or termination”), aff’d, No. 00-2258, 2001 WL 10908 (8th Cir. Jan. 5, 2001), cert. denied, 122 S. Ct. 48 (2001) .  The definition of reprisal is broad enough to include transferring an employee to a position that she is unable to perform due to medical restrictions.

Peterson first asserts that excessive computer use has aggravated the injury to her right hand.  In October 1999, a doctor recommended that Peterson’s computer use be limited to one-half hour twice a day.  Although the record contains evidence that a settlement judge averages two hours a day of computer use, respondents have reduced the required computer use for Peterson by eliminating motion work and having her work on paper files.  Respondents have also provided Peterson with workstation and computer adaptations.  Peterson cites no medical evidence supporting her contention that with the reduced computer use and the workstation and computer adaptations, the position of settlement officer exceeds her current medical restrictions.  Moreover, Peterson refused to cooperate in OAH’s efforts to obtain an FCE or have a QRC observe her for an eight-hour workday.

Peterson also argues that the longer commute to St. Paul and the lack of flexibility to telecommute four days each month aggravated her back and neck injuries.  Peterson cites no evidence that commuting to St. Paul each workday violates her medical restrictions.  The only evidence in the record regarding driving restrictions is that Peterson was restricted from driving to outstate commutes for more than three and one-half to four hours each way.  Absent any evidence showing that, with the accommodations provided by respondents, Peterson is still unable to perform the work of a settlement judge, the evidence is insufficient as a matter of law to prove an adverse employment action.  See Ludwig, 98 F. Supp. 2d at 1069 (“mere inconvenience or unhappiness on the part of the employee will not lead to a finding of actionable adverse employment action”).

Causal connection

Respondents articulated a legitimate, nondiscriminatory reason for transferring Peterson, specifically that Peterson’s medical restrictions prevented her from travelling to some outstate locations.  The record contains uncontradicted evidence that travel to outstate locations is an essential function of a hearing judge.  Several of Peterson’s WCA claims resulted from injuries that occurred when she traveled to outstate locations, and the decision to transfer her to the position of settlement judge was made in response to her complaint that traveling to Worthington in March 2000 aggravated her back injury.  The record contains sufficient evidence to prove that Peterson was unable to perform the travel duties required of a hearing judge and, therefore, a legitimate, nondiscriminatory reason existed for transferring her to the position of settlement judge.

Peterson argues that the actual reason for the transfer was as punishment for filing a grievance and requesting the accommodation of telecommuting two days per week.  To survive summary judgment on the pretext prong, plaintiff must show that the employer’s articulated legitimate reason is unworthy of belief.  Hoover,605 N.W.2d at 761-62.  As evidence of pretext, Peterson cites evidence that respondents knew that working temporarily as a settlement judge in 1999 aggravated her hand injury.  But when OAH transferred Peterson to the position of settlement judge in 2000, it made numerous accommodations for her hand injury.  Absent any medical evidence that her work as a settlement judge continues to exceed her medical restrictions, the evidence as a matter of law is insufficient to prove that respondents’ articulated, legitimate reason for transferring Peterson is unworthy of belief.

Because Peterson failed to present sufficient evidence to prove two essential elements of her reprisal claim, the district court properly granted summary judgment in favor of respondents.  Having concluded that the district court properly granted summary judgment on the merits, we do not reach the issue of whether the WCA precluded Peterson’s reprisal claim.

II.

To support a claim for failure to make reasonable accommodation under the Minnesota Human Rights Act (MHRA), a plaintiff must show that she is a qualified disabled person, that her disability is known to the employer, and that the employer failed to make reasonable accommodation.  Minn. Stat. § 363.03, subd. 1(6) (2000); Hoover, 605 N.W.2d at 766.

Disability

To qualify as a disability under Minn. Stat. § 363.01, subd. 13 (2000),  a physical impairment must materially limit one or more major life activities.  The disability that Peterson claims resulted from an injury to her right hand that limits her computer use.  This court has held that inability to type does not qualify as a limited major life activity and does not disqualify a person from all types of jobs.  Fahey v. Avnet, Inc., 525 N.W.2d 568, 574 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  Peterson argues that given the extensive use of computers in the workplace and elsewhere, her impairment is more significant than an inability to type.  The argument is not persuasive.  As respondents point out, adaptive technology is available for computers, and Peterson cites no medical evidence that with adaptations, she cannot use a computer as necessary to do the job of a settlement judge.  Peterson does not identify any other major life activities that her hand injury limits.

            Reasonable accommodation

The MHRA requires an employer and employee to participate in an interactive process to determine a reasonable accommodation.  Hoover, 605 N.W.2d at 766.  “A party that obstructs or delays the interactive process is not acting in good faith.”  Breiland v. Advance Circuits, Inc., 976 F. Supp. 858, 864 (D. Minn. 1997).  An employer is not required to provide an employee with the accommodation of her choice but rather need only provide a reasonable accommodation.  Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996).

            Peterson requested the accommodation of being reassigned to work as a hearing judge.  Respondents denied her request and instead made accommodations to enable her to work as a settlement judge without aggravating her hand injury.  Peterson has obstructed those efforts, insisting that she be reassigned to work as a hearing judge and refusing to cooperate with respondents’ efforts to objectively assess her ability to work as a settlement judge.  Peterson, however, was unable to perform the travel duties required of a hearing judge.  Although she presented evidence that other hearing judges would have been willing to trade hearing assignments with her so that she would not have to make trips exceeding her travel restrictions, the evidence does not show that such an accommodation was feasible or that any similar accommodation had ever been made for another hearing judge on a long-term basis.  The evidence is insufficient as a matter of law to prove that respondents failed to make a reasonable accommodation.

            The district court properly granted summary judgment in favor of respondents on Peterson’s reasonable accommodation claim.

            Affirmed.

           



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