This opinion will be unpublished and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

C4-01-1571

 

Carl Hobson,

Appellant,

 

vs.

 

Willamette Industries,

Respondent.

 

Filed March 5, 2002

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. C1011040

 

John J. Curi, 2249 East 38th Street, Minneapolis, MN  55407 (for appellant)

 

David L. Hashmall, Felhaber, Larson, Fenlon & Vogt, 601 Second Avenue South, Suite 4200, Minneapolis, MN  55402-4302 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Carl Hobson sued his former employer, respondent Willamette Industries, alleging retaliatory discharge in violation of Minn. Stat. § 176.82, subd. 1 (2000) (“Any person discharging * * * an employee for seeking workers’ compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits is liable in a civil action for damages * * *.”).  At the time of his discharge, Hobson was working under a “last chance” agreement (LCA).  He was fired when he violated the LCA by receiving more than two attendance infractions in a four-month period.  Hobson alleges that the LCA violated section 176.82 because it allowed Willamette to discharge him for absences, even if he incurred them because of a work-related injury.

            Because Hobson failed to properly notify Willamette that his absences were due to a work-related injury and because Hobson failed to present any evidence to suggest that Willamette discharged him for seeking workers’ compensation benefits, we affirm the district court’s grant of summary judgment to Willamette.

D E C I S I O N

            Summary judgment is properly granted when either party is entitled to judgment as a matter of law and there are no genuine issues of material fact.  Minn. R. Civ. P. 56.03.  A defendant is entitled to summary judgment “when the record reflects a complete lack of proof on any of the * * * essential elements of [the plaintiff’s] claim.”  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001) (citation omitted).  The plaintiff in such a case cannot defeat summary judgment “with unverified and conclusory allegations or by postulating evidence that might be developed at trial.”  Id.; see also Minn. R. Civ. P. 56.05 (party opposing summary judgment cannot rely on “mere averments” or “denials” in that party’s pleading, “but must present specific facts showing that there is a genuine issue for trial”).

            To prove a claim of retaliatory discharge under Minn. Stat. § 176.82 (2000), the employee must establish that the employer’s proffered reason for discharge is a pretext.  Randall v. N. Milk Prods., Inc., 519 N.W.2d 456, 459-60 (Minn. App. 1994).  An employee may demonstrate pretext by showing a causal link between the discharge and the subsequent workers’ compensation claim.  That link may be demonstrated by the sequence of events leading up to the discharge or by other direct or circumstantial evidence that the employer was motivated by other reasons to discharge the employee.  Id. at 460.

            Here, Willamette submitted evidence that established:  (1) Hobson failed to follow company policy regarding work-related injuries, which required an employee to notify a supervisor of the injury and note it on his time card; (2) in the one instance Hobson properly requested time off from a supervisor so that he could visit his doctor, he did not receive an attendance infraction; (3) after his discharge, Hobson filed for and received workers’ compensation benefits; (4) during his workers’ compensation hearing, Hobson admitted that he did not believe that he was terminated because of his workers’ compensation claim; and (5) Willamette’s managers first heard that Hobson was claiming that his discharge was related to his claim for workers’ compensation benefits after this lawsuit was filed.

            Hobson submitted an affidavit in which he claimed that he did not immediately inform a supervisor about his work injury “because for the first 5 days of painful symptoms, [he] had no idea [that his] work movements [caused those] symptoms.”  While this might explain Hobson’s initial failure to notify a supervisor of his March 13 injury, it does not explain why he did not do so after March 16, when his doctor diagnosed him with work-related “costochondritis,” an inflammation of the muscle tissue lining the rib cage, but nevertheless released him to return to work with no restrictions.  Nor does it explain why Hobson failed to properly notify a supervisor that he left work early on March 17 due to a work-related injury or why he failed to report that he was late on April 22, the day he was terminated, because of a work-related injury.[1]

            Thus, Hobson failed to successfully rebut Willamette’s evidence that it terminated him not because he sought workers’ compensation benefits, but because he violated the terms of the LCA.  Moreover, Willamette’s actions do not rise to the level of “outrageous” or “extreme” conduct necessary to find a cause of action for retaliatory discharge.  See Bergeson v. U. S. Fidelity & Guar. Co., 414 N.W.2d 724, 727 (Minn. 1987) (“[A] cause of action under section 176.82 lies where a person * * * obstructs or hinders, whether by deliberate action or inaction, the receipt of benefits due the injured worker and does so in a manner that is outrageous and extreme, or, to put it another way, in a manner which is egregiously cruel or venal.”); Markgraf v. Douglas Corp., 468 N.W.2d 80, 83 (Minn. App. 1991) (no retaliatory discharge where employer’s policies not challenged as unreasonable and employee’s discharge in accordance with those policies did not constitute egregious conduct so as to render the employer liable for civil damages under section 176.82).

            Hobson further argues that the LCA is “void” under the workers’ compensation statutes because it “diminishes [his] entitlement to benefits.”  See Minn. Stat. §§ 176.1812, subd. 4 (prohibiting any agreement that “diminishes an employee’s entitlement to benefits), .021, subd. 4 (2000) (“[a]ny agreement by any employee * * * to take as compensation an amount less than that prescribed by this chapter is void”).  Nothing in the LCA refers to Hobson’s right to claim workers’ compensation, nor does it hinder or obstruct that right.  As Willamette notes, Hobson’s entire argument “fails to acknowledge the distinction between discharging an employee because of persistent absenteeism and the failure to live up to the LCA,” which is permissible, and “discharging an employee because he sought workers’ compensation benefits,” which is a violation of section 176.82.

            Finally, Hobson claims that summary judgment was prematurely granted because no discovery had occurred.  Hobson, however, failed to request a continuance or file an affidavit alleging that he was unable to present specific facts to oppose summary judgment due to insufficient time to conduct discovery.  See Minn. R. Civ. P. 56.06; Boulevard Del, Inc. v. Stillman, 343 N.W.2d 50, 52-53 (Minn. App. 1984).  We therefore conclude that the district court’s grant of summary judgment was not premature.

            Affirmed.      

 



* 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]  Hobson also suggests that he did not need to notify anyone about his injury because Willamette managers knew, on or about March 19, that he had suffered a work-related injury based on their receipt of an invoice from his doctor.  This knowledge, however, did not place the burden on these managers to assume that every time Hobson was late or absent, it was due to this work-related injury.