This opinion will be unpublished and

may not be cited except as provided by

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








Wanda J. Schmidgall,


FilmTec Corporation,



Filed April 23, 2002

Reversed and remanded

Peterson, Judge



Hennepin County District Court

File No. EM00011581



Douglas A. Hedin, Elizabeth A. Glidden, Daniel S. Goldberg, Hedin & Goldberg, P.A., 2100 Stevens Avenue South, Minneapolis, MN  55404 (for appellant)


Marko J. Mrkonich, Chad W. Strathman, Littler Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN  55402-3720 (for respondent)


            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N




In this appeal from a summary judgment in her retaliatory-discharge action, appellant Wanda J. Schmidgall argues that summary judgment was improper because the district court incorrectly applied the McDonnell Douglas analysis to her retaliatory-discharge claim and incorrectly concluded that her retaliatory-discharge claim is collaterally estopped by this court’s decision in her related unemployment-compensation appeal.  Schmidgall also challenges the assessment of costs and disbursements.  We reverse and remand.


            Respondent FilmTec Corporation requires its employees to report all accidents and injuries to a supervisor during the shift when they occur.  Employees who violate the rule are subject to discipline that may include termination. 

            FilmTec hired Schmidgall on June 3, 1999.  During her employment, Schmidgall suffered three injuries.  On September 22, 1999, she hurt her back when she bumped into a cart as she was leaving after her shift ended.  She initially felt just a twinge or pinch, but her condition worsened the next day, and she reported the incident to her supervisor.  She was sent to a doctor, who prescribed medication and placed her on work restrictions.  Her supervisor coached her on the importance of reporting all accidents and injuries during the shift when they occur.

            A second injury occurred on May 22, 2000, when Schmidgall tripped on a piece of foam during the middle of her shift and injured her back.  She did not report the injury until the next day.  After reporting the injury, she was again sent to a doctor, who placed her on physical restrictions.  Her supervisor issued a written warning, notifying Schmidgall that her failure to report the injury on the day it occurred violated company policy and that future violations could lead to further disciplinary action up to and including termination.

            The third injury occurred on July 5, 2000, when Schmidgall hurt her back while working at a cutting table.  She reported the injury to her supervisor the next day.  Later that day, her supervisor told her to take a vacation day and go home before she suffered a further injury.  Schmidgall said her supervisor told her that if she stayed and reinjured her back, she would have to return to the clinic, which would be another reportable injury.

            Schmidgall remained home on vacation the following two workdays and saw a doctor, who prescribed medication, recommended physical therapy, and imposed work restrictions.  When she returned to work the day after her doctor’s appointment, she gave her supervisor the doctor’s report.  Later that day, he suspended her for violating the same-shift reporting requirement.  Upon the recommendation of a review team, Schmidgall’s employment was terminated.


            On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1.         Schmidgall brought suit against FilmTec alleging that her discharge from employment violated Minn. Stat. § 176.82, subd. 1 (2000), which provides:

            Any person discharging or threatening to discharge 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 incurred by the employee including any diminution in workers’ compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled.  Damages awarded under this section shall not be offset by any workers’ compensation benefits to which the employee is entitled.


            In assessing a claim under this statute, courts must apply the three-part McDonnell Douglas analysis.  Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 428 (Minn. App. 1992), review denied (Minn. June 17, 1992).  Under this analysis, the plaintiff must establish a prima facie case, showing “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983) (citation omitted).  If the plaintiff establishes a prima facie case, the employer must then articulate a legitimate reason for the discharge.  Snesrud, 484 N.W.2d at 427.  The burden then shifts back to the plaintiff to show, by a preponderance of the evidence, that the employer’s articulated reason was pretextual and that the discharge was for impermissible reasons.  Id. at 427-28.

            The district court correctly concluded that the McDonnell Douglas analysis must be applied to Schmidgall’s retaliatory-discharge claim and correctly described the steps of this analysis.  But the court did not reach a conclusion about whether Schmidgall established a prima facie case.[1]  Instead, citing this court’s recent decision in Schmidgall’s related unemployment-compensation case, Schmidgall v. FilmTec Corp., No. C8-01-4, 2001 WL 800048 (Minn. App. July 17, 2001), review granted (Minn. Sept. 25, 2001), the district court concluded:

Based on the above recently decided case, even if [Schmidgall] could establish a prima facie case of retaliatory discharge, [Schmidgall] would be unable to prove by a preponderance of the evidence that [FilmTec’s] reason for the discharge of [Schmidgall] was pretextual or for an impermissible reason.


            In Schmidgall’s unemployment-compensation case, this court rejected Schmidgall’s argument that FilmTec’s same-shift reporting rule was contrary to Minn. Stat. § 176.141 (2000), and therefore unreasonable, and upheld a decision that Schmidgall was not entitled to receive unemployment-compensation benefits because she had been discharged for misconduct after violating the rule.  Schmidgall, 2001 WL 800048, at *3-*4.  The district court apparently concluded that because this court found that the same-shift reporting rule was not unreasonable, and violating the rule was misconduct, FilmTec had a permissible reason for discharging Schmidgall, and, therefore, Schmidgall could not prove that her discharge was pretextual or for an impermissible reason.  This reasoning, however, reflects a misunderstanding of the final step in the McDonnell Douglas analysis.

            Under the McDonnell Douglas method of proof,

even if an employer has a legitimate reason for the discharge, a plaintiff may nevertheless prevail if an illegitimate reason “more likely than not” motivated the discharge decision.


McGrath v. TCF Bank Sav., FSB, 509 N.W.2d 365, 366 (Minn. 1993) (citations omitted).  It is not necessary for Schmidgall to prove that retaliation for seeking workers’- compensation benefits was the sole cause of the discharge.  Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 626-27 (Minn. 1988).

            Even if Schmidgall violated the same-shift reporting rule and her violation was employment misconduct, it is possible that FilmTec’s real reason for discharging her was a reason other than violating the rule or that violating the rule was not FilmTec’s only reason for discharging her.  If Schmidgall can prove that it is more likely than not that she was discharged because she sought workers’-compensation benefits or to intentionally obstruct her seeking workers’-compensation benefits, she can prevail on her retaliatory-discharge claim even if she was also discharged for violating the same-shift reporting rule.  Because the district court incorrectly concluded that Schmidgall’s violation of the same-shift rule meant that Schmidgall could not prove that she was discharged for an impermissible reason, the district court did not consider whether there was sufficient evidence to create a genuine issue of fact whether it is more likely than not that Schmidgall’s discharge was motivated by an impermissible reason.

2.         Schmidgall also argues that by relying on this court’s decision in her unemployment-compensation appeal, the district court erroneously used the doctrine of collateral estoppel to bar her section 176.82 claim.

            Collateral estoppel may be applied under the following circumstances:

                        (1) [T]he issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.


Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982) (quotation and citations omitted).

            The issue in the unemployment compensation case was whether Schmidgall was discharged for misconduct, disqualifying her from receiving unemployment- compensation benefits.  Minn. Stat. § 268.095, subd. 4 (2000).  The issue here is whether Schmidgall made a sufficient showing to establish a fact issue whether it is more likely than not that her discharge was in retaliation for seeking workers’-compensation benefits or to obstruct her seeking workers’-compensation benefits.  Minn. Stat. § 176.82, subd. 1.  These issues are not identical.  Regardless of how the issue in Schmidgall’s unemployment-compensation case was decided, she may be able to establish a fact issue in this case.

            Furthermore, the supreme court has granted review of this court’s decision in Schmidgall’s unemployment-compensation case.  Schmidgall, 2001 WL 800048.  Therefore, this court’s decision is not a final judgment on the merits and may not be used as a basis for applying collateral estoppel.  Because the first two requirements for applying collateral estoppel are not present, this court’s decision in Schmidgall’s unemployment-compensation case may not be applied to collaterally estop Schmidgall’s retaliatory-discharge claim, and it is not necessary to address the remaining requirements.

            We also note that the unemployment-compensation statute explicitly prohibits the findings of fact or decision issued by an unemployment law judge or the Commissioner of Economic Security to “be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum,” except for other unemployment- compensation proceedings.  Minn. Stat. § 268.105, subd. 5(d) (2000). 

3.         Finally, Schmidgall challenges the district court’s award of costs and disbursements.  Because we have reversed the decision of the district court, FilmTec is no longer the prevailing party.  Consequently, we reverse the award of costs and disbursements.

            Reversed and remanded.

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

[1] FilmTec argues that Schmidgall cannot establish a prima facie case.  But because the district court simply assumed that Schmidgall could establish a prima facie case and did not determine whether she could do so, we will not consider this issue on appeal.  See Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982) (“A reviewing court must limit itself to a consideration of only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”).