This opinion will be unpublished and

may not be cited except as provided by

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







Robert Rojina,





City of Chanhassen,



Filed July 9, 2002


Lansing, Judge


Carver County District Court

File No. C101193



Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., 1850 W. Wayzata Boulevard., P.O. Box 39, Long Lake, MN  55356 (for appellant)


Thomas M. Scott, Campbell Knutson Professional Association, Suite 317, 1380 Corporate Center Curve, Eagan, MN  55121 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            This is an appeal from a district court order granting summary judgment on claims relating to disability discrimination.  We affirm the district court’s determination that the employee failed to establish that his anxiety disorder constituted a disability that materially affected a life activity, his employer regarded him as having such a disability, or his employer unlawfully retaliated against him for engaging in protected conduct under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363.01-.15 (2000).


            Robert Rojina was employed as a light equipment operator for the city of Chanhassen from 1988 until March 1999.  During the course of his employment, Rojina received performance evaluations that varied but generally commented on his inability to work with co-workers.  On March 12, 1999, after co-workers reported that Rojina had violated various workplace rules, Rojina’s supervisors met with him, told him that they no longer believed the problems with co-workers could be solved, and that, if he did not resign, they would terminate his employment.

            Rojina asked for time to consider his resignation, contacted his attorney, and arranged to meet with a psychiatrist.  When Rojina did not respond to Chanhassen’s request to resign, the city suspended Rojina’s employment with pay, sent him a letter listing work infractions, and requested that he attend a meeting to discuss his employment status.

The letter stated that Rojina’s personnel file had demonstrated problems for the past six years but that the disciplinary action was based on seven incidents that had occurred in the last nine months.  These incidents included unauthorized breaks, misusing sick time, making an inappropriate sexual comment to a young female employee, misusing city equipment, and committing safety infractions while transporting city equipment.  Rojina disputes two of these incidents.

Rojina and his attorney met with Chanhassen’s city manager and Rojina’s two supervisors on March 17, 1999, and discussed the list of infractions.  Rojina explained that his difficulty in interacting with co-workers stemmed from an anxiety disorder.

            The day after the meeting, Rojina’s psychiatrist provided Chanhassen a letter stating that, although Rojina suffered from a non-specific anxiety disorder, he could “function in his job without posing a safety hazard to co-workers.”  Rojina’s supervisor interpreted this opinion as confirming that Rojina’s anxiety disorder did not prevent him from performing his job and terminated Rojina because of his performance over the preceding nine months and his general inability to get along with co-workers.

            Rojina sued Chanhassen, alleging disability discrimination, perceived disability discrimination, and retaliatory termination for attempting to enforce MHRA provisions.  In response to Chanhassen’s motion for summary judgment, the district court concluded that Rojina had failed to establish a prima facie case on each of his claims and granted summary judgment.

Rojina appeals, contending that the district court erred in holding that he failed to establish that (1) his mental condition constituted a disability under the MHRA, (2) a genuine fact issue existed on whether he had a perceived disability under the MHRA, and (3) a genuine fact issue existed on whether his termination was unlawful reprisal for engaging in protected conduct under the MHRA.


            On appeal from summary judgment we determine whether the case raises genuine issues of material fact and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997); see Minn. R. Civ. P. 56.03 (stating district court standard for summary judgment).  In assessing the evidence, we take the view most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  But if the nonmoving party fails to raise a material issue of fact on any element essential to establishing its case, summary judgment is appropriate.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).


            The MHRA prohibits discharge of an employee because of that employee’s disability.  Minn. Stat. § 363.03, subd. 1(2)(b).  When there is no direct evidence of discrimination, we analyze disability discrimination claims using the shifting-burden analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973).  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).  Under this analysis, the plaintiff first has the burden to establish a prima facie case of discrimination.  To meet this initial burden of establishing a prima facie case of disability discrimination, Rojina must show that he is a disabled person, he was otherwise qualified, he was discharged, and he was replaced by, or the work was reassigned to, a nondisabled person.  Hoover, 632 N.W.2d at 542; Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 442 (Minn. 1983).

            A person is disabled for purposes of the MHRA if he or she “has a physical, sensory, or mental impairment which materially limits one or more major life activities.”  Minn. Stat. § 363.01, subd. 13.  Chanhassen disputes, to some extent, whether Rojina’s non-specific anxiety disorder constitutes an impairment but primarily disputes that the condition materially limits one or more major life activities.  “The degree to which a condition limits one or more major life activities is evaluated based on the plaintiff’s specific circumstances.”  Hoover, 632 N.W.2d at 543.  The major life activities that Rojina claims are impaired by his anxiety disorder are work and his ability to get along with co-workers.

            Work is a major life activity within the meaning of the MHRA.  Id.; Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995).  To determine whether a person is materially impaired from the major life activity of work, we consider whether the person is restricted in an ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.  State by Cooper v. Hennepin County, 441 N.W.2d 106, 111 (Minn. 1989); Hoover v. Norwest Private Mortgage Banking, 605 N.W.2d 757, 763 (Minn. App. 2000) aff’d in part, rev’d in part, and remanded, 632 N.W.2d 534.  See Toyota Motor Mfg. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 693 (2002) (stating that when addressing major life activity of performing manual tasks, the central inquiry is whether claimant is unable to perform variety of tasks central to daily life, not whether claimant is unable to perform tasks solely associated with job).

            The record provides scant support for Rojina’s claim that his anxiety disorder disqualified him from doing a class of jobs, a broad range of jobs, or his particular job.  Accepting Rojina’s evidence that he suffered from anxiety for over five years before his termination, the evidence shows that within this time he only indicated once that he could not do an activity.  That activity was hauling sand, which required him to stay in a truck for an extended time period.  His supervisor readily permitted him to load sand instead of haul it, and Rojina continued to fully participate in the work day.

Rojina’s psychiatrist diagnosed a nonspecific anxiety disorder but provided an opinion that Rojina could function in his job and would not pose a safety hazard to co-workers.  His psychiatrist later provided an affidavit indicating that the anxiety was chronic but affected only Rojina’s ability to travel and to interact with others.  Rojina admitted in his deposition testimony that his anxiety disorder did not impair his ability to do his job.  When specifically asked whether his anxiety issues in any way limited his ability to do his job with Chanhassen, Rojina responded, “No.”

            The record also shows that at the time of the litigation, Rojina had his own excavating company that performed private excavation and snow removal.  Rojina contracted and performed snowplowing for businesses in Chanhassen and Excelsior and performed excavation work with another company, “Cut & Fill.”  When Rojina was asked in his pretrial deposition whether his anxiety disorder in any way limited his ability to work for his company, Rojina responded, “No.”

            Rojina also claims that his anxiety disorder caused an inability to interact with co-workers, affected his tolerance for crowds, and affected his sleep.  Getting along with co-workers is not a major life activity.  McAlinden v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999) (explaining that trouble getting along with co-workers is not a substantial limitation on a major life activity.); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15-16 (1st Cir. 1997) (rejecting claim that ability to get along with others is a major life activity); Breiland v. Advance Circuits, Inc., 976 F. Supp. 858, 863-64 (D. Minn. 1997) (stating that Minnesota courts do not recognize interacting with others as a major life activity because its conceptual elasticity virtually renders it unworkable as a definition).

Inability to effectively deal with crowds and not getting a proper amount of sleep are also not considered to be major life activities.  See Soileau, 105 F.3d at 15-16 (stating that preferring uncrowded places is not an unusual or noteworthy activity); Sarko v. Penn-del Directory Co., 968 F. Supp. 1026, 1034 n. 8 (E. D. Pa. 1997) (stating that getting a sound night’s sleep is not a major life activity).

            The district court did not err in concluding that Rojina failed to establish that his non-specific anxiety disorder was a mental condition that constituted a disability under the MHRA.


            Rojina argued in the district court that genuine fact issues remain on whether he was perceived as disabled or had a record of being disabled.  On appeal he has not specifically raised the issue of having a record of a disability, but refers to it as part of his argument that a fact issue remains on the perception of disability.  Rojina’s claim of a “record” of disability has no evidentiary or legal support.  The district court, relying on analogous provisions of federal law, concluded that Rojina failed to show that he had a history of disability or was misclassified as being disabled.  See 29 C.F.R. § 1630.2 (2001) (defining “record” clause as having “a history of, or [being] misclassified as having, a mental or physical impairment that substantially limits one or more major life activities”).  The district court did not err in dismissing this claim.

            Rojina contends that he has raised a genuine factual issue on whether he was regarded as having an impairment that materially limits his major life activities because others treated him as having a materially limiting impairment.  Minn. Stat. § 363.01, subd. 13.  Rojina’s direct supervisor was aware that Rojina had referred generally to anxiety and that he had said that he did not want to haul sand for an extended time because of experiencing claustrophobia in the truck.  An employer’s awareness that an employee exhibits symptoms that may be associated with an impairment, however, does not necessarily establish that the employer considered the employee disabled.  Webb v. Mercy Hosp., 102 F.3d 958, 960 (8th Cir. 1996); see also Miller v. Nat’l Cas. Co., 61 F.3d 627, 629-30 (8th Cir. 1995) (explaining that employers are “not obligated to divine the presence of a disability” from symptoms with multiple potential explanations).

            Rojina’s supervisor stated that except in the one requested circumstance, he had not been asked to change and had never changed Rojina’s workload, and Rojina concedes that the sand hauling on one day was his only complaint about job duties.  Rojina provided Chanhassen with no specific information on an anxiety disorder until the meeting with the city manager to discuss his termination.

            No evidence supports Rojina’s claim that he was perceived as having a disability.  Although Rojina complains of ridicule from his co-workers, he concedes that the nature of his work assignment did not change.  See Howard v. Navistar Int’l Transp. Corp., 904 F. Supp. 922, 930 (E. D. Wis. 1995) (stating that whether employer regarded plaintiff as being physically impaired was irrelevant, what mattered was whether employer regarded impairment as substantially limiting plaintiff’s ability to perform major life activity).  Because the evidence is insufficient to raise a genuine fact issue on whether Rojina was perceived as being materially limited in his ability to do his job, the district court did not err in granting summary judgment on this claim.


Rojina’s last claim on appeal is that his termination was an act of retaliation by Chanhassen because of his attempts to invoke disability protection under the MHRA at the March 17, 1999, meeting.  Under the MHRA it is illegal for an employer to retaliate against an employee who opposes an unlawful employment practice.  Minn. Stat. § 363.03, subd. 7.  To establish a prima facie case of an alleged retaliatory discharge, an employee must demonstrate statutorily protected conduct by the employee, adverse employment action by the employer, and a causal connection between the two.  Hubbard, 330 N.W.2d at 444.

            “[A]n employee may demonstrate a causal connection [between statutorily protected conduct and a reprisal] by evidence of circumstances that justify an inference of retaliatory motive.”  Potter v. Ernst & Young, LLP, 622 N.W.2d 141, 145 (Minn. App. 2001) (quoting Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995)).  For two reasons we conclude that Rojina has not set forth sufficient facts to infer a causal connection.

            First, Rojina’s claim about the proximity between his termination and his claim of disability, while true, overlooks the fact that Chanhassen had previously provided Rojina with a substantial list of workplace violations that Chanhassen relied on to terminate his employment.  Although Rojina asserts that others were not punished similarly for similar conduct, for the most part, he does not deny that he committed these infractions.  Nor does he provide any evidence that others committed the same infractions as often as he did.

Furthermore, the record demonstrates that Rojina had been warned about the possibility of his termination for these infractions before he claimed to have a disability.  Rojina contends his claim of disability dates back to his request on the one work day to load sand rather than haul sand.  This request does not satisfy the definition of statutorily protected conduct under Minn. Stat. § 363.03, subd. 7.  See also Larson v. Koch Ref. Co., 920 F. Supp. 1000, 1005 (D. Minn. 1996) (stating that employer needs to provide accommodation only when the employer knows that the plaintiff is disabled and needs accommodation).

Because Rojina had not claimed a disability before Chanhassen’s list of infractions had been presented to him, the record does not support an inference that Chanhassen was retaliating for seeking MHRA protections.  See Smith v. Ashland, Inc., 250 F.3d 1167, 1173-74 (8th Cir. 2001) (stating that when employer began documenting problems with employee’s performance before employee mentioned disability, the inference of retaliation based on proximity between statutorily protected conduct and termination is not supported); see also Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir. 1988) (holding that protection from complaining about illegal activity in workplace does not insulate an employee from the consequences of inadequate work performance).

            Second, we reject Rojina’s claim that Chanhassen’s failure to perform an investigation after it learned of his mental impairment tacitly supports an inference of discrimination.  No evidence suggests that Chanhassen customarily investigates disability claims or disability discrimination claims.  Cf. Potter, 622 N.W.2d at 146 (drawing inference of discrimination from failure to investigate when employer had “well-established policy of investigating complaints”).  The district court did not err in concluding that Rojina failed to provide sufficient evidence of retaliation actions to create a triable issue on that claim.