This opinion will be unpublished and

may not be cited except as provided by

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






Robert Michurski,





City of Minneapolis,



Filed August 6, 2002

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 01454






Richard A. Williams, Jr., Williams & Iversen, P.A., 1611 West County Road B, Suite 208, Roseville, MN 55113 (for appellant)


Charles N. Nauen, Susan E. Ellingstad, Lockridge, Grindal, Nauen, P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401 (for respondent)


Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Parker, Judge.*



U N P U B L I S H E D   O P I N I O N




Appellant Robert Michurski sued respondent City of Minneapolis for breach of contract and age discrimination.  The district court granted the city’s motion for partial judgment on the pleadings on the breach-of-contract claim, concluding that the city’s decision not to hire appellant was a quasi-judicial decision and therefore reviewable only by writ of certiorari.  The district court later granted the city’s motion for summary judgment on the age-discrimination claim, concluding that appellant did not establish either a pattern of discrimination that gives rise to any permissible inference of discrimination or that the city’s articulated reason is not worthy of credence.  Appellant challenges the dismissal of his claims.  We affirm the judgment on the pleadings on the breach-of-contract claim.  We reverse the summary judgment on the age-discrimination claim and remand for further proceedings on that claim.


            Appellant Robert Michurski has been employed as a police officer with the city of Minneapolis since 1972.  As a result of injuries, he was placed on limited-duty status within the police department beginning in 1985.  In January 1995, the police department assigned him to work as a criminal-case investigator within the Minneapolis city attorney’s office.  At that time, the city attorney’s office had an agreement with the police department that an officer on limited-duty status would work within the city attorney’s office and be supervised by the deputy city attorney, but would continue to be employed by the police department. 

            In April 1996, appellant was assigned to work as a claims investigator in the civil division of the city attorney’s office.  Because appellant did not wish to retire from the police force until he had completed the necessary years for full pension benefits, the police department and the city attorney’s office entered into a financial agreement for the payment of appellant’s salary.  The police department continued to pay appellant his full salary, and the city attorney’s office reimbursed the police department in an amount equal to the salary of a first-year police officer. 

            According to appellant, the city attorney at that time also promised him the civil-investigator position after his retirement from the police department.  That city attorney resigned shortly thereafter and there is no documentation in the record reflecting such a promise.

            As a civil-claims investigator, appellant’s job duties included: investigating claims against the city for automobile accidents; accidents involving snowplows hitting cars; sewer backups; people losing money in the parking meters; slip-and-fall incidents; police brutality; police chases; squad-car accidents; and fire-department truck accidents.  There were no complaints about his performance as a civil investigator. 

            In March 1997, appellant decided to retire from the police department, and he intended to work for the city attorney’s office as the civil-claims investigator based on the alleged oral agreement he had with the former city attorney.  The current city attorney denied that there was any binding agreement to hire appellant.  Appellant thus remained on assignment with the city attorney’s office until early 1999, when he was reassigned within the police department.

After appellant was reassigned, the city attorney posted an opening for a liability investigator in the civil division.  The list of duties included investigating claims and lawsuits against the city, interviewing witnesses, obtaining and analyzing public and private records, assisting in determining the city’s liability, and assisting in preparing a defense for lawsuits and claims.  Appellant applied for the job and received an interview, but the city attorney’s office hired another candidate after interviewing numerous applicants.  The hired candidate is younger than appellant.  She has a bachelor’s degree in paralegal studies; has legal experience working in a law firm and as a court specialist; and has automobile claims-adjusting experience from working for three years as a claims representative for a car-rental agency, which included interviewing, evaluating facts to determine liability, and negotiating and settling claims.  The deputy city attorney in charge of the civil division participated in the interviews.  During his deposition, the deputy stated that he felt that the hired individual was the best candidate because she had the “specific industry kind of training and experience and – and activity that [he] felt was what [he] really wanted to focus on in the liability investigator position at that point [in time].” 

Appellant sued the city for breach of contract and age discrimination.





“The only question on review of a judgment on the pleadings is whether the complaint sets forth a legally sufficient claim for relief.”  Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 750 (Minn. 2000) (quotation omitted).  “If questions of fact exist, the court should not order judgment on the pleadings.”  Id

The district court in this case granted judgment on the pleadings on the breach-of-contract claim, concluding that the court had no subject-matter jurisdiction to hear the case because it can be reviewed only by writ of certiorari and that, even if the court had jurisdiction, any contract to employ appellant indefinitely is unenforceable.  In issuing its ruling, the district court reviewed only the pleadings.

            Whether subject-matter jurisdiction exists is a question of law, which this court reviews de novo.  Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 96 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).  “Whenever it appears * * * that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”  Minn. R. Civ. P. 12.08(c). 

            Appellant argues that his breach-of-contract claim arises out of the city’s representations and actions while he was still assigned to the civil-investigator position and not out of the city’s subsequent decision not to hire him.  Appellant thus argues that his claim is not for future employment or for reinstatement.  He concedes that, if he were seeking reinstatement and subsequent damages, certiorari would be the proper method of review.  But he argues that his breach-of-contract claim is limited solely to compensation that arose out of respondent’s alleged breaches during the time appellant worked as a civil-claims investigator.

            Generally, writ of certiorari is the appropriate method of review of the quasi-judicial decisions of an administrative body.  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).  The Minnesota Supreme Court has outlined three factors to consider in determining whether a decision is quasi-judicial:  “(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.”  Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999).

Notably, in Minnesota, certain employment decisions by an administrative body, such as hiring or termination, have been subject to review only by writ of certiorari.  See, e.g., Willis v. County of Sherburne, 555 N.W.2d 277, 279 (Minn. 1996) (employee’s breach-of-contract claim for county’s decision to terminate his employment must be reviewed by writ of certiorari); Bahr v. City of Litchfield, 420 N.W.2d 604, 606 (Minn. 1988) (proper vehicle for obtaining judicial review of city’s and police civil-service commission’s promotion/hiring procedures is by writ of certiorari).

            We disagree with appellant’s argument that his breach-of-contract claim is not related to the city’s discretionary employment decisions requiring review by certiorari.[1] Even when an employee’s claim, which challenges a public employer’s employment determination, is “cloaked in the mantle of breach of contract,” review is by certiorari.  Willis, 555 N.W.2d at 282.  In Willis, the plaintiff brought an action that he claimed was grounded purely on breach of contract.  Id. at 280.  The plaintiff complained that the county breached an employment contract by failing to follow the termination procedures in the county’s employee handbook.  Id.  But the supreme court rejected the plaintiff’s argument that the breach of handbook procedures did not implicate the county’s termination decision.  Id. at 282.

            Likewise, in this case, the city’s hiring action cannot be separated from appellant’s claim for lost-income damages.  The language in appellant’s complaint ties his contract claim to the city’s hiring decision. 

            In further support of the conclusion that the contract claim and hiring decision are indistinguishable is this court’s analysis in Maye v. Univ. of Minn., 615 N.W.2d 383 (Minn. App. 2000).  In Maye, the plaintiff sued for breach of contract, alleging that the university breached a prior agreement to give him due consideration for subsequent promotions.  Id. at 384-85.  This court applied the three factors indicative of quasi-judicial actions and concluded that the university’s “promotion process was an administrative function requiring discretion and thus resulted in a quasi-judicial decision.”  Id. at 386.  The university created a standard, investigated its options, and applied the criteria to the information on the job candidates.  Id.  As a result, the decision not to promote the plaintiff was a quasi-judicial decision arrived at through the university’s administrative processes, and the plaintiff’s breach-of-contract claims would be impossible to examine without reviewing the university’s internal management decisions.  Id. at 387.

            Similarly, appellant’s claim for damages allegedly arising out of lost income cannot be examined without reviewing the city’s discretionary, quasi-judicial hiring decision.  Consequently, review of appellant’s claim under these circumstances is limited to writ of certiorari.  Because the district court did not have jurisdiction over the breach-of-contract claim, it was properly dismissed.

            Having determined that the district court properly dismissed the claim for lack of subject-matter jurisdiction, we need not address appellant’s claim that the district court erred in dismissing the breach-of-contract claim on the theory that a contract to employ an individual indefinitely is unenforceable.


Appellant next argues that the district court erred in granting summary judgment on his age-discrimination claim because there are sufficient facts from which a reasonable trier of fact could conclude that age was a factor in the decision not to select appellant for employment and because the court improperly made findings of fact.

            On appeal from summary judgment, we must determine whether there are genuine issues of material fact for trial and whether the district court erred in applying the law.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).  A fact is material if its resolution will affect the outcome of a case.  Knudsen v. N.W. Airlines, Inc., 450 N.W.2d 131, 132 (Minn. 1990).  A reviewing court must

view the evidence in a light most favorable to the party against whom summary judgment was granted, and any doubts of the existence of a material fact are resolved in favor of the losing party.

H.B. & S.B. By Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996) (citation omitted).

To survive summary judgment on an age-discrimination claim, a plaintiff must demonstrate the existence of a genuine fact issue as to discriminatory intent under the McDonnell-Douglasthree-part, burden-shifting test.  Hoover, 632 N.W.2d at 542.  First, to establish the existence of genuine fact issues for a prima facie case of age discrimination, a plaintiff must include enough facts showing that he was a member of a protected class, was qualified for the position he held, was not hired despite his qualifications, and a younger person was assigned to perform his work.  Ward v. Employee Dev. Corp., 516 N.W.2d 198, 201 (Minn. App. 1994), review denied (Minn. July 8, 1994).  Once it has been shown that there are genuine fact issues for a prima facie case, the burden shifts to the employer to demonstrate a genuine fact issue as to a legitimate, nondiscriminatory reason for the failure to hire.  Id. at 202.  Finally, if there is a genuine fact issue showing a legitimate, nondiscriminatory reason for the failure to hire, the burden then shifts back to the plaintiff to produce evidence that reveals a genuine fact issue that the proffered reason is merely a pretext for discrimination.  Id. 

In this case, respondent does not dispute that appellant can establish a prima facie case.  The city then provided an allegedly legitimate, nondiscriminatory reason for its failure to hire appellant, saying that the hired candidate had the specific training and experience that the city was seeking for the position at that time.  The city’s reason, if believed, would rebut appellant’s prima facie case.  This brings us to the third step in the McDonnell-Douglas analysis, where appellant must show a genuine fact issue that the city’s proffered reason is merely a pretext for discrimination.  

Appellant argues that the city’s stated reasons are merely a pretext for discrimination because not only did the city fail to hire appellant because of his age, but also the city failed to hire another qualified, older candidate for the job.  Therefore, appellant claims, by hiring someone younger than appellant and the other older candidate, the city clearly must have discriminated against him because of his age.

To avoid summary judgment under this third step of the analysis, a plaintiff must point to admissible, material evidence from which the trier of fact could infer that the employer’s proffered legitimate, nondiscriminatory reason is not only pretext but also that it is pretext for discrimination.  Hoover, 632 N.W.2d at 546. 

We conclude, in this case, that appellant presented sufficient evidence to raise a legitimate credibility issue as to the question of pretext.  Credibility cannot be assessed or determined by summary judgment.  Action Instruments, Inc. v. Hi-G, Inc., 359 N.W.2d 664, 666 (Minn. App. 1984).

The city’s proffered reason for hiring the younger candidate is that she was more qualified by training and experience for the position than either the appellant or the other older applicant.  But the official job description does not support that conclusion.  Appellant’s qualifications appear to satisfy the position requirements.  It is only the deposition testimony of the deputy city attorney that suggests that the younger candidate was the best qualified.  The conflict between the city’s posted job description and the deputy city attorney’s statements creates a credibility issue for the trier of fact to resolve.

Thus, when we review the summary judgment in a light most favorable to the appellant, we conclude that there exists a genuine issue of material fact as to pretext.  Therefore, summary judgment on appellant’s age-discrimination claim was inappropriate.

Because of our reversal of the summary judgment, we need not address the issue of whether the district court improperly made findings of fact in the summary judgment order. 

Affirmed in part, reversed in part, and remanded.

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


[1]  Appellant relies on caselaw rejected by the supreme court when he cites Stadum v. Norman County, 508 N.W.2d 217 (Minn. App. 1993), review denied  (Minn. Jan. 6, 1994), for the proposition that a pure breach-of-contract claim, especially where reinstatement is not sought, is within the district court’s jurisdiction.  The supreme court specifically rejected the rationale of Stadum in Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996), when it stated that the Stadum decision “does not represent a definitive statement of the law of Minnesota until adopted by this court, and we now specifically reject the rationale of Stadum v. Norman County.”