This opinion will be unpublished and

may not be cited except as provided by

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








Joyce Holtzman,





HealthPartners Services, Inc.,

dba HealthPartners & HealthPartners Uptown Clinic,




Filed September 10, 2002

Reversed and remanded

Parker, Judge*

Dissenting, Halbrooks, Judge


Hennepin County District Court

File No. 0017617



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


Penelope J. Philips, Eric J. Riensche, Felhaber, Larson, Fenlon & Vogt, 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Minge, 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


            Joyce Holtzman appeals the district court’s decision granting summary judgment for respondent.  Holtzman claims that her employer, HealthPartners Services, Inc., terminated her employment because of her age.  We reverse and remand.


Holtzman was employed as a registered nurse at HealthPartners Uptown Clinic from March 1991 to June 1999.  Holtzman was 53 years old when she began work at HealthPartners.  She was 61 years old when HealthPartners terminated her employment. 

            One of Holtzman’s job responsibilities was managing the clinic’s Coumadin protocol.  Coumadin is a prescription blood-thinning product that requires close monitoring.

HealthPartners developed the protocol to monitor its Coumadin patients, which required a registered nurse at each clinic to monitor all Coumadin patients to ensure they receive monthly blood tests.  In June 1999, Dr. Schoenleber, a physician at the Uptown Clinic, informed the clinic’s office manager, Karel Stibitz, that one of his Coumadin patients had not had his blood checked for approximately ten months.  This violated the Coumadin protocol.  HealthPartners alleged misconduct and presented affidavits that detailed a failure by Holtzman to properly administer the Coumadin protocol.

Holtzman admitted that she had not properly contacted the patient of Dr. Schoenleber and a handful of other patients, had not maintained the Coumadin records, and had not regularly and formally notified physicians of each patient’s situation.  However, Holtzman testified that she did not have adequate time to perform all her duties, and that she did not purposefully violate the protocol or put patients at risk.  She testified that she generally followed the protocol testing requirements.  She also presented evidence that she orally informed Dr. Schoenleber and other doctors about problems with patients and with the protocol but that her complaints were ignored.

Holtzman presented evidence from a medical doctor that HealthPartners’ Coumadin protocol improperly delegated to nurses responsibilities that belonged to the attending physician.  Further, the doctor presented evidence that Holtzman’s failure to document the log properly is not an infrequent occurrence in the medical field and rarely results in termination of nurses with otherwise good nursing skills.

            Holtzman also presented evidence that she informed the doctors she worked with that there were problems with the Coumadin protocol and that the doctors would not cooperate with her in the administration of the protocol.  Often, oral reports were made between Holtzman and the doctors rather than documenting information due to the press of business at the clinic.

            Holtzman presented further testimony that no nurse would have had the time to administer the protocol and do the daily nursing work that was also her responsibility.  She claims there simply was not enough time to do both.  Holtzman claims she took the protocol home at times and still did not have enough time to finish the required work.  She claims that she had reported this to her supervisor and that nothing was done.

Holtzman testified that the reason she was terminated was her age.  She presented evidence that older nurses and employees at the clinic were openly criticized and harassed while younger nurses were not.

Shortly before Holtzman’s termination, another senior nurse, Linda Delsing (age 54), transferred from the Uptown Clinic to a clinic closer to her home.  Delsing testified she transferred because of the volatile atmosphere at the clinic.  She felt she would soon lose her job and thus left.

When Delsing left, she was replaced by two nurses who shared her position.  They were 23 and 32 years old.  Holtzman cites various other employees who left the Uptown Clinic and were replaced with younger employees.  Holtzman presented evidence that three secretaries at the clinic, ages 43, 45, and 62, all had their hours reduced and then either transferred to another clinic or retired.  They were replaced with two younger employees, ages 23 and 25.  Holtzman also presented evidence that a 51-year-old transcriptionist was transferred to another clinic and was replaced by a 29-year-old employee.

The district court found that based on Holtzman’s failure to follow the Coumadin protocol, the potentially serious consequences of her actions, and the fact that a similar situation at another clinic operated by HealtherPartners had resulted in discharge of the employee, Holtzman was officially terminated for misconduct.

Two unrelated proceedings were initiated because of the activities described in this case.  HealthPartners filed a report with the Minnesota State Board of Nursing, in the apparent expectation that some disciplinary action would be taken against Holtzman.  The board closed its file without taking any action.  Holtzman also filed a charge with the EEOC and the Minnesota Department of Human Rights in connection with her claims of age discrimination at the clinic.  The EEOC dismissed the charge and issued its “right to sue” letter on May 30, 2000.  The MDHR dismissed the charge and adopted the EEOC’s disposition by way of an October 5, 2000, letter to the parties.


A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.


Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citations omitted).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  Employment discrimination cases do not have a standard of review different from other types of cases on appeal from summary judgment.  Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 326 n.9 (Minn. 1995).

When reviewing a grant of summary judgment, we do not weigh the credibility of the evidence.  Minn. R. Civ. P. 52.01.  Rather, we determine whether specific facts exist that create a genuine issue for trial.  Minn. R. Civ. P. 56.03; Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).  On appeal, we must take a view of the evidence most favorable to the party against whom summary judgment was granted.  Offerdahl v. Univ. of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).

1.         To survive summary judgment on an age discrimination claim, a plaintiff must prove discriminatory intent under the McDonnell-Douglas three-part, burden-shifting test.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).  This test includes: (1) the employee must show evidence of discrimination (i.e., statements or indirect evidence showing a prima facie case); (2) the employer must then produce a legitimate, nondiscriminatory reason for its action; (3) the employee must then show by a preponderance of the evidence that the employer’s reason was pretextual.  Dietrich, 536 N.W.2d at 323.

            To establish a prima facie case of discharge because of age discrimination, the plaintiff must show that: (1) she was a member of a protected class; (2) she was qualified for the position she held; (3) despite her qualifications, her employment was terminated; and (4) a younger person was assigned to do her work.  Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 711 (1992).

            The district court held that Holtzman was not qualified for her job because of her failure to administer the Coumadin protocol properly.  For the purposes of establishing that Holtzman was qualified for the position from which she was dismissed, she need only establish that she met the minimum objective qualifications for the job.  Hoover, 632 N.W.2d at 544.

            Finally, Holtzman presented evidence that the Minnesota Board of Nursing did not discipline her for the incident and closed the file.

Accordingly, taking the evidence in the light most favorable to Holtzman, as we are required to do, we hold that there is a genuine issue of material fact whether she was qualified for her position.  Holtzman presented a wide array of evidence to suggest that she was qualified.  We must take her evidence and the inferences reasonably drawn from that evidence to be true and leave eventual credibility determinations to the finder of fact.

2.         The next step in our analysis is whether there was a genuine issue of material fact that HealthPartners had a legitimate, nondiscriminatory reason to terminate Holtzman.  Id. at 545.

The trial court appears to have accepted HealthPartners’ version of the facts in determining HealthPartners had a legitimate reason to terminate Holtzman.  However, the court was bound to view the facts in the light most favorable to Holtzman.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).  While Holtzman admits that she did not document some information, there is still a question as to whether, under the circumstances, such a violation was a legitimate reason to terminate her.  Holtzman has presented testimony by a medical doctor that skilled nurses usually are not terminated for minor documenting shortcomings.  She has also presented evidence that the Coumadin protocol was the ultimate responsibility of the physicians and her failure to keep up the protocol was because she was not given enough time to finish it, even after taking it home to work on it.

The evidence produced would allow a fact-finder to determine that Holtzman’s termination was not due to a legitimate, nondiscriminatory reason, but that Holtzman was expected to do a job under impossible conditions.  At trial, the finder of fact could conclude that Holtzman was set up to fail.  Therefore, summary judgment was not appropriate.

3.         If HealthPartners can show a legitimate, nondiscriminatory reason for terminating Holtzman, she must then show that the stated reason was actually a pretext for discrimination.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  “At that stage, the plaintiff has the burden of persuading the court by a preponderance of the evidence that the employer intentionally discriminated against her.”  Id.

Pretext is shown

either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.


Benassi v. Back & Neck Pain Clinic, Inc. 629 N.W.2d 475, 482 (Minn. App. 2001) (quoting Sigurdson, 386 N.W.2d at 720) (citation omitted)).

            Holtzman has presented evidence that her supervisor told another employee “I just wish [Holtzman] would retire.  Oh! I shouldn’t say that.  I could be fired for that comment.”  Comments made within a company can be used to show pretext.  Hamblin v. Alliant Techsystems, Inc., 636 N.W.2d 150, 154 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).  The statement by Holtzman’s supervisor suggests that there was animosity toward Holtzman based on her age.

            Holtzman also presented evidence that 11 employees over the age of 40 were forced out of the clinic and replaced by younger employees.  This pattern may be taken as evidence that HealthPartners’ employment practices may be based on the age of its employees.

HealthPartners provided evidence that its hiring and retention patterns did not on their face indicate age discrimination.  It also asserted that the removal of employees with higher salaries cannot support a claim of pretext.  An employer may discharge employees based upon factors such as salary, even though such factors may correlate with age.  Dietrich, 536 N.W.2d at 324.  However, the effect of a policy that led to the removal of higher-compensated employees would have been that a greater percentage of employees over the age of 40 were let go.  Younger, less experienced employees then replaced the older employees.  Whether or not such a policy actually has a discriminatory effect is a question that should be decided at trial and is not appropriate for summary judgment based on the evidence produced.

In its decision, the district court relied on Hicks v. St. Mary's Honor Ctr., 509 U.S. 502, 515 (1993), suggesting that in order to show that a reason “is a pretext for discrimination, it must be shown that the reason was false and that the discrimination was the real reason.”  This is not the precise standard to show pretext under Minnesota law. 

In Minnesota, “[a] discharged employee does not have to demonstrate the discrimination was the sole, or even the primary cause of the discharge.”  McGrath v. TCF Bank Savings, 502 N.W.2d 801, 806 (Minn. App. 1993), modified, 509 N.W.2d 365 (Minn. 1993).  “[E]ven 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, 509 N.W.2d at 366 (citing Anderson v. Hunter, Keith, Marshall & Co. 417 N.W.2d 619, 627 (Minn. 1988); see also Sigurdson, 386 N.W.2d at 720.

Holtzman need only show that discriminatory animus more likely than not was the reason for her termination.  Taking the record as a whole, there is adequate evidence to create an issue of material fact as to whether discriminatory animus more likely than not was the reason Holtzman was terminated.

We also recognize that HealthPartners and the larger community have a strong interest in maintaining a well-run Coumadin program and in discharging or removing employees who fail to implement such a program properly.  We conclude only that summary judgment is not the appropriate stage for resolving the factual controversy presented in this case.  Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HALBROOKS, Judge (dissenting)

            I respectfully dissent.  Unlike the majority, I believe that Holtzman failed to establish material facts that, if proven at trial, would permit a reasonable jury to conclude that HealthPartners’ proffered reason for Holtzman’s termination was a pretext for discriminatory intent.  I would, therefore, affirm the district court’s grant of summary judgment.

            In stating Holtzman’s burden at the third stage of the McDonnell-Douglas analysis, the district court cited St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993), for the proposition that

a reason cannot be proved to be “a pretext for discrimination” unless it is shown both that the reason was false, and that discrimination was the real reason.


(Emphasis in original.)  The majority rejects this language and states that in Minnesota, a discrimination plaintiff may prevail even if an employer has a legitimate reason for the termination as long as an illegitimate reason “more likely than not” motivated the termination.  Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988).  In support of this standard, the majority also cites McGrath v. TCF Bank Sav., 502 N.W.2d 801, 806 (Minn. App. 1993), modified, 509 N.W.2d 365 (Minn. 1993), which states that “[a] discharged employee does not have to demonstrate that discrimination was the sole, or even the primary, cause of the discharge.”

To the extent that the majority suggests that Anderson or McGrath relaxed Holtzman’s ultimate burden, as established by Hicks, to present material evidence that HealthPartners’ reason for termination was a pretext for discrimination, I disagree.  Anderson addressed the relative weight to be accorded competing reasons for termination in so-called mixed-motive cases and held that an employer may not escape liability for a discriminatory employment decision by showing that the same decision would have been reached even in the absence of discrimination.  417 N.W.2d at 625.  But Anderson did not relax or excuse the plaintiff’s fundamental burden to establish an illegitimate reason by demonstrating discriminatory intent:

Hicks does not establish a more rigid analytical standard than we have in Anderson.  * * *  Under either standard, the plaintiff bears the final burden of demonstration that the proffered reason was not the true reason for the employer’s actions. 


Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).  And under McGrath, the plaintiff still bears the initial burden to demonstrate discrimination, even if the discrimination need not be the sole, or primary, cause of a termination.  502 N.W.2d at 807.  Our supreme court recently reiterated the Hicks standard when it declined to adopt

[a] rule that would preclude summary judgment for defendants in all cases in which the employment discrimination plaintiff was able to show that the employer’s articulated reasons were pretextual, without a requirement that the reasons be pretext for discrimination * * * .


Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 546 (Minn. 2001). 

I do not believe that Holtzman presented sufficient evidence from which a jury could conclude that HealthPartners’ claim that it terminated Holtzman for violating the Coumadin protocol was a pretext for age discrimination.  Pretext can be demonstrated by showing that the employer’s proffered nondiscriminatory reason is not credible.  See Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  As the majority notes, the record contains ample credible evidence that Holtzman’s implementation of the protocol was characterized by a failure to timely perform blood tests, keep adequate patient records, or maintain contact with patients, as mandated by the protocol.  Holtzman acknowledges that she kept poor records, but claims that it was the responsibility of her supervisors and colleagues to check her administration of the Coumadin protocol.  She also presents the testimony of Jeremy Holtzman, M.D., to criticize the protocol as placing too much responsibility on the administering nurses and not enough responsibility on the supervising physicians.  The majority finds an issue of material fact in Dr. Holtzman’s assertion that skilled nurses are not usually terminated under similar circumstances.  I find this testimony overly vague to create a fact issue in this specific circumstance.  Moreover, it was Holtzman’s conceded responsibility to ensure effective administration of the protocol, and however illogical, inefficient, or unjust she believes the protocol to have been, her compliance with it was a legitimate expectation of her employer and a condition of her continuing employment.  Her evidence does not render HealthPartners’ assertion that she did not comply with the protocol incredible.

Nor does Holtzman’s other evidence create a genuine dispute on the issue of pretext and the ultimate issue of HealthPartners’ intentional discrimination.  Holtzman could show pretext by demonstrating that other similarly situated employees were not terminated.  See Potter v. Ernst & Young, LLP, 622 N.W.2d 141, 147 (Minn. App. 2001).  But Holtzman presented no evidence that younger nurses who failed to follow the Coumadin protocol were not reprimanded or discharged.    

Holtzman urges that we find pretext in the fact that HealthPartners transferred several older employees from the Uptown clinic between 1997 and 1999 and replaced them with uniformly younger, and lower paid, employees.  Pretext can be shown by demonstrating that an employer engaged in “a systematic exclusion of older people.”  Sigurdson v. Carl Bolander & Sons Co., 532 N.W.2d 225, 229 (Minn. 1995).  But Holtzman provides no evidence that the employees were transferred as a result of discriminatory animus or that HealthPartners was engaged in a pattern of systematic discrimination against older employees.  Holtzman also argues that an isolated comment by her supervisor, who stated to another employee that “I just wish [Holtzman] would retire” is evidence that HealthPartners bore an animus toward her based on her age.  But without showing that HealthPartners actually relied on her age in deciding to terminate her, Holtzman cannot use her supervisor’s stray remarks as evidence of discrimination.  See Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1791 (1989).

Therefore, even viewing the record in the light most favorable to appellant, as is appropriate, I cannot agree with the majority that Holtzman has presented enough admissible evidence to raise genuine doubt as to legitimacy of Healthpartners’ nondiscriminatory reason for her termination.  I would, therefore, affirm the district court.



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