This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Joeffre Kolosky,





Fairview University Medical Center,



Filed May 13, 2003


Harten, Judge


Hennepin County District Court

File No. AC-02-1555


Joeffre Kolosky, 7018 Brooklyn Boulevard, Apt. 7, Minneapolis, MN 55429 (appellant pro se)


Lee A. Lastovich, Marnie E. Polhamus, Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N




Appellant, a former employee, challenges the district court’s judgment dismissing his wage claim.  Because reasonable evidence supports the district court’s findings and there is no error in its conclusions of law, we affirm.



In 1977, appellant Joeffre Kolosky began to work for respondent Fairview University Medical Center (Fairview).  His employment was subject to a collective bargaining agreement.   Following an altercation between appellant and his supervisor in January 2000, Fairview terminated appellant’s employment. 

Appellant brought an action against Fairview in conciliation court, alleging that he was owed $4,090 in wages for 280 hours worked but not paid.  The conciliation court issued judgment in favor of Fairview, and appellant filed a demand for the removal of his case to district court.  He then moved the district court for summary judgment, again arguing that he was owed wages for 280 hours of work and claiming for the first time that he was also owed wages for 962 hours of vacation and sick time.  The district court denied appellant’s motion for summary judgment, finding that a genuine issue of material fact existed as to whether Fairview had consented to pay appellant for hours worked but not recorded on his time cards.   Following trial, the district court ordered judgment in favor of Fairview and dismissed appellant’s claim with prejudice.  On appeal, appellant challenges some of the findings of fact and a conclusion of law on which the judgment was based.


1.         Findings of Fact

If there is reasonable evidence to support a district court’s findings of fact, this court will not disturb them.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). Appellant challenges four of the district court’s findings, but reasonable evidence supports all of them.

First, appellant challenges the finding that Fairview never agreed to pay him for hours he did not record on his time sheet.  But testimony from two Fairview employees supports this finding.  Fairview’s human resources manager for employee and labor relations was asked, “[I]s it fair to say that under Fairview’s policies every hour worked or accrued should be written down on the time card * * * ?” and answered, “Yes, it is.”  When asked if there was anything in Fairview’s policies that would authorize appellant’s alleged side agreement with one of his supervisors, she answered, “No, there is not.”  She testified that such an agreement with an employee “would be against not only our existing policies but * * * also be in violation of our union contract” and further explained that because appellant was represented by AFSCME,

we are bound by the terms and conditions of that bargaining unit contract and we are not able to make side deals or go beyond the outline of the contract without having the bargaining unit’s approval.


Appellant’s supervisor was asked, “[A]t any time did you make an agreement with [appellant] that he would be paid for time that he kept off the books?” and “At any time did you make any promise that he would be paid for such time by Fairview?”  He answered “No” to both questions.[1]  Reasonable evidence supports the finding that Fairview did not agree to pay appellant for hours not recorded on his time sheet.

            Second, appellant challenges the finding that Fairview’s Human Resources Manual specified that a discharged employee would receive payment for 50% of accumulated time off.  But appellant himself testified that, under Fairview’s policies, an employee was allowed to accrue a maximum of 624 hours of paid time off and a discharged employee was entitled to 50% of the accrued time off. 

Third, appellant challenges the finding that he was paid for 50% of his accumulated time off.  Again, his own testimony provides the evidence to support this finding; he said he was aware that his final check included the 312 hours of accumulated time off to which he was entitled. 

Finally, appellant challenges the finding that he failed to show that Fairview owed him any additional amounts for unpaid work.  Both appellant’s testimony that he had been paid for 312 hours, half of the allowed maximum of 624 hours, and Fairview’s witnesses’ testimony that Fairview had not agreed to pay appellant for hours not recorded on his time sheet support this finding. 

Evidence supports all the challenged findings; there is no reason to disturb them.

2.         Conclusion of Law 

Appellant challenges the district court’s conclusion of law that appellant’s failure to bring his claim for unpaid wages through the grievance procedure set forth in the collective bargaining agreement waived his right to bring the claim in district court.[2]  A reviewing court is not bound by and does not defer to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). 

            Appellant does not dispute that the collective bargaining agreement requires him to grieve claims.  An employee cannot pursue a claim in district court unless he has exhausted the procedures specified under the collective bargaining agreement.  See Davis v. Boise Cascade Corp., 288 N.W.2d 680, 683, (Minn. 1979) (employee cannot pursue judicial remedies unless facts show an excuse for failure to exhaust procedures available under collective bargaining agreement). 

Appellant relies on Rowan v. K. W. McKee, Inc., 262 Minn. 366, 376, 114 N.W.2d 692, 698 (1962) (“[W]here it can be shown that it would be futile for the employee to seek redress under the contract, he should not be precluded from asserting his rights in court.”), to argue that he brought a conciliation court action only after deciding that the grievance process would be futile.  But appellant offers no basis for that decision. The district court did not err in concluding that appellant’s failure to grieve his wage loss claim waived his right to bring the claim in district court.



[1] Appellant contends that this testimony was perjury, but offers no support for that contention.

[2] Appellant argues that this conclusion of law is evidence of the district court’s prejudice against him, but he offers no support for that argument.