This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Hennepin County District Court
File No. 0114718
James B. Everts, 1010 Currie Avenue, Second Floor, Minneapolis, MN 55403 (pro se appellant)
Joel E. Abrahamson, Amy E. Walsh, Leonard, Street and Deinard, P.A., Suite 2300, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.
Appellant James B. Everts challenges summary judgment granted to respondent Salvation Army Harbor Light Multi-Service Center dismissing appellant’s claims that respondent discriminated against him on the basis of age and race when it failed to hire appellant as a monitor in the facility where appellant resides. Appellant also alleges that the district court abused its discretion by denying his motion to compel discovery that he claims would have produced evidence to defeat respondent’s summary judgment motion. We affirm.
Appellant James B. Everts is a Caucasian-American born on February 24, 1942. Respondent Salvation Army Harbor Light Multi-Service Center provides emergency housing for homeless adults, nutritional services, drug and alcohol treatment, and spiritual growth programs. Appellant has been living in the emergency housing unit on the second floor of respondent’s housing facility since June 2000, and has used the nutritional services provided to homeless adults on a three-meals-a-day basis since he began living at respondent’s facility.
In June 2000, respondent’s executive director implemented a policy prohibiting respondent from hiring any individual to work in a charitable services program in which the individual is currently participating as a client. In July 2000, respondent posted, in the main lobby of its facility, an announcement for employment openings for a monitor and a monitor supervisor. The monitor position was for the second floor emergency housing unit, where appellant resides. Monitors serve as advocates for clients to gain housing, stable income, and an improved self-image. Neither the announcement of the openings nor the application for the openings mentioned respondent’s policy that clients of respondent’s services were ineligible for the positions.
Appellant applied for both positions. His application is not dated but an attached form, that appears to have been filled out by appellant, is dated August 15, 2000, and respondent’s internal tracking form indicates that the application was received by respondent on August 17, 2000. There was some delay in respondent’s processing of appellant’s application due to personnel changes. Respondent’s assistant human resources manager reviewed appellant’s application and was impressed with his background but found him ineligible under the policy. Appellant did not receive any response to his application for several weeks.
Respondent’s recreation supervisor, James McCloud, met with appellant to recruit him as a volunteer, and appellant asked McCloud about his application for the monitor positions and expressed “surprise and disappointment” that he had not received any response to the application. According to appellant, McCloud laughed for several minutes and then told appellant that he is too old to work for respondent, too old to work anywhere, and said that the executive director “got a charge” out of the application, “you being as old as you are.” McCloud denies making these comments.
Appellant asserts that two or three weeks after his conversation with McCloud, he spoke with respondent’s program director, Patti Phillips and asked her if the reason he was not hired was because of his age. Appellant asserts that Phillips nodded her head, confirming that age was the reason he was not hired. Appellant submitted an affidavit of Linda Paulson, who was respondent’s emergency-room coordinator from 1999 through August 25, 2000, in which Paulson states that she heard “through the office grapevine that an application was eliminated because the applicant was too old,” and she believes appellant was the applicant to whom the comment referred. Appellant asserts that throughout his residence with respondent he has been called “useless old man” and told that he is “too old to work” and that a food service security supervisor called him “granddad,” old fa**,” and “old timer.”
Appellant filed a charge of age discrimination with the City of Minneapolis Department of Civil Rights. Respondent denied having any record of an application from appellant, and asserted that McCloud only worked for respondent for one month and had no authority to hire. The department issued a finding of “no probable cause.”
Appellant brought a timely action against respondent in district court for age discrimination and later amended his complaint to allege race discrimination. Appellant served discovery requests and, when respondents did not provide everything requested, appellant moved to compel discovery. Respondent opposed the motion, asserting that it had provided all relevant information that was responsive to appellant’s claim. The district court denied appellant’s motion.
Respondent moved for summary judgment and appellant brought a second motion to compel the discovery of the same information that was the basis of his earlier motion. The district court again denied appellant’s motion to compel, concluding that the information sought would “not produce evidence to support [appellant’s] claims or survive summary judgment,” and granted respondent’s motion for summary judgment. This appeal followed.
I. Summary judgment
On appeal from summary judgment, the reviewing court determines whether there are genuine issues of material fact for trial and whether the district court erred in its application of the law. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). We view the evidence in the light most favorable to the nonmoving party. Id.
[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).
The Minnesota Human Rights Act provides that it is an unfair employment practice for an employer, because of age or race, “to refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment.” Minn. Stat. § 363.03, subd. 1(2)(a) (2002).
Appellant claims discrimination under a disparate treatment theory, a claim that the employer “simply treats some people less favorably than others because of their [membership in a protected class].” Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 335-36 n.15, 97 S. Ct. 1843, 1854-55 n.15 (1977). Proof of discriminatory intent is critical to strike down an employment practice under a disparate treatment theory. Id. Plaintiffs may prove discriminatory intent by direct evidence or indirect, circumstantial evidence. Hoover, 632 N.W. 2d at 542.
a. Direct evidence of discrimination
Appellant claims that statements by James McCloud, Patti Phillips and Linda Paulson, constitute direct evidence that respondent failed to hire him because of his age. The district court held as a matter of law that the statements alleged do not constitute direct evidence of discrimination because the comments of these individuals were “stray remarks” made by individuals with no hiring authority.
Stray remarks and statements by nondecisionmakers are not direct evidence of discriminatory motive. Slathar v. Sather Trucking Corp., 78 F.3d 415, 419 (8th Cir. 1996). Because there is no evidence that the individuals whose comments appellant complains of had any decisionmaking authority regarding hiring for the monitor positions, the district court correctly concluded that there is no direct evidence that respondent failed to hire appellant because of his age.
In analyzing indirect evidence in discrimination claims, we use the three-step test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). This analysis requires that (1) a plaintiff prove a prima facie case of discrimination, (2) a defendant offer legitimate, nondiscriminatory reasons for its actions, and (3) the plaintiff prove that those reasons were a mere pretext for discrimination.
Diez v. Minnesota Mining & Mfg., 564 N.W.2d 575, 580 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997) (citation omitted).
A prima facie case of disparate treatment discrimination can be established by a showing that (1) the claimant belongs to a protected class; (2) the claimant applied for and was qualified for the job for which the employer was seeking applicants; (3) despite his qualifications, the claimant was not hired for the position; and (4) the position remained available or was filled by someone else with similar qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Midwest Sports Mktg, Inc. v. Hillerich & Bradsdy of Canada, Ltd., 552 N.W.2d 254, 262 (Minn. App. 1996), review denied (Minn. Sep. 20, 1996). Summary judgment is appropriate if the claimant (1) fails to present a prima facie case or (2) establishes a prima facie case but fails to provide evidence showing that the “employer’s proffered nondiscriminatory reasons for its employment decision were pretextual.” Albertson v. FMC Corp., 437 N.W.2d 113, 116 (Minn. App. 1989) (citation omitted).
1. Prima facie case
It is uncontested that plaintiff is a member of a protected group for purposes of his claim based on age discrimination. Minn. Stat. §§ 363.01, subd. 3, 363.03, subd. 1(1) (2002). The district court concluded that appellant cannot demonstrate that he was qualified for the position, because respondent’s policy against hiring clients in a program into a supervisory position over other clients disqualified him. But respondent’s policy was not mentioned in respondent’s advertisements for the positions or respondent’s application for the positions. And respondent seems to have conceded that, at least based on the information contained in his application, appellant met the qualifications that were listed for the positions. It is undisputed that appellant’s application was rejected and that the position was filled by someone else. Viewing the evidence in the light most favorable to appellant, we conclude that appellant has met his burden of establishing a prima facie case of employment discrimination based on age sufficient to survive summary judgment.
But appellant has failed to present any evidence sufficient to establish a prima facie case of discrimination based on race. Appellant’s bases his claim of racial discrimination on (1) his allegation that respondent employs more African-Americans than Caucasian-Americans as monitors, and (2) appellant’s claim that he felt that there was racial discrimination directed against white persons. As the district court noted, there is no direct evidence linking appellant’s race to respondent’s hiring decision, and there is no evidence that the disparity in numbers appellant alleges is statistically significant such that it would constitute indirect evidence of race discrimination. “It is incumbent on the party basing an argument on statistical data to demonstrate that the proffered conclusions are statistically significant.” Albertson, 437 N.W.2d at 116 (citing Equal Employment Opportunity Comm’n v. W. Elec. Co., Inc., 713 F.2d 1011, 1016 (4thCir. 1983)). Appellant has failed to make a prima facie case of disparate treatment or disparate impact discrimination based on race and the district court correctly granted summary judgment to respondent on this claim.
2. Respondent’s articulated non-discriminatory reason for decision
In response to appellant’s claim of age discrimination, respondent asserted that its policy of not hiring clients to supervise other clients is the legitimate, nondiscriminatory reason for its decision to not to hire appellant. Appellant argues that if there was such a policy, respondent has failed to show that the policy was necessary. By challenging the necessity of respondent’s policy, appellant is confusing the burden-of-production shifting requirements of a disparate-impact claim with the burden-of-production shifting requirements of his disparate-treatment claim.
In a claim of discrimination under a disparate impact theory, once plaintiff has established that a facially neutral employment practice actually falls more harshly on a protected group, the burden of production shifts to the employer to show a business justification for its employment practice. Houghton, 38 F.3d at 958. But appellant in this case has not established a prima facie case of discrimination under a disparate impact theory. And a respondent is not required to show a business necessity for a policy that rebuts a prima facie case of disparate treatment discrimination. Respondent’s only burden in a disparate treatment discrimination case is to articulate “a legitimate nondiscriminatory reason” for its hiring decision. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000) (citation omitted). “This burden is one of production, not persuasion; it can involve no credibility assessment.” Id. (quotation omitted).
Respondent, in this case, offered the nondiscriminatory reason by admissible evidence; the reason is of a character to justify a judgment for respondent and the reason is clear and specific. See Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 711 (Minn. 1992) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S. Ct. 1089, 1095-96, (1981) (setting out criteria for legitimate, nondiscriminatory reason).
If the [employer] provides a legitimate, nondiscriminatory reason for its actions, the presumption of discrimination disappears and the plaintiff has the burden of establishing that the employer’s proffered reason is a pretext for discrimination.
Hoover, 632 N.W.2d at 542. Because respondent’s proffered reason for not hiring appellant is on its face legitimate and nondiscriminatory, we conclude that respondent rebutted appellant’s prima facie case.
In order to avoid summary judgment, appellant must put forth sufficient evidence for a trier of fact to infer that the employer’s proffered legitimate nondiscriminatory reason is not only pretext, but that it is pretext for age discrimination. Hoover, 632 N.W.2d at 546.
In an attempt to show that respondent’s asserted reason for not hiring him is pretext, appellant speculates that when he submitted his application the policy relied on by respondent did not actually exist, or that if the policy existed, it was not evenly applied. But appellant cannot defeat a summary judgment motion by merely speculating, in the face of sworn testimony, that respondent is not telling the truth about the policy or the application of the policy. DLH, Inc. v. Russ, 566 N.W.2d at 71(stating that “the party resisting summary judgment must do more than rest on mere averments.”). Appellant failed to produce any evidence showing that respondent’s proffered reasons are a pretext for discrimination or are not worthy of belief. See Feges, 483 N.W.2d at 711; see also Johnson v. Group Health Plan, Inc., 994 F.2d 543, 547 (8th Cir. 1993) (to withstand summary judgment plaintiff must establish issue of material fact as to whether employer’s reasons are credible). The district court correctly concluded that there are no material questions of fact and that respondent is entitled to summary judgment as a matter of law on appellant’s claim of age discrimination.
II. Discovery motions
Appellant argues that the district court abused its discretion by refusing to grant his motion to compel discovery and that discovery would have allowed him to survive respondent’s summary judgment motion. The district court “has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.” Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990); Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 345-46 (Minn. App. 1997) (holding district court has discretion in deciding whether to allow continuance of summary judgment for further discovery under Minn. R. Civ. P. 56.06), review denied (Minn. Feb. 19, 1998). This court reviews a decision on a motion to compel discovery under the same test set out in Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982), for discovery continuances. See Hasan v. McDonald’s Corp., 377 N.W.2d 472, 475 (Minn. App. 1985). Rice established two inquiries, (1) whether the plaintiff has been diligent in obtaining or seeking discovery and (2) whether the plaintiff is seeking further discovery in the good faith belief that material facts will be uncovered or if the exercise is merely a “fishing expedition.” Rice, 320 N.W.2d at 412.
Appellant was diligent in seeking discovery. Respondent provided a substantial amount of the discovery requested. But the district court concluded that none of the remaining information appellant sought would directly address or contradict respondent’s policy of not hiring clients to supervise other clients. Appellant has not by affidavit or deposition testimony produced any evidence, or demonstrated the existence of any evidence that would lead to a fact question about the existence or validity of the policy that disqualified him from the employment he sought. At best, appellant’s discovery constitutes only a “fishing expedition.” The district court did not abuse its discretion by denying appellant’s motion to compel discovery.
also alleges that the district court demonstrated bias against him by (1)
“failing to give weight to” his contentions; (2) denying his first motion to
compel discovery; (3) commenting that appellant was not a good-faith litigant;
(4) appearing to resent appellant’s pro se status; and (5) making private
“asides” to respondent’s counsel. A
judge must have no actual bias against a defendant. Uselman v. Uselman,
464 N.W.2d 130, 139 (Minn. 1990). The
district court, however, enjoys a presumption that it executed its duties
properly. McKenzie v. State, 583
N.W.2d 744, 747 (Minn. 1998). Based on our review of the record, we
conclude that there is no evidence to support appellant’s claim of bias.
 There is some confusion about the actual date of appellant’s application. He claims that he applied in July 2000.
 Appellant asserts that he made notes of this conversation right after it occurred and that his notes are dated July 25, 2000.
 Respondent asserts that it did not locate appellant’s application because appellant claimed he applied in July but respondent did not receive the application until August.
 Discrimination can also be shown under a disparate impact theory in which a claimant alleges that a facially neutral employment practice actually falls more harshly on one protected group. Once a plaintiff makes such a showing, the burden shifts to the employer to produce evidence of “a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff.” Houghton v. SIPCO, Inc., 38 F.3d 953, 958 (8th Cir. 1994) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659, 109 S. Ct. 2115, 2126 (1989)).
 The district court also noted that McCloud’s statements were made before respondent received appellant’s application, and stated that Paulson’s affidavit is inadmissible because it is based on hearsay, not on direct knowledge, and was improperly notarized. See Minn. R. Civ. P. 56.05.
 Although the record is not entirely clear about the age or race of the person ultimately hired for the position appellant applied for, respondent appears to have conceded that the position was filled with a person who is younger than appellant.
 Typically, statistical evidence is used to prove a claim of discrimination based on disparate impact. Some federal cases have held that a case of disparate treatment discrimination can be established by statistical evidence alone, however, the statistical evidence in such cases must be free from any doubts based on significance levels. See Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 363 (7th Cir. 2001) (concluding that although unlikely that pure correlation between protected class and employment decision would be enough to establish a prima facie case of intentional discrimination, it would be precipitate to hold that it could never do so).
 Respondent produced (1) the names and contact information of every current and past employee (from 1999) of its emergency housing unit; (2) a detailed description of its hiring process; (3) organization charts; (4) wage and benefits information for the monitor and monitor supervisor positions; (5) a list of its human resources personnel; and (6) copies of all documents in its possession relating to appellant.