This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Minneapolis Public Schools,
Hennepin County District Court
File No. EM01019559
Alexander A. Antropov, 727 Fifth Avenue South, #305, Minneapolis, MN 55415 (pro se appellant)
Andrea Johnson-Curry, Jeffrey A. Hassan, Jeffrey A. Hassan, PLC, 9130 Telford Crossing, Brooklyn Park, MN 55443 (for respondent)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.
U N P U B L I S H E D O P I N I O N
Respondent Minneapolis Public Schools, Special School District No. 1, discharged appellant Alexander A. Antropov from his position as a sixth-grade mathematics teacher for ineffective teaching and classroom management, and for inappropriate conduct with a student. During his employment, which lasted from September 1999 until March 2000, Antropov received assistance designed to help new teachers meet standards of effective instruction. The assistance included classroom observations and feedback by mentors, colleagues, and administrators. A few months after Antropov’s discharge, the school district declined to hire him for a position as a mathematics teacher at an interdistrict school.
Antropov filed a discrimination charge with the Minnesota Department of Human Rights (MDHR), alleging that the school district had discriminated against him based on national origin in discharging him from employment and refusing to rehire him. The MDHR found that Antropov’s allegations were unsubstantiated and dismissed the charge.
Antropov then filed this action against the school district in district court, alleging claims of discriminatory discharge, discriminatory refusal to rehire, and retaliation. The district court granted summary judgment for the school district on the discriminatory refusal to rehire claim on the merits. The district court also granted summary judgment for the school district on the ground that the statute of limitations barred all of Antropov’s claims. We affirm.
On appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In reviewing summary judgment, we examine the evidence in the light most favorable to the party against whom judgment was entered. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Nonetheless, the party opposing summary judgment must do more than rest on mere averments; a genuine issue for trial must be established by substantial evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997). No genuine issue of material fact exists “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Id. at 69 (quotation omitted).
Minnesota uses the three-part McDonnell-Douglas test to assess a discriminatory refusal to hire case. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). First, the plaintiff must establish a prima facie case of discriminatory refusal to hire. Id. Second, the employer must present evidence of a legitimate, nondiscriminatory reason for its actions. Id. Third, the plaintiff must demonstrate that the employer’s proffered reasons are actually a pretext for discrimination, showing by a preponderance of the evidence either that it is more likely the defendant was motivated by national origin or that the defendant’s proffered explanation is unworthy of credence. Id.; Shockency v. Jefferson Lines, 439 N.W.2d 715, 719 (Minn. 1989). This three-part test also applies to motions for summary judgment; if the plaintiff fails to set forth sufficient evidence at the first or third stage of the test, summary judgment is appropriate. Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988); see also Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 545-46 (Minn. 2001) (applying test in reviewing summary judgment).
Prima facie case
To establish a prima facie case of refusal to hire, a plaintiff must show that (1) he is a member of a protected group; (2) he sought and was qualified for an opportunity that the employer made available to others; (3) despite his qualifications, he was denied the opportunity; and (4) the opportunity remained available or was given to other persons with his qualifications. See Butler v. Leadens Investigations & Sec., Inc., 503 N.W.2d 805, 808 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993).
Antropov was born, raised, and educated in Russia; therefore, he has established the first element of a prima facie case. See Minn. Stat. § 363.03, subd. 1(2) (2002) (prohibiting discrimination based on national origin).
To establish that he was qualified for the position for which he was not hired, a plaintiff need only establish that he met the minimum objective qualifications for the job. Hoover, 632 N.W.2d at 544 (citing Legrand v. Trustees of Univ. of Ark. at Pine Bluff, 821 F.2d 478, 481 (8th Cir. 1987)). Subjective evidence is relevant to the second and third elements of the McDonnell-Douglas test, not to establishing the qualification element of a prima facie case. Legrand, 821 F.2d at 481 n.4. Antropov’s Ph.D. in mathematics and his teaching license are sufficient to show that he was qualified for the interdistrict position.
Regarding the third element, the record shows that Antropov was not offered a subsequently available interdistrict mathematics teaching position.
Finally, to establish a prima facie case, Antropov had to show that the position remained available or was given to other persons with his qualifications. The record contains no evidence as to what happened with the interdistrict position after the school district refused to hire Antropov.
Legitimate, nondiscriminatory reason
From September 17, 1999, through December 13, 1999, District Mentor Lorie Shiels observed Antropov’s classroom on ten occasions and had three coaching and informational conferences with him. In the classroom, Shiels observed students off task, behaving disruptively, ignoring Antropov’s instructions, engaging in verbal and physical altercations, and displaying disrespectful behavior. She identified behavior management, classroom planning, and content delivery as problems with Antropov’s performance, and she met with Antropov to discuss his performance and how to improve it. Antropov presented evidence that following some of Shiels’s classroom observations, she reported that Antropov’s classes were orderly and he was using effective classroom-management techniques. But based on all of her classroom observations, Shiels described Antropov’s classroom as “unsuitable for learning.”
Based on her own observations and feedback from other professional-support-process team members, Principal Mardella Milton was concerned about Antropov’s classroom-management skills and performance and planning and content delivery. She identified inconsistent use of seating charts, grade books, parent contact, and student feedback as problems with Antropov’s performance. Milton met with Antropov on four occasions in September and October 1999 to discuss his performance and ways to improve it. On November 29, 1999, Milton sent a memorandum to Antropov identifying the problems with his performance and advising him that if it did not improve significantly in the next few weeks, she might recommend terminating his employment before the end of the school year.
Instruction Specialist Sujata Vadher also observed Antropov’s classroom on numerous occasions. She heard students call him derogatory names and accuse him of being homosexual. During one observation, Vadher saw a student crawl out of an open window. During another, a parent came into the classroom and began yelling at Antropov. Antropov disputes Vadher’s allegation that the parent stated that her child was not learning in Antropov’s class. Antropov contends that the parent was angry because Antropov had referred her child to Vadher for misbehavior. Vadher also received complaints from students that they were not learning in Antropov’s class.
Intern Principal Lillie Pang observed Antropov’s classroom on about 20 occasions. She saw students behaving disrespectfully towards and cursing at Antropov, ignoring him, and not participating in the learning process.
While observing Antropov’s classroom on December 13, 1999, Shiels saw Antropov use a broom as a barrier to prevent a student from erasing an assignment on the chalkboard. Although Shiels described Antropov’s conduct as using “a broom to push a student out of the classroom,” Antropov denies making contact with the student and states that using a physical object as a barrier is a legitimate behavior-control technique that he learned at ENVOY (educational nonverbal yardsticks) training. Later during the same class, Shiels observed that Antropov did not intervene when other students physically removed from the classroom the student who had attempted to erase the chalkboard. Following the December 13 incident, Milton wrote a memorandum to Administrator of Employee Effectiveness Emma Hixson reporting the incident and recommending that Antropov be terminated due to the ongoing problems with his performance. Hixson suspended Antropov with pay pending an investigation.
The record supports the district court’s analysis of the evidence regarding Antropov’s performance problems while employed by the school district. Antropov’s performance problems at Cityview established a legitimate, nondiscriminatory reason for the school district’s refusal to hire Antropov for the interdistrict position.
A plaintiff can meet the burden of proving pretext either by showing that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of belief. Sigurdson v. Isanti County, 386 N.W.2d at 720.
Antropov argues that Shiels’s and Vadher’s references to derogatory remarks made by students about Antropov show pretext. Those references were made in the context of addressing Antropov’s classroom-management problems and do not indicate discrimination by the school district.
Antropov next contends that it can be inferred from Emma Hixson’s duties in her position as employee-effectiveness administrator that Hixson was the person who made the decision not to hire Antropov. Antropov cites an alleged comment by Hixson about his pronunciation as evidence of her discriminatory motivation. Even accepting Antropov’s description and characterization of the remark, no evidence in the record indicates that Hixson unilaterally made the decision not to hire Antropov or that the decision was based on Hixson’s recommendation rather than on Antropov’s performance problems at Cityview.
Antropov next contends that he was not hired for the interdistrict position because of information contained in an FBI report issued as part of a criminal-record background check, which Antropov had agreed to undergo. The record contains evidence that Antropov did not attempt to hide his national origin and that it was known to the school district before the FBI report was issued. Antropov also asserts that personnel committee member Terry Larson said Antropov was not hired because the FBI report showed a criminal record. The FBI report stated, “CHARGE 1 – DEP PROC,” and Antropov does not explain the significance of that information.
Antropov presented evidence that in August 1999, he applied for several teaching positions, and the school district hired persons not of Russian origin with less education than he had. The fact that they were less educated does not mean that they were less qualified, for example, in terms of experience or training in teaching or working with children in the sixth and seventh grade age range. Antropov had no prior experience teaching children that young. The record does contain information that at least one of the teachers hired, Alemu Bakele, had classroom-management problems. But there is no evidence that the school district gave Bakele more support than it gave Antropov. Although Bakele remained employed by the school district for more than two years, the record does not indicate that Bakele’s problems were as serious or as ongoing as Antropov’s.
Citing Minn. Stat. § 609.379 (2002) (permitting reasonable force by a teacher against a pupil) and Minn. Stat. § 268.095, subd. 6 (2002) (defining misconduct for purposes of unemployment-compensation law), Antropov argues that he did not commit misconduct in closing the door in students’ faces or during a December 13, 1999, incident in which he used a broom as a barrier to prevent a student from erasing an assignment on the chalkboard. Antropov, however, was not terminated based on a legal definition of misconduct.
About two weeks before the December 13 incident, Milton sent a memorandum to Antropov advising him that if his performance did not improve significantly in the next few weeks, she might recommend terminating his employment before the end of the school year. Antropov was discharged for ineffective teaching and classroom management and for inappropriate conduct with a student. The fact that using the broom to prevent the student from erasing the chalkboard may not have violated a legal standard of misconduct does not make it appropriate.
In light of the considerable evidence of Antropov’s performance problems and the absence of evidence that Antropov consistently performed adequately, the evidence is insufficient to raise a fact issue on pretext.
The district court properly granted summary judgment for the school district on the discriminatory-refusal-to-rehire claim because Antropov failed to present sufficient evidence to satisfy the third stage of the McDonnell-Douglas test, i.e., that the district’s proffered reason for refusal to rehire was pretextual.
Retaliation and discrimination claims must be brought within one year after the occurrence of the alleged events giving rise to the claims. Minn. Stat. § 363.06, subd. 3 (2002). A party can file a charge with the MDHR or file a civil complaint in district court. Minn. Stat. §§ 363.06, subd. 3, 363.116, 363.14, subd. 1 (2002). If a discrimination or retaliation claim is filed with the MDHR and the claim is dismissed as meritless, the party who filed the claim has 45 days from receipt of notice of dismissal to bring an action in district court. Minn. Stat. § 363.14, subd. 1(a)(1).
We note that Antropov filed his charge with the MDHR more than one year after his discharge from employment, so the charge was untimely as to the discriminatory discharge claim. In any event, the district court correctly concluded that Antropov’s retaliation and discriminatory discharge and discriminatory refusal to hire claims were untimely under Minn. Stat. § 363.14, subd. 1(a)(1). Receipt of notice is presumed five days after the date of service by mail of the written notice. Id., subd. 1(a). The MDHR mailed the notice of dismissal to Antropov on November 8, 2001, so notice is presumed to have been received November 13, 2001. Under Minn. Stat. § 363.14, subd. 1, an action is brought when the summons is served on the defendant, not when an action is filed in district court. Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn. App. 1997). Antropov did not serve the summons and complaint on the school district until January 2, 2002, more than 45 days after receipt of the notice of dismissal. Pro se status “does not entitle a party to modification of procedural rules.” Ronay v. Ronay, 369 N.W.2d 12, 14 (Minn. App. 1985) (citations omitted).
Antropov raises issues in his brief that were not addressed by the district court. Those issues are the sufficiency of the school board’s findings, hostile environment, and the adequacy of service. Because the district court did not address those issues, we will not address them. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, an appellate court will address only those issues that the record shows were presented to and considered by the district court in making its decision).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.