This opinion will be unpublished and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
Cirrus Design Corporation,
St. Louis County District Court
File No. C9-01-603035
Timothy A. Little, Law Office of Timothy A. Little, P.A., 203 North Eighth Avenue East, Suite 100, Duluth, MN 55805 (for appellant)
Joseph W. Hammell, Jennifer Dellmuth, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498 (for respondent)
Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Minge, Judge.
Appellant employee challenges the summary judgment dismissal of her whistleblower claim against respondent employer. Appellant also challenges the determination that the attorney-client privilege required exclusion of certain testimony. Because appellant has not identified any statute or regulation that was arguably implicated by the alleged workplace activity that was the subject of her complaint, appellant has not presented a claim of protected activity under Minn. Stat. § 181.932 (2002), and the district court did not err in dismissing appellant’s action. Because appellant has not presented an enforceable whistleblower claim and because appellant does not argue that the evidence excluded on the ground of attorney-client privilege would restore her whistleblower claim, we do not reach the admissibility question.
Appellant Jeannie Salgy-Knapp began employment as an assembler with respondent Cirrus Design Corporation (Cirrus) in July 1999. Cirrus designs and builds single-engine aircraft. In April 2001, Salgy-Knapp was promoted to a night-shift lead position and given certain responsibilities regarding production drawings. During this time, Salgy-Knapp raised safety concerns to supervisors because the drawings were not open and on top of assemblers’ workbenches while parts were being assembled. She believed this was a violation of the Cirrus Design and Manufacturing Policies and Procedures Manual (CDMP) and therefore a violation of law. In August 2001, Salgy-Knapp was removed from the lead position and returned to the position of assembler. In November 2001, she filed suit under Minnesota’s whistleblower statute claiming that her removal from the lead position was a result of reporting safety violations.
In December 2001, Salgy-Knapp complained of another safety concern. She and another employee had been told to assemble a part based on a preliminary drawing. After its completion, Salgy-Knapp expressed her belief that it was a violation of the CDMP to build the part without the final drawing, even though the final drawing was eventually available to check against the finished product.
Cirrus relies on various documents to ensure safety and quality. First, the Federal Aviation Administration (FAA) regulations require the establishment and maintenance of a quality control system in order to receive and maintain an FAA production certificate. Cirrus’s quality control system is set forth in its Quality Assurance Manual (QAM), which was approved by the FAA. Cirrus also created and maintains the CDMP, which details specific internal policies and procedures and partially relates to QAM requirements. However, the CDMP is not required to be submitted to or approved by the FAA, nor are the portions identified by Salgy-Knapp in this proceeding arguably relevant to meeting the QAM requirements.
On January 8, 2002, the attorney for Cirrus met with certain staff to discuss Salgy-Knapp’s work performance and the litigation she had initiated. Jeff Hunter, Salgy-Knapp’s supervisor, was one of the people at this meeting. Cirrus terminated Salgy-Knapp’s employment the next day.
In September 2002, Cirrus moved to exclude the statements of now former-employee, Jeff Hunter. The district court found that the attorney-client privilege applied to Hunter’s statements to the extent that they related to the January 8, 2002, meeting, but otherwise permitted his statements. In January 2003, Cirrus moved for summary judgment. The district court granted its motion, finding that Salgy-Knapp’s internal corporate complaints were not protected by the Minnesota Whistleblower law, and dismissed her suit. Salgy-Knapp appeals from the district court’s grant of summary judgment and the evidentiary ruling excluding certain statements of Mr. Hunter.
“On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.” Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998). “[T]he 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). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted). Summary judgment must be granted against a party who fails to establish an essential element of a claim, if the burden of proof rests with that party, because failure to establish an essential element renders all other facts immaterial. Bersch, 584 N.W.2d at 786.
The Minnesota Whistleblower statute provides:
Subdivision 1. Prohibited action. An employer shall not discharge, discipline . . . otherwise discriminate against, or penalize an employee . . . because:
(a) the employee . . . in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official[.]
Minn. Stat. § 181.932, subd. 1(a) (2002). While actual violations need not exist to bring a claim, the “reported conduct must at least implicate a violation of law.” Obst v. Microtron, Inc., 614 N.W.2d 196, 200 (Minn. 2000). In a more recent opinion, the Minnesota Supreme Court further discussed the question of specificity as follows:
A whistleblower claim need not identify the specific law or rule that the employee suspects has been violated, so long as there is a federal or state law or rule adopted pursuant to law that is implicated by the employee’s complaint, the employee reported the violation or suspected violation in good faith, and the employee alleges facts that, if proven, would constitute a violation of law or rule adopted pursuant to law.
Abraham v. County of Hennepin, 639 N.W.2d 342, 354-55 (Minn. 2002).
Salgy-Knapp contends that the district court erred in granting summary judgment because she had a good faith belief that a violation of FAA regulations had occurred. She cites to Hedglin v. City of Willmar, 582 N.W.2d 897, 902 (Minn. 1998), where the supreme court stated that “for purposes of the whistleblower statute, it is irrelevant whether there were any actual violations; the only requirement is that the reports of state law violations were made in good faith.” She argues that because she is not required to show that an actual violation occurred, the only issue before this court is whether she made her report in good faith.
The district court accepted Salgy-Knapp’s claim regarding the work setting. It granted summary judgment because Salgy-Knapp’s complaints did not implicate a violation of law. Her good faith with respect to specific conduct must be distinguished from a good faith belief that an actual violation of law or regulation occurred. In the Hedglin, Abraham, and Obst cases, the whistleblowers were only successful to the extent they were ultimately able to point to a law or regulation that was arguably violated.
In Obst, the plaintiff made reports of defective wiper control modules manufactured by the defendant and alleged that shipments of the modules violated federal law prohibiting the introduction of motor vehicle equipment that did not comply with federal standards. 614 N.W.2d at 198-199. The Minnesota Supreme Court found that the federal regulations at issue did not specifically address wiper control modules or the procedures for testing them. Id. at 204. Therefore, although the plaintiff’s report may have implicated a violation of a control plan between the defendant and its purchaser, it did not implicate a violation of law. Id.
The facts in this case are similar to those in Obst. The reports Salgy-Knapp made concerned the assembly of a part without a final drawing and the placement of drawings during the assembly process. She stated that she believed current practices violated the CDMP. Here, the relevant FAA regulation merely requires that Cirrus establish and maintain a quality control system in order to receive a production certificate. 14 C.F.R. § 21.139 (2002). The district court concluded, and the evidence reflects, that the QAM satisfies this requirement and was approved by the FAA. According to an affidavit from Cirrus’s Vice President of Quality Assurance, Ronald Gansior, the document identified by Salgy-Knapp, the CDMP, contains only Cirrus’s specific and detailed internal policies, and was not approved, or required to be approved, by the FAA. The affidavit further states that the CDMP provisions regarding the placement of drawings created higher standards than what the FAA required. There is no evidence in the record that the required QAM plan governed the placement of drawings or that the QAM even arguably needs the CDMP to satisfy the FAA regulations or to meet any other statutory or legal requirement. As the case is presented to this court, it appears that the QAM is a complete, independent, freestanding document. Salgy-Knapp does not point to any specific part of the record that would support a determination that the FAA certification of Cirrus as an aircraft manufacturer depended on the observance of the CDMP.
Like Obst, Salgy-Knapp’s report did not implicate a violation of law, but rather merely implicated a violation of Cirrus’s internal policy, the CDMP. Therefore, Salgy-Knapp has failed to establish an essential element of her whistleblower claim. The facts alleged in Salgy-Knapp’s reports, even if proven true, fail to implicate a violation of law or rule adopted pursuant to law as required by Minn. Stat. § 181.932, subd. 1(a).
We note that the requirement of identifying a statute or regulation is not one that the employee must meet at the outset. We are mindful that whistleblowers are rarely lawyers and that, in some instances, it may be difficult or impossible for even a lawyer to determine whether a statute or regulation might be interpreted to proscribe the alleged conduct. But, to survive a motion for summary judgment and come within the safe harbor of whistleblower protection, an employee must be able to show a greater proximity between the practice being reported and the regulation being invoked. Ultimately, some law or rule adopted pursuant to law must be identified and fairly implicated by the time a summary judgment motion is being considered. In this case, Salgy-Knapp was not able to point to a statute or regulation that was arguably implicated by the alleged reported activity at the time summary judgment was considered.
We conclude that the district court did not err in its application of the law and affirm its grant of summary judgment for Cirrus.
Salgy-Knapp also argues that the district court erred in excluding the statements of former Cirrus employee Jeff Hunter regarding communications from a January 8, 2002, meeting between Cirrus’s counsel and their managers and officers. The district court found that the details of the meeting were protected by the attorney-client privilege. Because admission of Mr. Hunter’s statements does not affect summary judgment, we do not address this issue.