This opinion will be unpublished and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

A03-978

 

Dale Dobesh,

Appellant,

 

vs.

 

CBS Broadcasting, Inc., et al.,

Respondents.

 

Filed ­­­April 13, 2004

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. EM 01-2127

 

Lawrence R. Altman, Lawrence R. Altman Law Office, 215 Pillsbury Center, 220 South Sixth Street, Minneapolis, MN 55402-1427 (for appellant)

 

Barbara J. D’Aquila, Karen A. Reierson, Flynn, Gaskins & Bennett, LLP, 333 South Seventh Street, Suite 2900, Minneapolis, MN 55402 (for respondents)

 

            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Respondent former employer was awarded summary judgment on appellant former employee’s claims of fraud, disability and age discrimination, promissory estoppel, breach of contract, and interference with contract.  Appellant challenges the summary judgment.  Because we see no genuine issue of material fact and no error of law, we affirm.

FACTS

 

In 1980, appellant Dale Dobesh became an at-will of employee of WCCO TV as the station’s helicopter pilot. In 1992, respondent CBS Broadcasting, Inc., became the owner and operator of WCCO. 

Appellant suffered a heart attack in October 1998. The Federal Aviation Administration (FAA) prohibits pilots who have had heart attacks from flying until they are recertified.  Applications for recertification cannot be made until six months after a heart attack; applicants must provide appropriate medical data, which usually includes the results of an angiogram.  The FAA typically renders its decision about three months after the application is received.  Appellant could have applied in April 1999 and possibly been recertified by July 1999; WCCO expected him to return to work about that time.

Appellant went on short term leave, which expired on 15 January 1999; he then went on long term leave.  During appellant’s convalescence, WCCO contracted with an outside vendor to provide pilot services on an hourly-fee, as-needed, month-by-month basis, and selected a pilot recommended by appellant. 

Pursuant to CBS policy, any employee who was absent from work for more then six months was deemed terminated.  On 14 April 1999, appellant received a package from CBS describing COBRA benefits and indicating that appellant’s employment would be considered terminated on 18 April 1999.  According to appellant, a WCCO human relations employee told appellant to ignore this package.

In May 1999, appellant applied to the FAA for recertification despite his decision not to have the angiogram normally required for recertification.  In July 1999, appellant was given only conditional recertification meaning that he could fly only with a co-pilot. The FAA told him it would need the results of an angiogram to fully certify him so he could fly solo.  The WCCO position required a fully certified pilot.

On 28 July 1999, appellant met with representatives of WCCO, ostensibly to obtain their assurance that, if he had the angiogram and was fully recertified, he would be guaranteed a job.  But WCCO’s representatives told him they were considering permanent outsourcing of pilot duties and that CBS was considering a nationwide helicopter service; therefore, WCCO could not guarantee appellant a job.  Appellant testified that after the 28 July meeting:

I stopped the process of getting my medical [tests] so that I could fly as [a] single pilot because I was told and thought that I would lose my disability payment, my disability income, if I were to get recertified and then I had no job.  . . .  So if I was to get recertified . . . my disability would stop and I would have no income.  So I continued on disability.

 

On 17 November 1999, appellant filed a charge of disability discrimination with the EEOC and Minnesota Department of Human Rights, claiming that discrimination occurred on and before 28 July 1999.

Appellant continued to receive long-term disability payments until March 2000, when he settled with the insurer for $122,651.  The result of the settlement was that appellant, in effect, received his monthly wage until September 2002.

In September 2000, after having an angiogram, appellant was fully recertified.  He asked WCCO for a job as a pilot, or alternatively, as a reporter or photo journalist, although he lacked qualifications for the latter two positions.   WCCO told him that its pilot duties were outsourced and suggested that he seek employment with the organization from which WCCO obtained its pilots.  Because he considered the salary insufficient, appellant did not accept this employment.

On 4 January 2001,   appellant brought this action against CBS and respondent Justin Draper, controller of WCCO. Both respondents moved successfully for summary judgment.  Appellant now challenges the summary judgment dismissing his claims of fraud, reprisal, disability, age discrimination, promissory estoppel, breach of contract, and tortious interference with contract.[1]

D E C I S I O N

On appeal from summary judgment, this court asks whether there is any genuine issue of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1.         Fraud Claim

            A fraud claimant must plead

with specificity that [1] there was a false representation regarding a past or present fact, [2] the fact was material and susceptible of knowledge, [3] the representer knew it was false or asserted it as his or her own knowledge without knowing whether it was true or false, [4] the representer intended to induce the claimant to act or justify the claimant in acting, [5] the claimant was induced to act or justified in acting in reliance on the representation, [6] the claimant suffered damages, and [7] the representation was the proximate cause of the damages.

 

Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 747 (Minn. 2000).  Appellant claims two instances of fraud: one in January 1999, when the WCCO news director told appellant he could return to work when he was fully recovered from his heart attack, and the other in April 1999, when a WCCO human relations employee told appellant to ignore the information sent by CBS stating that appellant was terminated as of 18 April 1999.  Neither incident meets the Martens criteria.

            WCCO anticipated that appellant would be fully recertified in July 1999 and then would resume working for WCCO as a pilot.  Statements about an anticipated future event cannot be fraudulent unless the claimant also shows that the representer had no intention of performing at the time the statement was made.  Id.  Appellant does not allege that, in January and April 1999, WCCO did not intend to have him return to his work as a pilot in July 1999.  Moreover, evidence shows that WCCO continued to treat appellant as an employee until it learned of his failure to be fully recertified in July 1999.

            Nor can appellant show that WCCO induced him to act, or that he acted, in reliance on its representations.  In fact, he acted adversely to the representations when he chose not to have an angiogram and become fully recertified in order to preserve his right to his long-term disability payments.  Appellant claims that he would have pursued a non-pilot job at WCCO, but concedes that there was no job for which he was qualified.  Finally, appellant’s alleged damages—that he “lost his job and his career”—resulted from WCCO’s legitimate business decision to outsource its pilot services.[2]  Appellant suffered no financial damages: his short-term and long-term disability benefits after his heart attack resulted in his receiving compensation until September 2002, almost four years after his October 1998 heart attack.  The district court did not err in granting summary judgment dismissing appellant’s fraud claim.[3]

2.         Reprisal Claim

            An employer may not retaliate against an employee who files a charge under the MHRA or engages in other protected activity.  Minn. Stat. § 363.03, subd. 7 (2002).  Appellant contends that WCCO’s failure to re-hire him was reprisal for his complaint of age discrimination.

            As a threshhold matter, his claim is time-barred.  Minn. Stat. § 363.06, subd. 3 (2002) provides that actions for reprisal must be brought “within one year after the occurrence of the practice.”  The practice to which appellant objected was the termination of his employment in July 1999; he did not bring this action until January 2001.  He argues that he set forth the facts giving rise to the reprisal claim in his November 1999 EEOC charge, but he testified in his deposition that the EEOC complaint “listed [his] claim of discrimination as disability only.” 

            Moreover, appellant has not made a prima facie claim for reprisal.  An employee claiming reprisal must show (1) engagement in protected activity; (2) an adverse employment action; (3) a causal connection between the protected activity and the employment action; and (4) the pretextual character of any legitimate business reason the employer had for the act.  Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001).  Appellant meets neither the third nor the fourth elements—he presents nothing to show either that his employment was terminated because of his claim of age discrimination or that WCCO did not have a legitimate business reason to outsource its helicopter service.

            The district court did not err in granting summary judgment on the reprisal claim.

3.         Disability Discrimination Claim

To make a disability discrimination claim, an employee must show that (1) he was disabled; (2) he was qualified for the position from which he was discharged; and (3) he was replaced by a non-member of the protected class. The employer must then show a legitimate, nondiscriminatory reason for its act, which the employee, in turn, must prove to be pretextual.  Id. at 542.  Appellant makes several disability claims: discharge, failure to afford a reasonable accommodation, obstruction and delay of the interactive process to determine a reasonable accommodation, and requiring that he be completely recovered.  None of them meets the Hoover criteria. 

Appellant was not qualified for the position from which he was discharged at the time of his discharge—he was not fully certified to fly solo and carry passengers.  He does not dispute that the pilot position involved both activities, but relies on Minn. Stat. § 363.01, subd. 35(1) (2002), providing that a “qualified disabled person” is one who, “with reasonable accommodation,” can perform the essential function of the job.  Appellant suggests three “reasonable accommodations.”  The first would have been for WCCO to hire another pilot to fly the helicopter and have appellant function “in the helicopter manager/helicopter camera operator job.”  But there was no such job, and employers are not obliged to create a job as a reasonable accommodation.  Helgerson v. Bridon Cordage, Inc., 518 N.W.2d 869, 872 (Minn. App. 1994), review denied (Minn. 24 Aug. 1994).  The second “reasonable accommodation” was to assign appellant to an open photojournalist position.  But appellant testified, “I never said I had the experience to be a photojournalist.” He offers no support for the implication that making a “reasonable accommodation” includes assigning a disabled employee to a position for which the employee is not qualified.  The third “reasonable accommodation” was to keep the pilot position open until he returned.  The position was kept open for nine months, from October 1998 until July 1999, because WCCO expected that appellant would be fully recertified by then.  But appellant was not fully recertified then and could not say when, or if, he would be.  Moreover, when appellant was finally recertified, he was told he could apply to the outside vendor who was then providing helicopter services.  Appellant did not show that WCCO failed to make a reasonable accommodation.

Appellant was unqualified to be WCCO’s helicopter pilot when he was discharged from that position.  He does not meet the second criterion for disability discrimination.

Nor does he meet the third criterion—he was not replaced by a member of the non-protected class.  The nondiscriminatory nature of WCCO’s activity is self-evident from its failure to hire anyone else to perform appellant’s job.  Appellant’s position was discontinued, and WCCO put forth a legitimate nondiscriminatory reason for discontinuing it: WCCO paid $40,000 annually to its outside provider of helicopter services whereas it had paid appellant $80,000 annually.  Appellant has not shown that WCCO’s decision to outsource was pretextual.   

Appellant also claims that both the requirement that he be “100 percent healed” before returning to work and the policy that employees are terminated after being absent for six months are per se violations of the MHRA.  He relies on Heise v. Genuine Parts Co., 900 F. Supp. 1137 (D Minn. 1995), but his reliance is misplaced.  First, Heise is distinguishable—it involved only an employer’s requirement that an employee be “100% healed”, not an FAA requirement that an employee meet a particular qualification before performing a job.  Second, Heise says nothing about a policy of terminating employees who are absent for six months.  The district court did not err in granting summary judgment on the claim of disability discrimination.

4.         Age Discrimination Claim

Appellant bases this claim on two chance comments of WCCO’s news director.[4] Such comments are not proof of discrimination.  See, e.g., Dorsey v. Pinnacle Automaton Co., 278 F.3d 830, 838 (8th Cir. 2002) (manager’s comment about “bunch of old heads” did not preclude summary judgment on age discrimination claim); Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (stray remarks and unrelated comments by decisionmakers are not evidence of discrimination). Moreover, to prove age discrimination, appellant would need to show that his job was given to someone who was significantly younger than himself.  See Hoover, 632 N.W.2d at 542 (plaintiff in discrimination action must show replacement by non-member of the protected class).  Here, appellant’s job was discontinued, and appellant failed to show that WCCO’s decision to outsource was pretextual.  See id.

The district court did not err in granting summary judgment on this claim.

5.         Promissory Estoppel

Promissory estoppel requires (1) a clear and definite promise; (2) the promisor’s intent to induce reliance and the promisee’s reliance to his or her detriment; and (3) the necessity of enforcing the promise to prevent injustice.  Martens, 616 N.W.2d at 746.  Appellant fails to meet any of these criteria. 

First, appellant does not provide evidence of a clear and definite promise.  He refers only to “promises made by [WCCO employees] regarding the fact that [appellant] would return to his job once he was recertified.”  But appellant was an at-will, not a contract, employee; his employment was never guaranteed.  Furthermore, appellant was aware of WCCO’s ongoing interest in finding the least expensive way to obtain helicopter services.

Second, even if WCCO made the alleged promises, appellant fails to show that he relied on them.  He first declined to have the angiogram that he knew was likely to be required for him to be fully recertified for the job.  And when he did have an angiogram, it was because he wanted to fly, not because WCCO had promised him a job.  Appellant testified that, when he asked WCCO in 1999 if he would be guaranteed a job if he had the angiogram and was fully recertified, WCCO told him no decision had then been made as to how helicopter services would be provided in the future.

Third, appellant suffered no injustice: when WCCO told him it could not guarantee him a job, he chose not to pursue recertification in favor of continuing his long-term disability benefits.  Appellant offers no support for his implication that the loss of an at-will employee’s job to outsourcing is an injustice with a legal remedy. The district court did not err in granting summary judgment on this claim.

6.         Breach of Contract

            Appellant’s breach of contract claim is based on the view that WCCO’s alleged statement that appellant would have a job when he became recertified constituted a contract.  Formation of an employer-employee contract requires communication of a specific and definite offer by the employer, acceptance by the employee, and consideration.  Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983).  Appellant shows none of the three in his discussion of this issue.  Moreover, in his deposition, appellant gave no specifics of the alleged contract other than to say he felt that his job offer was a contract and that it was renewed during his performance reviews.  He agreed that his term of employment was “indefinite.”  There was no contract between appellant and WCCO that prevented WCCO from terminating appellant when it did.  The district court did not err in granting summary judgment on this claim.

7.         Interference with Contract

            A tortious interference claim requires proof of (1) a contract; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procurement of its breach; (4) an absence of justification for the defendant; and (5) damages.  Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn. 1982).  Appellant argues that respondent Draper, WCCO’s controller, is liable for tortious interference. 

            “[A] tortious interference claim will lie for an at-will employment agreement.”  Nordling v. N. States Power Co., 478 N.W.2d 498, 505 (Minn. 1991).  But “a company officer, agent or employee is privileged to interfere with or cause a breach of another employee’s employment contract with the company, if that person acts in good faith, whether competently or not, believing that his actions are in furtherance of the company’s business.”  Id. at 507.  This privilege is lost, however, if the company officer’s actions “are predominantly motivated by malice and bad faith, that is, by personal ill-will, spite, hostility, or a deliberate intent to harm the plaintiff employee.”  Id. 

Appellant testified, “I don’t know of any reason why Justin [Draper] would have ill will towards me, no” and “I have no reason to believe that Justin [Draper] would be hostile towards me or try to hurt me.”  This testimony neutralizes the tortious interference claim.  Draper was acting in good faith when he terminated appellant’s employment.

The district court did not err in granting summary judgment on this claim.

Affirmed.

 



[1] We note that appellant made both MHRA claims, i.e., reprisal, disability, and age discrimination, and common law claims, i.e. fraud, promissory estoppel, breach of contract, and tortious interference with contract.  It is at least arguable that the former preempt the latter.  See Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736, 744-45 (Minn. 1997) (citing Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990)for the proposition that, unless plaintiff presents proof that the acts giving rise to MHRA claim and common law claim differ in kind, plaintiff may recover under only one claim); Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 486 (Minn. 1996) (noting that Wirig permitted plaintiff to maintain both actions because they “require[d] different elements of proof and address[ed] different injuries”).  All seven of appellant’s claims arise out of the same factual circumstances and are brought to redress the same injury.  The parties did not litigate the preemption issue.

[2] In any event, appellant did not lose his job and career: he testified that, since full recertification, he again works as a helicopter pilot.  

[3]Appellant relies on Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302 (Minn. App. 1992) (affirming jury verdict of intentional misrepresentation by television station to former news anchor because evidence showed that the anchor had relied on station’s promise that it would promote her when she did not pursue another position), review denied (Minn. 12 Feb. 1993).  Appellant’s reliance is misplaced; Hanks is readily distinguishable.

[4] The first comment was allegedly made by WCCO’s new director when he first met appellant.  The news director asked how long appellant had been with the station; appellant replied, “Sixteen years,” and the news director said, “You must be really old.”  The second comment was allegedly made in late 1997 or early 1998, when appellant told the news director he thought the station was discriminating against him on the basis of his age, and the news director threatened to sue appellant for slander.