may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Grazzini Brothers & Company,
Dakota County District Court
File No. C30108486
Richard T. Wylie, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for appellant)
William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent)
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a summary judgment dismissing appellant’s discriminatory-discharge claim against his employer, appellant argues that the district court (1) erred in concluding that he failed to establish a prima facie case; (2) erred in finding no evidence of pretext; and (3) failed to apply the proper mixed-motives analysis under the Minnesota Human Rights Act. We affirm.
In July 1999, respondent Grazzini Brothers & Company, a tile and stone contractor, hired appellant Larry D. Pinson, an African American, to work as a tile finisher at an hourly wage of $15. Respondent increased appellant’s wage twice, and by September 1999, appellant earned $19 per hour. When he was hired, appellant received a copy of respondent’s work rules, and he signed a form acknowledging that he read and understood the rules. The work rules required all employees to report to work on time. If unable to report to a job assignment, employees were required to call in and state that they were not available for work that day. After missing work, employees were required to call to obtain a job assignment. The work rules alerted employees that tardiness or absences were grounds for dismissal.
According to Michelle Knutson, the assistant operations director and assistant safety director for respondent at the time of appellant’s employment, appellant was repeatedly absent or tardy and failed to call in for job assignments. When employees called the office, they would receive their job assignments from Knutson. If employees failed to report to a job site, Knutson would try to locate them.
Knutson documented appellant’s absences and tardiness. From November 24 through December 6, 1999, appellant did not report to work and did not advise respondent of his absences until November 29, 1999, when appellant’s wife called respondent to state that appellant would not be in that day because he had an appointment. These absences were excused after appellant provided a doctor’s note. Other incidents are disputed. Respondent claims that on October 26, 1999, appellant reported to work 3.5 hours late and that on October 29, 1999, appellant reported late to work without advising respondent. Respondent also claims that appellant reported to work late on December 27, 1999, and failed to call for a job assignment the following day after being told to do so and failed to report to work and did not call for a job assignment on December 29 and 30, 1999. Appellant contends that he called in on December 28 and was told that there was no work for him that day or on December 29 and 30.
Appellant was discharged from his employment on January 3, 2000, and on March 14, 2000, he filed a charge with the Minnesota Department of Human Rights (MDHR) and the Equal Employment Opportunity Commission (EEOC) alleging that respondent discharged him because of his race and disability. Appellant’s charge contained no allegations of racial harassment. Following an investigation, the MDHR and the EEOC dismissed appellant’s charge after finding that they were unable to conclude that a violation of any statute prohibiting discrimination had occurred.
Appellant brought suit in state district court in May 2001 alleging that respondent discriminated against him on the basis of race and disability in violation of the Minnesota Human Rights Act (MHRA), Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA). Appellant also alleged that respondent violated the Family Medical Leave Act (FMLA). Appellant did not plead any claims of racial harassment or hostile work environment. Respondent removed the action to federal court, brought a counterclaim for breach of contract based on a loan that it had made to appellant, and moved for summary judgment.
Appellant conceded that his disability claims under the MHRA, ADA, and FMLA should be dismissed, and the federal district court granted respondent’s summary- judgment motion in part, dismissing appellant’s Title VII claims, and remanded the case to state court for consideration of the sole remaining MHRA discriminatory-discharge claim and respondent’s counterclaim. In state court, respondent moved for summary judgment, asserting that appellant was discharged for failing to report to work, arriving to the work site late, and failing to call in for job assignments.
Based on its findings that appellant failed to (1) establish a prima facie case of discrimination; and (2) provide evidence to rebut respondent’s nondiscriminatory reason for discharging appellant, the district court granted respondent summary judgment on appellant’s discrimination claim. The district court also granted respondent summary judgment on its counterclaim and entered judgment against appellant for the money he owed respondent. Appellant does not challenge the summary judgment on respondent’s counterclaim.
On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). “On appeal, the 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) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. A genuine issue for trial must be established by substantial evidence. Id. at 69-70. Only disputes over facts that might affect the outcome of the suit under the governing substantive law properly preclude the entry of summary judgment. See id. at 71 (when the nonmoving party has the burden of proof on an element essential to its claim, the nonmoving party must make a sufficient showing to establish that essential element); O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996) (a material fact is one that will affect the outcome or result of a case).
Under the MHRA, “it is an unfair employment practice . . . [f]or an employer, because of race . . . to discharge an employee . . . or to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” Minn. Stat. § 363.03, subd. 1(2)(b)-(c) (2000). An employee may prove a claim of disparate treatment based on race either by direct or circumstantial evidence. Goins v. West Group, 635 N.W.2d 717, 722-24 (Minn. 2001). Where direct evidence is lacking, Minnesota courts apply the three-part, burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973), to analyze claims arising under the MHRA. Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 323 (Minn. 1995). Under the burden-shifting analysis, the burden of production shifts, but the burden of persuasion remains with the plaintiff. Goins, 635 N.W.2d at 724 (citing Reeves V. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142-43, 120 S. Ct. 2097, 2106 (2001).
The employee bears the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). If the employee succeeds in proving a prima facie case, a presumption arises that the employer unlawfully discriminated against the employee, and the burden of production shifts to the employer to present evidence of some legitimate nondiscriminatory reason for its actions. Id. If the employer meets this burden, the presumption of discrimination no longer exits, and the employee must then prove by a preponderance of the evidence that the reason or justification offered by the employer is a pretext for discrimination. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). The employee may meet “this burden either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Sigurdson, 386 N.W.2d at 720.
To establish a prima facie case of discriminatory discharge, an employee must demonstrate that he (1) is a member of a protected class; (2) was qualified for the job that he was performing; (3) was discharged; and (4) was replaced by a nonmember of the protected class or that other similarly situated nonprotected employees were not discharged for nearly identical behavior. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 442 (Minn. 1983); Swanigan v. W. Airlines, Inc. 396 N.W.2d 607, 612 (Minn. App. 1986), review denied (Minn. Jan. 21, 1987). The specific elements of the prima facie case are flexible and vary with the circumstances of the alleged discrimination. McDonnell Douglas, 411 U.S. at 802 n.13, 93 S. Ct. at 1824 n.13; Sigurdson, 386 N.W.2d at 720.
Appellant argues that the district court erred in determining that he failed to establish a prima facie case. Citing federal case law, the district court found that appellant failed to show that (1) he was qualified for the position he was performing due to his unreliable attendance and (2) another employee replaced him. Appellant argues that his record of attendance is a contested fact issue and that for purposes of establishing a prima facie case, an employee need only show his objective qualifications for the job.
There is federal case law holding that “regular and reliable attendance is a necessary element of most jobs.” Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999) (quotation omitted). But those cases typically involve disability-discrimination claims under the ADA where, to establish a prima facie case, the plaintiff must show that he could perform the essential functions of the job with or without accommodation. See, e.g. McPhaul v. Bd. of Comm’rs, 226 F.3d 558, 564 (7th Cir. 2000) (determining employee was not qualified individual based in part on lack of evidence that accommodation of allowing employee to arrive at work one hour later or leave one hour earlier would have improved her performance); Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir. 1999) (holding employee who is unable to work on regular basis is unable to satisfy any functions of job, much less essential ones, as required for ADA claim); Greer, 185 F.3d at 922 (holding employee who was discharged for excessive absenteeism failed to show she was a qualified individual with a disability); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (stating employee who cannot meet attendance requirements of job cannot be considered “qualified” individual protected by ADA).
Appellant’s claim is a racial-discrimination claim under the MHRA, not a disability-discrimination claim under the ADA. Although Minnesota courts frequently apply to MHRA claims principles developed in the adjudication of federal claims under the ADA and Title VII, this is not always the case. Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn. 2002). In Hoover, a disability-discrimination case, the supreme court rejected the employer’s argument that the employee was not qualified because of her recent poor performance. 632 N.W.2d at 544. The supreme court held that “[f]or the purposes of establishing that [a plaintiff is] qualified for the position from which she was dismissed, a plaintiff need only establish that she met the minimum objective qualifications for the job.” Id. (citing Legrand v. Trustees of Univ. of Ark., 821 F.2d 478, 481 (8th Cir. 1987)); see Legrand, 821 F.2d at 481 n.4 (stating determination of “employee’s reliability necessarily involves subjectivity”). Thus, even in the context of a disability-discrimination claim, Minnesota has not adopted the rule that attendance is an objective job qualification for purposes of establishing a prima facie case.
In a discriminatory-discharge action under the MHRA, to establish that a plaintiff is qualified for the position from which he was dismissed, the plaintiff need only establish that he met the objective qualifications for the job. See Villarreal v. Indep. Sch. Dist. No. 659, 520 N.W.2d 735, 738 n.1 (Minn. 1994) (stating plaintiff must always establish qualifications for position to assert claim of unlawful discrimination and explaining that in Shockency v. Jefferson Lines, 439 N.W.2d 715 (Minn. 1989), plaintiff was discharged due to violation of attendance policy, which was not considered element of job qualification).
There is no dispute that appellant met the objective qualifications for his job with respondent; respondent admits that appellant was initially qualified for the position. Therefore, we conclude that the district court erred in determining that appellant failed to prove that he was qualified for the position.
But the district court also found that appellant failed to establish a prima facie case because he failed to present any evidence that he was replaced by a nonmember of the protected class or that he was treated differently than similarly situated employees. Appellant contends that to establish a prima facie case, he does not have to establish that a nonmember of a protected class replaced him, he only needs to show that the discharge occurred in “circumstances which allow the court to infer unlawful discrimination.” Craik v. Minn. State Univ. Bd., 731 F.2d 465, 469 (8th Cir. 1984).
Citing Dietrich, appellant argues that the Minnesota Supreme Court held that in a case of layoff and refusal to rehire, which appellant contends is the functional equivalent of a discharge, the fourth requirement of a prima facie case can be met by showing that opportunities remained available or were given to other persons with the plaintiff’s qualifications. 536 N.W.2d at 323-24. But the circumstances in Dietrich were not the functional equivalent of a discharge. In Dietrich, an employee was laid off as part of a reduction-in-force program. The supreme court explained in Dietrich:
The [United States Supreme] Court has explicitly noted that the requirements of the prima facie test may vary depending on the circumstances involved. For example, here the claim is discrimination associated with a reduction-in-force program. It may therefore be impossible for the aggrieved employee to meet the fourth requirement of the McDonnell Douglas prima facie test—that her job was given to someone else with equal qualifications—because presumably her job would not have been filled.
Id. at 324 (citation omitted). Because an employee who is laid off as part of a reduction-in-force program would not be replaced by another employee, Dietrich, who alleged age discrimination and reprisal regarding the abolition of her position, could not meet the fourth requirement of a prima facie case by showing that she was replaced by a younger employee. Id. Therefore, the supreme court recognized that the requirements for a prima facie case needed to be modified and that the fourth requirement could be met by showing that “opportunities remained available or were given to other persons with plaintiff’s qualifications.” Id. at 323-24. In a reduction-in-force situation, the fact that opportunities remained available could indicate discrimination because if there are opportunities available for work, there is not a reason for a reduction in force, which makes the abolition of a job position suspect.
But unlike the circumstances in Dietrich, appellant has not alleged that his position was eliminated. If the position has not been eliminated, the fact that opportunities remain available does not indicate that appellant’s discharge was discriminatory, and, therefore, demonstrating that the position remained open does not meet the fourth requirement of a prima facie case as it did in Dietrich.
Appellant argues that respondent treated Caucasian employees better than him and more readily forgave their performance problems and asserts that such preferential treatment demonstrates circumstances that allow the court to infer discrimination, thereby meeting the fourth requirement of his prima facie case. For a plaintiff to establish that he was treated differently from employees whose violations were of comparable seriousness, the plaintiff must prove that he and the others were similarly situated in all relevant respects. Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001). Appellant asserts that Frank Grazzini, then vice president of respondent, told appellant that he worked with employees with disciplinary problems and that when Caucasian tile setters “Wally” and “Mike” from Michigan reported to work drunk, he (Grazzini) got them out of jail and posted bond for them. But appellant’s allegations are vague, and he does not explain how his circumstances are similar to the other tile setters. Appellant’s allegations do not include the necessary factual support to establish the fourth element of a prima facie case. When conclusory allegations fail to assert the specific factual predicates of a prima facie case of employment discrimination, summary judgment is appropriate. Dietrich, 536 N.W.2d at 321.
Appellant also alleges that a Caucasian employee received preferential treatment when he “loused up” a tile job and Grazzini allegedly told appellant that respondent continued to work with him because he had medical problems. Appellant provided no names, dates, or details, so it is impossible to determine whether the violations were of comparable seriousness or whether he and the other employee were similarly situated in all relevant respects. Also, the record indicates that since 1998, respondent has discharged six Caucasian employees for poor attendance and for failing to call in for job assignments.
Appellant also argues that evidence of respondent’s racial animus supports his prima facie case. Appellant asserts that he was subjected to racial epithets and harassment from his coworkers. Generally, in the context of an employment discharge, “when discriminatory comments are vague and remote in time and administrative hierarchy, they are not more than ‘stray remarks,’ which are insufficient to establish discrimination.” Smith v. DataCard Corp., 9 F.Supp.2d 1067, 1079 (D. Minn. 1998) (quotation omitted). “Under the McDonnell Douglas analysis, stray remarks, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process are insufficient to establish a prima facie case.” Id. Appellant recounts instances of racially offensive remarks allegedly made by respondent’s foremen, but he provided only the first names of the individuals, and there is no evidence that respondent had foremen with those names. Respondent admitted that it had some employees that shared the same first names, but there is no evidence that they were supervisors in the company or worked on any jobs with appellant. Appellant’s allegations lack the specificity required to establish discrimination.
Finally, appellant argues that the district court failed to apply the proper “mixed motives” analysis under the MHRA. The McDonnell Douglas analysis applies in employment cases involving claims of disparate treatment brought under the MHRA regardless of whether a claim is labeled a “single-motive” or “mixed-motive” case. Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 626-27 (Minn. 1988). In a mixed-motive case, “even if an employer has a legitimate reason for the discharge, a plaintiff may nevertheless prevail if an illegitimate reason ‘more likely than not’ motivated the discharge decision.” McGrath v. TCF Bank Sav., FSB, 509 N.W.2d 365 (Minn. 1993) (quoting Anderson, 417 N.W.2d at 627). But under the McDonnell Douglas analysis, if the employee does not establish a prima facie case, the burden to produce evidence of a legitimate, nondiscriminatory reason for a discharge does not shift to the employer, and there is no basis for determining whether an illegitimate reason, rather than a legitimate reason proffered by the employer, motivated the discharge decision. Therefore, because appellant did not establish a prima facie case, there was no basis for the district court to apply any mixed-motives analysis.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 It is undisputed that appellant established the remaining elements of his prima facie case; he is a member of a protected class, and he was discharged.
 Appellant also cites language from Sigurdson, which is distinguishable. 386 N.W.2d at 720. There, the employee alleged that she was discriminated against in terms of employment opportunities, educational training, promotional opportunities, and wages, not that she was wrongfully discharged. Id. Because the specific elements of the McDonnell Douglas framework must be modified for varying factual patterns and employment contexts, appellant’s reliance on Sigurdson for the elements he must prove in his prima facie case is misplaced.
 In his motion in opposition to summary judgment, appellant alleges that the Caucasian tile setters were “Wally” and “Bill,” not “Wally” and “Mike.”
 Appellant asserted a claim for racial harassment in his motion opposing summary judgment, though he never asserted such a claim in his complaint. Appellant did not brief this issue on appeal. Issues not briefed on appeal are waived. Melina v. Chapman, 327 N.W.2d 19, 20 (Minn. 1982).