This opinion will be unpublished and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

A03-1347

A03-1796

 

Dianne Hoover,

Appellant,

 

vs.

 

Norwest Private Mortgage Bank, a

division of Norwest Funding, Inc., et al.,

Respondents.

 

Filed June 9, 2004

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. 98-004863

 

 

David W. Larson, Martin & Squires, P.A., 2050 Piper Jaffray Plaza, 444 Cedar Street, Saint Paul, MN  55101 (for appellant)

 

Barbara Jean D’Aquila, Patrick R. Martin, Flynn, Gaskins & Bennett, LLP, 333 South Seventh Street, Suite 2900, Minneapolis, MN  55402 (for respondents)

 

            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

After respondents terminated appellant’s employment, appellant filed a claim against respondents, alleging disability discrimination, failure to accommodate, and reprisal.  Following a bench trial, the district court dismissed appellant’s claims.  On appeal from the denial of her motion for a new trial and from the final judgment, appellant argues that the district court erred by concluding that she failed to establish a prima facie case on any of her claims.  Because we conclude that (1) the district court’s evidentiary rulings were not an abuse of discretion, its findings were not clearly erroneous, and its conclusions of law were not in error and (2) the district court did not abuse its discretion by denying appellant’s motion for a new trial, we affirm.

FACTS

Appellant Dianne Hoover was hired by respondent Norwest Private Mortgage Banking (PMB) in 1992 as a private mortgage banker, a position commonly referred to as a loan originator.  In May 1995, Hoover was diagnosed with fibromyalgia; her symptoms included severe headaches; deep pain in her neck, shoulder, and back; fatigue; and sleep disturbances.  Hoover informed her supervisor, Colleen McCullough, of the diagnosis.  According to Hoover, by September 1995, her fibromyalgia began to affect her ability to work; she suffered from exhaustion and a diminished ability to concentrate.  Hoover testified that she sought help from McCullough, stating that (1) at anOctober 1995 meeting with McCullough, Hoover told McCullough that she did not have the additional support that she needed to do her job and that the stress was causing her fibromyalgia to flare up and (2) at a November 1995 meeting, Hoover told McCullough that she needed loan-processing support because of her fibromyalgia.  PMB employs loan processors who assist the loan originators with their files.  McCullough testified, however, that Hoover never tied her requests for loan-processor support to her fibromyalgia.

            In late 1995, after receiving complaints from three loan processors that Hoover’s files were not in “regulatory compliance,” McCullough requested a special audit of Hoover’s files.  The auditor’s December 1995 report indicated that (1) there was “significant evidence that the dates and types of applications taken [had] been altered by [Hoover] in order to have the files appear to be in compliance,” (2) Hoover’s files did not comply with PMB policies, and (3) in several instances, Hoover’s files may have been in violation of federal fair-lending laws. 

            Hoover testified that, on February 7, 1996, she told McCullough that she was going to the human-resources department to talk about her need for accommodation and about the lack of loan-processor support that she was receiving.  On February 9, Hoover called PMB’s human-resources department and left a message stating, “Call me.”  Later that morning, Hoover met with McCullough and McCullough’s supervisor, Craig McWilliams, to discuss, among other things, what PMB considered to be possible violations of law found during the special audit of Hoover’s files.  At the meeting, after Hoover mentioned her fibromyalgia, McWilliams asked Hoover if the fibromyalgia prevented her from performing her job, and Hoover answered, “No.”  Following the meeting, McCullough terminated Hoover’s employment. 

On January 30, 1997, Hoover filed a charge of discrimination against PMB and McCullough with the Minnesota Department of Human Rights (MDHR).  After an investigation, on February 3, 1998, the MDHR issued a finding that probable cause existed to believe that PMB had committed unfair discriminatory practices against Hoover, including disability discrimination, failure to accommodate a disability, and reprisal.

            On March 27, 1998, Hoover filed suit in district court, alleging three Minnesota Human Rights Act (MHRA) claims (disability discrimination, failure to reasonably accommodate, and reprisal); breach of contract; and negligent supervision.  In July 2000, the district court granted PMB and McCullough’s motion for summary judgment, dismissing all of Hoover’s claims.  This court reversed the district court’s dismissal of the disability-discrimination claim but affirmed the district court’s disposition of the other claims.  Hoover v. Norwest Private Mortgage Banking,605 N.W.2d 757 (Minn. App. 2000), aff’d in part, rev’d in part, 632 N.W.2d 534 (Minn. 2001).  Both PMB and McCullough petitioned for review of this court’s decision to reinstate Hoover’s disability-discrimination claim, and Hoover petitioned for review of the dismissal of her reasonable-accommodation and reprisal claims.  The Minnesota Supreme Court granted review of both petitions, affirmed this court’s reinstatement of Hoover’s disability-discrimination claim, and reinstated Hoover’s reasonable-accommodation and reprisal claims.  See Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534 (Minn. 2001).  The matter was tried before the district court in 2002, and in March 2003, the district court found, in a thorough and detailed opinion, that no discrimination, failure to accommodate, or reprisal had occurred.  In April 2003, Hoover moved for a new trial; her motion was denied on July 21, 2003.  Final judgment was entered September 24, 2003.  Hoover appeals from the district court’s denial of her motion for a new trial and from the final judgment.

D E C I S I O N

I.          Disability Discrimination

A.         Failure to Establish Prima Facie Case

            The district court concluded that Hoover failed to establish a prima facie case of disability discrimination because Hoover failed to establish that she had an impairment that materially limited her ability to work and, therefore, that she was a disabled person.  Under the MHRA, it is an unfair employment practice for an employer to discharge or otherwise discriminate against an employee because of the employee’s disability.  Hoover, 632 N.W.2d at 542.  Plaintiffs alleging discriminatory discharge may prove discriminatory intent either by direct evidence or by using circumstantial evidence in accordance with the three-part burden-shifting test set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  Hoover, 632 N.W.2d at 542.  Under the McDonnell Douglas test, a plaintiff alleging a discriminatory employment practice must first make out a prima facie case of discrimination.  McDonnell Douglas, 411 U.S. at 792, 93 S. Ct. at 1819.  As applied to a discriminatory-discharge claim, the plaintiff must show that she:  (1) is a member of a protected class; (2) was qualified for the position from which she was discharged; and (3) was replaced by a non-member of the protected class.  Id. at 802, 93 S. Ct. at 1824.  If the plaintiff makes out a prima facie case, the burden of production shifts to the defendant who, in order to avoid summary judgment, must produce admissible evidence sufficient to allow a reasonable trier of fact to conclude that there was a legitimate, nondiscriminatory reason for the discharge.  Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 711 (Minn. 1992).  If the defendant provides a legitimate, nondiscriminatory reason for its actions, the presumption of discrimination disappears and the plaintiff then has the burden of establishing that the employer’s given reason is a pretext for discrimination.  Hoover, 632 N.W.2d  at 542.

Minnesota Statutes section 363A.03, subdivision 12 (Supp. 2003), provides that “[a] disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”  Because subdivision 12 uses the term “materially limits” rather than “substantially limits,” Minnesota law is different from, and less stringent than, the federal definition of disability.  Hoover, 632 N.W2d at 543 n.5.  The degree to which an impairment limits a major life activity is “evaluated based on the plaintiff’s specific circumstances.”  Id. at 543.  “Merely having an impairment does not make one disabled.”  Toyota Motor Mfg. v. Williams, 534 U.S. 184, 195, 122 S. Ct. 681, 690 (2002).  And because an impairment “corrected by medication or other measures” is not a disability, a plaintiff’s condition must be considered in its corrected state.  Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83, 119 S. Ct. 2139, 2146-47 (1999). 

Here, although the district court found that Hoover was qualified for her position and was replaced by a nondisabled person, it concluded that Hoover was not disabled and, thus, not a member of a protected class.  This conclusion was based on the finding that she had failed to establish that she had an impairment that materially limited her ability to work at the time that PMB terminated her employment.  Hoover maintains that this finding was clearly erroneous, asserting that her fibromyalgia materially limited her ability to work because it affected her ability to remember and concentrate, slowed her ability to work, and “limited her ability to handle heavy workloads and deadlines.” 

Rule 52.01 of the Minnesota Rules of Civil Procedure provides, in relevant part, that “[i]n all actions tried upon the facts without a jury[,] . . . [f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  The decision of a district court should not be reversed merely because the appellate court views the evidence differently.  Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn. 1985).  Rather, the findings must be “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  N. States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  A district court’s conclusions of law are reviewed de novo.  MCC Invs. v. Crystal Props., 451 N.W.2d 243, 246 (Minn. App. 1990), review denied (Minn. Mar. 27, 1990). 

We conclude that the district court did not clearly err by finding that Hoover did not have an impairment that materially limited her ability to work during her employment at PMB.  The record shows that Hoover’s physician, Barbara Seizert, testified that, in her opinion, Hoover was materially limited in her ability to work in 1996, stating that in 1998 Hoover told her that in 1995 and 1996, the fibromyalgia caused Hoover to have concentration and memory problems, as well as constant pain and fatigue.  But the district court found Dr. Seizert’s opinion “suspect” because she had not been Hoover’s physician in 1995 or 1996 and her opinion was not corroborated by Hoover’s medical records from that time.  The district court concluded that Hoover’s contemporaneous medical records, which show that she had four doctor visits from the time of her diagnosis of fibromyalgia in May 1995 to the time her employment was terminated in February 1996, are the “best indication of her condition during the time she was employed at PMB because those records accurately reflect the patient’s history and what took place in the doctor’s office.”  And although the medical records of these visits show that Hoover told her doctors that her job was stressful and that she felt “overwhelmed,” they do not show that Hoover complained of concentration or memory problems or that her fibromyalgia materially limited or affected her ability to work.  In fact, the records show that while Hoover complained of achiness and fatigue, she also reported that she felt better with the medications that she was taking. 

The district court also based its finding that Hoover did not have an impairment that materially limited her ability to work on the testimony of several of Hoover’s co-workers who testified that Hoover “appeared physically well.”  Although Hoover asserts that the district court erred by crediting the testimony of these co-workers because they did not see her frequently, the record shows that one of these co-workers sat in the cubicle adjoining Hoover’s, another saw her a “couple of times a week,” and another saw her weekly.  And we must give due regard to the opportunity of the district court to judge witness credibility.  See Minn. R. Civ. P. 52.01.

Hoover argues further that the district court misapplied the five-factor test of State by Cooper v. Hennepin County, 441 N.W.2d 106 (Minn. 1989).  Under Cooper, when a plaintiff alleges that work is the major life activity in which she is materially impaired, a district court considers “(a) the number and types of jobs from which the impaired individual is disqualified, (b) the geographic area to which the applicant has reasonable access, (c) the applicant’s own job expectations and training, (d) the criteria or qualifications in use generally, and (e) the types of jobs to which the rejection would apply.”  Id. at 111.  In determining that Hoover was not materially limited, the district court stated:

[T]he 5-factors test reaffirmed in Hoover provides the criteria to evaluate whether such an impairment caused a material limitation in the major life activity of working.  This 5-factor test is really about determining Ms. Hoover’s employability.  The evidence shows that Ms. Hoover was not disqualified from a significant number of jobs.  Testimony from the defendant’s vocational expert, John Busse, established that in light of her job expectations and qualifications Ms. Hoover could work in 11 different areas under the Department of Labor classifications with 5400 jobs in Ms. Hoover’s geographical area.  Ms. Hoover has worked successfully as a teller, a personal banker, a loan officer, a manager, a sales person, and a consultant.  She has never lost any other job or been rejected from any other job because of her fibromyalgia.

 

Hoover asserts the district court erred by relying on the opinion of John Busse, PMB’s vocational expert, noting that the supreme court observed in its Hoover decision that it was significant that “Hoover had experience in the loan origination field and no experience in any nonbanking field.”  But although Busse testified that he did not consider it important that Hoover had experience in the loan-origination field and no experience in any nonbanking field in determining that there were 5,400 jobs available to Hoover, the jobs that Busse found Hoover qualified for were all banking-related.[1] 

            The district court’s opinion shows that it considered all five factors of the Cooper test.  Thus, the district court did not err by finding that Hoover failed to establish that she had an impairment that materially limited her ability to work at the time that PMB terminated her employment and that she did not, therefore, establish a prima facie case of disability discrimination.

B.         Admission of Hoover’s Previous-Employment Evidence

Hoover argues that the district court abused its discretion by admitting evidence concerning her previous employment at First Bank Systems (FBS) and that she is entitled to a new trial because the admission of the evidence was “not harmless.”  See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (holding that “[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error”).  Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  In denying Hoover’s motion for a new trial, the district court stated that the FBS evidence, which included testimony from her former supervisor, had been properly admitted at trial because the evidence

established three relevant points: 1) that Hoover had a history of complaining about lack of processor support and thus her complaints about the same to the defendant were generic and unrelated to her fibromyalgia; 2) Hoover had previous compliance problems prior to her fibromyalgia diagnosis and thus, her compliance problems at PMB were not due to her fibromyalgia; and 3) Hoover’s purported ignorance of the compliance law and procedures was not credible since she had been advised previously that she had problems with compliance.

 

Hoover argues first that the evidence is inadmissible under Minn. R. Evid. 608(b), which provides that “specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility . . . may not be proved by extrinsic evidence.”  Because Hoover did not challenge the admissibility of this evidence as improper under rule 608(b) in her in limine brief or at trial, she may not do so on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that generally a reviewing court will not consider theories not argued and considered in the court below).  We conclude nevertheless that rule 608(b) is not implicated because the evidence was admitted not to attack Hoover’s credibility but rather to establish that (1) Hoover complained about having a lack of processor support before her diagnosis of fibromyalgia and that, thus, her need for support and her fibromyalgia were not related; (2) Hoover had compliance problems before her diagnosis of fibromyalgia and that, thus, Hoover’s compliance problems at PMB and her fibromyalgia were not related; and (3) Hoover was aware of the requirements of the lending law and the procedures for complying with them.  Although the evidence may have also reflected on Hoover’s credibility, this does not make its admission an abuse of discretion because rule 608(b) does “not preclude the admission of specific-instances evidence to prove other facts material to the case.”  28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6117, at 85 (1993). 

            Hoover argues next that the FBS evidence was inadmissible under Minn. R. Evid. 404(b), which provides that evidence of prior bad acts is inadmissible to “prove the character of a person in order to show action in conformity therewith.”  Hoover maintains that the fact that she may have acted or failed to act in a particular way while employed by FBS is not admissible to prove that she acted in a similar fashion while employed by PMB.  But the district court did not admit the evidence to show that Hoover’s behavior at PMB was in conformity with her behavior at FBS.  Instead, as we have already noted, the evidence was admitted to show that her complaints of having a lack of processor support and her fibromyalgia were not related, her compliance problems and her fibromyalgia were not related, and Hoover was aware of the requirements of the lending law and the procedures for complying with them.  Rule 404(b) does not, therefore, apply.  See State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) (concluding that rule 404(b) does not apply when evidence is used for a purpose other than to show conduct in conformity).  Thus, we conclude that the district court did not abuse its discretion by admitting evidence of her employment at FBS.

II.        Reasonable Accommodation

            Under Minn. Stat. § 363A.08, subd. 6 (Supp. 2003), employers with the requisite number of employees are required to “make reasonable accommodation to the known disability of a qualified disabled person.”  The parties do not dispute that the statute applies to PMB.  The district court concluded that Hoover’s claim that PMB failed to provide her with a reasonable accommodation failed because (1) Hoover was not disabled and therefore PMB had no duty to make a reasonable accommodation and (2) even if Hoover were disabled, she failed to show that PMB knew of her disability or her requests for a reasonable accommodation.  Hoover argues that the district court’s finding that her team leader at PMB, Cal Eich, was not her supervisor was clearly erroneous and that, therefore, the district court erred by concluding that her alleged requests to Eich for assistance were not notice to the company of her need for a reasonable accommodation. 

Hoover testified that she (1) informed Eich of her fibromyalgia and how it affected her job performance by causing her to take longer to do her job and (2) asked him to talk to McCullough and the branch operations manager to obtain help for her in getting her work processed.  The record shows that Eich testified that Hoover mentioned her fibromyalgia only in casual conversation and that she did not tell him that she needed more support because of the condition, and the district court “found Eich’s testimony to be more credible on this point than Hoover’s.”

We conclude that, in any event, the district court did not clearly err by finding that Eich was not Hoover’s supervisor and thereby concluding that any of Hoover’s alleged requests to him for help were not notice to the company of Hoover’s need for a reasonable accommodation.  The record shows that Hoover understood that if she was seeking a reasonable accommodation, she had to contact either her supervisor or the human-resources department; Hoover testified that she had signed and acknowledged that she read and understood PMB’s policy that “[i]f you have a disability which requires any work modification or accommodation either for your current job or a job for which you wish to apply contact your supervisor or your Human Resources representative.  They will work with you to try to arrange a reasonable accommodation.”  The record further shows that Eich’s responsibilities as team leader involved primarily credit-approval issues and did not involve supervisory functions and that before trial, in both her deposition and employment-discrimination questionnaire, Hoover identified McCullough, not Eich, as her supervisor. 

At trial, Hoover sought to testify that she did not go to the human-resources department for assistance because “Eich said that if she did go to personnel that Connie McCullough would end her career,” offering this statement as a party admission under Minn. R. Evid. 801(d).  Hoover argues that the district court abused its discretion by ruling that the statement could not be deemed a party admission.  The district court found that Eich was not Hoover’s supervisor and would not have been speaking as PMB’s agent to a matter that was within the scope of his employment.  A court has “broad discretion” to admit or exclude evidence, and its rulings will not be reversed absent an error of law or an abuse of discretion.  Kroning, 567 N.W.2d at 45-46.

An admission is not hearsay and is admissible if offered against a party and made by the party’s agent or servant concerning a matter within the scope of the agency or employment.  Minn. R. Evid. 801(d)(2)(D); see alsoMinn. R. Evid. 801(d)(2)(D) 1989 comm. cmt. (stating that rule 801(d)(2)(D) rejects the strict agency theory in determining whether or not the statement is admissible and requires only that the statement be made concerning a matter within the scope of the agency or employment).  And Hoover notes that there is no requirement that admissions under rule 801(d)(2)(D) be made on personal knowledge or that there is any guarantee of trustworthiness.  See Minn. R. Evid. 801(d)(2)(D) 1989 comm. cmt. (providing that “[t]he requirements of trustworthiness, firsthand knowledge, or rules against opinion which may be applicable in determining whether or not a hearsay statement should be admissible do not apply when dealing with party admissions”). 

            Because Eich was a team leader and had the responsibility of counseling his team members on “organizational issues,” Hoover asserts that Eich’s statement was made as PMB’s agent and the statement concerned a matter within the scope of his employment.  And Hoover asserts that the statement is relevant because “it shows [that the] company culture at [PMB’s] workplace is one where retaliation is expected, and employees are intimidated from asserting themselves and their rights.”  Thus, Hoover argues, the statement is admissible, and its exclusion is reversible error.  See Minn. R. Evid. 103 (a)(2) (providing that “[e]rror may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked”); White v. Honeywell, Inc., 141 F.3d 1270, 1277 (8th Cir. 1998) (holding in hostile-environment claim that the district court abused its discretion and committed reversible error by excluding an allegedly discriminatory statement by plaintiff’s supervisor).

            But (1) PMB’s policy required that reasonable-accommodation requests must be made to either a supervisor or a human-resources representative and (2) as we have already determined, the record supports the district court’s conclusion that Eich was not Hoover’s supervisor.  Because Eich was not Hoover’s supervisor or a human-resources representative, the district court did not err by concluding that Eich did not have sufficient involvement with the reasonable-accommodation process to put it within the scope of his employment and to establish agency under rule 801(d)(2)(d).  See Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001) (providing that “[s]ignificant involvement, either as advisor or other participant in a process leading to a challenged decision, may be sufficient to establish agency under [rule] 801(d)(2)(d)”). 

III.       Reprisal

            A prima facie case of reprisal consists of “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).  A reprisal claim is analyzed under the McDonnell Douglas burden-shifting test.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  The district court concluded that Hoover failed to establish a prima facie case of reprisal because (1) she did not engage in an activity protected under the MHRA and (2) there was no causal connection between her alleged statutorily protected activity and termination of her employment by PMB.  Hoover argues that the district court clearly erred by finding that she did not engage in statutorily protected activity.  When an employee specifically connects a request for work assistance to a claimed disability, the employee engages in protected activity under the MHRA.  Hoover, 632 N.W.2d at 548. 

            The district court concluded that Hoover’s argument that she engaged in protected activity by requesting the reasonable accommodation of more loan-processing support failed because Hoover never specifically connected her requests for loan-processor support to her fibromyalgia.  The record shows that McCullough testified that (1) at no time, did she understand that fibromyalgia affected Hoover’s ability to do her job and (2) Hoover never told her that Hoover needed loan-processor support because of the state of Hoover’s health.  See Minn. R. Civ. P. 52.01 (providing that in “actions tried upon the facts without a jury . . . due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”). 

            In her motion for a new trial, Hoover argued that the district court failed to “properly identify the protected activity which underlays Plaintiff’s reprisal claim” but did not identify the protected activity that she asserts forms the basis of her claim.  In its order denying Hoover’s motion for a new trial, the district court, however, rejected Hoover’s claim “[d]uring oral argument . . . that the protected activity at issue was a statement that Ms. Hoover allegedly made to Connie McCullough that ‘she was going to HR.’”  Hoover asserts that the district court erred, arguing that by telling McCullough on February 7, 1996, that she was going to the human-resources department to talk about her need for accommodation and about the lack of support she was receiving, Hoover was seeking a reasonable accommodation for her fibromyalgia, an activity protected under the MHRA.  But after noting that it had found that Hoover had failed to show that she specifically connected her need for processor support to her fibromyalgia, the district court then determined that

general complaints of unfair treatment are not enough to satisfy the test of “opposing a practice.”  Ms. Hoover must show that she made a specific accusation of discrimination before her termination.  Deitrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 326-27 (Minn. 1995).  In this case, Ms. Hoover admitted that Connie McCullough never told her not to go to HR and as a matter of fact, Ms. Hoover never did report anything to HR.  Ms. Hoover alleges that she left a message with the HR office in Des Moines, but that message only said “call me.”  This is not “opposing a practice” or engaging in a “protected activity.”

 

            Hoover argues that when the district court denied her motion for a new trial, it committed “reversible error” by determining that to show that she engaged in the protected activity of opposing a practice prohibited by the MHRA, Hoover had to make a specific accusation of discrimination; Hoover claims instead that, under the supreme court’s Hoover decision, “the law of this case is that seeking an accommodation is protected activity.”  In Hoover, the supreme court stated “when [an] employee specifically ties a request for work assistance to a disability, the employee engages in protected activity under the MHRA.”  632 N.W.2d at 548. 

But as we have concluded, the record supports the district court’s finding that Hoover did not specifically tie her requests for processor support to her fibromyalgia.  Thus, because the district court concluded that Hoover’s claim that she engaged in a protected activity by requesting a reasonable accommodation failed, we conclude that the district court did not commit “reversible error”by then analyzing, in the alternative, whether Hoover established that, by making her statement that “she was going to HR,” she had engaged in protected activity by opposing a practice forbidden by the MHRA.  See Minn. Stat. § 363A.15 (Supp. 2003) (providing that an employer may not intentionally engage in reprisal against an employee because the employee “[o]pposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter).  The district court noted that opposing a discriminatory practice cannot consist simply of general complaints of unfair treatment and then concluded that Hoover did not engage in protected activity by telling McCullough that “she was going to HR” and leaving a message with the human-resources department stating, “Call me.”  See Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 323, 326-27 (Minn. 1995) (finding that protected activity occurred only upon filing a claim under the MHRA when evidence showed that employee’s previous complaints of unfair treatment did not allege discrimination).  This was not error.

Further, Hoover does not argue that the district court erred by concluding that (1) Hoover failed to establish a prima facie case of reprisal because she did not show a causal connection between Hoover’s alleged statutorily protected activity and termination of her employment by PMB or (2) that even if Hoover had established a prima facie case of reprisal, her claim would fail because she could not show that the proffered reason for her termination was pretext for retaliation.  Thus, Hoover has waived the right to seek review of the district court’s alternative bases for rejecting Hoover’s reprisal claim.  See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (determining issues not briefed on appeal are waived).

IV.       Nondiscriminatory Reason for Discharge; Pretext

            The district court concluded that even if Hoover had established prima facie cases of discriminatory discharge and reprisal, her claims would still fail because PMB had established a legitimate, nondiscriminatory reason for discharging Hoover and Hoover did not establish that the reason was a pretext for discrimination.  See Hoover, 632 N.W.2d at 534, 548-49 (stating that if plaintiff makes out prima facie case of discriminatory discharge or reprisal, burden of production shifts to defendant who must produce evidence showing legitimate, nondiscriminatory reason for discharge, and if defendant provides such reason, presumption of discrimination disappears and plaintiff then has burden of establishing that employer’s given reason is pretext for discrimination).  The district court found that PMB had a legitimate, nondiscriminatory reason for terminating Hoover’s employment because “the evidence established overwhelmingly that Hoover’s violations of policies, rules, and regulations were serious, and of a different kind and character from those of other originators.” 

The record shows that on February 9, 1996, McCullough and McWilliams met with Hoover to discuss the audit of Hoover’s files and that at the meeting, McCullough asked Hoover to explain her “application process.”  Hoover testified that she told McCullough and McWilliams that she sometimes got applications that she could not work on right away and if the applications were not dated, she would date them the day that she worked on them and not the day that they actually came in.  After the meeting, McCullough and McWilliams sought the advice of PMB’s human-resources counsel and made the decision to terminate Hoover’s employment.  Hoover does not dispute that her misdating of applications was a regulatory violation.  But she argues that the district court erred by finding that the evidence established that her files evidenced compliance issues that were different from, and more severe than, the compliance issues that were apparent in other loan originators’ files.[2] 

In its March 2003 order dismissing Hoover’s claims, the district court found that there was no evidence that loan originators other than Hoover (1) had customers sign blank applications, (2) held files, or (3) entered dates on loan applications different from the dates that they were received to make it appear, wrongly, that the Good Faith Estimate and Truth in Lending forms had been provided on time.  And in its order denying Hoover’s motion for a new trial, the district court stated that

[a]fter reviewing a voluminous amount of evidence relating to this issue, the court could only come to one conclusion – Hoover’s violations were serious and of a different kind and character than those of the other originators.  Hoover’s violations involved blatant and admitted manipulations of dates to make files appear compliant.  Hoover never showed that the other originators engaged in similar date manipulations or that management was aware of such manipulations by other originators.  Other originators did not obtain signed blank applications, nor did they hold files.  Other originators did not date loan applications to make them appear to be compliant with requirements for timely submission of Good Faith Estimate and Truth in Lending forms. 

 

Hoover notes that office-wide audits done in April and July showed that most of the files in the office had compliance violations and asserts that she was treated differently from, and more severely than, similarly situated originators in the office because (1) no other originators “had their files scrutinized as closely” as Hoover’s, (2) the violations in Hoover’s files were characterized by PMB management as considerably more serious than they actually were, and (3) none of the other originators with violations was disciplined. 

The district court found, however, that while the April and July audits showed that other originators’ files had compliance problems, the audits did not show that other loan originators intentionally manipulated the dates on their files as did Hoover.  And the district court further found that Hoover’s files were the only files that any loan processors complained about and that it was these complaints that led to the special audit of Hoover’s files and, ultimately to Hoover’s termination.

We conclude that the record supports the district court’s finding that Hoover’s violations were “serious, and of a different kind and character from those of the other originators.”  Hoover testified that she told McCullough and McWilliams that she would sometimes receive applications that she would not work on right away and that if they were not dated, she would date them the day that she worked on them, not the day that they actually came in.  The record further shows that other originators testified that they did not put dates on applications that were different from the days that they actually received them in order to make it appear that the Good Faith Estimate and Truth in Lending forms, which under federal law had to be provided within three days after application, had been provided on time. 

And because we conclude that (1) the district court’s findings are supported by the record and (2) there are no errors of law, we also conclude that the district court did not abuse its discretion by denying Hoover’s motion for a new trial.  SeeHalla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990) (concluding that the decision to deny a motion for a new trial rests in the district court’s discretion); ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992) (stating that “[o]n appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict”). 

Affirmed.

 



[1] The job classifications that Busse stated that Hoover would be able to work in were loan officer, assistant branch manager, loan-review analyst, credit analyst, mortgage-loan interviewer, mortgage-loan underwriter, bonding agent, letter-of-credit document examiner, financial-aid counselor, operations officer, and credit analyst.

[2] The district court found, and the parties do not dispute, that the loan process at PMB required that (1) for applications, the loan would have to be entered into the PMB system within 24 hours; (2) for applications received in person, the proper way for an originator to date the application is on the date of the face-to-face meeting, and for applications received by mail, the proper way to date it is when it was actually received; (3) documents that, under federal law, had to be provided within three days of application included the Good Faith Estimate and the Truth in Lending forms; (4) after receiving an application, the originator is responsible for promptly collecting a client’s credit history and report, an appraisal, tax returns, and employment verification; (5) written consent of a customer was legally required to obtain a credit report; (6) written authorization by a customer was required to “lock a loan” for the interest rate and a loan should not be “locked” before an application is received; (7) PMB required originators to make adverse credit decisions within 72 hours after completion of an application; and (8) failure to comply with legal requirements may subject PMB to consequences such as cease-and-desist orders, lawsuits, adverse publicity, and criminal prosecution.