This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Kelly Renee Neumann,


AT&T Communications, Inc.,
a Delaware Corporation,


Filed September 14, 2004

Reversed and remanded

Stoneburner, Judge


Dakota County District Court

File No. C5007894


Michael M. Bader, Kampmeyer, Kronschnabel, Bader & Daly, Suite 1500, 386 North Wabasha Street, St. Paul, MN 55102 (for appellant)


R. Scott Davies, Steven W. Wilson, Jason M. Hedican, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)


Charles A. Bird, Van P. Jacobsen, Bird & Jacobsen, 305 Ironwood Square, 300 Third Avenue Southeast, Rochester, MN 55904 (Amicus Curiae for Minnesota Trial Lawyers Association)


            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Stoneburner, Judge.



U N P U B L I S H E D  O P I N I O N




            Appellant Kelly Neumann challenges summary judgment granted to respondent AT&T Communications, Inc., asserting that the district court erred by determining that there are no genuine issues of material fact and that AT&T did not violate Minn. Stat.     § 176.82, subd. 2 (2002), when it refused to provide her with continued employment after a work-related injury.  We reverse and remand.



            Appellant Kelly Neumann injured her back in a work-related accident during her employment with respondent AT&T Communications, Inc. (AT&T).  Because Neumann had a pre-existing back injury, AT&T classified her condition for purposes of its ERISA-governed disability plan (the plan) as an “accident” only for the day of the accident and as a “sickness” for the remaining time she was unable to work.  Neumann, however, received workers’ compensation benefits during the times relevant to this appeal.

            Neumann challenged AT&T’s determination that she should receive “sickness” rather than “accident” benefits under the plan in a lawsuit that alleged, among other claims, retaliatory discharge for seeking workers’ compensation benefits in violation of Minn. Stat. § 176.82, subd. 1 (2002), and refusal to offer continued employment in violation of Minn. Stat. § 176.82, subd. 2 (2002).  The case was removed to federal district court, which determined that it had exclusive jurisdiction over all claims related to the plan.  The federal district court granted summary judgment to AT&T on all of Neumann’s claims except the claim that AT&T violated Minn. Stat. § 176.82, subd. 2.  That claim was remanded to the state district court.

            On remand, AT&T moved the district court for summary judgment.  The district court granted summary judgment to AT&T based on Neumann’s failure “to present any evidence that [AT&T’s] actions were unreasonable” and her inability “to come up with a plan that would return her to work.”  This appeal followed.  The only issue before this court is whether the district court erred by granting summary judgment to AT&T on Neumann’s claim that it violated Minn. Stat. § 176.82, subd. 2.[1]



            On an appeal from summary judgment, the reviewing court asks whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The reviewing court views the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The reviewing court does not defer to the trial court’s decision on a pure question of law.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

            “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.

            Neumann asserts that the district court failed to view the evidence in the light most favorable to her claim and misapplied Minn. Stat. § 176.82, subd. 2 (2002), which provides in relevant part:

An employer who, without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee’s physical limitations shall be liable in a civil action for one year’s wages. . . . up to a maximum of $15,000. . . .  In determining the availability of employment, . . . written rules promulgated by the employer with respect to seniority or the provisions or any collective bargaining agreement shall govern. . . .


Neumann was terminated from her employment with AT&T 52 weeks after she went on medical leave because she was unable to return to her prior job under AT&T’s unwritten return-to-work policy.[2]  AT&T notified Neumann several times during her medical leave that if she were not able to return to work after receiving 52 weeks of disability benefits, her employment would be terminated.  This meant that Neumann had to be able to return to work by October 12, 1999.  The unwritten return-to-work policy for the department in which Neumann worked (customer sales and service) was described to Neumann’s Qualified Rehabilitation Consultant (QRC), who was working with Neumann and AT&T regarding Neumann’s return to work, as requiring that an employee returning from medical leave must be able return to full-time employment within 30 days of beginning employment at reduced hours.  But a reduced-hours work schedule could be extended by one or two weeks in “rare” circumstances.

            On September 9, 1999, Neumann’s QRC faxed a return-to-work proposal to AT&T under which Neumann would begin work on September 20, 1999, and would work four hours per day, three days a week for two weeks, four hours per day, four days a week for the third week, and four hours per day, all five days of the fourth week.  Neumann’s doctor would then reevaluate her regarding her ability to return to full-time employment.  Neumann planned to return to work on this schedule.  On the morning of September 20, 1999, the day Neumann was to begin working, AT&T informed the QRC that in addition to the unwritten policy about returning to full time employment within 30 days of beginning at reduced work hours, AT&T also had an unwritten policy that the employee’s reduced work hours must be a minimum of four hours per day, five days per week.  This was the first notice that the QRC or Neumann had about a policy regarding minimum reduced hours.  Neumann was not able to meet the requirements of this policy within the time period allowed.         

            Neumann argues that the district court erroneously placed the burden on her to show that her termination was without reasonable cause and to, as the district court stated, “come up with a plan to return to work.”  Neumann asserts that Minn. Stat. § 176.82, subd. 2, should be interpreted to require the employer, not the employee, to establish reasonable cause to terminate and to locate and offer a suitable position within its entire business, not just an available opening in the employee’s prior position.  Neumann never inquired about working in another department, and AT&T never discussed with Neumann or her QRC the option of work in another department.

            The issue of who has the burden of proof in a claim under Minn. Stat. § 176.82, subd. 2, was not briefed, argued, or decided in the district court.  And there are no cases construing Minn. Stat. § 176.82, subd. 2.[3]  This court will generally not consider matters not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because we are remanding this case to the district court, the parties will have an opportunity to address this issue, and we decline to address it at this time.

            Neumann argues that the district court improperly viewed the evidence in favor of AT&T on the summary-judgment motion when the court concluded that AT&T’s unwritten return to work policy “was in effect for legitimate business reasons” providing reasonable cause for her termination when she could not meet the policy.  And Neumann argues that even if AT&T’s 30-day return-to-work policy is legitimate, it does not preclude the gradual return to work that she proposed. The district court stated that AT&T’s policy of requiring return to full-time employment after 30 days on a reduced work schedule is “in effect for legitimate business reasons, and does not appear to be in any way discriminatory towards employees who receive workers’ compensation.  It is a reasonable policy.”  Although this appears to be a finding of fact, inappropriate on summary judgment, we are unable to find, and Neumann has not called our attention to, any evidence in the record that raises a fact question about the legitimacy of this policy as testified to by AT&T’s supervisors, therefore we conclude that the district court did not err by determining the legitimacy of the policy on summary judgment.

            The district court further states that “[Neumann] was unable to come back to work under the foregoing terms.  She therefore did not qualify for a return from [sic] work under [AT&T’s] policy.”  But the record at this stage of the proceedings demonstrates that it was the minimum placed on reduced-work hours that prevented Neumann’s return to work rather than an inability to return to full-time work after 30 days of reduced-hour work.  And the district court did not address this portion of AT&T’s unwritten policy that was only disclosed on the day that Neumann intended to return to work.  Although there is testimony in the record that such a policy existed prior to the date it was disclosed to Neumann’s QRC, there is no evidence that specifically addresses the reason for this policy or explains why it was not disclosed earlier to Neumann or her QRC.  We conclude that there are genuine issues of material fact about when this policy came into existence and whether it is reasonable.  We therefore reverse summary judgment granted to AT&T and remand to the district court for further proceedings.       

            Reversed and remanded.

[1] Neumann’s brief on appeal argues a number of issues related to the plan.  Her attorney confirmed at oral argument that this court has no jurisdiction to address claims that require construction of the plan, so none of those issues is addressed in this opinion.  Furthermore, because Neumann’s claim of spoliation relates only to her claim that she was improperly classified under the plan, it is not relevant to the issue on appeal to this court and we do not address it.

[2] The 52-week limitation is the subject of federal litigation and is not an issue before this court.


[3] Claims under Minn. Stat. § 176.82, subd. 1, alleging retaliatory discharge for seeking workers’ compensation benefits are analyzed under the three-step burden-shifting formula articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973), in which the employee must establish a prima facie case after which the burden shifts to the employer to articulate legitimate reasons for its actions, and, if it does, the burden shifts back to the employee to establish that the proffered reasons are pretextual.  Randall v. Northern Milk Prods., Inc., 519 N.W.2d 456, 459 (Minn. App. 1994).