This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Kevin McVicker,





Minnetonka Independent

School District No. 276,



Filed November 22, 2005


Hudson, Judge


Hennepin County District Court

File No. EM 04-4372


Douglas A. Hedin, Elizabeth A. Glidden, Hedin Goldberg & Glidden, P.A., 250 Tallmadge Building, 1219 Marquette Avenue South, Minneapolis, Minnesota 55403 (for appellant)


Nell E. Mathews, Peter Gray, Amy M. Moore, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, Minnesota 55402 (for respondent)


            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


This is an appeal of summary judgment dismissing appellant’s action alleging that the termination of his employment violated the Whistleblower Act, Minn. Stat. § 181.932 and Minnesota Occupational Safety and Health Act of 1973, Minn. Stat. § 182.669, and was in reprisal for his complaints about health and safety issues.  Because there was sufficient evidence to support the district court’s conclusion that respondent articulated legitimate and nondiscriminatory reasons for terminating appellant’s employment, and because appellant did not meet his burden of proving pretext, we affirm. 



            On April 16, 2003, respondent school district hired appellant Kevin McVicker as a custodian.  Like all new custodians, appellant had an initial probationary period of six months. 

            Early on, appellant’s supervisor received complaints from teachers that appellant was not cleaning the whiteboards.  Appellant claimed he was not aware that he was supposed to clean the boards and did clean them from that time forward.  Apart from this incident, appellant received no other written or oral warnings concerning his work performance.

            In September 2003, respondent instituted the use of a KaiVac machine, a pressure washer used to clean restroom surfaces.  Throughout the month of September, a number of custodians complained to respondent about the KaiVac machine; and specifically complained about a strong chemical odor, inadequate ventilation, and possible missing parts.  Appellant began operating the KaiVac machine in mid-September and was one of at least four custodians to verbally complain to supervisors about the machine.  Appellant was not the first custodian to complain and was not the only probationary employee to do so.

            Shortly before September 29, appellant’s supervisors discussed whether appellant should pass his probationary period.  Respondent decided to terminate appellant’s employment because he was not meeting their expectations for work performance and attitude.  On September 29, respondent held a meeting with the custodians to address the custodians’ concerns regarding the KaiVac machine.  At that meeting, appellant again voiced his health and safety concerns.  On September 30, respondent terminated appellant’s employment.  Appellant’s termination came approximately two weeks before the end of his probationary period. 

In March 2004, appellant commenced this suit alleging that respondent violated both Minn. Stat. § 181.932, subd. 1(a) (2002) (Whistleblower Act), which prohibits an employer from discharging or otherwise discriminating against an employee because “the employee . . .  in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer,” and Minn. Stat. § 182.669 (2002) (MOSHA), which provides relief for discriminatory acts resulting from an employee’s exercise of his rights authorized under the Act.

Respondent moved for summary judgment asserting that appellant failed to (1) establish a prima facie case of retaliatory discharge, and (2) prove that the nondiscriminatory reasons proffered by respondent for termination were merely pretext for retaliatory discharge.  The district court granted the summary judgment motion, concluding appellant had failed to prove pretext.  This appeal follows. 


On appeal from summary judgment, this court determines (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).  A district court should grant a motion for summary judgment only “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A reviewing court views the evidence “in the light most favorable to the party against whom judgment was granted.”  Id.  A genuine issue of material fact must be more than evidence that “merely creates a metaphysical doubt as to a factual issue,” it must be “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). 



Appellant argues that the district court erred in its application of the law.  Appellant’s memorandum of law to the district court opposing summary judgment followed a strict McDonnell Douglas analysis.  See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  But here on appeal, appellant argues that it was error for the district court to apply the McDonnell Douglas test, opting instead for a “direct evidence” test discussed in Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986) (citing Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. 1982)).  

Generally, this court will not consider matters which were not argued and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Regardless, it is clear that Minnesota courts apply the McDonnell Douglas analysis to whistleblower claims in which the plaintiff does not produce any direct evidence of discrimination, as in this case, and that is the analysis we follow here.  See, e.g., Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 572 (Minn. 1987)), review denied (Minn. May 15, 2001).



Both parties contend that the district court erred in its application of the McDonnell Douglas test.

Under the shifting burdens of the McDonnell Douglas test, the employee first has the burden of proof to establish a prima facie case of retaliatory discharge.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).  A prima facie case of retaliatory discharge is established by showing that (1) the employee was engaged in statutorily protected activity, (2) an adverse employment action was taken against the employee, and (3) there was a causal connection between the two.  Id.  Next, the burden shifts to the employer to articulate a legitimate, nonretaliatory justification for its action.  Cokley, 623 N.W.2d at 630.  Finally, the burden shifts back to the employee to demonstrate that the employer’s justification was pretext for discriminatory action.  Id. 

Without analysis, the district court assumed arguendo for purposes of respondent’s summary judgment motion that appellant had engaged in protected activity and, therefore, established a prima facie case of retaliatory discharge.

Appellant argues that the district court erred in its determination that respondent articulated legitimate and nondiscriminatory reasons for the termination.

A.  Employer’s evidence of legitimate, nondiscriminatory reasons for the adverse action

Establishing a prima facie case “creates a presumption that the employer unlawfully discriminated against the employee.”  Sigurdson, 386 N.W.2d at 720.  To overcome this presumption, the district court “should look for evidence presented by the employer that its actions were related to some legitimate business purpose.”  Id. (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949 (1978)).

Although respondent did not formally document its concerns with appellant’s work performance, there was sufficient evidence in the record that appellant’s work performance and attitude were unacceptable to respondent.  Specifically, respondent proffered evidence that other custodians and teachers had complained about appellant’s poor work.  One teacher informed appellant’s supervisors that appellant was a “negative cheerleader” and that on numerous occasions appellant spoke negatively about respondent, the buildings and the grounds, as well as the custodial equipment.  Other supervisors noted that appellant was often absent for considerable periods of time from areas where he was supposed to be working.  This record supports the district court’s conclusion that respondent met its burden to articulate legitimate, nonretaliatory reasons for discharging appellant. 

B.  Employee’s proof of pretext

A plaintiff may establish pretext “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.”  Hamblin v. Alliant Techsystems, Inc., 636 N.W.2d 150, 153 (Minn. App. 2001) (quoting Sigurdson, 386 N.W.2d at 720).

Appellant argues that the short length of time between the protected activity and the adverse action is the most decisive proof of retaliation.  Where an adverse action occurs within a few days of a protected activity, the proof of a causal connection is particularly strong and, in some cases, may even create a genuine issue of fact.  See Hubbard, 330 N.W.2d at 445–46 (noting that timing may be sufficient to satisfy causation element of prima facie case).

Here, even though respondent terminated appellant’s employment the day after he voiced concerns at a meeting called by respondent to address problems with the KaiVac machine, the proximity of the events does not raise a genuine issue of material fact.  Appellant’s probationary period was quickly coming to an end, and respondent was naturally making a determination whether the district should retain appellant, extend his probation, or terminate his employment.  Further, respondent provided undisputed evidence that the decision to terminate appellant was made prior to the September 29th meeting and was based on work performance issues unrelated to appellant’s safety complaints.  On this record, the district court did not err in determining that the timing of appellant’s termination was not sufficient to establish that he was fired for pretextual reasons.

Appellant also argues that his discharge was pretextual as evidenced by the fact that he was not given any written or oral warnings that his performance was not meeting his employer’s expectations.  Summary judgment is appropriately upheld when appellant’s allegations of discriminatory pretext are merely “conclusionary or unsupported by evidence in the record.”  Albertson v. FMC Corp., 437 N.W.2d 113, 117 (Minn. App. 1989) (noting that the “mere recitation of statistics, without some evidence tending to show that they indicate a meaningful phenomenon, does not show that the statistics are probative”). 

Here appellant asserts that, with the exception of one isolated instance, respondent never informed him of any deficiencies in his work and that he was surprised when his supervisors testified in their depositions about problems with his work.  Respondent admitted there was no written documentation of appellant’s work performance or behavior issues, but respondent explained that it did not normally document probationary employee problems in writing.  While it might have been better practice for respondent to document its concerns with appellant’s work performance—irrespective of his probationary status—respondent provided sufficient evidence from appellant’s supervisors and co-workers of appellant’s poor work performance and negative attitude.  Moreover, as respondent aptly notes, during his probationary period, appellant was an at-will employee who could be discharged for any nondiscriminatory or nonretaliatory reason, or no reason at all.  Similarly, as a probationary employee, he was not subject to the applicable collective bargaining agreement.  Thus, the disciplinary procedures of the collective bargaining agreement were not applicable to appellant.  We conclude that the mere fact that appellant did not receive formal discipline before his termination does not render the reasons for his termination pretextual.[1]

Here, even when viewed in the light most favorable to the appellant, appellant has not provided sufficient evidence to create a genuine issue of material fact regarding the grounds for his termination from employment.  Because appellant did not meet his burden, the district court did not err in granting summary judgment. 


[1] For similar reasons, appellant’s argument that he established pretext because he was treated differently than other similarly situated employees, also fails.  One of the employees appellant uses for comparison is his former supervisor.  But his former supervisor was not similarly situated as he was not a probationary employee.  We further note that a fellow probationary custodian who, like appellant, complained about the KaiVac machine had his probationary period extended.  These facts support respondent’s claim that appellant was terminated because of his poor work performance, not his protected activity.