This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-239

 

Mosen Agamawi,

Appellant,

 

vs.

 

United Defense, L.P., n/k/a

BAE Systems Land & Armaments L.P.,

Respondent.

 

Filed February 28, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. EM 02-11010

 

 

Mosen Agamawi, 18860 85th Place North, Maple Grove, MN 55311 (pro se appellant)

 

Robert Zeglovitch, Law Offices of Robert Zeglovitch, 120 South 6th Street, Suite 2400, Minneapolis, MN 55402 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Klaphake, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant appeals from an order denying his motion for a new trial or amended findings, challenging (1) the denial of his motion to amend his complaint to add claims of defamation and discrimination based on religion, (2) the denial of his motion for a continuance based on his medical condition, and (3) the district court’s findings with respect to the credibility of respondent’s witnesses.  Because the district court did not abuse its discretion by denying appellant’s motion to amend or his request for a continuance, and because the district court did not clearly err in finding respondent’s witnesses to be credible, we affirm.

FACTS

            Appellant Mosen Agamawi is of Egyptian national origin, and he follows the Islamic religious faith.  Appellant worked as a software engineer for respondent United Defense, L.P., from August 1999 until November 2001, when respondent terminated his employment.  Appellant received a favorable performance review in August 2000, after which respondent contends that appellant’s job performance deteriorated.  According to respondent, appellant’s work on his first significant assignment was untimely, incomplete, and technically inaccurate.  When assigned to devise a plan for designing an application within 200 hours, appellant produced an unusable plan with a budget of 1,440 hours.  He failed to complete another simple project, taking four weeks to present minimal and incomplete work product while another engineer presented appropriate work product in a matter of hours. 

            In April 2001, appellant’s supervisor, Susan Greimel, gave appellant a detailed performance appraisal, informing appellant that his performance was below expectations and outlining a plan for his next project.  Appellant did not complete the next project by its due date.  The work he finally submitted was incomplete, focusing on unnecessary details and lacking in pertinent information.  Greimel told appellant to address the deficiencies in his work before implementation, but he ignored that instruction and went ahead with implementation.  Appellant was then placed on probation.  He was informed in detail of his performance shortcomings and notified that further disciplinary action would be taken unless he demonstrated improvement within 30 days. 

            Appellant failed to present satisfactory work product on the task even after receiving feedback; he ultimately failed to complete the task.  Thereafter, appellant was assigned to the Roger Ward Test task, an assignment that he was unhappy with.  Respondent extended his probation on October 29, at which time appellant was given feedback about areas in which his performance needed improvement and told that his probationary status would be evaluated in light of his performance on the Roger Ward Test task. 

            Appellant complained to the human-resources manager, Dennis Mixdorf, about not being treated fairly and requested a technical review of his work.  Mixdorf told appellant that his work on the Roger Ward Test task would be evaluated.  Appellant contacted Mixdorf a few days later, refusing to work on the Roger Ward Test task and declaring that he would work on his previously assigned task instead.  Appellant proceeded to improperly charge time for his unauthorized work on the previous task to the charge number for the Roger Ward Test task, despite being specifically told not to do so. 

            Appellant then met with the technical director and deputy technical director of his department, alleging unfair treatment and requesting that the director change a performance ranking given in November 2000.  The director refused and directed appellant to work on the Roger Ward Test task.  Appellant did not complain of discrimination at that meeting.  The three had a follow-up meeting on November 20, during which appellant refused to work on the Roger Ward Test task and alleged that he had been discriminated against because he had been treated unfairly.  Appellant did not elaborate on his allegation. 

            On November 21, the director, deputy director, and Mixdorf met and concluded that appellant’s employment should be terminated based on his refusal to work on the Roger Ward Test task, his history of performance problems, and his improper billing.  The decision was discussed and finalized at a meeting with respondent’s counsel on November 26. 

            After the decision was made, but before appellant was notified, appellant sent the deputy director an e-mail, alleging that he had been discriminated against on the basis of his “original heritage.”  Appellant did not provide any new information in that complaint.  Appellant was terminated the next day.

            Appellant filed suit in June 2002, alleging race discrimination and reprisal under the Minnesota Human Rights Act.  The court entered a scheduling order that established a discovery deadline of November 19, 2002, ordered that all motions be heard by February 17, 2003, and set trial in June 2003. 

            Appellant moved to amend his complaint to request a jury trial or an advisory jury and to include claims for defamation and discrimination based on national origin and religion.  The district court granted the motion to add a claim for discrimination based on national origin because respondent agreed that adding the claim would not require any additional discovery.[1]  But the court denied the request for a jury trial, noting that Human Rights Act claims are to be decided by a judge.  The court also denied the request for an advisory jury, reasoning that the case was not particularly novel or complex and that involvement of an advisory jury would necessitate extra time and expense. 

            The district court denied appellant’s motion to add claims for defamation and discrimination on the basis of religion on the grounds that the motion was “brought several months after the close of discovery and three days after the motion deadline as established by the Scheduling Order” and that extensive discovery had already taken place.  Noting that a proposed amendment that cannot be maintained should be denied, the district court concluded that appellant’s “proposed claim for defamation is insufficient as a matter of law” because appellant admitted that “the alleged defamatory statements [had] not been published.”  The district court stated that appellant’s argument did “not justify prejudicing [respondent] by adding claims at this stage of the proceedings.” 

            Appellant subsequently sent the court a letter that stated that his defamation claim was not insufficient for lack of publication because he had been involved in a job interview after the February 20 hearing, during which he felt compelled to disclose respondent’s defamatory allegations of incompetence.  The letter was filed on March 5, one day after the district court signed its order denying appellant’s motion to add the defamation claim.  Appellant asked the court to clarify whether the information in his letter was considered, and the court responded with a supplemental order, explaining that the court did not consider the post-hearing submissions because they were untimely and “the record [was] closed as of the date of the hearing.” 

            On May 7, appellant advised the court that his attorney had withdrawn, stating that he and his attorney had “mutually agreed that it is to [appellant’s] best interest to represent [himself] in the coming trial.”  Appellant requested a continuance to allow him to prepare, but the court denied that request, citing Minn. R. Gen. Pract. 105 for the proposition that “[w]ithdrawal of counsel [does] not create any right to continuance of the trial scheduled in this matter.” 

            Appellant failed to meet with respondent to discuss exhibits or witnesses, despite respondent’s repeated reminders and attempts to discuss the pretrial issues with him both before and after the court’s May 19 deadline.  As a result of appellant’s failure to disclose any witnesses or provide an exhibit list, the court prohibited appellant from calling any witness other than himself and from introducing any exhibits not disclosed before trial. 

            As trial approached, appellant repeatedly requested continuances.  The court refused to delay the matter on the basis of appellant’s pro se status, but the court agreed with respondent’s suggestion that an additional meeting would be helpful and ordered an additional pretrial conference.[2]  Thereafter, beginning May 13, 2003, appellant argued for a continuance based on his medical situation.  He submitted letters from his medical providers in support of his request for a continuance, but his request was denied.  He renewed the request at the pretrial hearing.  In its denial of the motion, the district court addressed the deficiencies in the request. 

            On June 2, 2003, appellant again asked the court to reconsider the continuance, providing additional letters from his physicians.  The district court denied the request, finding that appellant had not demonstrated a sufficient basis for granting a continuance and concluding that appellant had not shown good cause to amend the scheduling order.  The court noted in part that appellant’s doctors had provided “general statements which do not support a continuance,” that “[appellant’s] physician suggests that [appellant’s] condition may be better in three months but provides no rationale for why this might be the case,” and that “[n]either of [appellant’s] doctors expresses the opinion that a continuance is required, points to the existence of a new medical condition or emergency, opines that [appellant] is medically unable to proceed to trial, or asserts that [appellant’s] health would be endangered if the trial were to proceed as scheduled.” 

            Trial occurred on June 5 and 6, but was continued when appellant was hospitalized on June 8 and 9.  Because appellant’s physician indicated that appellant should be excused from work until June 22, the court continued the trial until June 23.  On June 20, the court received another request for continuance, in which appellant’s physician indicated that appellant could not proceed with trial until August 1.  The court continued the trial and eventually ordered that the trial resume on September 8.  On August 7, appellant requested another continuance because of planned surgery.  The court continued the matter indefinitely and ordered appellant to update the court and opposing counsel about his medical condition no later than October 15, 2003.  After appellant requested that the trial resume in November 2003, the court postponed the trial until March 2004, when it finally reconvened. 

            The district court found that appellant had not met his burden in proving any of his claims and dismissed with prejudice appellant’s claims for race discrimination, national origin discrimination, and reprisal.  Appellant moved for amended findings and a new trial, which the court denied.  This appeal follows.

D E C I S I O N

I.

 

            Appellant argues that the district court erred by denying his motion to amend his complaint.[3]  The scope of review in such a case is generally limited to the grounds raised in appellant’s motion for a new trial.  Preferred Fin. Corp. v. Quality Homes, Inc., 439 N.W.2d 741, 743 (Minn. App. 1989).  But this court, in the interest of justice, may address issues not raised in posttrial motions where neither party objects on appeal and both parties brief the issues.  See Korf v. Korf, 553 N.W.2d 706, 709 n.2 (Minn. App. 1996).  Here, appellant did not raise the court’s denial of his motion to amend his complaint in his motion for a new trial, but respondent has not objected and both parties have briefed the issue. 

            “A party may amend a pleading by leave of court, and amendments should be freely granted, except where to do so would result in prejudice to the other party.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citing Minn. R. Civ. P. 15.01).  “The trial court has wide discretion to grant or deny an amendment, and its action will not be reversed absent a clear abuse of discretion.”  Id.  A motion to amend a complaint can be denied when the additional claim would not survive summary judgment.  Bebo v. Delander,632 N.W.2d 732, 740 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  Here, appellant has not demonstrated that the district court abused its discretion in denying appellant’s motion to amend his complaint. 

            The district court properly considered the stage of the proceedings in deciding to deny appellant’s motion.  Tomlinson Lumber Sales v. J.D. Harrold Co., 263 Minn. 470, 474-75, 117 N.W.2d 203, 207 (Minn. 1962) (“the liberality to be shown in the allowance of amendments depends in part upon the stage of the action” (quotation omitted)).  Appellant’s motion came months after the close of discovery and three days after the deadline for all motions to be heard.  Had the motion to amend been granted, the trial court would have had to amend its scheduling order to allow for further discovery and the eventuality of extensive motion practice.  In all likelihood, the trial date would have to be substantially delayed.  And the district court did not err in refusing to consider the evidence appellant submitted after the record closed at the February 20 hearing. 

            Further, courts need not grant a motion to amend a complaint with a proposed claim that cannot survive summary judgment.  Bebo,632 N.W.2d at 740.  Because appellant admitted that the there had been no publication of the allegedly defamatory statements, the district court properly concluded that the defamation claim was “insufficient as a matter of law.”

            Finally, we note that Minnesota law states that actions brought under the Minnesota Human Rights Act are to be decided by a judge, not a jury.  Minn. Stat. § 363.14, subd. 2, renumbered as Minn. Stat. § 363A.33, subd. 6 (2004).  Thus, the district court did not err in refusing to allow appellant to amend his complaint to include a demand for a jury trial.  The district court acted within its discretion in denying the motion to amend.

II.

            Appellant argues that the district court erred by denying his requests for a continuance based upon his medical condition.  “The granting of a continuance is within the discretion of the trial court and its ruling will not be reversed absent a clear abuse of that discretion.”  Chahla v. City of St. Paul,  507 N.W.2d 29, 31 (Minn. App. 1993), review denied (Minn. Jan. 20, 1994).  “The test is whether a denial prejudices the outcome of the trial.”  Id.at 32.

            Appellant argues that the court’s failure to grant a continuance prejudiced him because his medical issues prevented him from complying with the pretrial order requiring pretrial submissions to be made by May 19, 2003.  “Ordinarily, medical incapacity is grounds for a continuance.”  Chahla, 507 N.W.2d at 32.  But the district court’s determination that appellant failed to demonstrate medical incapacity preventing him from preparing for or proceeding to trial in June 2003 is supported by the record.  Neither of appellant’s physicians stated that appellant was medically unfit or unable to participate in the court proceedings. 

            The district court’s own observations of appellant further support its decision to deny a continuance.  Noting that appellant had stood and presented an organized and well-prepared argument regarding the continuance for approximately an hour and twenty minutes on the morning that trial was to begin, the district court stated, “I haven’t seen anything or heard anything that would lead me to believe that Mr. Agamawi would not be able to prepare for trial in this case after the withdrawal of his attorney.”  The case proceeded with appellant testifying for the remainder of the opening day and for the majority of the following day, June 6.  Appellant completed his case-in-chief on June 6.  The court noted that appellant’s

demeanor during the trial did not lead the Court to believe that his request for a continuance due to medical reasons was warranted.  [Appellant] made long speeches to the Court, and testified at length.  While [respondent’s] witnesses testified, [appellant] busied himself at counsel table, reading various documents.  He appeared to be totally absorbed with the documents, and appeared to be paying little, if any, attention to [respondent’s] witness.  [Appellant] did not appear to be in any pain at all.

 

The court further noted that appellant

gave no indication at all of any symptoms of pain, or an inability to concentrate.  The only time [appellant] gave any indication that he might be in pain was when he knew he was being observed . . . .  The court is not a medical professional.  However, the court determined that [appellant’s] actions were matters of demeanor and credibility.

 

            We note that after trial began, the district court granted several continuances based on appellant’s medical circumstances.  In those instances, appellant’s requests for continuance were supported by physicians’ submissions that stated that appellant was unable to work or attend court hearings.  The trial resumed in March 2004, allowing appellant an extra three months to prepare after he notified the court that he would be ready to proceed in late November 2003.

            There is no evidence that the district court abused its discretion in concluding that appellant failed to demonstrate medical incapacity preventing him from meeting the pretrial submission deadlines or proceeding to trial on June 5.  Similarly, based on his actions on June 5 and 6, the district court did not abuse its discretion in determining that appellant was capable of participating in trial on those days.  Finally, the failure to grant a continuance did not prejudice the outcome of the trial, as the district court’s findings and conclusions are well supported, and appellant has not demonstrated that the outcome would have been different had a continuance been granted.

III.

            Appellant argues that this court should order a new trial because the district court erred in finding respondents’ witnesses to be credible.  Appellant’s argument relies heavily upon his assertions of inconsistency and contradiction in certain testimony. 

            “Findings 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.”  Minn. R. Civ. P. 52.01.  In applying rule 52.01, “we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). 

            Here, there is no basis for concluding that the district court’s credibility findings were so erroneous as to warrant a reversal.  Even if we were to take all of appellant’s allegations to be true and assume that certain witnesses provided inconsistent or contradictory testimony, it is well settled that judging the credibility of the witnesses and the weight given to their testimony rests within the province of the finder of fact.  BLC Ins. Co. v. Vivent, 359 N.W.2d 315, 317 (Minn. App. 1984).  Further, appellant’s attack on the district court’s credibility findings lacks merit.

            First, some of appellant’s allegations concern insignificant inconsistencies in the testimony, including whether a meeting was held in the morning or afternoon and whether an individual brought documents to a certain meeting. 

            Second, appellant’s claims that he impeached the testimony of his supervisor, Susan Greimel, are unsupported by the record.  He first claims that she testified that she had not inquired about moving him to a different work group, but that she had made such an inquiry.  But Greimel’s testimony clearly indicates that she did not view the communication in question as an attempt to move appellant to another work group and that appellant had expressed a desire to change groups.  Appellant also claims that Greimel’s testimony concerning removal of his probation condition was inconsistent, but Greimel clearly explained the perceived inconsistency.  

            Finally, appellant asserts that Dennis Mixdorf provided inconsistent testimony about whether he was informed about appellant’s discrimination claim at a certain meeting.  But Mixdorf’s testimony was not inconsistent.  In his deposition, Mixdorf was asked whether he was informed of a complaint of discrimination in a meeting regarding appellant’s employment, and he answered in the negative.  During trial, he testified that during that meeting, an individual “mentioned that the word discrimination was thrown into the conversation.”  He also testified that he asked that individual whether and what issues existed and that the individual told him there were none. 

            Because we conclude that the district court did not err by denying appellant’s motion to amend his complaint or by making its credibility determinations and did not abuse its discretion by denying appellant’s request for a continuance, we affirm.

            Affirmed.



[1] The parties tried the case as though it included a claim for national origin discrimination, even though appellant never filed an amended complaint. 

[2] We note that this is but one example of the district court’s attempts to assist appellant in this case.  The district court appears to have demonstrated notable lenience with appellant throughout these proceedings, shepherding him through the trial process with tolerance and professionalism.

[3] The district court granted appellant’s motion for leave to amend his complaint to include a claim for national origin discrimination.  We therefore do not address appellant’s argument that the court erred by failing to grant that motion.