This opinion will be unpublished and

may not be cited except as provided by

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







Lee Lenoir,





Wells Fargo Services Company,




Filed May 2, 2006

Reversed and remanded

Lansing, Judge


Hennepin County District Court

File No. EM-04-010890


Mark A. Greenman, Ruth Y. Ostrom, Greenman & Ostrom, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)


Tammy L. Pust, Jesson & Pust, P.A., 340 Gilbert Building, 413 Wacouta Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


The district court granted summary judgment dismissing Lee Lenoir’s claim that she was improperly discharged for excessive absenteeism in violation of the Sick or Injured Child Care Leave Act.  Lenoir appeals the dismissal, asserting that the record establishes a genuine issue of material fact on the amount of her remaining sick leave when she took time off to care for her child.  Because we conclude that the disputed evidence does create a genuine issue of material fact, we reverse and remand.


Lee Lenoir was employed as an operations processor at Wells Fargo Services Company beginning on April 5, 1999.  According to the terms of her employment, which are set forth in the company’s employee handbook, Lenoir was an at-will employee.  Wells Fargo discharged Lenoir for excessive absenteeism on November 2, 2001.

As a Wells Fargo employee, Lenoir received a specified amount of paid time-off (PTO) for each calendar year.  The PTO could be used for both scheduled and unscheduled absences.  Wells Fargo defines an unscheduled absence as “one or more consecutive workdays when [the employee is] not present at work as scheduled and which cannot be defined as protected.”  It also specifies that “[l]eaving work with more than half a shift remaining will be considered an unscheduled absence.”

Wells Fargo has an explicit disciplinary policy on absenteeism.  Its employee handbook states that excessive absences or tardiness may be grounds for termination.  The company further explained its policy in a memorandum to employees, stating that eight unscheduled absences in a twelve-month rolling period could result in termination.  Lenoir received and read both the handbook and memorandum.

Throughout the course of her employment, Lenoir had numerous unscheduled absences and repeated incidents of tardiness.  For the twelve-month period preceding her termination, Wells Fargo’s attendance records indicate that Lenoir had seven absences that meet the definition of an unscheduled absence.  Lenoir states in a personal affidavit, buttressed by other evidence, that these records contain several inaccuracies.  Relevant to the summary judgment determination, she asserts that the records incorrectly show that she took eight hours of PTO and did not report for work on February 12, 2001.  The accuracy of these records determines whether she had sick leave available for an absence. 

On October 29, 2001, Lenoir received permission from Wells Fargo to leave work one and one-half to three and one-half hours before the end of her shift because her child had a dental emergency.  The following morning, October 30, she called Wells Fargo to report that she would not be at work that day.  Lenoir asserts that she provided a reason for her absence: she needed to care for her child.  Wells Fargo, relying on its attendance records, disputes that Lenoir provided an explanation for her absence.  The attendance records, which included the eight-hour deduction for February 12, 2001, show that Lenoir had no PTO remaining for use on October 30.  When Lenoir appeared for work the following day, Wells Fargo terminated her employment because of “inconsistencies with attendance and failure to comply with department expectations outlined in previous warnings.”

Lenoir filed a complaint against Wells Fargo, alleging that it violated the Sick or Injured Child Care Leave Act by terminating her when she was absent to care for her sick child.  Wells Fargo moved for summary judgment and argued that Lenoir was not entitled to protection under the statute because she did not have PTO remaining and that it therefore lawfully terminated her at-will employment.  The district court concluded that no genuine issue of material fact existed, and that, because Lenoir was an at-will employee, Wells Fargo properly terminated her employment.  Lenoir now appeals.


The Sick or Injured Child Care Leave Act (SICCLA) provides that an employee “may use personal sick leave benefits provided by the employer for absences due to an illness of or an injury to the employee’s child . . . on the same terms the employee is able to use sick leave benefits for the employee’s own illness or injury.”  Minn. Stat. § 181.9413(a) (2004).  “Personal sick leave benefits” are statutorily defined as “time accrued and available to the employee to be used as a result of absence from work due to personal illness or injury.”  Id. § 181.9413(b) (2004).  An employee returning to work from a leave under SICCLA is “entitled to return to employment in the employee’s former position.”  Id. § 181.942, subd. 1(a) (2004).

The district court granted summary judgment dismissing Lenoir’s claim based on its conclusion that Lenoir was discharged for excessive tardiness and absences and that no genuine issue of material fact exists on whether she was entitled to protection under the act.  The district court did not address the disputed evidence on whether Lenoir had PTO remaining when she took time off following her child’s dental emergency on October 29 and 30, 2001.

On appeal from summary judgment, we consider whether, viewing the evidence in the light most favorable to the nonmoving party, a genuine issue of material fact exists and whether the district court erred in its application of the law.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).  When a district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion subject to de novo review.  Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998).  But when genuine issues of material fact preclude summary judgment, these issues must proceed to trial for resolution.  Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 342 (Minn. 1995).  A fact is material if its resolution will affect the outcome of the case.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). 

Lenoir asserts that a genuine issue of material fact exists on whether she had PTO remaining when she was absent on October 30 and that this issue precludes summary judgment.  Because Lenoir is eligible for protection under SICCLA only if she had PTO remaining, this factual issue affects the outcome of the case and is therefore material.  Consequently, our inquiry centers on whether Lenoir has presented sufficient evidence to establish a genuine issue on the availability of additional PTO.

As of October 29, 2001, Wells Fargo’s PTO record indicates that Lenoir only had 3.34 hours remaining.  This calculation assumes that Lenoir was absent on February 12, 2001.  But Lenoir contends that she worked on February 12 and that she had 11.34 hours of leave available for use on October 30.

Lenoir, in an affidavit, states that she did not miss work on February 12, 2001, and points to additional evidence that buttresses her affidavit.  According to Lenoir, she initially called in on the evening of February 11 to report that she would be absent from work on February 12 because she was in Chicago and had missed her return flight to Minnesota.  But Lenoir asserts that she was able to catch a later flight on the night of February 11 and arrived home in time to work her full eight-hour shift the next day.  Lenoir’s affidavit states that she worked on February 12, that she saw her supervisor in the morning and explained that she had been able to return on a later flight, and that she twice pointed out the inaccuracy of her time records that reflect eight hours of PTO for that day.  Lenoir provided two additional affidavits that indirectly support her own.  The first affidavit is from her sister and states that Lenoir returned from Chicago on February 11, 2001, and that her sister gave her a ride home from the airport late in the evening.  The second affidavit is unnotarized and from Lenoir’s friend in Chicago.  This affidavit also states that Lenoir returned to Minnesota on a later flight on February 11.

Wells Fargo contends that Lenoir’s affidavit should be discounted because it is self-serving and contradicts the entry of eight hours of PTO into the time-entry system.  See Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 429 (Minn. App. 1999) (stating that self-serving affidavit contradicting earlier deposition testimony does not create material fact issue), review denied (Minn. Jan. 25, 2000).  But Lenoir has never testified that she used PTO on February 12, 2001, and her affidavit does not contradict any evidence that she offered previously.  Instead, she contends that Wells Fargo’s record systems are often inconsistent and inaccurate. 

The record arguably provides support for Lenoir’s contention that the record system is not dispositive on her absences.  Although the PTO program, which is not connected to the time-entry system, indicates that Lenoir used eight hours of PTO on February 12, Wells Fargo’s utilization report, which tracks the productivity of the employee, shows that Lenoir worked eight hours that day.  While Lenoir’s supervisor claims that she mistakenly entered Lenoir’s data from February 13 in the space provided for February 12, the inconsistencies in the record systems support Lenoir’s assertion that Wells Fargo did not properly record her PTO. 

Viewing the evidence in the light most favorable to Lenoir, these inconsistencies, coupled with Lenoir’s affidavit, are sufficient to create a genuine issue of material fact.  Consequently, the district court erred by granting Wells Fargo’s motion for summary judgment.

Wells Fargo and Lenoir direct additional argument to the issue of whether Lenoir was an at-will employee.  SICCLA applies whether employment is contractual or at will.  Minn. Stat. § 181.940, subd. 2 (2004) (defining employee as person who has performed services for employer for twelve consecutive months).  The statute further provides that a person who is injured by a violation of SICCLA may bring an action to recover damages.  Minn. Stat. § 181.944 (2004).  The competing arguments do not demonstrate how a determination of whether Lenoir was a contractual or an at-will employee affects the summary judgment determination or the outcome of the case, and consequently we do not address it.

            Reversed and remanded.