This opinion will be unpublished and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
Mohamed Elsherif, et al.,
Filed August 29, 2006
Hennepin County District Court
File No. EM 04-002354
Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm,
Chartered, Loring Green East,
Lee A. Lastovich, Donald G. Heeman, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South 6th Street, Suite 2200, Minneapolis, MN 55402 (for respondents)
Considered and decided by Halbrooks, Presiding Judge; Willis, Judge; and Wright, Judge.
Appellants, who are Muslim and African-born, challenge the district court’s order dismissing their discrimination claims against respondents, who failed to offer them employment as security guards. Appellants allege that the district court made several errors, including a number of evidentiary errors, in considering their allegations of discrimination. We affirm.
December 2002, respondents
Jon Namyst, United’s manager of security, worked with Christy Mader, an employee in United’s human-resources department, to create the interviewing process used to hire the security personnel. They used a two-step interviewing process for the job-fair applicants. After the applicants completed a United application, United human-resources staff conducted an initial screening interview to determine whether the applicant met the minimum qualifications for the job. The job’s minimum qualifications included at least one year of security experience, a high-school diploma or its equivalent, a valid driver’s license, excellent communication skills, acceptable physical condition, and an ability to confront security issues in a high-engagement manner. All applicants given an initial interview were asked the same set of questions, which were listed on the open house interview form. The format of asking the same questions of all applicants was used to help eliminate bias in the hiring process.
If an applicant passed the initial screening interview, a second interview was conducted by Namyst; former Wackenhut security coordinator, Ted Gautsch, served as an observer during the interviews. Again, each applicant was asked the same set of questions during the second interview.
After the interviews concluded, Namyst made the final decisions as to whom he would recommend. About two-thirds of the available positions were filled with former Wackenhut employees, who were given hiring preference based on their existing employment relationship with United. Nine applicants from the job fair were offered employment. Gautsch was hired for the open security-coordinator position, and two other individuals were selected for the open security-supervisor positions.
Hassan, who was born in
During the interview, Mader asked Hassan the standard interview questions she asked other applicants, including questions about Hassan’s employment history, strengths and weaknesses, and whether he had a criminal background. Mader claims that Hassan became angry, frustrated, and hostile during the initial interview. Hassan claims that he was not irritated or defensive in the interview, that Mader did not seem normal to him, and that Mader thought he “was kind of stupid or something.”
United’s application included a question about whether the applicant had been convicted of a crime. During the initial interview, Mader asked Hassan clarifying questions about whether he had a criminal history; at trial she explained that it was standard practice to ask all applicants clarifying questions about this application question and that the practice has benefited United because “[s]ome applicants aren’t comfortable with putting in ‘yes’ [on the application] without giving verbal information about it, so when we ask that question they’ll actually say, ‘well it really is yes[.]’” Mader explained to Hassan that sometimes people are embarrassed to check the box on the application and that United performs background checks on applicants who would be offered a position; she explained that if the background check revealed a criminal background, any employment offer would be rescinded.
Mader also asked Hassan to “describe [his] most positive comment on [his] last performance appraisal.” When Hassan responded, “Everything I do is good,” Mader rephrased the question a number of times to give Hassan the chance to provide a more specific and responsive answer and continued to ask Hassan about areas that his last performance appraisal had identified for improvement. Hassan’s answers were not responsive to the questions, and Mader stated that Hassan became angry and hostile.
Mader also questioned Hassan, as she did all applicants, about his employment history for the past ten years. She testified that employment gaps alone would not have prevented Hassan from advancing to a second interview.
Mader did not recommend Hassan for a second interview. She testified that Hassan’s conduct during the interview caused her concern about how he would react to individuals needing help if he were a security officer at the hospital.
Mohamed Elsherif, who was born in
After the initial screening interview, Mader recommended Elsherif for a second interview with Namyst and Gautsch for a security-officer position; Mader did not recommend Elsherif for a second interview for the supervisor position because he did not have the required three years of hospital supervisory experience. Among other set questions, Namyst asked Elsherif to describe how he reacted to a particularly stressful situation. Elsherif related an experience that he had at the Minnesota Masonic Home when a nurse called him to deal with a diabetic patient who had threatened her with a knife that he was using to try to get a knot out of his shoelace. Elsherif explained that he knew the patient because he had socialized with him in the past and that he got the knife from the patient by pretending to need it to remove a knot from his own shoelace.
Namyst did not hire Elsherif because Namyst “wasn’t that impressed with the preparation that he went into with his resume, the cover letter that he submitted . . . [a]nd [he] felt that other candidates had better answers to the interview questions than Mr. Elsherif.” Specifically, Namyst was not very impressed with Elsherif’s story about disarming the patient at the Minnesota Masonic Home and felt that Elsherif’s actions did not demonstrate the high-engagement and teamwork skills that he was looking for in a security officer faced with that type of situation.
Appellants filed suit against United and Wackenhut, alleging race, national-origin, and religious discrimination under the Minnesota Human Rights Act (MHRA), among other claims. The district court dismissed Wackenhut as a party before trial. After United moved for summary judgment, the district court dismissed all of appellants’ claims except those for national-origin and religious discrimination under the MHRA.
The remaining claims proceeded to a bench trial. The district court excluded the findings of the St. Paul Department of Human Rights, limited the testimony of appellants’ expert, Richard Sem, and admitted evidence about Elsherif’s subsequent termination from a different job. After trial, the district court ordered that appellants’ claims be dismissed with prejudice. In support of its decision, the district court made several explicit credibility determinations, including a determination that United’s witnesses were credible; the court found that Hassan’s testimony was not credible and that while some of Elsherif’s testimony was credible, it was not persuasive. The court also found that the expert opinion of United’s expert witness, Linda Fite, was credible, but that the expert opinion of appellants’ expert witness, Richard Sem, was not credible and was unpersuasive.
The district court specifically determined that appellants had not met their burden of establishing a prima facie case of discrimination because they had not demonstrated that they were qualified for the jobs. The district court went on to determine that United had legitimate, non-discriminatory reasons for refusing to hire appellants and that appellants had not shown that those reasons were pretextual. This appeal follows.
argue that the district court erred by determining that they failed to establish
a prima facie case of discrimination. When
reviewing mixed questions of law and fact, this court corrects erroneous
applications of the law, but accords the district court discretion in its
findings of fact and ultimate conclusions. Rehn v.
Fischley, 557 N.W.2d 328, 333 (
The MHRA provides that
it is an unfair employment practice for an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, or age to:
. . . .
(c) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.
discrimination under the MHRA may be established by showing disparate treatment
or disparate impact. Goins v. West Group, 635 N.W.2d 717, 722
Minnesota Supreme Court has adopted the three-step test found in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973), to analyze MHRA claims involving indirect
evidence of discrimination. Sigurdson v.
First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
v. Canadian Pac. Ltd., 536 N.W.2d 319, 323 (
prima facie case of discrimination may generally be established by showing that
(1) the plaintiff is a member of a protected class; (2) the plaintiff was
qualified for the opportunity in question; (3) the plaintiff suffered an
adverse action, such as discharge or refusal to hire; and (4) the opportunity
was given to someone with the plaintiff’s qualifications, particularly a
nonmember of the protected class. McDonnell Douglas Corp., 411
Here, the district court applied this very test in determining whether appellants had met their burden under the MHRA. The court concluded that appellants failed to meet their burden of establishing a prima facie case of discrimination because they failed to establish that they were qualified for the positions. The security-officer position’s minimum qualifications included at least one year of security experience, a high-school diploma or its equivalent, a valid driver’s license, excellent communication skills, acceptable physical condition, and an ability to confront security issues in a high-engagement manner. United presented extensive testimony about the particular need for a public-hospital security officer to have high-engagement skills because such skills are necessary for the protection of patients, staff, and the public.
district court did not err by concluding that Hassan did not demonstrate that he
was qualified for a security-officer position with United. The district court found that Hassan was not
recommended for a second interview because of his “poor communication and
interview skills,” including the fact that he became agitated, hostile, and
frustrated during his initial screening interview with Mader. While Hassan disputed Mader’s contentions
about his attitude during the interview, claiming that he was “smiling” while
answering Mader’s questions, the district court specifically found that Hassan’s
testimony was not credible and that Mader’s testimony was credible. This court gives due regard to the district
court’s credibility determinations, because the district court is in the best
position to judge each witness. Minn. R.
Civ. P. 52.01; Sefkow v. Sefkow, 427
N.W.2d 203, 210 (
Similarly, the district court did not err by concluding that Elsherif failed to demonstrate that he was qualified for either the security-supervisor or officer positions. Elsherif did not have the requisite three years of hospital supervisory experience required for the supervisor position. Further, Elsherif did not demonstrate the high-engagement skills and approach that are critical for a security officer to possess in a large public hospital like United. The district court noted that the testimony indicated that United security officers must be prepared to deal effectively with rioting adolescents, disturbed psychiatric patients, violent family members, and other volatile situations. The district court determined that Elsherif’s story about disarming a patient at the Minnesota Masonic Home did not demonstrate the type of high-engagement skills that United required of its security officers. In light of the testimony given at trial, and giving due deference to the district court’s credibility determinations, we cannot say that the court’s finding was erroneous.
Because appellants failed to establish that they were qualified for the positions they sought, the district court did not err by determining that they failed to present a prima facie case of discrimination. And because a plaintiff must meet his burden of proving a prima facie case of discrimination to trigger a defendant’s burden to articulate a legitimate, non-discriminatory reason for a refusal to hire, no further analysis is necessary. We therefore do not address appellants’ arguments concerning the district court’s alleged errors in analyzing the other prongs of the three-step test. The district court did not err by dismissing appellants’ discrimination claims under the MHRA.
Appellants contend that the district court erred in making several evidentiary rulings, including allowing United to introduce certain post-hire information about Elsherif, limiting the testimony of appellants’ expert witness, and refusing to admit a report from the St. Paul Department of Human Rights.
Appellants contend that the district court erred by admitting evidence about the reason Elsherif was terminated from a subsequent job, arguing that the information should have been excluded because it was prejudicial and was not probative. During trial, United introduced evidence concerning why Elsherif had been terminated from a subsequent job; the evidence was introduced to contest Elsherif’s claim of damages for lost wages and specifically to show that Elsherif failed to mitigate those damages.
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 (
also contend that the district court erred by limiting the testimony of
appellants’ expert witness, Richard Sem, arguing that the rulings limiting his
testimony “were erroneous under Minnesota Rules of Evidence 701 through
705.” The district court limited Sem’s
testimony on foundational and other grounds.
Appellants do not explain why the rulings were erroneous, nor do they
provide legal analysis or authority in support of their assertions. An assignment of error that is based upon
mere assertion and not supported by argument or authority is generally
waived. State v. Modern Recycling,
Inc., 558 N.W.2d 770, 772 (
so, “a decision to exclude expert testimony, lie[s] within the sound discretion
of the trial court.” Benson v. N. Gopher Enters., 455 N.W.2d
444, 445 (
appellants contend that the district court erred by excluding a report from the
St. Paul Department of Human Rights regarding appellants’ discrimination
claims. Appellants argue that the
exclusion of the report was erroneous, without providing any factual or legal
citation in support of that allegation.
Because appellants have not adequately briefed the issue and have failed
to provide any legal analysis or citation, we decline to address the allegation
of error. See State, Dep’t of Labor
& Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (