This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed April 24, 2007
Hennepin County District Court
File No. 27-CV-05-007205
Joni M. Thome, Clayton D. Halunen, Halunen & Associates, 220 South Sixth Street, Suite 2000, Minneapolis, MN 55402 (for appellant)
David A. Davenport, Aimee D. Dayhoff, Winthrop & Weinstine, P.A., 225 South Sixth Street, Suite 3500, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In an appeal from a summary judgment dismissing his whistleblower and discrimination claims, Mahdi Zain argues that he submitted sufficient evidence to survive summary judgment that PolarFab, his employer, took adverse action against him either through constructive discharge or by denying him employment opportunities. Because Zain failed to show the existence of a genuine issue of material fact as to whether an adverse employment action was ever taken against him, and because such adverse action is an essential element of all of his claims, we affirm the district court’s grant of summary judgment dismissing this action.
Appellant Mahdi Zain, a person of African origin, began working for PolarFab, a Minnesota Corporation providing semiconductor foundry services, in December 1998 in the electrical-test department. In 2000, the company moved Zain to the wafer-fabrication facility, specifically to the 6” diffusion area. Workers in the 6” diffusion area are exposed to hazardous chemicals and must wear protective gear from head to toe. PolarFab complies with all OSHA guidelines regarding the use of hazardous chemicals. Zain worked in the 6” diffusion area for at least three years before beginning training to work in the 8” diffusion area, a job requiring more training but considered to be less labor-intensive. Workers in 8” diffusion are not exposed to hazardous chemicals. He worked almost exclusively in the 8” diffusion area between July 2003 and May 2004. Zain took an extended vacation from May 2004 to June 2004. Before leaving for vacation, Paul Garcia, one of the shift leads, asked Zain to train another employee, Twan Do, in the 8” diffusion area to cover Zain’s position while he was gone.
During Zain’s absence, production in the 8” diffusion decreased significantly. Upon Zain’s return, Garcia informed him that he and Do would be rotating between the 6” and 8” diffusion areas. From late June to mid-October 2004, Zain worked 43 days in 6” diffusion and 34 days in 8” diffusion. Garcia stated that Zain’s rotation between 6” diffusion and 8” diffusion “was entirely [a] business and economic decision.”
In October 2004, Zain raised concerns about his rotation between 6” diffusion and 8” diffusion as well as his rotations between different functions within the 6” diffusion. Zain expressed his unhappiness during a production-staff meeting held to address concerns of various non-Vietnamese employees about the selection of new team leads. Zain requested that he be reassigned to 8” diffusion or, in the alternative, he work only the load function in the 6” area so that he would be exposed to fewer chemicals. PolarFab moved Zain to the load function almost immediately and assigned him to the 8” diffusion area beginning the next work period in the end of October.
In late October, Zain reported to one of his shift leads that he felt harassed by a coworker Nghiep Tran’s presence because the coworker had been following him around. His shift lead spoke with the coworker about the complaint. This was the only incident of harassment reported by Zain. Zain testified that he also spoke to his shift lead, Garcia, on October 28 about health concerns he had about working with chemicals, but he never filed a formal complaint with his managers, any of the team or shift leads, or with the company about the chemicals associated with the 6” diffusion area. Zain did see a physician about his concerns with breathing, but the physician informed him his problems were caused by the mask he wore during work, and Zain did not submit this documentation to PolarFab.
In November, Garcia told Zain that he would have to rotate back into the 6” diffusion area for two weeks, and Zain refused and asked to speak to the human-resources department. After speaking with the shift leads about Zain’s concerns, the human-resources manager, Deborah Roberts, immediately met with Zain and informed him that, because there were not high enough production levels in the 8” diffusion area, and because he lacked training in other plant areas, he would have to continue to rotate between the two shifts. The human-resources manager stated that she
reinforced that his expertise was needed in Diffusion at this time and we couldn’t offer him anything outside this area. I discussed his options to wait for a posting opportunity on another shift or within another functional area on his current shift. He said he could not do so . . . . I pointed out that if he could not return to his present assignment, it would be viewed as him refusing to work. [Zain] said he could not return to 6” Diffusion. We discussed that if he refused his functional area assignment, it would be his choice not to return to work. I asked him if he understood this choice would be treated as a voluntary termination and reaffirmed that we were not terminating his employment. He said he understood.
But on November 11, 2004, Zain wrote
a letter of resignation, stating that he could no longer work in 6” diffusion
as he considered it a “hostile work environment.” Zain then sued PolarFab, alleging a violation
D E C I S I O N
On appeal from summary
judgment, this court “ask[s] two questions:
(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
A motion for summary judgment shall be granted 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. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (
Adverse Employment Action
Zain alleges that PolarFab discriminated against him
based on his race and national origin in violation of the Minnesota Human
Rights Act (MHRA) by denying him employment opportunities and creating a
hostile work environment. He states that
PolarFab violated the MHRA by retaliating against him for reporting alleged
discrimination and a hostile work environment. He also argues that he reported OSHA and
hazardous chemical violations, and that PolarFab violated the Minnesota Whistleblower
Act by taking adverse action against him.
A common element of Zain’s allegations is that PolarFab took an adverse
employment action against Zain because of his race, national origin, or alleged
reports of discrimination, harassment, or hazardous work environment. See Hedglin v.
City of Willmar, 582 N.W.2d 897, 901 (
Zain argues he presented genuine issues of material fact regarding two alleged adverse employment actions: (1) that he suffered a constructive discharge because he quit because he was forced to work under hostile conditions; and (2) he was transferred and reassigned to intolerable job conditions and denied opportunities for advancement and promotion. But our de novo review of the record fails to reveal any evidence that creates a genuine issue of material fact as to whether an adverse employment action was taken against Zain, for any reason, much less because he was discriminated against in violation of the MHRA or whistleblower statutes.
1. Constructive Discharge
“A constructive discharge occurs when an employee resigns in order to escape
intolerable working conditions caused by illegal discrimination.” Navarre
v. S. Washington County Schs., 652 N.W.2d 9, 32 (
Zain states that he presented
overwhelming evidence of intolerable working conditions that forced him to
quit, including being put in the 6” area for “no reason” other than that he was
an African employee; that the transfers between 6” and 8” were not part of
company policy and because of his training he should have been assigned solely
to 8”; that he was harassed by his coworker and subjected to weeks of other
harassment; and that the chemicals he was working with were hazardous to his
health. But most of the evidence Zain
points to consists of his own subjective beliefs and his opinion regarding PolarFab’s
role in his resignation. Because Zain was
obligated to come forward with specific facts showing a genuine issue for
trial, offering unsupported contentions was insufficient. See Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (
The record indicates that Zain and other employees had to rotate between 8” diffusion and other areas in the plant. Zain concedes that no employee is guaranteed work in any one position, and that his benefits and salary did not change when he was rotated. The record shows that, when Zain requested training in the 8” diffusion area, he was given training in that area. Although he alleges that he was not offered training in any other areas, he can point to no evidence that he was denied any employment opportunities in the company or chances at promotion. The record indicates that when positions for advancement were made available to employees in the diffusion areas, Zain did not apply for those managerial jobs.
Zain also cites numerous complaints
by various African workers against PolarFab to substantiate his allegations of
a hostile work environment. But these
complaints are not sufficiently specific to Zain’s claims, and he has provided
no evidence that the conduct alleged in these complaints actually occurred or
that the complaints relate to his own allegations. See Thiele
v. Stich, 425 N.W.2d 580, 583 (
As to the claim that hazardous chemicals created an intolerable work environment, the record shows that Zain visited a physician in October because he was concerned with some respiratory difficulties he was experiencing. He said that the symptoms occurred four or five times before he went to see a doctor, that the symptoms were not persistent, and that he could not remember whether he had similar symptoms prior to working in 6” diffusion. The doctor performed blood tests, told him that his breathing problems were dyspnea and that “with the mask on at work, suspect that is from the mask itself and difficulty moving air through [it].” Zain did not produce the report to PolarFab, nor did he provide any evidence of ill-effects from the chemicals. Additionally, Zain failed to complain of the chemicals for the years he worked exclusively in 6” diffusion and did so only after he was upset with being moved from 8” diffusion.
A constructive discharge also requires that an employee give his employer a reasonable opportunity to correct the alleged problems prior to resigning. Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 575 (8th Cir. 1997). Although Zain argues that PolarFab may not assert this defense because it took adverse action against him, there is no evidence of any adverse action. Zain alleges that he made many complaints to management about the discriminatory transfer of his job duties, the unfair “rotation” in 8” and about having to perform load duties in 6”. But he points only to his own speculation in his deposition transcript to substantiate these statements, and when Zain did make formal complaints, the company immediately addressed the problems.
Along with other employees who were primarily African, Zain signed a petition that was presented to management and the human-resources department at a meeting, complaining that Vietnamese workers were given opportunities for advancement over non-Vietnamese employees. On behalf of PolarFab, the vice-president of human resources, Robert Rousseau, sent a written response to the author of the petition to reiterate PolarFab’s goals of assuring that the team-lead selection “process is open and fair to all employees, regardless of their ethnic heritage.” The letter detailed plans to address the apparent factions within the employee groups and indicated that the company was scheduling further training to assure effective management. When the positions in question were posted, Zain did not apply. Of the eleven new team leads that were selected, four were of African origin, and one was an individual who had signed the petition.
Next, when Zain complained to Garcia
that Nghiep Tran was following him around and generally harassing him, Garcia
investigated the matter immediately. A
single reported incident of alleged fellow-employee harassment does not rise to
the objectively reasonable level of intolerable harassment required to satisfy
a showing of constructive discharge. See Goins v. West Group, 635 N.W.2d 717,
Finally, constructive discharge requires intent on the part of the employer to create the intolerable working conditions. Pribil, 533 N.W.2d at 412. Zain presented no evidence that PolarFab made him work with chemicals in 6” diffusion to force him out of his job, or that he was treated any differently from any other employees who worked under the same conditions within the 6” diffusion area, or that his job transfers were racially motivated in any way or done with intent to force Zain to work in intolerable conditions. Contrary to Zain’s allegations, the record shows PolarFab’s concerns for Zain’s preferences and comfort at work: When he complained of being rotated between the load and unload function of 6” diffusion, Zain was moved to the unload function of 6” diffusion where he worked with fewer chemicals, a privilege granted solely to him. Soon after, he was transferred back to 8” diffusion.
Although PolarFab was aware of racial differences and hostility within its workforce, there is no evidence in the record that any hostility was created by PolarFab with the intent of forcing Zain to quit. Furthermore, the record shows that the company was taking measures to alleviate the discord. Since the record lacks a single incident of racially motivated or retaliatory action by PolarFab against Zain, the record necessarily does not show the sort of continuous hostility or intolerable ongoing harassment necessary for a constructive discharge.
2. Transfer and reassignment
Zain also alleges that his transfer to 6” diffusion when he was qualified for 8” diffusion was an adverse employment action and that he was thereby prevented from receiving the requisite training for promotional opportunities. But the undisputed facts indicate otherwise. Zain worked for a year and half in 6” diffusion rotating between the load and unload functions without ever complaining. The company did not guarantee that Zain would have a position in 8” diffusion, even if he were qualified to work in this position, and employees are moved between areas as dictated by workload and qualifications. Zain’s pay was not changed as he moved between the positions, nor were his benefits altered. Although Zain attempts to point to discrepancies in Garcia’s testimony regarding the procedure for shift rotation, he entirely fails to establish any facts that show that he, or any other employee, was guaranteed work in any given area at any given time or that his rotation could in any way be construed as an adverse employment action in violation of the MHRA.
Even though Zain argues that PolarFab denied him opportunities for training and that the company promoted other, more highly trained, employees over him, he can point to no specific incident when he was denied training or opportunity for advancement. The record does show that Zain did not apply for team-lead positions when they were posted. Additionally, Zain was transferred between 6” diffusion and 8” diffusion before making any allegations of harassment, discrimination, or dangerous working conditions to anyone at PolarFab. For Zain’s retaliation and whistleblower claims, the adverse action by the employer must occur after the complaint against the employer by the employee, and, therefore, the district court could not properly consider evidence of Zain’s rotation or alleged denial or promotional opportunities in an analysis of these claims.
Summary judgment is “mandatory
against a party who fails to establish an essential element of [the] claim, if
that party has the burden of proof, because this failure renders all other
facts immaterial.” Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (