This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Joseph N. Muafong,





Minnesota Masonic Home - North Ridge Care Center,



Filed July 17, 2007


Kalitowski, Judge


Hennepin County District Court

File No. 27-CV-05-001784


Michael Fondungallah, Fondungallah & Kigham, LLC, 2499 Rice Street, Suite 236, Roseville, MN 55113 (for appellant)


James A. Wade, Trina Alvero Phelan, Johnson, Killen & Seiler, P.A., 230 West Superior Street, Suite 800, Duluth, MN 55802 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Joseph Muafong challenges the district court’s order for summary judgment dismissing his claims against respondent Minnesota Masonic Homes - North Ridge Care Center, arguing that he produced sufficient evidence to withstand summary judgment on his claims of race discrimination and retaliatory discharge.  We affirm.


            Appellant Joseph Muafong is of African descent and was employed by respondent Minnesota Masonic Homes - North Ridge Care Center  from February 19, 2001, until his discharge on March 31, 2004, as a certified nursing assistant (CNA).

            Respondent is a long-term care facility for disabled and vulnerable individuals. Respondent’s facility consists of several multistory connected buildings, with each floor divided into separate “wings” for work assignments.  On a daily basis, each CNA is assigned a specific floor, a specific wing, and specific patients in a specific building.  CNAs are assigned specific break and lunch times to insure the continuous care of residents.

            From March 26, 2002, until the day prior to his termination, appellant received numerous written warnings for violations of respondent’s policies, including overextending breaks, repeated failure to remain on his assigned wing, failure to use proper equipment as required for resident safety, and insubordination.

            On February 18, 2004, appellant received a written warning for failing to stay on his assigned wing and was notified that future infractions could result in termination.  On March 30, 2004, appellant received a written warning for sitting in the dining room talking with coworkers instead of helping residents.  When instructed to get up and help the residents, appellant became argumentative and left for a wing of the building to which he was not assigned.  On March 31, 2004, appellant’s employment was terminated for insubordination and an ongoing failure to follow directions and policy.

            On review of a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French,460 N.W.2d 2, 4 (Minn. 1990).  “[T]he 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 (Minn. 1993).  A factual dispute is not material unless it will affect the outcome of the suit under the governing substantive law.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).  There is no genuine issue of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  Moreover, “[t]o forestall summary judgment, the nonmoving party must do more than rely on unverified or [conclusory] allegations in the pleadings or postulate evidence which might be produced at trial.  The nonmoving party must present specific facts which give rise to a genuine issue of material fact for trial.”  W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998) (quotation omitted).  “[S]ummary judgment is inappropriate if the nonmoving party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006).


            Appellant argues that he presented sufficient evidence to establish a prima facie case for race discrimination in violation of the Minnesota Human Rights Act (MHRA). We disagree.

            The MHRA provides that:

[I]t 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.


Minn. Stat. § 363A.08, subd. 2 (2004).  When interpreting cases under the MHRA, this court gives weight to federal-court interpretations of Title VII claims because of the substantial similarities between the two statutes.  Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App. 1999). 

            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 (Minn. 2001).  Proof of a discriminatory motive is critical to a claim for disparate treatment.  Id

            Disparate treatment claims based on indirect evidence of discrimination are analyzed under the test found in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).  Under the McDonnell-Douglas test, the plaintiff alleging a discriminatory employment practice must first make out a prima facie case of discrimination.  Id.  The plaintiff must show that he (1) is a member of a protected class; (2) was qualified for the position he held; (3) was discharged; and (4) was treated differently than similarly situated nonmembers of the protected class.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 442 (Minn. 1983).  If the plaintiff is successful in proving the prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge.  Hoover, 632 N.W.2d at 545.  Once the employer shows a legitimate nondiscriminatory motive for discharge, the employee must establish that the proffered reason is a pretext for discrimination.  Id.  “[A]t all times the employment discrimination plaintiff retains the burden of establishing that the defendant’s conduct was based on unlawful discrimination.”  Id. at 546.

            The district court determined that appellant met his burden regarding the first three elements of the prima facie case, but failed to establish that he was treated differently than similarly situated coworkers.  To be considered similarly situated for purposes of disparate treatment claim, the individual used for comparison and the disparately treated employee must be “similarly situated in all relevant respects.”  E.E.O.C. v. Kohler Co., 335 F.3d 766, 775-76 (8th Cir. 2003) (quotation omitted).  “Specifically, the individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.”  Id. at 776.

Appellant claims that he established disparate treatment and cites eight incidents in which he alleges that white employees were treated differently than black employees.  But the district court properly determined that none of the individuals involved in the cited incidents were similarly situated to appellant.  Rather the record indicates that (1) these individuals did not have appellant’s extensive disciplinary history; or (2) the underlying facts of the cited incidents are either distinguishable or unsupported by record.

            Because appellant has failed to show that he was treated differently than similarly situated individuals, the district court did not err by concluding that appellant failed to make a prima facie showing of disparate treatment discrimination under the MHRA.


            Appellant argues that respondent terminated his employment in retaliation for leading a group of black employees in challenging racist comments allegedly made by a white nurse.

            Appellant alleges that on May 22, 2003, a black CNA overheard a white nurse on the phone saying “[t]here are too many black aides . . . and this freaks out the residents . . . I have discussed this with other nurses and we need to see what to do about it.”  But the nurse denies ever making such a statement.  Moreover, the CNA that appellant alleges overheard the statement, denies ever hearing the nurse make such a statement.  We cannot say the district court erred in determining that “the allegation fails for an utter lack of substantiation by competent evidence.”

            Appellant asserts that once he heard about the alleged statement, he organized the “black aides of Bridge Way South to file a petition against [the nurse].”  An anonymous letter dated June 3, 2003, was delivered to the nursing supervisor raising concerns about the alleged statement.  In response, the supervisor posted a note on the employee board requesting anyone interested in discussing allegations to come forward or voice their concerns in writing with a signature.  The supervisor also spoke with the nurse alleged to have made the comment.  A note regarding the incident was generated and put in the nurse’s employee file.

            A prima facie case for retaliatory dismissal consists of:  “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Hubbard, 330 N.W.2d at 444.  As with a discriminatory-dismissal claim, the burden-shifting framework of McDonnell-Douglas dictates that after the plaintiff has established a prima facie case of retaliatory dismissal, the burden shifts to the employer to provide some legitimate, nondiscriminatory reason for the challenged employment action.  Hoover, 632 N.W.2d at 548-49.  Then, in order to prevail on his discrimination claim, the plaintiff must show that the employer’s proffered reason is a pretext for retaliation and that retaliation was the actual reason for the plaintiff’s dismissal.  Id. at 549.

            To engage in protected activity, an employee must make a good-faith report that implicates a violation or suspected violation of federal or state law or rule adopted pursuant to law.  Obst v. Microtron, Inc., 614 N.W.2d 196, 204 (Minn. 2000).  A specific law or rule need not be named if the alleged facts, if proven, would constitute a violation of a law or rule adopted pursuant to law.  Abraham v. County of Hennepin, 639 N.W.2d 342, 354–55 (Minn. 2002).  A causal connection between protected activity and termination “may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.”  Hubbard, 330 N.W.2d at 445.  “Proof of a causal connection must be something more than merely consistent with the plaintiff’s theory of the case.”  Bernloehr v. Cent. Livestock Order Buying Co., 296 Minn. 222, 224, 208 N.W.2d 753, 754 (1973).  Where timing is suggested as proof of causation, the time between an employee’s complaint and the employer’s action must be “very close.”  Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001).  A two-month interval between the protected activity and termination “so dilutes any inference of causation” that “as a matter of law [ ] the temporal connection [cannot] justify a finding” of a causal link.  Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002).

Appellant claims that organizing the black aides to file the petition is a statutorily protected act.  But the record demonstrates that respondent was not aware of appellant’s involvement with the anonymous letter, nor was his involvement documented or known to respondent prior to this litigation.  Without establishing respondent’s awareness of appellant’s involvement with the letter, appellant cannot prove the prima facie case for retaliation.

Appellant also fails to raise a genuine issue of material fact regarding a causal connection between the letter and his termination.  Appellant argues that the temporal proximity of his discharge and the letter establishes a causal connection.  But appellant was not discharged until March 31, 2004, and the letter was delivered in late June 2003, some nine months earlier.  A nine-month delay between appellant’s allegedly protected activity and his termination is too remote to show a causal connection based on temporal proximity alone.  See id. at 897.

Absent evidence that appellant engaged in statutorily protected activity and that this activity caused his termination, appellant has failed to raise a genuine issue of material fact regarding his claim for retaliatory discharge.  We conclude that the district court did not err by granting respondent’s motion for summary judgment.