This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-95-2327

Anne Marie Erickson,
Appellant,

vs.

Welcome Home, Incorporated, et al.,
Respondents.

Filed July 23, 1996
Affirmed
Holtan, Judge*

Hennepin County District Court
File No. EM9310140

Casey A. Streich, 4700 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

J.H. Strothman, Ansis V. Viksnins, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

Anne Marie Erickson appeals from the trial court's order denying her motion for amended findings of fact or, alternatively, a new trial. She argues the trial court erred by: (1) failing to consider direct evidence of discrimination; (2) failing to apply the "mixed motive" test; (3) finding the reasons the employer gave for firing her were not pretextual; (4) failing to find the termination of her health insurance was a reprisal measure in response to her discrimination claim; and (5) finding the employer made reasonable accommodations for her disability. We affirm.

FACTS

Respondent James Just is the president and executive director of respondent Welcome Home. Welcome Home operates group homes for mentally ill adults. [1]

In 1987, appellant Anne Marie Erickson was hired to work part-time as a social worker at Welcome Home's facility in Eden Prairie. She later became a cook and then a driver.

In November 1989, she was promoted to the position of program director. Under state licensing requirements, a program director must have a master's degree and two years of experience (which Erickson did). The program director's duties include staff supervision, scheduling and training, completing paperwork for the county, and maintaining the facility. Erickson was on call 24 hours a day, 7 days a week.

On March 16, 1990, Just gave Erickson a favorable performance evaluation.

On October 13, 1990, Erickson failed the exam to become a licensed psychologist for the second time. After she failed the exam, Erickson began drinking heavily. Between October 13, 1990, and February 21, 1991 (when she entered outpatient treatment), she drank about a quart of brandy or vodka and six beers a day. In October or November of 1990, she began taking Prozac that had been prescribed by a psychiatrist.

On November 30, 1990, Just gave Erickson a negative performance evaluation. Just concluded:

[T]here is typically a lack of organization and lack of follow-through in the overall job performance. * * * More and more situations presented to the Executive Director are in the form of problems without any recommendations as to solutions.

This is a developing situation not present several months ago. There has been a steady and significant deterioration in the level of performance overall. This deterioration seems to be associated with what appears to be a significant decrease in the amount of time spent on the job. * * *

The past year has shown considerable initiative and energy in the beginning followed by a steady and sure deterioration over the past several months. On balance, matters are being attended to, but in a fashion which currently is unsatisfactory. The matters of time on the job, organization and thoroughness must be dealt with immediately. It is my sense that the standards of performance for staff and the quality of service to clients is in danger of being compromised if these matters are not addressed satisfactorily.

At the beginning of January 1991, Erickson went on a two-week vacation. Kathy Kramer (who does not have a master's degree) temporarily replaced Erickson. While Erickson was on vacation, Hennepin County started an investigation of Welcome Home. Most of the funding for the facility came from Hennepin County.

On February 20, 1991, Erickson began outpatient treatment at Affirmation Place, a treatment center for chemical dependency. She went to treatment from 5 p.m. to 8 p.m. She did not miss any work because of this outpatient treatment. Erickson first told Just she was in treatment at the Thursday director's meeting at the end of February.

On March 8, 1991, Erickson called Just at home and told him she needed to talk to him. Erickson told Just there was a bed waiting for her at Abbot Northwestern for inpatient chemical dependency treatment, and that she needed to be there by 6 p.m. She said that the counselor "basically said that I had to go inpatient and that they wouldn't allow me in the outpatient [program] anymore." She testified that she told Just she would be there for about five days. Just testified that she told him it might be a few days or it might be several weeks. Just told Erickson that it was a very inconvenient time for him. She told him that she did not have any options, she had to go into treatment. Erickson did not offer to take an unpaid leave of absence, to go on a part-time schedule, to find a replacement for herself, or to take unpaid vacation time. Just testified that when she told him she had checked herself into the treatment program, he said:

We really don't have anything to talk about here then. * * * I don't know that it is going to be possible for me to maintain your employment. I'm not going to make a determination about that right now, but you need to realize the fact that this is just one more in a long line of difficulties. I'm going to have to think seriously about whether or not I can continue your employment.

Erickson entered treatment that evening.

The next Friday (March 15), Erickson went to the Eden Prairie facility to say goodbye to two of the staff who were moving to Alaska. While she was there, Just asked to talk with her, and "said it was a very hard decision for him to make, but that * * * he didn't know how [she] was going to be when [she] got out of treatment so [she] no longer had the job at Welcome Home." Erickson was discharged on March 26.

After Just fired Erickson, Hennepin County issued a negative report of the Eden Prairie facility.

Erickson filed both a reemployment compensation claim and a claim with the Eden Prairie Civil Rights Department. On November 16, 1991, Just contested Erickson's reemployment compensation claim on the basis of "failure to fulfill expectation of forty hour work week," "extended absence from work without supervisory permission," and "falsification of records." On November 19, 1991, the Eden Prairie Human Rights Commission investigation ended. The Human Rights Commissioner told Erickson that because no settlement had been reached, she could either file a charge with the Minnesota Department of Human Rights, file a civil action with a private attorney, or take no further action.

On December 10, 1991, Just sent a letter to Erickson telling her that he was terminating her COBRA health insurance coverage because she was not making timely payments. He terminated the insurance retroactive to November 1, and he returned her November and December checks, which he claimed were not sent in time.

In June 1993, Erickson filed a complaint, alleging: (1) wrongful discharge; (2) reprisal; and (3) that Just individually aided and abetted the discrimination and reprisal. In her initial complaint, Erickson named Welcome Home, Incorporated and James Just as defendants. The trial court later allowed her to amend her complaint to add Welcome Home, Ltd. as a defendant.

Following a four-day trial, the trial court concluded that respondents had a legitimate reason for terminating Erickson, that Erickson failed to show any causal connection between her claim and the termination of her COBRA benefits, and that because her discrimination claim failed, her claim that Just aided and abetted discrimination also failed.

Erickson moved for amended findings, or in the alternative, a new trial. The trial court denied her motion. This appeal followed.

D E C I S I O N

The denial of a motion for a new trial will not be reversed absent a clear abuse of the trial court's discretion. Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 351 (1974). The trial court's findings should not be disturbed if they are reasonably supported by evidence in the record considered as a whole. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983). This deference is especially strong in employment discrimination cases. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn.1986). However, legal questions are reviewed de novo. Western Insulation Servs., Inc. v. Central Nat'l Ins. Co., 460 N.W.2d 355, 357 (Minn. App. 1990).

1. Failure to consider direct evidence of discrimination.

Erickson argues the trial court erred by failing to consider direct evidence of discrimination.

Presentation of direct evidence does not establish an irrebuttable presumption that there was discriminatory conduct. If the trial court finds the employer's evidence more credible, it does not matter whether plaintiff's proof was presented by direct or indirect evidence. Here, the trial court considered the evidence Erickson claims is direct evidence. It simply did not reach Erickson's desired conclusion.

2. Failure to apply "mixed motive" test.

In employment discrimination cases, Minnesota courts use the three-part McDonnell Douglas test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under that test, (1) the plaintiff must establish a prima facie case of discrimination, (2) after which the burden shifts to the employer to show a legitimate nondiscriminatory reason for the termination, and (3) if this burden is met by the employer, the burden shifts back to the plaintiff to prove that the employer's reason for termination was pretextual. Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).

Erickson argues, relying on Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988), the trial court erred by failing to apply the "mixed motive" test. As the trial court correctly noted, even if this is a mixed motive case, the analysis would not change. See id. at 626-27 ("rejecting an ostensibly different analysis in a so-denominated 'mixed-motive' case").

3. Pretext.

Erickson argues the trial court erred by determining that the employer's stated reasons for firing her (absenteeism, falsification of documents, unavailability caused by attending inpatient treatment, and poor performance) were not pretextual.

Absenteeism: Erickson argues the trial court should have found that absenteeism is pretextual. She argues: (1) the employer did not require her to work a specific number of hours; (2) she was allowed "professional latitude" in scheduling work; (3) Just admitted that he did not know her daily or weekly schedule; (4) he offered no record of absenteeism; and (5) he did not issue any oral or written warning regarding absenteeism.

Even if Erickson did not have a specific work schedule, she was expected to work enough hours to fulfill her duties. The November 30 evaluation shows that Just thought she was not spending enough time on her duties.

Erickson argues the trial court erred by relying on Lindgren v. Harmon Glass Co., 489 N.W.2d 804 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992), because the employee in that case missed more days of work and because the record in this case is devoid of any documented absenteeism. It is true that the facts of Lindgren are different. However, the general principle that "[a]ttendance problems may be a legitimate basis for an employer's decision to terminate an employee" does not depend on the particular facts of Lindgren. See id. at 808.

Falsification of Documents: Erickson argues the trial court should have found that falsification of documents is pretextual. At trial, Just testified that falsification of documents was not "part of the reason for her termination."

Unavailability Caused By Inpatient Treatment: Erickson argues the trial court should have found that "unavailability caused by inpatient treatment" is pretextual.

Here, Erickson was not terminated simply because she went into treatment, but because she gave notice only a couple of hours before her departure, she was the only person in the workplace with the credentials to do her job, the facility was under heightened scrutiny by the county, and she had been having performance problems for some time. See Lindgren, 489 N.W.2d at 809 (stating, "[p]roblems caused by a disability may be legitimate, nondiscriminatory bases for termination").

Poor Performance: Erickson argues "poor performance" is pretextual. She first argues the Hennepin County report cannot be used to support this reason because Just did not get the report until after he fired her. Respondents concede they did not get the Hennepin County report until after Erickson was fired. Erickson also argues she cannot be blamed for the facility's problems because it had problems before she came, and it had problems after she left.

Here, Erickson was in charge from November 1989 to March 1991. It is not unreasonable to hold her responsible for things occurring "on her watch" over which she had control. In addition, "poor performance" was not an excuse Just invented after he fired her--he had given her a negative evaluation months earlier.

Thus, given the trial court's credibility determinations, the fact that Just gave Erickson a negative evaluation months prior to her termination, and the facts of the case (lack of notice, the investigation, the fact that Erickson was the only one with the proper credentials), we conclude the trial court did not clearly err in finding that the reasons the employer gave for firing Erickson were not pretextual.

4. Reprisal claim.

Erickson argues the trial court erred by failing to find the termination of her health insurance was a reprisal measure in response to her discrimination claim.

The trial court rejected this argument:

Based on the evidence submitted at trial, the Court found that it was more likely that Defendants cancelled the benefits because Erickson was not making timely premium payments (mistakenly believing that it did not have to give Erickson a 30 day grace period). * * *

* * * In this case, by contrast, there was no direct evidence showing that Erickson's COBRA benefits were denied because she filed the complaint with the City of Eden Prairie or because she engaged in any other protected conduct. Although some other finder of fact might have determined that Defendant in fact had a retaliatory motive, this Court found otherwise based on its review of the facts presented and its assessment of the credibility of the witnesses' testimony.

Erickson claims every premium payment was timely, pointing to trial exhibits consisting of several photocopies of the fronts of checks that Erickson wrote to Just, one photocopy of both sides of a check, and a copy of an envelope addressed to "Jim Just" and postmarked December 21, 1991. This evidence does not establish that the trial court's finding was clearly erroneous.

Erickson claims that, before Just cancelled Erickson's insurance, he read the COBRA law on what constitutes a late payment, asked a COBRA official if he could cancel the insurance, and that the COBRA official advised him to continue the coverage.

Even if Just were fully aware of COBRA law, that fact and the timing of the decision may be evidence of reprisal, but they do not mandate such a finding. As the trial court noted, another fact-finder may have found reprisal, but based on his assessment of the witnesses' credibility, he did not. Erickson does not point to any evidence that makes this finding clearly erroneous.

5. Reasonable accommodation.

Erickson argues the employer did not make a reasonable accommodation for her disability.

It is an unfair employment practice for an employer "not to make reasonable accommodation to the known disability of a qualified disabled person * * * unless the employer * * * can demonstrate that the accommodation would impose an undue hardship * * *." Minn. Stat. ' 363.03, subd. 1(6) (1994).

In her motion for amended findings or a new trial, Erickson challenged Finding No. 11, which reads:

There was no evidence supporting the position that the Defendants failed to make reasonable accommodations for Erickson's chemical dependency. To the contrary, Just was willing to support Erickson in her recovery efforts. Just was merely unwilling to allow the facility to continue to operate without adequate supervision upon such short notice, especially at a time when the facility had recently been criticized by Hennepin County.

In light of the following factors noted by respondents: (1) Erickson's inability to perform her duties as program director; (2) the uncertainty of how long she would be in treatment; (3) the question of whether treatment would be successful; (4) her failure to present Welcome Home with a realistic option concerning continuation of her employment; (5) the fact that Welcome Home was a small employer and Erickson was the only person on staff with the necessary credentials to supervise the facility; (6) the fact that its government funding was in jeopardy because of the Hennepin County investigation; and (7) because of the investigation, it would be a bad time to ask for a special exemption from licensing requirements, we conclude that the trial court's determination that respondents made reasonable accomodations was proper.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1] Respondents maintain that Welcome Home, Ltd. is a separate business corporation from Welcome Home, Inc. James Just owns both and is executive director for both.