This opinion will be unpublished and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


Omar MMubango,


Minnesota Pollution Control Agency,

Filed August 27, 1996
Harten, Judge

Ramsey County District Court
File No. C5-94-10187

Omar MMubango, 2712 Pillsbury Avenue S., Apt. 301, Minneapolis, MN 55408-1562 (Pro Se)

Hubert H. Humphrey, III, Attorney General, Steven M. Gunn, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2128 (for Respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Harten, Judge.


Appellant brought race discrimination claims against respondent employer with respect to the employer's refusal to certify him as a permanent employee and its failure to hire him to fill a higher-level position. The trial court granted the employer summary judgment on the termination issue, and, after a bench trial, awarded employer judgment on the hiring issue. Appellant challenges both judgments. We affirm.

Appellant Omar MMubango is black and a native of Kenya. On November 12, 1992, after passing a ratings examination, appellant was placed on a one-year eligible list for Pollution Control Specialist (PCS) Senior positions with respondent Minnesota Pollution Control Agency. On November 1, 1993, appellant accepted a PCS Entry position; the position was subject to a six-month probationary period, upon successful completion of which respondent could certify appellant as a permanent employee. On December 9, 1993, respondent posted a notice of a vacancy for a PCS Senior position in its Tanks and Spills program. Respondent did not contact appellant about applying for the position; nor did appellant contact the listed supervisor about the vacancy. Respondent hired Laura Kania to fill the PCS Senior position. On March 30, 1994, respondent decided not to certify appellant as a permanent employee and terminated appellant's employment.

1. Discrimination in Termination of Employment
Appellant challenges the partial summary judgment in favor of respondent on his claim that respondent racially discriminated against him in terminating his employment. Summary judgment will be granted when the parties' submissions show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
In order to successfully oppose a motion for summary judgment, a party cannot rely upon mere general statements of fact but rather must demonstrate at the time the motion is made that specific facts are in existence which create a genuine issue for trial.

Erickson v. General United Life Ins. Co., 256 N.W.2d 255, 259 (Minn. 1977). "Mere speculation, without some concrete evidence, is not enough to avoid summary judgment." Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993); see also Fownes v. Hubbard Broadcasting, Inc., 302 Minn. 471, 474, 225 N.W.2d 534, 536 (1975) (a party cannot rely on surmise and speculation to meet the burden of showing a genuine issue of material fact).
Respondent's evidence submitted in support of its motion for summary judgment described five reasons for its decision not to certify appellant. First and foremost, Robert Dullinger, appellant's supervisor, cited appellant's poor writing. Dullinger provided documents written by appellant containing numerous spelling and usage errors. In his affidavit, Dullinger stated that he suggested remedial writing courses for appellant, but that appellant wished to take only advanced courses. In his deposition, appellant confirmed that others often had to edit his work and that he did not see any need to take a remedial class. Dullinger also cited as reasons for the termination appellant's overly aggressive attitude in dealing with the public regarding enforcement and compliance issues and his poor computer skills. Finally, Dullinger related that appellant had stated his intention to attend medical school within the year; Dullinger did not believe that respondent should invest the several months' effort needed to improve appellant's writing skills in the face of appellant's imminent departure.
Jeff Bradt, respondent's human resources director, stated in his affidavit that a parking lot incident, in which appellant's car rolled into and damaged another employee's car, also contributed to the decision not to certify appellant. In particular, Bradt cited appellant's failure to accept responsibility for the accident immediately, his untruthfulness regarding insurance, and his unreasonableness in attempting to resolve the dispute with the other employee.
In his own affidavit, appellant stated that he was terminated not because of poor job performance, but because of comments he made at an agency retreat and because he refused to agree to a payroll deduction to pay for the damage to the other car. Appellant also stated that racial discrimination was the only plausible explanation for respondent's action.
The Minnesota Human Rights Act prohibits racial discrimination in employment decisions. Minn. Stat. § 363.03, subd. 1(2) (1994). For analysis of claims under the Act, the supreme court has adopted the three-part McDonnell Douglas test. See Sigurdson v. Isanti County, 386 N.W.2d 715, 719-22 (Minn. 1986) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).
The McDonnell Douglas analysis consists of a prima facie case, an answer, and a rebuttal. First, plaintiff must present a prima facie case of discrimination by a preponderance of the evidence. Second, if plaintiff succeeds in proving a prima facie case, the burden shifts to defendant to articulate some legitimate, nondiscriminatory reason for the employer's adverse employment decision. Third, should defendant carry this burden, plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by defendant were merely a pretext for intentional discrimination.

Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988). This three-part test also applies to motions for summary judgment; if the plaintiff fails to set forth sufficient evidence at the first or third stage of the test, summary judgment is appropriate. Id.; see also Sigurdson v. Carl Bolander & Sons, 532 N.W.2d 225, 228 (Minn. 1995) (applying test in reviewing summary judgment).
The plaintiff may establish a prima facie case either by direct evidence or indirect inference of a discriminatory motive. Sigurdson v. Isanti County, 386 N.W.2d at 720. The specific elements necessary to establish the inference vary with the particular fact pattern and employment context. Id. Generally, in a termination case the plaintiff must show
(1) that the employee was a member of the protected class, (2) that the employee was qualified for the position held, (3) that the employee was discharged, and (4) that the employer assigned a non-member of the protected class to do the same work.

Rademacher, 431 N.W.2d at 882 (citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 442 (Minn. 1983)).
The trial court ruled that appellant did not establish a prima facie case because another minority, a Filipino, replaced appellant. The trial court erred in this respect. Blacks are the protected class here; because a non-black person was assigned to the position, a motive to discriminate against black people could still be inferred.
Assuming a prima facie case, respondent nevertheless met its burden of providing evidence of legitimate, nondiscriminatory reasons for appellant's termination: appellant's deficient writing, computer skills, and attitude. It thus became appellant's burden to present evidence showing that these reasons were pretextual. Appellant could meet this burden either by showing that a discriminatory reason likely motivated respondent or indirectly "by showing that [respondent's] proffered explanation is unworthy of credence." Sigurdson v. Isanti County, 386 N.W.2d at 720.
The trial court ruled that appellant failed to submit evidence sufficient to rebut respondent's evidence of legitimate, nondiscriminatory reasons for appellant's termination. We agree. Appellant presented no direct evidence of a discriminatory motive; nor did he submit any evidence impinging the credibility of respondent's nondiscriminatory reasons. Appellant argues that his writing was not worse than other employees' writing, but he provided no evidence supporting such a claim. Appellant also contends that he received no warnings about poor job performance, that respondent failed to give reasons for the termination at the time, and that respondent subsequently disclosed a fraudulent evaluation form; the manner in which respondent explained its decision to appellant, however, does not undermine the legitimacy of those reasons. Appellant argues that he was actually terminated in retaliation for making certain comments and refusing to agree to a payroll deduction, but such reasons are also nondiscriminatory. Finally, appellant argues that respondent's motion is supported only by self-serving affidavits; nevertheless, appellant may not simply enter general denials but must submit admissible evidence in support of his claims to prevent summary judgment.
We affirm the summary judgment on appellant's claim of racial discrimination with respect to his termination.
2. Implied Covenant of Good Faith and Fair Dealing
In opposing summary judgment, appellant argued that respondent breached an implied covenant of good faith and fair dealing when it terminated appellant. Appellant argued that such a covenant arose from the collective bargaining agreement between the state and the union, which required just cause for termination. Appellant contends on appeal that summary judgment on the termination claim was improper because a fact issue remained as to whether appellant was terminated because he refused to agree to a payroll deduction and whether such reason constituted good cause.
In awarding summary judgment on the termination issue, the trial court rejected this claim. Citing White v. Winona State Univ., 474 N.W.2d 410 (Minn. App. 1991), the trial court stated that appellant did not have standing to sue under the union contract because he was not party to that contract.
The trial court's reliance on White was misplaced. In White, the supreme court merely reiterated the rule that if a collective bargaining agreement's grievance procedure is intended as the exclusive remedy for an employee's claims, the employee cannot bring a legal action for breach of contract; such a controversy would be non-justiciable. Id. at 412. Here, appellant was not attempting to sue on the union contract; rather, he argued that the contract gave rise to an implied covenant between the state and him. Moreover, the collective bargaining agreement stated that decisions not to certify probationary employees were not governed by the agreement's grievance procedures; thus, the rule in White is inapplicable.
In Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853 (Minn. 1986), the supreme court noted that it had "not read an implied covenant of good faith and fair dealing into employment contracts," and it declined to do so in that case. Id. at 858-59. The court stated:
For sound policy reasons, a majority of our sister jurisdictions have likewise rejected the implication of a covenant of good faith termination.

Id. at 858.
We have read Hunt to reject such covenants: "Minnesota does not recognize an implied covenant of good faith and fair dealing in employment contracts." Bratton v. Menard, Inc., 438 N.W.2d 116, 118 (Minn. App. 1989), review denied (Minn. June 9, 1989); accord Holman v. CPT Corp., 457 N.W.2d 740, 743 (Minn. App. 1990). An exception to the employment-at-will rule exists, however, "where an employee handbook meeting the requirements for the formation of a unilateral contract provides for other rights." Bratton, 438 N.W.2d at 118; accord Holman, 457 N.W.2d at 743. Such a contract is formed by a definite offer, communication of the offer to the offeree, acceptance, and consideration. Holman, 457 N.W.2d at 743. "The handbook must contain specific and definite provisions, and not general statements of policy." Id.
We conclude that, as a matter of law, respondent was not subject to any contractual or quasi-contractual obligation to terminate appellant only for good cause. We have held consistently that an employment contract does not give rise to an implied covenant of good faith and fair dealing. Whereas we have recognized that an employee handbook may create a contractual right, there is no similar exception for collective bargaining agreements that do not manifest any intent to form a unilateral contract. The bargaining agreement is with the union; an employee cannot reasonably expect that the bargaining employer is thereby contracting with the individual employee. Summary judgment on this claim was appropriate.
3. Discrimination in Failing to Hire
After a bench trial, the trial court found that respondent did not discriminate against appellant by hiring Laura Kania instead of appellant for the Tanks and Spill PCS Senior position. A trial court's findings of fact may not be set aside unless clearly erroneous, and "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01.
This claim also requires analysis under the three-part McDonnell Douglas test. For a failure-to-hire claim, a plaintiff may establish the required prima facie case by showing
(i) that he belongs to a protected class; (ii) that he applied and was qualified for the job for which the employer was seeking applicants; (iii) that, despite his qualification, he was rejected; and (iv) that, after his rejection, the position remained available or was given to someone else with his qualifications.

Sigurdson v. Carl Bolander & Sons, 532 N.W.2d at 228 (footnote omitted). The supreme court has noted the "great deference" that must be accorded a trial court applying the McDonnell Douglas test. Sigurdson v. Isanti County, 386 N.W.2d at 721.
The trial court found that appellant did not establish a prima facie case of discrimination because he did not show that he applied for the Tanks and Spills PCS Senior position. Appellant argues that he applied by virtue of his application for PCS Senior status and his placement on the eligible list. At trial, appellant testified that after he received a score of 100 on his ratings examination and was placed on the list, he expected to be contacted whenever PCS Senior vacancies arose.
Jeff Bradt, the human resources director, gave testimony explaining the hiring process. The agency advertises in a state jobs bulletin that applications are continually accepted for PCS Senior classification. A person's application is graded for work experience, and the person is then given an exam score of either zero or 100 (the exam is graded on a pass/fail basis). If he receives a score of 100, the applicant receives a notice stating that his name will be placed on the eligible list for one year, that he will be referred for consideration to fill PCS Senior job vacancies for which he is qualified, and that the applicant must contact the position supervisor to be considered for a specific vacancy. If a vacancy occurs, notice of the vacancy is posted, and interested parties are required to contact the listed supervisor. Bradt testified that 100 to 130 names are on the eligible list at any one time. Bradt also testified that persons on the list are not necessarily qualified to fill every PCS Senior position (respondent employs approximately 160 PCS Seniors). Bradt stated that a PCS Senior is essentially an expert in a particular area and that an applicant needs experience in that area to be considered to fill that particular PCS Senior position.
The undisputed evidence indicates that on November 12, 1992, appellant received notice that he had received a score of 100 on his application for PCS Senior. The notice stated:
If you received a passing score your name has been placed on the eligible list. As vacancies occur we refer names from the eligible list based upon a match of job and candidate location availability, employment conditions and technical background. Your name will remain on the eligible list for 1 year.

A supervisor with a vacancy may contact any or all candidates. Supervisors are not required to contact all candidates referred. It is important that you answer letters about job possibilities.

(Emphasis added.) The notice of the vacancy for the Tanks and Spills PCS Senior position was posted on two bulletin boards on December 9, 1993, more than one year after appellant's name was placed on the eligible list. Appellant testified that he knew about the bulletin boards at the time of the posting. Rebecca Lofgren, the position's listed supervisor, testified that she did not contact everyone on the eligible list because the list contained too many names; she did not contact appellant because he did not contact her to express interest. Appellant conceded in his testimony that he did not contact Lofgren about the position.
The trial court found that appellant did not apply for the Tanks and Spills PCS Senior position, citing the facts that appellant's name was no longer on the eligible list and that appellant failed to contact Lofgren as required. In light of the evidence, we conclude that this finding is not clearly erroneous. Appellant notes that respondent failed to offer into evidence the actual eligible list as of the time of the vacancy. The trial court could reasonably infer, however, in the absence of evidence of a renewal by appellant, that appellant's name was dropped from the list after one year.
The trial court also found that appellant did not establish a prima facie case because he failed to show that he was qualified for the position. This finding is not clearly erroneous and is supported by the testimony of Bradt and Lofgren that appellant lacked the required experience with storage tank leak clean-ups.
The trial court further found that appellant failed to rebut the legitimate, nondiscriminatory reasons offered by respondent for its hiring decision. Lofgren testified that she did not consider appellant for the position because he did not apply for it. She testified that she hired Laura Kania instead because Kania's experience investigating storage tank leak clean-ups qualified her for the position. Appellant has not shown that these reasons were pretextual. Appellant argues that Kania was not more qualified than he because she did not have as much academic training in chemistry. Lofgren testified, however, that Kania's experience was superior, and the trial court's finding on this issue is not clearly erroneous. Appellant also testified that he was told that respondents never hire PCS Seniors from outside the agency, as they did when they hired Kania, but Bradt testified that 20 to 22 of the 160 PCS Seniors were hired from outside the agency. Moreover, such claim is immaterial because appellant was unable to show that he applied or was qualified for the position.
We affirm the judgment for respondent on appellant's claim of racial discrimination in hiring.
4. Chapter 43A
Appellant argues that the trial court erred in failing to credit the claims under Minnesota Statutes chapter 43A alleged in his complaint. See Minn. Stat. § 43A.01-.48 (1994 & Supp. 1995) (concerning the Department of Employee Relations). We do not consider this issue on appeal. The trial court never ruled on any claims arising under chapter 43A. Appellant's trial memorandum did not discuss such claims, and appellant did not present any evidence on this issue at trial. "An appellate court's scope of review is limited to issues considered and decided by the trial court." Geraci v. Eckankar, 526 N.W.2d 391, 398 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995), cert. denied, 116 S. Ct. 75 (1995).
Appellant contends that the trial court improperly coerced appellant into bringing his claims only under the Minnesota Human Rights Act and not under chapter 43A. There is nothing in the record, however, to support this contention.
5. Other Issues
Appellant has made numerous other claims on appeal, involving evidentiary and discovery issues, individual liability, a request for sanctions, a purported motion for change of venue, and the lack of a court reporter at certain hearings. We have carefully reviewed these claims and find them to be without merit.