This opinion will be unpublished and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

C5-96-459

Daniel Reuben,

Appellant,

vs.

Honeywell, Inc.,

Respondent.

Filed October 22, 1996

Affirmed

Harten, Judge

Hennepin County District Court

File No. 94-12599

Christopher R. Walsh, Walsh Law Office, 270 Grain Exchange North Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for Appellant)

Cortlen G. Cloutier, Cloutier & Cloutier, P.A., 1800 Midwest Plaza West, 801 Nicollet Mall, Minneapolis, MN 55402 (for Appellant)

Eric J. Magnuson, William J. Egan, Dale L. Deitchler, Rider, Bennett, Egan & Arundel, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Foley, Judge.[*]

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

HARTEN, Judge

Daniel Reuben appeals from two summary judgments dismissing his claims against Honeywell for race discrimination, retaliation, defamation, intentional and negligent infliction of emotional distress, and negligent retention and supervision. We affirm.

FACTS

Daniel Reuben, an African American male, began working for Honeywell in 1974. Reuben claims that in 1990, his group leader, Tom Working, called him racially derogatory names and along with two other Honeywell employees, Kevin and Val Skogen, tried to undermine Reuben's job performance. Reuben alleges other discrimination in 1989 or 1990.

In August 1990, Reuben changed to the second shift to avoid Working and the Skogens. Reuben did not experience any problems from that time until early 1993, when Working and the Skogens started working overtime, so their hours overlapped with Reuben's. According to Reuben, Working and the Skogens then began harassing him again.

In August 1993, Reuben went to Val Skogen to discuss an allegation that he was not doing his share of the work. According to Val Skogen, Reuben threatened to have his wife "beat her up" and "f--- her up" if she did not stop harassing him. Reuben denied making the alleged threats. Reuben's supervisor conducted an investigation and reported his findings to management personnel, who concluded that the incident warranted Reuben's dismissal.

Reuben was discharged on August 19, 1993 for threatening Val Skogen. He then filed a grievance under his collective bargaining agreement and was reinstated in November 1993. Shortly after he returned, his supervisor decided to require a department-wide skills assessment test or formal training for department employees. Reuben took the test and failed. Many Caucasian employees also failed. Reuben filed the instant lawsuit against Honeywell in August 1994.[1]

D E C I S I O N

On appeal from a summary judgment, we must determine whether there are any issues of material fact and whether the trial court erred in its application of the law, viewing the facts in the light most favorable to the non-prevailing party. Faimon v. Winona State Univ., 540 N.W.2d 879, 881 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).

Reuben sued Honeywell in August 1994, alleging violations of Title VII, the Minnesota Human Rights Act, and the Minneapolis Civil Rights Ordinance. Title VII's statute of limitations is 300 days. 42 U.S.C.A. § 2000e-5(e)(1) (West 1994). The Minnesota Human Rights Act and the Minneapolis Civil Rights Ordinance have one-year limitations provisions. Minn. Stat. § 363.06, subd. 3 (1994); Minneapolis, Minn. Code of Ordinances § 141.50 (1996).

The "continuing violation" doctrine tolls a statute of limitations when an employer's discriminatory acts over a period of time "indicate a systematic repetition of the same policy and constitute a sufficiently integrated pattern to form, in effect, a single discriminatory act." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 n. 11 (Minn. 1983). Continuity of the alleged violation itself is required. Sigurdson v. Isanti County, 448 N.W.2d 62, 67 (Minn. 1989). Reuben admitted in his deposition that he had nothing to complain about between August 1990 and early 1993. Therefore, any continuity was lost during that time, and we cannot consider any allegations of discrimination before 1993.

Under the three-part McDonnell Douglas test,[2] a plaintiff must first present evidence supporting a prima facie case of discrimination, the employer may then present evidence of a legitimate non-discriminatory reason for its actions, and the plaintiff must present proof that the proffered reason was a pretext for discrimination. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). This test is applicable to motions for summary judgment. See Sigurdson v. Carl Bolander & Sons, Inc., 532 N.W.2d 225, 229 (Minn. 1995) (citing McDonnell Douglas and reinstating summary judgment).

Reuben cites no evidence that Honeywell management or supervisory personnel were aware of any alleged harassment in 1993.[3] Reuben's claim that Honeywell had an ulterior motive for firing him in August 1993 is unsupported by any evidence. See Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) (stating that mere speculation, unsupported by concrete evidence, cannot defeat motion for summary judgment). Nor has Reuben cited any evidence that his supervisor's decision to require a test or further training was based upon Reuben's race.

To prevail on his discrimination claim based on a hostile working environment, Reuben must provide evidence that Honeywell management knew, or should have known, of the harassment and failed to take proper remedial action. See Thompson v. Campbell, 845 F. Supp. 665, 673 (D. Minn. 1994) (stating elements required to survive summary judgment on claim of hostile environment sexual harassment) (citing Bersie v. Zycad Corp., 417 N.W.2d 288 (Minn. App. 1987)). Reuben cites no evidence showing that he complained to a supervisor about the alleged harassment. A letter from a former employee informing Honeywell of alleged harassment is undated, and therefore insufficient to support an allegation that Honeywell should have known of the alleged harassment in 1993.

The district court properly found that Reuben did not establish a prima facie case of reprisal discrimination, because he did not engage in protected conduct. See Minn. Stat. § 363.03, subd. 7 (1994) (prohibiting and defining reprisal discrimination by an employer). Reuben's claim of defamation also fails. Working's alleged racial epithets were directed against Reuben in 1990, beyond Minnesota's two-year statute of limitations for defamation. Minn. Stat. § 541.07 (1994). Reuben's claim that in 1993 he was characterized as "lazy" is unsupported by any citations to affidavits, deposition testimony, or any other specific evidence in the record. See Bob Useldinger & Sons, 505 N.W.2d at 328.

Honeywell's statements about Reuben's alleged threats to Val Skogen occurred during an investigation and termination of Reuben for making the alleged threats, and during the subsequent arbitration process. The district court correctly concluded that Honeywell's statements during that time were qualifiedly privileged and that the privilege was not abused. See Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 125 (Minn. App. 1992) (stating that employer may be protected from claim of defamation by qualified privilege when statements are made in good faith and for legitimate purpose, even though hindsight might show statements to be false), review denied (Minn. Apr. 29, 1992). Reuben cites no specific evidence of malice by Honeywell. See id. at 126 (stating that plaintiff may defeat qualified privilege by proving actual malice, defined as "actual ill will, or a design causelessly and wantonly to injure plaintiff") (quoting McBride v. Sears, Roebuck & Co., 306 Minn. 93, 98, 235 N.W.2d 371, 375 (1975)).

Even if Reuben was escorted from the office after he was discharged, that fact would not support an actionable claim for defamation. Bolton v. Department of Human Servs., 540 N.W.2d 523 (Minn. 1995).

In support of his claim for intentional infliction of emotional distress, Reuben argues that his statements during the investigation were intentionally altered in his employment file. Reuben cites no specific evidence that Honeywell's conduct was "extreme and outrageous" and that his emotional distress was "severe," as required by Hubbard, 330 N.W.2d at 438-39.

The district court correctly determined that Reuben did not support his claim of negligent infliction of emotional distress, because he was not within a zone of physical danger. See Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). "The zone of danger requirement may be replaced by an intentional tort such as defamation or other willful, wanton, or malicious act." Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996). Reuben has no viable claim for an intentional tort.

Reuben also claims negligent retention and negligent supervision, but he has not cited any evidence of threatened or actual physical injury prerequisite to a claim of negligent retention or supervision. See Bruchas v. Preventive Care, Inc., ___ N.W.2d ___ (Minn. App. Sept. 3, 1996).

Honeywell has moved to strike from Reuben's appendix over 200 pages of materials, which were not a part of the record. At oral argument, Reuben asked us to expand the record. "An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below." Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). We grant Honeywell's motion to strike and deny Reuben's request that we accept materials outside the record. We decline, however, to impose sanctions on Reuben's counsel.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1Because Reuben's complaint was filed in August 1994, any events after that time are irrelevant to this appeal.

[ ]2 See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

[ ]3 Although Working was a group leader, there is no evidence that he had any supervisory authority over Reuben from 1993 on.