This opinion will be unpublished and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

C8-96-388

John Nieszner,

Appellant,

vs.

Minnesota Department of Jobs and Training, et al.,

Respondents.

Filed November 19, 1996

Affirmed

Amundson, Judge

Randall D.B. Tigue, 2620 Nicollet Avenue, Minneapolis, MN 55408 (for appellant)

Hubert H. Humphrey, III, Attorney General, Gary Cunningham, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.[*]

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

AMUNDSON, Judge

John Nieszner appeals from the final judgment entered following a bench trial. He argues that: (1) the "law of the case" doctrine precluded the trial court from finding that his conduct was not entitled to protection under the Whistleblower Act; (2) the trial court's finding that his discharge from employment was not caused by his statutorily protected conduct is clearly erroneous; and (3) the trial court erred in determining that his conduct was not entitled to protection under the Act. We affirm.

FACTS

This is the fourth appeal to come to this court as a result of appellant John Nieszner's termination from his job at the Department of Jobs & Training.[1] In an earlier appeal, this court reversed and remanded, noting that "Nieszner is entitled to a chance to prove that his complaints were more likely than not the cause of his termination." Nieszner v. Minnesota Dep't of Economic Security, No. C6-94-1177 (Minn. App. Nov. 15, 1994). Nieszner got that chance at the bench trial, May 2-5, 1995. After the bench trial, the court found that

Plaintiff was discharged for the following reasons: a. Insubordination; b. Engaging in a pattern of disruptive and abusive conduct; and c. Prior history of discipline showing a disregard of the valid interests and standards of his employer.

The trial court also found that "plaintiff's testimony was not credible. His answers were hypertechnical, manipulative and evasive." This appeal followed.

D E C I S I O N

The Whistleblower Act provides that an employer may not fire an employee because:

the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official * * *.

Minn. Stat. § 181.932, subd. 1(a) (1994).

I. Law of the Case

This court's opinion in Nieszner I contained the following sentence: "There apparently is no dispute that Nieszner was engaging in statutorily protected conduct." Nieszner argues that because of this sentence, the trial court was precluded by the "law of the case" doctrine from determining that his conduct was not entitled to statutory protection. We disagree. The doctrine of law of the case does not bar the trial court's findings because neither this court nor the district court ruled on the issue of whether he engaged in protected conduct. See Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 719-20 (Minn. 1987) (the doctrine of law of the case applies "where an appellate court has ruled on a legal issue" and remanded the case to the trial court for further proceedings). Thus, the trial court was free to make findings on the issue on remand. See id. at 20. ("[I]ssues not determined in the first appeal may, on remand, be litigated").

II. Causation

Nieszner argues that the trial court's finding that his complaints were not the cause of his discharge was clearly erroneous.

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 because such cases are usually so dependent on the credibility of live witness testimony. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986). Nieszner relies on Hubbard. In Hubbard, the supreme court noted that "a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time" justifies an inference of retaliatory motive. 333 N.W.2d at 445. However, such proof only establishes a prima facie case. It gives rise to a permissive, not a mandatory, inference of retaliatory motive. In Hubbard, the court determined that

[a]lthough the timing of the discharge in this action does raise an inference of retaliatory motive that is sufficient to satisfy the causation element of Hubbard's prima facie case, we find that the inference has been soundly rebutted and that it does not operate to satisfy Hubbard's ultimate burden of persuasion.

Id. at 445-46. Similarly, in this case, Nieszner's arguments may support an inference of retaliation, but do not mandate such a conclusion. Especially considering the trial court's finding that Nieszner's testimony was not credible, and given the findings concerning Nieszner's poor work history, we hold that the trial court's finding that his complaints were not the cause of his discharge was not clearly erroneous.

Because we affirm the trial court's finding that Nieszner's discharge was not caused by his complaints, we do not reach the issue of whether the trial court erred in determining that he was not engaging in statutorily protected conduct.

Affirmed.

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

[ ]1 See Nieszner v. Minnesota Dep't. of Jobs and Training, No. C9-94-2422 (Minn. App. July 3, 1995) (affirming grant of summary judgment against Nieszner on claims relating to his application for employment services following his termination), review denied (Minn. Aug. 30, 1995); Nieszner v. Minnesota Dep't of Economic Security, No. C6-94-1177 (Minn. App. 1994) (reversing grant of summary judgment against Nieszner on whistleblower claim; genuine issue of material fact existed regarding whether "his complaints were more likely than not the cause of his termination"); Nieszner v. Minnesota Dep't of Jobs & Training, 499 N.W.2d 832 (Minn. App. 1993) (employer's failure to make a timely and formal appeal from the initial determination that relator was not disqualified from receiving benefits precluded further review by the Department of Jobs and Training).