may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Minnesota Department of Jobs and Training, et al.,
Filed November 19, 1996
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.[*]
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.
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.
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).
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.
[ ]* 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).