This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1469

Marceline M. Herrmann,

Respondent,

vs.

Carver Soil and Water Conservation District,

Appellant.

Filed March 25, 1997

Affirmed in part and vacated in part.

Mulally, Judge

[*]

Carver County District Court

File No. CX-94-852

Michael J. Minenko, 300 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for Respondent)

Thomas P. Carlson, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for Appellant)

Peter D. Bergstrom, 7914 Platt Avenue N.W., South Haven, MN 55382 (for Appellant)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Mulally, Judge.

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

MULALLY, Judge

Appellant contends that the district court's judgment relating to respondent's breach of employment contract claim should be vacated based on lack of subject matter jurisdiction. Alternatively, appellant challenges the district court's award and calculation of damages on that claim. Respondent also challenges dismissal of her age discrimination claim. Because respondent brought an independent civil action in district court rather than a petition for writ of certiorari, we vacate the judgment relating to respondent's breach of employment contract claim and affirm the portion of the judgment concerning her age discrimination claim.

FACTS

Appellant Carver Soil and Water Conservation District (District) provides soil and water conservation advice to farmers and residents of Carver County. The District is governed by a board of elected members and is located in a small office in Carver County. In 1993, the District consisted of a district manager, one full-time technician, a part-time technician, respondent Marceline Herrmann's four-fifths time administrative secretary position, and a two-fifths time clerk. The technicians provided field services to landowners and the administrative secretary and clerk were clerical positions.

Herrmann was initially employed by the District in 1967 as a district clerk. In approximately 1970, her title was changed to administrative secretary; her duties remained the same. In 1986, Herrmann's title was changed to comply with a state requirement that every district have a "district manager;" her duties again remained unchanged.

In July 1990, the District's board voted to hire a true district manager and Herrmann's job title was changed back to administrative secretary and her position was reduced from full-time to four-fifths time because the new district manager assumed some of her duties.

In 1992 and 1993, the board denied Herrmann cost of living increases, alleging that her recent change in job title had put her above the maximum salary allowed for the administrative secretary position. No other employee was denied cost of living adjustments in 1992 or 1993. In February 1993, Herrmann submitted a written grievance suggesting that the District had discriminated against her by denying her cost of living increases. According to Herrmann, this grievance was never decided.

In August 1993, prompted by a recommendation from the personnel committee, the District board voted to eliminate Herrmann's administrative secretary position and the two-fifths time clerk position and combine them into one district clerk position. In December 1993, the District conducted an open application process advertising the position in local newspapers and bulletins. The District hired a woman in her twenties for the new position. Herrmann did not apply for the consolidated position because she believed that it should have been offered to her pursuant to the terms of her employee handbook. Herrmann's employment was terminated effective December 31, 1993; at that time, she was 61 years old.

Herrmann sued the District for age discrimination, reprisal discrimination, and breach of employment contract. The district court granted summary judgment in favor of the District and Herrmann appealed to this court. This court affirmed summary judgment on Herrmann's reprisal claim but reversed and remanded the employment discrimination and breach of employment contract claims. Herrmann v. Carver Soil & Water Conservation Dist., No. CX 95-110 (Minn. App. June 27, 1995). Following a bench trial, the district court issued findings of fact, conclusions of law, and order for judgment finding that Herrmann's discharge was not based on age discrimination, but found for Herrmann on the breach of employment contract claim and awarded damages. Both parties moved for amended findings; the district court denied the District's motion and granted a portion of Herrmann's motion.

The District contends that the district court's judgment should be vacated because the district court lacked subject matter jurisdiction over Herrmann's breach of employment contract claim since the exclusive method of review of the District's employment decision was through a writ of certiorari. Alternatively, the District challenges the district court's award and calculation of damages on Herrmann's breach of employment contract claim. Herrmann filed notice of review on her age discrimination claim and the court's calculation of damages on her contract claim.

D E C I S I O N

1. The District argues that this court should vacate the district court's judgment because the district court did not have subject matter jurisdiction. Lack of subject matter jurisdiction can be raised at anytime including, for the first time, on appeal. See, e.g., Mangos v. Mangos, 264 Minn. 198, 202, 117 N.W.2d 916, 918 (1962) (lack of subject matter jurisdiction may be raised at any time); Norris Grain Co. v. Nordaas, 232 Minn. 91, 98, 46 N.W.2d 94, 99 (1950) (may challenge subject matter jurisdiction at any stage). The existence of subject matter jurisdiction is a question of law subject to de novo review on appeal. Neighborhood Sch. Coalition v. Independent Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992), review denied (Minn. June 30, 1992).

The District argues that subject matter jurisdiction is lacking because the exclusive method for an employee to receive judicial review of a county's employment decision is through a petition for a writ of certiorari to this court within 60 days of the county board's decision. See Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (fired nursing home administrator could only challenge county's action through certiorari); Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 677-78 (Minn. 1990) (teacher could only challenge termination by writ of certiorari). The supreme court explained its rationale:

Because it mandates nonintrusive and expedient judicial review, certiorari is compatible with the maintenance of fundamental separation of power principles, and thus is a particularly appropriate method of limiting and coordinating judicial review of the quasi-judicial decisions of executive bodies.

Dietz, 487 N.W.2d at 239 (footnote omitted).

Herrmann argues that Dietz does not control this case because her breach of employment contract claim does not require this court to examine the board's decision to terminate her; Herrmann argues that her claim is based solely on the District's failure, after her position was abolished, to transfer her to the newly created district clerk position in accordance with the employee handbook. The supreme court rejected this same argument in Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996). The plaintiff in Willis claimed that the county employer breached his employment contract by failing to follow the termination and lay-off procedures specified in the county's employment handbook. Id. at 282. Willis argued that the district court had subject matter jurisdiction over his claim because his breach of employment contract claim did not require the court to examine the county's decision to discharge him. Id. The supreme court held that

[r]egardless that the claim is cloaked in the mantle of breach of contract, when the alleged breach of the employment contract of a governmental employee results in termination of the claimant's employment by an executive body which does not have statewide jurisdiction--for example, a county--the claimant may contest the employer's action by certiorari alone, absent statutory authority for a different process.

Id. Therefore, we vacate the district court's judgment pertaining to Herrmann's breach of employment contract claims because the district court did not have subject matter jurisdiction and Herrmann's sole recourse was to seek a petition for a writ of certiorari.[1]

2. It is an unfair employment practice and a violation of the Minnesota Human Rights Act (MHRA) for an employer to discharge an employee because of age. Minn. Stat. § 363.03, Subd. 1(2)(b) (1996).[2] Minnesota law permits plaintiffs to prove discriminatory intent in such cases by circumstantial evidence in accordance with the three-part McDonnell Douglas analysis. See Sigurdson v. Isanti County, 386 N.W.2d 715, 720-21 (Minn. 1986) (adopting three-part analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). This analysis requires that first, plaintiff establish a prima facie case of discrimination; second, defendant must then produce evidence of a nondiscriminatory reason for plaintiff's treatment; third, plaintiff must demonstrate that the nondiscriminatory reason is pretextual. Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623-24 (Minn. 1988). Because of the difficulties involved in appellate review of factually intensive employment discrimination cases, the district court must explicitly apply the three-step McDonnell Douglas analysis in making its findings of fact and conclusions of law. Sigurdson, 386 N.W.2d at 721.

Herrmann claims that the district court failed to make a finding concerning whether the reasons the District gave for Herrmann's discharge were not worthy of belief and a pretext for age discrimination under McDonnell Douglas. The district court found that Herrmann established a prima facie case, that the District showed a nondiscriminatory reason for the discharge, and that the reason proffered by the District for the merger of the two positions "was not a pretext for discrimination." We conclude that these findings reflect a proper application of the McDonnell Douglas analysis.

3. Additionally, Herrmann argues that the district court's finding that the reasons proffered by the District for Herrmann's termination were not pretextual is clearly erroneous. The district court's findings should not be overturned on appeal unless they are clearly erroneous. Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn. 1989). A high degree of deference to the district court's factual findings is appropriate in employment discrimination cases because of the intricate factual issues involved and the district court's opportunity to meaningfully assess the weight and credibility of the evidence. Sigurdson, 386 N.W.2d at 721. After a review of the facts and the record on appeal, and mindful of the deference we must give to the district court's opportunity to judge the credibility and weight of the evidence, we conclude that the district court's findings are not clearly erroneous.

Affirmed in part and vacated in part.

[ ]* 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 Because we vacate the district court judgment pertaining to Herrmann's breach of contract claim since the district court lacked subject matter jurisdiction over this claim, we do not address the District's or Herrmann's other arguments regarding this claim.

[ ]2 The MHRA specifically applies to governmental bodies and subdivision. Therefore, Herrmann's age discrimination claim is not limited to review by certiorari and the district court had subject matter jurisdiction over this claim. Willis, 555 N.W.2d at 283 (holding that even though violation of the MHRA may implicate some of the aspects of the county's decision to discharge, the act specifically applies to state and political subdivisions as well as private employers).