This opinion will be unpublished and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

C5-96-1949

C4-96-1988

Gormidou Lavela,

Respondent (C5-96-1949)

Relator (C4-96-1988),

vs.

Freeport West, Inc.,

Relator (C5-96-1949)

Respondent (C4-96-1988),

Minneapolis Commission on Civil Rights,

Respondent (C4-96-1988).

Filed April 1, 1997

Reversed

Amundson, Judge

Minneapolis Commission on Civil Rights

File No. 92134-EM-1A

John G. Shulman, Shulman, Walcott & Shulman, P.A., 2999 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for Gormidou Lavela)

Paul Neimann, Charles E. Jones, Cory Larsen Bettenga, Moss & Barnett, P.A., 4800 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for Freeport West, Inc.)

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

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

AMUNDSON, Judge

In this consolidated appeal, Freeport West, Inc. challenges the Minneapolis Commission on Civil Rights' decision in favor of Gormidou Lavela, arguing that Lavela failed to present a prima facie case of retaliatory discharge and, in the alternative, that the damage award was inappropriate. Lavela, a former employee of Freeport, challenges the commission's reduction of his award based on his failure to mitigate damages. We reverse.

FACTS

Gormidou Lavela was born in Liberia and came to the United States in 1972. He received his law degree from the University of Detroit College of Law in 1981, then returned to Liberia for five years. Lavela returned to the United States in 1986 and was unsuccessful in pursuing a legal career in Michigan or Minnesota. In November 1990, he was hired as a social worker at Freeport West, Inc., a nonprofit social service agency. After Lavela completed the standard six-month probation period, Jan Berry, the executive director, and George Kressin, the supervisor of the family services program, extended his probationary period by an additional six months. Kressin met with Lavela in August 1991. They discussed Lavela's work-related problems, which had been the subject of an earlier memo from Kressin to Lavela. Kressin claimed that Lavela had problems working with others, and Lavela denied this. On August 15, 1991, Kressin terminated Lavela's employment.

Lavela filed a complaint with the Minneapolis Commission on Civil Rights (commission), alleging racial discrimination. Claiming that Freeport had a race-matching policy for its social workers and its clients, Lavela asserted that he had been terminated as a reprisal for complaining about the policy.

The commission found that Freeport engaged in illegal race-matching practices and that Lavela's termination had been a reprisal for his opposition to those practices. The commission further found that Lavela was entitled to one year's salary ($21,000), trebled ($63,000), but that because Lavela had not sufficiently mitigated his damages, he was awarded $50,000. In addition, Lavela was awarded $5,000 in mental anguish damages, as well as attorney fees. This appeal followed.

D E C I S I O N

The court is asked to review the decision of the commission. A reviewing court may reverse or modify a decision of an agency if the decision is

(a) In violation of constitutional provisions; or

(b) In excess of the statutory authority or jurisdiction of the agency; or

(c) Made upon unlawful procedure; or

(d) Affected by other error of law; or

(e) Unsupported by substantial evidence in view of the entire record as submitted; or

(f) Arbitrary or capricious.

Minn. Stat. § 14.69 (1994).

I. The McDonnell Douglas burden-shifting analysis

Freeport argues that Lavela failed to present a prima facie case of racial discrimination as required by the McDonnell Douglas standard. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). As it applies to a reprisal case, that standard requires that the complainant show: (1) statutorily protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

Lavela argues that his complaints about Freeport's race-matching policy were statutorily protected conduct and that he was discharged in retaliation for his complaints. The commission agreed. The commission found:

9. Sometime in 1991 Lavela complained to another African-American employee, Beverly Harris, that Kressin was race matching clients to workers. Harris told Lavela that she too was not permitted to work on a particular case because she was black.

10. Kressin admits that he was aware of Lavela's complaints. Kressin, however, failed to take adequate steps to investigate them.

11. Similarly, Freeport's executive director Janet Berry admitted that she too was aware of Lavela's complaints. Yet, she failed to contact Lavela directly, which she acknowledged violated her general policy of investigating complaints by speaking directly with the complaining party.

These findings, however, are not supported by the record. The record does contain testimony that Beverly Harris had complained about race matching. The transcript shows that Kressin and Berry had heard about Lavela's "back of the bus" comment (though Berry learned of it after Lavela's dismissal). However, that comment arose out of an argument about desk arrangements that involved two African-American colleagues and Lavela, in which Lavela stated that he felt like he was "in the back of the bus." The dispute had been resolved and there does not seem to have been a racial component to the argument, despite the language used by Lavela about "the back of the bus." Finally, the transcript indicates that after his suspension, Lavela wrote a memo detailing his complaints about race matching at Freeport, but that Kressin never received the memo. There is no evidence that either Kressin or Berry was aware of Lavela's opposition to race matching at Freeport.

In short, the record fails to support Lavela's prima facie case under the McDonnell Douglas standard. First, while Lavela does testify to being angry about the race matching, there is no evidence that he complained about it to management at Freeport. Second, there is no evidence that management at Freeport was aware of any of his complaints, other than his "back of the bus" comment. Finally, the record does not support an assertion of a causal connection between Lavela's unhappiness with the race matching at Freeport and his dismissal. Not only did Freeport management not know about Lavela's opposition to the race matching, but his dismissal was based on well-documented performance deficiencies.

It appears that Freeport's race-matching policy did violate Minnesota law. See Minn. Stat. § 363.03, subd. 1 (2)(c)(d) (1994). However, that is not the issue before us. In a retaliation claim by a discharged employee, the employee must establish a prima facie case under the McDonnell Douglas standard. Hubbard, 330 N.W.2d at 444. Because Lavela failed to meet that standard, we hold that the commission's findings in favor of Lavela were unsupported by substantial evidence in the record.

II. Motions to Strike and for Award of Sanctions

Freeport moved to strike all references to settlement negotiations made in Lavela's submissions, claiming that references made are in violation of Minn. R. Evid. 408. Freeport also moves for attorney fees and costs as sanctions. Lavela responds that Rule 408 does not apply since Freeport had already made reference to its settlement offer in a December 15, 1995 letter to the commission. We agree. The motions to strike and for award of sanctions are denied.

Reversed.