This opinion will be unpublished and

may not be cited except as provided by

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




Susan K. Johnson,



State of Minnesota, et al.,


Filed August 26, 1997


Peterson, Judge

Ramsey County District Court

File No. C09310989

Joel E. Smith, Joel E. Smith Law Office, 351 Second Street, Excelsior, MN 55331 (for appellant)

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

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.



In this employment discrimination case, a discharged employee argues that summary judgment was improper because a genuine issue of material fact existed as to whether her employer intentionally discriminated against her. We affirm.


Appellant Susan K. Johnson was employed at the Minnesota Department of Corrections (MDOC) from 1979 until her termination on July 16, 1991. She worked as a caseworker at the MDOC-St. Cloud facility (St. Cloud) from 1979 to January 1990, when she voluntarily transferred to MDOC-Stillwater (Stillwater). She worked at Stillwater until November 1990, when she transferred back to St. Cloud.

In a letter dated July 10, 1991, St. Cloud superintendent Larry Siegel terminated appellant's employment effective July 16, 1991. Siegel gave three reasons for the termination, appellant's excessive absences, her failure to control her alcoholism, and her failure to provide St. Cloud with information about (1) her whereabouts and (2) her medical condition.

Appellant brought suit against respondents State of Minnesota, MDOC, and several supervisory employees, alleging causes of action for gender discrimination, sexual harassment, disability discrimination, retaliation, negligent supervision, and defamation. Respondents' motion for summary judgment on all claims was granted. This appeal challenges only the grant of summary judgment on appellant's gender discrimination and disability discrimination claims.


On appeal from summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court properly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in a light most favorable to the nonmoving party. Id. Summary judgment is appropriate when the nonmoving party relies upon general statements of fact and fails to show that specific facts exist that create a genuine issue for trial. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).

Minnesota courts have adopted the three-part McDonnell-Douglas analysis for adjudicating disparate treatment claims. Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995). Under this analysis, the employee first has the burden of establishing a prima facie case of discrimination. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). Then the employer has the burden of producing evidence of a legitimate nondiscriminatory reason for its actions. Id. Finally, if the employer meets its burden of production, the employee has the burden of persuading the court that the employer intentionally discriminated against her. Id.

Respondents do not dispute that appellant presented a prima facie case of discrimination, and appellant does not dispute that respondents met their burden of producing evidence of a legitimate, nondiscriminatory reason for discharging appellant. The sole issue on appeal is whether appellant presented sufficient evidence to create a genuine fact issue as to whether MDOC intentionally discriminated against her.

Appellant can prove intentional discrimination

"either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."

Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981)).

Appellant argues that the evidence she presented was sufficient to show that a discriminatory reason likely motivated MDOC and that MDOC's proffered reasons for discharging her are unworthy of credence.

Gender Discrimination

Appellant contends that several statistical reports she submitted demonstrate that MDOC discharged her for a discriminatory reason because the reports indicate that promotions for women correctional officers were rare. The reports appellant submitted, however, contain only general statements about practices at MDOC. They do not contain any information about appellant's termination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 n.19, 93 S. Ct. 1817, 1826 n.19 (1973) (general determinations not controlling as to individual hiring decision in presence of otherwise justifiable reason for refusing to hire).

Appellant also presented evidence about male employees who she contends were in situations similar to hers, but who were placed on leaves of absence rather than being terminated. We agree with the district court that the situations of all but one of these men were not similar to appellant's situation. Appellant made no showing that any of the identified men held positions similar to hers or that any of the men were involved in alcohol abuse treatment four times within an 18-month period, had a long-term problem with absenteeism, had failed to contact the facility and keep them apprised of their status during their absences, and had failed to provide adequate medical documentation. The only male whose situation was similar to appellant's situation was terminated the same day as appellant for abusing his medical leave.

Appellant claims that the evidence she presented demonstrated that there were factual errors in Siegel's discharge letter, and that these errors demonstrate that MDOC's stated reasons for discharging appellant were merely pretext for a discriminatory discharge. The letter stated:

You have been employed in Corrections for eleven years. You have earned more than a thousand hours of sick leave. Your sick leave is now depleted. The highest balance you ever attained was 310 hours. You very rarely have worked a complete 80 hours per pay period. Your supervisor advised you in October, 1990 that he expected improved attendance. Your absences have been excessive just as pointed out to you in October, 1990.

Appellant contends that her sick leave was not depleted at the time of her termination, and that she instead had 38 or 42.5 hours of sick leave available. She also contends that she was not told by her St. Cloud supervisor in October 1990 that her sick leave usage was excessive. However, she admits that she was told during her August 1990 review at Stillwater that her sick leave usage was excessive. The August 1990 review cited appellant's "significant, long term pattern of excessive sick leave usage." Also, an affidavit by appellant's supervisor at St. Cloud indicated that while her absentee rate was always high, in her final two months in 1991 she took sick leave on May 13-17, June 10-13, and June 16, and was absent without pay on June 19-21, 24-28, July 1-3, 8-12, and 15-16. Appellant does not dispute the actual hours she was absent.

While there may have been factual disputes about the number of hours of sick leave appellant had available on July 10 and whether appellant had been told in August or October 1990 that her sick leave usage was excessive, these disputes do not present a material fact issue regarding the credibility of Siegel's statement that appellant was discharged for excessive absences. "A material fact is one of such a nature as will affect the result or outcome of the case depending upon its resolution." Rathbun v. W.T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974).

Whether appellant had depleted her sick leave on July 10, or had 38 or 42.5 hours still available, is a material fact issue if resolution of this issue will affect the determination whether appellant was discharged for excessive absences. Appellant argues that because she had not depleted her sick leave, Siegel's statement that she was discharged for excessive absences was not credible. This argument implies that the sole basis for detemining that her absences were excessive was that she had depleted her sick leave. But Siegel's letter indicates that the determination that appellant's absences were excessive was also based on (1) her use of more than 1,000 hours of sick leave during eleven years of employment, (2) her regular failure to work a complete 80 hours per pay period, and (3) the fact that appellant's absences continued after she had been advised that she was expected to improve her attendance. Given these three independent bases for determining that appellants' absences were excessive, we conclude that determining whether appellant depleted her sick leave, or still had some sick leave available when she was discharged, will not affect the determination whether Siegel's statement that she was discharged for excessive absences was credible.

Similarly, whether appellant was told in August or October 1990 that she was expected to improve her attendance will not affect the determination whether Siegel's statement was credible. Either way, appellant was advised to improve her attendance, and when she failed to do so, she was fired.

Siegel's letter also stated:

You have entered alcohol treatment programs at least three times and only presented evidence of completion at Hazelden. You left programs without evidence of completion being presented to your employer. Institution staff have received information from concerned persons on numerous occasions indicating that you have not been maintaining sobriety. You were in detoxification on September 23, 1990. We received information on June 28, 1991 from the St. Cloud Police Department that you had been committed to Willmar State Hospital and that you had left St. Cloud Hospital without authorization. You have not been in contact with us to apprise us of your status.

Appellant contends that factual misstatements in this paragraph demonstrate that MDOC's statement that she was discharged for failing to control her alcoholism is not credible. Appellant stated in her affidavit that she provided MDOC with written verification that she completed the Metropolitan Mount Sinai Medical Center program and that she had been admitted to the Fellowship Club. She also asserts that the "concerned persons" who reported her lack of sobriety and that she was in detoxification on September 23, 1990, cannot be identified, and therefore, the statements are unsubstantiated.

Appellant also argues that Siegel's statement that she was committed to Willmar State Hospital and left St. Cloud Hospital is unsubstantiated. However, in arguing to the district court that her mental incompetence tolled the statute of limitations, appellant stated that she was conditionally committed to the Willmar State Hospital after her sister committed suicide in May 1991. The condition provided that if she did not comply with treatment at the St. Cloud Hospital, she would be committed to Willmar. Appellant acknowledged that she left St. Cloud Hospital prior to completing treatment, to seek outpatient psychiatric care, and explained that this was subsequently approved by the court that dismissed the conditional commitment.

Finally, appellant argues that the statement that she had not been in contact with the St. Cloud facility to apprise them of her status is false. She cites evidence indicating that when she missed work due to illness for several days before June 20, 1991, she called the St. Cloud facility on a daily basis. But this evidence does not demonstrate that appellant contacted St. Cloud to apprise them of her status during her absences on June 24-28, and July 1-3, 8-12, and 15-16.

Significantly, appellant does not dispute that she had continuing problems with alcoholism, nor does she claim that the evidence she presented demonstrated that she was able to control her alcoholism when she was discharged. The evidence she presented does not demonstrate that MDOC's statement that she was discharged for failing to control her alcoholism was not credible.

Finally, Siegel's letter stated:

You have not been truthful or forthcoming as to your whereabouts. The address you gave to your supervisor has not been your home for more than a year according to the St. Cloud Police Department. You assured your supervisor just last month that such address was current.

Your supervisor has asked repeatedly to be provided information on your claimed medical problems. To date you have provided a note from a general practitioner saying you had been under his medical care and unable to work, no diagnosis or prognosis. You were granted your final hours of sick leave based on that letter. Your sick leave was exhausted in June, 1991. Your supervisor was to have received a detailed medical letter last week but none arrived. Your supervisor has cautioned you on your poor attendance and lack of communication. Summarizing his position in his letter of June 20, 1991, we have to this date not received certification that you received the letter. Mr. Hilleren did, however, tell you about it on the telephone when you called him on June 21, 1991. We simply cannot depend upon you to perform professional duties at this institution.

Appellant contends that the evidence she presented was sufficient to show that MDOC's statement that she was dismissed for failing to provide information about her whereabouts and her medical condition was not credible.

The St. Cloud facility's June 20, 1991, letter was sent by certified mail to appellant's home address but could not be delivered. Appellant submitted copies of rent certificates for the relevant period and a copy of an envelope addressed to her home address and postmarked during the relevant period to show that she resided at the address she provided to the facility. But the fact that she continued to rent the home and that mail was delivered to her there does not demonstrate that she was living in the home. She also asserts that she was hospitalized between June 6, and June 28, 1991, and that in an August 5, 1991, meeting the union representative gave this information to Siegel. But evidence that MDOC received information after July 10 does not undercut the credibility of Siegel's July 10 statement that appellant was discharged for failing to provide the information.

Appellant also disputes that she failed to provide her employer with appropriate documentation regarding her medical condition. She states that on July 11, 1991, MDOC was provided by facsimile a letter from her treating psychiatrist that included a diagnosis, a prognosis, and an opinion that appellant could not return to work at that time. However, there is no evidence that this facsimile was received before the July 10, 1991, discharge letter was written. At the time appellant was discharged, appellant had provided MDOC only a June 18, 1991, letter from her doctor, which stated in its entirety, "Sue Johnson is under my medical care and is unable to work at this time." We conclude that even though appellant may be able to demonstrate that there are errors or misstatements in Siegel's letter, the errors she alleges, even if proved, do not demonstrate that the stated reasons for her discharge are not worthy of credence.

Disability Discrimination

Appellant also disputes the summary judgment on her disability claim regarding her alcoholism. As a threshold matter, she must meet the statutory definition of being a "qualified disabled person." A qualified disabled person in employment is defined as "a disabled person who, with reasonable accommodation, can perform the essential functions required of all applicants for the job in question." Minn. Stat. § 363.01, subd. 35(1) (1996). Disability, however,

excludes any condition resulting from alcohol or drug abuse which prevents a person from performing the essential functions of the job in question or constitutes a direct threat to property or the safety of others.

Id., subd. 35.

In this case, the district court granted summary judgment on the disability claim, relying on the provision that disability excludes any condition resulting from alcohol use which prevents a person from performing the essential functions of the job in question. Id.; see Larson v. Koch Ref. Co., 920 F. Supp. 1000, 1005 (D. Minn. 1996) (holding that even if plaintiff argued his misconduct was inseparable from his alcoholism, Minn. Stat. § 363.01, subd. 35, excludes problems resulting from such condition, and his pattern of short-notice absences and criminal legal troubles are not protected conduct). Here, the district court stated:

Johnson admits she was incompetent in July, 1991. There is no dispute that she was unable to perform the essential functions of the job at the time of her discharge. Therefore, her claims of disability discrimination must be dismissed.

This reasoning is dispositive and we find it unnecessary to reach appellant's other arguments.