This opinion will be unpublished and

may not be cited except as provided by

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




Millie Yakubek,



Westbrooke Patio Homes Association, Inc.,


Filed October 7, 1997


Norton, Judge

Hennepin County District Court

File No. 96-4103

George C. Ramler, Ramler Law Office, P.A., 14550 Excelsior Boulevard, Suite 206, Minnetonka, MN 55345 (for Appellant)

David G. Hellmuth, Randall H. Steinmeyer, Hellmuth & Johnson, P.A., 9531 West 78th Street, Suite 300, Eden Prairie, MN 55344 (for Respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.



Appellant alleges that the district court erred in granting summary judgment on her claims arising from the termination of her employment. Appellant failed to raise a genuine issue of material fact that she was "disabled" within the meaning of the Minnesota Human Rights Act and has failed to establish a prima facie case under the whistleblower statute. We affirm.


In January 1995, respondent Westbrooke Patio Homes Association, Inc., hired appellant Millie Yakubek as a part-time administrative employee. Her duties gradually increased until she became full-time office manager.

In October 1995, Yakubek found a bag of marijuana near her car in the Westbrooke Patio parking lot. Although one of Westbrooke Patio's maintenance employees claimed the bag, Yakubek refused to return it to him; instead, she turned the bag over to police. She also reported this discovery to Westbrooke Patio's board of directors. The board of directors instructed her to adopt a drug policy for the workplace, which she did. Later, Yakubek learned that a number of Westbrooke Patio's maintenance employees were smoking marijuana in violation of the recently enacted drug policy. She reported this conduct to the board. Following the second report, conflict developed between Yakubek and the maintenance workers.

On November 8, 1995, Westbrooke Patio gave Yakubek a letter of termination explaining that complaints from various members of the maintenance staff had led to the decision. After Yakubek discussed the letter with the board, her supervisor, and the association attorney, Westbrooke Patio withdrew the termination letter. After a special meeting, where the board of directors addressed the allegations the maintenance staff made against Yakubek, the board decided not to terminate Yakubek's employment.

On December 11, 1995, Yakubek's doctor issued an Occupational Health Status Report indicating that Yakubek should be excused from work for the next week due to depression and anxiety.

On December 19, 1995, the board of directors voted to terminate Yakubek's employment. At Yakubek's request, the board provided her with a letter detailing the reasons for her termination. The letter states that Yakubek's termination was primarily due to the board's decision to hire a general manager whose duties would encompass those previously performed by Yakubek. The letter states, however, that several other reasons warranted Yakubek's termination, including Yakubek's: (1) insubordination; (2) excessively long lunch breaks and purchase of drinks for minor employees of the association; (3) failure to communicate messages to the association's maintenance supervisor in a timely or adequate manner; (4) conducting real estate agency business through the association office; (5) using association funds for the purchase of personal property; (6) failure to provide various correspondence to the association's board of directors; (7) failure to disburse monies (to the county) owed for child support obligations of one of the association's employees; and (8) inability to work with the maintenance supervisor.

Yakubek filed a complaint alleging that termination of her employment violated the whistleblower statute, the Minnesota Human Rights Act (MHRA), and Minn. Stat. § 176.82, subd. 1 (Supp. 1995), which prohibits the retaliatory discharge of employees who sought workers' compensation benefits. Westbrooke Patio filed a motion for summary judgment. Following a hearing, the district court issued an order granting the motion. The district court concluded that Yakubek had not presented evidence to demonstrate a causal link between her workers' compensation claim and the termination of her employment.[1] The court also concluded that Yakubek was not entitled to protection under the whistleblower statute because she had not presented evidence that the maintenance employees' marijuana use implicated a matter of public concern. Finally, the court concluded that Yakubek did not have a claim under the MHRA because she failed to raise a genuine issue of material fact about whether she was "disabled" within the meaning of the MHRA.


On an appeal from summary judgment, this court must determine whether any genuine issues of material exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). The party opposing summary judgment "may not rest upon the mere averments or denials of the adverse party's pleading but must present specific facts showing that there is a genuine issue for trial." Minn. R. Civ. P. 56.05. "The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Minnesota Human Rights Act

Yakubek contends that she was discharged due to her absence from work from December 11-18, 1995, because of depression and anxiety. In challenging summary

judgment, she argues that she raised a genuine issue of material fact over whether this discharge violated the MHRA because her depression and anxiety constituted a disability under the MHRA. We disagree.

Under the MHRA, a person is "disabled" if that person:

1. has a physical, sensory, or mental impairment which materially limits one or more major life activities;

2. has a record of such an impairment; or

3. is regarded as having such an impairment.

Minn. Stat. § 363.01, subd. 13 (1994). Whether a person suffering from depression and anxiety is "disabled" under the MHRA depends on whether the mental stress materially limits the employee in one or more major life activities, such as the ability to work. See, e.g., Sigurdson v. Carl Bolander & Sons, Inc., 532 N.W.2d 225, 228 (Minn. 1995) (working is major life activity; statute applies when some impairment materially limits major life activity); Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn. App. 1993) (plaintiff's mental health problems raised prima facie case of disability under statute because plaintiff was unable to work for several years as result of depression); Brookshaw v. South St. Paul Feed, Inc., 381 N.W.2d 33, 36 (Minn. App. 1986) (holding that mental stress is not disability under statute absent evidence that condition substantially limited plaintiff's major life activities, such as appellant's ability to work), review denied (Minn. Apr. 11, 1986).

Generally, however, the inability to obtain or maintain one job is not a material limitation of one or more major life activities. See Sigurdson, 532 N.W.2d at 228-29 (holding plaintiff with diabetes was not "disabled" under MHRA because diabetes had not materially limited his ability to obtain and retain employment for most of life; inability to obtain one job is not material limitation of major life activity); State by Cooper v. Hennepin County, 441 N.W.2d 106, 111 (Minn. 1989) (holding plaintiff with poor vision was not "disabled" under MHRA because preclusion from one job is not substantial impairment of major life activity).

Yakubek's anxiety and depression prevented her from performing her job for one week. Given that Yakubek's inability to perform this one job was only temporary, it was not a material limitation of one or more major life activities under the MHRA. Sigurdson, 532 N.W.2d at 229. Yakubek has not raised a genuine issue of material fact that she was disabled under the MHRA. Therefore, the district court properly granted summary judgment on this claim.

2. Whistleblower Statute

Yakubek alleges that the district court erred in concluding that she was not entitled to protection under the whistleblower statute because she failed to raise an issue that the maintenance employees' marijuana use implicated public concern. We disagree.

The whistleblower statute provides:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

(a) the employee, or 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 any governmental body or law enforcement official.

Minn. Stat. § 181.932, subd. 1(a) (1994). Yakubek claims she was discharged because she reported fellow employees' use of marijuana. In order to raise a prima facie case under the whistleblower statute, a plaintiff must establish that she engaged in conduct protected under the act, that the employer took adverse employment action, and that a causal connection existed between the two. Thompson v. Campbell, 845 F. Supp. 665, 674 (D. Minn. 1994).

Yakubek contends that she engaged in conduct protected under the whistleblower statute because the maintenance staff's marijuana use is a matter of public concern. See Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 571 (Minn. 1987) (holding that discharge of employee, who reported gas station's pumping of leaded gasoline into unleaded tanks, violated whistleblower statute due to statute's policy of protecting environment against such contamination). Yakubek alleges that the maintenance staff's impairment from using marijuana could harm the public due to the nature of the maintenance workers' jobs. Yakubek claims that the district court minimized the responsibilities of the maintenance staff by failing to recognize that maintenance staff are responsible for clearing snow and ice in the winter, lawn maintenance in the summer, performing roof repairs, trimming trees, and occasionally entering homes to perform tasks such as plumbing repair.

Although these arguments are compelling, Yakubek offered no evidence in the district court to support her allegations and raise an issue of material fact regarding the nature of the maintenance workers' job duties. The record contains no affidavits, testimony, or other evidence describing what responsibilities the maintenance workers have at Westbrooke Patio. Without some evidence of their job duties showing that their marijuana use could potentially cause public harm, we cannot determine whether the district court "minimized" the workers' job responsibilities. Because Yakubek failed to raise a genuine issue of material fact on her whistleblower claim, summary judgment was proper.


[1] Yakubek has not appealed the workers' compensation issue to this court.