This opinion will be unpublished and

may not be cited except as provided by

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




Annie Miners,



Cargill Communications, Inc.,


Filed December 9, 1997

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Hennepin County District Court

File No. 966635

George E. Antrim, III, Jean E. Boos, Krause & Rollins, Chartered, 310 Groveland Avenue, Minneapolis, MN 55403 (for appellant)

Christopher J. Harristhal, C. Erik Hawes, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge.[*]



A discharged employee challenges the district court's summary judgment dismissing her claims for disability discrimination, breach of contract, and violation of Minn. Stat. § 181.938 (1996) (nonwork activities protection). We affirm the summary judgment on violation of § 181.938, but because the district court's collateral estoppel ruling on disability discrimination relied on a judgment that has since been reversed and because genuine issues of material fact remain on the breach of contract claim, we reverse and remand those claims.


Annie Miners worked as promotions director for a radio station owned by Cargill Communications, Inc. Her two-year employment contract was subject to termination for failure to perform her obligations or to adhere to company policy. Cargill discharged Miners after four months of employment for driving a company-owned vehicle after consuming alcohol and refusing to enter an inpatient chemical dependency treatment program.

Miners sued Cargill in federal district court, alleging employment discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213 (1994), employment discrimination under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363.01-363.14 (1996), breach of her employment contract, and defamation.

On a defense motion, the federal district court granted summary judgment on the ADA claim. Because it had dismissed the only claim over which it had original jurisdiction, the federal court declined to exercise supplemental jurisdiction over the state law claims. Miners appealed. While her federal appeal was pending, she filed suit in Minnesota State District Court alleging that Cargill violated the MHRA, violated Minn. Stat. § 181.938, subd. 2 (1996) (prohibiting employer from discharging employee for use of lawful consumable products off premises during nonworking hours), breached the employment contract, and negligently hired or retained her supervisor. Cargill moved for summary judgment on all claims; Miners did not oppose summary judgment on the negligent hiring or retention claim.

The district court ruled that Miners's claim for disability discrimination under the MHRA was barred by the federal district court's summary judgment on her ADA claim. Relying on Cargill's assertion of a company policy against driving a company vehicle after consuming alcohol, the district court also entered summary judgment on the breach of contract and lawful consumable products claim. Miners filed a notice of appeal to this court.

Three days after the state district court entered summary judgment, the Eighth Circuit Court of Appeals reversed the federal district court's summary judgment on the ADA and MHRA claims, ruling that Miners had presented a prima facie case and had offered sufficient evidence of pretext to survive summary judgment. The Eighth Circuit opinion did not specifically address the dismissal of the other two state law claims, but remanded for further proceedings in the federal district court. Cargill filed a petition for rehearing which was denied.

In this appeal Miners challenges the district court's summary judgment on her claims for disability discrimination under the MHRA, breach of contract, and violation of nonwork activities protection.



The district court relied on the doctrine of collateral estoppel to enter summary judgment against Miners's claim for disability discrimination under MHRA. The court reasoned that identical issues were involved in both the ADA and the MHRA claims and the federal district court's summary judgment against the ADA claim had preclusive effect on the MHRA claim.

In order for collateral estoppel to apply, a preclusive judgment must be final. Haavisto v. Perpich, 520 N.W.2d 727, 731 (Minn. 1994) (listing criteria necessary for determining whether collateral estoppel applies). The district court correctly concluded that an appeal after a final judgment does not suspend finality for purposes of determining whether the parties are estopped from further litigation. Wegge v. Wegge, 252 Minn. 236, 238, 89 N.W.2d 891, 892 (Minn. 1958); State ex rel. Spratt v. Spratt, 150 Minn. 5, 7, 184 N.W. 31, 32 (Minn. 1921); American Druggists Ins. v. Thompson Lumber Co., 349 N.W.2d 569, 572 (Minn. App. 1984). But three days after the district court's entry of summary judgment, the Eighth Circuit reversed the federal district court's summary judgment that formed the basis for the district court's collateral estoppel ruling. The reversal of a judgment on appeal vacates or annuls the judgment and eliminates its preclusive effect. Spratt, 150 Minn. at 7, 184 N.W. at 32. The reversed judgment is no longer effective for collateral estoppel purposes. Wilcox Trux, Inc. v. Rosenberger, 169 Minn. 39, 43, 209 N.W. 308, 310 (Minn. 1926).

Cargill argues that Miners cannot raise the Eighth Circuit reversal in this appeal because it was not raised in the district court action. We reject this argument. See Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997), review denied (Minn. Aug. 26, 1997) (absurd to suggest district court was required to "stand by" earlier collateral estoppel ruling once earlier case reversed); Crystal Beach Bay Ass'n. v. County of Koochiching, 309 Minn. 52, 56-57, 243 N.W.2d 40, 42-43 (Minn. 1976) (allowing consideration on appeal of decision of agency entered after decision from which appeal taken). We likewise reject Cargill's argument that we should independently determine that Miners has failed to present a prima facie case under the MHRA. This argument overlooks the Eighth Circuit's reversal of the federal district court's judgment on the disability discrimination that specifically reinstated both the ADA and the MHRA claims in the federal action. Miners v. Cargill Communications, Inc., 113 F.3d 820, 825 (8th Cir. 1997), cert. denied, 66 U.S.L.W. 3194 (U.S. Nov. 17, 1997).


On the remaining two claims, breach of contract and violation of Minn. Stat. § 181.938, subd. 2 (1996), the district court concluded that Miners had failed to demonstrate sufficient evidence on essential elements of the claim to create a triable issue. See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (defendant entitled to summary judgment as a matter of law when record reflects "complete lack of proof" on essential element of plaintiff's case).

We agree that Miners has failed to present evidence that invokes the protection of Minn. Stat. § 181.938, subd. 2. Subdivision 2 relates to certain nonwork activities of employees and provides that

[a]n employer may not * * * discipline or discharge an employee because the * * * employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.

Minn. Stat. § 181.938, subd. 2. Alcoholic beverages are included in the definition of "lawful consumable products." Id.

Miners asserts that she was terminated in violation of § 181.938 for consuming alcohol during nonworking hours. The available evidence, however, does not support that assertion. In her charge and statement to the Minnesota Department of Human Rights and U.S. Equal Employment Opportunity Commission, Miners states that she was told she was terminated for driving the company van while intoxicated. Although the record contains evidence that the reason for her termination was also her refusal to submit to alcohol treatment, the record does not factually support a claim that Miners was terminated because she consumed alcohol during nonworking hours. Minn. Stat. § 181.938 contains no prohibition against an employer terminating an employee for driving a company vehicle after consuming alcohol. See Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984) (statutes are to be construed according to their plain and ordinary meaning).

The district court's entry of summary judgment on Miners's breach of contract claim presents a more difficult analytical issue. The Eighth Circuit opinion aptly summarizes the evidence relating to the breach-of-contract issue: "the rule Miners supposedly violated was never presented in written form and, according to Miners, never communicated to her. Moreover, accepting Miners's evidence as true, her blood alcohol content would have been minimal at the time [Cargill Communications] confiscated her keys, and it is undisputed that Cargill made no attempt to determine whether Miners was under the influence." Miners, 113 F3d at 824.

Miners denies any knowledge of an oral company policy that prohibits driving company vehicles after consuming alcohol. She points to a written policy disseminated only a month before her termination that states that although employees are prohibited from consuming alcohol during working hours, they are required only to exercise judgment in their use of alcohol at company functions during nonworking hours. As the Eighth Circuit opinion observes, the existence of the company's oral policy is further undermined by Miners's evidence that persons in management at Cargill consumed alcohol prior to driving vehicles without recourse by Cargill.

The terms of Miners's employment contract are not disputed. She was subject to termination for failure to perform or for violation of a company policy. Cargill has not contended that Miners's performance was deficient; only that she failed to follow a company policy when she drove a company vehicle after drinking. Miners has raised a genuine issue of material fact on whether Cargill adhered to its employment contract, and, consequently, we reverse summary judgment on her breach of contract claim.

Affirmed in part, reversed in part, and remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.