This opinion will be unpublished and

may not be cited except as provided by

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




Marcia Wilkins,



Dayton's Commercial Interiors, Inc.,

d/b/a Dayton's Commercial Interiors,


Filed January 20, 1998


Crippen, Judge

Hennepin County District Court

File No. 965707

Karla R. Wahl, 4840 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Daniel C. Gerhan, Samuel Rosenstein, Faegre & Benson LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and,

Holtan, Judge.[*]



Appellant Marcia Wilkins challenges the summary judgment dismissing her age discrimination and reprisal claims, contending that she successfully presented a prima facie case. We affirm.


In April 1995, reciting performance problems in the preceding two years, respondent Dayton's Commercial Interiors discharged appellant from an interior designer position she had held for 17 years.


On appeal from a summary judgment, we must determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Admiral Merchants Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261, 265 (Minn. 1992). All inferences of fact must be resolved in favor of the nonmoving party. Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 918 (Minn. App. 1993), review denied (Minn. Mar. 22, 1993). A fact is material if its resolution would affect the outcome of the case. Rathbun v. W.T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974).

Circumstantial Evidence of Discrimination

In age discrimination cases brought under the Minnesota Human Rights Act, the plaintiff has the burden of showing a discriminatory motive by either direct or indirect evidence. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). In cases involving indirect evidence, this court follows the McDonnell Douglas three-part test. Id. To establish a prima facie case of discrimination through indirect evidence, a plaintiff must show that she: "(1) is a member of the protected class; (2) was qualified for the position from which she was discharged; and (3) was replaced by a non-member of the protected class." Feges v. Perkins Restaurants, 483 N.W.2d 701, 711 (Minn. 1992) (citing McDonell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).

Appellant cannot establish a prima facie case because she cannot show that she was replaced. There is no evidence that the two younger employees that were hired prior to appellant's termination were replacements. And there is no merit in appellant's contention that the replacement element of the prima case was eliminated by the Supreme Court in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878, 116 S. Ct. 1307 (1996). O'Connor addresses the kind of replacement that shows a wrongful act, and the case is of no import in the circumstances of this case, where there has been no showing of any replacement. Appellant's presentation of facts is deficient as a matter of law.

2. Direct Evidence

Alternatively, appellant contends that she has made a prima facie showing of discrimination through direct evidence. Appellant's proof can be divided into four categories, none of which create a genuine issue of material fact entitling appellant to a trial.

First, appellant claims that a company executive said that "older sales people aren't willing to learn the new ways" and that "older designers * * * are resistant to learning new techniques and systems." Appellant has failed to provide any context for these statements or establish any connection between them and her termination. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778-79 (8th Cir. 1995) (requiring a causal connection between statements and discriminatory conduct).

Second, appellant contends that statistical analysis of the ages of respondent's employees shows a pattern of discrimination against older employees. Although the average age of employees has gone down, there is no showing of the reasons for the reduction and there is no evidence that older employees were discharged and then replaced by younger employees.

Third, appellant claims that the evaluations, warnings and firing were based on unfounded criticism of her work. Appellant's general assertions of faultlessness are not supported by any factual evidence and are not specific enough to create a genuine issue of material fact. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995) (noting that "general assertions" are not enough to create a genuine issue of material fact).

Finally, appellant contends that she was singled out for criticism that was not directed at younger employees who engaged in the same conduct. Appellant has not shown that the younger designers were not criticized for similar conduct. Her conclusory observations as to the treatment of the younger designers are not specific enough to permit a finding of differential treatment for like problems. See Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988) ("In order to successfully oppose summary judgment, appellant must extract specific, admissible facts from the voluminous record and particularize them for the trial judge."), review denied (Minn. Mar. 30, 1988). Thus, appellant has failed to make a prima facie showing through direct evidence.

3. Prima Facie Case of Reprisal

Appellant also contends that her firing was an act of reprisal, violating Minn. Stat. § 363.03, subd. 7 (1996). To establish a prima facie case of reprisal, appellant must show: "(1) that she engaged in statutorily protected conduct; (2) an adverse employment action by the employer; and (3) a causal connection between the two." Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 327 (Minn. 1995). Appellant may establish a causal connection by "`showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.'" Id. (quoting Hubbard v. U.P.I., Inc., 330 N.W.2d 428, 445 (Minn. 1983)).

Appellant argues that her firing can be linked to her age discrimination complaints. But all of her complaints followed warnings by respondent. Appellant failed in her effort to show reprisal because she did not show a direct causal link between respondent's adverse action and her complaints of age discrimination.


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