Minn. Stat. § 480A.08, subd. 3 (1996).
Opportunity Workshop, Inc.,
Hennepin District Court
File No. 96-10925
Scott A. Higbee, Mark W. Bay, Peterson, Engberg & Peterson, 700 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Penelope J. Phillips, Frederick W. Vogt, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Avenue South, Suite 4200, Minneapolis, MN 55402-4302 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
U N P U B L I S H E D O P I N I O N
Appellant argues the district court erred when it denied his motion for leave to amend his complaint on the ground that the motion was untimely and that the amended complaint did not state a viable claim under Minn. Stat. § 181.932, subd. 1 (Supp. 1997), Minnesota's whistleblower statute. We affirm.
On June 18, 1997, OWI brought a motion for summary judgment on Johnson's breach of contract claim contained in the original complaint. On July 1, 1997, Johnson served a motion for leave to amend his complaint to include the whistleblower claim. In his memorandum supporting the motion, Johnson stated that he did not oppose OWI's motion for summary judgment on the breach of contract claim. On August 18, 1997, the district court granted summary judgment for OWI on Johnson's breach of contract claim and denied Johnson's motion to amend the complaint. The court ruled that the motion was untimely because Johnson waited nearly nine months after retaining counsel to bring the motion to amend and that it was prejudicial because the motion was brought after the close of discovery and after OWI had prepared and filed its motion for summary judgment on the original complaint. In the alternative, the court ruled that Johnson had failed to allege a viable claim for relief under the whistleblower statute. This appeal followed.
Next, Johnson argues that the district court erred when it concluded that his amended complaint failed to state a viable legal claim under the whistleblower statute in violation of Minn. Stat. § 181.932, subd. 1 (Supp. 1997). In its memorandum, the district court ruled that even if Johnson's motion for leave to amend was not untimely, his claim under the whistleblower statute failed because he did not establish a viable claim under the statute. The court concluded that Johnson did not engage in statutorily protected conduct, that Johnson failed to make any allegation that OWI was violating the law, and that he had produced no evidence showing a causal link between his allegedly protected conduct and his termination. We agree.
There is no abuse of discretion where the amendment asserts a claim that is not legally recognizable or the movant fails to establish evidence supporting his claim. Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 405 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995). An amendment may also be properly denied when the additional claim could not survive summary judgment. CPJ Enters., Inc. v. Gernander, 521 N.W.2d 622, 625 (Minn. App. 1994).
To establish a prima facie case under the whistleblower statute, the plaintiff must show: (1) he was engaged in conduct protected under the act; (2) the employer took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). Under Minnesota's whistleblower statute, an employer is prohibited from discharging an employee because the 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 to any governmental body or law enforcement official.
Minn. Stat. § 181.932, subd. 1(a).
The district court noted that Johnson never asserted that he reported a violation of state or federal law as required by the statute. Johnson maintains that he refused to sign his job description in an effort to have the issue of health and safety violations addressed by OWI. Although Johnson claims that he brought his concerns about health and safety violations to the attention of his supervisors, the record and his amended complaint do not show or allege that he reported any such violations to outside authorities. An action under the whistleblower statute cannot be maintained if the employee fails to report suspected violations of state or federal law to outside authorities, if a report is not made to the employer, as is the case here. See Rothmeier, 556 N.W.2d at 593 (holding where employee knew employer was already aware of issue and where employee merely mentioned suspected unlawful activity to employer, employee's actions did not constitute "report" under whistleblower statute); Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 180 (Minn. App. 1991) (holding employee failed to establish claim under whistleblower statute where he merely gave his supervisor feedback and did not report allegedly unlawful conduct to outside authorities), aff'd, 479 N.W.2d 58 (Minn. Jan. 31, 1992). Further, Johnson does not claim or allege that he was terminated because of the reports of health and safety violations that he allegedly made to his supervisors. There is simply no nexus between his firing and the reports he allegedly made to his supervisors. Thus, Johnson did not engage in statutorily protected conduct and has therefore failed to establish a viable claim under the whistleblower statute.
Johnson has also failed to allege a viable claim under Minn. Stat. § 181.932, subd. 1(c). This section provides that an employer may not discharge or discriminate against an employee because the employee refuses to perform an action ordered by the employer when the employee has an objective basis in fact to believe the action violates state law, federal law, or rule or regulation, and the employee informs the employer of the reason for the refusal to perform. Minn. Stat. § 181.932, subd. 1(c).
Johnson claims that he refused to sign his job description because he would not be permitted to fulfill the job duties outlined in the job description. As the district court stated, it is common practice for employers to require employees to sign a job description. Johnson has provided no authority that OWI's request that he sign his job description violates any state or federal law or rule or regulation. Johnson simply alleges that based on the past practices of OWI, he would not be allowed to fulfill the job duties as listed in the job description. However, at most this contemplates future unlawful conduct by OWI, and there is no evidence that Johnson would have been prevented from fulfilling the duties listed in his job description. Johnson's amended complaint has not alleged that OWI's request violates any specific state or federal law.
Given the speculative nature of Johnson's claim and the fact that he has not alleged that the request by OWI that he sign his job description violates any state or federal law by OWI, Johnson's amended complaint does not allege a viable legal claim under the whistleblower statute, and the district court did not clearly abuse its discretion in denying his motion for leave to amend.