This opinion will be unpublished and

may not be cited except as provided by

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




Margie Riebhoff,



Cenex/Land O'Lakes Agronomy Company,


Filed December 29, 1998


Schumacher, Judge

Dakota County District Court

File No. C3978059

John E. Thomas, 24 East Fourth Street, St. Paul, MN 55101 (for appellant)

Thomas J. Conley, Nancy E. Brasel, Leonard, Street and Deinard P.A., 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.



Appellant Margie Riebhoff challenges the district court's grant of summary judgment dismissing her age discrimination, retaliation, defamation, and negligent infliction of emotional distress claims, arguing that genuine issues of material fact exist with regard to each claim. Riebhoff has failed to establish a prima facie case for any of her claims. We affirm.


Riebhoff was hired by Farmers Union Central Exchange, Inc., now known as CENEX, Inc., in 1966. In 1986 or 1987, Riebhoff was transferred to respondent Cenex/Land O'Lakes Agronomy Company, a joint venture between CENEX and Land O'Lakes, where she worked as an accounting clerk until 1996. Riebhoff's supervisors reviewed her work performance annually. From 1966 to 1993, Riebhoff's work was reviewed as meeting or exceeding requirements. In 1993, however, the review of Riebhoff's work performance indicated that she needed to apply computer skills and that she needed to seek out updated means to accomplish tasks.

Throughout 1994, Riebhoff met with her supervisors on various occasions to discuss problems with her job performance. As a result of one of the meetings, Cenex/Land O'Lakes hired a temporary employee to help Riebhoff complete her work. After Riebhoff caught up, her supervisors informed her that it was important for her to complete her work if she wished to maintain her employment.

In January 1995, Riebhoff's supervisors evaluated her job performance for 1994. For the first time, Riebhoff's work did not meet requirements. According to the evaluation, Riebhoff did not understand new technologies and she preferred older techniques. In order to assist Riebhoff, her supervisors identified strategies to help her meet her job requirements.

During 1995, Riebhoff's supervisors continued to inform her that her work performance was unsatisfactory and that she needed to use faster, updated techniques. In February 1996, Riebhoff's supervisors evaluated her 1995 job performance, indicating that she did not meet the job requirements. The review stated that Riebhoff had trouble organizing and prioritizing her work, she had trouble using updated methods, she had trouble accepting authority, she personalized all conflicts and was unable to resolve them, she had trouble problem-solving, she was sometimes rude, she did not meet all deadlines, and she needed assistance to handle nonroutine tasks. On March 7, 1996, Riebhoff was terminated for unsatisfactory performance.

During the time she worked for Cenex/Land O'Lakes until December 1995, 15 full-time employees and one part-time employee worked in the accounting department. In March 1996, after Riebhoff was terminated, her duties were distributed among the remaining one part-time and 14 full-time employees.

Riebhoff does not dispute that she failed to complete the work assigned to her. According to Riebhoff, the quality of her job performance declined because Cenex/Land O'Lakes disproportionately increased her workload and because she received a lesser amount of assistance from part-time and temporary employees. Riebhoff cites "comparative studies" conducted by Cenex/Land O'Lakes and herself. Cenex/Land O'Lakes concedes that the accounting department was asked to complete more work after the acquisition of additional agronomy centers. Cenex/Land O'Lakes contends, however, that this work was not disproportionately assigned to Riebhoff.

According to Riebhoff, various physical and emotional ailments resulted from her disproportionately high workload. In September 1994, Riebhoff's physician restricted her to no more than ten hours of overtime per week, and in August 1995, she was further restricted to spend no more than 50% of her work hours keying on the computer. Cenex/Land O'Lakes never instructed Riebhoff to work more than 45 hours per week, but she claims that it was impossible to complete the tasks assigned to her in that amount of time.

Based upon these facts, Riebhoff brought age discrimination, retaliation, defamation, reprisal, false representation, and negligent infliction of emotional distress claims. The district court granted Cenex/Land O'Lakes's summary judgment motion on all claims. Riebhoff appeals with regard to the age discrimination, retaliation, defamation, and negligent infliction of emotional distress claims.


On appeal from a summary judgment, we review the record to determine whether any genuine issues of fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We must view the evidence in the light most favorable to the nonmoving party. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). In order to establish a genuine issue of material fact, a party "must do more than rest on mere averments." DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

Riebhoff contends that Cenex/Land O'Lakes's decision to terminate her employment was a result of age discrimination in violation of Minn. Stat. §§ 181.81 and 363.03(2) (1996). To establish a prima facie case of age discrimination, Riebhoff must show the following: (1) she was over the age of majority; (2) she was qualified for the position she held; (3) despite her qualifications, her employment was terminated; and (4) a younger person was assigned to do her work. Ward v. Employee Dev. Corp., 516 N.W.2d 198, 201 (Minn. App. 1994), review denied (Minn. July 8, 1994).

Riebhoff has failed to show a prima facie case on the second element. To establish the second element of her prima facie case, Riebhoff needed to show that she was "doing [her] job well enough to rule out the possibility that [s]he was fired for inadequate job performance." Lee v. Rapid City Area Sch. Dist. No. 51-4, 981 F.2d 316, 329 (8th Cir. 1992) (citation omitted). The performance reviews and memoranda from meetings compiled over two years show that Riebhoff was consistently unable to complete her assigned tasks, despite numerous efforts by supervisors to assist her.

Riebhoff contends that there is a genuine issue of material fact as to this element because the quantity of tasks assigned to her was impossible to complete, and that her unmanageably large workload was the result of "low-key" harassment by her supervisors. In support of her claim, Riebhoff relies on "comparative studies" which purportedly show that her workload was much greater than that of her co-workers. These documents do not support Riebhoff's claim. The "comparative studies" do not consider the amount of work completed by part-time employees, the time period during which the data was compiled, or the other duties assigned to Riebhoff and her co-workers.

Riebhoff is also unable to show the fourth element of a prima facie case of age discrimination--that a younger employee replaced her. In Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319 (Minn. 1995), the supreme court stated that

a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.

Id. at 324 (citation omitted).

Riebhoff also claims that Cenex/Land O'Lakes increased the quantity of work assigned to her in retaliation for her efforts to receive workers' compensation benefits. Minn. Stat. § 176.82, subd. 1 (1996) states:

Any person discharging or threatening to discharge an employee for seeking workers' compensation benefits or in any manner intentionally obstructing an employee seeking workers' compensation benefits is liable in a civil action.

To establish a prima facie case of retaliatory discharge, Riebhoff must show (1) that she engaged in statutorily protected activity, (2) that adverse employment action by her employer resulted, and (3) that there is a casual connection between the statutorily protected activity and the adverse consequences. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).

Cenex/Land O'Lakes does not dispute that Riebhoff engaged in statutorily-protected activity. Riebhoff has not shown, however, that Cenex/Land O'Lakes took adverse employment action. The record does not support Riebhoff's claims that Cenex/Land O'Lakes retaliated by disproportionately increasing her workload or forcing her to violate work restrictions. In fact, the record shows that Riebhoff's supervisors provided her with the forms necessary to perfect her workers' compensation claim and helped to improve the ergonomics of her work area. Because Riebhoff failed to make a prima facie case of retaliation, the grant of summary judgment was proper.

Riebhoff further claims that her supervisors' discussion of her work performance and the performance evaluations completed in 1994, 1995, and 1996 constituted defamation. Minnesota has long recognized the elements of a defamation action: a false statement, communication to a third party, and harm to the reputation of the plaintiff. Ferrell v. Cross, 557 N.W.2d 560, 565 (Minn. 1997). One who makes a defamatory statement will not be held liable if the statement is communicated under circumstances that make it qualifiedly privileged and if the privilege is not abused. Bol v. Cole, 561 N.W.2d 143, 149 (Minn. 1997). If a communication is privileged, "[a]ctual malice must be proved, before there can be a recovery, and in the absence of such proof the plaintiff cannot recover." Strauss v. Thorne, 490 N.W.2d 908, 912 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992) (citation omitted). Minnesota courts recognize a qualified privilege for communications arising out of employment reviews and employment termination. See Gunnufson v. Orian Corp., 450 N.W.2d 179, 183 (Minn. App. 1990) (discussion of reason for plaintiff's dismissal by management employees at meeting was within qualified privilege).

The evidence does not support Riebhoff's defamation claim. The record shows that the critical comments in Riebhoff's performance reviews were based on her incomplete work and were not fabricated by her supervisors. Even if some of these statements were false, there is no evidence that her supervisors made those comments with malice. The communications do not use exaggerated language and were not conveyed to anyone other than her supervisors or her employment file. See Frankson v. Design Space Int'l, 394 N.W.2d 140, 144 (Minn. 1986) (holding that malice can be shown by, inter alia, exaggerated language and mode and extent of publication). For these reasons, the district court correctly concluded that Riebhoff failed to establish a prima facie case of defamation.

Riebhoff further contends that her supervisors' conduct constituted negligent infliction of emotional distress. To recover for negligent infliction of emotional distress, a plaintiff must show that he/she was within a zone of danger of physical impact, reasonably feared for his/her safety, and consequently suffered severe emotional distress with resulting physical injury. Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). An exception to the "zone of danger" rule is that

a plaintiff may recover damages for mental anguish or suffering for a direct invasion of his rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct.

Id. Riebhoff's negligence infliction of emotional distress claim is based on her assertion that her supervisors discriminated against her on the basis of her age, retaliated against her for seeking workers' compensation, and defamed her in their discussion of her work performance. As previously discussed, Riebhoff has failed to establish a prima facie case on any of these claims, and therefore they cannot be the basis for a negligent infliction of emotional distress claim. The district court properly granted summary judgment. See Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996) (when defamation and battery claims against employer were dismissed, negligent infliction of emotional distress claim also failed), review denied (Minn. Apr. 1, 1996).