may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jeffrey W. Rodvold,
Eli Lilly and Company,
an Indiana corporation,
d/b/a Eli Lilly and Company, Inc., et al.,
Filed December 15, 1998
Affirm in part,
reverse in part and remand for further proceedings
Toussaint, Chief Judge
Hennepin County District Court
File No. 9618655
Robert R. Reinhart, Dorsey & Whitney, LLP, Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402-1498 (for respondents)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge and Holtan, Judge.*
Appellant Jeffrey W. Rodvold challenges the district court's (1) grant of summary judgment dismissing his reprisal discrimination claims under the Minnesota Human Rights Act and his retaliation claim under the Whistleblower Act against his former employer, Eli Lilly and Company, and supervisor, Steve Williams; and (2) denial of his motion to amend his complaint to include a claim for punitive damages. Because Rodvold waived review of an adverse ruling on an essential element of his prima facie case under the Minnesota Human Rights Act, we affirm the grant of summary judgment dismissing Rodvold's claims under that Act. Because we conclude (1) genuine issues of material fact exist as to whether there were adverse employment actions causally related to Rodvold's complaint about alleged illegal conduct, we reverse the dismissal of Rodvold's whistleblower claim and the denial of his motion to amend his complaint and remand for further proceedings.
On appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 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).
The Minnesota Human Rights Act (MHRA) prohibits an employer from intentionally engaging in any reprisal against an employee because that person
(1) [o]pposed a practice forbidden under this chapter * * *.
A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment. It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in the activities listed in clause (1) * * * [including] depart[ing] from any customary employment practice; transfer[ing] or assign[ing] the individual to a lesser position in terms of wages, * * * job security, or other employment status * * *.
Minn. Stat. § 363.03, subd. 7 (Supp. 1997).
The Minnesota Whistleblower Act also prohibits retaliation:
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, * * * in good faith, reports a violation or
suspected violation of any federal or state law * * * to an employer * * *.
Minn. Stat. § 181.932, subd. 1 (Supp. 1997).
Minnesota courts apply the three-step procedure set out in McDonnell Douglas to retaliation claims. Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 496 (Minn. App. 1996) (citing Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119 n. 7 (Minn.1991); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn.1983)). The McDonnell Douglas burden shifting procedure consists of a prima facie case, an answer, and a rebuttal. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-02, 807, 93 S.Ct. 1817, 1824, 1826 (1973). To establish a prima facie case under both the MHRA and the Whistleblower Act, a plaintiff must show the following three elements (1) that the plaintiff engaged in conduct protected under the Act; (2) that the employer took adverse employment action; and (3) a causal connection between the two. Hubbard, 330 N.W.2d at 444 (MHRA); Thompson v. Campbell, 845 F.Supp. 665, 674 (D.Minn. 1994) (Whistleblower Act); Williams v. St. Paul Ramsey Medical Center, Inc., 530 N.W.2d 852, 856 (Minn. App. 1995)(citing Hubbard and Thompson), reversed on other grounds, 551 N.W.2d 483 (Minn. 1996).
A. Minnesota Human Rights Act Claim
The district court concluded that Rodvold did not engage in protected conduct under the MHRA; thus, he failed to meet the first element of his prima facie case. Rodvold did not raise this issue on appeal. Issues not raised on appeal are waived. Melina v. Chaplan, 327 N.W.2d 19, 20 (Minn. 1982). Because an adverse ruling on an essential element of Rodvold's prima facie MHRA claim was not appealed, we affirm its dismissal.
B. Whistleblower Claim
The district court found Rodvold engaged in protected conduct under the Whistleblower Act when he reported the alleged illegal use of a competitor's package insert by his former employer, Eli Lilly and Company (Lilly), but determined Rodvold failed to meet the second and third elements of his prima facie case.
A review of the record reveals that genuine issues of material fact exist as to whether Rodvold was subjected to adverse employment actions. Rodvold was a sales representative in Lilly's Duluth district, under the supervision of Steve Williams. Michael Hillmeyer was Lilly's only other sales representative in Duluth.
The record establishes that (1) Rodvold and Hillmeyer were both subjected to a "high impact sales plan," which imposed more demanding sales requirements on the two representatives; (2) only Rodvold was required to follow through with the plan; (3) Hillmeyer was allowed to completely ignore its requirements even though, admittedly, Hillmeyer performed more poorly than did Rodvold. In his affidavit, Hillmeyer stated that the high impact plan was directed solely at Rodvold and that Williams was "out to get" Rodvold. Taken in the light most favorable to Rodvold, this unrebutted isolation of Rodvold presents a genuine issue of material fact as to whether Rodvold was subjected to an adverse employment action.
In addition, the record establishes that only three weeks after Rodvold and Hillmeyer were placed on the high impact plan, Williams decided to place only Rodvold on a more severe "sales performance plan," which indicated there would be disciplinary consequences for failing to meet the goals set forth therein. When asked in his deposition why only Rodvold was placed on the performance plan, Williams explained that according to what he observed, Rodvold implemented strategy poorly. Later in his deposition, however, Williams admitted he had made no field visits to Duluth in that three week period and, in fact, Rodvold's implementation of strategy could have even improved during that time.
The record also establishes that ten days before Williams placed Rodvold on the performance plan, Williams wrote a note to his file memorializing a dialogue he had with Human Resources manager, David Jones, about Rodvold. The note says, "David said he felt my documentation was good and not a problem. He was concerned about the possibility of 2 open DGAs [representatives] at the same time. I said we would start recruiting now." Genuine issues of material fact exist to determine whether Williams intended to terminate Rodvold and would begin recruiting immediately to fill the open position. The note was written the same day Williams asked Jones for suggestions on the proposed performance plan. This exchange took place the day after Rodvold requested that Williams provide an explanation regarding incorrect zip codes in his area that he believed could have been partly responsible for his negative numbers.
Given Williams' admission that Rodvold's strategy implementation could have improved in the three weeks between the implementation of the high impact and the performance plans, the record does not contain evidence as to why only Rodvold, who shared the same low market share ranking as Hillmeyer, was placed on the subsequent plan. Taken in combination with evidence indicating Williams intended to recruit to fill Rodvold's position before Rodvold was placed on the performance plan, and viewed in the light most favorable to Rodvold, we conclude a genuine issue of material fact exists as to whether the performance plan was actually an adverse employment action.
The third element of Rodvold's prima facie whistleblower claim is a causal relationship between Lilly and Williams' alleged adverse employment actions and Rodvold's protected conduct. A causal connection may be shown "indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time." Hubbard, 330 N.W.2d at 445 (citing Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982); Palmer v. Ramsey County, No. CX-98-882, 1997 WL 118107, at *3 (Minn. App. Mar. 18, 1997)(holding that at the summary judgment stage, retaliatory motive may be inferred from evidence that soon after Palmer engaged in protected conduct her employer took adverse employment actions against her).
Like the plaintiff in Palmer, Rodvold has no direct evidence of causation. However, we conclude that retaliatory there is a genuine issue of material fact as to motive because (1) approximately one month after Rodvold's complaint about the legality of Lilly's use of the package insert, he and Hillmeyer were told they were being placed on the high impact plan; (2) three weeks after the implementation of the plan, Rodvold asked Williams to reconcile some zip codes in his area that he believed were incorrect and were negatively affecting his numbers; and (3) the very next day, Williams wrote a note to his file indicating an intent to terminate Rodvold and requested feedback from Human Resources about the performance plan he would place Rodvold on only ten days later. These events took place in a sufficiently compact period of time to justify an inference of retaliatory motive and produce a genuine issue of material fact as to causation to defeat Lilly and Williams' summary judgment motion.
Contrary to Rodvold's argument, we conclude that the lowering of his and Hillmeyer's performance buckets, which would affect the amount of, and even their eligibility for, a salary increase did not raise a genuine fact issue. Hillmeyer never complained of Lilly's alleged illegal use of the package insert. This fact, along with the undisputed low market share ranking of Duluth, negates any inference that the lowering of their performance buckets was in any way related to Rodvold's whistleblowing.
We similarly conclude that the difficulty of the goals set forth in Rodvold's performance sales plan does not raise a genuine issue of material fact. Rodvold contends he was required to increase Lilly's Prozac market share as much in the last six weeks as he had in the previous six months, yet he fails to support his allegation with any references to the record. Rodvold attempts to establish that the goals were impossible to meet with a reference to an e-mail written by another Lilly sales representative describing a conversation he had with Jones in which Jones and other Human Resources managers allegedly admitted the standards set forth in Rodvold's performance plan were set too high. This evidence is inadmissible hearsay. Hearsay evidence is disregarded when deciding motions for summary judgment. Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976). Therefore, we conclude this evidence does not give rise to a genuine issue of material fact.
Affirm in part, reverse in part, and remand for further proceedings.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.