This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-98-1399

William Harris,
Appellant,

vs.

Ostbye & Anderson, Inc., d/b/a
Ostbye & Anderson Ultrablue Mfg.,
Respondent.

Filed February 2, 1999
Affirmed
Willis, Judge

Hennepin County District Court
File No. 9712213

Clair E. Schaff, Connor, Satre & Schaff, LLP, 580 Lumber Exchange Building, Minneapolis, MN 55402 (for appellant)

Timothy P. Tobin, Anne T. Johnson, Gislason, Dosland, Hunter & Malecki, PLLP, 9900 Bren Road East, Minnetonka, MN 55343 (for respondent)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N
WILLIS, Judge

Appellant William Harris challenges the district court's grant of summary judgment to respondent on appellant's retaliatory-discharge claim, arguing there are genuine issues of material fact as to whether he refused to perform an ordered action that he had an objective basis in fact to believe would violate a state or federal law. We affirm.

FACTS

On December 1, 1995, respondent Ostbye & Anderson, Inc. hired appellant as its manager of manufacturing. Appellant alleges that respondent's president more than once ordered him "to build cases against" six of respondent's older employees to enable the company to terminate their employment. While appellant does not define the phrase "to build cases against," it appears from a review of the record that it is used to mean "to document employee misconduct." Appellant claims that he refused to document the misconduct of the six employees because he believed the ordered action constituted illegal age discrimination.

On July 1, 1996, appellant was fired. He sued respondent, claiming defamation and retaliatory discharge in violation of Minnesota's whistleblower act. Appellant alleged that respondent fired him for his failure to document the misconduct of the six employees. The district court granted summary judgment for respondent on both claims. Harris appeals only the dismissal of his retaliatory-discharge claim.

D E C I S I O N

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The court views 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). Summary judgment is mandated

against the party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986)).

Appellant argues that the district court erred in concluding there were no genuine issues of material fact with regard to his retaliatory-discharge claim. The whistleblower act provides that an employer shall not discharge an employee for refusing an order to perform an action where

the employee has an objective basis in fact to believe [the ordered action] violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.

Minn. Stat. § 181.932, subd. 1(c) (1998). Proof of retaliatory discharge is subject to the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). McGrath v. TCF Bank Sav., FSB, 502 N.W.2d 801, 805 (Minn. App.), modified, 509 N.W.2d 365 (Minn. 1993). The employee must establish a prima facie case that an impermissible reason motivated his discharge. Id. at 807; see Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983) (stating that, to establish prima facie case, employee must show causal connection between statutorily protected conduct and discharge). If the employee makes a prima facie case, the burden shifts to the employer to provide a legitimate reason for the discharge. McGrath, 502 N.W.2d at 807. Finally, the employee must show that the employer's proffered reason is pretextual. Id.

Here, the district court concluded that appellant's retaliatory-discharge claim failed because he did not show he engaged in statutorily protected conduct:

[Appellant] cannot show a single instance where he refused to follow an order which he had an objective basis in fact to believe violated a state or federal law.

Admitting he has no direct evidence of age discrimination by respondent, appellant argues there is a genuine issue of material fact with respect to whether he refused to perform an ordered action that he believed was illegal.

In his deposition, appellant testified that respondent never specifically ordered him to perform an action that appellant believed would violate the law. He contradicted this testimony in an affidavit, but such an affidavit is not sufficient to create a genuine issue of material fact. See Banbury v. Omnitrition Int'l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995) ("A self-serving affidavit that contradicts earlier damaging deposition testimony is not sufficient to create a genuine issue of material fact.") (citation omitted). Additionally, appellant produced no evidence to show that he informed respondent that he refused any order because he believed it would violate the law.

But even if there were a genuine issue of material fact as to whether appellant refused respondent's orders, appellant did not show that he engaged in statutorily protected conduct. See Minn. Stat. § 181.932, subd. 1(c) (providing that statute protects employee who has "an objective basis in fact to believe" performing employer's ordered action would violate state or federal law).[1] Appellant refers to the alleged orders to document the misconduct of employees as "potentially illegal directives" that "he determined to be illegal" and that he believed were "discriminatory and illegal." Appellant argues that "[t]here is nothing unclear about what [he] observed," stating that the six employees he identifies were "among the oldest" of respondent's employees. But documenting the misconduct of an older employee is not illegal, and appellant admits that respondent's president never told him that respondent intended to fire its older employees because of their age. See Minn. Stat. § 363.03, subd. 1(2) (1998) (providing it is illegal for employer to discharge or discriminate against employee "because of * * * age"); see also 29 U.S.C. § 623(a) (1994) (providing it is illegal for employer "to discharge any individual or otherwise discriminate against any individual * * * because of such individual's age"). Appellant provided no evidence to show that he had an objective basis in fact for his belief that documenting the misconduct of the six employees would constitute illegal age discrimination. The whistleblower act, therefore, would not protect appellant's refusal of respondent's orders, even if such orders were given and such refusal occurred.

Appellant also argues that there is a genuine issue of material fact regarding whether respondent's reasons for firing him were pretextual. But we do not reach that issue because appellant did not show that he engaged in statutorily protected conduct. See Carlisle, 437 N.W.2d at 715 ("[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.") (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552). We conclude that the district court did not err in granting summary judgment for respondent.

Affirmed.

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

[1] Appellant states that the whistleblower act protects an employee who refuses to perform an action that he "believes clearly violates * * * public policy." This misstates the law. Subdivision 1(c) of the statute requires an employee to have "an objective basis in fact" to believe complying with the employer's order would violate the law before refusing to comply with it. Minn. Stat. § 181.932, subd. 1(c).