This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1998)




Linda Dinyer,



University of Minnesota,


Filed March 16, 1999


Lansing, Judge

Hennepin County District Court

File No. 97004342

Michael J. Dougherty, 1047 Avon Street North, St. Paul, MN 55103 (for appellant)

Julie A. Fleming-Wolfe, 1654 Grand Avenue, St. Paul, MN 55105 (for respondent)

Considered and decided by Lansing, Presiding Judge, Halbrooks, Judge, and Foley, Judge.[*]



This is an appeal from an order granting summary judgment on three claims relating to disability discrimination. We affirm the district court's determination that the record fails to establish that the employee's disability materially affected a life activity, that the alleged retaliatory act did not constitute an adverse employment action, and that the negligent infliction of emotional distress had no independent tort basis.


Linda Dinyer was employed as a patient account representative for the University of Minnesota Hospital and Clinics (University) from 1989 to 1996. In February 1991 she was diagnosed with ulcerative colitis or Crohn's disease, a chronic condition of the digestive tract that interferes with food digestion and absorption. Dinyer's condition manifests itself in severe cramping, nausea, diarrhea, and anorexia. She has been hospitalized several times because of aggravation of her condition, and in 1994, 18 inches of her intestine were surgically removed. Dinyer takes prescription medication to help control the symptoms and inflammation caused by her condition.

Dinyer's disability discrimination claims against the University are founded on her reaction to food odors in her work area. Certain types of strong food odors aggravate her condition, and, beginning in 1995, she experienced nausea, vomiting, and cramping that caused her to miss one to two days of work each month. In response to Dinyer's complaints about food odors, the University implemented some changes in Dinyer's work area, but did not prohibit employees from eating at their desks.

In October 1995, Dinyer filed a discrimination complaint with the University's EEOC office and the ADA (Americans with Disabilities Act) office. The EEOC office determined that Dinyer was not protected under the ADA or the Minnesota Human Rights Act (MHRA). The ADA office separately concluded that Dinyer was not a person with a disability as defined under the ADA. In October 1996, Dinyer resigned from her employment with the University.

Dinyer sued the University in 1997, alleging that the University violated the MHRA by failing to adequately accommodate her disability, that co-workers retaliated against her by preparing and eating strong-smelling food near her desk, that she was constructively discharged by the University, and that these actions resulted in negligent infliction of emotional distress. In the district court, Dinyer withdrew her constructive discharge claim and supplemented her retaliation claim by arguing that a supervisor retaliated by refusing to allow her to use a small fan to redirect food odors from her desk area.

Following the district court's order granting summary judgment, Dinyer brought this appeal challenging the court's rulings on (1) disability discrimination, (2) retaliation, and (3) negligent infliction of emotional distress.


To survive summary judgment in an action for disability discrimination or retaliation, a plaintiff must establish a prima facie case on the elements of each action. Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973) (interpreting disability discrimination claim)); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444-45 (Minn. 1983) (citing McDonnell Douglas Corp., 411 U.S. 792, 93 S. Ct. 1817 (interpreting retaliation claim)). In reviewing an appeal from summary judgment, we view the evidence in the light most favorable to the nonmoving party, but if a party fails to establish an essential case element, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).


It is an unfair discriminatory practice under the MHRA for an employer "not to make reasonable accommodation to the known disability of a qualified disabled person." Minn. Stat. § 363.03, subd. 1(6) (1998). A person is qualified as disabled if that person (1) has a physical, sensory, or mental impairment which materially limits one or more life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. Physical impairment includes any "physiological disorder or condition" affecting the digestive system. State by Cooper v. Hennepin County, 441 N.W.2d 106 (Minn. 1989) (quoting 45 C.F.R. § 84.3(j)(2)(i)(A) (1988)).

It is undisputed that Dinyer's manifestations of Crohn's disease constitute a physical impairment. The generally severe nature of the disease, including its scarring of the intestinal lining and interference with the body's ability to absorb nutrients, qualifies it as a physiological disorder or condition. The symptoms accompanying the condition, including nausea, diarrhea, cramping, and anorexia, demonstrate its harsh effects on the digestive system.

What is disputed is whether Dinyer's physical impairment materially limits one or more life activities and therefore qualifies her as disabled under the MHRA. See Minn. Stat. § 363.01, subd. 13 (1998) (MHRA protection requires that impairment "materially limits one or more major life activities"). The district court, relying on the supreme court's analysis in Sigurdson, concluded that the evidence was insufficient to establish material elements of Dinyer's disability claim because she had not demonstrated that her condition had materially limited her ability to obtain and retain employment or limited any other life activity. For the following reasons we agree with the district court's analysis.

First, whether the evidence demonstrates that Dinyer's condition materially affected a life activity must be evaluated based on Dinyer's specific circumstances. See Cooper, 441 N.W.2d at 111 (case-by-case determination of whether impairment substantially limits employability); Sigurdson v. Carl Bolander & Sons, Co., 511 N.W.2d 482, 488 (Minn. App. 1994) (case-by-case determination of whether impairment materially limits major life activity), rev'd on other grounds, 532 N.W.2d 225 (Minn. 1995); see also Branch v. City of New Orleans, No. Civ. A. 93-1273, 1995 WL 295320, *3 (E.D. La. 1995) (case-by-case analysis whether Crohn's affected major life activity because "some impairments may be disabling for particular individuals but not for others, depending on the stage of the disease") (quoting 29 C.F.R. Pt. 1630 App.), aff'd, 78 F.3d 582 (5th Cir. 1996).

Other jurisdictions have evaluated disability by considering the impairment without the mitigating measures of medication or treatment. See Maureen R. Walsh, What Constitutes a "Disability" Under the Americans with Disabilities Act: Should Courts Consider Mitigating Measures?, 55 Wash. & Lee L. Rev. 917 (1998). But the Minnesota Supreme Court has resolved that analytical division in favor of examining an impairment taking into account its correction or medication to determine whether a person is disabled under the MHRA. See Sigurdson, 532 N.W.2d at 228; Cooper, 441 N.W.2d at 111. The district court properly evaluated Dinyer's specific circumstances by taking her medication into account.

Second, the evidence that the impairment actually materially limits a life activity must demonstrate more than a limitation on the ability to obtain and retain one particular job. Id. For the ability to work to be substantially limited, the person must be

significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

Shah v. Upjohn Co., 922 F. Supp. 15, 23 (W.D. Mich. 1995) (quoting 29 C.F.R. 1630.2(j)(3)(i)), aff'd, 107 F.3d 871 (6th Cir. 1997); see also Cooper, 441 N.W.2d at 111 (major life activity includes working, but not working at the specific job of the plaintiff's choice).

The evidence demonstrates that Dinyer's work history has been extensive and stable, including the time period after her Crohn's diagnosis in 1991. During the last year of her work at the University, she also worked at night 20 hours per week for a temporary agency doing data entry. The record indicates that Dinyer voluntarily left her employment at the University to take a job that looked more interesting and paid more. Since resigning her University position, Dinyer has been employed in two other positions. Dinyer lists her restrictions, beginning in May of 1995, as frequently having to take five to ten minute breaks as a result of the foods odors and once or twice a month being absent from work because of nausea. No evidence suggests that this pattern negatively affected her job or imposed a material limitation on working. See Shah, 922 F. Supp. at 25 (reaction to specific circumstances in one employer's workplace does not render a person substantially limited in the major life activity of working).

Dinyer argues that her condition also affected her ability to eat. The district court correctly analogized this to the plaintiff's diabetic condition in Sigurdson that affected diet and ability to eat. See 532 N.W.2d at 229 (analyzing issues of restricted diet and timing of eating as part of ability to work). Dinyer's complaint does not allege that she needed accommodation to eat, nor does the record reflect that she requested accommodation to eat during the work day, or that the University was aware that she needed any accommodation for that purpose. See Minn. Stat. § 363.03, subd. 1(6) (employer must make accommodation for known disability of disabled person); see also Miller v. National Cas. Co., 61 F.3d 627, 629 (8th Cir. 1995) (employer must know that such limitation exists before it must accommodate for limitation of employee).

The evidence is insufficient to establish the essential elements of a material limitation of a major life activity, and, under the applicable law, the district court properly granted summary judgment.


The second cause of action alleged is for co-workers' retaliation against Dinyer by intentionally preparing and eating strong-smelling food at their desks. The evidence does not support the claim that the co-workers' alleged behavior resulted from Dinyer's report of discrimination or that the University and not Dinyer was the source of any information about the discrimination report. Most significantly, Dinyer has not met the evidentiary requirement of demonstrating that any behavior by the co-workers constituted an adverse employment action. See Hubbard, 330 N.W.2d at 444 (prima facie case of retaliatory action by an employer must establish statutorily protected conduct by employee, adverse employment action by the employer, and causal connection between two).

Dinyer's claim at the summary judgment motion that her supervisor ordered her to turn off her desk fan is similarly deficient in establishing the necessary elements for a prima facie case. A directive to turn off a desk fan because of its effect on other workers is not a material change in the terms or conditions of employment or a departure from any customary practice that amounts to an adverse employment action. See Minn. Stat. § 363.03, subd. 7 (1998) (listing examples of retaliatory action).


A claim for negligent infliction of emotional distress that is not based on physical injury or the "zone of danger" rule is dependent on a showing of a direct invasion of rights. Lickteig v. Alderson, Ondov, Leonard & Sween, 556 N.W.2d 557, 560 (Minn. 1996). Even if the disability discrimination claim could have presented a fact issue on which to base the negligent infliction claim, this dependent claim cannot survive the dismissal of the underlying disability claim. See id.; Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1986) (when underlying tort claim properly dismissed, plaintiff's accompanying claim for emotional distress is not sustainable), review denied (Minn. Apr. 1, 1996).


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.