This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Tony Whitcomb,



The Churchill Apartments, et al.,


Filed March 30, 1999


Harten, Judge

Minneapolis Civil Rights Commission

Agency File No. 94057

Thomas J. Conley, Leonard Street & Deinard, 150 South Fifth Street, #2300, Minneapolis, MN 55402 (for relators)

Tony Whitcomb, 4569 Slater Road, Apt. 304, Eagan, MN 55122 (respondent pro se)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.



Relators, the Churchill Apartments, RMK Management, and Gateway Partnership (collectively, Churchill), challenge by writ of certiorari the determination of Minneapolis Commission on Civil Rights that Churchill unlawfully discharged respondent Tony Whitcomb in retaliation for his opposition to discriminatory conduct, and that Churchill otherwise discriminated against respondent. We conclude (1) that respondent did not engage in statutorily protected conduct, (2) that he did not establish a causal connection between his opposition to the alleged discrimination and his termination by Churchill, (3) that Churchill established nondiscriminatory reasons for the termination, and (4) that the finding of discrimination is not supported by the evidence or proper legal analysis. We therefore reverse.


Respondent Tony Whitcomb is African American. He began working for Churchill Apartments in November 1991; his duties included patrolling the building, answering tenants' complaints, and creating a presence for management in the building. On weekends, respondent's shifts were covered by officers from Hannon Security (Hannon), one of whom was also African American.

In March 1993, Churchill hired Mary Cain as the building manager. In June 1993, Kevin Richards, who is African American, moved into a Churchill apartment. That same month, Cain met with respondent and told him that (1) Richards was being visited by gang members, (2) groups of Richards' visitors were using the building amenities and frightening residents, and (3) one of Richards' visitors may have exposed himself to a resident and urinated in an elevator. Cain said that she would try to evict Richards if he did not leave voluntarily. Richards did not move out for almost a year.

Several weeks later, Cain again met with respondent, told him that she was receiving complaints and directed him to watch Richards closely. Respondent said he would document Richards' activities like those of any other resident. Cain later asked respondent if he were making reports as directed, because Cain said she continued to receive complaints from residents. When respondent asked to see the complaints, Cain did not produce them. Early in the summer of 1993, Cain told Anthony Rossi, president of RMK Management Corporation, that she was dissatisfied with respondent's failure to make reports.

Several weeks later, Cain told respondent that Richards could have no more than one guest and a health aide in his apartment at a time. Respondent questioned what part of the lease limited the number of guests a tenant could have. Cain refused to provide any more information. Respondent testified that, because he believed the special orders from Cain were discriminatory, he said he would not execute them unless they were in writing.

Jonathan Moulton, the African American weekend guard from Hannon, was also asked to pay particular attention to Richards. Moulton also told Cain that he intended to treat Richards like any other tenant. Thereafter Moulton was removed from the Churchill account, but there is no evidence that his removal was due to his refusal to keep special watch on Richards.

In October 1993, respondent discovered that Cain had told residents not to report incidents involving Richards to respondent, but instead to call 911. Respondent was also no longer allowed to work part-time to provide security coverage for tenants' building parties; this duty was assumed by Hannon security. Nevertheless, in November, respondent received a $.20 hourly pay increase and a $100 Christmas bonus. By then, Churchill had procured extra security because of the complaints about Richards and his visitors. Police entered Richards' apartment, found weapons, and positively identified some of Richards' guests as gang members. Some of Richards' guests were arrested; others leaped from a balcony to avoid apprehension. There were also reports of marijuana smoke in the hallway.

On December 3, 1993, Churchill instituted a heightened security policy. Hannon security guards checked access cards of all persons entering the buildings. If visitors to Richards' apartment appeared, the guards allowed only one visitor at a time. Respondent was not working when the new policy went into effect and was not informed of the policy. When respondent and his wife returned to their apartment from dinner that evening, his identification was checked. Respondent's wife, a Caucasian, was not stopped. Respondent said that the guard told him that his orders were to stop anyone who looked like a gang member. Based on his observations, respondent concluded that the security guards were stopping only black males, but a guard disputed that conclusion.

On December 4, 1993, respondent and a guard had an altercation. Respondent was agitated; he may have knocked off the guard's hat; a guard may have pushed respondent's wife while she was holding a baby, and respondent may have been participating, along with the building's assistant manager, in what was characterized as a demonstration.

On December 5, 1993, respondent called in sick. On December 6, 1993, he was given four weeks' leave with pay. When respondent returned to work on January 3, 1994, Hannon was in control of security, and respondent was no longer furnished with a pager. His job became to patrol garages, hallways, and stairwells and to replace burned-out light bulbs. Respondent's employment was terminated on March 3, 1994, about two weeks after Richards vacated the building.

Rossi testified that respondent was terminated because Churchill decided to use Hannon security exclusively. The decision created the additional expense, but Hannon provided an unlimited number of guard hours and individual guards could be replaced easily if necessary. Rossi also said that Churchill terminated respondent for insubordination.

Respondent thereafter filed a complaint with the Minneapolis Commission on Civil Rights. The Commission, relying on the findings of a hearing examiner, found for respondent. Churchill appeals.


We will reverse or modify administrative agency decisions "when the administrative findings are unsupported by substantial evidence, arbitrary and capricious, or in error as a matter of law." Minn. Stat. § 14.69 (1998); see Kolstad v. Fairway Foods, Inc., 457 N.W.2d 728, 732 (Minn. App. 1990). Substantial evidence is defined as:

1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;

2. More than a scintilla of evidence;

3. More than some evidence;

4. More than any evidence; and

5. Evidence considered in its entirety.

Cable Communication Bd. v. Nor-West Cable Communications, 356 N.W.2d 658, 668-69 (Minn. 1984) (citations omitted). An agency's decision of law is reviewed de novo, but this court will not substitute its view of the evidence for that of the ALJ. Id. Generally, great deference is given to administrative fact-finding, Hough Transit v. Harig, 373 N.W.2d 327, 333 (Minn. App. 1985).

1. Reprisal Against Respondent

The hearing examiner found that Churchill engaged in reprisal against respondent in violation of Minneapolis Ordinance 139.40. This is also a violation of Minn. Stat. § 363.03, subd. 7 (1998), which bans reprisal against an employee who opposes a discriminatory act. Because the ordinance and statute are substantially identical, the examiner applied the ordinance as she would have applied chapter 363. In interpreting chapter 363, this court applies the principles developed under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000(e). Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).

It is an unfair discriminatory practice for an employer intentionally to engage in reprisal against a person because the person has opposed a practice forbidden under chapter 363. Minn. Stat. § 363.03, subd. 7 (1998). Among the practices forbidden under chapter 363 is the refusal of an owner or lessee to sell or lease property because of race, color, or creed. Id., subd. 2.

To establish a prima facie case of reprisal, an employee must show (1) that he or she engaged in statutorily protected conduct, (2) that the employer took adverse action, and (3) that a causal connection exists between the employee's conduct and the employer's action. Hubbard v. United Press Int'l., 330 N.W.2d 428, 444 (Minn. 1983) (applying test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)); see also Fletcher v. St. Paul Pioneer Press, __ N.W.2d __, __, No. C3-97-1765, slip. Op. at 10 (Minn. Feb. 25, 1999) (analyzing reprisal claim under Minn. Stat. § 363.07, subd. 7). If the employee is able to establish this prima facie case, the burden then shifts to the employer to show a non-discriminatory reason for its actions. Fletcher, slip. Op. at 10. If this is done, the burden then shifts back to the employee to show that the non-discriminatory reasons were pretextual. Id. at 11.

a. Statutorily Protected Conduct

Churchill argues that respondent did not establish a prima facie case because he did not engage in statutorily protected conduct. To establish that his conduct was statutorily protected, respondent must establish that he opposed a practice forbidden under chapter 363. Respondent believed that Cain's directive to closely monitor Richards constituted discrimination, but the hearing examiner made no finding that Churchill discriminated against Richards or against African Americans entering the property. Churchill did not refuse to lease property to Richards for prohibited reasons. The record establishes that Churchill was responding to serious tenant complaints and that police eventually intervened, absolutely establishing that Richards' apartment harbored weapons and known gang members. It is undisputed that Churchill took action to protect other tenants, increase security, and preserve its business interests. But the hearing examiner did not address whether Churchill engaged in a practice forbidden under chapter 363.

Assuming that Churchill engaged in a practice forbidden under chapter 363, respondent must establish that his opposition to that practice was statutorily protected. Churchill argues that respondent did not oppose any discriminatory practice and failed to establish a prima facie case. General voicing of issues and concerns does not constitute statutorily protected opposition to discrimination. Carter v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 273 (Minn. App. 1997) (plaintiff's complaints were actually issues or concerns and were not in opposition to discrimination). Opposition must be specifically directed at the alleged discriminatory practice; it may not concern merely work conditions in general. See, e.g., Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 326 (Minn. 1995) (sufficient evidence for district court to find that plaintiff did not make a specific accusation of age discrimination); Tretter v. Liquipak Int'l., 356 N.W.2d 713, 715 (Minn. App. 1984) (plaintiff who told sexual harasser to stop and reported him to personnel director engaged in statutorily protected conduct). Respondent did not report his concerns to any outside authorities, but we will assume, for purposes of our review, that his conversations with Cain on December 3 and 4 constitute opposition to a policy that he believed to be discriminatory.

An employee's opposition, however, may be so disruptive, excessive or generally inimical to the employer's interests as to be beyond the protection of section 363.03. See Kempcke v. Monsanto Co., 132 F.3d 442, 445-46 (8th Cir. 1998) ("employee insubordination is ordinarily a legitimate non-discriminatory reason for adverse action."). An employer is "entitled to loyalty and cooperativeness from employees" and "has a legitimate interest in seeing that its employees perform their work well." Hochstadt v. Worcester Found., 545 F.2d 222, 231, 233 (1st Cir. 1976). If an employee is disloyal, and the employee's behavior damages the employer's basic goals and interests, the employee's behavior is beyond the scope of protected opposition. Id. at 232-33.

There is substantial evidence in the record establishing Churchill's legitimate interest in having its on-site representatives monitor a tenant whose behavior and guests had prompted numerous complaints from other tenants. Respondent's refusal to implement heightened security initiatives was inimical to the employer's interests and it was not statutorily protected. See id. at 233 ("employer's right to run his business must be balanced against the rights of the employee * * *.").

b. Connection Between Protected Conduct and Termination

Churchill argues that even were respondent's conduct statutorily protected, there was no causal connection between that conduct and his termination. The examiner found that Churchill decided to terminate respondent in December or January, but did not actually do so until March, after Richards had left the building. The examiner concluded that this timing constituted indirect evidence of a causal connection. But there is no substantial evidence in the record to support the finding that Churchill was waiting for Richards to leave before terminating respondent.

The examiner also found that Churchill's termination of respondent for insubordination was direct evidence of a casual connection. "[E]mployee insubordination is ordinarily a legitimate non-discriminatory reason for adverse action." Kempcke, 132 F.3d at 446; see also Berg v. Bruce, 112 F.3d 322, 327 (8th Cir. 1997) (plaintiff terminated for insubordination and professional misconduct). The hearing examiner's finding that termination for insubordination was direct evidence of a causal connection between protected activity in opposition to discrimination and respondent's termination is not supported by substantial evidence. Churchill established the existence of a legitimate reason for the adverse employment action and respondent failed to prove a prima facie case of reprisal.

c. Nondiscriminatory Reasons for Termination

Even if respondent had established a prima facie case of reprisal, Churchill met its burden of production to show nondiscriminatory reasons for replacing him. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 2748 (1993) (whether defendant meets burden of production involves no credibility assessment; if evidence, taken as true, permits the conclusion that action was non-discriminatory, it will suffice). Rossi testified that he terminated respondent because of insubordination and he wanted to employ a corporate security service. We have concluded that insubordination was a legitimate reason for respondent's termination. As to the hiring of a new security service, the examiner observed that

[Churchill] provided no evidence that supported [its] decision. Indeed, Rossi indicated that hiring solely from the outside would cost more. Rossi stated that an outside agency has more flexibility and can cover more hours than can an inside security officer. [Churchill] already had the flexibility of additional coverage and, in fact, used it during the weekends when [respondent] did not work.

Contrary to the hearing examiner's finding that there was "no evidence" of the reasons for the decision to hire an outside agency, there was direct testimony, as also noted by the examiner. Notwithstanding the examiner's disagreement with Churchill's business decision to incur additional expense in exchange for greater flexibility, the reasons Churchill gave constituted a legitimate nondiscriminatory reason for the discharge. See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994) (court's inquiry limited to whether employer gave an acceptable explanation). The hearing examiner overlooked or ignored testimony that an outside security force was already in place at another one of Churchill's buildings. Churchill met the burden of showing a non-discriminatory reason for its actions.

d. Pretext

The burden then shifted back to respondent, to show the stated reasons were pretextual. He was required to prove that he "ha[d] been the victim of intentional discrimination." See Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) ("the plaintiff bears the final burden of demonstration that the proffered reason was not the true reason for the employer's actions"). Respondent failed to prove that his insubordination and Churchill's desire to engage a full-time outside security service were not the true reasons for his termination. Respondent failed to establish that those reasons were a mere pretext for discrimination.

2. Discrimination Against Respondent

The examiner observed that Churchill apparently concluded that:

on the basis of race, [respondent and the African American security guard from Hannon] would support the tenant creating problems rather than the management. * * * It seems reasonable to assume that, since they were stopping particularly visitors to * * * Richards' apartment whom they believed to be gang members, that the security officers would look more closely at, and be more likely to stop, Black males.

Churchill argues that the examiner erred because she failed to apply the McDonnell Douglas test to determine whether Churchill had discriminated against respondent. See Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986) (holding that district courts must explicitly apply the McDonnell Douglas test for employment discrimination claims). Churchill is correct; the examiner's discrimination findings were conclusory, based on no proper legal analysis, and therefore erroneous.

A finding of discrimination cannot be based on an assumption that nonparties will be disproportionately affected on the basis of race. The issue before the hearing examiner was whether Churchill discriminated against respondent. In the pretrial order and at the hearing, the examiner indicated that no evidence would be accepted on whether Churchill's policy of stopping individuals at the door was discriminatory. Yet her findings appear to be based on an unsupported conclusion that respondent was discriminated against when he was asked for identification. The hearing examiner's conclusion that Cain's failure to disclose tenant complaints constituted discrimination is similarly unsupported. There is no evidence that nondisclosure furthered any discriminatory purpose or was based on a prohibited reason. Nor is there evidence that persons other than relator received the reports. The examiner's finding that Churchill discriminated against respondent is not supported by the evidence and is clearly erroneous.

There is insufficient evidence in the record to support the Commission's conclusion that Churchill discharged respondent in retaliation for statutorily protected conduct or otherwise discriminated against him. Accordingly, we do not reach the evidentiary or damage issues and need not address Churchill's motion to strike.