This opinion will be unpublished and

may not be cited except as provided by

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




Gloria J. Fisher,



Minnesota Mining and Manufacturing Company,

a Delaware corporation, d/b/a 3M Company,


Filed August 10, 1999

Affirmed and motions denied

Crippen, Judge

Ramsey County District Court

File No. C99710983

James F. Olney, Elizabeth A. Olney Arms, 2310 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)

Thomas P. Kane, David M. Wilk, Oppenheimer Wolff & Donnelly, L.L.P., 1700 First Bank Building, St. Paul, MN 55101 (for respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.



We affirm the trial court's summary judgment for appellant Gloria Fisher's former employer, respondent Minnesota Mining and Manufacturing Company, on claims of age discrimination and disability discrimination, alleged violations of the Minnesota Human Rights Act, Minn. Stat. § 363.03, subd. 1 (1998), and an adverse employment action in violation of the Minnesota whistleblower statute, Minn. Stat. § 181.932 (1998).


Appellant worked for respondent 3M for nearly 30 years before she was fired in August 1996. She worked her way up to Senior Secretary, grade-level-6, in May 1991, in 3M's International Human Resources Department.

David Wilson became appellant's supervisor in January 1993. Problems developed between appellant and Wilson regarding her overall job performance and the amount of time she spent away from her desk. Wilson discussed with appellant her need for improved time management and organization skills and suggested that she spend less time on the phone for personal calls and shorten her lunch break to the standard time period. In May 1994, Wilson also told appellant that she should bring a note from her health care professional to confirm each of her treatment visits, which related to injuries from a 1993 fall at work.

In September 1994, believing the situation had not improved, Wilson placed appellant on a formal performance correction plan. Appellant began to experience stress symptoms, including insomnia, from her interactions with Wilson.

Appellant contacted Bonnie Herr, Human Resources Manager, regarding the difficulties she experienced with Wilson. Herr suggested that appellant apply for a different job in the company. Herr contacted appellant at home about a grade-level-5 position in the Employee Services division. Appellant maintains that she interviewed and agreed to the new position assuming that it was also a grade-level-6. Appellant's salary was to remain the same. Appellant agreed to the change because she would be removed from the corrective action program set up by Wilson and because her placement in that program would not be reported in her personnel file.

A month after appellant's transfer, a grade-level-6 position opened up in the Employee Services department, but she was not informed of it. Meanwhile, her former position in International Human Resources was filled with a younger person. The grade-level-6 position in Employee Services was also filled with a person substantially younger than appellant.

In February 1996, after she had worked in her new position for about a year, appellant's new supervisor, Nancy McLean, asked for doctor's notes for appellant's absences and placed her on an informal performance improvement plan for a month. Performance problems included numerous errors in appellant's work and her failure to complete tasks in a timely fashion. Appellant was also required to take a course on giving and receiving feedback. In her evaluation of appellant for 1995, McLean rated appellant as fulfilling the needs of her job, but noted that improvement was needed in the areas of organization, time management, initiation and commitment, and productivity and quality.

In June 1996, McLean gave appellant her e-mail password and asked appellant to print off several new e-mail messages from her account. In accessing McLean's account, appellant saw an archived e-mail message with the subject line "gloria [appellant]," which she opened, printed, and faxed to her attorney. She did not tell anyone at 3M that she had done this. The e-mail, from Dr. Carol Ley, associate director of 3M's medical department, was addressed to McLean and to Sheryl Niebuhr, McLean's supervisor, and noted that Ley had told a human resources manager that appellant was "having trouble again," indicating that this report came from McLean and that the problem "dates back years and years;" Ley recommended that Bonnie Herr get involved.

Dr. Ley had never been appellant's treating physician, although appellant did see two other doctors in the department regarding her 1993 injuries. Ley had participated in some disability management meetings regarding work restrictions for appellant (on continuous typing, lifting, and shoulder-level work) that related to her injuries.

When asked at her deposition what "pattern of behavior" McLean had discussed with Ley, as stated in the e-mail message, McLean stated that the behavior related to absences. Dr. Ley testified that any discussion she had with others regarding appellant could not have involved specifics regarding her medical condition, as Ley, "d[id]n't know the specifics. [She] was not [appellant's] treating physician."

In July 1996, appellant submitted a complaint against Ley, with a copy of the e-mail, to the Medical Review Board, alleging a breach of confidentiality. The Board has since dismissed the complaint. In late July or early August 1996, Niebuhr, McLean's supervisor, learned that the e-mail had been faxed out of the office and submitted with the complaint to the Board. Appellant's unauthorized access and use of information concerned Niebuhr, given the highly confidential and sensitive information routinely handled by the department.

Niebuhr attempted to talk to appellant about the e-mail and any other unauthorized access and use of department information. Appellant refused to discuss anything before conferring with her attorney, and Niebuhr placed her on administrative leave pending a resolution of the issue. Niebuhr then contacted appellant by phone, reiterating that she needed to discuss any unauthorized access and use of information with her. Appellant was contacted a third time about the need to discuss the matter, with the suggestion that she could invite her attorney to the meeting. Appellant refused.

On August 29, 1996, Niebuhr and Herr met with appellant to terminate her employment. In the termination letter dated August 30, 1996, Niebuhr stated that management had lost confidence and trust in appellant's "ability and willingness to be open and communicative and to respond constructively to situations that arise in the workplace and to feedback about your performance." Niebuhr added that appellant had resisted discussing workplace issues with management and had refused to consider her responsibility or take ownership for performance problems. Niebuhr stated: "It is not possible to manage or support your performance under these circumstances."


On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the trial court misapplied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); Minn. R. Civ. P. 56.03. In reviewing a summary judgment, this court considers 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).

1. Whistleblower claim

The evidence appellant presented to the trial court was insufficient to withstand summary judgment on her whistleblower claim. To establish a prima facie case of retaliatory discharge under the statute, the plaintiff must show: "(1) statutorily-protected conduct by the employee, (2) adverse employment action by the employer, and (3) a causal connection between the two." Rothmeier v. Investment Advisors Inc., 556 N.W.2d 590, 592 (Minn. App. 1996) (citation omitted), review denied (Feb. 26, 1997).

Appellant emphasized that a causal connection between her discharge and her report of a supposed violation of the physician-patient privilege by Dr. Ley to the Medical Review Board could be inferred from the timing. But timing does not concretely establish a causal connection. Hubbard v. United Press Int'l Inc., 330 N.W.2d 428, 445-46 (Minn. 1983). In this case, respondent maintained that it terminated appellant not because of her report to the Board but because of her refusal on three separate occasions to meet with her supervisor to discuss her unauthorized use of confidential information. Appellant did not present evidence that this reason was pretextual. See id. at 446 (inference from timing rebutted when retaliatory motivation otherwise unproven; not case of employer acting on impulse in response to a charge or complaint); Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 497 (Minn. App. 1996) (prima facie causal connection established, although employer presented legitimate reason for discharge, when employee presented other evidence reflecting that discharge occurred because of complaint).

Moreover, appellant failed to establish that she had engaged in statutorily-protected conduct. The whistleblower statute protects an employee who "in good faith, reports a violation or suspected violation of any federal or state law" from being terminated by the employer for making such a report. Minn. Stat. § 181.932, subd. 1(a). In determining whether there had been a "good faith" report of "a violation or suspected violation of any * * * state law," the court is to first set out the particular conduct alleged and then determine whether it implicates a possible law violation. Hedglin v. City of Willmar, 582 N.W.2d 897, 901-03 (Minn. 1998). The "good faith" element relates to a belief that the relevant facts alleged occurred. See id. at 902.

Although a violation of the physician-patient privilege would be a report of a violation of state law, Minn. Stat. § 595.02, subd. 1(d) (1998) (physician cannot, without the patient's consent, disclose information acquired in attending the patient and necessary for the physician to act in her professional capacity), the communication relayed in the e-mail does not fall within this privilege. To establish the physician-patient privilege, the proponent must show: (1) a physician-patient relationship, (2) that the information acquired by the physician was of the type contemplated by Minn. Stat. § 595.02, (3) that such information was acquired by the physician in attending the patient, and (4) that the information was necessary to enable the physician to act in a professional capacity. State v. Staat, 291 Minn. 394, 398, 192 N.W.2d 192, 196 (1971).

Appellant conceded that Ley had never been her treating physician. And Ley testified that she could not have been referring to any specifics regarding appellant's medical condition, because she was not her treating physician and did not know any specifics. The record supports respondent's assertion that the discussion was "about human resources issues and not medical issues."

2. Discrimination claims

Appellant alleged that as a result of age and disability discrimination, she accepted a position one grade-level lower, rather than remain at her job in International Human Resources. But appellant did not present any evidence of damages incurred as a result of any alleged discrimination. She conceded that she continued to receive the same salary and that her actual damages stemmed from not being as well situated to receive pay increases in the future. But no damage was done by August 1996, when appellant was validly discharged. Her claim of damages for mental anguish from discrimination is also insufficiently supported. And she did not plead punitive damages or present clear and convincing evidence that the acts of respondent showed willful indifference to her rights. See State by Cooper v. Mower County Soc. Servs., 434 N.W.2d 494, 500 (Minn. App. 1989). Accordingly, a summary judgment was proper on these claims.

Because we find that parts of appellant's brief, appendix, and reply brief respondent asserts must be stricken from the record are immaterial to our resolution of the issues on appeal, respondent's motions to strike are denied.