may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Western National Insurance Agency,
Filed August 17, 1999
Olmsted County District Court
File No. C4971117
William L. French, 627 Woodhaven Ct. NE, P.O. Box 6323, Rochester, MN 55903 (for appellant)
Douglas A. Boese, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for respondent)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant Rosemary Warner challenges adverse summary judgment, claiming there are genuine issues of material fact regarding her claims against respondent Krage Agency for breach of contract and employment discrimination. Warner also challenges the district court's dismissal of her conversion claim against Krage. We affirm.
In January 1996, Krage hired Warner, who was 44 years old at the time, to work in its Chatfield insurance office as an "in-house agent." Shortly after she began working, Krage also hired Lyman Hare as an insurance agent. In March 1996, because she felt she was being treated as Lyman Hare's "secretary," Krage offered Warner a position as a "commission-only agent" and, ignoring any apparent inconsistency with that offer, asked her to gather her personal belongings and turn in her keys to the office. She did neither. Warner alleges that, after her original position was terminated in late March or early April 1996, Krage hired Lyman Hare's son to replace her in the Chatfield office.
Warner filed a complaint against Krage, alleging breach of a contract to sell her the Chatfield agency, employment discrimination on the basis of age and sex, and conversion of her personal property. The district court granted Krage's motion for summary judgment with respect to Warner's claims of breach of contract and employment discrimination and dismissed her conversion claim. This appeal follows.
On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In addition, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).
Warner asserts that the district court erred in granting Krage's motion for summary judgment on her claim that Krage breached a contract to sell her the Chatfield agency, arguing that there are genuine issues of material fact with respect to her claim. The district court noted that Warner "failed to come forward with any objective evidence that demonstrates the parties intended to enter into a contract."
"A contract requires a meeting of the minds concerning its essential elements." Minneapolis Cablesystems v. City of Minneapolis, 299 N.W.2d 121, 122 (Minn. 1980) (citation omitted).
"If an alleged contract is so uncertain as to any of its essential terms that it cannot be carried into effect without new and additional stipulations between the parties, it is not a valid agreement."
Druar v. Ellerbe & Co., 222 Minn. 383, 395, 24 N.W.2d 820, 826 (1946) (quoting Ames-Brooks Co. v. Aetna Ins. Co., 83 Minn. 346, 349, 86 N.W. 344, 345 (1901)).
Warner asserts that Krage agreed to co-sign a note and sell her the agency after she had worked there for six months. Wholly apart from the fact that she worked for Krage only for approximately three months, Warner has made no showing regarding any other terms of this alleged contract with Krage, including the price for the agency and the terms of the loan. Courts will not create a contract where the parties have failed to do so. Id. at 395-96, 24 N.W.2d at 826 (refusing to enforce agreement because of incompleteness, indefiniteness, and uncertainty as to essential terms).
Because there are no genuine issues of material fact and because Warner failed to establish the essential terms of the alleged contract between the parties, the district court did not err in granting Krage's motion for summary judgment on Warner's claim of breach of contract.
Warner also claims that there are genuine issues of material fact relating to her claims of employment discrimination and that the district court therefore erred in granting Krage's motion for summary judgment. In cases involving alleged employment discrimination, summary judgment is appropriate if the employee fails to present a prima facie case. Albertson v. FMC Corp., 437 N.W.2d 113, 116 (Minn. App. 1989).
A. Sex/Age Discrimination
Under the Minnesota Human Rights Act, an employer cannot discharge an employee on the basis of sex or age. Minn. Stat. § 363.03, subd. 1(2)(b) (1998). In analyzing such claims, Minnesota courts have adopted the three-part test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412 (Minn. App. 1995) (citing McDonnell Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824-25 (requiring prima facie case, answer, and rebuttal)).
To establish a prima facie case for discriminatory discharge, Warner must show that (1) she is a member of a protected class; (2) she was qualified for the job from which she was discharged; (3) she was discharged; and (4) the employer assigned a nonmember of the protected class to do the same work. Id. Warner did not meet this burden.
Although Warner does not describe a clear basis for her claim of sex and age discrimination, it appears that it is based on her alleged termination and Krage's subsequent hiring of Lyman Hare's son, who, she asserts, is "a male less than 40 years old with little or no experience in the insurance business." But Warner has not shown that Krage assigned Lyman Hare's son to do the same work she was doing. In fact, she admitted at her deposition that she does not know the nature of the duties performed by her alleged replacement and that she merely assumed he was working as an agent.
B. Disparate Treatment
The Minnesota Human Rights Act also prohibits an employer from discriminating "against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment" on the basis of sex. Minn. Stat. § 363.03, subd. 1(2)(c) (1998). Minnesota courts use the three-part McDonnell Douglas test in analyzing claims of disparate treatment. Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986).
To establish a prima facie case for disparate treatment, Warner must show that (1) she is a member of a protected group; (2) she sought and qualified for opportunities that the employer was making available to others; (3) the employer denied her the opportunities despite her qualifications; and (4) the opportunities remained available or were given to other persons with her qualifications. Pullar v. Independent Sch. Dist. No. 701, 582 N.W.2d 273, 276 (Minn. App. 1998). Warner did not meet this burden.
As with her claim of sex and age discrimination, Warner does not describe a clear basis for her claim of disparate treatment. But it appears that this claim is based on an alleged difference in Krage's treatment of her compared with its treatment of Lyman Hare. But Warner asserts no knowledge of Lyman Hare's qualifications, and she admitted at her deposition that she was not an experienced insurance agent. Thus, she has not shown that she qualified for the opportunities made available to Lyman Hare or that such opportunities were given to others with her experience and qualifications.
Because there are no genuine issues of material fact and because Warner failed to present a prima facie case of employment discrimination, the district court did not err in granting Krage's motion for summary judgment on these claims.
Warner claims the district court erred in dismissing her claim that Krage converted her personal property. Because the court considered more than the pleadings in its dismissal of this claim, we apply a summary-judgment standard. See Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn. App. 1989) (involving dismissal after motion for judgment on pleadings where district court considered more than pleadings), review denied (Minn. Mar. 8, 1990).
The district court concluded that Warner's claim of conversion had no merit and dismissed it. Conversion is defined as
an act of willful interference with the personal property of another which is inconsistent with the rights of the person entitled to the use, possession or ownership of the property.
Dain Bosworth Inc. v. Goetze, 374 N.W.2d 467, 471 (Minn. App. 1985).
The record demonstrates that on March 26, 1996, Krage asked Warner to turn in her keys to the office after she had gathered her personal belongings. She did neither. Warner does not dispute that Krage afforded her other opportunities to retrieve her belongings, but she failed to do so. Warner has therefore failed to show that any interference with her personal property was willful.
Because there are no genuine issues of material fact and because Warner did not establish that Krage willfully interfered with her personal property, the district court did not err in dismissing her conversion claim.
 Warner described her position as that of a "servicing agent."