This opinion will be unpublished and

may not be cited except as provided by

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





Kevin Maynard,



Cowles Media Company,

d/b/a The Star Tribune,


Filed September 7, 1999


Randall, Judge


Hennepin County District Court

File No. EM-98-4980


Gregg M. Corwin, Timothy B. Kohls, Gregg M. Corwin & Associates, 1660 South Highway 100, Suite 508E, St. Louis Park, MN 55416 (for appellant)

Kathlyn E. Noecker, Jacqueline R. Rolfs, Holly M. Robbins, Faegre & Benson LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondent)


Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Kevin Maynard appeals the district court's grant of summary judgment in favor of respondent Cowles Media, Inc., d/b/a The Star Tribune (Star Tribune). Maynard argues the district court erred when it determined he did not present sufficient evidence, within the context of the Minnesota Whistleblower Act, to show the Star Tribune's proffered reason for his demotion was pretextual. We affirm.


Maynard has been employed by the Star Tribune for approximately 12 years and works as a mailer-machinist. His duties include maintaining, running, and troubleshooting the mailroom equipment. Maynard is a member of the Minneapolis-St. Paul Mailers' Union No. 4, which has a collective bargaining agreement with the Star Tribune. Ken Larson, the mailroom manager, was Maynard's direct supervisor until Larson retired in May 1998.

Maynard's duties in the mailroom included moving stacker machines. Stacker machines are about nine feet tall, weigh approximately 2300 pounds, and are top heavy. Employees moved these machines by inserting the fork of an electric dolly under the stacker and lifting the stacker off the ground. Moving stacker machines can be hazardous because if the stacker is lifted too high, or if the fork is inserted improperly, the stacker machine can become unbalanced and fall. The Star Tribune did not publish rules or regulations about moving the stacker machines prior to 1996.

Maynard served on the mailroom safety committee from approximately 1991 through 1996. Safety committee members are union members elected by their peers. The safety committee meets once a month and members make suggestions for a safer work environment. The committee takes minutes of its meetings. The union keeps a copy of the minutes in the safety foreman's office. Larson was not on the safety committee and did not regularly attend meetings, but he received copies of the minutes. These minutes generally describe safety concerns and identify problems that had occurred over the past month. If the committee was concerned that a practice was unsafe, the safety director, Michael Bruntmyer, personally brought that concern to Larson. During the time he was on the safety committee, Maynard made complaints about the danger of using the dollies to move the stackers. However, the minutes taken during Maynard's tenure on the safety committee only identified those who attended the meetings. The minutes do not identify by name someone mentioning a concern. Bruntmyer stated he did not recall Maynard's complaints regarding stacker safety.

On November 9, 1996, Maynard was involved in an accident while moving a stacker machine. While Maynard was lifting the stacker with a dolly, the stacker tipped over and fell on a co-worker's leg. The co-worker was seriously injured. Maynard returned to work the Monday after the accident. Maynard was called into Larson's office where Larson told Maynard that he was negligent. Larson then sent Maynard home. On November 13, Larson met with a number of union members to discuss the situation. Larson and Dick Ruble, Director of Printing Operations, believed that Maynard should be removed from his position because of his negligence, and because of the seriousness of the accident. However, at the union's request, Larson and Ruble agreed that Maynard would merely be demoted. Maynard took a voluntary layoff until the end of December 1996.

Maynard had never reported to any member of the Star Tribune management that the procedure for moving stackers violated the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-78 (1994). Maynard testified that he did not recall ever personally telling Larson that the procedure was unsafe. Maynard did not refer to OSHA until after his accident. He testified that during his time on the safety committee he did not know if the procedure was illegal. Larson claims that no member of the safety committee ever informed him that moving the stackers was dangerous or that it violated any law.

Maynard grieved his demotion. The issue during arbitration was whether the Star Tribune had just cause to remove Maynard from his machinist duties. The arbitrator found in Maynard's favor and reinstated him to his mailer-machinist position.

Following the reinstatement, in March 1998, Maynard filed a complaint against the Star Tribune, alleging a violation of the Minnesota Whistleblower Act, Minn. Stat. § 181.932, subd. 1(a) (1998). Maynard claims that although there had been other accidents on the mailroom floor, to his knowledge, no one has ever been punished for causing an accident. The Star Tribune moved for summary judgment. The district court granted the Star Tribune's motion.


On appeal from summary judgment, this court reviews: (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 doing so, this court views 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).

The Minnesota Whistleblower Act prohibits an employer from discharging or penalizing an employee who

in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

Min. Stat. § 181.932, subd. 1(a) (1998). To establish a prima facie case of retaliatory discharge, an employee must show: "(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two." Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983) (following three-part analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

This court applies the three-step McDonnell-Douglas test to whistleblower claims under Minn. Stat. § 181.932. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592-93 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). If the employee establishes a prima facie case, the burden of production shifts to the employer who must show a legitimate, nondiscriminatory reason for the adverse employment action. Hubbard, 330 N.W.2d at 445. If the employer does so, the burden shifts back to the employee to show the employer’s actions were pretextual. Id.


Respondent argues first that Maynard has not met the first requirement of the prima facie case because Maynard did not "report" safety violations within the meaning of the whistleblower act. See Minn. Stat. § 181.932, subd. 1(a) (requiring report of violation or suspected violation of federal or state law). We agree. Whether a plaintiff made a good-faith "report" is a question of fact, but "this court may determine as a matter of law that certain conduct does not constitute a 'report.'" Rothmeier, 556 N.W.2d at 593 (citation omitted). The conduct complained of must be a violation or suspected violation of a law in order to implicate the whistleblower act.

Although Maynard testified in his deposition that the safety hazards in the mailroom violated OSHA, he did not research OSHA until after the accident occurred. In fact, he did not tell anyone he suspected that moving the stacker machines with dollies was illegal. Maynard merely gave feedback during his tenure on the safety committee. See Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 180 (Minn. App. 1991) (stating feedback given to supervisor regarding proposed business decisions was not "report" within meaning of statute), aff'd mem., 479 N.W.2d 58 (Minn. 1992). Further, Maynard did not show that the suspected violation of the law implicates "morals, health, safety, and welfare of the public." See Donahue v. Schwegman, Lundberg, Woessner & Kluth, P.A., 586 N.W.2d 811, 814-15 (Minn. App. 1998) (holding "report" under whistleblower statute must implicate public policy), review denied (Minn. Feb. 18, 1999). Maynard failed to meet the first requirement of the prima facie case and his claim fails on this deficiency. Because Maynard has not met the first requirement, we decline to address Maynard's argument that the district court erred in determining he had not met the third requirement, a causal connection between this "report" and his demotion.


For purposes of its order, the district court assumed Maynard had met his burden of establishing a prima facie case, and focused on his burden under the third step of the McDonnell-Douglas test. Assuming, for the sake of argument, that Maynard established a prima facie case, and made a "report," the burden then shifts to the Star Tribune to show a legitimate, nondiscriminatory reason for Maynard's demotion. See Hubbard, 330 N.W.2d at 445 (stating if employee establishes prima facie case, burden shifts to employer). The Star Tribune asserts Maynard was demoted because of negligently causing the accident. Maynard argues this reason is mere pretext. Our examination of the record supports the district court's conclusion that there was no genuine issue of material fact as to pretext, and the star tribune was entitled to judgment as a matter of law.

After the employer asserts a legitimate nondiscriminatory reason for an adverse employment action, the burden shifts back to the employee to show pretext. Id. The plaintiff ultimately retains the burden of persuading the trier of fact that the adverse employment action was illegally motivated. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996).

Whether a case requires evidence beyond a showing of pretext so that it survives summary judgment is a fact-intensive determination decided on a case-by-case basis. Id. at 1335. A prima facie case of discrimination combined with evidence of pretext may alone be sufficient to support an inference of illegal motives. See Raddatz v. Standard Register Co., 312 F. Supp.2d 1155, 1160 (D. Minn. 1999) (holding evidence sufficient to support claim of age discrimination where violation of employer's policy was minor, termination was sudden, employee was in good standing, and no warning of disciplinary action was given). On the other hand, a court may decide that, despite a factual dispute as to pretext, the evidence is insufficient as a matter of law to allow a reasonable fact finder to infer illegal motives by the employer. See Rothmeier, 85 F.3d at 1337 (affirming summary judgment for the employer where evidence of pretext was insufficient to infer intentional discrimination based on age). Ultimately, the court's decision is based on the overall strength of the evidence. Id. at 1336.

Maynard argues the arbitrator's decision, which reinstated him to his original position, "proves" that the Star Tribune’s reason for demoting him was pretextual. But evidence that the employer's articulated explanation is subjective, even incorrect, does not, standing alone, entitle a claimant to judgment as a matter of law. Id. at 1334; see also Gill v. Reorganized Sch. Dist. R-6, 32 F.3d 376, 379 (8th Cir. 1994) (stating incorrect decision does not necessarily prove employer's explanation is pretext). A plaintiff must show that the explanation is a pretext for the illegal activity. Rothmeier, 85 F.3d at 1334. Merely because an arbitrator (working under different issues, different rules, and an employment contract - none of which are before this court on appeal) reinstated Maynard to his previous position does not automatically make Maynard's demotion illegally motivated. Put another way, a transfer or demotion found not to be in accord with a union management contract is neither precedent nor casts any great light on the issue before us.

Maynard also argues that no other mailroom employees were disciplined for causing accidents in the mailroom. Instances of disparate treatment can support a claim of pretext, but Maynard must show that the other mailroom workers were similarly situated and accused of the same offense, but disciplined in different ways. See Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560 (8th Cir. 1997) (stating instances of disparate treatment can support claim of pretext but holding former employee must prove she and other employee, who former employee alleges company treated differently, were similarly situated). The record shows that although other employees who caused accidents in the mailroom were not disciplined, those accidents were not similar to the one caused by Maynard. Both Maynard and Larson testified that Maynard's accident was the most serious accident to occur in the mailroom. Thus, other less serious accidents do not prove that Maynard's demotion was improper disparate treatment. We conclude that the record supports the district court's finding of insufficient proof to infer illegal motives by the Star Tribune. The district court's grant of summary judgement to the Star Tribune was proper.