This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Arnold Morgenweck,



Independent School District No. 333,


Filed July 1, 1997

Affirmed in part, reversed in part, and remanded

Short, Judge

Kanabec County District Court

File No. C595519

Dorothy J. Buhr, Sisam & Associates, P.A., 6600 France Avenue South, Suite 360, Minneapolis, MN 55435 (for appellant)

James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for respondent)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.[*]


SHORT, Judge

The trial court granted summary judgment to Independent School District No. 333 (district) on Arnold Morgenweck's claims of age discrimination and retaliatory demotion under the whistleblower statute. On appeal, Morgenweck argues the trial court committed errors of law, and genuine fact issues preclude summary judgment. We affirm the trial court's decision on Morgenweck's whistleblower claim, but reverse and remand with respect to his claim of age discrimination.


On appeal from summary judgment, this court determines whether genuine issues of material fact exist and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Statutory construction presents a question of law, which we review de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

In reviewing employment discrimination claims under the Minnesota Human Rights Act and the whistleblower statute, we employ the three-step analysis formulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824 (1973). See, e.g., Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986) (gender discrimination action); Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 572 (Minn. 1987) (whistleblower claim). First, the employee must present a prima facie case of discrimination, which creates a presumption of unlawful discrimination and shifts the burden to the employer. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S. Ct. 1089, 1094 (1981). Second, the employer may rebut the presumption by proffering evidence that would allow a reasonable trier of fact to conclude the employer had a legitimate, nondiscriminatory reason for the action taken against the employee. Id. at 254-55, 101 S. Ct. at 1094-95. And third, in order to carry his or her ultimate burden of persuasion, the employee must prove the employer's proffered explanation is a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 514-15, 113 S. Ct. 2742, 2751 (1993).

Morgenweck argues genuine issues of material fact preclude summary judgment on his age discrimination claim. See Minn. Stat. § 363.03, subd. 1 (1996) (forbidding employers from discharging or discriminating against employees with respect to terms or conditions of employment because of age). Morgenweck's prima facie case includes evidence that he: (1) is 61 years old; (2) was qualified to perform head custodial duties, as he had worked in the district for 20 years and had been head custodian for seven years; (3) was transferred to the night shift from the day shift; and (4) was replaced by a 42-year-old man who had worked in the district only six and a half years. See Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 711 (Minn. 1992) (requiring plaintiff in discrimina-tory discharge action to show he was member of protected class qualified to perform position and was replaced by member of non-protected class). Contrary to the district's argument, a shift in work hours constitutes a change in the terms of employment for purposes of a prima facie case of age discrimination. See Johnson v. Canadian Pac. Ltd., 522 N.W.2d 386, 389 (Minn. App. 1994) (noting statute does not require showing of discharge, but of any adverse employment action), rev'd on other grounds sub nom. Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319 (Minn. 1995); see, e.g., Sigurdson v. Isanti County, 408 N.W.2d 654, 659 (Minn. App. 1987) (recognizing employer's reprimands and reconsideration of employee's promotion constituted adverse employer actions, although less pronounced than discharge).

Furthermore, although the district met its burden of production by putting forth evidence of a legitimate, nondiscriminatory business reason for demoting Morgenweck, the record demonstrates: (1) the district superintendent, Dr. Horgen (superintendent), asked Morgenweck when he planned to retire and made several comments regarding his desire for Bob Schubert, another 61-year-old district employee, to retire, (2) Morgenweck was never reprimanded or disciplined in the 18 years before the superintendent joined the district; (3) during the superintendent's tenure, Morgenweck received only one reprimand prior to the four incidents culminating in his demotion; (4) the four incidents contributing to the demotion all occurred within a one-week period; and (5) the superintendent never mentioned Morgenweck's bad attitude as a factor in the demotion until he relied on that factor in his deposition. Given this evidence, Morgenweck raised a genuine issue of material fact as to whether the district's proffered reason for the adverse employment action was a pretext for purposeful discrimination. Under these circumstances, the trial court erred in granting summary judgment against Morgenweck's age discrimination claim.

Morgenweck also argues the district violated the whistleblower statute by taking adverse action against him after he informed the superintendent that the district's intended course of action in forcing Schubert's retirement would violate the law. See Minn. Stat. § 181.932 (1996) (forbidding an employer from penalizing an employee with regard to terms or conditions of employment when employee reports to employer a suspected violation of law). To establish causation, Morgenweck relied on evidence that: (1) the discussion between Morgenweck and the superintendent occurred sometime during the winter of 1995; (2) in March 1995, the superintendent transferred Morgenweck to the night shift; and (3) there was no intervening confrontation between Morgenweck and the superintendent that could have prompted the district's action. After a careful review of the record, we conclude Morgenweck failed to show a causal link between his alleged whistleblowing activity and his demotion. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986) (requiring nonmovant in summary judgment proceedings to produce specific facts to create issue for trial); see, e.g., Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 445 (Minn. 1983) (discussing causation in context of retaliatory discharge under human rights act, and finding genuine issue existed where plaintiff was terminated two days after serving complaint on employer). Therefore, the trial court properly dismissed Morgenweck's whistleblower claim.

Affirmed in part, reversed in part, and remanded.

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