This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2459

 

William Bullard, Sr.,

Appellant,

 

vs.

 

Penske Logistics, LLC,

Respondent.

 

Filed September 6, 2005

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. EM 03-15154

 

William Bullard, Sr., 4417 Penn Avenue North, Minneapolis, MN  55412 (pro se)

 

Andrew J. Voss, Jacy Rubin Grais, Littler Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN  55402-3720 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant William Bullard, Sr., challenges the district court’s summary judgment dismissing his claim for wrongful termination based on racial discrimination.  Because the district court did not err by concluding as a matter of law that appellant failed to establish a prima facie case of wrongful termination or that respondent Penske Logistics, LLC offered a pretextual reason for his termination, we affirm.

D E C I S I O N

            Summary judgment shall be granted if, based on the pleadings, discovery, and court records, there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.   The party opposing a motion for summary judgment may not rest on “mere averments or denials,” but must present specific facts that establish the existence of a genuine issue for trial.  Minn. R. Civ. P. 56.05.  The reviewing court must view the evidence in a light most favorable to the party against whom judgment is granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            Appellant alleged that respondent wrongfully terminated his employment in June 1999 because of his race, in violation of Minn. Stat. § 363.03, subd. 1(2)(b) (1998).  In order to sustain this cause of action, appellant must show proof of intentional discrimination.  Smith v. DataCard Corp., 9 F.Supp.2d 1067, 1078 (D. Minn. 1998) (stating that both Title VII and MHRA require proof of intentional discrimination).  Because there is no direct evidence of discrimination here, appellant’s claim is analyzed in accordance with the McDonnell Douglas framework.  See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824-25 (1973). 

            Under this analysis, the plaintiff has the burden of establishing a prima facie case of discrimination; the burden shifts to the employer to rebut the claim by presenting evidence of a legitimate, nondiscriminatory reason for its actions; the plaintiff then has the burden of persuading the court that the employer’s proffered reason is pretextual.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). 

            In order to establish a prima facie case of employment discrimination because of race, appellant must show that (1) he is a member of a protected class; (2) he was qualified for the job he was performing; (3) he suffered an adverse employment action (termination); and (4) a nonmember of the protected class replaced him or was not subject to the adverse employment action.  Smith, 9 F. Supp. 2d at 1079.  The first three elements are not disputed by respondent.  As to the last, appellant, an African American, claims that he was terminated for altering his mandatory DOT driving log, while white employees were not.

            The district court concluded that appellant did not establish a prima facie case of discrimination because he produced no proof of disparate treatment, other than conclusory allegations.  A plaintiff must set forth “specific facts sufficient to raise a genuine issue for trial” and may not rely simply on allegations.  Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8thCirc. 1998).  Appellant here did no more than allege that his supervisor was racist.  While the MDHR investigation yielded a couple of interviews in which unnamed parties stated that the supervisor made racially derogatory statements, these statements were also conclusory.  Appellant has neither raised a genuine issue of material fact nor demonstrated that the district court erred as a matter of law by granting summary judgment.

            Even assuming that appellant offered a prima facie case of discrimination, respondent presented legitimate, nondiscriminatory reasons for discharge:  falsification of appellant’s DOT log, which could affect respondent’s commercial license, and failure to report additional employment, also a violation of DOT regulations.  In addition, respondent presented proof that another driver, who was white, was terminated for the same offense of altering his DOT log. 

            In order to show that respondent’s reasons for discharge were pretextual, appellant must show that the employer’s proffered reason for termination was based on unlawful discrimination.   Hoover, 632 N.W.2d at 545.  The district court noted that respondent “consistently established that it terminated [appellant’s] employment due to the intentional falsification of his DOT mandated driver’s log.”  Again, appellant offered only conclusory statements that “everybody [did] it” and that his supervisor was racist.  This ignores the fact that appellant’s supervisor was not the decision maker for the termination; he was instructed by his own supervisor to terminate appellant’s employment.  Appellant produced no other evidence that would tend to show that respondent’s stated reason was based on unlawful discrimination.  Appellant has failed to demonstrate that the district court erred as a matter of law by rejecting his claim that respondent’s reasons were based on unlawful discrimination.

            The district court also rejected appellant’s claim that the supervisor intimidated him by producing a knife during one conversation.  Again, this claim is supported only by appellant’s conclusory offering; it apparently did not occur during the termination conversation, and appellant does not claim that it was a specifically threatening gesture. 

            Appellant has failed to sustain his burden of establishing a prima facie case of disparate treatment or of rebutting respondent’s claim of a legitimate, non-discriminatory reason for terminating appellant’s employment.  The district court therefore did not err by granting summary judgment.

            Affirmed.