This opinion will be unpublished and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

A05-255

 

Milton Huggins, complainant,
Relator,

vs.

Pechiney Plastics Packaging, Inc.,
Respondent,

Minneapolis Commission on Civil Rights,
Respondent.

 

Filed December 27, 2005

Affirmed

Peterson, Judge

 

Minneapolis Department of Civil Rights

File No. A0032-EM-1A-11/EEOC File No. 26DA00014

 

David O. Nirenstein, Teresa R. Flack, Fitch, Johnson, Larson & Held, P.A., 100 Washington Square, Suite 648, Minneapolis, MN  55401-2138 (for relator)

 

Andy Voss, Jacy R. Grais, Kathryn A. Mrkonich, Littler Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN  55402-3720 (for respondent Pechiney Plastic Packaging, Inc.)

 

            Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

By writ of certiorari, relator seeks review of the Minneapolis Commission on Civil Rights’ summary dismissal of his discrimination claim against respondent.  By notice of review, respondent employer argues that the commission erred when it determined that employer was not prejudiced by the delay in bringing the case to its conclusion.  We affirm.

FACTS

            Relator Milton Lee Huggins worked for respondent Pechiney Plastic Packaging, Inc. for 27 years.  He started as a laborer, became Finishing Department Supervisor in 1974, and later held other supervisory positions. 

Pechiney uses a five-tier performance-evaluation system for its employees.  An employee is rated outstanding; exceeds; meets; fair; or unsatisfactory.  Huggins regularly received a rating of “meets” on his year-end performance appraisals.  On three occasions between 1985 and 1997, Huggins received a “fair” rating.  In 1998, Huggins received an “unsatisfactory” rating.  On March 19, 1999, Huggins’ supervisor, Jim Cech, placed him on a 60-day performance-management plan.  In a letter explaining the plan to Huggins, Cech stated:

Based on your 1998 performance assessment rating of “Unsatisfactory”, you have been placed on a performance management program.  We will be working together over the next 60 days to ensure you understand why your performance has been rated as unsatisfactory, what you need to do different to improve your performance, and to give you an opportunity to provide evidence or specific examples of where you are doing these things.  If your performance is at a “meets” level at the end of this 60 day period, the performance management program will be concluded.  If, however, your performance has not improved to a “meets” level, your employment will be terminated.

 

Huggins and Cech met three or four times to work on the performance-management plan.  In June 1999, Huggins was given an additional 30 days to improve his performance to at least a “meets” rating.  On August 20, 1999, Pechiney terminated Huggins’ employment for unsatisfactory job performance. 

Huggins filed a complaint with the Minneapolis Department of Civil Rights (MDCR) on December 10, 1999, alleging discrimination based on race and age in violation of the Minneapolis Code of Ordinances.  On September 20, 2000, the MDCR found no probable cause.  Huggins appealed to the executive director of the MDCR, and the issue was reviewed by the Minneapolis Commission on Civil Rights in February 2001.  On June 11, 2001, the commission remanded the case to the MDCR for further investigation.  On June 11, 2002, the MDCR returned the case to the commission without any explanation or analysis of its additional investigation.  The commission conducted a second review on November 7, 2002, which resulted in another remand to the MDCR.  The MDCR did not respond until May 13, 2003.  In a June 11, 2003 decision following its final review, the commission reversed the MDCR’s “No Probable Cause” determination.  Pechiney then moved for summary dismissal of the complaint.  The commission granted the motion, concluding that Huggins “is unable to meet his clear burden of establishing prima facie that he was qualified and met Pechiney’s legitimate expectations for the position he held.”  By writ of certiorari, Huggins challenges the commission’s decision.  

D E C I S I O N

            When reviewing an agency decision, this court determines whether the agency violated the constitution, exceeded its authority, engaged in unlawful procedure, erred as a matter of law, issued a decision unsupported by substantial evidence, or acted arbitrarily or capriciously.  Minn. Stat. § 14.69 (2004).  Appellate courts defer to an agency’s expertise in finding facts and will affirm the agency’s decision so long as it is lawful and reasonable.  Contel of Minn. v. Minn. Pub. Utils. Comm’n (In re Investigation into Intra-LATA Equal Access & Presubscription), 532 N.W.2d 583, 588 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).  “‛[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.’”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 463 (Minn. 2002) (alteration in original) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977)).

            “Summary disposition is the administrative equivalent of summary judgment.”  Tombers v. City of Brooklyn Ctr., 611 N.W.2d 24, 26 (Minn. App. 2000).  Summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.

            This court reviews summary dispositions to determine whether any genuine issue of material fact exists and whether the adjudicator applied the law correctly.  In re Assessment Issued to Leisure Hills Health Care Ctr., 518 N.W.2d 71, 75 (Minn. App. 1994), review denied (Minn. Sept. 16, 1994).  Any doubts and factual inferences must be resolved in favor of the nonmoving party.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).

1.         Discrimination

Under the Minneapolis Code of Ordinances, it is unlawful for an employer to discharge an employee “[e]xcept when based on a bona fide occupational qualification . . . because of race, color, creed, religion, ancestry, national origin, sex, affectional preference, disability, age, marital status, or status with regard to public assistance.” Minneapolis, Minn., Code of Ordinances tit. 7, § 139.40(b)(2) (2005).[1]  It is also unlawful for an employer to “discriminate against a person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, discharge, or any term or condition of employment.”  Id. § 139.40(b)(3) (2005). 

Huggins claims that he was discriminated against because of his age and race.  The Minnesota Supreme Court has applied the three-part, burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973), to a disparate-treatment claim brought under the Minneapolis Civil Rights Ordinance.  See Minneapolis Police Dep’t v. Minneapolis Comm’n on Civil Rights, 425 N.W.2d 235, 239 (Minn. 1988) (holding that the McDonnell Douglas three-part analysis (prima facie case, answer, rebuttal) must be used, not only by trial courts, but by all triers of fact in all employment-discrimination cases involving disparate-treatment claims).  Under this burden-shifting analysis, the employee bears the burden of proving by a preponderance of the evidence a prima facie case of discrimination.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  If the employee succeeds in proving a prima facie case, a presumption arises that the employer unlawfully discriminated against the employee, and the burden of production shifts to the employer to present evidence of some legitimate nondiscriminatory reason for its actions.  Id.  If the employer meets this burden, the presumption of discrimination no longer exists, and the employee must then prove by a preponderance of the evidence that the reason or justification offered by the employer is a pretext for discrimination.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).

Huggins argues that the commission erred in concluding that he did not establish a prima facie case of discrimination.  We disagree.  

To establish a prima facie case of discriminatory discharge, an employee must demonstrate that he (1) is a member of a protected class; (2) was qualified for the job that he was performing; (3) was discharged; and (4) was replaced by a nonmember of the protected class or that other similarly situated nonprotected employees were not discharged for nearly identical behavior.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 442 (Minn. 1983); Swanigan v. W. Airlines, Inc. 396 N.W.2d 607, 612 (Minn. App. 1986), review denied (Minn. Jan. 21, 1987).

Huggins was a 49-year-old, African-American male when his employment was terminated, and he demonstrated the first and third elements of a prima facie case of age and race discrimination.  But to demonstrate the second element of a prima facie case, Huggins needed to show that he was qualified for the job that he was performing.  Huggins argues that the fact that he worked at the company for 27 years and received fair to meets ratings on his performance reviews demonstrates that he was qualified for his position.  Past performance reviews, however, do not demonstrate that an employee presently meets the employer’s legitimate expectations.  See Miller v. Citizens Sec. Group, Inc., 116 F.3d 343, 346 (8th Cir. 1997) (performance evaluations from April 18, 1990, July 26, 1990, and January 16, 1991, not evidence that employee was meeting employer’s legitimate expectations when employee was fired because evaluations were too far removed in time from March 31, 1992 date of discharge). 

Huggins also argues that Pechiney raised the performance bar and, by design, set him up to fail.  But Huggins cites no evidence that his performance requirements were artificial or did not reflect Pechiney’s legitimate expectations for his position.  “[T]he party resisting summary judgment must do more than rest on mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.

Finally, Huggins argues that there are fact issues as to whether (a) he was qualified for his position; and (b) Pechiney provided him with guidance and coaching or left him to his own resources to improve his performance. 

(a)       Qualified for his position

Huggins contends that there is a fact issue as to whether he met Pechiney’s expectations because on one hand, Cech alleged that Huggins did not meet expectations, but on the other hand, Cech documented many tasks that Huggins was able to accomplish.  Huggins cites Cech’s written statements that “[y]ou [Huggins] normally complete routine supervisory and administrative tasks, but there is little evidence that you go beyond this” and that there “is some evidence of identifying goal areas, but little evidence of establishing specific goals, working on goals, and achieving goals.”  Although both of these statements indicate that Huggins was meeting some of Pechiney’s expectations for his performance, they also indicate that Pechiney had expectations that Huggins was not meeting.  Huggins cites no authority that indicates that meeting only some of the employer’s legitimate expectations is sufficient to demonstrate that he was qualified for the job that he was performing.  Therefore, these statements do not establish a fact issue as to whether Huggins was qualified for his position. 

Huggins also contends that the commission failed to acknowledge statements by a project engineer at Pechiney who said that Huggins had shown improvement, was trying harder, pays more attention to problems and discussions, and is beginning to recognize his technical limitations and is calling for help more.  But, like Cech’s statements, these statements do not establish a material issue of fact as to whether Huggins was qualified for his job because improving and trying harder do not mean that Huggins was meeting Pechiney’s expectations for his performance.

(b)       Guidance and coaching

Huggins fails to cite any authority to support his claim that there is a material fact issue whether Pechiney provided him with guidance and coaching or left him to his own resources to improve his performance.  Only disputes over facts that might affect the outcome of the suit under the governing substantive law properly preclude the entry of summary judgment.  See O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996) (stating a material fact is one that will affect the outcome or result of a case).  Unless Pechiney had a duty to provide resources to help Huggins improve his performance, it is immaterial whether Pechiney failed to do so, and Huggins has not cited any authority that indicates that Pechiney had such a duty.

Because Huggins did not present sufficient evidence to establish that he was qualified for the job that he was performing, the commission did not err in dismissing Huggins’ claim for failing to meet his burden of establishing a prima facie case of discriminatory discharge.

2.         Agency Delay

By notice of review, Pechiney challenges the commission’s conclusion that Pechiney made an insufficient showing of prejudice to warrant dismissal of Huggins’ claims based on delays in processing the claims.  Citing State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695 (Minn. 1996), Pechiney argues that further litigation in this case should be barred as a matter of law because of the commission’s extraordinary delay in its investigation of Huggins’ charge after it was filed in December 1999.  In Beaulieu, the supreme court held

that in all cases where the [Minnesota Department of Human Rights] fails to make a determination of probable cause [under the Minnesota Human Rights Act] within 12 months after the filing of a charge, a respondent may seek appropriate relief from the administrative law judge.  The relief granted by the administrative law judge should be in proportion to the prejudice suffered by the respondent and may include dismissal of the complaint.

 

Id.at 702-03.

            Then, with respect to the probable-cause determination in Beaulieu, which was made after an investigation that lasted more than 31 months, the supreme court stated:

Normally, we leave the determination of prejudice and the relief to be granted to the administrative law judge; however, we conclude, as a matter of law, that probable cause determinations made 31 or more months after a charge is filed are per se prejudicial to the respondent and require dismissal of the complaint.

 

            Today’s ruling that probable cause determinations made 31 months or more after a charge is filed are per se prejudicial to the respondent, requiring dismissal of the complaint, shall be applied to the parties before the court in this case and prospectively to all human rights charges filed with the [Minnesota Department of Human Rights] on or after the date of this opinion.

 

  Id. at 703 (footnote omitted).

Here, the commission made its probable-cause determination 42 months after Huggins filed his complaint, and Pechiney argues that under Beaulieu, this delay establishes prejudice as a matter of law.  The commission concluded that Beaulieu does not require dismissal because unlike the Minnesota Human Rights Act, which applied in Beaulieu, the Minneapolis Civil Rights Ordinance does not require a probable-cause determination within a specific period of time and instead provides that “[p]romptly upon the filing of any complaint, the director shall make such investigation as the director may deem appropriate to determine whether there is probable cause to believe that the allegations of discrimination are well founded.”  Minneapolis, Minn., Code of Ordinances tit. 7, § 141.50(c) (2005). 

The statute at issue in Beaulieu, Minn. Stat. § 363.06, subd. 4(1) (1994), provided that “the commissioner shall make a determination within 12 months after the charge was filed.”  522 N.W.2d at 701.  The supreme court concluded that “shall,” as used in this phrase, is mandatory.  Id. at 702.  But in explaining this conclusion, the supreme court recognized the very same distinction that the commission relied on to conclude that Beaulieu does not require dismissal of Huggins’ complaint. 

The supreme court explained:

[W]e have noted that the [Minnesota Human Rights Act] is modeled after Title VII of the Civil Rights Act of 1964.  Unlike the similar provision of Title VII as amended by 42 U.S.C. § 2000e-5(b) (1994), which provides that the EEOC “shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge,” Minn. Stat. § 363.06, subd. 4(1), contains language setting a strict time frame within which the [Minnesota Department of Human Rights] must make a probable cause determination.  If the legislature intended section 363.06, subd. 4(1), to provide something less than a strict time frame, it need only have used language similar to the language found in section 2000e-5(b) of Title VII.  It did not. 

 

Id. (citation omitted).

            Given the supreme court’s explicit recognition that language in Title VII of the Civil Rights Act of 1964 that is similar to language in the Minneapolis Civil Rights Ordinance would support a different conclusion than the court reached in Beaulieu, we disagree with Pechiney that the commission’s 42-month delay in making its probable-cause determination under the ordinance establishes prejudice as a matter of law under Beaulieu.  Therefore, any relief that the commission may grant under Beaulieu based on the 42-month delay in making the probable-cause determination should be in proportion to the prejudice Pechiney suffered as result of the delay.

In the memorandum accompanying its summary-dismissal decision, the commission stated that Pechiney “has made no persuasive showing of specific prejudice as a result of the period between the filing of the original complaint, and the ultimate reversal of the Department’s finding of no probable cause.”  Pechiney argues on appeal that the delay caused “severe prejudice to Pechiney.”  But the only prejudice it identifies is that key management witnesses are no longer available, and it does not identify the witnesses who are not available or describe the prejudice caused by their unavailability.  We, therefore, conclude that Pechiney has not overcome the presumption of correctness that applies to the commission’s decision that Pechiney made no persuasive showing of specific prejudice.

            Affirmed.