This opinion will be unpublished and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

A05-1062

 

 

Brad McCormick,

Appellant,

 

vs.

 

Banner Engineering Corp.,

Respondent.

 

 

Filed February 14, 2006

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 04-10398

 

 

M. William O’Brien, Justin D. Cummins, One Financial Plaza, 120 South Sixth Street, Suite 2400, Minneapolis, MN  55402 (for appellant)

 

Ansis V. Viksnins, Nancy S. Flury, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402-2274 (for respondent)

 

Leslie L. Lienemann, Culberth & Lienemann, LLP, 1050 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN  55101 (for amicus Curiae Minnesota Chapter-National Employment Lawyers Association)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Brad McCormick claims that the district court erred in granting summary judgment to his employer, respondent Banner Engineering Corporation, on his whistleblower claim brought under Minn. Stat. § 181.932, subd. 1(a) (2002).  He argues that he established a prima facie case of improper termination from his employment as a safety compliance specialist for voicing concerns regarding the safety of tests conducted on respondent’s product, the E-Stop module, an electrical safety device designed to shut off power to industrial machines in specified situations.  He also argues that respondent’s stated reasons for his termination were pretextual.  Because appellant could not show an actual or suspected violation of a law or rule that would support a prima facie case of wrongful termination and because the record evidence is overwhelming that appellant was terminated for serious concerns with his job performance and credibility, we affirm.

D E C I S I O N

            Minnesota’s whistleblower statute provides that an employer may not discharge an employee if the employee “in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer[.]”  Minn. Stat. § 181.932, subd. 1(a) (2002).  The statute also prohibits an employee from “mak[ing] statements or disclosures knowing that they are false or that they are in reckless disregard of the truth.”  Id., subd. 3 (2002).  “A prima facie case of retaliatory discharge under the whistleblower statute requires the employee to demonstrate statutorily protected conduct by the employee, an adverse employment action by the employer, and a causal connection between the two.”  Gee v. Minn. State Colleges & Univs., 700 N.W.2d 548, 555 (Minn. App. 2005); see Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied, (Minn. May 15, 2001).

            The district court’s grant of summary judgment was based on its determination that appellant had cited no state or federal law governing the safety standards for the E-Stop module and that appellant had provided no evidence to establish that his termination was pretextual.  We must affirm if after viewing the evidence in the light most favorable to appellant, we conclude that the record shows “there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law.”  Hickman v. SAFECO Ins. Co. of Am., 695 N.W.2d 365, 369 (Minn. 2005); see Minn. R. Civ. P. 56.03.

            During the fall of 2003, appellant learned that company engineers had met to establish E-Stop testing parameters that would demonstrate that the product was safe for consumers.  The engineers agreed that during standard shock and vibration testing, a .2 millisecond reaction time would be sufficient duration to determine whether the relay contact points that effectuate the module’s shutoff would remain in the open position.  Appellant believed that a 1.0 millisecond reaction time, a duration five times longer than that agreed upon by the engineers, would be proper.  There is no evidence that the E-Stop module circuits ever remained closed, and machines therefore on, during any of the testing.  Upon learning of the engineers’ decision, appellant sent a sarcastic and strongly-worded e-mail to his immediate supervisor condemning the decision, stating that it violated various national and international laws and standards, and claiming that the E-Stop module, after such testing, would “supply a product that has a known and verified mode in which it fails to danger.”  After meeting with appellant three times and extensively researching whether there was any merit to appellant’s allegations, including giving appellant the opportunity to provide evidence of a mode in which the E-Stop would fail in a dangerous manner, the director of safety products concluded that appellant’s claims lacked support.  Soon after, appellant was terminated from his employment. 

            Appellant claims that the language of the whistleblower statute merely requires that he have a good faith belief of a suspected violation of law, which he had in this case.  To satisfy the good faith requirement, an employee must show “the report [was] made for the purpose of blowing the whistle, i.e., to expose an illegality.”  Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000); Gee, 700 N.W.2d at 555.  Appellant’s statements and his “whistleblowing” e-mail satisfy the good faith requirement, at least for the purpose of surviving a motion for summary judgment.  See Cokley, 623 N.W.2d at 630 (whether employee blew whistle in good faith generally question of fact).    

            More problematic is whether appellant established a prima facie case by identifying a suspected or actual violation of law or standards.  Appellant interprets the statute to require that he merely suspect a violation of some law or standard to satisfy this requirement.  In Obst, 614 N.W.2d at 204, the supreme court rejected this view in a case involving a windshield manufacturer’s deviation from testing procedures, stating, “the report of a suspected violation of federal or state law must implicate an actual federal or state law and not one that does not exist.”  See also Hedglin v. City of Willmar, 582 N.W.2d 897, 902 (Minn. 1998) (while actual violation of law unnecessary, reported conduct must implicate violation of law).  Since the release of Obst, the supreme court has further elaborated that the specific law need not be named so long as “the employee alleges facts that, if proven, would constitute a violation of law or rule adopted pursuant to law.”  Abraham v. County of Hennepin, 639 N.W.2d 342, 354-55 (Minn. 2002).                

            Here, appellant offers a convoluted explanation of why he believes the testing modifications violated federal law.  He alleges that the federal regulations establish safety requirements and incorporate the standards set forth in the American National Standards Institute (ANSI) and Underwriters Laboratories (UL).  After our review of these laws and standards, we agree with the district court’s conclusion that they do not regulate or even concern the testing parameters of the E-Stop module.  For this reason, the district court did not err in concluding that appellant failed to establish a prima facie whistleblower case by failing to implicate any law or standard that was violated due to changes in E-Stop module testing.

            Even assuming that appellant could establish a prima facie case under the whistleblower statute, we also conclude that appellant failed to show that his termination was pretextual.  During his years of employment with respondent, appellant’s performance was consistently substandard, and he received very negative performance reviews as early as 1996, when his supervisor noted that there was “cause to release [appellant] at this time.”  A 2001 performance appraisal questioned appellant’s communication and organization skills, credibility, and dependability, and gave detailed examples of his failings.  Appellant received a similar review in 2002, and a four-page 2003 performance review laid out in detail very strong objections to appellant’s work, with the overall conclusion that he could not be trusted for results.  This review also listed mistakes, poor communication, poor organization, a questionable attitude, and inability to take work direction.  The last review was not shared with appellant because he was terminated before meeting with his supervisor.  The record also included strong evidence that appellant was not credible, a fundamental job requirement for his position.  Co-workers routinely used sources other than appellant to have work done or safety compliance questions resolved.  Appellant also had recurring problems with very poor attendance and improper use of company computers and mail. Respondent’s owner, Robert Fayfield, stated in his deposition that appellant received only cost-of-living pay raises, and he could not think of another employee who received a lower percentage in raises. 

            Despite this evidence and appellant’s inability to substantiate any of the claims included in the e-mail, misunderstanding of test data, inability to check critical facts or clarify important information, and damaged credibility, appellant continues to maintain that he was not discharged for performance problems.  Appellant’s claim has no factual support, with the exception of two fellow workers who gave weak statements in their depositions that could be construed to support his claim that he was a good employee.   Appellant argues that this raises a fact issue that should be decided at trial.  But a genuine issue of material fact does not exist when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997).  A genuine issue for trial must be established by substantial evidence.  Id.at 69-70.  Here, the evidence is very strong that appellant was a poor employee and his employer had a basis to terminate his employment for cause.  Appellant thus did not meet his burden of proof that respondent’s reason for firing him was pretextual.

            Affirmed.