This opinion will be unpublished and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

A05-2297

 

Henry C. Dahlman, M. D.,

Appellant,

 

vs.

 

HealthEast d/b/a HealthEast Care System,

Respondent.

 

Filed August 8, 2006

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. C1-04-10691

 

Sonja Dunnwald Peterson, Dunnwald & Peterson, P.A., 1150E Grain Exchange Building, 412 South Fourth Street, Minneapolis, MN 55415 (for appellant)

 

Sara Gullickson McGrane, Brian T. Benkstein, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402-4504 (for respondent)

 

Justin D. Cummins, Miller ·O’Brien, P.L.L.P., One Financial Plaza, 120 South Sixth Street, Suite 2400, Minneapolis, MN 55402 (for amicus curiae National Employment Lawyers Association, Minnesota Chapter)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Henry C. Dahlman sued respondent HealthEast for disability discrimination after respondent terminated his employment.  On appeal from a grant of summary judgment to respondent, appellant argues that the district court erred in determining that (1) appellant failed to establish a prima facie case of disability discrimination; and (2) respondent’s proffered reason for terminating appellant is not a pretext for discrimination.  We affirm.

D E C I S I O N

 

            On an appeal from summary judgment, this court makes two determinations:  “(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).  A “reviewing court must view 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).  No genuine issues of material fact exist “[w]here 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) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (alteration in original)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  Thus, a genuine fact issue for trial must be established by “substantial evidence.”  Id. at 69-70.  If there are no genuine issues of material fact, this court will review the district court’s application of law de novo.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

I.

            Under the Minnesota Human Rights Act (MHRA), an employer commits an unfair employment practice if the employer discharges or otherwise discriminates against an employee because of the employee’s disability.  Minn. Stat. § 363A.08, subd. 2 (2004).  A plaintiff may prove discriminatory intent either by direct evidence or by circumstantial evidence in accordance with the three-part McDonnell Douglas burden-shifting test.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).  Under the McDonnell Douglas test, the plaintiff alleging a discriminatory employment practice must first make out a prima facie case of discrimination.  Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).  The plaintiff must show that he “(1) is a member of [a] protected class; (2) was qualified for the position from which [s]he was discharged; and (3) was replaced by a non-member of the protected class.”  Id. (quotation omitted).  If the plaintiff is successful, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge.  Id. at 545.  Once the employer meets this burden, the employee must establish that the proffered reason is a pretext for discrimination.  Id.  “[A]t all times the employment discrimination plaintiff retains the burden of establishing that the defendant’s conduct was based on unlawful discrimination.”  Id. at 546.

            Appellant argues that because there is a fact issue as to whether he is disabled, the district court erred in determining that appellant did not establish a prima facie case of disability discrimination.  We agree.

            The MHRA defines “disability” as “any condition or characteristic that renders a person a disabled person.”  Minn. Stat. § 363A.03, subd. 12 (2004).  A “disabled person” is “any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”  Id.

            This court must first determine whether appellant’s claimed disability is a physical impairment.  See Bragdon v. Abbott, 524 U.S. 624, 632, 118 S. Ct. 2196, 2202 (1998) (addressing disability discrimination claim under the Americans with Disabilities Act (ADA)).  The MHRA does not define “physical impairment.”  But this court looks to federal antidiscrimination statutes for guidance “when the state law provisions in question are similar to provisions of the federal statutes.”  Gee v. Minn. State Colls. & Univs., 700 N.W.2d 548, 553 (Minn. App. 2005.)  Under federal law, a “physical impairment” includes

any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine

 

45 C.F.R. § 84.3(j)(2)(i) (2005) (emphasis added); see also Bragdon, 524 U.S. at 632, 118 S. Ct. at 2202 (citing 45 C.F.R. § 84.3(j)(2)(i)).

            Next, we must “identify the life activity upon which appellant relies . . . and determine whether it constitutes a major life activity.”  See Bragdon, 524 U.S. at 631, 118 S. Ct. at 2202 (addressing disability discrimination claim under the ADA).  In making this determination we “look to the federal definition of ‘major life activities’ for guidance.”  Gee, 700 N.W.2d at 553.  “Under federal law, major life activities are ‘those activities that are of central importance to daily life.’”  Id. (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 691 (2002)).  Federal regulations provide that major life activities include, but are not limited to, “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”  29 C.F.R. § 1630.2(i) (2003); see also Bragdon, 524 U.S. at 639, 118 S. Ct. at 2205 (stating that “the list is illustrative, not exhaustive”).

            Finally, we must determine whether the impairment materially limits major life activities.  Minn. Stat. § 363A.03, subd. 12.  “The degree to which a condition limits one or more major life activities is evaluated based on the plaintiff’s specific circumstances.”  Hoover, 632 N.W.2d at 543.  Moreover, the MHRA’s “materially limited” standard is less stringent than the federal “substantially limited” standard.  Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995).

            Here, appellant is a licensed physician who worked for respondent as an emergency room physician.  In February 2000, more than two years before he began working for respondent, appellant was diagnosed with advanced prostate cancer.  His doctors treated the cancer by performing a radical prostatectomy and cystectomy, which included removal of appellant’s prostate gland, the surrounding lymph nodes, and his bladder.  Appellant now must use a plastic urostomy bag that is adhered to his skin.  The bag is not always reliable and has leaked when appellant was treating a patient.  Appellant also suffers from frequent bouts of intestinal cramping and proctosigmoiditis, which results in diarrhea, bloody stools, pain in the rectal area, and a sense of urgency to empty the bowel.  Further, appellant has experienced other side effects including impotency, hot flashes, weight gain, and thin skin.

            We conclude that the record indicates that appellant has a “physiological disorder or condition . . . or anatomical loss affecting [his] . . . reproductive, digestive, [and] genito-urinary” systems.  See 45 C.F.R. § 84.3(j)(2)(i).  Appellant is therefore physically impaired under the MHRA.  Further, appellant has presented a fact issue as to whether he is materially limited in the major life activity of waste elimination. 

            In its order for summary judgment, the district court stated that appellant “cite[d] no authority for his position that urination and defecation are major life activities.”  But the federal regulation’s list of major life activities is “illustrative, not exclusive.”  Bragdon, 524 U.S. at 639, 118 S. Ct. at 2205.  Furthermore, waste elimination is “of central importance to daily life.”  See Gee, 700 N.W.2d at 553 (quoting Toyota Motor, 534 U.S. at 197, 122 S. Ct. at 691).

            The district court also determined that use of a urostomy bag and frequent bathroom usage does not mean that appellant is materially limited in his ability to urinate and defecate.  The district court relied on Martin v. AT&T Corp., 331 F. Supp. 2d 1274, 1299 (D. Colo. 2004), in which a federal district court concluded that the “plaintiff’s allegations regarding his need to wear protection and to frequently go to the bathroom does not substantially limit a major life activity.”  But Martin involved an ADA claim, which requires plaintiffs to show that their impairment substantially limits a major life activity.  331 F. Supp. 2d at 1299.  In contrast, appellant brought his claim under the MHRA, which only requires that the impairment materially limit a major life activity.  Sigurdson, 532 N.W.2d at 228.  Furthermore, unlike the plaintiff in Martin, appellant does not merely need to wear protection and frequently use the bathroom.  Rather, appellant must wear a urostomy bag outside of his body because his bladder was removed.  The bag is not always reliable and he suffers from additional digestive problems.

            On this record, we conclude that appellant has raised a fact issue as to whether his physical impairments materially limit the major life activity of waste elimination.  Thus, the district court erred in determining that appellant did not establish a prima facie case of disability discrimination.  Because a fact issue exists as to whether appellant is disabled under the MHRA, we need not address whether appellant has record of such an impairment or whether respondent regarded appellant as having such an impairment.  We also decline to address whether appellant’s impairments materially limited his ability to procreate.

II.

 

            Once a plaintiff makes out a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge.  Hoover, 632 N.W.2d at 545.  If the employer meets this burden, the employee must establish that the proffered reason is a pretext for discrimination.  Id.  “[T]he plaintiff has the burden of persuading the court by a preponderance of the evidence that the employer intentionally discriminated against [him].”  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  The plaintiff may meet this burden “either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”  Id. (quotation omitted).  “To prove pretext, the employee must do more than show that the employment action was ill-advised or unwise, but rather must show that the employer has offered a ‘phony excuse.’”  Henderson v. Ford Motor Co., 403 F.3d 1026, 1034 (8th Cir. 2005) (quotation omitted).

            Here, respondent terminated appellant after appellant breached respondent’s policy and sent an infant with a high fever home without ordering any tests.  Appellant’s former supervisor testified in a deposition that terminating appellant was “the most appropriate thing to do” based on appellant’s “very serious error” in conjunction with earlier documented performance concerns.  Thus, we conclude that respondent offered a legitimate, nondiscriminatory reason for terminating appellant’s employment. 

            Appellant argues that there is a genuine issue of material fact regarding whether respondent’s proffered reason for terminating appellant’s employment was a pretext for discrimination.  We disagree because appellant has failed to present evidence that respondent terminated him because of his disability.  Respondent hired appellant knowing that appellant had prostate cancer.  And respondent continued to employ appellant as appellant underwent external radiation therapy, which resulted in numerous side effects.  The record shows that respondent only questioned appellant’s competence after he exhibited performance problems. 

            The record indicates that in March 2004, appellant approached a possible stroke victim with another patient’s x-ray and told her that he thought she had a broken leg.  Because appellant was ill, respondent subsequently requested a letter from appellant’s treating physician stating that appellant was fit to return to work.  Then in mid-June 2004, respondent received memos from two nurses who were concerned with appellant’s performance.  The nurses complained that appellant improperly wrote orders, did not treat patients in a timely manner, was unorganized, and sometimes acted confused.  Appellant contends that the nurses’ complaints were unsubstantiated and that the nurses increasingly scrutinized his work because of his disability.  But the record shows that appellant wrote incomplete orders for one or two patients and that appellant admitted that he improperly wrote another order.  Furthermore, respondent did not terminate appellant’s employment after receiving the complaints.  Rather, it ordered neuropsychometric testing to assess appellant’s cognitive competencies and subsequently allowed appellant to return to work.

            Finally, six days after returning to work, appellant examined a 28-day-old infant who arrived with a temperature of 101.3 degrees Fahrenheit.  Appellant sent the infant home without ordering any tests.  Respondent subsequently terminated appellant’s employment after receiving a complaint from the child’s doctor about appellant’s treatment of the infant.

            Appellant contends that his termination was discriminatory because his treatment of the infant was not a medical error.  But as the district court noted, “[t]he complaint about [appellant’s] treatment of the 28-day-old infant did not come internally, but rather came through the typical ‘chain of command.’”  The infant’s pediatrician contacted respondent’s pediatric medicine director because she was concerned with the treatment that the infant had received.  Furthermore, respondent has provided ample evidence to show that the hospital’s normal protocol is to test febrile infants before discharging them and that appellant was aware of the protocol.  Moreover, even if, as appellant argues, the protocol has room for variation, we are not in a position to second-guess an employer’s decision to terminate its employee absent any evidence of discrimination.

            Based on this record, we conclude that appellant has not raised a genuine issue of material fact that respondent’s proffered reason for terminating appellant was pretextual.  Thus, even assuming the district court erred in finding that appellant did not have a qualifying disability, the district court did not err in granting summary judgment because respondent’s legitimate, nondiscriminatory reason for terminating appellant’s employment was not a pretext for discrimination.

            Affirmed.