Mark C. Kruger, Carl Crosby Lehmann, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]

In this appeal from a summary judgment, Michael Griffin argues that a genuine issue of material fact exists as to whether his employer, Parents In Community Action, Inc., discriminated against him on the basis of race or gender. Griffin also argues that the district court erred when it denied his motions to amend his complaint and to extend the time for discovery. We affirm.

Griffin was reprimanded on January 23, 1992, for failing to transport a parent to an evening meeting and on March 27, 1992, for failing to attend an evening parent forum. On November 8, 1994, Griffin was suspended for three days without pay for failing to pick up two children as directed by his supervisor. Griffin appealed the suspension to PICA's executive director, arguing that he had not been given an updated address list or emergency card for each child as required by PICA policies. The suspension was upheld.

In 1995, Griffin was placed on a 12-week leave after he was injured in an automobile accident that was not related to his employment. Griffin's physician permitted Griffin to return to work with the restriction that he could only work four hours per day. Before returning to work, Griffin was notified by PICA that his job was "posted," which meant "that he was terminated, and was not being allowed to return to work."

Griffin brought suit against PICA, alleging employment discrimination and breach of contract. The district court granted PICA's motion for summary judgment and denied Griffin's motions to amend his complaint by adding a claim for wrongful termination and to extend the time for discovery.[1]

1. Discrimination Claim

In his discrimination claim, Griffin alleges disparate treatment. Minnesota courts have adopted the three-part McDonnell-Douglas analysis for adjudicating disparate treatment claims. Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995). Under this analysis, the employee first has the burden of establishing a prima facie case of discrimination. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). Then the employer has the burden of producing evidence of a legitimate nondiscriminatory reason for its actions. Id. Finally, if the employer meets its burden of production, the employee has the burden of persuading the court that the employer intentionally discriminated against him. Id.

The elements of a plaintiff's prima facie case "must be modified for varying factual patterns and employment contexts." Id. Griffin can use indirect evidence to establish a prima facie case of disparate treatment discrimination by showing that (1) he is a member of a protected class; (2) he was subjected to an adverse employment decision; and (3) another similarly situated employee who is not a member of his protected class was not subjected to a similar adverse employment decision. See id. (explaining elements of a prima facie case).

The district court concluded that

Griffin has failed to set forth any evidence that he was treated differently from any other employees of PICA who were members of a non-protected class, or that any alleged differential treatment was based upon his race or gender.

Griffin argues that a genuine issue of material fact exists as to whether he was discriminated against based on his race and/or gender. Griffin argues that the affidavits he provided alleged that PICA treated him differently than it treated Caucasian bus drivers. He asserts that he

established a prima facie case of disparate treatment based upon a statutorily-prohibited discriminatory factor, namely that he is a member of a protected class, and, after receiving nothing but excellent job reviews over the many years that he worked for Respondent PICA, only after being assigned to a new supervisor did said supervisor commence treating Appellant differently than similarly situated bus drivers who are not members of any protected class.

The acts that Griffin claims constituted disparate treatment discrimination are (1) he was disciplined for failing to pick up two children, (2) he was disciplined for failing to attend night events, (3) his supervisor "checked up" on him and told him what to do in front of other PICA employees, and (4) he was not allowed to return to work with certain job restrictions while other employees were allowed to return to work with restrictions.

Upon review of the record, we agree with the district court that Griffin failed to establish a prima facie case of disparate treatment by PICA. The evidence presented by Griffin does not establish that Griffin was treated differently than similarly situated employees who are not members of his protected class. Specifically, the affidavits submitted by Griffin do not establish that another PICA bus driver who was not a member of Griffin's protected class ever failed to pick up children and was not disciplined, or failed to attend night events and was not disciplined.[2] Similarly, the affidavits do not demonstrate that there was a similarly situated PICA employee who was not "checked up" on by his supervisor. Finally, the other employees who were allowed to return to work with restrictions were not bus drivers who were restricted from working eight hours per day as was Griffin; their restrictions did not directly conflict with a provision of their employment agreements.

The direct evidence Griffin submitted was also insufficient to establish a prima facie case of disparate treatment discrimination. This evidence included only conclusory statements such as that Griffin was "being singled out," or that PICA was "out to get" Griffin. These statements do not include specific facts sufficient to create a genuine fact issue regarding whether Griffin received any particular treatment on account of his race or gender.

2. Motion To Amend

Griffin challenges the district court's denial of his motion to amend his complaint to include a claim for wrongful termination/retaliatory termination. The district court's denial of a motion to amend will not be reversed absent a clear abuse of discretion. Hunt v. University of Minn., 465 N.W.2d 88, 95 (Minn. App. 1991). Such a motion may properly be denied if the additional alleged claim could not survive summary judgment Id. A motion to amend should be denied if the proposed amendment "will accomplish nothing, such as when the amendment does not state a cognizable legal claim." Envall v. Independent Sch. Dist. No. 704, 399 N.W.2d 593, 597 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).

The three-part McDonnell-Douglas analysis applies to a retaliatory discharge claim. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 118 n.7 (Minn. 1991). The plaintiff employee must first establish a prima facie case of discriminatory treatment. Id. Griffin acknowledges that to establish a prima facie case of reprisal under Minn. Stat. § 363.03, subd. 7 (1994), an employee must demonstrate (1) statutorily protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Griffin, however, does not explain what statutorily protected conduct establishes his prima facie case. Griffin argues only that he

has established a prima facie case of disparate treatment based upon a statutorily-prohibited discriminatory factor, namely that he is a member of a protected class.

Because he failed to identify any statutorily protected conduct, Griffin did not state a cognizable legal claim for retaliatory termination.

3. Motion To Extend Discovery

Griffin also challenges the district court's denial of his motion to extend the time for discovery. The district court has great discretion to determine whether the time for discovery should be extended. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982). There is a presumption in favor of granting continuances to allow discovery. Id. However, while recognizing this presumption, an appellate court must consider whether the party asking to extend the time for discovery was (1) diligent in seeking or obtaining discovery prior to consideration of the opposing party's summary judgment motion; and (2) was seeking further discovery because of a good-faith belief that material facts would be discovered rather than merely engaging in a "fishing expedition." Id.

This case was pending for ten months when Griffin sought to extend the time for discovery. Under the scheduling order, discovery was to be completed on or before March 1, 1996. The parties agreed to extend the discovery period to April 1, 1996. A hearing on PICA's summary judgment motion was scheduled for April 12, 1996. Griffin served notices dated April 1, 1996, which indicated that depositions would be taken on April 23, 1996. The record does not indicate that any other discovery was sought by Griffin. Because Griffin was not diligent in seeking discovery prior to consideration of PICA's summary judgment motion, the district court did not abuse its discretion by denying the motion to extend the time for discovery.

Affirmed.

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

[ ]¹Griffin did not appeal the summary judgment granted on his breach of contract claim.

[ ]²Walter Spath states in his affidavit that he missed at least a couple of night events and was not reprimanded. But Spath does not state that he is not a member of Griffin's protected class.