Dorothy J. Buhr, Edwin L. Sisam, Sisam, Smith & Buhr, P.A., 6600 France Ave. S., Suite 360, Minneapolis, MN 55435-1804 (for appellant)

Hubert H. Humphrey III, Attorney General, Jeffrey G. Vigil, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2128 (for respondent)

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

Appellant challenges the trial court's judgment against him on his race discrimination claims. We affirm.

LeBeau then brought suit against Mankato State on several grounds, including discrimination for failure to reappoint and failure to hire. All but the discrimination claims were subsequently dismissed. The discrimination claims were tried before the court in September 1996. At the close of LeBeau's case, Mankato State moved for a directed verdict. The trial court reserved its ruling until the conclusion of the case, at which time Mankato State renewed its motion. The trial court granted Mankato State's motion and dismissed the discriminatory practices claims, ruling that LeBeau had failed to establish that Mankato State had engaged in any unlawful or discriminatory practices. LeBeau now appeals.

LeBeau argues that Mankato State engaged in unlawful and discriminatory practices in violation of the Minnesota Human Rights Act (Human Rights Act) in that it (1) failed to reappoint him after his fixed-term contract expired and (2) failed to hire him when he reapplied for the position.

The Human Rights Act makes it unlawful for an employer

to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment

because of race, color, or national origin. Minn. Stat. § 363.03, subd. 1(2)(c) (1996).

In analyzing claims brought under the Human Rights Act, the Minnesota Supreme Court has adopted the three-step test found in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986). The three-step test is summarized as follows:

"First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination."

Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 323 (Minn. 1995) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94 (1981)).

A plaintiff can establish a prima facie case of discrimination either by

direct evidence of discrimination, or, when direct evidence is lacking, by showing: (1) that plaintiff is a member of a protected group; (2) that plaintiff sought and was qualified for opportunities that the employer made available to others; (3) that plaintiff, despite [his] qualifications, was denied those opportunities; and (4) the opportunities remained available or were given to other persons with plaintiff's qualifications.

Dietrich, 536 N.W.2d. The evidence here supports the trial court finding that LeBeau had presented a prima facie case of discrimination. LeBeau (1) is a member of a protected group, (2) he was qualified to teach the courses he was hired to teach, (3) he was not reappointed for the 1994-95 school year nor was he hired for his former position, and (4) another person was hired for that position.

The evidence, however, also supports the trial court's findings that Mankato State offered legitimate, non-discriminatory reasons for its actions. Mankato State provides five reasons for not reappointing LeBeau: (1 & 2) Vice President for Academic Affairs Lewis Jones had concerns about LeBeau's "grading patterns" and about his "teaching"; (3) Jones was concerned that the search process prior to LeBeau's appointment was inadequate; (4) former Dean Webster had concerns about LeBeau's student evaluation ratings; and (5) Acting Dean Keating did not recommend LeBeau's reappointment.

Mankato State gives three reasons for not hiring LeBeau for the 1994-95 school year: (1) LeBeau did not have the Ph.D. required for the position; (2) several members of the search committee had concerns about LeBeau's potential for scholarly activity; and (3) the search committee ranked LeBeau fifth out of the 12 applicants.

LeBeau argues that Mankato State's proffered reasons for failing to reappoint were pretextual. LeBeau contends that Vice President Jones' concerns about LeBeau's grading patterns and teaching were pretextual because Jones never verified that grading or teaching problems existed. The record shows, however, that Jones did attempt to verify these concerns. He requested that Dean Webster look into the grading concerns and then that Acting Dean Keating review LeBeau's personnel file. Webster did not report back on the grading issue (he had been replaced by Keating shortly after the request). And Keating, finding nothing in LeBeau's personnel file but a handwritten application, was unable to respond.

LeBeau contends that Acting Dean Keating's failure to recommend him was pretextual because she had at one time appointed him to the graduate faculty and she knew that both Dean Webster and the Ethnic Studies Department had recommended LeBeau. Keating testified, however, that she did not review LeBeau's credentials but had merely "rubber stamped" the recommendation of the appointing committee in making the "courtesy appointment." Keating also explained that she did not seek out additional information about LeBeau because she presumed it would not be available so soon after LeBeau had begun teaching. She did not seek out information from Dean Webster because she "felt bad" about taking his job. These alleged failures to verify concerns and to locate information are reasonably explained as difficulties arising out of personnel changes (a new vice president and a new acting dean) rather than from an intent to discriminate.

LeBeau also argues that Mankato State's proffered reasons for failing to hire him were pretextual. LeBeau contends that Mankato State changed the position requirement from a master's degree to a Ph.D. so that he would be disqualified. There is no direct evidence, however, that the change was because of LeBeau's national origin. Acting Dean Keating testified that she did not have authority to set the Ph.D. requirement; it had to be done by the search committee consensus.

During the trial, a member of the faculty search committee testified that notes she had taken after the search process was completed included this question to herself: "Why do I feel this is a conspiracy to oust [LeBeau] and all Indians?" She also testified that she felt "that the job description had been altered so that Ellsworth LeBeau would not be the most qualified candidate." These, however, are not direct evidence of an actual conspiracy or of changing the Ph.D. qualification to make LeBeau, an American Indian, ineligible for the position, but only of the witness's feelings. Cf. Wilson v. City of Aliceville, 779 F.2d 631, 634 (11th Cir. 1986) (employer made racial slur); Buckley v. Hospital Corp., 758 F.2d 1525, 1530 (11th Cir. 1985) (employer commented on plaintiff's "advanced age," indicated he planned to hire younger employees, and stated "new blood" was needed).

Another member of the search committee testified that he "felt that the momentum of the Committee was to exclude LeBeau from any of the deliberations." The committee member makes no mention, however, that the alleged exclusion was based on LeBeau's national origin.

LeBeau also argues that the trial court erred by deviating from the McDonnell Douglas analysis. According to LeBeau, the trial court erred when it created a lesser standard for academe. The trial court stated in its memorandum:

The world of academe is different from the world of law or of business; university professors, whether justly or unjustly, have historically utilized many factors in determining appointment and promotion. Some of these reasons, such as preference for a Ph.D. over an Ed.D., make little sense in the business world. Nevertheless, they are legitimate non-discriminatory reasons for the action taken.

It is true that a "university's discretion is not unlimited, and its decisions must be explained." See Ganguli v. University of Minn., 512 N.W.2d 918, 923 (Minn. App. 1994) (university acted wrongfully by terminating faculty member without providing substantive reasons despite tenure and promotion recommendations by department, dean, and vice provost). Those making academic judgments are, however,

afforded great discretion, since decisions regarding a person's scholarship require expert evaluations that are not readily adapted to the procedural tools of judicial decisionmaking.

Chronopoulos v. University of Minn., 520 N.W.2d 437, 441 (Minn. App. 1994) (citing Board of Curators of Univ. of Mo., 435 U.S. 78, 90, 98 S. Ct. 948, 955 (1978)). Here, Mankato State provides a credible explanation why it did not reappoint or hire LeBeau.

The evidence supports the district court's findings of fact and the findings sustain the court's conclusion that LeBeau failed to establish that Mankato State had engaged in any unlawful or discriminatory practices.

Affirmed.