This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-805

Eugene Petzel

Appellant,

vs.

Northwest Airlines, Inc.,

Respondent.

Filed November 18, 1997

Affirmed

Crippen, Judge

Hennepin County District Court

File No. 964359

Carol A. Hooten, 4568 Oak Chase Road, Eagan, MN 55123 (for appellant)

Timothy R. Thornton, Eric J. Rucker, Briggs and Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant disputes the trial court's summary judgment dismissing his claims of (a) disability discrimination and (b) breach of contract, promissory estoppel, and fraud. We affirm.

FACTS

Appellant initially sought a job with respondent in February 1990. Appellant was denied the job because a medical exam revealed he had chronic neck pain and carpal tunnel syndrome and was unable to perform the job. Appellant subsequently took a job with Mesaba Airlines, Inc. Later, in October 1990, after receiving further information, the doctor changed his opinion and cleared appellant for work. But at that time, respondent did not have any job openings.

D E C I S I O N

"On an appeal from summary judgement, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Admiral Merchants Motor Freight, Inc. v. O'Connor v. Hannan, 494 N.W.2d 261, 265 (Minn. 1992). In this case, the parties have agreed that there are no material facts in dispute. When the material facts are not in dispute, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

Disability Discrimination

Appellant's discrimination claim fails because he has not shown that he belongs to a protected class. Appellant has merely shown that he has physical limitations and had one prior employment rejection in 1990. See State by Cooper v. Hennepin County, 441 N.W.2d 106, 111 (Minn. 1989) (holding that physical impairment is a disability only if it materially limits a major life activity, and that rejection for one specific job is not enough to make out a prima facie case of disability). Appellant has not had difficulty obtaining and retaining employment. Just three months after his initial rejection from respondent, appellant secured a job with another airline.

Even if appellant could show he was disabled, his proof of discriminatory intent fails because he cannot show he was qualified for the job at the time when he initially applied for it. There is no evidence contradicting the medical examiner's initial opinions in February 1990. When appellant obtained evidence that he was qualified, in October 1990, there was no position available for him.

Other Claims

Appellant's contract and promissory estoppel claims are premised on evidence that a Northwest staffing representative told him he would have to get a favorable medical report to get hired. This evidence shows a promise to consider an application but not a promise to hire. And appellant's fraud claim fails because the alleged statement dealt with a future intention to hire. See Hayes v. Northwood Panelboard Co., 415 N.W.2d 687, 690 (Minn. App. 1987) (holding that no fraud existed where party promised to perform an act in the future), review denied (Minn. Jan. 28, 1988). Finally, because respondent was entitled to a summary judgment on the merits, there is no need to address appellant's motion for punitive damages.

Affirmed.