Randall J. Fuller, 118 East Main Street, Anoka, MN 55303 (for appellant)

Rodney A. Honkanen, 2650 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg, Judge[*].

Appellant David Techam (Techam) filed suit against PSP claiming wrongful termination in violation of the whistleblower statute and defamation. PSP moved for summary judgment on these claims. The district court granted summary judgment for PSP and Techam appeals. We affirm.

"* * *, but how you handle your own anger is critical. You can head off a great many incidents by removing yourself from the situation and letting a co-worker handle it. Make sure that you report any problems to your supervisor. * * *. If you are feeling stressed, take a short break, walk around, but leave the situation to someone who might at that moment be better able to cope with it."

On January 5, 1994, Techam and Mr. Lawrence Officer, a client at PSP, were involved in an incident where there was shouting and some modest physical contact. Techam acknowledges that he may have sworn at Mr. Officer and claims that any physical contact was made in self-defense. PSP fired Techam later that day because he violated the "respect for clients" policy.

Before this incident, Techam maintains that, between July and November of 1993, he contacted city building inspectors about building code violations, and that he informed the State Fire Marshall of fire code violations. He also asserts that he notified his superiors about these violations, and that his superiors responded by telling him to stop contacting the city inspectors, not to complete work needed to meet the fire code, and that his superiors "exhibited negative reactions, including nonverbal communication such as facial expressions and rolling of the eyes."

After Techam was fired, he sought employment from a variety of employers but states he was unable to find a job. He believes that he did not receive any job offers because he disclosed why he was terminated. Techam also claims that other PSP employees who had physical contact with clients were not fired.

Whistleblower Claim

The whistleblower act prohibits an employer from discharging an employee who

in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

Minn. Stat. § 181.932, subd. 1(a) (Supp. 1997).

To establish a prima facie case of retaliatory discharge, an employee must show: (1) statutorily protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn.1983).

Minnesota courts have adopted the three-part McDonnell Douglas test to determine whether an employee has established a whistleblower claim. McGrath v. TCF Bank Savings, 502 N.W.2d 801, 805 (Minn.App.1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)), aff'd as modified, 509 N.W.2d 365 (Minn.1993). An employee establishes a prima facie case under the whistleblower statute by showing that the discharge was motivated by an impermissible reason. Id. at 807. The burden then shifts to the employer to produce evidence demonstrating legitimate reasons for the discharge. Id. An employee ultimately succeeds in the whistleblower action by showing that the employer's proffered reasons are mere pretext. Id. The employee, however, must show that the "illegitimate reason 'more likely than not' motivated the discharge decision." McGrath v. TCF Bank Savings, 509 N.W.2d 365, 366 (Minn. 1993).

Whistleblower claims must concern the protection of the general public. Willaims v. St. Paul Ramsey Med. Ctr., 551 N.W.2d 483, 484 n.1 (Minn. 1996); Vonch v. Carlson Cos. Inc., 439 N.W.2d 406, 408 (Minn. App. 1989), review denied (Minn. July 12, 1989).

1. Prima Facie Case

Under the first part of McDonnell Douglas, the employee must establish a prima facie case. 411 U.S. at 802, 93 S. Ct. at 1824. A prima facie case under the whistleblower statute is shown by meeting Hubbard's 3-part test. Both parties agree that PSP's termination of Techam's employment was an adverse employment action under the second part of Hubbard. Thus, the second part of Hubbard will not be addressed.

Techam argues that he engaged in protected conduct under the first part of Hubbard because he reported the need for building permits to building inspectors and his superiors, reported defects in fire code compliance to the State Fire Marshal and his superiors, and reported a defect in a roof to building inspectors and his superiors. We disagree. The plain language of the statute requires a violation or suspected violation of state or federal law. See Minn. Stat. § 181.932, subd. 1(a) (prohibiting employer from discharging employee if employee reports violation or suspected violation of state or federal law). Techam, even if he reasonably suspected a violation, does not identify a specific law and does not present evidence that any violation occurred. Further, Techam's reliance on Vonch is misplaced. Vonch's public policy requirement is a prerequisite to establish a claim under the statute, not a substitute for showing a violation of a statute or law. Techam did not show that he engaged in protected conduct, he does not establish a prima facie case under the first part of Hubbard. As such, the third part of Hubbard will not be addressed. Nevertheless, we will complete the McDonnell Douglas analysis.

2. Employer's Reason for Termination

The second part of the McDonnell Douglas test requires the employer to articulate a permissible reason for the employee's discharge. 411 U.S. at 802, 93 S. Ct. at 1824. PSP claims that it meets its burden because it fired Techam because he violated the "respect for clients" policy when he was involved in an physical incident with a PSP client. We agree. The record demonstrates that Techam, at least, admitted to swearing at Mr. Officer and to having some form of physical conduct with Mr. Officer. Techam was aware of company policy. PSP met its burden by presenting a legitimate reason for firing Techam.

3. Pretext

In the third stage of McDonnell Douglas, the employee must show that the employer's reason was pretextual. 411 U.S. at 804, 93 S. Ct. at 1825. Techam argues that he can establish a causal connection between his protected conduct and his termination by showing that (1) the incident for which he was terminated was very minor; (2) other employees had similar physical conduct with clients but were not fired; and (3) his employers had negative reactions, such as "facial expressions" and "rolling of the eyes," in response to his repeated efforts to get PSP to comply with building and fire codes. We disagree. Techam was aware of the "respect for clients" policy. Techam swore at and had some form of physical conduct with Mr. Officer. Techam was fired later that same day. This lends credence to PSP's argument that Techam was fired because of the incident, not because of Techam's contact with building inspectors and the State Fire Marshal. Thus, Techam has not established that PSP's reason was pretextual.

Defamation Claim

The elements of a defamation claim are (1) communication to a third party; (2) a false statement; and (3) resulting harm to the plaintiff's reputation and standing in the community. Lewis v. Equitable Life Assurance Co., 389 N.W.2d 876, 886 (Minn. 1986). Employers may be liable for "compelled self publication" of a defamatory statement if they know or should know "of circumstances whereby the defamed person has no reasonable means of avoiding publication of [a] statement or avoiding the resulting damages." Id. at 888.

Techam, relying on Lewis, argues that he was fired because of his "assault" of Mr. Officer and that in seeking a job he was forced to disclose to at least 17 employers that he was fired because of "a physical assault or altercation." We disagree. Lewis concerned a situation where employees were asked to change expense reports that they believed that they had honestly and reasonably incurred. Id. at 881. The employees were fired for gross insubordination and later had difficulty finding other employment when they disclosed the reason for their termination. Id. at 882. Here, PSP was within its rights when it let Techam go for violating longstanding policy concerning the treatment of clients. Techam's termination, which upon review we find lawful, takes it out of the Lewis class where the termination was not for concededly improper conduct, but because of a private agenda of the employers. That is not our issue.

Further, and cumulatively, there is no showing that his inability to find new employment was because of any improper action on the part of his employer. The contested action, his termination, has been upheld on the merits.

The district court properly granted summary judgment to PSP.

Affirmed.

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