Frank J. Kundrat, Jr., Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for relator)

Patricia Y. Beety, League of Minnesota Cities, 145 University Ave. W., St. Paul, MN 55103-2044 (for respondent)

Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

Relator appeals from dismissal of her sex and reprisal discrimination claims. We affirm.

In 1989, relator Betty Schwarzkopf became treasurer for respondent City of Big Lake. Through 1994, relator received excellent work reviews from the city administrator. But in February 1995, Curtis Jacobsen was named respondent's new city administrator and relator and Jacobsen, thereafter, often disagreed about the way relator did her job. During his tenure, Jacobsen changed the substance and method of some of relator's duties and berated relator publicly and privately for her job performance. Relator became disenchanted with her employment and resigned on April 8, 1996.

Relator filed suit against respondent, alleging gender discrimination in the terms and conditions of her employment and discharge, as well as acts of reprisal discrimination. The Minnesota Department of Human Rights (Department) referred the claim to the Office of Administrative Hearings. After a hearing, an ALJ dismissed relator's claims. This appeal followed.

On review of a final order from an administrative agency, this court must decide whether the findings are supported by substantial evidence and whether the decision is affected by errors of law. Continental Can Co. v. State, 297 N.W.2d 241, 243 (Minn. 1980).

Relator also alleges that there were unjustifiable omissions from the factual findings. On review of the record, we find the evidence did not compel the ALJ to make those findings. Moreover, we are not persuaded that, even if found, those facts would alter the outcome of the case. See Minn. R. Civ. P. 61 (error that "does not affect the substantial rights of the parties" is disregarded on appeal).

Relator established a prima facie case of sex discrimination by proving that she was a member of a protected class, was qualified to do her job as evidenced by her past performance reviews, and was compensated less than male counterparts in the Department of Public Works. But respondent produced evidence that the public works employees were being hired away and that it paid them more to maintain stability in its work force. This is a legitimate nondiscriminatory reason. See Bohm v. L. B. Hartz Wholesale Corp., 370 N.W.2d 901, 905 (Minn. App. 1985) (wage discrepancies based solely on market factors do not constitute unlawful sex discrimination), review denied (Minn. Sept. 26, 1985).

Relator attempted to show that this legitimate reason was merely a pretext for discrimination. She pointed to instances of other perceived discriminatory practices such as when Jacobsen reprimanded her, narrowed her duties, or directed her to do what she considered menial tasks. But we are not persuaded that any of these instances shows sex discrimination.

For example, relator points to an instance when she alone was chastised by Jacobsen after she paid a police officer who was supposed to be suspended without pay. But, although Jacobsen did not discipline the officer for accepting the pay, the record indicates that the officer was disciplined by the police chief. This incident indicates no different treatment based on sex; rather, the employees were each disciplined by their respective supervisors. Jacobsen also reprimanded relator after she violated his specific directive by making payments to a departing building inspector. Violation of an employer's instruction is a legitimate business reason for discipline. Sigurdson v. Isanti County, 408 N.W.2d 654, 660 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).

Relator also contends that Jacobsen discriminated against her on the basis of sex when he took away her power to write checks after the building inspector incident. But employee error in performing duties is a legitimate, nondiscriminatory reason for discipline. Rutherford v. County of Kandiyohi, 449 N.W.2d 457, 462-63 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990).

Finally, relator alleges that Jacobsen discriminated against her on the basis of sex by telling her, and other female office employees, to pick up leaves tracked into the city hall. But the record indicates that Jacobsen himself picked up leaves and told the public works director to instruct that department's predominately male work force to do the same. Discrimination requires a "distinction in treatment" based on impermissible factors. City of Minneapolis v. Richardson, 307 Minn. 80, 86, 239 N.W.2d 197, 201 (1976). Because men and women were both instructed to clean up the leaves, Jacobsen's instruction to relator did not discriminate on the basis of sex.

Relator failed to prove that respondent's proffered nondiscriminatory reason for its actions was pretext. The ALJ did not err by dismissing relator's discrimination claims.

It is an unfair discriminatory practice * * * to intentionally engage in any reprisal against any person because that person: (1) Opposed a practice forbidden under this chapter * * * .

Minn. Stat. § 363.03, subd. 7 (Supp. 1997). "A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment." Id. Relator specifically alleges reprisal when Jacobsen memorialized a prior oral reprimand, and when he threatened to sue for defamation if relator went to the press with the story of her resignation.

Relator had the ultimate burden of proving reprisal. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Relator was required to prove that her conduct caused the alleged reprisal. Id. The causal connection between protected conduct and reprisal may be established by circumstantial evidence giving rise to an inference of retaliation, as when an employer's knowledge of the protected activity is closely followed in time by an adverse employment action. Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 327 (Minn. 1995).

Relator claims that the timing of Jacobsen's written reprimand and threatened suit indicate a causal link. But the alleged retaliation came in April 1996, months after she complained to the city council personnel committee in November 1995. This was not close enough in time to relator's complaint to support an inference of causation, even if relator's complaint was a protected activity. The ALJ did not err in dismissing relator's reprisal claim.

Affirmed.