                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1228

                                  Martin L. McDonal,
                                      Appellant,

                                          vs.

                                   SuperValu, Inc.,
                                    Respondent.

                                Filed March 30, 2015
                                      Affirmed
                                   Connolly, Judge

                            Hennepin County District Court
                              File No. 27-CV-13-12667


Clayton D. Halunen, Barbara J. Felt, Halunen & Associates, Minneapolis, Minnesota;
and

Karin Kiesselbach Ciano, Karin Ciano Law, PLLC, Minneapolis, Minnesota (for
appellant)

Julie Fleming-Wolfe, St. Paul, Minnesota (for respondent)


      Considered and decided by Peterson, Presiding Judge; Worke, Judge; and

Connolly, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges the summary judgment granted to respondent, his employer,

dismissing appellant’s claims for retaliatory and discriminatory discharge. Because we

agree with the district court that appellant did not present a prima facie case of retaliatory

discharge and that, although he did present a prima facie case of discriminatory

discharge, he provided insufficient evidence as a matter of law to prove that the claimed

reason for the discharge was pretextual, we affirm.

                                          FACTS

       Appellant Martin McDonal began working for respondent SuperValu Inc. in 2000.

Respondent’s employees belong to a union and are subject to a break-time rule (BTR),

which requires employees to be at their work stations throughout their shifts except for

two 15-minute breaks and 2.5 minutes of travel time before and after each break.

       In April 2008, appellant received a verbal warning for taking an unauthorized

break. In May 2008, he received a second verbal warning for taking an unauthorized

break and a written warning for taking an extended break. In August 2008 he received a

one-day suspension for leaving work early. In September 2008, he received a three-day

suspension for taking an unauthorized break.          In November 2008, he took another

unauthorized break, which resulted in his termination.

       Appellant filed a grievance with his union, and his termination was arbitrated.

The arbitrator determined that appellant had repeatedly violated the BTR but that the

violations did not justify his termination. Appellant returned to work in September 2010


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without back pay under a “last-chance agreement,” i.e., with the conditions that

SuperValu could terminate him for any future violation of the BTR and that he would be

barred from arbitrating the termination.

       In March 2011, appellant was injured at work and filed a claim for workers’

compensation benefits. On March 30, 2011, he violated the BTR by being away from his

work area for almost two hours. He was suspended from work on April 1, 2011. On

April 8, 2011, appellant explained his version of the events of March 30 at a meeting with

his union representative, a SuperValu human-resources director, and the director of his

department. In light of the last-chance agreement, SuperValu terminated appellant, and

his union dropped his grievance of the termination.

       Appellant filed a charge of race discrimination with the United States Equal

Employment Opportunity Commission (EEOC), which dismissed the charge after taking

evidence and finding no probable cause.

       Appellant then initiated this lawsuit, alleging one count of retaliatory discharge

under the Minnesota Workers’ Compensation Act (MWCA) and one count of race

discrimination in violation of the Minnesota Human Rights Act (MHRA).1 SuperValu

moved for summary judgment on both claims and, after a hearing, the district court

granted the motion and dismissed appellant’s claims with prejudice.

       Appellant challenges the grant of summary judgment, arguing that genuine issues

of material fact preclude the dismissal of his claims.


1
 Appellant also alleged two other counts; the parties stipulated to the dismissal of those
counts.

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                                      DECISION

Standard of Review

       This court reviews a summary-judgment decision de novo, asking whether the

district court properly applied the law and whether any genuine issue of material fact

precludes summary judgment. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790

N.W.2d 167, 170 (Minn. 2010). The nonmoving party must present evidence that does

more than merely create a metaphysical doubt about an essential element of the moving

party’s claims. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997); see also Risdall v.

Brown-Wilbert, Inc., 759 N.W.2d 67, 72 (Minn. 2009) (“A self-serving affidavit that

contradicts other testimony is not sufficient to create a genuine issue of material fact.”).

1.     MWCA Retaliatory-Discharge Claim

              [A]n employee alleging retaliatory discharge must first make
              out a prima facie case consisting of three elements:
              (1) statutorily protected conduct by the employee; (2) adverse
              employment action by the employer, and (3) a causal
              connection between the two. The burden then shifts to the
              employer to articulate a legitimate, nondiscriminatory reason
              for its actions. If the employer meets that burden of
              production, the burden shifts back to the employee to
              demonstrate that the employer’s stated reason for its action
              was more likely than not pretextual.

Schmitz v. U.S. Steel Corp., 831 N.W.2d 656, 670-71 (Minn. App. 2013) (citations

omitted), aff’d, 852 N.W.2d 669 (Minn. 2014). It is undisputed that appellant filed a

claim for workers’ compensation benefits in March 2011 and that SuperValu terminated

him on April 8, 2011; thus, the first two elements are met.




                                              4
       But appellant did not meet the third element: he provided no evidence of a causal

connection between his application for workers’ compensation benefits and his

termination. In his brief in opposition to SuperValu’s motion for summary judgment, the

only causation argument appellant made was that his application for workers’

compensation benefits and his termination were close in time. As the district court

observed in its thorough and well-written opinion,

              [appellant] chose to rest on the mere temporal proximity
              between his workplace injury and the adverse employment
              action by [SuperValu], stating that the period of a little under
              three weeks supports his retaliation claim under the
              [M]WCA. But without some additional evidence, the mere
              temporal proximity cannot demonstrate causal connection
              between the two.

The fact that appellant’s statutorily protected conduct was less than a month before

SuperValu’s adverse action is insufficient to establish causation. “[C]ourts have been

hesitant to find pretext or discrimination on temporal proximity alone and look for

proximity in conjunction with other evidence.” Hansen v. Robert Half Intern., Inc., 796

N.W.2d 359, 367 (Minn. App. 2011) (quotation omitted) (affirming decision that

termination occurring the day after employee returned from maternity leave because

employee’s position had been eliminated did not violate MHRA), aff’d, 813 N.W.2d 906

(Minn. 2012).

       For the first time on appeal, appellant argues that “[o]ther evidence surrounding

[his] termination buttresses the causal link required for purposes of the MWCA.” But, on

appeal, a party cannot obtain review of issues not presented to and considered by the

district court or of “the same general issue litigated below but under a different theory.”


                                             5
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Thus, appellant’s argument that

other evidence supported the view that seeking workers’ compensation benefits caused

his termination is not properly before us.

       The district court correctly concluded that appellant failed to show one element of

the prima facie case, i.e., that his termination was caused by his seeking workers’

compensation benefits.

2.     MHRA Discrimination Claim

       The test that applies to a retaliatory-discharge claim also applies to a

discriminatory-discharge claim. Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d

534, 542 (Minn. 2001).

              [In] the discriminatory discharge setting, the plaintiff must
              show that [he]: (1) is a member of a protected class; (2) was
              qualified for the position from which [he] was discharged;
              and (3) was replaced by a non-member of the protected class.
              If the plaintiff makes out a prima facie case, the burden of
              production shifts to the defendant who, in order to avoid
              summary judgment, must produce admissible evidence
              sufficient to allow a reasonable trier of fact to conclude that
              there was a legitimate, nondiscriminatory reason for the
              discharge. If the defendant provides a legitimate,
              nondiscriminatory reason for its actions, the presumption of
              discrimination disappears and the plaintiff has the burden of
              establishing that the employer’s proffered reason is a pretext
              for discrimination.

Id. (quotation and citations omitted). “[A]t all times, the employment discrimination

plaintiff retains the burden of establishing that the defendant’s conduct was based on

unlawful discrimination.” Id. at 546. The district court concluded that appellant made a

prima facie case for discriminatory discharge but failed to provide evidence that



                                             6
SuperValu’s legitimate nondiscriminatory reason, i.e., the violation of the BTR by an

employee who had been reinstated with the condition that any BTR violation would be a

basis for termination, was a pretext for racial discrimination as appellant alleged.

       To prove that this reason was pretextual, appellant, who is an African American,

would need to show that a non-African-American employee who was reinstated under the

same last-chance condition and who again violated the BTR was not terminated.

Appellant makes no such showing. He claims that the video of the entrance to the break

room shows some white employees entering and remaining longer than 15 minutes but,

as the district court noted, appellant provided no evidence regarding whether the white

employees had permission to be in the break room, whether they received minor

discipline as a result of being in the break room, or, most significantly, whether they were

working under a last-chance condition.

       Appellant’s final argument that “[t]here is no evidence in the record . . . to suggest

that SuperValu’s [BTR] was intended to apply differently to employees who had a

history of infractions than it applied to employees who had not been previously cited for

other violations” is unpersuasive for two reasons. First, SuperValu has a progressive

discipline policy: as appellant experienced in 2008, each violation of the BTR is met with

a more severe penalty than the previous violation, so employees with a history of

infractions are not treated like first-time offenders. Second, the last-chance agreement

clearly set out that appellant would not be treated as a first-time offender if he violated

the BTR.




                                              7
       Appellant’s MWCA retaliatory-discharge claim fails because he did not show any

causation between his seeking workers’ compensation benefits and his termination; his

MHRA discrimination claim fails because he did not show that SuperValu’s legitimate

reason for terminating him–his violation of the BTR while on a last-chance agreement

that any such violation could result in termination–was a pretext for racial discrimination.

       Affirmed.




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