                         This opinion will be unpublished and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
                                    A16-0154

                                     Mark Schaefer,
                                      Appellant,

                                            vs.

                          Cargill Kitchen Solutions, Inc., et al.,
                                      Respondents.

                                Filed November 7, 2016
                                       Affirmed
                                  Cleary, Chief Judge

                              Wright County District Court
                               File No. 86-CV-14-5086


Bonnie M. Smith, Adrianna H. Shannon, Shannon Law, LLC, Minneapolis, Minnesota (for
appellant)

Ryan E. Mick, Joel O’Malley, John T. Sullivan, Dorsey & Whitney LLP, Minneapolis,
Minnesota (for respondents)


      Considered and decided by Cleary, Chief Judge; Worke, Judge; and Ross, Judge.

                        UNPUBLISHED OPINION

CLEARY, Chief Judge

      On appeal from the district court’s entry of judgment in favor of respondents Cargill

Kitchen Solutions Inc. and Cargill Inc., appellant Mark Schaefer argues that the district

court erred by (1) dismissing his battery claim as time-barred, (2) granting respondents’
summary judgment motion on appellant’s negligent supervision and retention claims,

(3) granting respondents’ summary judgment motion on appellant’s Minnesota

Whistleblower Act claim, (4) granting respondents’ summary judgment motion on

appellant’s claim for punitive damages, and (5) dismissing Cargill Inc. as a party.

Respondents filed a related appeal arguing that the district court erred in (1) concluding the

Minnesota Workers’ Compensation Act did not apply based on the “assault exception” and

(2) its statement of facts. We affirm.

                                          FACTS

       Appellant Mark Schaefer was a full-time employee of respondent Cargill Kitchen

Solutions Inc. (CKS) from July 2005 until he was discharged on September 19, 2012. CKS

is an egg-processing plant and a wholly-owned subsidiary of Cargill Inc. (Cargill).

Schaefer worked in the CKS warehouse operating a forklift and completing computer

work. CKS hired Donovan Schultz in 2006. Schaefer and Schultz met when Schultz began

working in the CKS warehouse, and the two generally had a positive relationship.

       Schaefer, along with his coworker James Cowette, allege that Schultz had violent

tendencies at work. Schaefer said that Schultz seemed to have a “personal issue” with both

Cowette and Schaefer, and that Schultz made threats to Cowette to run him out of the

company using his personal connections. Cowette and Schaefer allege that while at work

in 2010 or early 2011 Schultz threatened to kill Cowette. Schaefer said that in 2011, his

coworker G.L. told Schaefer and Cowette that Schultz assaulted her at work and that he

also threatened to kill her.




                                              2
       On September 20, 2011, Schultz kicked Schaefer from behind with his right steel-

toed boot, striking Schaefer’s testicles. Prior to the incident, Schaefer had an exchange of

words with Schultz, and Schaefer walked by Schultz and feigned a strike by gesturing his

hand toward Schultz at a distance. Schaefer said Schultz looked at him “with those crazy

eyes he’s got,” and said, “You’re dead.” Schaefer ran away, and Schultz chased him,

caught up, and kicked Schaefer. Schaefer recalled that he fell to the floor in pain.

       Schultz admitted that he kicked Schaefer. But, according to Schultz, sometime in

the fall of 2011, Cowette and Schaefer started jokingly hitting each other in the testicles at

work by swinging their hands at each other. Schultz said that Schaefer had kicked him in

the testicles a number of times before, and Schaefer would laugh after kicking him. Schultz

claims to have warned Schaefer that if Schaefer kicked him again, he would kick him back.

Schultz said that the fourth time Schaefer kicked him, he ran after Schaefer and kicked him

in the testicles in order to cause Schaefer to stop. A CKS employee who witnessed the

kicks said that Schaefer was “most definitely” horsing around. Schaefer denied that he was

“horsing around” or being playful with Schultz.

       Schaefer claims he first complained to CKS about the kick in October or November

of 2011. Heather Whelpley, from CKS’s human resources department, remembers first

hearing about Schultz kicking Schaefer in May or June 2012. Julie Zimny, the head of

CKS human resources in 2012, said that she first heard about the kick in June 2012 when

James Cowette reported the incident directly to her. Zimny recalls that, during her

investigation, Schaefer told her directly that he had been kicked by Schultz. She also said

that Schaefer told her that Schultz, Cowette, and Schaefer “had kind of a running joke


                                              3
where they would hit each other.” Schaefer reported no further problems with Schultz to

Zimny.

       Prior to the reported kicking incident, CKS human resources investigated Schultz

twice. In January 2007, Schultz’s supervisors issued him a warning for a verbal altercation

with another coworker. In connection to the incident, Schultz signed a “violence in the

workplace policy” form. Later in 2007, CKS human resources investigated a second

complaint that Schultz was verbally abusive towards a coworker. Besides the kick,

Schultz’s supervisors could not recall any reports of Schultz acting physically violent.

       After the reported kicking incident, Schaefer’s direct supervisor issued him a

number of warnings for performance-related issues.         In February 2012, Schaefer’s

supervisor issued him a written warning for “unsafe forklift operation” and mis-shipping

products. On June 18, 2012, Schaefer’s supervisor issued him another warning, this time

for failing to properly monitor and document products to ensure food safety.

       On August 1, 2012, Schaefer’s supervisors suspended him for three days because

he accrued three warnings in one year—the two prior warnings and a new warning for

being late six times in the previous twelve months. Schaefer was considered late for not

arriving fifteen minutes before he was expected to be on the work floor in order to stretch

and put on equipment. On September 12, 2012, Schaefer was late a seventh time in twelve

months. Due to seven occurrences of tardiness and a suspension in the prior twelve months,

CKS terminated Schaefer’s employment on September 19, 2012, pursuant to CKS’s policy

handbook.




                                             4
       On September 14, 2014, Schaefer filed a complaint in district court against CKS

and Cargill alleging “sexual abuse/sexual assault” (count one), negligent retention and

supervision (count two), and violation of the Minnesota Whistleblower Act (count three).

Schaefer also sought an award for punitive damages. The parties filed cross-motions for

summary judgment: Schaefer on counts one and two, and respondents on all counts. The

district court granted respondents’ motion for summary judgment on all claims, denied

Schaefer’s motions, and dismissed Cargill as a party. Schaefer appeals, challenging the

district court’s grant of summary judgment to CKS and dismissal of his claims, and argues

that he is entitled to summary judgment on counts one and two. Respondents filed a notice

of related appeal challenging the district court’s ruling regarding exclusivity under the

Minnesota Workers’ Compensation Act (WCA), and challenging factual findings.

                                      DECISION

       Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that either party is entitled to a judgment as

a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary judgment, appellate

courts review de novo whether there are any genuine issues of material facts and whether

the district court erred in its application of the law to the facts. Commerce Bank v. W. Bend

Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015). Appellate courts view the evidence in

the light most favorable to the party against whom summary judgment was granted. Id.

       No genuine issue of material fact exists for trial when the party opposing summary

judgment “presents evidence which merely creates a metaphysical doubt as to a factual


                                              5
issue and which is not sufficiently probative with respect to an essential element . . . to

permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d

60, 71 (Minn. 1997). Additionally, a party opposing summary judgment “cannot rely upon

mere general statements of fact but rather must demonstrate . . . specific facts are in

existence which create a genuine issue for trial.” Hunt v. IBM Mid Am. Emps. Fed. Credit

Union, 384 N.W.2d 853, 855 (Minn. 1986).

I.     Minnesota Workers’ Compensation Act Exclusivity

       As a threshold matter, respondents argue on related appeal that they were entitled

to summary judgment on Schaefer’s claims of “sexual abuse/sexual assault” and

negligence because, under the WCA, the district court did not have jurisdiction over

Schaefer’s workplace injury claims. We disagree because there was a genuine issue of fact

regarding whether the assault exception to the WCA’s exclusivity applied.

       Under the WCA,

              employers are required to pay compensation in every case of
              personal injury or death of an employee arising out of and in
              the course of employment without regard to the question of
              negligence. If an employee suffers a personal injury or death
              arising out of and in the course of her employment, the Act
              provides the employee’s exclusive remedy. Where the Act
              provides the employee’s exclusive remedy, the district courts
              have no jurisdiction.

McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995)

(quotation and citations omitted).

       Under the “assault exception,” the WCA is not the exclusive remedy for “an injury

caused by the act of a . . . fellow employee intended to injure the employee because of



                                            6
personal reasons, and not directed against the employee as an employee, or because of the

employment.” Minn. Stat. § 176.011, subd. 16 (2014). The assault exception is narrowly

construed, and for it to apply the alleged assault must (1) be motivated by personal

animosity toward the victim, and (2) arise from circumstances wholly unconnected with

the employment. McGowan, 527 N.W.2d at 834. Disputed facts surrounding these factors

create triable issues. Fernandez v. Ramsey Cty., 495 N.W.2d 859, 863 (Minn. App. 1993).

       Respondents argue that the WCA applies in this case because injuries sustained

from workplace horseplay are incidental to employment and compensable under the WCA.

See, e.g., Walsh v. Chas. Olson & Sons, Inc., 285 Minn. 260, 262, 172 N.W.2d 745, 747

(1969) (holding that the WCA does not bar compensation to an employee injured during

working hours where he is a victim, whether participating or innocent, of pranks or

horseplay); Cunning v. City of Hopkins, 258 Minn. 306, 319, 103 N.W.2d 876, 885 (1960)

(“[H]orseplay which is a part of the employment environment, do[es] not justify a denial

of compensation [under the WCA].”). Further, respondents rely on Meintsma v. Loram

Maint. of Way, Inc., where the supreme court determined that the assault exception did not

apply to injuries sustained by an employee from a “birthday spanking” with a paddle

because the assault was not motivated by personal animosity, happened during work hours,

was a workplace ritual, and was not “wholly unconnected” with the workplace. 684

N.W.2d 434, 439 (Minn. 2004).

       The record shows genuine issues of material fact regarding the assault-exception

requirements and the district court did not err in denying respondents’ motion to find WCA

exclusivity. First, while Schaefer initially had a positive relationship with Schultz before


                                             7
the kick, Schaefer testified that Schultz had “personal issues” with both him and his

coworker. This, along with the fact that Schultz kicked Schaefer in the groin with steel-

toed boots evidences personal animosity. Second, there is conflicting evidence about

whether Schultz’s kick resulted from the circumstances of employment—i.e., from typical

horseplay associated with his employment—or whether it was “wholly unconnected” to

the workplace. Schultz recalled at his deposition that Schaefer and his coworker Cowette

were both instigating horseplay at work by hitting each other and others in the genital area.

Respondents argue that Schultz’s kick itself was horseplay as it originated from the

horseplay of other workers and from Schaefer and Schultz’s earlier interactions. However,

even if the earlier activity was horseplay incidental to employment, a factfinder might

conclude that forcefully kicking another with a steel-toed boot cannot reasonably constitute

workplace horseplay.

       Respondents also rely on McGowan where the supreme court held that the WCA

precluded a director at a homeless shelter from bringing a negligence claim arising out of

injuries she sustained when she was sexually assaulted at work by a shelter client. 527

N.W.2d at 833-34. The supreme court reasoned that the sexual assault was covered by the

WCA because it resulted solely out of McGowan’s activities as a shelter director, which

required her to be in an isolated place with a client she never had contact with outside of

work. Id. at 834. However, we agree with the district court that, unlike in McGowan, there

is no evidence of a “peculiar hazard” in the egg-manufacturing industry, or in Schaefer’s

employment, that was a causative factor in Schultz’s kick.




                                             8
       Because there are genuine issues of fact about whether Schultz’s kick was based on

personal animosity, and whether the kick was wholly unconnected with Schaefer’s

employment, the district court did not err in denying summary judgment on grounds of

WCA exclusivity.

II.    “Sexual Abuse/Sexual Assault” Claim

       Appellant Schaefer argues that the district court erred in denying his motion for

summary judgment and granting respondents’ motion by ruling that count one—the sexual

abuse/sexual assault claim—was time-barred. Because the conduct at issue was not

“sexual abuse,” triggering the six-year statute of limitations under the delayed-discovery

statute, Minn. Stat. § 541.073 (2014), and because Schaefer is time-barred under the two-

year limitations period for a battery claim, the district court did not err.

       At the outset, respondents argue that Schaefer improperly pleaded “sexual abuse”

in his complaint as if it were a statutorily created cause-of-action under the

delayed-discovery statute, Minn. Stat. § 541.073, and then, on appeal, Schaefer is trying to

reframe count one as a common-law battery claim. Complaints are to be liberally construed

“so as to do substantial justice.” Minn. R. Civ. P. 8.06; see Lucas v. Med. Arts Bldg. Co.,

207 Minn. 380, 383, 291 N.W. 892, 894 (1940). When liberally construed, a complaint is

sufficient when it “states facts entitling plaintiff to any relief.” Lucas, 207 Minn. at 383,

291 N.W. at 894. The district court properly construed Schaefer’s complaint as stating a

cause of action for battery because the facts used to describe the count included Schultz

intentionally kicking Schaefer in the groin without his consent. Schaefer also alleged that




                                               9
the battery was “sexual abuse” as defined by the delayed-discovery statute in order to

trigger the longer six-year statute of limitations period.

       Generally, a claim of battery faces a two-year statute of limitations. Minn. Stat.

§ 541.07(1) (2014). Schaefer commenced his lawsuit after this two-year period. However,

if the battery meets the definition of “sexual abuse,” under Minn. Stat. § 541.073, subd. 1,

then a six-year limitations period applies and Schaefer’s battery claim is not time-barred.

       The parties agree that the district court erred in concluding that the

delayed-discovery statute does not apply because the claim was brought under the theory

of respondeat superior. This was the holding of Oelschlager v. Magnuson, 528 N.W.2d

895, 901 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). However, Oelschlager

was superseded in 2013 when the legislature amended the delayed-discovery statute to

allow a claim under the theory of respondeat superior if commenced within six years. 2013

Minn. Laws ch. 88, § 1, at 728 (codified as amended at Minn. Stat. § 541.073, subd. 4

(2014)). Further, the delayed-discovery statute retroactively applies to actions that were

not time-barred before May 25, 2013. Id. at 729. Even though the district court erred on

this point, this does not end our analysis, as summary judgment can be affirmed if it can be

sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995),

review denied (Minn. Feb. 13, 1996).

       Having determined that the delayed-discovery statute could apply, the question is

whether Schultz’s conduct meets the statutory definition of “sexual abuse.” “Sexual abuse”

means conduct described in Minn. Stat. §§ 609.342–.3451 (2014), the criminal-sexual-

conduct statutes. Minn. Stat. § 541.073, subd. 1(1). Schultz’s conduct could arguably fit


                                              10
the definition of fifth-degree criminal sexual conduct, which criminalizes “nonconsensual

sexual contact.” Minn. Stat. § 609.3451, subd. 1(1) (2014). This is because “sexual

contact” in turn is broadly defined as a nonconsensual act, committed with “sexual or

aggressive intent,” including the “touching of the clothing covering the immediate area of

the intimate parts.” Minn. Stat. § 609.341, subd. 11 (2014). “Intimate parts” includes the

primary genital area and groin. Id. at subd. 5.

       Here, Schultz admitted to kicking Schaefer in the groin. Whether or not he was

engaging in horseplay, there is no dispute that Schultz kicked with “aggressive” intent and

that the kick was nonconsensual and over the clothing of Schaefer’s intimate parts.

Whether the delayed-discovery statute applies, therefore, turns on whether an aggressive

kick to the genitals is “touching” under the definition of “sexual contact.”

       This court construed the word “touching” in the same criminal-sexual-conduct

statute in State v. Ohrtman and adopted the dictionary meaning of the word: “to put the

hand, finger, or other part of the body on, so as to feel; to perceive by the sense of feeling.”

466 N.W.2d 1, 2-4 (Minn. App. 1991). This court limited the word “touching” to mean

“contacts designed primarily to create the sensory feeling of touch.” Id. at 4.

       We agree with respondents that, under Ohrtman, Schultz’s act was not “touching”

and therefore not “sexual contact” or “sexual abuse” because, in this case, the kick to

Schaefer’s groin was not a contact designed primarily to feel or perceive—it was designed

to strike. Schaefer argues for a broader meaning of the word “touching.” However, when

an appellate court construes the meaning of a statute, and the legislature reenacts the statute

without change, this creates the presumption that the legislature adopted the construction.


                                              11
W. Union Tel. Co. v. Spaeth, 232 Minn. 128, 131-32, 44 N.W.2d 440, 441-42 (1950). (“The

judicial construction of a statute, so long as it is unreversed, is as much a part thereof as if

it had been written into it originally.”) The legislature has chosen not to change the

definition of “sexual contact” in the 15 years since Ohrtman, so it has presumptively

adopted the construction of “touching” as involving an intent to feel or perceive by the

sense of feeling.

       Because there is no evidence in the record that Schultz intended to feel or to perceive

Schaefer’s intimate parts with his foot, the kick was not “touching,” and in turn not “sexual

contact,” and in turn not “sexual abuse.” The six-year statute of limitations of the

delayed-discovery statute does not apply, and Schaefer’s claim is time-barred as it was

brought more than two years after the battery.

III.   Negligence Claims

Negligent Retention

       An employer has the duty “to refrain from retaining employees with known

dangerous proclivities.” Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App.

1993), review denied (Minn. Apr. 20, 1993). An employer may be liable for negligent

retention

              when during the course of employment, the employer becomes
              aware or should have become aware of problems with an
              employee that indicated his unfitness, and the employer fails to
              take further action such as investigating, discharge or
              reassignment. Liability for this cause of action is not
              dependent on whether the employee’s act was within the scope
              of employment.




                                              12
Olson v. First Church of Nazarene, 661 N.W.2d 254, 264 (Minn. App. 2003) (quotations

and citations omitted).

       Granting summary judgment in favor of respondents, the district court found that

Schaefer produced only “minimal and unsupported evidence” of Schultz’s alleged violent

conduct, and that there was no genuine issue of material fact regarding whether respondents

knew or should have known of Schultz’s supposed violent propensities.

       Schaefer argues there is a genuine fact issue as to whether respondents knew or

should have known of Schultz’s supposed violent propensities based on Schultz’s allegedly

threatening manner at work. Schaefer points to CKS’s discipline of Schultz in 2007 when

it issued him a warning for “inappropriate conduct” and “potential[]violence in the

workplace” issues, stemming from verbal altercations with coworkers. Schaefer also

alleges that in 2010 or early 2011, Schultz threatened to “kill” Cowette at work. Schaefer

claims that Schultz verbally abused coworkers, threw objects in anger and frustration, and

made comments suggesting that he thought people in prison should be shot and that he

wanted to become a police officer so he could place a “dirty gun” on a person in order to

shoot the person. Further, Schaefer alleges that Schultz had a “reputation for violence,”

and his coworker submitted an unsworn statement to that effect.

       But Schaefer did not bring forth evidence to create a genuine fact issue that

respondents knew or should have known that Schultz had a propensity for physical violence

toward others. CKS management and human resources staff knew of Schultz’s 2007

incidents involving discipline, but the incidents were strictly verbal altercations and were

far removed temporally from Schultz’s conduct in 2011. Schultz’s other acts of anger and


                                            13
frustration, as well as his errant comments regarding people in the criminal justice system,

are not such that would place a reasonable employer on notice of truly violent propensities.

Schultz’s alleged threat to kill Cowette in 2010 was not reported to management or human

resources until June 2012, after the reported kicking incident, and Schaefer did not identify

any evidence that respondents should have known about this specific incident before the

2011 kick.

       To show that Schultz had a violent propensity known to respondents, Schaefer

claims that G.L. told him that Schultz assaulted G.L. at work by throwing her against the

wall and placing his hand on her neck, and that he threatened to kill her. But G.L.’s

statement is inadmissible hearsay because it is an out-of-court statement that Schaefer

offered to prove the truth of the matter asserted: that Schultz assaulted G.L. at work. See

Minn. R. Evid. 801(c). Hearsay is inadmissible evidence and, like other inadmissible

evidence, it must be disregarded on a motion for summary judgment. Minn. R. Evid. 802;

Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976).

Schaefer cannot point to any hearsay exception that would make this statement admissible.1

Further, G.L. later denied, albeit in an unsworn statement, that the assault occurred, and

Schaefer did not show that respondents had heard this event occurred in the manner he

describes so as to place them on notice. Schultz admitted only that he got into an argument

with G.L. at work, he punched a door, and G.L. reported the incident. Even if CKS knew



1
  At oral argument Schaefer asserted that the statement was admissible as a non-hearsay
statement by a party opponent. See Minn. R. Evid. 801(d)(2). Schultz is not a party in this
lawsuit so the exception does not apply.

                                             14
Schultz punched a door, this does not show that the company was on notice that Schultz

would physically harm another coworker.

       Finally, Schaefer failed to establish a genuine fact issue as to whether respondents

failed to take further action in response to Schultz’s behavior before the kick, such as

investigating or discharging Schultz. The record evidence shows that CKS had a violence-

in-the-workplace policy, and applied it once to warn Schultz in 2007. Schaefer points to

respondents’ lack of response to the kicking incident, but for respondents to be liable, any

preventative action in response to Schultz’s supposed violent propensities would have been

required before the kick, not after.

       In sum, the district court did not err in granting summary judgment in favor of

respondents on the negligent-retention claim.

Negligent Supervision

              [T]o make out a successful claim for negligent supervision, the
              plaintiff must prove (1) the employee’s conduct was
              foreseeable; and (2) the employer failed to exercise ordinary
              care when supervising the employee. Therefore, to succeed on
              a claim of either negligence or negligent supervision, a plaintiff
              must prove that the risk in question was foreseeable. Whether
              a risk is foreseeable is a legal question that must be decided by
              the district court before submitting a case to a jury. In the
              context of negligence and negligent supervision claims,
              foreseeability means a level of probability which would lead a
              prudent person to take effective precautions. In determining
              whether a danger is foreseeable, courts look at whether the
              specific danger was objectively reasonable to expect, not
              simply whether it was within the realm of any conceivable
              possibility.

Doe 175 ex rel. Doe 175 v. Columbia Heights Sch. Dist., 873 N.W.2d 352, 359-60 (Minn.

App. 2016) (quotations and citations omitted).


                                             15
       Because Schaefer did not create a genuine issue of material fact as to whether

respondents knew or should have known of Schultz’s supposed tendency towards physical

violence, he cannot show as a matter of law that Schultz’s action of kicking him was

foreseeable under a negligent-supervision claim.       Schaefer’s specific allegations of

Schultz’s behavior before the kick show verbally abusive behavior, but not physical

violence. Evidence that an employee committed prior physical violence is not necessary

to show that future physical violence was foreseeable. However, in this case, the nature of

Schultz’s past behavior (verbal abuse, throwing objects, hitting a door and having a “short

fuse”) only placed the risk of physical violence within the realm of conceivable

possibility—it did not make physical violence “objectively reasonable to expect,” as

required for liability.

       Further, Schaefer cannot show that Schultz’s kick was committed within the scope

of his employment, as required under a negligent-supervision claim. Olson, 661 N.W.2d

at 264. Intentional torts are within the “scope of employment” and the employer may be

held liable when (1) “the source of the attack is related to the duties of the employee” and

(2) “the assault occurs within work-related limits of time and place.” Fahrendorff ex rel.

Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999). Here, there is no

dispute that the kick occurred during work hours at CKS. As for the first requirement, an

intentional tort of assault or battery is within the scope of employment where its cause was

related to the conduct of the employee’s work, or where the tort is a “well-known hazard”

because of the nature of employment. See, e.g., Lange v. Nat’l Biscuit Co., 297 Minn. 399,

400-01, 404, 211 N.W.2d 783, 784, 786 (1973) (holding an assault was within the scope


                                            16
of employment when the initial argument precipitating the assault was work related);

Fahrendorff, 597 N.W.2d at 910-11 (finding a genuine issue of fact of whether an assault

was within the scope of employment where an affidavit states sexual abuse is a well-known

hazard in the field of employment). Here, prior to the kick, Schaefer and Schultz were

standing around at work, there was no work-related argument or conduct that precipitated

the battery, and there is no evidence that workplace assaults or batteries are a “well-known

hazard” at CKS specifically or food-processing plants generally.

       Because there is no genuine issue of material fact regarding whether Schultz’s kick

was foreseeable, and Schaefer has not presented evidence to show that the kick was in the

scope of Schultz’s employment, the district court did not err in granting summary judgment

in favor of respondents on the negligent supervision claim.

IV.    Whistleblower Claim

       The Minnesota Whistleblower Act prohibits retaliation against an employee who,

in good faith, reports a violation or suspected violation of any federal or state law to an

employer. Minn. Stat. § 181.932, subd. 1(1) (2014); Cokley v. City of Otsego, 623 N.W.2d

625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001). In Minnesota,

whistleblower cases are analyzed under the three-part burden-shifting test from McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). Cokley, 623

N.W.2d at 630. First, the employee has the initial burden to establish a prima facie case.

Id. Second, the burden of production then shifts to the employer to articulate a legitimate,

non-retaliatory reason for its action. Id. Third, the employee may demonstrate that the

employer’s articulated reasons are pretextual. Id. To establish a prima facie case of


                                            17
retaliation, Schaefer must show that he engaged in statutorily-protected conduct, that

respondents took adverse employment action against him, and a causal connection between

the two exists. Id.

       The district court concluded that Schaefer failed to present evidence to create

genuine issues of facts as to whether there was a causal connection between Schaefer’s

report of Schultz’s kick and an adverse employment action, or whether CKS’s reasons for

its adverse action were a pretext for retaliation.

       Schaefer argues that there are genuine fact issues regarding (1) causation because

of the temporal proximity between his reports and his discipline and discharge and

(2) pretext because Schaefer submitted evidence showing that CKS’s stated reasons for its

discipline and discharge were false. We disagree.

       As for causation, “an employee may demonstrate a causal connection by

circumstantial evidence that justifies an inference of retaliatory motive.” Id. at 632. This

may be shown when “the employer has actual or imputed knowledge of the protected

activity and the adverse employment action follows closely in time.” Hubbard v. United

Press Int’l, Inc., 330 N.W.2d 428, 445 (Minn. 1983). In Hubbard, the supreme court found

an inference of retaliatory motive where the plaintiff was discharged two days after the

protected activity. Id. Unless “very close” in time, mere temporal proximity is not

sufficient to create a genuine issue of fact regarding causation. See, e.g., Clark Cty. Sch.

Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 1511 (2001) (20-month period

between filing of discrimination complaint and alleged adverse employment action does

not suggest causality to show prima facie case of retaliation under Title VII); Freeman v.


                                              18
Ace Tel. Ass’n., 467 F.3d 695, 697 (8th Cir. 2006) (three-week time period insufficient to

establish causation); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002)

(two-week interval “barely” sufficient to establish causation in a retaliation claim).2

Furthermore, intervening events can undermine any inference of a causal connection based

on temporal proximity. See, e.g., Freeman, 467 F.3d at 698 (determining that employee’s

continued sexual relationship with another employee after lying to the board of directors

and promising to end the relationship was intervening event eroding an inference of

retaliation).

       Schaefer argues that there is a genuine issue of fact regarding causation because his

supervisor issued him work-performance warnings three months after he reported the kick

in November of 2011. The record demonstrates, though, that Schaefer spoke to human

resources after Cowette reported the kick in June 2012. By June 2012, Schaefer had

already received performance-related warnings. But, even assuming Schaefer reported the

kick in 2011, the three-month period between the report and the supposed adverse actions

of his supervisor’s warnings is too long to imply a retaliatory motive. Further, Schaefer’s

absenteeism and poor performance were intervening events between the reported kick and

his discharge, eroding any inference of retaliation.




2
  Minnesota appellate courts have previously relied on federal court applications of Title
VII and the federal Whistleblower Protection Act. Kidwell v. Sybaritic, Inc., 784 N.W.2d
220, 227 (Minn. 2010); Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App.
1999), review denied (Minn. Oct. 21, 1999). Because Minnesota Whistleblower Act claims
are analyzed under tests created by federal courts, we give weight to federal case law here.

                                             19
       Schaefer relies on Tretter v. Liquipak Int’l, Inc., arguing that this court has held

causation to be established when an employer’s adverse action was three months after a

complaint. 356 N.W.2d 713, 715 (Minn. App. 1984). But Tretter is distinguishable

because additional facts there showed causation and a retaliatory motive: after the

complaint of harassment, the plaintiff was the only person fired with 11-years seniority and

was, by all accounts, an excellent employee. Id. at 714-15.

       Even if Schaefer had made a prima facie case, the district court did not err in

determining that Schaefer could not show that respondents’ reasons for terminating

Schaefer were pretextual under McDonnell Douglas. Respondents met their burden of

showing a non-retaliatory reason by stating that Schaefer had been issued warnings, and

he was ultimately discharged for being late seven times and suspended for three warnings.

       Schaefer argues that these reasons are pretextual. An employee may show pretext

for retaliation by demonstrating that the “employer’s proffered explanation is unworthy of

credence.” Hamblin v. Alliant Techsystems, Inc., 636 N.W.2d 150, 153 (Minn. App. 2001),

review denied (Minn. Feb. 19, 2002). Schaefer claims that he created a genuine issue of

fact by providing the district court with evidence that CKS’s reasons for his discharge were

false. For example, he disputes the underlying facts leading up to his various performance

warnings by his supervisor, and argues that he was not actually late for work when he failed

to show up 15 minutes early to stretch and put on equipment. But when inquiring into

whether respondents’ stated reasons were pretextual, the issue is not whether Schaefer

actually engaged in the alleged misconduct, but whether CKS had a genuine belief that he

did. Harvey v. Anheuser-Bush, Inc., 38 F.3d 968, 973 (8th Cir. 1994) (stating that when


                                            20
examining pretext, a court’s inquiry is limited to whether the employer gave an honest

explanation of its behavior).

       The record shows that CKS had an honest belief that Schaefer was late for his shifts.

The plant superintendent testified that everyone at the plant was expected to show up 15

minutes early to do stretches and put on equipment and that it is a violation of policy not

to do so. CKS’s policy handbook confirms that employees are expected to clock in up to

15 minutes early for putting on equipment. Further, Schaefer’s argument that he was

singled out for discipline is weakened by his frequent absenteeism going back years prior

to these events. Schaefer produced insufficient evidence to support his claim that he was

treated differently from other similarly situated employees in terms of the attendance

policy. Further, the plant superintendent remembered disciplining one employee for failing

to show up 15 minutes before the start of the employee’s shift.

       Schaefer also did not present evidence showing his direct supervisor’s warnings

were retaliatory in motive. When asked why he thought his supervisor was issuing him the

warnings he replied, “I have no idea. I can’t say why . . . . But it seemed like she was trying

to shove me out the door.” Schaefer also alleged that Schultz is “well connected” at the

plant through family members and that Schaefer’s direct supervisor was trying to impress

the plant superintendent when issuing him warnings. Schaefer offered mere speculation,

which “without some concrete evidence, is not enough to avoid summary judgment.”

Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008).




                                              21
       Because respondents’ proffered explanations for discharging Schaefer are not

“unworthy of credence,” there is no genuine issue of fact regarding the pretext issue and

the district court was correct in granting summary judgment in favor of respondents.

V.     Punitive Damages

       Schaefer would be entitled to punitive damages if he could show by “clear and

convincing evidence that the acts of [respondents] show deliberate disregard for the rights

or safety of others.” Minn. Stat § 549.20, subd. 1 (2014). But, the district court properly

granted summary judgment on all counts in favor of respondents—including negligent

retention and negligent supervision—and there is no genuine issue of material fact as to

whether respondents’ alleged actions met the higher recklessness standard of the punitive

damages statute requiring the creation of a “high probability of injury to the rights or safety

of others.” Id. Therefore, the district court did not err by granting summary judgment on

the punitive damages claim.

VI.    The District Court’s Statement of Facts

       On related appeal, respondents argue that the district court erred in concluding that

the material facts “may indicate” that the kick to Schaefer’s groin by Schultz was

“aggressive and nonconsensual sexual contact.”

       “After an appeal has been filed, respondent may obtain review of a judgment or

order entered in the same underlying action that may adversely affect respondent.” Minn.

R. Civ. App. P. 106. However, the rule does not permit review of an “interstitial finding

of fact that results in a judgment favorable to the respondent.” Johnson v. Am. Econ. Ins.

Co., 419 N.W.2d 126, 128 n.1 (Minn. App. 1988).


                                              22
       Because the district court ruled in favor of respondents in regard to the battery claim,

and the district court stated only that the evidence “may indicate” a fact, the rule does not

permit us to review an issue that does not adversely affect respondents.

       Finally, because the district court properly dismissed all claims, we do not reach the

issue of whether Cargill Inc. was a proper defendant.

       Affirmed.




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