                          United States Court of Appeals

                              FOR THE EIGHTH CIRCUIT


                                   ___________

                                   No. 96-2392
                                   ___________

Rhonda S. Kunferman,                    *
                                        *
           Appellant,                   * Appeal from the United States
                                        * District Court for the
     v.                                 * District of Minnesota.
                                        *
Ford Motor Company,                     *
                                        *
           Appellee.                    *
                                   ___________

                      Submitted: February 12, 1997

                           Filed: May 1, 1997
                                   ___________

Before BEAM, HEANEY and LOKEN, Circuit Judges.
                               ___________


BEAM, Circuit Judge.


     Rhonda Kunferman sued Ford Motor Company for retaliatory discharge,
alleging violations of Minnesota law.        The district court1 granted Ford’s
motion for summary judgment.      We affirm.


I.   BACKGROUND


     In   early   1991,    Kunferman,   a   Ford   employee,   began   experiencing
numbness and tingling in her arms and hands.           Ford’s plant




     1
      The Honorable John R. Tunheim, United States District Judge
for the District of Minnesota.
physician could find no objective signs of a repetitive stress injury, but
he restricted Kunferman’s work assignments pending further diagnosis.
Kunferman consulted a general practitioner who ordered electromyography
(EMG) testing,2 which revealed no abnormalities.       Kunferman next saw a
specialist, who similarly found “no objective evidence” of carpal tunnel
syndrome or repetitive stress injury.     Kunferman then consulted Dr. John
Floberg, who conducted additional tests. The additional EMGs were also
normal.    Floberg, nevertheless, concluded that Kunferman was suffering from
some repetitive stress injury, and restricted her to light work.


     To comply with her restrictions, Kunferman was placed in the radiator
fill position at the Ford plant.     However, she complained that the fumes
from an adjacent work area presented a health hazard.      In response, Ford
began a series of air quality tests at that work area.            Meanwhile,
Kunferman was shifted to several other positions within Ford’s plant.   Each
exacerbated her symptoms.


     In October, Ford retained a new plant physician, Dr. Leon Nesvacil.
He examined Kunferman and her records several times and concluded that the
medical evidence did not support the work restrictions prescribed by Dr.
Floberg.    Because a union agreement provided for resolution of differences
between an employee’s personal physician and the plant physician by an
independent doctor, Kunferman was referred to an outside specialist. In the
meantime, Kunferman returned to the radiator fill position.




     2
      EMG testing is a process by which impairment to nerves in the
arms and hands may be verified objectively. It involves measuring
and analyzing the responses of muscles to stimulation by
electricity. Dorland’s Illustrated Medical Dictionary 537 (28th
ed. 1994).


                                      2
        On September 23, 1991, Kunferman’s husband, also a Ford employee,
filed a complaint about the fumes at the radiator fill position with the
Occupational Safety and Health Division of the Minnesota Department of
Labor and Industry (MOSHA).             MOSHA conducted an occupational safety and
health inspection of the plant from October 3, 1991 through January 17,
1992.


        On October 24, 1991, the independent specialist examined Kunferman
and reviewed her medical records.            His written report concluded that there
was no objective clinical evidence to support Kunferman’s complaints.                       Dr.
Nesvacil then decided to remove Kunferman’s work restrictions.                          MOSHA
inspected the radiator fill station on November 21 and 22, 1991.                             On
November 26, 1991, Kunferman reported to work at the radiator fill station.
A supervisor informed her that her medical restrictions had been removed,
which Dr. Nesvacil confirmed.


        After    her    restrictions      were       removed,     Kunferman’s   performance
deteriorated.          Ford repeatedly found her work inadequate and took her
through seven steps of progressive discipline, each of which Kunferman
grieved.        Ford finally terminated Kunferman’s employment for “poor and
careless workmanship.” Kunferman filed a workers’ compensation action in
Minnesota state court, and was awarded benefits.


        Kunferman       then   sued     Ford     in    state      court    alleging    gender
discrimination         in   violation   of     the    Minnesota    Human   Rights     Act   and
retaliatory discharge in violation of sections 181.932 (“whistle blowing”)
and 176.82 (filing workers’ compensation claims) of the Minnesota Statutes.
Ford removed the action to federal district court, based on diversity of
citizenship, 28 U.S.C. § 1446(b).              The




                                                3
district court granted Ford’s motion for summary judgment.         Kunferman
appeals.


II.   DISCUSSION


      We review a grant of summary judgment de novo, applying the same
standards as the district court.     Enos v. Key Pharmaceuticals, Inc., 106
F.3d 838, 839 (8th Cir. 1997).     We consider the facts in the light most
favorable to Kunferman, the party opposing summary judgement.        Midwest
Printing, Inc. v. AM Int’l, Inc., No. 96-2099, slip op. at 3 (8th Cir.
March 4, 1997).    Minnesota law controls this diversity case, and we review
the district court’s interpretation of that law de novo.        Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991).


      To survive a motion for summary judgment, a plaintiff claiming
unlawful retaliation under Minnesota law must produce evidence sufficient
to create a genuine issue of material fact as to whether her protected
activity caused the retaliation.      Dietrich v. Canadian Pac. Ltd., 536
N.W.2d 319, 327 (Minn. 1995).    Minnesota employs the three-part McDonnell
Douglas analysis to retaliation claims.       Hubbard v. United Press Int’l,
Inc., 330 N.W.2d 428, 444 (Minn. 1983) (citing McDonnell Douglas v. Green,
411 U.S. 792 (1973)).


      A prima facie case of retaliatory discharge under Minnesota law
consists of: (1) statutorily-protected conduct by the employee; (2) adverse
employment action by the employer; and (3) a causal connection between the
two. Dietrich, 536 N.W.2d at 327.         In Kunferman’s case, the first two
elements are clearly met.        Ford concedes that Kunferman engaged in
protected activity.      Similarly, it is uncontroverted that Kunferman
suffered an adverse employment




                                      4
action.   The removal of the medical restrictions is the action at issue,
since Kunferman argues she was discharged only because she was assigned to
jobs she was physically unable to perform.


      Kunferman has failed, however, to establish the causation element.
Timing alone cannot establish retaliatory intent.          Hubbard, 330 N.W.2d at
445-46.   An employee must establish the employer’s knowledge of protected
activity. Bohm v. L.B. Hartz Wholesale Corp., 370 N.W.2d 901, 908 (Minn.
Ct. App. 1985) (dismissing former employee’s retaliation claim because
“management was not aware of [her] sex discrimination claim when she was
terminated”).     Thus, in order to overcome a motion for summary judgment,
Kunferman must show that the person who lifted her medical restrictions
knew of her protected activities.


      Kunferman claims that an internal Ford memorandum establishes that
Dr.   Nesvacil    knew   about   the   MOSHA   complaint   when   he   removed   the
restrictions.      The document, dated October 15, 1991, reports Ford’s
internal air quality testing and lists several employees on the routing
line, including “W. Hinger, R.N.”            The memo refers to “attached data
sheets,” recording test results for individual employees.              One of those
sheets lists test results for “R. Kunferman.”        Kunferman asserts that this
memo informed the doctor that she was responsible for the MOSHA complaint.
This assertion is untenable for three reasons.             First, the memo only
reports the results of internal testing, and says nothing about any MOSHA
complaints.      Second, the data sheet for “R. Kunferman” does nothing to
single her out in comparison with other tested employees.         Third, Kunferman
has presented no evidence that the doctor even saw this memo.           Indeed, Dr.
Nesvacil states in his affidavit that he was not aware of any protected
activity when he lifted Kunferman’s restrictions.




                                         5
     Alternatively, Kunferman asserts that Dr. Nesvacil was directed by
unidentified Ford managers to lift her restrictions.     In support of this
claim, she offers only her own deposition testimony that Nesvacil was
“sheepish” and “nervous” when he informed her that the restrictions were
lifted; the fact that a supervisor knew of the decision before Kunferman
herself was informed; and the doctor’s failure to re-examine her on the
date of her termination.    This evidence does not create a controverted
issue of fact on the causation issue.      Kunferman must substantiate her
allegations with sufficient probative evidence “based on more than mere
speculation, conjecture, or fantasy.”     Wilson v. International Business
Machines Corp., 62 F.3d 237, 241 (8th Cir. 1995).        Kunferman has not
presented evidence sufficient to create a genuine issue of material fact
as to causation, so summary judgment was appropriate.


     Kunferman’s other claims are similarly unavailing.      Her allegation
of gender discrimination centers around a verbal reprimand she received
when a machine she was using malfunctioned.   There is no evidence linking
this incident to her termination and Kunferman does not allege that this
treatment was severe or pervasive.       Therefore, she has not stated an
actionable claim under the Minnesota Human Rights Act.   See Klink v. Ramsey
County, 397 N.W.2d 894, 901 (Minn. Ct. App. 1986).


     Finally, Kunferman asserts that the district court erred by not
granting preclusive effect to certain findings made by the state workers’
compensation court.    Under Minnesota law, collateral estoppel was not
appropriate.   Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119 n.7
(Minn. 1991)(refusing to apply preclusion in retaliatory discharge case
because fact-finder in first hearing




                                     6
had not conducted McDonnell Douglas analysis).         The district court did not
err in its ruling.


III. CONCLUSION


     For the foregoing reasons, the decision of the district court is
affirmed.


HEANEY, Circuit Judge, concurring.


     I would affirm on the basis of the district court’s opinion, which
held, in substance, that Kunferman had established a prima facie case of
retaliation,   but    failed   to   produce   any    evidence   that   Ford's   non-
discriminatory explanation for its conduct was pretext for wrongful
retaliation.   The record supports that Dr. Nesvacil removed Kunferman's
work restrictions based both on his own evaluation of Kunferman and the
independent specialist's written report.            Neither doctor was aware that
Kunferman had filed either a MOSHA or workers’ compensation complaint.
Because I believe we should follow the reasoning of the district court, I
simply concur in the result of the majority opinion.


     A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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