                          This opinion will be unpublished and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
                                     A15-0036

                                   Robert L. Eggerichs,
                                       Appellant,

                                            vs.

                               The Auto Club Services, Inc.,
                                       Respondent.

                                Filed November 30, 2015
                                       Affirmed
                                    Klaphake, Judge*

                             Hennepin County District Court
                                File No. 27-CV-14-1780

William L. French, Rochester, Minnesota (for appellant)

Martin S. Fallon, Leora M. Itman, Maslon Edelman Borman & Brand, Minneapolis,
Minnesota (for respondent)

         Considered and decided by Smith, Presiding Judge; Stauber, Judge; and Klaphake,

Judge.

                         UNPUBLISHED OPINION

KLAPHAKE, Judge

         Appellant Robert L. Eggerichs challenges the summary-judgment dismissal of his

claims for discriminatory discharge based on age, arguing that the district court erred by


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
concluding that he failed to present evidence sufficient to create a genuine issue of

material fact as to whether he was replaced by a nonmember of the protected class.

Because no genuine issue of material fact exists concerning replacement, we affirm.

                                      DECISION

       Summary judgment is appropriate when the record shows “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. We review the district court’s grant of summary judgment

de novo, to determine whether there are genuine issues of material fact and whether the

district court erred in applying the law. Mattson Ridge, LLC v. Clear Rock Title, LLP,

824 N.W.2d 622, 627 (Minn. 2012). “We view the evidence in the light most favorable

to the party against whom summary judgment was granted. STAR Ctrs., Inc. v. Faegre &

Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). But “[m]ere speculation, without

some concrete evidence, is not enough to avoid summary judgment.” Bob Useldinger &

Sons, Inc. v. Uangsleben, 505 N.W.2d 323, 328 (Minn. 1993).                A party opposing

summary judgment “cannot rely upon mere general statements of fact but rather must

demonstrate . . . that specific facts are in existence which create a genuine issue for trial.”

Hunt v. IBM Mid. Am. Emp. Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).

       Under the Minnesota Human Rights Act, an employer may not discharge an

employee based on age. Minn. Stat. § 363A.08, subd. 2(2) (2014). A plaintiff may prove

age discrimination through direct or circumstantial evidence. Goins v. West Grp., 635

N.W.2d 717, 722-24 (Minn. 2001). When direct evidence is unavailable, Minnesota

courts apply the three part burden-shifting test established by McDonnell Douglas Corp.


                                              2
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Goins, 635 N.W.2d at 724. Under the

McDonnell Douglas framework, a plaintiff must first show by a preponderance of the

evidence that there is a prima facie case of discrimination. Id. Summary judgment is

appropriate if the employee fails to establish a prima facie case. Albertson v. FMC Corp.,

437 N.W.2d 113, 116 (Minn. App. 1989). A prima facie case requires proof that the

plaintiff (1) is a member of the protected class, (2) was qualified for the position from

which he was discharged, and (3) was replaced by a nonmember of the protected class.

Ward v. Employee Dev. Corp., 516 N.W.2d 198, 201 (Minn. App. 1994), review denied

(Minn. July 8, 1994).

      The parties dispute whether Eggerichs presented sufficient evidence to create a

fact issue on whether he was replaced by a nonmember of the protected class. “A person

is replaced only when another person is hired or reassigned to perform the plaintiff’s

duties.” Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 324 (Minn. 1995) (quotation

omitted).

      Respondent Auto Club Group, Inc. (ACG), hired Eggerichs in 1974 as a sales and

service agent.   In December 2011, following an investigation, ACG concluded that

Eggerichs had violated a company policy that prohibits employees from sharing their

computer user names or passwords without prior approval and discharged him from

employment. After Eggerichs was terminated, his clients automatically became “house

accounts.”   This meant that they were not assigned to a particular agent, but were

required to call ACG’s main toll-free telephone number to speak with an available

insurance call-center employee, who would take the call and service the caller’s needs.


                                            3
Eggerichs acknowledged in his deposition that house accounts are not assigned to a

specific agent and that other than people he had referred to another agent, he was not

aware of any of his former clients being assigned to a specific agent.

       Eggerichs testified in a deposition that two days before he was discharged, a

younger person began working at the desk next to Eggerichs’s desk. Eggerichs testified,

“I just assumed he was . . . hired.” When asked whether he knew for sure that the person

was an employee, Eggerichs replied: “Well, he was sitting next to me and he asked me if

he could listen to me so he could learn something.         I’m assuming that he was an

employee because he was going to sell insurance he said.”

       In a later affidavit, Eggerichs stated:

                     3. The Monday of the week I was fired, [K.S.] showed
              up for work in my office for the first time as an insurance
              sales and service agent. He had previously worked for the
              company as a telemarketer in our office, selling AAA
              memberships. When he came to work on that Monday, he
              was assigned a desk right next to mine. Between then and
              Wednesday, when I was suspended, he observed everything I
              did and listened in to all my phone calls, asking me questions
              when I wasn’t busy. I was, in effect, training him in for his
              new position. . . .

                     4. One does not have to be licensed to sell AAA
              memberships. But, when [K.S.] reported for work on that
              Monday, he had become a licensed insurance sales and
              service agent.

                    5. Normally, there were three full-time insurance sales
              and service agents in my office. That number had been
              constant for ten years. There was not, however, enough
              business to support a fourth agent.




                                                 4
       The district court did not consider Eggerichs’s affidavit. Affidavits that contradict

earlier deposition testimony generally cannot be used to create a genuine issue of fact.

Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 541 n.4 (Minn. 2001). But

a post-deposition affidavit may raise a factual issue when the deposition reveals

confusion or mistake and when the affidavit seeks to explain the deposition testimony.

Banbury v. Omnitrition Int'l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995).

       Eggerichs argues that his affidavit clarified his deposition by filling in gaps in the

testimony. Even if Eggerichs’s affidavit is considered, the evidence was insufficient to

create a genuine fact issue for trial. The only information about K.S. in the affidavit is

that K.S. was a licensed insurance agent, he wanted to learn from Eggerichs, and he sat at

a desk next to Eggerichs’s desk. Neither the affidavit nor any other evidence in the

record provides any specific information about K.S.’s job duties.

       Citing Title VII cases, Eggerichs argues that this court should not strictly adhere to

the requirement of replacement by someone outside of the protected class. The Title VII

cases stand for the proposition that it is not necessary for a plaintiff to show that he was

replaced by a person outside of the protected class, but still require a showing that the

defendant replaced the plaintiff with a younger person or sought to replace the plaintiff

with someone with similar qualifications. See, e.g., Rinehart v. City of Independence, 35

F.3d 1263, 1265-66 (8th Cir. 1994) (stating that prima facie case of age discrimination in

a non-reduction-in-force case does not require a showing that the plaintiff was replaced

by someone outside of the protected class of workers age 40 or older, or that age was a

factor in the termination decision, but rather a showing that the plaintiff “was replaced by


                                             5
someone younger”); Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944-45

(8th Cir. 1994) (stating that is sufficient to show that the defendant sought to replace the

plaintiff with someone having similar qualifications).

       The record contains no evidence that any of Eggerichs’s accounts were assigned to

K.S. Nor does the record contain evidence that K.S.’s job duties were the same as or

similar to those of Eggerichs. Therefore, the district court properly concluded that the

evidence was insufficient to create a genuine issue of material fact on whether K.S.

replaced Eggerichs and granted summary judgment for ACG.

       Affirmed.




                                             6
