                          This opinion will be unpublished and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
                                     A15-0966

                                   Cameron Anderson,
                                      Appellant,

                                           vs.

                             North American Gear & Forge,
                                     Respondent

                                 Filed January 11, 2016
                                        Affirmed
                                     Worke, Judge

                             Hennepin County District Court
                               File No. 27-CV-14-10552

Bryce M. Miller, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for
appellant)

James T. Martin, Julian C. Janes, Gislason, Martin, Varpness & Janes, P.A., Edina,
Minnesota (for respondent)

         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Worke,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges the district court’s summary-judgment dismissal of his

retaliatory-discharge claim, arguing that there is a genuine issue of material fact as to
whether he was discharged from his employment for seeking workers’ compensation

benefits. We affirm.

                                        FACTS

      In October 2011, appellant Cameron Anderson began at-will employment with

respondent North American Gear & Forge. In February 2012, after multiple unexcused

absences, Anderson received a written warning that his absenteeism “may result in

termination.” In May 2012, after several more unexcused absences, Anderson received a

“final” written warning regarding attendance.

      While Anderson was working on August 27, 2012, a piece of hot metal flew

behind his safety glasses and burned the skin near his right eye. He informed his

supervisor, Jeff Maciej, and together they made a report to the employee responsible for

workers’ compensation claims. Anderson requested to leave work to visit the doctor and

claims that Maciej pushed back, saying something like “they’re just going to send you

back and tell you you’re okay.” Anderson informed Maciej that he wanted to see a

doctor anyway, and was allowed to leave. An occupational health doctor examined

Anderson that day and issued a report of workability which stated that: (1) Anderson had

a “tiny burn” next to his eye but no eye damage; (2) Anderson would reach maximum

medical improvement within three days; and (3) follow up was unnecessary unless eye

irritation continued after August 29th. Anderson was cleared to work without restriction

and returned to work the same day.




                                           2
       The next day, Tuesday, August 28th, Anderson called into work,1 informing Gear

& Forge that his eye hurt and that he was going to see the doctor. When the occupational

health specialist was unavailable, Anderson saw his primary care physician who

concluded that Anderson could return to work immediately without restriction. Anderson

did not go to work that day.

       On Wednesday, August 29th, Anderson came to work but left early to see the

occupational health specialist because the working environment irritated his burn. Maciej

did not want to let Anderson leave because the doctors approved him to work without

restriction, but he “told [Anderson] to do what he thought he had to do.”            The

occupational health specialist examined Anderson and issued a second report of

workability which noted the “tiny burn” next to his eye but found no eye injury.

Anderson did not attend work on Thursday, August 30th. Maciej disputes Anderson’s

claim that he gave Anderson permission to stay home on August 30th so that he could

have a long weekend to heal.      When Anderson returned to work on the following

Tuesday for his next scheduled shift, Maciej terminated him, citing excessive

absenteeism. Maciej admitted that the three August absences “made [his] decision for

terminating [Anderson].” But he also noted that the absences “invoked a violation of the

final warning.”




1
  Gear & Forge disputes Anderson’s claim that he called in. For the purposes of this
appeal, we view the facts in the light most favorable to Anderson and thus accept
Anderson’s claim. See STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-
77 (Minn. 2002) (describing summary-judgment standard).

                                           3
       Anderson filed a complaint alleging that his termination was reprisal in violation

of the Minnesota Workers’ Compensation Act (WCA). After a hearing, the district court

granted Gear & Forge’s summary-judgment motion, determining that there were no

genuine issues of material fact and that Anderson failed to meet his burden under the

McDonnell Douglas framework. This appeal follows.

                                      DECISION

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

interrogatories, and admissions on file, together with the affidavits . . . show that there is

no genuine issue as to any material fact.” Minn. R. Civ. P. 56.03. We review the grant of

summary judgment de novo, viewing the facts “in the light most favorable to the party

against whom summary judgment was granted.” STAR Ctrs., Inc., 644 N.W.2d at 76-77.

“[T]here is no genuine issue of material fact for trial when the nonmoving party presents

evidence which merely creates a metaphysical doubt as to a factual issue and which is not

sufficiently probative with respect to an essential element of the nonmoving party’s

case.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

       The WCA imposes civil liability upon an employer who discharges an employee

for seeking workers’ compensation benefits.        Minn. Stat. § 176.82, subd. 1 (2014).

Minnesota applies the McDonnell Douglas burden shifting framework to retaliatory-

discharge claims under the WCA. Schmitz v. U.S. Steel Corp., 831 N.W.2d 656, 670-71

(Minn. App. 2013), aff’d, 852 N.W.2d 669 (Minn. 2014). Under this framework,

              an 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


                                              4
             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.

Id. (citations omitted). It is undisputed that Anderson engaged in the protected conduct

of seeking workers’ compensation benefits and that his termination constituted an

adverse action by Gear & Forge. But the parties contest the third element: whether there

was a causal connection between the protected action and the termination.

      Anderson argues that Maciej’s hostility toward him when he first requested to seek

treatment supports the conclusion that the discharge was related to his workers’

compensation claim. We disagree. Immediately following Anderson’s injury, Maciej

accompanied him to the employee in charge of workers’ compensation benefits and

allowed him to go to the doctor. The employee in charge of workers’ compensation

benefits testified at her deposition that Anderson and Maciej followed Gear & Forge’s

standard policy. Moreover, even if Maciej preferred that Anderson stay at work, there is

no evidence that he interfered with Anderson filing a workers’ compensation claim or

terminated Anderson because he insisted on seeking treatment.

      Anderson next argues that the temporal proximity between filing his workers’

compensation claim and termination, combined with Maciej’s purported hostility,

establishes a causal connection. The timing of a discharge can “raise an inference of

retaliatory motive that is sufficient to satisfy the causation element of [a] prima facie

case,” Hubbard, 330 N.W.2d at 445-46, but “usually more than a temporal connection is


                                           5
necessary to create a genuine fact issue on retaliation.” Freeman v. Ace Tel. Ass’n, 404

F. Supp. 2d 1127, 1141 (D. Minn. 2005).

         Anderson’s termination occurred in close proximity to his workers’ compensation

claim.    But his discharge also occurred at the beginning of his first shift after the

absences. Although portions of Anderson’s absences were directly related to medical

visits for his workplace injury, he was medically cleared to work without restriction after

each of three appointments with two separate doctors. Anderson does not claim that the

entirety of his absences were excused; the day after his injury, Anderson did not return to

work after being cleared by his primary care physician. Moreover, Anderson’s claims

that he was treated with hostility and that he was permitted to take absences are supported

only by his own statements, which are not sufficiently probative. See DLH, Inc., 566

N.W.2d at 71 (stating that there is no genuine issue of material fact when evidence does

not create more than a metaphysical doubt as to a factual issue). Thus, Anderson cannot

establish a prima facie causal connection.

         Further, even if Anderson could meet his prima facie burden, Gear & Forge

articulated a legitimate, non-retaliatory reason for termination by citing Anderson’s

excessive absenteeism. See Schmitz, 831 N.W.2d at 670-71 (describing burden-shifting

requirement); see also Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App.

1985) (upholding absenteeism as grounds for discharge from employment). The burden

thus returns to Anderson to establish that it is more likely than not that the absenteeism

was a pretext. See McGrath v. TCF Bank Sav., fsb, 509 N.W.2d 365, 365 (Minn. 1993)

(“[E]ven if an employer has a legitimate reason for the discharge, a plaintiff may


                                             6
nevertheless prevail if an illegitimate reason more likely than not motivated the discharge

decision.” (quotation omitted)). Anderson asserts that because his absences surrounding

the injury were excused, the cited absenteeism must be a pretext. But, as discussed

above, all his absences were not excused and the only evidence that he was permitted to

miss other shifts came from his own testimony. Three separate doctors’ reports cleared

Anderson to work without restriction and did not excuse his absences outside of the

appointment times.

      Anderson also had a history of absenteeism, which resulted in two prior written

warnings that clearly stated continued absences would result in termination. Anderson

claims that Maciej admitted that the August absences were the sole basis for termination,

relying on Maciej’s statement that “[a]ll three of [the August absences] made [his]

decision for terminating [Anderson].”     But Maciej also testified that Anderson was

terminated for the August absences and prior absences; the relevant deposition testimony

regarded whether one of the specific August absences was the basis for termination, not

whether the August absences were the sole basis for termination. In light of the larger

context, the record does not support Anderson’s claim that he was terminated only for the

August absences. Given Anderson’s history of absenteeism, including the missed August

time, he has not met his burden to show that Gear & Forge’s stated reason was pretextual.

      Affirmed.




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