                          This opinion will be unpublished and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
                                     A15-0253

                                      Jeffrey P. Kirk,
                                        Appellant,

                                            vs.

                                  State of Minnesota,
                              Department of Transportation,
                                     Respondent.

                                Filed September 8, 2015
                                        Affirmed
                                     Stauber, Judge

                             St. Louis County District Court
                              File No. 69DU-CV-13-2652

Stephanie M. Balmer, Duluth, Minnesota (for appellant)

Lori Swanson, Attorney General, Kathryn A. Fodness, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

       Considered and decided by Rodenberg, Presiding Judge; Stauber, Judge; and

Bjorkman, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges the summary-judgment dismissal of his wrongful-

employment-termination claim, arguing that the district court erred by determining that

he failed to present sufficient evidence to (1) make a prima facie case of age
discrimination; (2) establish the necessary causal connection to sustain a whistleblower

claim; and (3) prove that his employer failed to offer employment within his physical

limitations in violation of workers’ compensation statutes. We affirm.

                                           FACTS

       Appellant Jeffrey P. Kirk worked for respondent State of Minnesota, Department

of Transportation (MnDOT) as a fulltime transportation generalist.1 In the fall of 2012,

appellant sustained a work-related back injury that prevented him from working. By

February 2013, appellant had exhausted his sick leave and was placed on unpaid medical

leave. He claims that after his injury he applied for, but was rejected from, other

MnDOT jobs for which he was qualified. In May 2013, appellant participated in a

functional capacities evaluation (FCE) that determined he had permanent physical

limitations. MnDOT human-resources and workers’ compensation employees met with

appellant to discuss his limitations and to explore alternative employment opportunities.

MnDOT determined there were no available positions, and appellant was informed that

his employment would be terminated after 90 days.2 In April 2014, appellant’s doctor

determined that he had reached maximum medical improvement (MMI). Even after

MMI, appellant’s injury prevented him from performing transportation generalist duties.

       It is undisputed that, prior to appellant’s injury, there was significant friction

between him, his supervisor James Kielty, and two of his coworkers, T.M. and D.W.

Appellant cites several conflicts with coworkers, and often reported them to management

1
  A transportation generalist performs construction and maintenance work, including
snow removal.
2
  Kirk’s employment was not officially terminated until nine months later.

                                               2
and his union, alleging violations of seniority rules regarding overtime work. Appellant

claims that T.M. and D.W. complained to Kielty about appellant’s work and that Kielty

then prohibited him from operating certain equipment. Appellant asserts that his

complaints about Kielty to upper management were not addressed and that Kielty

punished him for these complaints by forcing him to do manual labor, prohibiting him

from attending trainings, and prohibiting him from operating certain pieces of equipment.

       Appellant further alleges that his younger coworkers were given more favorable

jobs and were not sanctioned when they damaged equipment. Appellant alleges that

Kielty remarked that he was “getting to that age when you’re just going to get hurt”; that

“Kielty generated offensive conversations about his age”; and that his coworkers called

him “old fart.”

       Appellant further asserts that he made numerous “whistleblower” reports,

including: sexual harassment of a coworker; wage-and-hour violations; coworkers

improperly claiming mileage; workplace hazards; and a 50-gallon oil spill into a river.

       MnDOT took disciplinary action against appellant for various reasons, although he

disputes the characterization of many of these incidents. In December 2008, appellant

backed a piece of equipment into Kielty’s personal truck and was issued a written

reprimand for failing to report the incident and failing to use proper backing procedures.

Appellant responds that he had to move the equipment quickly to avoid damage to it

because there was a fire in a waste oil furnace, and he was instructed not to call the fire

department. In October 2011, appellant received a written reprimand for damage to a

work truck. Appellant claims that T.M. actually caused the damage; that the


                                              3
investigation was insufficient; and that Kielty retaliated against him. In December 2011,

appellant was given a one-day unpaid suspension, along with several other coworkers, for

taking an extended break. Appellant claims that the investigation was flawed. MnDOT

claims that these incidents were unrelated to appellant’s termination.

       In October 2013, appellant filed a complaint alleging that MnDOT violated (1) the

Minnesota Human Rights Act (MHRA) by discriminating against him based on age and

by failing to make reasonable accomodations; (2) the Minnesota Whistleblower Act

(MWA); and (3) workers’ compensation statutes. MnDOT moved for summary

judgment, arguing that appellant did not provide evidence sufficient to establish a prima

facie case of age discrimination under the MHRA or retaliation under the MWA and that

there were no positions available given his disability. The district court granted MnDOT

summary judgment, dismissing the complaint with prejudice. This appeal follows.

                                     DECISION

       Summary judgment must be granted when there is no genuine issue of material

fact and one party is entitled to judgment as a matter of law. DLH, Inc. v. Russ, 566

N.W.2d 60, 69 (Minn. 1997). We review a district court’s grant of summary judgment de

novo, determining “whether the district court properly applied the law and whether there

are genuine issues of material fact that preclude summary judgment.” Riverview Muir

Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation

omitted). We view the evidence in the light most favorable to the nonmoving party.

STAR Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).




                                             4
This review includes pleadings, depositions, answers to interrogatories, and admissions

on file, together with affidavits. Minn. R. Civ. P. 56.03.

                                             I.

       Appellant first argues that he was terminated based on his age. Under the MHRA,

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). Where direct

evidence is unavailable, Minnesota courts apply the three part burden-shifting test

established by McDonnell Douglas Corp. 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. The burden then shifts to the employer to articulate a legitimate, non-

discriminatory reason for termination. Id. If the employer meets its burden, the plaintiff

may show that the legitimate reasons articulated are merely a pretext for discrimination.

Id.

       To establish a prima facie case of discrimination, the plaintiff must show that

(1) he is a member of a protected group; (2) he was qualified for opportunities the

employer presented to others; (3) he was denied the opportunities despite his

qualifications; and (4) the opportunities were given to someone else with his

qualifications but who is not a member of his protected group. Dietrich v. Canadian Pac.

Ltd., 536 N.W.2d 319, 323-24 (Minn. 1995). The parties agree that appellant is a

member of a protected group based on his age.


                                             5
       But the parties dispute whether appellant was qualified to work for MnDOT post-

injury. Appellant asserts that the district court erred by making only vague findings as to

“what point in time or what job [appellant] was meant to prove that he could do.” It is

undisputed that appellant’s back injury prevented him from performing the requirements

of his hired position. And appellant does not provide authority that he should have been

given more time to recover from his injury or been allowed accommodations for his

position, admitting that he has not asserted a disability-discrimination claim.3

       Appellant claims that he was qualified for and capable of a trainer position

because he had previously performed several trainings. But he does not establish, and

MnDOT disputes, that there is a trainer position that would allow him to avoid strenuous

manual work. Appellant also has not presented evidence that he was qualified for

opportunities that the employer provided to others and that he was denied these

opportunities despite his qualifications.

       Appellant next asserts that he was replaced by a younger person and disputes the

district court’s determination that he was only “technically replaced” by a younger

person. Appellant is required to present specific facts to support his allegations. See

DLH, Inc., 566 N.W.2d at 71 (“[T]he party resisting summary judgment must do more

than rest on mere averments.”). The district court concluded that appellant did not


3
  Appellant disputes the finding that shortly after his FCE he reached MMI. The record is
unclear as to why, after a physician issued the first MMI finding in 2013, appellant saw
another doctor from the same practice who issued a second MMI finding 11 months later.
Appellant does not show the relevance of the MMI as to his ability to perform required
job duties and in fact disputes the relevancy of the MMI finding outside of his workers’
compensation claim.

                                             6
provide evidence of who replaced him, and that his claim that he was replaced by a

younger employee was “an attempt to gloss over the fact that [appellant] has not provided

evidence of who specifically replaced him.” Because appellant did not present evidence

that he was replaced by a younger person, he has not met his burden to show a prima

facie age-discrimination case. And in any event, appellant has not provided any evidence

that he could perform his normal, and often strenuous duties, even with accommodations.

      Moreover, appellant’s assertion that coworkers and Kielty made offensive

comments about his age are insufficient to establish an age-discrimination claim. “Stray

remarks made in the workplace cannot serve as direct evidence of discrimination,” and

“[s]tatements made by individuals who do not take part in the decision to discharge an

employee also cannot be direct evidence of discrimination.” Diez v. Minn. Mining &

Mfg., 564 N.W.2d 575, 579 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997).

                                             II.

      Appellant next alleges that the district court erred by concluding that he did not

produce evidence sufficient to show that he was terminated for being a whistleblower.

Under the MWA,

             [a]n employer shall not discharge [an employee] . . . because:
                     (1) the employee, . . . in good faith, reports a violation,
             suspected violation, or planned violation of any federal or
             state law or common law or rule adopted pursuant to law to
             an employer or to any governmental body or law enforcement
             official[.]

Minn. Stat. § 181.932, subd. 1(1) (2014). As with age-discrimination claims, the court

applies the McDonnell Douglas approach to retaliatory-discharge claims. McGrath v.



                                             7
TCF Bank Sav., FSB, 502 N.W.2d 801, 805 (Minn. App. 1993), review granted in part,

decision modified on other grounds, 509 N.W.2d 365 (Minn. 1993). Under this

approach, the plaintiff must “establish a prima facie case that his discharge was motivated

by an impermissible reason.” Id. at 807. The burden “then shifts to the employer to

articulate another permissible reason for the discharge. If the employer offers such a

reason, the factfinder must then determine whether the employer's proffered reason is

pretextual.” Id. (citations omitted).

         To establish a prima facie case of retaliatory discharge, the employee must

demonstrate that (1) he engaged in statutorily protected conduct; (2) there was an adverse

action by the employer; and (3) there was a causal connection between the conduct and

the adverse action. Grundtner v. Univ. of Minn., 730 N.W.2d 323, 329 (Minn. App.

2007).

         Protected actions are “those where the employee discloses conduct the employee

reasonably believes evidences a violation of the law.” Kidwell v. Sybaritic, Inc., 784

N.W.2d 220, 227-28 (Minn. 2010) (quotation omitted). In Kidwell, the Minnesota

Supreme Court noted that the purpose of the whistleblower statute is to protect neutral

parties who report violations of the law for the public good. Id. at 227. MnDOT asserts

that it was aware of the violations of the law appellant reported. But on appeal, MnDOT

does not address all of appellant’s reports, notably the report of the sexual harassment of

a coworker to MnDOT and the sheriff’s department, and the report to the Environmental

Protection Agency regarding the oil spill. These actions constitute protected conduct




                                              8
under the whistleblower act because they involved violations of the law and they were

not made for appellant’s own benefit.

      MnDOT next argues that appellant cannot show any adverse action against him.

We disagree. Appellant’s employment was terminated, and termination constitutes an

adverse action. But appellant must also show that his termination was causally connected

to his whistleblower claims. Appellant argues that the MnDOT personnel that made the

termination decision were aware of complaints given the “copious amounts of emails and

other correspondence.” Appellant, however, has not presented evidence that the

personnel who made the termination decision were aware of complaints that fell under

the whistleblower act. Moreover, even if appellant had presented evidence that the

personnel who made the decision to terminate him were aware of his whistleblower

complaints, no reasonable fact-finder could find a causal connection between these

complaints and his employment termination; although appellant made various complaints

over the course of several years, he was terminated only after an FCE showed he had

permanent physical limitations that prevented him from performing his job duties.

                                           III.

      Appellant finally argues that summary judgment was inappropriate because, under

workers’ compensation statutes, he was entitled to a position within his physical

limitations and that several such positions were available. “An employer who, without

reasonable cause, refuses to offer continued employment to its employee when

employment is available within the employee’s physical limitations shall be liable in a

civil action for one year’s wages.” Minn. Stat. § 176.82, subd. 2 (2014). MnDOT asserts


                                            9
that, given appellant’s physical limitations and his requested geographic demands, there

were no available positions. MnDOT further asserts that it requested information from

appellant regarding a specific available position, but he did not respond. Appellant does

not dispute these assertions but alleges that he worked with a MnDOT job-placement

specialist and submitted numerous applications. While appellant cites several positions

he applied for, MnDOT responds that he was not qualified for any of these jobs, and

appellant provides no evidence that he met these positions’ requirements.

       Appellant specifically claims that he should have been given a snowplow-trainer

position. He was informed, however, that snowplow training was a one-time opportunity

and that he was physically unable to be a trainer. While appellant has conducted

snowplow trainings, he has not presented evidence that there was a dedicated trainer

position or that after his injury he could meet the physical requirements of this job.

Although appellant asserts that the district court erred by not construing evidence in his

favor, he provides insufficient evidence that he was passed over for job opportunities, and

merely asserts that he was qualified for certain positions.

       While it is undisputed that even prior to appellant’s injury he experienced

workplace conflict, appellant has not met his burden to show that these conflicts, or his

complaints about them and other issues, were an underlying cause of or pretext for his

termination or that he was not offered an available alternative position.

       Affirmed.




                                             10
