                       This opinion will be unpublished and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
                                  A14-1409

                                 Barbara Peterson,
                                    Appellant,

                                        vs.

                          HealthEast Woodwinds Hospital,
                                   Respondent.

                                Filed June 29, 2015
                                     Affirmed
                                  Johnson, Judge

                           Ramsey County District Court
                             File No. 62-CV-12-1017

Richard A. Williams, Jr., Megan A. Spriggs, R.A. Williams Law Firm, P.A., St. Paul,
Minnesota (for appellant)

Sara Gullickson McGrane, Jessica M. Marsh, Felhaber Larson, P.A., Minneapolis,
Minnesota (for respondent)

      Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and

Rodenberg, Judge.

                      UNPUBLISHED OPINION

JOHNSON, Judge

      Barbara Peterson was employed by HealthEast Woodwinds Hospital until she did

not return from a leave of absence. She later commenced this lawsuit, which seeks
compensation from her former employer under various legal theories. She appeals from

the district court’s entry of summary judgment. We affirm.

                                         FACTS

       Peterson was employed by HealthEast Woodwinds Hospital from December 2002

or January 2003 until May 2010. At the end of her employment, her title was patient and

family advocate.     Her duties included recording patient grievances, maintaining

investigation records, meeting with patients and their families, and serving on the

hospital’s ethics committee.

       In May 2009, HealthEast restructured the department in which Peterson worked,

which caused Peterson to be assigned to a different supervisor.           Peterson’s new

supervisor directed Peterson to make various changes in the way she maintained her files.

Peterson disagreed with her supervisor’s directives and expressed the belief that the

practices required of her were unethical and possibly unlawful. The relationship between

Peterson and her new supervisor deteriorated. Peterson later testified in a deposition that

she believed that she was being “pressured to leave my job and resign.”

       In February 2010, Peterson began a 12-week leave of absence for medical reasons.

During her leave, Peterson spoke periodically with a member of HealthEast management.

In March 2010, Peterson told the manager that she was looking for a job with a different

employer. In May 2010, near the end of the leave period, Peterson informed the manager

by telephone that she could return to work for HealthEast on a part-time basis if she were

assigned to a different supervisor. The HealthEast manager responded, “No, I think you

should keep pounding the pavement.”


                                            2
       Peterson’s leave ended on May 18, 2010. Peterson did not return to work. On

June 7, 2010, Peterson called HealthEast’s human resources department to ask about

disability benefits and whether the company would send her a letter confirming her

termination. Four days later, HealthEast sent Peterson a letter confirming that Peterson

no longer was employed because her leave had expired and she had failed to return to

work or to request additional leave.

       In February 2012, Peterson commenced this action against HealthEast Woodwinds

Hospital in the Ramsey County District Court with a five-count complaint, which alleges

the following causes of action: (1) a violation of the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-54 (2012); (2) a violation of the Minnesota Whistleblower

Act, Minn. Stat. § 181.932 (2014); (3) a common-law claim of wrongful discharge in

violation of public policy, see Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569

(Minn. 1987); (4) a common-law claim of negligent infliction of emotional distress; and

(5) a common-law claim of intentional infliction of emotional distress. Peterson relies on

the constructive-discharge doctrine to establish that HealthEast is responsible for the

termination of her employment. See Coursolle v. EMC Ins. Grp., Inc., 794 N.W.2d 652,

660 (Minn. App. 2011), review denied (Minn. Apr. 19, 2011).

       In February 2013, HealthEast removed the case to the United States District Court

for the District of Minnesota. See 28 U.S.C. § 1446 (2012). HealthEast promptly moved

for summary judgment. In June 2013, the federal district court granted HealthEast’s

motion for summary judgment with respect to Peterson’s FMLA claim. The FMLA

claim was Peterson’s only federal claim and the only basis for subject-matter jurisdiction


                                            3
in federal court. See 28 U.S.C. § 1331 (2012). The federal district court did not analyze

HealthEast’s motion with respect to Peterson’s other claims. Rather, the federal district

court declined to exercise supplemental jurisdiction over the remaining state-law claims

and remanded them to state court. See 28 U.S.C. § 1367(a), (c) (2012).

       After the remand to state court, HealthEast moved for summary judgment on the

remaining state-law claims. In June 2014, the state district court granted HealthEast’s

motion. Peterson appeals.

                                      DECISION

       Peterson argues that the state district court erred by granting HealthEast’s motion

for summary judgment on her second, third, and fifth claims. She does not challenge the

district court’s entry of summary judgment on her fourth claim.

       A district court must grant a motion for summary judgment “if 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. A

genuine issue of material fact exists if a rational trier of fact, considering the record as a

whole, could find for the non-moving party. Frieler v. Carlson Mktg. Grp., Inc., 751

N.W.2d 558, 564 (Minn. 2008). This court applies a de novo standard of review to the

district court’s legal conclusions on summary judgment and views the evidence in the

light most favorable to the non-moving party. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d

1, 6 (Minn. 2012); Day Masonry v. Independent Sch. Dist. 347, 781 N.W.2d 321, 325

(Minn. 2010).


                                              4
                                  I. Retaliation Claims

       Peterson first argues that the state district court erred by granting HealthEast’s

motion for summary judgment on her second claim, the whistleblower claim, and her

third claim, the common-law claim of wrongful discharge in violation of public policy.

       The district court granted HealthEast’s summary-judgment motion on the ground

that Peterson is collaterally estopped from re-litigating one issue that she must establish

to prevail on both her statutory whistleblower claim and her common-law claim of

wrongful discharge in violation of public policy. The doctrine of collateral estoppel

precludes a party from re-litigating an issue that previously was decided.1 See Bublitz v.

Commissioner of Revenue, 545 N.W.2d 382, 385 (Minn. 1996). A party seeking to

invoke the doctrine must establish four requirements:

              (1) the issues in the prior and present adjudication must be
              identical; (2) there must have been a final adjudication on the
              merits; (3) the estopped party must have been a party or in
              privity with a party to the prior adjudication; (4) and the
              estopped party must have been given a fair and full
              opportunity to be heard on the adjudicated issue.

Heine v. Simon, 702 N.W.2d 752, 761 (Minn. 2005) (quoting Haavisto v. Perpich, 520

N.W.2d 727, 731 (Minn. 1994)). Peterson contends that HealthEast did not satisfy the

first and second requirements of the collateral-estoppel doctrine.



       1
        The doctrine of collateral estoppel typically is applied because an issue was
previously decided in a different case. See, e.g., Burns v. Commissioner of Revenue, 787
N.W.2d 164, 166-67 (Minn. 2010). In this case, HealthEast relies on the federal district
court’s adjudication of an issue in what is essentially the same case. Neither party has
questioned the applicability of the doctrine of collateral estoppel in these circumstances.
Thus, for purposes of resolving this appeal, we assume that the doctrine applies.

                                             5
A.     First Requirement: Identical Issues

       To reiterate, the first requirement of the doctrine of collateral estoppel is that “the

issues in the prior and present adjudication [are] identical.” Id. (quotation omitted). The

state district court reasoned that the federal district court previously decided the issue

whether Peterson could prove that HealthEast’s asserted reason for her termination was a

pretext for an unlawful reason. Peterson contends that the state district court erred in its

collateral-estoppel analysis because the retaliation claim resolved by the federal district

court (the FMLA claim) is different from the retaliation claims resolved by the state

district court (the statutory whistleblower claim and the common-law wrongful-discharge

claim) and that the various claims have different elements of proof.            In response,

HealthEast contends that the issue of pretext is the same with respect to each of these

three claims.

       In many employment-discrimination cases, a district court considering a motion

for summary judgment must follow the procedures of the so-called McDonnell-Douglas

burden-shifting test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817 (1973). At the first step of the test, the plaintiff-employee has the burden of

introducing evidence that establishes a prima facie case of unlawful discrimination or

retaliation. Id. at 802, 93 S. Ct. at 1824. At the second step, the burden of production

shifts to the defendant-employer, who must produce evidence of a legitimate, non-

discriminatory or non-retaliatory reason for its employment decision. Id. And at the

third step, the burden shifts back to the plaintiff-employee, who must introduce evidence

capable of satisfying the plaintiff’s burden of persuasion that the employer’s asserted


                                              6
reason for its employment decision is a pretext for unlawful discrimination or retaliation.

Id. at 804, 93 S. Ct. at 1825. A reason is a pretext if the plaintiff-employee shows “both

that the reason was false, and that [the protected conduct] was the real reason.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993) (emphasis

omitted); see also Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996)

(following Hicks for purposes of third prong of McDonell-Douglas test).

      Peterson’s three retaliation claims have different requirements for a prima facie

case and different elements of proof. See Pulczinski v. Trinity Structural Towers, Inc.,

691 F.3d 996, 1005 (8th Cir. 2012) (FMLA claim); Dukowitz v. Hannon Sec. Servs., 841

N.W.2d 147, 150 (Minn. 2014) (claim of wrongful discharge in violation of public

policy); Kratzer v. Welsh Cos., 771 N.W.2d 14, 18 (Minn. 2009) (statutory whistleblower

claim). But all three claims are governed by the McDonnell-Douglas burden-shifting

test. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011) (applying

McDonnell-Douglas test to FMLA claim); Grundtner v. University of Minn., 730 N.W.2d

323, 329 (Minn. App. 2007) (applying McDonnell-Douglas test to whistleblower claim);

Phipps, 408 N.W.2d at 572 (applying McDonnell-Douglas test to claim of wrongful

discharge in violation of public policy). Thus, at the third step of the McDonnell-

Douglas test, the issue is the same, regardless of the nature of the claim: whether the

employer’s “proffered reason was not the true reason for the employer’s actions.”

Hasnudeen, 552 N.W.2d at 557.

      The federal district court resolved Peterson’s FMLA claim by assuming without

deciding at the first step that Peterson had established a prima facie case and by


                                            7
reasoning at the second step that HealthEast had submitted evidence of a legitimate, non-

retaliatory reason for Peterson’s termination (namely, that Peterson had failed to return to

work when her leave of absence ended). At the third step, the federal district court

reasoned that Peterson had not submitted evidence capable of proving that HealthEast’s

asserted non-retaliatory reason was false and was a pretext for an unlawful reason. See

Wierman, 638 F.3d at 999.         The state district court did not reconsider Peterson’s

evidence. Rather, the state district court reasoned that Peterson was precluded from

satisfying her burden at the third step of the McDonnell-Douglas test because the pretext

issue already had been decided by the federal district court. The state district court is

correct. The pretext issue decided by the federal district court for purposes of Peterson’s

FMLA claim is identical to the pretext issue that was before the state district court for

purposes of Peterson’s whistleblower claim and common-law wrongful-discharge claim.

For all three claims, Peterson cannot prevail unless she can establish that HealthEast’s

asserted reason for her termination was false and that the real reason was retaliation. See

Hicks, 509 U.S. at 515, 133 S. Ct. at 2752; Hasnudeen, 552 N.W.2d at 557.

       Thus, the state district court correctly concluded that the first requirement of the

collateral-estoppel doctrine is satisfied. See Heine, 702 N.W.2d at 761; see also Bechtold

v. City of Rosemount, 104 F.3d 1062, 1066-67 (8th Cir. 1997) (holding that issue of

pretext in plaintiff’s Title VII claim is same as issue of wrongful termination in plaintiff’s

prior certiorari review by this court).




                                              8
B.      Second Requirement: Final Adjudication on the Merits

        The second requirement of the doctrine of collateral estoppel is that “there must

have been a final adjudication on the merits.” Heine, 702 N.W.2d at 761 (quotation

omitted). The state district court reasoned that the pretext issue was “fully litigated” in

the federal district court. Peterson contends that the federal district court’s decision on

the issue of pretext was not a final adjudication on the merits because the federal district

court entered a partial judgment on one count of her five-count complaint. In response,

HealthEast contends that the federal district court’s adjudication was final because the

federal district court fully resolved the FMLA claim, entered judgment with respect to

that claim, and remanded the case to the state district court.

        The federal district court’s order concludes by stating, “LET JUDGMENT BE

ENTERED ACCORDINGLY.” If a federal district court enters a partial judgment on

one claim and remands the remaining state law claims pursuant to 28 U.S.C. § 1367(c),

the federal district court has “nothing left to resolve and the partial summary judgment

[becomes] final.” Porter v. Williams, 436 F.3d 917, 920 (8th Cir. 2006) (holding that

partial judgment on federal claim is appealable despite remand of state law claims); see

also Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858, 859 (8th Cir. 2000)

(reviewing federal district court’s grant of partial summary judgment on FMLA claim

despite remand of state-law claims). Accordingly, the federal district court’s resolution

of the issue of pretext was final. See Heine, 702 N.W.2d at 761. Thus, the state district

court correctly concluded that the second requirement of the collateral-estoppel doctrine

is satisfied.


                                              9
       Because HealthEast satisfied all requirements of the doctrine of collateral

estoppel, the state district court did not err by granting HealthEast’s motion for summary

judgment on Peterson’s first and second claims.

               II. Claim of Intentional Infliction of Emotional Distress

       Peterson also argues that the state district court erred by granting HealthEast’s

motion for summary judgment on the fifth count of her complaint, in which she alleged a

claim of intentional infliction of emotional distress (IIED).

       To prevail on an IIED claim, a plaintiff must prove the following four elements:

“(1) the [defendant’s] conduct must be extreme and outrageous; (2) the conduct must be

intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be

severe.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983)

(citing Restatement (Second) of Torts § 46(1) (1965)). The state district court granted

HealthEast’s motion on the grounds that Peterson had not submitted evidence that creates

a genuine issue of material fact with respect to the first element, that HealthEast’s

conduct was extreme and outrageous, or the third element, that HealthEast’s conduct

caused her emotional distress. Peterson challenges the state district court’s reasoning

with respect to both the first and the third elements of her claim.

A.     First Element: Extreme and Outrageous Conduct

       A plaintiff seeking to prove an IIED claim must satisfy the first element of the

claim by proving that the defendant’s conduct was “so atrocious that it passes the

boundaries of decency and is utterly intolerable to the civilized community.” Id. at 439

(quotations omitted). IIED claims are “‘sharply limited to cases involving particularly


                                             10
egregious facts.’” Singleton v. Christ the Servant Evangelical Lutheran Church, 541

N.W.2d 606, 614 (Minn. App. 1996) (quoting Hubbard, 330 N.W.2d at 439), review

denied (Minn. Mar. 19, 1996). This is a high standard and especially difficult to meet in

a case arising from the workplace. See Hubbard, 330 N.W.2d at 439-40.

       The state district court resolved this part of Peterson’s IIED claim by reasoning

that, even if Peterson could prove that HealthEast directed her to take actions that would

violate the law, HealthEast’s actions would “not rise to the level of extreme and

outrageous conduct.”     The state district court also reasoned that, even if Peterson’s

supervisor “continually berated [her] and questioned [her] competency at her job,

reprimanding, suspending, or terminating an employee—regardless of the reason—does

not satisfy the high standard required on a claim of IIED.” The state district court is

correct.   “Written and verbal criticism” of an employee’s job performance, even if

improper for other reasons, generally is insufficient to constitute outrageous conduct for

purposes of an IIED claim. Hubbard, 330 N.W.2d at 439-40. Furthermore, asking an

employee to engage in unethical or potentially unlawful conduct does not rise to the level

of “extreme and outrageous” conduct to support an IIED claim, even though it may be

wrong for other reasons. See Dowell v. Contra Costa Cnty., 928 F. Supp. 2d 1137, 1156-

57 (N.D. Cal. 2013) (holding that employer did not engage in “outrageous” conduct by

allegedly asking employee to use unlawful timekeeping practices); Darrow v. Dillingham

& Murphy, LLP, 902 A.2d 135, 139 (D.C. 2006) (holding that employer did not engage

in “extreme and outrageous” conduct by allegedly retaliating against employee for

refusing to participate in unlawful billing).


                                                11
       Thus, the state district court correctly concluded that Peterson did not create a

genuine issue of material fact with respect to the first element of her IIED claim.

B.     Third Element: Causation

       A plaintiff seeking to prove an IIED claim also must satisfy the third element of

the claim by proving that the defendant’s conduct caused her emotional distress.

Hubbard, 330 N.W.2d at 438-39; Odegard v. Finne, 500 N.W.2d 140, 144 (Minn. App.

1993) (affirming grant of summary judgment to defendant on IIED claim because

plaintiff “failed to present any evidence linking her alleged damages to any actions” of

defendant). In general, a plaintiff’s own testimony is “not sufficient to establish a causal

connection” between the defendant’s conduct and the plaintiff’s emotional distress.

Langeslag v. KYMN Inc., 664 N.W.2d 860, 869 (Minn. 2003). This is so because a

person’s emotional distress may have multiple and complex causes. Id. Accordingly,

“[t]he appropriate method of proving the . . . causation of emotional distress is through

medical testimony.” Id. at 870

       The state district court resolved this part of Peterson’s IIED claim by reasoning

that she failed to submit any evidence that HealthEast’s actions caused her emotional

distress. Peterson contends, without citation to the record, that she submitted her therapy

records. Our review of the district court record, however, reveals Peterson’s deposition

testimony but no therapy records. In her deposition, Peterson testified that she has

suffered from depression for 15 years. The medical evidence in the record is insufficient

to allow Peterson to create a genuine issue of material fact as to whether HealthEast’s




                                             12
conduct (even if extreme and outrageous) caused her to experience emotional distress.

See id.

          Thus, the state district court correctly concluded that Peterson did not create a

genuine issue of material fact with respect to the third element of her IIED claim.

          Because Peterson cannot prove all elements of her IIED claim, the state district

court did not err by granting HealthEast’s motion for summary judgment on Peterson’s

fifth claim.

          Affirmed.




                                             13
