                        This opinion will be unpublished and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
                                   A14-1835

                            R. Wynn Kearney, Jr., M.D.,
                                   Appellant,

                                          vs.

                     The Orthopaedic and Fracture Clinic, P.A.,
                                  Respondent,

                                          vs.

         Steven B. Curtis, et al, intervening defendants and counterclaimants,
                                       Respondents.

                              Filed September 8, 2015
                                     Affirmed
                                 Rodenberg, Judge

                          Blue Earth County District Court
                              File No. 07-CV-13-1832

James H. Gilbert, Beverly J. Aho, Adam L. Sienkowski, James H. Gilbert Law Group,
P.L.L.C., Eden Prairie, Minnesota (for appellant)

Laurel J. Pugh, Steven P. Aggergaard, Casey D. Marshall, Bassford Remele, P.A.,
Minneapolis, Minnesota (for respondents)

      Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant challenges the district court’s grant of summary judgment in favor of

respondent on appellant’s tort and reprisal claims, and on his claims for statutory relief.

He also challenges the district court’s evidentiary rulings at trial and the district court’s

determination that neither party was a prevailing party. Respondent, by cross-appeal,

challenges the district court’s denial of its motion for judgment as a matter of law

(JMOL) and also challenges evidentiary rulings at trial. We affirm.

                                          FACTS

       This case arises from a dispute between appellant R. Wynn Kearney, Jr., M.D.,

and his former employer, respondent/cross-appellant Orthopaedic and Fracture Clinic,

P.A. (OFC). Appellant is an orthopaedic surgeon and a former OFC shareholder. He

sued OFC after OFC terminated his employment and offered to buy his shares in the

clinic under a Restated Stock Purchase Agreement (RSPA) for $5,906.

       Appellant was employed by OFC as a physician and surgeon between 1972 and

2012.1 Appellant signed an employment agreement with OFC in 1977 and a deferred

compensation agreement in 1979.2 Appellant purchased shares of OFC in 1979 and

signed a stock purchase agreement.       Effective January 1, 2003, appellant and OFC

executed the RSPA. All physician shareholders are on the board of directors of OFC and


1
  Appellant served in the Navy between 1973 and 1975, but returned to OFC in 1976 and
was employed there until his termination in 2012.
2
  Appellant executed a new employment agreement in 1990. All of the provisions
relevant to this appeal remained materially unchanged in the 1990 agreement.

                                             2
rotate officer positions annually. Appellant served on the board and as an officer of OFC

during his employment.

      In 2005, appellant participated in a “slow down policy” under which he was not

required to perform call duty.3 In 2008, appellant began suffering from anxiety. He

sought treatment, but did not inform OFC of his diagnosed anxiety or of his treatment for

it. In 2009, appellant commenced this action,4 but the suit remained unfiled until 2013.5

      In 2011, appellant returned to full-time work, including taking call duty. On

February 23, 2011, after appellant had taken approximately six weeks of call duty,

appellant’s doctors sent a letter informing OFC that appellant suffered “from medical

conditions which preclude him from performing call duties” indefinitely. The letter did

not identify the specific medical conditions from which appellant suffered, and the OFC

executive committee was concerned about whether appellant could safely and




3
  OFC surgeons are ordinarily required to take “call duty,” which “refers to physicians
answering emergency or other unscheduled patient services and appointments at any
time.” OFC has an exemption to this requirement, called a “slow down policy” where
physicians nearing retirement may work full-time, but need not take call duty. After two
years under the “slow down policy,” the physician may retire, return to full-time work
including call duty, or seek employment as a contract physician with OFC. In 2007, the
slow-down policy was amended. Appellant filed an age discrimination charge in 2008
concerning the slow-down policy change, but that issue is not before us on appeal.
4
  Appellant moved the court to amend and supplement the complaint in 2013, and the
district court granted the motion on August 28, 2013.
5
  Appellant also filed charges with the Minnesota Department of Human Rights (age
discrimination on September 10, 2008) and with the Equal Employment Opportunity
Commission (disability discrimination on May 27, 2012).

                                            3
competently perform his non-call duties. OFC placed appellant on indefinite leave on

February 26, 2011,6 and sought additional information from appellant and his doctors.

       In February 2012, appellant underwent an independent medical examination

(IME). The IME examiner concluded that appellant could perform call duty, but only

during the daytime. On April 5, 2012, OFC informed appellant that he must return to a

full-time schedule with call duty limited to the hours of 8:00 a.m. to 8:00 p.m. On

April 12, 2012, appellant informed OFC he would not act against his doctor’s orders and

that he was unwilling to perform call duty.        On April 20, 2012, OFC terminated

appellant’s employment.

       The district court dismissed some of appellant’s claims at summary judgment.

Other claims were tried to a jury, and some claims were simultaneously tried to the court.

After jury verdict, and on October 23, 2014, the district court entered final judgment.

The following day, appellant filed his notice of appeal. On October 31, 2014, the district

court issued an order concerning costs and disbursements, concluding that neither party

was a prevailing party. On December 15, 2014, OFC filed its notice of related appeal.




6
  The record contains conflicting evidence concerning the date on which appellant was
placed on leave. In his February 21, 2012 Charge of Discrimination, filed with the
Minnesota Department of Human Rights, appellant alleged that he was placed on unpaid
leave on “approximately February 26, 2011.” According to OFC’s corporate records, the
clinic’s executive committee made the decision to place appellant on leave on
February 24, 2011. In their appellate briefs, both parties refer to February 26, 2011 as the
date on which appellant was placed on unpaid leave.

                                             4
                                     DECISION

I.       Summary judgment for OFC on claim of breach of RSPA

         Appellant argues that the district court erred in granting summary judgment for

OFC on appellant’s claim that OFC breached the RSPA. Specifically, appellant argues

that the district court inappropriately weighed evidence in summarily dismissing his

breach of contract claim.

         Summary judgment is appropriately granted when the record demonstrates “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. Appellate courts review a district

court’s grant of summary judgment de novo, determining 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

“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).

         “Absent ambiguity, the interpretation of a contract is a question of law.”

Roemhildt v. Kristall Dev., Inc., 798 N.W.2d 371, 373 (Minn. App. 2011), review denied

(Minn. July 19, 2011).      “The plain and ordinary meaning of the contract language

controls, unless the language is ambiguous.” Bus. Bank v. Hanson, 769 N.W.2d 285, 288

(Minn. 2009).

         “Parol evidence is admissible when the written agreement is incomplete or

ambiguous” or to “explain the parties’ conduct subsequent to the written agreement.”


                                            5
H.J. Kramer Plumbing & Heating, Inc. v. Scharmer, 386 N.W.2d 742, 746-47 (Minn.

App. 1986) (quotation omitted).     In Scharmer, we concluded that the district court

properly determined that the contract between the parties “contained a latent ambiguity”

that rendered the term “Item No. 31 Sewage Disposal System” incomplete. Id. at 747.

The incomplete term was completed by parol evidence demonstrating what the parties

understood the term to mean. Id.; see also Alexander v. Holmberg, 410 N.W.2d 900, 901

(Minn. App. 1987) (citing Scharmer for the proposition that courts may consider parol

evidence to explain conduct of the parties subsequent to the formation of the contract but

inconsistent with the terms of the contract). “The test for the admissibility of parol

evidence for custom and trade is not whether a term is ambiguous, but rather, whether the

proffered evidence is relevant to prove a meaning to which the language of the instrument

is reasonably susceptible.” Apple Valley Red-E-Mix, Inc. v. Mills-Winfield Eng’g Sales,

Inc., 436 N.W.2d 121, 124 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989)

(quotation omitted).

       The RSPA in this case directs the valuation of shares upon buyout. The RSPA

states that “the purchase price [of a shareholder’s buyout] shall be the average of the

adjusted book values” for a fiscal year. The RSPA provides that the book value of

“assets with an original cost of $100,000 or more shall be valued at the fair market value”

as determined by OFC, and also provides that “[i]n the event that the adjusted book value

of [OFC] is one hundred dollars ($100.00) or less per share, the purchase price of each

share of Corporation Stock to be purchased shall be stipulated at One Hundred ($100.00)

Dollars for a total purchase price of $5,906.00.” Appellant argues that the value of


                                            6
OFC’s “ancillary services” should be included in computing the book value of the

shares,7 and that including the book value of “ancillary services” makes appellant’s

shares worth $1,850,000. OFC argues that these “ancillary services” are limited liability

companies not reported on OFC’s balance sheets and not properly included in computing

“adjusted book values.” Earlier buyouts of OFC shareholders did not include these

“ancillary services” in book-value calculations.

       The district court granted OFC’s motion for summary judgment, relying on Leslie

v. Minneapolis Teachers Ret. Fund Ass’n, 218 Minn. 369, 373-74, 16 N.W.2d 313, 315-

16 (1944). In Leslie, the supreme court stated that extrinsic parol evidence is admissible

to clarify an ambiguous term in a contract and “resort may be had to extrinsic evidence,

[presenting the court with] . . . a question of fact, unless such evidence is conclusive.” Id.

at 374, 16 N.W.2d at 315. But the supreme court also concluded that “where parties to a

contract have given it a practical construction by their conduct . . . such construction may

be considered by the court in determining its meaning and in ascertaining the mutual

intent of the parties.” Id. at 374, 16 N.W.2d at 315-16; see also J.J. Brooksbank Co., Inc.

v. Budget Rent-A-Car Corp., 337 N.W.2d 372, 376 (Minn. 1983) (stating that the conduct

of the parties “during the course of performance . . . [that] may support inferences as to

the meaning of language in the contract, or as to their intentions with respect to gaps or

omissions in the contract” can support practical construction of a contract (quotation

omitted)).

7
  The “ancillary services” included Mankato Surgical Center, Rehab One, and MRI
Mankato. The OFC shareholders receive profits from these entities, with the distributions
to shareholders in 2012 having totaled $6,921,728.

                                              7
      The district court determined that the RSPA valuation provision “[t]aken as a

whole . . . is not ambiguous.” In its analysis of the evidence concerning the parties’

conduct and their understanding of the RSPA, it noted that appellant’s “acceptance of the

terms of other transfers of stock [at the price OFC paid for appellant’s shares] . . . is

compelling evidence of how the parties interpreted a possibly ambiguous term in the

RSPA.” It also stated that “[a]lthough the term ‘asset’ may be ambiguous, there is no

issue of material fact as to how the parties understood the contract and the right of

shareholders under the RSPA.”

      Appellant argues that the district court erred in relying on evidence of the parties’

conduct to determine the buyout amount under the RSPA without explicitly concluding

that the term “assets” is ambiguous.     Appellant also argues that, if the contract is

ambiguous, then the district court should have either construed the agreement against the

drafter, which he asserts is OFC, or that the district court should have concluded that

there was a genuine issue of material fact and denied OFC’s motion for summary

judgment.

      The term “assets” is not defined by the contract. Because it is undefined, the

district court properly considered parol evidence to resolve the parties’ disagreement

concerning its meaning. See Scharmer, 386 N.W.2d at 747. And because the parol

evidence of the previous shareholder buyouts clearly demonstrates that the parties have

consistently construed the term “assets” in the RSPA as valuing shareholder’s shares at

$5,906, the district court did not err in concluding there was no fact question for

resolution by a jury. When parol evidence “is conclusive and undisputed and renders the


                                            8
meaning of the contract clear, its construction again becomes a question of law for the

court.” Leslie, 218 Minn. at 374, 16 N.W.2d at 316. It is undisputed that the buyouts for

two other recently outgoing shareholders under the RSPA were $5,906.8 We conclude

that the district court did not err in granting summary judgment in favor of OFC

concerning the valuation of OFC’s buyout of appellant’s shares at $5,906.

II.    Implied covenant of good faith and fair dealing

       Appellant challenges the district court’s grant of summary judgment for OFC on

appellant’s claim for breach of the implied covenant of good faith and fair dealing under

the RSPA. Appellant’s claim for breach of the implied covenant of good faith and fair

dealing is premised exclusively on appellant’s argument that the district court erred in

summarily dismissing his claim for breach of the RSPA.

       All contracts in Minnesota include “an implied covenant of good faith and fair

dealing requiring that one party not unjustifiably hinder the other party’s performance of

the contract.” In re Hennepin Cty. 1986 Recycling Bond Litig., 540 N.W.2d 494, 502

(Minn. 1995) (quotation omitted); but see Lee v. Metro. Airport Comm’n, 428 N.W.2d

815, 822 (Minn. App. 1988) (stating that this implied covenant does not apply to

employment contracts). This implied covenant “does not extend to actions beyond the

scope of the underlying contract.” Hennepin Cty., 540 N.W.2d at 503. There need not be

8
  Appellant asserts that he expressed concern over one of these buyouts, claiming his
disagreement as proof that he never believed $5,906 to be the proper shareholder buyout
price under the RSPA. This argument is self-serving and the record reveals no evidence
of any litigation or real dispute about the buyout price for these former shareholders.
Whether the RSPA was “fair” is not the issue on appeal; the issue before us is whether
the district court erred in concluding that, as a matter of law, the RSPA valued appellant’s
shares at $5,906.

                                             9
a breach of contract claim in order for a party to assert breach of the implied covenant.9

Id. The party alleging breach of the implied covenant “must establish bad faith by

demonstrating that the adverse party has an ulterior motive for its refusal to perform a

contractual duty.” Minnwest Bank Cent. v. Flagship Props. LLC, 689 N.W.2d 295, 303

(Minn. App. 2004).

       The district court concluded that OFC did not breach the RSPA, and therefore did

not breach the implied covenant of good faith and fair dealing, stating that “OFC had no

duty to act any differently than they did and, therefore, a breach of an implied covenant

of good faith and fair dealing fails.” Because we conclude that the district court did not

err in granting summary judgment for OFC concerning the valuation of appellant’s

shares, and because appellant makes no additional argument concerning breach of the

implied covenant of good faith and fair dealing under the RSPA, we conclude that the

district court did not err in granting summary judgment for OFC on appellant’s claim of

breach of the covenant of good faith and fair dealing.

III.   Dismissal of statutory claim for unfairly prejudicial conduct

       Appellant next argues that the district court erred in granting summary judgment

for OFC on appellant’s claim for a statutory fair-value buyout and other equitable relief

under Minn. Stat. § 302A.751, subds. 1-3a (2012).


9
  “A breach of contract is a failure, without legal excuse, to perform any promise that
forms the whole or part of the contract.” Lyon Fin. Servs., Inc. v. Ill. Paper & Copier
Co., 848 N.W.2d 539, 543 (Minn. 2014). “The elements of a breach of contract claim are
(1) formation of a contract, (2) performance by plaintiff of any conditions precedent to
his right to demand performance by the defendant, and (3) breach of the contract by
defendant.” Id. (quotation omitted).

                                            10
       As previously discussed, we review a district court’s grant of summary judgment

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

district court erred in applying the law. Mattson Ridge, 824 N.W.2d at 627.

       A court may grant equitable relief to a shareholder when “directors or those in

control of the corporation have acted in a manner unfairly prejudicial toward one or more

shareholders in their capacities as shareholders or directors.” Minn. Stat. § 302A.751,

subd. 1(b)(3). Unfairly prejudicial conduct is “conduct that frustrates the reasonable

expectations of all shareholders.”     Gunderson v. All. of Comput. Prof’ls, Inc., 628

N.W.2d 173, 184 (Minn. App. 2001), review granted (Minn. July 24, 2001), appeal

dismissed (Minn. Aug. 17, 2001). “Whether a shareholder’s reasonable expectations

have been frustrated is a question of fact. Id. at 186. We review a district court’s

summary denial of equitable relief de novo. Brown v. Lee, 859 N.W.2d 836, 839 (Minn.

App. 2015) review denied (Minn. May 19, 2015).

       The district court summarily denied appellant’s motion for a fair-value buyout and

for equitable relief on grounds of unfairly prejudicial conduct.        The district court

reasoned that, because it dismissed appellant’s claim that OFC breached the RSPA by

tendering $5,906 to appellant as the purchase price of his OFC shares, OFC did not act in

a manner unfairly prejudicial to appellant. It therefore concluded that OFC did not

unfairly frustrate appellant’s expectations as a shareholder.

       On appeal, appellant argues that the district court erred in dismissing his claim for

a statutory buyout “solely” based on its dismissal of the RSPA breach count. Appellant

argues that there are “numerous incidents of unfairly prejudicial conduct by OFC” and


                                             11
points to a broad range of actions and conduct by OFC, and individual employees and

shareholders of OFC, to support this claim, citing “bullying and ostracism” and

employment actions such as forced unpaid leave, withholding compensation, and

breaching his employment and deferred compensation agreements.

       Appellant fails to identify how this alleged “bullying and ostracism” frustrated his

reasonable expectations in his capacity as a shareholder or director. See Minn. Stat.

§ 302A.751, subd. 1(b)(3); Gunderson, 628 N.W.2d at 184 (stating that unfairly

prejudicial conduct is conduct that “frustrates the reasonable expectations” of a

shareholder “in their capacity as shareholders or directors”). Because appellant identifies

no connection between the alleged “bullying and ostracism” and his shareholder rights,

and because we conclude that the district court properly determined the valuation of

appellant’s shares, as discussed above, we conclude that appellant has not produced

evidence sufficient to demonstrate unfairly prejudicial conduct that frustrated his

reasonable expectations as a shareholder or director.10

IV.    Intentional infliction of emotional distress claim

       Appellant argues that the district court erred in summarily dismissing his claim for

intentional infliction of emotional distress (IIED) because it erroneously concluded that




10
   Appellant also argues that the district court considered this conduct for purposes of his
reprisal claim, but did not consider it under the statutory-buyout claim. Again, appellant
argues that acts of “bullying and ostracism” create genuine issues of material fact
concerning whether OFC engaged in a “freeze out” of appellant, but appellant does not
articulate how bullying or ostracism by his fellow doctors affected or prejudiced his
rights as a shareholder or director.

                                            12
IIED is preempted by the Minnesota Human Rights Act (MHRA) and that the

complained-of conduct was not “extreme and outrageous.”

       We again review the district court’s grant of summary judgment de novo,

determining whether there are genuine issues of material fact and whether the district

court erred in applying the law. Mattson Ridge, 824 N.W.2d at 627. We view the

“evidence in the light most favorable to the party against whom summary judgment was

granted.” STAR Ctrs., 644 N.W.2d at 76-77.

       IIED has four elements: “(1) the 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.” Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn. 2003)

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

The party alleging IIED has “a high threshold standard of proof . . . [to meet] to submit

the claim to the jury.” Id. If a party fails to meet one element, a court “need not consider

each element.” Id. at 865.

       For conduct to be “extreme and outrageous,” it must be “so atrocious that it passes

the boundaries of decency and is utterly intolerable to the civilized community” and

“must lead an average member of the community to exclaim ‘Outrageous!’”                  Id.

(quotation omitted).     In Langeslag, the supreme court concluded that a former

employee’s actions against her supervisor were not, as a matter of law, extreme and

outrageous. Id. at 865-68. The complained-of behavior included two false reports to

police concerning her supervisor, frequent shouting, use of vulgar language and name-

calling, and “invad[ing] his personal space.” Id. The supreme court characterized the


                                            13
behavior in Langeslag as “bizarre, unprofessional, and more than an everyday workplace

argument,” but held that a successful IIED claim requires more extreme conduct than was

present in that case. Id. at 868.

       Here, appellant describes “bullying and ostracism” by his colleagues at OFC

consisting of isolating behavior, insensitive comments, and hostile and unpleasant

conversations.   Appellant sued OFC in 2009 and continued to work there until his

termination in 2012. It is hardly surprising that relationships were strained, but the

complained-of behavior is not of the sort recognized as sufficiently extreme and

outrageous to support an IIED claim. Unpleasantness and insensitivity of this sort is

simply not outrageous or atrocious. Because appellant has failed to present evidence

sufficient to demonstrate the first element of IIED, we conclude that the district court did

not err in granting summary judgment for OFC on this claim. See Langeslag, 664

N.W.2d at 865 (explaining that if a party fails to meet one element, we “need not

consider each element”).

       Because we conclude that appellant has not proved that the complained-of conduct

is sufficiently extreme and outrageous, we need not address the question of whether the

MHRA preempts appellant’s IIED claim.

V.     Reprisal claims

       Appellant argues that the district court erred in granting partial summary judgment

for OFC concerning his reprisal claim. Appellant argues that the district court incorrectly

determined the period of limitations and erroneously excluded consideration of evidence

of conduct occurring before February 26, 2011 and after February 21, 2012.


                                            14
       A. Summary Judgment

       Appellant argues that the district court erred in granting partial summary judgment

and limiting appellant’s reprisal claim to actions occurring on or after February 23,

2011.11 Appellant argues that OFC’s alleged reprisal should have been analyzed under

the continuing-violations doctrine.

       We again review the district court’s grant of summary judgment de novo,

determining whether there are genuine issues of material fact and whether the district

court erred in applying the law. Mattson Ridge, 824 N.W.2d at 627. We view the

“evidence in the light most favorable to the party against whom summary judgment was

granted.” STAR Ctrs., 644 N.W.2d at 76-77.

       Claims under the MHRA must be brought within one year of the alleged unfair

discriminatory act. Minn. Stat. § 363A.28, subd. 3 (2012). However, the continuing-

violations doctrine creates an exception for an “unlawful employment practice [that]

manifests itself over time, rather than as a series of discrete acts.” Giuliani v. Stuart

Corp., 512 N.W.2d 589, 595 (Minn. App. 1994) (quotation omitted). The continuing-

violations doctrine applies “when the discriminatory acts of an employer over a period of

time indicate a systematic repetition of the same policy and constitute a sufficiently


11
   As discussed in footnote 6 supra, appellant’s February 21, 2012 MHRA claim alleged
that his having been placed on unpaid leave on “approximately February 26, 2011” was
an act of discrimination based on disability. The district court, in its summary-judgment
analysis, adopted appellant’s claimed date of having been placed on leave. But in its in
limine order, the district court allowed evidence to be admitted at trial concerning the
letter of February 23, 2011 from appellant’s doctor identifying “medical conditions which
preclude [appellant] from performing call duties,” and the events after that letter
culminating in the indefinite leave.

                                           15
integrated pattern to form, in effect, a single discriminatory act.” Hubbard, 330 N.W.2d

at 440-41, n.11.

        “To establish a continuing violation, [appellant] must show that at least one

incident of harassment occurred within the limitations period.” Giuliani, 512 N.W.2d at

595. Minnesota courts look to federal courts’ interpretations of Title VII and give

“strong weight” to these interpretations because the MHRA was modeled on Title VII.

Correll v. Distinctive Dental Servs., P.A., 594 N.W.2d 222, 226 (Minn. App. 1999), rev’d

on other grounds, 607 N.W.2d 440 (Minn. 2000).              Under federal law, “discrete

discriminatory acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113, 122 S. Ct. 2061, 2072 (2002). Termination is a discrete act. Id. at 114, 122 S. Ct.

2073.

        The district court, in granting summary judgment, concluded that appellant’s

termination (which, by all accounts, occurred on April 20, 2012) was a discrete act, and

could not be part of a continuing violation. It therefore dismissed appellant’s retaliatory-

termination claim. On appeal, appellant argues:

              But the court misapplied this case law as Morgan only
              applied to discrete acts of discrimination that occurred prior
              to the limitation period, and here, Appellant’s termination
              was subsequent to the limitation period and is therefore not
              time-barred. Wedow v. City of Kansas City, MO, 442 F.3d
              661, 673-75 (8th Cir. 2006) (concluding that “reasonably
              related” subsequent acts were timely brought when the
              administrative charges stated that the specific acts of
              retaliation were “ongoing and continuing”).




                                            16
       Wedow applies when acts are “ongoing and continuing.” Id. at 674. But Morgan

explicitly states that termination is a discrete act, Morgan, 536 U.S. at 114, 122 S. Ct.

2073, and Wedow indicates that the Eighth Circuit has “recognized that retaliation claims

are not reasonably related to underlying discrimination claims.”        442 F.3d at 673

(quotation omitted).     And appellant filed no separate Charge of Discrimination

concerning his April 20, 2012 termination.        Neither did he amend his complaint,

originally served in 2009, within one year of his termination as to allege that his

termination was motivated by retaliation for his discrimination claim.         On appeal,

appellant provides no apposite legal support for a determination that the district court

erred in granting summary judgment for OFC on these facts. We conclude that the

district court did not err in granting partial summary judgment for OFC on appellant’s

retaliatory-termination claim.

       B. Evidentiary Claims

       Appellant argues that the district court erred in granting, in part, OFC’s motion in

limine to limit evidence at trial concerning alleged acts of reprisal to conduct occurring

between February 23, 2011 and February 21, 2012.

       A district court’s evidentiary rulings will generally not be reversed absent a clear

abuse of discretion. State v. Flores, 595 N.W.2d 860, 865 (Minn. 1999). “A district

court abuses its discretion when it bases its conclusions on an erroneous view of the law.”

Miller v. Lankow, 801 N.W.2d 120, 127 (Minn. 2011). An erroneous evidentiary ruling

requires reversal when we conclude that an appellant has demonstrated “a reasonable

possibility that the verdict might have been different if the evidence had been admitted.”


                                            17
State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). “On appeal, the appellant has the

burden of establishing that the trial court abused its discretion and that appellant was

thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

       Appellant argues that Kalia v. St. Cloud State Univ., 539 N.W.2d 828 (Minn. App.

1995), is “strikingly similar” to this case and supports his claim that the district court

erroneously applied the law in excluding evidence of allegedly discriminatory actions

outside the timeframe stated in the in limine order. In Kalia, we observed that the statute

of limitations should not be the sole bar for admitting evidence of discriminatory actions,

stating that the statute of limitations bar “does not refer to evidence and, like other

statutes of limitations, does not bar evidence relevant to a timely filed claim, especially

otherwise admissible evidence that would assist a fact-finder in ascertaining the truth.”

593 N.W.2d at 833. We noted that evidence outside the period of limitations may be

admissible for some purposes, such as establishing actionable conduct like malice, as

well as establishing continuing violations or a pattern and practice of discrimination. Id.

at 833-34. In Kalia, we stated that we were “concerned that the conditional granting of

summary judgment so as to exclude the information leading up to this ‘peak’ [of

discriminatory conduct] would be an undue restriction of the evidence.” Id. at 835. We

further stated that “[w]here a continuing violation exists, the Minnesota Supreme Court

has held that evidence of these claims is not necessarily restricted to the statute of

limitations period.” Id.

       Kalia is distinguishable.   Here, the district court properly concluded that the

continuing-violations doctrine did not apply. Kalia does not require a district court to


                                            18
admit evidence outside of the period of limitations. Kalia held that, in the circumstances

of that case, “evidence of discriminatory acts that occurred outside the period specified in

the order for partial summary judgment may be probative of the intent of [the respondent]

in performing acts claimed to constitute discrimination.” Id.

       The district court here explicitly stated in its in limine order that appellant’s

“medical conditions prior to the date he requested a reasonable accommodation are

relevant to his reprisal claim” but that “[t]he question is whether [appellant] engaged in a

statutorily protected activity (requesting an accommodation) and whether [OFC]

retaliated against him for that action. Accordingly, the OFC’s acts prior to the date of his

[request for accommodation] are irrelevant.”

       The district court properly analyzed whether actions taken by OFC before the

statutorily-protected action would be relevant to whether OFC retaliated against appellant

after he requested an accommodation. The district court conducted a claim-specific

analysis. And, having properly concluded that this was not a continuing-violations case,

the district court acted within its discretion in limiting evidence of reprisal to OFC actions

after appellant requested a reasonable accommodation.

VI.    Evidentiary ruling on expert testimony

       Appellant next challenges the district court’s grant of OFC’s motion in limine to

exclude Dr. Gary Namie’s testimony concerning workplace bullying.

       A district court’s evidentiary rulings will generally not be reversed absent a clear

abuse of discretion.    Flores, 595 N.W.2d at 865.        An erroneous evidentiary ruling

requires reversal when we conclude that an appellant has demonstrated “a reasonable


                                             19
possibility that the verdict might have been different if the evidence had been admitted.”

Post, 512 N.W.2d at 102. Appellant must prove that he was prejudiced by the district

court’s erroneous ruling. Amos, 658 N.W.2d at 203.

         Appellant sought to introduce testimony from Dr. Gary Namie, a psychologist

who appellant asserts “is widely regarded as the nation’s expert on workplace harassment

and bullying,” to support his claim for reprisal. Expert testimony is admissible if it “will

assist the trier of fact to understand the evidence or to determine a fact in issue” if the

expert is qualified, and the opinion has foundational reliability. Minn. R. Evid. 702.

Additionally, “if the opinion or evidence involves [a] novel scientific theory, the

proponent must establish that the underlying scientific evidence is generally accepted in

the relevant scientific community.” Id. We review a district court’s determination

concerning the foundational reliability of expert testimony and the expert’s

“qualifications and helpfulness” for an abuse of discretion. Goeb v. Tharaldson, 615

N.W.2d 800, 815 (Minn. 2000).

         The district court concluded that Dr. Namie’s testimony would not be “helpful to

the trier of fact.” 12 The district court determined that workplace bullying “is not a new or

novel concept” and it is “not beyond the understanding of a trier of fact.” Appellant

argued to the district court, and maintains on appeal, that workplace bullying is similar to

battered-woman syndrome. See State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989)

(stating that evidence concerning battered-woman syndrome is generally admissible

“since it would help explain a phenomenon not within the understanding of an ordinary

12
     This claim was tried to the district court.

                                                   20
lay person”). The district court disagreed. On appeal, appellant argues that workplace

bullying is similar to battered-woman syndrome, rape-victim behavior and post-

traumatic-stress disorder (PTSD).13 See State v. Obeta, 796 N.W.2d 282, 294 (Minn.

2011) (holding that the “district court has discretion to admit expert-opinion evidence”

concerning the “typicality of delayed reporting, lack of physical injuries, and submissive

conduct by sexual-assault victims”).

       Rape, and battered-woman syndrome involve significantly traumatic experiences

not generally experienced or understood by “an ordinary lay person.” Hennum, 441

N.W.2d at 798; see also Obeta, 796 N.W.2d at 294 (discussing rape-victim responses).

Those types of cases frequently involve counter-intuitive behaviors in response to

traumatic experiences.    See Hennum, 441 N.W.2d at 798 (stating that behavior of

domestic violence victims may not, generally, be “within the understanding of an

ordinary lay person”); Obeta, 796 N.W.2d at 294 (explaining delayed reporting and

submissive conduct are typical for sexual-assault victims). Bullying, on the other hand, is

regrettably more commonplace. As the district court aptly observed in its memorandum


13
   Appellant cites State v. Sanford, No. A07-1402, 2008 WL 4776713 (Minn. App.
Nov. 4, 2008), to support his argument that Dr. Namie’s testimony would have provided
an alternative explanation for OFC’s behavior—i.e. that OFC’s behavior was workplace
bullying. In Sanford, we held that the district court abused its discretion when it
prohibited the defendant from presenting an alternative explanation for her erratic
behavior. 2008 WL 4776713, at *3. Sanford does not change our analysis here. First, it
is an unpublished opinion and therefore not precedential. Minn. Stat. § 480A.08, subd. 3
(2014). Second, the analysis in Sanford does not deviate from the ordinary abuse of
discretion analysis applied infra to appellant’s workplace bullying evidence—as did
Hennum for battered-woman syndrome and Obeta for rape-victim behavior. We
therefore do not address appellant’s comparison to PTSD evidence and workplace
bullying evidence in our analysis.

                                            21
supporting its in limine order, bullying is “quite prevalent today and it is not beyond a

trier of fact’s ability to understand the sometimes extreme and physical manifestations

that bullying can cause in an individual.” We see no clear abuse of the district court’s

discretion in excluding Dr. Namie’s proposed testimony.

VII.     Prevailing party order

         Appellant argues that the district court erred in determining that neither party was

the prevailing party. OFC argues that this issue is not properly before us, because

appellant filed his notice of appeal before the district court entered the prevailing-party

order and appellant did not move to amend his appeal to include the prevailing-party

order.

         “An appeal shall be made by filing a notice of appeal with the clerk of the

appellate courts . . . [and] shall contain . . . a statement specifying the judgment or order

from which the appeal is taken.” Minn. R. Civ. App. P. 103.01, subd. 1(a). Parties have

60 days to appeal from a judgment. Minn. R. Civ. App. P. 104.01, subd. 1. We “may

review any order involving the merits or affecting the judgment.” Minn. R. Civ. App. P.

103.04.

         On October 23, 2014, the district court entered final judgment. The following day,

appellant filed his notice of appeal with this court. One week later, on October 31, 2014,

the district court issued an order concerning costs and disbursements, concluding that

neither party was a prevailing party. Appellant did not move this court to construe this

appeal as including the October 31, 2014 order and judgment. Neither party appealed




                                              22
from the October 31, 2014 judgment. Issues raised by the October 31, 2014 judgment are

therefore not properly before us.

VIII. Resolution of ancillary-payments issue

       On cross-appeal, OFC argues that the district court erred by allowing the question

of whether ancillary payments were “compensation” under the employment agreement to

go to the jury. OFC argues that the district court should have granted OFC’s motion for

summary judgment, and it urges us to reverse the district court’s denial of summary

judgment or, alternatively, to reverse the district court’s denial of its motion for JMOL.

       A. Scope of appellate review

       OFC maintains that “[t]he Employment Agreement’s interpretation was not, and

could not have been, presented to the jury for determination” and that we should review

the district court’s denial of summary judgment because the district court should have

determined, as a matter of law, that there was no question of fact for the jury. Appellant

argues that the district court explicitly and clearly found genuine issues of material fact

for resolution by the jury and its denial of summary judgment is not reviewable on appeal

because the issue was tried to a jury.

       Except in cases where summary judgment is denied based on an issue of law,

denial of summary judgment “is not properly within the scope of review on appeal from

the judgment,” and when the case is appealed after being tried to a jury that reached a

verdict, “we will not consider it”. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 918-

19 (Minn. 2009).




                                             23
       The district court denied summary judgment based on its determination that

“whether [appellant] was entitled to ancillary payment[s] as compensation during his

disability leave” was a “question of material fact.” Under Bahr, the question on appeal is

whether summary judgment was denied based on a question of fact or law, and, if it was

denied on account of a genuine issue of material fact, denial of the motion is not properly

reviewable on appeal.       Id.   Our inquiry into whether the district court correctly

determined there was a genuine issue of material fact is limited. Id. The supreme court

explained that “[t]his is because the district court’s conclusion at the summary judgment

stage that there was a genuine dispute of fact becomes moot once the jury reaches a

verdict on that issue.” Id. at 918.

       We conclude that this aspect of the district court’s summary judgment order is not

within the scope of our review on appeal. We also observe that OFC is not materially

prejudiced because the “standards for granting summary judgment and for granting

judgment as a matter of law are the same.” Hoover v. Norwest Private Mortg. Banking,

632 N.W.2d 534, 545 n.9 (Minn. 2001).

       B. Admission of evidence of disability payments

       OFC argues that appellant “never produced the evidence” that he was due

ancillary payments during his disability leave and that the district court erred in denying

its motion for JMOL. OFC also argues that the district court erroneously excluded

evidence at trial. Appellant responds that OFC has not disputed the sufficiency of the

evidence supporting the jury’s award or findings and, because it did not object to the jury

instructions which establish the law of the case, we should affirm the verdict.


                                            24
           1. Judgment as a matter of law

       JMOL is appropriate “only in those unequivocal cases where (1) in the light of the

evidence as a whole, it would clearly be the duty of the [district] court to set aside a

contrary verdict as being manifestly against the entire evidence, or where (2) it would be

contrary to the law applicable to the case.” Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly

& Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) (quotation omitted); see also Minn.

R. Civ. P. 50.01(a). “If reasonable jurors could differ on the conclusions to be drawn

from the record, judgment as a matter of law is not appropriate.” Bahr, 766 N.W.2d at

919.

       Appellate courts review de novo a district court’s denial of a motion for JMOL.

Id. On review, we “view the evidence in the light most favorable to the prevailing party.”

Id. Since appellant prevailed on this issue, we review the evidence in the light most

favorable to him.

       Appellant correctly posits that, because OFC did not challenge the district court’s

jury instructions, and therefore did not challenge the law provided to the jury, the jury

instructions are the law of the case. See Wolner v. Mahaska Indus., Inc., 325 N.W.2d 39,

42 (Minn. 1982) (“Where a party makes no objections to jury instructions before the jury

retires, and does not specify fundamental errors in a motion for a new trial, the

instructions are the law of the case and may not be challenged for the first time on

appeal.”); Jones v. Amoco Oil Co., 483 N.W.2d 718, 724 (Minn. App. 1992) (interpreting

Wolner to hold that unchallenged jury instructions are law of the case and cannot be

challenged on appeal), review denied (Minn. May 15, 1992).


                                            25
      The unchallenged jury instructions were that the jury should determine “whether

there was an [employment] agreement” and that it could “consider all the circumstances”

in making its determination.       The jury heard testimony concerning the OFC

compensation practices, including the three components of compensation used by OFC:

base salary, production pay, and ancillary payments. There was ample evidence, as the

district court noted in its order denying OFC’s motion for JMOL, that the parties

understood “compensation” to include these three components and that “ancillary pay,

though not specifically articulated in the employment agreement, . . . was contemplated

by the employment agreement, just as base and production pay were considered

compensation under the employment agreement.” Moreover, OFC’s counsel conceded

during arguments at the post-trial motion hearing that a jury could find that ancillary

payments are compensation under the employment agreement.

      While OFC does not now agree with the district court’s instructions to the jury that

it could consider all relevant evidence and circumstances in determining the

compensation due to appellant for OFC’s employment-contract breach, OFC did not

timely object to those instructions. Viewing the evidence in the light most favorable to

the verdict, the record supports the jury’s conclusion that the parties understood

compensation under the employment agreement to include base salary, production pay,

and ancillary payments, and that OFC breached the employment agreement by failing to

fully compensate appellant during his leave.




                                           26
           2. Evidentiary rulings

       OFC also challenges the district court’s evidentiary ruling at trial excluding a letter

from appellant’s disability insurer in which appellant represented that he was disabled.

OFC argues that the district court improperly allowed appellant to testify that he was not

disabled and wanted to work during periods of time when he was collecting disability-

insurance benefits.

       Our standard of review of evidentiary rulings is for abuse of discretion and the

party challenging the ruling must demonstrate not only error, but prejudicial error. Amos,

658 N.W.2d at 203. We review decisions on motions for JMOL de novo. Bahr, 766

N.W.2d at 919.

       The district court granted appellant’s motion in limine to exclude evidence of

collateral source payments to appellant and references to information concerning

insurance or disability coverage, except for impeachment purposes. OFC argues that it

sought to impeach appellant’s testimony that he wanted to work and was not disabled

with a letter from appellant’s disability insurer indicating that appellant had represented

to the insurer that he was disabled.        Appellant argues that “disability” under the

employment agreement was different than the definition provided by the disability

insurance contract and that the two terms have different meanings in different contexts.

The district court determined that:

              There is a question of fact, however, as to whether [appellant]
              was on disability leave under section 4.1 of the employment
              agreement. While the Court ruled that [appellant] was not
              qualified to work as an orthopedic surgeon pursuant to the
              definition of “disabled” under the MHRA, this does not


                                             27
              necessarily mean that [appellant] was “disabled” under the
              employment contract. Likewise, the definition of “disabled”
              under the insurance contract was different than the definition
              under the MHRA. The Employment Agreement does not
              define “disabled,” as such, there is a question of fact as to
              whether [appellant] was disabled under section 4.1 of the
              contract. Accordingly, evidence of [appellant’s] disability, or
              non-disability, may be introduced for this purpose.

       The district court properly identified that “disability” can mean different things in

different contexts. In its discretion, the district court carefully circumscribed the use to

which correspondence referring to appellant’s disability for insurance purposes could be

put at trial. We conclude that the district court properly identified the fact question for

resolution by the jury—whether appellant was disabled under the employment contract—

and acted within its discretion in excluding evidence from the disability insurer stating

that appellant was “disabled” for other purposes.

IX.    Collateral-source offset

       The district court computed and applied a collateral-source offset under Minn.

Stat. § 548.251 (2012) for disability insurance benefits received by appellant from

Lincoln Financial Group. Appellant was paid $353,991.20 for the period from May 27,

2011 until May 27, 2013. The jury found damages of $982,366 for the period from

May 15, 2011 until July 20, 2012. The district court concluded that “the pro rata amount

of the insurance payment” for the period for which the jury found damages was

$217,917, and reduced that amount by the $40,014 of attorney fees incurred by appellant

to recover the disability benefits, resulting in a net collateral-source offset of $177,903.




                                              28
       OFC challenges this calculation, arguing that the district court erred in making the

pro rata calculation and in offsetting appellant’s attorney fees incurred in obtaining the

disability judgment from his insurer.

       The question of whether the district court properly determined the collateral-

source offset here depends upon the interpretation of Minn. Stat. § 548.251 (2012). We

review the district court’s interpretation of a statute de novo. Graff v. Robert M. Swendra

Agency, Inc., 800 N.W.2d 112, 120 (Minn. 2011).

       A judgment must be offset by collateral sources, such as disability insurance

payments, Minn. Stat. § 548.251, subd. 1(2), when “liability is admitted or is determined

by the trier of fact, and when damages include an award to compensate the plaintiff for

losses available to the date of the verdict by collateral sources.” Id., subd. 2. “The

primary purpose of the collateral source statute is to prevent double recoveries by

plaintiffs.” Graff, 800 N.W.2d at 120 (quotation omitted). The statute “abrogates the

common law, [and therefore] we construe the statute narrowly.” Id. But “our rules of

statutory interpretation require us to construe statutes to avoid unjust consequences.” Id.

at 121 (quotations omitted). Graff holds that an award of attorney fees is not properly

offset as a collateral source. See id. (“We conclude that the attorney fees paid to Graff’s

counsel as part of the workers’ compensation settlements do not constitute payments

related to Graff’s ‘injury or disability’ resulting from the August 2004 motor vehicle

accident.”).

       OFC asserts that the statute, which it argues should be strictly construed, can only

offset an award “pursuant to the provision listed in the statute,” id., and the statute does


                                            29
not specifically authorize a pro rata reduction, see Minn. Stat. § 548.251. Therefore, it

argues, the district court erred by offsetting appellant’s judgment by “the pro rata amount

of the insurance payment that would have been allocated to the jury verdict time period,”

which was $217,917. Appellant argues in response that the district court appropriately

limited the offset to avoid “a potential double recovery.” (Quotation marks omitted).

       The statute does not explicitly instruct a district court concerning whether, or how,

to apportion and reduce an award when the amount awarded does not precisely match the

amount obtained from a collateral source (here, disability insurance). See Minn. Stat.

§ 548.251, subd. 2. In a case where a prevailing personal-injury plaintiff recovers past

medical expenses and those expenses have already been paid by a health insurer, Minn.

Stat. § 548.251 operates to relieve the liable personal-injury defendant from liability for

medical expenses that have been previously paid by health insurance or another collateral

source, so that the plaintiff does not recover the same amount twice. See Swanson v.

Brewster, 784 N.W.2d 264, 282 (Minn. 2010). Where the verdict and the collateral

source payments do not precisely match, application of the statute becomes more

complicated. For example, in Heine, the payment from collateral sources related to two

separate accidents, one of which was not at issue during the trial. Heine, 702 N.W.2d at

765-66. The supreme court remanded to the district court to determine the amount of

collateral source payments fairly allocated to the accident at issue at trial. Id. at 766-67.

Here, appellant received collateral source payments for a longer period of time than was

at issue at trial and the district court offset appellant’s recovery by the amount fairly

allocated to the time period at issue.


                                             30
       The district court observed that “[n]either party seems to dispute that the jury

verdict was for ‘earnings’ that would have been paid to [appellant] had [OFC] not

breached the contracts.” It correctly observed that the monthly payment amounts paid by

the insurer to appellant were calculated based on the “monthly amount [appellant] would

receive under the contract.”

       Courts have applied Minn. Stat. § 548.251 to allow reductions to avoid double-

recovery, see Heine, 702 N.W.2d at 766, or to avoid unjust consequences, Graff, 800

N.W.2d at 121. The district court here applied common sense, in light of Graff, to

achieve the essential purpose of the collateral-source-offset statute: avoiding a double

recovery while not leaving the prevailing party “undercompensated.” Heine, 702 N.W.2d

at 764 (citing Imlay v. City of Lake Crystal, 453 N.W.2d 326, 335 (Minn. 1990)); see also

Graft, 700 N.W.2d at 121. The district court properly reduced the collateral-source offset

by appellant’s attorney fees incurred in recovering under the disability policy.

       In sum, we affirm the district court’s grant of summary judgment for OFC on

appellant’s claims for breach of the RSPA, breach of the implied covenant of good faith

and fair dealing, statutory fair-value buyout and unfairly prejudicial conduct, and

intentional infliction of emotional distress. We also affirm the district court’s partial

summary judgment on appellant’s reprisal claim, and the district court’s evidentiary

rulings challenged by both parties. We decline to address appellant’s challenges to the

prevailing-party order as that issue is not properly before us. We affirm the district

court’s denial of OFC’s motion for judgment as a matter of law on appellant’s breach of




                                            31
contract claim concerning the employment agreement, and affirm the district court’s

application of the collateral-source offset statute.

       Affirmed.




                                              32
