David Abraham and Scott Lennander, Appellants, vs. The County of Hennepin, Respondent.

may not be cited except as provided by

Minn. Stat. §480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-1907

David Abraham and Scott Lennander,

Appellants,

vs.

The County of Hennepin,

Respondent.

Filed April 23, 1998

Remanded

Peterson, Judge

Hennepin County District Court

File No. 964449

Leslie L. Lienemann, 416 East Hennepin, Suite 208, Minneapolis, MN 55414 (for appellants)

Michael O. Freeman, Hennepin County Attorney, Martin D. Munic, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Mulally, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this appeal from a summary judgment, appellants contend that the district court incorrectly determined that no genuine issues of material fact exist regarding their claims for retaliatory discharge under the Whistleblower Act and the Minnesota Occupational Safety and Health Act. Respondent contends that appellants failed to establish a prima facie case of retaliatory discharge and that appellants failed to present specific, admissible evidence that respondent's stated reason for discharging appellants was a pretext for retaliation. We remand with instructions.

FACTS

Appellants David Abraham and Scott Lennander worked as printing equipment operators for respondent Hennepin County.

In January 1995, Abraham filed a written complaint with the county alleging that he was sexually harassed and verbally threatened by his supervisor, Theresa Schaffer. Allegations in the complaint included events dating back to 1992. The county concluded that there was no evidence to substantiate Abraham's allegations.

On February 23, 1995, Lennander informed Schaffer that his eyes and nose were irritated, and that he had been experiencing headaches. Schaffer contacted various county officials to investigate possible ventilation problems in the print shop. On February 27, 1995, Abraham and Lennander complained that there were unpleasant odors in the print shop, and that these unpleasant odors were making them ill. Abraham told his department head, Carl Rundquist, that he had been ill for over five weeks and that he was experiencing severe headaches, dizziness, blurred vision, nausea, soreness in the glands around his mouth, itchy eyes, burning nose and pain in his lungs. Later that day, a maintenance worker told Schaffer and appellants that the vent in the print ship had been turned off since November 1994 because of asbestos abatement work.

On February 28, 1995, Abraham went to a hospital emergency room complaining of the above symptoms. His examining physician told him that overexposure to chemicals most likely caused the symptoms.

Appellants told Schaffer that they wanted to file a complaint about the poor air quality in the print shop under the Minnesota Occupational Safety and Health Act (MOSHA). Schaffer told them that if they did, the print shop could be shut down. On March 2, 1995, Abraham sent a letter to MOSHA reporting employee illnesses and the closed ventilation system.

On March 15, 1995, the ventilation system in the print shop was turned on to full capacity. Schaffer also ordered Lennander to dispose of chemicals that had been improperly stored, and to replace them with proper containers.

On March 22, 1995, an inspector from MOSHA arrived at the print shop to investigate appellants' complaint about the air quality. Before the inspector arrived, Abraham and Lennander were not aware that the inspection would occur. The inspector first met with Rundquist, Schaffer and Abraham, then examined the print shop and took air samples by Lennander's press. The inspector did not find any hazardous chemical levels in the print shop, but the county was cited for three violations unrelated to air quality.

After the inspection, Michael Fishman, another employee in the print shop, reported that he saw Lennander sprinkling liquid chemicals on the carpeting in the print shop at approximately 8:45 on the morning of the inspection. Fishman also reported that he saw Abraham open a container of hazardous chemicals and wave the container around saying, "Let's get some fumes going in here." Fishman asked Abraham what he was doing, and Abraham responded, "What are you going to do? Lie down and play dead for them?"

On the basis of Fishman's allegations, appellants were suspended on March 27, 1995, and notified on March 31, 1995 that their employment would be terminated sometime in April. On April 7, 1995, appellants exercised their rights to pre-discharge appeals to the department head, Robert Hanson. Appellants had union representation at their appeals, but neither presented any evidence in their defense other than mere denials. Hanson affirmed appellants' discharges, which became effective April 29, 1995. Appellants brought suit alleging that the county: (1) terminated them in retaliation for their MOSHA complaint in violation of the Whistleblower Act, Minn. Stat. § 181.932 (1996), and MOSHA, Minn. Stat. § 182.669 (1996); (2) retaliated against Abraham for claiming that Schaffer sexually harassed him in violation of the Minnesota Human Rights Act, Minn. Stat. § 363.03 (1996); and (3) willfully and maliciously published false and defamatory remarks about them.

The district court granted respondent's motion for summary judgment. Appellants challenge the grant of summary judgment on their Whistleblower Act and MOSHA claims. We remand with instructions. D E C I S I O N

On appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id.

Appellants contend that the county violated the Whistleblower Act and MOSHA by discharging them in retaliation for filing a complaint about air quality in the print shop. The county contends that appellants were discharged for releasing hazardous chemicals in the print shop immediately before the MOSHA inspection.

The three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) to evaluate discrimination claims is also used to evaluate retaliatory discharge claims. McGrath v. TCF Bank Savings, FSB, 502 N.W.2d 801 (Minn. App. 1993), modifie in part, 509 N.W.2d 365 (Minn. 1993).

The McDonnell Douglas analysis requires the plaintiff in a whistleblower case to establish a prima facie case that his discharge was motivated by an impermissible reason. The burden of production 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.

502 N.W.2d at 807 (citations omitted).

The county argues that appellants failed to establish a prima facie case of retaliation. To establish a prima facie case of retaliation appellants must show:

(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.

Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

The county concedes that Abraham established the first element of a prima facie case; Abraham filed a MOSHA complaint. But the county argues that Lennander only complained that he was sick and wondered if there might be an air quality problem. The county contends that because Lennander did not complain about any violation of laws that protect the general public interest, he did not engage in any statutorily protected conduct.

In Bohn v. Cedarbrook Eng'g Co., 422 N.W.2d 534, 536-37 (Minn. App. 1988), review denied (Minn. June 10 & 29, 1988), this court rejected the argument that MOSHA only protects employees who put their complaints in writing. Discussing Minn. Stat. § 182.654, subd. 9 (1986), this court noted that "the broad remedial purpose of [MOSHA] mandates liberal construction of its provisions, including the language `filed any complaint,'" and cited cases holding that an oral complaint to an employer is protected activity under the federal OSHA. Id. at 536-37.

The district court found that Lennander complained to his supervisor that he was feeling ill, and that he thought it was a result of the air quality in the print shop. The court also found that the complaint Abraham filed referred to Lennander's complaints. The court concluded that, under Bohn, Lennander participated in protected activity. We agree that Lennander's oral complaint to the county about air quality in the print shop is protected activity under MOSHA.

There is no dispute that appellants established the second element of a prima facie case; being discharged is an adverse employment action. The county contends that both appellants failed to establish a causal connection between their protected activity and their discharges.

The fact that the district court moved to the second and third steps of the McDonnell Douglas analysis implies that the court determined that appellants presented a prima facie case, which, in turn, implies that the court determined that there was a causal connection between appellants' protected conduct and their discharges. But the court did not expressly determine that there was a causal connection. Instead, when the court reached the point in its analysis where it was to determine whether there was a causal connection, the court determined that the county offered a legitimate non-retaliatory reason for discharging appellants and that there was no evidence that the proffered reason was pretextual. In doing so, the district court failed to explicitly apply the three-step McDonnell Douglas analysis. See Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986) (in employment discrimination cases brought under Minnesota Human Rights Act involving disparate treatment, district court must explicitly apply three-step McDonnell Douglas analysis).

The court appears to have concluded that the county discharged appellants for releasing chemicals in the print shop, not for filing a complaint about air quality in the print shop, and, therefore, there was no causal connection between appellants' complaint and their discharges. However, if there was no causal connection between the complaints and the discharges, appellants did not present a prima facie case, and there was no need to consider whether the county had a legitimate, non-retaliatory reason for discharging appellants. Because the district court did not apply the McDonnell Douglas analysis, we are uncertain about its reason for granting summary judgment.

Our uncertainty about the district court's reasoning affects our review because, at the third step of the McDonnell Douglas analysis,

the plaintiff has the burden of persuading the court by a preponderance of the evidence that the employer intentionally discriminated against her. The plaintiff may sustain this burden "either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."

Sigurdson, at 720 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981)) (citations omitted).

The district court concluded that because appellants' evidence failed to discredit Fishman's report that appellants released chemicals in the print shop, no material fact issue existed regarding the county's proffered reason for discharging appellants. In other words, the county's proffered explanation was worthy of credence, and the county had a legitimate, non-retaliatory reason for discharging appellants. However,

even if an employer has a legitimate reason for the discharge, a plaintiff may nevertheless prevail if an illegitimate reason "more likely than not" motivated the discharge decision.

McGrath v. TCF Bank Savings, FSB, 509 N.W.2d 365, 366 (Minn. 1993) (quoting Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988)).

Therefore, for purposes of the summary judgment motion, it was not sufficient for the district court to determine only that there was no fact issue regarding the credibility of the county's proffered reason for discharging appellants. It was also necessary for the court to determine there was no genuine fact issue regarding whether retaliation more likely than not motivated the county. If retaliation motivated the county, appellants may prevail even though the county also had a legitimate reason for the discharges. And, if there was a fact issue regarding a retaliatory motive for the discharges, summary judgment was improper.

The district court's memorandum does not demonstrate that the court considered whether there was a fact issue regarding whether retaliation motivated the county. The memorandum indicates that rather than determining whether there was a causal connection between appellants' MOSHA complaint and their discharges, the court determined only that the county had a credible, nonretaliatory reason for discharging appellants. Under the district court's analysis, the county could prevail because it had a legitimate reason for the discharges even though an illegitimate reason may also have motivated the discharges.

Because the district court's memorandum leaves us uncertain about the district court's reasoning, we remand and instruct the district court to explicitly apply the three-step McDonnell Douglas analysis. The district court may, in its discretion, take additional evidence.

Remanded with instructions.