Dennis L. Wroolie, Appellant, vs. Brainerd Regional Human Services Center, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-97-2343

Dennis L. Wroolie,
Appellant,

vs.

Brainerd Regional Human Services Center,
Respondent.

Filed July 14, 1998
Affirmed
Crippen, Judge

Crow Wing County District Court
File No. C99737

Clayton D. Halunen, Talarico & Halunen, Ltd., 313 North Central Avenue, Duluth, MN 55807 (for appellant)

Hubert H. Humphrey III, Attorney General, Gary R. Cunningham, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Foley, Judge.*

*Retired judge of the Minnesota Court of Appeals, serving 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

CRIPPEN, Judge

Appellant Dennis Wroolie challenges the trial court's summary judgment dismissing his employment-related claims, which include (a) violation of the whistleblower statute; (b) negligent and intentional infliction of emotional distress; and (c) negligent retention and supervision. We affirm.

FACTS

In 1991, respondent Brainerd Regional Human Services Center employed appellant as an auto mechanic. His duties included inspecting and certifying respondent's commercial trucks. Appellant presented substantial evidence that shortly after he began working for respondent, he was subjected to a hostile work environment, with incidents often occurring on a daily basis.

Appellant first voiced concerns about the safety of one of respondent's trucks in 1992. In October 1995, appellant sent respondent a letter notifying it of his whistleblower concerns. Two days later, appellant injured his back while using a jack he claims his supervisor ordered him to use although knowing it would cause an injury. Due to a lifting restriction, on his return to work, appellant was placed in a "work- hardening" position wrapping cookies in the food service. After working in this position for less than one day, appellant resigned.

Appellant subsequently brought this action and in his deposition identified his back injury and the work-hardening position as the specific instances of retaliatory treatment. The trial court granted summary judgment for respondent, dismissing all of appellant's claims.

D E C I S I O N

Viewing the evidence in a light most favorable to the party against whom judgment was granted, we are to determine whether any issues of material fact remain and whether either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). We need not defer to a trial court's decision on a pure question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. Whistleblower Claim

Under the whistleblower statute an employer is prohibited from discriminating against an employee because the employee, "in good faith, reports a violation or suspected violation of any federal or state law or rule." Minn. Stat. § 181.932, subd. 1(a) (1996). To establish a prima facie case of retaliation, the employee must show statutorily protected conduct by the employee, adverse employment action by the employer, and a causal connection between the two. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

Appellant points to three forms of retaliation: (1) the jack incident; (2) the work-hardening position; and (3) ongoing harassment. In regard to the first two, appellant has failed to provide sufficient evidence showing that the employer's conduct was a wrongful, "adverse" action. As to the third, although appellant has produced ample evidence of ongoing harassment, the activity began before his whistleblowing and he has failed to tie this activity to his complaining about the condition of trucks. In fact, the only instances of retaliation that appellant says are related directly to whistleblowing are the back-injury incident and the work-hardening position.

2. Other Claims

Appellant also raised claims of negligent and intentional infliction of emotional distress, and negligent retention and supervision. Because the record shows that appellant only missed work, sought medical care and filed a workers' compensation claim because of his back injury, and because he has asserted symptoms of emotional distress that are not confirmed by medical evidence, the trial court did not err in dismissing these claims. Hubbard, 330 N.W.2d at 440 (finding insufficient evidence of "injury" to support claim of intentional infliction of emotional distress where medical evidence as to injuries was "conspicuously absent from the record" and aggrieved employee never missed work, never filed a claim for workers' compensation, and never saw a doctor until four years after the harassment began); Soucek v. Banham, 503 N.W.2d 153, 164 (Minn. App. 1993) (to prevail on a claim of negligent infliction of emotional distress, physical manifestations are required); Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-443 (Minn. App. 1996) (without a showing of personal injury, negligent supervision and retention claims fail as a matter of law); see also Mandy v. Minnesota Mining & Mfg., 940 F. Supp. 1463, 1471 (D. Minn. 1996) (noting an exception in Minnesota to the personal injury requirement for negligent supervision and retention claims involving supervision and retention of a sexual harasser).

Because we conclude that appellant's claims fail on the merits, we find it unnecessary to decide the immunity and workers' compensation issues raised by respondent.

Affirmed.