James A. Pauly, Appellant, vs. Burlington Northern Santa Fe Railways, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-812

 

 

James A. Pauly,

Appellant,

 

vs.

 

Burlington Northern Santa Fe Railways,

Respondent.

 

 

Filed December 14, 2004

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. PI 02-014186

 

 

Fredric A. Bremseth, Thomas F. Handorff, Bremseth Law Firm, P.C., 810 East Lake Street, Wayzata, MN 55391 (for appellant)

 

Megan K. Ricke, Rodney A. Honkanen, JoAnn C. Toth, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)

 

 

 

            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the summary judgment granted to respondent on appellant's Federal Employers' Liability Act (FELA) and Minnesota Human Rights Act (MHRA) claims on the grounds that the district court erred by concluding that (1) he was not fraudulently induced into signing a FELA release-of-claims form, (2) his FELA claim was barred by the statute of limitations, and (3) he could not establish a prima facie case of discrimination under the MHRA because he was not qualified for the position from which he was discharged.  We affirm.

FACTS

            Appellant James A. Pauly began to work for the Northern Pacific Railroad, predecessor to respondent Burlington Northern Santa Fe Railway Company (BNSF), in 1969.  Pauly alleges that during his years with BNSF, he was exposed to a variety of loud noises.  In 1985, Pauly noticed that he was having difficulty hearing some voices.  As a result, he had his hearing checked, found that he had bilateral sensorineural hearing loss, and purchased hearing aids.   

            In 1993, Pauly went to see Ronald D. Hanson, M.D., an ear, nose, and throat specialist in St. Cloud.  After examining Pauly, Dr. Hanson wrote a letter which was copied to Pauly, stating that "[p]rior to attributing [Pauly's hearing difficulties] to noise-induced hearing loss alone, it would be important to rule out an acoustic neuroma which can present with this audiologic pattern."  Subsequent testing ruled out an acoustic neuroma as the cause of Pauly's hearing loss.  Pauly was informed of these results in a letter from Dr. Hanson, dated November 29, 1993.  Following this assessment, BNSF agreed to pay up to $750 of the cost of a hearing-aid evaluation and possible hearing aids.  Pauly was fitted with hearing aids on April 4, 1994, and has been dependent on them since. 

            In May 1996, Pauly submitted a claim to BNSF for payment for hearing-aid repair.  The claim was declined.  Pauly then requested a report form to file a claim for hearing loss with BNSF.  In October 1996, William H. Renney, BNSF general claims manager, sent Pauly a personal-injury report, the requested claim form, and a hearing-impairment questionnaire.  Portions of the first two forms were filled out by Renney.  Additionally, on the claim-report form, Renney attached a Post-It note to the section asking for the circumstances of the injury, stating, "In here write in during RR career, exposed to noise incurred hearing loss both ears."  The parties dispute the reason for this.  According to BNSF, Pauly requested assistance in filling out the forms, and Renney was simply obliging by inserting information disclosed to him by Pauly.  Pauly, on the other hand, suggests that Renney provided this information of his own accord to indicate how Pauly should respond to various questions. 

            On December 4, 1996, Pauly filed a hearing-loss claim with BNSF for hearing loss in both ears caused by railroad noise.  On the hearing-impairment questionnaire, Pauly indicated that he had been told by an audiologist in 1994 that he may have had a hearing problem that was "related to [his] work with the railroad." 

            Renney responded to this claim on December 16, stating, in part:

We have gone through all the documentation. . . . The type of loss you have is not loss generally associated with exposure to industrial noise, but rather loss due to aging and genetics, i.e., hearing loss a person is born with.  As such, we do not accept responsibility for much of your loss.  I am making an offer that is a bit higher than the average hearing loss claim settlement we are making with individuals.

                        Enclosed please find a Release of Claims form.  This is in the amount of $5,000.00.  This is the maximum we are willing to pay on your hearing loss claim.

 

On January 10, 1997, Pauly wrote Renney a letter, contending that two issues, payment for a "BNSF induced doctor's appointment" and for Pauly's hearing-aid repair, had not been addressed.  In response, on January 15, Renney sent Pauly a new release-of-claims form and increased the settlement offer to $6,000.  On April 11, Renney sent Pauly a follow-up letter stating that Pauly's case would be "closed" if the release was not returned within 30 days.  Pauly signed the release on April 23. 

This release provides in part:

1.         In consideration of $6,000.00, I, James A. Pauly, release and forever discharge [BNSF] from all claims, suits, demands, actions, damages, costs and expenses of any kind, known or unknown, which I have by reason of any occupational hearing loss, hearing impairment, tinnitus, or hearing disorders of any type, including any increased risk of further hearing disorder.

 

2.         I understand that the injuries and illnesses listed in paragraph (1) of this Release are or may be permanent.  I further understand that these injuries or illnesses may progress and that recovery therefrom is uncertain and indefinite.  It is my intention to release Releasees from any and all future consequences of said injuries or illnesses.

 

                        . . . .

 

6.         I understand this Release is the complete agreement between Releasees and me.  I make this Release without reliance upon any statement or representation by Releasees or its employees, except such representations as are set forth in this Release.

 

7.         I understand and agree that this Release is intended as a final settlement of all claims, known or unknown, involving the illnesses or injuries listed in paragraphs 1 and 2 above.

 

                        . . . .

 

9.         I understand that signing this Release involves significant legal implications.  I acknowledge that before signing this document I have read and understood it, or that I have obtained the advice of my attorney.

 

            Pauly met with an attorney, David Meyer, before signing this release.  Meyer has significant experience with FELA cases, including those involving hearing loss.  Pauly contends, however, that Meyer "did not answer any of [Pauly's] questions."  According to Pauly, he "spoke with Mr. Meyer on one occasion, did not retain Mr. Meyer or his firm, and there was no correspondence between [Pauly] and Mr. Meyer." 

            On November 8, 2000, BNSF posted a job bulletin advertising a "mechanical specialist" positionessentially a clerking job.  Under qualifications, the job bulletin noted that applicants needed to be "proficient typist[s]."  BNSF Labor Relations and Manpower Training Manager, George McCoy submitted an affidavit stating that proficient typist is a term of art for clerk postings indicating that the job "requir[es] typing skills of 35-40 words per minute."  At his deposition, Pauly stated that he saw the posting, but did not know what "proficient" meant and that he did not have any idea how fast he could type.

            Pauly applied for the position on November 17.  Due to seniority, Pauly was awarded the position on December 5.[1]  The next day, Pauly was given a typing test, which he failed, typing only ten words per minute.  As a result, Pauly was disqualified from the job a few days later and returned to a stockman position. 

BNSF maintains that Pauly was given the typing test because, during his probationary period, it was discovered that Pauly was an extremely slow typist.  But Pauly argues that he was required to take the test only after his supervisor became upset that Pauly had missed an incoming phone call because he did not hear the phone ring.[2]  Pauly asserts that he had performed similar clerking duties in a former position for BNSF, but had never been tested for typing skills or been disqualified based on those skills. 

            Pauly subsequently filed complaints with the Minnesota Department of Human Rights (MDHR) and the Equal Opportunity Employment Commission (EEOC).  Both the MDHR and the EEOC dismissed Pauly's claims.  On July 26, 2002, Pauly filed suit against BNSF.[3]  The district court entered summary judgment for BNSF on March 23, 2004.  This appeal follows.

D E C I S I O N

            Summary judgment is properly granted 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."[4]  Minn. R. Civ. P. 56.03.  On appeal from a summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The evidence is viewed in the light most favorable to the party against whom the motion was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

            Pauly first argues that the release of claims that he signed is invalid because it was induced by fraud.  The validity of releases under FELA "raises a federal question to be determined by federal rather than state law."  Dice v. Akron, Canton, & Youngstown R.R. Co., 342 U.S. 359, 361, 72 S. Ct. 312, 314 (1952).  FELA releases may be invalidated on the ground of fraud in the inducement.  Counts v. Burlington N. R.R. Co., 952 F.2d 1136, 1141 (9th Cir. 1991).  "[A] release of rights under [FELA] is void when the employee is induced to sign it by the deliberately false and material statements of the railroad's authorized representatives made to deceive the employee as to the contents of the release."  Dice, 342 U.S at 362, 72 S. Ct. at 314-15 (emphasis added).[5]  As recently discussed by the United States District Court for the District of Minnesota, "[a]n employer makes such a statement by presenting a general release as one that applies to a limited number of potential claims, or by presenting a release as something other than a release[.]"  Larson v. Burlington N. & Santa Fe Ry. Co., No. Civ. 01-527, 2004 WL 692259, *7 (D. Minn. Mar. 30, 2004) ("Larson II") (citations omitted).  A failure to explain FELA rights to an employee is a consideration in determining fraud, but does not in itself constitute fraud.  Counts, 952 F.2d at 1141.  The party attacking the release bears the burden of demonstrating its invalidity.  Callen v. Penn. R.R. Co., 332 U.S. 625, 630-31, 68 S. Ct. 296, 298 (1948). 

            In Larson II, the court considered claims similar to those presented here.  In that case, several former or current employees of BNSF signed releases without legal representation to settle claims resulting from work-related noise-induced hearing loss.[6]  2004 WL 692259, at *1.  The plaintiffs sought to set aside the releases, arguing that they had been fraudulently induced into signing them.[7]  Id. at *6-*12.  The court granted BNSF's motions for summary judgment, finding that even if the alleged misrepresentations did occur, they were not related to the contents of the releases.  Id. at *7, *9-*10, *12. 

[T]he alleged misrepresentations relate to the method used by BNSF to calculate the amount offered, but they do not relate to the contents of the release.  BNSF did not present the release . . . as something other than a release.  Nor did BNSF misrepresent the scope of the claims covered by the release.

 

Id. at *7.[8]   

            Here, Pauly suggests that Renney's letter of December 16, 1996, in which Renney opined that Pauly's hearing loss was genetic, rather than work-related, constituted a misrepresentation of material fact.  The alleged misrepresentation, however, pertains to the cause of Pauly's hearing loss, not to the contents of the release.  Accordingly, even assuming that the statement was false and material, it does not constitute fraud sufficient to void the release.

            Pauly further argues that the actions of Renney in partially filling out personal-injury and claims forms and in directing Pauly to fill in other sections in a particular manner constitute fraud, requiring that the release be voided.  Once again, such actions by Renney relate to the cause of Pauly's hearing impairment rather than the contents of the release.  Whatever else such actions may be, they do not constitute fraud sufficient to void the release.

            Both of the letters sent by Renney accompanying the release-of-claims forms sent to Pauly refer to the release as such.  The release itself explicitly states that Pauly is releasing BNSF from liability for all claims connected with his hearing loss. 

Notably, the release also contains an anti-reliance clause as well as a clause confirming that before signing the release, Pauly either read and understood the document or consulted with an attorney.  Pauly disputes the relevance of the anti-reliance clause, contending that the Larson court found that

an anti-release clause in a release stating that the release was entered into by plaintiff "without reliance upon any statement or representation [by the railroad] or its employees, except such representations as are set forth in the release" would defeat the general policy of the FELA, as a matter of law.

 

Larson v. Burlington N. & Santa Fe Ry. Co., No. Civ. 01-527, 2002 WL 47005, *14 (D. Minn. Jan. 10, 2002) ("Larson I") (variation in original).  But this argument misstates the court's position in Larson I.  The court actually concluded that

it would defeat the general policy of the FELA to apply a rule that, as a matter of law, a written anti-reliance clause in a FELA release automatically precludes a subsequent challenge to the validity of a release based upon extra-contractual misrepresentations.  The Court does not, however, hold that an anti-reliance clause in a FELA release is irrelevant to the inquiry of whether there was reasonable reliance on the alleged misrepresentations.  Such a clause may be considered by the finder of fact along with the other circumstances of the settlement negotiations.

 

Larson I, 2002 WL 47005, at *14 (emphasis added).  The placement of the phrase "as a matter of law" is vital.  The court did not conclude, as implied by Pauly, that evidence of an anti-reliance clause should not be considered, but that evidence of such a clause should not automatically preclude challenges to the validity of a release.  In fact, in Larson II, the same court considered the presence of anti-reliance clauses in granting summary judgment for BNSF.[9]  2004 WL 692259, at *6. *8-*9, *11.

            It is also significant that Pauly actually consulted an attorney with experience handling FELA cases, including hearing-loss claims, prior to signing the release.  He contends that the attorney did not answer his questions and that he still had reservations about signing the release.  If this is the case, however, Pauly should have sought out additional legal advice.  The fact that he spoke with an attorney establishes that Pauly knew he could seek out such advice regarding the release.  The responsibility for ensuring that all of his questions were adequately addressed by counsel lies with Pauly.

            Thus, on these facts, no reasonable finder of fact could conclude that BNSF made "deliberately false and material statements . . . to deceive [Pauly] as to the contents of the release."  Dice, 342 U.S at 362, 72 S. Ct. at 314-15.  Accordingly, the district court did not err in holding that Pauly was not fraudulently induced into signing the release-of-claims form.

II.

            Where summary judgment is granted on statute-of-limitations grounds, a reviewing court must "determine whether (1) the statute of limitations has run and (2) whether there exists a genuine issue of material fact as to when the plaintiff's cause of action accrued."  Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001).  The initial burden is on the defense to show that the statute of limitations has run.  Id.  If the defendant meets this requirement, the burden shifts to the plaintiff to establish an exception to the limitations period.  Id.

A.        Accrual of Injury

FELA provides that "[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."  45 U.S.C. § 56 (2000).  Pauly commenced this action on July 26, 2002; thus his claim will be barred by the statute of limitations if the action accrued before July 26, 1999.  The accrual date of a FELA claim is determined by the "discovery rule."  Id.  Under this rule, "the three-year statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury that is the basis of the claim."  Lecy v. Burlington N. & Santa Fe Ry. Co., 663 N.W.2d 589, 592 (Minn. App. 2003) (emphasis added) (citing United States v. Kubrick, 444 U.S. 111, 122, 100 S. Ct. 352, 359 (1979)).

When the evidence raises different inferences as to when a plaintiff knew or should have known of his injury and its cause, there are questions of fact for a jury to determine.  Rogers v. Illinois Cent. R.R., 833 S.W.2d 426, 428 (Mo. Ct. App. 1992).  Pauly has admitted that he began to notice that he was having trouble hearing children's voices in late 1985.  Furthermore, Pauly concedes that he has been "hearing aid dependent" since 1994.  Thus, the factual evidence does not raise different material inferences as to when he knew of his injuries.

But Pauly argues that he did not have knowledge of the cause of his hearing loss until shortly before he filed the complaint.  A medical diagnosis is not an exclusive prerequisite to the commencement of the limitations period.  Fletcher v. Union Pac. R.R. Co., 621 F.2d 902, 905-06 (8th Cir. 1980), cert. denied, 449 U.S. 1110 (1981).  The period may, and often does, begin to run before any diagnosis.  Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092, 1096 (7th Cir. 1990).  The law imposes requirement of diligence on the plaintiff in a FELA case to investigate the cause of his injury.  Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990) (holding that once appellant believed that he had hearing loss and believed that the injury was caused by his employer, he had a duty to investigate the situation to confirm or deny his belief).  "When a plaintiff may be charged with awareness that his injury is connected to some cause should depend on factors including how many possible causes exist and whether medical advice suggests an erroneous causal connection or otherwise lays to rest a plaintiff's suspicion regarding what caused his injury."  DuBose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1031 (5th Cir.), cert. denied, 469 U.S. 854 (1984).  This court must therefore determine whether Pauly was "armed with sufficient facts, more than three years before filing this action, with which reasonable persons could have protected themselves by seeking advice in the medical and legal community."  Bechtholdt v. Union Pac. R.R. Co., 722 F. Supp. 704, 707 (D. Wyo. 1989).

Pauly contends that "[a]t no time did any medical care provider mention to [Pauly] that his hearing loss was related to his employment."  But the record contains evidence to the contrary; Pauly was made aware in 1993 of the possibility that his hearing loss was work-related.  After examining Pauly, Dr. Hanson wrote a letter opining that Pauly's hearing impairment was noise-induced, but suggesting that before attributing this impairment "to noise-induced hearing loss alone, it would be important to rule out an acoustic neuroma."  (emphasis added).  Subsequent tests ruled out an acoustic neuroma as a cause of Pauly's hearing loss.  In fact, while arguing that medical records do not support Renney's contention that Pauly's hearing loss was genetic, Pauly states in his brief that "in 1993 . . . Dr. Hanson stated that [Pauly's] hearing loss was noise-induced, not genetic.  In fact, medical tests ruled out acoustic neuroma and no further testing was suggested."  (Emphasis added.)  "Statements of facts made in briefs are to be taken as binding admissions."  Wehner v. Wehner, 374 N.W.2d 569, 571 (Minn. App. 1985).  Pauly has also noted that during his time as a yard clerk for BNSF, he was exposed to "train horns, railcar coupling, high-pitched brakes, and other deafening noises."  Thus, it is reasonable to expect Pauly, after being confronted with a diagnosis of noise-induced hearing loss, to investigate whether the cause was work-related. 

Additionally, Pauly filed a personal-injury report in 1996 indicating that his hearing loss was work-related.  Even assuming, as Pauly contends, that this information was provided by Renney, it put Pauly on notice that his hearing loss may have been caused by his job.  Moreover, in 1996, Pauly also filed a hearing-impairment questionnaire indicating that, two years earlier, an audiologist had told him that he may have had a hearing problem related to his work. 

It is thus apparent that well before July 26, 1999, Pauly had sufficient facts suggesting that his hearing problems were work-related to impute to him knowledge of the cause of his injuries.  Accordingly, the district court did not err in finding that his FELA claim was barred by the statute of limitations.

B.        Tolling

Pauly next contends that the statute of limitations should be tolled due to BNSF's alleged misrepresentations.  The courts have distinguished between two related tolling doctrines applicable to cases involving the discovery rule: equitable estoppel and equitable tolling.  See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990) (discussing the distinctions between the two doctrines), cert. denied, 501 U.S. 1261 (1991).  Equitable estoppel requires some sort of wrongdoing or active misrepresentation on the part of the defendant, such as fraud or deception.  See Mitchell v. Donchin, 286 F.3d 447, 450 (7th Cir. 2002).

The four cases cited by Pauly in support of estoppel are inapposite.  Both Louisville & Nashville R.R. Co. v. Disspain, 275 F.2d 25 (6th Cir. 1960), and Mumpower v. S. Ry. Co., 270 F. Supp. 318 (W.D. Va. 1967), involve situations in which the company's doctor told the plaintiff that he had suffered no significant injuries.  In Tillery v. S. Ry. Co., 348 F. Supp. 9 (E.D. Tenn. 1971), the plaintiff was told by the railway's attorney that his sole remedy was under a state statute.[10]  Finally, in Fravel v. Pennsylvania R.R. Co., 104 F. Supp. 84 (D. Md. 1952), the defendant told the plaintiff (1) that nothing was wrong with him (2) that he would suffer no after-effects of his accident, and (3) that if any injuries did surface later, the defendant would compensate him.[11] 

Here, no such misrepresentations were made by BNSF.  In his letter of December 16, 1996, Renney suggested that Pauly's hearing loss was genetic.  But Pauly also had other evidence suggesting that his injuries were noise-induced.  Renney's alleged misrepresentations do not rise to the level of those in the cases cited by Pauly.  As a result, equitable estoppel is not warranted.

Equitable tolling does not require wrongdoing on the part of the defendant; rather, the plaintiff must show that he "exercised continuous diligence and brought the suit as soon as it was practicable."  Chapple v. Nat'l Starch & Chem. Co. & Oil, 178 F.3d 501, 506 (7th Cir. 1999).  With respect to equitable tolling, "an essential element is that the plaintiff have exercised due diligence; in other words that he have acted reasonably."  Shropshear v. Corp. Counsel of the City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001).  As discussed above, plaintiff did not exercise due diligence in investigating and bringing his claim.  Thus, equitable tolling is inappropriate.

C.        Aggravation of Injury

Pauly further argues that his hearing has been progressively deteriorating and that his future claims for his worsening condition are not barred by the statute of limitations.  This is incorrect; an injury that "had not reached its maximum severity . . . but continued to progress" is subject to the same diligence requirement and statute of limitations as the original injury.  Fries, 909 F.2d at 1096.

[A]n aggravation of an original injury that is claimed to have been caused by an employer's negligence is not a severable action under the [FELA]. . . . [T]he fact that an injury "has not reached its maximum severity . . . but continues to progress" does not relieve the plaintiff of the duty to use reasonable diligence to discover the original injury and its cause.  Any "aggravation" of the original negligently caused injury would only affect the plaintiff's damages, and would not require a separate determination of liability or causation.  Furthermore, a rule permitting severability of a claim that an original, continuing injury has been aggravated would contravene the purpose of the discovery rule . . . requiring Federal Employer's Liability Act plaintiffs to use reasonable diligence to discover the cause of an injury once the injury manifests itself.

 

Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 815 (6th Cir. 1996) (emphasis added) (citation omitted), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000).  Thus, Pauly is barred by the statute of limitations from bringing a claim for the progression or aggravation of his injury.

III.

A.        MHRA Claim

            Pauly next argues that the district court erred in finding that Pauly could not establish a prima facie case of discrimination under the MHRA.  This court must determine whether there are genuine issues of material fact and whether the district court erred as a matter of law.  French, 460 N.W.2d at 4.  The MHRA provides, in part, that it is an unfair employment practice for an employer to discharge or otherwise discriminate against an employee because of that employee's disability.  Minn. Stat. § 363 A. 08, subd. 2(b)-(c) (Supp. 2003).[12]  Plaintiffs may prove discriminatory intent either by direct evidence or indirectly using the three-part McDonnell Douglas test.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

            As applied to this case, the test requires that a plaintiff first make out a prima facie case of discrimination, showing that he "(1) is a member of [a] protected class; (2) was qualified for the position from which [he] was discharged; and (3) was replaced by a non-member of the protected class."  Hoover, 632 N.W.2d at 542 (quoting Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 711 (Minn. 1992)).  If the plaintiff is able to make out a prima facie case, the burden of production shifts to the defendant to produce admissible evidence sufficient to allow a trier of fact to conclude that there was a legitimate, nondiscriminatory reason for the discharge.  Id.  If a legitimate, nondiscriminatory reason is provided, the burden shifts to the plaintiff to prove that the proffered reason is pretext for discrimination.  Id.

            The district court found that Pauly could not establish a prima facie claim of discrimination because he was not qualified for the position from which he was discharged.  Pauly contends that the court erred in coming to this conclusion.

            To establish that he is qualified for a position, a plaintiff need only establish that he met the "minimum objective qualifications for the job."  Id. at 544.  The job bulletin for the position in question stated that applicants needed to be "proficient typist[s]."  BNSF submitted an affidavit indicating that "proficient typist" is a term of art indicating that typing skills of 35-40 words per minute are required.  In his brief, Pauly notes that the job bulletin does not define "proficient typist," but he does not challenge the contention that it requires 35-40 words per minute or that 10 words per minute is not "proficient."  Instead, he argues that the typing requirement was pretext.  But the issue of pretext is not even reached until a prima facie case has been established.  Even viewing the evidence in the light most favorable to Pauly, there is no genuine issue of material fact regarding whether ten words per minute meets the minimum objective requirement of proficiency in typing.  Accordingly, the court did not err in finding that Pauly was not qualified and in granting summary judgment for BNSF on the MHRA claim. 

            Affirmed.

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

[1] On December 7, BNSF issued a "correction" to the job award, noting that Pauly had been awarded the job "Pending Typing Test." 

[2] During his deposition, Pauly testified that he missed the phone call at 9:00 a.m.  He first stated that the typing test was administered at 11:00 a.m.; he later testified that he took it at noon or 1:00 p.m.

[3] BNSF removed the case to the United States District Court, which remanded the case to the state court.

[4] Pauly argues that the standard for granting summary judgment in favor of an employer is stricter under FELA and that the case must go to the jury if there is "any evidenceeven circumstantialto support an inference that employer negligence might have caused an injury."  But Pauly's argument, as well as the cases he cites, relate to the issue of causation of injury.  Here, the issues are the validity of the release and the accrual date of the statute of limitations.  Hence, the cases are inapposite.

[5] Pauly's reliance on Dice is unfounded.  In Dice, the plaintiff signed a release of claims after having been told by a representative of the railroad that it was simply a receipt for back wages.  342 U.S. at 360, 364, 72 S. Ct. at 313-14, 315.  Such misrepresentation regarding the content of the release is not present here.

[6] The plaintiffs sought class certification, but this was denied by the court.  Larson II, 2004 WL 692259, at *5.

[7] The plaintiffs alleged that they were misled regarding the value of their claims.  Id. at *6, *8, *10, *12.  Additionally, two of the plaintiffs testified that they were told that they did not need to retain attorneys, id. at *6, *8, one testified that he was told that he could retain an attorney, but that the settlement offer would not change, id. at *12, and the fourth testified that he was told that the claim value was determined via a formula that applied regardless of whether or not he was represented by an attorney, id. at *10.

[8]This language is drawn from the court's decision as to one of the plaintiffs, but the court's reasoning and language is similar for the remaining plaintiffs.  See id. at *9-*10, *12 (applying similar reasoning to other plaintiffs).

[9] Larson I involved rule 12 motions rather than motions for summary judgment.

[10] The court held that the statute began to run when the plaintiff consulted his own attorney.  Tillery, 348 F. Supp. at 11.

[11]A survey of the law suggests that the FELA statute of limitations generally may be tolled where the defendant has made misrepresentations (1) regarding the statute of limitations, see, e.g., Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 79 S. Ct. 760 (1959) (holding that defendant was estopped from invoking the three-year FELA statute of limitations where it had told the plaintiff that he had seven years in which to file suit), or the defendant's intent to rely upon it, see, e.g., Fravel, 104 F. Supp. 84 (holding that the FELA statute of limitations was tolled where defendant told plaintiff, among other things, that if plaintiff's injuries had lasting effects, defendant would compensate him and, if the parties could not agree on damages, plaintiff could file suit at any time), or (2) regarding the extent of the plaintiff's injuries, see, e.g., Mumpower, 270 F. Supp. 318 (tolling the FELA statute of limitations where defendant's doctor told plaintiff that he had suffered no significant injuries and should return to work). 

[12]Minn. Stat. § 363 A. 08, subd. 2(b)-(c), was previously numbered Minn. Stat. § 363.03, subd. 1(2)(b)-(c).