Billy Sledge, Appellant, vs. Minneapolis Public Housing Authority, Respondent.

Billy Sledge, Appellant, vs. Minneapolis Public Housing Authority, Respondent. A04-2479, Court of Appeals Unpublished, February 28, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2479

 

Billy Sledge,
Appellant,

vs.

Minneapolis Public Housing Authority,
Respondent.

 

Filed February 28, 2006

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. EM-03-15179

 

Billy Sledge, 3821 Russell Avenue North, Minneapolis, MN  55412 (pro se appellant)

 

Kenneth V. Parsons Minneapolis Public Housing Authority, 1001 Washington Avenue North, Minneapolis, MN  55401 (for respondent)

 

Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

After being fired by respondent Minneapolis Public Housing Authority (MPHA) for refusing to submit to a drug test, appellant Billy Sledge brought an action against MPHA, alleging defamation and violations of Minn. Stat. § 181.950-.957 (2000) (Minnesota Drug and Alcohol Testing in the Workplace law (MDATW)) and Minn. Stat. § 181.931-.937 (2000) (Whistleblower law.)  In this pro se appeal from summary judgment dismissing his claims, Sledge argues that he submitted sufficient evidence to make a prima facie case on his MDATW and Whistleblower claims.  Sledge also argues that the district court erred or abused its discretion by denying his request to submit deposition testimony on the day of the hearing.  We affirm.

FACTS

            On May 15, 2002, Sledge, an MPHA probationary employee working as a service maintenance specialist, attended a mandatory maintenance class.  Before the class began, Joyce Farley, Sledge's immediate supervisor, noticed that Sledge was not wearing his uniform shirt and was wearing an unauthorized non-MPHA hat.

            The first instructor was MPHA Human Resources Training/Development Coordinator Mary Ostroum.  After handing out an assignment, Ostroum walked around the class observing class members' progress.  Ostroum noticed that Sledge was not doing the assignment and was eating candy, drinking a beverage from a can, and wiping his brow and the front of his face with a paper towel.  Ostroum stood near Sledge and repeatedly asked if he needed a pen.  Sledge ignored Ostroum and continued eating, drinking, and wiping his face, which had sweat on it.  Ostroum stood to Sledge's right, reached over and shook his right arm, and asked if he was okay.  Sledge turned very slowly and looked toward his left but said nothing and continued eating, drinking, and wiping his face.

Ostroum was concerned about Sledge, so she had another supervisor, Jim Mulhern, come into the room to observe Sledge.  Mulhern observed the class for about ten minutes.  During that time, Sledge sat in his chair, not doing anything.  Ostroum testified that Sledge's behavior when Mulhern was in the classroom was strikingly different from his earlier behavior.  Mulhern advised Ostroum to call Judy Johnson, a high-level supervisor.  Ostroum called Johnson and told her that she was concerned about Sledge's behavior.

Later that morning, Johnson and Laurie Aylward, another MPHA supervisor, went to the class to talk with Sledge.  Both Johnson and Aylward were familiar with Sledge.  At Johnson's request, Sledge went to her office to talk to her and Aylward.  Johnson observed that Sledge was sweating and had his hat on backwards.  Aylward testified that Sledge did not look very good and was "somewhat puffy" around his eyes.

Johnson testified that Sledge appeared to be very upset and angry with Ostroum.  When Johnson asked Sledge what had happened, his only response was that it was about the pen.  Sledge did not respond when Johnson asked if he was okay.  Sledge repeatedly said that Ostroum was hassling him over a pen and that Ostroum was a problem.

Near the end of the discussion, Johnson requested that Sledge submit to a drug-and-alcohol test.  Johnson testified that she made the request because of Ostroum's and Mulhern's descriptions of Sledge's disruptive behavior during class and because he was very agitated during the discussion with her and Aylward, in contrast to his usual easygoing manner.  Johnson also testified that Sledge's responses to her questions were not coherent and did not make a lot of sense.

Johnson read to Sledge portions of the MPHA Drug and Alcohol Testing Policy, which is incorporated into MPHA's Work Rules and Policies, and gave him a copy.  Johnson again asked Sledge if he would submit to a drug-and-alcohol test.  Johnson also informed Sledge about the consequences of a positive test result and that refusal to submit to a test could result in termination.  Sledge responded very angrily and said that he wanted Ostroum to take the drug test.  Sledge asked if he could call a union representative, and Johnson said that he could.  Sledge left the room, and Johnson assumed that he had gone to call a union representative.

A short time later, Johnson heard Carol Kubic, MPHA's Director of Legal Services and the second class instructor, repeatedly ask Sledge to leave the classroom because he was disrupting the class.  Kubic testified that Sledge burst into the classroom without acknowledging her presence and immediately began talking to the class.  Kubic described Sledge as appearing angry, upset, extremely agitated, and speaking very rapidly.  Kubic recalled Sledge referring to a female employee as a "chick" and saying that he wanted everyone in the room to be a witness to the fact that he had been asked to take a drug-and-alcohol test and that he was not on drugs.  Kubic testified that Sledge made no eye contact with her and totally ignored her presence.  Sledge ignored Kubic's repeated requests to leave the room but, after about a minute, stopped talking and left the room on his own.  When Kubic saw Sledge leaving the classroom earlier with Ostroum to meet with Johnson and Aylward, Sledge appeared to Kubic to be very lethargic and lacking in energy.

MPHA allowed Sledge time to contact the union and waited for a union representative, Al Champagne, to arrive.  Johnson, Aylward, and Farley met with Sledge and Champagne.  Johnson asked Sledge to sign an informed-consent form to submit to a drug-and-alcohol test.  Sledge refused and left the room.  Champagne went to talk to Sledge, brought him back, and said that Sledge would submit to the test.  Johnson testified that when she asked Sledge for his social-security number, which is required on the informed-consent form, and if he was on any medication that might affect the test, Sledge did not answer and just stared or looked through her.  Sledge signed the informed-consent form.

            Johnson told Sledge that he had to go to the Park Nicollet Clinic for the test.  Sledge did not show up at the clinic.  Johnson later received a call from Sledge, saying that he had gone home because he had suddenly become ill and that he would submit to a drug test the next day.  Sledge called in sick the next day.  On May 17, 2002, MPHA Executive Director Cora McCorvey wrote a letter terminating Sledge's employment.

Sledge brought this action against MPHA, alleging defamation and violations of the MDATW and the Whistleblower law.  MPHA moved for summary judgment on all claims.  At the summary-judgment hearing on September 29, 2004, Sledge, whose counsel had withdrawn on September 7, 2004, requested a continuance to retain substitute counsel.  The district court continued the hearing until October 11, 2004.  At the October 11 hearing, the district court denied Sledge's request for another continuance to allow him additional time to retain counsel and his request to submit evidence not previously filed with the court.

The district court granted MPHA's summary-judgment motion, and judgment was entered accordingly.  This appeal followed.

D E C I S I O N

I.

            "Pro se litigants are generally held to the same standards as attorneys."  Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987).  "While some latitude and consideration is provided by all courts to persons appearing pro se, we cannot permit bending of all rules and requirements or cause disruption of courts' trial schedules."  Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983).

            Sledge argues that the district court erred by refusing to accept depositions and exhibits that he attempted to submit at the end of the October 11, 2004 hearing.  At the September 29, 2004 hearing, the district court stated:

I was thinking about giving you one more week to get an attorney and to file an answer to this summary judgment motion.

 

            It's the written papers that I rely upon, and you need to get something in . . . writing that covers your position on this particular motion.  I don't want to have to try to address what your position would be on these issues concerning a summary judgment motion.  That's not my job.  I have to remain neutral. . . . 

 

            . . . .

 

. . . I'm going to give you a week from today's date is the 6th.  I'm going to give you until the 9th, which is a Saturday.  That's ten days and actually you've got to have something in here by the first thing on Monday morning [October 11th].

 

            . . . .

 

            And or represent yourself and be prepared to respond to that summary judgment motion.

           

            These comments indicate that the district court explained to Sledge that he needed to state his position in writing and that the court would accept written materials from Sledge at the October 11 hearing.  The district court did accept Sledge's affidavit and a document titled "Oppose Summary Judgment Base on Facts Depositions Exhibits" at the October 11 hearing.  Minn. R. Gen. Pract. 115.03(d)(2), which governs dispositive motions, expressly requires a party opposing summary judgment to provide a memorandum of law that includes a statement identifying any "documents (such as depositions or excerpts thereof, pleadings, exhibits, admissions, interrogatory answers, and affidavits)" that are not identified by the moving party.  The documents that the district court accepted from Sledge at the October 11 hearing did not identify the depositions and exhibits that he attempted to submit at the end of the hearing.  Accepting the depositions and exhibits would have resulted in further delaying the case and, at the September 29 hearing, the district court stated that "we have a Supreme Court mandate to make sure these cases are heard within a year, and it's already over a year since the date of filing of September 12, 2003."  We find no authority indicating that, under these circumstances, the district court erred by refusing to accept the documents.

II.

            On appeal from a grant of summary judgment, this court applies the de novo standard of review to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).  We must view the evidence in the light most favorable to the party against whom judgment was granted.  Id.  But "the party resisting summary judgment must do more than rest on mere averments."  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue of material fact does not exist when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.  Id. at 69.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  "[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial."  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994). 

            The MDATW requires that an employer's drug-and-alcohol-testing policy contain specified information, including the circumstances under which drug or alcohol testing may be requested or required.  Minn. Stat. § 181.952, subd. 1 (2000).  MPHA's drug-and-alcohol-testing policy states:

            The Employer may request or require an employee to undergo drug and alcohol testing if the Employer or any supervisor of the employee has a reasonable suspicion related to the performance of the job that the employee:

                        A.  Is under the influence of drugs or alcohol while the employee is working or while the employee is on the Employer's premises . . . .

 

Under the MDATW, "[a]n employer may not request or require an employee or job applicant to undergo drug and alcohol testing on an arbitrary and capricious basis."  Minn. Stat. § 181.951, subd. 1(c) (2000).  An employer must have a reasonable suspicion that an employee is under the influence of drugs or alcohol before the employer may request that the employee take a test.  Minn. Stat. § 181.951, subd. 5(1) (2000).  "€›Reasonable suspicion' means a basis for forming a belief based on specific facts and rational inferences drawn from those facts."  Minn. Stat. § 181.950, subd. 12 (2000).  A decision is arbitrary and capricious "only where the decision lacks any rational basis."  Kise v. Prod. Design & Eng'g, Inc., 453 N.W.2d 561, 564 (Minn. App. 1990).

Sledge argues that MPHA's request that he "undergo drug testing was not based upon specific and rational facts nor inferences therefrom" and was not based upon reasonable suspicion.  Sledge contends that Ostroum was acting like she was under the influence, harassed him about a pen, and committed assault and battery against him by jabbing and poking him while standing over him, talking in a hostile tone.  But Sledge's argument is based only on his mere averments about Ostroum.  Sledge did not submit substantial evidence about Ostroum's behavior to establish a genuine fact issue for trial.

Furthermore, it was not just Ostroum's observations that resulted in the test request.  Johnson observed that Sledge was sweating and had his hat on backwards.  Aylward testified that Sledge did not look very good and was "somewhat puffy" around his eyes.  Johnson described Sledge as very agitated during the discussion with her and Aylward, in contrast to the very easygoing manner known to Johnson, and also testified that Sledge's responses to her questions were not coherent and did not make a lot of sense.  Also, when Johnson gave Sledge the opportunity to explain what had happened between him and Ostroum, his only response was that it was about "the pen."  Sledge repeatedly said that Ostroum was hassling him over a pen and also said that she was a problem.

There was also evidence of Sledge's behavior after the initial test request when he disrupted the class while Kubic was teaching.  Kubic described Sledge as appearing angry, upset, extremely agitated, and speaking very rapidly.  Sledge ignored Kubic's repeated requests to leave the room but, after about a minute, stopped talking and left the room on his own.  When Kubic had seen Sledge in the classroom earlier and when he left with Ostroum to meet with Johnson and Aylward, Sledge had appeared to Kubic to be very lethargic and lacking in energy.

Even if Ostroum's observations of Sledge are completely disregarded, the observations of Johnson, Aylward, and Kubic were sufficient to support a reasonable suspicion that Sledge was under the influence of drugs or alcohol.  See State v. Carver, 577 N.W.2d 245, 248 (Minn. App. 1998) (a single objective indication of intoxication can be sufficient to establish probable cause to believe a person is under the influence); Franko v. Comm'r of Pub. Safety, 432 N.W.2d 469, 472 (Minn. App. 1988) (facts indicating intoxication included incoherent and rambling speech and "spaced out" appearance); Holtz v. Comm'r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983) (an uncooperative attitude is an indicia of intoxication).

Sledge argues that before requesting that he submit to a drug-and-alcohol test, MPHA should have interviewed class members who would have supported his claim that Ostroum was harassing him.  But neither MDATW nor MPHA's drug-and-alcohol-testing policy contain such a requirement.  Sledge also argues that MPHA should have also requested that Ostroum submit to a drug-and-alcohol test and that the fact that only Sledge was requested to submit to a drug-and-alcohol test was the result of racial discrimination.  No evidence in the record supports Sledge's racial-discrimination claim.

The record taken as a whole could not lead a rational trier of fact to find for Sledge.  The district court properly granted summary judgment on Sledge's claim under the MDATW.

III.

            Minnesota's Whistleblower law provides:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

            (a) the employee ... in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official[.] 

 

Minn. Stat. § 181.932, subd. 1(a) (2000).

            Minnesota courts apply the McDonnell Douglas analysis to claims of retaliatory discharge under the Whistleblower law.  Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).  The employee has the initial burden to establish a prima facie case of retaliatory discharge.  Cokley, 623 N.W.2d at 630.  An element of a prima facie case of retaliatory discharge is that the employee engaged in statutorily protected conduct.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

            Sledge argues that he engaged in statutorily protected conduct because he reported an illegal activity, specifically that Ostroum committed assault and battery against him.  But the conduct reported to Johnson by Sledge did not describe any illegal conduct.  Because Sledge failed to establish that he engaged in statutorily protected conduct, the district court properly granted summary judgment for MPHA on Sledge's whistleblower claim.

            In his statement of the case, Sledge raised the issues of whether the district court should have granted him a further continuance to obtain counsel and whether the district court erred in granting summary judgment on the defamation claim.   But Sledge did not address those issues in his brief.  "An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection."  State, Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 555 N.W.2d 908, 915 (Minn. App. 1996).  Because no prejudicial error is apparent, we will not address those issues.

            Affirmed.