Kerry French, Appellant, vs. Brookdale Motor Sales, Inc. d/b/a Luther Brookdale Buick Pontiac GMC, Respondent.

Kerry French, Appellant, vs. Brookdale Motor Sales, Inc. d/b/a Luther Brookdale Buick Pontiac GMC, Respondent. A06-2252, Court of Appeals Unpublished Decision, December 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2252

 

Kerry French,
Appellant,
 
vs.
 
Brookdale Motor Sales, Inc.
d/b/a Luther Brookdale Buick Pontiac GMC,
Respondent.

 

Filed December 11, 2007

Affirmed Hudson, Judge

 

Hennepin County District Court

File No. 27-CV-05-016501

 

James H. Kaster, Sofia B. Andersson, Nichols Kaster & Anderson, PLLP, 4600 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (for appellant)

 

George R. Wood, Susan K. Fitzke, Littler Mendelson, P.C., 1300 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge. 

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Kerry French argues that the district court erred by granting summary judgment in favor of respondent Brookdale Motor Sales, Inc. and dismissing his whistleblower claim because (1) his report implicated a violation of law and was made in good faith, and (2) he established the elements of a prima facie whistleblower claim.  Because we conclude that appellant did not engage in protected conduct under Minnesota's whistleblower statute, we affirm.

FACTS

 

            In August 2001, appellant Kerry French was hired to work as a parts person for respondent Brookdale Motor Sales, Inc., d/b/a/ Luther Brookdale Buick Pontiac GMC (Luther Brookdale).  Appellant's job duties included answering phone calls, looking up parts for service technicians, and looking up parts for retail and wholesale customers. 

Warranty claims processed at Luther Brookdale are tracked using General Motors's (GM) vehicle-inquiry system (VIS).  As part of his job, appellant used Luther Brookdale's VIS regularly.  In mid-September 2004, appellant entered his vehicle identification number (VIN) into the VIS and discovered that in March 2003, Luther Brookdale had submitted a warranty claim to GM on his vehicle. 

The VIS also shows that on July 25, 2003, Luther Brookdale made another entry regarding appellant's vehicle, this time indicating that the March 2003 work was not actually done, by using a "debit" code.  According to Luther Brookdale staff, the VIS has no mechanism by which Luther Brookdale staff can completely delete an entry.

            Appellant testified that he did not know why his VIN was used for the warranty claim, nor did he know how Luther Brookdale accessed his VIN.  Appellant also testified that he did not know who actually put his VIN into the tracking system. 

When appellant first learned of the error in the VIS in 2004, he contacted GM to let them know that the work listed on the VIS had never actually been performed on his vehicle.  The person he spoke with at GM told him to contact the warranty clerk at Luther Brookdale, and that if he was still unsatisfied, he could contact the Attorney General or the Better Business Bureau (BBB).     

Appellant testified that he then talked with Floyd Norton and Vern Schultz at Luther Brookdale regarding the warranty claim, who told him to talk to the warranty clerk, Jennifer Downey.  Appellant stated that Downey told him that there was nothing she could do because she could not alter the vehicle history in the VIS.    

            During her deposition, Downey testified that she entered appellant's VIN into the VIS.  She stated that she was working on a warranty claim when she noticed that there was no VIN for the claim so she went to the parts department to inquire about the VIN.  Downey testified that appellant gave her a VIN and told her to use it to process the claim.  She did not realize at the time that the VIN was appellant's.  Downey also stated that Kregg Hurlbert told her about the VIN error in 2003 and asked her to correct the entry, which she did. 

In late September 2004, appellant submitted a consumer complaint to the Minnesota Attorney General's Office.  The complaint stated that he wanted Luther Brookdale to "[r]emove this claim from [the VIS]" and compensate him for the "loss of value of [his] truck."[1]  In the complaint, appellant also stated that "I think that anyone involved with this should not be working in a dealership."  During his deposition, appellant admitted that he did not tell the Attorney General's office that he believed anyone had committed theft by using his VIN, nor had he accused anyone of committing fraud.  The Attorney General's office sent appellant a letter indicating that it was their understanding that "the GM Vehicle Inquiry System shows that the company corrected the erroneous claim on your vehicle's report." 

In October 2004, appellant filed a customer complaint with the BBB describing what had happened with his VIN and stating that "this should never have happened, and how many others have they used for this type of claim?"  Appellant indicated that he "would like this repair to be removed from the GM (VIS) system.  Not just corrected but removed [immediately]."  Appellant later testified that he contacted both the BBB and the Attorney General's office because he wanted other consumers to know about the issue and because he was concerned "that this could be happening not only to me but other individuals."  He also testified that he had contacted the Attorney General's office and the BBB because he "thought it was illegal for them to use [his] information for a claim that never took place." 

            About a month after appellant made his complaint to the Attorney General's office, he met with Curt Johnson, the general manager of Luther Brookdale, in Johnson's office.  Appellant stated that Johnson was holding the letter Luther Brookdale had received from the Attorney General, and he asked appellant, "What the hell is this?"  Appellant testified that Johnson told him that he would have "fired [his] ass" if appellant had not been a union member.  Appellant also testified that in November 2004, after Luther Brookdale received a letter from the BBB, he was called into Johnson's office and told that he would be fired if the complaints did not stop. 

Schultz, appellant's supervisor, testified that "[t]here's no way" someone could have entered appellant's VIN in the VIS without appellant providing the VIN.  "Because they wouldn't have the number.  There are how many GM vehicles running around in the United States.  Each one has a different VIN.  There is no way that a warranty administrator can, out of the blue, pick out his number accidentally unless it was given to him." 

In July 2005, appellant parked his vehicle on the street outside Luther Brookdale because the employee parking lot was full.  Later that day, Johnson called appellant into his office and asked him to move his vehicle because it was parked in a fire lane.  Appellant moved his vehicle.

            When he arrived at work the next day, appellant again parked his vehicle on the street outside Luther Brookdale, about two parking spaces away from where he had been parked the day before.  That same day, Johnson told appellant that his employment was terminated for insubordination because he had parked in the same spot after being asked to move his vehicle the day before.

During his deposition, when asked whether he had discussed the VIN incident with anyone before appellant's termination, Johnson stated that the VIN incident "happened like two years before [appellant's] termination" and that after the incident "it was never discussed again. . . .  I mean, it happened two years earlier."  

            On July 19, 2005, appellant filed a grievance with his union regarding his termination.  On July 20, 2005, a grievance meeting took place and an agreement was reached regarding the terms of appellant's termination.  As part of the agreement, Luther Brookdale agreed to change appellant's termination to a "permanent layoff," pay him for 80 hours of work, and not to protest a claim for unemployment benefits. 

            Appellant testified that during the grievance meeting he did not tell his union representatives that he believed he had been terminated because of his complaints to the BBB and Attorney General's office. 

            In October 2005, appellant filed a complaint in Hennepin County district court alleging retaliatory termination in violation Minnesota's whistleblower statute.  Appellant sought damages in excess of $50,000 for lost wages, mental anguish, emotional distress, loss of reputation, and liquidated damages; and costs, disbursements, and attorney fees.  Luther Brookdale moved for summary judgment. 

            The district court heard arguments on the summary-judgment motion in August 2006.  In a written order and memorandum issued in October 2006, the district court concluded that appellant's report was not protected conduct under Minn. Stat. § 181.932, subd. 1(a) (2004), granted summary judgment in favor of Luther Brookdale, and awarded Luther Brookdale its costs and disbursements.  The district court concluded that appellant's reports to the BBB were not protected because "[t]he BBB is not a governmental agency or law enforcement agency."  The district court also concluded that appellant's reports to Luther Brookdale, GM, and the Attorney General did not constitute a suspected violation of state or federal law because appellant "[could not] point to any statute or rule that was violated."  The district court further stated that appellant's reliance on Minn. Stat. § 325 F. 69 (2004) was misplaced because "[t]he Consumer Fraud Act does not apply to transactions between merchants" and that appellant's reports did not support an allegation of identity theft under Minn. Stat. § 609.527, subd. 2 (2004).  The district court concluded that "[i]n the present case, it clearly appears that [appellant's] complaint to the Attorney General was made for his personal protection, and voices no concern for the protection of the general public."  It also concluded that there was "no evidence that the use of his VIN was anything other than a clerical error by a single clerical employee. . . .  [Clerical errors] may constitute breaches of contract, but it is far less likely that they constitute the level of illegality reasonably contemplated by" the Consumer Fraud Act.  This appeal follows. 

D E C I S I O N

Appellant argues that the district court erred by granting summary judgment in favor of Luther Brookdale on his whistleblower claim under Minn. Stat. § 181.932 (2004).  On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in applying the law.  Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 623 (Minn. App. 2007). 

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. 

 

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  No genuine issue for trial exists when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).  To defeat a motion for summary judgment, a party "must do more than rest on mere averments."  Id. at 6971.  A party must present "sufficient evidence to permit reasonable persons to draw different conclusions."  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (emphasis omitted). 

Minnesota's whistleblower statute provides that "[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee" when 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) (2004). 

To assert a claim under section 181.932, an employee must first establish a prima facie case for a retaliatory discharge.  Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001).  A prima facie case of retaliatory discharge under section 181.932 requires a showing of (1) statutorily protected conduct, (2) adverse employment action, and (3) a causal connection between the two.  Gee v. Minn. State Colls. & Univs., 700 N.W.2d 548, 555 (Minn. App. 2005).   

Once an employee has established a prima facie case of retaliatory discharge, the burden of production shifts to the employer to articulate a legitimate, non-retaliatory reason for its action.  Cokley, 623 N.W.2d at 630.  Finally, the employee can demonstrate that the employer's articulated reason for the action is pretextual.  Id.  The employee carries the overall burden of persuasion.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 445 (Minn. 1983).

            Appellant argues that the district court erred by concluding that he did not engage in statutorily protected conduct under section 181.932 because his "report" to the Attorney General implicated a violation of law.  We disagree.

This court "may determine as a matter of law that certain conduct does not constitute a ‘report'" under section 181.932.  Rothmeier v. Inv. Advisers, Inc., 556 N.W.2d 590, 593 (Minn. App. 1996) (citations omitted), review denied (Minn. Feb. 26, 1997).  Section 181.932 does not define "report," but this court has previously followed the dictionary definition: "1. To make or present an often official, formal, or regular account of.  2. To relate or tell about; present."  Janklow v. Minn. Bd. of Exam'rs for Nursing Home Adm'rs, 536 N.W.2d 20, 23 (Minn. App. 1995) (quoting Am. Heritage Dictionary 1531 (3rd ed. 1992)), aff'd, 552 N.W.2d 711 (Minn. 1996).  To make a statutorily protected report under the whistleblower act, the employee must allege "facts that, if proven, would constitute a violation of law or rule adopted pursuant to law."  Abraham v. County of Hennepin, 639 N.W.2d 342, 355 (Minn. 2002). 

            Appellant first alleges that his report implicated a violation of Minn. Stat. § 325 F. 69 (2004), a provision of the Minnesota Consumer Fraud Act (CFA) relating to unlawful practices.  Section 325 F. 69 provides, in relevant part:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable.

 

Minn. Stat. § 325 F. 69, subd. 1.

Under the CFA, misrepresentations or fraudulent actions committed "with the intent that others rely thereon" are enjoinable.  Minn. Stat. § 325 F. 69, subd. 1.  Although appellant argues that Luther Brookdale "intended General Motors to rely on this misrepresentation so that General Motors, rather [than] Luther Brookdale or its customer, would pay for the part," the record does not support such an assertion.  In his own deposition, appellant admitted that he has never claimed that Luther Brookdale intentionally used his VIN; indeed, he has never accused anyone of doing anything intentional.

To make a statutorily protected report under the whistleblower act, an employee must allege "facts that, if proven, would constitute a violation of law or rule adopted pursuant to law."  Abraham, 639 N.W.2d at 355.  Appellant has alleged no such facts.  If appellant's report did not allege that there was intentional conduct that violated the CFA, then his report did not implicate a violation of law.

            Appellant also argues that his report to the Attorney General implicates a violation of the Uniform Commercial Code (UCC).  In particular, appellant argues that his report implicated a violation of Minn. Stat. §§ 336.1-302(b) (obligations of good faith, diligence, reasonableness, and care cannot be disclaimed by agreement), 336.1-304 (obligation of good faith), and 336.2-721 (remedies for fraud) (2004).   

The district court did not address this issue.  In arguments before the district court, appellant raised this issue only when he suggested during the summary-judgment hearing that the UCC may have been violated; he did not identify any specific provisions of the UCC that he believed were violated. 

            This court will generally not consider issues not raised before the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  But if the issue raised on appeal constitutes a "refinement" of the issue presented to the district court, and if it is possible for this court "to evaluate [the] argument on facts already present in the record," it may properly be considered on appeal.  Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 52223 (Minn. 2007).

            Based on Jacobson, we consider appellant's UCC claim.  The UCC defines "good faith" as "honesty in fact and the observance of reasonable commercial standards of fair dealing."  Minn. Stat. § 366.1-201, subd. (20) (2004).  Appellant has not alleged any facts that, if proven, would show that Luther Brookdale violated its obligation of "good faith" under the UCC.  As noted by the district court, appellant's allegations do no more than suggest that a mistake was made; they do not implicate a violation of law.  Appellant does not show how the facts he alleged constitute any dishonesty or violation of the standards of fair dealing.  And appellant admits that he did not discover the erroneous entry in the VIS until 2004, nearly a year after Luther Brookdale had found and corrected the error, to the best of its ability. 

We conclude that because appellant failed to show that his report implicated a violation or suspected violation of law, and, therefore, failed to establish that the report constituted protected conduct under Minn. Stat. § 181.932, the district court did not err by granting summary judgment in favor of Luther Brookdale and dismissing appellant's claim.

            Affirmed.

 

[1]Apparently, appellant believed that the erroneous VIS warranty-claim entry would negatively affect the value of his vehicle because it indicated that certain repair work had been done when in fact that was not the case.  Johnson, however, testified that VIS entries were solely a matter between Luther Brookdale and GM and that prospective buyers are not privy to that information.