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McVicker v. Minnetonka Independent School District No. 27611/22/2005
This is an appeal of summary judgment dismissing appellant's action alleging that the termination of his employment violated the Whistleblower Act, Minn. Stat. § 181.932 and Minnesota Occupational Safety and Health Act of 1973, Minn. Stat. § 182.669, and was in reprisal for his complaints about health and safety issues. Because there was sufficient evidence to support the district court's conclusion that respondent articulated legitimate and nondiscriminatory reasons for terminating appellant's employment, and because appellant did not meet his burden of proving pretext, we affirm.
FACTS
On April 16, 2003, respondent school district hired appellant Kevin McVicker as a custodian. Like all new custodians, appellant had an initial probationary period of six months.
Early on, appellant's supervisor received complaints from teachers that appellant was not cleaning the whiteboards. Appellant claimed he was not aware that he was supposed to clean the boards and did clean them from that time forward. Apart from this incident, appellant received no other written or oral warnings concerning his work performance.
In September 2003, respondent instituted the use of a KaiVac machine, a pressure washer used to clean restroom surfaces. Throughout the month of September, a number of custodians complained to respondent about the KaiVac machine; and specifically complained about a strong chemical odor, inadequate ventilation, and possible missing parts. Appellant began operating the KaiVac machine in mid-September and was one of at least four custodians to verbally complain to supervisors about the machine. Appellant was not the first custodian to complain and was not the only probationary employee to do so.
Shortly before September 29, appellant's supervisors discussed whether appellant should pass his probationary period. Respondent decided to terminate appellant's employment because he was not meeting their expectations for work performance and attitude. On September 29, respondent held a meeting with the custodians to address the custodians' concerns regarding the KaiVac machine. At that meeting, appellant again voiced his health and safety concerns. On September 30, respondent terminated appellant's employment. Appellant's termination came approximately two weeks before the end of his probationary period.
In March 2004, appellant commenced this suit alleging that respondent violated both Minn. Stat. § 181.932, subd. 1(a) (2002) (Whistleblower Act), which prohibits an employer from discharging or otherwise discriminating against an employee because "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," and Minn. Stat. § 182.669 (2002) (MOSHA), which provides relief for discriminatory acts resulting from an employee's exercise of his rights authorized under the Act.
Respondent moved for summary judgment asserting that appellant failed to (1) establish a prima facie case of retaliatory discharge, and (2) prove that the nondiscriminatory reasons proffered by respondent for termination were merely pretext for retaliatory discharge. The district court granted the summary judgment motion, concluding appellant had failed to prove pretext. This appeal follows.
DECISION
On appeal from summary judgment, this court determines (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A district court should grant a motion for summary judgment only "when the pleadings, depositions, answer
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