Opinion
No. A03-1082.
Filed February 10, 2004.
Appeal from Hennepin County, District Court, File No. Em 00-004903.
Georgina Y. Stephens, (pro se appellant)
Mark B. Rotenberg, General Counsel, Marianne E. Durkin, Associate General Counsel, Tracy M. Smith, Associate General Counsel, (for respondent)
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this employment dispute, pro se appellant challenges the district court's grant of summary judgment in favor of respondent and the dismissal of her Public Employer Labor Relations Act (PELRA) claims. Appellant maintains that she is entitled to summary judgment and injunctive relief or, alternatively, that there are genuine issues of material fact surrounding her claims that respondent violated Minn. Stat. § 179A.13, subds. 1, 2(1), (4)-(6) (2002), and that respondent committed statutory defamation under PELRA. Appellant also moves to strike portions of respondent's appendix and brief. We affirm and deny appellant's motion.
FACTS
This is appellant's third appeal in this case. On July 9, 1997, respondent sent appellant a letter offering her employment as associate vice president. The letter stated that the associate vice president position was an annual position, renewable at the discretion of the appointing authority. The letter also stated that six months after employment, the Board of Regents would be asked to confirm appellant as treasurer. Appellant began employment with respondent on August 11, 1997.
The Board of Regents elected appellant as treasurer in November 1997. Under respondent's charter, the treasurer serves "during the pleasure of the Board." Appellant's position as associate vice president was renewed for 1998-99, and appellant received a pay raise. In November 1998, appellant wrote a letter complaining of a hostile work environment based on race and gender issues. Appellant filed a formal discrimination complaint on December 7, 1998. Respondent, in a report filed on February 1, 1999, concluded that appellant's claims were without merit. Appellant filed her complaint only with respondent; she never filed a complaint with the Equal Employment Opportunity Commission or with the Minnesota Department of Human Rights.
In June 1999, the Regents reelected appellant as treasurer. The then-president of respondent renewed appellant's position as associate vice president for 1999-2000 and gave her a raise. At some point, appellant raised issues of poor fiscal management on the part of respondent and, in particular, that accounting methods led to inadequate fiscal control.
On September 21, 1999, a settlement demand in an unrelated dispute involving appellant's department stated appellant had been involved in "questionable business dealings" unrelated to her employment in which appellant was accused of "patterns and practices of fraud, misrepresentation, abuse of process, and a variety of other disturbing claims," including specific acts that were fraudulent or abusive of the legal process. Respondent decided to investigate, and appellant was placed on paid administrative leave while the investigation was conducted.
A meeting among appellant, the then-president of respondent, and the chair of the Board of Regents was scheduled for the day the report detailing the findings of the investigation was filed, but appellant decided not to attend the meeting and maintains that she was unaware the investigation was complete.
The investigation uncovered many legal and financial dealings by appellant that were of concern. Those concerns involved a lawsuit between appellant and Chrysler Financial, in which the district court stated appellant gave "misinformation" and mischaracterized the court's statements; the district court went so far as to say appellant had lied. The district court in that matter, after reaching these conclusions, refused to speak to appellant unless a court reporter was present. In that litigation, involving a real estate loan, the district court found that the deed transferring property to appellant from her husband was "a fake and a sham." Appellant was attempting to rescind the loan, and she was alleged to have lied on the loan application, lied on an application on a second mortgage application, and fraudulently dismissed the notice of pending litigation on the property at issue.
Yet another troublesome event was appellant's litigation involving her previous employer because of an allegation that appellant had lied concerning her employment prospects, apparently because her prospects for employment had an effect on the size of the severance package offered by that employer. There were also allegations of fraud arising out of appellant's bankruptcy.
Appellant was consulted during the course of respondent's investigation. The investigation concluded that appellant was uninsurable because respondent had knowledge of acts of fraud or dishonesty committed by appellant.
In a letter dated November 20, 1999, the then-president of respondent informed appellant that she would not be returning to her duties but that the remainder of her contract would be honored and she would be reassigned to different work. Appellant then requested a meeting with the Board and the then-president. This request was not granted.
Appellant filed a grievance in November 1999, but did not continue with the grievance process; instead, appellant filed suit. This court ruled that appellant had to exhaust her administrative remedies before filing a writ of certiorari and that appellant's claim of discrimination based on her bankruptcy filing was not properly brought under a writ of certiorari. Stephens v. Bd. of Regents, 614 N.W.2d 764, 777 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000) ( Stephens I). In 2002, this court affirmed the district court's dismissal of some of appellant's tort claims, bankruptcy discrimination claim, and some of her PELRA complaints; this court reversed on other PELRA claims as well as other statutory claims. Stephens v. Bd. of Regents, 2002 WL 1315809 at *1(Minn. App. 2002) ( Stephens II).
Both parties moved for summary judgment on the remaining claims. Appellant requested injunctive relief as part of her motion for summary judgment. The district court ultimately dismissed all of appellant's remaining claims, including claims for (1) unfair labor practices under PELRA, (2) race and gender discrimination under the Minnesota Human Rights Act (MHRA) and Title VII, (3) retaliation under the MHRA, and (4) violation of the Minnesota whistleblower statute and granted respondent summary judgment. Appellant filed her notice of appeal on August 7, 2003, challenging only the dismissal of her PELRA claims. The district court then amended its prior order to include a memorandum of law. Appellant has moved to strike the amended order, the incorporated memorandum of law, and the parts of respondent's brief that rely on the challenged materials.
DECISION I. Minn. Stat. § 179A.13, subd. 2(1)
Minn. Stat. § 179A.13, subd. 2(1) (2002), prohibits public employers from "interfering, restraining, or coercing employees in the exercise of the rights guaranteed in sections 179A.01 to 179A.25." Appellant contends that respondent violated the terms and conditions of her employment, and thus this provision, by (1) investigating her activities, (2) failing to meet with appellant prior to taking the adverse employment decisions, and (3) implementing a fitness standard without consulting with appellant first. The applicable Minnesota statute provides a cause of action for public employees only if their employer interferes with, restrains, or coerces employees into not exercising their PELRA rights. Minn. Stat. § 179A.13, subd. 2(1). Appellant makes no argument that respondent interfered with, restrained, or coerced her into not exercising rights guaranteed under PELRA — at least so far as her claims under this specific Minnesota statute are concerned. Thus, appellant's argument based on subdivision 2(1) is fatally flawed, and the district court properly ruled in favor of respondent on this issue.
II. Minn. Stat. § 179A.13, subd. 2(4)
Minn. Stat. § 179A.13, subd. 2(4) (2002), prohibits "discharging or otherwise discriminating against an employee because the employee has signed or filed an affidavit, petition, or complaint . . . under sections 179A.01 to 179A.25." Appellant argues that respondent retaliated against her for her complaints regarding the "fiscal controls and culture of discrimination." Appellant contends the retaliatory acts were: (1) the investigation itself, (2) the denial of due process, (3) the discipline without a justifiable reason, and (4) the misrepresentation of the findings of the investigation.
Complaining about fiscal controls is not a protected action because such complaints are not covered under sections 179A.01 to 179A.25. Therefore, even assuming arguendo that respondent retaliated against appellant for this complaint, the retaliation is not actionable.
As to the "culture of discrimination" claim, appellant's amended complaint did not include allegations of discrimination or reprisal for filing a discrimination complaint as part of her PELRA claim. Appellant's complaint was clear that the discrimination claims were not based on PELRA but on other statutory provisions. In fact, appellant's claims for discrimination were premised exclusively on Title VII and the Minnesota Human Rights Act (MHRA). Appellant's claim for retaliation stated respondent "violated the Minnesota Human Rights Act, federal law, and University policy" and that appellant "was retaliated against in violation of Minn. Stat. § 363.03 and other applicable law." Appellant has never sought to amend her complaint to include a claim for discrimination or retaliation under PELRA. Because appellant's complaint did not allege discrimination or retaliation as a violation of PELRA, she cannot now argue that her complaint is based on PELRA. See Minn. R. Civ. P. 15.01. Further, this is a transparent attempt to resurrect appellant's previously dismissed MHRA claims. Appellant had the option to appeal the denial of her MHRA claims and chose not to do so.
III. Minn. Stat. § 179A.13, subd. 2(5)
It is an unfair labor practice for an employer to refuse "to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit." Minn. Stat. § 179A.13, subd. 2(5) (2002). Appellant argues Minn. Stat. § 179A.13, subd. 2(5) (2002), was violated by respondent when respondent: (1) investigated her without authority, (2) did not meet with appellant after the completion of the investigation, and (3) disciplined appellant without meeting and negotiating with her. An "exclusive representative" is "an employee organization which has been certified by the commissioner under section 179A.12 to meet and negotiate with the employer on behalf of all employees in the appropriate unit." Minn. Stat. § 179A.03, subd. 8 (2002).
`Meet and negotiate' means the performance of the mutual obligations of public employers and the exclusive representatives of public employees to meet at reasonable times . . . with the good faith intent of entering into an agreement on terms and conditions of employment. This obligation does not compel either party to agree to a proposal or to make a concession.
Minn. Stat. § 179A.03, subd. 11 (2002).
Based on the definitions of "exclusive representative" and "meet and negotiate," the obvious conclusion is that a public employer has an obligation only to meet with a union. This is because Minn. Stat. § 179A.13, subd. 2(5), makes it an unfair practice only to fail to meet with the exclusive representative; it does not require an employer to meet with individual employees not represented by a union. Further, the definition of "meet and negotiate" refers only to the employer's obligation to meet with the union, not the individual. Minn. Stat. § 179A.03, subd. 11. Thus, the plain language of Minn. Stat. § 179A.13, subd. 2(5), provides that it is not unfair to fail to meet with an individual employee. Appellant is not represented by a union. Therefore, appellant's claim is without merit.
That an individual employee is not granted any rights by this subdivision is bolstered by examining other sections of PELRA which provide for rights for both exclusive representatives and individual employees. See, e.g., Minn. Stat. § 179A.06, subd. 1 (2002) (stating, "Sections 179A.01 to 179A.25 do not affect the right of any public employee or the employee's representative . . . If no exclusive representative has been certified, any public employee individually, or group of employees through their representative" may complain about the conditions of employment.) The fact that other sections of PELRA provide for the rights of unions and individual employees if there is no union indicates that Minn. Stat. § 179A.13, subd. 2(5), intentionally only provides unions with the right to meet and negotiate. Therefore, appellant has no right to meet and negotiate with respondent under Section 179A.13, subd. 2(5).
IV. Minn. Stat. § 179A.13, subd. 2(6)
Appellant contends she was entitled to a pre-termination grievance process because respondent's policy on discipline states, "Upon completion of the informal investigation, the appointing authority shall meet with the affected employee." Minn. Stat. § 179A.13, subd. 2(6) (2002), provides, "[R]efusing to comply with grievance procedures contained in an agreement," is an unfair labor practice.
Appellant contends respondent violated Minn. Stat. § 179A.13, subd. 2(6), when it completed its investigation and failed to meet with appellant. Appellant argues that she was entitled to both a pre-termination and a post-termination grievance process but concedes she withdrew from the post-termination grievance procedure; that latter process is not before this court.
Appellant's argument is based on a claim that respondent has two grievance procedures. But the contract explicitly provides for only one grievance procedure. The hearing appellant cites as a grievance procedure is not identified as a grievance procedure, lacks the detailed procedures required for clearly identified grievance procedures, and is not placed with clearly identified grievance procedures in the documents at issue. Appellant's bare assertion that the pre-termination hearing is a grievance procedure does not make it so. Because the disputed hearing is not a grievance procedure, respondent has not violated Minn. Stat. § 179A.13, subd. 2(6), even if respondent failed to grant appellant a pre-termination hearing.
V. Defamation
Minn. Stat. § 179A.13, subd. 1, states, "Any employee . . . aggrieved by an unfair labor practice as defined in this section may bring an action for injunctive relief and for damages caused by the unfair labor practice."
Appellant asserts that she has a claim for defamation under Minn. Stat. § 179A.13, subd. 1 (2002). Respondent points out that appellant never raised this claim in the district court and that PELRA does not provide a claim for statutory defamation. Appellant's claim for defamation under the common law has previously been dismissed. Appellant did not argue statutory defamation in the district court, and this court will not consider it here. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
VI. Motion to Strike
Appellant contends that the district court's memorandum, attached to its amended order and filed after appellant's notice of appeal was filed, makes findings of fact and conclusions of law and that she was prejudiced by the amended order.
Minn. R. Civ. App. P. 110.01 states, "The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases." Documents included in a party's brief or appendix are to be stricken if they are not part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993).
This court has addressed this issue previously in In re Conservatorships of Dawson, 427 N.W.2d 15 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988). In Dawson, the district court issued a memorandum after the notice of appeal was filed; the memorandum was referenced in the respondent's brief. Id. at 17. After a motion to strike, this court stated, "Although a trial judge's memorandum not made part of the trial court's order cannot be used to impeach or contradict the order, such a memorandum may be used to interpret or cast light thereon." Id. The memorandum here neither impeaches nor contradicts the original order; it merely explains the district court's reasoning. Appellant's argument is without merit, and her motion is denied.