### Th e Honorable John R. Tunheim, United States District Judg e 1 

### for the District of Minnesota. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2392

___________ Rhonda S. Kunferman, * * Appellant, * Appeal from the United States * District Court for the v. * District of Minnesota. * Ford Motor Company, * * Appellee. *

___________ Submitted: February 12, 1997 Filed: May 1, 1997

___________ Before BEAM, HEANEY and LOKEN, Circuit Judges.

___________ BEAM, Circuit Judge.

Rhonda Ku nferman sued Ford Motor Company for retaliatory discharge, alleging v iolations of Minnesota law. The district court granted Ford’s 1 motion for summary judgment. We affirm.

I. BACKGROUND

In early 1991, Kunferman, a Ford employee, began experiencin g numbness and tingling in her arms and hands. Ford’s plant

### EMG testing is a process by which impairment t o nerves in the 2 

### arms and hands may be verifiedobjectively. It involves measuring and an alyzing the responses of muscles to stimulation b y el ectricity. Dorland’s Illustrated Medical Dictionary 537 (28t h ed. 1994).

2 physician could find no objective signs of a rep etitive stress injury, but he restricted Kunferman’s work assignments pending further diagnosis

. Kunfe rman consulted a general practitioner who ordered electromyograph y (EMG) testing, which revealed no abnormalities. Kunferman next saw a 2 specialist, who similarly found “no objective evidence” of carpal tunnel syndrome or repetitive stress injury. Kunferman then consulted Dr. John Flober g, who conducted additional tests. The additional EMGs were als o normal. Floberg, nevertheless, concluded that Kunferman was suffering fro m some repetitive stress injury, and restricted her to light work.
To comply with her restrictions, Kunferman was placed in the ra diator fill position at the Ford plant. However, she complained that the fumes froman adjacent work area presented a health hazard. In response, Ford began a series of air quality tests at that work area. Meanwhile , Kunferman was shifted to several other positions within Ford’s plant. Eac h exacerbated her symptoms.

In Octobe r, Ford retained a new plant physician, Dr. Leon Nesvacil. He examined Kunferman and her records several ti mes and concluded that the medical evidence did not support the work restrictions prescribed by Dr. Floberg. Because a union agreement provided for resolution of differences between an employee’s personal physician and the plant physician by a n independent doctor, Kunferman was referred to an outside specialist. In th e meantime, Kunferman returned to the radiator fill position.

### 3 On September 23, 1991, Kunferman’s husband, also a Ford employee , filed a complaint about the fumes at the radiator fill position with the Occupa tional Safety and Health Division of the Minnesota Department o f Lab or and Industry (MOSHA). MOSHA conducted an occupational safety an d health inspection of the plant from October 3, 1991 through January 17 , 1992.

On October 24, 1991, the independent specialist examined Kunferma n and reviewed her medical records. His written r eport concluded that there was no objective clinical evidence to support Ku nferman’s complaints. Dr. Nesvac il then decided to remove Kunferman’s work restrictions. MOSH A inspec ted the radiator fill station on November 21 and 22, 1991. O n November 26, 1991, Kunferman reported to work at the radiator fill station

. A supervisor informedher that her medical restrictions had been removed, which Dr. Nesvacil confirmed.

After her restrictions were removed, Kunferman’s performanc e deterio rated. Ford repeatedly found her work inadequate and took he r throug h seven steps of progressive discipline, each of which Kunferma n grieve d. Ford finally terminated Kunferman’s employment for “poor an d careless workmanship.” Kunferman filed a workers’ compensation action in Minnesota state court, and was awarded benefits.

Kun ferman then sued Ford in state court alleging gende r discri mination in violation of the Minnesota Human Rights Act an d retaliatory discharge in violation of sections 1 81.932 (“whistle blowing”) and 176.82 (filing workers’ compensation claims) of the Minnesota Statutes

. Ford removed the action to federal district court, based on diversity of citizenship, 28 U.S.C. § 1446(b). The

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distri ct court granted Ford’s motion for summary judgment. Kunferma n appeals.

II. DISCUSSION

We rev iew a grant of summary judgment de novo, applying the sam e standards as the district court. Enos v. Key Pharmaceuticals, Inc. , 106 F.3d 838, 839 (8th Cir. 1997). We consider the facts in the light mos t favora ble to Kunferman, the party opposing summary judgement. Midwes t Printing , Inc. v. AM Int’l, Inc. , No. 96-2099, slip op. at 3 (8th Cir

. March 4, 1997). Minnesota law controls this div ersity case, and we review the d istrict court’s interpretation of that law de novo. Salve Regin a College v. Russell , 499 U.S. 225, 231 (1991).

To survive a motion for summary judgment, a plaintiff claimin g unlawful retaliation under Minnesota law must produce evidence sufficient to create a genuine issue of material fact as to whether her protecte d activit y caused the retaliation. Dietrich v. Canadian Pac. Ltd. , 53 6 N.W.2d 319, 327 (Minn . 1995). Minnesota employs the three-part McDonnell Dou glas analysis to retaliation claims. Hubbard v. United Press Int’l , Inc. , 330 N.W.2d 428, 444 (Minn. 1983) (citing M cDonnell Douglas v. Green , 411 U.S. 792 (1973)).

Aprima facie case of retaliatory discharge under Minnesota la w consists of: (1) statutorily-protected conduct by the employee; (2) advers e employment action by the employer; and (3) a cau sal connection between the two
. Dietrich , 536 N.W.2d at 327. In Kunferman’s case, the first tw o elements are clearly met. Ford concedes that Kunferman engaged i n prote cted activity. Similarly, it is uncontroverted that Kunferma n suffered an adverse employment

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action. The removal of the medical restrictions is the action at issue, since Kunferman argues she was discharged only b ecause she was assigned to jobs she was physically unable to perform.

Ku nferman has failed, however, to establish the causation element

. Timing alone cannot e stablish retaliatory intent. Hubbard , 330 N.W.2d at 445-46. An employee must establish the employer’s knowledge of protected activity. Bohm v. L.B. Hartz Wholesale Corp. , 370 N.W.2d 901, 908 (Minn. Ct. App. 1985) (dismissing former employee’s retaliation claim becaus e “management was not aware of [her] sex discrimination claim when she was terminated”). Thus, in order to overcome a motion for summary judgment, Kun ferman must show that the person who lifted her medical restriction s knew of her protected activities.

Ku nferman claims that an internal Ford memorandum establishes tha t Dr. Nesva cil knew about the MOSHA complaint when he removed th e restri ctions. The document, dated October 15, 1991, reports Ford’ s int ernal air quality testing and lists several employees on the routin g line , including “W. Hinger, R.N.” The memo refers to “attached dat a she ets,” recording test results for individual employees. One of thos e sheets lists test results for “R. Kunferman.” Kunferman asserts that thi s memo informed the doctor that she was responsibl e for the MOSHA complaint. This assertion is untenable for three reasons. First, the memo onl y reports the results o f internal testing, and says nothing about any MOSHA compl aints. Second, the data sheet for “R. Kunferman” does nothing t o single her out in comparison with other tested employees. Third, Kunferma n has presented no evidence that the doctor even s aw this memo. Indeed, Dr. Nesvacil states in his affidavit that he was not aware of any protecte d activity when he lifted Kunferman’s restrictions.

### 6 Al ternatively, Kunferman asserts that Dr. Nesvacil was directed b y unidentified Ford managers to lift her restrictions. In support of this claim, she offers only her own deposition testimony that Nesvacil wa s “sheepish” and “nervous” when he informed her that the restrictions were lifted; the fact that a supervisor knew of the decision before Kunferman herself was informed; and the doctor’s failure to re-examine her on th e date of her termination. This evidence does not create a controverte d issue of fact on the causation issue. Kunferman must substantiate he r allega tions with sufficient probative evidence “based on more than mer e speculation, conjecture, or fantasy.” Wilson v. International Busines s Machines Corp. , 62 F.3d 237, 241 (8th Cir. 1995). Kunferman has no t presented evidence sufficient to create a genuine issue of material fact as to causation, so summary judgment was appropriate.

Ku nferman’s other claims are similarly unavailing. Her allegatio n of gen der discrimination centers around a verbal reprimand she receive d when a machine she wa s using malfunctioned. There is no evidence linking this incident to her termination and Kunferman does not allege that this trea tment was severe or pervasive. Therefore, she has not stated a n actionable claim under the Minnesota Human Rights Act. See Klink v. Ramse y County , 397 N.W.2d 894, 901 (Minn. Ct. App. 1986).
Finally, Kunferman asserts that the district court erred by no t granting preclusive e ffect to certain findings made by the state workers’ compen sation court. Under Minnesota law, collateral estoppel was no t appropriate. Graham v. Special Sch. Dist. No. 1 , 472 N.W.2d 114, 119 n.7 (Minn. 1991)(refusing to apply preclusion in retaliatory discharge cas e because fact-finder in first hearing

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had not conducted McDonnell Douglas analysis). The district court did not err in its ruling.

III. CONCLUSION

Fo r the foregoing reasons, the decision of the district court i s affirmed.
HEANEY, Circuit Judge, concurring.

I would affirm on the basis of the district court’s opinion, whic h held, in substance, that Kunferman had established a prima facie case of retali ation, but failed to produce any evidence that Ford's non

discr iminatory explanation for its conduct was pretext for wrongfu l retali ation. The record supports that Dr. Nesvacil removed Kunferman' s work restrictions based both on his own evaluation of Kunferman and th e indepe ndent specialist's written report. Neither doctor was aware tha t Kunfer man had filed either a MOSHA or workers’ compensation complaint

. Because I believe we should follow the reasoning of the district court, I simply concur in the result of the majority opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.