The Honorable John R. Tunheim, United States District Judge

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 Kunferman sued Ford Motor Company for retaliatory discharge,

alleging violations 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 experiencing

numbness and tingling in her arms and hands. Ford’s plant 
EMG testing is a process by which impairment to nerves in the 2

arms and hands may be verified objectively. It involves measuring

and analyzing the responses of muscles to stimulation by

electricity. Dorland’s Illustrated Medical Dictionary 537 (28th

ed. 1994). 

 2

physician could find no objective signs of a repetitive stress injury, but

he restricted Kunferman’s work assignments pending further diagnosis.

Kunferman consulted a general practitioner who ordered electromyography

(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

Floberg, who conducted additional tests. The additional EMGs were also

normal. Floberg, nevertheless, concluded that Kunferman was suffering from

some repetitive stress injury, and restricted her to light work.

To comply with her restrictions, Kunferman was placed in the radiator

fill position at the Ford plant. However, she complained that the fumes

from an 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. Each

exacerbated her symptoms. 

In October, Ford retained a new plant physician, Dr. Leon Nesvacil.

He examined Kunferman and her records several times 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 an

independent doctor, Kunferman was referred to an outside specialist. In the

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

Occupational Safety and Health Division of the Minnesota Department of

Labor and Industry (MOSHA). MOSHA conducted an occupational safety and

health inspection of the plant from October 3, 1991 through January 17,

1992. 

On October 24, 1991, the independent specialist examined Kunferman

and reviewed her medical records. His written report concluded that there

was no objective clinical evidence to support Kunferman’s complaints. Dr.

Nesvacil then decided to remove Kunferman’s work restrictions. MOSHA

inspected the radiator fill station on November 21 and 22, 1991. On

November 26, 1991, Kunferman reported to work at the radiator fill station.

A supervisor informed her that her medical restrictions had been removed,

which Dr. Nesvacil confirmed.

After her restrictions were removed, Kunferman’s performance

deteriorated. Ford repeatedly found her work inadequate and took her

through seven steps of progressive discipline, each of which Kunferman

grieved. Ford finally terminated Kunferman’s employment for “poor and

careless workmanship.” Kunferman filed a workers’ compensation action in

Minnesota state court, and was awarded benefits. 

Kunferman then sued Ford in state court alleging gender

discrimination in violation of the Minnesota Human Rights Act and

retaliatory discharge in violation of sections 181.932 (“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 
 4

district court granted Ford’s motion for summary judgment. Kunferman

appeals. 

II. DISCUSSION

We review a grant of summary judgment de novo, applying the same

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 most

favorable to Kunferman, the party opposing summary judgement. Midwest

Printing, Inc. v. AM Int’l, Inc., No. 96-2099, slip op. at 3 (8th Cir.

March 4, 1997). Minnesota law controls this diversity case, and we review

the district court’s interpretation of that law de novo. Salve Regina

College v. Russell, 499 U.S. 225, 231 (1991).

To survive a motion for summary judgment, a plaintiff claiming

unlawful retaliation under Minnesota law must produce evidence sufficient

to create a genuine issue of material fact as to whether her protected

activity caused the retaliation. Dietrich v. Canadian Pac. Ltd., 536

N.W.2d 319, 327 (Minn. 1995). Minnesota employs the three-part McDonnell

Douglas analysis to retaliation claims. Hubbard v. United Press Int’l,

Inc., 330 N.W.2d 428, 444 (Minn. 1983) (citing McDonnell Douglas v. Green,

411 U.S. 792 (1973)). 

A prima facie case of retaliatory discharge under Minnesota law

consists of: (1) statutorily-protected conduct by the employee; (2) adverse

employment action by the employer; and (3) a causal connection between the

two. Dietrich, 536 N.W.2d at 327. In Kunferman’s case, the first two

elements are clearly met. Ford concedes that Kunferman engaged in

protected activity. Similarly, it is uncontroverted that Kunferman

suffered an adverse employment 
 5

action. The removal of the medical restrictions is the action at issue,

since Kunferman argues she was discharged only because she was assigned to

jobs she was physically unable to perform. 

Kunferman has failed, however, to establish the causation element.

Timing alone cannot establish 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 because

“management was not aware of [her] sex discrimination claim when she was

terminated”). Thus, in order to overcome a motion for summary judgment,

Kunferman must show that the person who lifted her medical restrictions

knew of her protected activities.

Kunferman claims that an internal Ford memorandum establishes that

Dr. Nesvacil knew about the MOSHA complaint when he removed the

restrictions. The document, dated October 15, 1991, reports Ford’s

internal air quality testing and lists several employees on the routing

line, including “W. Hinger, R.N.” The memo refers to “attached data

sheets,” recording test results for individual employees. One of those

sheets lists test results for “R. Kunferman.” Kunferman asserts that this

memo informed the doctor that she was responsible for the MOSHA complaint.

This assertion is untenable for three reasons. First, the memo only

reports the results of internal testing, and says nothing about any MOSHA

complaints. Second, the data sheet for “R. Kunferman” does nothing to

single her out in comparison with other tested employees. Third, Kunferman

has presented no evidence that the doctor even saw this memo. Indeed, Dr.

Nesvacil states in his affidavit that he was not aware of any protected

activity when he lifted Kunferman’s restrictions. 
 6

Alternatively, Kunferman asserts that Dr. Nesvacil was directed by

unidentified Ford managers to lift her restrictions. In support of this

claim, she offers only her own deposition testimony that Nesvacil was

“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 the

date of her termination. This evidence does not create a controverted

issue of fact on the causation issue. Kunferman must substantiate her

allegations with sufficient probative evidence “based on more than mere

speculation, conjecture, or fantasy.” Wilson v. International Business

Machines Corp., 62 F.3d 237, 241 (8th Cir. 1995). Kunferman has not

presented evidence sufficient to create a genuine issue of material fact

as to causation, so summary judgment was appropriate. 

Kunferman’s other claims are similarly unavailing. Her allegation

of gender discrimination centers around a verbal reprimand she received

when a machine she was using malfunctioned. There is no evidence linking

this incident to her termination and Kunferman does not allege that this

treatment was severe or pervasive. Therefore, she has not stated an

actionable claim under the Minnesota Human Rights Act. See Klink v. Ramsey

County, 397 N.W.2d 894, 901 (Minn. Ct. App. 1986). 

Finally, Kunferman asserts that the district court erred by not

granting preclusive effect to certain findings made by the state workers’

compensation court. Under Minnesota law, collateral estoppel was not

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 case

because fact-finder in first hearing 
 7

had not conducted McDonnell Douglas analysis). The district court did not

err in its ruling.

III. CONCLUSION

For the foregoing reasons, the decision of the district court is

affirmed.

HEANEY, Circuit Judge, concurring.

I would affirm on the basis of the district court’s opinion, which

held, in substance, that Kunferman had established a prima facie case of

retaliation, but failed to produce any evidence that Ford's nondiscriminatory explanation for its conduct was pretext for wrongful

retaliation. The record supports that Dr. Nesvacil removed Kunferman's

work restrictions based both on his own evaluation of Kunferman and the

independent specialist's written report. Neither doctor was aware that

Kunferman 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.