Cheryl Kaufenberg v. The Winkley Company d/b/a Winkley Orthotics & Prosthetics

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1514

Cheryl Kaufenberg,
Appellant,

vs.

The Winkley Company
d/b/a Winkley Orthotics & Prosthetics,
Respondent.

Filed June 8, 2015
Affirmed
Stauber, Judge

Hennepin County District Court
File No. 27CV1319733

John A. Fabian, David H. Redden, Fabian May & Anderson, P.L.L.P., Minneapolis,
Minnesota (for appellant)

D. Sherwood McKinnis, Lindberg & McKinnis, P.A., Cambridge, Minnesota (for
respondent)

Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

UNPUBLISHED OPINION

STAUBER, Judge

On appeal from the summary-judgment dismissal of her reprisal claim based on

alleged sexual harassment in violation of the Minnesota Human Rights Act (MHRA),

appellant argues that the district court (1) abused its discretion by denying her motion to
amend her complaint to add a claim of sexual harassment/hostile work environment

based on information learned in discovery; (2) erred by granting respondent’s motion for

summary judgment on the basis that her claim was too speculative; and (3) abused its

discretion by denying her motion to compel the production of identities of potential

witnesses. We affirm.

FACTS

Respondent Winkley Company is an orthotics and prosthetics company with

several clinical locations in Minnesota and Western Wisconsin. Gregory Gruman is

respondent’s president and sole owner. In 2007, Gruman partially retired and no longer

took an active role in the day-to-day operations of the company. Instead, Gruman

delegated his authority to Terrance Woodman, who signed a ten-year contract to manage

the company in 2007.

Appellant Cheryl Kaufenberg began working for respondent in March 2000. In

2002, appellant was assigned to be an administrative assistant for Woodman, who would

later become respondent’s general manager. According to appellant, Woodman began to

sexually harass her shortly after she became his assistant, and she claims that the

harassment continued “well into 2013.” Appellant, however, did not formally report the

alleged harassment until 2013.

In May 2012, respondent hired Nanette Cedarblade as office manager. Cedarblade

was responsible for supervising the administrative assistants, including appellant.

Cedarblade was also responsible for hiring and firing employees.

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 According to appellant, Cedarblade consistently accused her of having emotional

outbursts and “often” told her that she “needed to change [herself] as a person” and have

“a better attitude.” One of these alleged outbursts occurred on December 7, 2012. On

that day, Cedarblade counseled appellant for having an outburst in the office and issued a

warning with respect to her behavior.

On June 26, 2013, Cedarblade overheard appellant loudly complaining to a co-

worker about how she “felt disrespected” at work. When Cedarblade confronted

appellant about the outburst, appellant told Cedarblade that “you are disrespecting me as

a person,” and “Woodman disrespects me as a person.” Appellant received a two-day

suspension with pay for the outburst and was told that the purpose of the suspension was

to allow her to think about her behavior and to determine whether she wanted to remain

employed with respondent.

When appellant returned to work, she apologized for her behavior, and Cedarblade

indicated that if appellant had another outburst she would be terminated. But a few days

later, Cedarblade reprimanded appellant for using an e-cigarette at her workstation.

Appellant denied that she used the e-cigarette inside the office and instead claimed that

she just showed the e-cigarette to a patient. A week later, on July 10, 2013, Cedarblade

again confronted appellant, this time about a patient who had complained about her poor

telephone demeanor.

Appellant was involved in yet another alleged outburst on July 29, 2013, when it

was alleged that she “slammed down [her] phone” after she perceived that a co-worker,

Kate Braun, remarked negatively about her. Appellant denied that her conduct

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constituted an outburst, but she admitted being upset with Braun. Later that day,

appellant had a conversation with another administrative assistant, Sarah Benson, in

which appellant expressed her displeasure with the fact that Benson, rather than

appellant, was training a new employee. Although appellant claimed that the

conversation was cordial, Benson reported to Cedarblade that appellant accused her of

trying to steal her job.

Appellant was reprimanded for her behavior and placed on a 120-day probationary

period beginning August 1, 2013. She was also given, and signed, a document entitled

“Final[] Warning,” which listed several workplace expectations and stated that a

“[f]ailure to follow these expectations will result in immediate termination.” These

expectations included “zero tolerance” for “emotional outburst[s] in the office or on

company grounds,” and “no negative discussion about the company, management, or

other staff members.” Finally, the warning instructed appellant to “share in the daily

pulling of the appointment files.”

On August 26, 2013, appellant, through her attorney, sent a letter to respondent

accusing Woodman of sexually harassing appellant during the course of her employment,

with the most recent event occurring in June 2013. The letter cited several incidents of

harassment and claimed that the “severe and pervasive sexual harassment that [appellant]

has been subjected to has interfered with the terms and conditions of her employment and

made her daily experience at [respondent] both hostile and abusive.” Later that day,

appellant’s attorney sent a second letter to respondent proposing her voluntary departure

in return for severance pay.

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 Following the receipt of appellant’s letters, Woodman was placed on leave

beginning August 27, 2013, while respondent investigated the allegations. Respondent’s

counsel subsequently responded to appellant’s allegations of sexual harassment by letter

dated August 30, 2013, which stated that respondent’s investigation of the matter

revealed that the allegations were unsubstantiated and could “most generously be

described as manufactured.” The letter also stated that any claim of sexual harassment by

appellant was protected by the affirmative defense found in the Faragher-Ellerth line of

cases.1 The letter further provided that appellant has engaged in numerous “negative

behavioral outburst[s]” for which appellant has received multiple warnings and that,

based upon the investigation, respondent “has ample authority to unceremoniously

terminate [appellant’s] employment.” But the letter stated that respondent would

consider a settlement “in exchange for [appellant’s] immediate resignation, full release of

all claims, and confidentiality.”

Appellant took vacation from August 30, 2013 through September 9, 2013. When

she returned on September 10, an incident occurred between appellant and Benson.

Benson then informed Cedarblade that appellant had another emotional outburst in front

of two patients who were waiting in the lobby, in which appellant yelled at her and

exclaimed that “nobody tells her anything” and that she “never knows anything that’s

1
The Faragher/Ellerth defense set forth in Faragher v. Boca Raton, 524 U.S. 775, 807-
08, 118 S. Ct. 2275, 2293 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765, 118 S. Ct. 2257, 2270 (1998), was adopted by the Minnesota Supreme Court in
Frieler v. Carlson Marketing Grp., Inc., 751 N.W.2d 558, 568 (Minn. 2008), and is
available to employers as an affirmative defense to claims by employees involving hostile
work environment harassment by the employee’s supervisors or superiors. Schmitz v.
U.S. Steel Corp., 852 N.W.2d 669, 671 n.1 (Minn. 2014).

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going on at Winkley Company.” Cedarblade then asked Benson if she and appellant had

set up a schedule to pull files, and Benson replied “no.” Appellant admits that she never

pulled any files after receiving this written expectation on August 1, 2013, but she claims

that she discussed the matter with Benson, who indicated that it was “not that big of a

deal” and questioned why she would have to pull files. Appellant also disputes Benson’s

claim that she had another outburst.

On September 12, 2013, respondent dismissed appellant from her employment.

Appellant subsequently brought this action against respondent alleging reprisal in

violation of the MHRA. Respondent moved to strike from appellant’s complaint excerpts

of letters sent by respondent’s counsel dated August 30, 2013, and September 9, 2013,

because they referenced statements made in the course of settlement negotiations that are

inadmissible under Minn. R. Evid. 408. The district court granted respondent’s motion,

concluding that, under rule 408, the challenged excerpts could not be used to “prove

liability for or invalidity of [appellant’s] claim” because the excerpts were based on

settlement communications. The district court also directed appellant to amend her

complaint consistent with the order.

After appellant amended her complaint in compliance with the district court’s

order, appellant served respondent with a second set of interrogatories and requests for

production of documents on March 19, 2014. Among other things, appellant sought the

identity of any patients in the reception area on September 10, 2013. Respondent

objected to the release of this information, claiming that the information was irrelevant

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and protected by the physician-patient privilege. Consequently, on June 23, 2014,

appellant move to compel respondent’s responses to the requests.

In the meantime, on April 16, 2014, appellant again moved to amend her

complaint to add claims of sexual harassment in violation of the MHRA and Title VII of

the Civil Rights Act of 1964. In support of her motion, appellant claimed that she did not

initially bring a hostile-environment sexual-harassment claim because respondent’s

counsel represented that any sexual-harassment claim would be defeated by the

Faragher/Ellerth affirmative defense. Appellant claimed that, upon deposing Gruman,

she learned for the first time that he was no longer running the company and that

Woodman had been delegated that responsibility. Appellant asserted that based upon the

newly discovered information that Woodman ran the entire company, the

Faragher/Ellerth defense was unavailable to respondent because it does not apply when

the supervisor is the employer’s proxy or alter ego. Respondent opposed the motion to

amend as untimely and prejudicial.

On the same day that appellant moved to amend her amended complaint,

respondent filed a motion for summary judgment. The district court granted respondent’s

motion for summary judgment, concluding that “no reasonable jury could conclude that

[appellant’s] termination was in reprisal for her attorney’s report of alleged sexual

harassment.” The district court also determined that “the idea that [appellant] was

unaware of Woodman’s status at [the company] until March 18, 2014 is ludicrous” in

light of the fact that appellant worked with Woodman since 2000, and served as his

administrative assistant before and after he became general manger. In addition, the

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district court determined that respondent would be prejudiced if appellant were allowed

to amend her complaint because respondent had already filed a motion for summary

judgment on the reprisal claim, and granting of the motion would require more

depositions and would delay scheduling. Thus, the district court denied appellant’s

motion to amend. Finally, the district court denied appellant’s motion to compel,

concluding that the information appellant sought was irrelevant. This appeal followed.

DECISION

I. Motion to amend

Appellant challenges the district court’s decision denying her motion to amend her

amended complaint to add a claim for sexual harassment/hostile work environment.

After a responsive pleading is served, “a party may amend a pleading only by leave of

court or by written consent of the adverse party; and leave shall be freely given when

justice so requires.” Minn. R. Civ. P. 15.01. But leave should not be given if doing so

“would result in prejudice to the other party.” Fabio v. Bellomo, 504 N.W.2d 758, 761

(Minn. 1993). “The [district] court has wide discretion to grant or deny an amendment,

and its action will not be reversed absent a clear abuse of discretion.” Id.

The Faragher/Ellerth affirmative defense is satisfied by an employer who proves

that (1) it exercised reasonable care to prevent and correct workplace harassment and

(2) the victim-employee unreasonably failed to take advantage of employer-established

preventive and corrective mechanisms. Schmitz, 852 NW.2d at 671 n.1 (citing Faragher,

524 U.S. at 807, 118 S. Ct. 2293; Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270). But the

Faragher/Ellerth affirmative defense is unavailable when the harrassing supervisor is the

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employer’s proxy or alter ego. Faragher, 524 U.S. at 789-90, 118 S. Ct. 2284; Ellerth,

524 U.S. at 758, 118 S. Ct. at 2267; see Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376,

383-84 (5th Cir. 2003) (holding that the Faragher/Ellerth defense is unavailable “when

the harassing supervisor is . . . ‘indisputably within that class of an employer

organization’s officials who may be treated as the organization’s proxy’” (quoting

Faragher, 524 U.S. at 789, 118 S. Ct. at 2275) (emphasis omitted)).

Appellant argues that the district court abused its discretion by denying her motion

to amend because as soon as she learned of Woodman’s authority at the company,

making the Faragher/Ellerth defense inapplicable to respondent, she “acted diligently to

amend her complaint.” We disagree. A party seeking to amend a pleading must move

with reasonable diligence, especially where an amendment would inject a new issue that

may necessitate additional evidence from the adverse party. Willmar Gas Co. v.

Duininck, 239 Minn. 173, 173, 58 N.W.2d 197, 917 (1953). A district court may deny a

proposed amendment if the moving party fails to show good cause for failing to include

the claim in the original complaint. Hempel v. Creek House Trust, 743 N.W.2d 305, 313

(Minn. App. 2007).

Here, the record reflects that appellant worked with Woodman in the same office

from 2000 to 2013, she was present at that office when Gruman retired and Woodman

moved into Gruman’s office, and she served as Woodman’s administrative assistant both

before and after he became general manager. Thus, the district court’s determination that

it is “ludicrous” that appellant was unaware of Woodman’s employment status with

respondent until March 14, 2014, is fully supported by the record. Moreover, while

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respondent may have an affirmative defense, this does not excuse appellant from timely

asserting her claim. And finally, the record supports the district court’s determination

that respondent would be prejudiced if appellant were allowed to amend her complaint.

At the time appellant filed her motion to amend, the parties had deposed appellant and

five of respondent’s employees. All of these individuals, including appellant, would

likely need to be re-deposed. Therefore, we conclude that the district court did not abuse

its discretion by denying appellant’s motion to amend the amended complaint.

II. Summary judgment

On appeal from summary judgment, we review de novo whether there are any

genuine issues of material fact and whether the district court erred in its application of the

law. Star Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). We

view the evidence in the light most favorable to the nonmoving party. Fabio, 504

N.W.2d at 761. In construing the MHRA, this court applies both Minnesota caselaw and

“law developed in federal cases arising under Title VII of the 1964 Civil Rights Act.”

Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

The MHRA prohibits reprisal against an individual for taking action protected by

the act. Minn. Stat. § 363A.15 (2014). “A reprisal includes . . . any form of intimidation,

retaliation, or harassment.” Bahr v. Capella Univ., 788 N.W.2d 76, 81 (Minn.

2010) (emphases omitted).

A reprisal claim is analyzed under the McDonnell Douglas burden-shifting test.

Fletcher, 589 N.W.2d at 101. The prima facie case for reprisal requires the plaintiff to

establish “(1) statutorily-protected conduct by the employee; (2) adverse employment

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action by the employer; and (3) a causal connection between the two.” Hubbard v.

United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). If the employee establishes

a prima facie reprisal case, the burden then shifts to the employer to show legitimate,

nondiscriminatory reasons for its actions. Fletcher, 589 N.W.2d at 102. If the employer

meets this burden, the burden shifts back to the employee to demonstrate that the

employer’s reasons were actually a pretext for discrimination. Id.

The district court held that appellant satisfied the first two elements of her prima

facie case of reprisal. But, in concluding that appellant had satisfied the second element,

the district court rejected appellant’s claim that the August 30, 2013 letter constitutes

adverse employment action taken against her because (1) under the district court’s

previous order filed on December 20, 2013, the letter was inadmissible to prove liability

for her claim; and (2) “the letter does not threaten termination; it merely notes that there

is ample pre-existing authority to support termination.” The district court then appears to

conclude that appellant was unable to satisfy her prima facie case because she failed to

establish that her sexual harassment claim was causally related to her termination. The

district court further concluded that even if appellant could establish a prima facie case,

respondent has satisfied its burden to produce a nondiscriminatory reason for the

discharge by producing evidence of the “problems with [appellant’s] behavior since late

2012.” Finally, the district court concluded that appellant “has not shown that

[respondent’s] nondiscriminatory reason for her termination is merely a pretext.”

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 A. Prima facie case

The parties agree that appellant “engaged in protected conduct when she alleged in

her August 26, 2013 letter that Woodman had sexually harassed her,” and that respondent

“took an adverse action against [appellant] when it terminated” her employment. But

appellant argues that the district court erred by concluding that respondent’s August 30,

2013 letter was neither admissible for proving, nor evidence of, an adverse employment

action against appellant. She argues further that the district court erred by concluding

that appellant failed to establish a prima facie case of sexual harassment because she did

not show a causal connection between her protected conduct and her termination from

employment.

1. August 30, 2013 letter

Respondent initially contends that we should not consider appellant’s arguments

regarding the August 30, 2013 letter because appellant “failed to properly notice her

appeal of the order to strike” the letter. But the order granting respondent’s motion to

strike did not strike appellant’s cause of action, only the references to the August 30,

2013 letter. Thus, the order striking part of the complaint was not appealable. See Minn.

R. Civ. App. P. 103.03; Matesic v. Maras, 177 Minn. 240, 241, 225 N.W. 84, 84 (1929)

(holding that an order denying a motion to strike out portions of the complaint was not an

appealable order). Therefore, the issue is reviewable.

Respondent also argues that the district court properly concluded that references to

the August 30, 2013 letter were protected settlement communication and, therefore,

inadmissible under Minn. R. Evid. 408. Generally, evidentiary rulings are reviewed for

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an abuse of discretion. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App.

2001), review denied (Minn. Oct. 24, 2001).

Rule 408 prohibits admission of evidence of conduct or statements made in

compromise negotiations to prove liability for, invalidity of, or value of a claim. Minn.

R. Evid. 408; see C.J. Duffey Paper Co. v. Reger, 588 N.W.2d 519, 524 (Minn. App.

1999) (stating that rule 408 prohibits the admission of evidence when the evidence

pertains to a compromise on “a claim which was disputed as to either validity or

amount”), review denied (Minn. Apr. 28, 1999). Exclusion of this evidence is not

required when offered “for another purpose, such as proving bias or prejudice of a

witness, negativing a contention of undue delay, or proving an effort to obstruct a

criminal investigation or prosecution.” Id.

Appellant contends that the “disputed claim at the time the August 30, 2013 letter

was written was [her] claim of sexual harassment[;] [n]o reprisal claim existed at the time

the . . . letter was sent.” Thus, appellant argues that the letter was admissible because she

was “seeking to use the August 30, 2013 letter for a purpose other than proving the

validity of the claim in dispute at the time of the August 30 letter.”

We disagree. Although appellant’s reprisal claim had not arisen at the time of the

August 30 letter, her alleged sexual harassment/hostile work environment claim was at

issue, and that claim arose from the same general set of facts and circumstances as the

reprisal claim. See T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773 N.W.2d 783,

787 (Minn. 2009) (stating that “[t]his court has given ‘claim’ and ‘cause of action’ the

same meanings: a group of operative facts giving rise to one or more bases for suing, or

13
the legal theory of a lawsuit” (quotation omitted)). A review of the letters at issue

demonstrates that appellant sent two letters to respondent laying out a basis for a sexual

harassment/hostile work environment claim, stating that appellant has “authorized

[counsel] to commence litigation on her behalf,” and proposing a settlement sum “in

exchange” for “a release” of appellant’s claims. Respondent’s August 30 letter

responded to the allegations and disputed that appellant had a viable cause of action. The

letter also stated that respondent had a valid basis to terminate appellant’s behavior based

on her performance, but stated that it would consider a payment of a much smaller sum

“in exchange for [appellant’s] immediate resignation, full release of all claims, and

confidentiality.” These letters are clearly settlement discussions as they indicate that

there was a dispute regarding the validity of appellant’s sexual harassment/hostile work

environment claim, as well as the facts and circumstances that could give rise to any

other bases for suing. See Schifsky, 773 N.W.2d at 787. In fact, the letters were

specifically labeled “confidential settlement communication,” and the parties agreed at

oral argument that the letters were intended to posture for their clients. See Reger, 588

N.W.2d at 525 (recognizing facts that would weigh in favor of excluding a letter under

rule 408). Therefore, the district court did not err by concluding that the letter was

inadmissible under Minn. R. Evid. 408.

2. Causal connection

Appellant also argues that the district court erred by concluding that she failed to

establish a causal connection between her protected conduct and her discharge. A causal

connection between protected activity and adverse employment action taken by the

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employer “may be demonstrated indirectly by evidence of circumstances that justify an

inference of retaliatory motive, such as a showing that the employer has actual or

imputed knowledge of the protected activity and the adverse employment action follows

closely in time.” Hubbard, 330 N.W.2d at 445. “Proof of a casual connection must be

something more than merely consistent with the plaintiff’s theory of the case.” Bernloehr

v. Cent. Livestock Order Buying Co., 296 Minn. 222, 224, 208 N.W.2d 753, 754 (1973).

When timing is suggested as proof of causation, the time between an employee’s

complaint and the employer’s action must be “very close.” Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001).

In Hubbard, the supreme court concluded that a causal connection was established

when the plaintiff was terminated two days after serving a complaint alleging retaliation

under the MHRA. 330 N.W.2d at 445. And in Tretter v. Liquipak Intern., Inc., this court

found that an inference was established under the MHRA when employee was demoted

three months after complaining about her manager and was terminated six months later.

356 N.W.2d 713, 715 (Minn. App. 1984).

Appellant argues that “timing alone would provide sufficient evidence in this case

to support a causal connection under a simple application of Hubbard.” We agree. The

record reflects that appellant formally complained of the sexual harassment on August

26, 2013, and was fired just over two weeks later. And appellant actually worked only

seven of those days because she was on vacation for several days after formally

complaining of the harassment. Under Hubbard, the timing of appellant’s discharge

creates an issue of material fact on whether a causal connection exists between

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appellant’s protected conduct and her discharge. See 330 N.W.2d at 445; see also

Tretter, 356 N.W.2d at 715. Appellant is able to establish a prima facie case of reprisal.

B. Nondiscriminatory reasons for discharge

Because appellant has established a prima facie case of reprisal, the burden shifts

to respondent to show that it terminated appellant for a legitimate, nondiscriminatory

reason. See Hubbard, 330 N.W.2d at 445. The record reflects that appellant was

reprimanded several times beginning in late 2012, and received a final warning shortly

before she complained of sexual harassment. The record also reflects that, after

complaining of the sexual harassment, appellant was fired when she violated the terms of

her final warning. Thus, respondent articulated a legitimate, nondiscriminatory reason

for the discharge.

C. Pretext

If the employer succeeds in carrying its burden of production, the third step of the

McDonnell Douglas analysis requires the plaintiff to show that the reason or justification

stated by the employer is actually a pretext for discrimination. Fletcher, 589 N.W.2d at

102. The plaintiff has the burden of persuading the court by a preponderance of the

evidence that the employer intentionally discriminated against her. Sigurdson v. Isanti

County, 386 N.W.2d 715, 720 (Minn. 1986). Although temporal proximity may be

sufficient to satisfy the causal-connection element, it is not sufficient to prove pretext.

Hubbard, 330 N.W.2d at 445-46. Pretext may be shown “either directly by persuading

the court that a discriminatory reason likely motivated the employer or indirectly by

16
showing that the employer’s proffered explanation is unworthy of credence.” Sigurdson,

386 N.W.2d at 720 (quotation omitted).

Appellant argues that she “has ample evidence that her discharge was motivated at

least in part by her protected conduct.” To support her claim, appellant argues that it is

reasonable to infer that Cedarblade, Hubers, and Gruman perceived her complaint as an

attack on the company, felt that appellant could not stay with the company after her

report about Woodman, and wanted Woodman back from leave to run the company but

thought that this could not happen unless appellant was discharged. Appellant claims that

it is reasonable to infer that respondent then attempted to intimidate her into voluntarily

resigning on respondent’s terms, and when that failed, it “grasped at the first pretext that

presented itself and terminated her employment.”

We disagree. Summary judgment is appropriate when appellant’s allegations of

discriminatory pretext are merely “conclusory or unsupported by evidence in the record.”

Albertson v. FMC Corp., 437 N.W.2d 113, 117 (Minn. App. 1989). In other words,

appellant’s subjective belief, without more, cannot raise a genuine issue of material fact

regarding a discriminatory motive for her discharge. See Mills v. First Fed. Sav. & Loan

Ass’n of Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) (“[I]f the subjective beliefs of

plaintiffs in employment discrimination cases could, by themselves, create genuine issues

of material fact, then virtually all defense motions for summary judgment in such cases

would be doomed.”). And appellant cannot rely on the inference of retaliation created by

the prima facie case to prove pretext. Hubbard, 330 N.W.2d at 445-46.

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 Here, appellant simply manufactures a plausible explanation of the events based

on her subjective view of the evidence and claims that she has demonstrated pretext

because it is reasonable to infer this explanation from the evidence. But appellant fails to

support her theory with any evidence and, as the district court determined, it is “too

speculative to survive summary judgment.” Without more than mere suggestions,

appellant is unable to establish that her discharge was motivated by her protected

conduct.

Appellant also contends that respondent’s proffered explanation for termination is

unworthy of credence and that the district court erred by ignoring evidence disputing

respondent’s position. We disagree. The record reflects a series of escalating conduct by

appellant that led to her dismissal. Appellant was first reprimanded for having an

emotional outburst in December 2012, long before she filed her complaint in August

2013. Appellant also received a two-day suspension in June 2013, following an outburst,

and she admitted that her behavior was unacceptable. Shortly thereafter, appellant was

reprimanded for using an e-cigarette at her workstation and having poor telephone

demeanor. Appellant then received a final warning and was placed on probation on

August 1, 2013, following another outburst. Although appellant may now dispute some

of these allegations, they were all made before her report of sexual harassment and,

therefore, support a legitimate basis for her termination. See Jackson v. Della Special

School Dist. No. 2, 86 F.3d 1489, 1495 (8th Cir. 1996) (recognizing that a history of poor

performance before a complaint is filed supports a conclusion that the termination is not

pretextual).

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 Finally, appellant’s denial that her conduct constituted an “outburst” on September

10, 2013, which prompted her dismissal, is insufficient to establish that respondent’s

proffered explanation is unworthy of credence. Appellant’s alleged conduct is consistent

with her previous unacceptable behavior, and respondent’s response is consistent with its

previous reprimands and final warning. Moreover, despite appellant’s claims that she

should not be terminated for failing to pull files because she attempted to set up a

schedule to pull the files, she admits that she never pulled the files even though she was

told to do so over a month earlier. Appellant’s conduct was in violation of her final

warning and demonstrates that respondent’s proffered reason for terminating appellant is

worthy of credence. Accordingly, the district court did not err by granting respondent’s

motion for summary judgment because appellant failed to show that respondent’s

nondiscriminatory reason for her termination is merely a pretext for discrimination.

III. Motion to compel

The proper method for objecting to discovery violations is a motion to

compel during pretrial proceedings. See Minn. R. Civ. P. 37.01. Under Minn. R. Civ. P.

37.01(b)(2), a party may request an order compelling discovery in the event of

incomplete or nonresponsive discovery responses. The district court has wide discretion

to issue discovery orders and, absent a clear abuse of that discretion, its discovery orders

will not be disturbed. In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007).

Appellant argues that the district court abused its discretion by denying her motion

to compel information concerning the identity of any patients in the reception area on

September 10, 2013, as well as the individual to whom she was speaking when the

19
alleged outburst occurred. Appellant contends that the information is relevant to the

issues of credibility because it will shed light on whether appellant’s alleged outburst was

consistent with Benson’s report. But, as the district court determined, whether appellant

had an emotional outburst “does not affect her admission that she failed to pull files as

required by the terms of the Final Warning.” Appellant’s admission that she failed to pull

the files in violation of the mandate in the final warning demonstrates that respondent’s

proffered explanation of discharge is worthy of credence. Thus, the information is

irrelevant, and the district court did not abuse its discretion by denying appellant’s motion

to compel.

Affirmed.

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