Crystal Grosch, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2035

Crystal Grosch,
Appellant,

vs.

Soo Line Railroad Company,
d/b/a Canadian Pacific,
Respondent.

Filed September 18, 2017
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-14-17783

Joni M. Thome, Daniel G. Leland (of c ounsel), Baillon Thome Jozwiak & Wanta LLP,
Minneapolis, Minnesota (for appellant)

Daniel Oberdorfer, Tracey Holmes Donesky, Steven Katras, Stinson Leonard Street LLP,
Minneapolis, Minnesota (for respondent)

Considered and decided by Reilly, Pres iding Judge; Reyes, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from judgmen t in favor of respondent on her disability-discrimination
and reprisal claims, appellant asserts that the district cour t erred by: (1) dismissing her
disability-discrimination and failure-to-accommodate claims on summary judgment based

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on the determination that she could not pe rform an essential function of her job;
(2) determining that her disability-discrimina tion claims were barred after November 20,
2012, when appellant was tota lly and permanently disabled for purposes of receiving
disability benefits; (3) finding, following a court trial, that re spondent did not commit
reprisal; (4) failing to admit appellant’s medical records at trial; and (5) awarding
respondent costs and fees for an expert witness. We affirm.
FACTS
Respondent Soo Line Railroad Company, d/ b/a Canadian Pacific, is a railroad
company that provides freight rail transportation in several states, including Minnesota. In
2002, respondent hired appella nt Crystal Grosch, who worked as a crew dispatcher until
May 2008, when she transferred positions and began work as an audit clerk in the pay
services department. In 2009, appellant wa s involved in a car accident and sustained
serious injuries, which affect ed her ability to complete da ily work tasks. Respondent
successfully accommodated appellant’s work rest rictions while appellant worked as an
audit clerk, and continued to accommodate her restrictions after she transferred positions
within the pay services department and began working as a garnishment and wage clerk.
In November 2012, responde nt asked appellant to complete filing, estimated to
include between 500 and 600 documents, which substantia lly exceeded her work
restrictions. This task caused appellant’s injuri es to “flare up,” and, as a result, appellant
returned to see her physician who revised her work restrictions to prohibit “any filing.”
Because respondent determined that filing is an essential function of appellant’s job,
respondent informed appellant that it could no longer reasonably accommodate her

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disability without violating her medical restrictions and causing undue hardship among her
coworkers. Appellant disagreed with respondent’s determination and notified respondent
that filing was only a minor function of her position that could easily be reassigned to her
coworkers. Respondent encouraged appellant to keep it informed of any change to her
restrictions, noting that any updates would be “helpful in our ongoing dialogue.”
In December 2012, appellant applied for di sability benefits from the United States
Railroad Retirement Board (RRB), alleging th at her depression and work restriction
barring “repetitive use of her upper extremities” rendered her unable to work. In her
supplemental form to the RRB, appellant repor ted that “[n]obody is responsible for [her]
depression, which is what [she is] getting short term disability for.”
Shortly thereafter, in January 2013, appe llant notified respondent of revised work
restrictions, which lifted the absolute prohibition on filing, but barred her from “filing and
folding documents in excess of 15 docume nts per hour” and prohibited “substantial,
repetitive use of the upper extremities above h eart level.” After receiving appellant’s
updated work restrictions, respondent asked a ppellant to clarify what constitutes
“substantial,” “repetitive,” and “use of th e upper extremities above heart level,” but
appellant failed to answer respondent’s request for clarification.
In April 2013, the RRB found that appellant was totally and permanently disabled
due to her physical and mental impairments, including “schizoaffective disorder, anxiety,

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personality disorder, and myofascitis.” The RRB determined that this finding satisfied the
requirements for a disability annuity with an onset date of November 20, 2012.1
Appellant initiated this lawsuit alleging th ree violations of the Minnesota Human
Rights Act (MHRA), including: (1) disability discrimination; (2) failure to accommodate;
and (3) reprisal. Respondent moved for su mmary judgment on all three of appellant’s
claims, and the district court summarily dismissed appellant’s disability-discrimination and
failure-to-accommodate claims, but denied respondent’s motion for summary dismissal of
appellant’s reprisal claim. After a court tria l on appellant’s remaining claim, the district
court found that appellant faile d to prove by a preponderan ce of the eviden ce that she
suffered reprisal. Appellant subsequently f iled post-trial motions to open judgment, to
amend the findings of fact and conclusions of law, for entry of a new judgment and for a
new trial; the district court denied these motions in their entirety.
This appeal follows.
D E C I S I O N
I. Disability-Discrimination and Failure-to-Accommodate Claims
A. Standard of Review
On appeal from summary judgment, this court must determine whether there are
genuine issues of material fact for trial and whether the district court erred in its application
of the law. Hoover v. Norwest Private Mortg. Banking , 632 N.W.2d 534, 542 (Minn.

1 Appellant’s receipt of the RRB annuity is pr edicated on her continued disability and is
subject to change if appellant ’s condition improves. The reco rd suggests that appellant
continues to receive the annuity.

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2001). When considering a grant of summary judgment, this cour t “need not adopt the
reasoning of the district court” and may instead “affirm a grant of summary judgment if it
can be sustained on any grounds.” Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163
(Minn. 2012).
B. Judicial Estoppel
The district court determined that no genuine issue of material fact exists with regard
to appellant’s claims of disability discrimination and failure to accommodate, and granted
summary judgment for two separate and i ndependent reasons: (1) appellant failed to
present evidence that she was qualified for the garnishment and wage clerk position given
her work restriction prohibiting her from “a ny filing,” and (2) a ppellant’s contrary
representations to the RRB judicially estopp ed her from claiming that she was physically
or mentally qualified for the position. Appellant challenges both determinations on appeal.
Because we conclude that appellant’s contra ry representations to the RRB judicially
estopped her from claiming that she was physically or mentally qualified for the position,
we decline to address whether undisputed ev idence establishes that filing constitutes an
essential function of the garnishment and wage clerk position.
In essence, appellant argues that the dist rict court erred by concluding, as a matter
of law, that she was judicially estopped from proving that she has been a qualified disabled
person after November 20, 2012, because: (1) established law prohibits a per se rule barring
disability benefit applicants from asserting disability-discrimination claims, and (2) the
district court misrepresented appellant’s st atement in her RRB application for disability
benefits. Appellant further asserts that the district court erred by relying on the findings of

6
fact set forth in its summary judgment order, instead of making new factual findings based
on the evidence presented at trial. We disagree.
Judicial estoppel is an equitable doctrine that is generally intended to “prevent[] a
party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by
that party in a previous proceeding.” Van Horn v. Martin, 812 F.3d 1180, 1182 (8th Cir.
2016) (citation omitted). In deciding whether to apply the doctrine, courts often consider
whether: (1) a party’s current position is clear ly inconsistent with the party’s earlier
position, (2) the party succeeded in persuading the court to accept its earlier position, and
(3) the party seeking to assert an inconsistent position would derive an unfair advantage if
judicial estoppel did not apply. Id.
Both parties cite Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06, 119
S. Ct. at 1597 (1999), as su pport for their arguments regard ing judicial estoppel. In
Cleveland, the plaintiff sought and obtained Soci al Security Disability Insurance (SSDI)
benefits and later filed a disability-discrim ination claim against her employer under the
Americans with Disabilities Act (ADA). Id. at 798, 119 S. Ct. at 1600. In her application
for SSDI benefits, the plaintiff stated that she “could no longer do the job” given her
condition. Id. at 799, 119 S. Ct. at 1600. The plaintiff commenced a disability-
discrimination action under the ADA, alleging that she was a qualified disabled person
who could perform the essential functions of her job with reasonable accommodations. Id.
The Supreme Court granted review and cautioned that receipt of SSDI benefits and
disability-discrimination claims under the ADA do not “inherently conflict,” as the Social
Security Administration does not consider whether the qualified disabled person may

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continue to work with reasonable accommodations, while claims brought under the ADA
take “reasonable accommodation” into account. Id. at 802-03, 119 S. Ct. at 1602. For that
reason, the Court indicated that prior rece ipt of disability-relate d benefits does not
necessarily preclude a later disability-discrimination claim brought under the ADA. Id. at
804-05, 119 S. Ct. at 1602-03. But a “previous sworn statement asserting ‘total disability’
or the like, . . . require[s] an explanation of any apparent inconsistency with the necessary
elements” of a disability-d iscrimination claim. Id. at 807, 119 S. Ct. at 1604. To defeat
summary dismissal of a plain tiff’s disability-discriminati on or failure-to-accommodate
claim, the explanation “must be sufficient to warrant a reasonable juror’s concluding that,
assuming the truth of, or the plaintiff’s good -faith belief in, the ear lier statement, the
plaintiff could nonetheless ‘perform the essen tial functions’ of her jo b, with or without
‘reasonable accommodation.’” Id. at 807, 119 S. Ct. at 1604.
Following the reasoning set forth in Cleveland, courts have since granted summary
judgment when plaintiffs sought and obtai ned permanent disability payments from the
RRB and later claimed to be qualified to work. See, e.g., Newberry v. Burlington N. Santa
Fe R.R. , No. 00-260, 2002 WL 535029, at *2- 3 (D. Minn. Mar. 29, 2002) (granting
summary judgment because plaintiff’s RRB application reported he was “unable to work”).
Here, the district court did not rely on a per se rule barring all disability benefit recipients
from filing disability-discrimin ation claims, but instead considered whether appellant
adequately explained the disc repancy between her RRB permanent disability application
and the statements in her MHRA claim. In doing so, the district court relied on appellant’s
representations in her RRB app lication that “[she] could no longer work because of” her

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“work restriction [tha t] says no repetitive use of upp er extremities,” depression, and
seizures. The RRB determined that appellant was “totally and permanently disabled for all
work” due to her “impairments of schizoaffective disorder, a nxiety, personality disorder,
and myofascitis,” and appellant failed to make any representations to the district court or
on appeal that “she does not remain totally and permanently disabled .” Appellant also
failed to explain how reasonable accommodations would permit her to work in spite of her
work restrictions. We therefore conclude that the district court did not err by determining
that appellant is judicially estopped from asserting that she was a qualified disabled person
after November 20, 2012.
II. Reprisal Claim

Appellant also asserts that the district c ourt improperly denied her reprisal claim,
arguing that the district court’s findings are in consistent, and that th e district court relied
on defenses not argued by the parties at trial. Respondent argues that the district court
properly determined that appellant failed to meet her burden to demonstrate that respondent
was motivated by retaliatory animus in the two adverse actions against appellant:
(1) deciding to place appellant on leave, and (2) the decision not to return appellant to her
job.
A. Standard of Review

On appeal from a bench trial, we review fi ndings of fact for clear error. Minn. R.
Civ. P. 52.01. Findings of fact are considered clearly e rroneous only if they are not
reasonably supported by the evidence. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96,
102 (Minn. 1999). A finding is clearly errone ous only if the reviewing court is “left with

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the definite and firm conviction that a mistake has been made.” Gjovik v. Strope , 401
N.W.2d 664, 667 (Minn. 1987). On appeal, th is court reviews the evidence in the light
most favorable to the district court’s factua l findings and defers to the district court’s
credibility determinations. Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).
B. Motivating Factors
To establish a prima facie case for re prisal under the MHRA, appellant must
establish the following three elements: “(1) statutorily-protected conduct by the employee;
(2) adverse employment action by the employer; and (3) a causal connection between the
two.” Bahr v. Capella Univ. , 788 N.W.2d 76, 81 (Minn. 2010) (quoting Hoover, 632
N.W.2d at 548). Appellant challenges only the third element, arguing that the district court
erred by determining that appellant failed to establish a causal connection between the
statutorily protected conduct and her employer’s actions preventing he r return to work.
Appellant argues that the district court “[a]scrib[ed] motivation and intent unsupported by
the evidence,” and, as a result, erred by conc luding that respondent ’s actions were not
retaliation for protected conduct.
Appellant’s argument disregards the majority of the evidence supporting the district
court’s determination that numerous reasons other than retaliation supported respondent’s
decision to remove appellant from the department, including that appellant: (1) ignored and
flouted her supervisor’s management directiv es, (2) disparaged the department, (3) had
strained relationships with her coworkers, (4) passive aggressively ignored her supervisor’s
requests, and (4) is “disingenuous,” “highl y questionable,” and “exhibits a selective
memory.” Appellant also igno res the district court’s finding s that (1) “[the supervisor]

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understood her obligations and made constructive effort s to clarify [a]ppellant’s
restrictions so a potential accommodatio n may be made,” and (2) respondent’s
communications to appellant did not discuss appellant’s work restrictions “in any way that
even implies an animus toward her for submitting them.” There is substantial evidence in
the record to support these findings.
We therefore conclude that the district c ourt’s findings with respect to appellant’s
reprisal claim are not clearly erroneous.
III. Good Faith Participation in the Interactive Process

Appellant next argues that the district court erred by granting summary dismissal of
her failure to accommodate claim. It is uncl ear what relief appellant is seeking, and she
fails to cite to relevant facts or legal authority supporting this claim. We therefore consider
this argument forfeited. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (deeming
forfeited arguments on appeal that are unsupport ed by facts in the r ecord and contain no
citation to relevant legal authority).
IV. Appellant’s Medical Records

Next, appellant argues that the district court erred by not admitting her medical
records at trial because the district court “provisionally accepted those records,” but made
determinations with regard to appellant’s medical condition without considering the
admitted records. What relief appellant is seeking from this alleged error is again unclear;
appellant states only that “[a] district court should not and cannot draw conclusions about
a person’s medical condition while failing to consider medical records”—appellant

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provides no relevant authority in support of this assertion. Nonetheless, we will address
the merits of this argument.
“The question whether to admit evidence rests within the broad discretion of the
district court, and the district court’s decision will not be disturbed unless it constitutes an
abuse of discretion or is based on an erroneous view of the law.” Benson v. Nw. Airlines,
Inc., 561 N.W.2d 530, 536 (Minn. App. 1997), review denied (Minn. June 11, 1997). If a
party is seeking a new trial on the ground of an improper evidentiary ruling, the party bears
the burden of demonstrating prejudicial error. Id.
Here, appellant mischaracterizes the record. At trial, appellant stipulated that she
would not call her treating health care providers, did not call a medical expert, and did not
offer the contested medical records through re spondent’s expert. But the record clearly
shows that the district court admitted and c onsidered appellant’s medical records, but
ultimately found these records unconvincing given appella nt’s contradictory testimony.
This argument is unpersuasive.
V. Expert Witness Costs and Fees

Lastly, appellant argues that the district court’s award of expert costs to respondent
is clearly erroneous. In essence, appellant c ontends that the district court may not award
fees in this matter because the district court expressly found her claims were not frivolous
or pursued in bad faith.
The MHRA permits district courts to award a prevailing party reasonable attorney
fees as part of the party’s costs, Minn. Stat. § 363A.33, subd. 7 (2016), unless the prevailing
party is a defendant in which case the district court may only award attorney fees if the

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plaintiff’s claim is “frivolous, unreasonable, or without foundation, or [is] brought in bad
faith,” Sigurdson v. Isanti Cnty., 386 N.W.2d 715, 722 (Minn. 1986). Attorney fees under
this provision include expert witness fees. Minn. Stat. § 363A.33, subd. 7. Because the
district court determined that all of appellant’s claims were not frivolous, unreasonable, or
brought in bad faith, the district court deni ed respondent’s motion for attorney fees,
including expert witness fees, under Minn. Stat. § 363A.33, subd. 7.
A prevailing party in any civil acti on, however, is entitled to “reasonable
disbursements paid or incurred” under Minn. Stat. § 549.04, subd. 1 (2016). And an award
under this statute may include expert costs and fees. See Minn. Stat. § 357.25 (2016) (“[A]
judge of any court of record, before w hom any witness is summoned or sworn and
examined as an expert in any profession or calling, may allow such fees or compensation
as may be just and reasonable.”).
Because respondent’s expert witness, D r. Ronald Groat, tes tified at trial and
provided services, the district court awarded respondent $30,715.24 in costs. Appellant
does not contest the reasonableness of the expert’s fees; instead, appellant argues that fees
are inappropriate because the court did not rely on these services or consider this testimony.
Appellant fails to cite to any relevant auth ority in support of these assertions, and we
therefore decline to consider these arguments. See Minn. R. Civ. App. P. 128.02, subd.
1(d) (establishing that arguments raised on appeal must be sup ported by citations to
relevant legal authority); see also Stephens v. Bd. of Regents, 614 N.W.2d 764, 770-71 n.4
(Minn. App. 2000) (declining to address issue unsupported by legal analysis), review

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denied (Minn. Sept. 26, 2000). Th e district court’s award of expert costs and fees under
Minn. Stat. § 549.04 was proper.
Affirmed.