Robert Grado, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0908

Robert Grado,
Appellant,

vs.

Integrated Office Solutions Inc.,
Respondent.

Filed May 4, 2020
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CV-17-2262

Robert Grado, Edina, Minnesota (pro se appellant)

Gina K. Janeiro, Elizabeth S. Gerling, Ja ckson Lewis P.C., Minneapolis, Minnesota (for
respondent)

Considered and decided by Rodenberg, Presiding Judge; Smith, Tracy M., Judge;
and Klaphake, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Robert Grado challenges the summary-judgment dismissal of his claims
arising out of the termination of his empl oyment with respondent Integrated Office
Solutions Inc. (IOS) after he suffered a stroke and failed to return to work. The district
court dismissed Grado’s claims for (1) disa bility discrimination, because Grado had not
produced evidence suffici ent to show that he was disa bled; (2) failure to provide a
reasonable accommodation, because there was no dispute that IOS had too few employees
to be subject to a reasonable-accommodation requirement; (3) whistleblower retaliation,
because Grado, as a matter of law, had not de monstrated that he engaged in protected
activity; (4) breach of contract, because Gra do had not produced ev idence sufficient to
show a breach; and (5) failure to pay wages, because Grado had not produced evidence
sufficient to show he was entitled to any additional wages actually earned. We affirm.
FACTS
1. The parties
IOS is a copier, fax, and printer dealer located in Duluth. Scott and Carol Thul
started IOS in May 1996. Scott Thul is the president and lead salesperson of IOS, and Carol
Thul is responsible for general administrative duties. 1 The Thuls are collectively

1Throughout the remainder of this opinion, “Thul,” refers to Scott Thul, who more
frequently interacted with Gr ado throughout the events u nderlying this action. When
referencing Carol Thul, we include her first name for clarity.

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responsible for all employment decisions at IOS, including the hiring and firing of
employees. IOS is a small business that had fewer than 15 employees in 2016 and 2017.
In March 2016, Grado contacted various copier companies in the Duluth area,
including IOS, about employment opportuni ties. Grado had experience working in a
variety of sales and marketing positions, including owning his own company for 17 years.
The Thuls interviewed Grado in the spring of 2016, and Grado began employment as a
sales representative for IOS on May 1, 2016.
2. The compensation plan an d Grado’s sales performance
Prior to Grado’s start date with IOS, he and Thul entered into a “Sales
Representative Compensation Pl an” (the compensation plan ) on April 20, 2016. The
compensation plan sets Grado’s annual salary at $60,000 and prov ides for a “3% bonus
paid if Sales Rep is at 100% of budget—b ased on gross sales revenue.” The budget
specified in the plan is $250,000 in annual sales. Grado had from May 1, 2016, to April 30,
2017, to meet this sales goal.
When Grado was hired, he and Thul were the only two salespeople at IOS. Grado’s
sales territory included Minnesota commun ities such as Duluth, Hibbing, and Grand
Rapids, while Thul was responsible for sales in Northwest Wisconsin and some Minnesota
communities not assigned to Grado. Thul did have some “house accounts” within Grado’s
territory based on his longstanding relations hips with those customers. Grado was not
always sure which communities or accounts were his, but relied on Thul to understand
what could be counted toward his sales goal. According to Thul, Grado received credit
toward his sales goal for any new customer to whom Grado personally sold office

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equipment, regardless of where the customer was located. Grado also received credit
toward his sales goal for sales that Grado did not personally participate in if they were
located in his territory, unless the account was one of the specified house accounts. Grado
and Thul met roughly once per quarter to discuss sales and Grado’s progress toward the
sales goal. At these meetings, the two typica lly reviewed a sales list. The sales lists
contained customer entries for paid orders, as well as “pending” entries for orders that were
not yet paid. If a customer had not yet paid for a sale, it was not included toward Grado’s
potential bonus.
On April 28, 2017, a few days before th e end of Grado’s compensation year, Grado
and Thul had a meeting. At th at meeting, they reviewed th e final sales list for the year,
which showed all four quarters of sales, and Thul informed Grado that Grado had not met
the required $250,000-gross-sales-revenue goal and was th erefore ineligible for the three
percent bonus. IOS’s records reflected that, at that time, Grado’s gross sales revenues
totaled $212,463.17.
2 He had pending sales totaling $3 8,261. When Grado learned which
customers had not paid, he began making phone calls to see if he could get the payments
prior to the end of his compensation year. Grado never informed Thul of a specific
customer or sale that he believed should have been included on the final sales list but was
excluded.

2 IOS later recalculated Grado’s sales an d found and corrected two administrative
oversights, resulting in a corrected amount of $213,758.17.

5
Over the weekend following the April 28 meeting, Thul and Grado corresponded
via text messages. Thul sent the following me ssage to Grado: “Bobby I will take [sic] of
you on your bonus. Forward orders must be paid in full. Take a breath relax we did good!”
According to Thul, his intent in sending th e message was to communicate that he would
consider paying Grado a portion of the bonus because he had come close to reaching the
sales goal. Grado replied to the message and as ked if the bonus could be paid before his
vacation that was scheduled to start the following Friday. Grado then came to work as usual
Monday, May 1, and did not speak with Thul about the bonus.
3. Grado’s stroke and subsequent leave
On May 2, 2017, Grado texted Thul that he had suffered a stroke and was in the
hospital. Thul went to visit Grado in the hospital later that day. During the visit, a treating
physician came in and indicated that Grado woul d be able to return to work within two
weeks. Thul then told Grado to take care of himself a nd “not to worry about work.” IOS
continued to pay Grado his regular salary for about a month while Grado was away from
work.
Grado was released from the hospital the day after his stroke, on May 3. He sent
Thul a text message letting him know he was home and thanking him for his assistance and
support, and Thul, in turn, thanked Grado fo r the update and wished him well. Later that
day, Thul sent Grado another message that said, “No worries about work. Rest up and get
healthy! Keep me posted and let me know if I can help you in anyway.”
On May 5, Thul left Grado a voicem ail message containing the following:

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So, um, I had a chance to talk to [Carol Thul] on bonuses, I
need to get together with you on that Bobby, so you need to
give me a ring and we just gotta kind of figure out what’s going
on. And, if you have your original comp plan, feel free to bring
that along if you want. We’ll get you taken care of one way or
another. It just has to do with the pay periods, first and fifteenth
or the 30th, I guess, and the fifteenth and kind of how we would
handle that, and then kind of where things are headed from
there, so, um, want you to be able to relax Bobby, I’m still
really concerned about your hea lth and your well-being. So,
um, just want to make sure we get you taken care of Bobby, so
give me a ring at your convenience.

Grado responded via text message the next day, saying:
Thanks for your phone message last night Scott. I will be
meeting with my Dr. this Mond ay afternoon to determine my
health, work time-lines, etc. And yes, I would like to meet with
you regarding my bonus, last year’s accomplishments and our
year 2 plan. I will send over some notes I created and a copy of
our agreement for year 1 plan. Thanks for your encouragement
Scott, I’ll contact you by Tuesday.

Grado then sent Thul a screenshot of some typed notes, which included notes on the
April 28 year-end meeting and a list of out standing items that included “bonus payment”
and an employment letter for year two.
Grado had a doctor’s appointment on May 8, 2017, to discuss his recovery and
ability to return to work. The doctor he saw that day wrote a note stating that Grado would
“not be able to return to work until 5/17/17.” Grado never provided this information or the
note to IOS or Thul. Grado then saw a diffe rent doctor on May 18, 2017, and received a
letter from that doctor stating that “it is anticipated [Grado] may be able to return to work
in 2-4 weeks. He will be reassessed in 2 w eeks to make further de terminations in this
regard.” Grado did not immediately provide this note to IOS or Thul either.

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Throughout the month of May, Grado co ntinued with many of his regular daily
activities. At his deposition, when asked what his limitati ons were between May 2 and
June 19 (the date when his doctor released hi m to return to work w ithout restrictions), he
replied, “Just healing from a stroke, being grateful it could have been worse . . . I was very
fortunate.” He added that he was often tired but confirmed that he was able to walk, speak,
take care of himself, engage in social activities, attend the symphony, and purchase a new
car. And, on May 3, the day after his stroke , Grado’s doctor’s notes reflect that Grado
demonstrated “sound mobility” and was able to walk, mana ge stairs, and demonstrate
Jazzercise exercises. Grado came to IOS to pick up his paycheck on May 15, 2017, but
otherwise did not return to the office in May.
4. Grado’s meeting with the Thuls on June 5
On June 2, Thul sent Gra do a text message asking if the two could find a time to sit
down and talk. Grado did not provide an update on his medical condition or when he might
return to work but asked about days and times that would work to meet. Due to the lack of
communication from Grado regarding when he might return to work, Thul sent the
following text message on June 4:
I am requesting your return to work Monday June 5th. If your
doctors have told you that y ou can’t return to work please
provide that written information. I have one install in the
morning but we can sit down in the afternoon and close out last
year’s comp. I also have next year’s comp plan to cover as well.
We will see you 8:00 a.m. Monday.

Grado replied, saying that he had not yet been cleared for work but that he would like to
meet the following day at a restaurant to talk. Thul responded that, unless Grado had a

8
written note from a doctor stating that he coul d not return to work, he would like to see
Grado at work at 8:00 a.m. the next day.
On Monday, June 5, Grado did not return to work but, for the first, time provided
Thul with the May 18 doctor’s note stating that he “may be able to return to work in 2-4
weeks.” After receiving the note, Thul informed Grado that IOS could no longer continue
to pay him while he was absent from work and that any additiona l time off would be
without pay. Grado replied:
Scott, you have been telling me to take as much time off as
needed and get well? Things have changed? Okay. Will you
please pay me my bonus, been patiently waiting since May 1st.
I would like to see your new co mp plans, will stop by this
afternoon.

Grado went to meet with the Thuls at the IOS office later that day. At this meeting,
Grado handed his company car keys to Thul without explanation. According to Thul, he
tried to give the keys back to Grado and told him that he would need them upon his return
to work; Grado testified he does not recall whether Thul said this. Thul indicated to Grado
that, if he would not be returning to work, IOS would accept his resignation. Grado left the
meeting without saying whether he would return and headed to where his ride was waiting
because he had driven his company car there to turn it in.3
5. Grado’s medical clearance to return to work June 19
A few days later, on June 7, Grado sent Thul a text message informing him that he
was cleared to return to work on June 19, 2017. Thul resp onded, “Thanks for the update.

3 Grado indicates he did this because he could no longer keep the car at his apartment.

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We look forward to your return on June 19th.” Grado admits that, after June 19, he had no
physical limitations resulting from the stroke.
6. Grado’s separation from employment with IOS
Grado claims that he return ed to work on June 19 but did not stay longer than an
hour. He admits that he did not do any work that day and that he left shortly after arriving,
even though nobody told him to leave or that his employment had been terminated. Grado
did not come to work on June 20. He did not make any attempt to speak with either of the
Thuls. He stated in his deposition that “actio ns speak louder than wo rds” and that Thul’s
actions indicated to him that his employment had been terminated.
When Grado did not come to work on June 20, Thul sent him a text message asking
to sit down for an exit interview and stati ng that he was still willing to discuss the
possibility of a bonus from the previous year. Grado resp onded with a proposed day and
time and asked what points Thul wished to cover at the exit interview. The parties later
engaged in further discussions about the bonus but did not reach an agreement. In a June 28,
2017 document, Grado demanded payment of his salary through the first half of June and
payment of at least a partial bonus. Thul responded that IOS had never terminated Grado’s
employment and that he was not sure why Gra do expected to be paid for time he had not
worked in June. IOS did not pay Grado his salary for June 2017 or any portion of a bonus.
7. The lawsuit
Grado filed the complaint in this cas e, asserting claims for (1) disability
discrimination in violation of the Minnesota Human Righ ts Act (MHRA), Minn. Stat.
§§ 363A.01-.44 (2018); (2) failure to provide a reasonable accommodation in violation of

10
the MHRA; (3) whistleblower retaliation in vi olation of the Minnesota whistleblower act
(MWA), Minn. Stat. §§ 181.931-.937 (2018); (4) breach of contract; and (5) failure to pay
wages in violation of Minn. Stat. §§ 181.01-.1721 (2018). One month before the close of
discovery, Grado moved to amend the complain t to include a sixth count for intentional
infliction of emotional distress (IIED). Before the district court ruled on his motion to
amend, Grado moved for summary judgment. The district court denied Grado’s motion to
amend the complaint. Thereafter, IOS moved for summary judgment on all five of Grado’s
claims. After hearing arguments on the partie s’ summary-judgment motions, the district
court issued its order granting IOS’s motion, denying Grado’s motion, and dismissing the
complaint with prejudice.
This appeal follows.
D E C I S I O N
Appellate courts “review the grant of summary judgment de novo to determine
whether there are genuine issues of material fact and whether the district court erred in its
application of the law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn.
2017) (quotation omitted). In doing so, we “view the evidence in the light most favorable
to the party against whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).
Summary judgment is proper if the movant shows, by citing to particular parts of
the record, including depositions, documents, affidavits, admissions, and interrogatory
answers, that “there is no genu ine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Minn. R. Civ. P. 56.01, 56.03. “All doubts and factual

11
inferences must be resolved in favor of the nonmoving party.” Wagner v. Schwegmann’s
S. Town Liquor, Inc. , 485 N.W.2d 730, 733 (Minn. App. 1992), review denied (Minn.
July 16, 1992). “A fact is ma terial if its resolution will a ffect the outcome of a case.”
O’Malley v. Ulland Bros. , 549 N.W.2d 889, 892 (Minn. 1996). In opposing summary
judgment, “general assertions” are not enough to create a genuine issue of material fact.
Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). “In order
to successfully oppose summary judgment, appellant must extract specific, admissible facts
from the voluminous record and particularize them for the [district court] judge.” Kletschka
v. Abbott-Northwestern Hosp., Inc. , 417 N.W.2d 752, 754 (Minn. App. 1988), review
denied (Minn. Mar. 30, 1988). We apply this sta ndard to review each of Grado’s five
claims in turn.
I. The district court properly dismissed Grado’s disability-discrimination claim.

Grado claims that IOS engaged in disa bility discrimination in violation of the
MHRA. Specifically, he alleges that IOS was motivated to terminate his employment due
to his disability.
The MHRA makes it an unlawful employmen t practice for an employer to discharge
an employee or to discriminate against a pe rson with respect to terms or conditions of
employment because of a person’s disability. Minn. Stat. § 363A.08, subd. 2; Gee v. Minn.
State Colls. & Univs., 700 N.W.2d 548, 552 (Minn. App. 2005). “A plaintiff may establish
a prima facie case of discrimination either by offering direct evidence of discriminatory
intent or by establishing an inferenc e of discriminatory intent under the McDonnell-
Douglas shifting-burden analysis.” Gee, 700 N.W.2d at 552 (citing Hoover v. Norwest

12
Private Mortg, Banking, 632 N.W.2d 534, 54 2 (Minn. 2001) (citing McDonnell Douglas
Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1 973))). Here, Grado offers no direct
evidence4 of disability discrimination, so he mu st establish a prima facie case using the
framework set forth by McDonnell Douglas. In order to do so, he must show that (1) he
was disabled within the meaning of the MHRA, (2) he was qualified for the job from which
he was discharged, and (3) he was replaced by a nonmember of the protected class. Hoover,
632 N.W.2d at 542. If the plaintiff establishes a prima facie case, “the burden of production
shifts to the defendant who, in order to avoid summary judgment, must produce admissible
evidence sufficient to allow a reasonable trier of fact to conclude that there was a legitimate,
nondiscriminatory reason for the discharge.” Id. If the defendant meets this burden, the
presumption of discrimination disappears and the plaintiff must show that the defendant’s
reason was a pretext for discrimination. Id.; Hasnudeen v. Onan Corp., 552 N.W.2d 555,
556 (Minn. 1996).
Here, the district court granted summary judgment based on the first element in the
prima facie case of discrimination, determini ng that Grado did not es tablish that he was
disabled or that a genuine issue of material fact existed on the question of whether he was
disabled. A person is disabled within the mean ing of the MHRA if he or she: “(1) has a

4 Direct evidence is “evidence showing a specific link between the alleged discriminatory
animus and the challenged deci sion, sufficient to support a fi nding by a reasonable fact
finder that an illegitimate criterion actually motivated the adverse employment action.”
Griffith v. City of Des Moines , 387 F.3d 733, 736 (8th Cir. 2004) (quotation omitted);
LaMott v. Apple Valley He alth Care Ctr., Inc. , 465 N.W.2d 585, 588 (Minn. App. 1991)
(“A prima facie case may be established by direct evidence of discriminatory motive, such
as where an employer announces he will not consider [disabled individuals] for positions.”
(quotation omitted)).

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physical, sensory, or mental impairment which materially lim its one or more major life
activities; (2) has a record of such an impairment; or (3) is regarded as having such an
impairment.” Minn. Stat. § 36 3A.03, subd. 12. Major life activities “are ‘those activities
that are of central importance to daily life.’” Gee, 700 N.W.2d at 553 (quoting Toyota
Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 18 5, 122 S. Ct. 681, 684 (2002)). These
activities include “caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.” Id. (quotation omitted).
The parties do not dispute that Grado su ffered from a stroke; the question is whether
he was materially limited in a major life activ ity at the time of his alleged discharge from
employment. The district court determined that no genuine dispute of fact existed on this
point, as Grado was medically cleared to return to work without restrictions on June 19,
2017, and, well before that time, was admittedly able to walk, speak, care for himself, and
engage in social activities.
On appeal, Grado does not point to any spec ific evidence in the record that shows
that he was materially limited in any major life activity. Rather, he reiterates that he
suffered from a stroke and analogizes himself to a car that has been in accident and will
now be “judged accordingly.” This analogy could potentially be construed as argument
that, even if he was not actually disabled, IO S regarded him as disa bled and discharged
him on that basis. IOS notes this in its appella te brief and argues that, to the extent Grado
now asserts that he had a “record of” an impa irment or was “regarded as” having such an
impairment, see Minn. Stat. § 363A.03, subd. 12, Grado did not raise that argument in the
district court. And a party cannot raise a new issue on appeal, “[n]or may a party obtain

14
review by raising the same general issue litigated below but under a different theory.”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see Crowley v. Meyer, 897 N.W.2d
288, 293 (Minn. 2017).
IOS is correct that Grado did not argue in the district court that he was disabled
within the meaning of the MHRA because he “ha[d] a record of [a physical, sensory, or
mental impairment which materially limits on e or more major life activities]; or [was]
regarded as having such an impairment.” Minn. Stat. § 363A.03, subd. 12. Even if he had
raised that argument, though, he points to no specific, record evidence to support his claim.
To survive summary judgment, he must “extract specific, admissible facts from the
voluminous record and particularize them.” Kletschka, 417 N.W.2d at 754. And, as to
actual impairment, by his own admission, Grado had no physical limitations resulting from
the stroke after June 19. There is no disput e that, even if Grado was “terminated” from
employment with IOS, any alleged termination did not occur until on or after June 19. We
therefore hold that the district court prop erly dismissed Grado’s claim for disability
discrimination because Grado did not produce evidence show ing that he was disabled
within the meaning of the MHRA.
II. The district court properly dismissed Grado’s claim for failure to provide a
reasonable accommodation.

Grado’s second claim is that IOS faile d to provide him wi th a reasonable
accommodation in violati on of the MHRA. Minn. Stat. § 363A.08, subd. 6, provides:
“Except when based on a bona fide occupational qualification, it is an unfair employment
practice for an employer with a number of part-time or full-time employees . . . equal to or

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greater than 15 effective July 1, 1994, . . . not to make reasonable accommodation to the
known disability of a qualified disabled pe rson or job applicant,” unless an exception
applies.
The district court dismissed Grado’s reasonable-accommodation claim because it
determined that there was no dispute that during the entirety of Grado’s employment with
IOS, IOS never employed 15 or more employees. The reasonable-accommodation
requirement in Minn. Stat. § 363A.08, subd. 6, accordingly does not apply to IOS. On
appeal, Grado does not point to any evidence in the record that shows IOS ever had 15 or
more employees. He merely states that Thul “made promises” to him, without elaborating.
The record contains copies of IOS’s W- 3s submitted to the IRS for the years 2016
and 2017. These tax forms indicate that IOS employed 12 people in 2016 and 11 people in
2017. Grado offers nothing to contest these numbers. We accordingly hold that the district
court properly dismissed Grado’s claim for failure to provide a reasonable accommodation
on the basis that IOS was not subject to the reasonable-accommodation requirement of the
MHRA.5
III. The district court properly dismissed Grado’s whistleblower-retaliation claim.

Grado’s third claim is for whistleblower retaliation in violation of the MWA.
Specifically, his complaint alleges that he reported to IOS what he reasonably and in good
faith believed to be a breach of contract and failure to pay wages.

5 We note that, even if IOS were subjec t to the MHRA’s reasonable-accommodation
requirement, this claim would still fail because, for the reasons described in section I,
Grado did not produce sufficient evidence to show that he was disabled within the meaning
of the MHRA.

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The MWA prohibits employers from disc harging or otherwise penalizing an
employee because the employee “in good faith, reports a violation, suspected violation, or
planned violation of a ny federal or state law or common law or rule adopted pursuant to
law to an employer or to any governmental body or law enforcement official.” Minn. Stat.
§ 181.932, subd. 1. “Good faith” is statutorily defined to mean “conduct that does not
violate section 181.932, subdivision 3.” Minn. Stat. § 181.931, subd. 4. Section 181.932,
subdivision 3, specifies that an employee is not protected for making “statements or
disclosures knowing that they are false or that they are in reckless disregard of the truth.”
Minn. Stat. § 181.932, subd. 3. In order to establish a prima facie case of retaliatory
discharge under the MWA, a plaintiff must show that (1) he engaged in statutorily
protected conduct, (2) he suffered an adve rse employment action by the employer, and
(3) a causal connection exists between the protected conduct and the adverse employment
action. Gee, 700 N.W.2d at 555. The “protected activity” contemplated under the statute is
the employee’s act of making a good-faith re port of the alleged violation of law. Kidwell
v. Sybaritic, Inc., 784 N.W.2d 220, 226-27 (Minn. 2010).
The district court determined that, as a matter of law, Grado did not engage in a
protected activity under the MWA. Grado alleges that he engaged in protected activity both
by (1) demanding a bonus that he was entitled to under the compen sation agreement and
(2) demanding that he be paid wages during his leave of absence in June. These arguments
are addressed in turn.

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Compensation plan and bonus
Grado does not, in his appellate brief, refe rence a specific instance where he made
a good-faith report of a violation of law to IOS. In his summary-judgment brief submitted
to the district court, he asserted that he objected to IOS’s failure to make a “bonus payment
in a timely manner” and says that IOS terminated him “no more than 15 days after he made
these objections.” This suggests that he is refe rring to the text message that he sent Thul
on June 6, 2017, in response to Thul’s message stating that IOS could no longer provide
Grado with paid leave. This message stat es: “Will you please pay me my bonus, been
patiently waiting since May 1st. I would like to see your new comp plans, will stop by this
afternoon.”
This message does not demand payment as owed to Grado under the law . By the
time Grado made this request, he knew that he was not entitled to a bonus under the terms
of the compensation agreement. Thul told him this at the Ap ril 28 meeting, and Grado’s
conduct of calling customers to see if he could collect paymen ts prior to the end of his
compensation year confirms he understood th at he had not met the gross-sales-revenue
requirement in the compensatio n plan. Instead, Grado claims he was entitled to a bonus
pursuant to “promises” that Thul made after the April 28 meeting. Based on his deposition
testimony, Grado appears to rely on two communications to support the alleged promise:
(1) Thul’s text message following the April 28 meeting, stating: “Bobby I will take [sic] of
you on your bonus. Forward orders must be paid in full. Take a breath relax we did good!”;
and (2) Thul’s May 5 voicemail stating that he had spoken with Carol Thul about bonuses,
wanted to meet with Grado, and would “get [Grado] taken care of one way or another.”

18
When viewed in context, neither of th e above communications contain a definite
promise to pay a bonus but instead reflect T hul’s willingness to negotiate a partial bonus
payment with Grado. Nothing in the record suggests that Thul a nd Grado ever reached
specific terms regarding a partial bonus payment prior to Grado’s separation from
employment with IOS. As the district court determined, there was no offer, acceptance, or
consideration necessary to form a contract. See Thomas B. Olson & Assocs., P.A. v. Leffert,
Jay & Polglaze, P.A., 756 N.W.2d 907, 918 (Minn. App. 2008) (listing the elements of a
contract), review denied (Minn. Jan. 20, 2009). Thus, when Grado asked Thul to “please
pay [him] [his] bonus” on June 6, 2017, he wa s not reporting an alleged violation of law,
as the two had not reached an agreement about a bonus.
Medical leave
Grado also asserts that IO S promised to pay his salary during his medical leave and
then breached that agreement in June 2017. Again, he does not point to a specific instance
where he engaged in statutorily protected conduct in his appellate brief, but his summary-
judgment brief filed in the district court implies that he believes he objected to IOS’s failure
to provide him with paid medical leave (1) vi a text message on June 5, 2017, and (2) via
text message on June 15, 2017.
The district court determin ed that Grado’s whistleblower-retaliation claim failed as
a matter of law as to medical leave becaus e the undisputed evidence showed that Thul
never agreed to provide Grado with indefin ite, paid medical leave. It concluded that,
although Thul told Grado to take care of himself and not to worry about work, these general
statements did not obligate IO S to provide Grado indefinite paid time off, but rather

19
“offer[ed] [Grado] the opportunity to recove r from a significant me dical event without
worrying about the security of his job.” IOS then paid Grado for a portion of his leave
before notifying him, after about a month, that any additional time off would be unpaid.
Grado does not rely on any state or fede ral law to assert entitlement to paid leave
but rather relies on “promises” by Thul. Bu t an offer or promise of employment on
particular terms “must be definite in form and must be communicated to the offeree.” Pine
River State Bank v. Mettille , 333 N.W.2d 622, 626 (Minn. 1983). And ev en “[w]hen a
contract is for an indefinite duration, the duration is not set, and a corollary is that either
party may then terminate it at any time for any reason.” Id. at 628. On June 5, 2017, Thul
clearly informed Grado that, although he coul d continue to take unpaid leave, IOS would
no longer pay him while on leave. Thereafte r, even if Grado requested additional paid
leave, he clearly had no legal entitlement to it. The district court appropriately determined
that there is no genuine issue of material fact as to whethe r Grado engaged in statutorily
protected conduct by requesting continued paid medical leave.
IV. The district court properly dismissed Grado’s claim for breach of contract.

Grado’s fourth claim is that IOS breached the compensation plan when it failed to
pay him a three percent bonus.
In order to succeed on a breach-of-con tract claim, a plaintiff must show
“(1) formation of a contract, (2) performance by plaintiff of any co nditions precedent to
his right to demand performance by the defenda nt, and (3) breach of the contract by
defendant.” Park Nicollet Clinic v. Hamann , 808 N.W.2d 828, 833 (Minn. 2011). IOS
argues that the undisputed facts show that Grado did not perform all of the conditions

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precedent under the plan. The district court agreed with IOS, determining that Grado cannot
show that he reached the sales goal specified in the compensation plan.
To be eligible for the 3% bonus, the compensation plan required that Grado be “at
100% of budget—based on gr oss sales revenue.” The budget specified in the plan was
$250,000 in annual sales. On April 28, 2017, Thul informed Grado that his gross sales
revenue for the year totaled $212,463.17, and that his pending sales totaled $38,261. Grado
has claimed at various points in this litigation that his “num bers show . . . $282,897.98,”
but he appears to concede that these calcu lations are not based on “money in the door by
the end of [his sales] year.” 6 Grado never produced eviden ce during discovery of any
clients or accounts that IOS did not include toward his sales goal th at he thought should
have been included. On appeal, he states that a specific client in Duluth should have been
credited to him. This is in direct contradiction to his deposition testimony, though, where
he stated that that client is a house account.7
In opposing summary judgment, “general assertions” are not enough to create a
genuine issue of material fact, Nicollet Restoration, Inc. , 533 N.W.2d at 848, and the
opponent “must extract specific, admissible facts from the voluminous record and

6 Grado does not appear to specifically argue that “gross sales revenue” in the compensation
plan is ambiguous. Rather, he has tried to show throughout this litigation that he had gross
sales revenue in excess of $250,000.

7 Grado also asserted in his summary-judgment brief that there were two accounts that he
believed should have counted toward his sales goal. As IOS explains in its appellate brief,
though, the undisputed evidence suggests that those accounts were Thul’s, and that, even
if both were credited to Grado, his total gr oss sales revenue still w ould have been below
$250,000.

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particularize them for the [district court] judge.” Kletschka, 417 N.W.2d at 754. Here,
Grado has not done so in regards to whethe r IOS incorrectly calculated his gross sales
revenue. The district court thus properly determined that Grado did not produce evidence
sufficient to prove that he met the conditions precedent to collect a bonus under the
contract.
V. The district court properly dismissed Grado’s claim for failure to pay wages.

Grado’s fifth and final claim8 is for failure to pay wages in violation of Minn. Stat.
§§ 181.01-.1721. He alleges that IOS violated the statute by failing to pay him “all wages
and other compensation due immediately u pon the end of his employment—including
wages IOS agreed to pay him during Grado’s medical leave.”
Minn. Stat. § 181.13(a) states:
When any employer employing labor within this state
discharges an employee, the wa ges or commissions actually
earned and unpaid at the time of the discharge are immediately
due and payable upon demand of the employee. Wages are
actually earned and unpaid if the employee was not paid for all
time worked at the employee’s regular rate of pay or at the rate
required by law, including any a pplicable statute, regulation,
rule, ordinance, government reso lution or policy, contract, or
other legal authority, whichever ra te of pay is greater. If the
employee’s earned wages and commissions are not paid within
24 hours after demand, whether the employment was by the
day, hour, week, month, or piece or by commissions, the
employer is in default.

8 In his appellate brief, Grado also references an IIED claim, but, as explained above, the
district court denied his request to amend the complaint to add that claim. Grado does not
challenge the district court’s denial of hi s motion to amend, so the IIED claim is not
properly before this court.

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This statute “is a timing statute, mandating not what an employer must pay a discharged
employee, but when an employer must pay a discharged employee.” Lee v. Fresenius Med.
Care, Inc., 741 N.W.2d 117, 125 (Minn. 2007). It does not create a “substantive right” to
pay that the former employee was not otherw ise entitled to under the law or terms of
employment. Id. As to paid time off for medical leave, “[n]o statute or case law in
Minnesota mandates the terms on which paid time off must be offered, or that it be offered
at all.” Id. at 126. And “wages actually earned” are “defined by the employment contract
between the employer and the employee.” Caldas v. Affordable Granite & Stone, Inc., 820
N.W.2d 826, 837 (Minn. 2012) (quotation omitted).
As set forth above, Grado has not shown that he was entitled to a bonus under the
compensation plan or that he was entitled to paid medical leave through the month of June
2017. Accordingly, the district court properly determined that, because the compensation
plan did not provide for a partial bonus, an d because there was no contract between IOS
and Grado for paid medical leave, Grado’s failure-to-pay-wages claim fails as a matter of
law.
Affirmed.