Tama May Boe Kerber, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0278

Tama May Boe Kerber,
Appellant,

vs.

Recover Health of Minnesota, Inc., et al.,
Respondents.

Filed September 6, 2022
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CV-20-14520

Tama May Boe Kerber, Chanhassen, Minnesota (pro se appellant)

Jessica L. Roe, Alex L. Rubenstein, Nicholas M. Beckman, Roe Law Group, PLLC,
Minneapolis, Minnesota (for respondents)

Considered and decided by Wheelock, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
A self-represented appellant challenges a district court order (1) dismissing her
employment discrimination and repri sal claims by granting respondent’s motion for
summary judgment and (2) denying her motion to amend her complaint to add a defamation
claim. We affirm.
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FACTS1
Respondent Recover Health of Minnesota, Inc., hired appellant Tama May Boe
Kerber as a community liaison on June 16, 2017. Kerber’s duties included developing
prospective senior- living-facility clients and managing existing client relationships that
Recover Health assigned to her.
About mid-September 2017, Kerber’s supervisor at Recover Health asked to ride
with Kerber to a client site. Kerber refused, and on September 16, she emailed the
supervisor that “[she has] a little anxiety driving with other [adults] in [her] car” and has
“had to deal with [this anxiety for] a long time.” Five days later, the supervisor took over
managing Kerber’s existing client accounts and scheduled a performance review for Kerber
for September 22. Kerber did not attend the scheduled performance review. The
supervisor rescheduled the review for September 27. Kerber again did not attend.
Around this time, Kerber spoke with Recover Health’s director of human resources,
its chief operating officer, and its sales director about the supervisor’s decision to remove
certain accounts from Kerber’s job duties. Later, Kerber requested permission to attend
weekly group-therapy meetings for her anxiety and depression and met with the human-
resources director on October 11 to discuss her request . Around October 16, Recover
Health offered Kerber paid time off to consider her employment and whether she could
move past the supervisor’s decision to manage certain accounts. Kerber took some paid

1 The facts presented are either based on undisputed evidence or disputed evidence
construed in the light most favorable to appellant, the party against whom summary
judgment was granted. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
3
time off and eventually asked to work part-time. Recover Health’s human-services director
and branch manager met with Kerber on October 24. Following their discussion, Recover
Health terminated Kerber’s employment.
Kerber filed a complaint against Recover Health alleging discrimination and reprisal
violations under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01 to
.44 (2020). Four months later, Kerber filed a motion to amend her complaint, for the
second time, to add a defamation claim against Recover Health. The district court denied
Kerber’s motion to amend.
Recover Health filed a motion for summary judgment. Following a hearing, the
district court granted Recover Health’s motion, dismissing Kerber’s discrimination and
reprisal claims. This appeal follows.
DECISION
Kerber argues that the district court erred by granting summary judgment dismissing
her disability discrimination and reprisal claims by (1) considering issues not raised by
Recover Health and (2) determining that no genuine issue of material fact exists as to her
discrimination and reprisal claims. Kerber also argues that the district court erred by
(3) denying her motion to amend to add a defamation claim by determining that her
proposed defamation claim is statutorily time-barred and (3) not applying the discovery
rule to determine when her claim accrued.

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I. The district court did not err by granting Recover Health’s summary-
judgment motion on Kerber’s discrimination and reprisal claims.

A. Standard of review
We review summary- judgment decisions de novo. See City of Waconia v. Dock,
961 N.W.2d 220, 229 (Minn. 2021). To survive a summary-judgment motion, the
nonmoving party must present specific, admissible evidence that shows a genuine issue of
material fact. Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012). “A
genuine issue of material fact exists when there is sufficient evidence regarding an essential
element to permit reasonable persons to draw different conclusions.” St. Paul Park Refin.
Co. v. Domeier, 950 N.W.2d 547, 549 (Minn. 2020) (quotation omitted). We view the
evidence in the light most favorable to the nonmoving party. Id. We may affirm a grant
of summary judgment on any ground. Doe, 817 N.W.2d at 163.
B. The district cou rt did not err by dismissing Kerber’s discrimination
claim on summary judgment.

Kerber argues that the district court erred by dismissing her disability-
discrimination claim against Recover Health. We are not persuaded.
To prevail on an employment-discrimination claim under the MHRA, a plaintiff
must show (1) the plaintiff has a “disability” as defined by the MHRA and (2) employment
discrimination under the MHRA based on the disability. Minn. Stat. §§ 363A.03, subd.
12, .08, subd. 2. Discriminatory intent can be shown either by “direct evidence” of
discrimination or by evidence that satisfies the three-part framework in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Hoover v. Norwest Priv. Mortg. Banking,
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632 N.W.2d 534, 542 (Minn. 2001). The parties agree, as do we, that consideration of the
McDonell Douglas framework is proper here.
To meet the first part of the McDonnell Douglas framework, a plaintiff must
establish a prima-facie case of discrimination. Id. A prima-facie case requires a showing
that (1) the plaintiff belongs to a protected class; (2) the plaintiff applied and was qualified
for a job; (3) despite the plaintiff’s qualification, the employer dismissed the plaintiff; and
(4) after the plaintiff’s dismissal, the position remained available or the employer gave it
to someone else with the plaintiff’s qualifications. Sigurdson v. Carl Bolander & Sons Co.,
532 N.W.2d 225, 228 (Minn. 1995). Once a prima-facie case is established, the burden
shifts to the employer to offer a legitimate and nondiscriminatory reason for the adverse
employment action. Hansen v. Robert Half Int’l, Inc., 813 N.W.2d 906, 918 (Minn. 2012).
If the employer offers a reason, the burden shifts back to the plaintiff to provide sufficient
evidence showing that the employer proffered a pretextual explanation. Id.
Kerber appears to argue that the district court erred by determining that she did not
present specific evidence of her disability because it erroneously “conflated a
pleading . . . with an affidavit or any other evidence offered by [her]” and genuine issues
of material fact exist.
The record shows that the district court did not conflate a “pleading” with an
“affidavit.” I nstead, it correctly determined that Kerber relied “on her own affidavit.”
(Emphasis added.) Kerber’s affidavit contained her own statements, which do not create a
genuine issue of material fact. Her affidavit also contained a single exhibit related to
treatment of her alleged disability. But the exhibit, a note from Park Nicollet, only shows
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that Kerber saw her doctor on October 2, 2017, and that the doctor increased her dosage of
Prozac, neither of which is specific evidence of Kerber’s alleged disability, as required by
a nonmoving party to defeat summary judgment. See Gonzales v. Hollins, 386 N.W.2d
842, 845 (Minn. App. 1986) (stating that non -moving party must establish material-fact
issues).
Kerber alternatively argues that the district court should not have determined the
disability issue in the first instance because Recover Health did not contest Kerber’s
disability under the MHRA in its motion for summary judgment and she therefore did not
have proper notice. She also contends that Recover Health conceded the issue in her favor
by not raising it below. But Kerber, as the petitioner, had the burden to show that she had
a disability under the MHRA to prove her discrimination claim. And indeed, Kerber had
addressed that issue in her memorandum opposing summary judgment. Further, the record
shows that Recover Health reserved the disability issue below. We conclude the district
court did not err by determining that Kerber failed to present specific evidence of her
disability and granting summary judgment to Recover Health on her discrimination claim
against Recover Health.
C. The district court did not err by dismissing Kerber’s reprisal claim on
summary judgment.

Kerber argues that summary judgment on her reprisal claim was improper because
the removal of six of her accounts and her termination constitute adverse employment
actions and temporal proximity between her protected conduct and Recover Health’s
adverse actions establish discrimination. We disagree.
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It is an “unfair discriminatory practice” to engage intentionally “in any reprisal
against any person because that person . . . opposed a practice forbidden under [the
MHRA].” Minn. Stat. § 363A.15 (2020). “A reprisal includes, but is not limited to, any
form of intimidation, retaliation, or harassment.” Id. A plaintiff may prove a reprisal claim
by direct evidence or by “using circumstantial evidence in accordance with the three-part
[McDonnell Douglas] burden-shifting test.” Hoover, 632 N.W.2d at 542; see also Friend
v. Gopher Co., 771 N.W.2d 33, 37- 40 (Minn. App. 2009) (explaining direct method of
proof). A plaintiff proceeding under the McDonnell Douglas framework bears the initial
burden of establishing a prima-facie case of reprisal. Fletcher v. St. Paul Pioneer Press,
589 N.W.2d 96, 101 (Minn. 1999).
To prove a prima-facie case of reprisal, “an employee must establish: (1) statutorily-
protected conduct by the employee; (2) adverse employment 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). Here, the district court determined that Kerber proved that her
conduct is statutorily protected. As a result, only the second and third elements are at issue.
Kerber contends that she established causation because “temporal proximity alone
may give rise to an inference of discrimination.” Although timing alone can establish
causation, “[t]he mere coincidence of timing . . . is rarely sufficient.” Hite v. Vermeer Mfg.
Co., 446 F.3d 858, 866 (8th Cir. 2006) (emphasis added). Cases in which courts have
determined that temporal proximity alone supported an inference of a causal link have held
that the temporal proximity must be very close. Id. Even assuming, without deciding, that
the supervisor’s decision to manage Kerber’s accounts constitutes an adverse employment
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action, the record shows that the act occurred five days after Kerber’s statutorily protected
conduct. Kerber presents no further evidence of a causal link between the two events. The
district court therefore did not err by granting summary judgment to Recover Health on
Kerber’s reprisal claim. Because our conclusion is dispositive, we need not address
appellant’s other arguments.
II. The district court did not err by determining that the statute of limitations
would bar her proposed defamation claim and not applying the discovery rule.

Kerber argues that the district court erred by denying her motion to amend her
complaint to add a defamation claim against Recover Health. We disagree.
In Minnesota, a plaintiff must bring a defamation action within two years after the
defamatory conduct. Minn. Stat. § 541.07(1) (2020).
Here, Kerber sought to amend her complaint, for the third time, on March 13, 2021,
based on alleged defamatory statements made in an October 3, 2017 email exchange. Thus,
more than two years passed from the alleged unlawful conduct and the time Kerber filed
the complaint. The district court did not err by denying her motion to amend to add a
defamation claim because it is statutorily time-barred.
Kerber contends that the district court should have applied the discovery rule in
determining whether her proposed defamation claim would be statutorily time-barred,
arguing that other states have adopted that rule. The “discovery rule” tolls the statute of
limitations until the plaintiff discovers the facts giving rise to a cause of action; it has been
narrowly applied in Minnesota to medical malpractice cases in which “a physician prevents
a patient from discovering a cause of action against the physician by fraudulent
9
concealment.” Johnson v. Winthrop Lab’ys Div. of Sterling Drug, Inc., 190 N.W.2d 77,
81 (Minn. 1971). However, the Minnesota Supreme Court has declined to adopt it as a
general rule in the absence of fraud. See id.; see also Antone v. Mirviss, 720 N.W.2d 331,
335 (Minn. 2006) (stating that “We have . . . rejected the discovery rule.”). Kerber asks us
to create new law. That is not a function of this court. “The function of the court of appeals
is limited to identifying errors and then correcting them.” Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988); see Nelson v. Schlener, 859 N.W.2d 288, 294 (Minn. 2015)
(quoting this aspect of Sefkow). We decline Kerber’s request.
Affirmed.