Retaliation and whistleblower claims are on the rise nationally, and Minnesota is no exception to this trend. In part, this is because plaintiffs’ counsel perceive such claims — particularly claims arising under the broad Minnesota Whistleblower Act (MWA) — as relatively easy to get past a motion for summary judgment and to trial. However, four recent decisions issued by Minnesota courts suggest that this perception may not be well founded.
In each decision (two opinions by the U.S. Circuit Court of Appeals for the Eighth Circuit, one opinion by the Minnesota Court of Appeals and one opinion by the U.S. District Court for the District of Minnesota), the court granted or affirmed the granting of summary judgment in favor of the employer. These decisions provide useful guidance in assessing potential arguments to defeat a retaliation claim on a motion for summary judgment.
In two of the cases, one an Eighth Circuit opinion and one a district court opinion, the timing of the employee’s termination in relation to whistleblowing activity played a key role.
In Lissick v. Andersen Corp., No. 19-3783 (8th Cir. May 6, 2021), the plaintiff alleged that he was terminated in violation of the MWA because he reported to his supervisor that co-workers were sending inappropriate text messages (which included photos of nude women) to one another and further reported to HR that two employees falsified an eyewash station inspection report. The plaintiff argued that his termination, just four months after he made these reports, supported an inference of causation. The Eighth Circuit disagreed and noted that under Minnesota law, even a much shorter two-month timespan between protected activity and an adverse employment action is too remote to support an inference of causation sufficient to establish that element of the prima facie case. Because the plaintiff provided no evidence of causation beyond the mere timing of his termination, the appeals court concluded that the district court properly found that the employee had not established a prima facie case.
Timing was similarly a key issue in King v. State of Minnesota Guardian Ad Litem Board, No. 18-cv-2108 (D. Minn. May 6, 2021). In this case, the plaintiff alleged he was placed on administrative leave just six-and-a-half weeks after he submitted a letter to his supervisor criticizing her proposed method for allocating state funding. Like the Eighth Circuit in Lissick, the District Court focused on the timing of the events.
The District Court took an even narrower view of how much time is sufficient to establish causation. It cited a Minnesota Court of Appeals case that suggested a two-week interval was “barely” sufficient to establish causation and another concluding that a three-week interval was not sufficiently close in time to establish causation. Thus, the six-and-a-half-week interval between the plaintiff’s letter and his placement on administrative leave was not sufficient to establish a causal connection.
Because, as in Lissick, the plaintiff failed to present any additional evidence of a causal connection, the district court found that he had failed to establish a prima facie case of retaliation. Finally, the court noted that even if the plaintiff’s report and placement on leave were close enough in time to establish causation, a major intervening event (allegations that the plaintiff had abused his position and engaged in inappropriate conduct at work) rebutted any inference of causation created by the mere timing of his termination.
The takeaway from these two cases is that timing matters. Unless an adverse employment action occurs very close in time (think days not weeks), a plaintiff asserting an MWA claim must have some additional evidence of causation to avoid summary judgment.
Pretext Is Tough to Prove
In the other two MWA opinions recently issued, the Eighth Circuit and the Minnesota Court of Appeals held that the employees failed to create a genuine issue of fact that the employer’s reason for termination was pretextual and that the real reason for the plaintiff’s termination was retaliation.
In Scarborough v. Federated Mut. Ins. Co., No. 19-1918 (8th Cir. Apr. 29, 2021), the employer argued it had terminated the plaintiff for a number of reasons, including approving and encouraging fraudulent invoicing. In response, the plaintiff argued that the employer’s reasons were all false and that he had not engaged in the alleged misconduct. However, as the Eighth Circuit explained, the key question was not whether the stated basis for termination actually occurred, but whether the employer believed it to have occurred. Because the plaintiff presented no evidence showing his employer did not in good faith believe he engaged in the conduct for which he was terminated, and presented no evidence that he was terminated because he engaged in protected activity, the plaintiff was unable to establish a genuine issue of fact as to pretext and summary judgment therefore was appropriate.
Last, in Hanson v. Department of Natural Resources, A20-0747 (Minn. Ct. App. Apr. 19, 2021), an unpublished Minnesota Court of Appeals case, failure to provide evidence of pretext also doomed the employee’s claim of retaliation. In August 2017, the employee was attending a multiday work-related conference at the Fortune Bay Casino and Conference Centre on the Bois Forte Indian Reservation. During the first night of her hotel stay, the employee reported to the front desk a baby crying in the room next door to hers, believing the baby was a victim of sex trafficking. The next night, the employee heard the baby crying and again reported potential abuse to the front desk and called 911. The employee told 911 she believed there was a prostitution ring operating in the next-door room, that a baby might be suffocating, that the hotel had offered to call Bureau of Indian Affairs (BIA) officers, but that she wanted a St. Louis County deputy sheriff to come to the hotel and give her “safe escort” out of the casino. When the BIA arrived, the employee refused to cooperate, insisted on involving St. Louis County law enforcement (who had no jurisdiction), refused to leave the hotel when asked and engaged in name-dropping. Ultimately, the employer discharged her for the incident.
Because the plaintiff failed to identify any evidence that casted doubt upon or contradicted the employer’s proffered explanation for the plaintiff’s discharge (that it terminated the employee for her inappropriate behavior rather than reporting potential child abuse), the court affirmed the district court’s grant of summary judgment.
The takeaway from these two cases is that conduct that could be protected under the Minnesota Whistleblower Act may become intertwined with employee misconduct. However, that does not insulate an employee from a well-founded motion for summary judgment, particularly where the plaintiff’s only “evidence” of retaliatory motive is proximity in time between the alleged protected conduct and the adverse action.