This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
City of Orr,
Affirmed in part, reversed in part, and remanded
St. Louis County District Court
File No. C1-04-6018357
Thomas F. Andrew, Aaron R. Bransky, Brown, Andrew & Signorelli, P.A., 306 West Superior Street, Suite 300, Duluth, MN 55802 (for appellant)
John M. LeFevre, Jr., Bryan D. Shirley, Kennedy & Graven, Chartered, 470 US Bank Plaza, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
Appellant challenges summary judgment in favor of respondent. Because we conclude there are genuine issues of material fact as to whether appellant was terminated in violation of the whistleblower law for refusing to violate the Data Practices Act, we reverse and remand on that matter. But because we conclude that there are no genuine issues of material fact regarding whether appellant was terminated in violation of the whistleblower law for participating in a state investigation or for reporting allegedly illegal activities to the city officials or the state auditor, we affirm summary judgment on those matters.
Erickson began working as the city clerk and treasurer for respondent City of
First, in May 2001, appellant informed the private firm that audited the city’s books that the city administrator was buying fuel for his airplane from the city for only 50 cents per gallon over the cost of the fuel. In their 2001 audit report, the city auditors stated that “the City has allowed employee discounts for various items purchased through the City . . . . In order to prevent noncompliance with conflict of interest statutes, we strongly suggest the City discontinue these policies immediately.” Appellant also informed the city council of the matter in 2001. When the city auditors were performing the audit for 2002, appellant told them that the illegal employee discounts were continuing. The audit report for 2002 stated, “Council minutes indicated the City upheld the discount policy. In order to prevent noncompliance with conflict of interest statutes, we strongly suggest the City discontinue these policies immediately.” Because the city administrator was on a leave of absence, in December 2002 the city council appointed appellant to be the city administrator on an interim basis from January 1, 2003, through June 30, 2003. As the interim city administrator, appellant terminated the employee discounts in June 2003.
The next matter arose in the summer of 2001, when the city administrator and mayor contracted for satellite television service for the city’s municipal liquor store, using the name of a fictitious individual in order to obtain lower rates. In the spring of 2002, appellant informed the city auditors of this practice. In the fall of 2003, the satellite television company discovered that the service was being used by the liquor store, cancelled the service, and issued a refund check for $110.96, payable to the fictitious name. The city council asked appellant, as city treasurer, to cash that check on behalf of the city, but appellant refused. The refund check was never cashed.
In 2003, the city
council designated appellant as the city’s data-practices-compliance officer,
pursuant to Minn. Stat. § 13.05, subd. 13 (2004) (Data Practices
Act). As the data-practices-compliance
officer, appellant was required to provide public information to the public
Appellant generally received positive comments on her performance reviews. In January 2004, council members told her, “There’s no doubt about your job performance, it’s great.” But also at that January review, appellant was questioned why requests for information about pull-tabs at the municipal liquor store were processed so quickly. On March 12, 2004, at a city council meeting, appellant was again questioned by council members as to why the public received information so quickly. On March 18, 2004, the Duluth News Tribune published a front-page article regarding an investigation of the city administrator, who was also a legislator, and his handling of money earmarked for snowmobile trails. Information in the article had been obtained by the organization Minnesotans for Responsible Recreation (MRR) from appellant as the city data-practices-compliance officer.
A few days later, on March 22, 2004, appellant received a handwritten note, signed by one city council member and the mayor, informing her that she was being placed on a paid leave of absence “due to allegations of possible misconduct.” Appellant left work and went home. That evening, a representative of the Office of the State Auditor (OSA) called appellant at home, requesting information for an investigation regarding the snowmobile trail money. The OSA investigator also asked questions about the employee fuel discounts and the satellite cable account for the municipal liquor store. Appellant provided the requested information.
Appellant’s attorney contacted the city council to find out what the “allegations of possible misconduct” were, but the city council would not provide her attorney with further information. The city council held a closed termination hearing on March 26, 2004, which appellant did not attend. The city council voted to terminate appellant’s employment.
Appellant sued the city, alleging her employment was terminated in violation of Minn. Stat. § 181.932 (2004), the whistleblower law, because she refused to comply with the city’s “implied order” to violate the Data Practices Act and for reporting the city’s allegedly illegal practices to the OSA, mayor, city council, and city auditors. The city moved for summary judgment, arguing that appellant had not established a prima facie case of retaliation under Minn. Stat. § 181.932.
The district court granted the city’s motion for summary judgment in February 2005. The district court recognized that in the course of her employment, appellant had reported potential violations of state and federal laws to city council members, the mayor, and city’s private audit firm. But the court determined that appellant did not report any violations to any outside agencies until the OSA investigator called her on the evening of March 22, 2004, after appellant was placed on paid leave. The district court determined that appellant failed “to establish a causal connection between her protected conduct and [the city’s] alleged retaliatory actions.” The district court observed:
prove that the City Council members and the Mayor read the published reports in
Because the district court concluded that the city never told appellant to violate the Data Practices Act and appellant could not prove she was terminated for reporting law violations to an outside agency, the district court determined that there were no genuine issues of material fact and granted the city’s motion for summary judgment. This appeal follows.
On appeal from
summary judgment, we determine whether there are any genuine issues of material
fact and whether the district court erred in its application of the law. State
by Cooper v. French, 460 N.W.2d 2, 4 (
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
v. Bellomo, 504 N.W.2d 758, 761 (
Appellant asserts that the district court erred by granting the city’s motion for summary judgment. Appellant argues that there are still genuine issues of material fact as to whether her employment was terminated because she refused to violate the Data Practices Act, because she cooperated with the OSA’s investigation of the city’s handling of state money for snowmobile trails, and/or because she reported suspected violations of law to the city auditors, the mayor, the city council, the city administrator, and the OSA.
(a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;
(b) the employee is requested by a public body or office to participate in an investigation, hearing, inquiry; [or]
(c) the employee refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason[.]
Minn. Stat. § 181.932, subd. 1
A. Data Practices Act
The first issue is whether appellant was terminated in violation of Minn. Stat. § 181.932, subd. 1(c) of the whistleblower law for insisting on providing information as required by the Data Practices Act. Our analysis of this issue follows the McDonnell Douglas format.
1. Statutorily-protected conduct
the city’s data-practices-compliance officer, appellant was required by the
Data Practices Act to release public information upon request; withholding
information constitutes a misdemeanor. See
The law does not require that the employer explicitly or blatantly order the employee to violate the law. See Minn. Stat. § 181.932, subd. 1(c). Indirect or implied directions could constitute an adequate order. Cf. Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1491-92 (8th Cir. 1992) (holding that a “stern look” is not a demand to break the law, but not precluding the possibility that an implied request to break the law could constitute a violation of an earlier version of Minn. Stat. § 181.932, subd. 1(c)). We conclude that because the whistleblower law is intended to protect employees from retaliation and because improper activity is often shielded; clear pressure, guarded statements, or other implied directives that convey the message that an employee should violate the law trigger the protection of subdivision 1(c).
Appellant claimed that during her annual evaluation by the city council in January 2004, council members questioned her about her compliance with requests for information about pull-tabs at the municipal liquor store and the newspaper article that resulted. She stated that council members repeatedly questioned her as to how and why one newspaper obtained the information so quickly. Appellant asserts that questioning was critical and caused her to become concerned about complying with requests for public data. At a city council meeting in March 2004, ten days before appellant received notice that she was being placed on paid leave, appellant stated that the city council again questioned her about how and why one newspaper received information so quickly. Viewing these facts in the light most favorable to appellant, there is a genuine issue of material fact as to whether the acts of the city council members constituted a directive to appellant to withhold or delay the release of information, in violation of the Data Practices Act.
argues that appellant did not expressly refuse to comply with any order to
violate the Data Practices Act, as required by the whistleblower law.
2. Adverse action
employment was terminated. See
3. Causal connection
The city council
questioned appellant about the speed with which she released public information
on at least two occasions. One of those
occasions was March 12, 2004, only ten days before appellant received notice
that she was being placed on paid leave.
B. OSA’s Investigation
The second issue is whether appellant’s employment was adversely affected in violation of Minn. Stat. § 181.932, subd. 1(b) of the whistleblower law because OSA asked that appellant assist in an investigation. Again, our analysis follows the McDonnell Douglas format.
1. Statutorily-protected conduct
On the morning of March 22, 2004, appellant was placed on paid leave. The same day, the OSA tried to contact her during its investigation of a complaint by another party. The investigation concerned the employee fuel discounts, fraudulent satellite cable account at the municipal liquor store, and money for snowmobile trails. On the evening of March 22, appellant talked to the OSA and provided the requested information.
argues, and the district court noted, that appellant’s claim is limited because
the OSA called appellant; appellant did not call the OSA. But the whistleblower law does not require an
employee to initiate contact with a state agency in order to be protected. The whistleblower law protects an employee
from being discharged for participating in the investigation of a public body
or office, not just for reporting violations of law.
2. Adverse action
Again, appellant’s employment was terminated, and respondent concedes the termination was an adverse action.
3. Causal connection
The district court determined that appellant “cannot link her termination on the morning of March 22, 2004 to her ‘report’ to OSA on the evening of March 22, 2004.” The district court is correct that appellant did not participate in the OSA investigation until after she was placed on paid leave. Although appellant’s formal termination occurred on March 26, after she participated in the investigation, the fact that she was placed on paid leave before she spoke with the OSA strongly indicates that her participation in the investigation or any reports she made to OSA were not the cause of her termination. Additionally, there is no evidence that the city council was aware that appellant spoke with anyone from the OSA, participated in the OSA’s investigation, or was asked to participate. Therefore, we conclude there is no genuine issue of material fact as to whether there was a causal connection between appellant’s termination and her participation in the OSA investigation or any reports she made to OSA.
C. Reports to the City Auditors, Mayor, and City Council
The third issue is whether appellant’s employment was adversely affected in violation of Minn. Stat. § 181.932, subd. 1(a) of the whistleblower law for reporting various violations of law to city officials and the OSA. Again, our analysis follows the McDonnell Douglas format.
1. Statutorily-protected action
first sub-issue is whether appellant’s statements regarding improper employee
discounts and a fictitious account for satellite television service were
protected reports. An appellate court
“may determine as a matter of law that certain conduct does not constitute a
‘report’” under the whistleblower law. Rothmeier v. Inv. Advisers, Inc., 556
N.W.2d 590, 593 (
whistleblower law does not define the term “report.” But we have previously defined it as “to make
or present an often official, formal, or regular account of” or “[t]o relate or tell about; present.” Janklow
We also observe, though, that the mere mention of a suspected violation that the employer already knows about does not constitute a “report” under the statute. Donahue v. Schwegman, Lundberg, Woessner & Kluth, P.A., 586 N.W.2d 811, 813-14 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999); Rothmeier, 556 N.W.2d at 593. The record indicates that appellant did more than merely mention a suspected violation. She brought up the potentially illegal activities to multiple groups and individuals over a period of several years, and she refused to cash a check that she believed had been issued to a fraudulent entity.
must also examine why the reports were made.
Obst v. Microtron, Inc., 614
N.W.2d 196, 202 (
2. Adverse Action
As we have previously stated, appellant’s termination was an adverse action.
3. Causal Connection
The next sub-issue
is whether there is a genuine dispute of material fact over the causal
connection between appellant’s reports to the council and mayor and related
action and her dismissal. Appellant’s
reports to the mayor, the city council, and the city auditors, occurred at
various times between 2000 and 2003. Appellant
ended the employee fuel discounts in June 2003.
The satellite television company cancelled the allegedly fraudulent
account in the fall of 2003, and she refused to deposit the refund check issued
in October 2003. Appellant’s employment
was not terminated until March 2004. The
lack of temporal proximity between appellant’s actions and her discharge
indicates that there was no causal connection.
argues that the article in the
Because we conclude there is a genuine issue of material fact as to whether appellant proved her prima facie case that she was terminated for refusing to violate the Data Practices Act, we reverse summary judgment on that issue and remand. But because we conclude that there are no genuine issues of material fact regarding whether appellant was terminated for participating in the OSA investigation or reporting to the OSA and whether appellant was terminated for reporting to the city auditors, mayor, or city council, we affirm the district court’s grant of summary judgment on those issues.
Affirmed in part, reversed in part, and remanded.