Category Archives: Retaliation
Retaliation claims have become increasingly prevalent in recent years, reasonably causing employers to think twice before taking an adverse employment action. In particular, prudent employers often consider all relevant facts and appearances before terminating the employment of a worker who has filed a claim for workers compensation benefits.
Minnesota law prohibits an employer from “discharging or threatening to discharge an employee for seeking workers compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits.” Minn. Stat. § 176.82. This anti-retaliation provision provided the basis for an employee’s recent civil claim against his employer when he was discharged shortly after experiencing a workplace injury. See Anderson v. North American Gear & Forge, No. A15-0966 (Minn. Ct. App. January 11, 2016).
Anderson unfortunately had a small piece of hot metal get behind his safety glasses and slightly burn the skin near his eye. He informed his supervisor who in turn helped Anderson initiate a workers compensation claim. Seeing the injury as minor, the supervisor allegedly resisted Anderson leaving work to see a doctor. Nonetheless, the supervisor let him go. The doctor cleared Anderson to return to work without restrictions with only a “tiny burn” next to his eye with no eye damage. Anderson stayed home the next day and saw another doctor who also returned him to work immediately without restrictions. The following day Anderson returned to work, but wanted to leave early to again see the original doctor. His supervisor again allegedly resisted, but permitted him to leave. The doctor again found no workplace restrictions. Anderson did not return to work until the following week. When Anderson returned, his supervisor terminated his employment for excessive absenteeism. Anderson was already on a final warning regarding his attendance. Anderson then sued claiming violation of Minn. Stat. § 176.82.
The Minnesota Court of Appeals affirmed dismissal of Anderson’s retaliation claim. In doing so, the court noted that despite having an allegedly hostile attitude toward Anderson’s injury, the supervisor nonetheless assisted Anderson in filing a workers compensation claim and permitted Anderson to leave work for doctor’s visits. The court also noted that in processing Anderson’s claim, the company followed its standard policy. Having done so, the employer was able to show that Anderson’s discharge was the result of his unexcused absences following his medical release to return to work without restrictions, in combination with the other absences which had already led to his final warning.
Takeaway: Employers should evaluate all relevant circumstances in assessing the risk of a retaliation claim when discharging an employee. In particular, an employer can minimize the risk of a workers compensation retaliation claim by following its standard policy, promptly assisting the injured employee in filing for benefits, and reasonably permitting the employee an opportunity to seek medical treatment and evaluation.
On January 20, 2016, the Minnesota Supreme Court issued a decision holding that a six-year statute of limitations applies to whistleblower claims brought under Subdivision 1(1) of the Minnesota Whistleblower Act (MWA). Ford v. Minneapolis Public Schools, A13-1072 (Minn. Jan. 20, 2016).
Subdivision 1(1) of the MWA creates a claim when an employee is discharged because she reports in good faith a suspected, planned, or actual violation of any federal or state law or common law or rule adopted pursuant to law to an employer or any governmental body or law enforcement official. Minn. Stat. § 181.932, subd. 1(1). Yvette Ford alleged that she was terminated after having had repeatedly reported to her employer purportedly unethical and illegal activities.
In December 2014, the Minnesota Court of Appeals determined that a six-year – rather than a two-year – statute of limitations applied to Ford’s claim. The Minnesota Supreme Court has now affirmed this application of the six-year period found in Minn. Stat. § 541.05, subd. 1(2) regarding “liability created by statute” to claims under Subdivision 1(1) of the MWA. In doing so, the Supreme Court concluded that the two-year period found in Minn. Stat. § 541.07(1) was inapplicable because claims under Subdivision 1(1) of the MWA were not based on common law causes of action not created by statute. See Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683, 686 (Minn. 2013). As the so-called “reporting” claims under Subdivision 1(1) have no counterpart in Minnesota common law, the Supreme Court held that the longer statute of limitations applies.
Interestingly, the Supreme Court noted in Ford that it has, however, recognized a common law cause of action based on an employee’s discharge for refusing to violate the law. Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571 (Minn. 1987). The statutory counterpart to this common law “refusal” claim is found in Subdivision 1(3) of the MWA. While the Supreme Court did not decide in Ford the applicable limitations period for Subdivision 1(3) claims, based on the court’s analysis, it is possible that the two-year period could apply to such claims. In response to the defendant employer’s argument that such an anomaly could result from the court’s decision, the Supreme Court noted that this policy argument was instead one for the Legislature to consider.
Takeaway: The Minnesota Supreme Court has affirmed that MWA “reporting” claims under Subdivision 1(1) are subject to a six-year statute of limitations. It is uncertain, however, whether the same period applies to “refusal” claims under MWA Subdivision 1(3) or whether such claims are controlled by a shorter two-year period.
On January 6, 2015, the Eighth Circuit Court of Appeals affirmed summary judgment dismissing a former employee’s claims under the Minnesota Whistleblower Act. See Pedersen v. Bio-Medical Applications of Minnesota, No. 14-1284 (8th Cir., Jan. 6, 2015). The Court did so principally because of the employer’s careful recording of the employee’s multiple performance and conduct issues.
The employer operates dialysis clinics and employed Lisa Pedersen as a registered nurse. As part of its treatment regimens, the clinics collect and transport patient blood samples for analysis. Ms. Pedersen had reported to her employer that a box of blood samples had been left overnight properly packed in ice, but in the wrong type of shipping box. The clinic investigated the matter and concluded the samples had not been compromised and that it was not necessary to order a redraw of any of the affected patients. Ms. Pedersen also later complained to several others that she feared retaliation for reporting the incident and her belief that clinic management was covering up the issue.
Ms. Pedersen was subsequently suspended for three days while an internal investigation was conducted regarding her performance and conduct, including impersonating a clinic manager, inappropriately documenting a patient’s treatment, failing to obtain doctor’s orders for treatment, and slapping a patient. After its investigation, the clinic offered Ms. Pedersen a return to her position under a corrective action plan, but she did not return to work. Several months later Ms. Pedersen had still not returned to work and the clinic terminated her employment as a voluntary resignation.
After filing her lawsuit, the District Court dismissed Ms. Pedersen’s claims. On appeal, the Eighth Circuit affirmed that dismissal. Although the District Court had determined that Ms. Pedersen’s complaints did not constitute an actionable report under the Minnesota Whistleblower Act, the Eighth Circuit declined to rule on that point. Instead, the Eighth Circuit concluded that Ms. Pedersen had failed to show that the clinic’s legitimate reasons for disciplining and terminating her were a pretext for retaliation. The Court of Appeals stated that Ms. Pedersen’s speculation about an ulterior motive by the clinic was “unsupported and contradicted by other undisputed facts in the record.”
Takeaway: It is a best practice for employers to inform employees about, and maintain a record of, performance and conduct concerns. In addition to providing the employee an opportunity to correct any shortcomings, this record will, if needed, help an employer effectively rebut later claims of retaliation.
The Minnesota Court of Appeals recently reversed a longstanding precedent and held that claims under the Minnesota Whistleblower Act, Minn. Stat. § 181.932, are governed by a six-year statute of limitations instead of a two-year statute of limitations.
In Ford v. Minneapolis Public Schools, the issue before the court was whether the Plaintiff’s whistleblower claim was barred by the two-year statute of limitations. A13-1072 (Minn. Ct. App., Dec. 15, 2014). The court held that the two-year statute of limitations did not apply, overturning a prior decision in Larson v. New Richland Care Ctr., 538 N.W.2d 915, 921 (Minn. Ct. App. 1995).
The Ford court reasoned that a whistleblower claim was not an “other tort resulting in personal injury” governed by the two-year statute of limitations in Minn. Stat. § 541.07(1), but instead was a “liability created by statute” governed by the six-year statute of limitations in Minn. Stat. § 541.05, subd. 1(2). To reach this result, the Ford court relied on a recent Minnesota Supreme Court decision in Sipe v. STS Mfg., Inc., which held that “541.07(1) is limited to common law causes of action not created by statute.” 834 N.W.2d 683, 686 (Minn. 2013). The Ford court explained that “[t]he supreme court’s decision in Sipe essentially overrules this court’s reasoning in Larson.”
Takeaway: Unless appealed and overturned, the Ford decision means that plaintiffs now have six years to bring a claim for violation of the Minnesota Whistleblower Act instead of just two. Combined with the Minnesota legislature’s recent expansion of the Whistleblower Act, this decision yet again increases the difficulty for employers to defend against whistleblower claims.
The Second Circuit Court of Appeals recently rejected a Plaintiff’s claim of alleged hostile work environment harassment based on sporadic incidents of inappropriate behavior as well as the Plaintiff’s claim of retaliation under Title VII.
In Lewis v. City of Norwalk, the Plaintiff alleged that his supervisor “leered” at him and licked his lips in a provocative manner on several occasions over the course of two years. No. 13-2485 (2d Cir., Apr. 14, 2014). The Plaintiff further alleged that he felt uncomfortable when the supervisor asked him out for drinks, invited him to join his gym so the two could work out together, and complimented his taste in clothing. After the Plaintiff was presented with a poor performance review and offered the opportunity to resign, the Plaintiff complained about the supervisor’s alleged harassment. The employer hired an outside law firm to investigate the allegations. The investigator determined the allegations were uncorroborated, and the employer proceeded to terminate the Plaintiff’s employment.
With respect to the Plaintiff’s claim for hostile work environment harassment, the court concluded that the alleged incidents of leering and lip-licking occurred too infrequently to create a hostile work environment based on the Plaintiff’s sex. The court found that the other allegations (e.g., asking the Plaintiff out for drinks, inviting him to join a gym) were “facially sex-neutral incidents” that did not contribute to a hostile work environment.
With respect to the retaliation claim, the court held that there was no evidence of causation between the Plaintiff’s last-minute report of harassment and his termination. The court explained that “[e]mployers need not suspend previously planned [employment actions] upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”
Takeaway: The Lewis case shows that courts continue to apply a high standard for hostile work environment claims and that allegations that are not sufficiently “severe and pervasive” will not suffice. The Lewis case also shows that an employee may not insulate him or herself from termination by alleging harassment or discrimination when it is clear that the employee’s termination is imminent.
The Minnesota Federal District Court recently dismissed on summary judgment an employee’s claim of whistleblowing under Minn. Stat. § 181.932 for two reasons. See Pedersen v. Bio-Medical Applications of Minnesota, Civ. No. 12-2649 (D. Minn., Jan. 10, 2014). First, the court held that the employee’s complaint did not constitute a “report” under the statute. Second, the employee failed to articulate what law was implicated by the at-issue conduct.
The nurse employee claimed that she had been terminated in retaliation for informing a doctor at the clinic that a blood sample had been allegedly mishandled. As noted by the court, this conversation occurred days after the incident had already been investigated and resolved. Minnesota cases have confirmed that telling an employer about a suspected violation that it already knows about generally does not constitute a “report” under the whistleblower statute. The Minnesota legislature’s recent amendment to the statutory definition of “report” did not address or alter this point of common law.
The court also analyzed whether the employee had identified a federal or state law that was suspected of violation based on the allegedly mishandled blood sample. See Minn. Stat. § 181.932, subd. 1(1). Employers should note that effective May 24, 2013, the whistleblower statute now defines a report as concerning a suspected violation of “a statute, regulation, or common law.” The court further determined whether the alleged incident had been identified by the employee as potentially violating a health care services standard established by a professionally recognized national clinical or ethical standard. See Minn. Stat. § 181.932, subd. 1(4). The court determined that the employee had not identified any such law or ethical standard and dismissed her claim.
Takeaway: While the Minnesota legislature arguably expanded potential claims by its amendment of the whistleblower statute last year, employees must still satisfy basic burdens of proof in asserting their claims. Employers should continue to take any claim of retaliation seriously and conduct proper investigations.
Minnesota employers are now dealing with a series of significant changes in the state whistleblower law. Suffice it to say, the statutory changes (which came with little forewarning or employer input, but now are getting significant attention) make it much easier for a current or former employee to assert whistleblower claims for a greater range of conduct and lower obligations of proof.
But the fundamental elements of a whistleblower claim and employer response have not changed. First, the employee must have engaged in protected activity (although that has now been broadened in scope to include reports of common law claims, among other things). Second, there needs to be an adverse employment action (although that has been broadened to include “penalizing” an employee). Third, there needs to be sufficient evidence of a causal connection between the alleged protected activity and the adverse employment action, including employer knowledge of the protected activity and a reasonable proximity in time between the alleged protected conduct and the adverse employment action.
Takeaway: For Minnesota employers the whistleblower “times are a-changin,” but the fundamental elements of the claim hold firm. These elements provide the basic framework for an employer and its legal counsel when responding to a potential whistleblower matter or defending against a whistleblower suit.
Yes – the Minnesota Supreme Court recently held that an employer does not violate public policy by terminating an employee for applying for unemployment benefits, but employers should still be cautious about doing so.
In Dukowitz v. Hannon Security Services, A11-1481 (Minn., Jan. 2, 2014), the plaintiff applied for unemployment benefits after her work hours were reduced due to the elimination of her daytime shift. When the plaintiff initially suggested to her supervisor that she might apply for unemployment benefits, her supervisor openly questioned whether he should terminate her employment. When the plaintiff’s employment was terminated several months later, the plaintiff sued and alleged that her termination was wrongful because it violated the public policy of the State of Minnesota.
Under Minnesota law, there is a narrow public policy exception to the employment-at-will rule under which an employer may be subject to liability for terminating an employee because of the employee’s good faith refusal to violate the law. See Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn. 1987). In Dukowitz, the court held that the plaintiff failed to state a claim under this narrow exception because she did not allege that her termination resulted from a refusal to commit an act that she, in good faith, believed to be illegal.
The Dukowitz court also rejected the plaintiff’s argument that the court should recognize a new cause of action under which an employer can be liable whenever the discharge of an employee violates a public policy of the State of Minnesota. The court held that this broad new cause of action would be more appropriate for legislative consideration, particularly because it would interfere with the employment-at-will rule. The court also expressed concern about the lack of any clear definition of what constitutes a “public policy,” remarking that the advocates of the rule could not “delineate the contours of the tort that they urge us to adopt.”
The irony of the Dukowitz decision, however, is that by terminating the employee for applying for unemployment benefits, the employer is essentially assuring that the employee will apply for unemployment benefits again. At that point, it would likely be difficult to convince an unemployment law judge that the employee’s initial application for benefits constituted employment misconduct sufficient to disqualify the employee from receiving unemployment benefits post-termination.
In addition, employers should also be aware that it is a misdemeanor under Minnesota law for an employer to “directly or indirectly . . . obstruct or impede an application or continued request for unemployment benefits.” Minn. Stat. § 268.192, subd. 1.
Takeaway: The Dukowitz decision is good for employers because it reinforces the doctrine of at will employment. The decision is also a victory for employers because it rejected an effort to recognize a broad new cause of action against employers. At the same time, it is largely a self-defeating task for an employer to terminate an employee for applying for unemployment benefits. Employers must also be cautious not to “obstruct or impede” an employee’s application for benefits.
Potentially yes – the Eighth Circuit Court of Appeals recently held that a non-minority witness who was interviewed as part of an internal investigation of racial discrimination was protected under the anti-retaliation provision of 42 U.S.C. § 1981.
42 U.S.C. § 1981 is a federal law that protects the rights of all citizens to “make and enforce contracts” to the same extent “as is enjoyed by white citizens.” Courts have held that § 1981 encompasses both discrimination claims and retaliation claims. In the employment context, racial discrimination is usually addressed under Title VII of the Civil Rights Act, but claims are sometimes asserted under 42 U.S.C. § 1981 as well.
In Sayger v. Riceland Foods, the Eighth Circuit held that a white employee was protected from retaliation under § 1981 because he testified about racial discrimination in the workplace and, therefore, “vindicated the rights of racial minorities.” Nos. 12-3301, 12-3395 (8th Cir., Nov. 18, 2013). The court explained that:
We conclude that someone who has substantiated a complaint of a civil rights violation has demonstrated opposition to that violation and acted to vindicate the rights of minorities. Such an individual should therefore receive the same protection against retaliation as the person who filed the original complaint. If employees who give evidence or respond to questions during internal inquiries into alleged discrimination are not protected from retaliation, it would impede any internal efforts to address discrimination.
Because the plaintiff in Sayger was able to produce evidence showing that his participation in the internal investigation was the reason for his termination, the court affirmed the lower court’s finding that the employer was liable for retaliation under § 1981.
Takeaway: When conducting internal workplace investigations, it is important for employers to know that legal protections under applicable anti-discrimination and anti-retaliation laws may apply not only to the victims, but also to any witnesses interviewed as part of the investigation.
No – the D.C. Circuit Court of Appeals recently held that Title VII’s anti-retaliation provisions do not apply to employee organizations.
In Cook & Shaw Foundation v. Billington, a non-profit organization composed of current and former employees of the Library of Congress alleged that the Library retaliated against it by refusing to recognize the organization for purposes of providing meeting spaces and other benefits. The organization claimed that the Library’s refusal to recognize it was in retaliation for the organization providing assistance to employees to pursue claims of racial discrimination against the Library. No. 12-5193 (D.C. Cir., Dec. 13, 2013).
The D.C. Circuit Court of Appeals held that the complaint failed to state a claim for retaliation under Title VII. Analyzing the statutory text of Title VII, the court explained that Title VII only prohibits retaliation by an employer if the retaliation occurs because of statutorily protected activity by “employees or applicants for employment.” The court then held that the terms “employees or applicants for employment” do not include employee organizations, such as the Cook & Shaw Foundation. Because the complaint only alleged that the organization engaged in protected activity, but did not allege that any particular employees or applicants engaged in protected activities, it failed to state a claim under Title VII’s anti-retaliation provision.
Takeaway: Title VII’s anti-retaliation provision only applies when an employee or applicant for employment engages in protected activity. The activity of an organization, on the other hand, is not protected by the statute.
Many employers have filed a workers compensation claim on behalf of an employee, but nonetheless doubted whether the employee was actually injured or if a workplace incident even happened. Occasionally those suspicions are confirmed when the insurer denies the employee’s claim. As a result, the employer may then feel justified in disciplining or firing the employee for filing a false claim.
Minnesota courts have recognized that an employee may be discharged for dishonest behavior, including filing a false workers compensation claim. See Randall v. N. Milk Prods., Inc., 519 N.W.2d 456, 459-60 (Minn. Ct. App. 1994) (noting that dishonesty is not a legitimate basis for termination, however, if it is a pretext for a retaliatory discharge). At the same time, the Minnesota Workers Compensation law prohibits an employer from discharging an employee in retaliation for seeking workers compensation benefits. Minn. Stat. § 176.82, subd. 1.
The tension between these two principles surfaced in a recent case decided by the Minnesota federal district court. Schaefer v. BioLife Plasma LLC, Civil No. 11-3468 (D. Minn. Sept. 18, 2013). The matter arose when the employee allegedly slipped during the winter in the company parking lot. She claimed that she had slipped during both of her afternoon breaks. After the workers compensation claim was filed, the employer viewed videotape of the parking lot and concluded no slip had occurred. Based in part on this information, the insurer denied the claim. The employee was later fired for filing a false claim.
The employee sued for retaliatory discharge and the employer moved for summary judgment. The Schaefer court denied the employer’s motion, concluding that the employee had presented evidence that the employer’s belief in a false report was not reasonable because the company’s investigation was noticeably incomplete. For example, video footage from the first break was not retained and footage from the second break was apparently of poor quality. It was also uncertain whether the slip incidents occurred outside of camera range. The court also noted that the employer had not contacted the employee’s doctor to determine whether her injuries were consistent with a slip incident.
The court expressly noted “its concern with employers using falsification of workers’ compensation claims – or the injuries underlying them – as a grounds for termination” and further stated that “[p]ermitting termination of an employee on the grounds that a flawed investigation demonstrates a reasonable belief of claim falsification provides an employer with the incentive to do a poor investigation.”
Takeaway: While employers should certainly investigate any employee allegation of workplace injury, in doing so it should make sure any such investigation is complete and not results oriented. Employers should also carefully consider any discharge decision resulting from an allegedly false claim made by the employee.
Despite employers’ best efforts to avoid sexual relationships occurring between supervisors and subordinates, human nature can win out. When a supervisor’s overtures and acts are unwelcome, the subordinate may of course assert claims of sexual harassment. Not all subordinates, however, find these invitations unwelcome. Occasionally these relationships are consensual and the subordinate has no complaints.
The subordinate’s co-workers may nonetheless have a different view of the situation. These co-workers may find that the supervisor is treating the subordinate with unfair favoritism. Perhaps the subordinate is receiving undeserved assignments and compensation or the handbook rules on attendance and other workplace standards may not seem to apply to the subordinate. The co-workers may find the supervisor’s conduct discriminatory and complain. In turn, the supervisor may be upset by the co-workers’ claims and treat the co-workers with indifference and further disadvantage.
These were the allegations considered by the Minnesota federal district court in Dau v. Arthur J. Gallagher & Co, et al., Civil No. 13-1560 (D. Minn. Sept. 3, 2013). The subordinate’s co-workers brought claims of sexual harassment and retaliation against the employer. The court dismissed these claims holding that isolated instances of favoritism toward a paramour do not violate Title VII of the Civil Rights Act or the Minnesota Human Rights Act. The court held that only claims of widespread sexual favoritism could proceed. The court also dismissed the co-workers’ retaliation claims, holding that the co-workers could not have had a reasonable belief that the conduct they alleged violated applicable law. The court stated that the co-workers could not rely on “his or her own reasoning and sense of what is discriminatory.”
Takeaway: While an employer may avoid liability regarding a supervisor’s isolated instances of favoritism toward a subordinate with whom he or she is having a consensual relationship, such favoritism should not be encouraged or condoned. Doing so may result in workplace dysfunction and operational shortcomings. If confronted with such a circumstance, an employer may want to consult with their legal counsel.