Dawn Michelle Henry, Appellant, vs. Indigenous People's Task Force, Respondent.

Dawn Michelle Henry, Appellant, vs. Indigenous People's Task Force, Respondent. A06-160, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-160

 

Dawn Michelle Henry,

Appellant,

 

vs.

 

Indigenous People's Task Force,

Respondent.

 

Filed December 19, 2006

Reversed and remanded Hudson, Judge

 

Hennepin County District Court

File No. EM 04-17616

 

 

Joni M. Thome, Halunen & Associates, 220 South Sixth Street, Suite 2000, Minneapolis, Minnesota 55402 (for appellant)

 

Hal A. Shillingstad, Wendy M. Canaday, Flynn, Gaskins & Bennett, LLP, 2900 Metropolitan Centre, 333 South Seventh Street, Minneapolis, Minnesota 55402 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant Dawn Michelle Henry challenges the district court's order granting respondent Indigenous People's Task Force summary judgment dismissing appellant's employment-retaliation claim.  Appellant also challenges the district court's order denying as moot her motion to amend her complaint to add a claim for punitive damages.  Because a genuine issue of material fact exists as to whether appellant made a prima facie case for employment retaliation and whether respondent's articulated reason for termination is pretext for retaliation, we reverse and remand.  Because the district court did not rule on the merits of appellant's motion to amend the complaint, we remand for a decision on that issue.

FACTS

Appellant was respondent's employee until respondent terminated appellant's employment on January 3, 2003.  Appellant claims that respondent discharged her in retaliation for her (1) winning a money judgment against respondent in a landlord-tenant dispute, (2) informing the Department of Labor (DOL) about respondent's unlawful overtime policy, and (3) informing the Minnesota Department of Human Services (MNDHS) that respondent may be misappropriating grant money and submitting grant evaluations based on insufficient data. 

The record shows that a money judgment in a landlord-tenant dispute with appellant was entered against respondent on November 26, 2002.  The record also demonstrates that in the fall of 2002, the DOL informed respondent that its overtime policy was unlawful and that it must pay appellant for accrued overtime.  Finally, the record shows that appellant made reports about respondent to MNDHS, the last of which occurred approximately two weeks before respondent terminated her employment, and that MNDHS was investigating the issues that appellant reported. 

Respondent claims it discharged appellant for using vehicles rented on respondent's account for personal reasons.  Respondent claims that in 2001, appellant's supervisor warned appellant about misusing rental vehicles.  At this meeting, the supervisor informed appellant that she must return all rental vehicles after completing her official business, but that she was free to rent vehicles for her personal use so long as she did so on her own account.  On November 14, 2002, the supervisor sent a memo informing appellant that respondent had reason to believe appellant had misused rental vehicles in October, 2002.  The memo warned appellant that if respondent "receive[d] information in the future that indicates you are using Task Force rental vehicles for personal use, you will no longer be allowed to rent vehicles under the Task Force's account and disciplinary action will be taken."  After terminating appellant, respondent sent appellant a letter asserting 17 instances of rental-car abuse.  However, the last documented incidents were those in October, referenced in the November memo, warning appellant against personal use of the company's rental cars.  None of the instances of abuse has independent documentary support in the record. 

Appellant admits that in 2001 she may have used a rental vehicle for personal reasons and that her supervisor then warned her that she was not allowed to use vehicles rented on respondent's account for personal purposes.  Appellant denies ever misusing rental vehicles in October 2002.  Furthermore, appellant claims that when she kept a vehicle for personal use, she called the rental-car company to switch the liability insurance and payment obligations to her, but there is no evidence in the record to corroborate her claim.  This appeal follows.

D E C I S I O N

I

            Appellant challenges the district court's order granting respondent summary judgment and dismissing her employment-retaliation claim, arguing that a genuine issue of material fact exists as to whether appellant established a prima facie case of employment retaliation and whether respondent's reason for discharging appellant was pretextual.  The role of this court when reviewing a grant of summary judgment is to determine whether any issue of material fact exists and whether the district court erred in its application of the law.  Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992).  When making these determinations, the reviewing court views the evidence in the light most favorable to the party against whom summary judgment was granted.  Id.  Any doubt as to whether an issue of material fact exists should be resolved in favor of the party appealing from a grant of summary judgment.  Id.  A genuine issue of material fact does not exist when the record taken as a whole could not lead a reasonable trier of fact to find for appellant.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). 

            Under Minnesota's whistleblower statute, "[a]n employer shall not discharge . . . an employee . . . because: (a) the employee . . . in good faith, reports a violation or suspected violation of any federal or state law or rule . . . to an employer or . . . governmental body or law enforcement official . . . ."  Minn. Stat. § 181.932, subd. 1(a) (2004).  In analyzing whistleblower claims, Minnesota courts have adopted the McDonnell Douglas burden-shifting test.  Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001).  First, a plaintiff must establish a prima facie case of retaliatory action.  Then the burden of production shifts to the employer to articulate a legitimate, non-retaliatory reason for its action.  Finally, the employee must demonstrate that the employer's articulated reason is a pretext for retaliation.  Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).  The employee carries the overall burden of persuasion.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 44546 (Minn. 1983). 

Prima Facie Case

"A prima facie case of retaliatory discharge . . . requires the employee to demonstrate statutorily protected conduct by the employee, an adverse employment action by the employer, and a causal connection between the two."  Gee v. Minn. State Coll. & Univ., 700 N.W.2d 548, 555 (Minn. App. 2005).  To engage in protected activity, an employee must make a good-faith report that implicates a violation or suspected violation of federal or state law or rule adopted pursuant to law.  Obst v. Microtron, Inc., 614 N.W.2d 196, 204 (Minn. 2000).  A specific law or rule need not be named if the alleged facts, if proven, would constitute a violation of a law or rule adopted pursuant to law.  Abraham v. County of Hennepin, 639 N.W.2d 342, 35455 (Minn. 2002).  A causal connection between protected activity and termination "may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time."  Hubbard, 330 N.W.2d at 444. 

Here, the record contains sufficient evidence from which a trier of fact could reasonably find that appellant's communications with DOL and MNDHS constitute protected activity.  It is undisputed that appellant suffered an adverse employment action by respondent.  In addition, the record shows that respondent knew, prior to terminating appellant, that she had engaged in protected activity.  The district court concluded that appellant failed to make a prima facie case of employment retaliation, because the temporal proximity between appellant's termination, the landlord-tenant dispute, and the DOL report was too remote to support an inference of causation.  However, the district court failed to consider what inferences could be drawn from the temporal proximity between appellant's communications with MNDHS and her termination.  The record shows that respondent terminated appellant within two weeks after her last report to MNDHS. 

Based on the record, there is sufficient evidence for a trier of fact to reasonably find that appellant's communications with MNDHS constituted protected activity; that an adverse employment action occurred shortly thereafter; and that an inference of causation could be found due to the temporal proximity between the two. 

Pretext

When an employer articulates a legitimate, non-retaliatory reason for terminating an employee, the burden shifts to the employee to show that the employer's reason is pretextual.  McDonnell Douglas Corp., 411 U.S. at 804, 93 S. Ct. at 1825 (1973); Hubbard, 330 N.W.2d at 445.  Although temporal proximity is sufficient to satisfy the causation element of a prima facie case of retaliation, it is insufficient to prove pretext.  Id. at 44546.  Pretext can be shown by demonstrating that "the employer acted on impulse, in response to a charge or complaint."  Id. 

The record shows that there is sufficient evidence for a trier of fact to reasonably find that respondent acted on impulse.  First, out of all of appellant's alleged protected conduct, her disclosure to the MNDHS posed the greatest threat to respondent.  Claims that respondent was misappropriating grant money and submitting grant evaluations based on insufficient data are serious accusations that, if true, could lead to severe consequences for respondent.

Second, although appellant admitted that she knew about respondent's rental-vehicle policy and had used rental vehicles for personal use, respondent knew this information before appellant made reports to MNDHS.  Based on this evidence, a trier of fact could reasonably find that, but for appellant's communications with MNDHS, the rental-vehicle issue would not have led to her termination. 

Respondent argues that it discharged appellant in response to documentation received from the rental-car company highlighting the extent of appellant's improper conduct.  But the record does not contain this documentation.  Thus, a fact finder could reasonably find that respondent's letter to appellant outlining 17 instances of improper rental-vehicle use did not present any new evidence that respondent did not already know before appellant made her reports to MNDHS.  This evidence raises a genuine issue of material fact as to the credibility of respondent's articulated reason for termination and supports an inference that respondent terminated appellant and then looked for justification ex post facto.

II

            Appellant challenges the district court's order denying her motion to amend the complaint, arguing that she made out a prima facie case for punitive damages.  See Minn. Stat. § 549.191 (2004) ("[I]f the court finds prima facie evidence in support of the motion, the court shall grant the moving party permission to amend the pleadings to claim punitive damages.").  This court will not reverse a district court's decision to grant or deny a motion to add a claim for punitive damages absent an abuse of discretion.  LeDoux v. Nw. Publ'g, Inc., 521 N.W.2d 59, 6869 (Minn. App. 1994), review denied (Minn. Nov. 16, 1994). 

Here, the district court denied the motion as moot because it had granted summary judgment in favor of respondent.  Because we hold that the district court erred by granting respondent summary judgment, we remand for the district court to determine whether appellant has made a prima facie case entitling her to amend her complaint to add a claim for punitive damages. 

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.