Bruce H. Wheece, Appellant, vs. Great River Regional Library, Respondent, Joint Powers Organization of the City of St. Cloud, et al., Defendants.

Bruce H. Wheece, Appellant, vs. Great River Regional Library, Respondent, Joint Powers Organization of the City of St. Cloud, et al., Defendants. A06-1962, Court of Appeals Unpublished, July 31, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1962

 

Bruce H. Wheece,
Appellant,
 
vs.
 
Great River Regional Library,
Respondent,
Joint Powers Organization of the City of St. Cloud, et al.,
Defendants.

 

Filed July 31, 2007

Affirmed

Stoneburner, Judge

 

Stearns County District Court

File No. C906990

 

Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., 1850 West Wayzata Boulevard, P.O. Box 39, Long Lake, MN 55356-0039 (for appellant)

 

Michelle M. Soldo, Thomas P. Carlson, Carlson & Soldo, P.L.L.P., 1052 Centerville Circle, Vadnais Heights, MN 55127 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges dismissal of his whistleblower action against respondent public library, arguing that the district court erred by concluding that he failed to make a prima facie case under Minnesota's Whistleblower Act, Minn. Stat. § 181.932 (2006).  We affirm.

FACTS

 

            The following facts are stated in the light most favorable to appellant Bruce H. Wheece, who is challenging summary dismissal of his whistleblower action against his former employer, respondent Great River Regional Library (the library), a public library system operated under a joint-powers agreement pursuant to Minn. Stat. § 471.59 (2006).

            Wheece's employment as a custodian for the library was terminated on May 24, 2005.  The library's written documentation of the termination states that the reason for Wheece's termination was "failure to follow a direct order during the investigation of a theft in the building."

            The theft being investigated involved $7,000 missing from money bags deposited into the main library safe.  The library reported the theft to the St. Cloud Police Department, which provided the library with a questionnaire.  The first page of the questionnaire contains instructions for completion and requests the name, date of birth, address, and telephone number of the person responding.  The questionnaire asks a number of questions about how the theft could have occurred and on page 6 asks:

1.         Do you know who took the money from the money

            bags?

 

2.         Did you take the money from the money bags?

 

3.         Did you take part in taking the money from the money

            bags?

 

            On the day Wheece was terminated, the library's director, Bescye Burnett, gathered selected library employees, including Wheece, for a meeting.  She handed out the questionnaire and a copy of the library's employee discipline policy.  Burnett read the following statement to the group:

You have been asked to attend this meeting today because we are investigating a serious theft.  All of you here today may know something about the theft, may have observed something helpful, or may have had access to the missing funds.

 

It is required that you completed [sic] the questionnaire that you receive today.  Failure to do so may result in disciplinary action based on [the library's] employee discipline policy.  A copy of that policy will be distributed for you to read.  Do you have any questions?

 

Please follow the instructions exactly.  When you have completed the questionnaire, please return it to me.

 

            Wheece was the first staff member to complete the questionnaire.  When he handed in the questionnaire, he realized that he forgot to fill out the personal information on the first page.  He asked Burnett if he needed to complete that information and was told that he did.  Wheece returned to his seat and then asked Burnett if he could get a copy of the questionnaire.  Burnett said that he could not get a copy.  Wheece became upset, claiming his rights were violated and that he would get an attorney.  He said, "You can't make me do this."  Burnett told Wheece that he had to complete the form or he would be fired and referred to the discipline policy.  Wheece said he did not believe that he had to comply and said, "[Y]ou can't do this.  This isn't Nazi Germany.  You're not Hitler."  Burnett terminated Wheece's employment and had him escorted out of the building.  Wheece said that Burnett would be hearing from his attorney.[1]

            Subsequently, Wheece sued the library,[2] alleging violation of various constitutional rights, which the district court interpreted as claims under 42 U.S.C. § 1983 (2000), and a whistleblower claim.  The library moved to dismiss for failure to state a claim under Minn. R. Civ. P. 12.02(e), or in the alternative for summary judgment.  Wheece moved for a continuance and moved to strike the library's allegations of his insubordination.

            After a hearing on the motions, the district court denied Wheece's motion for a continuance and motion to strike and granted the library's motion to dismiss all of Wheece's claims.  In the alternative, the district court granted the library's request for summary judgment on Wheece's claims.  Regarding the whistleblower action, the district court held that Wheece's belief that he was entitled to a copy of the questionnaire did not constitute statutorily protected conduct and that Wheece failed to make a prima facie case under the Whistleblower Act.  This appeal followed, seeking reinstatement of the whistleblower claim.

D E C I S I O N

 

            Because it is not clear that the district court's dismissal is based solely on the pleadings, we analyze the appeal as from summary judgment.  On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the district court erred in applying the law.  Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 623 (Minn. App. 2007).  Appellate courts must view the evidence in the light most favorable to the party against whom judgment was granted.  Id.  "No genuine issue for trial exists where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."  Id. (quotation omitted).  When a district court applies statutory language to undisputed facts, its conclusion is one of law, which is reviewed de novo.  Id.

            Wheece's claim is for violation of Minn. Stat. § 181.932, subd. 1(c) (2006), which provides:

[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

 

            (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.

            To assert a claim under Minnesota's Whistleblower Act, a plaintiff must first establish a prima facie case for a retaliatory action.  Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001).  The burden of production then shifts to the employer "to articulate a legitimate, non-retaliatory reason for its action."  Id.  Finally, the employee can demonstrate that the employer's articulated reason for the action is pretextual.  Id.  The employee carries the overall burden of persuasion.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 445 (Minn. 1983).

            To establish a prima facie case of retaliatory action, the employee must show: "(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two."  Id. at 444.  To demonstrate statutorily-protected conduct under Minn. Stat. § 181.932, subd. 1(c), an employee must show that "the employee [refused] 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 . . . , and the employee [informed] the employer that the order is being refused for that reason."

            Wheece asserts that, despite his failure to specifically articulate the basis for his objection to being required to fill out the questionnaire, his words and actions articulated "enough of a suspicion" of a violation of law "to pass muster under Minn. Stat. § 181.932."  But even on appeal, Wheece has failed to specifically articulate what law he suspected the library was asking him to violate.  Instead, Wheece asserts that "[t]he law in Minnesota is specific and clear on the subject of public employees being forced to the Hobson's choice of waiving their Fifth Amendment self-incrimination rights to keep their jobs," citing In re Recommendation for Discharge of Kelvie, 384 N.W.2d 901, 904-906 (Minn. App. 1986).  But Kelvie did not involve a whistleblower action.  In Kelvie, this court affirmed the determination of the Civil Service Commission that Kelvie's assertion of his Fifth Amendment privilege against self-incrimination at fact-finding and administrative hearings did not give his public employer sufficient cause to discharge him from his duties as a firefighter.  Id.at 906.  Kelvie is not relevant to a determination of whether a requested Fifth Amendment waiver is a request that an employee violate a law such that refusing the request constitutes protected conduct under the Whistleblower Act.

            The undisputed facts in this case support the district court's conclusion that Wheece's objection was to the library's refusal to give him a copy of the questionnaire, which, Wheece seems to concede, does not support a finding that he engaged in protected conduct under the Whistleblower Act.  And even if we construe the facts broadly in Wheece's favor as establishing that he sufficiently articulated an objection to being asked to waive his Fifth Amendment rights, we conclude that the district court did not err in granting summary judgment.  Such a request does not, as a matter of law, constitute a request of an employee to violate a state or federal law even though, as demonstrated in Kelvie, a refusal to comply may not constitute cause to terminate employment.  Because Wheece has not shown that he engaged in protected conduct under Minn. Stat. § 181.932, subd. 1(c), he has failed to make out a prima facie case under the Whistleblower Act.

            We note that Wheece correctly asserts that the district court improperly considered whether his act benefited the public.  The Minnesota Supreme Court has rejected importing a "public policy requirement" into the whistleblower statute.  Anderson-Johanningmeier v. Mid-Minnesota Women's Ctr., Inc., 637 N.W.2d 270, 277 (Minn. 2002).  But whether Wheece's assertions benefited the public or only himself, the act did not involve the protected conduct that is required by the Whistleblower Act.

            Affirmed.

[1] Wheece's statement of facts contains two accounts of the incident written after the incident, one by the library's finance manager, Linda Treb, and one by Burnett.  The accounts are similar.  The quotations from the Treb account have been used in this opinion.

[2] While the caption includes the library, Joint Powers Organization of the City of St. Cloud, and various counties, Wheece served only the library with a summons and compliant.  The district court dismissed the claims against the parties that were not served, and Wheece has not appealed dismissal of those claims.