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Perspectives: Retaliation rising, recent rulings regretted

“Good leadership requires (assembling)…people of diverse perspectives who can disagree with you without fear of retaliation.”

Pulitzer Prize-winning author Doris Kearns Goodwin, “Leadership in Turbulent Times” (2018)

Retaliation is the most rapidly rising genre of workplace claims by employees at both national and Minnesota levels. While prevalent in discrimination and harassment claims, the issue also arises frequently in connection with whistleblower litigation, under Minn. Stat. § 181.932, in which claimants assert that they have suffered adverse action as reprisal for engaging in various types of statutorily protected  activities.

Retaliation claims comprise slightly more than half of the overall discrimination claims filed with the Federal Equal Employment Opportunity Commission (EEOC) and parallel state agencies like the Minnesota Department of Human Rights, surpassing the most frequent assertions of disability discrimination, followed by race, gender and age claims.

But its increasing volume is not necessarily correlated with validation or vindication for claimants in litigation, particularly in recent cases before the 8th U.S. Circuit Court of Appeals.

A trio of cases, including one from Minnesota, all resulted in rulings that were regretted by the claimants. In each of them, the claimant suffered a setback in the assertion that the loss of a job was due to wrongful retaliation.

Minnesota matter

The matter from Minnesota, Placzek v. Mayo Clinic, 18 F.4th 1010 (8th Cir. 2021), was brought by an emergency room doctor who claimed that she was terminated in violation of the state whistleblower law for breach of contract. An emergency room doctor at Mayo Clinic in Rochester, she sued after Mayo terminated her appointment. She then resigned and sued for an unspecified whistleblowing claim and breach of contract, along with a claim of nonpayment of wages under Minn. Stat. § 181.114. U.S. District Court Judge Joan Ericksen in Minnesota dismissed the lawsuit on grounds that the doctor was not covered by the whistleblower law because she was an independent contractor rather than an employee subject to the act, and that her contract claim was untimely under the state statute of limitations.

The 8th U.S. Circuit Court of Appeals affirmed on both grounds in a decision joined by Judge David Stras, a former Minnesota Supreme Court justice. The five factors used to determine the coverage issue cut against the doctor’s status as an employee, covered by the state whistleblower law, primarily the consideration of whether Mayo had the “right … to control the means and matter of performance.” The “control” factor, although a “close call … weighs in favor of the independent contractor status,” based upon considerations such as scheduling, performance reviews, restrictions on the physician’s ability to work elsewhere and whether the physician can refuse to perform services or see patients. Another factor, the mode of payment, also favors independent contractor status because the doctor was paid by Mayo only indirectly.

The other factors that narrowly weigh in favor of employee status, such as Mayo furnishing medical equipment and controlling the hospital premises, were “inconclusive”  because all medical staff “must work inside a hospital using the facility’s equipment.” Finally, the absence of “any documentation of Mayo’s right to terminate … weighs in favor of independent contractor status.”

Dissecting all of these factors, the three-judge panel concluded that Judge Ericksen correctly determined that the physician was an “independent contractor” and not an “employee” and, therefore, was not entitled to pursue her whistleblower retaliation claim.

The physician’s breach-of-contract claim for not being entitled to use paid vacation during her maternity leave also was properly dismissed due to the “plain language” of her employment  agreement and Mayo’s policies that “do not guarantee … paid vacation.”

Another claim under the prompt payment law also failed because it was a “derivative of [the] breach-of-contract claim.”

Thus, the other claims also were properly dismissed along with the chief one for whistleblower retaliation.


Recent EEOC Overlapping Charges

  • Retaliation: 55%
  • Disability:  36%
  • Race:  32%
  • Sex:  31%
  • Age:  21%

Additional appeals 

An additional pair of 8th Circuit retaliation appeals claims arising met the same fate.

A lawsuit filed by a state workers’ compensation judge for retaliation under the Iowa whistleblower statute, defamation, and intentional infliction of emotional distress was dismissed in Ackerman v. State of Iowa, 19 F.4th 1045 (8th Cir. 2021).  The ex-judge sued after she was placed on family leave and then fired after it was learned that she had fraudulently enrolled her 26-year-old daughter on a state-provided insurance plan by misrepresenting her daughter’s marital status, stating that she was not married even though she was married at the time.

The claimant asserted that she was fired because she had given testimony a few months earlier to a state legislative committee that was adverse to the director of the Iowa Work Force Development Unit, the agency where the claimant worked. She contended that the investigation into the insurance coverage for her daughter, who was separated at the time but still legally married, was retaliation for that testimony, along with a defamation claim regarding testimony given to that same legislative committee by her supervisor. The 8th Circuit affirmed dismissal of the case on several grounds.

A poor performance evaluation issued to the judge after her testimony did not constitute an “adverse employment action” to activate a claim under the state whistleblower statute. That negative evaluation was not retaliatory because it did not affect her pay and she did not claim that she would have been paid more if she had received a better evaluation. A subsequent paid suspension also did not constitute “adversity” under the state whistleblower law because there was no showing that the investigator of the insurance issue was aware of her legislative testimony and, in the absence of such evidence, the decision to suspend her with pay was “a logical response to allow time for an investigation.”

Her subsequent termination also was not retaliatory because the supervisor and the two other judges who criticized her in their legislative testimony were not involved in the decision to terminate her. Parallel retaliation claims under the federal and Iowa state constitutions also failed for similar reasons. A defamation claim was properly dismissed because her supervisor’s testimony occurred within the scope of her job and, therefore, was privileged. Further, the supervisor’s testimony only referred to the claimant in passing as an example to illustrate a particular point of her testimony, and was not directed to her.

Finally, her intentional infliction claim was not viable because the conduct of the officials she was suing was not sufficiently “outrageous” to warrant such a claim.

The defeat was the second one for the ex-jurist. She had previously sued the state court, claiming that her termination was in violation of public policy, which the Iowa Supreme Court rejected.  Ackerman v. State of Iowa, 901 N.W.2d 837 (2018).

Another retaliation setback was suffered by a group of sheriff’s deputies in a western Missouri county. They were terminated or demoted after a newly elected sheriff, whom they opposed in the election campaign, took office. They lost their claim for retaliation for exercising their First Amendment rights in Burns v. Cole, 18 F.4th 1003 (8th Cir. 11/29/2021).

Their assertion that they were wrongfully terminated because they supported the new sheriff’s opponent was dismissed by the trial court and affirmed by a panel of the 8th Circuit, which pointed out that the right of a government employee to support political candidates is “not absolute.” Applying the test from Elrod v. Branti, 427 U.S. 347 (1976), the name of the defendant, incidentally, was the same name as the lead plaintiff in this case, the panel concluded that the sheriff was entitled to take adverse action against his political foes.

Under that precedent, the sheriff’s deputies were not immune from retaliation because, under Missouri law, they hold “policy-making positions for which political loyalty is necessary,” under existing 8th Circuit case law ( Curtis v. Christian County, 963 F.3d 77).

The decision distinguished an 8th Circuit case from Minnesota, Shockency v. Ramsey County, 493 F.3d 941 (8th Cir. 2007) in which the appellate court upheld a retaliation claim by sheriff’s deputies in Ramsey who claimed that they had been subject to adverse action for supporting the incoming sheriff and opposing the incumbent sheriff  in his election campaign. That case, the tribunal felt, was “unpersuasive” because of the “different statutory frameworks” for sheriff’s deputies in Missouri and Minnesota.

These retaliation rulings  reflect the reality that while retaliation claims are rising,  their chances for success are receding here in the 8th Circuit.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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