8th Circuit affirms guardian ad litem was dismissed for legitimate reasons

A former Minnesota guardian ad litem appealed his termination, which he claimed was retaliation for his being a whistleblower, in Gregory King v. State of Minnesota, Guardian ad Litem Board. The 8th U.S. Circuit Court of Appeals affirmed the lower court on July 8, finding that the employee was in fact fired for the legitimate reason of committing gross misconduct.

In Minnesota, a guardian ad litem is appointed by juvenile or family court to advocate for a child’s best interests in a legal proceeding. Gregory King had worked as part of Minnesota’s guardian ad litem program since 2002, first serving as a guardian ad litem coordinator and eventually becoming a guardian ad litem manager. In the latter role, King oversaw guardian ad litems’ recruitment and selection, as well as supervising those individuals.

It was not until 2017—when a three-day guardian ad litem training was held—that concerns about King’s conduct with guardian ad litems surfaced. According to court documents, When discussing the #MeToo movement, one participant looked at King walking by and stated, “[Sexual harassment] doesn’t just happen in Hollywood,” indicating that she knew about a woman who had been harassed by King. A different participant overheard this comment, and knowing about an improper relationship King had with a prospective guardian ad litem in 2006 and 2007, relayed the information to her supervisor. In November of 2017, King was notified that he was placed on paid administrative leave until an investigation into the allegations concluded.

The court record indicated the investigation brought several troubling issues to light, including an improper sexual relationship, improper platonic relationships where King gave preferential treatment, and dates with people who volunteered or worked with the Guardian ad Litem Board. King allegedly also referred to himself as “chocolate cake,” telling one employee that “[n]ot everyone gets a piece of the chocolate cake.” King was terminated.

King maintained that he was not terminated because of his alleged misconduct but because of a letter he sent to his supervisor just one month before he was placed on leave in which he criticized a policy for allocating funds. King argued that the reasons offered for his termination were pretextual. A Black male, 60 years old at the time of termination, King brought race, sex, and age-discrimination claims under Title VII, the Age Discrimination in Employment Act, and the Minnesota Human Rights Act. He also brought a retaliation claim under the Minnesota Whistleblower Act.

The district court was not persuaded by King’s arguments, concluding that King had not made a prima facie case of discrimination of retaliation, and asserted that, even if he had done so, he did not show that the reasons for termination were pretextual.

Jeffrey Schiek, who represented King, asserted that prior to 2017—when the Guardian Ad Litem Board program administrator changed—King had an excellent work history. Things changed when King contacted the program administrator to relay a concern. In October 2017, King sent his supervisor a letter about the apparent exaggeration of open cases on some judicial districts. He alleged that those numbers were falsely inflated because those cases were not appropriately caused. King suggested that those districts received outsized financial allocations.

“It is our position that Mr. King was required by law to report that conduct to [his supervisor],” Schiek said. “That would be considered fraudulent conduct, and he had to report that to [his supervisor].”

To support his argument that the report of misconduct was the true cause of his firing, King pointed to the timeline. There was a five-month period between when the investigation commenced and when King was terminated, which raised questions regarding the nexus between the protected conduct and firing.

“Basically, there’s about a six-month period from when Mr. King reports the conduct to when he is terminated or put on notice for termination,” Schiek said. While the firing was not immediately after the reported conduct, Schiek expressed concerns that investigations might be drawn out to lessen the timing nexus. “I’m concerned somebody’s going to put him on a leave and then wait a certain amount of time—say, six months…and the court will say that’s fine” Schiek said.

Schiek also downplayed the gross misconduct allegations. “There’s very, very limited testimony that’s actually true in the allegations against Mr. King. Even the ones that we do admit to, there’s very de minimis in nature…[T]heir allegations against Mr. King are false.”

The state, however, alleged in its brief that King used his position as a dating service and compared some of the activities to an episode of “Mad Men.” Joseph Weiner, who represented the state, simply stated, “Mr. King is not a whistleblower.” He continued,“Mr. King was terminated for gross misconduct.”

Weiner said, “The issue in this case is that a person in a position of authority cannot use his job to coerce employees or job applicants into relationships. In this case, two separate women, years apart from each other, accused Mr. King of doing exactly that.” Weiner added, “When the Board first started talking to Mr. King about this, before he even knew the subject of the investigation, was ‘What, I can’t use my job to pick up women?’ That’s what he says and it’s undisputed that he says that.”

Ultimately, the court held, “We conclude that GALB has demonstrated a legitimate, nondiscriminatory, and nonretaliatory reason for terminating King in March 2018: The internal and external investigations into King’s alleged misconduct uncovered evidence that King engaged in gross misconduct.” Nor did the court find that King was terminated for any pretextual reasons, citing lack of evidence to back up allegations that there was a “sham investigation.” It affirmed the judgment of the district court.