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Aug 06, 2018

A Lesson in Retaliation

By: Allison Mann

In just about every sport there is referee, umpire, or “whistleblower” who calls the fouls, or otherwise regulates the play according to the rules of the game. In the workplace, sometimes employees will need to speak out on a practice they reasonably feel is a violation of the law. North Dakota and federal law provides protection for such whistleblowers, and it is a good practice for employers to keep abreast of how courts apply and interpret whistleblower protections.

In a recent case, the Eighth Circuit Court of Appeals analyzed a case that arose in North Dakota, and dealt with both federal and state retaliation law. This case directly affects North Dakota employers. Thus, it is important for human resource professionals to be aware of the facts and outcome.

Auer v. City of Minot

The facts of this case are relatively straightforward. The Minot City attorney was fired three weeks into her one year probationary term. Prior to her termination, she had sent a “Notice of Demand” to the president of the city council, the interim city manager, and the City’s human resources director. In the Notice, she accused the interim city manager of “unlawful harassment based on sex.” The attorney claimed the city manager had made impossible demands on certain aspects of her work, prevented her from performing other key duties, and repeatedly required her to act against her better judgment as an attorney. As proof of the alleged sex-based mistreatment, the attorney recounted a meeting, held two days before she sent the Notice, where the city manager raised concerns about the attorney’s performance and her interactions with colleagues. According to the attorney, the evidence of the city manager’s bias was revealed when she compared the attorney to her predecessor, who was male.

In response to the attorney’s Notice, the mayor then directed three members of the city council to investigate and conduct interviews. They received a written response from the city manager and filed a report, finding that “no harassment based upon sex occurred.” The mayor agreed with their assessment and closed the case. The next day, the city manager fired the attorney with the approval of the mayor and the council president.

Thereafter, the attorney sued the City alleging, among other claims, that she was fired in retaliation for reporting harassment and discrimination. She had to satisfy three elements in order to prevail on this claim:

    1. That she engaged in protected activity (i.e. that she reported an illegal activity);
    2. That the City took adverse action against her; and
    3. There was a causal connection between her protected activity and the adverse action.
The attorney premised her argument on the fact that she was fired after filing the Notice and Demand, which complained of perceived discrimination and harassment on the basis of sex. She was unable to show that she engaged in protected activity, and thus, this claim failed.

In order to show “protected activity,” a plaintiff must be able to show that they reasonably believed the conduct reported was illegal. In this case, the Court reasoned that the allegations in the attorney’s notice were unreasonable and that alleged sex-based harassment could not be inferred from the city manager’s comparison of the attorney to her male predecessor. The court stated that when the city manager advised the attorney to try an approach that had worked for her predecessor, that was a sensible management tactic, which did not “transform an ordinary professional interaction into discrimination or harassment . . . and it would be unreasonable to think it did.” Here, because the attorney did not have a reasonable basis to believe the conduct of the city manager was illegal, her retaliation claim failed.

The Takeaway:

There are several lessons that an astute professional should take away from an analysis of this case. First, it provides a simple illustration of how state and federal retaliation law apply to this type of claim. Second, it provides an example of an employer responding effectively to a difficult employment situation. In example:

    • Upon receiving the employee’s complaint of unlawful harassment and discrimination, the City immediately appointed three individuals (who were not directly involved in the events leading to the complaint) to conduct an investigation into the allegations.

    • The investigative team conducted a complete investigation, including conducting interviews, collecting written statements, and filing a final report which included the team’s ultimate conclusions.

    • The city manager sought approval of her supervisors prior to terminating the employee, rather than making a rash decision to fire her in the heat of the moment.
While these actions did not prevent the City from being involved in litigation over the matter, they did positively support the City’s position.

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Reprinted with permission from an article submitted for publication in the August, 2018 Southwest Area Human Resource Association newsletter.