Close Timing Gets a Minnesota Whistleblower Claim Past Step One and No Further — the Supreme Court Said So in 2022

Two ways these claims die, and they are opposites

The third element of a whistleblower claim under Minn. Stat. § 181.932 is a causal connection between the protected report and the adverse action. Two failures account for a large share of the reported decisions, and they point in opposite directions.

The first is that the people who made the decision did not know about the report. The second is that they had already made the decision. Both are proved with the same kind of evidence — dates, documents, and who was in the room — and both are usually resolved before trial.

Between them sits the thing every employee notices first: the firing came right after the report. Minnesota law gives that fact a specific and limited job.

What temporal proximity does

The governing sentence is forty years old. Hubbard v. United Press International, Inc., 330 N.W.2d 428, 445 (Minn. 1983):

It is recognized, however, that this causal connection 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.

Note the two components. Knowledge, and closeness in time. Not either one alone.

The Minnesota Supreme Court applied that sentence to a whistleblower claim in Hanson v. Department of Natural Resources, No. A20-0747 (Minn. Apr. 6, 2022), slip op. at 20–21:

And there is a causal connection between the two, because under Minnesota law, the employer’s knowledge of the employee’s protected activity along with close temporal proximity to the adverse action suffices to establish a causal connection.

Hanson reported what the opinion calls “suspected illegal activity” at a hotel where she was staying for a work-related conference — she told a 911 dispatcher she had “stumbled upon” a prostitution ring, and testified that she feared “the repercussions of reporting the suspected illegal activity and child abuse nextdoor [sic]” — and the department fired her afterward. Slip op. at 2, 5. The court found the element satisfied in two sentences: “There is ample evidence that the DNR was aware that Hanson had reported suspected illegal activity, and the termination of her employment closely followed her reporting. Hanson has, therefore, established a causal connection for purposes of her prima facie case.” Slip op. at 21.

Minnesota is more generous here than the federal courts sitting in Minnesota, and Hanson said so in a footnote at 21 n.18:

Some federal courts interpreting the MWA have held that “something more” than temporal proximity may be required to establish a causal connection. … But we have never mandated anything beyond close temporal proximity to establish a causal connection for an employee’s prima facie case.

The federal decision the footnote names is Lissick v. Andersen Corp., 996 F.3d 876, 883 (8th Cir. 2021). It is cited here only because the Minnesota Supreme Court cited it in order to decline to follow it; it is not the Minnesota rule, and no Minnesota court has adopted it.

What temporal proximity does not do

Hanson’s prima facie holding is the half of the case that gets quoted. The other half is the reason Hanson lost. Slip op. at 25:

But a causal connection based on temporal proximity, while enough to satisfy her prima facie case, is not sufficient to satisfy Hanson’s burden to provide evidence that the DNR’s stated reasons are pretextual or that her reporting motivated the termination decision. … Temporal proximity alone is not sufficient for an employee’s claim to proceed to trial, and so Hanson’s argument fails.

The court cited Hubbard, 330 N.W.2d at 445–46, for that, and Hubbard is where the point was first made. Two days elapsed between service of Hubbard’s complaint and his discharge, which the court held “sufficient to show retaliatory motive for purposes of Hubbard’s prima facie case.” Hubbard, 330 N.W.2d at 445. Then, at 445–46:

Although the timing of the discharge in this action does raise an inference of retaliatory motive that is sufficient to satisfy the causation element of Hubbard’s prima facie case, we find that that inference has been soundly rebutted and that it does not operate to satisfy Hubbard’s ultimate burden of persuasion.

Knowledge, and who has to have it

The formulation in Hubbard reaches “actual or imputed knowledge.” What it does not reach is a decision-maker who learned of the report only afterward.

Cokley v. City of Otsego, 623 N.W.2d 625 (Minn. Ct. App. 2001), is the clearest published Minnesota illustration. A city clerk-treasurer whose position was eliminated won a jury verdict under the Act; the court of appeals reversed and directed judgment for the city, holding she had produced no evidence of causation. Its description of what she had produced instead, at 633:

As is clearly demonstrated from the nature of her concerns and the manner in which she addressed them, Cokley did not intend to blow the whistle until after her job was eliminated, at which point she seized on the theory to explain the abrupt, seemingly arbitrary elimination of her job. She pressed this theory upon newly-elected councilmember Mark Berning, who had no knowledge of Cokley’s activities prior to the elimination of her job, other than as related by Cokley.

Read Cokley for the causation holding and not for its treatment of protected conduct. The same opinion states, at 631, that “[t]o qualify as a report under the statute, a report must ‘blow the whistle’ by notifying the employer of a violation of law that is a clearly mandated public policy.” That sentence is no longer the law. The public-policy requirement was rejected by the Minnesota Supreme Court in Anderson-Johanningmeier v. Mid-Minnesota Women’s Center, Inc., 637 N.W.2d 270, 277 (Minn. 2002), ten months after Cokley was decided, and the purpose test was displaced by the 2013 definition of “good faith” now in Minn. Stat. § 181.931, subd. 4 — the point Friedlander v. Edwards Lifesciences, LLC, 900 N.W.2d 162 (Minn. 2017), decided and which the Whistleblower Act guide works through. Cokley’s causation analysis does not depend on either.

Speculation is not circumstantial evidence

Both courts have made the same point in nearly the same words, and it is the sentence that decides more of these motions than any doctrine.

Cokley, 623 N.W.2d at 633:

Speculation, however, is not circumstantial evidence. A fact is proved by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case.

The court applied that to a series of inferences the employee asked the jury to draw from phone calls among council members and from the council’s unwillingness to answer questions at a meeting, and concluded: “Again, Cokley relies on speculation, not evidence.” Cokley, 623 N.W.2d at 634.

Hanson reached the same result on a different record, quoting Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993): “Mere speculation, without some concrete evidence, is not enough to avoid summary judgment.” Slip op. at 27.

The court of appeals put the reason plainly: “retaliatory motive is difficult to prove by direct evidence,” which is why the indirect route exists at all. Cokley, 623 N.W.2d at 632. Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319 (Minn. 1995), a reprisal case under the Human Rights Act, is the source of the proposition that “[t]he causal connection requirement may be satisfied ‘by evidence of circumstances that justify an inference of retaliatory motive,’” quoting Hubbard, 330 N.W.2d at 445. Dietrich, 536 N.W.2d at 327. Difficulty of proof lowers the kind of evidence required. It does not lower the requirement that there be some.

The decision that predates the report

This is the pattern that beat Hubbard, and the record the supreme court described is worth reading as a description of what the evidence looks like. Hubbard, 330 N.W.2d at 446:

This is not a case where the employer acted on impulse, in response to a charge or complaint. Rather, the record clearly shows that UPI had first determined to discharge Hubbard long before any protected activity, that the decision to terminate was made after careful consideration of legitimate reasons before any charge of discrimination was filed, and that the decision was then carried out despite Hubbard’s having commenced this action, not because of it.

The evidence that produced that conclusion was documentary and dated: an August 1979 memorandum from a manager, unsolicited written complaints from a coworker in January 1980, written evaluations collected in March 1980, and a March 18 call from the employer’s counsel telling the employee’s lawyer that discharge was “very close at hand” — all before the discrimination charge was filed in April 1980. Hubbard, 330 N.W.2d at 445.

Hanson is a variation on the same idea, and the court drew a distinction that is easy to miss. The department conceded, in effect, that Hanson would not have been fired if she had not made the report — because the report is what led to the sequence of conduct the department objected to. The court held that this is not the same as being fired for the report. Slip op. at 22:

In one sense, it is true that if Hanson had not reported the suspected illegal activities, she likely would not have been terminated. … But it is different to say that the DNR terminated her employment because she made the report.

And, at 23: “The record evidence confirms that the way that Hanson conducted herself cut off any reasonable inference of a connection between her protected reporting and her eventual termination.”

That is a but-for/because-of distinction, and it is a hard one for a plaintiff. It is also the reason a whistleblower claim is not made stronger by conduct surrounding the report.

Shifting reasons help; silence does not

One piece of evidence Minnesota courts treat as probative of pretext is an employer that changes its story. Hanson, slip op. at 23–24:

An employer’s shifting reasons for making an employment decision may give rise to a fact issue about whether the later-stated reasons are pretextual.

The authority the court cited for that is Kobrin v. University of Minnesota, 34 F.3d 698, 703 (8th Cir. 1994) — an Eighth Circuit decision, cited here because the Minnesota Supreme Court adopted the proposition from it in Hanson.

The limit came in the next sentences. Hanson’s termination letter stated no reason at all, and she argued that the reasons the department gave later were therefore suspect. The court rejected it: the letter “was silent as to the DNR’s reasons,” and “Hanson presents no authority for the proposition that silence as to the reason for termination is tantamount to inconsistency with a later-stated reason. There are no shifting reasons here, and therefore, no fact issue on that basis.” Slip op. at 24.

In a footnote to that passage the court observed that Hanson “could have requested a written record of the reasons for her termination, but the record does not contain any evidence that she did,” citing Minn. Stat. § 181.933, subd. 1, which gives an involuntarily terminated employee 15 working days to make that request and gives the employer 10 working days to answer in writing. Slip op. at 23 n.19. The statute and its mechanics are on the termination-reason letter page.

The “same actor” inference: what a search actually shows

Employers frequently argue that no retaliatory inference is available where the same person who hired, promoted, or previously rewarded the employee also made the adverse decision.

A search of published Minnesota appellate decisions retrieved for this page turns up none adopting that inference under the Whistleblower Act. The only Minnesota discussion located is in Justice Chutich’s concurrence in Hanson, and it appears there as a criticism rather than an endorsement — listing, among the “confusing and inefficient inferences and tests” that have grown up around the McDonnell Douglas framework, that Minnesota courts “infer against discrimination when the same decision-maker hired and made the adverse employment decision.” Hanson, slip op. at C-2 (Chutich, J., concurring). The two authorities that sentence cites are a nonprecedential Minnesota Court of Appeals decision and an Eighth Circuit decision. This page does not state that the same-actor inference is or is not Minnesota law, because no retrieved published Minnesota decision decides it.

The “already-scheduled discipline” pattern is different: it is not a special inference at all, but ordinary rebuttal evidence, and Hubbard is the Minnesota Supreme Court decision applying it.

What this page does not do

It describes what Minnesota courts have found sufficient and insufficient on the causation element in the decisions retrieved for it. It does not evaluate a sequence of events. The distance between “the timing looks bad” and “there is evidence the report motivated the decision” is where these cases are won and lost, and closing it takes documents — dates, drafts, evaluations, emails, and who saw them when — not a description of the rule.

The framework this element sits inside is on the proof page. What the statute protects in the first place is in the Whistleblower Act guide. Whether a firing was unlawful at all is a separate question.