A Minnesota Whistleblower Claim Is Proved in Three Elements and Two Burden Shifts — and in 2022 the Supreme Court Declined to Say Whether That Framework Should Survive

The three elements, and where they came from

The Whistleblower Act itself says nothing about how a claim is proved. Minn. Stat. § 181.932, subd. 1, states a prohibition — an employer “shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because” the employee did one of six things — and § 181.935(a) creates the civil action. Everything between the statute and a verdict is judge-made.

The structure comes from a 1983 case that had nothing to do with the Act, which did not exist yet. In Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983), the Minnesota Supreme Court applied the federal McDonnell Douglas framework to a retaliation claim under the Human Rights Act and set out the elements at 444:

In order to establish a prima facie case where an alleged retaliatory discharge is involved, an employee must establish: (1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.

Those three sentences are now the whistleblower test. The court of appeals imported them in Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001), quoting Hubbard directly, and repeated them in Coursolle v. EMC Insurance Group, Inc., 794 N.W.2d 652, 657 (Minn. Ct. App. 2011), as the three things “an employee must prove” to establish liability under the Act. The Minnesota Supreme Court walked through all three under the Act in Hanson v. Department of Natural Resources, No. A20-0747 (Minn. Apr. 6, 2022), slip op. at 20.

Cokley also stated the allocation that follows, at 630:

Minnesota courts have adopted the McDonnell Douglas analysis: the employee has the initial burden to establish a prima facie case, and the burden of production then shifts to the employer to articulate a legitimate, non-retaliatory reason for its action, after which the employee may demonstrate that the employer’s articulated reasons are pretextual.

The full statement of that framework, and the correction of one common misreading of it, is in Hanson.

Step one: protected conduct is where most of the law is

The second element — an adverse employment action — is usually not contested where the employee was fired. Hanson, slip op. at 20 (“The DNR clearly made an adverse employment decision when it chose to terminate Hanson’s employment.”). The third element is causation, and it has its own page. The first element is where claims are most often lost.

Three rules define it, and they cut in different directions.

A report does not have to name the law. In Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn. 2002), the employees had complained about workplace fumes to supervisors and to the state Safety and Health Division without citing any statute in their pleadings. The supreme court held at 354–55:

A whistleblower claim need not identify the specific law or rule that the employee suspects has been violated, so long as there is a federal or state law or rule adopted pursuant to law that is implicated by the employee’s complaint, the employee reported the violation or suspected violation in good faith, and the employee alleges facts that, if proven, would constitute a violation of law or rule adopted pursuant to law.

The report does not have to serve the public. Employers argued for years that the Act reached only reports implicating a clear mandate of public policy, and the court of appeals had accepted that reading. The supreme court rejected it in Anderson-Johanningmeier v. Mid-Minnesota Women’s Center, Inc., 637 N.W.2d 270, 277 (Minn. 2002):

In sum, we reject the importation of a public policy requirement into the whistleblower statute and hold that the protections of section 181.932, subd. 1(a), are not limited to reports that implicate public policy.

But the law the report points to has to exist. This is the limit that ends claims, and it is stated most precisely in Kratzer v. Welsh Companies, LLC, 771 N.W.2d 14 (Minn. 2009). Kratzer reported that a colleague had not disclosed the terms of a commission agreement in a commercial real estate transaction. The rule he pointed to required disclosure of the fact of a dual agency and nothing more, so the conduct he reported was not unlawful. The court set out the test at 22:

The proper standard to apply when assessing the legal sufficiency of a claim under the whistleblower statute is to assume that the facts have occurred as reported and then determine, as we said in Abraham, whether those facts “constitute a violation of law or rule adopted pursuant to law.”

And, in the same paragraph:

In other words, to find protected conduct, there need not be an actual violation of the law, as we said in Obst, because the facts may not be as the employee reported them to be. Although there need not be an actual violation, the law alleged to have been violated must exist.

Kratzer, 771 N.W.2d at 22.

One more boundary is worth knowing because it is counterintuitive. Cooperating with an employer’s own internal investigation of someone else’s complaint is not, by itself, protected. In Coursolle, 794 N.W.2d at 658, the court of appeals held that “mere participation in an employer’s internal investigation of another employee’s complaint is not protected by paragraph (1) of section 181.932, subdivision 1,” and that clause (2) does not help either, because by its plain language it “does not protect an employee who is requested by his or her employer to participate in the employer’s internal investigation.”

Step two: the employer’s burden is production, not persuasion

If the employee clears step one, the burden that shifts to the employer is a light one and is frequently described inaccurately. Hanson, slip op. at 18:

At the second step, the burden of production shifts to the employer to provide “some legitimate, nondiscriminatory reason” to explain why it took the adverse employment action. … If the employer does so, the presumption of discrimination no longer applies.

The employer does not have to prove the reason was the real one, or a good one, or a fair one. It has to produce one. In Hanson itself the reason the Department of Natural Resources gave — a set of objections to how a regional director had conducted herself at a hotel — was enough to satisfy the step without any weighing of whether it was correct. Slip op. at 21.

Step three: two ways to carry it, and the one Minnesota added

At the third step the burden returns to the employee, and it is the burden of persuasion, not production. Hanson, slip op. at 18: “The employee retains the ultimate burden of persuasion.”

The first route is the familiar one — show the employer’s stated reason is untrue. Hanson, slip op. at 18 (“Sufficient evidence of pretext could include that the employer’s stated reason is untrue.”). In a single-motive case the supreme court described what that takes, slip op. at 22: the employee “needs to provide evidence that the employer’s ‘proffered reason was not the true reason for the employer’s actions’ and that discrimination was the real reason,” quoting Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).

The second route is Minnesota’s own, and it matters. McGrath v. TCF Bank Savings, 509 N.W.2d 365 (Minn. 1993), is a two-page opinion the supreme court issued for the sole purpose of correcting the court of appeals’ description of the framework in a whistleblower case. Its operative sentence, at 366:

As we made clear in Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn.1988), even if an employer has a legitimate reason for the discharge, a plaintiff may nevertheless prevail if an illegitimate reason “more likely than not” motivated the discharge decision.

Hanson restated that as the alternative at step three — the employee “could alternatively offer evidence at this step that an improper reason ‘motivated the discharge decision,’ rather than proving that the employer’s reason is untrue.” Slip op. at 18. And the court collected the several phrasings Minnesota opinions have used for that idea — “discernible, discriminatory, and causative factor,” “substantial causative factor,” “actually motivated” — and said in a footnote that “these various articulations are driving at the same standard: whether the protected whistleblowing was a motivating factor in the employer’s adverse employment action.” Slip op. at 18 n.17.

Who decides what

Two different decision-makers, at two different points, and conflating them is a common error.

The court decides whether the claim goes to trial. Hanson is a summary-judgment case, and so are most reported whistleblower decisions. Where the employer moves to dismiss on the pleadings instead, the standard is Rule 12.02(e), and the supreme court restated it in Wredberg v. Canvas Health, Inc., No. A24-1897 (Minn. Aug. 12, 2026), slip op. at 8: a claim survives “if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded,” with the facts alleged accepted as true and reasonable inferences construed in the non-moving party’s favor.

A jury decides the claim itself. Abraham, 639 N.W.2d at 354:

We hold that an action brought in district court under the Whistleblower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, alleging the tort of retaliatory discharge and seeking only money damages, is a cause of action at law with a constitutional right to jury trial.

The qualifier is doing real work. Abraham rested on the nature of the relief sought, and the plaintiffs there had asked for money only. The jury right, and what a court may award instead of or alongside a jury verdict, are worked through on the remedies page.

The framework itself is unsettled

This is the part of Minnesota whistleblower law most likely to change, and the supreme court said so in the same breath it applied the framework.

Hanson asked the court to drop McDonnell Douglas for whistleblower claims and replace it with a standard drawn from the model jury instructions, asking whether the whistleblowing “was a motivating factor” or “played a part” in the adverse action. The court acknowledged the criticism at length, then declined. Slip op. at 26–28:

We acknowledge that there is debate about the continuing viability of the McDonnell Douglas framework.

Because Hanson’s claim fails under both McDonnell Douglas and her proposed replacement standard, we decline to reach the issue of whether we should abandon the McDonnell Douglas framework in whistleblower cases.

Justice Chutich, joined by Justice Thissen, concurred and would have answered the question:

Because this court has never been asked to analyze whether courts should use the McDonnell Douglas framework for cases brought under the Minnesota Whistleblower Act, Minnesota Statutes section 181.932 (2020), I would not extend this troubled framework to apply to claims brought under that statute. Instead, I would apply the ordinary summary-judgment standard in Rule 56.01 of the Minnesota Rules of Civil Procedure.

Hanson, slip op. at C-1 (Chutich, J., concurring).

Read the majority’s footnote and the concurrence’s first paragraph against each other and the tension is visible. The footnote says the court has “recognized McDonnell Douglas as the appropriate framework to use in whistleblower cases since the MWA was enacted,” slip op. at 17 n.16, citing Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 572 (Minn. 1987), Graham v. Special School District No. 1, 472 N.W.2d 114, 119 n.7 (Minn. 1991), and McGrath, 509 N.W.2d at 366. The concurrence says the court “has never been asked to analyze whether” it should. Both statements can be true — a framework can be used for decades without the question of its use ever being presented — but the practical consequence is that the standard governing every Minnesota whistleblower summary-judgment motion rests on an issue the supreme court has expressly reserved.

The federal-preemption notes the Revisor publishes

Below the text of § 181.932, the Office of the Revisor of Statutes prints three notes. The first:

NOTE: Subdivision 1, paragraph (a) (renumbered clause (1)), was found preempted by the federal Employee Retirement Income Security Act (ERISA) as applied to claims resulting from reporting violations of ERISA in McLean v. Carlson Companies, Inc., 777 F.Supp. 1480 (D. Minn. 1991).

McLean was not retrieved for this page and this page does not state what it holds beyond the words of the Revisor’s note. It is reproduced because a reader working from the statute’s text alone will not see it, and because it identifies a category — a report about an employee benefit plan — where the state claim may not be the operative one.

The Revisor prints two more notes on the same page, both recording holdings that the federal Airline Deregulation Act preempts the Act as applied to air carriers: Botz v. Omni Air International, 286 F.3d 488 (8th Cir. 2002), as to clauses (1) and (3), and Regner v. Northwest Airlines, Inc., 652 N.W.2d 557 (Minn. Ct. App. 2002), as to clause (1). Neither decision was retrieved for this page and this page states nothing about either beyond the words of the Revisor’s notes. The second of the two is a Minnesota Court of Appeals decision and it touches clause (1), which is the clause most of this page is about.

What this page does not do

It describes a method of proof. It does not apply it. Whether a particular communication was a report of a violation of an existing law, whether a particular employer’s stated reason is true, and whether a particular record contains evidence that the report motivated the decision are the questions that decide cases, and none of them can be answered from a description of the framework.

The clause-by-clause treatment of what § 181.932 protects is in the Whistleblower Act guide. Whether the firing was unlawful at all is a separate question. The deadline is on its own page.