As we’ve discussed before, whistleblower acts exist to protect employees who report suspected illegal behavior from retaliation by their employers – we want crimes being committed by organizations to be reported. But what happens when the crime being reported isn’t being committed by the company for whom the employee works? What happens when the employee’s conduct while reporting the crime is so inappropriate that it warrants termination? One of those questions was answered recently in the Minnesota Supreme Court’s decision in Hanson v. State of Minnesota, Department of Natural Resources.
The employee in this situation, Hanson, was terminated from her position as a regional director with the Department of Natural Resources (DNR), after an incident at a hotel-casino, where Hanson was staying for a conference in her capacity as regional director. During this incident, Hanson allegedly heard a baby crying in the hotel room next to hers for a number of hours, and fearing for the child’s safety, alerted hotel security. After an interaction with two men who were knocking on the door of the adjacent room, who she believed to be pimps, Hanson spoke to hotel management who called 911. A Bureau of Indian Affairs police officer was dispatched to the hotel. When Hanson returned to her room, she noted two women entering the room next to her, and spoke to them briefly.
Hotel staff then checked on the room, and found the child to be safe in the room. However, Hanson then called 911, identified herself as a state official, and asked for a safe escort from the hotel, as she had discovered a prostitution ring. Instead of waiting for the police officer to arrive, she requested that a St. Louis County deputy escort her out of the hotel, and mentioned the St. Louis County Administrator by name in order to have a deputy sent there. Eventually, police arrived, and following additional erratic conduct, Hanson was asked to vacate her room and leave the premises. She refused to leave the premises until both a DNR conservation officer and a St. Louis County sergeant arrived on scene to escort her out of the hotel. Unsurprisingly, Hanson’s supervisor was contacted about her conduct the following day.
After an investigation of Hanson’s conduct was completed, Hanson was terminated without any explanation for the decision in her termination letter. During a deposition, her supervisors stated they were concerned with the way Hanson handled herself while reporting the issues.
Hanson sued the DNR under the Minnesota Whistleblower Act, which bars employers from discharging employees because the employee, “in good faith, reports a violation, suspected violation, or planned violation of any federal or state law…to any governmental body or law enforcement official.” She based this on her reporting of “suspected child neglect and prostitution.”
At district court, the DNR won on summary judgment, stating that Hanson had not established a prima facie case, because she could not prove a causal connection between her reporting and her termination. Eventually, the case was brought to the Supreme Court.
In Minnesota, except in cases where there is direct evidence of retaliation, whistleblower cases are established in the same manner as discrimination case:
- The employee must show that the employer has actual or imputed knowledge of the protected activity, and an adverse employment action follows closely in time.
- The employer has the burden of production to show that the adverse action was taken for “some legitimate, nondiscriminatory reason.”
- The burden shifts back to the employee to demonstrate that the employer’s explanation was pretextual.
Employees can also claim that the protected activity played a part in the employer’s decision to terminate or discipline an employee, but the plaintiff did not follow that theory in this case.
In analyzing the case, the Court found that Hanson had established a prima facie case, in that her reporting of the alleged “child neglect” and “prostitution ring” to the police was a good faith report of criminal conduct. However, the Court made special mention of the fact that the DNR did not argue that the reporting was not protected conduct. Therefore, the question of whether an employee reporting any criminal behavior qualifies as protected activity was not answered by the Court.
Ultimately, the Court found that Hanson did not produce any evidence that her report of the alleged criminal activity was the reason for her termination, rather than her conduct following her report of the alleged criminal activity. As such, the lower courts’ decisions were upheld. Of note, at the end of its decision, the Court discussed the debate over the “continuing viability of the McDonnell Douglas framework” used in discrimination and whistleblower claims. While it did not apply a different framework, this is definitely something to keep your eye on in future discrimination cases in front of the Court.
One must always be mindful of the possibility of an employee’s activities garnering whistleblower protection. The employer, in this case, used an objective investigator to determine the activities of the employee, and made its decision based on the employee’s conduct, rather than the employee’s protected activity. If you, or your organization, need assistance in investigating, or defending yourselves in whistleblower claims, contact Wiley Reber Law, for legal advice that works.