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Failure to rebut all reasons for firing doomed employee’s retaliatory discharge claim

By Marjorie Johnson, J.D.

Because the employee failed to show her employer’s four proffered reasons for firing her were sufficiently “intertwined or fishy that rebutting only some of the reasons discredits them all,” summary judgment was warranted on her Title VII claim.

A female employee suspended after an altercation with her male manager and subsequently terminated after she complained about the way her county employer handled “gender-based threats,” ostensibly due to four instances of unrelated misconduct, failed to convince the Eighth Circuit to reinstate her Title VII retaliation claims. She could not demonstrate that her suspension was retaliatory since she did not engage in protected conduct prior to the adverse action, and her discharge-based reprisal claim failed since she only attempted to refute two of the four documented reasons for her dismissal and did not make “such a strong showing of pretext” as to those two that it destroyed her employer’s credibility on its remaining justifications (Kempf v. Hennepin County, February 16, 2021, Erickson, R.).

Differing stories. The employee’s dispute with her manager occurred on March 9, 2016, when the manager allegedly entered her office and asked about a project in a “loud and hostile voice.” After she responded that she needed to finish an email, he yelled at her to stop emailing and walked towards her. When she turned around (she had been facing away from the door), she became startled and screamed because he was allegedly up against the back of her chair with his “crotch” close to her face. She repeatedly told him to leave, and then shut her door. The manager told a different story, claiming that though he tried to diffuse the situation, “a rage” came over the employee and she ordered him out of her office and slammed the door in his face.

Unpaid suspension. Both reported the incident to their department’s deputy director, who launched an investigation. On March 17, the employer determined that the employee committed “a continuing pattern of misconduct” and placed her on a five-day unpaid suspension. Her suspension notice cited her disciplinary history, performance deficiencies, and a finding that she violated county rules when she shouted at her manager and admittedly poked him.

Informal complaint. On April 5, after having returned from her suspension, the employee met with her department’s director to discuss her concerns about management. On April 11, she filed an informal complaint challenging her suspension and the investigation, specifically complaining about the way in which the county handled “gender-based threats” and noted “many women” had left their jobs because of similar events. After review, the employer upheld the suspension.

Termination. Throughout April, the employer documented several alleged instances of misconduct by the employee and placed her on paid administrative leave on April 26. On May 3, she received a dismissal notice for “failure to meet job expectations and misconduct.” She subsequently brought this action alleging a myriad of claims, which were all ultimately dismissed. On appeal, she challenged only her claims of retaliation under Title VII and the Minnessota Whistleblowers Act (MWA).

No protected activity prior to suspension. The employee couldn’t revive her Title VII suspension-based reprisal claim since her pre-suspension actions were too vague to support a finding that she engaged in protected activity. She did not communicate or report any sexual harassment before she was suspended and admittedly never mentioned her allegations regarding the manager’s “crotch” being near her face until after filing this lawsuit. Likewise, her first report of a “gender-based threat” was in her informal complaint filed after her suspension.

No retaliatory discharge. Her discharge-based retaliation claim was also properly tossed since she failed to demonstrate that her employer’s proffered reasons were pretextual. To support its decision, the county pointed to four documented instances of misconduct: (1) on April 5, she used her badge to enter the office suite of a director without express permission; (2) on April 11, she approached that director and loudly and aggressively complained about her job; (3) on April 15, she missed a deadline; and (4) on April 20, she was “abrasive, disrespectful, and unprofessional” at a client meeting.

Failed to rebut all justifications. The district court concluded that the employee’s failure to address two of the alleged acts of misconduct justified dismissing her claim. On appeal, she argued that this was error since her ability to demonstrate pretext on some of the reasons raised serious doubt as to the rest. To address this issue, the Eighth Circuit was persuaded by the approach taken by the Seventh Circuit, which held that if an employer offers multiple reasons for an adverse action that are “so intertwined, or the pretextual character of one of them so fishy and suspicious” that it raises questions about the other reasons, an employee can defeat summary judgment without showing pretext as to each reason individually.

Not “substantially intertwined” or “fishy” The Eighth Circuit rejected the employee’s assertion that the county’s reasons were “substantially intertwined” because the events all took place in a three-week window, finding that temporal proximity was not enough. The issue was whether the employer’s reasons were “so factually intertwined or dependent on one another that showing pretext on one raises a genuine question as to whether the other reasons are valid.” That was not the case here since an aggressive conversation and being unprofessional at a client meeting were not “substantially intertwined” with entering a secured suite or missing a deadline. While temporal proximity may be relevant, the employer offered four apparently “insular” reasons and it wasn’t enough for the employee to cast doubt on only half of them.

The appeals court also rejected the employee’s assertion that the employer’s “fantastical portrayal” about her entering the director’s suite was so “fishy” that it necessarily cast doubt on its other reasons. Even if the county exaggerated the gravity of her entry into the suite, and even if her explanation that she had an appointment with the director was true, she failed to make a sufficiently strong showing of pretext that it destroyed the county’s credibility on its other justifications.

State-law claims. However, the district court erred in exercising supplemental jurisdiction over her MWA claims and dismissing them on the same grounds as her Title VII claims. Given relatively novel questions of state law, including whether her claims were barred by an exclusivity provision in the Minnesota Human Rights Act, the better course was to dismiss the MWA claims without prejudice.