Timothy W. Bubenik Associate

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EIGHTH CIRCUIT REQUIRES EMPLOYEES TO REASONABLY BELIEVE UNDERLYING CONDUCT IS ILLEGAL TO MAKE A CASE FOR RETALIATION

Colleen Auer’s tenure as city attorney for Minot, North Dakota, may have lasted only about a month, but it spurred not one, but three lawsuits and will definitely leave its mark on the Eighth Circuit.  Within three weeks of beginning her position, Ms. Auer sent a “Notice and Demand” letter to top city executives claiming she was subjected to “unlawful harassment based on sex” by the interim city manager.  As evidence that negative critiques of her performance were based on her gender, Ms. Auer relied solely on comments by the interim city manager comparing her to the former city attorney who happened to be male.

Following their receipt of her letter, the city thoroughly investigated Ms. Auer’s allegations and ultimately concluded that no illegal activity had occurred.  After the investigation was closed, Ms. Auer’s employment was terminated.  She proceeded to initiate three separate actions against the city and other involved parties, including Auer v. City of Minot, No. 17-1535, alleging that her termination was unlawful retaliation for opposing an employment practice.

Upon review, the district court granted summary judgment to the City of Minot, holding that because her underlying harassment allegations were meritless, so were any retaliation claims connected to those allegations.  Ms. Auer appealed her case to the Eighth Circuit Court of Appeals, which affirmed the lower court’s decision.

The Court explained that although both federal and state law prohibit retaliation against employees who oppose unlawful employment discrimination, such protections only apply if the “employee reasonably believes the conduct was illegal” (emphasis in the original).  The Court found that Ms. Auer’s original complaint of gender discrimination was unreasonable because her assumption that her gender was the reason she received negative comments about her performance was based solely on the fact that she was compared to a former employee, who was male.  Because forming such a presumption based on so little evidence is not reasonable, Ms. Auer’s complaints were not protected activity.

What does this all mean for employers?  In the Eighth Circuit, which includes Missouri, Arkansas, Iowa, Nebraska, South Dakota, North Dakota, and Minnesota, in order for illegal retaliation to occur, the employee must have a reasonable belief that his or her complaints of discrimination are actually based on illegal activity.  This signals that there may be some leeway in disciplining employees who file frivolous and/or defamatory claims of discrimination when they are aware that their claims are not legitimate.  However, employers should continue to use extreme caution after employees have engaged in potentially protected activity to ensure that unlawful retaliation does not occur.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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