United States District Court, D. Minnesota
W. Massie, BAILLON THOME JOZWIAK & WANTA LLP, for
Gregory Simpson and Jacalyn N. Chinander, MEAGHER & GEER,
PLLP, for defendant.
Patrick J. Schiltz United States District Judge
matter is before the Court on the motion of defendant Hearing
Lab Technology, LLC (“HLT”), to dismiss the
complaint of plaintiff Blane Anderson for failure to state a
claim under Fed.R.Civ.P. 12(b)(6). A hearing was held on
March 30, 2018. Based on all of the files, records, and
proceedings herein, and for the reasons stated on the record
at the hearing, the Court grants HLT's motion to dismiss.
briefly summarize: HLT hired Anderson as an audiologist to
provide hearing tests and hearing-aid demonstrations to
customers visiting its booth at a Sam's Club in Eagan,
Minnesota. Compl., ECF No. 2-1, ¶¶ 13-14, 16-17.
Anderson alleges that HLT's protocol required him to
demonstrate hearing aids on every patient who voluntarily
submitted to a hearing test, regardless of the patient's
degree of hearing loss. Id. ¶¶ 21- 23.
This protocol, he alleges, “falsely gave [patients] the
impression [that] their hearing was impaired and [that they]
needed a hearing device.” Id. ¶ 20.
Anderson further alleges that he was fired after reporting to
his superiors that the protocol was fraudulent and
“would create the likelihood of confusion and
misunderstanding regarding a patient's need for the
hearing devices.” Id. ¶¶ 5-7.
Minnesota Whistleblower Act (“MWA”) prohibits an
employer from discharging an employee because he, “in
good faith, reports a violation[ or] suspected violation . .
. of any federal or state law or common law[.]” Minn.
Stat. § 181.932, subd. 1(1). Anderson claims that HLT
violated the MWA by firing him for reporting actions that
amounted to common-law fraud and that violated the Minnesota
Deceptive Trade Practices Act, Minn. Stat. § 325D.44,
subd. 1, and the Deceptive Acts Perpetrated Against Senior
Citizens or Disabled Persons Act, Minn. Stat. § 325F.71,
subd. 2. Compl. ¶ 42. To succeed on his MWA claim,
Anderson “needs to have reported facts that, if true,
constituted an actual violation of the law.”
Schwab v. Altaquip LLC, No. 14-CV-1731 (PJS/JSM),
2015 WL 5092036, at *3 (D. Minn. Aug. 28, 2015) (emphasis
complaint fails to plead such facts. At bottom, Anderson
objected to HLT's protocol because, in his view, it
implied to customers that their hearing loss was
worse-and their need for a hearing aid was greater-than was
in fact the case. But HLT's protocol allowed-in fact,
required-Anderson to use his professional judgment
to explain the test results. See ECF No. 16, Ex. A
(Step 12 of the protocol required Anderson to “educate
[the patient] on the [hearing test] results”).
Moreover, nothing in HLT's protocol restricted Anderson
from making a recommendation about whether a hearing aid was
necessary and explaining the basis for his recommendation.
Because HLT's protocol left Anderson free to ensure that
his patients were not misled in any way, Anderson has failed
to plead a plausible claim that HLT's protocol was
fraudulent or otherwise violated the law. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
brief and then at oral argument, Anderson identified other
ways in which HLT's protocol allegedly violated the law.
See, e.g., ECF No. 15 at 3 (alleging for the first
time that Anderson reported that the hearing test itself is
“misleading because it requires patients to determine
the ‘loudness' of sounds play at consecutively
higher pitches” when instead “[s]ounds should be
played at varying decibels to evaluate hearing”);
id. at 5 (suggesting that HLT violated another
provision of the MWA, Minn. Stat. 181.932, subd. 1(3), which
prohibits an employer from discharging an employee who
“refuses an employer's order to perform an action
that the employee has an objective basis in fact to believe
violates any state or federal law”); id. at 12
(alleging for the first time that Anderson's reports
implicated violations of the Minnesota Consumer Fraud Act,
Minn. Stat. § 325F.69). None of these allegations were
pleaded (or pleaded clearly) in Anderson's complaint,
however, and all of these allegations seem to suffer from the
same infirmities as the allegations that were pleaded.
Nevertheless, because it is conceivable that Anderson could
plead a viable MWA claim, the Court will dismiss his
complaint without prejudice. See Rickmyer v. Browne,
995 F.Supp.2d 989, 1018 (D. Minn. 2014) (“[D]ecisions
from the Eighth Circuit and this Court generally favor
dismissals under Rule 12(b)(6) without prejudice, at least
where there is no evidence of persistent pleading
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT defendant's
motion to dismiss [ECF No. 10] is GRANTED and ...