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Moore v. City of New Brighton

Court of Appeals of Minnesota

July 29, 2019

Steven Moore, Appellant,
City of New Brighton, Respondent.

          Ramsey County District Court File No. 62-CV-17-4989

          James H. Kaster, Lucas J. Kaster, Nichols Kaster, PLLP, Minneapolis, Minnesota (for appellant)

          Jana O'Leary Sullivan, League of Minnesota Cities, St. Paul, Minnesota (for respondent)

          Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold, Judge.


         Administrative investigatory leaves are not categorically excluded from constituting adverse employment actions under the Minnesota Whistleblower Act, Minnesota Statutes, sections 181.931-.935 (2018).


          ROSS, JUDGE

         A city began two employment investigations into a police sergeant's conduct and placed him on administrative, home-bound leave soon after the sergeant filed a union grievance challenging the city's failure to compensate him for overtime work. The leave lasted nine months-seven months longer than the city took to complete its investigations and issue a five-day suspension for one allegation and exonerate the sergeant as to the other. The sergeant sued the city under the Minnesota Whistleblower Act, alleging that the city's actions-beginning the investigations, placing him on leave, issuing a poor performance evaluation and coaching directive after the leave, and reassigning him to an unfavorable position-were designed to penalize him for filing his grievance. The district court entered summary judgment in the city's favor, holding that most of the city's conduct was not covered by the act and the sergeant identified no evidence showing that the city's reason for investigating him and placing him on leave was a pretext to veil a retaliatory motive. We reverse because evidence showing that the city maintained the administrative, home-bound leave for a period so long and so inconsistent with its purported reason for commencing the leave creates a material fact dispute as to whether the city's actions "penalized" the sergeant under the Minnesota Whistleblower Act and whether the city's reason is pretextual.


         Steven Moore, a 29-year veteran of New Brighton's police department, sued the city alleging retaliation under the Minnesota Whistleblower Act, and the district court granted the city's motion for summary judgment. Except where specified otherwise, the following facts are either not in dispute or are construed in favor of Moore as the nonmoving party.

         Moore served 21 of his 29 years on the police department as a patrol sergeant. That role required him to supervise officers. Certain allegations about his supervisory service precipitated the events leading to this lawsuit.

         In March 2015, the city required all police employees to attend training. Employees attended the training outside their ordinary schedules, but the city did not pay them overtime for attending. Moore filed a grievance asserting that the city's nonpayment of overtime violated its collective-bargaining agreement with the officers' union. Other officers joined Moore's grievance. The police department's deputy director denied Moore's grievance, and Moore administratively appealed that decision. The city eventually agreed to pay all employees overtime for the training.

         In early April 2015, within a month after Moore filed his grievance, the department launched an investigation into his alleged improper conduct, followed the next month by another investigation. In the first investigation, the city alleged that Moore had improperly approved a subordinate officer's unscheduled work hours that same month, shortly after Moore filed his grievance. In the second, Moore's supervisor alleged that Moore had fraudulently called in sick based on the supervisor's seeing Moore at a music concert the same evening after he called in. The city placed Moore on administrative paid leave from work on June 3, 2015, pending the investigations. The city ordered Moore to remain in his house during the leave from 8:00 in the morning until 4:00 every afternoon, Monday through Friday. And during the entire period, the city prohibited him from discussing either investigation with anyone.

         The city took two months to complete both investigations, finding Moore at fault only in one of them. On July 31, 2015, it informed Moore that his approving of his subordinate officer's unscheduled work hours constituted a departmental violation for which Moore had to serve a five-day unpaid suspension. But the city had learned in its investigation into Moore's alleged sick-time fraud that he had done no wrong; Moore's attendance at the concert did not indicate any fraud because the medical issue for which he had requested time off from duty was a physical injury that would prevent him from serving on patrol but not prevent him from attending a concert. The city never informed Moore, however, that it had exonerated him or even that it had completed the investigation. Instead, despite having finished both investigations and having issued a suspension for one allegation and imposed no discipline for the other, the city kept Moore on the home-bound leave away from his job for another seven months.

         After the city finally returned Moore to work after nine months of leave, in March 2016 it ordered him back to work in a different assignment. The city directed him to serve a desk job as an administrative sergeant managing cars and equipment rather than serving as a patrol sergeant managing officers. It also issued Moore a performance evaluation for the previous year. In contrast to all his previous evaluations, Moore's 2015 evaluation asserted that every aspect of Moore's performance was unacceptable, needing improvement, and the city required him to be placed on a "counseling and guidance" remedial plan. On October 12, 2016, six months after he served his suspension, the city reduced the suspension to a written reprimand, repaying him for the pay deduction. Moore performed the duties of administrative sergeant largely without incident for a year and a half, but not without tension. Finally in June 2017, his supervisor issued Moore an oral reprimand for insubordination.

         Soon after that reprimand, Moore brought this suit alleging violations of the Minnesota Whistleblower Act. He asserted specifically that the city's post-grievance conduct-commencing the investigations, placing him on leave for nine months, removing him from patrol and reassigning him to an administrative position, issuing a negative performance evaluation, and placing him on a counseling and coaching plan-constituted retaliation against him as a penalty for his having filed the union grievance.

         The city moved for summary judgment, and the district court granted the motion. It held that Moore failed to present a prima facie case of retaliation as to some of the city's alleged conduct under the Minnesota Whistleblower Act because those acts did not constitute adverse employment activity, and as to the conduct that the district court held to qualify as adverse actions, it concluded that Moore failed to show that the city's proffered, nonretaliatory justification was a pretext for retaliation.

         Moore appeals the district court's summary-judgment decision, and the city cross-appeals, questioning the district court's and this court's subject-matter jurisdiction over the case and otherwise defending the ...

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