This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-1017
Bill Creger, Appellant,
vs.
City of Cambridge, Respondent.
Filed May 6, 2024 Affirmed Smith, John, Judge *
Isanti County District Court File No. 30-CV-22-428
Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., Bloomington, Minnesota (for appellant)
Jessica E. Schwie, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for respondent)
Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; and
Smith, John, Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the district court’s grant of summary judgment because, based on the
undisputed evidence, there was no causal connection between appellant’s termination from
employment and his allegedly protected conduct.
FACTS
The following facts are based on the record, viewed in the light most favorable to
Creger. In January 2021, appellant Bill Creger began employment as a maintenance
worker for respondent City of Cambridge. Creger was subject to a 12-month “learning and
evaluation period,” during which time he could be discharged at the “sole discretion” of
the city.
In April 2021, Creger and another city employee were sitting in a city-owned
vehicle. Creger alleges that the other city employee lit a cigarette in the vehicle and
continued to smoke after Creger asked them to stop. Creger’s supervisor received a
complaint about the smoking incident from a third employee; the supervisor then
approached Creger to discuss the issue.
In July 2021, the city completed a six-month evaluation of Creger. Creger’s
performance was determined to be unsatisfactory in three of seven categories:
dependability, initiative, and flexibility. The deficiencies had previously been discussed
between Creger and his supervisor and his supervisor, following the existing city policy,
did not share the evaluation report itself with Creger.
2 On October 1, 2021, Creger injured his foot at work. Creger properly filed a first
report of injury (FRI) the next workday. Creger received a letter from the League of
Minnesota Cities Insurance Trust acknowledging its receipt of the FRI. Creger did not
request, and did not receive, workers’ compensation benefits for the injury.
Sometime in September or October, supervisors at the city discussed potentially
terminating Creger’s employment. This resulted in Creger’s supervisor submitting a
written recommendation to discharge Creger dated October 13, 2021. The letter stated that
Creger’s “issues have started to erode the moral[e] of the other Public Works Staff and it
is for this reason I am recommending termination.”
On October 26, 2021, Creger was placed on administrative leave and notified that
the city council would be voting on the recommendation that he be discharged from
employment. The termination of Creger’s employment was approved on November 1. On
November 4, the city sent Creger a letter notifying him of his termination. In the letter, the
city stated that Creger had been terminated because of his continued failure to meet
performance expectations in the three areas of deficiency and because of his inability to
get along with his coworkers.
In July 2022, Creger filed suit against the city claiming retaliatory discharge in
violation of the Minnesota Workers’ Compensation Act (WCA), see Minn. Stat. § 176.82,
subds. 1-2 (2022), along with reprisal and retaliation in violation of the Minnesota
Whistleblower Act, Minn. Stat. § 181.932 (2022). The city filed a motion for summary
judgment on both counts.
3 The district court granted the motion for summary judgment against Creger. The
district court reasoned that Creger did not present evidence to show pretext for his
discharge under the WCA or that he engaged in protected conduct under the whistleblower
act.
DECISION
We review a district court’s grant of summary judgment de novo. Hanson v. Dep’t
of Nat. Res., 972 N.W.2d 362, 371 (Minn. 2022) (citing Henson v. Uptown Drink, LLC,
922 N.W.2d 185, 190 (Minn. 2019)). Creger asserts that the district court erred when it
determined as a matter of law that (1) he could not meet his burden to show pretext under
the WCA, and (2) he could not establish a prima facie case under the whistleblower act
because his conduct did not constitute a protected report.
I.
Creger argues that there is a causal connection for his WCA claim based on timing
alone and that the district court erred by finding that he could not meet his burden to show
pretext under the WCA. See Minn. Stat. § 176.82, subd. 1.
Without direct evidence of retaliation, retaliatory discharge claims under the WCA
are analyzed under the McDonnell Douglas framework. Randall v. No. Milk Prods., Inc.,
519 N.W.2d 456, 459 (Minn. App. 1994) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973)); see also Hubbard v. United Press Int’l, Inc. 330 N.W.2d 428,
444 (Minn. 1983) (holding that McDonnell Douglas framework is applicable to retaliation
claims in Minnesota). At the first step, the plaintiff-employee has the burden of introducing
evidence that establishes a prima facie case. Randall, 519 N.W.2d at 459. To establish a
4 prima facie case involving alleged retaliatory discharge, “an employee must establish:
(1) statutorily-protected conduct by the employee; (2) adverse employment action by the
employer; and (3) a causal connection between the two.” Hubbard, 330 N.W.2d at 444.
At the second step, the “burden then shifts to the employer to articulate legitimate
reasons for the discharge.” Randall, 519 N.W.2d at 459 (quotation omitted). “Once the
employer articulates a legitimate reason for the discharge, the employee must show by a
preponderance of the evidence that the discharge was for an impermissible reason.” Id. In
other words, at the third step the employee must show “that the employer’s stated reason
for its action was more likely than not pretextual.” Schmitz v. U.S. Steel Corp., 831 N.W.2d
656, 671 (Minn. App. 2013), aff’d, 852 N.W.2d 669 (Minn. 2014). To prove pretext, “the
employee must do more than show that the employment action was ill-advised or unwise,
but rather must show that the employer has offered a phony excuse.” Meads v. Best Oil
Co., 725 N.W.2d 538, 542-43 (Minn. App. 2006) (quotation omitted) (determining issue
of pretext in hiring decision for claim under the Minnesota Human Rights Act), rev. denied
(Minn. Feb. 20, 2007).
Creger argues that there is a causal connection because the timing was
“instantaneous.” Creger also argues that the city’s legitimate reason is pretextual because
the city treated other employees differently and because the city’s stated reason is
unfounded.
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-1017
Bill Creger, Appellant,
vs.
City of Cambridge, Respondent.
Filed May 6, 2024 Affirmed Smith, John, Judge *
Isanti County District Court File No. 30-CV-22-428
Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., Bloomington, Minnesota (for appellant)
Jessica E. Schwie, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for respondent)
Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; and
Smith, John, Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the district court’s grant of summary judgment because, based on the
undisputed evidence, there was no causal connection between appellant’s termination from
employment and his allegedly protected conduct.
FACTS
The following facts are based on the record, viewed in the light most favorable to
Creger. In January 2021, appellant Bill Creger began employment as a maintenance
worker for respondent City of Cambridge. Creger was subject to a 12-month “learning and
evaluation period,” during which time he could be discharged at the “sole discretion” of
the city.
In April 2021, Creger and another city employee were sitting in a city-owned
vehicle. Creger alleges that the other city employee lit a cigarette in the vehicle and
continued to smoke after Creger asked them to stop. Creger’s supervisor received a
complaint about the smoking incident from a third employee; the supervisor then
approached Creger to discuss the issue.
In July 2021, the city completed a six-month evaluation of Creger. Creger’s
performance was determined to be unsatisfactory in three of seven categories:
dependability, initiative, and flexibility. The deficiencies had previously been discussed
between Creger and his supervisor and his supervisor, following the existing city policy,
did not share the evaluation report itself with Creger.
2 On October 1, 2021, Creger injured his foot at work. Creger properly filed a first
report of injury (FRI) the next workday. Creger received a letter from the League of
Minnesota Cities Insurance Trust acknowledging its receipt of the FRI. Creger did not
request, and did not receive, workers’ compensation benefits for the injury.
Sometime in September or October, supervisors at the city discussed potentially
terminating Creger’s employment. This resulted in Creger’s supervisor submitting a
written recommendation to discharge Creger dated October 13, 2021. The letter stated that
Creger’s “issues have started to erode the moral[e] of the other Public Works Staff and it
is for this reason I am recommending termination.”
On October 26, 2021, Creger was placed on administrative leave and notified that
the city council would be voting on the recommendation that he be discharged from
employment. The termination of Creger’s employment was approved on November 1. On
November 4, the city sent Creger a letter notifying him of his termination. In the letter, the
city stated that Creger had been terminated because of his continued failure to meet
performance expectations in the three areas of deficiency and because of his inability to
get along with his coworkers.
In July 2022, Creger filed suit against the city claiming retaliatory discharge in
violation of the Minnesota Workers’ Compensation Act (WCA), see Minn. Stat. § 176.82,
subds. 1-2 (2022), along with reprisal and retaliation in violation of the Minnesota
Whistleblower Act, Minn. Stat. § 181.932 (2022). The city filed a motion for summary
judgment on both counts.
3 The district court granted the motion for summary judgment against Creger. The
district court reasoned that Creger did not present evidence to show pretext for his
discharge under the WCA or that he engaged in protected conduct under the whistleblower
act.
DECISION
We review a district court’s grant of summary judgment de novo. Hanson v. Dep’t
of Nat. Res., 972 N.W.2d 362, 371 (Minn. 2022) (citing Henson v. Uptown Drink, LLC,
922 N.W.2d 185, 190 (Minn. 2019)). Creger asserts that the district court erred when it
determined as a matter of law that (1) he could not meet his burden to show pretext under
the WCA, and (2) he could not establish a prima facie case under the whistleblower act
because his conduct did not constitute a protected report.
I.
Creger argues that there is a causal connection for his WCA claim based on timing
alone and that the district court erred by finding that he could not meet his burden to show
pretext under the WCA. See Minn. Stat. § 176.82, subd. 1.
Without direct evidence of retaliation, retaliatory discharge claims under the WCA
are analyzed under the McDonnell Douglas framework. Randall v. No. Milk Prods., Inc.,
519 N.W.2d 456, 459 (Minn. App. 1994) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973)); see also Hubbard v. United Press Int’l, Inc. 330 N.W.2d 428,
444 (Minn. 1983) (holding that McDonnell Douglas framework is applicable to retaliation
claims in Minnesota). At the first step, the plaintiff-employee has the burden of introducing
evidence that establishes a prima facie case. Randall, 519 N.W.2d at 459. To establish a
4 prima facie case involving alleged retaliatory discharge, “an employee must establish:
(1) statutorily-protected conduct by the employee; (2) adverse employment action by the
employer; and (3) a causal connection between the two.” Hubbard, 330 N.W.2d at 444.
At the second step, the “burden then shifts to the employer to articulate legitimate
reasons for the discharge.” Randall, 519 N.W.2d at 459 (quotation omitted). “Once the
employer articulates a legitimate reason for the discharge, the employee must show by a
preponderance of the evidence that the discharge was for an impermissible reason.” Id. In
other words, at the third step the employee must show “that the employer’s stated reason
for its action was more likely than not pretextual.” Schmitz v. U.S. Steel Corp., 831 N.W.2d
656, 671 (Minn. App. 2013), aff’d, 852 N.W.2d 669 (Minn. 2014). To prove pretext, “the
employee must do more than show that the employment action was ill-advised or unwise,
but rather must show that the employer has offered a phony excuse.” Meads v. Best Oil
Co., 725 N.W.2d 538, 542-43 (Minn. App. 2006) (quotation omitted) (determining issue
of pretext in hiring decision for claim under the Minnesota Human Rights Act), rev. denied
(Minn. Feb. 20, 2007).
Creger argues that there is a causal connection because the timing was
“instantaneous.” Creger also argues that the city’s legitimate reason is pretextual because
the city treated other employees differently and because the city’s stated reason is
unfounded.
In this case, we are not persuaded that there is a genuine issue of material fact
regarding the existence of a sufficient causal connection between Creger filing the FRI and
his termination from employment. We note that some cases have stated in other contexts
5 that close temporal proximity is sufficient to show causal connection. See, e.g., Hubbard,
330 N.W.2d at 444-45 (determining a causal connection when discharged from
employment two days after service of complaint in Minnesota Human Rights Act lawsuit);
Hanson, 972 N.W.2d at 374 & n.18 (determining causal connection in whistleblower case
based on close temporal proximity).
Creger successfully filed his FRI on October 4. Creger received notice that the
report had been received soon after. The written letter recommending Creger’s termination
was dated October 13. The city sent Creger notice on November 4 of his termination by
the city council due to his unimproved performance deficiencies dating back to July. In
addition, the record reflects that Creger’s supervisor helped Creger complete the FRI
correctly. Despite temporal proximity, there is not sufficient evidence to create a genuine
issue of material fact as to whether the was a sufficient causal connection between the filing
of the FRI and Creger’s termination. Therefore, Creger has not established a prima facie
case and the district court did not err by granting summary judgment against Creger. Even
if we determined that there is a causal connection, the district court did not err by granting
summary judgment. Creger has not sufficiently alleged facts to create a genuine issue of
material fact that the city’s legitimate reason for his discharge was a pretext.
Pretext may be proven through differential treatment of similarly situated
employees. See Hoover v. Northwest Private Mortg. Banking, 632 N.W.2d 534, 546-49
(Minn. 2001); see also Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012).
“At the pretext stage, the test for determining whether employees are similarly situated is
a rigorous one” and Creger must show that he and the other employees were “similarly
6 situated in all relevant respects” including that the misconduct “must be of comparable
seriousness.” Bone, 686 F.3d at 956 (quotation omitted). All but one of the employees
that Creger urges this court to compare him against were not in a probationary period of
employment. Further, the other probationary employee did not have as many documented
instances of mistakes on the job as Creger. These employees are not “similarly situated in
all relevant respects” to Creger, and do not support that the city’s stated reason is a pretext.
Id. (quotation omitted).
Further, there is no genuine issue of material fact as to whether the city’s reason for
discharge is unfounded. Creger does not dispute the occurrence of the events listed in his
six-month evaluation. Creger also does not refute that the cumulative effect of mistakes
can justify the discharge of an employee.
Finally, temporal proximity alone does not undermine the justification given by the
city for terminating Creger’s employment. See Hubbard, 330 N.W.2d at 445-46.
In sum, the district court did not err by granting summary judgment against Creger
on his claim under the WCA. Creger did not submit evidence to create a genuine issue of
material fact regarding existence of a sufficient causal connection between his filing of the
FRI and his termination from employment. Additionally, Creger has not submitted
evidence to create a genuine issue of material fact that the city’s legitimate reason for his
discharge is pretextual.
7 II.
Creger next argues that the district court erred by finding that he did not establish a
prima facie case because he did not submit sufficient evidence to establish that he engaged
in statutorily protected conduct under the whistleblower act. See Minn. Stat. § 181.932.
Claims brought under the Minnesota Whistleblower Act are also analyzed under the
McDonnell Douglas framework if there is no direct evidence of retaliation. Hanson, 972
N.W.2d at 374. In a whistleblower retaliation claim, the employee first needs to present a
three-element prima facie case: “(1) statutorily-protected conduct by the employee;
(2) adverse employment action by the employer; and (3) a causal connection between the
two.” Moore v. City of New Brighton, 932 N.W.2d 317, 323 (Minn. App. 2019) (quoting
Hubbard, 330 N.W.2d at 444), rev. denied (Minn. Oct. 15, 2019). For a whistleblower
claim “we have never mandated anything beyond close temporal proximity to establish a
causal connection for an employee’s prima facie case.” Hanson, 972 N.W.2d at 374 n.18.
Assuming without deciding that Creger’s actions around the smoking incident in
April 2021 constitute protected conduct, Creger still has not sufficiently alleged facts to
create a genuine issue of material fact to establish a prima facie case. Creger did not submit
sufficient evidence to create a genuine issue of material fact regarding existence of a causal
connection between the alleged report of the smoking incident and his termination from
employment. Creger started working for the city in January 2021 with a 12-month
probationary period. The smoking incident occurred in April 2021. Creger was placed on
administrative leave in late October and then terminated the next week. Six months is too
large of a time gap during a 12-month probationary period for there to be “close temporal
8 proximity” between Creger’s alleged report of smoking in a city vehicle and the
termination of his employment. Therefore, the district court did not err by granting
summary judgment in favor of the respondent.
Affirmed.