Wrongful Termination Retaliation: MN Employer Defense

What makes firing an employee who complained retaliation in Minnesota?

A firing is reprisal under the MHRA when the employer fires the employee because of protected conduct. The employee must first prove “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two,” the test the Minnesota Supreme Court stated in Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96 (Minn. 1999), quoting its earlier decision in Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983).

The statute targets intent. Minn. Stat. § 363A.15 makes it an unfair discriminatory practice for an employer “to intentionally engage in any reprisal against any person” because of protected conduct. Minnesota courts borrow the proof framework from federal law; Fletcher states that “In construing the MHRA, we apply law developed in federal cases arising under Title VII of the 1964 Civil Rights Act.”

After the employee makes that first showing, the employer states its reason. Fletcher describes the next step: “Upon articulation of a legitimate and non-discriminatory reason for the adverse employment action, the burden shifts back to the employee to show that the proffered reasons were not the true reason for the action, but were instead a pretext for discrimination.”

When the complaint and the firing are not in dispute, the case is decided on causation and pretext: whether the complaint caused the decision, and whether the reason you gave is the real one. Both turn on records you make before any claim arrives.

Which employee complaints does Minnesota law protect?

Minnesota protects complaints opposing discrimination the MHRA forbids, good-faith reports of a suspected violation of any law, and complaints under several statutes about wages, sick time, pay discussions, and safety. A report under the Whistleblower Act can be spoken, and it can go to the employer itself rather than to a government agency.

• Discrimination complaints. Minn. Stat. § 363A.15 protects a person who “opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”
• Reports of illegal conduct. The Minnesota Whistleblower Act covers reports of suspected violations of any law. Minn. Stat. § 181.932, subd. 1, protects an employee who, “in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.” The Act also protects an employee asked by a public body to take part in an investigation, and an employee who refuses an order that the employee “has an objective basis in fact to believe” is unlawful, after telling the employer why.
• Wage complaints. Minn. Stat. § 181.03, subd. 6, bars retaliation for asserting wage rights, “including, but not limited to, filing a complaint with the department or telling the employer of the employee’s intention to file a complaint.”
• Sick and safe time. Minn. Stat. § 181.9447, subd. 6, protects a person who “made a complaint or filed an action to enforce a right to earned sick and safe time under this section,” and adds: “A person need not explicitly refer to sections 181.9445 to 181.9448 or the rights enumerated herein to be protected from retaliation.” Enforcement provisions are in Minn. Stat. § 177.50.
• Pay discussions. Minn. Stat. § 181.172 bars adverse action “for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily,” and bars retaliation for asserting those rights.
• Safety. Minn. Stat. § 182.669, subd. 1, gives a remedy to an employee discharged or discriminated against “because the employee has exercised any right authorized under the provisions of sections 182.65 to 182.674,” Minnesota’s occupational safety and health law, and states: “An employee may bring a private action in the district court for relief under this section.”

Union activity has its own federal and state rules, covered in retaliation for union activity.

The Whistleblower Act’s “good faith” is narrow. Minn. Stat. § 181.931, subd. 4, defines it as conduct that does not violate § 181.932, subd. 3. That subdivision excludes statements made “knowing that they are false or that they are in reckless disregard of the truth.” In Friedlander v. Edwards Lifesciences, LLC, 900 N.W.2d 162 (Minn. 2017), the Minnesota Supreme Court held that this definition “eliminated the judicially created requirement that a putative whistleblower act with the purpose of exposing an illegality.” Courts now look “only to the content of the report,” so an employee’s motive for reporting does not remove the protection. The report must still describe conduct that would break an existing law: in Kratzer v. Welsh Companies, LLC, 771 N.W.2d 14 (Minn. 2009), the court stated that “the law alleged to have been violated must exist,” and that a report whose facts prove wrong is protected “so long as the facts, if they had been true, would be a violation of the law.”

An MHRA complaint has a floor too. In Bahr v. Capella University, 788 N.W.2d 76 (Minn. 2010), the court did not decide whether the practice opposed must actually be unlawful. It held that even under the more lenient reasonable-belief standard, “If a practice is not unlawful under the plain terms of the MHRA, a party’s belief that the practice is unlawful cannot be reasonable,” and it reinstated the dismissal of a manager’s claim.

Both Minnesota statutes reach small employers. Minn. Stat. § 363A.03, subd. 16, defines an employer as “a person who has one or more employees.” The Whistleblower Act covers “any person having one or more employees in Minnesota,” and its subd. 2 protects a person “who performs services for hire in Minnesota for an employer,” not an independent contractor.

Federal law adds its own claims. 42 U.S.C. § 2000e-3(a) protects an employee “because he has opposed any practice made an unlawful employment practice by this subchapter,” but only against an employer with “fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” under 42 U.S.C. § 2000e(b). The federal wage law, 29 U.S.C. § 215(a)(3), bars discharge “because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” The federal age law, 29 U.S.C. § 623(d), bars discrimination against an employee who “has opposed any practice made unlawful by this section,” and the federal disability law, 42 U.S.C. § 12203(a), against an individual who “has opposed any act or practice made unlawful by this chapter,” and both protect a person who made a charge.

What counts as retaliation besides firing?

Retaliation includes far more than a firing. Under Minnesota law, demotion, a transfer to a lesser job, a departure from your usual practices, and telling another employer about the complaint can each be reprisal. The Whistleblower Act also reaches conduct after employment ends.

Minn. Stat. § 363A.15 states that “A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment.” It lists acts that are reprisal when done because of protected conduct: “refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1) or (2).”

The Whistleblower Act bars an employer from acting to “discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee.” Minn. Stat. § 181.931, subd. 5, defines “penalize” broadly: “conduct that might dissuade a reasonable employee from making or supporting a report, including post-termination conduct by an employer or conduct by an employer for the benefit of a third party.”

The federal standard for Title VII is similar, and the Supreme Court set it in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). An action counts if it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court also held that “the antiretaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” The Court set a limit as well: “An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” It upheld a jury finding that a 37-day unpaid suspension was materially adverse even though the employer later reinstated the employee with back pay.

For a manager, the practical point is that routine-looking changes can become the claim. A new performance improvement plan, a schedule change, reassigned duties, or a cool reference that follows a complaint can each be what the employee points to. I suggest running any such change past someone who is not involved in the complaint before it happens, because the second reviewer can ask whether the change would have happened without the complaint.

The same reach covers a lawsuit or counterclaim against a former employee who reported the employer to a government agency, because the suit itself can become the employee’s next retaliation claim. The questions are usually whether the employer’s claim has a reasonable basis on its own and whether the employer has enforced the same agreement against anyone else. Minnesota’s Uniform Public Expression Protection Act adds a separate risk: subject to the exceptions in paragraph (c), Minn. Stat. § 554.08 applies it to a claim against a person “based on the person’s: (1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding,” and on a motion under the Act, Minn. Stat. § 554.16 provides that “the court shall award court costs, reasonable attorney fees, and reasonable litigation expenses related to the motion: (1) to the moving party if the moving party prevails on the motion.”

How does timing affect a retaliation claim?

Timing points to retaliation only when the employer knew about the complaint, actually or by imputation. Knowledge plus a short gap between the complaint and the adverse action can support an inference of retaliation, while a decision that was already taking shape before the employer learned of the complaint is not evidence of causation.

In Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319 (Minn. 1995), the Minnesota Supreme Court said the causal connection may be shown “by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.” The court then held the employee had not made out a reprisal claim. It treated her charge with the Department of Human Rights as her protected activity, which came “several months after she furloughed,” and it found her job eliminated in a genuine reduction in force. The court reinstated summary judgment for the employer.

The U.S. Supreme Court’s Title VII decision in Clark County School District v. Breeden, 532 U.S. 268 (2001), adds two points. Cases that accept timing alone as enough evidence of causation to establish a prima facie case require the timing to be “very close,” and an action taken 20 months later “suggests, by itself, no causality at all.” Planned decisions also survive a complaint: “Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

I suggest recording a disciplinary decision in writing when you make it, with the date, because a decision documented before you learned of the complaint is the proof Breeden describes. If a complaint arrives after you decided but before you acted, I suggest confirming the decision date in writing with the decision-maker before you proceed, for the same reason.

How does an employer support a legitimate reason for the firing?

Under Fletcher, the employer’s burden is to articulate a legitimate reason. The burden then shifts back to the employee to show that the reasons you gave “were not the true reason for the action, but were instead a pretext for discrimination.” Records made before the complaint, a reason you have applied the same way to other employees, and one consistent explanation from the termination meeting through any later charge are what answer that showing.

Federal law sets a demanding causation standard for Title VII claims. In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), the Supreme Court held that “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m).” Nassar interpreted Title VII and did not address the MHRA.

Three parts of the record decide the defense, and Minnesota statutes set the first two:

1. The written reason. Under Minn. Stat. § 181.933, subd. 1, “An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination,” and then “Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” A written reason for a termination that differs from what managers said at the time gives the employee a second reason to compare.
2. The personnel record. Minn. Stat. § 181.961 requires a copy of the personnel record on a separated employee’s written request. Under Minn. Stat. § 181.963, information that belonged in the record but was left out “may not be used by the employer in an administrative, judicial, or quasi-judicial proceeding, unless the employer did not intentionally omit the information and the employee is given a reasonable opportunity to review the omitted information prior to its use.” I suggest answering every personnel file request with the complete record, because the warning you leave out may be the one you need later.
3. The documentation itself. A reason written down only after the complaint cannot have caused a decision made before it. The risks of firing without documentation are sharper when the employee has complained.

I also suggest comparing the decision with how you treated other employees who did the same thing and did not complain, because a reason you have not enforced against anyone else is hard to defend as the true reason.

How should an employer handle an internal complaint?

I suggest treating a complaint about discrimination, wages, safety, or another possible legal violation as a protected report: investigate it, act on what you find, and leave the complaining employee’s pay, duties, and schedule alone unless a documented reason requires a change. An ignored complaint does not go away: the Whistleblower Act protects the same report made to a government body.

Fletcher shows what a sound response looks like and why it holds up. An employee complained that his supervisor had used a racial slur. The employer began investigating the same day, confirmed the account through two witnesses, suspended the supervisor, and demoted him into a newly created position. That position was one the complaining employee had hoped to fill, and he claimed the demotion was reprisal. The trial court found the employer acted to address the supervisor’s conduct, not to retaliate, and the Minnesota Supreme Court reinstated judgment for the employer. One justice dissented, so I suggest weighing how any corrective step affects the person who complained.

Steps I suggest, each because it creates the record a later claim will be judged on:

1. Write down the complaint the day you receive it, including the date, because the date you learned of it starts the timing question.
2. Run a workplace investigation with someone who will not make decisions about the complaining employee, because a neutral investigator’s findings are easier to defend.
3. Act on the findings and record what you did, because a documented correction answers the claim that the complaint was ignored.
4. Tell managers not to change the employee’s job without review, because any change after the complaint will be measured against the complaint.
5. Build the practice into policy through an anti-retaliation program, so the next complaint gets the same handling.

What can a retaliation claim cost a Minnesota employer?

A retaliation claim under the MHRA can bring up to three times the employee’s actual damages, punitive damages, a civil penalty, reinstatement with back pay, and attorney fees. The Whistleblower Act and the wage statutes add their own remedies and penalties.

• MHRA damages. Under Minn. Stat. § 363A.33, subd. 8, a court that finds a violation must award “compensatory damages, including mental anguish or suffering, in an amount up to three times the actual damages sustained.” It adds: “In all cases, the court may also order the respondent to pay an aggrieved party punitive damages pursuant to section 549.20.” The same subdivision requires a civil penalty to the state for a violation of § 363A.15.
• MHRA job relief and fees. Subdivision 9 allows “the hiring, reinstatement, or upgrading of an aggrieved party who has suffered discrimination, with or without back pay” and subdivision 7 allows the court to award “the prevailing party a reasonable attorney’s fee as part of the costs.” Under subdivision 6, either side “is entitled to a jury trial.”
• Whistleblower damages. Minn. Stat. § 181.935, paragraph (a), allows an injured employee “to recover any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney’s fees.” Paragraph (c) adds reinstatement, back pay, and “the expungement of any adverse records,” and under paragraph (b), “An employer who failed to notify, as required under section 181.933 or 181.934, an employee injured by a violation of section 181.932 is subject to a civil penalty of $25 per day per injured employee not to exceed $750 per injured employee.”
• Wage-complaint penalty. An employer that violates Minn. Stat. § 181.03, subd. 6, “is liable for a civil penalty of not less than $700 nor more than $3,000 per violation,” in addition to other remedies.

What should an employer do after receiving a retaliation charge?

After a charge arrives, I suggest preserving the records about the employee and the decision, answering any Minnesota Department of Human Rights charge in writing on time, keeping your stated reason consistent with the termination file, and evaluating settlement under Minnesota’s release rules. Each step protects the proof of your reason or a right the statutes give the employee.

1. The forum. Under Minn. Stat. § 363A.28, subd. 1, “Any person aggrieved by a violation of this chapter may bring a civil action as provided in section 363A.33, subdivision 1, or may file a verified charge with the commissioner or the commissioner’s designated agent.” A federal EEOC charge is a separate path.
2. The written response. The same subdivision states: “The respondent shall file with the department a written response setting out a summary of the details of the respondent’s position relative to the charge within 30 days of receipt of the charge.” The default rule has conditions: “If the respondent fails to respond with a written summary of the details of the respondent’s position within 30 days after service of the charge, and service was consistent with rule 4 of the Rules of Civil Procedure, the commissioner, on behalf of the complaining party, may bring an action for default in district court pursuant to rule 55.01 of the Rules of Civil Procedure.” Check the current statute and the charge itself for the dates that apply to you.
3. Record preservation. I suggest a written hold on email, texts, and files about the employee and the decision, because the records made before the complaint are your proof of the reason.
4. One reason. I suggest the position statement match the termination documents and any § 181.933 letter, because the employee can compare each version you give.
5. A current employee’s job. Filing the charge is itself protected under § 363A.15, so a change in the employee’s job after the charge is a new candidate for a reprisal claim.
6. Settlement and release rules. Under Minn. Stat. § 363A.31, subd. 2, a release of MHRA claims “may be rescinded within 15 calendar days of its execution, except that a waiver or release given in settlement of a claim filed with the department or with another administrative agency or judicial body is valid and final upon execution,” and “A waiving or releasing party shall be informed in writing of the right to rescind the waiver or release.” A release of federal age claims must meet 29 U.S.C. § 626(f), which provides that “An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary.” A Minnesota severance agreement should be drafted to meet both.

Defending a Firing After an Employee Complaint

A Minnesota retaliation claim turns on causation and on whether your reason is the true one, and both are decided by records you make before the claim. Writing down complaints when they arrive, documenting decisions when you make them, treating like conduct alike, and giving one truthful reason are the steps that make a firing after a complaint defensible. For related questions, see my Minnesota employment law for employers materials. If you are deciding whether to fire an employee who has complained, or you have received a retaliation charge, email [email protected] with a short, general description of the situation, and I can start an intake and conflict check before you send any documents. I can then tell you whether your records support the decision and what your response to the charge should address.