David F. Freeman v. Ace Telephone Assoc. , 467 F.3d 695 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1435
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David F. Freeman, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Ace Telephone Association, *
doing business as Ace *
Communications Group, *
*
Appellee. *
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Submitted: September 28, 2006
Filed: November 1, 2006
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Before ARNOLD, BYE, and MELLOY, Circuit Judges.
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ARNOLD, Circuit Judge.
David Freeman appeals the entry of summary judgment against him by the
district court1 on the retaliation claim that he brought against his former employer,
Ace Telephone Association, under the Minnesota Whistleblower Statute, see Minn.
Stat. § 181.932. We affirm.
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
I.
After Mr. Freeman was fired from his position as co-CEO of Ace, he sued his
former employer for gender and marital-status discrimination in violation of the
Minnesota Human Rights Act (MHRA), see Minn. Stat. § 363A.08.2, as well as
retaliatory discharge in violation of the Minnesota Whistleblower Statute, see Minn.
Stat. § 181.932.1. The district court granted Ace's motion for summary judgment on
all claims. Mr. Freeman appealed from the grant of summary judgment only as to his
whistleblower claim.
Mr. Freeman claims that Ace fired him in retaliation for his report to its board
of directors that the company's mileage reimbursement policy might result in
violations of federal income tax laws. The company was "reimbursing" board
members who carpooled to board meetings as if they had each driven separately, and
it reported the payments as nontaxable reimbursements. Unless those board members
who had not actually driven reported the payments as taxable income, they had
violated federal tax laws.
According to Ace, Mr. Freeman was fired because he had a sexual relationship
with a female subordinate employee and lied about it. The board began investigating
Mr. Freeman's relationship with the female employee in August, 2003. At the end of
that month, Mr. Freeman submitted a letter to the board in which he admitted to
having a friendly, "not sexual" relationship with the employee and promised to sever
that relationship. Based on some reason to believe that the relationship continued,
however, the board began a formal investigation and informed Mr. Freeman of the
investigation at its meeting on 30 September 2003. Mr. Freeman first raised the
mileage reimbursement issue with the board that same day. Two weeks later, on
14 October, Mr. Freeman submitted a sworn statement to the board in which he
admitted to having a sexual relationship with the employee and lying about it to the
board. A week after that, the board decided to terminate Mr. Freeman and notified
him of its decision shortly thereafter.
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The district court held that Mr. Freeman had not established a prima facie case
of retaliation because he was not engaged in "protected activities" under the
Whistleblower Statute and he had not shown a causal link between the claimed
whistleblowing and his termination. The court further held that Ace had legitimate,
nondiscriminatory reasons for terminating Mr. Freeman because of his relationship
with the female employee and that there was no evidence that those reasons were
pretextual.
II.
We review de novo the district court's order granting summary judgment to
Ace. Aviation Charter, Inc. v. Aviation Research Group/US, 416 F.3d 864, 868 (8th
Cir. 2005). Summary judgment is proper if "there is no genuine issue as to any
material fact and ... the moving party is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c). The court views the evidence in the light most favorable to the non-
moving party, in this case Mr. Freeman. Aviation Charter, Inc., 416 F.3d at 868.
The Minnesota Whistleblower Statute prohibits an employer from
discriminating against an employee because the employee, in good faith, reported a
violation or suspected violation of state or federal law to an employer, a governmental
agency, or a law enforcement official. Minn. Stat. § 181.932.1(a). To establish a
prima facie case of retaliation under the statute, Mr. Freeman had to show that he
engaged in statutorily-protected conduct, that he was subjected to an adverse
employment action, and that a causal connection existed between the two. See Cokley
v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001) (citing Hubbard v.
United Press Intern., Inc., 330 N.W.2d 428, 444 (Minn. 1983)); Pope v. ESA Servs.,
Inc., 406 F.3d 1001, 1010 (8th Cir. 2005). We agree with the district court that
Mr. Freeman did not make out a prima facie case.
Mr. Freeman's case fails because he did not present sufficient evidence to
support an inference that his report to the board about the possible illegality of its
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mileage payment policy caused his termination. He relies solely on evidence of
temporal proximity, maintaining that because he made the report less than a month
before he was discharged, a reasonable jury could infer that making the report
contributed to his dismissal.
The timing of Mr. Freeman's dismissal is insufficient to establish a prima facie
retaliation claim. Although a short interval between a plaintiff's protected activity and
an adverse employment action may occasionally raise an inference of causation, see,
e.g., Peterson v. Scott County, 406 F.3d 515, 524 (8th Cir. 2005), in general, more
than a temporal connection is required, Kiel v. Select Artificials, Inc., 169 F.3d 1131,
1136 (8th Cir. 1999) (en banc), cert. denied, 528 U.S. 818 (1999). And here, as in
Kiel, 160 F.3d at 1136, the presence of intervening events undermines any causal
inference that a reasonable person might otherwise have drawn from temporal
proximity: As we have said, two weeks after Mr. Freeman made his report to the
board about the mileage issue, he admitted, in a sworn statement, to having a sexual
relationship with the female employee and continuing that relationship after he
promised the board that he would end it. He also admitted, moreover, that he lied to
the board president, his co-CEO, and the company's human resources director about
the relationship, that he used a company credit card to buy Viagra to continue the
sexual relationship, and that he purchased private cell phones for himself and the
female employee so that they could communicate secretly. We believe that no
reasonable person could conclude on this record that Mr. Freeman's report to the board
about its mileage policy was causally related to the decision to fire him.
Because we find that Mr. Freeman did not produce evidence of a causal
connection between his report to the board and his termination, we have no occasion
to address the question of whether he engaged in protected activity under the statute,
or whether Ace's reasons for firing him were pretextual.
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III.
For the reasons stated, we affirm the district court's order granting summary
judgment.
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