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Whistleblower case revived by Minnesota Court of Appeals


A whistleblower’s case against Allina Health System got another chance on Tuesday, when the Court of Appeals reversed the summary judgment of a Hennepin County District Court.

The plaintiff whistleblower, Vicki Metcalf, was fired as a manager with Allied Health System for her role in supervising an employee who was criminally charged with domestic assault. She objected to some of Allina’s decisions during the process of dealing with the employee, saying they were inimical to patient safety. She alleged that her firing was in retaliation for raising her concerns.

In reversing, the Court of Appeals agreed it might have been. It determined that Metcalf had established a prima faciecase of retaliatory discharge and had raised a fact issue of whether the defendant’s reasons for firing her were pretextual. The court remanded her case back to Hennepin County for further proceedings.

The non-precedential case, Metcalf. v. Allina Health System, was a unanimous panel decision written by Judge Louise Bjorkman.


Direction from HR

The conflict started when a respiratory therapist, who was supervised by the plaintiff, told Metcalf he had recently been arrested and charged with domestic assault. A human resources representative told Metcalf that Allina’s policy was to allow the therapist to keep working until he was convicted, and she should keep his arrest “private.”

About five months later, plaintiff mentioned to her supervisor that the employee’s court date was approaching. The supervisor told her to “wait and see” if the employee was convicted.

Plaintiff Metcalf later received some complaints about the employee’s competence and behavior, including possible methamphetamine use. She again contacted the same HR representative, and was told that she should watch the employee, but that Allina could not require drug tests unless a second manager also recommended it.

A few days later, the matter went to Human Resources Director Linda McElmurry, who saw things differently. She said that the employee should leave work immediately. Metcalf told McElmurry that the therapist was in the middle of a pulmonary rehabilitation class and if he left immediately, patients would be at risk. McElmurry told her to bring the employee to HR right away, which she did.

At a later meeting, McElmurry criticized Metcalf, who again said that taking the employee out of the rehabilitation class was dangerous to patients. Metcalf wanted to file a formal complaint against McElmurry but was discouraged by higher-ups. McElmurry wrote a six-page report critical of Metcalf, who was fired shortly thereafter.


Court of Appeals Judge Louise Dovre Bjorkman

Court of Appeals Judge Louise Dovre Bjorkman

Patients allegedly in danger

Plaintiff brought a claim under the Minnesota Whistleblower’s Act, Minn. Stat. § 181.932. The District Court found no causal connection between Metcalf’s protected conduct and her discharge.

The court applied the three-part McDonnell-Douglas analysis because there was no direct evidence of retaliation.

In the first step of the test, the plaintiff must establish a prima facie case of statutorily protected conduct by the employee, an adverse employment action and a causal connection between the two.

The Court of Appeals determined that Metcalf’s report that immediate removal of the employee from the rehabilitation class was dangerous to patients was protected conduct.

“It is for the fact-finder to determine whether employee’s removal from the class violated a law, rule, professional clinical or ethical standard, or other recognized standard as defined by the act, and whether Metcalf reported it in good faith,“ Bjorkman wrote.

It was clear that Allina took an adverse employment action, the court ruled.

The court found that where Allina received three separate reports about patient care and fired the plaintiff 10 days after the last report, a rational trier of fact could find a causal connection between the protected activity and her discharge.

The court also found that Allina stated reasons for firing plaintiff that were legitimate, non-retaliatory and set forth in McElmurry’s report, satisfying the McDonnell-Douglas test’s second step.

“In sum, Allina’s evidence shows that it discharged Metcalf because she exercised poor judgment and management skills by permitting employee to continue working after learning of his arrest for a crime of personal violence and concerning behavior in the workplace, and by resisting the direction to immediately remove him from the workplace,” Bjorkman wrote.


Inference of pretext

The test’s third prong went the plaintiff’s way. The court said that a rational trier of fact could find Allina’s reasons for discharge were a pretext for retaliation.

It noted that its pretext analysis focuses on whether Allina’s explanation was false or unworthy of credence, not whether the decision to discharge Metcalf was wise, fair, or correct as per Mudrich v. Wal-Mart Stores, a 2013 Minnesota U.S. District Court opinion.

McElmurry’s report paints a picture of plaintiff’s inappropriate behavior, but the report is not supported by evidence in the record, the court said. Plaintiff’s evidence that she promptly reported the arrest and followed HR direction makes the report “dubious at best,” the court said. The record also shows that the fact-finders at Allina relied on the report.

“In short, Metcalf has produced competent evidence that could allow a rational fact-finder to disbelieve Allina’s stated reasons for discharging her and infer retaliatory intent,” the court concluded.

Listen to the Court of Appeals’ oral arguments in the case.



Session/Law logo by Kirk Anderson