Douglas James Sellner v. MAT Holdings, Inc.

Douglas J. Sellner sued his former employer, MAT Holdings and its

subsidiaries Midwest Air Technologies, Inc., MAT Industries, and Sanborn

Manufacturing Company (collectively “MAT”). He alleges retaliation under the

Minnesota Whistleblower Act, Minn. Stat. § 181.932. The district court granted

summary judgment to MAT. Having jurisdiction under 28 U.S.C. 1291, this court

reverses and remands.

I.

MAT manufactures and markets air compressors, pneumatic air tools, and

pressure washers—all sold at retailers and home centers. In June 2011, MAT hired

Sellner as a lab-quality technician at its facility in Springfield, Minnesota. His

primary responsibility was to conduct lab testing and report the results to supervisors.

Travis W. Strong, the Quality Assurance and Product Service Manager, was Sellner’s

direct supervisor. Alan D. (“Butch”) Stark is the facility’s general manager.

On Sellner’s first day, Strong told him that one of MAT’s products, the

Honbase pump, had serious problems with oil leakage during testing. In August

2011, MAT began working with the retailer Sears to add a compressor with the

Honbase pump to Sears’ Craftsman product line. Later that month, Sellner was

assigned to complete testing whether certain changes to the Honbase pump improved

oil consumption and life performance.

On March 29, 2012, Sellner alleges Stark told him to “get together everything

[they] had on the [Honbase] pump.” Sellner gathered and delivered the data to Stark.

According to Sellner, later that day Engineering Lab Manager Joel D. Schiller said

that the results Sellner compiled were “sh*t” and could not be used in any report for

Sears.

Sellner claims that within hours, Stark entered his office and said Sears called

MAT “on the carpet” for overstating the performance and quality of the Honbase

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pump. Stark then allegedly told Sellner to produce a report showing no major issues

with the Honbase pump. Sellner says that when he told Stark that no units performed

without major issues, Stark said, “well, if you don’t do this, we’re all going to be on

the street—no, you’re going to be on the street.” Sellner states that when he told

Stark that he would not falsify any testing data and that his request was illegal, Stark

said he should “get creative with [his] documentation.” In his testimony, Joshua

Beach, a lab technician, swears he overheard these parts of the conversation: Stark

saying that Sears was calling MAT “on the carpet,” Stark encouraging Sellner to get

creative with testing, and Sellner refusing. Beach says that after the conversation

with Stark, Sellner said, “Well, there’s my job.” According to Sellner, Stark

continued to return to his office throughout the day, pressuring him to complete a

report with falsified data.

Sellner testified that throughout the next day, March 30, Stark continued to

pressure him, and Sellner continued to refuse. Later that day, Sellner called the

Minnesota Department of Labor and Industry (MNOSHA). He reported he was

instructed to “doctor up some documentation.” He also filled out an online form.

Beach swears that “a day or two” later, he told Strong about Sellner’s report to

MNOSHA.

On March 30, MAT posted a job opening for a Quality Assurance/Test Lab

Leadperson. Strong recommended Sellner for the promotion; Stark approved.

Sellner learned of his promotion on April 3, just before he and Strong left for China

on business. On April 10, while Sellner was in China, Janis Nebel, the corporate

Director of Human Resources at MAT, received an anonymous email accusing

Sellner of inappropriate conduct. On April 16, Sellner returned from China. Strong

recommended an above-standard pay increase along with the promotion, saying that

Sellner “brought vast intellectual knowledge and experience across all facets.”

Strong and Stark signed the paperwork proposing the pay increase.

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Nebel investigated, on-site, personnel issues at the Springfield facility from

April 23 through 25. Several employees met with Nebel and made allegations about

Sellner’s workplace behavior. Sellner says that he told Nebel he was asked to “fudge

test results out of the lab when the units were failing to save the Sears contract.” The

next day, Sellner was terminated. He never received the pay increase or the

promotion. MAT maintains it fired Sellner for “unacceptable conduct” including

“inappropriate and offensive statements made to and about his colleagues, and

inability to maintain positive and productive relationships with his co-workers, and

engaging in conduct that adversely affected the productivity of the workplace.”

Sellner sued MAT for wrongful termination under the Minnesota

Whistleblower Act (MWA), Minn. Stat. § 181.932. The district court granted MAT

summary judgment on the MWA claim. Sellner also brought five other claims, which

the district court dismissed and Sellner does not appeal. He appeals the dismissal of

his MWA claim.

II.

This court reviews de novo the district court’s grant of summary judgment,

considering the facts most favorably to Sellner. See AuBuchon v. Geithner, 743 F.3d

638, 641 (8th Cir. 2014).

To recover under the MWA, Sellner must prove that MAT “took adverse

employment action against [him] because []he engaged in statutorily protected

conduct, here, making a good faith report of a suspected violation of law.” Fjelsta

v. Zogg Dermatology, 488 F.3d 804, 808 (8th Cir. 2007). An employee alleging

retaliation need not show that the alleged conduct was actually unlawful, only that the

employee “in good faith, reported a violation or suspected violation of law to an

employer.” See Pedersen v. Bio-Medical Applications, 775 F.3d 1049, 1053 (8th

Cir. 2015) (interpreting the MWA). Falsifying test data is a state-law violation;

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reporting it is protected conduct under the MWA. See Minn. Stat. § 325D.44; Minn.

Stat. § 181.932. Termination is an adverse employment action. Wagner v.

Campbell, 779 F.3d 761, 766 (8th Cir. 2015). The issue is the causal connection

between Sellner’s protected conduct and his firing.

Retaliation claims under the MWA may be proven by direct evidence, or in its

absence, under the McDonnell Douglas burden-shifting structure. Wood v. SatCom

Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013). Direct evidence is “evidence of a

specific link between the alleged discriminatory animus and the challenged decision,

sufficient to support a finding by a reasonable fact finder that an illegitimate criterion

actually motivated the adverse employment action.” Id. (internal citation omitted).

Direct evidence “includ[es] evidence of conduct or statements by persons involved

in the decision-making process that may be viewed as directly reflecting the alleged

discriminatory attitude.” Thomas v. Heartland Emp’t Servs. LLC, 797 F.3d 527,

529-30 (8th Cir. 2015) (internal quotations omitted). “Direct” refers to the causal

strength of the proof, not whether it is circumstantial evidence. Young-Losee v.

Graphic Packaging Int’l, Inc., 631 F.3d 909, 912 (8th Cir. 2011). Direct evidence

should “reflect a negative attitude toward [protected conduct] and . . . forecast how

the employer would deal with the adverse situation if it arose.” Fjelsta, 488 F.3d at

810.

Sellner argues that Stark’s March 29 comment—“we’re all going to be on the

street—no, you’re going to be on the street” if Sellner did not “get creative with [his]

documentation”—is direct evidence of retaliation. MAT acknowledges that Stark is

a person “involved in the decision-making process.” See Thomas, 797 F.3d at 529-

30. The issue is whether Stark’s comment adduces a “specific link between the

alleged discriminatory animus and the challenged decision.” See id. Taking all

inferences for Sellner, Stark’s remark that Sellner would “be on the street” forecasted

how MAT would deal with Sellner’s refusal to “get creative with [his]

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documentation.” See Fjelsta, 488 F.3d at 810. Stark’s comment provides a specific

link between Sellner’s protected conduct and his termination.

MAT asserts there is insufficient evidence of a causal link between the alleged

comment and Sellner’s firing. MAT and the district court cite both Young-Losee and

Fjelsta to conclude that Stark’s March 29 comment is “too remote in time” from

Sellner’s April 26 firing to be direct evidence. Neither Young-Losee nor Fjelsta set

a specific time period on the viability of direct evidence. See Young-Losee, 631 F.3d

at 912-13; Fjelsta, 488 F.3d at 810. In Fjelsta, the alleged direct evidence “did not

reflect a negative attitude toward [the protected characteristic] generally and in no

way forecast how the employer would deal with the situation if it arose.” Fjelsta, 488

F.3d at 810. “[A]t summary judgment, a plaintiff can establish a causal connection

between his complaints and an adverse action through circumstantial evidence, such

as the timing of the two events.” Wilson v. Arkansas Dep’t of Human Servs., 850

F.3d 368, 373 (8th Cir. 2017), citing Turner v. Gonzales, 421 F.3d 688, 696-97 (8th

Cir. 2005). A time period of six weeks between the protected activity and adverse

action can support an inference of retaliation that survives summary judgment. See

Chavez-Lavagnino v. Motivation Educ. Training, Inc., 767 F.3d 744, 750 (8th Cir.

2014) (six weeks between employee’s protected conduct and termination supports

causal inference of retaliation); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552

(8th Cir. 2013) (same). Cf. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74

(2001) (per curiam) (citing cases where three-month and four-month periods are

insufficient evidence of causality). Here, the 27-day gap between Sellner’s report to

MNOSHA—which Strong allegedly knew about within “one or two days”— and his

firing creates an inference of retaliation at summary judgment. Stark’s discriminatory

comment came one day before Sellner’s report to MNOSHA and is not too remote in

time to be direct evidence.

MAT believes that intervening events between Stark’s comment and Sellner’s

firing destroy the “specific link” needed for direct evidence. MAT cites Pedersen as

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a case where intervening events destroyed the specific link. See Pedersen, 775 F.3d

at 1054. There, the intervening events were the employer’s “decision to return

Pedersen to work on a corrective action plan, promises to retrain Pedersen to her

previous position with [the employer], and Pedersen’s continued failure to return to

work despite [the employer’s] efforts.” See Pedersen, 775 F.3d at 1054. Because

MAT took none of these actions, Pedersen does not apply.

MAT also claims that Stark’s “support [of] employment decisions beneficial

to Sellner” after March 29 destroys the specific link. However, Stark’s support of

Sellner’s employment can be the foundation of an inference that MAT’s explanation

for his firing has “no basis in fact or was not actually important to [MAT].” See

Smith v. Allen Health Sys., 302 F.3d 827, 834 (8th Cir. 2002) (“Recent favorable

reviews are often used as evidence that the employer’s proffered explanation for the

adverse action had no basis in fact or was not actually important to the employer.”);

Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006) (explaining that

an employee receiving a favorable review shortly before termination supports a

finding of retaliation).

MAT asserts that it fired Sellner for “unacceptable conduct” in the workplace.

This court does not discuss the merits of MAT’s claim because “[e]vidence of the

employer’s motives for the action, and whether the presence of a mixed motives

defeats the plaintiff’s claim, is a trial issue, not intended for summary judgment.” See

Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1046 (8th Cir. 2005). This court

holds only that Stark’s comment—viewed most favorably to Sellner—is “sufficient

to support a finding by a reasonable fact finder that an illegitimate criterion actually

motivated the adverse employment action.” See Wood, 705 F.3d at 828.

III.

The MAT defendants contend that some of them are not proper parties.

Because the district court did not rule on this fact-intensive issue, this court leaves it

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for remand. See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what

questions may be taken up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be exercised on the facts of

individual cases.”); Annex Med., Inc. v. Burwell, 769 F.3d 578, 583 (8th Cir. 2014)

(remanding for the “district court to use its superior fact-finding abilities to

determine, in the first instance, whether subject matter jurisdiction exists”); Peske v.

Tangedahl, 619 F.2d 729, 731 (8th Cir. 1980) (per curiam) (expressing doubts as to

jurisdiction but remanding in light of the district court’s failure to consider the issue).

* * * * * * *

The judgment of the district court is reversed, and the MWA claim is

remanded.