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By Marshall H. Tanick

As the COVID -19 pandemic tends to subside employees in Minnesota and elsewhere are re-grouping from the battering they have taken during the past year, which for a while trebled ranks of unemployment from record lows to levels  not reached in many decades.

While most of the employees lost their jobs, whether temporary or permanently, due to the pandemic, and no fault of their own, some employees experienced workplace woes because of their own bad behavior.  A trio of  rulings of the Eighth Circuit Court of Appeals, which oversees Federal litigation in Minnesota and six surrounding states, reflect this pattern.

The cases reflect the continued tendency of the Eighth Circuit Court of Appeals, at one time one of the most hospitable circuits for employees’ rights, as one of the least favorable forums for them.

Medical Matters

A pair of the matters involved medical personnel, who lost their jobs – and their cases because they did not play well with others.

A physician who “had trouble getting along with his co-workers,” also had trouble with the  Eighth Circuit, having his claim for racial discrimination  and retaliation arising out of his termination rejected by the tribunal in Bharadwaj v. Mid Dakota Clinic, 954 F.3d 1130 (8th Cir. 2020).  The decision, written by Judge David Stras of Minnesota and joined by his Minnesota colleague, James Loken, along with Judge Morris Shepherd, affirmed a lower court decision dismissing those claims, along with a breach of fiduciary duty as a minority shareholder in a medical clinic located m Bismarck, ND, were dismissed by the lower court in North Dakota and the decision was affirmed on appeal.

The claimant, an oncologist born in India, had worked for the clinic for 4-1/2 years, including the last two as a shareholder, but his tenure was “rocky,” including his having “repeatedly” quarreled with nurses and other doctors, which led the clinic to have him go through a fitness-to-practice evaluation.  Upon his return, he was suspended and then, after divisive confrontations, he “decided to resign,” rather than face a vote of ouster from the organization.

His discrimination claims were subject to analysis under the three-prong burden-shifting standard of McDonnell Douglas, which focused on whether the reason for his termination was a “pretext for discrimination.” McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).   Agreeing with the trial court, Judge Stras determined that the physician “has not mustered sufficient evidence of pretext, which warranted summary judgment.  His retaliation claim, which is based on his reporting to management of racist statements made by a head nurse, also was not actionable because there was no direct evidence of retaliation.  Even though another doctor received a large jury award on a different retaliation claim, the claimant in this case could not use that “strong retaliation claim to boot strap his weak one.”  Because the claims of the other doctor were “just too different,” they did not support his retaliation claim. 

Further, a claim for equitable relief for oppression of minority shareholder under North Dakota law was not viable because the clinic was not a “closely held” corporation, subject to the provisions of the North Dakota Business Corporation Act and all of the “allegedly oppressive actions” claimed by the doctor were “taken against him in his capacity as an employee, not as a shareholder.”

Because he was an at-will employee, the alleged maltreatment did not rise to the level of minority shareholder oppression warranting equitable relief.

Another medical employee, a radiology manager for a medical center in Arkansas, also lost her claim of age and sex discrimination in Main v. Ozark Health, Inc., 959 F.3d 319 (8th Cir. 2020) on similar grounds of inability to work well with others.  Again affirming a trial court’s grant of summary judgment, the court held that the employee could not sustain her claims because there were “several” complaints about [her] behavior from radiation staff members and heads of other departments,” which included bullying and discourteous communications, coupled with “issues” with [her] performance.  A decision written by Judge Shepard, and joined by Circuit Judges Michael Coleton and Raymond Erickson.

The claimant also, like the North Dakota doctor, failed to satisfy the McDonnell-Douglas burden shifting test because her termination was not based upon a pretext, but rather attributable to rude, condescending, or unprofessional behavior.  Although there was a “general lack of documentation of history of rude and insubordinate behavior,” the record reflected that the claimant did have a “history of rude and inappropriate behavior, despite the limited documentation.  Because the employer’s justifications were not “unworthy of credence,” summary judgment was appropriate on her discrimination claims.  The age discrimination claim was based upon an inference of discrimination stemming from a question that was asked of the claimant about her succession plan and her replacement with a male employee who was 22 years younger. But these matters cannot “create an inference” that [she] was terminated based on her sex and age on account of their prevailing law and other circuit court decisions.

Therefore, because of her failure to satisfy her burden to show pretext, she was unable to satisfy the McDonnell-Douglas framework and, therefore, her case was properly dismissed.

Mortgage Matter

A mortgage broker suffered the same fate before the same Eighth Circuit panel in Sherman v. Berkadia Commercial Mortgage, LLC,  956 F.3d 526 (8th Cir.2020).  He asserted that he was wrongfully terminated from his job in retaliation under the Federal False Claims Act (FCA), 31 U.S.C. § 3729(a), as well as state law for raising claims of fraudulent practices by his employer.  However, the case was dismissed by the lower court, and the Eighth Circuit affirmed.  

The claimant lacked  any “direct evidence of retaliation,” and he was unable to establish an “inference of retaliation” under the McDonnell-Douglas test. The basis for his termination was his “inability to work with the production team manager,” along with low productivity.

The standard for a retaliation claim under the FCA is “tighter than that required in other types of retaliation and discrimination claims;” and requires that the action be “motivated solely by” protected conduct, rather than as in some mixed motive cases.  In this case, there was insufficient evidence re “tight causal link,” between his alleged reporting of the alleged wrongdoing and his termination.  It parallels a claim for wrongful discharge under state law, based upon a “public policy” exception for at will employment also was rejected on grounds that he failed to “make meaningful arguments specific to wrongful discharge in his appeal.”

Similarly, an employee who failed to perform a task delegated by management was denied unemployment compensation benefits by the Minnesota Court of Appeals in Grew v. Island Investment, Inc., 2020 WL 2517615 (Minn. Ct. App. 2020) (unpublished).

The claimant, a full time staff accountant for a company that managed a number of hotels and other properties refused to undertake am assignment that he was given to complete a financial statement for one of the organization’s holdings. After he declined to do so, the employer informed him that he has “chosen to resign.”

His appeal for unemployment compensation benefits was denied, but on different grounds.  The appellate court, affirming a decision of an unemployment law judge, (ULJ), deemed his non-compliance to constitute disqualifying “misconduct” under Minn. Stat. § 268.095. subd. 4(1). 

The court based its decision on case law that an employee’s “one time refusal to participate” in a delegated activity constitutes misconduct.  In short, the employee’s refusal to comply with his employer’s directive that is “reasonable,” does not impose an unreasonable burden on the employee and bars unemployment compensation benefits. 

These cases reflect the difficult job employees face, particularly in the Eighth Circuit, in pursuit wrongful termination lawsuits.  They also show that bad behavior in the workplace can be fatal to their legal claims.