On January 6, 2015, the Eighth Circuit Court of Appeals affirmed summary judgment dismissing a former employee’s claims under the Minnesota Whistleblower ActSee Pedersen v. Bio-Medical Applications of Minnesota, No. 14-1284 (8th Cir., Jan. 6, 2015). The Court did so principally because of the employer’s careful recording of the employee’s multiple performance and conduct issues.

The employer operates dialysis clinics and employed Lisa Pedersen as a registered nurse. As part of its treatment regimens, the clinics collect and transport patient blood samples for analysis. Ms. Pedersen had reported to her employer that a box of blood samples had been left overnight properly packed in ice, but in the wrong type of shipping box. The clinic investigated the matter and concluded the samples had not been compromised and that it was not necessary to order a redraw of any of the affected patients. Ms. Pedersen also later complained to several others that she feared retaliation for reporting the incident and her belief that clinic management was covering up the issue.

Ms. Pedersen was subsequently suspended for three days while an internal investigation was conducted regarding her performance and conduct, including impersonating a clinic manager, inappropriately documenting a patient’s treatment, failing to obtain doctor’s orders for treatment, and slapping a patient. After its investigation, the clinic offered Ms. Pedersen a return to her position under a corrective action plan, but she did not return to work. Several months later Ms. Pedersen had still not returned to work and the clinic terminated her employment as a voluntary resignation.

After filing her lawsuit, the District Court dismissed Ms. Pedersen’s claims. On appeal, the Eighth Circuit affirmed that dismissal. Although the District Court had determined that Ms. Pedersen’s complaints did not constitute an actionable report under the Minnesota Whistleblower Act, the Eighth Circuit declined to rule on that point. Instead, the Eighth Circuit concluded that Ms. Pedersen had failed to show that the clinic’s legitimate reasons for disciplining and terminating her were a pretext for retaliation. The Court of Appeals stated that Ms. Pedersen’s speculation about an ulterior motive by the clinic was “unsupported and contradicted by other undisputed facts in the record.”

Takeaway: It is a best practice for employers to inform employees about, and maintain a record of, performance and conduct concerns. In addition to providing the employee an opportunity to correct any shortcomings, this record will, if needed, help an employer effectively rebut later claims of retaliation.