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<br />Ratwik, Roszak & Maloney; EA.
<br />
<br />Attorneys at Law
<br />
<br />300 US. Tntst Building
<br />730 Second Avenue South
<br />Minneapolis. Minnesota 55402
<br />(612) 339-0060
<br />FAX (612) 339-0038
<br />
<br />PRSRT STD
<br />U.S. Postage
<br />PAID
<br />Minneapolis, MN
<br />Permit #2235
<br />
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<br />....c.............. AUTO"SCH 3-01GIT 550 ED
<br />MS. !vIARY CAPRA RECEIV
<br />CITY OF CENTER\/llLE
<br />1880 MAIN ST
<br />CENTER\/ILlE IvlN 55038-9794 AUG - 7 Z006
<br />
<br />Address Service Requested
<br />
<br />CENTERVILLE, MN
<br />
<br />FIRST AMENDMENT, comilllled
<br />or rule or regulation adopted pursuant to law, and
<br />the employee informs the employer that the order
<br />is being refused for that reason; or
<br />(d) the employee, in good faith, reports a situation in
<br />which the quality of health care services provided
<br />by a health care facility, organization, or health care
<br />provider violates a standard established by federal
<br />or state law or a professionally recognized national
<br />clinical ot ethical standard and potentially places
<br />the public at risk of harm.
<br />Minn. Stat. ~ 181.932, subd. l(a).
<br />
<br />"To qualify as a report under the statute, a report
<br />must "blow the whistle" by notifying the employer [or
<br />governmental body] of a violation of law that is a clearly
<br />mandated public policy." Cokley v. City of OI5t.:gQ,
<br />623 N.W2d 625,631 (Minn. Ct. App. 200!). An
<br />employee's investigation of suspected 111l1::",(,.I'-';'iti,
<br />that the employer was already investigating did not
<br />constitute "report" within meaning ofWhisdeblower Act.
<br />Rothmeierv. Investment Advisers, Inc., 556 N.W2d 590,
<br />593-594 (Minn. Ct. App. 1996). Internal management
<br />decisions, political decisions and similar policy decisions
<br />that do not implicate violations of law are not protected
<br />by the Act. Cokley at 631; Thomas v. Campbell, 845
<br />ESupp. 665 (D. Minn. 1994); Donahue v. Schwegman,
<br />Lundbetg, Woessner & Kluth, P.A., 586 N.W 2d 811
<br />rev. denied (Minn. App. 1998).
<br />The Whistleblower Act has been interpreted by
<br />the courts in the same manner as other retaliation type
<br />claims, such as discrimination. To establish violation of
<br />the Whisdeblower Statute, the employee must establish
<br />that (a) the employee engaged in statutorily-protected
<br />conduct; (b) there was an adverse employment action
<br />by the employer; and (c) a causal connection between
<br />
<br />the two. The burden then shifts to the employer to
<br />demonstrate that the adverse employment action was for
<br />a legitimate reason. Once demonstrated, the employee
<br />then has the burden to prove that the reason given was
<br />pretexrual. Cokley at 634 (Minn. Ct. App. 2001).
<br />Under Minnesota Jaw, to prove a violation of
<br />the Minnesota Whistleblower Statute the employee
<br />must prove intentional retaliation. Chadwell v. Koch
<br />Refining Co., L.I~, 251 E3d 727, 734 (8th Cir. 2001).
<br />See Kunferman v. Ford Motor Co., 112 E3d 962,965
<br />(8th Cir.1997) (defining the causation requirement of a
<br />retaliatory discharge claim as based upon knowledge and
<br />intent); Rosen v. Transx Ltd., 816 ESupp. 1364, 1369-
<br />70 (D.Minn.1993) (classifying pretextual retaliatory
<br />discharge under the Minnesota Whisrleblower Statute as
<br />premised upon "intentional retaliation"); Larson v. New
<br />Richland Care Center, 538 N.W2d 915, 920 (Minn.
<br />Cr.Arr.I-99'T}irnnsrming-rhcrtitmnesola Whisddolvwer- .- .
<br />Statute as an intentional taft created by statute, requiring
<br />an employee to "prove that the employer intentionally
<br />discharged or retaliated against" him or her).
<br />In essence, while the Ceballos case has eliminated
<br />a cause of action under the First Amendment for
<br />public employees speaking out on issues related to
<br />the employee's official duties, public employees may
<br />still bring claims under the Minnesota Whisdeblower
<br />Act under the right circumstances. Therefore, public
<br />employers should remain cautious in taking adverse
<br />employment actions against employees making
<br />allegations of illegal actions.
<br />
<br />The information contained in this newsletter is geneml in nature
<br />and should not be eomtrued as legal adz,ice. Please comlllt)'ollr legal
<br />cOllllsel if YOII haIJe an)' questions about applying the information
<br />contained in these articles to a particular situation.
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