Minn. appeals court rejects ex-state worker’s retaliation claim

Thursday, June 18, 2009

A former Minnesota occupational-safety inspector could not prove that he was punished in retaliation for allegations he made about two of his investigations, a Minnesota appeals court has ruled.

Douglas Crosby contended that high officials in the Occupational Safety and Health Office of the Minnesota Department of Labor violated state law in two investigations. Crosby alleged that in response to his complaints, officials closed his office, transferred him to another one, denied him a raise and reduced his job responsibilities.

Shortly after being informed that his office would close in June 2006, Crosby wrote letters to his state representative and U.S. congressman, contending that he was being punished for reporting illegal activity. In January 2007, his employers refused Crosby a pay increase. In January 2007 he sued, alleging statutory claims under state whistleblower and health and safety laws. He also advanced a First Amendment retaliation claim.

The district court dismissed Crosby’s claims. With respect to his retaliation claim, the court found no causal connection between Crosby’s protected speech and any adverse job action.

The Minnesota Court of Appeals affirmed in its June 9 opinion in Crosby v. State. On the retaliation claim, the court noted that a public employee alleging retaliation must prove three things: (1) that the employee engaged in protected speech; (2) an adverse employment action, such as a discharge, demotion or loss of pay; and (3) a causal connection between the protected speech and the adverse employment action.

The appeals court first noted that Crosby’s claims were not ruled out by the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos, in which the high court ruled that employees have no First Amendment rights for speech made as part of their official job duties. The Minnesota appeals court observed that Crosby’s complaints to legislators were not part of his official duties and that he spoke as a citizen in those communications.

However, the appeals court rejected Crosby’s retaliation claims because he failed to show a connection between his speech and any adverse effects on his job. The court pointed out that the closing of the office in Crosby’s hometown occurred before he wrote his letters to the legislators. The appeals court also cited a delay between his complaints and the denied raise. “There is at least a six-month time gap between [Crosby’s] protected speech and the denial of his pay increase and modification of his schedule,” the court wrote. “Without more, this is too attenuated to establish a [basic] case.”

The court added that Crosby “presented nothing other than his own speculation that there had been devious conduct by his supervisors.”

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