896 F.3d 854
8th Cir.2018Background
- Colleen Auer was hired as Minot city attorney on a one-year probationary term and, three weeks in, sent a written “Notice and Demand” accusing interim city manager Cindy Hemphill of unlawful sex-based harassment and discrimination.
- The mayor appointed three council members to investigate; they interviewed witnesses, received Hemphill’s written response, and concluded no sex-based harassment occurred. The mayor closed the matter.
- Hemphill terminated Auer the day after the investigation closed; the city council later met, heard Auer complain at the meeting, and unanimously voted to ratify and approve her termination.
- Auer sued alleging: (1) retaliatory discharge for reporting sex-based harassment under federal and state law; (2) a due-process/name-clearing claim for reputational harm based on affidavits filed in litigation; and (3) First Amendment retaliation for speaking at the council meeting.
- The district court granted summary judgment for the city and denied Auer’s motion for spoliation sanctions; the Eighth Circuit reviewed the grant de novo and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reporting Hemphill’s conduct constituted protected opposition to unlawful sex-based harassment | Auer argued her Notice reasonably alleged sex-based harassment, so firing was retaliatory | City argued Auer’s complaint was unreasonable and no protected activity occurred | Held: Auer’s Notice did not show a reasonable belief of illegal sex-based harassment; no protected activity shown |
| Whether a new sex-stereotyping theory is actionable when not raised in the original report | Auer argued Hemphill’s remarks reflected sex stereotyping (e.g., be less aggressive) | City argued Auer never reported sex stereotyping, so it could not be a basis for retaliation | Held: Theory fails — she did not report sex stereotyping before termination, so no causal nexus |
| Whether submission of affidavits in litigation gives rise to a due-process/name-clearing violation | Auer claimed affidavits filed by the city harmed her reputation and required a hearing | City argued parties may present evidence in litigation and affidavits filed after the injury cannot retroactively cause it | Held: No due-process violation; affidavits were filed after the alleged reputational injury and no authority requires out-of-court name-clearing here |
| Whether Auer’s speech at the council meeting was a motivating factor in council’s ratification (First Amendment retaliation) | Auer argued her public remarks were a matter of public concern and temporally proximate to the vote | City argued the council had independent explanations (Hemphill’s reasons) and timing alone is insufficient to show causation | Held: Temporal proximity alone insufficient; plausible alternative explanation exists, so no genuine dispute of causation |
Key Cases Cited
- Auer v. Trans Union, LLC, 834 F.3d 933 (8th Cir. 2016) (prior related decision by this court)
- Greyhound Lines, Inc. v. Wade, 485 F.3d 1032 (8th Cir. 2007) (spoliation requires intentional destruction to justify severe sanctions)
- Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011) (adverse-inference spoliation sanctions appropriate only on bad-faith showing)
- Morris v. Union Pacific R.R., 373 F.3d 896 (8th Cir. 2004) (intent to deprive may be proved circumstantially for spoliation)
- Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006) (employee’s reasonable belief in illegality is required for opposition clause protection)
- Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033 (8th Cir. 2010) (sex stereotyping recognized as a form of discrimination)
- Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909 (8th Cir. 2011) (standard of review for summary judgment)
- Bishop v. Wood, 426 U.S. 341 (1976) (communications in judicial proceedings generally not actionable for name-clearing where they postdate the injury)
- Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999) (temporal proximity alone insufficient to prove retaliation causation)
- Putnam v. Keller, 332 F.3d 541 (8th Cir. 2003) (cases discussing reputational/due-process claims)