Registered nurse Tanya Fjelsta sued her former employer, Zogg Dermatology, a clinic in Albert Lea, Minnesota, and the clinic’s supervisors, medical director Brian Zogg and office manager Deanne Zogg. Fjelsta asserted retaliation claims under the Minnesota Whistleblower Act, Minn. Stat. § 181.932; pregnancy discrimination claims under Title VII and the Minnesota Human Rights Act; and claims of defamation and battery. Fjelsta appeals the district court’s
1
grant of summary judgment.
Fjelsta v. Zogg Dermatology PLC,
No. Civ. 04-1717,
I. Background
Fjelsta began working at the clinic on January 27, 2003. At the end of a ninety-day probationary period, she received a guardedly positive written review and an offer of permanent employment, which she accepted. In early June, Roxanne Medd, the clinic’s other full-time nurse, advised that she was pregnant. Fjelsta alleges that Deanne Zogg told her, “Tanya, you better take precautions so both you girls don’t end up pregnant. We can’t have both nurses gone at the same time.” On July 10, Fjelsta told Deanne Zogg she was pregnant. On July 23, Deanne Zogg gave Fjelsta an unfavorable written six-month performance review that placed her on ninety-day probation. Among other criticisms, the review noted that Fjelsta had failed to follow proper sterile procedures during a recent surgery.
On August 11, Fjelsta delivered a lengthy written response to the negative six-month review. This letter addressed many criticisms in the review but not Fjelsta’s alleged failure to follow proper sterile procedures during the recent surgery. Instead, the letter’s “final rebuttal” returned to a subject Fjelsta and Deanne Zogg had previously discussed — whether the clinic should change its policy of reusing a syringe with a new sterile needle attached to draw medication from a multi-dose vial and then using that multi-dose vial with other patients. Fjelsta’s letter reiterated her view that this practice was inappropriate “even with excellent technique” and stated:
*808 I cannot and will not accept your policy for the use of multi-dose vials.... I will continue to dispose of these contaminated multi-dose vials, as I cannot knowingly inject a patient with medication contaminated by other patients’ blood products.... The office procedure on [multi-dose vials] as you have instructed me violates Minnesota Rule 6950.1060 Subp. 2A_ I do believe that I am very knowledgeable when it comes to the many aspects of sterile procedures and the improper use of [multi-dose vials] that occurs in this office needs to be rectified now.... I would like to ... discuss further this evaluation and also set up corrective action plan, as you seem [sic] fit.
Deanne Zogg reviewed Fjelsta’s letter and gave it to Dr. Zogg. Less then thirty minutes later, he summoned Fjelsta to his office and asked her to leave for the day. Fjelsta asked why; Deanne Zogg said it was for “insubordination.” When Fjelsta refused to leave, Dr. Zogg escorted her from the clinic, forcibly though not painfully, and locked the outside door. According to affidavits submitted by two clinic employees, Deanne Zogg then called a meeting and informed staff that Fjelsta had been terminated. Later that day or the next, Fjelsta sent Zogg Dermatology an email asking the clinic to confirm that she had been terminated. She also contacted two Peres officials seeking to clarify her status. 2 After checking with Deanne Zogg, they advised Fjelsta she was not terminated. On August 13, Deanne Zogg sent Fjelsta an e-mail advising that she was still an employee and instructing her to report to work the following Tuesday. Fjelsta did not return to work. This lawsuit followed.
II. Discussion
A. Whistleblower Act.
Fjelsta first argues that the district court erred in dismissing . her claim under Minn.Stat. § 181.932, subd. 1(a), which provides that an employer may not discharge or punish an employee because the employee “in good faith, reports a violation or suspected violation” of any state law or rule. To recover on this claim, Fjelsta must prove that Zogg Dermatology took adverse employment action against her because she engaged in statutorily protected conduct, here, making a good faith report of a suspected violation of law.
See Nichols v. Metro. Ctr. for Indep. Living, Inc., 50
F.3d 514, 516 (8th Cir.1995). There is no question Fjelsta submitted a letter asserting a violation of a specific state rule, Minn. R. 6950.1060, subp. 2A. “The central question is whether the report [was] made for the purpose of blowing the whistle, i.e., to expose an illegality.”
Obst v. Microtron, Inc.,
The district court dismissed this claim on the ground that Fjelsta’s letter was not a report for purposes of § 181.932, subd. 1(a), because “there is no evidence in the record to demonstrate that Fjelsta made the report for the purpose of exposing an illegality.” We agree. Fjelsta testified that, before writing the letter, she discussed her concerns about the clinic’s multi-dose vial policy in a “lengthy conversation” during which Deanne Zogg explained why the clinic’s policy was proper, and Fjelsta questioned that explanation. Thus, Zogg Dermatology was well aware of the alleged violation before Fjelsta wrote the letter. In these circumstances, “it would seem that there was no whistle to blow.”
Obst,
Fjelsta argues that, for summary judgment purposes, the district court was required to accept as true her testimony that she wrote the letter in a good faith effort to expose her employer’s wrongdoing. We disagree. “Whether an employee made a report in ‘good faith’ is a question of fact, but the court may determine as a matter of law that certain conduct does not constitute a report for purposes of the Whistleblower Act.”
Cokley v. City of Otsego,
Fjelsta’s appeal brief also quotes another provision of the Whistleblower Act, § 181.932, subd. 1(c), which prohibits an employer from punishing an employee who “refuses an employer’s order to perform an action that the employee has ‘an objective basis in fact to believe violates any state or federal law,” and who “informs the employer that the order is being refused for that reason.” This is a distinct claim, and Fjelsta’s letter response could be read as falling within the purview of this provision by declaring her refusal to obey the clinic’s multi-dose vial policy. However, Fjelsta’s complaint did not assert this claim, her summary judgment brief to the district court did not raise the issue, and her briefs on appeal did not develop the argument. Therefore, we decline to consider the issue, both because it would present factual issues not resolved in the district court, and because of the “inherent injustice” of allowing a party to raise a claim or legal theory for the first time on appeal.
See Von
Kerssenbrock-
Praschma v. Saunders,
B. Pregnancy Discrimination.
The Pregnancy Discrimination Act amended Title VII to provide that discrimination “on the basis of pregnancy” is a form of sex discrimination.
See
42 U.S.C. §§ 2000e(k), 2000e-2(a)(l);
Lang v. Star Herald,
A Title VII plaintiff may avoid summary judgment by presenting' “direct evidence” of sex discrimination, that is, “evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.”
Griffith v. City of Des Moines,
A Title VII plaintiff may also avoid summary judgment by producing “sufficient circumstantial evidence of illegal discrimination under the
McDonnell Douglas
paradigm.”
Griffith,
McDonnell Douglas teaches that the plaintiff in a discharge case may satisfy [her] prima facie case burden by showing (i) that [she] belongs to a protected class; (ii) that [she] was qualified for the job; (iii) that [she] was discharged; and (iv) that, after [her] discharge, [she] was replaced by a person with similar qualifications. Absent a showing that plaintiff was replaced, [she] may still meet [her] flexible prima facie case burden.... In reduction-of-force cases, we ... require[] “some additional showing” that discrimination was a factor in the termination.
Putman v. Unity Health Sys.,
C. Defamation.
Fjelsta next argues that the district court erred in dismissing her defamation claim. Under Minnesota law, a defamation plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff to a third party in an unprivileged context, and that the statement harmed the plaintiffs reputation in the community.
See Weinberger v. Maplewood Review,
The district court dismissed this claim on the ground “there is no evidence in the record that Defendants made defamatory statements about Fjelsta.” The issue is not, as defendants suggest, whether Chris-tianson’s affidavit lacked sufficient specificity. Deanne Zogg’s testimony confirmed that her explanation to the staff linked concern about Fjelsta’s job performance with patient safety; comments accusing a
*811
nurse of endangering patient safety would clearly tend to harm her reputation in the community. Rather, the issue is whether Deanne Zogg’s statements can be reasonably interpreted, in the context within which they were made, as setting forth or implying a damaging, “provably false statement of fact.”
McClure v. Am. Family Mut. Ins. Co.,
Saying that Fjelsta had endangered a patient’s safety would be a statement of fact that could be proved either true or false. But Deanne Zogg did not make such a statement. She simply said that Fjelsta was sent home because the clinic had job performance concerns related to patient safety. Fjelsta readily admits that she and the clinic were at odds over issues of patient safety. In fact, Fjelsta memorialized one dispute in her own writings. Deanne Zogg’s statement, then, was facially true in that the clinic had job performance concerns related to patient safety. As such, it can only be actionable as defamation if it falsely implied that Fjelsta endangered patient safety.
Here, we conclude the statement cannot reasonably be interpreted as falsely claiming or implying that Fjelsta endangered patient safety.
Geraci v. Eckankar,
D. Battery.
Finally, Fjelsta argues that the district court erred when it dismissed her battery claim on the grounds (i) that the Minnesota Workers Compensation Act applies because Brian Zogg’s alleged battery occurred during the course of Fjelsta’s employment, and (ii) that the assault exception to Workers Compensation Act exclusivity does not apply because Fjelsta submitted no evidence that Brian Zogg’s action was motivated by personal animosity. See Minn.Stat. §§ 176.011, subd. 16, 176.031;
McGowan v. Our Savior’s Lutheran Church,
The judgment of the district court is affirmed.