April 2002 

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Peter Gray is an associate in the Litigation Department of Rider, Bennett, Egan & Arundel, LLP. He focuses his practice in the areas of employment litigation and appellate practice.

In a pair of opinions handed down within weeks of each other at the start of this year, Anderson-Johanningmeier v. Mid-Minnesota Women's Center, Inc.,1 and Abraham v. County of Hennepin,2 the Minnesota Supreme Court made life a good deal easier for plaintiffs bringing suit under Minnesota Statutes Section 181.932--the so-called "Whistleblower Act."

A couple of the decision's holdings were neither particularly surprising nor controversial.  Thus, in Abraham, the Supreme Court concluded that the Whistleblower Act's remedies are not exclusive (unlike the Minnesota Human Rights Act, which expressly provides that its remedies are); and that a whistleblower pleading does not have to specifically identify the statute or rule allegedly violated (a conclusion consistent with the principles of notice pleading). 

However, two of the Court's conclusions may have surprised some people, and bear more extensive consideration. Specifically, in Anderson-Johanningmeier and in Abraham, the Supreme Court concluded as follows:

• A whistleblower plaintiff seeking only money damages has a constitutional right to a jury trial; and
• The Whistleblower Act's coverage is not limited to instances where a plaintiff "blows the whistle" about a violation (or suspected violation) of a law implicating public policy.

Further, in at least one aspect of these decisions -- the holding allowing damages-only whistleblower plaintiffs a jury trial -- the Court may have brought about an across-the-board expansion of the Minnesota wrongful discharge law.

The Minnesota Constitution guarantees that "[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy."  Minn. Const. Art. I, § 4. As explained by the Supreme Court, "this provision is intended to continue, unimpaired and inviolate, the right to trial by jury as it existed in the Territory of Minnesota when our constitution was adopted in 1857."3

In Abraham, the district court denied the employee-plaintiffs' request for a jury trial.  On appeal, the Minnesota Court of Appeals affirmed. In so doing, the Court of Appeals concluded that for a constitutional right to trial by jury to exist, "the claim must be an action at law and must have existed when the state constitution was adopted."4  Applying these principles, the Court of Appeals concluded that whistleblower plaintiffs are not entitled to a jury trial because a whistleblower claim did not exist until the Whistleblower Act was enacted in 1987, 130 years after Minnesota adopted its constitution.5

On further review, the Minnesota Supreme Court reversed this aspect of the Court of Appeals' decision.  According to the Supreme Court, the Court of Appeals had misstated the inquiry.  As the Supreme Court explained,

This court has not held that only those causes of action that were identified in 1857 as causes of action at law carry today an attendant right to jury trial.  Rather, the constitutional right exists for the same type of action for which a jury trial existed when the constitution was adopted, any cause of action at law.6

Accordingly, the Supreme Court focused on a broader inquiry than that prescribed by the Court of Appeals: specifically, whether a whistleblower claim seeking only legal rather than equitable relief--i.e., a claim seeking money damages only--is of the "same type" as actions for which a jury trial existed at the time of the state constitution's adoption.  The Supreme Court answered this question affirmatively.  In the Supreme Court's view, a "whistleblower" claim seeking money damages only is essentially a tort action for "wrongful discharge."  As such, this "wrongful discharge tort" is an action at law.  Further, the Supreme Court emphasized that at common law, Minnesota has recognized wrongful discharge claims (specifically claims for breach of employment contract) since as early as 1861.

In sum, therefore, the Supreme Court determined that a whistleblower claim seeking damages only is a claim to which the constitutional right to trial by jury attaches, because it is analogous to common law wrongful discharge claims that have existed in Minnesota since the time of adoption of the State's constitution. This is potentially a significant expansion of Minnesota employment law.  After all, other Minnesota employment claims for which no jury trial is statutorily provided--e.g., discrimination and retaliation claims arising under the Minnesota Human Rights Act ("MHRA") or workers compensation retaliation claims arising under Minnesota Statutes Section 176.82--can also be fairly characterized as "tort actions for wrongful discharge."  Extended to its logical conclusion, the Abraham holding indicates that plaintiffs seeking damages only under these statutes are constitutionally entitled to a jury trial in state court--regardless of any contrary statutory provisions which, naturally, must give way to the superior weight of constitutional law.

Andrew E. Tanick is a partner in the Litigation Department of Rider, Bennet, Egan & Arundel, LLP. He has practiced in the area of employment law for 15 years.

By its terms, the Whistleblower Act provides that:

[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee ... because:

(a) the employee ..., in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official ....7

A requirement that the "law or rule" at issue implicate "public policy" appears nowhere within the statutory text. In Anderson- Johanningmeier, the Minnesota Supreme Court declined to read such a "public policy" element into the statute.

In so doing, the Supreme Court resolved an issue that had bedeviled lower courts and litigants since the Whistleblower Act was enacted in 1987.  Indeed, the confusion actually began before the statute's enactment. Specifically, in 1986, the Minnesota Court of Appeals held that, at common law, "an employer is liable ... if an employee is discharged for reasons that contravene a clear mandate of public policy."8  The Supreme Court granted review of the Court of Appeals' decision.  However, during the pendency of the appeal, the Legislature enacted the Whistleblower Act.  In light of the statute's enactment, the Supreme Court affirmed the Court of Appeals' decision, stating merely that, "we no longer have before us the policy question of whether or not Minnesota should join the three-fifths of the states that now recognize, to some extent, a cause of action for wrongful discharge."9 

What the Supreme Court left unaddressed in 1987 was whether the Whistleblower Act implicitly requires a plaintiff to base his claim on a reported violation of a law that implicates public policy.  Nor did the Court squarely address--let alone resolve--that question in several subsequent "whistleblower" opinions issued before this year.10  In a series of opinions, however, the Minnesota Court of Appeals and the federal courts did read a "public policy" requirement into the Whistleblower Act.11  As the Court of Appeals explained in one of these decisions, "[b]ecause interpreting the Whistleblower Act to include a public policy requirement supports Minnesota's careful limitation of at-will employment exceptions to further public interest, we also conclude [the employee's] failure to report a practice that implicates public policy leaves her unprotected by the Whistleblower Act."12

Following the lead of these lower court decisions, the district court in Anderson-Johanningmeier dismissed the plaintiffs' whistleblower claim, concluding that their reported violations of law did not implicate public policy. In an unpublished decision, the Court of Appeals affirmed on this same purported basis.13

On review, the Supreme Court reversed, concluding that a whistleblower plaintiff need not establish that her reported violation of law implicates public policy.  The Supreme Court employed a straightforward textual analysis to reach this result; the statute itself contains no explicit "public policy" nexus, and the Supreme Court declined to read one into the statutory text.  In a strong and pointed concurrence, Chief Justice Blatz gave voice to some of the reservations that no doubt disinclined the Court to impose a "public policy" element into whistleblower claims:

The respondents contend that a public policy requirement is needed because, without one, an employee's "mere internal dispute over matters of office and personnel management can easily be recast as a [whistleblower] claim," forcing courts into the role of "super-personnel departments." That, indeed, is a risk that may loom on the horizon. But standing in its shadows is a risk that I believe could present even greater challenges to the judiciary -- and that is the risk of being saddled with the ultimate responsibility for determining what employers' decisions contravene "a clear mandate of public policy."

Recognizing that much legislation is hotly contested, are the courts to sit as a "super legislature" to pass muster on the worthiness of a law? And in divining what laws in fact do not embody public policy, will the courts become an unwitting partner with a minority of legislators who were unsuccessful in their attempts to block a bill's passage? These concerns -- in conjunction with an appreciation that what one court may view as "pork" may be gruel in the eyes of legislators working on behalf of their constituents -- give me great pause. While we will defer to the legislature's wisdom in deciding how expansive or narrow it wishes to make the Whistleblower Act, flares must be lit to mark the perilous road that the courts will have to maneuver if a public policy provision is adopted.14

So, does the Supreme Court's decision in Anderson-Johanningmeier mean that an employee can base a viable whistleblower claim on trivial and de minimis legal violations, or violations of patently inane laws?  After all, until a repealer statute enacted last year, Minnesota law banned itinerant carnivals, required employees of the State's division of emergency management to take McCarthyesque loyalty oaths, and mandated that restaurants serving margarine instead of butter stamp "every bill of fare ... in letters not smaller than 8-point bold-faced Gothic capitals, the words 'oleomargarine used in place of butter.'"15

Perhaps not.  The Whistleblower Act still contains a requirement that the reported violation of law be made in "good faith."  While this requirement, as written in the statute, applies to the report, and not to the nature of the law at issue, the Supreme Court in Anderson- Johanningmeier emphasized that this "good faith" requirement "serves to limit the nature of actionable claims."16  In so pronouncing, the Court cited to decisions declining to apply the federal Whistleblower Protection Act where the alleged violation of law "was of such a trivial nature that [the whistleblower] could not have had a reasonable belief that [the employer] was violating a law, rule or regulation within the meaning of the [federal Whistleblower Protection Act]."17  Savvy defense counsel will no doubt seize upon this distinction when litigating whistleblower claims, arguing that the ultimate result of Anderson-Johanningmeier is purely semantic, shifting the focus from "public policy" to "good faith."

That being said, however, there can be little doubt that the Anderson-Johanningmeier decision has broadened the scope of the protection afforded under the Whistleblower Act, by making it clear that the Court will not read into the statute a "public policy" requirement that does not exist in the statutory text.  This liberal interpretation of the statute's coverage, together with Abraham's provision for trial by jury in whistleblower "damages-only" cases, will likely make the Whistleblower Act a much more favored plaintiff's cause of action in the months and years to come.

1 637 N.W.2d 270 (Minn. 2002).

2 639 N.W.2d 342, 2002 WL 240334 (Minn., Feb. 7, 2002).

3 Abraham, 639 N.W.2d 342, 2002 WL 240334, at *4.

4 Abraham v. County of Hennepin, 622 N.W.2d 121, 126 (Minn. App. 2001) (emphasis in original), aff'd in part, rev'd in part 639 N.W.2d 342, 2002 WL 240334 (Minn., Feb. 7, 2002).

5 Id. at 126.

6 Abraham, 639 N.W.2d 342, 2002 WL 240334, at *5 (emphasis in original).

7 Minn. Stat. § 181.932, subd. 1.

8 Phipps v. Clark Oil & Refining Corp., 396 N.W.2d 588, 592 (Minn. App. 1986), aff'd on other grounds, 408 N.W.2d 569 (Minn. 1987) (emphasis added).

9 Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 571 (Minn. 1987).  The Supreme Court did not explain how the employer's conduct could have been controlled by a statute that had not yet been enacted, leading many to conclude that the Court had implicitly upheld the Court of Appeals' adoption of a common law cause of action, over and above the claim created by the new statute.  See, e.g., G. Laurie & A. Tanick, "Whistle While You Work--The Law of Whistleblowing in Minnesota," Hennepin Lawyer, Sept.-Oct. 1991.

10 See Obst v. Microtron, Inc., 614 N.W.2d 196 (Minn. 2000); Hedglin v. City of Willmar, 582 N.W.2d 897, 901-02 (Minn. 1998); Williams v. St. Paul Ramsey Medical Ctr., Inc., 551 N.W.2d 483 (Minn. 1996).

11 See Donahue v. Schwegman, Lundberg, Woessner & Kluth, P.A., 586 N.W.2d 811 (Minn. App. 1998); Vonch v. Carlson Cos., 439 N.W.2d 406, 407 (Minn. App. 1989); Nichols v. Metro. Ctr. for Indep. Living, Inc., 50 F.3d 514, 517 (8th Cir. 1995); Morrow v. Air Methods, Inc., 884 F. Supp. 1353, 1358 (D. Minn. 1995); Thompson v. Campbell, 845 F. Supp. 665, 675 n. 9 (D. Minn. 1994); Petroskey v. Lommen, Nelson, Cole & Stageberg, P.A., 847 F. Supp. 1437, 1447 (D. Minn.), aff'd, 40 F.3d 278 (8th Cir. 1994).

12 Donahue, 586 N.W.2d at 814.

13 Anderson-Johanningmeier v. Mid-Minnesota Women's Center, Inc., No. C0-00-164, 2000 WL 1869555 (Minn. App., Dec. 26, 2000).

14 Anderson-Johanningmeier, 637 N.W.2d 270, 277-78 (Blatz, C.J., concurring).  Although not mentioned by Chief Justice Blatz, the "floodgates" concern arguably has no merit in light of the fact that to succeed, a plaintiff still has to prove that she was terminated in retaliation for "blowing the whistle" on a violation of law, and not merely that she was "wrongfully" terminated.  In the absence of such whistleblowing conduct, the terminated employee still cannot state a claim.

15 See January 31, 2002 Daily Roundup, Star-Tribune, April 12, 2001; There ought not to be a LAW, Star-Tribune, January 23, 2001.

16 637 N.W.2d at 277.

17 Frederick v. Dep't of Justice, 73 F.3d 349, 353 (Fed. Cir. 1996); see also Herman v. Dep't of Justice, 193 F.3d 1375, 1381 (Fed. Cir. 1999).