Colleen Auer v. City of Minot

United States Court of Appeals

For the Eighth Circuit

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No. 17-1535

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Colleen M. Auer

lllllllllllllllllllllPlaintiff - Appellant

v.

City of Minot

lllllllllllllllllllllDefendant - Appellee

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No. 17-1943

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Colleen M. Auer

lllllllllllllllllllllPlaintiff - Appellant

v.

City of Minot

lllllllllllllllllllllDefendant - Appellee

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Appeals from United States District Court

for the District of North Dakota - Bismarck

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Submitted: April 9, 2018

Filed: July 19, 2018

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Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

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STRAS, Circuit Judge.

This is the second of what will be at least three decisions from this court arising

out of Colleen Auer’s one-month stint as city attorney for Minot, North Dakota. See

Auer v. Trans Union, LLC, 834 F.3d 933 (8th Cir. 2016); Auer v. CBCInnovis, Inc.,

No. 17-2413 (submitted Apr. 9, 2018). In this installment, Auer accuses the city of

firing her for reporting harassment and discrimination. She also claims the city

retaliated against her for speaking out at a city-council meeting and unfairly

besmirched her professional reputation. Because we conclude Auer’s harassment

allegations were unprotected and her remaining claims are meritless, we affirm the

district court’s1 grant of summary judgment to the city.

I.

About three weeks into her one-year probationary term as city attorney, Auer

sent a “Notice and Demand” to the president of the city council, the interim city

manager, and the city’s human-resources director. In the notice, Auer accused the

interim city manager, Cindy Hemphill, of “unlawful harassment based on sex.” Auer

claimed Hemphill had made impossible demands on certain aspects of her work,

prevented her from performing other key duties, and repeatedly required her to act

against her better judgment as an attorney. As proof that this alleged mistreatment

1

The Honorable Daniel L. Hovland, Chief Judge, United States District Court

for the District of North Dakota.

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was sex-based, Auer recounted a meeting, held two days before she sent the notice,

at which Hemphill had raised concerns about Auer’s performance and her interactions

with colleagues. According to Auer, Hemphill revealed her bias by comparing Auer

to the previous city attorney, who was a man.

The mayor directed three members of the city council, including the council

president, to investigate. The council members conducted interviews, received a

written response from Hemphill, and filed a report concluding that “no harassment

based upon sex occurred.” The mayor agreed and closed the case. Hemphill fired

Auer the next day, with the blessing of the mayor and the council president.

The city council met a few days later. When the council president opened the

floor to “other business,” Auer stood and accused Hemphill of violating state and

local law by firing her without first consulting the council. Hemphill defended her

decision, including the procedure she used. The council then voted unanimously to

“ratify and approve” Auer’s termination. Afterward, when council members asked

why Auer had been fired, the city clerk sent them copies of Auer’s notice, Hemphill’s

written response, and the report the mayor had received. When local news reporters

asked the council president about Auer’s termination, he mentioned insubordination

as the reason for the decision.

Auer sued and eventually advanced three theories of liability: (1) the city fired

her in retaliation for reporting illegal sex-based harassment and discrimination;

(2) the city unfairly tarnished her professional reputation without giving her a chance

to defend herself; and (3) the city retaliated against her for publicly challenging the

process that led to her termination. The district court granted summary judgment to

the city. On appeal, Auer principally argues that she was entitled to present her

theories to a jury.

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II.

First, a detour. In addition to her substantive claims, Auer appeals the district

court’s denial of a motion seeking to sanction the city for its alleged malfeasance in

losing evidence. According to Auer, she was entitled to a presumption that the lost

evidence proved her allegations.2 The court held that the grant of summary judgment

on the merits mooted Auer’s motion. This put the cart before the horse. After all, if

Auer was entitled to the presumption she sought, it was premature to grant summary

judgment without evaluating whether the presumption itself could create a genuine

dispute of material fact on at least some of Auer’s claims.

Even so, Auer is not entitled to relief. Precisely because deciding a case based

on hypothesized evidence is strong medicine, Federal Rule of Civil Procedure

37(e)(2)(A) expressly states that an adverse presumption requires a finding that

electronically stored information was lost because one party “acted with the intent to

deprive another party of the information’s use in the litigation.” See also Greyhound

Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (“The ultimate focus for

imposing sanctions for spoliation of evidence is the intentional destruction of

evidence indicating a desire to suppress the truth . . . .”).

Auer did not present sufficient evidence of this serious and specific sort of

culpability. She supported her request with allegations that incriminating voicemails,

emails, and other electronic communications were lost because the city failed to

properly search some computers, tablets, and phones; waited too long to search

others; and generally failed to take basic steps necessary to find and preserve files that

2

Auer also sought permission to search for evidence she thinks was never lost

but was simply hard to find, such as deleted emails that might still be present in the

city’s electronic archives. The district court was within its discretion to deny her

request, which was undeveloped and unsupported by citations to authority. Cf., e.g.,

United States v. Sigillito, 759 F.3d 913, 933 (8th Cir. 2014).

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could be relevant to her case. Still, her allegations would at most prove negligence

in the city’s handling of electronic information, not the sort of intentional, bad-faith

misconduct required to grant an adverse presumption. See Stepnes v. Ritschel, 663

F.3d 952, 965 (8th Cir. 2011) (noting that “[s]evere spoliation sanctions, such as an

adverse inference instruction, are only appropriate upon a showing of bad faith”).

To be sure, intent can be proved indirectly and Auer did not need to find a

smoking gun before she could seek sanctions against the city. See Morris v. Union

Pac. R.R., 373 F.3d 896, 901–02 (8th Cir. 2004). But without even circumstantial

evidence that city personnel had knowledge that relevant files were being lost (if

indeed they were), the record cannot support a finding that the city “inten[ded] to

deprive” Auer of information she could have used in this case. Fed. R. Civ. P.

37(e)(2); cf. Morris, 373 F.3d at 902–03 (holding that it was improper to instruct the

jury it could assume missing evidence was unfavorable to a party when the record did

not support an inference that the party “consciously permitted” its destruction). The

relief Auer sought was therefore unavailable as a matter of law.

III.

On to the centerpiece of the case: the district court’s grant of summary

judgment to the city. In light of our decision to uphold the denial of Auer’s motion

for sanctions, we evaluate whether there is a genuine dispute of material fact on the

evidence before the district court on summary judgment. Our review is de novo.

Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909, 911 (8th Cir. 2011).

A.

Two of Auer’s claims rest on the premise that the city fired her in retaliation

for filing the “Notice and Demand” with the president of the city council. Federal and

North Dakota law both prohibit firing an employee for opposing an unlawful

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employment practice. 42 U.S.C. § 2000e-3(a); N.D. Cent. Code § 34-01-20(1)(a).

Although protection under both laws does not depend on proving the illegality of the

complained-of conduct, neither statute applies unless the employee reasonably

believes the conduct was illegal.3 See Wallace v. DTG Operations, Inc., 442 F.3d

1112, 1118 (8th Cir. 2006), overruled on other grounds by Torgerson v. City of

Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc); Opp v. Source One Mgmt., Inc.,

591 N.W.2d 101, 108 (N.D. 1999).

The allegations in Auer’s notice were unreasonable. Auer’s only articulated

basis for concluding that she was experiencing sex-based harassment was that

Hemphill unfavorably compared her work style to the previous city attorney. We

cannot infer bias from so little. Auer was a new employee who was, at least in

Hemphill’s view, struggling with the scope of her responsibilities and her role within

city government. Advising her to try an approach that had worked for her

predecessor was a sensible management tactic. Without more, the mere fact that

Auer’s predecessor happened to be male does not transform an ordinary professional

interaction into discrimination or harassment. Moreover, and more to the point, it

would be unreasonable to think it did.

Over the course of the litigation, Auer shifted to a different (and arguably

contradictory) theory of sex-based mistreatment. She now claims that Hemphill

engaged in sex stereotyping by suggesting she should be more approachable, more

open to feedback, and less aggressive. See generally Lewis v. Heartland Inns of Am.,

L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010) (recognizing sex stereotyping as a form

of discrimination). We need not decide whether it would be reasonable to base a

3

Auer insists that the North Dakota statute protects her because the purpose of

her notice was to expose illegality. This fact, even if true, only gets her partially

there. A whistle-blowing purpose is only one part of proving retaliatory discharge

under N.D. Cent. Code § 34-01-20(1)(a). See Dahlberg v. Lutheran Soc. Servs. of

N.D., 625 N.W.2d 241, 254–55 (N.D. 2001).

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sex-stereotyping claim on such comments, because Auer’s new theory has a more

fundamental flaw: she never made a report of sex stereotyping, so such a report could

not have been the reason the city fired her. See, e.g., Wallace, 442 F.3d at 1119 (“The

plaintiff [in a retaliation case] must demonstrate that he or she took part in protected

conduct . . . and that there exists a causal nexus between the protected conduct and

the adverse action.”); accord Opp, 591 N.W.2d at 108.

To be sure, Auer’s notice mentions that Hemphill occasionally commented

upon her demeanor and work “style.” But nowhere does it suggest that Hemphill’s

comments were a form of sex stereotyping. Rather, until Auer filed her lawsuit, her

lone theory was that Hemphill’s criticisms and the comparisons to her male

predecessor were a veiled suggestion that a man would be better suited to the position

of city attorney.4 Because the city could not have discharged Auer in retaliation for

something she never reported, her sex-stereotyping theory fares no better than her

original theory.

B.

Auer’s next claim sounds in due process. The sole basis for this claim is that

Auer suffered reputational harm from the allegedly false statements about her job

performance and termination in the affidavits accompanying the city’s

summary-judgment motion. See, e.g., Putnam v. Keller, 332 F.3d 541, 546 (8th Cir.

2003).

4

Auer has tried to retroactively revise her original allegations in other ways,

such as by claiming she reported (and was fired for reporting) additional illegal acts

by Hemphill. These unsupported reinterpretations do not control our analysis. We

can read the notice ourselves and do not owe Auer deference when she tells us what

it says, notwithstanding that she originally wrote it. See African Am. Voting Rights

Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1353 (8th Cir. 1995) (rejecting

plaintiffs’ “revised characterization” of their complaint).

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Auer cites no authority for the novel proposition that a defendant in a civil

action can violate due process simply by submitting evidence in court. Nor is there

any authority requiring a litigant to offer a name-clearing hearing or other

out-of-court procedure to test the veracity of its evidence. Indeed, imposing such a

burden “would penalize forthright and truthful communication . . . between litigants.”

Bishop v. Wood, 426 U.S. 341, 348–49 (1976). And it would make it all but

impossible for a public employer to effectively defend itself in litigation. Public

employers would face the difficult choice of either withholding evidence to avoid the

risk of impugning the plaintiff’s reputation or facing potential liability for using it.

Nothing requires public employers to make such a choice. See Gentile v. Wallen, 562

F.2d 193, 198 (2d Cir. 1977) (“In an adversary setting, the parties must be given

latitude to present their case.”).

Even aside from the lack of legal support for Auer’s theory, the affidavits could

not have actually caused her reputational injury. Auer claims the city damaged her

reputation around the time she was fired, but the city did not submit the affidavits

until long afterward, so just as a nonexistent sex-stereotyping claim could not have

caused Auer’s termination, statements in the affidavits could not possibly have caused

her reputational injury. See Bishop, 426 U.S. at 348 (“[S]ince the [challenged]

communication was made in the course of a judicial proceeding which did not

commence until after petitioner had suffered the injury for which he seeks redress, it

surely cannot provide retroactive support for his claim.”); Singleton v. Cecil, 176 F.3d

419, 429 (8th Cir. 1999) (en banc). This claim too fails as a matter of law.

C.

Auer’s final claim is that the city retaliated against her for exercising her First

Amendment right to speak out against her termination—a matter of public

concern—at the city-council meeting. See, e.g., Davison v. City of Minneapolis, 490

F.3d 648, 655 (8th Cir. 2007). Auer first adopted this theory in response to the city’s

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summary-judgment motion. Even assuming Auer properly raised this theory and that

the city council’s vote to “ratify and approve” her termination resulted in some

additional harm, she still had to present sufficient evidence at summary judgment to

support a finding that her speech was a substantial or motivating factor in the

council’s decision. See id. at 654–55.

Auer’s only evidence of retaliation was that the city council’s vote happened

shortly after she spoke. But “more than a temporal connection between the protected

conduct and the adverse employment action is required to present a genuine factual

issue on retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.

1999) (en banc). And inferring causation from timing would be particularly

inappropriate here. After Auer spoke, Hemphill explained why she fired Auer

without first consulting the city council. Given that Hemphill’s explanation occurred

even closer in time to the city council’s decision, an obvious alternative explanation

for the decision exists. Accordingly, there is no basis for disturbing the district

court’s grant of summary judgment to the city.

IV.

A few loose ends remain. Auer seeks to challenge the district court’s denial

of her motion for additional time to respond to the city’s motion for summary

judgment, but this issue is not properly before us because she did not raise it in her

notice of appeal. See Hallquist v. United Home Loans, Inc., 715 F.3d 1040, 1044–45

(8th Cir. 2013). Auer also argues that the court abused its discretion in awarding

litigation costs to the city, but she forfeited any right to challenge the award by failing

to respond to the city’s motion or otherwise oppose the award before the district

court. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 638–39 (8th Cir. 2007). Finally,

we grant Auer’s unopposed motion to seal certain portions of the record on appeal.

See 8th Cir. R. 25A(h).

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V.

For the foregoing reasons, we affirm the judgment of the district court.

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