1 The Honorable David S. Doty, United Stat es District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1445

___________ Kevin Noyes, individually, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. American Tissue Services Foundation, * a Delaware not for profit organiza tion, * [UNPUBLISHED] * Appellee. * *

___________ Submitted: November 14, 2008 Filed: February 10, 2009

___________ Before MURPHY, HANSEN, and RILEY, Circuit Judges.



## ______________ PER CURIAM. Kevin Noyes (Noyes) appeals the district court’s 1 adverse grant of summary judgment on his claim against his formeremployer, American Tissue Services Foundation (ATSF), for whistleblower retaliation under the Minnesota Whistleblower Act, Minn. Stat. § 181.932. The district c ourt determined Noyes failed to set forth a prima facie case of retaliation, saying “the re is insufficient evidence showing that-2- ATSF terminated Noyes for engaging in st atutorily protected conduct to create a genuine issue [] of material fact as to causation.”
“To establish a prima facie case of re taliatory discharge, the employee must show: (1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3 ) a causal connection between the two.” Cokley v. City of Otsego , 623 N.W.2d 625, 630 (Minn. Ct. App. 2001) (quotation omitted). The district court found “Noyes made a stat utorily protected report,” and Noyes’s termination was an adverse employment action. However, approximately four to five months separated Noyes’s report and the adverse employment action, and without more evidence, the district court refuse d to speculate by inferring decision-maker knowledge of Noyes’s report and thereby inferring causa tion. Upon de novo review of the record, viewing that record in th e light most favorable to Noyes, see Jacob-Mua v. Veneman , 289 F.3d 517, 520 (8th Cir. 2002) (s tandard of review), and having carefully considered the parties’ argumen ts, we conclude summary judgment was properly granted for the reasons stated by the district court.
Noyes also argues the district court er roneously denied Noyes’s former coplaintiffs leave to amend the complaint to assert punitive damages. Because the district court properly granted summary judgment on Noyes’s claims, the punitive damages issue is moot. See , e.g. , Misischia v. St. John’s Mercy Health Sys. , 457 F.3d 800, 805-06 (8th Cir. 2006) (explaining, where the entire lawsuit was properly dismissed with prejudice, the issue of whether the district court erred in denying a motion to disqualify attorneys was moot).2 Noyes filed a motion to strike ATSF’s argument that Noyes failed to present evidence establishing he engaged in a prot ected activity. Noyes contends ATSF failed to preserve the issue by filing a cross-app eal. ATSF was not required to cross-appeal. See United States v. Am. Ry. Express Co. , 265 U.S. 425, 435 (1924) (explaining “the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his ar gument may involve an attack upon the reasoning of the lower court”). We deny Noyes’s motion to strike. -3- The judgment of the district court is affirmed. See 8th Cir. R. 47B. 2

______________________________