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The Honorable David S. Doty, United States 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a Delaware not for profit organization, * [UNPUBLISHED]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’s1

 adverse grant of summary

judgment on his claim against his former employer, American Tissue Services

Foundation (ATSF), for whistleblower retaliation under the Minnesota Whistleblower

Act, Minn. Stat. § 181.932. The district court determined Noyes failed to set forth a

prima facie case of retaliation, saying “there is insufficient evidence showing that
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ATSF terminated Noyes for engaging in statutorily protected conduct to create a

genuine issue [] of material fact as to causation.” 

“To establish a prima facie case of retaliatory 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 statutorily 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 refused to speculate by inferring decision-maker

knowledge of Noyes’s report and thereby inferring causation. Upon de novo review

of the record, viewing that record in the light most favorable to Noyes, see Jacob-Mua

v. Veneman, 289 F.3d 517, 520 (8th Cir. 2002) (standard of review), and having

carefully considered the parties’ arguments, we conclude summary judgment was

properly granted for the reasons stated by the district court. 

Noyes also argues the district court erroneously 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). 
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Noyes filed a motion to strike ATSF’s argument that Noyes failed to present

evidence establishing he engaged in a protected activity. Noyes contends ATSF failed

to preserve the issue by filing a cross-appeal. 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 argument may involve an attack upon the

reasoning of the lower court”). We deny Noyes’s motion to strike.

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The judgment of the district court is affirmed. See 8th Cir. R. 47B.2

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