This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A16-0849

Julie Childs, 

Appellant, 

vs. 

Fairview Health Services, 

Respondent.

Filed November 28, 2016

Affirmed

Toussaint, Judge

Hennepin County District Court

File No. 27-CV-14-19589

Nicholas G.B. May, Jenny M. Helling, Fabian May & Anderson PLLP, Minneapolis, 

Minnesota (for appellant)

Paul J. Zech, Randi J. Winter, Meggen E. Lindsay, Felhaber Larson, Minneapolis, 

Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and 

Toussaint, Judge. 

 

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Judge

Appellant Julie Childs challenges the district court’s grant of summary judgment 

dismissing her retaliation claim under the Minnesota Whistleblower Act against her former 

employer, respondent Fairview Health Services. Because the district court did not err in 

concluding that Childs failed to offer evidence to prove a prima facie case under the 

Minnesota Whistleblower Act, we affirm the grant of summary judgment dismissing 

Childs’s claims.

D E C I S I O N

On appeal from summary judgment, the reviewing court must determine whether 

there are any genuine issues of material fact and whether the district court erred in applying 

the law. Commerce Bank v. W. Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015). 

The reviewing court must view the evidence in the light most favorable to the party against 

whom judgment was granted. Id.

The Minnesota Whistleblower Act (MWA) prohibits retaliation for:

An employer shall not discharge, discipline, threaten, 

otherwise discriminate against, or penalize an employee 

regarding the employee’s compensation, terms, conditions, 

location, or privileges of employment because:

(1) the employee . . . in good faith, reports a violation, 

suspected violation, or planned violation of any federal 

or state law or common law or rule adopted pursuant to 

law to an employer . . . .

Minn. Stat. § 181.932, subd. 1(1) (2014). Minnesota courts apply the three-step procedure 

set out in McDonnell Douglas to retaliation claims. Cokley v. City of Otsego, 623 N.W.2d 
3

625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001). The McDonnell 

Douglas burden-shifting procedure requiresthe complainant to establish a prima facie case, 

the employer to furnish an answer, and the complainant to rebut that answer. McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802, 807, 93 S. Ct. 1817, 1824, 1826 (1973). To 

establish a prima facie case under the MWA, a plaintiff must show the following three 

elements: (1) that the plaintiff engaged in statutorily protected activity; (2) that the 

employer took adverse employment action; and (3) that there exists a causal connection 

between the two. Cokley, 623 N.W.2d at 630.

The district court determined that Childs failed to present evidence sufficient to

establish all three elements of a prima facie case. The district court concluded that Childs 

did not make a report within the meaning of the MWA, that Childs could not show a causal 

link between her alleged report and ultimate termination, and that Childs failed to 

demonstrate that the reason Fairview provided for her termination—altering timecards 

even after being warned it was illegal—was pretextual. A review of the record reveals that 

no genuine issues of material fact exist. 

Childs argues that caselaw interpreting the term “report” was abrogated by the 

legislature’s amendment of the MWA to add a definition for good faith. The legislature 

amended the MWA in 2013 to define good faith as conduct that is not knowingly false or 

in reckless disregard of the truth. Minn. Stat. §§ 181.931, subd. 4, .932, subd. 3 (2014). 

But the addition of a definition of good faith does not abrogate prior MWA-related 

precedent. “[L]ogically, defining a term that has already been used in a statute for several 

years should clarify rather than substantively change that statute.” Carlson v. Lilyerd, 449 
4

N.W.2d 185, 191-92 (Minn. App. 1989), review denied (Minn. Mar. 8, 1990). Therefore, 

the clarification to the definition of good faith does not erase the common-law 

interpretation of a statutorily protected report, and Childs’s argument fails.

I. Childs did not engage in statutorily protected activity.

We must first address whether Childs engaged in statutorily protected activity. We 

must look at both the alleged report’s content and Childs’s purpose in making the report at 

the time she made it. Gee v. Minn. State Colleges & Univs., 700 N.W.2d 548, 555 (Minn. 

App. 2005). A report must be made for the “purpose of exposing an illegality.” Obst v. 

Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000). We determine whether a document 

constitutes a statutorily defined report as a matter of law. Cokley, 623 N.W.2d at 630.

A. Childs did not write the April 24, 2014 e-mail to expose illegality.

Childs’s first claimed whistleblower report is an April 24, 2014 e-mail. As part of 

Childs’s job, she communicated with her supervisor, Carla Olson, about whether to admit 

certain patients to Fairview’s adolescent chemical dependency lodging program. But in 

Childs’s April 24 e-mail, Childs included both Kathy Knight, Olson’s superior, and Dr. H. 

Berit Midelfort, the medical director of the lodging program, to which Olson reacted in 

what Childs perceived as “a reprimanding tone.” Childs’s following e-mails all attempt to 

justify her inclusion of Knight on the e-mail, including statements to Knight such as,

“[Y]ou have told me in the past that I could always include you in these types of decisions.” 

Childs also discussed how she feared potential personal liability if an unqualified patient 

was admitted, stating that if she had accepted a client that did not meet criteria, “[she]

would certainly be questioned why [she] felt as though [she] could make that decision.” 
5

And when Childs did discuss her concerns about a patient, it was simply to validate why 

she had included Knight and Dr. Midelfort on this e-mail. These facts do not point to a 

motive of exposing illegality, but rather a motive of protecting oneself from potential blame

and justifying the inclusion of superiors on an e-mail. Therefore, this e-mail does not 

constitute statutorily protected conduct.

B. Childs did not write the July 13, 2014 letter to expose illegality.

Childs next argues that a letter she wrote on July 13 was a protected report under 

the MWA. Childs sent this letter to both Knight and Kim Engelhart in human resources. 

In Childs’s opening and closing paragraphs, she discussed her scheduling change and how 

this was “[t]he last straw” in her decision to write the letter. Childs discussed how she had 

had her prior schedule for 15 years, and how this scheduling change would disrupt her 

private practice. Childs said that she “deserve[d] a good explanation for the timing of this 

abrupt schedule change” and that her “wish [was] that the decision to change my work 

schedule be reconsidered.” She also requested in the letter that she be provided with at 

least a six-month period before the change in schedule went into effect so that she could 

adjust her private practice. In the letter, Childs additionally defended herself against her 

employee’s complaints about unavailability, saying that she did not need to “justify why 

[she was] in [her] office.” She discussed how when her staff feels overwhelmed, “they 

want [her] to step in to help them do their jobs” and that she felt like a “scapegoat in an 

overall stressful work environment.” And finally, an overwhelming portion of Childs’s 

letter was a discussion of her relationship with Olson. 
6

When Childs cited potential illegality to expose Olson’s possible misconduct, she 

stated, “Admission of inappropriate clients can create unsafe situations which add stress 

and anxiety to staff who are not trained or equipped to handle these clients.” This concern 

relates more with her staff’s stress leading to her schedule change than a whistleblowing 

situation. Additionally, she stated that “[w]hile [she] always examine[s] any staff concerns, 

some of the staff complaints are a direct result of stressors associated with the changing 

census, very challenging and sometimes inappropriately admitted clients for which they 

are not trained or equipped to deal with.” All of these complaints relate only to violations 

of internal policies, and as a result do not constitute statutorily protected activity. Because 

the motive behind this letter does not stem from reporting illegal activity, this letter is not

a statutorily protected report. 

Childs cannot show statutorily protected activity as her e-mail and letter convey that 

Childs’s motives were to protect herself from potential liability, discuss her unhappiness 

with Olson, and vent about her dissatisfaction with her schedule change, rather than report 

illegal activity.

II. There is no causal connection between Childs’s e-mail and letter and her 

termination.

Because the termination was indisputably an adverse employment action, satisfying 

the second element of a prima facie case, we can move to the final element: a causal 

connection. We have held that along with direct evidence, “an employee may demonstrate 

a causal connection by circumstantial evidence that justifies an inference of retaliatory 

motive.” Cokley, 623 N.W.2d at 632. “Speculation, however, is not circumstantial 
7

evidence.” Id. at 633. While “temporal proximity may support an inference of retaliatory 

motive, . . . usually more than a temporal connection is necessary to create a genuine issue 

of material fact.” Harnan v. Univ. of St. Thomas, 776 F. Supp. 2d 938, 948 (D. Minn. 

2011) (interpreting Minnesota law and ruling a temporal proximity between a report and 

termination of two months, alone, is not enough to show causation). 

Childs sent her letter, the latest of her alleged “reports,” on July 13, 2014, and was 

terminated on August 26, 2014, creating a one-month gap between the conduct and the 

adverse action. But just days before her termination, Childs had been caught altering Y.P.’s 

timecards. This action undermines Childs’s argument of a causal connection, as it is 

intervening, illegal conduct at work. 

Childs altered timecards of employees who were punching in before their start time 

or out after their end time. Y.P. later approached Childs and asked to have every other 

weekend off. To avoid overtime, Childs manipulated Y.P.’s timecards. Childs was warned 

that altering timecards was not okay because all employees had to be paid for all time 

worked. Two weeks before Childs was terminated, Y.P. brought this illegal practice to 

Engelhart’s attention. Engelhart then had a discussion with Olson, Knight, and Engelhart’s 

supervisor and determined that this conduct warranted termination. Childs does not dispute 

the fact that her actions were illegal and exposed Fairview to liability from employees who 

were not being paid for hours worked. Exposing her employer to potential liability caused

Childs’s termination, not her e-mail or letter.

Further evidence that the e-mail and letter did not cause Childs’s termination is that

Knight took immediate action to address Childs’s improper admissions concerns. Knight 
8

asked for the names of the patients about whom Childs was concerned and asked an 

advanced practice registered nurse, certified as a clinical nurse specialist in child adolescent 

psychiatric mental health nursing, to audit these patients. Knight also set up a meeting 

between Childs, Engelhart, and Olson to discuss potential issues with the relationship

between Childs and Olson and the schedule change about which Childs complained in her 

letter. Knight additionally organized a meeting to discuss and create a 90-day plan in 

response to Childs’s concerns.

Childs argues that retaliatory animus ultimately caused her termination. But her 

argument fails. First, her argument that Olson did not want Childs to talk to Knight fails 

because Olson had only asked Childs why she included Knight on an e-mail that should 

only have gone to Olson. Second, Childs argues that she never received the benefit of any 

disciplinary proceedings before her termination, but Fairview does not always conduct 

such proceedings, and has not in the past for such significant violations as falsifying 

timecards because it opens Fairview up to potential liability. And third, Childs argues that 

the 90-day plan was retaliatory, but this plan had been given to other employees and was 

created in response to Childs’s concerns to hopefully get the working relationship between 

Childs and Olson back on track.

Based on the record, a reasonable finder of fact could not conclude that Childs’s

e-mail and letter caused her termination.

III. Childs did not prove that Fairview’s reason for firing her was pretextual.

Even if Childs could have made out a prima facie case, the district court did not err 

in determining that Childs could not show that Fairview’s reason for terminating Childs 
9

was pretextual. Fairview met its burden of showing a non-retaliatory reason for 

termination by arguing that Childs was terminated for altering the timecards illegally 

despite warnings not to.

Childs argues that this reason is pretextual. An employee may show pretext by 

demonstrating that the “employer’s proffered explanation is unworthy of credence.” 

Hamblin v. Alliant Techsystems, Inc., 636 N.W.2d 150, 153 (Minn. App. 2001), review 

denied (Minn. Feb. 19, 2002). Under the McDonald-Douglas framework, an employee 

may also show pretext by showing that “similarly situated employees who did not engage 

in the protected activity were treated more leniently, that the employer changed its 

explanation for why it fired the employee, or that the employer deviated from its policies.” 

Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006). 

First, Childs argues that Fairview’s termination without discipline is evidence of 

pretext. But Fairview does not always have disciplinary proceedings in situations such as 

this. Second, Childs argues that Olson gave her permission to alter Y.P.’s timecards. Olson 

has denied giving such permission. This is a dispute of fact, but not of material fact. Even 

if Olson gave her permission, this information would not negate the fact that Fairview 

would have fired Childs anyway for her illegal actions, and with the new evidence of 

Olson’s misconduct may have additionally fired Olson as well. In addition, when Childs 

first made the claim to Knight that Olson gave her permission to alter the timecards, Knight 

took her claim seriously and allowed her to look for documentary evidence that Childs said 

she had before proceeding with discipline. Childs could not find any evidence that Olson 

gave her permission to alter the timecards. Regardless of whether Olson gave Childs 
10

permission to alter the timecards, Childs’s alterations were illegal and therefore qualify as 

a nonpretextual reason for termination.

Lastly, Childs alleges that Fairview treated other similarly situated employees 

better. A true comparator would be a manager for Fairview who had continued to alter 

timecards after being told the practice was forbidden and who was ultimately terminated 

by either Olson, Engelhart, or Knight. Childs compares herself to Ann Becher-Ingwalson. 

But Becher-Ingwalson had not altered anyone’s timecards, and the employee who said he 

needed to be paid for missing hours was ultimately found to have not worked those hours. 

Childs also compares herself to J.S., who continued to alter timecards after warnings not 

to and was subsequently terminated. While the decision-makers in J.S.’s termination did 

not decide Childs’s termination, Childs argues that Don Moschkau from human resources 

took part in both terminations. But even if Childs was a comparator with J.S., she was 

treated very similarly to J.S. in that both received almost the same e-mail asking them to 

stop altering timecards and both were terminated after continuing alterations. 

“[M]ere speculation, without some concrete evidence, is not enough to avoid 

summary judgment.” Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 

2008). Because Fairview’s proffered explanation for terminating Childs is not “unworthy 

of credence,” and because Childs did not point to facts showing that Fairview treated

similarly situated employees who did not engage in the protected activity more leniently 

or that Fairview deviated from its policies, there is no genuine issue of fact regarding 

pretext.

Affirmed.