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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civ. No. 12-1834 (RHK/JJK)
Michelle Dye Neumann, Phillip M. Kitzer, Halunen & Associates, Minneapolis,
Minnesota, for Plaintiff.
Jeffrey K. Brown, Amy R. Patton, Andrew K. Haeffele, Payne & Fears LLP, Irvine,
California, Steven Paul Marino, Marino Law Firm, Saint Paul, Minnesota, for Defendant.
Plaintiff Karen Weigman filed this action against her former employer, Defendant
Everest Institute (“Everest”), alleging she was terminated in violation of the Minnesota
Whistleblower Act and public policy for confronting her supervisor about what she
believed to be the forgery of internal documents. Everest now moves for summary
judgment on Weigman’s claims, and, for the reasons set forth below, its Motion will be
The following facts are recited in the light most favorable to Weigman.
In May 2010, Weigman was hired by Everest, a vocational college, as a Program
Chair for its Medical Assisting Program. A few months after she was hired, on Saturday,
September 11, Weigman’s supervisor, Gina LaBounty, emailed her and other program
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chairs requesting help in preparing for an important internal audit that was set to begin
that Monday. LaBounty specifically requested that Weigman provide proof of her CPR
and OSHA training for her employee file “ASAP” because both were required credentials
for Weigman’s position. The following Monday, September 13, Weigman met with
LaBounty to inform her that she had not completed either training and that she was
physically unable to complete the CPR test1 because she was nine months pregnant and
experiencing extreme pain (which she later discovered was due to a broken sacrum).
After the meeting, she completed the OSHA training online and gave LaBounty the
certificate. LaBounty told her she had spoken to the CPR instructor, Ray Craft, about her
CPR card. Later that morning, Craft stopped by Weigman’s office with a printed CPR
card for her to sign, but she didn’t.
Weigman spoke with LaBounty again to tell her she was not comfortable signing
the card because she had not taken the exam. LaBounty told her that they needed the
card in her file for the audit. Weigman asked if she could sign the card and take the
physical part of the class after she returned from maternity leave, and LaBounty agreed
subject to Craft’s approval. Craft also agreed to the accommodation and administered the
written exam, which Weigman passed. Later that day, Craft dropped off the CPR card,
which Weigman signed and gave to LaBounty.
Several months later, Weigman learned from certain instructors she supervised
that LaBounty had told them to sign and backdate instructor-observation forms and create
1 To obtain a CPR certification, an employee needed to complete a classroom course, a
vigorous physical skills demonstration, and a written examination.
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training certificates, even though the instructors could not verify whether the observations
or training actually took place. Weigman believed it was illegal to falsify documents in
this manner. On January 10, 2011, in their standard weekly meeting, Weigman told
LaBounty that several instructors had informed her that LaBounty directed them to falsify
documents. Weigman stated she would not participate in that for any future audits and
that she would encourage her staff not to either.
Two days later, on January 12, 2011, the organization Everest used for CPR
certification, LifeSavers, received an “anonymous phone call” about Weigman having a
CPR card that was not legitimate. LifeSavers passed this information on to Everest’s
campus liaison, Julie Monette. Monette met with LaBounty and LaBounty’s supervisor,
Brian O’Hara, to discuss the phone call, and they decided to conduct an investigation into
the matter. LaBounty spoke with Weigman about the phone call and told her they were
investigating it. Weigman reminded her that she had received the CPR card during the
audit but had not taken the physical portion of the class or exam because she had been
pregnant. The next day, Weigman requested to speak with human resources, but
LaBounty told her to wait.
LaBounty then discussed the matter with Craft, who did not recall administering
the written exam to Weigman and denied issuing her a CPR card to sign. He told
LaBounty he had to obtain cards from Julie Monette and did not keep extras in his office,
but that he had a template on his computer, which was password protected. LaBounty
searched for the written exam that Weigman took, but neither she nor Craft located a
copy of it. LaBounty also discussed CPR certification with instructor Matthew Johnson,
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who told her that all the instructors kept copies of cards at their desks. Johnson told
LaBounty he believed Craft had issued the card to Weigman because Craft had been
teaching a CPR class and making CPR cards the day Weigman received it.
LaBounty summarized her investigation and sent it to human resources. Based on
this summary, Everest’s Regional Vice President approved LaBounty’s recommendation
that Weigman be terminated. On January 14, Weigman met with O’Hara and LaBounty.
She told O’Hara how she received the CPR card, but LaBounty denied knowledge of or
involvement in the process. She also told O’Hara that LaBounty had directed instructors
to falsify other documents for the audit, which LaBounty also denied. O’Hara informed
Weigman that she was being terminated for the false CPR card and escorted her out.
Neither Craft nor LaBounty were terminated for their alleged involvement.
In June 2012, Weigman filed the instant action against Everest, alleging that she
was terminated for confronting LaBounty about LaBounty’s instructions to her and others
to falsify documents for Everest’s audit. She asserts claims under the Minnesota
Whistleblower Act (“MWA”), Minn. Stat. § 181.932, and for common-law wrongful
discharge. Everest now moves for summary judgment on both claims. The Motion has
been fully briefed, the Court heard oral argument on July 16, 2013, and it is now ripe for
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557
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U.S. 557, 586 (2009). The moving party bears the burden of showing that the material
facts in the case are undisputed. Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc). The Court must view the evidence, and the inferences that may
be reasonably drawn from it, in the light most favorable to the nonmoving party. Beard
v. Banks, 548 U.S. 521, 529–30 (2006); Weitz Co. v. Lloyd’s of London, 574 F.3d 885,
892 (8th Cir. 2009). The nonmoving party may not rest on mere allegations or denials,
but must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue of material fact for trial. Fed. R. Civ. P. 56(c)(1)(A); Wood v.
SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).
Minnesota Whistleblower Act
The MWA prohibits an employer from taking adverse employment action against
an employee who, “in good faith, reports a violation or suspected violation of any federal
or state law or rule adopted pursuant to law to an employer . . . .” Minn. Stat. § 181.932,
subd.1(1). The Court analyzes MWA claims using the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 972, 802 (1973). Sigurdson v.
Isanti Cnty., 386 N.W.2d 715, 720 (Minn. 1986); Cokley v. City of Otsego, 623 N.W.2d
625, 630 (Minn. Ct. App. 2001). Under this framework, the burden is on a plaintiff to
establish a prima facie case. Cokley, 623 N.W.2d at 630. Next, the defendant must
produce a legitimate, non-retaliatory reason for its adverse employment action. Id. Then,
the burden is on plaintiff to create a genuine issue of fact that the employer’s proffered
reason is pretextual. Id.
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To establish a prima facie case that Everest violated the MWA, Weigman must
show: (1) she engaged in statutorily-protected conduct—that is, she reported a violation
or suspected violation of law to her employer in good faith; (2) she suffered an adverse
employment action; and (3) the adverse employment action was motivated by her
protected conduct. See id.; Holtzman v. Healthpartners Servs., Inc., C7-02-375, 2002
WL 31012186, at *5 (Minn. Ct. App. Sept. 10, 2002). Everest acknowledges that
Weigman suffered an adverse employment action but challenges whether she engaged in
statutorily-protected conduct and, if she did, whether such conduct motivated her
As to the first element—statutorily-protected conduct—Everest argues that
(1) there was no violation of state or federal law to report, and (2) even if there were,
Weigman did not report it in good faith within the meaning of the statute. While an
actual violation of state or federal law need not have occurred for an employee’s report to
be protected, the employee must show that the activity reported, if it turned out to be true,
would violate the law. Kratzer v. Welsh Cos., 771 N.W.2d 14, 22–23 (Minn. 2009) (“If it
later turns out that the facts are not as the employee reported them in good faith to be, the
conduct is protected so long as the facts, if they had been true, would be a violation of the
law.”). Thus, Weigman need not show that LaBounty actually had the instructors sign or
create documents as alleged, but she must show that such actions, if they occurred, would
violate a state or federal law. It is not enough that Weigman believed they violated the
law. See id. at 21–22. Nor is it enough that such actions violated Everest’s internal
policies. See id. at 22 (“[W]e have recognized that a mere report of behavior that is
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problematic or even reprehensible, but not a violation of the law, is not protected conduct
under the [MWA].”).
Although not specified in her Complaint, in her Memorandum Weigman asserts
that LaBounty’s alleged conduct, assuming it occurred, constituted the crime of forgery
under Minnesota law. The Minnesota Statutes state, in relevant part, a person is “guilty
of forgery” if she “destroys, mutilates, or by alteration, false entry, or omission, falsifies
any record, account, or other document relating to a private business.” Minn. Stat.
§ 609.43, subd. 1(5). Case law interpreting this portion of the forgery statute is thin.
The parties and this Court have located only a handful of cases discussing its meaning or
scope. After reviewing the interpretations set forth in these cases, the Court is doubtful
whether LaBounty’s alleged conduct constituted forgery.
In State v. Mimbach, 420 N.W.2d 252, 254 (Minn. Ct. App. 1988), the Minnesota
Court of Appeals overturned a conviction under the forgery statute, in which the
defendant submitted a proof-of-loss form to his insurance company containing false
information regarding his store’s losses. The court adopted the common-law rule that
forgery “cannot be committed by the genuine making of an instrument, although
containing false representations made for the purpose of defrauding.” Id. (citing 36 Am.
Jur. 2d Forgery § 6). In State v. Morua, No. 50-CR-09-1811, 2009 WL 8547365 (Minn.
Dist. Ct. Jan. 13, 2010), the district court elaborated on this rule. In Morua, the defendant
was charged with forgery for using a false name, address, and photo in her Minnesota
identification card. Id. The Morua court distinguished Mimbach, stating, “The legal
efficacy of the document at issue in Mimbach was not affected by the veracity of the
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information it contained. Id. By making false entries in the proof of loss form, the
Mimbach defendant created a fraudulent document, not a forgery.” Id. (emphases added).
In contrast, the Court concluded that by falsifying “core pieces of information” in her
state-issued identification, the defendant had (allegedly) “created a document that was not
what it purported to be” and was therefore a forgery. Id.
Under this rule, the Court does not believe that LaBounty’s alleged actions—
directing persons to sign or backdate forms without allowing them to verify the
documents’ contents—would constitute forgery. Weigman does not allege that the
documents themselves are false or not what they purport to be; she alleges only that
LaBounty—through the instructors—inserted false information or representations into
them. If they contained false information, the observation forms were likely fraudulent,
but not necessarily forgeries.
At oral argument, Weigman’s counsel compared this case to State v. Thompson,
306 N.W.2d 841 (Minn. 1981), in which the employee of an insurer was convicted of
forgery for altering the company’s “experience report,” which shows all the premiums
and claims paid under a policy, to reflect a lower profit to the insurance company before
providing the report to its insured, a municipality. Id. at 842. The defendant appealed for
lack of evidence of his intent and the court affirmed his conviction, stating “the evidence
of the defendant’s guilt was overwhelming.” Id. at 843. Defendant argues this case is
distinguishable because it involved the alteration of a document, not false entries. But the
Court does not find this distinction relevant because the statute prohibits both alterations
and false entries. Minn. Stat. § 609.43, subd. 1(5) (prohibiting falsification of a
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document “by alteration, false entry, or omission”). The defendant in Thompson was no
more culpable because he falsified a document through alteration as opposed to false
The court in Mimbach also distinguished Thompson, but on different grounds. It
construed the forgery statute to require falsification of a “business record,” which it
defined as a record that “possesses indicia of reliability because it is kept or compiled for
a business purpose.” 420 N.W.2d at 255 (citing Minn. R. Evid. 803(6)). The court
concluded that an experience report, like the one in Thompson, was a business record, but
“a proof of loss statement, although made on a form supplied by the insurance company”
was not because the “statement’s business purpose . . . is to finalize the insured’s claim of
loss.” Id. The instructor-observation forms at issue here were created and completed by
employees of Everest for Everest’s own purposes, like the experience report in
Thompson. Furthermore, the Court believes they would qualify as business records
under Minnesota Rule of Evidence 803(6), to which Mimbach cites. Assuming the forms
are business records like the documents in Thompson, the Court remains doubtful
whether they were “falsified” and, accordingly, whether there was any crime for
Weigman to report.
But even if LaBounty’s alleged conduct were criminal, the Court agrees with
Everest that Weigman did not report it in good faith, within the meaning of the MWA.
The MWA “protects the conduct of a neutral party who ‘blows the whistle’” on her
employer. Obst v. Microtron Inc., 614 N.W.2d 196, 200 (Minn. 2000). It requires that
the employee reported a violation or suspected violation “in good faith.” To determine
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good faith, “the central question is whether the reports were made for the purpose of
blowing the whistle, i.e., to expose illegality.” Id. at 202. “A court considers the
employee’s purpose at the time the report was made, not after subsequent events have
transpired.” Arends v. Extendicare Homes, Inc., Civ. No. 07-995, 2008 WL 1734205, at
*4 (D. Minn. Apr. 10, 2007) (Doty, J.) (quotation omitted). Although “good faith” is
generally a question of fact, a court may determine that a plaintiff did not engage in
statutorily protected conduct as a matter of law. Id.
Here, the Court concludes there is no evidence that Weigman intended to expose
an illegality when she told LaBounty she would not “falsify” documents and would
encourage her staff not to either. The Minnesota Supreme Court held in Obst that a
plaintiff did not make a good-faith report under the MWA because he reported violations
only to parties that were involved in or already knew of them and he expressed no intent
to have his reports go any further, such as to a governmental body or law enforcement
official. 614 N.W.2d at 203 & n.5. The facts of this case are analogous to those of Obst.
Weigman reported LaBounty’s violations only to LaBounty herself and did not express
any intent to have her reports go further.2 (See Weigman Dep. 176 (“Q: What was your
purpose—in your mind when you went to [LaBounty] why did you do that if you weren’t
going to tell her who [the instructors who reported her] were and what the document[s]
2 Despite not manifesting an intent to tell anyone else when she confronted LaBounty,
Weigman did, ultimately, tell O’Hara about LaBounty’s violations when she was being
investigated. (See Weigman Dep. 245–50.) But exposing LaBounty’s misconduct in an
attempt to defend her own misconduct does not reflect an intention to “blow the whistle”
but rather to shift the blame and save her job. See Obst, 614 N.W.2d at 202 (citing
Wolcott v. Champion Int’l Corp., 691 F. Supp. 1052, 1059 (W.D. Mich. 1987) (report not
in good faith where purpose was to protect plaintiff’s and others’ jobs)).
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were? A: What I told her what [sic] I was going to tell them not to do anything that they
weren’t comfortable with in the next audit.”); id. at 180 (“ Q: Other than January 10 when
you went to Gina LaBounty, did you ever report to any manager or supervis[or] at
[Everest] that Gina was doing anything you felt was inappropriate in any way? A: No.
Q: Did you ever complain to HR? A: No. Q: Did you ever complain to any outside
agency? A: No.”).) This behavior in no way indicates or supports an inference that
Weigman meant to “blow the whistle” on LaBounty or Everest. Accordingly, the Court
determines that Weigman has not shown she engaged in statutorily-protected conduct,
and has therefore failed to establish a prima facie case under the MWA.
II. Wrongful Discharge
Weigman also asserts a claim for wrongful discharge under Minnesota common
law, on the theory that Everest’s retaliatory discharge violated public policy. The
Minnesota Supreme Court has only recognized a wrongful discharge claim for employees
who were retaliated against for refusing to break a law, rule, or regulation. See Phipps v.
Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn. 1987). But, as Everest points out,
Weigman was never asked to and therefore never refused to break a law, rule, or
regulation. Weigman argues that she refused to participate in the forgery of instructor-
observation forms, but the record shows she was never asked to, only her instructors
were. (Weigman Dep. 177 (“Q: But [LaBounty] never asked you to backdate any kind of
documents or observations? A: No.”).) Neither was she asked to forge her CPR card.
(Id. at 175 (“Q: And when you look at the words [LaBounty] used, she never told you to
sign the CPR card without fulfilling the requirements; did she? A: No.”).) So assuming
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for the sake of argument that such conduct constitutes forgery, Weigman acknowledges
she was not asked to commit forgery. Therefore, she cannot maintain a wrongful-
discharge claim for refusal to break a law, rule, or regulation, but must succeed on other
It is unclear, however, whether the Minnesota Supreme Court would recognize a
wrongful-discharge claim on other public-policy grounds. Since Phipps, the court has
declined to revisit the viability of public-policy claims. Nelson v. Productive
Alternatives, Inc., 715 N.W.2d 452, 457 n.5 (Minn. 2006). In Nelson, the court
expressed doubt whether it would expand the holding in Phipps to recognize any other
wrongful discharge claim based on public policy, suggesting that delineating public
policy is the realm of the legislature, not the courts. Id. (“[W]e also do not address the
broader question of whether other discharges in violation of public policy give rise to
common-law causes of action, aside from those that we already recognized in Phipps.
We do note, however, that this court has generally been reluctant to undertake the task of
determining public policy since this role is usually better performed by the legislature.”).
The public policy at stake in this case—prohibiting employers from terminating
employees who report ostensible violations of the law—has already been addressed by
the legislature through the MWA. The Court in Nelson concluded that where the
legislature has addressed the general area of policy at issue and the defendant’s actions
did not violate any statute it created, then it “must conclude that the legislature has
implicitly reserved these actions to the discretion of [the defendant].” Id. at 457 (“In so
[concluding], we abide by the canon of statutory construction ‘expressio unius exclusio
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alterius,’ meaning the expression of one thing is the exclusion of another.”). Because the
legislature has already addressed the public policy at issue through the MWL and Everest
did not violate it, Weigman’s common-law claim is merely an attempt to make an end-
run around the statute. Accordingly, the Court will grant summary judgment on
Weigman’s wrongful-discharge claim as well.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Everest’s Motion for Summary Judgment, or in the Alternative, Partial
Summary Judgment (Doc. No. 23) is GRANTED and the Complaint (Doc. No. 1, Ex. A)
is DIMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 30, 2013
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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