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An appeals court has rejected a former Minot city attorney's claim that she was fired in 2014 in retaliation for a whistleblower complaint over sexual harassment.
The Eighth Circuit Court of Appeals filed an opinion Thursday upholding summary judgment granted to the City of Minot. The appeals court concluded Auer's harassment allegations were unprotected and her remaining claims meritless.
"The allegations in Auer's notice were unreasonable," Circuit Judge David Stras, Minneapolis, wrote for the court. "Auer's only articulated basis for concluding that she was experiencing sex-based harassment was that (acting city manager Cindy) Hemphill unfavorably compared her work style to the previous city attorney. We cannot infer bias from so little."
Auer later claimed Hemphill engaged in sex stereotyping by suggesting she should be more approachable, more open to feedback and less aggressive. Stras wrote Auer never made a report of sex stereotyping, so such a report could not have been the reason the city fired her.
Auer was employed by the city from March 31, 2014, until her firing on May 2, 2014. Auer brought her original complaint on Oct. 6, 2014.
She later appealed the ruling of U.S. District Judge Daniel Hovland, Bismarck, who had dismissed her lawsuit. Hovland concluded that Auer's allegations of gender-based discrimination and retaliation were unsupported by the evidence.
According to the court record, about three weeks into her one-year probationary term as city attorney, Auer sent a notice to Hemphill, city council president Jim Hatlelid and human resources director Lisa Jundt, accusing Hemphill of sexual harassment.
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. The mayor directed three members of the city council, including the council president, to investigate. The council members concluded no sexual harassment occurred. The mayor agreed and closed the case.
Hemphill fired Auer the next day. At a council meeting a few days later, Auer accused Hemphill of violating state and local law by firing her without first consulting the council. Hemphill defended her decision and the council voted unanimously to ratify Auer's termination. The council president listed "insubordination" when media inquired into the termination.
Auer sued on the grounds the city fired her in retaliation for reporting illegal sex-based harassment and discrimination; the city unfairly tarnished her professional reputation without giving her a chance to defend herself; and the city retaliated against her for publicly challenging the process that led to her termination.
In addition, Auer appealed the district court's denial of her 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.
The appeals court determined Hovland erred in ruling that summary judgment made the motion regarding the evidence moot. However, the appeals court declined to accept Auer's motion because it did not find she presented proof that the city acted intentionally to destroy evidence.
"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," Stras wrote.
Auer also alleged reputation damage from allegedly false statements about her job performance and termination in the affidavits accompanying the city's summary judgment motion.
"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," Stras wrote. "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."
Auer's claim that the city retaliated against her for exercising her First Amendment right to speak out against her termination also was rejected by the court. The court stated the timing of the council vote shortly after Auer spoke is not enough on its own to show retaliation.
The court has yet to rule on Auer's appeal related to city violations of the Fair Credit Reporting Act.
This is the second appeal in the FCRA case. The appeals court originally declined to act because claims of unlawful disclosure against the credit reporting agencies TransUnion and CBCInnovis had remained active at the district level. Those since have gone away.
Auer is appealing U.S. District Judge Ralph Erickson's dismissal of her claim that the city improperly obtained and shared her consumer credit information, obtained as part of the hiring process. The appeal included Erickson's dismissal of her claim against the city's legal firm, which alleges the firm should not have obtained her credit information from the city.
Employers may seek credit information as part of hiring, but Auer is alleging the city and credit agencies went about it improperly.