Anita M. Kempf v. Hennepin County

United States Court of Appeals
For the Eighth Circuit
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No. 20-1308
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Anita M. Kempf
lllllllllllllllllllllPlaintiff - Appellant
v.
Hennepin County
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 16, 2020
Filed: February 16, 2021
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Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
Anita M. Kempf appeals the district court’s1 adverse grant of summary
judgment on her claims that her former employer, Hennepin County (“County”),
retaliated against her for participating in protected activity in violation of Title VII
1The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.

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of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the
Minnesota Whistleblower Act (“MWA”), Minn. Stat. § 181.932. We affirm the
dismissal of the Title VII claims and remand with instructions to dismiss the MWA
claims without prejudice.
I. BACKGROUND
Kempf worked as an architect in the County’s Facility Services Department
from 1997 to 2016. A dispute arose on March 9, 2016, when Jay Biedny, Kempf’s
division manager, went to Kempf’s office to discuss a project. In Kempf’s version
of the discussion, Biedny aggressively came into her office and asked her about the
project in a “loud and hostile voice.” Kempf, who was sitting at her desk facing away
from the door, told Biedny that she needed to finish an email. Unsatisfied with that
response, Biedny walked towards Kempf and yelled at her to stop emailing; Kempf
turned around, found Biedny close to her, and involuntarily screamed. At her
deposition, Kempf recounted that Biedny “was totally up against the back of [her]
chair,” “his crotch was within six inches of [her] face,” and “it felt like an assault was
imminent.” Kempf said that she repeatedly told Biedny to leave and then shut her
door to compose herself. According to Biedny, he tried to diffuse the situation but
“a rage came over” Kempf, and she ordered him out of her office and slammed the
door in his face.
Both Biedny and Kempf reported the incident to the Deputy Director of Facility
Services, Barbara O’Brien, that very day. Biedny reported to O’Brien that Kempf
yelled and slammed her door. Kempf reported to O’Brien that Biedny physically
threatened her. The County has alleged that Kempf was agitated during her
conversation with O’Brien and poked O’Brien in the chest. Kempf has admitted the
poke but described it as “jovial.” With the competing reports in hand, O’Brien
launched an investigation.
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On March 17, 2016, the County determined that Kempf committed “a
continuing pattern of misconduct” and suspended her for five days without pay. The
written suspension notice included the following: Kempf’s disciplinary history, a
determination that Kempf failed to meet performance expectations, and a finding that
Kempf violated County rules when she shouted at Biedny and poked O’Brien.
Kempf returned to work on April 4, 2016, having served her suspension. The
next day, she met with Michael Sable, Director of Facility Services, to discuss her
concerns about management. Sable told Kempf that she had a number of options.
She could file an informal, formal, or external complaint. On April 11, 2016, Kempf
filed an informal complaint challenging the suspension notice’s allegations and the
County’s investigation. Kempf specifically complained about the way in which the
County handles “gender based threats” and noted “[m]any women leave their” jobs
because of similar events, which contributes to the gender-pay gap. After review, the
County upheld the suspension.
Throughout April 2016, the County documented several alleged instances of
misconduct by Kempf and placed her on paid administrative leave on April 26, 2016.
The County issued her a Notice of Intent to Dismiss on May 3, 2016, for “failure to
meet job expectations and misconduct.” Facing termination, Kempf chose to resign.
For convenience, we refer to her resignation as a termination. Although Kempf
alleged a number of claims, she appeals only her retaliation claims. These claims
include her “suspension-based claims” and “termination-based claims.”
II. DISCUSSION
We review a district court’s grant of summary judgment de novo, viewing any
facts in which there is a genuine dispute in a light most favorable to the nonmoving
party. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
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(quotations omitted). Summary judgment is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a).
A. Title VII Suspension-Based Claim
The district court dismissed Kempf’s suspension-based claim on two grounds:
(1) failure to exhaust, and (2) lack of a prima facie case because Kempf did not make
a statutorily protected report prior to her suspension. Because we conclude that
Kempf has not shown a prima facie case, we need not address exhaustion which the
district court raised sua sponte.
Title VII prohibits employers from, among other things, retaliating against
employees for opposing unlawful employment practices, making a charge, or
participating in an investigation under the statute. 42 U.S.C. § 2000e-3(a). For her
suspension-based claim, Kempf alleged that the County suspended her in retaliation
for opposing Biedny’s conduct, which she asserts was “unlawful sexual harassment.”
Because Kempf’s suspension notice indicated she was suspended, in part, for
“shouting loudly” at Biedny and having an agitated conversation with O’Brien,
Kempf argues that the suspension and notice are direct evidence of retaliation since
the County knew she did those things to resist and report Biedny’s “sexual
harassment.” See Barrett v. Omaha Nat’l Bank, 726 F.2d 424, 428 (8th Cir. 1984)
(noting Title VII protects an employee from retaliation for reporting sexual
harassment).
Kempf failed to show that she engaged in statutorily protected activity because
she did not communicate or report any sexual harassment before her suspension. To
establish a prima facie retaliation claim, Kempf must present evidence demonstrating
that she opposed a practice made unlawful and either explicitly or implicitly
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communicated her belief that Biedny’s conduct constituted unlawful sexual
harassment to her employer. See EEOC v. N. Mem’l Health Care, 908 F.3d 1098,
1101 (8th Cir. 2018); EEOC Compliance Man. § 8–11–B(2) (2006). While Kempf
alleged that Biedny physically threatened her prior to her suspension, she never
indicated to her employer that Biedny’s conduct was overtly sexual or gender based.
Kempf conceded during oral argument that she never mentioned Biedny’s “crotch”
being in her face in her conversation with O’Brien or during the course of the
investigation. Kempf first made this characterization during her deposition and then
pursued it during litigation, long after she was suspended. Likewise, Kempf’s first
report of a “gender based threat” to the County was in her informal complaint filed
after her suspension. Kempf’s pre-suspension actions are too vague to support a
finding that she opposed unlawful sexual harassment. See Furcron v. Mail Ctrs. Plus,
LLC, 843 F.3d 1295, 1311 (11th Cir. 2016) (Title VII only protects employees who
communicate a belief about an unlawful employment practice). We affirm the grant
of summary judgment on the suspension-based claim.
B. Title VII Termination-Based Claim
For her termination-based claim, Kempf contends the County terminated her
in retaliation for complaining about Biedny, the investigation, and the way the County
handles gender-based threats. Without direct evidence of retaliation, we apply the
familiar burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under this framework, Kempf bears the initial burden of showing that
she engaged in protected conduct, that a reasonable employee would have found the
retaliatory action materially adverse, and the existence of a causal link between the
protected conduct and materially adverse action. See Mahler v. First Dakota Title
Ltd. P’ship, 931 F.3d 799, 805 (8th Cir. 2019). If Kempf establishes a prima facie
case, “the burden shifts to [the County] to articulate a legitimate, non-retaliatory
reason for the adverse action.” Id. If the County articulates such a reason, then “the
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burden shifts back to [Kempf] to demonstrate that [the County’s] proffered reason is
pretextual.” Id. To succeed, she must both discredit the County’s explanation for her
termination and “show the circumstances permit drawing a reasonable inference that
the real reason for [that action] was retaliation.” Gilbert v. Des Moines Area Cmty.
Coll., 495 F.3d 906, 918 (8th Cir. 2007).
Following her suspension, Kempf submitted an informal complaint that
expressly made allegations about improper investigations regarding gender-based
threats. Assuming a prima facie case, the burden shifts to the County to provide a
legitimate, non-retaliatory reason for Kempf’s termination. The County asserts the
termination was supported by four instances of misconduct documented in April
2016. First, on April 5, 2016, Kempf used her badge to enter the office suite of
Chester Cooper, Director of the Department of Community Corrections and
Rehabilitation (“DOCCR”), without express permission. Second, on April 11, 2016,
Kempf approached Cooper in the skyway in the County building and loudly and
aggressively complained about her job. Third, on April 15, 2016, Kempf missed a
deadline. Fourth, on April 20, 2016, Kempf was “abrasive, disrespectful, and
unprofessional” at a client meeting. Each of these are legitimate, non-retaliatory
reasons sufficient to shift the burden back to Kempf to demonstrate that the reasons
given are pretextual.
Below, Kempf challenged only two of the County’s proffered reasons as
pretextual, which caused the district court to conclude that Kempf’s failure to address
the other acts of misconduct justified dismissing her termination-based claim. On
appeal, Kempf contends the district court erred in determining that she was required
to produce evidence attacking each of the County’s four reasons for termination.
While this Court has not specified whether an employee must produce evidence
showing that each of an employer’s legitimate, non-retaliatory reasons for an adverse
action are pretextual, the parties agree the employee must do so. See Sher v. U.S.
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Dep’t of Veterans Affs., 488 F.3d 489, 507–08 (1st Cir. 2007) (collecting cases and
finding the same). Kempf contends her case falls into an exception to the general rule
and should survive summary judgment because the County gave “a laundry list of
reasons for [her] termination” and she has shown pretext on some of the reasons
which raises serious doubt as to the rest.
Other courts have articulated a variety of tests for determining whether an
employee’s claim may survive summary judgment without the employee rebutting all
her employer’s justifications. See Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303,
1309–10 (10th Cir. 2005) (per curiam) (collecting tests). The Seventh Circuit has
persuasively determined that if “multiple grounds” are offered by the employer and
those grounds are “so intertwined, or the pretextual character of one of them so fishy
and suspicious” that it raises questions about the other proffered grounds, an
employee can withstand summary judgment by showing the pretextual nature of less
than all of the grounds. Fischer v. Avanade, Inc., 519 F.3d 393, 404 (7th Cir. 2008)
(cleaned up); see Richey v. City of Independence, 540 F.3d 779, 786–87 (8th
Cir. 2008) (Shepherd, J., concurring) (noting the Seventh Circuit’s approach is
sound). This approach rests on the idea that the ultimate question on summary
judgment is whether a reasonable fact finder could find the employer’s true reason for
an adverse employment action was based on retaliatory intent. There are cases in
which a proffered reason is obviously “fishy” or so “intertwined” with other
pretextual reasons that a reasonable fact finder could doubt the others, without
independent evidence of pretext on each reason.
Kempf’s assertion that the County’s reasons are “substantially intertwined”
because the events all took place in a “three-week window” in April 2016 is contrary
to the plain meaning of intertwined. Intertwined means something more than
temporal proximity. Rather, the question is whether the employer’s reasons are so
factually intertwined or dependent on one another that showing pretext on one raises
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a genuine question as to whether the other reasons are valid. This is not the case here.
An aggressive conversation and being unprofessional at a client meeting are not fairly
described as being intertwined with entering a secured suite or missing a deadline.
While temporal proximity may be relevant where the employer offers a multitude of
reasons in a very short time, in this case, the County offered four reasons that appear
on their face to be insular and it is not enough for Kempf to cast doubt on only half
of them.
Kempf next argues the County’s “fantastical portrayal” about her entering the
DOCCR suite is so “fishy” that it necessarily renders the County’s “other reasons
suspect.” Even if the County exaggerated the gravity of Kempf’s entry into the suite,
and even if Kempf’s explanation that she had an appointment with Cooper is true, we
are not persuaded that Kempf has made such a strong showing of pretext on that
reason for her termination that it destroys the County’s credibility on its remaining
justifications. Cooper was obviously concerned about the incident as he mentioned
to Sable that Kempf had accessed the suite with her badge and made inquiry as to
who else had access to the suite. Cooper later explained in his deposition that no one
in his department was “afraid” of Kempf but that he had security concerns about
anyone (including Kempf) accessing the suite without his authorization. Even if the
County stretched its justification to include “fear” among employees, this
embellishment is not so “outrageous” that it necessarily undermines the County’s
other legitimate explanations for terminating Kempf. Jaramillo, 427 F.3d at 1310.
Because Kempf has not shown the County’s reasons are sufficiently
intertwined or fishy that rebutting only some of the reasons discredits them all,2 we
affirm the district court’s judgment on Kempf’s termination-based claim under
Title VII.
2We reject Kempf’s belated attempt to show pretext for every reason now,
when she did not produce evidence challenging each reason to the district court.
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C. MWA Claims
Kempf also asserts retaliation claims under the MWA. The district court,
exercising supplemental jurisdiction under 28 U.S.C. § 1367(a), dismissed those
claims on the same grounds as the Title VII claims.
Kempf contends the MWA varies from Title VII, such that her MWA claims
could survive even if her Title VII claims fail. Kempf asserts the MWA protects
broader conduct and Minnesota law would not require an employee to disprove every
reason offered by her employer. See Green v. Franklin Nat’l Bank of Minneapolis,
459 F.3d 903, 914 n.8 (8th Cir. 2006) (noting the elements for Title VII and the
MWA are the same but not fleshing out these issues). The County, on the other hand,
argues that Kempf’s MWA claims are barred by an exclusivity provision in the
Minnesota Human Rights Act (“MHRA”), Minn. Stat. § 363A.04. While the
Minnesota Court of Appeals recently suggested that the MHRA’s exclusivity
provision may not apply under some circumstances, see Hinrichs-Cady v. Hennepin
Cnty., 943 N.W.2d 417, 424 (Minn. Ct. App. 2020), the Minnesota Supreme Court
has not decided the question. Given these relatively novel questions of state law, we
find the better course is to dismiss the MWA claims without prejudice so that they
can be taken up by the Minnesota state courts. See Hervey v. Cnty. of Koochiching,
527 F.3d 711, 726–27 (8th Cir. 2008) (reaching the same conclusion where all the
federal claims were dismissed and only a state claim remained).
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment on the
retaliation claims under Title VII and remand the case to the district court with
instructions to modify the final judgment to dismiss without prejudice the retaliation
claims under the MWA.
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