Administrative Leave Can Trigger Whistleblower Rights

Public Safety Labor News

This article appears in the October 2019 issue of our monthly newsletter Public Safety Labor News.

Like many states, Minnesota has a whistleblower statute. In general, the statute prohibits retaliation against an employee who alleges that the employer has violated the law.

Sergeant Steven Moore is a 29-year veteran of New Brighton’s police department. In March 2015, the City required all police employees to attend training. Employees attended the training outside their ordinary schedules, but the City did not pay them overtime for attending.

Moore filed a grievance asserting that the City’s nonpayment of overtime violated its collective bargaining agreement with the officers’ union. Other officers joined Moore’s grievance. The police department’s deputy director denied Moore’s grievance, and Moore administratively appealed that decision. The City eventually agreed to pay all employees overtime for the training.

Within a month of Moore filing his grievance, the Department launched an investigation of Moore, alleging improper conduct. That investigation was followed the next month by a second one. In the first, the City alleged that Moore had improperly approved a subordinate officer’s unscheduled work hours. In the second, Moore’s supervisor alleged that Moore had fraudulently called in sick based on the supervisor seeing Moore at a music concert the same evening after he called in.

The City placed Moore on administrative paid leave from work on June 3, 2015, pending the investigations. The City ordered Moore to remain in his house during the leave from 8:00 in the morning until 4:00 every afternoon, Monday through Friday. And during the entire period, the City prohibited him from discussing either investigation with anyone.

The City took two months to complete both investigations, finding Moore at fault in one of them. On July 31, 2015, it informed Moore that his approval of the subordinate officer’s unscheduled work hours constituted a departmental violation for which Moore had to serve a five-day unpaid suspension. The City learned in its investigation into Moore’s alleged sick-time fraud that he had done no wrong. Moore’s attendance at the concert did not indicate any fraud because the medical issue for which he had requested time off from duty was a physical injury that would have prevented him from serving on patrol but would not have prevented him from attending a concert.

The City did not inform Moore, however, that it had exonerated him or even that it had completed the investigation. Instead, despite having finished both investigations and having issued a suspension for one allegation and imposing no discipline for the other, the City kept Moore on the home-bound leave away from his job for another seven months.

After the City finally returned Moore to work after nine months of leave, in March 2016 it ordered him back to work in a different assignment. The City directed him to serve a desk job as an administrative sergeant managing cars and equipment rather than serving as a patrol sergeant managing officers. It also issued Moore a negative performance evaluation for the previous year, in contrast to all his previous evaluations.

The Minnesota Court of Appeals held that Moore had stated a claim for a violation of the whistleblowing law. The key issue was whether Moore’s placement on administrative leave was enough of an adverse action to trigger the protections of the whistleblower statute.

The Court found that it was: “We have no difficulty concluding that, as a matter of law, an employee’s assignment to administrative leave might in some circumstances constitute a penalty under the whistleblower statute. The act defines the term ‘penalize’ to include conduct ‘that might dissuade a reasonable employee from making or supporting a report.’ Nothing on the face of the definition categorically excludes as actionable conduct an employer’s decision to investigate an employee and remove him from active service by placing him on extensive administrative leave.

“We add that federal caselaw interpreting similar statutes leads to the same conclusion. Multiple cases describing actionable retaliatory conduct under Title VII of the Civil Rights Act are consistent with our understanding that administrative leave might, under the right circumstances, constitute a penalty under the same definition in the Minnesota Whistleblower Act.

“Having decided that assignment to administrative leave supposedly for an investigation can in some cases constitute a penalty under the act, we turn to answer whether the evidence construed in Moore’s favor is sufficient to allow a jury to find that the City’s actions were penal as a matter of fact. Obviously, yes. An employee who offers evidence showing that his employer commenced an investigation and kept him on administrative, home-bound leave for a lengthy period inconsistent with the alleged investigatory reason for placing him on leave has presented a material fact dispute as to whether the employer’s actions penalize the employee. The evidence could convince a jury that a reasonable employee in Moore’s shoes might be dissuaded from challenging his employer’s violation of a collective-bargaining agreement if the employee anticipates that, in response to his challenge, the employer will commence an investigation and place him on leave for nine months – far longer than it takes to investigate any plausible misconduct claim – only to return the employee to a less favorable job assignment.”

Moore v. City of New Brighton, 2019 WL 3406314 (Minn. Ct. App. 2019).

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