                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2937
                        ___________________________

                               Douglas James Sellner

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

   MAT Holdings, Inc.; Midwest Air Technologies, Inc.; MAT Industries LLC;
                       Sanborn Manufacturing Company

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: January 10, 2017
                               Filed: June 15, 2017
                                 ____________

Before RILEY, Chief Judge1, WOLLMAN and BENTON, Circuit Judges.
                              ____________

BENTON, Circuit Judge.




      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      Douglas J. Sellner sued his former employer, MAT Holdings and its
subsidiaries Midwest Air Technologies, Inc., MAT Industries, and Sanborn
Manufacturing Company (collectively “MAT”). He alleges retaliation under the
Minnesota Whistleblower Act, Minn. Stat. § 181.932. The district court granted
summary judgment to MAT. Having jurisdiction under 28 U.S.C. 1291, this court
reverses and remands.
                                     I.

       MAT manufactures and markets air compressors, pneumatic air tools, and
pressure washers—all sold at retailers and home centers. In June 2011, MAT hired
Sellner as a lab-quality technician at its facility in Springfield, Minnesota. His
primary responsibility was to conduct lab testing and report the results to supervisors.
Travis W. Strong, the Quality Assurance and Product Service Manager, was Sellner’s
direct supervisor. Alan D. (“Butch”) Stark is the facility’s general manager.

       On Sellner’s first day, Strong told him that one of MAT’s products, the
Honbase pump, had serious problems with oil leakage during testing. In August
2011, MAT began working with the retailer Sears to add a compressor with the
Honbase pump to Sears’ Craftsman product line. Later that month, Sellner was
assigned to complete testing whether certain changes to the Honbase pump improved
oil consumption and life performance.

       On March 29, 2012, Sellner alleges Stark told him to “get together everything
[they] had on the [Honbase] pump.” Sellner gathered and delivered the data to Stark.
According to Sellner, later that day Engineering Lab Manager Joel D. Schiller said
that the results Sellner compiled were “sh*t” and could not be used in any report for
Sears.

    Sellner claims that within hours, Stark entered his office and said Sears called
MAT “on the carpet” for overstating the performance and quality of the Honbase

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pump. Stark then allegedly told Sellner to produce a report showing no major issues
with the Honbase pump. Sellner says that when he told Stark that no units performed
without major issues, Stark said, “well, if you don’t do this, we’re all going to be on
the street—no, you’re going to be on the street.” Sellner states that when he told
Stark that he would not falsify any testing data and that his request was illegal, Stark
said he should “get creative with [his] documentation.” In his testimony, Joshua
Beach, a lab technician, swears he overheard these parts of the conversation: Stark
saying that Sears was calling MAT “on the carpet,” Stark encouraging Sellner to get
creative with testing, and Sellner refusing. Beach says that after the conversation
with Stark, Sellner said, “Well, there’s my job.” According to Sellner, Stark
continued to return to his office throughout the day, pressuring him to complete a
report with falsified data.

       Sellner testified that throughout the next day, March 30, Stark continued to
pressure him, and Sellner continued to refuse. Later that day, Sellner called the
Minnesota Department of Labor and Industry (MNOSHA). He reported he was
instructed to “doctor up some documentation.” He also filled out an online form.
Beach swears that “a day or two” later, he told Strong about Sellner’s report to
MNOSHA.

      On March 30, MAT posted a job opening for a Quality Assurance/Test Lab
Leadperson. Strong recommended Sellner for the promotion; Stark approved.
Sellner learned of his promotion on April 3, just before he and Strong left for China
on business. On April 10, while Sellner was in China, Janis Nebel, the corporate
Director of Human Resources at MAT, received an anonymous email accusing
Sellner of inappropriate conduct. On April 16, Sellner returned from China. Strong
recommended an above-standard pay increase along with the promotion, saying that
Sellner “brought vast intellectual knowledge and experience across all facets.”
Strong and Stark signed the paperwork proposing the pay increase.



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       Nebel investigated, on-site, personnel issues at the Springfield facility from
April 23 through 25. Several employees met with Nebel and made allegations about
Sellner’s workplace behavior. Sellner says that he told Nebel he was asked to “fudge
test results out of the lab when the units were failing to save the Sears contract.” The
next day, Sellner was terminated. He never received the pay increase or the
promotion. MAT maintains it fired Sellner for “unacceptable conduct” including
“inappropriate and offensive statements made to and about his colleagues, and
inability to maintain positive and productive relationships with his co-workers, and
engaging in conduct that adversely affected the productivity of the workplace.”

       Sellner sued MAT for wrongful termination under the Minnesota
Whistleblower Act (MWA), Minn. Stat. § 181.932. The district court granted MAT
summary judgment on the MWA claim. Sellner also brought five other claims, which
the district court dismissed and Sellner does not appeal. He appeals the dismissal of
his MWA claim.

                                          II.

      This court reviews de novo the district court’s grant of summary judgment,
considering the facts most favorably to Sellner. See AuBuchon v. Geithner, 743 F.3d
638, 641 (8th Cir. 2014).

       To recover under the MWA, Sellner must prove that MAT “took adverse
employment action against [him] because []he engaged in statutorily protected
conduct, here, making a good faith report of a suspected violation of law.” Fjelsta
v. Zogg Dermatology, 488 F.3d 804, 808 (8th Cir. 2007). An employee alleging
retaliation need not show that the alleged conduct was actually unlawful, only that the
employee “in good faith, reported a violation or suspected violation of law to an
employer.” See Pedersen v. Bio-Medical Applications, 775 F.3d 1049, 1053 (8th
Cir. 2015) (interpreting the MWA). Falsifying test data is a state-law violation;

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reporting it is protected conduct under the MWA. See Minn. Stat. § 325D.44; Minn.
Stat. § 181.932. Termination is an adverse employment action. Wagner v.
Campbell, 779 F.3d 761, 766 (8th Cir. 2015). The issue is the causal connection
between Sellner’s protected conduct and his firing.

       Retaliation claims under the MWA may be proven by direct evidence, or in its
absence, under the McDonnell Douglas burden-shifting structure. Wood v. SatCom
Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013). Direct evidence is “evidence of a
specific link between the alleged discriminatory animus and the challenged decision,
sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated the adverse employment action.” Id. (internal citation omitted).
Direct evidence “includ[es] evidence of conduct or statements by persons involved
in the decision-making process that may be viewed as directly reflecting the alleged
discriminatory attitude.” Thomas v. Heartland Emp’t Servs. LLC, 797 F.3d 527,
529-30 (8th Cir. 2015) (internal quotations omitted). “Direct” refers to the causal
strength of the proof, not whether it is circumstantial evidence. Young-Losee v.
Graphic Packaging Int’l, Inc., 631 F.3d 909, 912 (8th Cir. 2011). Direct evidence
should “reflect a negative attitude toward [protected conduct] and . . . forecast how
the employer would deal with the adverse situation if it arose.” Fjelsta, 488 F.3d at
810.

      Sellner argues that Stark’s March 29 comment—“we’re all going to be on the
street—no, you’re going to be on the street” if Sellner did not “get creative with [his]
documentation”—is direct evidence of retaliation. MAT acknowledges that Stark is
a person “involved in the decision-making process.” See Thomas, 797 F.3d at 529-
30. The issue is whether Stark’s comment adduces a “specific link between the
alleged discriminatory animus and the challenged decision.” See id. Taking all
inferences for Sellner, Stark’s remark that Sellner would “be on the street” forecasted
how MAT would deal with Sellner’s refusal to “get creative with [his]


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documentation.” See Fjelsta, 488 F.3d at 810. Stark’s comment provides a specific
link between Sellner’s protected conduct and his termination.

       MAT asserts there is insufficient evidence of a causal link between the alleged
comment and Sellner’s firing. MAT and the district court cite both Young-Losee and
Fjelsta to conclude that Stark’s March 29 comment is “too remote in time” from
Sellner’s April 26 firing to be direct evidence. Neither Young-Losee nor Fjelsta set
a specific time period on the viability of direct evidence. See Young-Losee, 631 F.3d
at 912-13; Fjelsta, 488 F.3d at 810. In Fjelsta, the alleged direct evidence “did not
reflect a negative attitude toward [the protected characteristic] generally and in no
way forecast how the employer would deal with the situation if it arose.” Fjelsta, 488
F.3d at 810. “[A]t summary judgment, a plaintiff can establish a causal connection
between his complaints and an adverse action through circumstantial evidence, such
as the timing of the two events.” Wilson v. Arkansas Dep’t of Human Servs., 850
F.3d 368, 373 (8th Cir. 2017), citing Turner v. Gonzales, 421 F.3d 688, 696-97 (8th
Cir. 2005). A time period of six weeks between the protected activity and adverse
action can support an inference of retaliation that survives summary judgment. See
Chavez-Lavagnino v. Motivation Educ. Training, Inc., 767 F.3d 744, 750 (8th Cir.
2014) (six weeks between employee’s protected conduct and termination supports
causal inference of retaliation); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552
(8th Cir. 2013) (same). Cf. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74
(2001) (per curiam) (citing cases where three-month and four-month periods are
insufficient evidence of causality). Here, the 27-day gap between Sellner’s report to
MNOSHA—which Strong allegedly knew about within “one or two days”— and his
firing creates an inference of retaliation at summary judgment. Stark’s discriminatory
comment came one day before Sellner’s report to MNOSHA and is not too remote in
time to be direct evidence.

       MAT believes that intervening events between Stark’s comment and Sellner’s
firing destroy the “specific link” needed for direct evidence. MAT cites Pedersen as

                                         -6-
a case where intervening events destroyed the specific link. See Pedersen, 775 F.3d
at 1054. There, the intervening events were the employer’s “decision to return
Pedersen to work on a corrective action plan, promises to retrain Pedersen to her
previous position with [the employer], and Pedersen’s continued failure to return to
work despite [the employer’s] efforts.” See Pedersen, 775 F.3d at 1054. Because
MAT took none of these actions, Pedersen does not apply.

       MAT also claims that Stark’s “support [of] employment decisions beneficial
to Sellner” after March 29 destroys the specific link. However, Stark’s support of
Sellner’s employment can be the foundation of an inference that MAT’s explanation
for his firing has “no basis in fact or was not actually important to [MAT].” See
Smith v. Allen Health Sys., 302 F.3d 827, 834 (8th Cir. 2002) (“Recent favorable
reviews are often used as evidence that the employer’s proffered explanation for the
adverse action had no basis in fact or was not actually important to the employer.”);
Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006) (explaining that
an employee receiving a favorable review shortly before termination supports a
finding of retaliation).

      MAT asserts that it fired Sellner for “unacceptable conduct” in the workplace.
This court does not discuss the merits of MAT’s claim because “[e]vidence of the
employer’s motives for the action, and whether the presence of a mixed motives
defeats the plaintiff’s claim, is a trial issue, not intended for summary judgment.” See
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1046 (8th Cir. 2005). This court
holds only that Stark’s comment—viewed most favorably to Sellner—is “sufficient
to support a finding by a reasonable fact finder that an illegitimate criterion actually
motivated the adverse employment action.” See Wood, 705 F.3d at 828.

                                           III.

     The MAT defendants contend that some of them are not proper parties.
Because the district court did not rule on this fact-intensive issue, this court leaves it

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for remand. See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what
questions may be taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be exercised on the facts of
individual cases.”); Annex Med., Inc. v. Burwell, 769 F.3d 578, 583 (8th Cir. 2014)
(remanding for the “district court to use its superior fact-finding abilities to
determine, in the first instance, whether subject matter jurisdiction exists”); Peske v.
Tangedahl, 619 F.2d 729, 731 (8th Cir. 1980) (per curiam) (expressing doubts as to
jurisdiction but remanding in light of the district court’s failure to consider the issue).

                                      *******

     The judgment of the district court is reversed, and the MWA claim is
remanded.

                        ______________________________




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