                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 14-1284
                       ___________________________

                                    Lisa Pedersen

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

Bio-Medical Applications of Minnesota, doing business as Fresenius Medical Care

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

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

                            Submitted: October 6, 2014
                              Filed: January 6, 2015
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
                             ____________

BYE, Circuit Judge.

      Lisa Pedersen sued Bio-Medical Applications of Minnesota (BMA) under the
Minnesota Whistleblower Act (MWA), Minnesota Statute § 181.932, alleging BMA
took adverse employment actions against her after she reported the mishandling of
blood samples and a cover-up by management. The district court1 granted Bio-
Medical’s motion for summary judgment, concluding Pedersen failed to establish a
prima facie case under the MWA. Pedersen appeals, and we affirm.

                                           I

      Pedersen began working for BMA, which operates dialysis clinics throughout
Minnesota for individuals suffering from end stage renal disease, in 2007. After
becoming a registered nurse, Pedersen could assess patients, work with physicians,
and administer medication to patients. BMA does not employ its own team of
physicians but contracts with physician groups for patient services at its clinics.

       Part of BMA’s treatment regimen for its patients involves monitoring certain
components of patients’ blood, which is assessed by drawing and analyzing blood
samples from patients, and then administering medications based on the results.
BMA draws patients’ blood at their facilities and then sends the samples to an
independent laboratory, Spectra Laboratories, Inc. (Spectra), for analysis. Spectra
provides shipping instructions for the blood samples, including the size of box to use
and the number of ice packages to include to keep the blood samples below a certain
temperature. On the morning of April 12, 2012, when Pedersen reported to work, she
learned a box of blood samples had been left in the clinic’s front lobby overnight,
packed with ice packages but in the wrong type of shipping box. Another employee,
a patient care technician, had discovered the blood samples prior to Pedersen arriving
at the clinic, touched the vials to ensure the samples were still cool, repackaged them
in the correct package, and sent them to Spectra.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                         -2-
       Because the blood samples had been incorrectly packaged, Pedersen believed
the samples may have been compromised. After Spectra processed the samples and
returned the results to BMA, however, a registered nurse reviewed the results and
determined none of the samples were abnormal. This nurse reported the results to
Joelle Ince, the clinic manager, who was responsible for day-to-day operations of the
clinic. Ince learned the blood samples had been packaged incorrectly the previous
day when she spoke with the patient care technician who originally discovered the
blood samples. Pedersen did not make a report about the blood samples to Ince.
When Ince became aware of the incident, she notified her area manager, Celestine
Kienzle, who had broad oversight responsibilities with respect to staffing issues at the
clinics. Kienzle directed Ince to call the laboratory and schedule educational sessions
for employees about proper packaging.

       On the morning of April 17, 2012, Ince met with Pedersen to discuss concerns
Ince had about Pedersen’s aggression and some performance issues, including
Pedersen failing to “close out the day” on April 12, 2012, leaving one patient without
a post-weight assessment; Pedersen entering Ince’s office agitated and pointing her
finger at Ince, saying with an aggressive posture Ince needed to talk with other staff;
Pedersen failing to “sign off” on three medications when another nurse took over for
Pedersen; and Pedersen failing to complete patient care plans. Ince informed
Pedersen she would be transferred to a separate clinic with a more experienced staff.
Pedersen became very upset after hearing this information and yelled at Ince,
suggesting she call her area manager.

       Later that day, Ince and Pedersen had a meeting with one of BMA’s contract
nephrologists to discuss patient care planning. While discussing laboratory results,
Pedersen informed the nephrologist about the blood samples left in the lobby
overnight. Ince then informed the nephrologist a registered nurse at BMA reviewed
the results of the blood samples and did not find any abnormalities. According to
Pedersen, Ince told Pedersen not to discuss the incident with the nephrologist. After

                                          -3-
hearing the information, the nephrologist did not order a redraw of any patients who
had incorrectly packaged blood samples.

       Following the patient care planning meeting, Pedersen contacted Kienzle to
report the incident about the blood samples. Kienzle assured Pedersen they would
investigate the incident and if any blood samples needed to be redrawn, then BMA
would do so. Pedersen indicated to Kienzle she believed the physicians and the
medical director should be notified of the incident. Kienzle responded Pedersen
should not tell the physicians about the incident because they would take care of the
employee issues at the clinic.

       Pedersen also reported the incident to several others, including a customer
service representative at Spectra; BMA’s employee line; Kelly Tarlton, a BMA
regional vice president; and Martha D’Sanchez, a BMA employee relations manager.
During these conversations, Pedersen reported not only the incident, but also that she
feared retaliation from management as a result of exposing questionable staff
practices and a cover-up by management. Both Tarlton and D’Sanchez contacted
Kienzle about Pedersen’s report. Kienzle informed them they had investigated the
incident and none of the blood samples were affected. Pedersen believes the
laboratory results were used to administer patient medications without first informing
the patients of the incorrectly packaged blood samples.

       On April 19, 2012, a patient reported to a patient care technician, who in turn
reported to Kienzle, Pedersen had slapped her arm during her previous two
treatments. BMA also received complaints Pedersen had impersonated Jennifer Bard,
a clinic manager, on April 2, 2012, and on April 18, 2012; she inappropriately
documented a patient’s treatment and failed to notify the physician as required; and
she failed to obtain proper doctor’s orders for the treatment of a patient. As BMA
investigated these performance issues, Pedersen went on medical leave from April 19,
2012, until May 28, 2012. While Pedersen was on leave, Kienzle asked Bard

                                         -4-
numerous times if there was a way to “get rid of” Pedersen and suggested a number
of reasons she could use to justify Pedersen’s discharge. On May 29, 2012, Kienzle
and Bard met with Pedersen to discuss her performance and their concerns. Pedersen
offered explanations for all of the occurrences, but Kienzle suspended Pedersen for
three days pending further investigation.

        Following BMA’s investigation, BMA determined Pedersen could return to
work under a corrective action plan, which included requiring Pedersen to refrain
from misrepresenting herself, to exhibit respectful and professional behavior, and to
appropriately document all actions with patients, obtain orders as required, and
communicate with physicans. Pedersen, however, did not return to work. By the end
of June 2012, BMA continued to offer Pedersen employment but as a patient care
technician rather than a registered nurse due to Pedersen’s length of absence and the
issuance of new nursing policies and procedures during the absence. Bard indicated
to Pedersen, however, she would be retrained to her registered nurse position.
Pedersen continued to refuse to return to work unless certain conditions were met by
BMA. BMA refused the requests, and after several months of additional discord and
Pedersen not returning to work, Tarlton informed Pedersen on September 4, 2012,
BMA was terminating Pedersen’s employment because it considered her failure to
return to work as a voluntary resignation of her employment.

      Pedersen then filed suit against BMA in Minnesota state district court, alleging
BMA retaliated against her in violation of the MWA for reporting the mishandling
of the blood samples and the cover-up of the incident by management. BMA
removed the suit to federal court and thereafter filed a motion for summary judgment.
The district court granted summary judgment to BMA, finding Pedersen failed to
show she engaged in statutorily-protected activity. Pedersen appeals.




                                         -5-
                                           II

       “We review a district court’s grant of summary judgment de novo, viewing the
facts in the light most favorable to the nonmoving party and giving that party the
benefit of all reasonable inferences that can be drawn from the record.” Johnson v.
Wells Fargo Bank, N.A., 744 F.3d 539, 541 (8th Cir. 2014) (internal quotation marks
and citation omitted). Summary judgment is proper if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party bears the burden of establishing a lack of
genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However,
the nonmoving party “may not rest upon mere allegation or denials of his pleading,
but must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “A mere scintilla of
evidence is insufficient to defeat summary judgment and if a nonmoving party who
has the burden of persuasion at trial does not present sufficient evidence as to any
element of the cause of action, then summary judgment is appropriate.” Brunsting
v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (internal quotation
marks and citations omitted).

       The MWA provides “[a]n employer shall not discharge, discipline, threaten,
otherwise discriminate against, or penalize an employee” because the employee, in
good faith, reported a violation or suspected violation of law to an employer,
governmental body, or law enforcement official or reported a situation in which the
quality of health care services “violates a standard established by federal or state law
or a professionally recognized national clinical or ethical standard and potentially
places the public at risk of harm . . . .” Minn. Stat. § 181.932, subd. 1(1), (4) (2007).
“Retaliation claims under the MWA . . . may be proven either by direct evidence or,
in the absence of such evidence, under the familiar McDonnell-Douglas burden-
shifting framework.” Wood v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir.
2013). “‘[D]irect evidence is evidence showing a specific link between the alleged

                                          -6-
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. (alteration in original) (quoting Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004)).

       Pedersen argues she presented direct evidence of retaliation, and in support of
her contention, she draws attention to statements made by Kienzle. We disagree. The
evidence does not show a specific link between Kienzle’s comments and BMA’s
adverse actions. See Griffith, 387 F.3d at 736. Rather, given BMA’s decision to
return Pedersen to work on a corrective action plan, promises to retrain Pedersen to
her previous position with BMA, and Pedersen’s continued failure to return to work
despite BMA’s efforts, we find no evidence in the record to suggest BMA’s actions
against Pedersen related to anything more than performance and absenteeism issues
rather than any comments regarding discharge made by Kienzle months earlier. See
Wood, 705 F.3d at 829 (“Termination for repeated failure to perform one’s job duties
cannot be characterized as direct evidence of a prohibited motive.”).

       Absent direct evidence of retaliation, Minnesota courts apply the McDonnell
Douglas burden-shifting framework to resolve a controversy premised on the MWA.
Hilt v. St. Jude Med. S.C., Inc., 687 F.3d 375, 378 (8th Cir. 2012). “Under
McDonnell Douglas, the initial burden is on the plaintiff to establish a prima facie
case.” Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d 826, 834 (8th Cir.
2007). “A prima facie case consists of (1) conduct by the employee that is protected
by the Act, (2) an adverse employment action directed at the employee, and (3) a
causal connection between the protected conduct and the adverse action.” Id. “If the
plaintiff establishes a prima facie case, a burden shifts to the employer to articulate
a legitimate reason for the adverse action.” Id. “The ultimate burden of proof then
rests with the plaintiff to prove that the proffered reason is merely a pretext and that
retaliatory animus motivated the adverse action.” Id.



                                          -7-
       Here, the district court determined Pedersen failed to establish a prima facie
case because her actions were not protected activities. Specifically, the district court
found Pedersen’s complaints did not amount to reports under the MWA because Ince
and Kienzle were already aware of the incident when Pedersen made her complaints.
See Erickson v. City of Orr, No. A05-481, 2005 WL 2277395, at *7 (Minn. Ct. App.
Sept. 20, 2005) (“[T]he mere mention of a suspected violation that the employer
already knows about does not constitute a ‘report’ under the [MWA].”). In addition,
the district court found even if Pedersen’s complaints amounted to reports, she failed
to demonstrate the reports implicated a violation of any law or ethical standard.

       Pedersen contends the district court erred. Citing Kidwell v. Sybaritic, Inc.,
749 N.W.2d 855, 869 (Minn. Ct. App. 2008), Pedersen first argues she sufficiently
demonstrated her complaints amounted to a report under the MWA because she made
additional complaints beyond the incorrect packaging of the blood samples about the
cover-up of the mishandling to sources outside of Ince and Kienzle. Pedersen also
argues the district court improperly failed to construe the record in the light most
favorable to her on a number of factual disputes. She additionally argues the district
court erred by finding her reports did not implicate violations of law or ethical
standards. In support of her contention, Pedersen argues Ince’s and Kienzle’s actions
were in contravention to multiple authorities, including BMA’s internal policies,
Centers for Medicare & Medicaid Services (CMS)/End Stage Renal Disease (ESRD)
Basic Technical Surveyor Training Regulations, 42 C.F.R. §§ 494.90, 494.70,
494.175(c)(2)(i), and Minnesota Statute §§ 144.4175, 148.261, subdivision (6).

       For purposes of this appeal, however, we need not decide whether Pedersen
presented sufficient evidence that she engaged in statutorily-protected activity to
survive BMA’s motion for summary judgment. Even if we were to assume Pedersen
established a prima facie case, she failed to provide sufficient evidence to overcome
the final step of the McDonnell Douglas analysis, showing pretext. See Wood, 705



                                          -8-
F.3d at 827 (“We may affirm a district court’s grant of summary judgment on any
basis supported by the record.” (internal quotation marks and citation omitted)).

       “If the plaintiff establishes a prima facie case, the employer then has the burden
to articulate a legitimate reason for the adverse action.” Hilt, 687 F.3d at 378
(internal quotation marks and citation omitted). “Once the employer has articulated
a legitimate reason, the plaintiff shoulders the ultimate burden of establishing a
whistleblower violation by demonstrating that the employer’s reason is merely a
pretext and that retaliatory animus motivated the adverse action.” Id. at 378-79
(internal quotation marks and citation omitted). “An employee’s attempt to prove
pretext requires more substantial evidence than it takes to make a prima facie case
because unlike evidence establishing a prima facie case, evidence of pretext and
retaliation is viewed in light of the employer’s justification.” Logan v. Liberty
Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (alterations omitted) (internal
quotation marks and citation omitted). Therefore, to prove pretext in a retaliation
case, the plaintiff “must both discredit [the] asserted reason for the [adverse action]
and show the circumstances permit drawing a reasonable inference that the real
reason for [the adverse action] was retaliation.” Gilbert v. Des Moines Area Cmty.
Coll., 495 F.3d 906, 918 (8th Cir. 2007).

      Here, BMA provided legitimate reasons for each of Pedersen’s alleged adverse
employment actions:2 (1) Pedersen’s suspension – BMA produced evidence it
suspended Pedersen pending further investigation because a patient reported Pedersen
slapped her; Pedersen impersonated Bard on two separate occasions; Pedersen
inappropriately documented a patient’s treatment and failed to notify the physician

      2
        We assume for purposes of our analysis that Pedersen’s alleged adverse
employment actions constitute actionable adverse actions. See Tademe v. Saint
Cloud State Univ., 328 F.3d 982, 992 (8th Cir. 2003) (“An adverse employment
action is exhibited by a material employment disadvantage, such as a change in
salary, benefits, or responsibilities.” (internal quotation marks and citation omitted)).

                                          -9-
as required; and Pedersen failed to obtain proper doctor’s orders for the treatment of
a patient, see E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 974 (8th Cir. 2014)
(finding an employee’s poor performance as a nonretaliatory reason for discharge);
(2) Pedersen’s demotion – BMA produced evidence it asked Pedersen to return to
work as a patient care technician rather than as a registered nurse because of
Pedersen’s lengthy absence, which had been approximately ten weeks up to that
point, and because new nursing practices and procedures had been issued during her
absence; Bard indicated to Pedersen, however, she would be retrained to her previous
position as a registered nurse; and (3) Pedersen’s termination – BMA produced
evidence it terminated Pedersen’s employment because she failed to return to work
after an approximately four month absence, see Green v. Franklin Nat’l Bank of
Minneapolis, 459 F.3d 903, 916-17 (8th Cir. 2006) (finding the employer had a
legitimate reason for terminating the plaintiff’s employment because the plaintiff
missed work to take classes after the employer denied her permission to take classes
due to a severe staffing crunch).

       Pedersen contends, however, the reasons offered are pretextual because BMA
ostensibly disciplined Pedersen for events occurring prior to her lodging her
complaints for which BMA did not originally discipline her. Pedersen argues BMA
used these events as a means to justify her termination when BMA’s true intention
was discriminatory and contends this evidence is enough to raise a genuine doubt as
to the legitimacy of BMA’s motive. Relying on McAdams v. Chertoff, No. Civ.
04108, 2005 WL 1630525, at *5 (D. Minn. July 11, 2005), Pedersen further contends
BMA either willfully exaggerated her deficiencies or carelessly characterized them
as inaccurate.

      After reviewing the record, we cannot conclude Pedersen has raised an issue
of material fact that BMA’s reasons for her suspension, demotion, and termination
were pretextual. Pedersen fails to offer any evidence disputing BMA’s explanations
for events which occurred after Pedersen first made her complaints or for events of

                                        -10-
which BMA did not become aware until after Pedersen first made her complaints.
Further, BMA offered Pedersen the opportunity to return to BMA for several months.
Although after Pedersen had been absent for approximately ten weeks, BMA offered
Pedersen a patient care technician position, BMA offered its reasons for doing such
and indicated it would retrain Pedersen to a registered nurse position. BMA also
offered evidence Ince met with Pedersen prior to Pedersen making any report and told
Pedersen she was suffering from performance issues at her registered nurse position
and needed to work with a more experienced staff. Pedersen has done nothing to
dispute these explanations. Pedersen has further failed to dispute BMA’s explanation
for finding she voluntarily resigned from her position after failing to return to work.
Pedersen’s speculation about an ulterior motive by BMA is unsupported and
contradicted by other undisputed facts in the record. Accordingly, we will not
second-guess BMA’s business decisions to suspend, demote and then terminate
Pedersen because of her performance, absence and refusal to return to work. See
Brown v. McDonnell Douglas Corp., 113 F.3d 139, 141-42 (8th Cir. 1997)
(recognizing that absent illegality, “we do not weigh the wisdom of any particular
employment decision” (internal quotation marks and citation omitted)). Because
Pedersen has failed to generate a genuine issue of material fact on the pretext issue,
the district court properly granted summary judgment.

                                          III

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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