Michael Bliss, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0530

Michael Bliss,
Respondent,

vs.

Itasca County,
Appellant.

Filed November 6, 2017
Affirmed
Cleary, Chief Judge

Itasca County District Court
File No. 31-CV-16-3257

Matthew H. Morgan, Lucas J. Kaster, Nichols Kaster, PLLP, Minneapolis, Minnesota (for
respondent)

Jessica E. Schwie, Jason M. Hill, Tal A. Bakke, Jardine, Logan & O’Brien, PLLP, Lake
Elmo, Minnesota (for appellant)

Considered and decided by Larkin, Pres iding Judge; Cleary, Chief Judge; and
Worke, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this appeal from an order denying a motion for judgment on the pleadings,
appellant Itasca County contends that the district court lack ed subject-matter jurisdiction
2
to hear respondent Michael B liss’s whistleblower claim becau se he failed to exhaust his
administrative remedies. Because Bliss is not required to exhaust his administrative
remedies, we affirm.
FACTS
Bliss is employed by the co unty in the sheriff’s depart ment as an investigative
supervisor. In November 2014, Bliss conversed with the subordinate of another supervisor;
Bliss alleges the conversation was unlawfully monitored by two colleagues. A few days
after the conversation, Bliss filed a written complaint against the colleagues.
Over a year after filing his complaint, Bliss was terminated for alleged misconduct.
Bliss grieved his termination pursuant to the collective-bargai ning agreement (CBA)
between his union and the county; following arb itration, he was reinstated with full back
pay and benefits but for a 30-day suspension. Bliss alleges that he suffered further
retaliation after reinstatement and, in November 2016, Bliss filed a civil action in district
court alleging that the termination and pos t-reinstatement retaliation violated the
Minnesota whistleblower act, Minn. Stat. § 181.932 (2016).
The county moved for judgment on the plea dings on the ground that the district
court lacked subject-matter jurisdiction over the claim because Bliss failed to exhaust his
administrative remedies under the CBA. The district court denied the county’s motion.
D E C I S I O N
The county argues that the district cour t lacked subject-matter jurisdiction because
Bliss failed to exhaust his administrative remedies. Bliss argues that he is not required to
3
exhaust his administrative remedies because his whistleblower claim does not derive from,
or require interpretation of, the CBA. We agree.
“Subject-matter jurisdiction is the court’s au thority to hear the type of dispute at
issue and to grant the type of relief sought.” Seehus v. Bor-Son Constr., Inc., 783 N.W.2d
144, 147 (Minn. 2010). The existence of su bject-matter jurisdiction “is a question of law
that [appellate courts] review de novo.” Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn.
2015). “Defects in subject-matter jurisdiction may be raised at any time, and cannot be
waived by the parties.” Seehus, 783 N.W.2d at 147. “Additionally, subject-matter
jurisdiction cannot be conferred by consent of the parties.” Id. (quotation omitted).
“Generally, an employee must exhaust a ll administrative remedies provided under
a collective bargaining agreement before bri nging an action derived from the contract in
district court.” Edina Educ. Ass’n v. Bd. of Educ. , 562 N.W.2d 306, 3 10 (Minn. 1997).
However, there is no exhaustion requirement if a state law claim does not derive from or
require interpretation of any terms of a CBA. See McDaniel v. United Hardware Distrib.
Co., 469 N.W.2d 84, 88 (Minn. 1991) (where de termination of the retaliatory discharge
claim “does not require interpretation of a collective bargaining agreement, . . . Minnesota
law does not require the employee to exhaust contractual remedies before bringing the civil
suit”).
Determining whether a statutory claim derives from a CBA requires comparing the
elements of the claim to the CBA provisions. See, e.g., Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 407, 108 S. Ct. 1877, 18 82 (1988) (examining a statutory retaliatory-
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discharge claim in the contex t of workers’ compensation); Brevik v. Kite Painting, Inc. ,
416 N.W.2d 714, 718-19 (Minn. 1987) (examining a statutory retaliatory-discharge claim
in the context of the Minnesota Occupational Safety and Health Act).
The U.S. District Court for the District of Minnesota has applied these rules to
claims under the Minnesota whistleblower act. In Rosen v. Transx Ltd., that court held that
“[a] state law claim is not ne cessarily inextricably intertwined [with a CBA] even though
it involves analysis of the same set of facts as a claim arising under the agreement.” 816
F. Supp. 1364, 1369 (D. Minn. 1993) (quotations omitted). The court then adopted the
reasoning in Lingle in concluding that “[a]nalysis of the factors needed to establish a claim
for retaliatory discharge under Minnesota’s whistleblower statute only requires analysis
of factual questions and requires no analysis of any provisions or terms” of a CBA. Id. at
1370-71. The court later reiterated in an unpublished opinion that “[w]here a plaintiff seeks
to enforce statutory, rather th an contractual rights, arbitra tion provides a concurrent, but
not exclusive, dispute resolution procedure.” Wheale v. Cloquet Cmty. Mem. Hosp. , No.
Civ. 02-3554 RHK/RLE, 2003 WL 21667172, at *2 (D. Minn. July 15, 2003) (quotations
omitted).
The United States Supreme Court in Lingle also emphasized that an employer’s
motive in terminating an employee and its nonretaliatory reason for discharge are both
factual inquiries. 486 U.S. at 400, 108 S. Ct. at 1883. The Court concluded that “the state-
law analysis might well involve attention to the same factual considerations as the
contractual determination of whether [an employee] was fire d for just cause. But we
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disagree . . . that such parallelism renders the state-law analysis dependent upon the
contractual analysis.” Id.
Bliss’s whistleblower claim does not challeng e the county’s author ity to direct its
workforce as outlined in the CBA. Rather, it challenges the motive underlying the county’s
decision to discharge Bliss. Such a factual analysis does not require interpreting any terms
of the CBA and accordi ngly does not preclude subject-ma tter jurisdiction. Bliss may
maintain his whistleblower claim that asserts independent, statutory rights even though it
involves attention to the same factual consid erations as a contractual analysis under the
CBA.
Schuyler v. Metro. Transit Comm’n , 374 N.W.2d 453 (Minn. App. 1985) is
distinguishable. There, the employee was discharged on grounds of absenteeism and
brought suit against his employer alleging that he was wrongfully discharged for seeking
workers’ compensation benefits . 374 N.W.2d at 454. The court examined whether the
employee was required to have exhausted his administrative remedies prior to filing his
workers’ compensation action. Id. The court implicitly acknowledged that the employee
would not be required to exhaust his admini strative remedies if he was asserting an
independent cause of action that did not derive from the CBA. Id. at 456. The court
ultimately concluded that while the workers’ compensation claim a ppeared independent,
the employee was essentially claiming that his employer violated the CBA by discharging
him without merit. Id. Because resolution of the employee’s claim required interpretation
of the CBA, the court held that he was required to exhaust his administrative remedies. Id.
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Two years later, the supreme court held th at an employee’s statutory retaliatory-
discharge claim did not derive from the CBA. Brevik, 416 N.W.2d 714. The court
explained that the employee’s statutory clai m was not essentially a claim for wrongful
discharge under the CBA:
A trial court faced with a retaliatory discharge claim . . . must
determine if the plaintiff employee was, in fact, terminated for
exercising [statutory] rights or, instead, was terminated for any
other non-discriminatory, legitimate reason. There is no need
for the trial court to determine if the non-discriminatory reason
put forth by the employer would otherwise justify discharge
under the collective bargaining agreement. The inquiry is
limited to deciding whether or not plaintiff was terminated for
exercising [statutory] rights.

Id. at 718-19. As in Brevik, a trial court analyzing Bliss’ s whistleblower claim would be
required to determine if the county discharged him for exercising his statutory rights and
would not need to determine if the county’s nonretaliatory reason would otherwise justify
termination under the CBA. In contrast to Schuyler, Bliss’s claim rests not on wrongful
discharge but on unlawful discharge.
The lack of a “just caus e” provision in the CBA in Brevik (and the existence of one
in Schuyler) is inapposite. While Brevik mentions that the CBA lacked a “just cause”
provision, the court does not explain how the existence of such a provision would change
the decision. Moreover, Lingle suggests that such a provision is a non-issue. There, the
Court expressly rejected the lower court’s conclusion that the state-law claim derived from
the CBA because the trial court would be deciding “precisely the same issue as would an
arbitrator: whether there was ‘just ca use’ to discharge the worker.” Lingle, 486 U.S. at
7
408, 108 S. Ct. at 1882-83. Here, regardless of how an arbitrator would interpret the “just
cause” provision of Bliss’s CBA , the county may not infringe on Bliss’s statutory rights
under the whistleblower act. Bliss’s statut ory claim does not depend on interpreting any
provision of the CBA.
Finally, Bliss did not specifically agree to arbitrate his whistleblower claim.
Generally, statutory claims can be “appropriately resolved through arbitration,” and courts
have routinely enforced such agreements. Green Tree Fin. Corp.-Ala. v. Randolph , 531
U.S. 79, 89, 121 S. Ct. 513, 521 (2000); see also Johnson v. Piper Jaffray, Inc., 530 N.W.2d
790, 795 (Minn. 1995). But the Court in Lingle noted: “[N]otwithstanding the strong
policies encouraging arbitration, different considerations apply where the employee’s
claim is based on rights arising out of a stat ute designed to provide minimum substantive
guarantees to individual workers.” 486 U.S. at 412, 108 S. Ct. at 1884. In Piper Jaffray,
the Minnesota Supreme Court held that th e employee was bound by her arbitration
agreement because it en compassed the specific dispute sh e attempted to litigate. 530
N.W.2d at 795-98. By submitting to the authority of an arbitr ator on that specific claim,
the arbitrator properly had jurisdiction over the employee’s statutory claim. Id. at 801. In
contrast to Piper Jaffray , the CBA here limits arbitrati on to disputes regarding “the
violation or application of specific provisions” of the agreement and does not outline any
specific grounds for termination beyond just cause.
Because Bliss asserts an inde pendent, statutory claim that does not derive from or
require interpretation of the CBA, he was not required to exhaust his administrative
8
remedies prior to filing his whistleblower action in district court. The district court had
subject-matter jurisdiction over his claim a nd properly denied th e county’s motion for
judgment on the pleadings.
Affirmed.