Mark Osland, Appellant,

This opinion will be unpublished and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
A18-0301

Mark Osland,
Appellant,

vs.

City of Minneapolis,
Respondent.

Filed September 4, 2018
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CV-16-13720

Matthew H. Morgan, Anna P. Prakash, Lucas J. Kaster, Nichols Kaster, PLLP,
Minneapolis, Minnesota (for appellant)

Susan L. Segal, Minneapolis City Attorney, Tracey N. Fussy, Ivan Ludmer, Assistant City
Attorneys, Minneapolis, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Smith, John, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant police sergeant challenges the sum mary-judgment dismiss al of his
whistleblower claim against respondent city. Appellant argues that the district court
erroneously determined that there are no genuine issues of material fact that could allow
appellant to establish that the city’s failure to promote him to the rank of lieutenant violated
the Minnesota whistleblower act (MWA), Minn. Stat. § 181.932 (2016). We affirm.
FACTS
Appellant Mark Osland joined the Minneapoli s Police Department as a police
officer in 1989. He was promoted to sergeant in 1998 and currently works as an
investigator in the department’s assault unit . Although Osland has sought a promotion to
the rank of lieutenant since 2005, he has not been promoted to a permanent lieutenant
position or assigned to a temporary “detail” position to cover a leave of absence taken by
a permanent lieutenant.
Osland alleges that the city violated the MWA by failing to prom ote him in
retaliation for him engaging in five instances of protected conduct from 2007 through 2015.
Those five instances are (1) filing an internal complaint in 2007 asserting sexual -
orientation discrimination by his supervisor ; (2) joining a 2009 lawsuit, which ultimately
settled, against the department alleging ret aliation for the 2007 complaint; (3) declining a
colleague’s request in 2010 or 2011 to recommend felony assault charges against a person
who had filed a civil suit against the city , and informing the county attorney about the
purported request; (4) giving a statement in 2014 or 2015 as part of a United States

3
Department of Justice investigation of the 2010-2011 events; and (5) filing an internal
complaint in December 2015 asserting that he was denied promotions due to his earlier
protected conduct.
The city moved for summary judgment, and the district court granted the city’s
motion, reasoning that Osland did not offer evidence that would establish (1) a prima facie
case under th e MWA or (2) that the department’s reason for not promoting him was
pretextual. This appeal follows.
D E C I S I O N
We review summary judgment decisions de novo. Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010). We “determine whether the
district court properly applied the law and whether there are genuine issues of material fact
that preclude summary judgment.” Id. The evidence is viewed in the light most favorable
to the party against whom summary judgment was gra nted. STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76 -77 (Minn. 2002). A genuine issue of material fact
exists if a rational fact -finder, when considering the record as a whole, could find for the
non-moving party. Coursolle v. EMC Ins. Grp., Inc. , 794 N.W.2d 652, 657 (Minn. App.
2011), review denied (Minn. Apr. 19, 2011).
Under the MWA:
An employer shall not discharge, discipline, threaten,
otherwise discriminate against, or penalize an employee
regarding the employee’s compensation, terms, conditions,
location, or privileges of employment because:
(1) the e mployee . . . in good faith, reports a violation ,
suspected violation, or planned violation of any federal or state

4
law . . . or rule adopted pursuant to law to an emp loyer or to
any governmental body or law enforcement official;
(2) the employee is requested by a public body or office
to participate in an investigation, hearing, inquiry.

Minn. Stat. § 181.932, subd. 1.
When analyzing a whistleblower claim, Minneso ta courts apply the three -step
burden-shifting framework set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792,
802, 93 S. Ct. 1817, 1824 (1973). Cokley v. City of Ostego, 623 N.W.2d 625, 630 (Minn.
App. 2001), review denied (Minn. May 15, 2001). The McDonnell Douglas burden-
shifting framework requires the plaintiff to establish a prima facie case, the employer to
articulate a legitimate, nonretaliatory reason for its action, and the plaintiff to demonstrate
that the articulated reason is pretextual. 411 U.S. at 802, 93 S. Ct. at 1824. To establish a
prima facie case under the MWA, an employee must present evidence to show that (1) the
employee engaged in statutorily protected conduct, (2) the employee suffered an adverse
employment action, and (3) there is a causal connection between the adverse action and the
employee’s involvement in the statutorily protected conduct. Coursolle, 794 N.W.2d
at 657.
The district court determined that Osland failed to show the existence of a genuine
issue of material fact regarding a causal connection, and that, even if Osland could establish
a prima facie case, he could not establish that the city’s arti culated reasons for its actions
were pretextual. For purposes of this opinion, we assume that Osland engaged in protected
conduct and that he suffered an adverse employment action.

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I. Prima Facie Case of Causal Connection
Retaliatory motive may be established by circumstantial evidence. See Cokley, 623
N.W.2d at 632. But sheer speculation is not circumstantial evidence. Id. at 633. Osland
argues that he offered evidence that would allow a reasonable juror, making all inferences
in his favor, to find a causal connection between his conduct and the department’s failure
to promote him or place him in a detail position . That evidence is (1) he continually
engaged in protected activity, (2) he ranked fourth on the 2015 promotional exam list and
others ranked above and b elow him were promoted or placed in detail positions , (3) he
performed his duties exceptionally well, and (4) a member of the executive team 1 had
animus toward him that was known throughout the department. We address each argument
in turn.
Continual Engagement in Protected Activity
Osland contends that his continual engagement in protected activity supports a
reasonable inference of retaliation. He argues that he “was a squeaky wheel that
continually needed oiling,” and that a reasonable juror could infer that the department’s
“need to repeatedly spend time and reso urces on Osland’s complaint” played a role in the
executive team’s decision to deny him a promotion.

1 The executive hiring team consists of the police chief, assistant chief, three deputy chiefs,
the chief financial officer, and the community engag ement coordinator. When making
promotion decisions, the executive team considers a candidate’s previous work experience,
leadership ability, personality, and the needs of the position. The chief of police makes the
final promotion decision.

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Osland relies on Eliserio v. United Steelworkers of Am. Local 310 to support his
argument. 398 F.3d 1071, 1079 (8th Cir. 2005). In Eliserio, the Eighth Circuit determined
that a reasonable jury could infer that the employer’s attempt to remove an employee from
a position was motivated by the employer’s “desire to avoid the drain on his time caused
by [the employee’s] continuing complaints of racial haras sment.” Id. Notably, t he
employer in Eliserio admitted that he was forced to devote significant time to investigating
and attempting to remedy the complaints. Id.
Eliserio is distinguishable because Olsand has not provided evidence that anyone in
the department was concerned about the impact of Osland’s complaints on the department.
Osland’s participation in protected activity, by itself, could support an inference of
causation if “the employer has actual or imputed knowledge of the protected activity and
the adverse employment action follows closely in time.” Hubbard v. United Press Int’ l,
Inc., 330 N.W.2d 428, 445 (Minn. 1983) (emphasis added). But unless the adverse action
occurred “very close” in time, mere temporal proximity does not create a genuine issue of
fact regarding causation. Compare Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 273-
74, 121 S. Ct. 1508, 1511 (2001) (holding 20 -month period between filing of
discrimination complaint and alleged adverse employment action does not suggest
causality to show prima facie case of retaliation under Title VII), and Freeman v. Ace Tel.
Ass’n., 467 F.3d 695, 697 (8th Cir. 2006) (determining three-week time period insufficient

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to establish causation),2 with Hubbard, 330 N.W.2d at 445 (concluding that two days’ time
between protected activity and termination created inference of retaliation).
While Osland has produced evidence that some members of the executive team were
aware of his participation in protected activity, his protected activity did not occur in close
temporal proximity to the department’s promotion decisions. Nearly all of Osland’s
protected activity occurred from 2007 through early 2015, and the department’s promotion
decisions were made in September 2015, April 2016, and August 2016. Osland also filed
a complaint with human resources in December 2015, but even this conduct occurred four
to eight months before the department’s next promotion decisions in April and August
2016 and its detail-assignment decisions in May and August 2016.
Although the department placed two sergeants in detail positions on December 20,
2015, and in some circumstances, a ten-day time span may support a causal inference, it is
not sufficient to create a genuine issue of material fact on retaliatory motive given the
evidence in the record on detail-assignment decisions. Rather than performance on the
promotional exam, t he department considers a candidate’s availability, previous work
experience and training, and the ease of moving someone into a detail position. Osland
has not produced evidence that his experience and availability suited the detail positions.
Viewing the evidence in the light most favorable to Osland, the district court did not err in

2 We rely on federal cases as persuasive authority, and note that the Minnesota Supreme
Court has previously relied on federal cases construing the federal whistleblower act when
interpreting the MWA. See Anderson-Johanningmeier v. Mid-Minn. Women’s Ctr., Inc.,
637 N.W.2d 270, 277 (Minn. 2002) (citing federal cases interpreting the Whistleblower
Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified at various sections of
5 U.S.C.) to interpret the MWA).

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determining that Osland’s involvement in protected conduct from 2007 -2015 was
insufficient to support an inference of a causal connection to later promotion and detail
decisions.
Exam List
A sergeant with a bachelor’s degree and five years of experience, including two
years of supervisory experience and one year of investigative experience was eligible to
take the 2015 lieutenant’s exam, which consisted of a wr itten exam a nd role-playing
exercise. The exam was administered by an outside consulting firm. The executive team
was provided a list of the top -scoring candidates according to the “rule of three,” which
requires consideration of two more candidates than the number o f open positions.
Therefore, for a single open position, the executive team consider ed the three highest -
ranked candidates. For two positio ns, the executive team considered the four highest -
ranked candidates . C andidates considered by the executive team completed a written
interview.
Osland took the lieutenant’s exam four times and scored high enough to be eligible
for promotion in 2005, 2013, and 2015. He placed fourth on the 2015 exam but was not
promoted. Osland argues that the department’s decision to promote candidates ranked
below him on the exam list supports an inference that his protected activity played a role
in the department’s decision not to promote him. We disagree. Osland presented no
evidence that, aside from developing the list of names forwarded to the executive team and
police chief, the specific ranking of candidates impacts decisionmaking for permanent
promotions. And as noted above, Osland has not produced evidence that the department

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relies on a candidate’s exam ranking when assigning detail positions. Osland’s theory is
speculative and does not show a genuine issue of fact on a causal connection.
Osland’s Qualifications
Osland next argues that the department’s failure to promote him to a permanent
lieutenant position or assign him to a temporary detail, despite his qualifications, supports
an inference of retaliation. Although evidence in the record supports Osland’s assertion
that he was qualified, it is undisputed that other candidates were as well . And general
qualifications are but one factor for detail assignments , which are filled by taking into
account specific qualifications of available candidates and the goal of minimizing
disruption within the department. Osland’s general qualifications, considered in a vacuum,
do not create a genuine issue of material fact that the department was motivated by his
engagement in protected activity when it decided not to promote him or assign him to a
detail.
Animosity
Osland contends that the record supports an inference that his former supervisor,
who later became assistant chief and served on the executive team, prevented the team
from fairly considering Osland’s promotion application because of personal animosity
against Osland stemming from his 2007 complaint against her. Osland cites Malin v.
Hospira, Inc. to support his argument . 762 F.3d 552, 560 (7th Cir. 2014) . In Malin, an
employee was repeatedly denied promotions after making a complaint against the hiring
supervisor. Id. The Seventh Circuit determined that the evidence permitted an inference
that the hiring supervisor “had a long memory and repeatedly retaliated against” the

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employee, despite the employee’s “immediate supervisors repeatedly [ informing] her that
she would be an excellent fit for newly-available positions at higher salary grades and that
they would recommend that she be promoted into them .” Id. The Seventh Circuit
concluded that there was “ample evidence” to support the inference of retaliation. Id. at
559.
Osland argues that a jury could conclude that his former supervisor similarly had a
long memory and repeatedly retaliated against him like the supervisor in Malin. But unlike
the employee in Malin, none of Osland’s supervisors actively r ecommended him for
promotion, and Osland has not provided “ample evidence” to support an inference that his
supervisor’s purported animosity from a 2007 complaint played a role in later promotion
decisions. The record is devoid of evidence that the former supervisor made disparaging
comments other than a statement that she disliked being the subject of a complaint or that
the supervisor discussed Osland outside of the promotion-selection meeting. Although the
former supervisor stated in an executive team meeting that O sland was a mediocre
investigator, the observation was in response to a specific question about Osland’s
performance and was supported by identified deficiencies noted in Osland’s investigations.
Viewing the evidence in the light most favorable to Osland, the district court did not err in
concluding that Osland has not shown a genuine issue of material fact as to whether a
former supervisor’s displeasure at being accused of discriminatory conduct supports a
prima facie causal connection to the decision not to promote him.
Because Osland has not demonstrated a genuine issue of material fact with respect
to causal connection, Osland cannot establish a prima facie case of retaliation under Minn.

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Stat. § 181.932, subd. 1 . We therefore conclude that the distr ict court did not err by
granting the department’s motion for summary judgment, and we do not reach the question
whether the articulated reasons for promotion decisions were pretextual.
Affirmed.