Bradley Wingate, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0226

Bradley Wingate,
Appellant,

vs.

Metropolitan Airports Commission,
Respondent.

Filed August 19, 2019
Reversed and remanded
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CV-18-562

David E. Schlesinger, Lucas J. Kaster, Nichols Kaster, PLLP, Minneapolis, Minnesota (for
appellant)

Kerry L. Middleton, Joseph D. Weiner, Littler Mendelson, P.C., Minneapolis, Minnesota
(for respondent)

Considered and decided by Connolly, Presiding Judge; Cleary, C hief Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Bradley Wingate challenges the summary-judgment dism issal of his
whistleblower claim against res pondent Metropolitan Airports Co mmission (MAC).
Wingate argues that the district court erroneously determined t hat there are no genuine

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issues of material fact that could allow him to establish that MAC’s failure to promote him
to the rank of sergeant violated the Minnesota whistleblower ac t (MWA), Minn. Stat.
§ 181.932 (2018). Because we conclude that there is a material -fact dispute regarding
whether MAC’s justification for not promoting Wingate was prete xtual, we reverse and
remand.
FACTS
Wingate is a police officer in MAC’s Airport Police Department (the department).
After Wingate was hired and completed training in 2005, he was a s s i g n e d a s a p a t r o l
officer. Shortly thereafter, the department also hired Roby Desubijana as a police officer.
At a social gathering outside of work in 2010, Desubijana took photographs of other
department officers present at the event; he then altered the i mages to depict homosexual
pornography. Desubijana showed the images to several officers at work, including
Wingate. A few weeks later, Desubijana took a photograph of Wi ngate changing clothes
in the men’s locker room at work. Wingate confronted Desubijana about the photograph,
but Desubijana fled out of the locker room. Wingate later attempted to confront Desubijana
by telephone, but Desubijana ignored him.
Wingate reported both incidents to his superiors. In response , Wingate and
Desubijana attended a mediation meeting with two sergeants and a lieutenant. Wingate
requested that the photograph of him in the locker room be dele ted, and Desubijana was
instructed to do so and to refrain from further inappropriate behavior.
Wingate received his 2010 performance evaluation soon after th e meeting. The
review included a “Not Achieved” rating in the “Communication” category and stated that

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Wingate struggled to communicate effectively with his peers and supervisors. Wingate
was later informed that this rating was based on his response t o the Desubijana incidents.
In December 2011, Wingate applied for and received a specialty assignment as MAC’s
liaison with the Drug Enforcement Administration (DEA) Task Force.
The following year, due to a sergeant vacancy, MAC initiated a promotion process.
The sergeant-promotion process includes two phases. In the fir st phase, candidate scores
are compiled from certain exercises that may include a panel in terview, written work
product review, and a first-line supervisor review. After the scores are calculated and
weighted, the candidates are then ranked accordingly. The second phase is comprised of a
“chiefs’ interview,” an interview with the chief of police and the two deputy chiefs of
police. The chiefs determine the number of candidates who proc eed to chiefs’ interviews
based upon the number of available positions and the scores from the initial phase.
Wingate applied for the sergeant promotion during the 2012 pro motion process.
After the first phase, another officer ranked first and Desubijana ranked second. The chiefs
interviewed the top two candidates and ultimately promoted Desubijana. Shortly after the
first promotion, another sergea nt position became available, an d the chief of police
promoted the first-ranked candidate from the 2012 candidate list.
In July 2012, Wingate joined the department’s Emergency Response Team (ERT).
A few months later, Wingate and other members of the ERT, inclu ding Desubijana,
traveled to Camp Dodge, Iowa for training. Prior to their depa rture, Lieutenant Keith
Roediger, the commander of the ERT, emailed the group, informin g them of “one very
simple rule” on the team—“[w]hat happens on [ERT], stays on [ERT], especially when we

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deploy to Camp Dodge . . . . [It’s] like [V]egas-baby[,] what h appens there stays there!”
While at training, Desubijana photographed another team member i n t h e s h o w e r . T h e
incident was reported to the supervisors present, and as discip line, Desubijana was
designated as the “sober driver” for the team’s celebrations on the last night of training.
After returning to MAC later that month, Desubijana took a vid eo of a sergeant in
his towel in the department locker room. Desubijana posted the video to a private YouTube
channel, which was accessible to other employees. The sergeant reported the incident to
his supervisors, but Desubijana did not receive any discipline.
In November 2012, Desubijana initiated a conversation with Win gate’s girlfriend
on Facebook. After asking whethe r she was Wingate’s girlfriend , Desubijana stated that
Wingate was “a nice guy; yes, but there’s a screw loose.” A fe w weeks later, Wingate
reported Desubijana’s conduct to his supervisor, detailing all of the incidents involving
Desubijana from the past few years. Wingate requested that his supervisor keep the
conversation private, but his supervisor relayed Wingate’s conc erns to Deputy Chief
Merlin Tolsma and another sergeant.
In July 2013, Wingate met with Deputy Chief Tolsma, who assure d Wingate that he
would investigate the matter further. Shortly thereafter, Deputy Chief Tolsma and another
deputy chief of police met with Desubijana, and he admitted to the allegations. Desubijana
received a five-day, unpaid suspension, with three days held in abeyance.
After learning of Desubijana’s discipline and believing it to be insufficient, Wingate
contacted his sister, an attorney. Following his sister’s reco mmendations, Wingate
reported his complaints to Human Resources (HR). HR initiated an internal affairs

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investigation, which sustained the allegations against Desubijana, with the exception of the
allegation that Desubijana targeted and defamed Wingate. Desubijana was suspended for
an additional two days and was required to serve the three days previously held in
abeyance.
In October 2013, another sergeant position became available. To fill the vacancy,
the chiefs discussed whether to p romote a candidate from the 20 12 promotion list or to
begin a new promotion process a ltogether. Later that month, MA C initiated a new
promotion process. Wingate applied for the promotion, and afte r the first phase, he was
ranked third. The top three candidates received a chiefs’ inte rview, and the first-ranked
candidate received the promotion. After a second sergeant position became available a few
months later, the chiefs decided against re-posting the positio n and instead promoted the
second-ranked candidate.
In late 2014, Chief of Police Mike Everson, being newly-promot ed, decided to
generate a new promotion list in a nticipation of a vacancy for a sergeant position. In
making this decision, Chief Evers on described his goal of incre asing diversity within the
department. Wingate again applied for the promotion, and after the initial phase, he ranked
fifth. At the time, the chiefs did not conduct any interviews or make any promotions. But
when a sergeant position became available in 2016, the chiefs conducted interviews of the
top three candidates from the 2014 list. A female officer was promoted to sergeant, and as
two sergeant positions became availa ble in the next few months, the chiefs promoted the
other two candidates who had participated in the chiefs’ interviews.

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In January 2017, Wingate was scheduled to rotate out of his po sition with the DEA.
Wingate sought to extend his pos ition with the DEA for one year , and Chief Everson
granted him a six-month extensi on in that role. In response, W ingate contacted Chief
Everson and informed him that he believed that he was being ret aliated against for his
complaints against Desubijana. During their conversation, Chief Everson advised Wingate
to “move on,” and that the issues with Desubijana were behind them.
Wingate returned to his patro l-officer position in July 2017. That same month, two
sergeant positions became availabl e. Wingate applied for the p romotion, and after the
initial phase, he ranked first out of all the candidates. Beca use two sergeant positions
needed to be filled, the chiefs decided to interview five candidates, including Wingate. The
chiefs promoted two candidates to the vacant sergeant positions and announced that the
two other candidates would remain in consideration for future o penings. Wingate,
however, was removed from the promotion list.
On January 9, 2018, Wingate filed a complaint against MAC, all eging retaliation in
violation of the MWA. MAC moved for summary judgment, asserting that Wingate failed
to establish a genuine issue of m aterial fact. The district co urt granted MAC’s motion,
determining that although Wingate established a prima facie cas e of retaliation under the
MWA, he failed to submit evidence sufficient to demonstrate tha t MAC’s articulated
reason for its promotion decisions 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

7
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 granted. STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). A genuine issue of materi al fact
exists if a rational fact-finder, when considering the record a s 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 discha rge, discipline, threaten,
otherwise discriminate against, or penalize an employee
regarding the employee’s com pensation, terms, conditions,
location, or privileges of employment because:
(1) the employee . . . in good f aith, reports a violation,
suspected violation, or planned violation of any federal or state
law . . . or rule adopted pursuant to law to an employer or to
any governmental body or law enforcement official . . . .

Minn. Stat. § 181.932, subd. 1.
When analyzing a whistleblower claim, Minnesota courts apply th e three-step
burden-shifting framework set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792,
93 S. Ct. 1817 (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 demo nstrate that the articulated
reason is pretextual. 411 U.S. at 802-04, 93 S. Ct. at 1824-25. To establish a prima facie
case under the MWA, an employee must present evidence to show t hat (1) the employee

8
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 statuto rily protected conduct. Coursolle, 794 N.W.2d at 657. The
parties do not dispute that Wingate engaged in protected conduct and suffered an adverse
employment action.
I. The issue of causal connection is not properly before this court.
In its response brief, MAC argues that the district court erred in determining that
Wingate established a prima facie case of retaliation under the MWA because he presented
no evidence of a causal connection between his complaints and a ny promotion decision.
Minn. R. Civ. App. P. 106 provides, “After an appeal has been filed, respondent may obtain
review of a judgment or order entered in the same underlying ac tion that may adversely
affect respondent by filing a no t i c e o f r e l a t e d a p p e a l . ” A r e spondent is barred from
presenting issues not raised by a notice of related appeal. Arndt v. Am. Family Ins. Co. ,
394 N.W.2d 791, 793 (Minn. 1986). But a respondent is not requ ired to file a notice of
related appeal where the respondent “advances on appeal an argument that was presented
to, but was not ruled on by, the district court and is an alter native ground that supports
affirmance of a judgment or order that was entered in responden ts’ favor.” Day Masonry
v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 332 (Minn. 2010).
Here, the district court ruled on the issue of causal connecti on, and MAC was
therefore required to file a notice of related appeal. See City of Ramsey v. Holmberg, 548
N.W.2d 302, 305 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996) (“Even if the
judgment is ultimately in its favor, a party must file a notice of [related appeal] to challenge

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the district court’s ruling on a particular issue.”); see also Aase v. Wapiti Meadows Cmty.
Tech., 832 N.W.2d 852, 857 n.1 (Minn. App. 2013) (declining to consi der respondent-
employer’s argument that appellant-employee failed to establish a p r i m a f a c i e c a s e o f
discrimination because the res pondent-employer failed to file a notice of related appeal),
review denied (Minn. Aug. 6, 2013). Because the district court ruled advers ely to MAC
on the issue of causal connection and MAC failed to file a noti ce of related appeal, the
issue is not properly before this court, and we decline to consider it.
II. The district court erred in de termining that Wingate failed to demonstrate that
MAC’s articulated reason for it s promotion decision was pretextual.

Once an employer articulates a legitimate, nondiscriminatory r eason for the adverse
employment action, the burden returns to the employee to demonstrate that the articulated
reason is a pretext for discrimination. Ward v. Emp. Dev. Corp. , 516 N.W.2d 198, 202
(Minn. App. 1994), review denied (Minn. July 8, 1994). A plaintiff may fulfill this prong
of McDonnell Douglas “either directly by persuading the court that a discriminatory reason
likely motivated the employer or indirectly by showing that the employer’s proffered
reason is unworthy of credence.” Sigurdson v. Isanti Cty. , 386 N.W.2d 715, 720 (Minn.
1986) (quotation omitted). “But to prove pretext, the employee must do more than show
that the employment action was ill-advised or unwise, but rathe r must show that the
employer has offered a phony excuse.” Meads v. Best Oil Co. , 725 N.W.2d 538, 542-43
(Minn. App. 2006) (quotation omitted), review denied (Minn. Feb. 20, 2007).
Evidence of pretext may include the same evidence offered to e stablish the prima
facie claim. Smith v. Allen Health Sys., Inc. , 302 F.3d 827, 834 (8th Cir. 2002). But the

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burden of establishing pretext requires more substantial eviden ce than that required to
establish a prima facie case “be cause unlike evidence establish ing the prima facie case,
evidence of pretext and discrimination is viewed in light of th e employer’s justification.”
Sprenger v. Fed. Home Loan Bank of Des Moines , 253 F.3d 1106, 1111 (8th Cir. 2001);
see also Hoover v. Norwest Private Mortg. Banking , 632 N.W.2d 534, 546 (Minn. 2001)
(“In some cases, sufficient eviden ce may consist of only the pl aintiff’s prima facie case
plus evidence that the employer’s proffered reason is untrue. In other cases, more may be
required.”).
MAC’s articulated reason for not promoting Wingate was that Wi ngate was “too
rigid and black and white withou t a sufficient grasp of the big picture role of a manager
within [the department] and the larger organization of the MAC. ” Wingate counters that
several circumstances demonstrate that this reason was pretextu al: (1) MAC’s subjective
promotion process; (2) Wingate’s continued engagement in protected activity; (3) the 2012
ranking list; (4) MAC’s decision to repost the decision in 2014 ; (5) Wingate’s positive
performance history; (6) comments made by Wingate’s supervisors; (7) MAC’s promotion
patterns between 2012 and 2017; and (8) a similar retaliation complaint. We address each
argument in turn.
Subjective Promotion Process
Wingate first argues that MAC’s promotion process supports a reasonable inference
of pretext because the ultimate pr omotion decision is left to t he subjective perception of
the chief of police. When determ ining whether there is a mater ial-fact issue in regard to
pretext, this court may consider an employer’s lack of objectiv e hiring criteria. Meads,

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725 N.W.2d at 543. But “[w]here the employer does not rely exc lusively on subjective
criteria, but also on objective criteria and education, the use of subjective considerations
does not give rise to an inference of discrimination.” Torgerson v. City of Rochester, 643
F.3d 1031, 1049 (8th Cir. 2011). Here, MAC’s promotion process es included both
objective and subjective standards, such as the written exercis e, first-line supervisor
review, panel interview, and chiefs’ interview. And “[e]mployers are entitled to compare
applicants’ performance during interviews.” Id. Aside from arguing that promotion
decisions rest entirely on the subjective beliefs of the chief of police, Wingate fails to
identify any evidence that the in terviews in which he participa ted were discriminatory.
Accordingly, MAC’s promotion process does not create an inference of pretext.
Continued Engagement in Protected Activity
Wingate next contends that his continued engagement in protected activity supports
a reasonable inference of pretext. He maintains that he “was a squeaky wheel that
continually needed oiling,” and th at a reasonable juror could i nfer that MAC’s “need to
repeatedly spend time and resources on Wingate’s complaints and/or have him questioning
what was happening at the organization” played a role in MAC’s promotion decisions.
In support of his argument, Wingate relies on Eliserio v. United Steelworkers of Am.
Local 310, 398 F.3d 1071 (8th Cir. 2005). In Eliserio, the Eighth Circuit determined that
a reasonable jury could infer that the employer’s attempt to re move 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 compl aints of racial harassment.” Id. at 1079. But,

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importantly, the employer in Eliserio admitted that he was forced to devote significant time
investigating and remedying the employee’s complaints. Id.
Given that Wingate has not provided evidence that anyone was c oncerned about the
impact of his statements on the department, his argument is unpersuasive. On the contrary,
after Wingate reported Desubijana’s conduct in 2012, he recount ed in his deposition that
Deputy Chief Tolsma thanked him, stating, “[h]ey, I just want y ou to know, all that stuff
you brought to me, we needed to know that.” Wingate’s continue d engagement in
protected activity does not create an inference of pretext.
2012 Ranking List
Wingate further asserts that M AC altered the 2012 rankings to lower his rank from
third to sixth, and that this s upports an inference of pretext. In one document containing
the candidates’ final rankings in the 2012 promotion process, W ingate ranked third.
However, in another document with the candidates’ names covered , the promotability
index was removed by hand, causing Wingate’s rank to decrease t o sixth. Wingate
contends that MAC provided no j ustification for the alteration of the 2012 rankings. But
it does not appear from the record that Wingate ever inquired into the reason MAC removed
the promotability index. Because “ the party resisting summary judgment must do more
than rest on mere averments,” DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn. 1997), the
2012 ranking list does not support an inference of pretext.
2014 Promotion Process
Next, Wingate contends that MAC’s decision to repost the serge ant position in
2014, rather than promote a can didate from the existing list, h as no basis in fact and is

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therefore pretextual. In his deposition, Chief Everson explain ed that, because the 2014
promotion process was his first as chief of police, he intended to ensure that the sergeant
class properly represented the department by including more diverse members. Wingate,
however, contends that this jus tification for reposting the ser geant list is untrue because
Chief Everson could have hired a female candidate in 2013, when he was the hiring
manager, and Chief Everson hired four white males after becomin g chief of police. But
Wingate’s argument ignores that the first candidate promoted out of the 2014 process was
a female officer, and his assertion is therefore unpersuasive.
Wingate’s Performance History
Wingate also argues that his performance record directly contr adicts MAC’s reason
for not promoting him to sergean t. “Evidence of a strong emplo yment history will not
alone create a genuine issue of material fact regarding pretext and discrimination, but it can
be relevant when considering whether the record as a whole establishes a genuine issue of
material fact.” Guimaraes v. SuperValu, Inc. , 674 F.3d 962, 975 (8th Cir. 2012)
(quotations omitted). According to MAC, the reason that it did not promote Wingate was
because he was “too rigid and black and white without a sufficient grasp of the big picture
role of a manager within [the department] and the larger organi zation of the MAC.” But,
aside from Wingate’s 2007 evalua tion where his supervisor comme nted that he “has a
tendency to appear black and white,” these comments do not appe ar in any of Wingate’s
evaluations.
Wingate’s positive performance history throughout his career a t MAC casts genuine
doubt upon MAC’s stated reason fo r not promoting him to sergean t. In Wingate’s

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evaluations from 2014 to 2016, hi s supervisors classified his p erformance as “Achieved”
or “Exceeds” in every job categor y, including job knowledge and comprehension, work
quality, productivity and timeline ss, problem solving and decis ion-making, interpersonal
skills, communication, MAC policie s, and department- and positi on-specific
competencies. In Wingate’s 2014 p e r f o r m a n c e r e v i e w , h i s s u p e r visor noted that he
“[t]eaches others well” and advised him to “[c]onsider brushing up on interview skills for
future promotional opportunities.” And while MAC points to Win gate’s excessive-force
case in 2008 as evidence of poor supervisory skills, Wingate also had positive supervisory
experience as a field training officer after that case.1 Indeed, Wingate delayed his transfer
to the DEA position, upon the request of MAC, to train a new officer. Moreover, in 2017,
Wingate received the “Chief’s Award of Merit,” which is “[a]war ded to the department
member for courageous, outstanding or unusual performance of du ty that is significantly
beyond that normally expected and may be based on a single act or on exemplary work
over an extended period of time.” That same year, Wingate rank ed first out of all the
candidates following the initial phase of the promotional proce ss. Wingate’s positive
performance reviews directly challenge MAC’s articulated reason for not promoting him
to sergeant and suggest that the reason is pretextual.

1 In 2008, MAC and Wingate were sued for alleged excessive use of force. Orsak v. Metro.
Airports Comm’n Airport Police Dep’t, 675 F. Supp. 2d 944 (D. Minn. 2009). The lawsuit
arose out of an incident where Wingate ordered a trainee to use a taser on a bicyclist after
the bicyclist failed to follow his commands. Id. at 948-51. The federal district court
dismissed MAC from the lawsuit, but concluded that “[a] reasonable jury could conclude
that Officer Wingate’s order to deploy the taser was not reasonable in light of the severity
of [the bicyclist’s] crimes, the threat posed by [the bicyclist ], and [the bicyclist’s] lack of
active resistance or flight.” Id. at 955. The matter settled out of court.

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Supervisor Comments
Wingate further asserts that comments made by his supervisors call into question
MAC’s stated reason for not promoting him. First, Wingate clai ms that Lieutenant
Roediger’s e-mail from 2013, which advised against promoting a candidate from the 2012
promotion list, demonstrates retaliatory motive. In that e-mai l, along with criticizing the
two other top-ranked candidates from the 2012 list, Lieutenant Roediger stated as to
Wingate, “No Way . . if I have to explain why . . . . then go do your homework.” (Ellipses
in original.) Next, Wingate poi nts to Lieutenant Roediger’s su pervisor-ranking sheet,
submitted during the initial phase of the 2017 promotion process. On the form, Lieutenant
Roediger listed an area of concern for Wingate, advising that he “needs to let events of the
past go that are negative in nature. I.E.: removal from DEA, p ast issue w/ Sgt.” Lastly,
Wingate asserts that a deputy ch ief acknowledged the potential for negative employment
consequences arising from Wingate’s protected activity, and tha t this acknowledgment is
evidence of a retaliatory atmosphere. MAC ascribes its own meanings to these remarks.
The district court dismissed t his argument as speculative, stating that “[a]t this stage
in the McDonnell Douglas analysis, the Court need not view the evidence in the light most
favorable to Wingate, but instead, Wingate retains the burden o f establishing that the
defendant’s conduct was based on unlawful discrimination.” (Qu otation omitted). But
while evidence of pretext is considered in regard to the employer’s proffered justification,
Sprenger, 253 F.3d at 1111, the overarching summary-judgment standard requires that the
facts be viewed in the light mos t favorable to the non-moving p arty, Sanchez v. Dahlke
Trailer Sales, Inc., 897 N.W.2d 267, 272 (Minn. 2017).

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Taking such a view, these comments cast doubt on MAC’s articul ated reason for
not promoting Wingate. Lieutenant Roediger’s comment in 2013 implicitly indicates that
Wingate should not be promoted from the 2012 list because of hi s reports regarding
Desubijana’s conduct. And the 201 7 remark, made during the pro motion process,
explicitly lists Wingate’s engage ment in protected conduct as a n area of concern. The
deputy chief’s concern that Wingate would face adverse employment actions arising from
his reports also tends to show t hat MAC’s stated reason for not promoting Wingate was
not the true reason. See, e.g., Erickson v. Farmland Indus., Inc. , 271 F.3d 718, 727 (8th
Cir. 2001) (“Evidence of a discriminatory attitude in the workplace, though it may not rise
t o t h e l e v e l o f d i r e c t e v i d e n c e , m a y a l s o t e n d t o s h o w t h a t t h e employer’s proffered
explanation for the action was not the true reason for the discharge.”). The remarks made
by Wingate’s supervisors, when viewed in the light most favorab le to Wingate, create an
inference of pretext.
Promotion Processes Between 2012 and 2017
In addition, Wingate also points to MAC’s promotion processes between 2012 and
2017 as evidence of pretext. He asserts that MAC always promot ed the first-ranked
candidate after the first phase o f the promotion process, and t hat MAC’s pattern of
bypassing him for promotion on nine occasions could allow a jury to conclude that he was
subject to retaliation.
During the 2017 promotion process, when Wingate ranked first o ut of all the
candidates, MAC promoted lower-ranked candidates to fill the tw o vacant sergeant
positions and removed Wi ngate’s name from future consideration. H o w e v e r , i n t h e

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previous promotion processes, MAC promoted the first-ranked can didate, either from a
newly-created promotion list to fill a current vacancy or later from an existing list to fill a
subsequent vacancy. Considered in the light most favorable to Wingate, the fact that he
was not promoted when he was the first-ranked candidate in 2017, despite MAC’s history
of promoting the first-ranked candidate, supports an inference that Wingate’s engagement
in protected activity was the true reason that MAC did not promote him to sergeant.
Similar Complaint of Retaliation
Finally, Wingate contends that a sergeant’s similar complaint of retaliation supports
his own argument that MAC’s proffered reason for not promoting him was pretextual.
Wingate cites Hite v. Vermeer Mfg. Co. in support of his argument. 446 F.3d 858 (8th Cir.
2006). In that case, on appeal from a jury verdict, the court considered evidence that other
employees, in addition to the appellant, experienced retaliatio n for taking leave under the
Family and Medical Leave Act and concluded that this evidence demonstrated a pattern of
discrimination. Id. at 868.
Here, the district court distinguished Hite stating that, unlike the employees in Hite,
Wingate was not similarly-situated to the sergeant who also reported retaliation. However,
this distinction is misplaced. The Hite court did not analyze the status of the employees,
but merely included in its analysis that other employees also experienced retaliation by the
employer. Id. The sergeant’s complaints of retaliation therefore support Wingate’s claim.
In sum, we conclude that Wingate’s positive performance review s, together with his
supervisor’s remarks, MAC’s promotion patterns, and a sergeant’ s similar report of
retaliatory conduct, support an inference that Wingate’s engage ment in protected activity

18
was the true reason that MAC did not promote him to sergeant. Because there is a triable
issue on the pretext prong of the McDonnell Douglas t e s t , s u m m a r y j u d g m e n t i s
inappropriate.
Reversed and remanded.