Colleen M. Auer Plaintiff- Appellant
City of Minot Defendant-Appellee Colleen M. Auer Plaintiff- Appellant
City of Minot Defendant-Appellee
Submitted: April 9, 2018
Appeals from United States District Court for the District of
North Dakota - Bismarck
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
the second of what will be at least three decisions from this
court arising out of Colleen Auer's one-month stint as
city attorney for Minot, North Dakota. See Auer v. Trans
Union, LLC, 834 F.3d 933 (8th Cir. 2016); Auer v.
CBCInnovis, Inc., No. 17-2413 (submitted Apr. 9, 2018).
In this installment, Auer accuses the city of firing her for
reporting harassment and discrimination. She also claims the
city retaliated against her for speaking out at a
city-council meeting and unfairly besmirched her professional
reputation. Because we conclude Auer's harassment
allegations were unprotected and her remaining claims are
meritless, we affirm the district court's grant of summary
judgment to the city.
three weeks into her one-year probationary term as city
attorney, Auer sent a "Notice and Demand" to the
president of the city council, the interim city manager, and
the city's human-resources director. In the notice, Auer
accused the interim city manager, Cindy Hemphill, of
"unlawful harassment based on sex." Auer claimed
Hemphill had made impossible demands on certain aspects of
her work, prevented her from performing other key duties, and
repeatedly required her to act against her better judgment as
an attorney. As proof that this alleged mistreatment was
sex-based, Auer recounted a meeting, held two days before she
sent the notice, at which Hemphill had raised concerns about
Auer's performance and her interactions with colleagues.
According to Auer, Hemphill revealed her bias by comparing
Auer to the previous city attorney, who was a man.
mayor directed three members of the city council, including
the council president, to investigate. The council members
conducted interviews, received a written response from
Hemphill, and filed a report concluding that "no
harassment based upon sex occurred." The mayor agreed
and closed the case. Hemphill fired Auer the next day, with
the blessing of the mayor and the council president.
city council met a few days later. When the council president
opened the floor to "other business," Auer stood
and accused Hemphill of violating state and local law by
firing her without first consulting the council. Hemphill
defended her decision, including the procedure she used. The
council then voted unanimously to "ratify and
approve" Auer's termination. Afterward, when council
members asked why Auer had been fired, the city clerk sent
them copies of Auer's notice, Hemphill's written
response, and the report the mayor had received. When local
news reporters asked the council president about Auer's
termination, he mentioned insubordination as the reason for
sued and eventually advanced three theories of liability: (1)
the city fired her in retaliation for reporting illegal
sex-based harassment and discrimination; (2) the city
unfairly tarnished her professional reputation without giving
her a chance to defend herself; and (3) the city retaliated
against her for publicly challenging the process that led to
her termination. The district court granted summary judgment
to the city. On appeal, Auer principally argues that she was
entitled to present her theories to a jury.
a detour. In addition to her substantive claims, Auer appeals
the district court's denial of a motion seeking to
sanction the city for its alleged malfeasance in losing
evidence. According to Auer, she was entitled to a
presumption that the lost evidence proved her
allegations. The court held that the grant of summary
judgment on the merits mooted Auer's motion. This put the
cart before the horse. After all, if Auer was entitled to the
presumption she sought, it was premature to grant summary
judgment without evaluating whether the presumption itself
could create a genuine dispute of material fact on at least
some of Auer's claims.
so, Auer is not entitled to relief. Precisely because
deciding a case based on hypothesized evidence is strong
medicine, Federal Rule of Civil Procedure 37(e)(2)(A)
expressly states that an adverse presumption requires a
finding that electronically stored information was lost
because one party "acted with the intent to deprive
another party of the information's use in the
litigation." See also Greyhound Lines, Inc. v.
Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) ("The
ultimate focus for imposing sanctions for spoliation of
evidence is the intentional destruction of evidence
indicating a desire to suppress the truth . . . .").
did not present sufficient evidence of this serious and
specific sort of culpability. She supported her request with
allegations that incriminating voicemails, emails, and other
electronic communications were lost because the city failed
to properly search some computers, tablets, and phones;
waited too long to search others; and generally failed to
take basic steps necessary to find and preserve files that
could be relevant to her case. Still, her allegations would
at most prove negligence in the city's handling of
electronic information, not the sort of intentional,
bad-faith misconduct required to grant an adverse
presumption. See Stepnes v. Ritschel, 663 ...