Per Chris Tomasson at the Pioneer Press, investigator Chris Madel says only one more interview needs to be conducted before they can write their report and release the results of their investigation. From there it should only take ten days, according to Madel, to determine whether or not special teams coach Mike Priefer created a hostile work environment for former punter Chris Kluwe or engaged in the alleged homophobic behavior while Kluwe was on the team.

Should the investigation find against Mike Priefer, he will likely be fired and the issue put to rest. Otherwise, Kluwe will likely retaliate (Chris Kluwe has indicated multiple times that he and his lawyer, Clay Halunen, would sue the Vikings if the investigation concludes differently from Kluwe’s allegations).

In order to save myself the keyboard strokes, a recap from the update published back in April:

Kluwe initially publicized the allegations that Priefer said, with hostile intent that, “We should round up all the gays, send them to an island, and then nuke it until it glows,” on December 2nd in a Deadspin piece.

He further claimed that general manager Rick Spielman and then-head coach Leslie Frazier discouraged him from speaking out on social issues and had an unproductive meeting with team player development director Les Pico about Priefer’s comments shortly before being cut in May.

Priefer has vehemently denied Kluwe’s allegations, and kicker Blair Walsh—while not denying the allegations—spoke in favor of Priefer and defended his character shortly after Kluwe’s allegations were made public.

Since publishing that piece, I was able to talk to someone familiar with these kinds of proceedings in order to get a feel for how likely a suit would be should the investigation go south for Kluwe and the investigators find in Priefer’s favor.

 

In talking with him, he told me that the speculation from the original post was largely correct but he wanted to emphasize how difficult it is to win a retaliation suit in the current legal environment given the direction labor law has been trending.

First, it should be noted that there isn’t a lot of previous casework to draw upon regarding hostile workplace law that doesn’t directly deal with sexual harassment, though the general legal tests that have evolved over the years remain the same regardless. It is very difficult to win a hostile workplace claim in cases not dealing with sexual harassment for a variety of reasons.

There are a few avenues that Halunen and Kluwe can pursue, and they will likely pursue all of them. Even if Kluwe does not necessarily have a strong case to win the hostile workplace claim, he has a lot more viability for a retaliation suit—though that would not be a slam dunk for him, either.

The biggest issue regarding the retaliation claim is that the standard for what constitutes unlawful termination in regards to retaliation has changed recently. The Supreme Court recently found that the burden of proof should be changed from the looser “substantial factor” test (itself a more stringent standard than the previous “motivating factor” test), which means that Kluwe must somehow prove that he would have been employed “but for” his activism instead of proving that his activism was a “significant factor” in the decision to terminate his employment.

There are signs, according to the person I talked to, that Minnesota will not adopt the Supreme Court’s standard (as this would likely fall under the Minnesota Human Rights Act, Minnesota courts will use their interpretations). Minnesota has traditionally applied the “substantial factor” test in other tort claims, so despite identical language in the federal and state laws, it is significantly more likely that they will employ this second test.

In Anderson v. Hunter, Keith, Marshall & Co. (Minn 1988), the Minnesota Supreme Court rejected the claim that the argument “the employee would have been fired anyway” constitutes an affirmative defense. As far as I know, this is the most relevant standing precedent regarding retaliation claims under Minnesota case law and which tests can be used to determine whether or not an employer is running afoul of the MHRA—engaging in active efforts to create a hostile workplace for an employee participating in protected acts before terminating that employee is, as far as I know, verboten.

As we’ve indicated in the past, there is a substantial reason to believe that Kluwe’s performance was subpar enough to put his continued employment into question:

I am not a lawyer, but I think that any lawsuit that hinges on wrongful termination may end poorly, because they will require an interpretation of Kluwe’s 2012 performance. Chris Kluwe has been vocal and active in arguing that NFL punter averages are irrelevant in evaluating punter performance, a critical argument he uses in his Ray Guy Hall of Fame advocacy, yet argues that his punting average was good enough to retain employment.

For what it’s worth, nearly every special teams coach uses a play-by-play analysis similar to third-party evaluation website Pro Football Focus when evaluating special teams performance (important because PFF grades are often used in agent-team negotiations and a proxy to judge performance if Kluwe argues his grades were skewed). In PFF’s grades, he ranks 25th overall and had a 25th overall punting average (as counted by PFF which counts differently than the NFL, which ranks him 17th in punting average). As a punter due $1.45 million (against a rookie due $405,000), this may not fly.

There are several claims aside from retaliation that Halunen has indicated he will pursue on behalf of Chris Kluwe, including a religious discrimination claim, a “sexual orientation” claim and others. To save myself the keystrokes:

The claims regarding a protected class are extremely tricky, but generally speaking require (as far as I understand) that a member of a protected class initiate the suit or at least be the ones demonstrating harm. Should a member or former member of the Minnesota Vikings come out as not-straight (it is not a stretch that any orientation other than straight—not just gay—would feel threatened by Priefer’s comment) to support Kluwe’s lawsuit, this would go in a different direction.

It is largely tricky because this is one case the protected class is not immediately identifiable (unlike gender or race discrimination suits) and may be subject to (real or perceived) harm should they “out” themselves to be identifiable. Should Halunen effectively forward this argument (which is more compelling in casual conversations than legalese), Kluwe may have a case.

Any “hostile workplace” claims may fall under a similar purview, but reprisal may be a claim that Kluwe can most effectively pursue (based on my interpretation of law—again, I have not even taken a law school class, much less the bar). The Minnesota Human Rights Act outlines that one may be subject to protections not just by being members of a protected class, but protected against employers discriminating against those who “oppose discrimination” or “have friends from other protected classes.” It also protects employees who take part in “local Human Rights Commission Activity,” which Kluwe has not done.

Further, the Minnesota Human Rights Act does not protect against religious discrimination, but the broader term “creed,” which does not have to include God or Gods, but instead a broad set of strongly held beliefs.

Beyond that, the federal Equal Employment Opportunity Commission de facto processes claims regarding sexual orientation by broadly interpreting congressional mandates on religious discrimination in employment, though this may not hold up to challenges.

When talking to this person familiar with retaliatory claims under the MHRA, he told me that the courts will not have the power to force the Vikings to fire Mike Priefer (though I am of the belief they will do so voluntarily if the court or the investigation finds against him) but can impose a heavy fine.

Generally speaking, these kinds of cases rarely see trial either because they are thrown out in summary judgment or because they are settled. Because Kluwe is not in it for the money (though there are a lot of Vikings fans that think otherwise, I strongly disagree), it is unlikely a settlement would resolve the issue or that the Vikings’ lawyers would even attempt to settle the case. Instead, the Vikings will likely focus their efforts on getting the case thrown out in summary judgment.

Summary judgment is a process by which one party motions that all factual issues have been resolved and that there are no facts to try. This would largely be contingent upon the report that investigator Chris Madel is putting together; the investigation is not just a good-faith effort by the Vikings to make sure that everything is above-board, but a legal strategy that should, in the long term, protect them. It will also allow the Vikings to prove they didn’t act too rashly.

Kluwe and Halunen, of course, would argue that they think there are triable issues of fact, and would marshal the testimony of players who support Kluwe’s claim, any saved texts (of the kind Kluwe referred to) or an agreed-upon (or likely) history of behavior from Mike Priefer that would constitute support for at least one of Kluwe’s claims.