171535P.pdf   07/19/2018  Colleen Auer  v.  City of Minot
   U.S. Court of Appeals Case No:  17-1535
                          and No:  17-1943
   U.S. District Court for the District of North Dakota - Bismarck   
   [PUBLISHED] [Stras, Author, with Colloton and Shepherd, Circuit Judges] 
   Civil case - Employment discrimination. For a related appeal, see Auer v. 
   Trans Union, LLC, 834 F.3d 933 (8th Cir. 2016). In this action, plaintiff, 
   a probationary city attorney, alleged the City fired her for reporting 
   harassment and discrimination and retaliated against her for speaking out 
   at a city council meeting and unfairly damaged her professional 
   reputation. Plaintiff was not entitled to a presumption that lost evidence 
   proved her allegations as the record would show, at most, negligent 
   handling of electronic records and not the kind of intentional, bad-faith 
   misconduct required to grant an adverse presumption; plaintiff's only 
   articulated basis for concluding she was experiencing sex-based harassment 
   was that the City Manager compared her work style to the former city 
   attorney, a male, and this evidence was insufficient to establish under 
   North Dakota law that plaintiff reasonably believed the complained-of 
   conduct was illegal; plaintiff never reported sex stereotyping and such a 
   report could not have been the basis for her termination; claim that 
   plaintiff suffered reputational harm from allegedly false statements about 
   her job performance and termination in the affidavits accompanying the 
   City's summary judgment motion fails as a matter of law as the affidavits 
   were created well after the time of the supposed injury to her reputation 
   and imposition of liability upon the filing would force the City to either 
   withhold evidence or face potential liability for using it; plaintiff 
   failed to present sufficient evidence to support a finding that her speech 
   was a substantial or motivating factor in the City Council's decision to 
   ratify her termination.