This opinion will be unpublished and

may not be cited except as provided by

Minn.  Stat.  § 480A.08, subd.  3 (1998).






Lawrence Walker,





Minnesota Mining & Manufacturing Company,

d/b/a 3M,



Employee Development Corporation, et al.,



Filed May 2, 2000

Affirmed in part and reversed in part

Amundson, Judge


Ramsey County District Court

File No.  C5983913

Larry E. Reed, Hassan & Reed, Ltd., 1000 Reed Professional Center, 2311 Wayzata Boulevard, Minneapolis, MN 55405 (for appellant)


Kathleen M. Mahoney, David M. Wilk, Oppenheimer, Wolff & Donnelly, LLP, 1700 First Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Minnesota Mining & Manufacturing Company)


Barbara L. Forry, David D. Alsop, Elliot L. Olson, Gislason & Hunter, LLP, P.O. Box 5297, 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343 (for respondents Employee Development Corporation, et al.)

            Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


This case arises out of appellant Lawrence Walker’s treatment for a workplace injury.  Walker filed a complaint against his employer Minnesota Mining & Manufacturing Co. (3M), the treatment consulting firm Employee Development Corp., (EDC), and his case manager, Michael Hill, alleging: (1) negligence; (2) intentional infliction of emotional distress; (3) statutory violations; (4) interference with contract; (5) defamation; (6) invasion of privacy; (7) discrimination; and (8) fraud. Most of Walker’s claims against 3M were dismissed on 3M’s motion to dismiss for failure to state a claim.  Following discovery, 3M and EDC moved for summary judgment.  The district court granted the motion and dismissed all remaining claims on a motion for summary judgment.

On appeal, Walker argues that the district court erred in concluding that most of his claims against 3M are preempted by federal labor law and state workers’ compensation law.  Additionally, Walker claims that the district court erred in granting summary judgment in favor of 3M, EDC, and Hill on the claims that survived the motion to dismiss. 

We hold that the district court erred in concluding that Walker’s claims were preempted by federal labor law, but Walker is not entitled to relief because the district court did not err in concluding that (a) Walker’s negligence claims against 3M are preempted by state workers’ compensation law; (b) 3M is not liable for the acts of EDC or Hill; and (c) Walker failed to establish a prima facie case or provide sufficient probative evidence on his remaining claims.


Walker, a 59-year-old African-American, has worked at 3M for approximately 25 years, and continues to be employed in the same position and receiving the same salary as he did before the commencement of this lawsuit.  As a union member, he is covered by a collective bargaining agreement (CBA) with 3M that covers “rates of pay, hours of work and other conditions of employment.”  The CBA refers to a separate benefit booklet containing provisions on illness, accidents, long-term disability plans, and medical care.  The CBA also contains a grievance procedure, requiring an employee exhaust all remedies provided in the CBA, including mandatory arbitration, unless a settlement is reached.

In 1987, Walker injured his shoulder on the job.  He received workers’ compensation benefits and continuing medical treatment.  3M retained EDC to assist with Walker’s medical treatment.   EDC employee, Michael Hill, served as Walker’s case manager, and the two had a strained relationship from the outset.

Walker complained to his supervisors, human resources personnel, 3M’s benefits administrator, and the OCAW steward about Hill, and sought to have him removed from his case.  Walker filed a grievance under the CBA alleging that he was being treated differently, that he had been “violated,” and that workers’ compensation laws were being violated.  The grievance was abandoned; Walker did not reach a settlement with 3M and he did not exhaust his remedies under the grievance procedure.

 Walker also filed a complaint about Hill with the Minnesota Department of Labor and Industry’s Rehabilitation and Medical Affairs Unit.  The agency issued a private reprimand by way of a stipulated agreement of discipline noting that Hill violated data privacy rules when he communicated with Walker’s doctor after Walker had rescinded the authorization to do so.  The agency prohibited Hill from representing himself as a Qualified Rehabilitation Consultant (QRC) unless providing statutory rehabilitation services, prohibited him from referring to a rehabilitation plan when none was in effect, and levied a $450 fine.

            Walker subsequently brought suit in district court, which summarily denied his claims.  This appeal followed.


I.  Preemption

A.  Section 301 Federal Labor Law Preemption

The Supremacy Clause of the United States Constitution authorizes congress to preempt state law.  Allis-Chalmers v. Lueck, 471 U.S. 202, 208, 105 S. Ct. 1904, 1909 (1985).  Section 301 of the Labor Relations Management Act (LRMA) makes private sector collective bargaining agreements enforceable in federal court.  29 U.S.C. § 185 (a) (1998).  State law claims that are substantially dependent upon an analysis of the terms of a CBA are preempted.  Allis-Chalmers, 471 U.S. at 220, 105 S. Ct. at 1916.  Even if resolution of both claims under a CBA and claims under state law involve the same facts, the state law claim is independent for section 301 preemption purposes as long as it can be resolved without interpreting the CBA.  Lingle v.  Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S. Ct. 1877, 1883 (1988); Ferrell v. Cross, 557 N.W.2d 560, 564-65 (Minn. 1997).  If Walker’s claims against 3M were preempted under section 301, the district court lacked subject matter jurisdiction.  Therefore, we must address this threshold question.

The district court concluded that Walker’s nondiscrimination claims were preempted by federal labor law.  Walker argues that preemption was applied erroneously because the district court failed to identify any specific provision in the CBA that would govern and because the court need not interpret the CBA to resolve his claims.  We agree.

3M and the district court relied primarily on Moore v. General Motors Corp., 739 F.2d 311 (8th Cir. 1984).  In that case, an employee brought tort claims for misrepresentation and fraud against her employer, alleging that she had been led to believe that she would be transferred to different work facility.  Id. at 313.  The court found her claims preempted because employee transfers were specifically covered by transfer agreements in the CBA at issue.  Id. at 316.  In concluding that her claims were preempted, the court noted that an employee may bring an action in federal court for breach of a CBA even if the alleged conduct is arguably protected or prohibited by the National Labor Relations Act (NLRA).  Id.

Relying on Moore, the district court here reasoned that state law claims are preempted if they are arguably or potentially subject to the National Labor Relations Act.  This, however, misreads Moore.  Preemption which precludes all claims arguably protected or prohibited by the NLRA, does not engage section 301 preemption.  Id. at 375 (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 780 (1959)).  Section 301 simply requires a claim to arise out of a collective bargaining agreement or interpretation of its terms.  Allis-Chalmers, 471 U.S. at 219, 105 S. Ct. at 1915.

3M argues that adjudication of Walker’s claim requires interpretation of the CBA.  But the language in the CBA on which 3M relies is a general provision indicating that the CBA governs Walker’s “conditions of employment.” Determination of Walker’s claims is not substantially dependent upon an analysis of this language from the CBA.  In contrast, the salient language of CBA in Moore, was hyponimic and contained a specific, detailed provision regarding the very procedure being challenged.  Moore, 739 F.2d at 316.

Because Walker initially filed a grievance under the CBA, 3M contends he is now precluded from asserting state law rights.  This court, however, has already determined that Walker’s claims are “independent” of the CBA.  Walker’s decision to file a grievance does not change the legal character of his state law claims, and it is the “independent” legal character of which permits his claim to advance.  Livadas v. Bradshaw, 512 U.S. 107, 123-24, 114 S. Ct. 2068, 2078 (1994).  Accordingly, Walker’s nondiscrimination claims are not preempted by federal labor law.

B.  State Workers’ Compensation Law Preemption

The liability of an employer under the Minnesota Workers’ Compensation Act (WCA) for injuries sustained in the course of employment is “exclusive and in place of any other liability.” Minn. Stat. § 176.031 (1998).  For the exclusivity provision to apply, an injury must arise out of the employment, must be in the course of the employment, and must not be caused by an intentional, directed assault.  Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn. 1992).

Walker argues that his claims are not related to his workplace injury, but rather to tortious acts occurring during the course of his treatment.  Walker’s claims for discrimination, invasion of privacy, emotional distress, defamation, and fraud are distinct from his original injury, and therefore are not preempted, because they clearly lie outside the scope of the act. “[W]here an injury does not fall within the [WCA], the remedy is not affected by that act.” Karst v. F.C. Hayer Co., 447 N.W.2d 180, 184 (Minn. 1989).

Walker’s negligence claims, however, are a different issue.  The negligence claims focus on 3M’s actions in managing Walker’s recovery from his workplace injury return to work.  3M’s duty to facilitate Walker’s recovery arose from Walker’s fall through a roof while performing job duties. Therefore, 3M’s retention of EDC, Hill’s assignment to manage Walker’s return to work, and the alleged misconduct of Hill all clearly arose from the original injury, and the exclusivity provision applies.

II.  Standard of Review on 3M’s Motion to Dismiss

Walker contends that the district court erred when it concluded that Walker failed to state claims on which relief could be granted, and granted 3M’s motion to dismiss.  The standard for our review of motions to dismiss is whether the complaint sets forth legally sufficient claims for relief.  Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980).  A claim is legally sufficient if on any evidence it is possible to grant the relief sought.  Id.  Furthermore, it is immaterial whether the complainant can prove the facts alleged.  Id.

Here, however, the district court considered matters outside the pleadings, i.e., the CBA and the benefit handbook attached to 3M’s motion.

When matters outside the pleadings are presented to a court considering a motion to dismiss, and those matters are not excluded by the court when it makes its determination, the motion to dismiss shall be treated as one for summary judgment.


Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

The motion to dismiss was converted into a motion for summary judgment because the district court expressly considered exhibits outside the pleadings in his decision, and Walker, briefing the issue after the hearing, had a reasonable opportunity to present material on issues raised by these matters outside the pleadings.  See Erickson v. County of Clay, 451 N.W.2d 666, 669 (Minn. App. 1990) (conversion proper if record shows plaintiff had reasonable opportunity to address the additional matters).  The district court did not err in treating 3M’s motion to dismiss for failure to state a claim as one for summary judgment.  There remains for review, the surviving claims against 3M and the nondiscrimination claims against EDC and Hill under a summary-judgment standard.

III.  Summary Judgment

On appeal from summary judgment, this court must decide whether there are genuine issues of material fact and whether the district court erred in applying the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  On review, we view the evidence in the light most favorable to the party appealing the judgment.  Fabio, 504 N.W.2d at 761.  When the nonmoving party bears the burden of proof on an essential element of the case, failure to provide sufficiently probative evidence may compel summary judgment.   DLH, Inc. v.  Russ, 566 N.W.2d 60, 71 (Minn. 1997).

With the exception of Walker’s discrimination claims, his claims against 3M are inextricably linked to Hill’s conduct.  Because nothing in the record establishes an independent basis for imposing liability on 3M, Walker must show that 3M had a duty to control EDC or Hill for it to be held vicariously liable.

Generally, one has no duty to control the acts of a third person from causing injury to another. Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn. App. 1993), review denied (Minn. Jan. 27, 1994).  Whether a duty to protect a party from harm by third persons exists, depends upon the relationship among the parties and the foreseeability of harm to others.   Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).  EDC was an independent contractor hired by 3M to oversee Walker’s treatment for his work-related injury.  3M was not responsible for supervising Hill’s work in Walker’s treatment.  Nothing in the record suggests that Hill’s misconduct was foreseeable by 3M.  There is, therefore, no error in the district court’s conclusion that 3M lacked the requisite control and supervision over EDC and Hill for vicarious liability to attach.  The district court did not err in dismissing claims against 3M for emotional distress, invasion of privacy, fraud, and defamation allegedly perpetrated by Hill.

A.  Discrimination Claims

The Minnesota Human Rights Act prohibits discrimination regarding the conditions or privileges of employment on the basis of an employee’s race or age.  Minn. Stat. § 363.03, subd. 2 (c) (1998).  The plaintiff has the burden of establishing a prima facie case of discrimination.  Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 227 (Minn. 1995) (using shifting-burden analysis from McDonnell-Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).   To establish a prima facie case of discrimination, Walker must show that because of his race and age he was subjected to unequal treatment.  Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978). 

Walker argues that he stated a prima facie case for race and age discrimination.  Despite allegations that he was “treated differently,” he failed to present substantial evidence of unequal treatment based on his age or race.  In fact, Walker remained employed at the same rank, salary, and position at 3M. The district court did not err in dismissing Walker’s age and race discrimination claims.

B.  Tort Claims

Walker’s negligence claims against 3M are barred by the WCA as his exclusive remedy, only his claims against EDC and Hill survive.

1.  Negligent Supervision and Retention

Minnesota recognizes three causes of action in negligence against an employer when one of its employees causes an injury: negligent hiring, negligent retention, and negligent supervision.   M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn.  App. 1995), review denied (Minn. July 20, 1995). Walker alleged negligent supervision, negligent control, and unspecified negligence against EDC and Hill.  For purposes of this appeal, we construe these counts as claims for negligent supervision and negligent retention.

“Liability for negligent supervision of an employee is imposed under a theory of respondent superior.”   Oslin v. State, 543 N.W.2d 408, 414 (Minn.  App. 1996), review denied (Minn. Apr. 1, 1996).  To make out a successful claim for negligent supervision, the plaintiff must prove (1) the employee’s conduct was foreseeable; and (2) the employer “failed to exercise ordinary care when supervising the employee.”  Id. at 415.   Negligent retention imposes direct liability on an employer for an employee’s intentional tort if the employer “knew or should have known” of the employee’s propensity to engage in injurious conduct.  Yunker v. Honeywell, Inc., 496 N.W.2d at 422 (Minn. App. 1993) (citation omitted), review denied (Minn. Apr. 20, 1993).  An essential element of a negligent retention claim is actual physical injury or the threat of physical injury.   Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn. App. 1996).

The record contains no evidence showing that EDC was on notice that Hill was not doing his job properly, and Walker did not establish the existence of physical injury or threat of physical injury.  Therefore, the district court properly granted summary judgment on the negligent supervision and retention claims.

2.  Negligent and Intentional Infliction of Emotional Distress

            For a claim of intentional infliction of emotional distress to be actionable, the conduct “must be extreme and outrageous, so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.”  Haagenson v. National Farmers Union Property & Cas. Co., 277 N.W.2d 648, 652-53 n.3 (Minn.  1979) (citation omitted).  The burden of proof is on the plaintiff to establish that the defendant’s conduct caused severe emotional distress. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983).   To establish a claim for negligent infliction of emotional distress, the plaintiff must prove that defendant’s conduct caused emotional distress accompanied by physical manifestations.  K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn. 1995). 

            Although the record establishes that Walker was angered and inconvenienced by Hill’s conduct (the private reprimand letter from the Department of Labor and Industry substantiates claims that Hill’s conduct was objectionable), there is no evidence that Walker suffered severe emotional distress or emotional distress with attendant physical manifestations.   The district court did not err by granting summary judgment on Walker’s claims of emotional distress.

3.  Interference with Contract

To be successful, a claim of interference with contract must show “(1) the existence of a contract; (2) the alleged wrongdoer's knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.” Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994). Walker alleges Hill interfered with this medical treatment on this claim.  Even assuming that Walker’s relationship with his medical providers can be viewed as contractual in nature, he failed to establish that he suffered damages.  Walker claims that his benefits were terminated.  The record shows, however, that they were reinstated the same day they were terminated, and that Walker’s treatment was not disrupted.  The district court did not err in granting summary judgment on Walker’s claim of interference with the contract.

4.  Defamation

To make a claim for a defamation, a plaintiff must establish that the alleged statements were made, that they were communicated to someone other than Walker, that they were false, and that, as a result, his reputation was harmed.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  Even if a defamatory statement is communicated to another, the person who made the statement will not be liable if it is privileged and the privilege is not abused.   Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 889 (Minn. 1986).  For a communication to be privileged, it “must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.”  Stuempges, 297 N.W.2d at 256-57 (citation omitted).

Walker contends that Hill communicated to Walker’s doctor that he suspected Walker was perpetuating a fraud on the workers’ compensation system by drawing excessive benefits while working under “light duty” restrictions that made his job less physically stringent.  The district court concluded that even if the statements were communicated by Hill to Walker’s doctor, they were privileged. Hill apparently may have been concerned that Walker was ready to return to work but was not willing to do so.  The district court did not err in concluding that such a statement, if construed as an expression of Hill’s medical opinion, was made for the proper purpose of commenting on Walker’s readiness to return to work with appropriate restrictions.  The alleged defamatory statements were protected by a qualified privilege because they were made with a proper motive, upon proper occasion, and with a reasonable basis, and the district court’s grant of summary judgment on this claim was proper.

5.  Invasion of Privacy

Minnesota does now recognize claims for invasion of privacy.  Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998). Walker alleges that Hill invaded his protected privacy by acquiring medical records, accompanying Walker to treatment appointments, and sharing information from medical reports with Walker’s supervisor at 3M.  This conduct is petty and totally unworthy of a professional, but not sufficiently analogous to the circumstances in Lake to withstand summary judgment.  See id. at 235 (remanding case as stating a claim of violation of protected privacy interest where store allegedly distributed nude photographs of plaintiffs).  Courts are not empowered to fashion and enforce remedies for callous, boorish, or petty behaviors.

6.  Fraud

To establish a claim for fraud, Walker must show that a false representation of a material fact was knowingly made, upon which another reasonably relied, resulting in damages.  Rognlien v. Carter, 443 N.W.2d 217, 220 (Minn. App. 1989), review denied (Minn. Sept. 21, 1989).  Fraud claims must be plead with particularity.  Minn. R. Civ. P. 9.02.  Walker’s complaint alleges that “[d]efendant made fraudulent representations and statements as set forth in this complaint regarding plaintiff knowing them to be false” and that “[a]s a direct and proximate result of Defendant’s actions, Plaintiff has suffered injuries and incurred the damages as set forth in this Complaint.” The district court correctly dismissed this claim because it lacked the requisite particularity and also because Walker failed to allege and establish actual damages resulting from the alleged false representations.

C.  Statutory Duty

Walker asserted a claim against 3M based on alleged breach of statutory duty contained in the rules of practice for qualified rehabilitation consultants (QRC).  See Minn. R. 5220.1806 (1997) (workers’ compensation rule regarding disciplinary action of QRCs.)  As the district court found, 3M is not a QRC.  Even if the rule gave rise to a private cause of action, Walker’s claim against 3M must fail.  The district court did not err in dismissing this claim.

IV.  Obstruction of Benefits

Walker argues that his workers’ compensation benefits were obstructed in violation of Minn. Stat. § 176.82 (1998).   Because Walker raises this argument for the first time on appeal, and in light of Walker’s inconsistent argument that the WCA does not apply to this case, the issue is waived and we do not address it.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (arguments presented for the first time on appeal may be considered waived).

The district court did err concluding that Walker’s state law claims were preempted by section 301 of the LRMA.  Walker’s negligence claims against his employer are, in fact, barred by the WCA.  The district court, however, did properly apply the summary judgment standard to claims not barred by the exclusive remedy provision of the WCA.  Because 3M is not vicariously liable for conduct by EDC and Hill, and (b) there was an inadequate showing of discrimination, physical injury and knowledge of Hill’s propensities, severe emotional distress and physical manifestations, damages arising from alleged interference with contract, defamation statements not protected by privilege, extreme invasion of privacy, fraud, or breach by 3M of any statutory duty, summary judgment on all of Walker’s claims was proper.

Affirmed in part and reversed in part.

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