This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








Martha Johnson,





Independent School District No. 118, et al.,




Filed June 5, 2001


Hanson, Judge



Cass County District Court

File No. C2-00-629



Martha Johnson, 204-3rd Avenue East, Federal Dam, MN 56641 (pro se appellant) 


James R. Andreen, Erstad & Reimer, P.A., 3800 West 80th Street, Minneapolis, MN 55431 (for respondent)



            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.


U N P U B L I S H E D  O P I N I O N


Appellant worked as a bus monitor for respondent school district.  After she and the bus driver had conflicts, the school district removed her from one bus and offered her a position on another bus.  When she refused, it terminated her employment and she sued the school district and the driver, alleging claims for battery, violation of the whistleblower act, Minn. Stat. § 181.932 (2000), and promissory estoppel.  The district court granted summary judgment in favor of respondents.  The district court also denied appellant’s motion to amend the complaint to add a First Amendment claim under 42 U.S.C. § 1983 (1994).  We affirm.


In November 1996, respondent Independent School District No. 118 (school district) hired appellant Martha Johnson to act as monitor on a bus driven by respondent Duane Sepin.  Shortly thereafter, conflicts began to arise between Johnson and Sepin, and numerous complaints were made by each against the other to their mutual supervisor, Michael Doro, the school district’s director of transportation.  One of those complaints became the basis of Johnson’s whistleblower claim.

            On April 14, 1997, while children were riding the bus, Sepin stopped the bus and began backing it along the road, apparently believing he had spotted a wallet.  The parties agree this was a safety violation.  Sepin self-reported the incident to Doro.  Johnson also called Doro that same day to tell him about the backing incident.  Doro informed her that Sepin had already told him about the incident.  Subsequently, Doro set up a meeting to allow the three of them to discuss the incident. 

When the parties met on April 17, 1997, Johnson mentioned the backing incident.  Sepin changed the subject, telling Doro that having a bus monitor was not working out.  Johnson disagreed.  After listening to Sepin and Johnson argue, Doro told Johnson he was removing her from Sepin’s bus.  Johnson asked to be paid for the remainder of the year.  When Doro offered her a bus monitor position on another bus, Johnson told him she could not accept because her children rode Sepin’s bus and she did not feel they were safe in Sepin’s bus without her.  Doro told Johnson that if she would not accept the transfer, she would be discharged.  Johnson again declined and was terminated.

Also on April 17, 1998, apparently right after the meeting, Johnson filed a complaint with the Minnesota Department of Human Rights (MDHR) under Minn. Stat. § 363.03, subd. 1(3).  She alleged that Sepin treated her disrespectfully and that Doro removed her from the bus because of her sex, marital status and public assistance status, in violation of the Minnesota Human Rights Act (MHRA).  The MDHR ultimately dismissed those charges.

On May 15, 1997, the school board ratified Johnson’s termination.  On July 12, 1999, Johnson filed a complaint in district court against the school district and Sepin seeking damages for battery, promissory estoppel and a violation of the whistleblower act.  Her battery claim alleged an incident when she was walking in the bus while it was moving and Sepin braked suddenly, causing her to fall to her knees.  When Johnson got up, she saw Sepin looking at her “with a mean look.”

The school district and Sepin moved for summary judgment.  Johnson moved to amend her complaint to eliminate the claim of promissory estoppel and add a claim for violation of the First Amendment, based on the same facts as her whistleblower claim.  The district court granted respondents’ motion for summary judgment on all issues, and denied Johnson’s motion to amend the complaint to add a First Amendment claim.  This appeal followed.


            On appeal from summary judgment, this court asks two questions: “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  Summary judgment is appropriate where there is no genuine issue of material fact and either party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  This court reviews the evidence “in the light most favorable to the party against whom judgment was granted.”  Id.  (citation omitted).  Summary judgment should not be granted if, on the evidence, a reasonable trier of fact could find for the nonmoving party.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).


            The district court granted respondents’ summary judgment motion, stating that (1) Johnson’s earlier MHRA claim precluded her present whistleblower claim; (2) Johnson failed to present a prima facie case of wrongful termination under the whistleblower act; and (3) Johnson failed to present a prima facie case of battery.

The Effect of the MHRA Claim

The district court concluded that the exclusivity provisions of the MHRA, Minn. Stat. § 363.11 (2000) barred the claim under the whistleblower act.  The court relied on Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483 (Minn. 1996).  There, the claimant filed a sexual harassment complaint with the MDHR and also brought a whistleblower claim in district court, alleging sexual harassment and reprisal and based on her report of sexual harassment.  Id. at 485-86.  The court held that the exclusivity-of-remedies provision of the MHRA operated as a bar to plaintiff’s whistleblower claim, which was predicated upon the same discriminatory employment practices.  Id.; see also Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 717 (Minn. App. 1997) (upholding district court decision dismissing common-law negligent-supervision claim in which complainant alleged discriminatory practices, injuries and damages identical to those in his MHRA claim), review denied (Minn. Apr. 24, 1997). 

However, Johnson does not rely on the same facts or on any allegedly discriminatory practices to support her whistleblower claim.  In Johnson’s MHRA complaint, she alleged that Sepin and Doro mistreated her because she is female, single and on public assistance.  In her whistleblower complaint, Johnson alleges that she was terminated because she reported Sepin’s backing incident. 

The facts of this case are more similar to Wirig v. Kinney Shoe Corp., 461 N.W.2d 374 (Minn. 1990), where the court allowed the plaintiff to maintain a sexual-harassment action under the MHRA and a parallel civil action for battery arising from the same facts.  The court in Williams explained that these parallel actions were permissible in Wirig because each cause of action required different elements of proof and addressed different injuries.  Williams, 551 N.W.2d at 486; see also Ferguson v. Michael Foods, Inc., 74 F.Supp. 2d 862, 874 (D.Minn.1999) (former employee's claim against former employer for tortious interference with a contractual relationship not preempted by MHRA).

While both the MHRA claim and the whistleblower claim assert a common injury – Johnson’s termination – they each rely on different factual allegations and require different elements of proof: her MHRA claim requires that Johnson show she is a member of a protected class (Minn. Stat. § 363.03, subd. 1(3) (2000)), while her whistleblower claim requires her to show she engaged in protected conduct (Minn. Stat. § 181.932, subd. 1 (2000)).  As a result, Johnson’s MHRA claim does not preclude her claim under the whistleblower act. 

The Sufficiency of the Whistleblower Claim


            The district court granted summary judgment dismissing the whistleblower claim on the alternative grounds that Johnson had failed to present a prima facie case.  A prima facie case of retaliatory discharge under the whistleblower act requires a showing of: “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Rothmeier v. Inv. Advisors Inc., 556 N.W.2d 590, 592 (Minn. App. 1996) (quotation omitted), review denied (Minn. Feb. 26, 1997).  While we conclude that Johnson made an adequate showing on the first element, we agree with the district court that she failed on the second element, and the third element thus becomes moot.

To establish that she engaged in statutorily protected conduct, Johnson was required to show that she “in good faith, report[ed] a violation or suspected violation of any federal or state law.”  Minn. Stat. § 181.932, subd. 1(a).  The district court concluded that Johnson’s communication on the backing incident did not rise to the level of a “report” because Doro already knew about the violation and had acted on it.  The district court relied upon Michaelson v. Minn. Mining & Mfg. Co., 474 N.W.2d 174, 180 (Minn. App. 1991) aff’d mem., 479 N.W.2d 58 (Minn. 1992); Rothmeier, 556 N.W.2d at 593; and Donahue v. Schwegman, Lundberg, Woessner & Kluth, P.A., 586 N.W.2d 811 (Minn. App. 1998).  But Johnson’s situation is distinguished from that of the employees in each of these three cases. 

In Michaelson the employee was in-house legal counsel, engaged in part to keep the employer informed of potentially illegal practices and to advise the employer of the proper steps the employer should take to remedy the potentially illegal practices. Michaelson,474 N.W.2d at 177.  This court characterized the employee’s communications as “feedback,” and stated that, as such, the communications did not constitute a “report” for purposes of the statute.  Id. at 180.  In both Rothmeier and Donahue, the employee knew the employer was aware of the possible violation before the employee reported it.  See Rothmeier, 556 N.W.2d at 593; Donahue, 586 N.W.2d at 814.  In each case this court concluded that the employee’s communication was made not in good faith.  Id.

            Here, there is no evidence that Johnson knew Doro was already aware of the backing incident when she informed him of it.  According to her affidavit, her call to Doro came on the same day and only shortly after Sepin’s report.  Additionally, Johnson asserts that she reported the backing incident out of concern for the children’s safety.  See Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000) (“good faith requirement of whistle-blower statute not met where employee’s purpose, at the time of the making of reports, was not to protect the public, but to protect the jobs of himself and his co-workers”) (citation omitted).  Viewing the evidence in the light most favorable to Johnson, a jury could find that she made the report in good faith.  As a result, she successfully presented the first element of a prima facie case of retaliation under the whistleblower act.

            Next, Johnson must show that her report resulted in an adverse employment action.  The district court determined that the proposed transfer to another bus did not constitute an adverse employment action because the school district offered Johnson the same job, for the same pay and benefits, in the same town.  We agree that this transfer did not constitute an adverse employment action.  See, e.g., Hoffman v. Rubin, 193 F.3d 959, 964 (8th Cir. 1999) (transfer to another city did not constitute adverse employment action where plaintiff’s rank, pay and other benefits did not change); but see, e.g., Calvit v. Minneapolis Pub. Sch., 122 F.3d 1112, 1115 (8th Cir. 1997) (teacher’s transfer to another, less desirable school where the teacher’s position had additional responsibilities, constituted an adverse employment action sufficient to survive summary judgment). 

Johnson argues that the transfer proposed by Doro constituted an adverse employment action because it amounted to constructive dischargeThe district court determined that Johnson failed to prove that the proposed transfer constituted a constructive discharge.  “A constructive discharge occurs when an employee resigns in order to escape intolerable working conditions caused by illegal discrimination. Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980).  The employer must have created the intolerable working conditions “with the intention of forcing the employee to quit.”  Pribil v. Archdiocese of St. Paul and Minneapolis, 533 N.W.2d 410, 412 (Minn. App. 1995) (quotation omitted).  “If the employee cannot prove her employer meant to force her to quit, then she must prove the employer intended the reasonably foreseeable consequence of its actions.”  Id. (citation omitted).  “Whether the conditions were in fact intolerable for the employee is judged by a reasonable person standard.”  Id. (citation omitted).

Johnson argues that Doro knew she would have to refuse the offer, and that the offer of transfer was intolerable, because it would require her children to continue to ride Sepin’s bus, which she believed to be unsafe, while she monitored another bus.  We disagree.  A seemingly neutral transfer does not become an adverse employment action or a constructive discharge because of unique personal circumstances, extraneous to an employee’s employment.  Johnson was employed by the district to be a bus monitor, not to accompany her children on the bus.  Sepin had been driving bus for the district for 30 years and had a clean driving record.  Thus, the transfer would not have been intolerable to a reasonable person.

Because Johnson failed to present evidence that the proposed transfer would create intolerable working conditions, the district court properly determined that she failed to present prima facie evidence of a constructive discharge or an adverse employment action.  Since Johnson could not show an adverse employment action, the third element of her claim, the causal connection between her report and any adverse employment action, becomes moot.

The Battery Claim


Johnson alleges that on a work day in December 1996, while Johnson was standing in the moving bus tending to some students, Sepin braked the bus suddenly, causing her to fall.  In her affidavit, Johnson concludes that Sepin intended for her to fall because he looked at her with a “mean” look.  The district court declined to infer intent by Sepin to cause an offensive contact, stating:  “a mean look after an incident is probably not enough to prove intent in a battery situation.”  We agree, and conclude further that Johnson must be regarded as having consented to the ordinary movements of the bus.

[I]n a crowded world, a certain amount of personal contact is inevitable, and must be accepted.  Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life * * * .


Prosser and Keeton on Torts, § 9, p. 42. (5th ed. 1984). 

Johnson was not in a position to see the road ahead of the bus and could not show that there was no valid reason for Sepin to brake.  We agree with the district court that Johnson failed to present a prima facie case of battery.


Johnson contests the district court’s denial of her request to amend her complaint to include a First Amendment claim under 42 U.S.C. § 1983 (1994), alleging essentially the same facts as her whistleblower claim.

“The decision to allow a party to amend its complaint after responsive pleading has been made lies within the sound discretion of the [district] court.”  Wessin v. Archives Corp., 592 N.W.2d 460, 468 (Minn. 1999) (citation omitted).  The district court should liberally grant motions to amend when justice requires and doing so will not result in prejudice to the adverse party.  Fabio v. Bellomo, 504 N.W.2d at 761 (Minn. 1993); Minn. R. Civ. P. 15.01.  A court, however, may properly deny such amendments “when the additional alleged claim cannot be maintained.”  Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn. App. 1991); see also Bib Audio-Video Prods. v. Herold Mktg. Assocs., 517 N.W.2d 68, 73 (Minn. App. 1994) (citation omitted) (“denial of a motion to amend is proper when the movant fails to establish evidence to support the movant’s claims”).

To establish a First Amendment claim in the employment context the employee must show he or she engaged in protected speech, and that the employer took action against the employee.  Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977); Calvit, 122 F.3d at 1116.  While Johnson’s communication regarding the backing incident involved school bus safety, a matter of public concern, Johnson failed to present a prima facie case that the transfer of Johnson to another bus was an action against the employee.  Therefore, the district court did not err by denying her motion to amend. 


Johnson asserts that the district judge had a conflict of interest requiring recusal.  She did not raise this claim before the district court and, thus, it is not properly before this court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  Moreover, Johnson’s only support for the assertion is that she and the judge live in the same community, and that the bus route originates there.  This, by itself, does not raise any inference of a conflict of interest.

Finally, Johnson disagrees with certain dates and places mentioned in the district court’s order and memorandum.  The challenged statements concern collateral matters that are immaterial to the outcome of this case.  See Minn. R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).