This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Chamber of Commerce of the U.S.A.,
a non-profit District of Columbia
Corporation, et al.,
Filed September 11, 2001
Hennepin County District Court
File No. EM991709
William J. Mavity, Mavity & Associates, 1650 West 82nd Street, Suite 1460, Minneapolis, MN 55431 (for appellant)
Thomas E. Marshall, David J. Duddleston, Jackson, Lewis, Schnitzler, & Krupman, 150 South Fifth Street Towers, Suite 2800, Minneapolis, MN 55402 (for respondents)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant sued her employer and supervisor, claiming (1) retaliatory discipline in violation of Minnesota’s Whistleblower Act, Minn. Stat. § 181.932 (2000); (2) negligent infliction of emotional distress; (3) tortious interference with contract; (4) breach of employment contract; and (5) several instances of defamation. Appellant challenges the district court’s grant of summary judgment on her first three claims and grant of a directed verdict on her breach-of-contract claim and one of her defamation claims. She also contends that the court abused its discretion in excluding character witnesses and certain medical testimony and records. We affirm because (1) appellant failed to raise genuine fact issues as to essential elements of her whistleblower, emotional-distress, and interference-with-contract claims; (2) evidence of breach of employment contract and defamation was insufficient to present a fact question to the jury; and (3) the district court did not abuse its discretion in its evidentiary rulings. Respondents move to strike portions of appellant’s brief and appendix; appellant does not oppose the motion. We grant the motion to strike.
Appellant Michelle Guion was employed in the Bloomington office of respondent Chamber of Commerce of the U.S.A. (Chamber) as a telemarketer. Her job duties included selling new memberships in the Chamber, renewing expired or expiring memberships, and raising funds for “special funding projects” (SFPs). A call schedule ensured that telemarketers would not ask members to support SFPs at the same time that they were asked to renew their membership. In October 1996, the Chamber adopted a new compensation plan under which telemarketers received a larger commission on a contribution to an SFP than on a membership payment. Shortly thereafter, a clerical worker brought to the attention of Chris Deitch, an assistant manager in the Bloomington office, that several members had renewed their memberships at a significantly lower rate than before and had pledged large contributions to SFPs at the time of renewal. The total of these members’ renewals and their SFP pledges equaled their previous membership pledges. At this lower membership rate, these members were no longer eligible for certain benefits to which they had been entitled previously. Deitch informed the regional manager, respondent John Stanton, who instructed him to investigate the matter.
In the course of Deitch’s investigation, he learned that Guion and three other telemarketers had divided members’ pledges between membership dues and SFPs. Deitch contacted the members whose pledges had been divided; they reported that they believed they had renewed their memberships at the previous level and had not been told that any portion of their pledge would support an SFP. One of the several members whose pledges Guion divided claimed that he had told her that he did not want to contribute to an SFP.
Stanton spoke to Guion privately and informed her that she must stop dividing pledges. She admitted to dividing pledges but told him that the members in question had consented to her doing so. After this meeting, Guion divided another member’s pledge. Stanton reported the findings of the investigation to Al Hulvey, the Chamber’s vice-president for sales. Hulvey and other Chamber management in its national office in Washington, D.C., decided to give warning letters to Guion and the three other telemarketers. The letters were prepared by the Chamber’s human-resources office in consultation with Hulvey and were approved by Bruce Josten, the Chamber’s executive vice-president for government affairs. Hulvey then presented the letters to Stanton for his signature. On November 18, 1996, Stanton sent the warning letter to Guion by certified mail. At its top, the letter was captioned: “STRICTLY PRIVATE,” and below that: “RE: Fraudulent Application of Membership Dues.” The letter explained, in relevant part, that Guion’s
action in misapplying members’ funds is clearly against policy and will not be tolerated. Specifically, we confirmed that you overrode five members’ instructions and applied only a small portion ($65.00) of their membership dues to their membership dues account; you diverted the remainder to special funding projects (SFP). According to the members, their entire contribution was intended for membership dues and diversion of a portion to SFP occurred totally without their knowledge.
* * * *
[T]here will be some territory realignment in January 1997. Your actions may result in changes in your territory.
The letter was copied to Josten, Hulvey, and Guion’s personnel file.
On December 6, 1996, Stanton issued a memorandum to all telemarketers in the region informing them that a territory realignment would take effect in January 1997. On December 18, Guion sent a letter to Josten complaining about her treatment and about the new compensation system. The letter asserted, among other things, that the new compensation system violated Minnesota labor standards. Before mailing the letter, Guion telephoned Josten to ask him if she could fax it to him. Because he was leaving for a Christmas vacation the following day, he asked her to mail it to him. In a deposition, Josten testified that he did not read Guion’s letter until after returning from his Christmas vacation. On December 19, Guion received a memorandum from Stanton and Deitch setting out her new sales territory. The assignment resulted in Guion’s loss of commissions from members in her previous territory with whom she had built business relationships.
Guion received no response to her letter to Josten or other letters that she sent to senior officials and human-resources personnel. The Chamber has an “Open Door Policy,” which provides that
employees may question or seek review of actions that affect them. * * * The Open Door Policy provides [employees] with the opportunity for a more private level of discussion. * * * [A]ny inquiries or complaints will be given full and serious consideration.
Although he never responded to Guion’s letter, Josten did testify that it was given serious consideration. Guion continued to work at the Chamber until March 1999, when she went on disability leave.
In October 1998, Guion commenced this action against the Chamber and Stanton, alleging (1) violation of Minnesota’s Whistleblower Act, Minn. Stat. § 181.932 (2000); (2) negligent infliction of emotional distress; (3) tortious interference with contract; (4) defamation; and (5) breach of employment contract. In March 2000, the district court granted respondents’ motion for summary judgment on the first three claims. The case proceeded to a jury trial. At the close of evidence, the district court directed a verdict for respondents on Guion’s breach-of-contract claim and limited the scope of her defamation claims. The court submitted Guion’s remaining defamation claims to the jury, which found no defamation. The court denied Guion’s motion for a new trial, and this appeal follows.
Guion argues that the district court erred in granting summary judgment in favor of respondents on her claims of (1) retaliatory discipline in violation of the Whistleblower Act, Minn. Stat. § 181.932 (2000); (2) negligent infliction of emotional distress; and (3) tortious interference with contract. On appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 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).
Guion challenges the district court’s determination that she failed to raise a genuine fact issue as to whether the Chamber realigned her sales territory in retaliation for allegations she made in her letter to Bruce Josten. Minnesota’s Whistleblower Act creates a cause of action for an employee who makes a good-faith allegation of a violation or suspected violation of law and who is disciplined or discharged because of that allegation. Minn. Stat. § 181.932, subd. 1(a) (2000). To establish a prima facie claim of retaliation under the Whistleblower Act, an employee must show:
(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. Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996) (quotation omitted), review denied (Minn. Feb. 26, 1997). Here, the district court concluded that “[t]he undisputed facts regarding the chronology of events necessitate granting of summary judgment” on Guion’s whistleblower claim because “no reasonable juror could find a causal link between the ‘report’ and the adverse employment action.”
As Guion notes correctly, retaliatory motive is difficult to prove by direct evidence, and an employee may, therefore, demonstrate a causal connection by circumstantial evidence that justifies an inference of retaliatory motive. See Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995). As circumstantial evidence supporting an inference of reprisal, Guion cites the close proximity in time between her December 18, 1996, letter to Josten and the realignment of her sales territory the following day. The close proximity of a complaint and an adverse employment action has been held to support an inference of reprisal. See id. (concluding that causal connection may be established by a showing that employer had actual or imputed knowledge of protected activity and that adverse employment action followed closely in time). But Guion presented no evidence that, when her supervisors realigned her sales territory, they had any knowledge of the letter she had sent to Josten. And in his deposition, Josten testified that he did not read Guion’s letter until after he returned from a Christmas vacation. Further, Guion was warned a month before she sent her letter that her improper division of membership dues could have a negative effect on the realignment of her territory.
As this court recently noted, mere speculation is not circumstantial evidence that justifies an inference of retaliatory motive. Cokley v. City of Otsego, 623 N.W.2d 625, 633 (Minn. App. 2001), review denied (Minn. May 15, 2001). Guion presents a theory of causation “based on conjecture, not premises of fact from which a causal connection can be inferred.” See id. Because Guion failed to raise a genuine fact issue as to this essential element of her whistleblower claim, the district court did not err in granting summary judgment in favor of respondents. See Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994) (noting that summary judgment is mandatory against party who fails to establish essential element of claim for which he or she bears burden of proof because this failure renders all other facts immaterial).
Guion argues that the district court erred in concluding that she failed to raise a genuine fact issue as to whether the Chamber’s actions caused her to suffer emotional distress. An essential element of a claim of negligent infliction of emotional distress, on which the plaintiff bears the burden of proof, is that the defendant’s conduct caused emotional distress. Soucek v. Banham, 503 N.W.2d 153, 164 (Minn. App. 1993). In granting summary judgment on Guion’s emotional-distress claim, the district court noted that Guion offered no evidence regarding causation or the nature of her alleged distress.
Guion contends that she did come forward with evidence supporting her claim, citing (1) excerpts from a deposition, in which she mentioned being placed on medical leave by a psychiatrist, and (2) a letter from her psychiatrist requesting that her medical leave be extended. To oppose a motion for summary judgment successfully, a party may not rely on general statements of fact but rather “must demonstrate at the time the motion is made that specific facts are in existence which create a genuine issue for trial.” Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983) (quotation omitted). Expert medical testimony is required to establish causation when a question involves medical factors beyond the knowledge of the average layperson. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 762 (Minn. 1998). Guion did not offer an affidavit from her psychiatrist or any other medical expert linking her alleged emotional distress to respondents’ actions. Because Guion failed to raise a genuine fact issue as to the cause of her alleged emotional distress, the district court properly granted summary judgment in favor of respondents. See Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 908-09 (Minn. App. 1987) (affirming summary judgment on claim of infliction of emotional distress where plaintiff failed to produce evidence linking symptoms to defendant’s conduct), review denied (Minn. Nov. 13, 1987).
Guion also argues that the district court erred in granting summary judgment on her claim of tortious interference with contract. The Chamber’s interference with its own contract is not actionable. See Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 901 (Minn. 1982). And an officer, agent, or employee of a company is
privileged to interfere with * * * another employee’s employment contract with the company, if that person acts in good faith, whether competently or not, believing that his [or her] actions are in furtherance of the company’s business.
Nordling v. N. States Power Co., 478 N.W.2d 498, 507 (Minn. 1991). This privilege may be lost if the agent is motivated by malice, “that is, by personal ill-will, spite, hostility, or a deliberate intent to harm the plaintiff employee.” Id. Guion alleged that Stanton acted with “bad intentions.” But, as the district court noted, she cited “no evidence of personal animus or conduct beyond the scope of [Stanton’s] employment.” Guion had the burden of proving malice. See id. Because she failed to raise a genuine fact issue as to malice, the district court did not err in concluding that Stanton’s actions were privileged and thereby granting summary judgment on Guion’s claim of tortious interference with contract.
Guion argues that the district court erred in directing a verdict for respondents on her claims (1) that the Chamber breached her employment contract and (2) that the warning letter of November 18, 1996, was defamatory. “In reviewing a directed verdict, [appellate courts] make an independent determination of the sufficiency of the evidence to present a fact question to the jury.” Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983) (citation omitted).
Guion’s claim of breach of contract is based on her contention that the Chamber breached its open-door policy because Bruce Josten and other Chamber management did not give “serious consideration” to her complaint that she was disciplined unfairly. The district court directed a verdict for respondents on this claim, finding that Guion had “not presented any evidence sufficient to support damages” resulting from the breach. “[P]laintiffs have the burden of proving every essential element of their case, including damages, by a fair preponderance of the evidence.” Costello v. Johnson, 265 Minn. 204, 208, 121 N.W.2d 70, 74 (1963) (citation omitted). As the district court noted, Guion failed to establish that if Josten or some other Chamber official had met with her, her sales territory would not have been realigned or that if her sales territory had not been realigned, she would have earned more income. Damages that are speculative, remote, or conjectural are not recoverable for breach of contract. Cardinal Consulting Co. v. Circo Resorts, Inc., 297 N.W.2d 260, 267 (Minn. 1980). We conclude that Guion’s evidence of damages was not sufficient to submit her breach-of-contract claim to the jury.
Guion also claims that the warning letter of November 18, 1996, was defamatory. For a statement to be defamatory, it
must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation and to lower him [or her] in the estimation of the community.
Frankson v. Design Space Int’l, 394 N.W.2d 140, 142 (Minn. 1986) (quotation omitted). The district court concluded that Guion failed to establish the first element: communication (or “publication”) to someone other than Guion. At trial, Guion did not assert that the letter had been published to anyone in particular but rather that because no one could identify the route that the letter followed before it arrived on Stanton’s desk for his signature, the jury could draw the inference that it had been published. Guion argues for the first time on appeal that the letter was published because it was an “intra-corporate communication” that was distributed to a number of people. This court will generally not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But even if Guion had raised this argument below, the district court would have been justified in directing a verdict against her.
As Guion notes, in Frankson, the supreme court held that a letter was published when it was distributed to two corporate officers and to the plaintiff’s personnel file. 394 N.W.2d at 144. Similarly, the warning letter here was reviewed by several Chamber officials and copied to Guion’s personnel file. But, as the supreme court noted in Frankson, intra-corporate communications of this type have a qualified privilege. Id. at 143-44. To overcome that privilege, Guion would have to prove “actual malice” on the part of those who communicated the letter, that is, “actual ill will, or a design causelessly and wantonly to injure” her. See id. at 144 (quotation omitted). Based on our review of the record, we conclude that the evidence was insufficient to raise a fact question as to actual malice. The district court did not, therefore, err in directing a verdict on Guion’s claim that the warning letter was defamatory.
Guion also challenges the district court’s denial of her motion for a new trial, arguing that the court committed prejudicial error by excluding character witnesses and medical testimony and records. The decision whether to admit or exclude testimony lies within the discretion of the district court and will not be reversed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Kronig v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (quotation omitted).
Guion argues that the district court abused its discretion in denying her request to call as witnesses several Chamber members to testify as to her reputation for truthfulness. Minnesota Rule of Evidence 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Guion contends that the Chamber put her reputation for truthfulness in issue because John Stanton testified that she was not truthful with him about dividing four Chamber members’ contributions between memberships and SFPs and because the November 18, 1996, warning letter referred to fraud on her part. But as respondents note, these were not attacks on Guion’s reputation for truthfulness but rather evidence that she was not truthful on specific occasions. And Guion did not show that the witnesses she intended to call were familiar with her reputation for truthfulness “by reason of having heard the members of the community in which [she] resides discuss [her] truth and veracity.” See Simon v. Carroll, 241 Minn. 211, 221, 62 N.W.2d 822, 829 (1954). Further, she has not shown how she was prejudiced by the exclusion of the testimony of Chamber members who were not involved in the transactions in question.
Finally, Guion contends that the district court abused its discretion in excluding her psychologist as a witness and in excluding certain medical records; she claims that this evidence was necessary to establish the damage elements of her defamation claims. We do not reach the merits of this contention because even if the district court erred in excluding this evidence, Guion has not demonstrated prejudice. As we have concluded, the district court did not err in determining that the November 18, 1996, warning letter was not defamatory. And Guion does not challenge the jury’s finding that oral statements made about her were not defamatory. Because they determined that Guion was not defamed, the court and the jury never reached the issue of damages, and thus Guion was not prejudiced by the exclusion of evidence regarding her alleged damages from defamation.
Affirmed; motion granted.