This opinion will be unpublished and

may not be cited except as provided by

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







Robert Matthew Mowatt,





Hennepin County,

Petitioner (C0-01-1518),

Appellant (CX-01-1610).


Filed May 7, 2002

Reversed; discretionary review denied

Lansing, Judge


Hennepin County District Court

File No. EM0010174



Robert J. Hajek, Warchol, Berndt & Hajek, P.A., Suite 110, 3433 Broadway Street Northeast, Minneapolis, MN  55413 (for respondent)


Amy Klobuchar, Hennepin County Attorney, Beverly J. Wolfe, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN  55487 (for appellant)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N




            Hennepin County appeals from the denial of its motions for summary judgment on its official and statutory immunity defenses and also requests discretionary review of the denial of summary judgment on the merits of Robert Mowatt’s disability-discrimination claims.  We conclude that no genuine issues of material fact exist on the application of vicarious official immunity and reverse.  Because we direct judgment on Hennepin County’s official-immunity defense, we do not consider its petition for discretionary review on the merits.



            Robert Mowatt began working for Hennepin County in April 1976, and by 1985, had been promoted to Corrections Division Manager in the Juvenile Probation Division.  Nine years after his promotion to manager, Mowatt was diagnosed with myasthenia gravis (MG), a disease of the central nervous and immune systems that interferes with the functioning of the muscles of the body.  Because of his MG, Mowatt suffered from weakness of the eyelids, throat muscles, and trunk or limb muscles, fatigue, slurred speech, and double vision.  Mowatt also developed steroid-induced Type II Diabetes, which exacerbated his fatigue and vision problems, and depression, which made it difficult for him to stay focused on tasks. 

At the time of the diagnosis, Mowatt’s supervisor provided Mowatt with several accommodations to assist him in completing his job duties while struggling to cope with the effects of MG.  His supervisor set up a work station with a computer, fax machine, and two phone lines in Mowatt’s home; allowed Mowatt to complete some of his duties at home; and completed some of Mowatt’s supervisory duties.

During 1995 through 1999, Mowatt was frequently absent from the worksite and worked at home because he was fatigued and was experiencing vision problems.  During this same time, however, Mowatt took on outside employment obligations, including employment as a professor at a local university.  These obligations entailed extensive travel and required predictable on-site presence.  Also during this same time period, the juvenile probation division, for which Mowatt had management responsibility, suffered from escalating costs, a decrease in the quality of recordkeeping, and overall untimeliness in completing tasks. 

            In late 1998, to accommodate the effects of Mowatt’s MG and to address some of the problems with the juvenile probation department, Mowatt and the Director of Hennepin County Department of Corrections created a position that allowed Mowatt to spend half his time supervising juvenile probation officers and the other half developing procedures for out-of-home placements for juveniles on probation.  Mowatt retained his manager title and salary but another individual actually managed the juvenile probation division.  Both the director and Mowatt admit that when Mowatt took the new position officially in February 1999, neither of them had discussed whether Mowatt would be able to continue to work at home. 

            In April 1999, Mowatt’s supervisor notified Mowatt that, as part of the job requirements for his new position, Hennepin County expected Mowatt to be on-site from 8:30 a.m. to 5:00 p.m. every business day.  Mowatt professed great surprise at this requirement.  He submitted a request for accommodation to Hennepin County’s Americans with Disabilities Act Coordinator asking for several accommodations, including allowing him to be unpredictably absent from the work site up to 25 percent of the time in each pay period.  At oral argument, Mowatt admitted that Hennepin County granted most of his requested accommodations, including providing him with convenient parking and continuing to fund his at-home work station, and denied only Mowatt’s request to be unpredictably absent up to 25 percent of the time.

In lieu of Mowatt’s request to be unpredictably absent, Hennepin County offered several alternatives, including implementing FMLA leave, allowing Mowatt to complete paperwork at home on a scheduled basis, or modifying Mowatt’s position to an 80 percent time and salary position.  After a series of meetings in which Mowatt and Hennepin County continued to disagree about the necessity of Mowatt’s presence at the work site and about a reduction in Mowatt’s salary, Mowatt agreed in December 1999 to a demotion to a career probation officer position, which offered him more flexibility but required a 23 percent salary decrease.

            Seven months after agreeing to the demotion, Mowatt sued Hennepin County, alleging that it violated the Minnesota Human Rights Act by disparately treating Mowatt because of his disability and by denying Mowatt reasonable accommodations for his disability.  Mowatt seeks back pay, damages for loss of earnings and benefits, reinstatement to his previous salary level or front pay to compensate for loss of previous salary level.

Hennepin County moved for summary judgment, arguing that it had statutory and official immunity and contending that Mowatt had failed to show genuine issues of material fact.  The district court denied Hennepin County’s motion for summary judgment on the immunity defenses and on the merits, concluding that a factual question remained on whether “regular attendance at the work site” was an essential function of Mowatt’s job.  Hennepin County appealed the denial of statutory and official immunity and petitioned for discretionary review of the district court’s denial of summary judgment on the merits.  The decision on whether to grant the petition for discretionary review was consolidated with the appeal of the denial of summary judgment on the immunity claims.



When reviewing a denial of a motion for summary judgment, we examine the record to determine whether there exist any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The question of whether either statutory or common law immunity applies is one of law, which this court reviews de novo.  Davis v. Hennepin County, 559 N.W.2d 117, 120 (Minn. App. 1997), review denied (Minn. May 20, 1997).  A district court’s denial of an immunity defense is immediately appealable as of right.  Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 314 (Minn. App. 1997), aff’d in part and remanded 582 N.W.2d 216, 221 (Minn. 1998).


Statutory immunity is the limited immunity retained by the state and municipalities after the legislature waived the government’s sovereign immunity to tort suits.  Janklow v. Minn. Bd. of Examiners for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn. 1996).  Sometimes referred to as “discretionary immunity,” statutory immunity grants local government entities immunity from “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not discretion is abused.”  Minn. Stat.    § 466.03, subd. 6 (2000).

            This court has previously held that municipalities may not assert statutory immunity as a defense to a cause of action brought under the Minnesota Human Rights Act.  Davis, 559 N.W.2d at 122 (relying on Janklow, 552 N.W.2d at 716).  Hennepin County challenges the rationale and the analysis applied in Janklow and Davis.  These arguments were also raised by Hennepin County in Davis.  Hennepin County advances neither an argument for reconsideration of Davis that is based on a change in statutory law or common law interpretation nor an unanticipated result in the application of Davis.  We conclude that Hennepin County has presented no compelling argument for reconsideration.  The district court properly denied Hennepin County’s motion for summary judgment on statutory immunity grounds.


Official immunity is a common law doctrine that protects government officials from lawsuits based on discretionary actions in the course of their official duties.  Janklow, 552 N.W.2d at 716.  It is “intended to protect public officials from the fear of personal liability that might deter independent action.”  Davis, 559 N.W.2d at 122 (quotation omitted).  A government entity is, in certain circumstances, entitled to seek the protection of official immunity through the doctrine of vicarious official immunity.  Pletan v. Gaines, 494 N.W.2d 38, 42-43 (Minn. 1992). 

The Minnesota Supreme Court has allowed a city to assert the defense of vicarious official liability when its police officers were sued for discrimination under the Minnesota Human Rights Act.  State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn. 1994) (noting that city could assert defense because officers’ acts were discretionary and involved weighing numerous factors and exercising a great deal of discretion under trying circumstances).  Generally, if an employee is found to have official immunity, then the employer is also vicariously immune.  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (declining to apply vicarious immunity to the city because the individual’s conduct was not discretionary and thereby not protected by official immunity).

The purpose of official immunity is to prevent “stifling attention” to a public official’s performance, which potentially results in “serious detriment [to] that performance.”  Wiederholt, 581 N.W.2d at 316 (quotation omitted).  The Minnesota courts have recognized that to immunize officials but not their employers is effectively no immunity at all because the officials’ actions will still be subject to “stifling attention” in a lawsuit against the employer.  Id. at 316 (quotation omitted); Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 273 (Minn. App. 1996) (stating test as “whether, if no immunity were granted, the public employee would think that his performance was being evaluated so as to ‘chill’ the exercise of his independent judgment”), review denied (Minn. Sept. 20, 1996). 

To analyze the propriety of the denial of summary judgment on the official immunity defense, we look to the character of the actions of Mowatt’s supervisors to determine if their actions are the type that are generally accorded official immunity.  If official immunity applies to this type of action, then Hennepin County is entitled to the same protection from suit. 

Official immunity only protects discretionary acts: those involving the exercise of individual judgment in carrying out official duties; there is no liability shield for ministerial acts:  those that are merely the execution of a specific duty arising from fixed facts.  Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (citation omitted); see also Janklow, 552 N.W.2d at 716.  In Davis, we held that an employer’s decision of the appropriate response to an employee’s claim of sexual harassment “clearly involves the judgment and discretion of the official making the determination.”  Davis, 559 N.W.2d at 122-23 (noting that decisions made in response to complaint were not “absolute, certain, and imperative,” and thus did not qualify as ministerial acts unprotected by official immunity); see also Janklow, 552 N.W.2d at 717 (noting that decision to terminate an employee is almost always a discretionary function because it involves policy decisions and the balancing of many complex factors). 

The decisions made by Mowatt’s supervisors, attempting to accommodate the effects of Mowatt’s MG, are closely aligned to the decisions in Davis and, as in Davis, require the exercise of judgment and discretion.  The decision of how best to accommodate an individual whose illness impedes his ability to work involves the balancing of many complex factors, including efficiency in the workplace, job performance, employee morale, economic feasibility, and the individual’s health and limitations.

The facts that impose the requirements for accommodation are inherently variable and thus the public employee who has the responsibility of fashioning the accommodation must exercise discretion rather than fulfilling a specific duty based on a fixed set of facts.  The necessity of exercising discretion places these acts in the category to which official immunity applies.  And the official immunity that applies to Mowatt’s supervisors also extends vicariously to Hennepin County.  See Wiederholt, 581 N.W.2d at 316-17 (noting that the fact that the individual decisionmakers were not named in the complaint does not preclude the application of vicarious official immunity to the municipality).  To hold otherwise would effectively chill the actions of Hennepin County employees in exercising their judgment on how to respond to requests for accommodation.

Official immunity protects actions that result from the exercise of discretion, but it does not protect malicious conduct.  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  To successfully establish a defense of official immunity, Hennepin County must also demonstrate that there are no genuine issues of material fact on whether the acts were willful or malicious and thereby stripped of the protection of official immunity.  Davis, 559 N.W.2d at 122.  The malice test does not require a showing that a public official acted with ill will or improper motive.  Gleason, 563 N.W.2d at 317-18.  An official is entitled to immunity and defeats a claim of malice when the official shows that the conduct was objectively legally reasonable, that is, legally justified under the circumstances; the conduct was subjectively reasonable, that is, taken with a subjective good faith; or the right allegedly violated was not clearly established, that is, there was no basis for knowing the conduct would violate the plaintiff’s rights.  Gleason, 563 N.W.2d at 318, (holding no official immunity for actions of bus driver that allegedly resulted in the harassment of disabled bus patron).  If the official’s actions meet any one of these tests, then official immunity operates to protect the official and the public employer from suit.  Id. 

Generally, whether a public employer engaged in discriminatory conduct and whether an employer acted with malice and willfulness are both questions of fact for the jury.  Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 832 (Minn. App. 1995) (quotation omitted).  (“If a reasonable fact finder could determine that defendants have engaged in racial discrimination * * * then a reasonable fact finder could also conclude that defendants acted maliciously.”)  But the issues in this case distill to whether Hennepin County acted with malice by denying Mowatt’s request for an accommodation of being unpredictably absent from work.  The district court concluded that the factual question that remained for trial was whether regular attendance at the work site is an “essential function” of Mowatt’s job.  Mowatt did not file a notice of review.  Thus, the issues in the litigation are confined to whether Mowatt could prove that he was qualified to fill the position with reasonable accommodations, and if he met that burden, then Hennepin County would have to show that it provided reasonable accommodations.  Thus, at this juncture, to demonstrate that immunity should apply, Hennepin County has the burden to show no triable issue on the question of whether it acted subjectively unreasonably, objectively unreasonably, or in violation of established law when it denied Mowatt’s request. 

After a thorough review of the record and on the particular facts of this case, we conclude that Hennepin County has demonstrated that no triable issue exists on the question of malice.  In fact, Hennepin County has met this burden on all three of the independently sufficient criteria.

First, Mowatt has produced no evidence that his supervisors engaged in conduct that was objectively unreasonable.  When advised of Mowatt’s illness, his supervisor provided him with an at-home workstation and wide flexibility in his work schedule.  When it became evident that the juvenile probation division was suffering because of Mowatt’s absence, Mowatt’s supervisor worked with him to create a new position in which he would not lose his salary or his manager title. See Minn. Stat. § 363.03, subd. 1(6) (2000) (noting that reasonable accommodation does not necessarily require job restructuring).  When Mowatt asked for specific accommodations as he began his new position, Hennepin County accommodated every request except Mowatt’s request to be unpredictably absent from the worksite up to 25 percent of the time.  Hennepin County then offered alternatives to this request.  Not only were the actions of Mowatt’s supervisors objectively reasonable, they were exemplary. 

Second, Mowatt has demonstrated no clearly established right to work at home on a moment’s notice and to be unpredictably absent up to 25 percent of the time; in fact, case law establishes the opposite.  Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 681-82 (8th Cir. 2001) (noting that plaintiff’s requested accommodation of being absent and making up the time later was not reasonable); Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir. 1998) (noting that management employee’s failure to come to work on a regular basis indicates he is unable to perform job); Helgerson v. Bridon Cordage, Inc., 518 N.W.2d 869, 872 (Minn. App. 1994) (noting that reasonable accommodation does not include modifying plaintiff’s work schedule to reduce his shift hours), review denied (Minn. Aug. 24, 1999).  On the facts of this case, as a matter of law, Hennepin County did not violate any of Mowatt’s clearly established rights by denying this request. 

Finally, Mowatt points to no evidence to show that the actions of his Hennepin County supervisors were not taken with a subjective good faith, and there is nothing in the record to show that any of the supervisors exercised bad faith when attempting to accommodate Mowatt’s illness. 

Because we reverse for entry of judgment on the issue of official immunity, we deny Hennepin County’s alternative motion for discretionary review of issues extending beyond the question of immunity.

            Reversed; discretionary review denied.