This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Robert J. Woolley,





Sandra L. Panek, et al.,



Filed June 29, 2004


Gordon W. Shumaker, Judge


Hennepin County District Court

File No. PI 03-011745



Robert J. Woolley, 2156 Winthrop Ct., St. Paul, MN 55119 (appellant pro se)


Mark B. Rotenberg, General Counsel, Lorie S. Gildea, Associate General Counsel, Office of the General Counsel, University of Minnesota, 360 McNamara Alumni Center, 200 Oak Street S.E., Minneapolis, MN 55455 (for respondents)


            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson Judge.


U N P U B L I S H E D   O P I N I O N


This is an appeal from a district court judgment dismissing appellant’s complaint for lack of subject-matter jurisdiction and, in the alternative, granting respondent’s motion for summary judgment.  The action arose out of respondents’ statements during an investigation of a sexual-harassment claim, which resulted in appellant’s termination from employment with the University of Minnesota.  Appellant argues: (a) the district court was the proper forum for his defamation claims; (b) collateral estoppel does not apply because the issues are not identical to those decided against appellant in the university’s grievance proceedings; (c) absolute immunity is not available to respondents; (d) the “waiver and release” appellant signed does not preclude this action; and (e) the district court abused its discretion in denying permission to amend the complaint.  Because judicial immunity applies to respondents, we affirm; and because the immunity issue is dispositive, we do not reach appellant’s other allegations on appeal.


            Appellant Robert J. Woolley was employed as a physician at Boynton Health Service, a unit of respondent University of Minnesota.  Respondent Sandra Panek was also employed at Boynton. 

            On May 14, 2001, Panek filed a sexual-harassment claim against Woolley with the university’s office of Equal Opportunity and Affirmative Action (EOAA).  Respondent Jacqueline Cottingham-Zierdt, an employee of the EOAA, interviewed Panek, Woolley, and others, investigated the allegations, and prepared a written statement of the allegations.  Respondent Julie Sweitzer, director of the EOAA, submitted reports on August 28, 2001, and September 24, 2001, based on the investigation.  The reports concluded that Wooley violated the University of Minnesota’s sexual-harassment policy. 

On September 28, 2001, the director of Boynton Health Service terminated Wooley’s employment for just cause.  Woolley challenged his termination by filing a grievance under the university’s grievance policy.  An arbitration panel issued an award denying Woolley’s grievance on July 15, 2002. 

Woolley challenged the merits of the arbitration panel’s decision through a writ of certiorari.  Univ. of Minn. v. Woolley, 659 N.W.2d 300 (Minn. App. 2003), review denied (Minn. June 17, 2003).  This court discharged the writ, holding that (1) phase III of the grievance procedure was a quasi-judicial decision reviewable under writ of certiorari and (2) the phase IV arbitration was reviewable only under the Uniform Arbitration Act (UAA) and was not reviewable by writ of certiorari.  Id. at 309.

Woolley then brought an action in district court, alleging that respondents Panek, Cottingham-Zierdt, and Sweitzer had defamed him.  His complaint identifies alleged defamatory statements made within the context of the sexual-harassment complaint and discharge proceedings, including: (1) Panek’s accusations that Woolley engaged in unwanted sexual contact, (2) Panek’s oral and written statements to Cottingham-Zierdt;  (2) statements made by Cottingham-Zierdt and Sweitzer during the grievance process; and (3) the reports of Cottingham-Zierdt and Sweitzer to the EOAA. 

Respondents moved to dismiss and, in the alternative, moved for summary judgment on the grounds that (1) the district court lacked subject-matter jurisdiction; (2) the defamation claim was barred by collateral estoppel; (3) the respondents have absolute immunity; and (4) Woolley waived the right to bring this claim by signing the arbitration agreement.  Woolley moved for leave to amend his complaint.  The district court (1) granted respondents’ motion to dismiss for lack of subject-matter jurisdiction pursuant to Minn. R. Civ. P. 12.08(c); (2) granted respondents’ motion for summary judgment; and (3) denied Woolley’s motion for leave to amend his complaint. 


Woolley argues, among other things, that the district court erred in granting summary judgment on the issue of immunity.  On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The burden rests on the nonmoving party to present evidence sufficiently probative of all the claim’s essential elements to allow reasonable minds to reach different conclusions.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  The existence of privilege is a question of law reviewed de novo.  LeBaron v. Minn. Bd. of Pub. Def., 499 N.W.2d 39, 41 (Minn. App. 1993), review denied (Minn. June 9, 1993).

The fundamental basis of a defamation claim is that “one is liable for an unprivileged communication or publication of false and defamatory matter which injures the reputation of another.”  Matthis v. Kennedy, 243 Minn. 219, 223, 67 N.W.2d 413, 416 (1954) (emphasis added).  “[D]efamatory matter published in the due course of a judicial proceeding is absolutely privileged.”  Id. at 224, 67 N.W.2d at 417.  Absolute immunity extends to “every proceeding of a judicial nature if the hearing is before a competent court or before a tribunal or officer clothed with judicial or even quasi-judicial powers.”  Id.  Because absolute immunity is intended to protect the judicial process, it also extends to persons who are integral parts of that process, including prosecutors, counsel, and witnesses.  Sloper v. Dodge, 426 N.W.2d 478, 479 (Minn. App. 1988) (citing Briscoe v. LaHue, 460 U.S. 325, 334-35, 103 S. Ct. 1108, 1115-16 (1983)). 

Where a judicial or quasi-judicial official allegedly makes defamatory comments, the availability of absolute immunity depends in pertinent part on the official’s assigned functions, whether the statements were integral to performing those functions, and the public interest furthered by allowing the official to speak freely about the statement’s subject matter.  Bd. of Regents v. Reid, 522 N.W.2d 344, 347 (Minn. App. 1994) review denied (Minn. Oct. 27, 1994); see also Matthis, 243 Minn. at 225-26, 67 N.W.2d at 418 (stating that the test for whether alleged defamatory statements made during a judicial proceeding are privileged is whether they have “reference to and relation to the subject matter of the action”). 

In Reid, this court determined that absolute immunity applied where university officials gave a press briefing and communicated with the press regarding allegations that university professors committed civil and criminal fraud.  Reid, 522 N.W.2d at 346-47.  There, this court determined that making statements to the press regarding the professors was the officials’ assigned function, was essential to their assigned duties, and that the “remarks to the press focused on an issue of critical public concern.”  Id. at 347.

The university’s EOAA office implements the university’s sexual-harassment policy and investigates complaints of sexual harassment.  The record supports the district court’s finding that, as director of the EOAA, Sweitzer coordinated the investigation of Panek’s sexual-harassment claim and directed Cottingham-Zierdt, as an EOAA employee, to investigate the claim.  Sweitzer’s and Cottingham-Zierdt’s statements were made for the purposes of the investigation, were published according to EOAA guidelines, and thus were made during the course of their assigned functions and were integral to performing those functions.  Sweitzer’s and Cottingham-Zierdt’s statements were absolutely privileged and those individuals are immune from liability for defamation.

Regarding Panek, Woolley argues the Phase IV arbitration panel made a clear distinction between two periods of time, before February 2001, when Woolley and Panek allegedly had an intermittent consensual sexual relationship, and from February 2001 to April 2001 when they did not.  He argues that the panel’s finding of a violation of the university’s sexual-harassment policy was based exclusively on events in the latter time period; and his defamation claim rests entirely on Panek’s description of events that took place before February 2001. 

The phase IV arbitration panel stated:

The Arbitration Panel has considered the evidence with respect to the period before February 2001 and finds it ambiguous.  On the one hand, there is no dispute that Ms. Panek either invited or voluntarily permitted Dr. Woolley to visit her in her apartment on multiple occasions through February 2001, and she accepted invitations to accompany him to various performing arts presentations.  Such behavior is not consistent with a finding that Ms. Panek found Dr. Woolley’s conduct unwelcome, hostile, intimidating or offensive in their work environment at Boynton Health Services.  On the other hand, under the difficult circumstances involving her mother’s death and her own health problems, it is understandable that she may have been willing, for a time, to suffer unwelcome and offensive sexual advances by Dr. Woolley in order to continue the friendship which she valued. 

Because the arbitration panel did not distinguish between the two time periods, Woolley’s argument is without merit.  Panek’s statements were made in the due course of a quasi-judicial proceeding and related directly to the subject matter of the action.  Accordingly, we find that as a complaining witness Panek’s comments are absolutely privileged and she is immune from liability for defamation.