This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
David M. Peterson,
Independent School District No. 272,
Filed April 5, 2005
Hennepin County District Court
File No. 03-9164
Edwin L. Sisam, Dorothy J. Buhr, Sisam & Watje, P.A., 7230 Metro Boulevard, Minneapolis, MN 55439-2128 (for appellant)
Eric J. Magnuson, Nell E. Mathews, Patrick D. Robben, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for respondent)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s order granting respondent’s motion for summary judgment on appellant’s claims of tortious interference with business relationships and defamation per se. Because we conclude that respondent school district was immune from liability under Minn. Stat. § 122A.20, subd. 3 (2004), which protects school boards and district employees who, in good faith and with due care, comply with the statute by reporting alleged misconduct or by cooperating with the board of teaching’s investigations of alleged misconduct, we affirm.
Appellant David M. Peterson appeals from the district court’s order granting summary judgment to respondent Independent School District (ISD) 272. Peterson argues that the district court erred by concluding that ISD 272 was immune from liability and by dismissing with prejudice his claims for defamation and tortious interference with business relationships.
Peterson was employed by ISD 272 as a school psychologist from August 1987 until March 2002. He worked at two elementary schools and had an office at each school and a computer in each office. Although ISD 272 employees have Internet access from their assigned computers, filtering software blocks access to Internet websites containing content that might be harmful to students. ISD 272 monitors employees’ Internet use by periodically reviewing logs that list the websites that employees have visited or attempted to visit. During one such review, a number of entries from one of Peterson’s computers indicated that the computer had accessed or attempted to access websites that may have been pornographic.
ISD 272 suspended Peterson with pay, pending an investigation. As part of the investigation, the access log from Peterson’s computer, listing websites that have been visited or requested, was compared with the denial log, which lists websites that the computer requested but was denied access to. Technology staff were asked to bypass the filter system to determine whether some of the websites listed on the logs were pornographic.
As required by statute, the ISD 272’s human-resources director sent to the Minnesota Board of Teaching notice that Peterson was suspended with pay pending an investigation into alleged misconduct. The board of teaching requested information regarding Peterson, including the specific nature of the behavior that was subject of the report and the outcome of any investigation or inquiry into the allegations. The human-resources director complied with this request by mailing a letter describing the alleged misconduct and stating that Peterson had resigned as part of a settlement agreement between ISD 272 and Peterson. The human-resources director also complied with the board’s investigation by faxing to the board copies of Peterson’s access log. She stated on the fax coversheet that a packet was to follow by mail “with the pictures from accessed site.”
The human-resources director subsequently mailed to the board of teaching five pictures as examples of the images found on a website that it appeared that Peterson had accessed: four of the pictures were from a website called www.sexualbikini.com and one was from a website called www.tinawebcam.com. The human-resources director testified that she determined that www.sexualbikini.com was an example of an accessed website because it was listed on the access log and not the denial log from Peterson’s computer. She asked a staff member to bypass the school’s Internet filtering system to print pictures from an accessed website, and the staff member printed pictures from the www.sexualbikini.com website. The image from www.tinawebcam.com is not from a website that Peterson’s computer had accessed or attempted to access because it was neither on the access or denial logs. At his deposition, the operational-technology director suggested that the image was printed because it appeared as a pop-up on the www.sexualbikini.com website.
Peterson does not deny that pornographic material was found on his computers, but he denies intentionally accessing such material and claims that the pornography invaded his computer through a computer virus.
The board of teaching’s disciplinary committee recommended a one-year suspension of Peterson’s teaching licenses. Peterson appealed to the board of teaching, and an administrative law judge (ALJ) from the office of administrative hearings recommended that the board of teaching take no disciplinary action against Peterson because the board did not establish that Peterson intentionally accessed or attempted to access pornography with the school district’s computers. On April 25, 2003, the board of teaching accepted the ALJ’s recommendation and ordered that no disciplinary action be taken against Peterson’s teaching licenses.
Peterson subsequently filed a complaint against ISD 272, alleging tortious interference with business relationships; defamation per se and compelled self-publication defamation; intentional and/or negligent infliction of emotional distress; and violation of Minnesota’s Whistleblower Act, Minn. Stat. § 181.932 (2002). The district court granted ISD 272’s motion for summary judgment and dismissed Peterson’s claims with prejudice. This appeal follows.
Peterson argues that whether ISD 272 exercised good faith and due care is a question of fact. Usually, whether due care was exercised is a “factual issue inappropriate for summary judgment.” Boop v. City of Lino Lakes, 502 N.W.2d 409, 411 (Minn. App. 1993), review denied (Minn. Sept. 10, 1993). But the record must at least contain conflicting evidence regarding the issue of due care for a non-moving party to survive summary judgment. See Landview Landscaping, Inc. v. Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 241 (Minn. App. 1997) (holding that the appellant failed to meet its burden of showing a material fact issue requiring trial when it did not point to evidence indicating that the respondent had failed to use due care), review denied (Minn. Dec. 22, 1997).
Here, Peterson argues that the human-resources director did not exercise good faith and due care when she asked school staff to “go outside the school’s filtering system, onto the internet, to print pornographic pictures that [she] knew Peterson had not accessed.” But the human-resources director did not tell the board of teaching that it would receive pictures viewed by Peterson. Rather, she attempted to provide the board of teaching with examples of the images to be found on one of the websites that was listed on Peterson’s access log and not on his denial log. It is undisputed that www.sexualbikini.com was a website that was listed on the access log for Peterson’s computer on February 28, 2002, and was not listed on the denial log. The human-resources director then asked an employee to print pictures from this website in response to the board of teaching’s request for information regarding “[t]he specific nature of the behavior which was the subject of the reports” and “[t]he outcome of any investigation or other type of inquiry conducted into the allegations.” It is also undisputed that four of the five pictures sent to the board of teaching were printed from the www.sexualbikini.com website. The district court noted that the fifth picture was of a similar nature and came from a website that appeared to be a pop-up on www.sexualbikini.com. The district court concluded that the origin of the fifth picture was immaterial to whether ISD 272 was entitled to immunity, and the record as a whole supports that conclusion.
We conclude that the record supports the district court’s conclusion that the report to the board of teaching was not made with ill will or improper motive and therefore supports the district court’s failure to find an absence of good faith or due care. Peterson has not established that there is a genuine issue of material fact regarding whether ISD 272 acted in bad faith or without due care in conducting the investigation and in making its report to the board of teaching.
Because Peterson failed to raise genuine issues of material fact, we conclude that the district court did not err by determining that ISD 272 is immune from liability under Minn. Stat. § 122A.20, subd. 3, and that summary judgment was appropriate.