This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Katherine M. Groeneweg,
Interstate Enterprises, Inc.,
Filed April 19, 2005
File No. CX-03-684
Gary A. Weissman, Weissman Law
Donald W. Savelkoul, Peterson,
Savelkoul, Schlichting & Benda, Ltd.,
Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
appeal from summary judgment, appellant argues that the district court erred by
granting summary judgment to respondent, her former employer. We find that summary judgment was appropriate
on appellant’s claims of negligent infliction of emotional distress, invasion
of privacy, and self-defamation. But
because issues of material fact exist on appellant’s claim of unlawful
From May 2000 to May 17, 2002, appellant Katherine M. Groeneweg was employed by respondent Interstate Enterprises as a housekeeper at a Holiday Inn Express; from October 2000 on, she was head housekeeper.
At times, certain front-desk staff slept overnight in motel rooms without registering. Groeneweg claims that she believed that this conduct violated state law and that in January 2002, she told the general manager about the problem. He failed to respond, and Groeneweg brought the problem to the attention of Interstate’s “owner representative,” one of the owners who served as liaison between the ownership group and the motel management.
claims that she told the owner representative that the employees’ conduct
On May 15, 2002, the general manager told Groeneweg of a supervisor’s meeting scheduled for the next day, which was a day that Groeneweg was not scheduled to work. Groeneweg later left a telephone message for the general manager with a night employee asking that the meeting be rescheduled. She did not attend the May 16 meeting.
On May 17, 2002, the general manager fired Groeneweg for insubordination because she did not attend the May 16 meeting. That morning, the owner representative asked the general manager to reconsider, and later in the day, the general manager, along with the two front-desk staff who had been the subjects of Groeneweg’s reports, met with Groeneweg. The general manager had told Groeneweg in advance that these staff members would attend the meeting. The general manager began the meeting by reading the reason for Groeneweg’s termination, and he did not reinstate Groeneweg to her position.
Groeneweg claims that she went into a deep depression after being fired. In September 2002, she sought and received medical treatment for depression.
Groeneweg eventually found a job as a personal-care attendant. She did not tell her new employer that she had been fired or explain why she left the Holiday Inn Express. But she fears having to answer such questions if she looks for another job. Groeneweg has not yet told any prospective employers why she lost her job at the Holiday Inn Express.
In February 2003, Groeneweg sued Interstate, alleging unlawful retaliation under the Whistleblower Act; invasion of privacy; negligent infliction of emotional distress; and compulsory self-defamation. She sought damages, back pay, front pay, and attorney fees. Both parties filed summary-judgment motions, and in May 2004, the district court granted Interstate’s motion for summary judgment on all claims against it and denied Groeneweg’s motion for partial summary judgment. This appeal follows.
appeal from summary judgment, this court determines (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 (
Groeneweg argues that
the district court erred by granting summary judgment to Interstate on her
An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because:
(a) the employee . . . in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.
Because Groeneweg’s claimed reports implicate a violation of state law and because questions of fact remain regarding the content of Groeneweg’s reports, regarding whether she made the reports in good faith, and regarding whether she was discharged because of her reports, we conclude that summary judgment on Groeneweg’s claim under the Whistleblower Act was inappropriate, and we remand for further proceedings regarding that claim.
next argues that the district court erred by granting summary judgment to
Interstate on her claim for negligent infliction of emotional distress. Usually a plaintiff may recover for negligent
infliction of emotional distress only “when that plaintiff is within a zone of
danger of physical impact, reasonably fears for his or her own safety, and
consequently suffers severe emotional distress with resultant physical injury.” Bohdan v. Alltool Mfg., Co., 411
N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13,
1987). But there is an exception to the
zone-of-danger rule: a plaintiff “may recover damages for mental anguish or
suffering for a direct invasion of his rights, such as defamation, malicious
prosecution, or other willful, wanton or malicious conduct.”
whether the zone-of-danger rule or the exception is applied, a plaintiff must
demonstrate “physical manifestation[s] of the distress as proof of the genuineness
and gravity of the emotional suffering.”
Soucek v. Banham, 503 N.W.2d 153, 164 (
next argues that the district court erred by granting summary judgment to
Interstate on her invasion-of-privacy claim, which alleges intrusion upon
seclusion. The Minnesota Supreme Court
has recognized the tort of invasion of privacy and three of the causes of
action associated with it: intrusion
upon seclusion, appropriation, and publication of private facts. Lake v. Wal-Mart Stores, Inc., 582
N.W.2d 231, 235 (
are three elements to the intrusion-upon-seclusion tort: (1) an intrusion, (2) that is highly
offensive, and (3) that is into some matter in which a person has a legitimate
expectation of privacy. Swarthout v.
Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744 (
According to the Restatement (Second) of Torts, “[t]he defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” Restatement (Second) of Torts § 652B cmt. c (1977).
Groeneweg argues that she suffered a highly offensive intrusion here because the persons reported by her were present at the meeting at which her employment was terminated. She argues that she had a reasonable expectation of privacy at such a meeting.
find only one
The facts here demonstrate no similar level of intrusion. We conclude that, as a matter of law, Groeneweg had no legitimate expectation of privacy at the meeting at which her employment termination was discussed and that the mere presence of other employees at the meeting was not an intrusion upon seclusion. Therefore, we determine the district court did not err by granting summary judgment on Groeneweg’s claim for invasion of privacy.
Groeneweg argues that the district court erred by granting summary judgment to
Interstate on her claim of self-defamation.
defamatory statement (1) must be communicated to someone other than the
plaintiff, (2) must be false, (3) and must tend to harm the plaintiff’s
reputation and to lower the plaintiff in the estimation of the community.
Here, Groeneweg acknowledges that she has not had to make any self-defamatory statements. Her affidavit states that she found another job and that the employer did not ask her whether she had ever been fired from a job or why she left her last job. Although Groeneweg has not communicated a self-defamatory statement to a third party, she bases her claim on the speculation that she might have to do so in the future. But she fails to point to caselaw concluding that the possibility of future compelled self-publication, absent actual communication to a third party, satisfies the publication element of a defamation claim.
Because Groeneweg acknowledges that she has not communicated a self-defamatory statement to others, we find that there has been no publication. Because publication is an essential element to a defamation claim, we determine that summary judgment was properly granted to Interstate on Groeneweg’s claim for defamation.
Affirmed in part, reversed in part, and remanded.