This opinion will be unpublished and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
Teresa M. Graham,
Filed November 29, 2005
Ramsey County District Court
File No. C7-03-10880
Jeffrey D. Schiek, Philip G. Villaume, Villaume & Schiek, P.A., 5200 Willson Road, Suite 150, Edina, MN 55424 (for appellant)
James R. Andreen, Erstad & Riemer, P.A.,
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Teresa M. Graham, a former employee of respondent Independent School District 625, appeals from summary judgment dismissing her claims for negligence, breach of contract, promissory estoppel, respondeat superior, negligent and intentional infliction of emotional distress, assault, false imprisonment, and retaliation for reporting violations of child-reporting laws. Because we conclude that a genuine issue of material fact exists regarding whether appellant was falsely imprisoned by respondent Deborah Schipp and whether respondent school district is vicariously liable for the actions of Schipp on May 9, 2003, we reverse the district court’s grant of summary judgment in favor of respondents and remand the matter for further proceedings. On all remaining issues, we affirm.
May 9, 2001, appellant Teresa M. Graham was hired by respondent
During the 2001-02 school year,
appellant filed two reports with the Minnesota Department of Education (f/k/a
Minnesota Department of Children, Families, and Learning) alleging child
maltreatment. The first report, made on September
20, 2001, alleged that an educational assistant used assaultive behavior
towards a student at
On May 2, 2002, Pat Juaire, the lead
social worker for the school district, completed a performance evaluation on appellant
despite the fact that building principals are responsible for completing
employee evaluations. The Juaire evaluation
reflected an overall “exceeds expectations.”
Juaire acknowledged, however, that it was not her place to evaluate
appellant’s performance and that she had little to no interaction with
appellant. On May 15, 2002, Yu met with
appellant and changed the Juaire evaluation from overall “exceeds expectations”
to overall “meets expectations.” Yu
indicated that during the 2001-02 school year he had received numerous
complaints regarding appellant’s unprofessional behavior, which resulted in Yu
rating appellant as “meets expectations” on her performance evaluation. On
On May 20, 2002, appellant filed a complaint with Eileen Cardwell who assists in investigations of allegations of misconduct or complaints filed by school employees. The complaint stated that appellant believed Yu inappropriately changed her performance evaluation. It further stated that Yu had informed appellant that the parking ramp incident affected her appraisal and that Yu had “grilled” her about the two child-maltreatment reports she filed. Appellant claimed she felt bullied, fearful, and unsafe during the meeting, and that Yu was insensitive about the parking ramp incident. Appellant stated that she believed the incident negatively impacted her performance evaluation and she did not want to be retaliated against.
In August 2002, appellant accepted a position with the school district as the program coordinator for the SNAP (Stop Now and Plan) program, a temporary-grant-fund program. In May 2003, appellant applied for the position of Agape program coordinator, another program associated with the school district. Appellant held this position until the end of the 2002-03 school year.
On May 9, 2003, respondent Deborah Schipp informed appellant that she would like to meet with her. Schipp was employed by the school district as a teacher on special assignment working for Don Loe, Assistant Director of Special Education. Schipp directed appellant into Loe’s unoccupied office. After the two women entered the office, Schipp closed the door, placed a chair against the door and sat on it. Schipp then informed appellant that she would not be hired as the Agape program coordinator. Appellant claims that Schipp acted in a harassing and volatile manner toward her. Further, appellant claims that Schipp used threatening and intimidating language and gestures toward her. The distance between Schipp and appellant was approximately three to four feet and there were no barriers between them. Appellant claims that when she told Schipp she wanted to leave the office, Schipp informed her that she was not leaving until Schipp was done with her. The confrontation lasted approximately 15 minutes and ended when Schipp stormed out of the office. Later that day, appellant contacted Melissa Hoglund, a staffing specialist in the Human Resources Department, to report the incident with Schipp. Hoglund stated that her phone conversation with appellant lasted approximately 45 minutes and that appellant was very upset and crying.
On May 11, 2003, appellant sent an
email to Hoglund, Loe, and Richard Kreyer, Executive Director of Human
Resources for the school district, regarding what had transpired during the May
9 meeting with Schipp. On
On October 13, 2003, appellant filed a lawsuit against respondents as follows: (1) negligence by school district; (2) breach of contract by school district; (3) promissory estoppel against respondents Don Loe and Patricia Fernandez, Director of Special Education; (4) negligence against the individual respondents; (5) breach of contract against the individual respondents; (6) negligent infliction of emotional distress against all respondents; (7) respondeat superior (alleging that the individual respondents were acting in the course and scope of their employment when they committed the tortious acts, causing severe physical and emotional distress making the school district vicariously liable for the individual respondents’ actions); (8) intentional infliction of emotional distress; (9) violation of Minn. Stat. § 626.556, subd. 4a (2004); (10) false imprisonment by respondent Shipp; (11) assault by respondent Shipp; (12) violation of Minn. Stat. § 181.932 (2004) (whistleblower); and (13) public-policy exception to the at-will employment. This appeal follows the district court’s grant of summary judgment in favor of respondents.
D E C I S I O N
“On an appeal from summary
judgment, we ask 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 (
argues that, when viewed in the light most favorable to her, the facts prove
that respondents made specific promises to her regarding employment for the
2003-04 school year, which she detrimentally relied on, and that a grave
injustice will result if those promises are not enforced. In
Promissory estoppel is a creature of equity
which implies “a contract in law where none exists in fact.” Grouse v. Group
Health Plan, Inc., 306 N.W.2d 114, 116 (
analysis of a promissory-estoppel claim begins with whether appellant has
demonstrated a “clear and definite” promise.
The first statement upon which appellant bases
her promissory-estoppel claim occurred in March 2003, when Loe told appellant
that she would have a social-worker position for the 2003-04 school year within
In dismissing appellant’s claim for promissory estoppel, the district court ruled that appellant’s claim is governed by the Ruud case, which states: “The usual employer-employee relationship is terminable at the will of either party.” Ruud, 526 N.W.2d at 371. The district court ruled that appellant failed to show that there was a clear and definite offer and acceptance or that Loe and Lombardi had the power to bind the school district with their general statements. Based on the record, it is clear that while the statements made by Loe and Lombardi appear to make assurances seeming to indicate job permanence, the promises were merely general statements of policy. Further, the statements are insufficient to overcome the school district’s sole discretion to determine whether to renew appellant’s employment. Because there was no clear and definite promise upon which to base the promissory-estoppel claim, it is not necessary to go any further with the analysis of this claim. The district court did not err in ruling that appellant failed to establish a clear and definite promise sufficient to support her claim of promissory estoppel.
Appellant argues that, when viewing the facts in a light most
favorable to her, she has set forth genuine issues of material fact to sustain
a claim for false imprisonment and the district court erred in dismissing her
claim. “[T]he elements of false imprisonment are (1) words or
acts intended to confine, (2) actual confinement, and (3) awareness by the [person]
that he [or she] is confined.” Blaz v. Molin Concrete Prods. Co., 309
The district court relied on Bellini in dismissing appellant’s false-imprisonment claim, ruling that there was no evidence that appellant attempted to leave the office or even asked to leave. Appellant argues that Schipp’s words and action of closing the door to the only exit in the office and placing a chair in front of it confined her to a specific office location. Further, appellant argues that it is not necessary to prove that she attempted to leave or asked to leave in order to prevail on a false-imprisonment claim. The facts surrounding the false-imprisonment claim—Schipp acting in a hostile manner toward appellant, blocking the sole exit from the office with a chair, and refusing to allow appellant to depart the office when she asked—when viewed in the light most favorable to appellant, reflect that genuine issues of fact exist regarding whether appellant was falsely imprisoned by Schipp. The district court erred in dismissing this claim and we, therefore, reverse the district court’s grant of summary judgment in favor of respondents on the false-imprisonment issue and remand for further proceedings on this issue.
Appellant argues that, when
viewing the facts in a light most favorable to her, she has set forth genuine
issues of material fact to sustain a claim for assault and the district court
erred in dismissing her claim. “An assault
is an unlawful threat to do bodily harm to another with present ability to
carry the threat into effect.” Dahlin v. Fraser, 206
Negligent Infliction of Emotional Distress
Appellant argues that, when viewed in a light most favorable to her, she has set forth sufficient facts to sustain a claim for negligent infliction of emotional distress and the district court erred in dismissing her claim. The underlying claims for appellant’s claim of negligent infliction of emotional distress are the alleged assault and false imprisonment by Schipp. Considering that we have concluded that the district court did not err in dismissing appellant’s assault claim, appellant’s claim of negligent infliction of emotional distress based on the alleged assault claim also fails as a matter of law. In addition, appellant’s claim of negligent infliction of emotional distress based on the false-imprisonment claim fails due to the fact that appellant has failed to establish that she was within the zone of danger and she has failed to present physical manifestations that rise to the level of severe emotional distress.
“To establish a claim for
negligent infliction of emotional distress, a plaintiff must ordinarily show she (1) was
within a zone of danger of physical impact; (2) reasonably feared for her own
safety; and (3) suffered severe emotional distress with attendant
physical manifestations. Stead-Bowers v.
argues that, by definition, the alleged assault and false imprisonment by
Schipp was willful or malicious conduct.
Appellant also argues that she was within the “zone of danger” due to
the fact that (1) Schipp acted in a harassing and volatile manner toward
appellant; (2) Schipp used threatening and intimidating language and gestures
during the meeting; (3) there were no barriers between the women and they were
three to four feet apart; (4) appellant was restrained from leaving the room;
and (5) appellant claims Schipp took two steps toward her. “To be within the ‘zone
of danger,’ the plaintiff must show that the defendants placed her within a
zone of danger of physical impact, prompting reasonable safety concerns and
causing severe emotional distress and resultant physical injury.”
Because appellant’s assault claim fails as a matter of law, and appellant failed to establish that she was within the zone of danger with physical manifestations that rose to the level of severe emotional distress, appellant cannot proceed with her claim for negligent infliction of emotional distress. Therefore, the district court did not err in dismissing her claim of negligent infliction of emotional distress.
Vicarious Liability (Respondeat Superior)
Appellant argues that, when viewed in a light most favorable
to her, she has set forth sufficient facts to sustain a claim for vicarious
liability (respondeat superior) and the district court erred in dismissing her
claim. An employer may be vicariously liable for the torts of
its employees committed within the course and scope of employment.
The Minnesota Supreme Court has interpreted the respondeat-superior
doctrine to hold an employer liable “for even the intentional misconduct of its
employees when (1) the source of the attack is related to the duties of the
employee, and (2) the assault occurs within work-related limits of time and
place.” Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (
Appellant argues that, when viewed in a light most favorable to her, she has set forth sufficient facts to sustain a claim for violation of Minn. Stat. § 626.556, subd. 4, and the district court erred in dismissing her claim. Minn. Stat. § 626.556, subd. 4a provides:
(a) An employer of any person required to make reports under subdivision 3 shall not retaliate against the person for reporting in good faith abuse or neglect pursuant to this section, or against a child with respect to whom a report is made, because of the report.
. . . .
(c) There shall be a rebuttable presumption that any adverse action taken within 90 days of a report is retaliatory. For purposes of this paragraph, the term “adverse action” refers to action taken by an employer of a person required to report under subdivision 3 which is involved in a report against the person making the report or the child with respect to whom the report was made because of the report, and includes but is not limited to:
(1) discharge, suspension, termination, or transfer from the facility, institution, school, or agency;
(2) discharge from or termination of employment;
(3) demotion or reduction in remuneration for services; or
(4) restriction or prohibition of access to the facility, institution, school, agency, or persons affiliated with it.
undisputed that appellant made written reports of alleged child maltreatment in
September 2001 and October 2001. Because
appellant filed actual reports, she falls under the protection of the statute. See Cannon
v. Habilitative Svcs., Inc., 544 N.W.2d 790, 793-94 (
The alleged retaliatory actions taken against appellant—the changing of her performance evaluation in May 2002 and the nonrenewal of her teaching contract in May 2003—did not occur within the 90-day rebuttable-presumption period. Appellant was also promoted in the summer of 2002 to the director of the SNAP program and she remained in this position throughout the 2002-03 school year. Finally, the fact that Yu changed appellant’s performance evaluation is not an adverse action prohibited by the statute and it is undisputed that it is the responsibility of the building principal to complete employee-performance evaluations. The fact that Yu rated appellant as “meets expectations” is not an adverse employment action. Because appellant has failed to establish that there is a causal and continuing connection between the child-maltreatment reports, the changing of her performance evaluation, and the nonrenewal of her teaching contract, the district court did not err in dismissing her violation of the Minn. Stat. § 626.566 claim.
Appellant argues that, when viewed in a light most
favorable to her, she has set forth sufficient facts to sustain a claim under
the whistleblower statute, Minn. Stat. § 181.932, subd. 1(a) (2004), and
the district court erred in dismissing her claim. To establish a prima facie case under the whistleblower
statute, the employee is required to 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 (
Affirmed in part, reversed in part, and remanded.