This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Cindy Elofson,





Chisago County, et al.,




Filed December 26, 2006


Lansing, Judge


Chisago County District Court

File No. 13-C8-04-001060


Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, Loring Green East, 1201 Yale Place, Suite A100, Minneapolis, MN 55403 (for respondent)


Teresa M. Thompson, Lindsay J. Zamzow, Fredrickson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402 (for appellants)


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            The district court denied Chisago County’s summary judgment motion to dismiss, on official-immunity grounds, a former employee’s gender-discrimination claim under the Minnesota Human Rights Act.  Because the record supports the district court’s determination that the immunity claim presents genuine issues of material fact, we affirm the denial of summary judgment.  


            Chisago County hired Cindy Elofson as a deputy in its sheriff’s department in August 2002.  Todd Rivard, who was then the acting Chief Deputy Sheriff, participated in the initial interview and recommended that the department hire Elofson, who had more than ten years of law-enforcement experience.  Under the collective bargaining agreement, Elofson was subject to a one-year probationary period.  

            After an introductory training program, the department assigned Elofson to patrol duty in Taylors Falls, a municipality that contracts with Chisago County for police services.  During her one-year employment with the department, Elofson was the only female probationary deputy.  The department employed a total of thirty-five deputies.  In addition to Elofson, two other female deputies worked as patrol officers.

            Following the fall election, Rivard became the Chisago County Sheriff in January 2003.  As sheriff, Rivard became aware of reports that Elofson was misusing her squad car and was taking frequent coffee and meal breaks outside of Taylors Falls.  In response, Rivard instructed Elofson to stay in Taylors Falls while on patrol except under limited and specified circumstances. 

            In early July 2003, Rivard assigned a new lead officer to Taylors Falls.  The officer subsequently informed Rivard that Elofson had problems accepting supervision.  Near the end of Elofson’s probationary period, Rivard met with his administrative team.  By consensus, the team decided that Elofson had not successfully passed her probationary period.

            Rivard notified Elofson in writing on July 28, 2003, that her probationary employment would be terminated.  In separate written requests, Elofson asked why she was being terminated, requested reinstatement, and also requested that Rivard list her termination as a resignation if he was unwilling to reinstate her.  In a letter dated July 29, 2003, Rivard informed Elofson that he had accepted her resignation. 

            Elofson sued Rivard, Chisago County, and the Chisago County Sheriff’s Department (collectively Chisago County) in March 2004.  The complaint alleged gender discrimination under the Minnesota Human Rights Act (MHRA), negligence, breach of contract, and intentional infliction of emotional distress.  

            Following discovery, Chisago County moved for summary judgment.  The district court granted summary judgment on the claims of negligence, breach of contract, and intentional infliction of emotional distress.  The district court denied summary judgment on the claim of gender discrimination and also denied Chisago County’s motion to dismiss based on grounds of official and vicarious official immunity.  Chisago County appealed, as of right, the denial of its motion to dismiss on immunity grounds.  Chisago County also petitioned for discretionary review of the district court’s denial of summary judgment of the gender-discrimination claim under the MHRA.  A special-term panel of this court denied Chisago County’s petition for discretionary review.  We therefore address only Chisago County’s appeal from the denial of its motion to dismiss on immunity grounds.


            In reviewing an appeal from the denial of official immunity on summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred in applying the law.  Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006).  Any evidence presented must be considered in the light most favorable to the nonmoving party. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 217 (Minn. 1998).  Whether official immunity applies is a question of law that we review de novo.  Id. at 219.

            The doctrine of official immunity is a common law remnant of sovereign immunity that protects individuals who may be subject to liability because of their work on behalf of government.  Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn. 1996).  The purpose of the doctrine is to ensure that public officials can effectively and independently perform their duties without fear of personal liability.  Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988).  To effectuate that purpose, government officials have broad discretion to make decisions and to conduct business under the protection of official immunity.  Janklow, 552 N.W.2d at 716.  Official immunity does not, however, protect an individual official who commits a malicious or willful wrong.  Thompson, 707 N.W.2d at 673. 

            The decision to terminate a person’s employment is “almost always a discretionary act.”  Janklow, 552 N.W.2d at 717.  This is especially true for employment that involves carrying out the policies and reflecting the standards of an elected official.  Rico v. State, 472 N.W.2d 100, 105 (Minn. 1991); see also Gen. Drivers v. Aitkin County Bd., 320 N.W.2d 695, 699-700 (Minn. 1982) (noting that sheriff has discretion to terminate deputy not covered by collective bargaining agreement or similar protections).  Rivard, an elected county official, employs individuals who are responsible for implementing his policy decisions.  Consequently, his decision to terminate a deputy’s employment is a discretionary act. 

            Because the employment termination is discretionary, the government official who makes the decision will ordinarily be immune from suit unless the claimant can establish that the government official forfeited immunity protection by acting willfully or maliciously.  Id.  In cases involving claims under the MHRA, however, proof of forfeiture of official immunity through willfulness or malice is conjoined with proof of discrimination, because evidence of an alleged discriminatory act is essentially equivalent to evidence of willful or malicious conduct.  See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 569-71 (Minn. 1994) (analyzing official immunity in context of MHRA race-discrimination claim against police officers); Davis v. Hennepin County, 559 N.W.2d 117, 122-24 (Minn. App. 1997) (analyzing official immunity in context of MHRA sexual-harassment claim against county correctional-facility employees), review denied (Minn. May 20, 1997).  Malice, for purposes of official immunity “means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.”  Rico, 472 N.W.2d at 107 (quotation omitted).

            In Beaulieu the supreme court expressly recognized that the same evidence that is necessary to prove discrimination will almost always demonstrate willful or malicious conduct for purposes of official immunity.  518 N.W.2d at 570.  Because both inquiries require a finding that the defendant acted intentionally, and the inquiry for each focuses on the objective reasonableness of the defendant’s actions, “the practical impact of allowing official immunity to be asserted as a defense to discrimination claims under [the MHRA] will be at most negligible.”  Id.  The supreme court concluded that there would rarely be a case in which one could find that, for official immunity purposes, an official discriminated under the MHRA but did not act maliciously.  Id.

                  In Davis, we applied the principles stated in Beaulieu, and concluded that, because the elements that are required to sustain a sexual-harassment claim under the MHRA are substantially similar to those required to sustain the claim of malice, the denial of a motion for summary judgment on the merits necessarily barred summary judgment on the basis of official immunity.  559 N.W.2d at 123-124.  In denying Chisago County’s motions for summary judgment on official immunity and on Elofson’s gender-discrimination claim under the MHRA, the district court applied the principles expressed in Davis

            After analyzing the extensive evidence in the record, the district court denied summary judgment on the gender-discrimination claim because it concluded that Elofson had presented sufficient facts to raise a triable issue on whether Rivard intentionally treated her differently from similarly situated males on the basis of her gender.  See Minn. Stat. § 363A.08, subd. 2 (2004) (prohibiting unfair employment practices on basis of gender).  The district court observed that Elofson’s allegations of gender-based discrimination are “reasonably supported by affidavits and deposition transcripts,” and further recognized that the “evidence presented remains subject to conflicting interpretations that could cause reasonable people to differ.” 

            Consistent with that determination and the reasoning of Davis, the district court then rejected Chisago County’s assertion of official immunity on the gender-discrimination claim, becausea jury’s determination that Elofson’s claims are meritorious would include an implicit determination that Rivard acted willfully or with malice and that he therefore may not invoke the protection of official immunity.  Davis, 559 N.W.2d at 124.  The district court noted that, because the fact determination necessary for the willful-or-malicious-act exception would be similar to the fact determination necessary for the discrimination claim, dismissing on the basis of immunity would be inappropriate.  In other words, Elofson’s allegations of intentional misconduct are reasonably supported by evidence that remains open to interpretation.

            We agree with the district court’s analysis.  Elofson is a member of a protected class for purposes of the MHRA, she has sustained a negative employment consequence for reasons which she alleges to be discriminatory, and she has put forward evidence of discriminatory treatment.  Also, Elofson has provided evidence of her experience and skill as a veteran police officer, has presented affidavit support from the business community in her assignment area that attests to the high quality of her service, and has submitted numerous records from her training with Chisago County indicating an acceptable level of performance.  There is ample evidence that, if believed, tends to show that Elofson’s employer intentionally committed wrongful acts without legal justification.

            We recognize that, at the summary judgment stage, the conjunction of proof on the elements of a discrimination claim and the willful-or-malicious-act exception to official immunity may result in immunizing the government from ultimate liability but not the immediate litigation.  We interpret Beaulieu and Davis as intending this result.  We also note that, outside the context of discrimination claims, official immunity is not available on summary judgment when the record presents a genuine issue of material fact on an element necessary for the application of official immunity.  See, e.g. Thompson, 707 N.W.2d at 674-75 (addressing issue of vehicular pursuit and stating that official immunity cannot be determined on summary judgment when genuine issues of material fact are disputed and require resolution at trial); Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990) (addressing excessive-use-of-force claim under 42 U.S.C.A. § 1983 and denying summary judgment because willful-or-malicious-act exception to official immunity is “usually a question of fact to be resolved by a jury”). 

            Thus on this record, we conclude that the district court properly applied the law and did not err in denying summary judgment on the application of official immunity and, by extension, vicarious immunity to Chisago County.  Mumm v. Mornson, 708 N.W.2d 475, 493 (Minn. 2006) (noting that vicarious immunity does not apply when relevant public official is not entitled to official immunity).