This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Little Earth of United Tribes
Housing Corporation, et al.,
Filed June 19, 2007
Hennepin County District Court
File No. 27-CV-05-003940
Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, Loring Green East, 1201 Yale Place, Suite A100, Minneapolis, MN 55403 (for appellant)
David J. Goldstein, Alissa M. Raddatz, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for respondents Little Earth of United Tribes Housing Corp. and Little Earth Residence Ass’n)
Nell E. Matthews, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Little Earth Neighborhood Early Learning Center Corp.)
Rolf E. Sonnesyn, Daniel P.H. Reiff, Tomsche, Sonnesyn & Tomsche, 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondents Little Earth Residents’ Ass’n, Inc., and Leah LaChapelle)
John P. Brendel, Maureen A. Hill, Brendel and Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN 55042 (for respondent Alan Arthur)
Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.
Appellant Elladean Wikstrom was terminated from her job as executive director of respondents Little Earth of United Tribes Housing Corporation (LEUTHC), Little Earth Residents’ Association, Inc. (LERA), and Little Earth Neighborhood Early Learning Center Corporation (NELC), collectively known as the Little Earth Community Partnership, by the combined boards of directors of these organizations. Appellant sued these organizations, as well as individual respondents Alan Arthur and Leah LaChapelle, alleging (1) retaliation under the whistleblower statute; (2) defamation; (3) intentional infliction of emotional distress; (4) tortious interference with economic advantage; and (5) negligent supervision, retention, and hiring.
Disputing the district court’s summary judgment in favor of respondents, appellant argues that the court misapplied Minn. Stat. § 181.932, subd. 1(a) (2004) (the whistleblower statute) and erroneously concluded that she failed to establish a prima facie case for each of her remaining claims. We affirm.
The Little Earth community is a low-income housing program designed to assist American Indians living in Minneapolis. LEUTHC administers the housing units; four of its nine board members are Little Earth residents. LERA is a resident advocacy group, which also runs a food shelf and a technology center; its board consists solely of Little Earth residents. NELC provides children’s programs and daycare; its board members need not be Little Earth residents. Respondent LaChapelle was the LEUTHC board chair when appellant was hired and when she was fired. Respondent Arthur was one of the LEUTHC non-resident board members.
Appellant lived at Little Earth in the 1970’s. In April 2001, she was hired by the combined boards to serve as executive director of LEUTHC and NELC. Previously, she had served as a non-resident board member of LEUTHC. Later, she became executive director of LERA as well. Appellant’s basic job responsibilities were to develop and administer annual budgets, fundraise, act as a public relations liaison, and supervise the management company, which had responsibility for rentals and evictions and other day-to-day operations of the housing units.
In many ways, appellant’s job was demanding and stressful. The mean income of Little Earth residents was less than $10,000; violent crime, gang problems, drug use, and alcohol issues were prevalent and well-known in the community and to the boards. Because Little Earth provided low-income and subsidized housing, it was subject to certain regulations by the Department of Housing and Urban Development (HUD) and the Minnesota Housing Finance Agency (MHFA); both included rules barring residents who were not on the lease documents or who had criminal convictions. Off-lease residency, particularly by those with a criminal history or gang connections, was a continuous and well-known problem.
Although appellant furnished forceful and effective advocacy for the community, some of her actions led board members to question her suitability as executive director. These concerns led the combined board to ask respondent Arthur and Gordon Thayer, both non-resident LEUTHC board members, to investigate appellant’s work performance. They raised several specific allegations about appellant’s ability to handle public relations. For example, she alienated police officers assigned to the Little Earth community, ordering them to communicate with Little Earth residents only through her, calling one inspector several times late at night crying and screaming, sending him multiple e-mails and telephone messages, accusing another officer of being on drugs, and on one occasion, threatening to slap an officer. She also alienated the assistant county attorney assigned to handle Little Earth matters by subjecting him to a 45-minute tirade about police corruption when he called to introduce himself.
Appellant also had difficult relationships with staff and residents of Little Earth. She yelled at staff, using profanity-laced language; on at least one occasion, daycare staff asked appellant not to swear within hearing range of the daycare children. On other occasions, appellant berated domestic abuse victims and threatened to evict them if their abusers returned to Little Earth; although appellant may have acted with good intentions, the victims were upset.
After completing their investigation, Arthur and Thayer met with appellant, who was unwilling to admit to any wrongful behavior. Finally, in January 2004, the combined boards voted to terminate appellant’s employment.
Appellant alleged in her complaint that the combined boards retaliated against her because she reported criminal activity and off-lease residency involving board members, both to the combined boards and to HUD and MHFA, the agencies responsible for subsidized housing at Little Earth. But when deposed, appellant denied making any reports to HUD and stated that her report to MHFA involved a conversation with an MHFA representative after a board meeting, and that she could not remember the date or whether anyone else overheard their conversation. Appellant specifically accused respondent LaChapelle of permitting off-lease residency at her home. She also accused respondent Arthur of attempting to sabotage a Little Earth funding request made to the Minnesota Community Development Agency (MCDA), stating that Arthur had a conflict of interest because he sought funding for another group he represented. Appellant alleges that Arthur retaliated against her for bringing this conflict of interest to light.
D E C I S I O N
Summary Judgment Standard
The district court must grant summary judgment when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. This court reviews the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). “[T]he party resisting summary judgment must do more than rest on mere averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “[W]hen the nonmoving party bears the burden of proof on an element essential to the non moving party’s case, the nonmoving party must make a showing sufficient to establish that essential element.” Id. at 69-70.
An employer shall not discharge an employee if 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.” Minn. Stat. § 181.932, subd. 1(a) (2004). Minnesota courts use a McDonnell-Douglas analysis to decide whether a retaliatory discharge has occurred because an employee exposed real or potentially illegal conduct or, in other words, acted as a whistleblower. Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). The McDonnell-Douglas analysis consists of three stages: first, the employee must establish a prima facie case of retaliatory discharge; next, the employer has the burden of producing a legitimate, non-retaliatory reason for the adverse employment action; last, the burden shifts to the employee to show that the employer’s proffered reason is pretextual. Cokley, 623 N.W.2d at 630.
In order to establish a prima facie case, an employee must show that (1) the employee engaged in statutorily protected conduct; (2) the employee suffered an adverse employment action; and (3) there is a causal connection between the two. Id. There is no doubt that the second element is satisfied; appellant was terminated from her job, which is an adverse employment action. As to the first element, “statutorily protected conduct” means that the employee made a report of a known or suspected violation of law and that the purpose of the report was to expose an illegality. Gee v. Minn. State Colleges and Univ., 700 N.W.2d 548, 555 (Minn. App. 2005). In order to withstand summary judgment, the employee must show that the report was made for the purpose of exposing the illegality. Id. The specific law, statute, or rule violated need not be identified, so long as it is clear that if the alleged facts were proved, such a violation would be shown. Abraham v. County of Hennepin, 639 N.W.2d 342, 355 (Minn. 2002).
Appellant’s claim falters at the start. She states that she reported violations of federal and state rules regarding occupancy of subsidized housing, and the difficulty with this claim is threefold. First, appellant claims that she reported to the Little Earth boards that these violations were occurring, but appellant’s purpose in doing so was not to expose an illegality; rather, it was part of her job as director. See Freeman v. Ace Telephone Ass’n, 404 F. Supp.2d 1127, 1139 (D. Minn. 2005) (stating purpose of report must be to expose illegality; report made as part of employee’s job duties is not protected conduct). According to appellant’s job description, she was responsible for supervising the management company, which was responsible for day-to-day operations at Little Earth. As executive director, she was to “endeavor to keep the board members accurately and timely informed.”
Second, if the employer is already aware of a violation of law, an employee’s report of the known violation is insufficient to establish a prima facie case of retaliatory discharge. Id. Here, it is evident from the record that the problem of off-lease occupancy was well-known at Little Earth. In appellant’s deposition, she stated that the issue of off-lease occupancy was regularly discussed at monthly and quarterly meetings.
Finally, appellant has failed to establish that she made an actual report to others; her deposition testimony states that she mentioned the matter to a representative of MHFA, that it might have been after a meeting, and that she did not remember the date or whether others may have overheard. No other evidence was offered.
Appellant bears the burden of establishing at least sufficient evidence on this essential element to withstand the summary judgment motion; by failing to do so, she has not established a prima facie case of retaliation, and the district court properly granted summary judgment. The shortcomings of proof that appellant engaged in statutorily protected conduct make it unnecessary and impossible to examine whether her dismissal was retaliatory or whether board evidence of discharge for misconduct was pretextual.
Appellant states a claim that respondents have defamed her. A plaintiff proves such a claim by showing that the defendant (1) made a false and defamatory statement about the plaintiff; (2) in an unprivileged communication to a third party; and (3) harmed the plaintiff’s reputation in the community by making the defamatory statement. Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003). A claim of defamation must be pled with specificity, including alleging who made the statements, to whom they were made, and where. Pope v. ESA Servs., Inc., 406 F. 3d 1001, 1011 (8thCir. 2005).
Appellant’s complaint makes only the most general of allegations: that respondents made false and libelous statements about appellant in her professional community, and that she will be forced to inform potential employers about the circumstances of her termination. Appellant does not identify the speaker or the recipient of the statements, or when or where the statements were made. These vague claims are insufficient to establish a prima facie case, and thus the district court did not err in granting summary judgment on appellant’s defamation claim.
also states a claim of intentional infliction of emotional distress.
Such a claim consists of four distinct elements: (1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” Langeslag v. KYMN Inc., 664 N.W.2d 860, 865 (Minn. 2003). A high threshold standard of proof is required in order to submit the claim to a jury. Id. Only a case involving egregious facts, “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community” is actionable. Id. “Liability for intentional infliction of emotional distress does not extend to insults, indignities, threats, annoyances, petty oppressions or other trivialities.” Id. “General embarrassment, nervousness and depression are not in themselves a sufficient basis for a claim of intentional infliction of emotional distress.” Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). Appellant’s assertions of emotional harm fail in all respects to establish a prima facie case of intentional infliction of emotional distress.
Appellant also asserts a claim of tortious interference with economic advantage. Generally, a party cannot interfere with the party’s own contract with another. Nordling v. N. States Power Co., 478 N.W.2d 498, 505 (Minn. 1991). Further, the party’s agent, acting within the scope of his or her duties, does not interfere with a contract when the agent terminates the party’s employee. Id. But if the agent “intentionally or improperly” interferes with another contract, a case for tortious interference with contract can be made. Id. at 506. This generally means that an act is done without legal justification or with an improper motive, such as malice, and the plaintiff bears the burden of proving malice. Id. Appellant failed to allege sufficient facts, respecting a contract or a motive, to withstand summary judgment on her claim of intentional interference with contract.
Finally, appellant refers to her claim of negligent supervision, retention, and hiring, but she makes no argument on these claims in her brief. We decline to consider or address issues that are not fully articulated or argued in an appellant’s brief. See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).
Our review of the record establishes that appellant failed to present a prima facie case on any of her claims against respondents. The district court properly granted summary judgment to respondents.