This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2495

Sandra Kennedy, et al.,

Respondents,

vs.

City of St. Paul, et al.,

Appellants.

Filed June 18, 1996

Affirmed

Willis, Judge

Ramsey County District Court

File No. C6938809

Carla C. Kjellberg, 333 West Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416 (for Respondents)

Richard L. Kaspari, Garber & Metcalf, P.A., 333 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416 (for Respondents)

Timothy E. Marx, St. Paul City Attorney, Gerald T. Hendrickson, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for Appellants)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

The City of St. Paul and the director of the city park ranger program appeal from the district court's order denying their motion for summary judgment on official immunity grounds, arguing that respondents failed to raise a genuine issue of material fact as to whether appellants committed a willful or malicious wrong. We affirm.

FACTS

Rita Meyer and respondents Sandra Kennedy, Kimberlee Adams, and Kathryn Mansfield sued appellants City of St. Paul (City) and Roger Goski, the director of the city park ranger program. The district court granted appellants' summary judgment motion on respondents' equal protection, negligent supervision, negligent retention, and intentional infliction of emotional distress claims, but denied summary judgment on respondents' claims under the Minnesota Human Rights Act (MHRA) of sexual harassment, gender discrimination, retaliation, and aiding and abetting.

In an earlier appeal, appellants argued that official immunity barred sexual harassment claims brought against them under the MHRA. Kennedy v. City of St. Paul, No. C9-95-213, 1995 WL 450514, at *1 (Minn. App. Aug. 1, 1995). This court held that official immunity applied to sexual harassment claims under the MHRA. Id. at *2. This court, however, remanded and instructed the district court to "determine if respondents presented evidence sufficient to show a fact issue exists as to whether appellants committed a willful or malicious wrong." Id. at *3.

On remand, the district court again denied appellants' summary judgment motion, holding that Rita Meyer and respondents presented

evidence sufficient to demonstrate that a material issue of fact genuinely exists concerning the willful or legally malicious nature of defendants' conduct herein for which the plaintiffs may have a right of recovery and redress for sexual harassment at the hands of a co-employee.

Appellants do not challenge the district court's denial of summary judgment with respect to Rita Meyer; they challenge the denial of summary judgment only with respect to respondents Sandra Kennedy, Kimberlee Adams, and Kathryn Mansfield. On remand, the district court considered only the arguments and documentary evidence presented by the parties in connection with the original motion for summary judgment. The record before us contains the same evidence contained in the record on the first appeal to this court. We, therefore, incorporate by reference the fact section of this court's unpublished opinion in the first appeal. See id. at *1-2.

D E C I S I O N

On review of a summary judgment motion, this court determines whether there are any genuine issues of material fact and whether the district court erroneously applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). To avoid summary judgment, a nonmoving party "must present specific facts showing that there is a genuine issue for trial." Minn. R. Civ. P. 56.05. This court must view the evidence in the light most favorable to the nonmoving party. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847 (Minn. 1995). "If any doubt exists as to the existence of a material fact, the doubt must be resolved in favor of finding that a fact issue exists." State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

The official immunity doctrine does not protect a public official who "is guilty of a willful or malicious wrong." Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976). The supreme court has explained that

[m]alice "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." In the official immunity context, willful and malicious are synonymous.

Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citations and footnote omitted). To determine whether a public official committed a willful wrong, courts must consider "whether the official has intentionally committed an act that he or she had reason to believe is prohibited." Beaulieu, 518 N.W.2d at 571. This standard "contemplates less of a subjective inquiry into malice, which was traditionally favored at common law, and more of an objective inquiry into the legal reasonableness of an official's actions." Id.

The MHRA provides that discrimination on the basis of sex with respect to terms and conditions of employment is an unfair employment practice. Minn. Stat. ' 363.03, subd. 1(2)(c) (1994). The MHRA defines sex discrimination to include sexual harassment. Minn. Stat. ' 363.01, subd. 14 (1994). The MHRA states that

"Sexual harassment" includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

* * * *

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual's employment * * * or creating an intimidating, hostile, or offensive employment * * * environment; and * * * the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action.

Minn. Stat. ' 363.01, subd. 41 (1994).

Appellants argue that respondents must show that Goski or a specific lead ranger acted with subjective malice toward each of the respondents. The Beaulieu standard, however, requires an "objective inquiry into the legal reasonableness" of Goski's and the lead rangers' actions. 518 N.W.2d at 571. To show that appellants acted with malice by committing acts that they had reason to believe were prohibited, respondents must point to specific facts from which a reasonable jury could conclude that appellants (1) knew of the allegedly hostile environment created by park ranger Darryl Lewis's behavior or knew of the specific instances of harassment alleged by respondents and (2) failed to take timely and appropriate action.

I. Hostile Work Environment

A hostile work environment is "an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive * * * ." Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 370 (1993). A plaintiff may have a hostile environment claim even if offensive conduct is not directed toward the plaintiff. Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir. 1995).

The record contains sufficient evidence to raise fact questions regarding whether appellants knew that their employees found their work environment offensive and whether appellants took timely and appropriate action. Lead ranger Timothy Kluxtall received complaints from female rangers about Lewis's offensive behavior. The record does not show that Kluxtall did anything in response to these complaints. A former park ranger, Deb Hawkins, stated that she complained to three lead rangers about Lewis's behavior and the lead rangers did nothing. Rita Meyer stated that she reported sexual harassment by Lewis to a lead ranger, who laughed and said "Oh, that's just Darryl." Sandra Kennedy stated that she spoke to a lead ranger about Lewis's harassment of Kennedy and Deb Hawkins, and the lead ranger did nothing. Former ranger Chris Lee stated that he reported Lewis's behavior to Goski, and Goski did nothing. Rita Meyer stated that she and Sandra Kennedy complained to Goski that Lewis had sexually harassed them and other women, and Goski did nothing. From this evidence, a reasonable jury could conclude that appellants knew that their employees found their work environment hostile and abusive, and that appellants failed to take timely and appropriate action.

II. Harassment of Sandra Kennedy

The record contains sufficient evidence to raise fact questions regarding whether appellants knew that Lewis harassed Sandra Kennedy and whether appellants took timely and appropriate action. Kennedy stated that she spoke to a lead ranger about Lewis's harassment of Deb Hawkins and herself, and the lead ranger did nothing. Rita Meyer stated that she and Kennedy complained to Goski that Lewis had sexually harassed them and other women, and Goski did nothing. Goski testified that Kennedy told him of an incident of sexual harassment by Lewis in 1992. Goski testified that he could not remember if he contacted Robert Piram, the superintendent of parks and recreation, regarding Kennedy's complaint. A reasonable jury could conclude from this evidence that appellants knew Lewis sexually harassed Kennedy and that appellants did not take timely and appropriate action.

III. Harassment of Kimberlee Adams

Fact questions exist regarding whether appellants knew that Lewis sexually harassed Kimberlee Adams and whether appellants took timely and appropriate action. Adams stated that Lewis regularly made sexually explicit and degrading comments about women and women's bodies in her presence when lead rangers were present. She stated that Lewis often put his arms around her and that a lead ranger witnessed this conduct. Although Adams told a lead ranger that she no longer wanted to be partnered with Lewis, the lead ranger nonetheless continued to assign her as Lewis's partner. Lead ranger Timothy Kluxtall testified that Adams told him that she and Lewis had "an incident," but Kluxtall could not remember the specific facts of the incident. The record does not show that Kluxtall investigated the incident or reported it to his supervisors. The record contains evidence sufficient to allow a jury to conclude that appellants knew that Adams was subjected to harassment by Lewis and that appellants failed to take timely and appropriate action.

IV. Harassment of Kathryn Mansfield

A genuine issue of material fact exists regarding whether appellants knew that Lewis sexually harassed Kathryn Mansfield and whether appellants took timely and appropriate action. Mansfield stated that Lewis, other rangers, and lead rangers discussed a former park ranger's sexual practices in Mansfield's presence. Mansfield stated that "everybody, including the lead rangers," knew of Lewis's inappropriate behavior toward park patrons. Mansfield stated that Lewis often made comments about her body and made "constant" disparaging remarks about women in front of lead rangers. According to Mansfield, Lewis stated in a lead ranger's presence that if anyone could bring a sexual harassment case against him, it would be Rita Meyer and Mansfield. Mansfield stated that Lewis's behavior was well known by the lead rangers and that when complaints were made, they were not taken seriously. Mansfield stated that the lead rangers would respond to complaints by laughing at Lewis's behavior or by saying, "That's just Darryl." From this evidence, a reasonable jury could conclude that appellants knew that Lewis harassed Mansfield and that appellants failed to take timely and appropriate action.

In sum, we hold that the record contains evidence from which a reasonable jury could conclude that appellants willfully violated respondents' known right to have timely and appropriate action taken when appellants knew that respondents were subjected to sexual harassment. As a result, the district court correctly denied appellants' motion for summary judgment on the ground of official immunity.

Affirmed.


Footnotes

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ' 10.