This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, ' 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-95-2714

Devora Glover,
Appellant,

vs.

State of Minnesota, and
Department of Revenue,
Respondents.

Filed July 9, 1996
Affirmed.
Randall, Judge

Ramsey County District Court
File No. CO-94-8735

Stephan W. Cooper, Kathryn J. Cim, The Cooper Law Firm, 4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Hubert H. Humphrey, III, Attorney General, Mary A. Bernard, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondents)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.*

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

RANDALL, Judge

Appellant challenges the district court's grant of summary judgment for respondents on her employment law violation claims. We affirm.

FACTS

Appellant Devora Glover was employed by respondent Minnesota Department of Revenue (Department) for over twelve years. Appellant alleged that another employee with the Department, a Ms. Williams, assaulted her on two separate occasions. The first alleged assault occurred in August 1992, when appellant claims Williams twisted her arm while appellant was attempting to enter an elevator. The second incident occurred in July 1993, when during an altercation between appellant and Williams, Williams allegedly struck appellant on the side of her face. As a result of a Department investigation, Williams was given a five-day unpaid suspension and warning. Appellant resigned in June 1994.

By complaint, appellant brought this action against the Department and respondent the State of Minnesota. She alleged that because the Department failed to take meaningful action in response to her complaints, the work place became intolerable, and she was forced to resign. Appellant pursues claims under the Whistleblower Act, discrimination under the Minnesota Human Rights Act (MHRA), negligent supervision and training, and assault and battery. The district court granted respondents' motion for summary judgment on all claims and dismissed appellant's complaint in its entirety on the basis that respondents were entitled to official immunity on all claims. The court further determined that appellant failed to allege sufficient facts showing that the Department's actions were illegal, retaliatory, or malicious.

D E C I S I O N

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. To survive a motion for summary judgment, the nonmoving party "may not rest upon the mere averments or denials of [its] pleadings, but must present specific facts showing that there is a genuine issue for trial." Minn. R. Civ. P. 56.05. On appeal, this court must view the evidence in the light most favorable to the party against whom judgment was granted and must accept as true the factual allegations made by that party. Fabbio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Whistleblower Claim

Appellant's complaint alleges a claim under the Whistleblower Act. She argues the district court erred in granting summary judgment on the basis that respondents were entitled to official immunity. We need not decide this issue because we conclude that appellant failed to make even a prima facie case showing.

Generally, an employer is prohibited from retaliating against an employee who reports a violation of a federal or state law. Minn. Stat. '181.932, subd. 1(a) (1994). The elements necessary to make a prima facie case under a whistleblower claim are: (1) the plaintiff engaged in conduct protected under the act; (2) adverse employment action by the employer; and (3) causal connection between the two. Thompson v. Campell, 845 F.Supp. 665, 674 (D.Minn. 1994) (citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983)).

Appellant fails to meet the first element of a prima facie case because she did not engage in conduct protected under the Whistleblower Act. See Vonch v. Carlson Cos., 439 N.W.2d 406, 408 (Minn. App.1989)(Whistleblower Act only protects employees who expose violations of laws designed to protect general public interest), review denied (Minn. July 12, 1989). Further, appellant failed to show a causal connection between her report of the alleged assaults and the denial of her transfer back into her former Property Tax Division.

Minnesota Human Rights Act/Discrimination

Appellant's complaint alleges race discrimination in violation of Minn. Stat. ' 363.03, subd. 1(2)(c) (1994), and reprisal discrimination in violation of Minn. Stat. ' 363.03, subd. 7 (1994). We conclude that the district court's grant of summary judgment on the basis of official immunity on these claims was proper. See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570-71 (Minn. 1994) (official immunity is available defense to claim of race discrimination under MHRA where nature of governmental duty at issue is discretionary rather than ministerial). Appellant did not allege sufficient facts showing that the Department's actions were retaliatory or malicious. See Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 832 (Minn. App. 1995)(official immunity may bar a claim under MHRA only where there is no showing of wilfulness or malice in regard to the conduct of that official).

However, even if official immunity were not a bar, appellant failed to allege sufficient facts to make a prima facie showing on these claims. To establish a prima facie case of a hostile working environment plaintiff is generally required to show: (1) that she was a member of the protected class; (2) that she was subjected to unwelcome racial harassment which had the purpose or effect of unreasonably interfering with the terms, conditions, or privileges of her employment; and (3) that the employer knew or should have known of the harassment in question and failed to take prompt action. Williams v. Metropolitan Waste Control Comm'n, 781 F.Supp. 1424, 1426 (D.Minn. 1992)(citing Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 402 N.W.2d 125, 131 (Minn. App. 1987), aff'd, 425 N.W.2d 235 (Minn. 1988).

Appellant satisfies the first element of a prima facie case. She is a member of a protected group, a person of color, a black woman. However, appellant fails to satisfy the second and third elements. Appellant did not set forth incidents that would support a finding that she was subject to unwelcome racial harassment that effected her employment conditions or privileges. Other than appellant being generally unhappy with her supervisor and her working conditions as a front desk receptionist, the record does not support a finding that her employer had knowledge that she was being subject to racial harassment. Appellant simply failed to meet a prima facie showing of racial discrimination.

Minn. Stat. ' 363.03, subd. 7(1), makes it an unfair employment practice for an employer to engage in reprisals against any person who has filed a charge, testified, assisted, or participated in any manner in an investigation or hearing under the Act. A prima facie case of reprisal discrimination under the MHRA is the same as under the Whistleblower Act. See Hubbard, 330 N.W.2d at 444 (elements of prima facie case requires statutory protected conduct, adverse employment action by the employer, and a causal connection between the two acts). For the reasons discussed above under appellant's whistleblower claim, we hold that appellant alleged insufficient facts to meet a prima facie case of reprisal discrimination.

Intentional Tort: Assault and Battery

Appellant's complaint alleges a claim of assault and battery. We conclude that the district court's grant of summary judgment on the basis of official immunity on this claim was proper. See Elwood v. County of Rice, 423 N.W.2d 671, 679 (Minn. 1988) (official immunity may act to bar assault and battery claim); Pletan v. Gaines, 494 N.W.2d 38, 42-43 (Minn. 1992) (establishing vicarious official immunity).

Even if official immunity were not a bar, appellant failed to allege sufficient facts to make a prima facie showing on this claim. For liability to lie with the employer for the intentional tort of an employee, the source of attack must be related to the duties of employment and occur within work related limits of time and place. P.L. v. Aubert, 545 N.W.2d 666, 667 (Minn. 1996). Although the claimed assault did take place on the Department's premises, it occurred one and one-half hours before the beginning of the work day. Further, Williams's actions were not related to the duties of her employment.

Negligent Supervision and Training

Appellant's complaint alleges a claim of negligent supervision. We conclude that the district court's grant of summary judgment on the basis of official immunity on this claim was proper. See Pletan, 494 N.W.2d 38, 40-41 (official immunity applies to negligence); see also Rico v. State, 472 N.W.2d 100, 109 (Minn. 1991) (official immunity barred tort claim of retaliatory discharge against official terminating employee). Also, more importantly, at oral argument, appellant waived her claim of negligent training on the record.

Affirmed.


Footnotes

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