This opinion will be unpublished and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

CX-96-814

Evelyn Belton-Kocher,

Appellant,

vs.

St. Paul School District,

Respondent.

Filed October 29, 1996

Reversed and Remanded

Kalitowski, Judge

Ramsey County District Court

File No. C2959539

Stephen W. Cooper, Kathryn J. Cima, Stacey R. Everson, The Cooper Law Firm, 4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for Appellant)

James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

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

KALITOWSKI, Judge

Appellant Evelyn Belton-Kocher appeals from the district court's grant of summary judgment. The district court held that respondent St. Paul School District's (School District) refusal to allow Belton-Kocher to interview for a position because of its anti-nepotism policy was not a violation of the Minnesota Human Rights Act (MHRA). Belton-Kocher argues that the district court erred because respondent's action constitutes discrimination based on marital status, in violation of the MHRA. We reverse and remand.

D E C I S I O N

In reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (citation omitted). However, where a case involves a motion for judgment on the pleadings, and the district court considers matters outside the pleadings, we review the district court's determination under a summary judgment standard. Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn. App. 1989), review denied (Minn. Mar. 8, 1990); Minn. R. Civ. P. 12.03. Here, we apply the summary judgment standard because the district court considered matters outside the pleadings.

To prevail on a motion for summary judgment, a party must prove that there is "no genuine issue as to any material fact" and that he or she is "entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. On appeal from summary judgment, a reviewing court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). In reviewing a summary judgment, the court must view the evidence in the light most favorable to the party against whom summary 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). The appellate court is not bound by the district court's conclusions of law and may determine such issues independently. A.J. Chromy Constr. Co. v. Commercial Mech. Services, Inc., 260 N.W.2d 579, 582 (Minn. 1977).

The MHRA prohibits an employer from discriminating against a person, with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment, based on the person's martial status. Minn. Stat. § 363.03, subd. 1(2) (1994). "Marital status" is defined as

whether a person is single, married, remarried, divorced, separated, or surviving spouse and, in employment cases, includes protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.

Minn. Stat. § 363.01, subd. 24 (1994) (emphasis added).

In Kraft, Inc. v. State, 284 N.W.2d 386 (Minn. 1979), Kraft had an anti-nepotism policy which prohibited the full-time employment of more than one member of an immediate family. Id. at 387. The district court held this policy did not violate the MHRA. The supreme court reversed, stating:

[A]bsent a compelling and overriding bona fide occupational qualification, an antinepotism employment rule denying full-time employment to individuals married to persons already employed full time by the employer constitutes a discriminatory practice based on marital status within the meaning of the Minnesota Human Rights Act.

Id. at 387. In its analysis, the court said:

Acknowledging the fundamental nature of this relationship, the legislature in drafting the Minnesota Human Rights Act intended that only where a business necessity is compelling and overriding may an employer differentiate on the basis of marital status. To justify such an employment policy, an employer must advance a bona fide occupational qualification which will withstand the strict scrutiny of a reviewing court. Mere business convenience is insufficient.

Id. at 388.

It is undisputed that Belton-Kocher was not considered for employment with the School District because of the "identity" and "situation" of her spouse. Accordingly, the district court erred in determining the School District was entitled to a judgment as a matter of law.

The School District argues that even if its anti-nepotism policy discriminates, the discrimination is allowed because the policy is based on a bona fide occupational qualification (BFOQ). A BFOQ allows an employer to engage in an action that would otherwise violate the MHRA. Minn. Stat. § 363.03, subd. 1.

Whether the School District's policy is based on a BFOQ involves a factual determination that cannot be made on the limited record presented to the district court by the School District's motion to dismiss. Therefore, we remand this matter for further proceedings as the court deems appropriate to consider the criteria enunciated by the supreme court in Kraft.

The School District also argues that it is immune from a civil suit for a violation of the MHRA. Because the district court did not rule on this issue, we will not address it on appeal. In re Estate of Magnus, 436 N.W.2d 821, 823 (Minn. App. 1989) (review limited to issues raised in and decided by the district court) (citation omitted).

Because it is undisputed that the School District did not consider Belton-Kocher for employment because of the "identity" and "situation" of her spouse, the district court's order for summary judgment in favor of the School District is reversed.

Reversed and remanded.