This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1808

Rosina Fieno,

Respondent,

vs.

State of Minnesota, et al.,

Defendants,

Ronald Leatherbarrow,

Appellant.

Filed March 11, 1997

Affirmed

Mansur, Judge

[*]

Ramsey County District Court

File No. C5-95-8675

Sonja Dunnwald Peterson, Michelle M. Lore, Horton and Associates, 4930 West 77th Street, Suite 210, Minneapolis, MN 55435-4804 (for Respondent)

Hubert H. Humphrey, III, Attorney General, Kristin Jones Pierre, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.

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

MANSUR, Judge

Associate Dean Rosina Fieno filed a lawsuit against the State of Minnesota and Lakewood Community College, as well as against President James Meznek and Dean Ronald Leatherbarrow, individually. The defendants moved for summary judgment. The trial court dismissed all claims against the first three defendants based on statutory immunity, but denied summary judgment for claims against appellant Leatherbarrow for tortious interference with contract, aiding and abetting reprisal discrimination, and defamation. Leatherbarrow appealed from the order denying summary judgment, claiming he was entitled to official immunity on the contract and human rights violations claims. He sought discretionary review of the denial of summary judgment as to the defamation claim and Fieno moved for discretionary review of the partial summary judgment. This court denied both petitions for discretionary review. Only the immunity issues raised by Leatherbarrow are before this court. We affirm.

FACTS

Lakewood Community College employed Rosina Fieno as an associate dean since January 1985. In the summer of 1992, appellant Ronald Leatherbarrow was hired as Lakewood's dean of academic affairs and became Fieno's immediate supervisor. In mid-February 1994, James Meznek became president of Lakewood. On March 30, 1994, Meznek met with Fieno and told her he was reassigning her to the Minnesota Community College System Office effective July 1, 1994. Fieno filed a sex discrimination claim with the Minnesota Department of Human Rights (MDHR) in August 1994 against Lakewood, in which Leatherbarrow was named, based on the reassignment and alleged adverse treatment leading up to the reassignment. Fieno voluntarily dismissed the sex discrimination claim in early 1995, and it is not at issue in this appeal.

Although Fieno had been reassigned, Leatherbarrow issued a written reprimand to her on November 16, 1994, regarding her hiring practices for faculty positions. He also gave Fieno a poor performance evaluation on December 5, 1994. Fieno refused to meet with him to discuss it. President Meznek then notified Fieno on January 1, 1995, that she would be terminated from her position effective November 1, 1995. He cited his previous discussions with her in which he had advised her of the changes that were necessary in her performance, her failure to meet with Leatherbarrow, and her recent performance evaluations by Leatherbarrow and previous supervisors documenting serious performance deficiencies.

Fieno then filed another discrimination charge with the MDHR on February 22, 1995, contending she was subjected to reprisal as a result of her sex discrimination charge. On August 11, 1995, the MDHR issued a finding of "no probable cause" on the reprisal charges. On August 31, 1995, Fieno filed a complaint in district court. We review the trial court order denying Leatherbarrow's motion for summary judgment based on official immunity.

D E C I S I O N

On appeal from an order denying a motion for summary judgment, the appellate courts will address whether there are genuine issues of material fact and whether the trial court erred in its application of the law. Minn. R. Civ. P. 56.03; Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847 (Minn. 1995). The evidence is viewed in the light most favorable to the nonmoving party. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). An appellate court need not defer to a trial court's legal decision. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

An appeal may be taken directly from an order denying a motion for summary judgment based on official immunity. McGovern v. City of Minneapolis, 475 N.W.2d 71, 73 (Minn. 1991). A defendant seeking immunity from suit bears the burden of proving he or she fits within the scope of that immunity. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

1. Official immunity protects from personal liability a public individual who is charged by law with duties calling for the exercise of judgment or discretion, with the exception of willful or malicious wrongs. Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991). Malice is defined as

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.

Id. at 107 (citation omitted). Acts that violate the Human Rights Act would likely come within the "willful or malicious" exception to the official immunity doctrine. Janklow v. Minnesota Bd. of Examiners for Nursing Home Adm'rs, 552 N.W.2d 711, 717 (Minn. 1996).

Fieno claims that Leatherbarrow aided and abetted reprisal discrimination in employment in violation of Minn. Stat. § 363.03, subds. 6, 7 (1994) (aiding and abettting reprisal, reprisal). In a reprisal action, the employee must first present a prima facie case of reprisal; the burden then shifts to the employer to present legitimate, nondiscriminatory reasons for the actions taken; and the burden then returns to the employee, who can prevail if he or she shows that the reason given by the employer is really a pretext for discrimination, or has otherwise carried the overall burden of persuasion. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444-45 (Minn. 1983) (relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

A prima facie case of reprisal is shown by establishing the following:

(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.

Hubbard, 330 N.W.2d at 444. It is undisputed that Fieno's filing of the sex discrimination claim was statutorily-protected conduct and that Leatherbarrow subjected Fieno to adverse employment action when he issued the November 16, 1994 written reprimand and the December 5, 1994 negative performance evaluation.

At issue is whether a genuine issue of material fact exists regarding the causal connection between Fieno's August 1994 filing of the sex discrimination claim and the adverse actions taken on November 16 and December 5, 1994. The causal connection may be shown indirectly, by evidence of circumstances that justify an inference of retaliatory motive, "such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time." Hubbard, 330 N.W.2d at 445 (inference arises from discharge only two days after service of complaint, sufficient to show retaliatory motive).

The parties present different interpretations of the events that occurred, and cite memos, depositions, letters, affidavits, and other relevant material in support of their arguments. Leatherbarrow argues that the undisputed record shows Fieno's history of performance problems and negative evaluations in the areas he too was concerned about. He explains that the timing of the reprimand and evaluation was based on factors unrelated to the sex discrimination claim. Fieno cites the undisputed timing of events, as well as the record showing previous favorable reviews by Leatherbarrow, his prior knowledge of and acquiescence in her actions, and other facts supporting her differing interpretations of events. We agree with the trial court that the timing of the events as well as the materials submitted with the motion reveal a genuine issue of material fact as to the causal connection. Further, there are clearly credibility issues that must be resolved and are inappropriate for summary judgment.

Once a prima facie case of retaliation is established by the employee, the burden of proof shifts to the employer to show legitimate, nondiscriminatory reasons for the action. Hubbard, 330 N.W.2d at 445. It is undisputed that Leatherbarrow articulated legitimate, nondiscriminatory reasons for providing a written reprimand and negative performance evaluation.

Finally, the employee may prevail if there is a genuine issue of material fact as to whether the reasons given by the employer were really pretextual or if he or she otherwise carried the burden of persuasion. Id.; see Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) ("the plaintiff bears the final burden of demonstration that the proffered reason was not the true reason for the employer's actions"). Leatherbarrow contends that the simple timing of the reprimand and performance evaluation are inadequate proof of pretext. Again, based on the record, we agree that there is a genuine issue of material fact as to the issue of pretext.

2. We next address whether Leatherbarrow is entitled to official immunity on Fieno's claim of tortious interference with contract as a matter of law. The elements of that tort are as follows:

(1) the existence of a contract; (2) the alleged wrongdoer's knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.

Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994).

A company officer is privileged to interfere with another's employment contract, but the privilege is lost if bad motive is present. Nordling v. Northern States Power Co., 478 N.W.2d 498, 507 (Minn. 1991). Where, as in Leatherbarrow's case, the officer's conduct is subject to conflicting inferences, motive is crucial. See id. at 506 (bad motive sometimes referred to as malice).

Leatherbarrow argues there is no evidence he either intended to cause or did cause Fieno's termination or acted maliciously or willfully. However, President Meznek specifically cited Leatherbarrow's poor performance evaluation in 1994 as one of the factors in Fieno's termination. Further, under the conflicting facts and theories offered, we agree with the trial court that there is also a genuine issue of material fact as to Leatherbarrow's motives.

Affirmed.

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