This opinion will be unpublished and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

C2-95-1767

Dawn Palmer,

Respondent,

vs.

Ramsey County,

defendant and third-party plaintiff,

Appellant,

The State of Minnesota,

third-party defendant,

Appellant.

Filed March 18, 1997

Affirmed

Willis, Judge

Ramsey County District Court

File No. C0-94-11490

Hubert H. Humphrey, III, Attorney General, Lucinda E. Jesson, Deputy Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for Appellant State)

Susan Gaertner, Ramsey County Attorney, C. David Dietz, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Appellant Ramsey County)

Alf E. Sivertson, Michelle M. Barrette, Sivertson & Barrette, P.A., The Barrister Building, 1465 Arcade Street, St. Paul, MN 55106 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Willis, Judge.

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

WILLIS, Judge

Respondent Dawn Palmer brought this whistleblower action against her former employer, appellant Ramsey County, and the county filed a third-party complaint against appellant State of Minnesota. The county and state moved for summary judgment, arguing in part that official and judicial immunity precluded Palmer's suit. The district court denied the motion, and the county and state appealed. By unpublished opinion, this court affirmed the district court's decision. See Palmer v. Ramsey County, No. C2-95-1767 (Minn. App. Apr. 9, 1996). The supreme court granted the county and state's petition for further review and remanded the matter to this court "for consideration in light of" Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711 (Minn. 1996). We now withdraw our original April 9, 1996 decision and substitute this decision affirming the district court's denial of summary judgment.

FACTS

Palmer worked as a clerk at the county's civil commitment court. She complained to civil commitment court manager Sandra Eckes and special courts administrator Robert Bauer that a commitment court referee failed to send proper orders of commitment to treatment facilities at the time of admission of patients and issued orders more than 90 days after commitment hearings. See Minn. Stat. § 253B.10, subd. 1 (1994) (requiring orders for treatment and commitment to be provided to facilities at time of admission); Minn. Stat. § 546.27, subd. 1(a) (1994) (requiring orders to be filed with court administrator within 90 days of submission to court). Palmer testified that after she reported her concerns, Eckes retaliated against her in several ways. Palmer claimed that she left her position in June 1994 because of this retaliation.

D E C I S I O N

Summary judgment is properly denied if the record shows that genuine issues of material fact exist or neither party is entitled to judgment as a matter of law. See Minn. R. Civ. P. 56.03. A defendant seeking immunity from suit "bears the burden of proving he or she fits within the scope of the immunity." Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). Because the applicability of immunity is best decided early in the proceedings, a district court's determination on the issue necessarily includes mixed questions of law and fact. See id. Thus, in the immunity context, a reviewing court will correct erroneous applications of law, but will accord the trial court discretion in its ultimate conclusions and review such conclusions under an abuse of discretion standard. Id.

I.

The county and state claim they are entitled to official immunity.

Government officials are accorded near complete immunity for their actions in the course of their official duties, so long as they do not exceed the discretion granted them by law.

Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711, 716 (Minn. 1996). Palmer argues that because she is not suing any individual in his or her official capacity, the doctrine of official immunity does not apply. The determination of whether official immunity applies to any given fact situation, however, depends not on whether a plaintiff chooses to sue a governmental entity or an individual state official, but rather on whether any individual was responsible for the allegedly tortious acts. See id.; Carter v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 271-72 (Minn. App. 1997).

In this case, Palmer claims she was constructively discharged after she reported violations of law to her immediate supervisor, Sandra Eckes, and to other county officials. Palmer claims that these county officials failed to respond to her complaints and that she was forced to leave her position because Eckes retaliated against her. Because all Palmer's claims relate to the actions of individual public officials, official immunity applies to these facts. If those officials are immune, the county and state likely are entitled to vicarious official immunity. See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 n.5 (Minn. 1994); Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993); Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992).

II.

Unlike statutory immunity, official immunity contains a "safety valve" because it does not protect actions taken willfully or maliciously. Janklow, 552 N.W.2d at 717. Official immunity may, therefore, apply in some whistleblower act cases. See id. at 718; Beaulieu, 518 N.W.2d at 570 (holding that official immunity not impliedly waived by operation of Human Rights Act).

In the official immunity context, willful and malicious are "synonymous" and mean the "willful violation of a known right." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citation omitted). An official does not act willfully or maliciously unless he or she has reason to believe that his or her conduct is proscribed or illegal at the time it is committed. See id. at 108. Because the conduct at issue in this case occurred well after the whistleblower act was enacted, any official retaliating against an employee for reporting violations of law would have reason to know that his or her conduct is proscribed.

Here, Palmer alleged that after she reported her concerns of illegal activity, Eckes retaliated against her by (1) denying her vacation request; (2) throwing papers on her desk; (3) acting hostilely toward her; (4) delaying her promotion; (5) telling her coworkers that she had marital problems, was dizzy, and acted stupidly; and (6) requiring her to attend an interpersonal skills training course not required of others. An affidavit submitted by one of Palmer's coworkers confirmed that Eckes began treating Palmer adversely soon after she had made her reports of illegal activity. Palmer further alleged that, because of Eckes's behavior, she resigned her position.

The willful or malicious standard contemplates "an objective inquiry into the legal reasonableness of an official's actions." See Beaulieu, 518 N.W.2d at 571. Thus, we must consider whether, taking Palmer's allegations as true, a reasonable official would have reason to know that his or her actions were in violation of the whistleblower act. This objective inquiry into the legal reasonableness of an official's actions does not require examination of the factual merits of a plaintiff's claim or examination of whether a prima facie case has been made. Cf. Carter v. Cole, 526 N.W.2d 209, 213 (Minn. App. 1995) (holding order denying summary judgment on basis of qualified immunity under 42 U.S.C. § 1983 not appealable based solely on finding that genuine issue of material fact existed as to whether official committed acts alleged by plaintiff), aff'd, 539 N.W.2d 241 (Minn. 1995).

The county and state argue that Eckes's actions cannot be considered adverse employment actions under the whistleblower act. They insist that an adverse employment action must be one that has a real and significant effect on the terms and conditions of employment. See Minn. Stat. § 181.932, subd. 1 (1996) (providing that to violate whistleblower act employer must discharge, discipline, threaten, discriminate against, or penalize employee regarding terms and conditions of employment because of employer's participation in protected activities). A reasonable official in Eckes's position would have reason to know that the actions Eckes took could be seen as threatening or penalizing and that those actions could create a work environment so hostile that it could result in an employee's constructive discharge. See Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980) (finding constructive discharge when an employee resigns to escape intolerable working conditions caused by illegal discrimination).

The county and state further argue that there is no evidence of malice or willfulness directed at Palmer because of her reports. They insist that nothing in the record supports Palmer's allegation that her performance evaluations, the processing of her career development promotions, or her requests for vacation were handled maliciously or knowingly in violation of the whistleblower act. They argue that, at the most, the evidence shows that Palmer and Eckes were not always "nice" to each other. Clearly, there is no direct evidence that Eckes's actions were in retaliation for Palmer's reports. Nevertheless, at this stage of the litigation, retaliatory motive may be inferred from Palmer's claim that soon after she reported violations of law, Eckes took adverse employment actions against her. Cf. Rico, 472 N.W.2d at 107 ("[a]ccepting as true Rico's allegations, a jury could make inferences favorable to Rico and find that [the commissioner] removed Rico because he expressed concerns about improprieties and management inefficiencies at the [department]"); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 445 (Minn. 1983) (concluding that causal connection may be inferred if employer knows of protected activity and adverse employment action follows closely in time).

III.

The county and state argue that the judicial immunity doctrine precludes Palmer's suit because the acts reported by Palmer were judicially immune. See Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990) (holding that judicial immunity doctrine shields judge or judicial official who is acting in the exercise of judicial authority from liability in a civil action), review denied (Minn. Feb. 4, 1991). The county and state misconstrue the basis of Palmer's suit. Palmer's suit is based on her claim that the county and state, exercising their authority as employers, not as judicial officials, constructively discharged her in retaliation for her reports. And to prove her whistleblower claim, Palmer will not have to inquire into or provide evidence of any judicial actions. Rather, she must show that she reported, in good faith, a violation or suspected violation of law and that the county and state discharged, disciplined, threatened, or otherwise discriminated against her because of her report. See Minn. Stat. § 181.932, subd. 1(a) (1994). Once she meets her burden of establishing a prima facie case of retaliation, the county and state are required to demonstrate some legitimate reason for their actions; if they do so, Palmer must show that this proffered reason is mere pretext. See McGrath v. TCF Bank Sav., 502 N.W.2d 801, 807 (Minn. App. 1993), aff'd as modified, 509 N.W.2d 365 (Minn. 1993). This analysis requires examination of actions taken by county officials with respect to Palmer's employment; it does not require examination of judicial actions taken by the referee or any other judicial official.

We therefore affirm the district court's denial of summary judgment based on its determination that the county and state are not entitled to official or judicial immunity.

Affirmed.