This opinion will be unpublished and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
State of Minnesota, et al.,
Filed January 27, 1998
Retired judge of the district court, serving as judge of
the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI,
Hennepin County District Court
File No. EM 96-005555
Jesse Gant III, 500 Flour Exchange Building, 310 South Fourth Avenue,
Minneapolis, MN 55415 (for respondent)
Hubert H. Humphrey III, Attorney General, Gary R. Cunningham, Assistant
Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128
Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and
U N P U B L I S H E D O P I N I O N
The district court properly denied employer's motion for summary judgment
based on official immunity because the employer's acts qualified as
Respondent Richard Waddell was employed by the Minnesota Veterans
Homes Board from 1986 to 1996, first working at the Oak Terrace Nursing Home
and then at the Minneapolis Veterans Home (MVH). His employment as a plant
maintenance engineer was terminated on July 3, 1996. Waddell brought suit
against appellants State of Minnesota and former supervisor James Thompson,
alleging sexual orientation discrimination, retaliatory discharge, and tortious
interference with employment. Waddell charged that his discharge was in
retaliation for complaints he made regarding the MVH's violations of the Clean
Indoor Air Act, in violation of the Minnesota Whistleblower Act, Minn. Stat.
§ 181.932, subd. 1(a) (1994). Waddell's tortious contract interference
claim was based on his assertion that Thompson threatened and harassed him.
Appellants moved for summary judgment. The district court granted summary
judgment on the discrimination claim, but denied appellants' motion for summary
judgment based on official immunity. This appeal followed.
D E C I S I O N
A denial of a defense motion for summary judgment based on claims of
governmental immunity is immediately appealable. McGovern v. City of
Minneapolis, 475 N.W.2d 71, 72 (Minn. 1991). A defendant seeking
immunity bears the burden of proving it fits within the scope of that immunity.
See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). On
appeal from a denial of summary judgment, this court examines the record to
determine whether any genuine issues of material fact exist and whether the
district court properly applied the law. Offerdahl v. University of
Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The
determination of whether official immunity applies is a legal question that
this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45
I. Whistleblower Claim
Statutory immunity does not apply to claims made under Minnesota's
Whistleblower Act. Janklow v. Minnesota Bd. of Exam'rs, 552
N.W.2d 711, 718 (Minn. 1996). For this reason, appellants focus their immunity
argument on the applicability of official immunity, arguing that Thompson is
protected by official immunity, and that therefore the state is protected by
vicarious official immunity.
Official immunity is common law immunity that applies to actions involving an
individual state official, and protects that official's exercise of policy
judgment. Id. at 716. Government officials "are accorded near
complete immunity for their actions in the course of their official duties," as
long as their actions do not exceed their legal discretion. Id.
Official immunity does not protect an official who willfully violates a clearly
established right of which a reasonable person would have known. Hyland
v. State, 509 N.W.2d 561, 564-65 (Minn. App. 1993), review
denied (Minn. Feb. 24, 1994). In determining whether official immunity
applies, this court must examine the official's particular acts. Id.
The district court wrote in its memorandum:
Thompson's direct violations of the Clean Indoor Air Act and his
encouragement of others to do the same; harassing phone calls to Plaintiff's
house; the more severe punishment of Plaintiff for idling on the job than
another employee similarly idle on the job; prohibition of Plaintiff's use of
connecting hallways to travel between buildings; and disregard of seniority for
overtime opportunity; and Defendant's direct threats to cause Plaintiff to be
fired, are proof of malice.
We agree. Appellants argue that the time sequence of those acts, and the
violations of work rules by Waddell, do not support the court's finding that
Thompson's acts are proof of malice which justifies denial of appellants'
motion for summary judgment. A determination of malice in an official's
actions may be resolved by summary judgment. Id. However, these
acts, of which appellants had adequate knowledge, raise genuine issues of
material fact for resolution by the district court. Minn. R. Civ. P. 56.
Thus, the district court properly denied summary judgment.
II. Tortious Interference
Appellants argue that Thompson is protected by the doctrine of
official immunity from Waddell's claim of tortious interference with an
employment contract. However, as discussed above, willful and malicious acts
by an official are exempt from official immunity. Tortious interference, when
alleged against an officer, agent, or employee of the same organization, must
involve malice or bad faith. Nordling v. Northern States Power
Co., 478 N.W.2d 498, 506-07 (Minn. 1991). Therefore, official immunity
cannot logically protect an official from a tortious interference claim by an
employee of the official's organization.