This opinion will be unpublished and

may not be cited except as provided by

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




Heidi Kunst,



Independent School District No. 191


State of Minnesota,


Cecelia Isaac, et al.,


Filed December 22, 1998


Kalitowski, Judge

Dakota County District Court

File No. C7968331

Donald E. Horton, Michelle M. Lore, Horton and Associates, Spruce Tree Center, Suite 9, 1600 University Avenue West, St. Paul, MN 55104 (for respondent)

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

Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.



After a bench trial, appellant Independent School District No. 191 contends the district court erred in concluding: (1) the individual defendants and the school district were not entitled to official immunity; and (2) appellant's decision to lay off respondent Heidi Kunst rather than another individual constituted discrimination against respondent on the basis of her pregnancy leave. Because we conclude appellant is entitled to official immunity, we reverse.


Whether an immunity defense applies is a question of law subject to de novo review. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Official immunity protects public officials from personal liability for actions and decisions that call for the exercise of judgment or discretion, unless the official is guilty of a willful or malicious wrong. Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991). Therefore, a determination of official immunity requires a two-step inquiry:

first, whether the alleged discriminatory acts of the officials are the type of conduct covered by official immunity; and second, whether the alleged discriminatory acts, even though of the type covered by official immunity, were malicious or willful and therefore stripped of the immunity's protection.

Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997).

A. Conduct at Issue

Official immunity is intended to ensure that the threat of potential liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties. Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn. 1988). Under the doctrine of official immunity, officers remain liable for ministerial duties, but are immunized from discretionary duties. Rico, 472 N.W.2d at 107. Ministerial duties are specific duties arising out of designated facts. Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937). A discretionary act is one in which an official must exercise judgment or discretion. Johnson, 553 N.W.2d at 46.

Discretion has a broader meaning in the context of official immunity than in the context of governmental immunity: official immunity protects discretion "exercised at the operational level rather than at the policy-making level." S.W. v. Spring Lake Park School Dist. No. 16, 580 N.W.2d 19, 23 (Minn. 1998). Courts have determined that many operational decisions are discretionary and therefore covered by official immunity. See Rico, 472 N.W.2d at 108-09 (immunity granted to state commissioner charged with wrongful discharge of an employee because it was a discretionary decision made without malice); Nisbet v. Hennepin County, 548 N.W.2d 314, 317 (Minn. App. 1996) (immunity granted to county for ambulance driver's conduct in emergency situation because the conduct was discretionary); Davis, 559 N.W.2d at 122-23 (an employer's response to a sexual harassment complaint is discretionary for official immunity purposes because it involves the "judgment and discretion" of the official making the decision).

Here, appellant school district required that defendants Helen Waldock and Cecelia Isaac operate under specific budget constraints. The record indicates that: (1) budget concerns dictated that two of the four site coordinators had to be laid off; (2) one of the site coordinators resigned; (3) respondent and another individual were the most junior site coordinators; and (4) they had identical seniority dates and the school district's written employment policy did not provide a tie breaker. Thus, Waldock was required, in her discretion, to decide who would be laid off. This was not a clearly ministerial decision, but rather one that required judgment and discretion at the operational level. We conclude the conduct at issue was discretionary in nature and thus the type of conduct covered by official immunity.

B. Evidence of Malice

Even if the duties of public officials are discretionary, official immunity will not protect them if they have committed willful or malicious wrongs. Rico, 472 N.W.2d 100, 106-07. Malice that defeats official immunity is not necessarily personal animus or bad faith, but rather is "the intentional doing of a wrongful act without legal justification," or the "willful violation of a known right." Id. at 107 (citation omitted).

The Minnesota Supreme Court has explicitly stated that the defense of official immunity may be asserted in a claim brought under the Human Rights Act. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). The court said that official immunity will only bar public service discrimination claims "where there was no showing of willfulness or malice." Id. at 570. Thus the fact that conduct is deemed to constitute discrimination does not necessarily mean the malice standard has been met. The malice standard is less a subjective question of malice and more an objective inquiry into the legal reasonableness of an official's actions. Id. at 571.

In determining legal reasonableness, we consider: (1) whether the conduct was objectively legally reasonable, meaning legally justified under the circumstances; (2) whether the conduct was subjectively reasonable, that is, taken with subjective good faith; and (3) whether the right allegedly violated was clearly established, that is, whether there was a basis for knowing the conduct would violate the plaintiff's rights. Gleason v. Metropolitan Council Transit Operations, 563 N.W.2d 309, 318 (Minn. App. 1997), aff'd in part, 582 N.W.2d 216 (Minn. 1998).

The conduct at issue here is the layoff of respondent necessitated by budget constraints. It is undisputed that two of four site coordinators had to be laid off, and after one coordinator voluntarily resigned, Waldock had no choice but to lay off one of the remaining three. We conclude the act of laying off one of the site coordinators in this situation is conduct that is objectively legally reasonable.

To determine the subjective reasonableness of the decision to lay respondent off we look to Waldock's intent. Respondent argues that Waldock intended to break the law because Waldock acknowledged both orally and in writing that the school district could not discriminate on the basis of pregnancy. We disagree.

The [malice] exception does not impose liability merely because an official intentionally commits an act that a court or a jury subsequently determines is a wrong. Instead, the exception anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited.

Rico, 472 N.W.2d at 107 (emphasis in original). The record here establishes Waldock did not believe she was violating the law when she chose to lay respondent off. In a memo summarizing the layoff decision, written the day after the decision was made, Waldock wrote:

While I have had no reason to negatively evaluate any Coordinator's performance, I am forced to make a judgment about experience and ability. Carmen [the other site coordinator] has been instrumental in staffing and developing enrollment projections. Because of budget constrictions, we have become even more reliant on accurate projections and appropriate staffing. She has demonstrated initiative and follow-through and is a problem-solver.

In our meeting of September 28, trying to bring closure to this difficult decision, I did make reference to Heidi's maternity leave. As we all know, District employees may take a maternity absence with a physician's certification of physical disability, and there is no "penalty" for that time worked. Nor is there an adverse consequence should an employee take a Family and Medical Leave or a parental leave. The reality is, however, that any absence creates a situation where other individuals have the opportunity to gain experience they might otherwise have not had; e.g., developing enrollment projections, etc.

Waldock's memo evidences an intent to avoid violation of the law prohibiting discrimination on the basis of pregnancy. The memo further evidences Waldock's intent to reward the site coordinator who she believed had more skills and more on-the-job experience. Under these facts, we conclude Waldock acted in good faith and with subjective legal reasonableness in deciding to lay respondent off.

Finally, we must determine whether the right allegedly violated was clearly established. Neither party has cited state or federal decisions addressing whether an employer can lawfully recognize the performance and experience gained by an employee during a co-employee's maternity leave and use these factors in making a layoff decision. Absent precedent we cannot say that appellant's legal duties and respondent's rights under these facts were clearly established so as to be recognizable to a nonlawyer. Although the district court determined that Waldock's conduct constituted discrimination under the law, we conclude the conduct was not a willful violation of an established legal right.

We recognize that the supreme court has stated that:

there are few circumstances where a public official might be deemed to have committed a discriminatory act under Minn. Stat. § 363.03, subd. 4, and yet be deemed not to have committed a malicious or willful wrong * * *.

Beaulieu, 518 N.W.2d at 571. We conclude, however, that the facts of this case represent one of those "few circumstances" where, notwithstanding a finding of discrimination, the malice exception to immunity does not apply.

Vicarious Official Immunity

Vicarious official immunity extends the official immunity of a governmental employee to the governmental employer in some situations. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). Whether to extend the immunity to the governmental employee is a question of policy. Id. Vicarious official immunity protects the governmental entity from suit when the threat of potential liability would deter independent action in pursuit of legitimate public policy choices. Id.

In this case, to hold that the individual defendants are immune but the school district is not would undermine the purposes of official immunity: the threat of suit would cause the school district to second-guess employee decisions, thus inhibiting an individual employee's exercise of his or her independent judgment. See Leonzal v. Grogan, 516 N.W.2d 210, 214 (Minn. App. 1994) (finding that vicarious official immunity is conferred from city officials to the city "where the threat of liability against the city would undermine the purposes of official immunity"); Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (finding the county vicariously immune because to do otherwise would "leave the focus of a stifling attention on the social worker's performance, to the serious detriment of that performance"). Therefore, we conclude the school district here is entitled to vicarious official immunity.