This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


LaVon C. Phillips,


State of Minnesota, et al.,

Filed September 14, 1999
Affirmed in part and reversed in part;
motion to strike granted
Peterson, Judge

Ramsey County District Court
File No. C3989533

Paul A. Ledford, Saliterman & Siefferman, P.C., 1000 Northstar Center East, 608 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Andrea Mitau Kircher, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondents)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.



Appellant LaVon Phillips argues that the district court erred in dismissing for failure to state a claim upon which relief can be granted his (1) defamation claim against respondents Delores Fridge, Dorothy Davis, and Judy Pearson, in their individual capacities; (2) claim under the Public Employees Labor Relations Act, Minn. Stat. § 179A.06, for violation of the right to grieve; and (3) whistleblower claim. We affirm in part and reverse in part, and we grant Phillips' motion to strike.


In 1996, the Minnesota Department of Human Rights hired Phillips as a human rights enforcement officer trainee. Following successful completion of a one-year training period, a trainee becomes eligible to be appointed to a human rights enforcement officer-1 position.

In Phillips' first quarterly performance evaluation, his supervisor, Davis, rated his performance as marginal to satisfactory. Phillips' performance improved to satisfactory during his second quarter of employment and further improved to meeting and exceeding expectations during the following quarter.

In July 1997, the Department's operations director sent Phillips a letter stating that he would be promoted to the full-time, classified position of human rights enforcement officer-1 (HREO-1) effective August 6, 1997. The letter also stated that his hourly salary upon promotion would be $14.20 and that the terms and conditions of his employment would be governed by the bargaining agreement between the Minnesota Association of Professional Employees (MAPE) and the State of Minnesota. Phillips learned that the $14.20 per hour pay rate was less than that paid to the previous year's group of trainees who had been promoted to HREO-1 positions. He spoke to the Department's personnel director, Pearson, about the discrepancy, and she said that she would look into the matter.

On August 4, 1997, Davis and Pearson met with Phillips and informed him that his employment was terminated effective immediately. The decision to discharge Phillips had been made by Fridge, the Commissioner of Human Rights. She listed the following reasons for her decision: concern about Phillips' personal behavior and lack of judgment; complaints about his interactions with members of the public; and his failure to remove himself from investigating a charge, assigned to him in July, that was brought by an organization he personally had sued previously.

Phillips alleges that, after his termination, Fridge, Davis, and Pearson defamed him by telling his former coworkers that he had been discharged because he had been rude to Pearson when discussing the compensation issue with her and because he behaved negatively toward supervisors and others. Phillips also alleges that Fridge, Davis, and Pearson defamed him by telling three potential employers that: Phillips behaved rudely toward his supervisors; harassed coworkers; acted negatively and disruptively; was unprofessional in dealing with coworkers, supervisors, and members of the public; and was unfit to handle matters of a sensitive, confidential nature.


In reviewing an action dismissed for failure to state a claim upon which relief can be granted, the only question before this 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). We must assume that the allegations in the complaint are true. Hanson v. John Blue Co., Div. of Barnley Corp., 389 N.W.2d 523, 529 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986). A claim is legally sufficient if it is possible on any evidence that might be produced, consistent with the plaintiff's theory, to grant the relief requested. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963). All assumptions, conclusions, and inferences must be drawn in favor of the plaintiff. Id. at 396, 122 N.W.2d at 30.[1]

1. Phillips argues that the district court erred in dismissing Fridge, Davis, and Pearson, in their individual capacities, from his defamation claim. We agree. An employer is liable for the intentional torts of its employees committed within the course and scope of employment. Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 310 (Minn. 1982); see also Manion v. Jewel Tea Co., 135 Minn. 250, 253, 160 N.W. 767, 768 (1916) (involving defamation). But the fact that an employer is vicariously liable for the torts of an employee committed within the course and scope of employment does not mean that the employees may not also be sued for these torts.

In Minnesota, we characterize the liability of master and servant as joint and several liability. Further, where there is joint and several liability, a plaintiff may sue one, all, or any number of joint tortfeasors and may proceed in separate actions or one action.

Schneider v. Buckman, 433 N.W.2d 98, 101 (Minn. 1988). Because an employee and an employer may be jointly and severally liable for the intentional torts of the employee, and a plaintiff may sue all joint tortfeasors in one action, the district court erred by dismissing the employees, in their individual capacities, from Phillips' defamation claim.

2. Phillips alleged causes of action against respondent under Minn. Stat. § 179A.06, subd. 1 (1996), and Minn. Stat. § 179A.13 (1996). The district court dismissed Phillips' claim under Minn. Stat. § 179A.06, subd. 1, but allowed his claim under Minn. Stat. § 179A.13 to proceed.

Minn. Stat. § 179A.06, subd. 1, protects a public employee's right to express or communicate a grievance "on any matter related to the conditions or compensation of public employment." Minn. Stat. § 179A.13 provides that the "practices specified in this section are unfair labor practices" and that any employee

aggrieved by an unfair labor practice as defined in this section may bring an action for injunctive relief and for damages caused by the unfair labor practice in the district court of the county in which the practice is alleged to have occurred.

Interfering, restraining, or coercing an employee in exercising his right to grieve guaranteed by Minn. Stat. § 179A.06, subd. 1, is an unfair labor practice. Id., subd. 2.

Phillips' claims under Minn. Stat. §§ 179A.06, 179A.13 were both based on the alleged violation of his right to grieve under Minn. Stat. § 179A.06, subd. 1. Minn. Stat. § 179A.13, subds. 1, 2 expressly provide a remedy for violations of Minn. Stat. § 179A.06, subd. 1. Section 179A.06 does not set forth any additional or separate remedy for violation of an employee's right to grieve, and Phillips does not cite any other authority setting forth such a remedy. The district court did not err in dismissing Phillips' claim under Minn. Stat. § 179A.06.

3. Statutory interpretation is a question of law subject to de novo review. Metropolitan Sports Facilities Comm'n v. County of Hennepin, 561 N.W.2d 513, 515 (Minn. 1997). Phillips brought his whistleblower claim under Minn. Stat. § 181.932, subd. 1(a) (Supp. 1997), which provides:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

(a) the employee * * * in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official[.]

Minnesota courts apply the three-step burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), to whistleblower claims. McGrath v. TCF Bank Sav., FSB, 502 N.W.2d 801, 805 (Minn. App. 1993), modified, 509 N.W.2d 365 (Minn. 1993). The McDonnell Douglas burden-shifting procedure consists of a prima facie case, an answer, and a rebuttal. McDonnell Douglas, 411 U.S. at 802-03, 807, 93 S. Ct. at 1824, 1826. To establish a prima facie case under the whistleblower act, one of the elements an employee must show is that he engaged in statutorily protected conduct. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).

Phillips alleges that he was discharged from employment because he reported that the Department was paying less to trainees promoted to HREO-1 positions in 1997 than it had paid to trainees promoted to HREO-1 positions the previous year. Phillips contends that he and other employees suspected that the lower pay rate violated MAPE's contract with the state and that the suspected violation of the contract constituted a suspected law or rule violation under the whistleblower statute because Minn. Stat. § 179A.20, subd. 5 (1996), requires that a public employer adopt a union's negotiated bargaining agreement as a law or rule.

Minn. Stat. § 179A.20, subd. 5, provides:

Upon execution of the contract, the employer shall implement it in the form of an ordinance or resolution. If implementation of the contract requires adoption of a law, ordinance, or charter amendment, the employer shall make every reasonable effort to propose and secure the enactment of this law, ordinance, resolution, or charter amendment.

(emphasis added.) Phillips' argument ignores the plain language of the statute by removing the phrase "ordinance or resolution" and replacing it with the phrase "law or rule." Phillips cites no authority to support his conclusion that the term "state law or rule adopted pursuant to law," as used in Minn. Stat. § 181.932, subd. 1(a), includes an ordinance or resolution, and he does not contend that the implementation of MAPE's contract required the adoption of a law.

We also note that Minn. Stat. § 179A.22, subd. 4 (1996), which applies to contracts between the state and its employees, provides:

The commissioner of employee relations is authorized to enter into agreements with exclusive representatives. The negotiated agreements and arbitration decision must be submitted to the legislature to be accepted or rejected in accordance with this section and section 3.855.

The relevant provision in section 3.855 states:

When the legislature is not in session, the [legislative coordinating] commission may give interim approval to a negotiated collective bargaining agreement * * *. * * * The commission shall submit the negotiated collective bargaining agreements * * * for which it has provided approval to the entire legislature for ratification at a special legislative session called to consider them or at its next regular legislative session as provided in this section. Approval or disapproval by the commission is not binding on the legislature.

Minn. Stat. § 3.855, subd. 2(c) (Supp. 1997). Nothing in the statutory language suggests that, by ratifying a collective bargaining agreement, the legislature enacts a law or rule.

Because the allegations in the complaint would not support a finding that Phillips engaged in statutorily protected conduct, the district court did not err in dismissing his whistleblower claim.

4. Phillips requests that this court strike from the appendix to respondents' brief documents certifying that Fridge, Davis, and Pearson were acting within the scope of employment at all times relevant to the allegations stated in the complaint. Phillips alleges that those documents were not filed in the district court. See Minn. R. Civ. App. P. 110.01 (papers filed in the district court, the exhibits, and the transcript, if any, shall constitute the record on appeal). Respondents have not provided a citation to the record for any of the documents, and we did not discover any of them in our independent review of the record. Therefore, we grant Phillips' motion to strike.

Affirmed in part and reversed in part; motion to strike granted.

[1] Although the parties submitted documentary evidence in connection with the motion to dismiss, the district court did not consider that evidence; therefore, the motion to dismiss was not converted into one for summary judgment. See Minn. R. Civ. P. 12.02 (when matters outside the pleadings are presented in supporting or opposing a motion to dismiss and those matters are not excluded by the district court, the motion shall be treated as one for summary judgment).