This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998)




Keith Duncan Hendrickson,



City of Duluth, et al.,


Sherri Lynn Hietala,


Spur Station,


Filed October 5, 1999


Toussaint, Chief Judge

St. Louis County District Court

File No. CX97600347

Matthew K. Begeske, 713 Board of Trade Building, Duluth, MN 55802 (for appellant)

M. Alison Lutterman, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for respondent City of Duluth)

William D. Paul, 1217 East First Street, Duluth, MN 55805 (for respondent Sherri Lynn Hietala)

Karen Ruth Cote, 2100 Piper Jaffrey Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent Spur Station)

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Keith Duncan Hendrickson brought a claim against Sherri Lynn Hietala for slander and sued her employer, Spur Station, under the theory of respondeat superior. Hendrickson also brought suit against police officers Scott Lyons, Robert Larson, Thomas Ehle, Martin LeRette, Timothy Hanson, and Michael Anderson, as well as the City of Duluth (the city) and the Duluth Police Department (DPD) for wrongful discharge, breach of contract, violation of Minn. Stat. § 626.89 (1998), intentional infliction of emotional distress, violation of 42 U.S.C. § 1983, libel, and respondeat superior. The trial court granted summary judgement on all claims except for the section 626.89 claim against the city and DPD. After the close of Hendrickson’s jury trial on the section 626.89 claim, the city’s motion for directed verdict was granted. Hendrickson appeals the directed verdict, as well as the summary judgments for libel (against the city, Ehle, Spur Station, and Hietala), violation of 42 U.S.C. § 1983, and unlawful discharge. Hendrickson does not appeal the summary judgment for libel against Hanson, breach of contract, or intentional infliction of emotional distress. Because we conclude that there are no genuine issues of material fact, we affirm the trial court’s grant of summary judgment. Furthermore, because there is insufficient evidence to present a question for the jury regarding violation of Minn. Stat. § 626.89, we affirm the directed verdict. Hendrickson also questions the trial court’s evidentiary rulings "to seek guidance regarding these evidentiary matters on remand." Because this question is improperly before this court, we do not address the matter on appeal.



On appeal from summary judgment, appellate court inquires into whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Once the moving party has made a prima facie case that entitles it to summary judgment, the burden shifts to the nonmoving party to produce specific facts that raise a genuine issue for trial. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (citation omitted); Minn. R. Civ. P. 56.05. The nonmoving party may not rely upon mere averments in the pleadings or unsupported allegations but must come forward with specific facts to satisfy its burden of production. Musicland Group, Inc. v. Ceridian Corp., 508 N.W.2d 524, 531 (Minn. App. 1993).

A. Libel claims

Hendrickson claims the trial court erred in granting summary judgment in favor of Hietala and Spur for the libel claim. A defamatory statement is one that is false, tends to harm the plaintiff’s reputation, and is communicated to a third person. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). A public official cannot recover damages for defamatory statements that relate to the official’s conduct unless it is proven that the statement was made with actual malice. New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964); Britton v. Koep, 470 N.W.2d 518, 520 (Minn. 1991). Police officers are public officials. Britton, 470 N.W.2d at 522. To defeat the Sullivan privilege, therefore, Hendrickson must prove actual malice. "Actual malice" means knowledge that the statement was false or made with reckless disregard of whether it was true of false. New York Times, 376 U.S. at 279-80, 84 S. Ct. at 726. "Reckless disregard" means the publisher had to entertain "serious doubts" about the publication’s truth. Connelly v. Northwest Publications, 448 N.W.2d 901, 903 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990). For Hendrickson to prevail, he must prove actual malice with "convincing clarity." See New York Times, 276 U.S. at 285-86, 84 S. Ct. at 728-29. The issue of whether the evidence in the record of a defamation case is sufficient to support a finding of actual malice is a question of law. Diesin v. Hessberg, 455 N.W.2d 446, 464 (Minn. 1990) (citation omitted).

Hendrickson claims that Hietala’s credibility is questionable because she has "selective memory" and her "blanket statement" that Hendrickson smells of alcohol every day is "palpably false." But Hietala’s debatable credibility does not amount to proof of malice. Hendrickson merely asserts that it is "highly probable that Ms. Hietala was not truthful in her statements, and the case should have gone to the finder of fact." Although the issue of whether a defendant acted with malice in making a defamatory statement is generally a question of fact, Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997), the issue should not be submitted to a jury if the evidence is insufficient for a finding of malice. Frankson v. Design Space Int’l, 394 N.W.2d 140, 144-45 (Minn. 1986). We conclude that the trial court properly granted summary judgment in the libel claim against Hietala. Because the underlying defamation action fails, Spur Station has no liability under the doctrine of respondeat superior.

Hendrickson also alleges that Ehle defamed him in the disciplinary history prepared for the May 14, 1996, disciplinary meeting. Although Hendrickson does not dispute the factual accuracy of the statements, he argues that inclusion of some matters place him in a "false light." Hendrickson claims that he was "indisputably injured by the false implication of the document." Hendrickson’s only evidence of Ehle’s malicious intent is the conclusory allegation that Ehle "had no reasonable or probable grounds for believing that a mere listing of the disciplinary incidents for lateness was a true representation of Hendrickson’s disciplinary status." He argues that some of the items on the "laundry list" are "bare allegations, referrals for counseling, training or other assistance," and thus cannot be considered disciplinary actions. A disciplinary action, however, encompasses "the entire disciplinary process prompted by the complaint or charge against the employee, not just the sanction that may result." State v. Renneke, 563 N.W.2d 335, 338 (Minn. App. 1997). Ehle properly included minor infractions when he composed the disciplinary history. Hendrickson failed to provide any evidence of actual malice. As a result, the trial court did not err in granting summary judgment in favor of Ehle and the city.

B. Violation of 42 U.S.C. § 1983

Hendrickson brings several civil rights claims pursuant to 42 U.S.C. § 1983, which provides "an effective remedy against those abuses of state power that violate federal law." Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S. Ct. 1061, 1065 (1992). Municipalities and other local government entities are included among those to whom section 1983 applies. Id. at 120, 112 S. Ct. at 1066 (citation omitted). Municipalities are only liable, however, if "action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 121, 112 S. Ct. at 1066 (quotation omitted). Municipalities cannot be held liable for section 1983 violations through vicarious liability. Monnell v. Dept. of Soc. Serv. Of City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978).

Hendrickson first argues that the city, Lyons, Larson, Ehle, and LeRette denied his due process right to an adequate pre-termination hearing. Qualified immunity protects a public official performing discretionary functions from liability unless the official violates a clearly established statutory or constitutional right. Jones v. Coonce, 7 F.3d 1359, 1362 (8th Cir. 1993); see also Anderson v. Creighton, 483 U.S. 635, 638-41, 107 S. Ct. 3034, 3038-39, (1987). The existence of a clearly established statutory or constitutional right is a purely legal question. Siegert v. Gillery, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793 (1991).

Hendrickson claims he was denied due process when he was fired. Termination from tenured public employment involves a constitutionally protected property interest in that employment. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 541, 546, 105 S. Ct. 1487, 1493 (1985). Public employees are entitled to notice and an opportunity to respond to the charges. Id. at 545, 546, 105 S. Ct. at 1495. The pre-termination hearing "should be an initial check against mistaken decisions." Id. at 545. Notice providing an opportunity to respond may be either written or oral. Id. at 546, 105 S. Ct. at 1495.

The record supports the trial court’s finding that Hendrickson received oral notice and was represented by an attorney in two separate pre-termination meetings. Hendrickson claims that the city code and collective bargaining agreement do not provide for pre-termination due process and are therefore facially unconstitutional. However, Hendrickson does not provide evidence that the individual defendants deprived him of due process, nor does he show that the municipal policy contributed to a constitutional deprivation. Because Hendrickson did not present issues of material fact regarding a due process violation, we conclude that summary judgment is appropriate.

Hendrickson also contends that during the course of investigation into a complaint about his behavior, Ehle and LeRette invaded Hendrickson’s privacy by questioning him about personal associations and conduct while on the job and in uniform. "Generally, the constitutional right to privacy has been limited to situations involving marriage, family, and reproductive matters." Keezer v. Spickard, 493 N.W.2d 614, 619 (Minn. App. 1992) (citing Bowers v. Hardwick, 478 U.S. 186, 190-91, 106 S. Ct. 2841, 2843-44; Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 726 (1973)). Because the complaint involved on-duty behavior the inquiry into Hendrickson’s personal life did not violate the right to privacy. See Hughes v. City of North Olmsted, 93 F.3d 238 (6th Cir. 1996). Additionally, Ehle and LeRette were performing the discretionary function of investigating allegations of misconduct. Hendrickson did not provide evidence of a clearly established constitutional violation to overcome the qualified immunity privilege; consequently, we affirm summary judgment.

Hendrickson further alleges he was illegally searched by Hanson and Anderson when they requested two alcohol tests without probable cause. Although Hendrickson claims that the right to be free from unlawful search is well established, he does not show that requiring two tests amounts to a well-established unlawful search. As a result, he does not overcome the qualified immunity privilege. Moreover, qualified immunity provides for mistaken judgments by protecting "all but the plainly incompetent or those who knowingly violate the law." Pelerin v. Carton County, 498 N.W.2d 33, 36 (Minn. App. 1993) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S. Ct. 1092, 1096-97 (1986)). There is no evidence to show that Hanson and Anderson knowingly violated the law. Because Hanson and Anderson enjoy qualified immunity, summary judgment was proper in the unlawful search claim.

C. Wrongful discharge

Hendrickson argues that the trial court erred in granting summary judgement on the wrongful discharge claim. It is appropriate to apply collateral estoppel when parties acquiesced in an arbitration award. Art Goebel, Inc. v. Arkay Construction Co., 437 N.W.2d 117 (Minn. App. 1989); see also Mattsen v. Packman, 358 N.W.2d 48, 50 (Minn. 1984) (applying collateral estoppel to decision of conciliation court). However, "neither collateral estoppel nor res judicata is rigidly applied." AFSCME Council 96 v. Arrowhead Regional Corrections Board, 356 N.W.2d 295, 299 (Minn. 1984). The focus is on whether application of collateral estoppel would work an injustice on the party against whom estoppel is urged. Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn. 1988) (citing Jeffers v. Convoy Co., 636 F. Supp. 1337, 1339 (D. Minn. 1986)). Generally, if the subsequent litigation involves other parties, courts do not invoke the estoppel doctrine. See, e.g., Amdahl v. Green Giant Co., 497 N.W.2d 319 (Minn. App. 1993) (reversing trial court’s conclusion that collateral estoppel bars breach of contract claim against different parties); Johnson, 420 N.W.2d at 614 (stating that collateral estoppel should not apply because plaintiff deserves a chance to try the case against the real defendant).

Although Hendrickson claims that the issues arbitrated and those before this court are not identical, evidence supports the trial court’s conclusion that collateral estoppel should apply. Hendrickson states his wrongful discharge claim is based on "the wholesale violations of departmental investigative procedures, and the incomplete and biased investigation." The union argued that Hendrickson "did not receive a fair and full investigation" and that the police department did not follow its own procedural rules. The arbitrator considered the same challenges to Hendrickson’s termination as appeared before the trial court. Because the issues are the same and because there is no evidence that application of collateral estoppel would result in injustice, the trial court properly granted summary judgment for the wrongful discharge claim.


In reviewing a directed verdict, we make an independent determination of the sufficiency of the evidence to present a fact question to the jury. Nemanic v. Gopher Heating & Sheet Metal, Inc, 337 N.W.2d 667, 669 (Minn. 1983). A motion for directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide. Claflin v. Commercial State Bank of Two Harbors, 487 N.W.2d 242, 247 (Minn. App. 1992). A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law. Id. The trial court must also accept as true the evidence favorable to the adverse party and all reasonable inferences, which can be drawn from that evidence. Id. The appellate court must apply this same standard. Id. When the trial court grants a motion for directed verdict, this court determines whether the evidence and its inferences could reasonably sustain a contrary verdict. Northwestern State Bank v. Gangestad, 289 N.W.2d 449, 453 (Minn. 1979).

Hendrickson claims the city and DPD violated Minn. Stat. § 626.89 by: (1) denying his right to counsel on December 27, 1996; (2) taking formal statements without a written, signed complaint; and (3) retaliatory discipline. In relevant part, the Peace Officer Discipline Procedures Act states, "[t]he officer whose formal statement is taken has the right to have an attorney or union representative of the officer’s choosing present during the session. The officer may request the presence of an attorney or union representative at any time before or during the session." Minn. Stat. § 626.89, subd. 9 (1998)(emphasis added). Because the evidence shows that a union representative was present at the meeting in question and that Hendrickson agreed to proceed without the presence of his attorney, we conclude that Hendrickson was not denied the right to counsel.

Hendrickson next argues that questioning without the benefit of signed complaints violated the statute. Minn. Stat. § 626.89, subd. 5 requires a written complaint signed by the complainant. It also states, "[c]omplaints stating the signer’s knowledge also may be filed by members of the law enforcement agency." Minn. Stat. § 626.89, subd. 5(1998). On each occasion, Hendrickson was provided a notification of administrative investigation, which functions as a signed complaint form. If the complainant was a citizen or non-supervising officer, a written complaint from the individual accompanied the notification. We affirm the trial court’s conclusion that directed verdict was proper.

Hendrickson also argues that the discipline subsequent to his reinstatement was retaliation for his demand for counsel. The statute simply states that "[n]o officer may be * * * disciplined * * * as retaliation for or solely by reason of the officer’s exercise of the rights provided by this section." Minn. Stat. § 626.89, subd. 14(1998). Hendrickson admits to violating police policy but claims his discipline was retaliatory because no other officer has received as much discipline as he has. The evidence indicates that subsequent discipline was imposed for subsequent infractions of the police rules and regulations. There is no evidence to suggest that a contrary verdict could be reached. Accordingly, we conclude the directed verdict was proper.


Hendrickson challenges the trial court’s evidentiary rulings. Generally, "matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (citation omitted). However, the appellate court may review any otherwise non-appealable matter as the interest of justice may require. Id. (citing Minn. R. Civ. App. P. § 103.04). Hendrickson did not properly bring the evidentiary matters before this court and there is no evidence that justice requires us to review the evidentiary rulings. As a result we decline to address these issues.