This opinion will be unpublished and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


Katherine S. O'Sullivan,


State of Minnesota, et al.,

Independent School District No. 709,

Filed November 23, 1999
Affirmed in part, reversed in part, and remanded
Klaphake, Judge

St. Louis County District Court
File No. C0-98-601369

Daniel E. Warner, Warner Law Office, P.A., Suite 204, Eagan, MN 55122-1340 (for appellant)

Mike Hatch, Attorney General, David W. Merchant, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2128 (for respondent State)

Mark L. Knutson, Boyd, Agnew, Dryer & Storaasli, Ltd., 200 Sellwood Bldg., 202 W. Superior St., Duluth, MN 55802-1960 (for respondent ISD No. 709)

Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Katherine O'Sullivan appeals from summary judgment granted in favor of respondents, the State of Minnesota; Minnesota State Colleges and University System (MnSCU); Lake Superior College; Dr. Harold Erickson, Lake Superior College's former president; and Independent School District No. 709 (ISD No. 709). O'Sullivan's complaint, which arose from her layoff from the position of director of the Women's Resource Center and Gender Equity Coordinator at Lake Superior College, asserted claims under the Whistleblower Act, Minn. Stat. § 181.932, subd. 2 (1996); the Minnesota Human Rights Act, Minn. Stat. § 363.03 (1996); the Federal Equal Pay Act, 29 U.S.C. § 206 (1994); the Public Employment Labor Relations Act (PELRA), Minn. Stat. §§ 179A.06, .13 (1996); and Title IX, 20 U.S.C. § 1681 (1994). She also alleged tortious interference with contract against Dr. Erickson, who is now deceased. By notice of review, ISD No. 709 claims that it is entitled to a defense and indemnity from MnSCU and the state. We affirm in part, reverse in part, and remand for further proceedings.


I. Whistleblower and MHRA Reprisal Claims

The district court concluded that the statutes of limitation had expired on O'Sullivan's whistleblower and MHRA reprisal claims. See Minn. Stat. § 363.06, subd. 3 (1996) (unfair discriminatory practice claims under MHRA subject to one-year statute of limitations); Larson v. New Richland Care Ctr., 538 N.W.2d 915, 921 (Minn. App. 1995) (whistleblower claim subject to two-year statute of limitations), review denied (Minn. Mar. 4, 1995). O'Sullivan was laid off on September 18, 1995, and she did not file her complaint in state district court until June 10, 1998.

O'Sullivan argues, however, that the statute of limitations for these two claims was tolled during the pendency of an action she initiated in federal district court. We agree. Under 28 U.S.C. § 1367(d) (1994), the limitations period for any civil action that is supplemental to a claim over which the district court has original jurisdiction is "tolled while the claim is pending." Id. O'Sullivan's federal district court complaint can be read to include colorable whistleblower and MHRA claims. While the claims were eventually dismissed by the federal district court, we conclude that the tolling provisions of 28 U.S.C. § 1367(d) were triggered when O'Sullivan asserted these claims in federal court. See Rothmeier v. Investment Advisors, Inc. 556 N.W.2d 590, 593 (Minn. App. 1996) (upholding state court decision tolling statute of limitations on state whistleblower claim during pendency of age discrimination claim in federal court), review denied (Minn. Feb. 26, 1997).

Our analysis does not end here, however. An employee "seeking redress for allegedly discriminatory employment action" predicated upon the same discriminatory employment practices of the employer may not maintain both a cause of action under the Whistleblower Act and a cause of action for reprisal under the MHRA. Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 485-86 (Minn. 1996). The MHRA contains an exclusive remedy provision that bars an employee from "simultaneously maintain[ing] an action relating to the same allegedly discriminatory practice" under the MHRA and the Whistleblower Act. Id. That is precisely the case here. O'Sullivan's MHRA reprisal and Whistleblower claims each are predicated upon her job layoff, allegedly in response to certain actions she took while she was an employee. As such, she may not maintain a Whistleblower claim in addition to the MHRA reprisal claim. Thus, we reverse the district court's grant of summary judgment only on the MHRA reprisal claim and affirm the grant of summary judgment on the Whistleblower claim.

II. Equal Pay Act Claim

The district court granted summary judgment on O'Sullivan's claim that respondents violated the Equal Pay Act by paying her less than John Arola, a college counselor. The Equal Pay Act prohibits employer discrimination

on the basis of sex by paying wages to employees * * * at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex * * * for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to * * * [iv] a differential based on any other factor other than sex[.]

29 U.S.C. § 206(d)(1); see also Corning Glass Works v. Brennan, 417 U.S. 188, 195-97, 94 S. Ct. 2223, 2228-29 (1974) (setting out prima facie case of pay discrimination).

Even assuming that O'Sullivan should be classified as a counselor as she claims, the district court also concluded, correctly, that "gender discrimination could not be a pay differential factor" because seven of the eight counselors at the college were women. In determining whether an employer has violated the Equal Pay Act, a court must focus on the whole group of comparable workers when making a pay comparison and may not focus solely on selective comparable workers. Hutchins v. International Bhd. of Teamsters, 177 F.3d 1076, 1081 (8th Cir. 1999). Thus, O'Sullivan has failed to present facts that would support any gender discrimination based on a pay differential, and the district court properly granted summary judgment in respondents' favor on this issue. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847-48 (Minn. 1995) (moving party entitled to summary judgment when "there are no facts in the record giving rise to a genuine issue for trial as to the existence of an essential element of the nonmoving party's case").


O'Sullivan asserts that PELRA guarantees her a right to "express or communicate a * * * grievance [or] complaint * * * on any matter," under Minn. Stat. § 179A.06, subd. 1. She argues that respondents' refusal to reclassify and termination of her position constituted an unfair labor practice under Minn. Stat. § 179A.13, subd. 2(1). Neither O'Sullivan's termination nor the facts surrounding her reclassification attempts violate PELRA. Although O'Sullivan sought union affiliation, she failed to achieve that status. Where an individual employee has no contract or tenure rights and is terminable at will, the employee has no PELRA claim arising out of the terms and conditions of his or her employment. See Boe v. Polk County Library Bd., 299 Minn. 226, 227, 217 N.W.2d 208, 209-10 (1974). The district court properly granted summary judgment on this issue.

IV. Gender Discrimination under Title IX

O'Sullivan claimed gender discrimination and retaliation in violation of Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681. The court granted summary judgment on this claim, determining that Title IX "does not provide a private cause of action for damages (must be asserted under Title VII), but only a right to seek to enjoin funding or an order compelling the government to terminate funding."

The state contends that res judicata should apply to this issue because the claim could and should have been included in the federal district court action with O'Sullivan's other federal claims. A final judgment on the merits bars a second suit involving the same parties or privies for the same cause of action and every other cause of action that might have been decided in the first action. Dorso Trailer Sales, Inc. v. American Body & Trailer, Inc., 482 N.W.2d 771, 774 (Minn. 1992). Where summary judgment is decided on the merits, it bars relitigation of the same issue. Simington v. Minnesota Veteran's Home, 464 N.W.2d 529, 530 (Minn. App. 1990), review denied (Minn. Mar. 15, 1991). O'Sullivan's Title IX claim arose under the same nucleus of facts that comprised her federal gender discrimination and 42 U.S.C. § 1983 claims. Because a judgment on the merits was entered on those federal claims, res judicata bars O'Sullivan from bringing a Title IX claim in this action.

V. Tortious Interference with Contract Claim

The district court dismissed O'Sullivan's tortious interference with contract claim after finding that

the record * * * is absolutely void of any evidence showing Dr. Erickson, or anyone on his behalf, was taking any action involving [O'Sullivan's] discharge for any reason other than budgetary or other considerations entrusted to Dr. Erickson as part of his discretionary, judgmental responsibilities.

A prima facie case of tortious interference with contract consists of:

(1) the existence of a contract; (2) the alleged wrongdoer's knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.

Kallok v. Medtronic, 573 N.W.2d 356, 362 (Minn. 1998) (quoting Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994)). Even assuming that O'Sullivan established that Erickson procured a breach of her employment contract, we conclude that Erickson is officially immune from suit because he acted within his capacity as the college president in determining O'Sullivan should be laid off. See State by Bealieu v. Mounds View, 518 N.W.2d 567, 569 (Minn. 1994) (official immunity protects public officials from suit when exercising judgment or discretion in assigned duties; court applied doctrine to racial discrimination claim under MHRA). Although official immunity does not apply when an official acts with malice, the question of whether malice exists is determined by "an objective inquiry into the legal reasonableness of an official's actions." Id. at 571. Under this objective standard, O'Sullivan has not offered any evidence that Erickson acted with malice. Erickson's decision to lay off O'Sullivan amounted to a ratification of her immediate supervisor's determination, which in turn was based on a need to alleviate a budget shortfall. Erickson's decision was reasonable under the circumstances, and he is immune from suit against O'Sullivan's tortious interference with contract claim.

VI. Duty to Defend

ISD No. 709 filed a notice of review and claims that by virtue of the complete transfer of Lake Superior College to MnSCU on July 1, 1995, MnSCU owed it a duty to defend and indemnify against O'Sullivan's suit. MnSCU is a state agency that consolidates control of all state universities, community colleges, and technical colleges. The existence of a legal duty to defend or indemnify is a legal question subject to de novo review. See Franklin v. Western Nat'l Mut. Ins. Co., 574 N.W.2d 405, 406 (Minn. 1998).

The "Transition Provisions" transferring state colleges to MnSCU states that "all other obligations incurred on behalf of a technical college by a school board, * * * which will not be satisfied on or before June 30, 1995, transfer to [MnSCU]." 1994 Minn. Laws ch. 532, art. 5, § 1. ISD No. 709 contends that because O'Sullivan's action was an "obligation" not satisfied in full by June 30, 1995, the action was transferred to MnSCU on July 1, 1995. We agree. By clear statutory language, all of ISD No. 709's duties and obligations were transferred to MnSCU. MnSCU, therefore, had the duty to defend against O'Sullivan's suit. See Minn. Stat. §§ 645.08(1) (1998) (words of statute construed according to common usage), 645.16 (1998) (statute must be construed to give effect to its provisions).

We therefore affirm on the Whistleblower, Equal Pay Act, PELRA, Title IX, and tortious interference with contract claims. We reverse and remand the grant of summary judgment on the MHRA reprisal claim. Because our reversal is based solely on the statute of limitations issue, it should not be construed as an expression of our view on the merits of that claim. Finally, we conclude that the state has a duty to defend and indemnify ISD No. 709 in this action.

Affirmed in part, reversed in part, and remanded.