This opinion will be unpublished and

may not be cited except as provided by

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




B.F., a minor, by her parent and

natural guardian, K.F.,



Christopher S. Smith,


Eden Prairie Public Schools,

Independent School District #272,


Filed March 10, 1998

Affirmed in part, reversed in part, and remanded

Willis, Judge

Hennepin County District Court

File No. 966650

James C. Wicka, Leanne G. Litfin, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Maggie R. Wallner, Jennifer K. Anderson, Knutson, Flynn, Deans & Olsen, Minnesota World Trade Center, Suite 1900, 30 Seventh Street East, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.



Appellant B.F., a high-school student sexually harassed on school grounds by another student, challenges the district court's grant of summary judgment to the school district. We affirm in part, reverse in part, and remand. We also affirm the district court's decision to deny B.F.'s motion to amend her complaint.


Between classes on April 5, 1996, Christopher Smith, an 18-year-old senior at Eden Prairie High School, followed B.F., a 15-year-old sophomore, into a health office bathroom while the health assistant was out of sight. Smith asked B.F., who was applying saline solution to her contact lenses, if she had good concentration; when she said she did, Smith began to massage her shoulders, then touched her stomach and moved his hands up to her breasts. B.F. alleges that Smith fondled her breasts, then inserted his fingers into the top of her jeans, moved his hands over her genitals, and attempted to expose himself to her.

B.F. told a friend of the incident, and the friend told the health assistant. The health assistant informed associate principal Joseph Epping and dean of students Carla McCarty.[1] B.F. told her story to the health assistant and then to McCarty. While McCarty contacted B.F.'s mother, Epping left a message for the school police liaison and called Smith out of class. Smith said he had done something "really stupid" and admitted to touching B.F.'s breasts. Epping ordered Smith to have no contact with B.F.

The incident took place on a Friday. The following Monday, the "administrative team," consisting of Epping, McCarty, the principal, and another associate principal, discussed the incident at its regular weekly meeting and checked its student discipline data base, finding no incidents involving Smith. The team elected to suspend Smith for five days, which the administrators considered a severe punishment. The school district has adopted a formal sexual harassment policy that mandates reporting and investigation of all sexual harassment claims but grants wide latitude with regard to the scope of investigation and to remedies.

The administrative team set up a meeting with B.F. and her parents to discuss methods of making her feel secure at school. B.F. and her mother rejected suggestions that B.F. regularly check in with school officials, that B.F. be escorted to class, that either B.F. or Smith be "shadowed" by school personnel, or that B.F. carry a pager or a cellular phone, insisting that B.F. would feel safe only if Smith were expelled. B.F. stopped coming to school when Smith returned.

On April 17, B.F. brought her friend, A.D., to the school administration with a complaint that A.D. also had been sexually harassed by Smith. The administration determined that the witnesses A.D. offered could not corroborate her account and refused to pursue the issue. The school did not question Smith regarding A.D.'s accusations.

In early May, Smith was removed from school and given homebound instruction after a physical confrontation on school grounds with B.F.'s boyfriend, an Eden Prairie High School graduate. McCarty informed B.F.'s mother that Smith was no longer in the building, but B.F. chose not to return to school because she had fallen behind academically. At this point, the school offered B.F. homebound instruction.

In August 1996, B.F. filed this action against Smith, alleging battery, negligence, negligent infliction of emotional distress, and violation of the Violence Against Women Act; and against the school district, alleging negligence, negligent supervision, negligent infliction of emotional distress, and violation of the Minnesota Human Rights Act, based on the school's failure to provide what she considered a safe educational environment. B.F. seeks in excess of $50,000 in damages against each defendant.

When B.F. returned to Eden Prairie High School in the autumn, several other girls told her that they had been harassed by Smith. One student, J.V., said that she had filed a sexual harassment complaint with the school in March 1996 because Smith called her names and threw a chair at her. J.V. stated in an affidavit that the school failed to follow through on her complaint. At B.F.'s request, J.V. attempted to retrieve her written complaint from the administration, which could not locate it; McCarty stated in a deposition that she did not recall the complaint being filed.

The lawsuit proceeded through several acrimonious discovery disputes. Following discovery, B.F. moved to add a claim of violation of Title IX of the federal Civil Rights Act. The district court denied the motion.

Both defendants moved for summary judgment. The court granted Smith's motion only with respect to B.F.'s claim of negligent infliction of emotional distress, but granted the school district's motion in its entirety on grounds of statutory immunity and common-law official immunity. B.F. appeals the grant of summary judgment to the school district and the denial of her motion to add a Title IX claim. We reverse the grant of summary judgment with respect to B.F.'s Human Rights Act claim and affirm with respect to her common-law negligence claims and her motion for leave to amend.



On appeal from a grant of summary judgment, this court inquires (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its interpretation of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This 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). The question of whether either statutory or common law immunity applies is one of law, which this court reviews de novo. Davis v. Hennepin County, 559 N.W.2d 117, 120 (Minn. App. 1997), review denied (Minn. May 20, 1997).

The district court held that the school district's actions were protected both by statutory discretionary function immunity and by common-law official immunity. Statutory immunity derives from Minn. Stat. § 466.03, subd. 6 (1996), which grants local government entities immunity from tort liability for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Courts have interpreted this provision narrowly in accordance with its purpose "to preserve the separation of powers by insulating executive and legislative policy decisions from judicial review through tort actions." Rico v. State, 472 N.W.2d 100, 104 (Minn. 1991).

Common-law official immunity, by contrast, derives from the notion of sovereign immunity and provides that "a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong." Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988). This doctrine "primarily is intended to insure that the threat of potential liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties." Rico, 472 N.W.2d at 107 (citation and internal quotation omitted).

Because the two types of immunity serve different purposes, their protections are not coextensive.

[S]tatutory immunity protects what might be termed policy judgment (which may take into account competing policy factors), while [common law] official immunity protects more individual, professional judgment (wherein the judgment necessarily reflects the factors of a situation and the professional goal * * * ).

Janklow v. Minnesota Bd. of Examiners, 552 N.W.2d 711, 716 (Minn. 1996) (citations omitted). Because statutory immunity protects even "willful or malicious" conduct, while official immunity does not, official immunity can apply to claims based on statutes that courts have held to impliedly waive statutory immunity for policy reasons. Compare State by Beaulieu v. Mounds View, 518 N.W.2d 567, 570-71 (Minn. 1994) (holding that official immunity can apply to Human Rights Act claim) with Davis, 559 N.W.2d at 121-22 (concluding that Human Rights Act impliedly waives statutory immunity).

Because both forms of immunity are exceptions to the general rule of liability, both are construed narrowly. Johnson v. County of Nicollet, 387 N.W.2d 209, 211 (Minn. App. 1986) (statutory immunity); Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1980) (official immunity). The defendant bears the burden of establishing its immunity from suit. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Human Rights Act claim

Under this court's Davis decision, issued four months before the district court's order but not cited by the district court, statutory immunity does not apply to Human Rights Act claims. 559 N.W.2d at 121-22.

The district court correctly cites Beaulieu, 518 N.W.2d at 571, for the proposition that common-law official immunity can be applied to Human Rights Act claims. But the court failed to address the immediately following discussion in the Beaulieu opinion, which concludes:

We believe there are few circumstances where a public official might be deemed to have committed a discriminatory act under [the Human Rights Act] and yet be deemed not to have committed a malicious or willful wrong under [official immunity precedent]. Both inquiries center around the objective reasonableness of an official's actions.

Id. In Davis, this court applied Beaulieu in the sexual harassment context and found that because the standard for finding malice is effectively identical with the standard for finding discrimination, the district court's denial of summary judgment on the merits precluded summary judgment on the ground of official immunity. Davis, 559 N.W.2d at 123-24.

This case differs procedurally from Davis in that the district court here granted summary judgment on immunity grounds without explicitly examining the merits of B.F.'s Human Rights Act claim. The court states that "[p]laintiff fails to offer any substantive evidence demonstrating malice on the part of the School District" but does not make clear whether it applied the objective reasonableness standard mandated by Beaulieu or whether it proceeded from an assumption that B.F. was required to provide evidence of the district's subjective motivations.

We believe that the district court clearly erred if it concluded that B.F. has not produced evidence sufficient to create a genuine issue of material fact as to whether, under an objective standard, the school district's conduct is "so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation." See Beaulieu, 518 N.W.2d at 571 (quoting City of Minneapolis v. Richardson, 307 Minn. 80, 87, 239 N.W.2d 197, 202 (1976)). Viewing the facts in the light most favorable to the party against whom summary judgment was granted, B.F. has produced evidence from which a jury could conclude that (1) the school violated its own stated sexual harassment policy in failing to investigate J.V.'s complaint against Smith; (2) the school limited Smith's punishment to a five-day suspension based in part on his lack of a previous record; and (3) the school dismissed A.D.'s complaint against Smith after minimal investigation and refused to reconsider its treatment of Smith in light of A.D.'s revelations. On this record, we conclude that B.F. has raised a genuine issue of material fact as to whether the school violated the Human Rights Act by failing to respond adequately to Smith's sexual harassment. Courts should resolve any doubt as to whether a dispute of material fact exists in favor of trial. Harvet v. Unity Medical Ctr., Inc., 428 N.W.2d 574, 578 (Minn. App. 1988). Under Davis, if summary judgment is not appropriate on the merits of a Human Rights Act claim, summary judgment on the ground of official immunity is equally improper.[2] We therefore conclude that neither statutory nor common law official immunity is available as a defense to B.F.'s Human Rights Act claim and reverse the district court's grant of summary judgment as to that claim.[3]

B. Common-law negligence claims

The Minnesota Human Rights Act provides the exclusive remedy for acts that are unlawful under its provisions. Minn. Stat. § 363.11 (1996). This court has held that a litigant may not bring a common-law negligence claim alleging "discriminatory practices, injuries, and damages identical with [her] MHRA claim." Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 717 (Minn. App. 1997), review denied (Minn. Apr. 24, 1997). The Human Rights Act precludes B.F.'s common-law negligence claims based on the school district's treatment of Smith, and we therefore need not decide whether they also would be barred by either statutory or official immunity. See Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995) (stating that appellate court will affirm summary judgment if it can be sustained on any ground), review denied (Minn. Feb. 13, 1996).

B.F. also alleges that the school district was negligent in failing to have an adult present in the main area of the nurse's office at all times. B.F.'s challenge is to a school staffing policy that necessarily involves a balancing of safety issues against financial constraints and other priorities. This sort of policy-making conduct is protected by statutory immunity. See Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 412 (Minn. 1996) (extending statutory immunity to decision not to post security guards on city buses). We therefore affirm the district court's grant of summary judgment with respect to B.F.'s common-law negligence claims.

Denial of leave to amend

A district court's grant or denial of leave to amend will be reversed only in case of a clear abuse of discretion. Fabio, 504 N.W.2d at 761. The district court here denied B.F.'s request because it was made late in the proceedings and "[d]efendants would be required to conduct additional discovery resulting in substantial delay." There is no indication that B.F. learned only as a result of the discovery process that the factual predicate for a Title IX claim was present; she could have made her Title IX claim in her initial complaint. "The trial judge has great discretion * * * to determine the procedural calendar of a case." In re Trust Created by Hill, 499 N.W.2d 475, 488 (Minn. App. 1993), review denied (Minn. July 15, 1993). We conclude that the district court did not clearly abuse its discretion in determining that adding an additional claim at a late stage in the proceedings, with its attendant requirement of research and the potential need for further discovery, would result in needless delay.

For the reasons stated, we affirm the district court's denial of leave to amend and grant of summary judgment with respect to B.F.'s common-law negligence claims. We reverse the district court's judgment as to immunity on the Human Rights Act claim and therefore remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

[ ]1 The dean of students ranks below the associate principal in the administrative hierarchy.

[ ] 2 We interpret Beaulieu and Davis as establishing an exception to the general rule that official immunity is meant to immunize the government against suit, rather than merely against liability, which has led to a preference for granting immunity early in the process. Cf. Rehn, 557 N.W.2d at 332-33.

[ ] 3 We do not intend our disposition to be interpreted as curtailing the district court's discretion to order further discovery before trial or to consider other motions for summary judgment on the merits following further development of the record. We merely conclude that summary judgment is not appropriate on the record as it stands.