This opinion will be unpublished and

may not be cited except as provided by

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




Evelyn Belton-Kocher,



St. Paul School District,


Filed March 3, 1998


Peterson, Judge

Ramsey County District Court

File No. C2959539

Stephen W. Cooper, Kathryn J. Cima, The Cooper Law Firm, 4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent)

James R. Andreen, Susan B. Rafferty, Erstad & Riemer, P.A., 3800 West 80th Street, Bloomington, MN 55431 (for appellant)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.



In this appeal from an order denying summary judgment, appellant St. Paul School District contends vicarious official immunity applies as a matter of law. The district also asserts that no genuine issue of material fact exists concerning whether its anti-nepotism policy is discriminatory because the policy is a bona fide occupational qualification, and that the district is entitled to summary judgment as a matter of law. We affirm.


On January 3, 1978, the school district adopted an anti-nepotism policy that prohibits, in relevant part, assigning an employee to a position in which that employee would be directly supervised by another employee who is his or her spouse.

In late 1993, respondent Evelyn Belton-Kocher applied for a position as the assistant director of student placement. This position is within a department supervised by Belton-Kocher's husband, Dr. A. Thel Kocher. Belton-Kocher survived the initial screening process and the school district invited Belton-Kocher to interview. The district then cancelled the interview based on its anti-nepotism policy.

Belton-Kocher filed a lawsuit against the district, claiming that the district discriminated against her based on her marital status. The district court denied motions for summary judgment by both parties, ruling that genuine issues of material fact existed as to whether the anti-nepotism policy was a bona fide occupational qualification and whether the school officials' conduct fell into the malicious and/or willful exception to official immunity.


On appeal from a district court order denying a motion for summary judgment, the appellate court will review whether there are genuine issues of material fact and whether the district court erred as a matter of law. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847 (Minn. 1995); see Minn. R. Civ. P. 56.03 (standard for granting summary judgment). A reviewing court need not defer to a district court's legal decision. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

An order denying immunity is appealable as of right because immunity from suit is effectively lost if the case erroneously goes to trial. Anderson v. City of Hopkins, 393 N.W.2d 363, 363-64 (Minn. 1986). A defendant seeking immunity from suit bears the burden of proving it fits within the scope of that immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). The applicability of an immunity defense is a question of law. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

Official immunity protects a public official who is charged by law with duties calling for the exercise of judgment or discretion, although it does not protect willful or malicious wrongs. Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991). Official immunity applies vicariously in some circumstances to the public bodies that employ the immunized employee. Pletan v. Gaines, 494 N.W.2d 38, 42-43 (Minn. 1992) (extending official immunity for police officer on high-speed chase to municipal employer). Otherwise, the purpose of official immunity, which is to shield the protected employee's exercise of independent judgment from civil adjudication, could be defeated. Id. at 42.

Before we can determine whether the school district is protected by vicarious official immunity, we must analyze whether the acts performed by the individuals were the type of discretionary acts that official immunity protects. See Terwilliger v. Hennepin County, 561 N.W.2d 909, 913-14 (Minn. 1997) (applying official immunity analysis). Official immunity protects only those duties calling for the exercise of discretion or judgment. Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988). In contrast, ministerial duties, those that are "absolute, certain and imperative," are not protected. Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996) (citation omitted). "[T]he crucial focus is upon the nature of the act." Elwood, 423 N.W.2d at 677. The exercise of only some degree of judgment or discretion is not necessarily sufficient to confer official immunity on an official. Id.

The school district acknowledges that its board promulgated the anti-nepotism policy. It contends that its administrators are entitled to official immunity for enforcing the policy and that as a matter of law their conduct was not malicious and/or willful. Consequently, the district asserts it is protected by vicarious official immunity. Belton-Kocher contends her complaint is against the application of the policy, not against individual administrators. Because no one person was responsible for the creation of the policy, she asserts official immunity does not apply.

The individual administrators here merely applied and enforced the anti-nepotism policy of the school board. This is not the kind of discretionary act to which official immunity applies. Terwilliger, 561 N.W.2d at 913 (implementation of policy to treat mentally ill patients does not implicate concerns of official immunity). While the administrators may have exercised some judgment and discretion in setting up Belton-Kocher's interview and then canceling it, the alleged discrimination arises from the implementation of the anti-nepotism policy. Official immunity does not apply to the individual administrators, and the school district is not protected by vicarious official immunity.

The school district also appeals that portion of the district court's order denying summary judgment on the issue of whether the anti-nepotism policy falls within an exception to the statutory prohibition against discrimination based on marital status because the policy is based on a bona fide occupational qualification. Minn. Stat. § 363.03, subd. 1(2)(a) (1994). Generally, an order denying a motion for summary judgment is nonappealable. McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995). We reviewed the immunity decision because denial of summary judgment based on immunity is immediately appealable. Anderson, 393 N.W.2d at 363-64. An interlocutory order denying summary judgment on the factual merits does not become appealable even if the motion is couched in terms of qualified immunity. Carter v. Cole, 526 N.W.2d 209, 213 (Minn. App.), aff'd, 539 N.W.2d 241 (Minn. 1995) (citing Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1995)). Therefore, we decline to review the interlocutory order denying summary judgment on this issue because the order is nonappealable.