This opinion will be unpublished and

may not be cited except as provided by

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




Michael P. Ivers, et al.,



The Church of St. William,


The Archdiocese of St. Paul and Minneapolis,


Filed December 22, 1998

Affirmed; motion denied

Willis, Judge

Anoka County District Court

File No. C196650

Clyde C. Ahlquist, Ahlquist Law Office, P.A., 2780 Snelling Avenue North, #317, Roseville, MN 55113 (for appellants)

Thomas B. Wieser, John C. Gunderson, Meier, Kennedy & Quinn, Chtd., 2200 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Church of St. William)

Daniel A. Haws, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, Saint Paul, MN 55101 (for respondent Archdiocese of St. Paul & Minneapolis)

Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.



On appeal from summary judgment for respondents, Michael Ivers challenges the district court's dismissal of his claims relating to (1) sexual abuse; (2) breach of contract; (3) defamation; and (4) negligent hiring, retention, and supervision. The Church of St. William requests review of its alternate grounds for dismissal of the equitable tolling and defamation claims in the event this court rejects the district court's rationale for summary judgment on those claims. We affirm.


Between 1978 and 1983, Father DeSutter, a priest at the Church of St. William, engaged in sexual contact with Michael Ivers. The first incident occurred when Ivers, then 36, and his wife sought marriage counseling from DeSutter. After DeSutter asked Ivers's wife to leave the room, he made inappropriate sexual advances to Ivers. Ivers knew at the time it was wrong, and he told his wife what had happened. The second incident occurred in 1979, when Ivers was hospitalized for chemical dependency treatment. He again told his wife, but he claims he was afraid to complain to anyone else because DeSutter was a priest. The final two incidents occurred while Ivers was employed by St. William. Each episode caused Ivers to have feelings of distress, guilt, and shame.

In 1983, a nun assigned to St. William asked Ivers whether he had noticed any unusual behavior by DeSutter. Ivers told her what DeSutter had done to him. She and another nun and a priest, who were also assigned to St. William, requested his help in confronting DeSutter, who, when confronted, admitted his conduct involving Ivers and acknowledged it was wrong. The nuns and the priest told Ivers that they were going to inform the archdiocese of DeSutter's conduct and insist that he receive treatment. They warned Ivers not to tell anyone about DeSutter, who left St. William in 1983.

After DeSutter's departure, Ivers continued to work at St. William. In 1993, the church hired Mary Joe Dolan as its administrator. Ivers disclosed to Dolan the incidents involving him and DeSutter, and Ivers claims that thereafter Dolan's behavior toward him changed; she spoke to him through clenched teeth and repeatedly threatened him with termination. Her 1993 written evaluation was extremely critical of Ivers's work performance.

Although Ivers had no written employment contract with St. William, he did receive an employment handbook from the church that described disciplinary procedures. In 1995, Dolan suspended Ivers for three days without pay and without first discussing it with him as provided by the handbook. The church later paid him for the three days' suspension. Ivers left St. William in 1996 for health reasons.

In 1996, Ivers and his wife sued St. William and the Archdiocese of St. Paul and Minneapolis for damages they claim were caused by DeSutter's sexual abuse of Ivers. Ivers also asserted various claims arising out of his employment at St. William. The district court granted summary judgment for respondents on all counts. This appeal followed.


On appeal from summary judgment, the reviewing court asks whether any genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1. Sexual abuse. The district court concluded that Ivers's sexual abuse claims are barred by the statute of limitations. We agree. Claims of alleged sexual abuse are subject to a delayed discovery rule, which provides:

Limitations period. (a) An action for damages based on personal injury caused by sexual abuse must be commenced within six years of the time the plaintiff knew or had reason to know that the injury was caused by the sexual abuse.

* * * *

(d) This section does not affect the suspension of the statute of limitations during a period of disability under section 541.15.

Minn. Stat. § 541.073, subd. 2 (1996).

The determination of when a claimant knew or should have known that his injuries were caused by sexual abuse requires an objective inquiry. M.L. v. Magnuson, 531 N.W.2d 849, 855 (Minn. App. 1995), review denied (Minn. July 20, 1995). When compelling evidence shows that a reasonable person in the same situation as the complainant should have known that he was abused, summary judgment is appropriate. See Roe v. Archdiocese of St. Paul & Minneapolis, 518 N.W.2d 629, 632 (Minn. App. 1994) (affirming summary judgment), review denied (Minn. Aug. 24, 1994).

Ivers argues that he did not recognize DeSutter's actions as sexual abuse until 1992, when he saw a film that made him understand that DeSutter's predatory conduct was actually sexual abuse and that Ivers was "a vulnerable adult" and therefore had a mental disability when the conduct occurred. Because of marital discord and chemical dependency at the times of the first two incidents, Ivers claims that there is a fact question regarding whether he knew or should have known his mental anguish was attributable to his marital problems and chemical dependency or was caused by DeSutter's actions. We disagree.

In Scheffler v. Archdiocese of St. Paul & Minneapolis, 563 N.W.2d 767, 770 (Minn. App. 1997), review denied (Minn. July 28, 1997), the plaintiff argued that he did not recognize a sexual encounter with a priest in 1981 as abuse until 12 years later, when another person labeled it abuse. This court pointed out that Scheffler never forgot the sexual abuse, although his memory became less accessible due to years of denial and substance abuse after the contact, and cited the supreme court's ruling that

[c]oncepts of sexual abuse and injury within the meaning of [the delayed discovery statute] are essentially one and the same, not separable--as a matter of law one is `injured' if one is sexually abused.

Id. (quoting Blackowiak v. Kemp, 546 N.W.2d 1, 3 (Minn. 1996)). It was not necessary for Scheffler to have verbalized or acknowledged formally that he had been abused to cause the statute of limitations to run. Id. (citing Blackowiak, 546 N.W.2d at 3). Similarly, the mere fact that Ivers claims he did not recognize DeSutter's actions as abuse until some years later did not prevent the statute of limitations from running.

Ivers claims that because he was a vulnerable adult when he was abused, and therefore had a mental disability, the statute of limitations was tolled, relying on W.J.L. v. Bugge, 573 N.W.2d 677 (Minn. 1998). His reliance is misplaced. A mental disability that tolls the statute must be a disability, such as repressed memory of the abuse, that would render a reasonable person incapable of recognizing he has been abused. Id. at 681. Ivers's subjective statements concerning his confusion over the source of his mental anguish do not help him on this issue. Id. at 682 (citing Blackowiak, 546 N.W.2d at 3, for the proposition that a "wholly subjective inquiry into an individual's unique circumstance" is not helpful). Ivers does not explain why a reasonable person in his position would not have known or have had reason to know more than six years before this action was commenced that he had been the victim of abuse.

Ivers never forgot or repressed the sexual abuse. Moreover, in light of DeSutter's admission that he had engaged in inappropriate sexual contact with Ivers and his acknowledgement that his actions were wrong, Ivers knew in 1983 that he had been abused. The district court did not err in finding that Ivers's sexual abuse claims are time-barred.

2. Equitable tolling of statute of limitations. Ivers contends that the district court should have equitably tolled the statute of limitations on his sexual abuse claims on the ground that the nuns and priest created a fiduciary relationship between Ivers and respondents by soliciting his help, warning him to keep silent about DeSutter, and exerting undue influence on him in the context of the priest/archdiocese/parishioner "power structure." According to Ivers, they "preclud[ed] his access to legal representation[] by causing [him] to take no legal action until after the statute of limitations had run." Ivers claims they had a fiduciary duty to inform him of his legal rights against St. William and the archdiocese and their failure to do so constitutes fraudulent concealment that justifies tolling the statute of limitations on his sexual abuse claims. The district court found no fiduciary relationship and refused to find that the statute of limitations was equitably tolled.

Courts generally refrain from considering claims that require "a searching and therefore impermissible inquiry" into church governance. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723, 96 S. Ct. 2372, 2387 (1976) (citation omitted). We conclude that analysis of the threshold issue of whether a fiduciary relationship existed would require this court to define the scope of the duty, if any, owed to individuals by their clergy, a matter fundamentally connected to issues of church organization and governance. Because it would necessarily involve the court in excessive entanglement in church matters by evaluating religious tenets and internal affairs of the church and archdiocese, the Constitution precludes us from making such an analysis. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111 (1971) (stating exercise of governmental authority not valid if it fosters excessive entanglement with religion).

But we note that, in any event, nothing in the record suggests that the nuns and priest hid essential facts from Ivers. He always remembered the sexual abuse and knew it was wrong. Consequently, he had knowledge in 1983 of all facts necessary to assert a claim.

3. Breach of contract. The district court dismissed Ivers's breach of contract claim on the ground that he was an at-will employee. We, too, are unpersuaded by Ivers's argument that St. William breached a contract with him when it disregarded its written disciplinary procedures by suspending him for three days without first discussing the matter with him. An unambiguous statement in a handbook that it is not a contract absolves the employer from responsibility to follow its written disciplinary procedures. Audette v. Northeast State Bank, 436 N.W.2d 125, 127 (Minn. App. 1989) (holding that disclaimer was understandable in its intent not to create contract, thereby allowing employer to disregard disciplinary procedures set forth in handbook). St. William's handbook contained such an explicit disclaimer. In any event, Ivers suffered no harm; although St. William did not admit wrongdoing, the church ultimately paid Ivers for the period of his suspension.

4. Defamation. The district court did not err in dismissing Ivers's claims of defamation based on Dolan's 1993 evaluation of Ivers's work as barred by the two-year statute of limitations. See Minn. Stat. § 541.07 (1996). Ivers's remaining defamation claim relates to his 1995 suspension.

Ivers asserts in his reply brief that Dolan's actions constituted defamation per se and demonstrated malice. St. William moves to strike these arguments, alleging that Ivers did not raise them below or in his initial brief. It is not necessary for us to determine whether the issues were raised adequately before the district court or in Ivers's initial brief because it is clear that the district court did not consider them. Accordingly, the issues are not properly before this court, and we decline to review them. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ("A reviewing court must generally consider `only those issues that the record shows were presented and considered by the trial court * * *.'") (citation omitted). St. William's motion to strike is denied as moot.

But we nevertheless note that Ivers points to no specific statements made by Dolan that he claims constituted defamation per se or demonstrated malice. Instead, he urges that Dolan's words and deeds "rise to the level of `dramatic pantomime,'" which provides "a clearly discernible account of the making of a false statement about [him] to a third party," and that the suspension was defamatory. Minnesota does not recognize claims based on defamation by conduct or dramatic pantomime. See Bolton v. Department of Human Servs., 540 N.W.2d 523, 525-26 (Minn. 1995) (stating that Minnesota does not recognize defamation by conduct alone or dramatic pantomime).

5. Negligent hiring, retention, and supervision. Ivers asserted negligent hiring, retention, and supervision claims against St. William and the archdiocese based on the actions of DeSutter; Dolan; and Dolan's supervisor, Father White. The district court dismissed the negligent hiring, retention, and supervision claims on the ground that judicial inquiry into the church's hiring and appointment procedures is constitutionally barred. Ivers concedes on appeal that the Constitution precludes review of his negligence claims relating to DeSutter because they involve purely ecclesiastical matters. He asserts, however, that the district court's rationale does not apply to his claims based on the actions of Dolan and Father White.

Negligent hiring and retention imposes direct liability on an employer for an employee's intentional tort if the employer "knew or should have known" of the employee's propensities. Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. App. 1993) (citation omitted), review denied (Minn. Apr. 20, 1993). Liability for negligent supervision of an employee is imposed under a theory of respondeat superior. Oslin v. State, 543 N.W.2d 408, 414 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996). These claims require physical injury or the threat of physical injury. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn. App. 1996) (negligent retention and supervision); Yunker, 496 N.W.2d at 422 (negligent hiring).

We conclude that Ivers's negligence claims based on the actions of Dolan and Father White fail. Nothing in the record shows that either St. William or Father White was on notice that Dolan was an abusive person, as Ivers contends. Furthermore, Ivers has not established a causal connection between Dolan's actions and any alleged physical injury or threat of physical injury to support his negligence claims.

Affirmed; motion denied.