This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1290

 

Katherine M. Groeneweg,

Appellant,

 

vs.

 

Interstate Enterprises, Inc.,

Respondent.

 

Filed April 19, 2005

Affirmed in part, reversed in part, and remanded

Willis, Judge

 

Freeborn County District Court

File No. CX-03-684

 

Gary A. Weissman, Weissman Law Office, 701 Fourth Avenue South, #300, Minneapolis, MN  55415 (for appellant)

 

Donald W. Savelkoul, Peterson, Savelkoul, Schlichting & Benda, Ltd., 211 South Newton Avenue, Albert Lea, MN  56007 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

On appeal from summary judgment, appellant argues that the district court erred by granting summary judgment to respondent, her former employer.  We find that summary judgment was appropriate on appellant’s claims of negligent infliction of emotional distress, invasion of privacy, and self-defamation.  But because issues of material fact exist on appellant’s claim of unlawful retaliation under Minnesota’s Whistleblower Act, we conclude that the district court erred by granting summary judgment.  We therefore affirm in part, reverse in part, and remand.

FACTS

From May 2000 to May 17, 2002, appellant Katherine M. Groeneweg was employed by respondent Interstate Enterprises as a housekeeper at a Holiday Inn Express; from October 2000 on, she was head housekeeper. 

At times, certain front-desk staff slept overnight in motel rooms without registering.  Groeneweg claims that she believed that this conduct violated state law and that in January 2002, she told the general manager about the problem.  He failed to respond, and Groeneweg brought the problem to the attention of Interstate’s “owner representative,” one of the owners who served as liaison between the ownership group and the motel management.

Groeneweg claims that she told the owner representative that the employees’ conduct violated a Minnesota statute prohibiting unregistered guests at motels.  At his deposition, the owner representative testified that Groeneweg had reported to him the issue of employees’ failure to register when staying overnight but that he was unaware of the guest-registration statute until Groeneweg initiated this lawsuit. 

On May 15, 2002, the general manager told Groeneweg of a supervisor’s meeting scheduled for the next day, which was a day that Groeneweg was not scheduled to work.  Groeneweg later left a telephone message for the general manager with a night employee asking that the meeting be rescheduled.  She did not attend the May 16 meeting. 

On May 17, 2002, the general manager fired Groeneweg for insubordination because she did not attend the May 16 meeting.  That morning, the owner representative asked the general manager to reconsider, and later in the day, the general manager, along with the two front-desk staff who had been the subjects of Groeneweg’s reports, met with Groeneweg.  The general manager had told Groeneweg in advance that these staff members would attend the meeting.  The general manager began the meeting by reading the reason for Groeneweg’s termination, and he did not reinstate Groeneweg to her position. 

Groeneweg claims that she went into a deep depression after being fired.  In September 2002, she sought and received medical treatment for depression.

Groeneweg eventually found a job as a personal-care attendant.  She did not tell her new employer that she had been fired or explain why she left the Holiday Inn Express.  But she fears having to answer such questions if she looks for another job.  Groeneweg has not yet told any prospective employers why she lost her job at the Holiday Inn Express.

In February 2003, Groeneweg sued Interstate, alleging unlawful retaliation under the Whistleblower Act; invasion of privacy; negligent infliction of emotional distress; and compulsory self-defamation.  She sought damages, back pay, front pay, and attorney fees.  Both parties filed summary-judgment motions, and in May 2004, the district court granted Interstate’s motion for summary judgment on all claims against it and denied Groeneweg’s motion for partial summary judgment.  This appeal follows.

D E C I S I O N

On appeal from summary judgment, this court determines (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A district court should grant a motion for summary judgment “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A “reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Id.  A genuine issue of material fact must be more than evidence that “merely creates a metaphysical doubt as to a factual issue,” it must be “sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

I.

Groeneweg argues that the district court erred by granting summary judgment to Interstate on her whistleblower claim.  Minnesota’s Whistleblower Act provides:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because:

(a) the employee . . . in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

 

Minn. Stat. § 181.932, subd. 1(a) (2004). 

Minnesota courts apply the McDonnell Douglas analysis to claims of retaliatory discharge under the Whistleblower Act.  Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).  The employee has the initial burden to establish a prima facie case of retaliatory discharge.  Cokley, 623 N.W.2d at 630.  “[T]he burden of production then shifts to the employer to articulate a legitimate, non-retaliatory reason for its action, after which the employee may demonstrate that the employer’s articulated reasons are pretextual.”  Id.  At all times the employee’s burden is to prove by a preponderance of evidence that the employer acted for an impermissible reason.  Id.

            To establish a prima facie case of retaliatory discharge, an employee must establish: “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).

            Here, Groeneweg alleges that she reported to Interstate’s general manager and to Interstate’s owner representative that fellow employees were violating state law by staying overnight in rooms at the motel without registering as guests.  She claims that she was fired in retaliation for making these reports.

In granting summary judgment to Interstate, the district court concluded that Groeneweg did not engage in statutorily protected conduct.  It reasoned that the persons whose conduct Groeneweg reported did not meet the statutory definition of “guest,” and,  therefore, because Groeneweg also reported that employees were staying overnight without either paying or using company certificates, she had reported behavior that violated only internal motel policy, not Minnesota law.

To be protected under the Whistleblower Act, an employee must report conduct that implicates a violation of law.  Obst v. Microtron, Inc., 614 N.W.2d 196, 200 (Minn. 2000).  There need not be an actual violation of law, but to receive protection from the Whistleblower Act, an employee’s report must be made in good faith.  Id. at 200.  The supreme court has stated,

In order to determine whether a report of a violation or suspected violation of law is made in good faith, we must look not only at the content of the report, but also at the reporter’s purpose in making the report.  The central question is whether the reports were made for the purpose of blowing the whistle . . . . 

 

Id. at 202.

 

We first examine whether Groeneweg’s reports implicated a violation of law.  Minnesota law requires:

Every person operating within this state a . . . motel . . . furnishing sleeping or overnight stopping accommodations for transient guests, shall provide and keep thereat a suitable guest register for the registration of all guests provided with sleeping accommodations or other overnight stopping accommodations thereat; and every such guest shall be registered therein.

 

Minn. Stat. § 327.10 (2004). 

Groeneweg alleges that she reported that certain staff members were provided with sleeping accommodations at the motel without registering.  Such a report implicates the requirements of the guest-registration statute, Minn. Stat. § 327.10.  It is not necessary that a violation of the law actually occurred.  Therefore, whether motel employees fall within the statutory definition of guest is not relevant to our decision. 

We conclude that the reports that Groeneweg claims to have made were statutorily protected conduct.  Interstate appears to dispute the precise content of the reports, as well as the reason Groeneweg made the reports.  Whether Groeneweg said what she claims to have said and whether she made the reports in good faith are fact questions inappropriate for determination on summary judgment.

Groeneweg has satisfied the second element of a prima facie case; her discharge by Interstate obviously is an adverse employment action.  See Bersch v. Rgnonti & Assocs., 584 N.W.2d 783, 788 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).  But whether Groeneweg’s discharge by Interstate was causally connected to her reports of alleged statutory violations remains a fact question for the jury.  The parties dispute whether Groeneweg was fired because of her reports or because she missed a supervisor’s meeting.  Whether Interstate provided sufficient evidence to establish a legitimate, non-retaliatory reason for firing Groeneweg also remains a question of fact.

Because Groeneweg’s claimed reports implicate a violation of state law and because questions of fact remain regarding the content of Groeneweg’s reports, regarding whether she made the reports in good faith, and regarding whether she was discharged because of her reports, we conclude that summary judgment on Groeneweg’s claim under the Whistleblower Act was inappropriate, and we remand for further proceedings regarding that claim.

II.

Groeneweg next argues that the district court erred by granting summary judgment to Interstate on her claim for negligent infliction of emotional distress.  Usually a plaintiff may recover for negligent infliction of emotional distress only “when that plaintiff is within a zone of danger of physical impact, reasonably fears for his or her own safety, and consequently suffers severe emotional distress with resultant physical injury.”  Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  But there is an exception to the zone-of-danger rule: a plaintiff “may recover damages for mental anguish or suffering for a direct invasion of his rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct.”  Id. 

But whether the zone-of-danger rule or the exception is applied, a plaintiff must demonstrate “physical manifestation[s] of the distress as proof of the genuineness and gravity of the emotional suffering.”  Soucek v. Banham, 503 N.W.2d 153, 164 (Minn. App. 1993) (quotation omitted).  Here, Groeneweg has failed to assert that there were any physical manifestations of her emotional distress.  Groeneweg argues that such a demonstration is unnecessary, but she relies on cases that do not address the elements of a cause of action for negligent infliction of emotional distress.  Rather, her argument relies on cases that discuss emotional distress as an element of damages based on other causes of action.  “[T]he level of proof necessary to recover damages for violation of a statutory right is different from that required to establish a separate tort claim for infliction of emotional distress.”  Navarre v. S. Wash. County Schools, 633 N.W.2d 40, 54 (Minn. App. 2001), rev’d in part on other grounds, 652 N.W.2d 9 (Minn. 2002).  Because Groeneweg has asserted a cause of action for negligent infliction of emotional distress but does not assert that she experienced any physical manifestations of her emotional distress, we find that the district court did not err by granting summary judgment to Interstate on the claim.

III.

Groeneweg next argues that the district court erred by granting summary judgment to Interstate on her invasion-of-privacy claim, which alleges intrusion upon seclusion.  The Minnesota Supreme Court has recognized the tort of invasion of privacy and three of the causes of action associated with it:  intrusion upon seclusion, appropriation, and publication of private facts.  Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998).  “Intrusion upon seclusion occurs when one ‘intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person.’”  Id. at 233 (alteration in original) (quoting Restatement (Second) of Torts § 652B (1977)). 

There are three elements to the intrusion-upon-seclusion tort:  (1) an intrusion, (2) that is highly offensive, and (3) that is into some matter in which a person has a legitimate expectation of privacy.  Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744 (Minn. App. 2001). To establish liability for intrusion upon seclusion, the defendant’s interference with the plaintiff’s seclusion must be substantial, must be of a kind that would be highly offensive to a reasonable person, and must be a result of conduct to which a reasonable person would strongly object.  Id. at 745.  “In the context of intrusion upon seclusion, questions about the reasonable person standard are ordinarily questions of fact, . . . but they become questions of law if reasonable persons can draw only one conclusion from the evidence.”  Id. (alteration in original) (quotation omitted).

According to the Restatement (Second) of Torts, “[t]he defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.”  Restatement (Second) of Torts § 652B cmt. c (1977).

            Groeneweg argues that she suffered a highly offensive intrusion here because the persons reported by her were present at the meeting at which her employment was terminated.  She argues that she had a reasonable expectation of privacy at such a meeting. 

We find only one Minnesota case that directly addresses a claim for intrusion upon seclusion.  And Groeneweg points to no caselaw supporting her contention that the presence of fellow employees at a meeting in which the termination of her employment was discussed is an invasion of her privacy.  The Minnesota case and cases from other jurisdictions involving intrusion upon seclusion have involved intrusive acts of a substantially greater magnitude.  For example, summary judgment for the defendants was determined to be inappropriate on an intrusion-upon-seclusion claim when a medical release signed by the plaintiff was later altered by the defendants and the defendants used the altered release to obtain medical information about the plaintiff.  Swarthout, 632 N.W.2d at 745; see also Patterson v. Augat Wiring Sys., Inc., 944 F. Supp. 1509, 1522 (M.D. Ala. 1996) (allowing a claim for intrusion upon seclusion from conduct constituting sexual harassment), Van Jelgerhuis v. Mercury Fin. Co., 940 F. Supp. 1344, 1368 (S.D. Ind. 1996) (noting that highly personal questions and comments of a sexual nature intrude upon a plaintiff’s psychological solitude or integrity); Benitez v. KFC Nat’l Mgmt. Co., 714 N.E.2d 1002, 1007 (Ill. App. 1999) (finding that voyeuristic acts were intrusions upon seclusion).

            The facts here demonstrate no similar level of intrusion.  We conclude that, as a matter of law, Groeneweg had no legitimate expectation of privacy at the meeting at which her employment termination was discussed and that the mere presence of other employees at the meeting was not an intrusion upon seclusion.  Therefore, we determine the district court did not err by granting summary judgment on Groeneweg’s claim for invasion of privacy.

IV.

Finally, Groeneweg argues that the district court erred by granting summary judgment to Interstate on her claim of self-defamation.  While Minnesota courts recognize a cause of action for self-publication defamation, the tort should be applied cautiously.  Lewis v. Equitable Life Assurance Soc. of the United States, 389 N.W.2d 876, 888 (Minn. 1986). 

A defamatory statement (1) must be communicated to someone other than the plaintiff, (2) must be false, (3) and must tend to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community.  Id.at 886.  “[I]n an action for defamation, the publication requirement may be satisfied where the plaintiff was compelled to publish a defamatory statement to a third person if it was foreseeable to the defendant that the plaintiff would be so compelled.”  Id. at 888. 

Here, Groeneweg acknowledges that she has not had to make any self-defamatory statements.  Her affidavit states that she found another job and that the employer did not ask her whether she had ever been fired from a job or why she left her last job.  Although Groeneweg has not communicated a self-defamatory statement to a third party, she bases her claim on the speculation that she might have to do so in the future.  But she fails to point to caselaw concluding that the possibility of future compelled self-publication, absent actual communication to a third party, satisfies the publication element of a defamation claim.  

Minnesota caselaw indicates that some actual communication must occur to satisfy the publication element of a claim for defamation by self-publication.  For example, in Lewis, the record showed that the plaintiffs were asked by prospective employers to disclose their reasons for leaving their previous employment and that each plaintiff stated that she had been “terminated.”  389 N.W.2d at 882.  In Kuechle v. Life’s Companion P.C.A., Inc., the plaintiff communicated to a prospective employer the reason for her termination.  653 N.W.2d 214, 218 (Minn. App. 2002), review denied (Minn. Jan. 21, 2003).  In Rouse v. Dunkley & Bennett, P.A., the Minnesota Supreme Court determined that the plaintiff failed to raise a genuine issue of material fact regarding his self-publication of his employer’s allegedly defamatory statement and failed to meet his burden on the publication element of defamation when he “could not provide names of interviewers nor provide any documentary evidence of having filled out applications, sent resumes or received rejections.”  520 N.W.2d 406, 411 (Minn. 1994).  We conclude that speculation regarding the possibility of future compelled self-publication is not sufficient to support a claim for defamation. 

Because Groeneweg acknowledges that she has not communicated a self-defamatory statement to others, we find that there has been no publication.  Because publication is an essential element to a defamation claim, we determine that summary judgment was properly granted to Interstate on Groeneweg’s claim for defamation.

Affirmed in part, reversed in part, and remanded.