This opinion will be unpublished and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

A05-201

 

Teresa M. Graham,

Appellant,

 

vs.

 

Independent School District 625,

a/k/a St. Paul Public School District, et al.,

Respondents.

 

Filed November 29, 2005

Affirmed in part, reversed in part, and remanded

Worke, Judge

 

Ramsey County District Court

File No. C7-03-10880

 

Jeffrey D. Schiek, Philip G. Villaume, Villaume & Schiek, P.A., 5200 Willson Road, Suite 150, Edina, MN 55424 (for appellant)

 

James R. Andreen, Erstad & Riemer, P.A., 8009–34th Avenue South, Suite 200, Minneapolis, MN 55425 (for respondents)

 

            Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant Teresa M. Graham, a former employee of respondent Independent School District 625, appeals from summary judgment dismissing her claims for negligence, breach of contract, promissory estoppel, respondeat superior, negligent and intentional infliction of emotional distress, assault, false imprisonment, and retaliation for reporting violations of child-reporting laws.  Because we conclude that a genuine issue of material fact exists regarding whether appellant was falsely imprisoned by respondent Deborah Schipp and whether respondent school district is vicariously liable for the actions of Schipp on May 9, 2003, we reverse the district court’s grant of summary judgment in favor of respondents and remand the matter for further proceedings.  On all remaining issues, we affirm.   

FACTS

On May 9, 2001, appellant Teresa M. Graham was hired by respondent Independent School District 625 as a social worker at Saturn Riverfront Academy (n/k/a Wellstone Elementary).  Throughout appellant’s employment with the school district, respondent Raymond Yu was employed as the principal of Saturn Riverfront Academy.  Under Minn. Stat. § 122A.41, subd. 2 (2004), Teacher Tenure Act for School Districts Within Cities of the First Class (Act), an individual receives tenure after completing three years as a probationary employee.  Until a recent amendment to the Act, employment during any portion of a school year was considered to be a qualifying year; therefore, appellant’s one month of employment during spring 2001 qualified as her first year of employment with the school district.

            During the 2001-02 school year, appellant filed two reports with the Minnesota Department of Education (f/k/a Minnesota Department of Children, Families, and Learning) alleging child maltreatment.  The first report, made on September 20, 2001, alleged that an educational assistant used assaultive behavior towards a student at Saturn Riverfront Academy.  The second report, made on October 16, 2001, alleged that a school teacher engaged in inappropriate sexual contact with a student at Saturn Riverfront Academy.  In addition, on October 29, 2001, appellant reported that she was injured in the school parking ramp when the mechanical arm malfunctioned striking her on the head.  Yu was notified of appellant’s injury and paramedics were called.

            On May 2, 2002, Pat Juaire, the lead social worker for the school district, completed a performance evaluation on appellant despite the fact that building principals are responsible for completing employee evaluations.  The Juaire evaluation reflected an overall “exceeds expectations.”  Juaire acknowledged, however, that it was not her place to evaluate appellant’s performance and that she had little to no interaction with appellant.  On May 15, 2002, Yu met with appellant and changed the Juaire evaluation from overall “exceeds expectations” to overall “meets expectations.”  Yu indicated that during the 2001-02 school year he had received numerous complaints regarding appellant’s unprofessional behavior, which resulted in Yu rating appellant as “meets expectations” on her performance evaluation.  On May 17, 2002, appellant objected to Yu changing her performance evaluation. 

            On May 20, 2002, appellant filed a complaint with Eileen Cardwell who assists in investigations of allegations of misconduct or complaints filed by school employees.  The complaint stated that appellant believed Yu inappropriately changed her performance evaluation.  It further stated that Yu had informed appellant that the parking ramp incident affected her appraisal and that Yu had “grilled” her about the two child-maltreatment reports she filed.  Appellant claimed she felt bullied, fearful, and unsafe during the meeting, and that Yu was insensitive about the parking ramp incident.  Appellant stated that she believed the incident negatively impacted her performance evaluation and she did not want to be retaliated against. 

            In August 2002, appellant accepted a position with the school district as the program coordinator for the SNAP (Stop Now and Plan) program, a temporary-grant-fund program.  In May 2003, appellant applied for the position of Agape program coordinator, another program associated with the school district.  Appellant held this position until the end of the 2002-03 school year.

            On May 9, 2003, respondent Deborah Schipp informed appellant that she would like to meet with her.  Schipp was employed by the school district as a teacher on special assignment working for Don Loe, Assistant Director of Special Education.  Schipp directed appellant into Loe’s unoccupied office.  After the two women entered the office, Schipp closed the door, placed a chair against the door and sat on it.  Schipp then informed appellant that she would not be hired as the Agape program coordinator.  Appellant claims that Schipp acted in a harassing and volatile manner toward her.  Further, appellant claims that Schipp used threatening and intimidating language and gestures toward her.  The distance between Schipp and appellant was approximately three to four feet and there were no barriers between them.  Appellant claims that when she told Schipp she wanted to leave the office, Schipp informed her that she was not leaving until Schipp was done with her.  The confrontation lasted approximately 15 minutes and ended when Schipp stormed out of the office.  Later that day, appellant contacted Melissa Hoglund, a staffing specialist in the Human Resources Department, to report the incident with Schipp.  Hoglund stated that her phone conversation with appellant lasted approximately 45 minutes and that appellant was very upset and crying.

            On May 11, 2003, appellant sent an email to Hoglund, Loe, and Richard Kreyer, Executive Director of Human Resources for the school district, regarding what had transpired during the May 9 meeting with Schipp.  On May 13, 2003, appellant called Cardwell to discuss the May 9 incident with Schipp.  Appellant stated that as a result of Schipp’s behavior, she was very upset, had been having headaches and gastrointestinal pains, and she had been unable to sleep.  That same day, appellant received a letter from Loe informing her that her position as the program coordinator for the SNAP program was not being renewed.   On May 27, 2003, appellant was officially notified that the Agape program coordinator position was being offered to someone else.  On May 30, 2003, appellant filed a police report regarding the May 9 incident with Schipp.  The St. Paul School Board met on June 16, 2003, and determined not to offer a new contract to appellant for the 2003-04 school year. 

            On October 13, 2003, appellant filed a lawsuit against respondents as follows:  (1) negligence by school district; (2) breach of contract by school district; (3) promissory estoppel against respondents Don Loe and Patricia Fernandez, Director of Special Education; (4) negligence against the individual respondents; (5) breach of contract against the individual respondents; (6) negligent infliction of emotional distress against all respondents; (7) respondeat superior (alleging that the individual respondents were acting in the course and scope of their employment when they committed the tortious acts, causing severe physical and emotional distress making the school district vicariously liable for the individual respondents’ actions); (8) intentional infliction of emotional distress; (9) violation of Minn. Stat. § 626.556, subd. 4a (2004); (10) false imprisonment by respondent Shipp; (11) assault by respondent Shipp; (12) violation of Minn. Stat. § 181.932 (2004) (whistleblower); and (13) public-policy exception to the at-will employment.  This appeal follows the district court’s grant of summary judgment in favor of respondents.

D E C I S I O N

 

“On an appeal from summary judgment, we ask two questions: (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).  This court reviews de novo whether a genuine issue of material fact exists and whether the district court erred in its application of the law.  STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002).  On appeal, we must view the evidence in the light most favorable to the party against whom judgment was granted.  Id.  For purposes of this case, therefore, we must accept as true the factual allegations made by appellant.

Promissory Estoppel

Appellant argues that, when viewed in the light most favorable to her, the facts prove that respondents made specific promises to her regarding employment for the 2003-04 school year, which she detrimentally relied on, and that a grave injustice will result if those promises are not enforced.  In Minnesota, “[t]he first three consecutive years of a teacher’s first teaching experience . . . [are] deemed to be a probationary period of employment.”  Minn. Stat. § 122A.40, subd. 5(a) (2004).  During this probationary period, “any annual contract with any teacher may or may not be renewed as the school board shall see fit.  However, the board must give any such teacher whose contract it declines to renew for the following school year written notice to that effect before July 1.”  Id.   “A school board has total discretion when deciding not to renew the contract of a probationary teacher.”  Allen v. Bd. of Educ. of Indep. Sch. Dist. No. 582 Jasper, Minn., 435 N.W.2d 124, 126 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989).  Here, it is undisputed that at the time of appellant’s nonrenewal, she was within her probationary period of employment with the school district.  Further, it is undisputed that appellant was given notice of her nonrenewal prior to July 1, 2003.  Even though the St. Paul School Board was acting within its sole discretion when it decided not to renew appellant’s contract, appellant argues that she detrimentally relied on the promises of employment for the 2003-04 school year which were made to her by Loe and Kathy Lombardi, a team leader for the social workers within the school district.  Appellant also argues that a grave injustice will occur if those promises are not enforced. 

Promissory estoppel is a creature of equity which implies “a contract in law where none exists in fact.” Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn. 1981).  The elements of the doctrine of promissory estoppel are: (1) was there a clear and definite promise, (2) did the promisor intend to induce reliance, and did such reliance occur, and (3) must the promise be enforced to prevent an injustice.  Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995). 

            The analysis of a promissory-estoppel claim begins with whether appellant has demonstrated a “clear and definite” promise.  Id.  Vague and indefinite statements are not sufficient.  Id. (noting that where an alleged promise is vague and indefinite, claims for promissory estoppel are properly dismissed).  Even where an employer makes assurances seeming to indicate job permanence, the statements are generally considered mere statements of policy indicating only at-will employment.  Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769, 771 (Minn. App. 1987).  “An employer’s general statements of policy are no more than that and do not meet the contractual requirements for an offer.”  Pine River State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn. 1983). 

The first statement upon which appellant bases her promissory-estoppel claim occurred in March 2003, when Loe told appellant that she would have a social-worker position for the 2003-04 school year within the St. Paul school district.  The second statement was confirmed by Lombardi in her deposition; she recalled telling appellant that she would have a position with the St. Paul school district for the 2003-04 school year.  Finally, during a meeting with Patricia Fernandez and appellant in the spring of 2003, Loe indicated to appellant that she would have a job within the school district for the 2003-04 school year.  It is undisputed that these statements were made to appellant regarding her employment for the 2003-04 school year. 

In dismissing appellant’s claim for promissory estoppel, the district court ruled that appellant’s claim is governed by the Ruud case, which states: “The usual employer-employee relationship is terminable at the will of either party.”  Ruud, 526 N.W.2d at 371.  The district court ruled that appellant failed to show that there was a clear and definite offer and acceptance or that Loe and Lombardi had the power to bind the school district with their general statements.  Based on the record, it is clear that while the statements made by Loe and Lombardi appear to make assurances seeming to indicate job permanence, the promises were merely general statements of policy.  Further, the statements are insufficient to overcome the school district’s sole discretion to determine whether to renew appellant’s employment.  Because there was no clear and definite promise upon which to base the promissory-estoppel claim, it is not necessary to go any further with the analysis of this claim.  The district court did not err in ruling that appellant failed to establish a clear and definite promise sufficient to support her claim of promissory estoppel. 

False Imprisonment

            Appellant argues that, when viewing the facts in a light most favorable to her, she has set forth genuine issues of material fact to sustain a claim for false imprisonment and the district court erred in dismissing her claim.  “[T]he elements of false imprisonment are (1) words or acts intended to confine, (2) actual confinement, and (3) awareness by the [person] that he [or she] is confined.”  Blaz v. Molin Concrete Prods. Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976).  “[A]ny imprisonment which is not legally justifiable” is false imprisonment.  Kleidon v. Glascock, 215 Minn. 417, 425, 10 N.W.2d 394, 397 (1943).  There is no false imprisonment, however, if the claimant “is aware of a reasonable means of escape that does not present a danger of bodily harm or material harm.”  Peterson v. Sorlien, 299 N.W.2d 123, 128 (Minn. 1980).  Further, this court has held that in an employment context, “[s]ubmitting to the verbal direction of an employer, unaccompanied by force or threats, does not constitute false imprisonment.”  Bellini v. Univ. of St. Thomas, No. C6-94-367, 1994 WL 425166, at *5 (Minn. App. Aug. 16, 1994). 

The district court relied on Bellini in dismissing appellant’s false-imprisonment claim, ruling that there was no evidence that appellant attempted to leave the office or even asked to leave.  Appellant argues that Schipp’s words and action of closing the door to the only exit in the office and placing a chair in front of it confined her to a specific office location.  Further, appellant argues that it is not necessary to prove that she attempted to leave or asked to leave in order to prevail on a false-imprisonment claim.  The facts surrounding the false-imprisonment claim—Schipp acting in a hostile manner toward appellant, blocking the sole exit from the office with a chair, and refusing to allow appellant to depart the office when she asked—when viewed in the light most favorable to appellant, reflect that genuine issues of fact exist regarding whether appellant was falsely imprisoned by Schipp.  The district court erred in dismissing this claim and we, therefore, reverse the district court’s grant of summary judgment in favor of respondents on the false-imprisonment issue and remand for further proceedings on this issue.

Assault

 

            Appellant argues that, when viewing the facts in a light most favorable to her, she has set forth genuine issues of material fact to sustain a claim for assault and the district court erred in dismissing her claim.  “An assault is an unlawful threat to do bodily harm to another with present ability to carry the threat into effect.”  Dahlin v. Fraser, 206 Minn. 476, 478, 288 N.W. 851, 852 (1939).    An assault claim must establish a display of force that caused “reasonable apprehension of immediate bodily harm.”  Id.  “[M]ere words or threats do not constitute an assault, unless accompanied by an offer of physical violence.”  Johnson v. Sampson, 167 Minn. 203, 205, 208 N.W. 814, 815 (1926). Appellant claims that Schipp’s actions caused her to reasonably apprehend imminent harm, and she believed that Schipp had the present ability to cause bodily harm.  Appellant bases her claim on Schipp’s harassing and volatile manner, the fact that there were no barriers between the two women, and Schipp’s threatening and intimidating language and gestures toward her during the meeting.  However, there is no evidence—and appellant does not claim—that Schipp threatened actual physical harm on appellant.  Further, Schipp’s threatening gestures do not rise to the level of an assault.  Appellant’s assertion that she was in apprehension of immediate bodily harm is irrelevant because that apprehension was not the result of a display of force or an offer of violence by Schipp.  Based on the record, the district court did not err in dismissing appellant’s assault claim.

Negligent Infliction of Emotional Distress

 

            Appellant argues that, when viewed in a light most favorable to her, she has set forth sufficient facts to sustain a claim for negligent infliction of emotional distress and the district court erred in dismissing her claim.  The underlying claims for appellant’s claim of negligent infliction of emotional distress are the alleged assault and false imprisonment by Schipp.  Considering that we have concluded that the district court did not err in dismissing appellant’s assault claim, appellant’s claim of negligent infliction of emotional distress based on the alleged assault claim also fails as a matter of law.  In addition, appellant’s claim of negligent infliction of emotional distress based on the false-imprisonment claim fails due to the fact that appellant has failed to establish that she was within the zone of danger and she has failed to present physical manifestations that rise to the level of severe emotional distress.

            “To establish a claim for negligent infliction of emotional distress, a plaintiff must ordinarily show she (1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations.  Stead-Bowers v. Langley, 636 N.W.2d 334, 343 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).  Due to concerns about unintended and unreasonable results, the supreme court has deliberately limited the zone of danger to the threat of personal physical danger.  K.A.C. v. Benson, 527 N.W.2d 553, 559 (Minn. 1995).  “In other words, [appellant] presents a valid claim when she experiences a reasonable anxiety, with physical symptoms, from being in a situation where it was abundantly clear that [appellant] was in grave personal peril for some specifically defined period of time.”  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 408 (Minn. 1998) (quotation omitted).  When a plaintiff was not within the zone of danger, a plaintiff may still be able to bring a claim of negligent infliction of emotional distress if the plaintiff can show “a direct invasion of her rights, such as defamation, malicious prosecution, or other willful, wanton, or malicious conduct.”  Stead-Bowers, 636 N.W.2d at 343.     

            Appellant argues that, by definition, the alleged assault and false imprisonment by Schipp was willful or malicious conduct.  Appellant also argues that she was within the “zone of danger” due to the fact that (1) Schipp acted in a harassing and volatile manner toward appellant; (2) Schipp used threatening and intimidating language and gestures during the meeting; (3) there were no barriers between the women and they were three to four feet apart; (4) appellant was restrained from leaving the room; and (5) appellant claims Schipp took two steps toward her.  “To be within the ‘zone of danger,’ the plaintiff must show that the defendants placed her within a zone of danger of physical impact, prompting reasonable safety concerns and causing severe emotional distress and resultant physical injury.”  Id. (quotation omitted).  While the May 9 incident may rise to the level of intimidation of appellant by Schipp, appellant was not within a “zone of danger” of physical impact, prompting reasonable safety concerns resulting in severe emotional distress and physical injury.  An email from appellant to Loe several days after the incident reflects that following the Schipp incident, appellant was “physically ill . . . [and] distraught all weekend.”  Appellant’s physical manifestations do not rise to the level of severe emotional distress.

Because appellant’s assault claim fails as a matter of law, and appellant failed to establish that she was within the zone of danger with physical manifestations that rose to the level of severe emotional distress, appellant cannot proceed with her claim for negligent infliction of emotional distress.  Therefore, the district court did not err in dismissing her claim of negligent infliction of emotional distress. 

Vicarious Liability (Respondeat Superior)

            Appellant argues that, when viewed in a light most favorable to her, she has set forth sufficient facts to sustain a claim for vicarious liability (respondeat superior) and the district court erred in dismissing her claim.  An employer may be vicariously liable for the torts of its employees committed within the course and scope of employment.  Hagen v. Burmeister & Assocs., Inc., 633 N.W.2d 497, 504 (Minn. 2001).  The underlying torts for appellant’s vicarious-liability claim are the alleged assault, false-imprisonment claim, and negligence claims.  As stated earlier, appellant has failed to establish sufficient evidence to sustain the assault claim; therefore, the vicarious-liability claim based on the alleged assault fails as a matter of law.  Appellant’s negligence claim is also based on the incident that occurred during the May 9 meeting with Schipp.  Appellant’s negligence claim, however, is based merely on her assertion that Schipp’s negligent acts took place within the course and scope of employment.  Appellant fails to allege any specific facts to support a claim for negligence.  The party opposing a motion for summary judgment may not rest on “mere averments or denials,” but must present specific facts that establish the existence of a genuine issue for trial.  Minn. R. Civ. P. 56.05. 

            The Minnesota Supreme Court has interpreted the respondeat-superior doctrine to hold an employer liable “for even the intentional misconduct of its employees when (1) the source of the attack is related to the duties of the employee, and (2) the assault occurs within work-related limits of time and place.”  Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999) (quotation omitted).  “[A]n important consideration in determining whether an act is related to the duties of employment is whether the act was foreseeable.”  Hagen, 633 N.W.2d at 504.  During the May 9 meeting, Schipp informed appellant that she would not be hired as the Agape program coordinator.  The discussion between Schipp and appellant was clearly employment related.  Because a fact question exists regarding whether Schipp was acting within the scope of her employment during the incident, and if the false imprisonment was foreseeable, the district court erred in dismissing the vicarious-liability (respondeat superior) claim as a matter of law as it relates to appellant’s false-imprisonment claim.  This issue is reversed and remanded to the district court for further proceedings.

Minn. Stat. § 626.556 (2004) Violation

            Appellant argues that, when viewed in a light most favorable to her, she has set forth sufficient facts to sustain a claim for violation of Minn. Stat. § 626.556, subd. 4, and the district court erred in dismissing her claim.  Minn. Stat. § 626.556, subd. 4a provides:

            (a) An employer of any person required to make reports under subdivision 3 shall not retaliate against the person for reporting in good faith abuse or neglect pursuant to this section, or against a child with respect to whom a report is made, because of the report.

 

. . . .

 

(c) There shall be a rebuttable presumption that any adverse action taken within 90 days of a report is retaliatory.  For purposes of this paragraph, the term “adverse action” refers to action taken by an employer of a person required to report under subdivision 3 which is involved in a report against the person making the report or the child with respect to whom the report was made because of the report, and includes but is not limited to:

 

(1) discharge, suspension, termination, or transfer from the facility, institution, school, or agency;

 

(2) discharge from or termination of employment;

 

(3) demotion or reduction in remuneration for services; or

 

(4) restriction or prohibition of access to the facility, institution, school, agency, or persons affiliated with it. 

 

            It is undisputed that appellant made written reports of alleged child maltreatment in September 2001 and October 2001.  Because appellant filed actual reports, she falls under the protection of the statute.  See Cannon v. Habilitative Svcs., Inc., 544 N.W.2d 790, 793-94 (Minn. App. 1996), review denied (Minn. May 21, 1996).  Appellant contends that Yu changed her performance evaluation from “exceeds expectations” to “meets expectations” because of the child-maltreatment reports.  Further, appellant claims that during the meeting, Yu told her that he was angry with her because she went over his head when she reported the abuse.  Appellant alleges that she felt extremely uncomfortable during the meeting.  Appellant argues that there is a causal and continuing connection between appellant filing the child-maltreatment reports, the incident with Schipp on May 9, and respondents’ decision not to renew her teaching contract for the 2003-04 school year.  

The alleged retaliatory actions taken against appellant—the changing of her performance evaluation in May 2002 and the nonrenewal of her teaching contract in May 2003­—did not occur within the 90-day rebuttable-presumption period.  Appellant was also promoted in the summer of 2002 to the director of the SNAP program and she remained in this position throughout the 2002-03 school year.  Finally, the fact that Yu changed appellant’s performance evaluation is not an adverse action prohibited by the statute and it is undisputed that it is the responsibility of the building principal to complete employee-performance evaluations.  The fact that Yu rated appellant as “meets expectations” is not an adverse employment action.  Because appellant has failed to establish that there is a causal and continuing connection between the child-maltreatment reports, the changing of her performance evaluation, and the nonrenewal of her teaching contract, the district court did not err in dismissing her violation of the Minn. Stat. § 626.566 claim. 

Whistleblower-statute Violation

 

            Appellant argues that, when viewed in a light most favorable to her, she has set forth sufficient facts to sustain a claim under the whistleblower statute, Minn. Stat. § 181.932, subd. 1(a) (2004), and the district court erred in dismissing her claim.  To establish a prima facie case under the whistleblower statute, the employee is required to show “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.” Rothmeier v. Inv. Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).  As stated above, while appellant has established that the child-maltreatment reports made in 2001 were statutorily protected conduct, she has failed to establish any adverse employment action by the employer which is causally connected to the filing of the reports.  Because appellant cannot establish a prima facie case under the whistleblower statute, the district court did not err in dismissing her whistleblower claim.

            Affirmed in part, reversed in part, and remanded.