Filed June 6, 2006

Affirmed

Randall, Judge

Anoka County District Court

File No. C5-04-6062

Dawn C. Van Tassel, Maslon, Edelman, Borman, & Brand, L.L.P., 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant);

Stephen W. Cooper, The Cooper Law Firm, Chartered, Loring Green East, 1201 Yale Place, Suite A100, Minneapolis, MN 55403 (for respondent).

Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge.

Respondent Jennifer Olson, a former employee of appellant Movie Gallery Services, originally sued Movie Gallery for sexual harassment, hostile-work-environment discrimination, and assault and battery. Movie Gallery obtained summary judgment on Olson’s sexual-harassment and discrimination claims but not on Olson’s assault and battery claims. On appeal from the denial of summary judgment in its favor on those claims, Movie Gallery argues that (1) Olson’s exclusive remedy is provided by the Workers’ Compensation Act and the district court therefore lacks jurisdiction over her assault and battery claims; and (2) the district court erred by concluding that a “mere averment” in a complaint is sufficient to raise a question of fact as to whether an assault and battery was personally motivated. We affirm.

FACTS

Respondent Jennifer Olson was employed part-time by appellant Movie Gallery Services, Inc. as a customer service associate. Patrick Marpoe (Marpoe), also employed by appellant, was manager of the store where respondent worked.

Respondent alleges that Marpoe assaulted her at work by snapping and unhooking her bra, kicking and slapping her buttocks, and pulling her underwear up from behind. Respondent reported Marpoe’s conduct to Todd Horan (Horan), appellant’s district manager, who conducted an investigation and was unable to substantiate most of respondent’s allegations, except for the incident in which Marpoe kicked respondent in the buttocks. As a result of his investigation, Horan issued an oral warning to Marpoe. Approximately two months later, Marpoe terminated respondent’s employment, claiming that she failed to comply with company policy.

After termination of her employment, respondent brought suit against appellant alleging sexual harassment, reprisal, and aiding and abetting under the Minnesota Human Rights Act (MHRA), and tort claims of assault and battery, intentional infliction of emotional distress, and negligent hiring, firing, and retention. Appellant moved the court for summary judgment as to all of respondent’s claims.

The district court granted appellant’s summary judgment motion as to respondent’s claims, except her claims for reprisal, and assault and battery. All other claims were dismissed with prejudice.

In denying appellant’s summary judgment motion for respondent’s assault and battery claim, the district court reasoned that although respondent failed to offer any evidence to support her claim that Marpoe’s motivation for the alleged assault and battery was personal, as required under the Workers’ Compensation Act (WCA) assault exception[1], “recent case law appears to provide that a mere averment by a plaintiff in a complaint may be sufficient to create a question of fact when the alleged offensive conduct by fellow employees tends to be unprovoked and spontaneous.” The district court found that Marpoe’s conduct was unprovoked and spontaneous and determined that there were genuine issues of material fact regarding whether Marpoe’s motivation was personal and arose from circumstances wholly unconnected with the employment.

On appeal, appellant argues that the district court lacked jurisdiction over respondent’s assault and battery claim pursuant to the WCA. It is appellant’s argument that respondent’s assault and battery claim clearly arises out of her employment with appellant and is therefore barred by the exclusivity provision of the Worker’s Compensation Act. Appellant also argues that the district court erred in holding that a “mere averment” in a complaint is sufficient to create a question of fact as to whether an assault and battery was personally motivated and thus, preclude summary judgment.

D E C I S I O N

Appellant argues that respondent’s assault and battery claim is exclusively based on her employment at Movie Gallery and therefore, the district court lacks jurisdiction under the WCA.

On appeal from summary judgment, this court must examine two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its interpretation of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997). A district court’s decision on a motion for summary judgment is reviewed de novo. Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 827 (Minn. 2000). Questions involving the interpretation of a statute and the determination of whether a district court has subject-matter jurisdiction are legal questions subject to de novo review. Gunderson v. Harrington, 632 N.W.2d 695, 701 (Minn. 2001).

Minn. Stat. § 176.021, subd. 1 (2002), requires employers to “pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.” As a result, the WCA provides the exclusive remedy to employees for personal injuries arising out of and in the course of employment. Id.; McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995). When the WCA provides the employee’s exclusive remedy, district courts are without subject-matter jurisdiction, unless an employee facing an exclusivity defense can show that the alleged conduct falls within an exception to the coverage of the Act. McGowan, 527 N.W.2d at 833. One exception to the WCA is commonly known as the “assault exception.” The WCA defines a personal injury as an injury arising out of and in the course of employment but under the assault exception, a personal injury “does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.” Minn. Stat. § 176.011, subd. 16 (2002).

There are three categories of assault cases that occur at the workplace, two of which are compensable under the WCA, and one that is non-compensable under the WCA but actionable under common law. McGowan, 527 N.W.2d at 834. Assaults will be compensable under the WCA if (1) the provocation or motivation for the assault arises solely out of the activity of the victim as an employee, or (2) the assault was neither directed against the victim as an employee nor for reasons personal to the employee. Id. The final category defines an assault as non-compensable under the WCA if the assailant is motivated by personal animosity toward the victim, arising from circumstances wholly unconnected with the employment. Id.

We conclude that respondent’s assault and battery claim falls within the latter category and is within the district court’s subject-matter jurisdiction. The situation presented in this case is nearly identical to Stengel v. East Side Beverage. 690 N.W.2d 380 (Minn. App. 2004), review denied (Minn. Feb. 23, 2005).

In Stengel, the plaintiff brought a claim against her employer for sexual discrimination under the MHRA along with other claims including common-law assault and battery. Id. at 381-82. The conduct that led to plaintiff’s claims included co-workers making sexual comments directed toward plaintiff and touching her inappropriately, such as grabbing her buttocks and snapping her bra. Id. at 382. Plaintiff’s employer moved for summary judgment arguing that the district court lacked subject-matter jurisdiction because the WCA provided the plaintiff’s exclusive remedy. Id. The employer argued that the plaintiff’s claims were covered under the WCA because her injuries occurred at work, during working hours, and while she was performing her job duties. Id. at 385. In response, the plaintiff argued that her injuries were excluded from coverage under the WCA’s assault exception because the assault was intentional, personal, and unrelated to her job duties as a graphic designer of signs. Id. at 386.

The district court dismissed several of respondent’s claims but denied the employer’s motion for summary judgment with respect to the plaintiff’s assault and battery claim. Id. at 382. The district court found that there was a genuine issue as to whether the assault was motivated by personal animosity toward plaintiff that was wholly unconnected with the employment. Id.

In concluding that it could not say as a matter of law that the plaintiff was assaulted solely because of the nature of her job or in the capacity as an employee, this court analyzed the nature of the plaintiff’s job. Id. at 386. “The central question is not whether the employee was injured merely while at his or her employment, but whether the injury occurred because the employee was at the job ‘in touch with associations and conditions inseparable from it.’” Id. (quoting Johnson v. Ramsey County, 424 N.W.2d 800, 805 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988)). This court concluded that “there was no peculiar hazard inherent in making signs . . . nothing about being a sign-maker was a causal factor in the alleged assaults.” Id. at 386. Also factoring into this court’s decision was the fact that the employer failed to demonstrate that all its female employees were subjected to similar assaults. Id. In conclusion, this court interpreted case law to hold that “courts must examine cases on their individual facts to determine whether the employee’s job function was somehow related to the injury. If it is not, then the assault exception applies and the employee’s common-law claim is not barred by the [WCA].” Id.

Applying this court’s analysis in Stengel, the district court has subject-matter jurisdiction over respondent’s assault and battery claim because it is non-compensable under the WCA as a result of the assault exception. Marpoe’s assaults were intentional, motivated by personal desires, and had no connection with respondent’s job duties. See Fernandez v. Ramsey Co., 495 N.W.2d 859, 862 (Minn. App. 1993); Johnson, 424 N.W.2d at 805; Yunker v. Honeywell, 496 N.W.2d 419, 421 (Minn. App. 1993), review denied (Minn. April 20, 1993).

Appellant’s argument is based on the decisions in Meintsma v. Loram Maintenance of Way, Inc., 684 N.W.2d 434 (Minn. 2004) and McGowan, 527 N.W.2d 830 (Minn. 1995). Meintsma and McGowan are easily distinguishable from the facts of this case.

In Meintsma, the supreme court determined that injuries sustained by an employee as the result of being spanked with a paddle as a birthday ritual was not within the assault exception of the WCA because the ritual was a company ritual that was part of the company’s culture to which most of the employees were subjected. Id. at 439. There was no personal animosity behind the employee’s injuries. 684 N.W.2d at 439. Here, it was not company policy to snap and unhook respondent’s bra, grab her buttocks, tug at her panties, tickle and kick her, and slap her on the backside. Marpoe was motivated by personal animosity.

In McGowan, the court concluded that injuries sustained by an employee as a result of a rape did not fall within the assault exception of the WCA. 527 N.W.2d at 834. The court concluded that the employee’s job duties were a casual factor in contributing to her injuries as a result of rape. Id. The court reasoned that the “nature of [the employee’s] employment—working in a homeless shelter where she was put at risk to such attacks—was a casual factor contributing to the attack.” Id. Here, it would be a stretch of the reasoning in McGowan to say that stocking movies and helping customers put respondent at risk for bra snapping and unhooking, buttocks grabbing, tickling, kicking, and panty tugging. Respondent testified during her deposition that Marpoe unsnapped her bra while she was working the counter, checking-in movies, while customers were present. On another occasion Marpoe kicked respondent in the buttocks while she stood at the check-in counter, using the computer. Marpoe also tugged at respondent’s panties while she shelved movies. All of Marpoe’s actions occurred out in the open. It is reasonable to assume that a female employee counseling a troubled homeless male behind closed doors puts her at risk for an assault, but it is not reasonable to assume that a female employee working at a movie rental store is at risk for the type of immature conduct by her supervisor.

We conclude the district court properly retained subject-matter jurisdiction over respondent’s assault and battery claim.

II.

The district court found that although respondent failed to offer any evidence to support her claim that Marpoe’s motivation for the assault was personal, “recent case law appears to provide that a mere averment by a plaintiff in a complaint may be sufficient to create a question of fact when the alleged offensive conduct ‘appears to be unprovoked and spontaneous conduct by a fellow employee.’” (citing Kopet v. General Mills, 2005 WL 102651 (Minn. App. 2005)). Based on this analysis, the district court determined that there were genuine issues of material fact regarding whether Marpoe’s motivation was personal and arose from circumstances wholly unconnected with the employment. Appellant argues that the district erred by finding a genuine question of fact based on a mere averment. Appellant argues that a question of fact must be based on “substantial evidence legally sufficient to withstand a directed verdict at trial.”

On appeal from summary judgment, this court must review whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Star Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). The evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). This court reviews de novo whether a genuine issue of material fact exists. Brookfield Trade Ctr., Inc. v. County of Ramsey, 609 N.W.2d 868, 874 (Minn. 2000). This court also reviews de novo whether the district court erred in its application of the law. Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn. 1997).

Appellant argues that in “in considering a party’s motion for summary judgment, it is axiomatic that a genuine issue of material fact must be established by substantial evidence legally sufficient to withstand a directed verdict at trial.” Appellant cites DLH, Inc. v. Russ in support of his argument.

DLH does not hold that “it is axiomatic that a genuine issue of material fact must be established by substantial evidence legally sufficient to withstand a directed verdict at trial.” (emphasis added). In DLH, the court stated, “[w]e have never explicitly held that the standard for granting summary judgment in Minnesota mirrors the standard for directing a verdict, nor do we feel compelled to do so.” 566 N.W.2d 60, 69 (Minn. 1997). The court continued, “[w]e have held, however, that summary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented.” Id. After the court recognized the differences between summary judgment and a directed verdict, i.e., summary judgments are made prior to trial and directed verdicts occur at trial, and analyzing holdings by the United States Supreme Court and precedents from Minnesota courts, the court concluded that “the party resisting summary judgment must do more than rest on mere averments.” Id. at 71. Finally, the court held, “there is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” Id.

Appellant is correct that a mere averment alone is not enough to resist summary judgment. Northfield Care Center, Inc. v. Anderson, 707 N.W.2d 731, 734 (Minn. App. 2006) (quotation omitted). The district court improperly assumed that “recent case law appears to provide that a mere averment by a plaintiff in a complaint may be sufficient to create a question of fact when the alleged offensive conduct ‘appears to be unprovoked and spontaneous conduct by a fellow employee.’” But respondent has shown more than a mere averment. “Unprovoked and spontaneous conduct” by a fellow employee is evidence of conduct wholly unconnected to respondent’s employment. A substantial fact question remains: Was Marpoe’s conduct more likely personal than an integral part of respondent’s employment culture? The record does not point to any peculiar hazard in the video rental business whereby the pure fact of respondent’s employment was a causative factor in Marpoe’s “slap and tickle.” It is difficult to conclude that Marpoe’s motivations could not have been for personal reasons. We find the district court properly denied summary judgment on respondent’s assault and battery claim.

Affirmed.

[1] The assault exception under the WCA excludes from the WCA injuries “caused by the act of a . . . fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.” Minn. Stat. § 176.011, subd. 16.