This opinion will be unpublished and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

A05-1684

 

Michael Harvey,

Appellant,

 

vs.

 

The Wackenhut Corporation,

Respondent,

 

Children’s Health Care a/k/a Children’s Hospital,

Respondent.

 

 

Filed June 13, 2006

Affirmed

Worke, Judge

 

Ramsey County District Court

File No. C2-04-8934

 

Michael Harvey, 4020 Bellaire Avenue, #6, White Bear Lake, MN 55110 (appellant pro se)

 

James F. Roegge, Livia E. Babcock, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondent The Wackenhut Corporation)

 

Daniel R. Kelly, Eric J. Riensche, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for respondent Children’s Hospital)

 

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

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from the district court’s grant of summary judgment in favor of respondents, appellant argues that (1) the district court misapplied the summary-judgment standard; (2) genuine issues of material fact remain; and (3) the district court erred by denying his motions to amend the complaint and for a continuance.  We affirm.  

 D E C I S I O N

Summary Judgment

            Application of Law

            Appellant Michael Harvey first argues that the district court misapplied the summary-judgment standard by maintaining that appellant must provide facts to prove essential elements of the claim.  “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).  To defeat a motion for summary judgment, a party “may not rest upon the mere averments or denials of the adverse party’s pleading but must present specific facts showing that there is a genuine issue for trial.”  Minn. R. Civ. P. 56.05 (emphasis added).  “Speculation, general assertions, and promises to produce evidence at trial are not sufficient to create a genuine issue of material fact for trial.”  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).  Appellant, as the nonmoving party, had to present substantial evidence that a genuine issue for trial exists.  DHL, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  The district court applied the correct summary-judgment standard and did not err in applying the law. 

            Genuine Issues of Material Fact

            Appellant next argues that genuine issues of material fact remain.  It is undisputed that appellant worked as a security officer for respondent The Wackenhut Corporation (TWC), a contract security business.  TWC assigned appellant to respondent Children’s Health Care (CHC).  CHC’s security manager received complaints that appellant had given an employee a greeting card and another employee a poem and asked TWC to reassign appellant.  A TWC supervisor met with appellant, and appellant admitted giving the card and poem, but insisted that he had done nothing wrong.  Appellant was asked to submit a written response, and TWC put him on unpaid leave while it investigated.  TWC was unsuccessful in gaining appellant’s cooperation with the investigation and appellant was terminated. 

Defamation 

Appellant argues that CHC defamed him.  The elements of defamation are (1) a false statement, (2) communicated to someone other than the plaintiff, and (3) that harms the plaintiff’s reputation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).

Only statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law.  Thus, if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.

 

Marchant Inv. & Mgmt. Co. v. St. Anthony W.  Neighborhood, 694 N.W.2d 92, 95-96 (Minn. App. 2005) (quotations omitted).  Additionally, truth is a complete defense.  Stuempges, 297 N.W.2d at 255.

            Appellant contends that CHC defamed him when it reported to TWC that appellant engaged in sexual harassment.  Appellant bases this allegation on a statement from his supervisor at TWC, who told him that TWC would treat the information from CHC as a sexual-harassment complaint.  Appellant fails to show that CHC reported a “sexual-harassment” complaint.  CHC reported that appellant gave a card and a poem to two employees, that appellant’s conduct was described as “inappropriate,” and that one employee felt “uncomfortable” and thought it was strange to receive a card from appellant.  First, appellant admitted to giving the card and the poem.  Second, appellant chose not to participate in TWC’s investigation because he was unclear whether the complained-of behavior was “sexual harassment” or just “harassment.” Appellant has failed to show that CHC reported a “sexual-harassment” complaint—a type of complaint that would harm appellant’s reputation. 

            Appellant also argues that he was defamed through e-mails.  An e-mail sent from a female CHC employee to another CHC employee stated that the female employee heard that a “security officer ha[d] been lurking[.]”  The e-mail also stated that this female employee was disturbed and that “[w]ith all the crazy stuff going on in this world, you really have to watch out for yourself.”  The response to the e-mail stated that CHC had “zero tolerance” for such behavior.  These statements are insufficient to support a defamation claim because they are not verifiable facts, and it is true that CHC has a zero-tolerance policy.  The district court did not err in granting summary judgment in favor of CHC on the defamation claim.  

            Fraud 

            Appellant argues that CHC and TWC defrauded him.  The elements of fraud are:

a false representation pertaining to a material past or present fact susceptible of human knowledge, knowledge by the person making the representation of its falsity or assertion of it without knowledge of its truth or falsity, an intention that the other person act on it, or circumstances justifying the other person in so acting, and the other person being in fact reasonably induced to act upon the representation, relying upon it and suffering damage attributable to the misrepresentation.

 

In re Strid, 487 N.W.2d 891, 893-94 (Minn. 1992). 

            Appellant argues that CHC defrauded him by reporting a false sexual-harassment complaint and by failing to investigate the complaints.  First, we have already determined that appellant failed to show that CHC reported a “sexual-harassment” complaint.  Second, appellant suggests that CHC falsely represented in its disciplinary policy that it would investigate harassment claims.  Appellant has failed to show that CHC has not followed its policy.  The service contract between TWC and CHC provided that security officers assigned to CHC would remain TWC employees.  CHC referred the complaints to TWC, and TWC attempted to conduct an investigation, but appellant failed to cooperate.   

            Appellant also argues that TWC defrauded him by failing to follow its disciplinary policy.  Appellant contends that his supervisor stated that the terms of TWC and CHC’s contract prevented her from divulging information to him regarding the complaints.  Appellant’s argument fails.  While TWC attempted to contact appellant during its investigation, appellant repeatedly sent letters to TWC asking for more information; thus, he did not rely on his supervisor’s statement.  The district court did not err in granting summary judgment in favor of CHC and TWC on the fraud claims.    

            Negligence

            Next, appellant argues that CHC was negligent for failing to comply with its sexual-harassment policy.  Appellant contends that CHC affirmed a duty to non-employees in its harassment policy to investigate before reporting to TWC.  The scope of a legal duty is a question of law.  Zacharias v. Minn. Dep’t of Natural Res., 506 N.W.2d 313, 319 (Minn. App. 1993), review denied (Minn. Nov. 16, 1993).  The elements of a negligence claim are: “(1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  If there are no facts in the record giving rise to a genuine issue for trial as to any one of the essential elements, respondents were entitled to summary judgment as a matter of law.  See id.

            First, CHC did not owe appellant a duty because the contract between TWC and CHC provided that TWC employees assigned to CHC would not be CHC employees.  Additionally, TWC’s security-officer handbook provided that no employee would have a vested interest in any assignment and may be removed or transferred for any reason, including a client-directed request.  Thus, CHC could have asked for appellant’s reassignment for any reason or for no reason and did not need to first investigate the complaint.  Finally, the failure to follow a harassment policy does not breach a legal duty. 

            Appellant also argues that TWC owed him a duty to investigate.  Failure to follow a sexual-harassment policy does not breach a legal duty.  More importantly, TWC tried to investigate, but appellant chose not to participate and was terminated as a result.  The district court did not err in granting summary judgment in favor of CHC and TWC on the negligence claims.

            Harassment

            Appellant also argues that CHC harassed him by reporting a sexual-harassment complaint to TWC.  Appellant contends that TWC harassed him, but fails to assert how he believes TWC harassed him.  Minnesota does not recognize a generalized cause of action for harassment and appellant fails to cite a statute or caselaw that supports his claim.  But if appellant is claiming that he was in a hostile work environment, he must show: (1) membership in a protected group; (2) that he was subject to unwelcome harassment; (3) a causal nexus existed between the harassment and his membership in the protected group; (4) that the harassment affected a term, condition, or privilege of employment; and (5) that appellant’s employer knew or should have known of the harassment and failed to take prompt and effective remedial action.  Goins v. W. Group, 635 N.W.2d 717, 725 (Minn. 2001).  Appellant has not shown that he is a member of a protected group; thus, the district court did not err in granting summary judgment in favor of respondents.

            Breach of Contract and Wrongful Termination

            Appellant argues that TWC breached his employment contract.  “Unless otherwise agreed between the parties, the employment relationship is at-will[.]”  Aberman v. Malden Mills Indus., Inc.,414 N.W.2d 769, 771 (Minn. App. 1987).  Under Minnesota law, an at-will employee can be discharged for any reason or no reason at all.  Vonch v. Carlson Cos.,439 N.W.2d 406, 408 (Minn. App. 1989), review denied (Minn. July 12, 1989). An at-will employee has no claim for wrongful termination or breach of contract once discharged.  See Gunderson v. Alliance of Computer Prof’ls, Inc.,628 N.W.2d 173, 183-84 (Minn. App. 2001), review granted (Minn. July 24, 2001) and appeal dismissed (Minn. Aug. 17, 2001).  Further, an employer may include a disclaimer as a valid expression of its intention to maintain an at-will relationship.  Audette v. Ne. State Bank, 436 N.W.2d 125, 127 (Minn. App. 1989).  TWC’s security-officer handbook provided:

                        Nothing herein contained shall be construed to be a contract between the employer and the employee.  Additionally, this handbook is not to be construed by any employee as containing binding terms and conditions of employment.  The company retains the absolute right to terminate any employee, at any time, with or without good cause.

 

            Appellant was an at-will employee.  But appellant contends that the disclaimer should be rejected because it provides TWC with an absolute right to terminate any employee, at any time, and nobody can have an absolute right to anything.  Appellant argues that this absolute right permits TWC to terminate an employee based on race, religion, or gender.  This argument fails because any discharged employee who can show membership in a protected class or a discriminatory motive has a civil-rights cause of action against TWC or any employer.  See Goins, 635 N.W.2d at 722.  Appellant also argues that a jury should determine whether TWC’s disciplinary policy creates an employment contract.  There is no issue remaining for a jury, however, because TWC’s disclaimer explicitly defined the employment relationship.  TWC could have discharged appellant for any reason or for no reason at all.  TWC discharged appellant because of appellant’s failure to cooperate with their investigation.  The district court did not err in granting summary judgment in favor of TWC on this claim.

            Tortious Interference with Contract

            Appellant next argues that CHC tortiously interfered with his employment contract when it reported the complaints.  Tortious interference with a contract requires: “(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract; (3) his intentional procurement of its breach; (4) without justification; and (5) damages resulting therefrom.”  Bouten v. Richard Miller Homes, Inc.,321 N.W.2d 895, 900 (Minn. 1982).  Here, there was no employment contract, and appellant has failed to show that CHC was not allowed to report a complaint.  Further, the record shows that a TWC client could request reassignment at any time; thus, CHC did not even have to have a reason to ask for appellant’s reassignment.  The district court did not err in granting summary judgment in favor of CHC on this claim.

Motion to Amend Complaint

Appellant argues that the district court erred in denying his motion to amend the complaint to include a libel claim against CHC, attorney fees, and punitive damages.  The decision to allow a party to amend a complaint after an answer has been filed is within the discretion of the district court, and the district court should liberally grant such motions when justice so requires and it will not prejudice the adverse party.  Minn. R. Civ. P. 15.01.  The district court’s ruling will not be reversed absent a clear abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            The district court did not abuse its discretion in denying appellant’s motion.  First, appellant had asserted a defamation claim against CHC.  Defamation ordinarily is established by proof of a statement communicated to someone other than the claimant that is false and that harmed the claimant’s reputation and esteem in the community.  Weinberger v. Maplewood Review,668 N.W.2d 667, 673 (Minn. 2003).  Therefore, defamation includes libel and slander.  Second, appellant does not provide authority under which he is entitled to attorney fees.  “Generally, attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.”  Northfield Care Ctr., Inc. v. Anderson, 707 N.W.2d 731, 735 (Minn. App. 2006) (quotation omitted).  Further, appellant is pro se and is not incurring any attorney fees.  Finally, a motion to amend to claim punitive damages must allege the applicable legal basis for awarding punitive damages “accompanied by one or more affidavits showing the factual basis for the claim.”  Minn. Stat. § 549.191 (2004).  Appellant did not specify a legal basis for seeking punitive damages.  The district court did not abuse its discretion in denying appellant’s motion to amend the complaint. 

Motion for Continuance

Finally, appellant argues that the district court erred by denying his request for a continuance.  “The granting of a continuance is within the discretion of the [district] court and its ruling will not be reversed absent a clear abuse of that discretion.”  Chahla v. City of St. Paul, 507 N.W.2d 29, 31 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993). “The test is whether a denial prejudices the outcome of the trial.”  Id.at 32. 

            The district court must address two questions before ruling on a motion to continue: (1) whether the plaintiff has been diligent in obtaining or seeking discovery prior to the motion; and (2) whether the plaintiff is seeking discovery in the good-faith belief that material facts will be uncovered or merely engaging in a fishing expedition.  Rice v. Perl,320 N.W.2d 407, 412 (Minn. 1982).  Even if the party exhibited diligence in seeking discovery, if the discovery is not reasonably calculated to uncover material facts, the motion to continue should be denied.  Id. Summary judgment is not premature when discovery would neither aid the district court nor change the result of the summary- judgment motion.  McCormick v. Custom Pools, Inc.,376 N.W.2d 471, 477 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).

            Appellant argues that he did not have an opportunity to conduct discovery.   During the summary-judgment-motion hearing, appellant stated that he strategically chose not to conduct depositions until respondents deposed him.  Respondents deposed appellant on February 16 and March 21, 2005.  Appellant had two months to conduct depositions that he claimed would take no longer than “two hours.” Further, appellant’s case had been in the district court since September 2004, allowing him sufficient time to conduct discovery.  Appellant was not diligent, and the district court correctly determined that a continuance would not have helped appellant’s case survive summary judgment.   

            Affirmed.