Hubert H. Humphrey, III, Attorney General, Gary R. Cunningham, Asst. Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Lansing, Judge, and Foley,[*] Judge.

Appellant challenges the summary judgment granted to respondent Department of Human Services on appellant's claims under 42 U.S.C. § 1983, the Whistleblower Act, and the Minnesota Human Rights Act. Because the Department is not liable to suit under these laws and because appellant failed to allege an essential element of each claim, we affirm.

The BCA categorizes a subject as "Single State," i.e., having a criminal history only in Minnesota, "Multi State," i.e., having a criminal file with the FBI, or "Not Determined," i.e., the BCA cannot determine whether other conviction records exist. Fingerprints are requested of all those in the "Multi State" or "Not Determined" categories so their files can be obtained from the FBI.

The BCA categorized appellant as "Not Determined" and requested his fingerprints. After he refused to provide them, DHS notified him and Eden Programs that his failure to provide fingerprints had resulted in his disqualification to work with patients as a counselor.[1]

Appellant then sued the state and DHS for violation of 42 U.S.C. § 1983, the Whistleblower Act, the Minnesota Human Rights Act, and both negligent and intentional infliction of emotional distress. DHS moved successfully for summary judgment on all counts. On appeal, appellant challenges only the summary judgment on the statutory claims.

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact 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). However, this court does not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). The construction of a statute is a question of law. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

1. The 42 U.S.C. § 1983 Claim

"[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989). See also Bird v. State, Dep't of Pub. Safety, 375 N.W.2d 36, 43 (Minn. App. 1985) ("the Department of Public Safety itself is not a 'person' which may be sued under section 1983"). Therefore, the entities appellant sued under section 1983 were not "persons" capable of being sued under it.

Appellant argues that the state and DHS are "persons" for purposes of his section 1983 action because they waived immunity by consenting to be sued when they proceeded with the lawsuit instead of raising the "nonperson" status as a defense in their answer. He cites Will:

Section 1983 * * * does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the state has waived its immunity.

Id., 491 U.S. at 66, 109 S. Ct. at 2309 (emphasis added). There is no merit to appellant's claim that the state waived its immunity defense here. An immunity is not waived if it is not included in the answer. Rehn v. Fischley, ___ N.W.2d ___, ___ (Minn. Jan. 2, 1997). The state pled its defense under Minn. R. Civ. P. 12.02, seeking dismissal for "failure to state a claim for which relief can be granted." There was no waiver. Further, given the very clear holding of Will that a state and its officials are not persons for the purpose of section 1983 and that Congress did not intend the states to be subject to suit under section 1983, appellant's argument that he may sue the state and DHS under section 1983 is unpersuasive.

Even assuming arguendo that the state and DHS were liable to suit under section 1983, appellant's failure to allege any deprivation of federal constitutional rights would nullify his claim. Appellant does not dispute the point, but argues that the district court addressed it sua sponte, thereby prejudicing appellant. However, the state and DHS observe that in their reply memorandum in support of summary judgment they challenged the section 1983 claim on the grounds that appellant alleged no violation of federal constitutional or statutory rights. Therefore, the trial court did not raise the issue sua sponte.

Both because the state and DHS are not liable to suit under section 1983, and because appellant alleged no violation of a federal constitutional right, there was no error of law in granting summary judgment dismissing appellant's section 1983 claim.

2. The Whistleblower Claim

Minn. Stat. § 181.932 (1994) provides that:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee * * * because (a) the employee * * * in good faith reports a violation or suspected violation of any federal or state law or rule * * *.

An employee is defined as one who "performs services for hire in Minnesota for an employer"; an employer is "any person having one or more employees * * *." Minn. Stat. § 181.931, subds. 2, 3. Appellant never performed services for DHS or the state for hire; therefore, he was not their employee pursuant to Minn. Stat. § 181.931, subd. 2, and they were not his employers. Appellant's Whistleblower claim was dismissed on the grounds that it was not brought against an employer.

Appellant argues that the term "employer" should be "liberally construed." However, the term "employer" is not ambiguous. Minn. Stat. § 645.16 (1996) provides that if the words of a statute in their application to an existing situation are clear and unambiguous, the letter of the law is not to be disregarded under the pretext of "pursuing the spirit." The Whistleblower statute is clear in establishing employer liability, but it contains no ground whatever for extending that liability to those who are not employers.

Assuming arguendo that the state and DHS were liable to suit under the Whistleblower statute as appellant's employers, the claim would fail because appellant failed to show that he was engaged in a protected action. To establish a prima facie case under the Whistleblower statute, a plaintiff must show that he was engaged in a protected action, that there was adverse employment action, and that there was a causal connection between the two. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Appellant does not assert that refusing to provide fingerprints was a protected activity, but again argues that the district court raised this issue sua sponte to appellant's prejudice. Because the fact that the state and DHS were not appellant's employers provided a more than adequate basis for dismissing the Whistleblower claim, appellant was not prejudiced by the court's observation that he was not engaged in a protected action.[2] There was no error of law in dismissing the Whistleblower claim.

3. The Minnesota Human Rights Claim

Minn. Stat. § 363.03, subd. 1(2) (1994), provides that it is an unfair employment practice "[f]or an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, or age" to discharge or discriminate against an employee. The factors for determining employer status under the Minnesota Human Rights Act are the right to control the manner and means of performance, the mode of payment, the furnishing of materials or tools, the control of the premises where the work is done, and the right of the alleged employer to discharge. State by Johnson v. Porter Farms, Inc., 382 N.W.2d 543, 549 (Minn. App. 1986). Pursuant to Minn. Stat. § 181.931, subd. 3, Eden Programs, not the state or DHS, was appellant's employer: Eden Programs hired appellant, controlled the manner and means of his performance, paid him, provided him with a workplace, and had the exclusive right to discharge him. We are unpersuaded by appellant's argument that because the state provided funds to Eden Programs, the state was in fact his employer: there is no basis for regarding everyone working for an organization that receives funds from the state as a state employee. Equally unpersuasive is appellant's argument that DHS was his employer because it had the right to discharge him. DHS neither discharged appellant nor required Eden Programs to do so; it merely reported that appellant's background check disqualified him from working with patients.

Even assuming the state and DHS were appellant's employers, appellant's human rights claim would fail because appellant did not make a prima facie case of discrimination. He failed to show that he suffered adverse employment action in circumstances suggesting racial discrimination or that members of an unprotected class were treated differently.

The crux of a disparate treatment claim involving an employer's decision to discharge an employee is that the employer is treating that employee less favorably than others on the basis of an impermissible classification.

Hubbard, 330 N.W.2d at 442.

Appellant argues that because the state did not require the fingerprints of all Caucasian males with criminal records who were working as counselors, it discriminated against him. However, DHS required fingerprints from all those with a "Not Determined" or "Multi State" classification; race was irrelevant in this determination. Appellant does not allege either that Caucasians classified as "Not Determined" or "Multi State" were not asked for fingerprints or that Caucasians who refused to supply fingerprints were not disqualified from working as counselors. There was no error of law in a summary judgment dismissing appellant's Minnesota Human Rights Act claim.

All three of appellant's claims fail both because the entities he sued were not subject to claims under the relevant statutes and because appellant failed to allege an essential element of each cause of action. We see no error of law in the summary judgment dismissing his claims.

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹Appellant agreed to provide fingerprints if one of three special arrangements was made for the review of his FBI file. DHS declined all three options on the grounds that if any one were used for appellant, the same procedure would need to be available to every other subject of a background check.

[ ]²We note that the Whistleblower statute prohibits employers from taking action against employees who participate in investigations, not against employees who refuse. Minn. Stat. § 181.932, subd. 1(b).