Winona County District Court

File No. C6-95-417

Daniel J. Heuel, Muir, Heuel, Carlson & Spelhaug, P.A., 404 Marquette Bank Building, P.O. Box 1057, Rochester, MN 55903 (for respondent)

Hubert H. Humphrey III, Attorney General, Steven M. Gunn, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for appellants)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mansur, Judge.

Respondent brought suit claiming, in part, that he was discriminated against on the basis of age, gender, and national origin in violation of the Minnesota Human Rights Act. The district court refused to grant appellants' summary judgment on their claim that they are protected by official immunity, ruling that genuine issues of material fact exist. We affirm.

The faculty search was conducted pursuant to the procedures set forth in WSU Regulation Number 5-2, entitled Procedures for Affirmative Action Recruiting and Hiring (Regulation 5-2). These procedures call for, inter alia, a search committee to be established and the drafting of a notice of vacancy, a rating form, and an interview form. The notice of vacancy is to include all the required qualifications for the open position and these criteria are incorporated into the rating and interview forms. The search committee is to review all applications in light of the minimum criteria set forth in the rating form. Then, the search committee recommends to the appropriate dean those candidates who should be invited for an on-campus interview.

Following the on-campus interviews, the search committee's recommendations go to the department chair, the appropriate dean, the affirmative action officer, and the vice-president of academic affairs, who in turn recommend the best qualified candidate to the president. The president makes the final decision to hire and authorizes the appropriate dean to make an offer to the successful candidate.

In the present case, respondent Dr. Mark Stedman, who had held the Rochester position for the past seven years (two years as an adjunct professor and the remaining five years as a full-time professor under an annual fixed-term contract), was among fifteen applicants applying for the position. The list of applicants was narrowed down to Dr. Stephen Buggie, Gloria Marmolejo, then a graduate student at the University of Wisconsin-Madison, and respondent. At the time, Marmolejo did not have her Ph.D., but was what is known as ABD, or "all but dissertation" or "all but defended." She expected to receive her Ph.D. shortly and had not submitted her application because had she done so, her graduate fellowship would have ended and her student visa would have expired, forcing her to return to Mexico. Prior to the on-campus interviews, the search committee, comprising WSU psychology professors Dr. Peter Miene, Dr. Richard Deyo, and Dr. Leo Soriano, rated Buggie as the top candidate, Marmolejo second, and respondent third. Miene and Deyo are white males, while Soriano is of Filipino origin. Following the on-campus interviews, the search committee rated Marmolejo first, Buggie second, and respondent third. The interviews consisted of a 30- to 40-minute "job talk" presentation to the search committee. According to Miene and Deyo, Marmolejo's interview went well and she impressed the committee members. Likewise, they said Buggie's interview also made a positive impression on the committee. In contrast, Miene and Deyo felt that respondent "bombed" his interview and reported this to Soriano, who could not attend.

The committee recommended that Marmolejo be offered the position and that if she did not accept, the position should be offered to Buggie. The committee did not recommend respondent for the position and recommended that if neither Marmolejo nor Buggie accepted, a new search should be conducted.

On August 25, 1994, Bonnie Buzza, the Dean of the College of Liberal Arts, called Marmolejo to offer her the position. Marmolejo accepted the next day. Dr. Darrell Krueger, the president of WSU, signed the search committee's recommendation to hire Marmolejo on August 29, 1994.

Shortly after accepting the position, Marmolejo made an application to the University of Wisconsin-Madison for her Ph.D. diploma. She defended her dissertation on December 2, 1994, and received her Ph.D. diploma on December 18, 1994.

Respondent brought suit claiming, in part, that he was discriminated against during the hiring process because a lesser-qualified candidate of a different race and gender was employed in his place in violation of the Minnesota Human Rights Act. Following a hearing on April 1, 1996, the district court granted appellants partial summary judgment with regard to respondent's claims for negligence, fraud, breach of contract, and violations of Minn. Stat. § 8.31, subd. 1 (1996). The district court denied appellants' claim of official immunity, ruling that genuine issues of material fact exist precluding summary judgment. Appellants appeal the district court's denial of summary judgment on the issue of official immunity.

Appellants argue that respondent's discrimination claims under the Minnesota Human Rights Act are barred by the doctrine of official immunity. Appellants claim that respondent has failed to present a prima facie case of discrimination because respondent failed to pass the scrutiny of the WSU search committee and that appellant Krueger was not put on notice of any discriminatory hiring practice when Marmolejo was offered the position. Finally, appellants argue that the record is devoid of any genuine of issues of material fact that would preclude summary judgment in this case.

The Minnesota Human Rights Act (MHRA), as codified in Minn. Stat. ch. 363 (1996), renders certain discriminatory conduct in the workplace unlawful. See, e.g., Minn. Stat. § 363.03, subd. 1(2)(c) (1996) (it is an unfair employment practice for an employer because of race, color, creed, religion, national origin, or sex to discriminate against a person with respect to hiring). The provisions of the MHRA are applicable to the state, its departments, agencies, and political subdivisions. Minn. Stat. § 363.01, subd. 28 (1996).

The requirements of a proper prima facie case differ with the facts of each case and in a case based on discrimination in hiring, plaintiff need only establish "the bare essentials of unequal treatment based on race, color, creed, national origin, or sex." Sigurdson v. Carl Bolander & Sons Co., 532 N.W.2d 225, 228 n.2 (Minn. 1995) (citing Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978)).

The doctrine of official immunity provides:

[A] public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.

Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (citation omitted). The doctrine applies to claims brought under the MHRA. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). Only where there is no showing of willfulness or malice will official immunity bar claims of discrimination brought under the MHRA. Id. at 570.

An official acts willfully or maliciously when he or she "intentionally commits an act that he or she then has reason to believe is prohibited." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). The supreme court has further stated that:

there are few circumstances where a public official might be deemed to have committed a discriminatory act under [the MHRA] and yet be deemed not to have committed a malicious or willful wrong under the principally objective standard set forth in Rico.

State by Beaulieu, 518 N.W.2d at 571. Whether an official engaged in discriminatory conduct or acted willfully or maliciously is a question of fact to be resolved by the trier of fact. Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 832 (Minn. App. 1995).

Here, the district court denied appellants' motion for summary judgment on the issue of official immunity, concluding that genuine issues of material fact exist "as to the existence of legitimate, non-discriminatory reasons for the employer's actions and as to whether or not the employer's reasons are a pretext for intentional discrimination." Implicitly, the district court found that the acts of WSU during the search process may have been motivated by consideration of the applicants' race, gender, age, and national origin with these considerations resulting in an unqualified candidate being hired in place of one who was better qualified for the open position. We agree.

Contrary to appellants' assertions, respondent has presented sufficient evidence to establish a prima facie case of discrimination. Respondent has presented evidence (1) that the published criteria for the Rochester teaching position were not followed by the search committee, (2) that Marmolejo may not have possessed the requisite minimum qualifications stated in the notice of vacancy and rating form, (3) that, as shown by notes attached to the applications of Marmolejo and Buggie, race, gender, and national origin were considered by WSU officials during the hiring process, and (4) that Krueger was concerned about possible litigation based on discrimination if he did not authorize the hiring of Marmolejo. These facts indicate that respondent may have been treated unequally during the hiring process because of his race, gender, and national origin and that Krueger had notice of possible discriminatory conduct during the hiring process.

Although appellants have advanced legitimate, nondiscriminatory reasons for the decision not to hire respondent, we conclude, as did the district court, that genuine issues of material fact exist as to whether appellants' actions were based on legitimate, nondiscriminatory reasons and whether those reasons were a pretext for intentional discrimination. As such, summary judgment is inappropriate in the present case.

Affirmed.

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