Richard Waddell, Respondent, vs. State of Minnesota, et al., Appellants. C9-97-1026, Court of Appeals Unpublished, January 27, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1026

Richard Waddell,

Respondent,

vs.

State of Minnesota, et al.,

Appellants.

Filed January 27, 1998

Affirmed

Holtan, Judge^*^*

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

Hennepin County District Court

File No. EM 96-005555

Jesse Gant III, 500 Flour Exchange Building, 310 South Fourth Avenue, Minneapolis, MN 55415 (for respondent)

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

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge.

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

HOLTAN, Judge

The district court properly denied employer's motion for summary judgment based on official immunity because the employer's acts qualified as malicious.

FACTS

Respondent Richard Waddell was employed by the Minnesota Veterans Homes Board from 1986 to 1996, first working at the Oak Terrace Nursing Home and then at the Minneapolis Veterans Home (MVH). His employment as a plant maintenance engineer was terminated on July 3, 1996. Waddell brought suit against appellants State of Minnesota and former supervisor James Thompson, alleging sexual orientation discrimination, retaliatory discharge, and tortious interference with employment. Waddell charged that his discharge was in retaliation for complaints he made regarding the MVH's violations of the Clean Indoor Air Act, in violation of the Minnesota Whistleblower Act, Minn. Stat. § 181.932, subd. 1(a) (1994). Waddell's tortious contract interference claim was based on his assertion that Thompson threatened and harassed him. Appellants moved for summary judgment. The district court granted summary judgment on the discrimination claim, but denied appellants' motion for summary judgment based on official immunity. This appeal followed.

D E C I S I O N

A denial of a defense motion for summary judgment based on claims of governmental immunity is immediately appealable. McGovern v. City of Minneapolis, 475 N.W.2d 71, 72 (Minn. 1991). A defendant seeking immunity bears the burden of proving it fits within the scope of that immunity. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). On appeal from a denial of summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court properly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The determination of whether official immunity applies is a legal question that this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

I. Whistleblower Claim

Statutory immunity does not apply to claims made under Minnesota's Whistleblower Act. Janklow v. Minnesota Bd. of Exam'rs, 552 N.W.2d 711, 718 (Minn. 1996). For this reason, appellants focus their immunity argument on the applicability of official immunity, arguing that Thompson is protected by official immunity, and that therefore the state is protected by vicarious official immunity.

Official immunity is common law immunity that applies to actions involving an individual state official, and protects that official's exercise of policy judgment. Id. at 716. Government officials "are accorded near complete immunity for their actions in the course of their official duties," as long as their actions do not exceed their legal discretion. Id. Official immunity does not protect an official who willfully violates a clearly established right of which a reasonable person would have known. Hyland v. State, 509 N.W.2d 561, 564-65 (Minn. App. 1993), review denied (Minn. Feb. 24, 1994). In determining whether official immunity applies, this court must examine the official's particular acts. Id. at 565.

The district court wrote in its memorandum:

Thompson's direct violations of the Clean Indoor Air Act and his encouragement of others to do the same; harassing phone calls to Plaintiff's house; the more severe punishment of Plaintiff for idling on the job than another employee similarly idle on the job; prohibition of Plaintiff's use of connecting hallways to travel between buildings; and disregard of seniority for overtime opportunity; and Defendant's direct threats to cause Plaintiff to be fired, are proof of malice.

We agree. Appellants argue that the time sequence of those acts, and the violations of work rules by Waddell, do not support the court's finding that Thompson's acts are proof of malice which justifies denial of appellants' motion for summary judgment. A determination of malice in an official's actions may be resolved by summary judgment. Id. However, these acts, of which appellants had adequate knowledge, raise genuine issues of material fact for resolution by the district court. Minn. R. Civ. P. 56. Thus, the district court properly denied summary judgment.

II. Tortious Interference

Appellants argue that Thompson is protected by the doctrine of official immunity from Waddell's claim of tortious interference with an employment contract. However, as discussed above, willful and malicious acts by an official are exempt from official immunity. Tortious interference, when alleged against an officer, agent, or employee of the same organization, must involve malice or bad faith. Nordling v. Northern States Power Co., 478 N.W.2d 498, 506-07 (Minn. 1991). Therefore, official immunity cannot logically protect an official from a tortious interference claim by an employee of the official's organization.

Affirmed.