John Doe, Respondent, vs. City of Minneapolis, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-817

John Doe,

Respondent,

vs.

City of Minneapolis,

Appellant.

Filed December 17, 2002

Reversed and remanded

Klaphake, Judge

Hennepin County District Court

File No. Em 99-229

Jeffrey R. Anderson, Frances E. Baillon, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101; and

Constance A. Hope, 13570 Grove Drive, No. 238, Maple Grove, MN  55311 (for respondent)

Jay M. Heffern, Minneapolis City Attorney, Caroline M. Bachun, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402-2453 (for appellant)

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Respondent John Doe sued appellant City of Minneapolis (the city) alleging that he was discriminated against while employed by the Minneapolis Police Department.  When hired, Doe had informed the department that he was a transgendered male, or a genetic female undergoing a transformation to the male gender through medically prescribed psychological and hormonal treatment and surgery.  Doe's treating professionals had diagnosed him with gender-identity disorder and recommended that he live as a male, including that he request others to refer to him with male pronouns and that he use male restrooms and shower facilities.

            Throughout his employment, Doe and his lawyer had ongoing discussions with the department regarding issues raised by his transgendered status.  Doe resigned from his position with the department in March 2000, claiming that he was constructively discharged when he was assigned to a shift in which no unisex bathroom was available.  He thereafter brought this action against the city, alleging sexual orientation discrimination, disability discrimination, and retaliation under the Minnesota Human Rights Act.

            In this interlocutory appeal, the city challenges the district court's denial of its motion for summary judgment on the issue of whether the city was entitled to vicarious official immunity.  Because we conclude that the district court erred and that the city is entitled to vicarious official immunity, we reverse the denial of summary judgment and remand for dismissal of Doe's claims.

D E C I S I O N

            An order denying a motion for summary judgment based on official immunity is immediately appealable.  Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 218 (Minn. 1998).  The appellate court "must determine whether there are genuine issues of material fact and whether the district court erred in applying the law."  Id. at 218-19 (citation omitted).  Immunity is a legal question reviewed de novo.  Id. at 219.

            Under the doctrine of official immunity, public officials are not liable for damages arising from the exercise of their discretion or judgment in the performance of their duties, absent willful or malicious wrongdoing.  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  The purpose of such immunity is to protect public officials "from the fear of personal liability that might deter independent action and impair effective performance of their duties."  Id. at 678 (citations omitted).  An official may assert official immunity against a claim brought under the Minnesota Human Rights Act.  State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

            When a governmental employer is sued for an official's acts, it may claim vicarious official immunity, even if the official is not named in the lawsuit.  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17 (Minn. 1998).  Vicarious official immunity applies for the same reason that official immunity applies:  to prevent the "stifling attention" that would be detrimental to the official's performance.  Id. at 316 (quotation omitted).  Whether official immunity is available vicariously is a policy question for the court.  Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992) (holding that police officer's official immunity for decisions made during high-speed pursuits extends to officer's public employer).

            The district court here ruled that vicarious official immunity did not apply because the city offered no policy reasons for extending immunity and failed to identify the individual officials who would have been afraid to act had their decisions been subject to scrutiny in a lawsuit. 

            The policy reasons for allowing vicarious official immunity in the case of a high-speed police chase, where an officer must make an immediate decision under emergency circumstances that could later be subject to scrutiny, are similar to the reasons for allowing it here.  See id.  While the police department managers involved here were not required to make quick decisions and had the luxury of making decisions based on extensive discussions with each other, counsel, and the department of human rights, they are entitled to make those decisions without fear of later scrutiny or criticism.  Thus, we conclude that sufficient underlying policy reasons were offered to support application of vicarious immunity.

            With respect to the identity of the individual decision-makers, the city has named a number of individuals who were involved in the decisions of which Doe complains and to whom official immunity should apply.  See S.L.D. v. Kranz, 498 N.W.2d 47, 53 n.5 (Minn. App. 1993) (extending vicarious official immunity to county despite fact that plaintiff sued county directly, where plaintiff had identified three county employees who made public policy decisions resulting in injury).  These individuals communicated to Doe the city's position and decisions on bathroom, shower, and pronoun usage.  They are officials to whom immunity should apply. 

            Next, we must address the question of whether official immunity applies to the officials who made the decisions.  While this issue was not reached by the district court, it is a question of law reviewable by this court on this complete record.  We first examine whether the challenged decisions are discretionary or ministerial.  In official immunity, "only discretionary decisions are immune from suit."  Wiederholt, 581 N.W.2d at 315 (citation omitted).  "A discretionary decision is one involving more individual professional judgment that necessarily reflects the professional goal and factors of a situation."  Id. (citation omitted).  By contrast, ministerial decisions are ones in which there is no discretion; they are "absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts."  Id. at 315-16 (quotation omitted).  "Some degree of judgment or discretion will not necessarily confer discretionary immunity on an official; the crucial focus is upon the nature of the act."  Elwood, 423 N.W.2d at 677 (citation omitted).

            Doe asserts that the duties at issue here were ministerial because the decisions merely required application of the anti-discrimination laws.  We disagree.  City officials were required to make discretionary decisions when determining how to interpret the law, which bathroom facilities properly could be used, and how to direct other employees to address Doe regarding pronoun use.  None of these decisions was absolute and certain. This court has held that decisions made in response to a plaintiff's complaints regarding sexual harassment "clearly involve[ ] the judgment and discretion of the official" making the decision and are discretionary decisions of the type that would normally be protected by official immunity.  Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1987) (citation omitted), review denied (Minn. May 20, 1997).  We therefore hold that the decisions by the officials were discretionary ones protected by official immunity.

            Finally, we must determine whether the officials were engaged in willful or malicious actions that are not protected.  Official immunity does not protect willful or malicious actions.  Beaulieu, 518 N.W.2d at 569.  In deciding whether the officials have committed such a wrong, the court will examine "whether the official has intentionally committed an act that he or she had reason to believe is prohibited."  Id. at 571-72 (citation omitted).

            Doe contends that the evidence establishes that his treatment was "so at variance with what would reasonably be anticipated, absent [sexual orientation] discrimination that [that type of] discrimination is the probable explanation."  Id. at 572 (quotation omitted).  At a minimum, Doe contends that given the prohibitions against discrimination, there is at least a factual question as to whether the officials' conduct was willful and malicious.  Again, we disagree.

            The evidence presented here shows that city officials held numerous meetings on the many issues raised and that they sought guidance from the department of human rights as to how best to respond to Doe's requests regarding bathroom and locker room facilities and pronoun usage.  The department advised the city that the MHRA did not require employers to accommodate employees simply based on sexual orientation, that a disability must be qualified and medically verified, and that the city must consider the impact on other employees as to the bathroom use.  See Goins v. West Group, 635 N.W.2d 717, 723 (Minn. 2001) (holding that "the MHRA neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender").  City officials also had to consider the effect of a local ordinance that made it a violation for one to use a restroom designated for a particular sex, when one is not of that sex.  See Minneapolis, Minn., Code of Ordinances § 385.120 (1998).

            Thus, in making their decisions, city officials attempted to ascertain and understand Doe's rights and the state of the law.  There is no evidence that they willfully or maliciously trampled on those rights.  In light of their extended consideration of the issues and the uncertainty of the law, we conclude that city officials did not engage in willful or malicious acts.  We cannot conclude that their treatment of Doe was so at variance with expected conduct that discrimination was the probable explanation.

            We therefore reverse the district court's denial of a grant of summary judgment to the city.  Because the city is entitled to vicarious official immunity for the acts of its officials, we remand for dismissal of Doe's claims.

            Reversed and remanded.