Bonnie Burt, Appellant, vs. Rebecca Yanisch, individually and as Commissioner of the Minnesota Department of Trade and Economic Development, et al., Respondents, Paul Moe, Respondent.

This opinion will be unpublished and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

A03-1843

 

Bonnie Burt,

Appellant,

 

vs.

 

Rebecca Yanisch, individually and as

Commissioner of the Minnesota Department of

Trade and Economic Development, et al.,

Respondents,

 

Paul Moe,

Respondent.

 

Filed August 17, 2004

Affirmed
Forsberg, Judge*

 

Ramsey County District Court

File No. CX-02-7705

 

Robert J. Borhart, Bonner & Borhart LLP, 1750 Pillsbury Center, 220 South Sixth Street, Minneapolis, MN  55402-4511 (for appellant)

 

Mike Hatch, Attorney General, Gary R. Cunningham, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondents Yanisch, et al.)

 

David K. Snyder, Eckberg, Lammers, Briggs, Wolff & Vierling, 1835 Northwestern Avenue, Stillwater, MN  55082 (for respondent Moe)

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            After appellant Bonnie Burt was fired from her job, she sued respondents for violation of the Whistleblower Act, violation of the Data Practices Act, tortious interference with contract, and intentional infliction of emotional distress.  The district court granted summary judgment, and she appeals.  Because there are no genuine issues of material fact and because the district court properly granted summary judgment as a matter of law to respondents, we affirm.

FACTS

            Appellant Bonnie Burt is the former Director of Administration of the Minnesota Department of Trade and Economic Development (DTED).  She simultaneously held a classified supervisory position covered under the middle-management association collective-bargaining agreement.  Respondents are the State of Minnesota; Rebecca Yanisch, the commissioner of DTED at the time of Burt's termination; and four other DTED employees.

            On June 16, 2002, a romantic relationship between Burt and respondent Paul Moe, who was employed by the department as director of the Minnesota Dislocated Worker's program, ended.  On June 19, Burt directed respondent Judy Kislenger to provide her with Moe's cell phone records and to keep the inquiry confidential.  The next day, she obtained his and respondent Deborah Dorner's timesheets, accessed Moe's computer, and used another employee's phone to call numbers listed in Moe's cell phone records.  On June 21, Burt met with Yanisch to discuss her concerns about cell phone usage, as well as other matters.  On June 24, Burt questioned Moe and Dorner about the phone calls on Moe's bill, which included evening calls to Dorner as well as to Burt.  On June 25, at a regular meeting of upper management, Burt informed the group that there were rumors that the governor's office might start examining cell phone records and that she would be completing spot checks on cell phone records.

            Also on June 25, 2002, Yanisch received a telephone call from respondent Dorner, requesting a confidential meeting to make a complaint about Burt.  During the meeting, Dorner and respondent Kislenger, both of whom Burt supervised, informed Yanisch that Burt had accessed the computer files of respondent Paul Moe and had examined the records for his state cell phone usage.

            Usually, Yanisch would have consulted with Burt regarding employee conduct.  Because Burt was the subject of the complaint, Yanisch consulted with Paul Larson, a deputy commissioner with the Department of Employee Relations, who advised Yanisch to secure Burt's computer for analysis.  An investigation revealed that Burt's computer had been used to access Moe's computer files.  Based on Burt's position and length of service, Larson recommended that an outside investigator be hired.  He suggested hiring Michelle Soldo, an investigator with experience in computer-oriented inquiries, and also recommended that Burt be placed on investigative leave.  Yanisch authorized the investigation and placed Burt on leave.  On July 9, 2002, Soldo began her investigation into the complaints and also inquired into Burt's conduct as a supervisor.

            On July 18, 2002, Soldo submitted her 50-page report to Yanisch and Larson.  She concluded that Burt had accessed an employee e-mail account without authorization, and had accessed employee cell phone records without authorization and without a legitimate business purpose.  In addition, Soldo found that Burt called telephone numbers listed on the employee's cell phone bills and accessed employee timesheets without authorization and without a legitimate business purpose.  She further found that Burt directed subordinate employees to refrain from reporting her conduct.  Finally, she found that DTED employees perceived that Burt's conduct towards them was unprofessional, intimidating, and harassing.

            On July 19, 2002, Yanisch informed Burt in writing that, based on the findings in the investigative report, Burt's unclassified appointment had ended and her classified position was terminated.  Her termination was effective on July 29.  Yanisch sent an e-mail to all DTED employees on that date advising them of Burt's termination.

            Burt filed a lawsuit alleging, in relevant part, whistleblower retaliation, violation of the data practices act, tortious interference with contract, and intentional infliction of emotional distress.  The district court granted summary judgment for respondents, and this appeal followed.

D E C I S I O N

            In an appeal from summary judgment, an appellate court will determine whether there are any genuine issues of material fact and whether the district court erred in its interpretation as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Doubts and inferences are to be resolved in favor of the nonmoving party.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).

I.

            Burt first challenges the district court's grant of summary judgment on her claim of a violation of the whistleblower act.  An employer may not retaliate against an employee who makes a good-faith report of any violation or suspected violation under state or federal law.  Minn. Stat. § 181.932, subd. 1(a) (2002).  In analyzing a whistleblower claim, the court will apply the McDonnell Douglas analysis.  Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. App. 2001), review denied (Minn. May 15, 2001).  "[T]he employee has the initial burden to establish a prima facie case, and the burden of production then shifts to the employer to articulate a legitimate, non-retaliatory reason for its action, after which the employee may demonstrate that the employer's articulated reasons are pretextual."  Id.

            To establish a prima facie case for a claim of retaliatory discharge under the whistleblower act, the employee must show "(1) the statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two."  Id. (quoting Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983)).  Under the whistleblower act, statutorily protected conduct consists of making a report in good faith of a violation or suspected violation of law.  Minn. Stat. § 181.932, subd. 1(a).

            The district court "may determine as a matter of law that certain conduct does not constitute a report for purposes of the Whistleblower Act."  Cokley, 623 N.W.2d at 630.  The whistleblower act does not define the term "report."  Janklow v. Minn. Bd. of Exam'rs for Nursing Home Adm'rs, 536 N.W.2d 20, 23 (Minn. App. 1995), aff'd on other grounds, 552 N.W.2d 711, 718 (Minn. 1996).  Consequently, this court looked to the dictionary definition for guidance:  "1. To make or present an often official, formal, or regular account of.  2. To relate or tell about; present."  Janklow, 536 N.W.2d at 23 (citation omitted).  In Janklow, where an employee contacted two governmental entities expressing his concerns about various violations of law and alleging violations of the data practices act, the open-meeting law, and travel-reimbursement proprieties, the court concluded that the conduct "amounts to relating or presenting concerns in an essentially official manner."  Id.  In contrast, when an employee wrote a memo proposing changes to a personnel policy and had conversations with individual council members about concerns, she did not make a report within the meaning of the whistleblower act.  Cokley, 623 N.W.2d at 631.

            Burt's theory under the whistleblower act is that she was fired because she had "reported" employees who obtained state cell phones for their personal use, making excessive and unreimbursed phone calls.  The district court concluded that there was no "report," citing the statement by Burt that:  "The intent was to identify the problems ourselves and to correct the problems prior to any possible assessment by an outside party."  The court also cited the complaint in which Burt stated that she told others that there was nothing serious yet and that they had a goal of increasing internal auditing, and that the intent was to identify and correct the problem.

            Burt does not argue that these facts considered by the district court show that she made a report.  Instead, she contends that the district court erred in failing to consider all of the facts she submitted, and that if those facts are considered, summary judgment is inappropriate.  While Burt cites various statements in depositions that she asserts show that she made "reports" of improper cell phone use within the meaning of the whistleblower act, our review of that evidence reveals nothing more than the facts cited by the district court.  She merely discussed what she saw as problems, she spoke in terms of ensuring compliance, and she indicated that her comments were not punitive and would not result in discipline.

            Burt also cites a "report of state employees using state cell phones for exclusively personal use."  This refers to the fact that two secretaries had DTED contracts for cell phones that they used for personal reasons; neither was disciplined, and, in fact, Burt enlisted one of them to help her "investigate."  In the department meeting, Burt referred to this use as "something to the effect of inappropriate use, it violated the policy, personal calls, and that kind of thing."  In a meeting with another manager, Burt stated that she asked "why the secretaries had cell phones and why they had used the contract, and he said there was no reason for them to have the cell phones.  He was to follow up with the individuals to tell them about the problem and the use was to be discontinued."  Again, these statements do not constitute a report as a matter of law.

            Next, Burt asserts that she reported to Moe that his bills contained many late-night, weekend, and other personal calls.  The undisputed facts show that on June 16, Moe and Burt's romantic relationship was ended.  On June 19, Burt asked another employee to provide her with Moe's cell phone records and directed her to keep the inquiry confidential.  The next day, she used another employee's phone to place calls to numbers retrieved from Moe's cell phone records and directed that employee to keep the calls confidential.  Burt recognized two numbers:  Dorner's and her own.  On the following Monday, she confronted Dorner about the late-night calls Moe had made to her and then met with Moe to question him about his calls to Dorner, falsely telling him about rumors that the governor's office was going to investigate cell phone usage.  She also acknowledged that she knew some of the calls Moe made were personal because he had made late-night cell phone calls to her during their romantic relationship.  These contacts do not constitute a "report" within the meaning of the whistleblower act as a matter of law.

            The next issue is whether there was a genuine issue of material fact as to whether a "violation" occurred.  While actual violations need not exist, the "reported conduct must at least implicate a violation of law."  Obst v. Microtron, 614 N.W.2d 196, 200 (Minn. 2000).  The employee must allege "facts that, if proven, would constitute a violation of law or rule adopted pursuant to law."  Abraham v. County of Hennepin, 639 N.W.2d 342, 355 (Minn. 2002).

            The district court ruled that Burt did not report a violation of any law or regulation.  Burt argues that the cell phone "abuse" she found potentially violated numerous state laws and rules.  But under Minn. Stat. § 43 A. 38, subd. 4(b) (2002), use by state employees of electronic communications is allowed so long as the use "results in no incremental cost to the state," or an incremental cost that is so small accounting for it would be unreasonable or impracticable.  Burt has failed to make a showing that there was use that was not permissible, and the district court properly granted summary judgment on this ground as well.

II.

            Burt next argues that Yanisch and DTED violated the data practices act by notifying staff of her initial investigation and her termination before her appeal rights had expired.

            As to her claim based on notification of the staff of her initial investigation, Burt makes no further mention of this in her analysis and thereby waives her claim.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding that assignment of error unsupported by authority or argument is deemed waived absent obvious prejudicial error).  We therefore focus on her latter claim.

            Under the data practices act, "the final disposition of any disciplinary actions together with the specific reasons for the action and data documenting the basis for the action" are public data.  Minn. Stat. § 13.43, subd. 2(a)(5) (2002).  A "final disposition" is deemed to have occurred when the agency makes its final decision about the disciplinary action.  Id., subd. 2(b).  When arbitration proceedings arise under collective-bargaining agreements, the final disposition occurs either at the conclusion of the arbitration proceedings or upon the employee's failure to elect arbitration within the time provided.  Id.  An agency that violates the act may be liable to a person who suffers damages as a result of the violation.  Minn. Stat. § 13.08, subd. 1 (2002).  The data practices act, which provides that a plaintiff may recover for "any damages" suffered, is very broad.  Navarre v. S. Washington County Schs., 652 N.W.2d 9, 30 (Minn. 2002).  But a plaintiff must satisfy the standard of proof necessary to recover damages.  Id.

            On June 29, 2002, Yanisch sent an e-mail to all DTED staff stating, "Effective today, Monday, July 29, Bonnie Burt's employment with the DTED has been terminated."  Burt asserts that she had 21 days after her termination to file a grievance and that notice should not have been issued until that time.  The district court granted summary judgment on this data practices claim, ruling that Burt failed to establish how she was damaged by the premature announcement of her employment termination, when she failed to avail herself of any appeal process that might have led to reinstatement.  It noted that had she been reinstated, an argument might have been made that she sustained some type of damage.  The district court properly dismissed her claim with respect to announcement of her termination.  See Navarre, 652 N.W.2d at 30; see Moubry v. Indep. Sch. Dist. 696, 9 F. Supp. 2d 1086, 1112 (D. Minn. 1998) (when plaintiff could not demonstrate injury in fact, court dismissed claim, holding it would not decide hypothetical questions about data practices act that do not concretely affect rights of litigants).

            Burt also asserts a data practices act violation based on Yanisch's actions in shredding the documents in her office after Burt left.  Burt asserts that she left investigative materials as well as other documents that would have assisted her in her lawsuit.  The district court found that Burt failed to establish how the alleged destruction of unspecified documents left in her office after her termination violated the data practices act.  The court noted that this was not pleaded and was totally without merit.  On appeal, Burt has failed to cite any legal authority to support her claim.  Therefore, her arguments are deemed waived.  See Schoepke, 290 Minn. at 519-20, 187 N.W.2d at 135.

III.

            The district court granted summary judgment for respondents on Burt's claim against Yanisch for tortious interference with her employment contract.  "[A] tortious interference claim will lie for an at-will employment agreement."  Nordling v. N. States Power Co., 478 N.W.2d 498, 505 (Minn. 1991).  Burt's claim, however, is against "a third party meddler who wrongfully interferes with the contractual relations of others."  Id.

            "The general rule is that a party cannot interfere with its own contract."  Id.  "If a corporation's officer or agent acting pursuant to his company duties terminates . . . an employee, the actions are those of the corporation."  Id.  In such a case, the employee's recourse is an action for breach of contract against the corporation, rather than a tort action against the agent individually.  Id.  Nonetheless, an officer or agent who acts outside the scope of his or her duties may be liable.  Id. at 506.

            The district court granted summary judgment on the ground that Yanisch was DTED's chief officer, acting within her prescribed duties, and could not interfere with Burt's employment relationship.  Burt first argues that her employment contract was with the state, not with Yanisch.  But Yanisch, as commissioner of DTED, was, as the district court stated, the chief officer.  If she was acting within the scope of her duties, her actions are the actions of the department.  See id. at 505.

            Burt next argues that because Yanisch acted with ill will and misrepresentation, she acted outside the scope of her authority.  She contends that whether Yanisch acted with justification is a fact question for the jury.  See Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 901 (Minn. 1982).

            The supreme court has recognized that it is not always easy to determine whether the corporate officer's actions are outside the scope of duties based on "personal vendetta or excursion."  Nordling, 478 N.W.2d at 506.  "Particularly is this true in a job termination case where the officer's duties include the evaluation and supervision of the plaintiff employee's performance or the power to participate in the corporate decision to terminate or otherwise discipline the plaintiff."  Id.  Here, there is no evidence of a personal vendetta or other grounds supporting Burt's claims.

IV.

            Finally, the district court dismissed Burt's claim for intentional infliction of emotional distress because of lack of evidence of "extreme and outrageous conduct."  Intentional infliction of emotional distress consists of four distinct elements:  "(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe."  Hubbard, 330 N.W.2d at 438-39.  Conduct is "extreme and outrageous" when it is "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community."  Id. at 439 (citation omitted).  These claims are limited to cases involving particularly egregious facts, based on the strong public policy of preventing fictitious and speculative claims.  Id.  Such claims are construed "quite narrowly."  Dornfeld v. Oberg, 503 N.W.2d 115, 117 (Minn. 1993).

            There was no evidence of such vulgarities or false reports here.  Burt has failed to establish she was subject to extreme and outrageous conduct, and the district court properly dismissed her claim for intentional infliction of emotional distress.

            Affirmed.

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