Berger v. Wynes

• Decision Date: 16 April 2018
• Docket Number: A17-1342
• Parties: David Berger, Respondent, v. Timothy Wynes, et al., Appellants.
• Court: Minnesota Court of Appeals

David Berger, Respondent,
v.
Timothy Wynes, et al., Appellants.

A17-1342

STATE OF MINNESOTA IN COURT OF APPEALS

April 16, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CV-16-1528

Sarah J. McEllistrem, Bryce M. Miller, Mark H. Gehan, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for respondent)

Lori Swanson, Attorney General, Kathryn A. Fodness, Assistant Attorney General, St. Paul, Minnesota (for appellants Timothy Wynes, Inver Hills Community College, Minnesota State College and Universities, and Nicole Meulemans)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and Smith, Tracy M., Judge.

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UNPUBLISHED OPINION

RODENBERG, Judge

Appellants Timothy Wynes and Nicole Meulemans appeal from the district court's denial of their motions for summary judgment based on qualified and official immunity, respectively. We affirm in part, reverse in part, and remand.

FACTS

Respondent David Berger is a faculty member at Inver Hill Community College (IHCC). He is also a grievance representative for the faculty union at the college.

In late January 2016, the IHCC faculty union took a vote of no confidence in the IHCC president, appellant Timothy Wynes. Respondent was a part of the group that led the process for and promoted the vote of no confidence. Respondent contributes to the faculty union's website, Inver Hills United, and posted the results of the no-confidence vote on that webpage. Respondent personally funds the Inver Hills United website and pays for merchandise advertising the website, such as baseball caps, post-it notes, and pens.

Student 1¹ was in one of respondent's classes at IHCC and was a student employee at the college. Respondent gave Student 1 several Inver Hills United pens, which Student 1 distributed. At some point, Student 1 told Assistant Student Life Director N.B. that respondent had asked him to pass out the Inver Hills United pens. N.B. allowed Student 1 to do so as long as it was not on work time. Student 1 also told N.B. that he did not feel like he could talk to the Student Senate President because respondent would not like him

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if he did. This statement made N.B. concerned, and on February 10, 2016, N.B. emailed respondent, asking him if she could speak with him about a concern she had about a student. Respondent responded that she could have the student contact him directly. N.B. replied that she was concerned that the student would not do so. N.B. then went to talk to respondent in person, and respondent refused to speak with her.

After her February 10 communications with respondent, N.B. sent an email to appellant Nicole Meulemans, the Student Life Director at IHCC, including the chain of emails to and from respondent that complained about respondent's conduct toward N.B. Meulemans spoke with N.B., and also forwarded the emails to Suzanne Brusoe, then the Chief Human Resource (HR) Officer for IHCC. Meulemans told Brusoe that, when she spoke to N.B., N.B. sounded very upset and did not feel comfortable staying at work. N.B. complained that she had "never felt so completely disrespected in the workplace."

Brusoe forwarded this complaint to Mark Carlson, the Vice Chancellor of HR for the Minnesota State College and University System (MnSCU), who determined that the complaint should be investigated. Brusoe sent respondent a letter on February 12, 2016, informing him that he was being placed on paid leave while the college investigated his conduct. The letter explained that, during the leave period, respondent was not to be on the college campus or attend college functions, participate in any of his job duties, communicate with other college employees in a way that could interfere with the investigation, or communicate with students regarding the investigation or classes. The letter was signed by Brusoe and stated that she had been authorized by Wynes to place respondent on leave.

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IHCC hired attorney Pamela VanderWiel to investigate respondent's claimed misconduct. N.B. helped VanderWiel by notifying persons who would be interviewed, including Student 1. N.B. informed VanderWiel that Student 1 was concerned and anxious about being interviewed. N.B. reported to VanderWiel that Student 1 had told her that respondent stopped Student 1 and told him to be careful of N.B., that N.B. interfered between respondent and a student, that N.B had lied, that respondent made N.B. cry, and that Student 1 should not trust N.B.

Student 1 did not respond to VanderWiel's requests for an interview. Meulemans felt that it was her job to facilitate the investigator's interview, so she approached Student 1 while he was working and asked him if he would meet with VanderWiel. According to Meulemans, she and Student 1 walked from Student 1's workplace to the office where VanderWiel was waiting. The walk took no more than two minutes and Meulemans claims that she did not tell Student 1 what to say, threaten his job, or tell him that respondent's conduct was unacceptable.

VanderWiel interviewed Student 1, but did not record the interview because she found him to be "an unusually uncomfortable witness" and believed that he would be more open and honest without a recording. VanderWiel later testified that she began Student 1's interview by explaining that he would not get in trouble for talking to her. Meulemans remained in the room for at least part of Student 1's interview.

In a deposition taken after this lawsuit was commenced, Student 1 testified that he did not respond to the interview requests because he did not want to be involved and wanted to focus on his education. Student 1 also testified that, when Meulemans took him to talk

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to VanderWiel, Meulemans told him that what respondent had done was "unacceptable." Student 1 stated that he felt like he would lose his job if he said anything good about respondent in the interview. He agreed that Meulemans never directly threatened to fire him. Student 1 had previously signed an affidavit in which he said that he had been coached to say negative and untrue things about respondent and did so out of fear of losing his job. When asked about this at his deposition, Student 1 stated that Meulemans told him that respondent's actions were unacceptable, but did not tell him what to say. Student 1 recognized that Meulemans had expressed an opinion, but said that he felt some pressure that prevented him from saying anything good about respondent.

After VanderWiel completed her investigation, she submitted a report on May 23, 2016, concluding that respondent had violated MnSCU's Employee Code of Conduct and the State of Minnesota's Respectful Workplace Policy. Vice Chancellor Carlson then informed respondent that he could return to work.

Southwest Minnesota State University President Connie Gores was asked by the general counsel's office to review the investigation report as an independent decision-maker. She agreed to so act. On June 23, 2016, Gores sent respondent a letter informing him of her conclusion that respondent had violated the Employee Code of Conduct and the Respectful Workplace Policy. The letter also communicated Gores's tentative decision to suspend respondent for five days without pay, and offered respondent an opportunity to meet with Gores or send a written response for consideration before Gores made her final disciplinary decision.

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Respondent provided additional written information to Gores, including two affidavits indicating that Meulemans pressured Student 1 to make false statements during the investigation. After receiving those affidavits, Gores requested a follow-up investigation, which revealed "no evidence that Meulemans threatened or coerced [Student 1] into making false statements."

After reviewing the affidavits and the follow-up investigation report, Gores sent respondent a letter on August 22, 2016, confirming her decision to suspend him for five days without pay.

Respondent sued Wynes, Meulemans, and MnSCU, claiming: (1) First Amendment retaliation by Wynes individually under 42 U.S.C. § 1983, (2) violation of the Minnesota Data Practices Act by all defendants individually and collectively, (3) defamation by Wynes individually, (4) First Amendment retaliation by Meulemans individually, and (5) tortious interference with contract by Meulemans individually. Respondent later dismissed the defamation claim against Wynes after reaching a settlement. After completing discovery, both parties moved for summary judgment. Appellants raised immunity defenses to the claims asserted against them individually. The district court dismissed the First Amendment retaliation claim against Meulemans, but denied summary judgment for appellants on the First Amendment retaliation claim against Wynes, the data-practices claim, and the tortious-interference-with-contract claim against Meulemans.

This appeal followed. By special-term order, we limited the scope of this appeal to the immunity questions relating to the First Amendment retaliation claim against Wynes

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under 42 U.S.C. § 1983, and the tortious-interference-with-contract claim against Meulemans.

DECISION

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law." Minn. R. Civ. P. 56.03. No genuine issue for trial exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." DLH, Inc. v. ...