Bersch v. Rgnonti & Associates, Inc.
| Decision Date | 13 October 1998 |
| Docket Number | No. C8-98-590,C8-98-590 |
| Citation | 584 N.W.2d 783 |
| Court | Minnesota Court of Appeals |
| Parties | 137 Lab.Cas. P 58,579, 14 IER Cases 829 Rebecca BERSCH, Appellant, v. RGNONTI & ASSOCIATES, INC., et al., Respondents. |
Syllabus by the Court
I. Evidence that an employee participated in an investigation at the request of a public body or office is sufficient to prove that the employee engaged in conduct protected under the whistleblower statute, Minn.Stat. § 181.932, subd. 1(b) (1996).
II. Summary judgment in favor of defendants in a defamation action is proper when the plaintiff fails to present sufficient evidence to prove the essential elements of defamation.
Paul D. Peterson, Paul D. Peterson, Ltd., Woodbury, for appellant.
Victor E. Lund, Richard P. Mahoney, Mahoney, Dougherty & Mahoney, P.A., Minneapolis, for respondents.
Considered and decided by HUSPENI, P.J., and RANDALL and PETERSON, JJ.
After respondent Rgnonti & Associates, Inc. (Rgnonti) discharged appellant Rebecca Bersch from employment, Bersch brought this action against Rgnonti and respondent Frederick Rgnonti, Rgnonti's president and sole shareholder. Bersch alleged a claim under the whistleblower statute and a defamation claim. The district court granted respondents' motion for summary judgment on both claims, and judgment was entered accordingly. We affirm the summary judgment on the defamation claim, reverse the summary judgment on the whistleblower claim, and remand the whistleblower claim for trial.
Bersch was employed as an investigator by Rgnonti, a private investigating firm, beginning July 2, 1992. She was later promoted to case manager, a position supervising the work of investigators.
Rgnonti had a contract with the Minnesota Department of Labor and Industry (department), worker's compensation division special compensation fund (fund), to investigate the validity of workers' compensation claims. In about April 1994, Frederick Rgnonti discovered evidence that Rgnonti's former office administrator had been involved in improper business dealings with the fund. Among the evidence were audiotapes containing recordings of conversations between the office administrator and the fund's director. On the tapes, the fund's director asked the office administrator to have Rgnonti conduct a sting operation for which the fund did not have funding authorization. To pay for the sting operation, the fund's director instructed the office administrator to overbill the fund for work performed on other workers' compensation cases.
In June 1994, Frederick Rgnonti notified the department that he had discovered an unusual billing arrangement between the department and Rgnonti. The Office of the Legislative Auditor then began an investigation of Rgnonti. In January and February 1995, auditors from the legislative auditor's office were on site at Rgnonti investigating workers' compensation files. Bersch cooperated with the auditors, answered their questions about files she had worked on, and provided documents when requested. Requests for information came to Bersch through Frederick Rgnonti.
In April 1995, Rgnonti assigned a different employee to perform Bersch's case management duties and assigned Bersch to perform administrative tasks one day per week and investigative duties on an as-needed basis. As a case manager, Bersch was a salaried employee. When she was reassigned, Rgnonti paid her only for hours actually worked and did not guarantee her any minimum number of hours per week. As a result, Bersch's income decreased due to a lack of assignments. Rgnonti's business was slow at that time, and the size of its staff had decreased considerably. Nonetheless, Bersch contended that when she was promoted to case manager, Frederick Rgnonti had promised her a guaranteed salary even if business became bad.
In August 1995, investigators from the legislative auditor's office requested a formal statement from Bersch. Bersch was reluctant to give a voluntary statement and requested that her statement be subpoenaed. Frederick Rgnonti told her to talk to Rgnonti's attorney, Tom Hunziker, who would represent her in giving her statement. Bersch delayed contacting Hunziker and eventually hired her own attorney, David Warg. On October 9, 1995, after Warg obtained a grant of immunity for Bersch's testimony, Bersch made a confidential, sworn statement to the legislative auditor's office.
Bersch alleges that in September and October 1995, Frederick Rgnonti was very angry with her because she had retained her own attorney instead of allowing Hunziker to represent her. Bersch also alleges that Frederick Rgnonti falsely accused her of failing to maintain contact with the office and failing to properly perform and follow through on work assignments; directed her to lie during her statement; and directed her to say that he did not pad bills and to say that she knew nothing about a specific investigation. Bersch contends that other employees harassed her about her statement but she does not cite evidence connecting Frederick Rgnonti to the harassment. Bersch testified that some employees accused her of committing criminal acts and that one of the employees admitted that the accusation had come from Frederick Rgnonti.
By mid-October 1995, Bersch was unable to work due to health problems and was placed on paid disability leave. In November 1995, the Office of the Legislative Auditor issued a report concluding that the department had overpaid Rgnonti by more than $50,000. In February 1996, Bersch signed a release permitting the release of her statement to the Dakota County Attorney's Office. After Bersch signed the release, Frederick Rgnonti contacted her and said that he had heard that her statement was very damaging to him. Rgnonti discharged Bersch from employment effective June 3, 1996.
I. Did the district court err in granting summary judgment in favor of respondents on Bersch's whistleblower claim?
II. Did the district court err in granting summary judgment in favor of respondents on Bersch's defamation claim?
On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). We must view the evidence in the light most favorable to the nonmoving party. Id.
[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.
Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994).
Statutory interpretation is a question of law subject to de novo review. Metropolitan Sports Facilities Comm'n v. County of Hennepin, 561 N.W.2d 513, 515 (Minn.1997).
Minn.Stat. § 181.932, subd. 1 (1996) provides:
An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:
(a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;
(b) the employee is requested by a public body or office to participate in an investigation, hearing, inquiry; or
(c) the employee refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.
Bersch contends that her termination violated Minn.Stat. § 181.932, subd. 1(b).
To establish a prima facie case under the whistleblower statute, an employee must show that (1) she engaged in statutorily-protected conduct; (2) the employer took adverse action against her; and (3) there was a causal connection between the protected activity and the adverse action. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn.App.1996), review denied (Minn. Feb. 26, 1997).
The parties dispute whether Bersch presented sufficient evidence to prove that she engaged in statutorily protected conduct. The district court concluded that the evidence was insufficient to prove that Bersch was "requested" to participate in the legislative auditor's investigation of Rgnonti. We disagree. Although Bersch participated voluntarily in the investigation, in that she cooperated with investigators and was not forced to participate, she did not initiate any communications with personnel from the legislative auditor's office. Investigators from the legislative auditor's office asked her to provide information. Request means "[t]o ask (a person) to do something." The American Heritage Dictionary 1533 (3d ed.1992). "When the words in a statute are clear and unambiguous, a court must give effect to the plain meaning of the language." State v. Wetsch, 511 N.W.2d 490, 491 (Minn.App.1994), review denied (Minn. Apr. 19, 1994). Under the plain meaning of the word "request," Bersch's participation in the investigation was requested.
Respondents argue that because Frederick Rgnonti encouraged Bersch's participation in the investigation, her participation was not requested by a public body or office. We disagree. Bersch presented evidence that the legislative auditor's office wanted information she possessed and took the necessary steps to obtain the information. The fact that Frederick Rgnonti encouraged Bersch's participation in the investigation and communicated requests for information to her does not override or negate the legislative auditor's requests for information. Evidence that Bersch's participation in the investigation resulted...
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