Opinion
A22-1827
08-21-2023
Natalie R. BRISSON, Appellant, v. STATE of Minnesota, et al., Respondents.
Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota (for appellant) Keith Ellison, Attorney General, Joseph Weiner, Anna Veit-Carter, Assistant Attorneys General, St. Paul, Minnesota (for respondents)
Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota (for appellant)
Keith Ellison, Attorney General, Joseph Weiner, Anna Veit-Carter, Assistant Attorneys General, St. Paul, Minnesota (for respondents)
Considered and decided by Larkin, Presiding Judge; Reilly, Judge; and Slieter, Judge.
REILLY, Judge Appellant, a former inmate, challenges the dismissal of her claims against respondents—the State of Minnesota, its department of corrections (the DOC), and its commissioner of corrections—arising out of a sexual assault by a correctional officer. Appellant asserts the district court erred by (1) dismissing her tort claims against respondents on the ground that respondents were immune from vicarious liability, and (2) granting summary judgment on her sex-discrimination claim under the Minnesota Human Rights Act (the MHRA). Based on our decision in Sterry v. Minnesota Department of Corrections , 986 N.W.2d 715,717 (Minn. App. 2023), we conclude that the district court erred by determining that respondents were immune from vicarious liability under the Minnesota State Tort Claims Act (the MSTCA) and dismissing appellant's tort claims. We also conclude that appellant's sex-discrimination claim survives summary judgment because the MHRA provision on which the claim relies, Minn. Stat. § 363A.12, does not require a showing that respondents knew or should have known that the correctional officer would engage in discriminatory conduct. We therefore reverse and remand.
FACTS
Appellant Natalie R. Brisson sued respondents seeking to hold them vicariously liable for a sexual assault by corrections officer Randy Beehler, who was employed by the DOC at the time. The complaint and supporting documentation reflect these facts.
Respondents do not challenge Brisson's factual allegations about the sexual assault.
In September 2019, Beehler was assigned to transport Brisson from the Olmsted County jail to the Hennepin County jail in a prison vehicle. Beehler restrained Brisson with shackles and handcuffs and placed her in the back of the vehicle. Beehler drove to an abandoned business building, parked the vehicle, removed Brisson's restraints, and ordered her to sit in the front seat. Beehler engaged Brisson in a conversation about sex and fondled her breasts. Beehler threatened Brisson that she would get into trouble if she told anyone what occurred. Beehler then left the abandoned business building and continued driving, leaving Brisson in the front seat without restraints. As he was driving, Beehler exposed and forced Brisson to touch his penis. Beehler also ordered Brisson to pull down her jeans and expose her vagina. Beehler digitally penetrated Brisson's vagina. Beehler grabbed the back of Brisson's head and pulled it to his groin, forcing her face and mouth to touch his penis. Brisson did not want to engage in sexual contact but felt forced to cooperate due to Beehler's position of authority and his threats toward her. Beehler later drove to the Hennepin County jail and transferred her into the custody of jail staff.
Brisson sued respondents asserting, as relevant here, various tort claims and a claim for sex discrimination in violation of the MHRA. Respondents brought a motion to dismiss, and the district court granted the motion in part, dismissing all the claims against respondents except for the MHRA claim. The district court reasoned that respondents could not be held liable on the tort claims because Beehler was not acting within the scope of employment when he sexually assaulted Brisson.
Brisson asserted tort claims against respondents for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and negligence per se. Brisson also named Beehler as a defendant, but she did not serve him and he did not appear in this matter. After all the claims against respondents were dismissed, Brisson voluntarily dismissed her claims against Beehler.
Respondents later moved for summary judgment on Brisson's MHRA claim. The district court determined there was "no genuine dispute of fact regarding whether [respondents] knew or should have known of any sexual harassment or potential sexual misconduct by [Beehler]." The district court noted that respondents had introduced evidence that the DOC never received complaints or allegations of sexual misconduct regarding Beehler, that the state had many policies in place to prevent sexual harassment, and had enacted a zero-tolerance policy for sexual abuse or harassment. The district court found that, even viewing the evidence in the light most favorable to Brisson as the nonmoving party, there was no evidence that could be presented establishing that respondents knew or should have known that Beehler would sexually assault Brisson. Based on this determination, the district court granted the summary-judgment motion, dismissed the MHRA claim and entered final judgment.
Respondents also argued they were officially immune from liability. Because the district court granted the summary-judgment motion on the ground that Brisson did not show that respondents knew or should have known of Brisson's conduct, it did not reach the immunity argument.
Brisson appeals.
ISSUES
I. Did the district court err by dismissing Brisson's tort claims?
II. Did the district court err by granting summary judgment on Brisson's MHRA claim?
ANALYSIS
I. The district court erred in dismissing Brisson's tort claims against respondents.
A pleading may be dismissed for "failure to state a claim upon which relief can be granted." Minn. R. Civ. P. 12.02(e). "A claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 603 (Minn. 2014). On appeal, this court reviews de novo whether a complaint sets forth a legally sufficient claim for relief; and we accept the facts alleged in the complaint as true and construe all reasonable inferences in favor of the nonmoving party. Hansen v. U.S. Bank, N.A. , 934 N.W.2d 319, 325 (Minn. 2019). We will uphold dismissal "if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded." Finn v. All. Bank , 860 N.W.2d 638, 653 (Minn. 2015) (quotation omitted).
The district court considered whether respondents were immune from Brisson's tort claims under the MSTCA, Minn. Stat. § 3.736 (2022), and the doctrine of sovereign immunity. Under the MSTCA, the state is subject to liability for torts "caused by an act or omission of an employee of the state while acting within the scope of office or employment." Minn. Stat. § 3.736, subd. 1. "Scope of office or employment" means that "the employee was acting on behalf of the state in the performance of duties or tasks lawfully assigned by competent authority." Minn. Stat. § 3.732, subd. 1(3) (2022). The district court reasoned that Beehler was not acting on behalf of the state at the time of the sexual assault.
Our recent decision in Sterry compels reversal. 986 N.W.2d at 717. In Sterry , a former inmate sued the DOC and a correctional officer alleging that the correctional officer, who was assigned to supervise Sterry and other inmates, engaged in a pattern of sexual harassment and stalking. Id. One time, Sterry was working in the prison kitchen when the officer ordered him into a supply room and fondled his penis without his consent. Id. at 718. The officer threatened Sterry to obtain compliance and continued to sexually harass him. Id. Sterry brought a civil action alleging the DOC was vicariously liable for the officer's tortious conduct. Id. The DOC moved to dismiss the complaint and argued it was immune under the MSTCA. Id. The district court dismissed Sterry's tort claims against the DOC, concluding that the DOC was immune from liability because the MSTCA's "definition of ... scope [of employment] effectively severs the State's liability from [the officer's] sexual contact with Sterry." Id.
In reviewing the district court's analysis, we conducted a two-part analysis by first interpreting the statutory definition of "scope of office or employment," and then examining whether the DOC was entitled to dismissal based on Sterry's allegations related to the officer's scope of employment. Id. at 719. As for the first part of the analysis, we began by noting that "whether an employee's acts fall within the scope of employment is generally a question of fact." Id. at 721 (citing Reetz v. City of Saint Paul , 956 N.W.2d 238, 247 (Minn. 2021) ("[W]hen determining the vicarious liability of an employer, the issue of whether an employee was acting within the scope of their employment is also a question of fact.")). We then considered the interplay between the MSTCA and the common law and concluded that
the only reasonable interpretation of the MSTCA's scope-of-employment definition is consistent with the common law. We see no material reason to differentiate the MSTCA's definition of scope of employment from the common law. Thus, we interpret the MSTCA's definition of scope of employment to be consistent with the common law on scope of employment for vicarious liability.
Id. at 723.
Having determined that the definition of "scope of office or employment" in the MSTCA adheres to the common-law understanding of scope of employment, we next turned to the second part of the analysis to consider whether Sterry's complaint stated legally sufficient tort claims against the DOC. Id. We determined that Sterry's complaint alleged sufficient facts to survive dismissal. Id. at 725. Sterry asserted the officer "was supervising Sterry as a representative of [the DOC] at the time of the sexual assault." Id. at 724. The complaint also alleged the officer was performing department duties and tasks related to her position as a correctional officer. Id. Accepting the facts alleged in the complaint as true, we determined that Sterry's allegations "sufficiently allege that [the officer] acted within her scope of employment as provided in the MSTCA, and so, Sterry's complaint survives the state's immunity-based motion to dismiss." Id. at 725. We therefore determined the DOC was not entitled to dismissal of Sterry's complaint and reversed and remanded for further proceedings. Id.
Applying Sterry to this case, we conclude that Brisson's complaint alleges sufficient facts to withstand dismissal of the tort claims. It is uncontested that Beehler was acting in his official capacity as a correctional officer when he transported Brisson. Beehler was performing tasks assigned by the DOC to maintain custody and control of Brisson when he transported her in his vehicle. In Sterry , we recognized that the officer was authorized, because of her position, to order Sterry into a supply closet and then exercised this authority when she isolated Sterry. Id. at 724. Similarly, Beehler was authorized as a correctional officer to transport Brisson and to isolate her in his vehicle. The complaint asserts that Beehler exercised this authority when he removed Brisson's restraints, ordered her to sit in the front seat, engaged in a sexual conversation with her, and sexually assaulted her. Brisson did not want to participate in this conduct but alleges she felt coerced into cooperating because Beehler threatened her. Beehler told Brisson she "would get into trouble if she told anyone."
Taking the facts alleged in the complaint as true and construing the reasonable inferences in favor of Brisson, Hansen , 934 N.W.2d at 325, we conclude that Brisson's tort claims survive respondents’ motion for rule 12.02(e) dismissal. Thus, we reverse the dismissal of Brisson's tort claims against respondents, and we remand for further proceedings.
II. The district court erred in granting summary judgment on Brisson's MHRA claim against respondents.
On appeal from summary judgment, this court reviews de novo whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Frieler v. Carlson Mktg. Grp. , 751 N.W.2d 558, 564 (Minn. 2008). Interpretation of the MHRA is also subject to de novo review. Kenneh v. Homeward Bound, Inc. , 944 N.W.2d 222, 228 (Minn. 2020). Brisson argues that the district court misapplied the law by requiring her to prove, in order to hold respondents liable for Beehler's discriminatory conduct, that respondents knew or should have known that Beehler would engage in such conduct. We agree.
Brisson's MHRA claim arises under Minn. Stat. § 363A.12, which provides that "[i]t is an unfair discriminatory practice to discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of ... sex." Minn. Stat. § 363A.12, subd. 1. The MHRA defines "public service" as "any public facility, department, agency, board or commission, owned, operated or managed by or on behalf of the state of Minnesota, or any subdivision thereof, including any county, city, town, township, or independent district in the state." Minn. Stat. § 363A.03, subd. 35 (2022). Discrimination includes sexual harassment. Id. , subd. 13 (2022). Sexual harassment means
unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when ... that conduct or communication
has the purpose or effect of substantially interfering with an individual's employment ... or creating an intimidating, hostile, or offensive employment ... environment.
Id. , subd. 43(3) (2022).
While clearly prohibiting discrimination by respondents in the provision of public services, the MHRA does not address whether, or under what circumstances, respondents may be held vicariously liable for discriminatory conduct by employees like Beehler. Cf. Frieler , 751 N.W.2d at 567 (noting that the MHRA is silent on the standard to be applied in determining vicarious liability for supervisor sexual harassment).
In Frieler , the Minnesota Supreme Court addressed whether an employer could be held vicariously liable for sexual harassment by a supervisor in the context of an employment-discrimination claim under the MHRA. Id. at 563. The supreme court first recognized that the MHRA had been amended to remove the requirement, in the employment-discrimination provision, that an employer knew or should have known of the sexual harassment. Id. at 565. Secondly, the court, recognizing that the legislative amendments were intended to conform the MHRA to federal law, adopted the liability standard set forth by the United States Supreme Court in Faragher v. City of Boca Raton , 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Id. at 566-67.
Because the parties had not addressed in their principal briefs whether or how the supreme court's analysis in Frieler applies here, we requested, and the parties provided, supplemental briefing limited to that issue.
Under the Faragher Ellerth standard, employers are vicariously liable for sexual harassment by supervisors, subject to an affirmative defense in cases not involving tangible employment actions. Id. at 570-71.
In Frieler , the Minnesota Supreme Court reasoned that Faragher and Ellerth relied on agency principles that also held application under the MHRA. Id. at 569. Frieler "therefore conclude[d] that the Restatement (Second) of Agency § 219 (1957) ... with its use of the terms ‘master’ and ‘servant,’ guides our analysis of supervisor liability." Id. Under section 219, a master may be liable for the acts of its servant when "there was reliance upon apparent authority, or [the servant] was aided in accomplishing the tort by the existence of the agency relation." Id. at 570. Frieler reasoned that "[b]ecause of the power a supervisor wields over those being supervised, he or she is ... aided by the agency relationship in committing sexual harassment ... and such sexual harassment ought to be held within the scope of the supervisor's employment." Id. The supreme court thus held "that an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over a victimized employee." Id.
Like the supreme court in Frieler , we first conclude that the MHRA does not by its plain language impose the "knew or should have known" standard that respondents advocate for claims of discrimination in public services. Under section 363A.12, "[i]t is an unfair discriminatory practice to discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of race, color, creed, religion, national origin, disability, sex, sexual orientation, or status with regard to public assistance." And under Minn. Stat. § 363A.33 (2022), a person "may bring a civil action seeking redress for an unfair discriminatory practice" in district court. The plain language of these provisions does not require a plaintiff to prove that a public-services employer knew or should have known of a risk of discriminatory conduct by its employee.
Our determination that the plain language of the MHRA does not impose a "knew or should have known" requirement leaves the question of what standard applies for determining when an employer may be held vicariously liable for an employee's discriminatory conduct in relation to the provision of public services. See Frieler , 751 N.W.2d at 567 (identifying this as the second issue in relation to vicarious liability for supervisor harassment). Brisson asserts that the lack of a statutory standard compels application of strict liability. But the supreme court rejected that approach in Frieler . Id. at 567-68 (acknowledging silence of statute but rejecting argument for strict liability). Respondents assert that absent precedential caselaw on public-service sex-discrimination cases, Minnesota courts should apply the standard used in federal hostile work environment cases involving sexual harassment by coworkers. See, e.g. , Warmington v. Bd. of Regents of Univ. of Minnesota , 998 F.3d 789, 799 (8th Cir. 2021). But we are not persuaded that the federal coworker-harassment standard is appropriately applied to a claim for public-services discrimination under the MHRA. See Cummings v. Koehnen , 568 N.W.2d 418, 423 (Minn. 1997) (declining to follow federal caselaw where MHRA was dissimilar to Title VII); N.H. v. Anoka-Hennepin Sch. Dist. No. 11 , 950 N.W.2d 553, 560 (Minn. App. 2020) (declining to apply precedent under employment provision of MHRA to case involving education provision of MHRA). Instead, taking our lead again from Frieler , we conclude that it is appropriate to consider concepts of agency in determining whether vicarious liability applies to claims for sexual harassment in public services under the MHRA.
Respondents assert that Frieler does not apply here because the discrimination asserted in that case was employment discrimination. But there were two employment relationships in Frieler —one between the defendant and the plaintiff and one between the defendant and the supervisor who allegedly sexually harassed the plaintiff. 751 N.W.2d at 561. And the pertinent employment relationship—between the defendant and the alleged sexual harasser—also exists in this case. In Frieler , the supreme court noted that, because "the overwhelming majority of employers are artificial entities ... who can act only through their agents ... concepts of agency law are an inherent part of the actions of employers." Id. at 569 (citation omitted). Here, we note that public services are employers that act through their agents and that, by their very definition, can only be artificial entities. See Minn. Stat. § 363A.03, subd. 35 (defining public service).
Under the Restatement (Second) of Agency § 219(1) (1958), "[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment." See also Frieler , 751 N.W.2d at 583 ("Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of an employee committed within the course and scope of employment.") (quotation omitted). "[A]n employer may be held liable for even the intentional misconduct of its employees when (1) the source of the attack is related to the duties of the employee, and (2) the assault occurs within work-related limits of time and place." Fahrendorff ex rel. Fahrendorff v. N. Homes, Inc. , 597 N.W.2d 905, 910 (Minn. 1999) (quotations omitted). To be within the scope of employment, an "employee's acts must be foreseeable, related to and connected with acts otherwise within the scope of employment." Frieler , 751 N.W.2d at 583 (quotation omitted). "Whether an employee's acts are foreseeable is a question of fact." Id.
Conversely, masters generally are not liable for torts by servants acting outside the scope of their employment. Restatement (Second) of Agency § 219(2). In Frieler , the supreme court discussed the application of an exception to the general rule of nonliability for acts of a servant that were aided by the agency relationship. 751 N.W.2d at 570. The supreme court relied on section 219(2)(d) in determining that it was appropriate to apply the Faragher Ellerth standard to claims of supervisor sexual harassment under the MHRA. Id. The supreme court did not in Frieler discuss the application of the rule of liability under section 219(1), presumably because it determined that the plaintiff had not presented evidence sufficient to show that the sexual harassment in that case was within the scope of employment. Id ., 751 N.W.2d at 584 (affirming summary-judgment dismissal of Frieler's tort claims because she "did not present sufficient evidence on which a reasonable jury could conclude that [the] alleged assault and battery was foreseeable").
In this case, we have concluded that Brisson pleaded facts sufficient to survive a motion to dismiss on the issue of whether Beehler was acting within the scope of his employment. But the parties have not litigated, and the district court has not ruled on, whether Brisson can present sufficient evidence to survive summary judgment on that issue. That question is therefore not within the scope of this appeal, and we express no opinion on it. Instead, we merely hold that the district court erred by granting summary judgment on Brisson's MHRA claim because she could not prove that respondents "knew or should have known" that Beehler would sexually assault Brisson.
Given the posture of this litigation, we need not and do not decide whether, or in what fashion, the liability standard and affirmative defense adopted for supervisor harassment in Frieler might apply to the factual circumstances of this case. In the alternative to her statutory interpretation argument, Brisson argues that Beehler's status is comparable to that of a supervisor in an employment-discrimination case, but she does not address the availability of the affirmative defense. Respondents resist the application of Frieler in its entirety. We are persuaded that Frieler requires the application of agency principles to determine vicarious liability under the public-services provision of the MHRA. But because the parties have not yet litigated the issue of whether Beehler was acting within the scope of his employment, it would be premature for us to address the application of the Frieler standard, which applies as an exception to the general scope-of-employment rule.
Respondents argue that summary judgment should be affirmed on the alternative ground that they are officially immune from liability. But respondents’ immunity argument focuses on their policy of having a single officer transport female prisoners, rather than the conduct challenged by Brisson's MHRA claim—Beehler's sexual assault of her during the transport. See Gleason v. Metro. Council Transit Operations , 582 N.W.2d 216, 219 (Minn. 1998) (explaining that immunity analysis requires identification of "precise governmental conduct" and determining that conduct at issue was "a specific instance of disability discrimination," rather than general policies). Respondents do not assert that Beehler had discretion to assault Brisson or could have reasonably believed that assaulting her would not violate the MHRA or other applicable law. See State by Beaulieu v. City of Mounds View , 518 N.W.2d 567, 571 (Minn. 1994) (recognizing availability of official-immunity defense to MHRA claim but stating that immunity does not apply when "official has intentionally committed an act that he or she had reason to believe is prohibited"). Respondents thus have not met their burden to prove that Beehler was entitled to official immunity or they, by extension, to vicarious official immunity. See Rehn v. Fischley , 557 N.W.2d 328, 333 (Minn. 1997) (holding that "a defendant relying upon an immunity bears the burden of proving he or she fits within the scope of the immunity").
DECISION
We reverse and remand the district court's dismissal order related to Brisson's tort claims because Sterry compels a conclusion that "course or scope of employment" should be given its common law meaning. We also hold that Minn. Stat. § 363A.12 does not require a plaintiff to show that a public-services employer knew or should have known that their employee would engage in acts of sex discrimination or harassment. We therefore reverse the district court's grant of summary judgment on Brisson's sex-discrimination claim under the MHRA and remand for further proceedings.