Opinion
No. C1-97-520.
Filed October 7, 1997.
Appeal from the District Court, Kandiyohi County, File No. C1951062.
Jeffrey W. Post, (for Appellants).
James R. Andreen, Erstad Riemer, P.A., (for Respondents).
Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellants, former firefighters, challenge the trial court's summary judgment for respondents, the city and its fire chief, that dismisses claims of retaliation for reporting falsified roll call sheets and fire call responses by a drunken firefighter. The trial court reasoned that the alleged retaliatory harassment predated the drinking-event reports and that the time sheet fraud concerned unprotected conduct involving internal affairs. We reverse the summary judgment.
FACTS
Respondent City of Willmar formerly employed appellants as firefighters. Appellant Bradley Lundquist was a former fire chief who continued to serve as a firefighter. The fire station suffered internal discord between firefighters who supported the present fire chief, respondent Douglas Lindblad, and those firefighters, including appellants Joseph Hedglin and Robert Grove, who remained loyal to Lundquist.
In 1992, Grove and Lundquist began reporting alleged misconduct by other firefighters to chief Lindblad, the city administrator, and members of the city council. In March 1992, Grove told the city's community development director that several firefighters had responded to fire calls and driven fire trucks while drunk; he repeated these accusations to the city administrator in July 1992 and then to city council members. During the summer of 1992, Lundquist also told Lindblad that firefighters had responded to fire calls while drunk. In May 1992, Lundquist reported to a city council member and the city administrator that assistant fire chief Michael Schroeder had falsified roll call sheets to receive pay for days he was not present.
Although a few firefighters had harassed Grove for other reasons before his initial report, the harassment continued. Sometime after these reports, chief Lindblad told other firefighters not to talk to Lundquist and Grove. The accused firefighters and others loyal to Lindblad evidently harassed Lundquist and Grove by shunning them, calling them names, refusing to let them ride to fire calls on certain trucks, and hiding or tampering with their equipment. Grove and Lundquist also found their boots soaked with a liquid that Grove suspected was urine, and report that other firefighters would drive around Lundquist's and Grove's houses at night, honking their horns. In the fall of 1992, Lindblad attempted to discharge Lundquist and Grove for failing to respond to a sufficient number of fire calls. Although the city administrator reinstated them, the department still placed them on probation.
In May 1993, Hedglin told the city administrator that Schroeder had falsified roll call sheets again. At this time, other firefighters reportedly began to harass Hedglin and the other appellants. The harassment continued despite appellants' complaints. In 1994 and 1995, each appellant resigned, citing medical reasons.
Appellants brought a retaliation action against the city and Lindblad, alleging, among other claims, constructive discharge, infliction of emotional distress, and violations of the so-called whistleblower statute. In December 1996, the trial court granted summary judgment for respondents, dismissing appellants' claims.
DECISION
Viewing the evidence in a light most favorable to the party against whom judgment was granted, an appellate court is to determine whether any issues of material fact remain and whether the trial court misapplied the law. Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993); State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). We need not defer to a trial court's decision on a pure question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984).
1. Retaliation
Appellants assert a retaliation cause of action under the whistleblower statute, which prohibits an employer from discriminating against an employee because the employee, "in good faith, reports a violation or suspected violation of any federal or state law or rule" to the employer or to "any governmental body." Minn. Stat. § 181.932, subd. 1(a) (1996). To establish a prima facie case of retaliation, the employee must show statutorily-protected conduct by the employee, adverse employment action by the employer, and a causal connection between the two. Hubbard v. United Press Int'l, Inc. , 330 N.W.2d 428, 444 (Minn. 1983); Cox v. Crown CoCo, Inc. , 544 N.W.2d 490, 496 (Minn.App. 1996).
a. Fact issues
Appellants first contend that they presented a jury question regarding their reports about intoxicated firefighters, asserting that the trial court erred by finding that the harassment of appellants predated Grove's initial report. The record raises issues of material fact regarding the times when the harassment occurred. The voluminous record contains various evidence of harassment after the first report, including, at least, (a) Lindblad ordering other firefighters not to talk to appellants, (b) someone filling Grove's and Lundquist's boots with a liquid thought to be urine, (c) other firefighters driving around their houses at night while honking their horns, and (d) the fire department placing Grove and Lundquist on probation after its unsuccessful attempt to fire them. Although other firefighters may have harassed Grove before his first report, we must view the evidence in a light most favorable to appellants. Fabio , 504 N.W.2d at 761. A jury reasonably could conclude that the harassment continued as a result of appellants' drunkenness reports.
The trial court did not determine whether appellants showed evidence of intoxicated firefighters such that appellants' reports constituted protected conduct. This issue also presents a fact question.
Finally, the trial court impliedly suggests that appellants did not make their reports in good faith because the ongoing "feud" within the fire department probably motivated their allegations. "Whether a plaintiff made a report in `good faith' is a question of fact." Rothmeier v. Investment Advisers, Inc. , 556 N.W.2d 590, 593 (Minn.App. 1996), review denied (Minn. Feb. 26, 1997).
b. Legal issues
Finding that appellants' allegations regarding the roll call falsification were not actionable, the trial court reasoned that these allegations concerned internal management problems that did not implicate the public interest, citing Vonch v. Carlson Cos. , 439 N.W.2d 406, 408 (Minn.App. 1989) (holding that not all whistleblower activity comes within public policy exception to the doctrine that employee can be discharged at the will of the employer; holding that the exception does not extend to reports of misconduct primarily concerning internal affairs of a private company, because "the public does not have an interest in a business's internal management problems"), review denied (Minn. July 12, 1989); see Phipps v. Clark Oil Ref. Corp. , 408 N.W.2d 569, 571 (Minn. 1987) (declaring that public policy exception to at will doctrine only protects a discharged employee's conduct involving a "clearly mandated public policy"). In Vonch , a corporate security employee reported to a corporate officer that his supervisor had committed travel and expense fraud, and the company subsequently discharged him. Vonch , 439 N.W.2d at 407. This court concluded that the public's interest in charging the "chief corporate security officer * * * with corporate travel and expense improprieties is minimal, at best." Id. at 408. The court reasoned that the purpose of this exception is "to protect the general public from injury due to a company's neglect or affirmative bad act," not "to protect the employee from discharge." Id.
Even if Vonch were regarded as a construction of the whistleblower statute, it is error to conclude that appellants' reports of fraudulent roll call sheets did not fall within the whistleblower statute's protected conduct. Vonch does not limit application of the statute to internal management violations that involve the misappropriation of public funds. Moreover, the trial court erred in concluding that no authority existed that would characterize a report on the illegal taking of public funds as protected conduct. See Smith v. Mitre Corp. , 949 F. Supp. 943, 951-52 (D.Mass. 1997) (holding that employee's report of alleged fraud by federal contractor, "even when that whistleblowing is confined within the company," was "sufficiently important" to invoke whistleblower protection under Massachusetts law); Hutson v. Analytic Sciences Corp. , 860 F. Supp. 6, 9-10 (D.Mass. 1994) (holding that employee's report of employer overbilling government on project invoked whistleblower status under Massachusetts law); Vigil v. Arzola , 699 P.2d 613, 621 (N.M.Ct.App. 1983) (holding that employee who reported misuse of public funds by director of non-profit corporation had retaliatory discharge cause of action), rev'd in part on other grounds , 687 P.2d 1038 (N.M. 1984), overruled in part on other grounds , Chavez v. Manville Prods. Corp. , 777 P.2d 371 (N.M. 1989); see also Collier v. Superior Court , 279 Cal.Rptr. 453, 455-56 (Ct.App. 1991), review denied (Cal. June 27, 1991) (holding that employee who reported, among other alleged wrongdoing, possible tax evasion by other employees had wrongful discharge cause of action); cf. Nichols v. Metropolitan Ctr. for Indep. Living, Inc. , 50 F.3d 514, 517 n. 4 (8th Cir. 1995) (stating, in dicta, that under Minnesota's whistleblower law, "an employer that dishonestly obtains or retains a government-bestowed benefit, for example, by submitting a false report or misleading a government official, in most cases is breaking the law"). We conclude that appellants' allegations regarding the falsification of time sheets to obtain public funds, if proven, are protected conduct under the whistleblower statute.
As indicated in the text, Vonch , a wrongful discharge case, concerned the public policy exception to the general rule of employment at will and does not deliberately construe the breadth of the whistleblower statute. According to its language, some alleged violations of the whistleblower statute may not involve matters of public interest to come within the at-will exception for discharge. Vonch does not appear to address the question of whether the reporting of internal business management problems might be protected conduct under the whistleblower act for purposes of a direct action under the whistleblower statute.
2. Other Issues
a. Statute of limitations
On appeal, respondents argue that the statute of limitations barred appellants' intentional infliction of emotional distress and whistleblower claims. See Minn. Stat. § 541.07(1) (1996) (stating that two-year statute of limitations applies to intentional torts); Larson v. New Richland Care Ctr. , 538 N.W.2d 915, 921 (Minn.App. 1995) (classifying whistleblower actions as tort claims subject to two-year statute of limitations under Minn. Stat. § 541.07(1)), review denied (Minn. Mar. 4, 1997). Although respondents raised this issue before the trial court, the court did not address it. We will not consider the applicability of the statute of limitations on appeal, even though a party raised the issue in the trial court, "if it was not passed on by the trial court" and especially when the facts on which the limitations issue rests are in dispute. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). Moreover, respondents did not file a notice of review, and this court will not consider an issue raised on appeal by respondents if they failed to file a notice of review. Arndt v. American Family Ins. Co. , 394 N.W.2d 791, 793-94 (Minn. 1986) (holding that court of appeals properly declined to address issue raised by respondent because it neglected to file notice of review); see Minn.R.Civ.App.P. 106 (requiring a respondent to file a notice of review to obtain review of an issue). Because the trial court did not address the limitations issue, the parties dispute the underlying facts, and respondents neglected to file a notice of review, we will not consider this issue as part of this appeal.
b. Infliction of emotional distress and constructive discharge
Appellants also raised claims of intentional infliction of emotional distress and constructive discharge as part of their retaliation cause of action and offer of damages. Because appellant has asserted symptoms of distress that are not confirmed by medical evidence, the trial court did not err in dismissing the related claim. Hubbard , 330 N.W.2d at 440.
The trial court concluded that the resignations of appellants estopped them from claiming a constructive discharge. Because there are fact issues on the claim of constructive discharge and on the estoppel question as to city knowledge of the real cause of appellants' resignations, issues not unlike those that must be resolved for purposes of appellants' whistleblower claim, we reverse the judgment dismissing the constructive discharge claim. See Northern Petrochem. Co. v. United States Fire Ins. Co. , 277 N.W.2d 408, 410 (Minn. 1979) (declaring that application of estoppel "depends on the facts of each case and is ordinarily a fact question for the jury to decide"); Ridgewood Dev. Co. v. State , 294 N.W.2d 288, 292 (Minn. 1980) (putting upon party claiming estoppel the burden to demonstrate "that [they] suffered some loss through [their] reasonable reliance on that conduct"). We note also that the record does not show whether the city contributed to pension benefits for appellants that were paid as a result of their report of a medical resignation or that the city otherwise suffered any loss due to reliance on these reports. See Transamerica Ins. Group v. Paul , 267 N.W.2d 180, 183 (Minn. 1978) (stating reliance and lack of knowledge of true facts among ingredients of an estoppel claim).
c. Motion to strike
Respondents moved this court to strike a deposition from appellants' appendix because appellants did not present this deposition to the trial court until after it already had issued its order granting summary judgment for respondents. This court recently ruled that a party cannot supplement the trial court record with new evidence, known at the time of the summary judgment motion, after the trial court already has granted summary judgment. Sullivan v. Spot Weld, Inc. , 560 N.W.2d 712, 716 (Minn.App. 1997) (striking evidence submitted to trial court with "motion to reconsider" from record on appeal), review denied (Minn. Apr. 24, 1997). Because appellants submitted this deposition with its motion to reconsider after the trial court had granted summary judgment, we grant respondents' motion to strike.