David Berger, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1342

David Berger,
Respondent,

vs.

Timothy Wynes, et al.,
Appellants.

Filed April 16, 2018
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 Timoth y 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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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants Timothy Wynes and Nicole Meul emans appeal from the district court’s
denial of their motions for summary judgmen t based on qualified and official immunity,
respectively. We affirm in part, reverse in part, and remand.
FACTS
Respondent David Berger is a faculty me mber at Inver Hill Community College
(IHCC). He is also a grievance representative for the faculty union at the college.
In late January 2016, the IH CC 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, a nd posted the results of the no-confidence
vote on that webpage. Resp ondent 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 to ld N.B. that he did not feel
like he could talk to the Student Senate Pr esident because respondent would not like him

1 For the reader’s ease, and to preserve the student’s anonym ity, we refer to the student
who is central to the facts of this case as “Student 1” and not by his name or initials.

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if he did. This statement made N.B. concer ned, 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 cont act 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 wi th respondent, N.B. sent an email to
appellant Nicole Meulemans, the Student Life Director at IHCC, in cluding the chain of
emails to and from respondent that complain ed about respondent’s conduct toward N.B.
Meulemans spoke with N.B., an d 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 compla int to Mark Carlson, the Vice Chancellor of HR for
the Minnesota State College an d 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 bei ng 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 re garding the investigati on 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 notif ying persons who woul d be interviewed,
including Student 1. N.B. informed VanderWiel that Student 1 was concerned and anxious
about being interviewed. N.B. reported to Va nderWiel that Student 1 had told her that
respondent stopped Stude nt 1 and told him to be carefu l of N.B., that N.B. interfered
between respondent and a student, that N.B ha d 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 inte rview. 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 wo uld meet with Vander Wiel. According to
Meulemans, she and Student 1 walked from Student 1’s wo rkplace 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, th reaten his job, or tell him that respondent’s
conduct was unacceptable.
VanderWiel interviewed Student 1, but di d 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 fo r talking to her. Meulemans
remained in the room for at least part of Student 1’s interview.
In a deposition taken after this lawsuit wa s 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 opi nion, but said that he felt some pressure
that prevented him from saying anything good about respondent.
After VanderWiel completed her investigat ion, 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 Workpla ce Policy. Vice Chancellor Carlson then
informed respondent that he could return to work.
Southwest Minnesota State University Pr esident Connie Gores was asked by the
general counsel’s office to review the inve stigation 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 da ys 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 in formation to Gores, including two
affidavits indicating that Meulemans pressured Student 1 to make false statements during
the investigation. After receiving thos e affidavits, Gores requested a follow-up
investigation, which revealed “no evidence that Meulemans thr eatened or coerced
[Student 1] into making false statements.”
After reviewing the affidavits and the fo llow-up investigation report, Gores sent
respondent a letter on August 22, 2016, conf irming 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 indi vidually 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 Wyne s after reaching a settlement. After
completing discovery, both parties moved for summary judgment. Appellants raised
immunity defenses to the claims asserted ag ainst 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 relati ng to the First Amendment reta liation claim against Wynes

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under 42 U.S.C. § 1983, a nd the tortious-interference- with-contract claim against
Meulemans.
D E C I S I O N
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 tria l exists “[w]here the
record taken as a whole could not lead a rati onal trier of fact to find for the nonmoving
party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S. Ct. 1348,
1356 (1986)). We “view the evidence in the light most favorable to the party against whom
judgment was granted.” Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993). “The
district court’s function on a motion for summary judgment is not to decide issues of fact,
but solely to determine whether genuine factual issues exist.” DLH, Inc., 566 N.W.2d at
70. As such, “a court deciding a summary-judgment motion must not make factual findings
or credibility determinations or otherwise weigh evidence re levant to disputed facts.”
Geist-Miller v. Mitchell, 783 N.W.2d 197, 201 (Minn. App. 2010). “We review a district
court’s summary judgment decision de novo. In doing so, we determine whether the
district court properly applied the law and whether there are genuine issues of material fact
that preclude summary judgment.” Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC,
790 N.W.2d 167, 170 (Minn. 2010) (citation omitted).

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I. Qualified immunity bars appellant’s First Amendment retaliation claim
against Wynes under 42 U.S.C. § 1983.

Wynes challenges the district court’s deni al of his motion for summary judgment
on the First Amendment retaliation claim and argues that qualified immunity renders him
immune from suit.
Qualified immunity is intended to shield government officials from liability and the
burdens of litigating a section 1983 claim for damages in some circumstances. Robbins v.
Becker, 794 F.3d 988, 993 (8th Cir. 2015). “S tate officials are entitled to qualified
immunity when ‘their conduct does not vi olate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Electric Fetus Co.
v. City of Duluth, 547 N.W.2d 448, 452 (Minn. App. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)), review denied (Minn. Aug. 6, 1996). A
right is clearly established wh en “existing precedent . . . ha[s] placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct.
2074, 2083 (2011). “The test for qualified immunity at the summary judgment stage is an
objective one.” Electric Fetus, 547 N.W.2d at 452 (quoting Johnson v. Hay, 931 F.2d 456,
460 (8th Cir. 1991)). We review the applicability of immunity de novo. Kariniemi v. City
of Rockford, 882 N.W.2d 593, 599 (Minn. 2016).
The “allegations in a complaint may provide the basis for denying an immunity
defense.” Gleason v. Metro. Council Transit Operations , 563 N.W.2d 309, 318 (Minn.
App. 1997) (emphasis in original), aff’d in part, 582 N.W.2d 216 (Minn. 1998). The court
“need not consider the correctness of the plaintiff’s version of the facts, nor even determine

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whether the plaintiff’s allegations actually stat e a claim. All it n eed determine is . . .
whether the legal norms allegedly violated by the defendant were clearly established at the
time of the challenged actions.” Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806,
2816 (1985).
Here, the district court analyzed respon dent’s First Amendment rights at a high
level, and determined that respondent’s “support and pr omotion of the vote of no
confidence taken against Defendant Wynes” was protected by the First Amendment. The
district court considered respondent’s alle gations that Wynes au thorized an adverse
employment action against respondent because of his protected conduct. It then concluded
that qualified immunity does not protect Wynes for actions taken against respondent for
respondent’s exercise of his First Amendment rights.
We first consider the specific actions alle ged by respondent to have been taken by
Wynes in violation of his cl early established constitutional rights. Respondent contends
that Wynes, according to the February 12 , 2016 letter of Chief HR Officer Brusoe,
“authorized” a paid investigative leave fo r respondent while VanderWiel investigated
respondent’s conduct toward N.B. Resp ondent makes no other allegation concerning
Wynes’s involvement in the i nvestigation or decision-making process. Respondent does
not dispute that N.B. registered a complaint with administration concerning respondent’s
behavior during their interaction. There is no evidence or allegation that Wynes was
responsible for or influenced the creation or reporting of this complaint.
The district court focused its analysis on whether respondent has a free-speech right
and whether he claims that ri ght to have been violated by Wynes’s involvement in his

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leave. To be sure, re spondent has a right to speak freely, especially on matters of public
concern, including the criticism of a public empl oyer in his capacity as a public official.
Belk v. City of Eldon , 228 F.3d 872, 878 (8th Cir. 2000 ). The First Amendment protects
public employees from retaliation for exercising First Amendment rights. Smith v.
Arkansas State Highway Emp., Local 1315 , 441 U.S. 463, 464-65 , 99 S. Ct. 1826, 1828
(1979).
We think that a more precise focus on th e complained-of cond uct is needed to
properly analyze Wynes’s immu nity defense. At most, Wynes authorized respondent’s
investigatory leave after N.B. complained ab out respondent’s behavior. A person sued
under 42 U.S.C. § 1983 is immune from su it unless the particular conduct in question
violates a clearly established right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015); cf. Bryan
v. McPherson, 590 F.3d 767, 781 (9th Cir. 2009) (hol ding that there is no immunity for a
police officer using a stun gun on an unarmed, stationary man wearing nothing but boxer
shorts and facing away from th e officer, despite the absence of “closely analogous case
law” because the officer’s conduct “so clearly offends . . . constitutional rights”).
We are aware of no existing precedent or case law holding that a public employee’s
First Amendment rights are vi olated when the public employee is placed on paid
investigative leave while a bona fide complain t against the employee is investigated. It
matters not that the public employee previously engaged in First Amendment activities.
Respondent did not have a clearly established ri ght to not be placed on paid investigative
leave in response to a bona fide complaint. Respondent identifies no controlling law
establishing such a right, and we know of none. Therefore, and even if we assume it to be

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true, as respondent claims, that Wynes explic itly authorized the pa id leave, Wynes is
entitled to qualified immunity.
We reverse and remand with instructions that the district court dismiss respondent’s
section 1983 claim against Wynes because Wy nes is entitled to qua lified immunity on
these undisputed facts.
II. Official immunity does not protect Meulemans from respondent’s tortious-
interference-with-contract claim on this factual record.

Meulemans likewise challenges the distri ct court’s denial of her motion for
summary judgment. She argues that she is entitled to offici al immunity on the claims
against her for tortious interference with respondent’s contract with IHCC.
The district court did not expressly analyze Meulemans’s official-immunity
argument, and instead focused on whether respondent had established a prima facie case
of tortious interference with contract. It denied Meulemans’s summary-judgment motion
and implicitly concluded that Meulemans is not entitled to official immunity. We review
questions of official immunity de novo. Kariniemi, 882 N.W.2d at 599.
Under the common law, official immunity prevents public officials charged by law
with duties that “call for the exercise of [j]udgment or discretion from being held personally
liable to an individual for damages,” unless the official is guilty of a willful or malicious
wrong. Schroeder v. St. Louis Cty., 708 N.W.2d 497, 505 (Minn. 2006) (internal quotation
omitted). “Official immunity enables public employees to perform their duties effectively,
without fear of personal liability that might inhibit the exercise of their independent
judgment.” Mumm v. Mornson , 708 N.W.2d 475, 490 (Mi nn. 2006) (citation omitted).

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Generally, official immunity “turns on: (1) the conduct at issue; (2) whether the conduct
is discretionary or ministerial . . . ; and (3) if discretionary, whether the conduct was willful
or malicious.” Kariniemi, 882 N.W.2d at 600 (quotation omitted and alteration in original).
Meulemans, as the party asserting immunity , bears the burden of establishing its
applicability. See Meier v. City of Columbia Heights , 686 N.W.2d 858, 863 (Minn. App.
2004), review denied (Minn. Dec. 14, 2004).
Because only discretionary decisions are immune from suit, “[t]he starting point for
analysis of an immunity question is the identification of the precise governmental conduct
at issue.” Huttner v. State, 637 N.W.2d 278, 284 (Minn. App. 2001) (quotation omitted),
review denied (Minn. Nov. 13, 2001). Here, respondent is challenging Meulemans’s
involvement in the VanderWi el investigation, includin g bringing Student 1 to be
interviewed, making comments to Student 1 about respondent, and being present during
Student 1’s interview.
Next, we determine whether the challenged conduct is ministerial or discretionary.
Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). Respondent argues,
for the first time on appeal, that Meulemans’s actions were ministerial. Generally, a party
may not raise an issue or argument for the first time on appeal. Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988). “The modern caselaw makes it abundantly clear that, as a general
rule, if an appellant fails to preserve an argument or issue in district court proceedings, the
issue or argument is forfeited and may not be asserted in an appellate court.” Doe 175 ex
rel. Doe 175 v. Columbia Heights Sch. Dist., ISD No. 13, 842 N.W.2d 38, 43 (Minn. App.

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2014). Respondent forfeited the argument that Meulemans’s conduct was ministerial by
not raising it to the district court.
Moreover, and even if respondent did not forfeit this argument, Meulemans’s
conduct was clearly discretionary. “A discre tionary act involves individual professional
judgment, reflecting the professional goal and factors of a situation.” Huttner, 637 N.W.2d
at 284. By contrast, a minist erial act is “one that is ab solute, certain and imperative,
involving merely the execution of a specific duty arising from fixed and designated facts.
A ministerial duty leaves nothing to discretion; it is a simple, definite duty arising under
and because of stated conditions.” Mumm, 708 N.W.2d at 490 (citations and quotations
omitted). Respondent conc eded at oral argument that th ere are no facts in the record
showing that any policy explic itly guided or direct ed Meulemans’s conduct. Nothing in
the record indicates that sh e had an “absolute, certain and imperative” duty to bring
Student 1 to the interview or otherwise involve herself in the VanderWiel investigation.
To the contrary, it seems by all accounts that Meulemans had no duty to be involved in the
investigation at all. She participated in the exercise of her discretion.
Because Meulemans’s actions were disc retionary, she is en titled to official
immunity unless her conduct was willful or malicious. See Majeski, 842 N.W.2d at 462.
“Discretionary conduct is . . . not protected if the official committed a willful or malicious
wrong.” Elwood v. Rice Cty., 423 N.W.2d 671, 679 (Minn. 1988) (emphasis in original).
“Malice means nothing more th an the intentional doing of a wrongful act without legal
justification or excuse, or, otherwise stated , the willful violation of a known right.” Rico
v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quotation omitted). “In the official immunity

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context, wilful [sic] and malicious are synonymous.” Id. “The exception to immunity for
malicious acts allows liability ‘only when an o fficial intentionally commits an act that he
or she then has reason to believe is prohibited.’” Majeski, 842 N.W.2d at 465 (quoting
Rico, 472 N.W.2d at 107). The existence of malice is generally a fact question, Kelly v.
City of Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999), but a reviewing court may
resolve the question as a matter of law if th ere are no genuine issues of material fact, see
Frankson v. Design Space Int’l, 394 N.W.2d 140, 144-45 (Minn. 1986).
There remains an unresolved and material fact question of whether Meulemans
acted with malice. 2 There is record evidence that Meulemans brought Student 1 to the
interview after he had previously stated that he did not want to participate, that she told
Student 1 that respondent’s conduct was “unacceptable,” and that she remained in the room
during Student 1’s unrecorded interview (when all of the other interviews conducted during
the investigation were recorded). On this record, a factfinder could determine that
Meulemans acted with malice. Given the conflicting depo sition testimony concerning
what comments, if any, Meulemans made to Student 1 and the length of time Meulemans
was present during Student 1’s interview, a ge nuine issue of material fact remains.
Accordingly, the record does not support Meulemans’s official-immunity claim as a matter

2 The district court determined that resp ondent “made a prima facie case for tortious
interference.” This determination is not challenged on appeal, and our special-term order
limited the scope of this appeal to the imm unity issues. Accordingly, Meulemans argues
on appeal only that her conduct was discretionary and that there is no evidence to support
a finding that she acted with malice.

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of law. The district court did not err wh en it denied Meulemans’s summary judgment
motion.
In sum, we reverse the district court’s denial of summary judgment to Wynes.
Because respondent had no clearly established right to not be placed on paid investigatory
leave while a bona fide complaint not made or influenced by Wynes was investigated,
Wynes is immune as a matter of law from the 42 U.S.C. § 1983 claims against him. But
we affirm the district court’s denial of summary judgment concerning respondent’s claims
against Meulemans, and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.