Debra Sakrison, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0343

Debra Sakrison,
Appellant,

vs.

City of Gilbert,
Respondent.

Filed December 14, 2020
Affirmed
Gaïtas, Judge

St. Louis County District Court
File No. 69VI-CV-19-30

Shawn B. Reed, Bray & Reed, Ltd., Duluth, Minnesota (for appellant)

Jessica E. Schwie, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for
respondent)

Considered and decided by Hooten, Pres iding Judge; Frisch, Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
Appellant Debra Sakrison challenges the di strict court’s dismissal of her claims
against her former employer, respondent City of Gilbert (the city), stemming from the
termination of her employment as city clerk-treasurer. On the city’s motion for summary
judgment, the district court rejected Sakrison ’s three claims for (1) retaliatory discharge

2
under the Minnesota Whistleblower Act (MWA), (2) age and gender discrimination under
the Minnesota Human Rights Act (MHRA), and (3) defamation per se. Because the record
confirms that there are no genuine issues of ma terial fact and Sakrison’s claims fail as a
matter of law, we affirm.
FACTS1
The city hired Sakrison as c ity clerk-treasurer in June 2013.2 According to the city’s
charter and Sakrison’s complaint, her duties as city clerk-treasurer included: facilitating
and keeping records of city council meetings , maintaining the city’s bank accounts,
preparing financial information and offeri ng recommendations to the city council and
mayor, overseeing data privacy practices , performing administrative tasks, and
administering oaths of office to elected city officials. Early in her tenure, Sakrison had a
cordial working relationship and worked closely with the mayor and city council. But in
July 2015, she began to experience conflic t with certain city councilmembers, and she
eventually complained to the mayor about one councilmember.
The city held an election in 2016, leadi ng to the election of a new mayor and several
new city councilmembers with terms beginning January 2017. Over the next two years, a
number of conflicts arose between Sakrison and the newly elected officials, three of which
are relevant to this summary-judgment appeal.

1 We present the facts here in the light most favorable to Sakrison, the nonmovant.

2 The district court’s order states the city hired Sakrison in 2003. But Sakrison’s complaint,
oppositional memorandum to summary judgment, and brief to this court indicate she was
hired in 2013. We presume Sakrison offered the correct date and began her employment
with the city in 2013.

3
First, before taking the oath of offi ce, the mayor-elect and various incoming
councilmembers scheduled a meeting with an engineering company and officials from a
neighboring town to discuss a wastewater trea tment project. According to Sakrison, she
emailed the engineering company weeks before the December 2016 meeting date to cancel,
stating, “[i]t will not be appropriate for individuals not currently sitting on the City Council
to be involved in this type of a meeting. After the new members take their oaths of office
it will be appropriate to cond uct an informational session to bring them up to speed.” 3
When the meeting date arrived, representatives of the engineering company did not appear.
But the other attendees, who were unaware of Sakrison’s email to the engineering
company, waited in the meeting location for about 15 minutes. Then, Sakrison entered the
room and informed everyone she had cancelled the meeting. Sakrison told the mayor-elect
that she was not yet mayor and the new councilm embers had not yet taken office, so they
were unable to hold a meeting about the wastewater project.
Second, a few weeks after the cancelled meeting, the city’s IT administrator
contacted Sakrison about a request from the ma yor-elect and a city councilmember. He
told Sakrison that they had asked him to turn over IT in formation, including login
credentials for all city computers and those used by certain police departments. Sakrison

3 In opposing summary judgment, Sakrison submitted a copy of he r own written notes
about the content of the email; she also quoted from the same email in pleading the factual
description of her complaint. We note the record does not contai n a copy of Sakrison’s
email or any other evidence corroborating the contents of the email she sent to the company
before the meeting date. But, for purposes of summary judgment, we view the facts in the
light most favorable to Sakrison. We therefore assume her description is accurate, and the
city does not contend otherwise.

4
and the IT administrator discussed the situa tion and potential data pr actices implications,
and the IT administrator ultimat ely did not furnish the request ed information. Over the
next few months, the IT administrator was put on leave and eventually discharged for
reasons unrelated to the request for informati on; his termination led to a separate lawsuit
against the city. Despite the city’s instruction that all wo rk-related communications with
the IT administrator go through the city’s a ttorney, Sakrison sent the IT administrator
emails containing general city council inform ation and copies of meeting minutes. She
also contacted the city’s tec hnology service provider and requ ested all emails sent to the
IT administrator’s work email be forwarded to his personal email address.
Third, around Decembe r 2017, the city council contem plated changing the city’s
employee health plans to reduce costs. On e councilmember explored options for a new
plan and obtained quotes from different providers. That councilmember asked Sakrison to
follow up with a provide r for information about pricing. Sakrison refused. She told the
councilmember that all changes to health plans must first be approved by the union.
In April 2018, the city hired a third-party investigator to review eleven allegations
of employment misconduct against Sakris on. The investigator’s findings were
summarized in a final report that substantiated five of the allegations: (1) providing email
access to the IT administrator, an ex-employee who was then suing the city; (2) failing or
refusing to provide the city council with requested in formation; (3) preventing
councilmembers from holding a meeting on a wastewater project; (4) promising a
secretarial position to a job a pplicant, and making an inap propriate comment on gender
regarding hiring decisions; (5) “show[ing] a lack of professionalism” and acting “openly

5
hostile and sarcastic.” After receiving the investigative report, the city council terminated
Sakrison’s employment during a special meeting in July 2018.
Sakrison sued the city for wrongful termination in violation of the MWA,
employment discrimination under the MHRA, and defamation per se. The city moved for
summary judgment. The district court gran ted the city’s motion, summarily dismissed
Sakrison’s complaint, and directed entry of judgment for the city.
This appeal follows.
D E C I S I O N
The district court “shall grant summary ju dgment if the movant shows that there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.” Minn. R. Civ. P. 56.01. Appellate courts revi ew a district court’s summary-
judgment dismissal de novo. See Warren v. Dinter, 926 N.W.2d 370, 374-75 (Minn. 2019).
In performing that review, appellate courts study the facts through a lens most favorable to
the nonmovant by resolving all doubts and factual inferences in the nonmovant’s favor. Id.
To survive summary judgment, the nonmovant must “extract specific, admissible facts
from the record that demonstrate that a genuine issue of material fact exists.” Beecroft v.
Deutsche Bank Nat’l Tr. Co., 798 N.W.2d 78, 82 (Minn. App. 2011) (quotation omitted),
review denied (Minn. July 19, 2011). “A genuine issue of fact exists when reasonable
minds can draw different conclusions from the evidence presented.” 328 Barry Ave., LLC
v. Nolan Props. Grp., LLC, 871 N.W.2d 745, 751 (Minn. 2015).
With these principles in mi nd, our task is to consider whether the record evidence
creates a genuine issue of material fact on each element of Sakrison’s three claims and

6
whether the district court appropriately applied the law. STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). Summary judgment will be affirmed “if
it can be sustained on any grounds,” Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150,
163 (Minn. 2012), which means “[t]his court can, if it needs to, affirm summary judgment
on alternative theories pres ented but not ruled on at the district court level,” Nelson v.
Short-Elliot-Hendrickson, Inc., 716 N.W.2d 394, 402 (Minn. App. 2006), review denied
(Minn. Sept. 19, 2006).
I. The district court properly determined that the city is entitled to summary
judgment on Sakrison’s whistleblower claim.

Sakrison’s first claim agains t the city is that she was terminated for “blowing the
whistle” by either reporting an illegality or refusing the city’s order to perform an unlawful
act. To withstand summary judgment, Sakr ison must demonstrate a genuine issue of
material fact on each element of her whistleblower claim. We determine that she has not
done so.
The MWA shields employees from employe r retribution when the employee’s
conduct qualifies as whistleblowing activity under the statute. Minn. Stat. § 181.932, subd.
1(1)-(6) (2018). An employee is protected where the employee “in good faith, reports a
violation, suspected violation, or planned violation of any federal or state law . . . to an
employer or to any governme ntal body or law enforcemen t official.” Minn. Stat.
§ 181.932, subd. 1(1). A “report” occurs when the employee communicates verbally, in
writing, or electronically about an actual, suspected, or planned violation of the law. Minn.
Stat. §§ 181.931, subd. 6, .932, subd. 1(1) (2018). The MWA also safeguards an employee

7
who “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 . . . and the employee informs the
employer that the order is being refused for that reason.” Id., subd. 1(3). A refusal occurs
when an employer gives an order to perform an action that the employee has an objective
basis in fact to believe is illegal, and the em ployee then declines to perform that action.
Minn. Stat. § 181.932, subd. 1(3).4
Minnesota courts analyze whistleblower claims under the three-pronged McDonnell
Douglas burden-shifting test See Grundtner v. Univ. of Minn. , 730 N.W.2d 323, 329
(Minn. App. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 1824 (1973)), review denied (Minn. July 17, 2007). Under the first prong, a plaintiff
must establish a prima facie whistleblower claim, which consists of three elements: (1) the
employee engaged in “statutorily protected conduct,” (2) the employer took “adverse
employment action” against the employee, and (3) “a causal connection between the two.”
Coursolle v. EMC Ins. Grp, Inc., 794 N.W.2d 652, 657 (Minn. App. 2011), review denied
(Minn. Apr. 19, 2011). On the second prong, the burden shifts to the employer to provide
a “legitimate, non-retaliatory reason” for its action against the employee. Id. Finally, on
the third prong, the employee must show that the employer’s rationale is pretextual. Id.
Turning to the first prong of McDonnell Douglas, we consider whether Sakrison
established a prima facie whistleblower claim.

4 The parties and district court have used the terms “report” and “refusal” interchangeably
throughout their analyses. While either may qualify as protected conduct, each is factually
distinct from the other.

8
Sakrison’s complaint identif ies two situations in whic h she allegedly engaged in
protected conduct. First, Sakrison effectiv ely cancelled the December 2016 meeting on
the wastewater project by informing the engineering company that a meeting with newly-
elected officials, who had not yet taken office, was inappropriate. Second, the mayor-elect
and a councilmember “improperly directed [the IT administrator] to compile and disclose
sensitive IT data in violation of state data practices laws and public policy[,]” and “[the IT
administrator] and [Sakrison] did not relent” to the “improper demand.” The district court
addressed the second situation in the order denying summary judgment. Because Sakrison
does not challenge the district court’s ruling on the second s ituation, we do not address it
here.5 Sakrison also raised a third instance of allegedly protected conduct in her motion
papers opposing summary judgment that she did not specifically identify in her complaint.
The third situation involved her “refus[al] to violate state law relating to health insurance”
by declining to assist a city councilmember in researching new employee healthcare plans.6

5 “[E]rror is not presumed on appeal, and the burden of showing e rror rests on the party
asserting it.” Horodenski v. Lyndale Green Townhome Ass’n, Inc., 804 N.W.2d 366, 372
(Minn. App. 2011) (citing Midway Ctr. Assocs. v. Midway Ctr., Inc. , 237 N.W.2d 76, 78
(Minn. 1975)). But even if e rror were presumed, the district court correctly determined
that the record shows that Sa krison took no action in respon se to the IT administrator
reporting the “improper demand” to her, and, th erefore, she did not “blow the whistle” in
any fashion. Cokley v. City of Otsego, 623 N.W.2d 625, 631 (Minn. App. 2001) (explaining
that a “report” under the MWA requires that the employee “blow the whistle” by “notifying
the employer of a violation of law that is clearly mandated public policy”), review denied
(Minn. May 15, 2001).

6 The city argued in the district court that the third allegation should not be considered
because it was not included in Sakrison’s complaint and was improperly raised as a
response during summary-judgmen t proceedings. The district court acknowledged this
problem but addressed the allegation anyway. Because the district court analyzed the issue
on the merits, Sakrison challenges that decision on appeal, and the parties have adequately

9
Given the arguments before us, we must determine whether the first and third
situations involved protected conduct under the plain meaning of the MWA. See Schulte
v. Corner Club Bar, 544 N.W.2d 486, 488 (Minn. 1996) (noting that “summary judgment
is a fully appropriate procedural vehicle to use when applying statutory language to the
undisputed material facts of a case” (quotation omitted)).
A. Cancellation of the wastewater project meeting

In considering the first situa tion, the district court dete rmined that Sakrison failed
to establish a “causal connection,” the third element of her MWA claim. The district court
reasoned that the connection between Sakrison cancelling the wastewater project meeting
in November 2016 and the city’s decision to terminate her employment in July 2018 was
“too attenuated.” But to even reach the third element of causation, we must accept that
Sakrison’s conduct was protected by the MWA. We conclude that Sakrison’s conduct was
not protected; therefore, a discussion on causation is unnecessary.
Sakrison argues that she engaged in statut orily protected conduct “[b]y advising [the
engineering company] of the stat us of the newly elected officials, their lack of oath, and
lack of authority” to hold the informational meeting set in December 2016. She insists that
through this communication, she “refused to engage in activity” that would have violated
state law, which provides that public officials shall take an oath “before transacting any of
the business or exercising any privilege of such office.” See Minn. Stat. § 358.05 (2018).
During oral argument, Sakrison’s counsel clarified that Sakrison effectively cancelled the

briefed the issue, we choose to address the claim raised fo r the first time on summary
judgment.

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wastewater project meeting by emailing the engineering company and that her actions are
“tantamount to a refusal” under Minn. Stat. § 181.932, subd. 1(3). We disagree.
Sakrison’s conduct was not protected as a matter of law because there is no evidence
that Sakrison refused any order from the city. Subdivision 1(3) provides that conduct is
protected only when “the employee refuses an employer’s order to perform an action that
the employee has an objective basis in fact to believe” is illegal. Minn. Stat. § 181.932,
subd. 1(3) (emphasis added). There was no order. Sakrison has offered no evidence of the
city ordering her to do anything in relation to the wastewater project meeting. The evidence
shows that Sakrison took action entirely on her own initiative by emailing the engineering
company. Indeed, the mayor-elect and in coming councilmembers were unaware of
Sakrison’s email to the engineering company until Sakrison announced—15 minutes after
the meeting was supposed to begin—that she had cancelled it. There was also no evidence
of a refusal. Cancelling a meeting on her own volition is not a refusal or even tantamount
to a refusal. And we are unpersuaded by th e general notion that Sa krison was implicitly
required to facilitate the meeting at the dire ction of the city. Speculation and general
assertions are insufficient to create a genuine issue of material fact. Nicollet Restoration,
Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). Thus, Sakrison has not shown
that she refused an order from the city in relation to the wastewater project meeting.
Nor do we accept Sakrison’ s proposition that a meeti ng between the mayor-elect,
incoming councilmembers, re presentatives of another co mmunity, and an engineering
company was unlawful. Sakrison urges that an informational mee ting held by newly
elected, unsworn officials violates Minnesota St atutes section 358.05. We disagree. In

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evaluating whether conduct is protected under the MWA, appellate courts “assume that the
facts have occurred as reported” and then determine “whether t hose facts constitute a
violation of law or rule adopted pursuant to law.” Kratzer v. Welsh Cos., LLC, 771 N.W.2d
14, 22 (Minn. 2009) (quotation omitted). In other words, we take the facts alleged by the
plaintiff as true and consider whether they “implicate a violation of [the] law.” Grundtner,
730 N.W.2d at 329 (quotation omitted). A report of problematic or unacceptable behavior
alone is not enough to be protected; the reported activity must at least implicate a violation
of the law. Id.; see, e.g., Obst v. Microtron, Inc. , 614 N.W.2d 196, 204 (Minn. 2000)
(determining that report of safety concerns about windshield wipers did not implicate a
violation of law and therefore wa s not protected under the MWA); Hedglin v. City of
Willmar, 582 N.W.2d 897, 902 (Minn. 1998) (conc luding report of firefighters allegedly
“showing up at fire calls while drunk” did no t implicate illegal conduct even though such
conduct was “reprehensible”).
Taking Sakrison’s allegations as true, we are unconvinced that the wastewater
project meeting implicated a violation of section 358.05 or any other law. Sakrison
correctly points out that section 358.05 requires elected officials to take an oath of office
“before transacting any of the business or exercising any privilege” of their office. Minn.
Stat. § 358.05. But ho lding an informational meeting ab out an ongoing city project does
not mean that newly elected city official s are engaging in unauthorized business
transactions. The record ev idence reveals that the mayor-elect and incoming city
councilmembers merely sought to hold an educational meeting in preparation for the start
of the January 2017 term. And there is no evidence to suggest that the officials planned to

12
take official action that would suggest a transaction of business, such as making decisions
on the city’s behalf during the meeting or entering into a new contract with the engineering
company. Sakrison had no objective basis in fact to believe that the meeting was unlawful.
See Minn. Stat. § 181.932, subd. 1(3).
Because there is no evidence of an order, a refusal, or an unlawful act, we conclude
that Sakrison’s cancellation of the meeting wa s not protected conduct under the MWA.
See Doe 76C, 817 N.W.2d at 163; Nelson, 716 N.W.2d at 402.
B. Refusal to resea rch health insurance

Sakrison also argues that she was terminat ed because she “refused to violate state
law relating to health insurance.” Specifica lly, she claims that sh e declined to “alter[]
health benefits without union consent and contrary to a collective bargaining agreement.”
See Minn. Stat. § 471.6161, subd. 5 (2018). Sakrison maintains that “[b]y advising the
newly elected officials that they could not simply seek cheaper insurance, [she] was
engaging in statutorily protected conduct.” The district court determined that this was not
statutorily protected conduct because the city was “merely inve stigating cost savings that
could accrue . . . through a change of insuran ce” and there is no ev idence that the city
intended to modify the insurance plan without union approval.
We agree with the district court that Sa krison’s actions did not garner the protection
of the MWA.7 Sakrison was asked to follow up on a price quote; she was not directed to

7 Sakrison’s brief to this court suggests that the district court mi sconstrued her actions
related to the health insuranc e quote to be a “report” rath er than a “refusal” under the
MWA. Even so, our decision does not falter. If treated as report, then her claim fails to
implicate a violation of the law, and if considered a refusal, then there is no evidence that

13
take any unlawful action. And her suspicion—that th e city was making unapproved
changes to employee health plans—was both hypothetical and premature. We have
previously rejected conduct as unprotected when the whis tleblower’s actions stem from
mere suspicions of u ndeveloped illegalities. See Grundtner, 730 N.W.2d at 331
(explaining that an employee’s apprehension of a hypothetical violation of the law could
not serve as the basis for a refusal claim under the MWA); Gee v. Minn. State Colls. &
Univs., 700 N.W.2d 548, 556 (Minn. App. 2005) (explaining that plaintiff’s comment
suggesting that her employer embezzled or stole funds was not protected because she
offered no evidence that employer broke the law).
In the end, the district court properly dismissed Sakrison’s whistleblower allegations
for failure to establish a prima facie clai m under the plain meaning of the MWA. We
therefore need not review the final two prongs of the McDonnell Douglas test.
II. The district court properly determin ed the city is entitled to summary
judgment on Sakrison’s discrimination claim.

Sakrison’s second claim is for employment discrimination under the MHRA. Like
whistleblower claims, Minnesota courts an alyze MHRA discrimination claims under the
McDonnell Douglas burden-shifting test. See Hubbard v. United Press Int’l, Inc. , 330
N.W.2d 428, 444 (Minn. 1983). To withstand summary judgment here, Sakrison first had
to identify sufficient ev idence to establish a prima faci e discrimination claim; then, the

Sakrison had any objective basis in fact to believe she had refused to violate state law. See
Minn. Stat. § 181.932, subd. 1(1), (3); Kratzer, 771 N.W.2d at 22 (explaining
whistleblower report must at least “implicate” a violation of the law). Either way,
Sakrison’s actions were not statutorily protected.

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burden would shift to the city to justify its termination decision; and, finally, Sakrison
would have to identify evidence sufficient to show that the c ity’s justification was mere
pretext intended to conceal its discriminatory motive. See id. at 444-45. “The ultimate
burden of persuasi on, however, never shifts, resting at all times upon the plaintiff.”
Sigurdson v. Isanti County, 386 N.W.2d 715, 720 n.2 (Minn. 1986).
“To establish a prima facie case of disc riminatory discharge, an employee must
show that: (1) she is a member of a protected class; (2) she was qualified for her position;
(3) she was discharged; and (4) the employer assigned a nonmember of the protected class
to do the same work.” Hansen v. Robert Half Int’l, Inc. , 813 N.W.2d 906, 918 (Minn.
2012) (citing Hubbard, 330 N.W.2d at 442). Sakrison asserts that she is a qualified woman,
who was about 65 years old when the city terminated her employment, and that a younger
male assumed her duties after she was discharged. Viewing the evidence in the light most
favorable to Sakrison, the district court assumed these facts established a prima facie case
of discrimination. Because the record support s that determination, and the city offers no
compelling argument to the contrary, we too assume, w ithout deciding, that Sakrison
identified evidence sufficient to establish a prima facie discrimination claim.
On the second prong of the McDonnell Douglas test, the city maintains Sakrison
committed several forms of employment misc onduct. In particular, the city has
consistently relied on the investigative report prepared and provided to the city council just
before Sakrison’s termination. The report details five allegations of misconduct that were
substantiated by a third-party investigator: (1) providing email a ccess to a terminated
employee engaged in litig ation with the city; (2) failing to provide the city council with

15
requested information; (3) preventing offici als from holding the wastewater project
meeting; (4) promising a job to a potentia l job applicant, and making inappropriate
comments regarding an applicant’s gender; and (5) showing a lack of professionalism and
behaving in an “openly hostile and sarcastic” manner. In it s brief to this court, the city
reiterates that the reasons for Sakrison’ s termination include that she “acted
unprofessionally, in a hostile ma nner, and in [a] manner that was not forthright.” The
district court concluded that Sakrison was terminated for legitimate reasons. And because
the city has offered evidence in support of fa cially legitimate, nondiscriminatory reasons
for Sakrison’s termination, we next consider whether she has identified evidence sufficient
to show that the city’s explanation is actually pretext for its discriminatory motives.
A plaintiff may satisfy the third McDonnell Douglas prong directly by persuading
the court that the employer’s motives were discriminatory, or by showing that the
employer’s stated rationale is “unworthy of credence.” Aase v. Wapiti Meadows Cmty.
Techs. & Servs., Inc. , 832 N.W.2d 852, 859 (Minn. App. 2013), review denied (Minn.
Aug. 6, 2013). Again, the burden of pers uasion remains with Sakrison to convince the
fact-finder that the real reason for her termination was discrimination. See Sigurdson, 386
N.W.2d at 720-21. The district court note d that the investiga tion into Sakrison’s
misconduct revealed no evidence of unfair discrimination, underscoring that “the record is
replete with undisputed facts that [Sakri son]’s termination wa s for a legitimate non-
retaliatory reason.”
Sakrison urges on appeal th at the city’s justifications are illegitimate and “unworthy
of credence” for various reasons. She ma inly focuses on the content of her email

16
communication with the IT administrator leading up to and after his termination. But her
arguments are unpersuasive and she offers no re buttal to a majority of the substantiated
allegations detailed in the investigative report. At best, she has rebutted a fraction of the
substantiated misconduct. In some cases, even where an employer has given a legitimate
reason for the discharge, a plaintiff may prev ail if an illegitimate reason more likely than
not motivated the discharge decision. C ox v. Crown CoCo, Inc. , 544 N.W.2d 490, 497
(Minn. App. 1996) (citations omitted). This is not one of those cases. Sakrison has offered
no evidence of pretext for age or gender discrimination. That a younger male assumed her
duties after she was terminated is, by itself, insufficient to carry her burden of persuasion.
Sakrison failed to present evidence sufficient to establish that the city’s reasons for
her termination were a pretext for discrimination. Thus, the district court properly granted
summary judgment on Sakrison’s MHRA discrimination claim.
III. The district court properly determined that Sakrison’s defamation claim fails
as a matter of law.

Finally, Sakrison challenges the district court’s grant of summary judgment on her
defamation claim against the city. To surv ive summary judgment, a defamation plaintiff
must show that a genuine issue of material fact exists as to each element of the claim.
Defamation consists of four elements: “(1) the defendant made a false and defamatory
statement about the plaintiff; (2) the statement was an unpriv ileged publication to a third
party; (3) the statement had a tendency to harm the plaintiff’s reputation in the community;
and (4) the defendant was at fault.” DeRosa v. McKenzie, 936 N.W.2d 342, 345 (Minn.
2019); see MacDonald v. Brodkorb, 939 N.W.2d 468, 475 (Minn. App. 2020) (explaining

17
that defamation involving a plaintiff’s profession or trade is “defamation per se”) Thus, we
consider whether Sakrison has ra ised a genuine issue of materi al fact on each element of
her defamation claim.
Here, we begin our review with the s econd element, which inherently recognizes
two types of privilege that serve as a defense to defamation claims—absolute privilege and
qualified privilege. Zutz v. Nelson , 788 N.W.2d 58, 62 (Minn. 2010). “Even if every
element of a defamation claim is established, a speaker is not liable if an absolute or
qualified privilege protects th e defamatory statement.” Larson v. Gannett Co., Inc. , 940
N.W.2d 120, 131 (Minn. 2020), cert. denied sub nom. Gannett Co., Inc., v. Larson , No.
20-252, 2020 WL 6037250 (U.S. Oct. 13, 2020). Both forms of privilege cover statements
made by various types of public officials so that they may exercise their duties free from
fear of liability for defamation. Zutz, 788 N.W.2d at 62. At issue is the principle of
qualified privilege, which grants immunity to a speaker so long as “the privilege is not
abused and defamatory statements are public ized in good faith and without malice.” Id.
When the person challenging a defamatory statem ent is a public official, the person must
prove actual malice. Maethner v. Someplace Safe, Inc. , 929 N.W.2d 868, 873 (Minn.
2019). Actual malice means th at a statement was made “with the knowledge that it was
false or with reckless disregard of whether it was false or not.” Id. (quotation omitted).
Sakrison alleges that the city defamed her character through five statements:
(1) “the Plaintiff’s contract was ‘criminal’ ”; (2) “we have ema ils showing privileged
information had been forwarded to an ex-employee”; (3) “there were things going on that
shouldn’t have been”; and (4) “we can’t continue with someone who puts the city at risk.

18
It’s not about job performance, but about th ings that were done”; and (5) “confidential
information was given out.” The district court determined that the first statement was not
attributable to the city, only to the mayor-elect before she was elected mayor, and that the
remaining statements were protected by qualified privilege. Sakrison now argues that the
district court erred in appl ying the doctrine of qualified pr ivilege because the city’s
statements were made with actual malice. But Sakrison offers no argument about whether
the city’s representatives knew their statemen ts about Sakrison were false or made the
statements in reckless disregard of whether they were false. We cannot assign error from
mere assertions unsupported by argument or evidence. Scheffler v. City of Anoka , 890
N.W.2d 437, 451 (Minn. App. 2017), review denied (Minn. Apr. 26, 2017).
Even though the ex istence of actual malice is us ually a jury question, summary
judgment is warranted if the plainti ff produces no evidence of malice. Wallin v. Minn.
Dep’t of Corr., 598 N.W.2d 393, 402-03 (Minn. App. 1999), review denied (Minn. Oct. 21,
1999). Absent any such evidence here, we determine that the district court properly applied
the qualified privilege doctrine and concluded th e statements were protected. Minnesota
caselaw provides that statements made by city officials dur ing city council meetings—as
were the majority of statements alleged here—are protected. See Zutz, 788 N.W.2d at 62
(explaining that qualified privilege applies to local governing bodies such as city councils
or county boards). Likewise, the district c ourt aptly recognized that scrutinizing a public
employee’s job performance is typica lly not considered defamation. See, e.g., Diesen v.
Hessburg, 455 N.W.2d 446, 450-52 (M inn. 1990). In the words of the district court, the

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disputed statements were “nothing more th an a frank discussion of the City’s concerns
regarding [Sakrison]’s performance as a city clerk.”
“Summary judgment is appr opriate when a governmental entity has established that
its actions are immune from civil liability.” Brown v. City of Bloomington , 706 N.W.2d
519, 522 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). After thorough review,
we conclude that the city has established its actions are immune fr om civil liability and
affirm the district court’s grant of summary judgment on Sakrison’s defamation claim.
Affirmed.