Susan Gaertner, Ramsey County Attorney, C. David Dietz, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Appellant Ramsey County)

Alf E. Sivertson, Michelle M. Barrette, Sivertson & Barrette, P.A., The Barrister Building, 1465 Arcade Street, St. Paul, MN 55106 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Willis, Judge.

Respondent Dawn Palmer brought this whistleblower action against her former employer, appellant Ramsey County, and the county filed a third-party complaint against appellant State of Minnesota. The county and state moved for summary judgment, arguing in part that official and judicial immunity precluded Palmer's suit. The district court denied the motion, and the county and state appealed. By unpublished opinion, this court affirmed the district court's decision. See Palmer v. Ramsey County, No. C2-95-1767 (Minn. App. Apr. 9, 1996). The supreme court granted the county and state's petition for further review and remanded the matter to this court "for consideration in light of" Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711 (Minn. 1996). We now withdraw our original April 9, 1996 decision and substitute this decision affirming the district court's denial of summary judgment.

Government officials are accorded near complete immunity for their actions in the course of their official duties, so long as they do not exceed the discretion granted them by law.

Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711, 716 (Minn. 1996). Palmer argues that because she is not suing any individual in his or her official capacity, the doctrine of official immunity does not apply. The determination of whether official immunity applies to any given fact situation, however, depends not on whether a plaintiff chooses to sue a governmental entity or an individual state official, but rather on whether any individual was responsible for the allegedly tortious acts. See id.; Carter v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 271-72 (Minn. App. 1997).

In this case, Palmer claims she was constructively discharged after she reported violations of law to her immediate supervisor, Sandra Eckes, and to other county officials. Palmer claims that these county officials failed to respond to her complaints and that she was forced to leave her position because Eckes retaliated against her. Because all Palmer's claims relate to the actions of individual public officials, official immunity applies to these facts. If those officials are immune, the county and state likely are entitled to vicarious official immunity. See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 n.5 (Minn. 1994); Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993); Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992).

In the official immunity context, willful and malicious are "synonymous" and mean the "willful violation of a known right." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citation omitted). An official does not act willfully or maliciously unless he or she has reason to believe that his or her conduct is proscribed or illegal at the time it is committed. See id. at 108. Because the conduct at issue in this case occurred well after the whistleblower act was enacted, any official retaliating against an employee for reporting violations of law would have reason to know that his or her conduct is proscribed.

Here, Palmer alleged that after she reported her concerns of illegal activity, Eckes retaliated against her by (1) denying her vacation request; (2) throwing papers on her desk; (3) acting hostilely toward her; (4) delaying her promotion; (5) telling her coworkers that she had marital problems, was dizzy, and acted stupidly; and (6) requiring her to attend an interpersonal skills training course not required of others. An affidavit submitted by one of Palmer's coworkers confirmed that Eckes began treating Palmer adversely soon after she had made her reports of illegal activity. Palmer further alleged that, because of Eckes's behavior, she resigned her position.

The willful or malicious standard contemplates "an objective inquiry into the legal reasonableness of an official's actions." See Beaulieu, 518 N.W.2d at 571. Thus, we must consider whether, taking Palmer's allegations as true, a reasonable official would have reason to know that his or her actions were in violation of the whistleblower act. This objective inquiry into the legal reasonableness of an official's actions does not require examination of the factual merits of a plaintiff's claim or examination of whether a prima facie case has been made. Cf. Carter v. Cole, 526 N.W.2d 209, 213 (Minn. App. 1995) (holding order denying summary judgment on basis of qualified immunity under 42 U.S.C. § 1983 not appealable based solely on finding that genuine issue of material fact existed as to whether official committed acts alleged by plaintiff), aff'd, 539 N.W.2d 241 (Minn. 1995).

The county and state argue that Eckes's actions cannot be considered adverse employment actions under the whistleblower act. They insist that an adverse employment action must be one that has a real and significant effect on the terms and conditions of employment. See Minn. Stat. § 181.932, subd. 1 (1996) (providing that to violate whistleblower act employer must discharge, discipline, threaten, discriminate against, or penalize employee regarding terms and conditions of employment because of employer's participation in protected activities). A reasonable official in Eckes's position would have reason to know that the actions Eckes took could be seen as threatening or penalizing and that those actions could create a work environment so hostile that it could result in an employee's constructive discharge. See Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980) (finding constructive discharge when an employee resigns to escape intolerable working conditions caused by illegal discrimination).

The county and state further argue that there is no evidence of malice or willfulness directed at Palmer because of her reports. They insist that nothing in the record supports Palmer's allegation that her performance evaluations, the processing of her career development promotions, or her requests for vacation were handled maliciously or knowingly in violation of the whistleblower act. They argue that, at the most, the evidence shows that Palmer and Eckes were not always "nice" to each other. Clearly, there is no direct evidence that Eckes's actions were in retaliation for Palmer's reports. Nevertheless, at this stage of the litigation, retaliatory motive may be inferred from Palmer's claim that soon after she reported violations of law, Eckes took adverse employment actions against her. Cf. Rico, 472 N.W.2d at 107 ("[a]ccepting as true Rico's allegations, a jury could make inferences favorable to Rico and find that [the commissioner] removed Rico because he expressed concerns about improprieties and management inefficiencies at the [department]"); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 445 (Minn. 1983) (concluding that causal connection may be inferred if employer knows of protected activity and adverse employment action follows closely in time).

We therefore affirm the district court's denial of summary judgment based on its determination that the county and state are not entitled to official or judicial immunity.

Affirmed.