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STATE OF MINNESOTA IN COURT OF APPEALS A11-1339 Kathryn Brenny, Respondent, vs. The Board of Regents of the University of Minnesota, Defendant, John Harris, individually and in his capacity as Director of Golf, Appellant. Filed May 7, 2012 Reversed Worke, Judge Dissenting, Stauber, Judge Hennepin County District Court File No. 27-CV-11-1215 Donald Chance Mark, Jr., Shannon M. McDonough, Peter A.T. Carlson, Fafinski Mark & Johnson, P.A., Eden Prairie, Minnesota (for respondent) Richard T. Ostlund, Randy G. Gullickson, Anthony Ostlund Baer & Louwagie, P.A., Minneapolis, Minnesota (for appellant) Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Stauber, Judge. SYLLABUS To protect the autonomy of the University of Minnesota under the separation-ofpowers doctrine, judicial review of a tortious-interference-with-contract-claim must be initiated by writ of certiorari when the claim is brought by a university employee against the employee's supervisor for wrongful conduct that occurred within the scope of employment.

OPINION WORKE, Judge The district court denied a motion, brought by appellant, the director of golf at the University of Minnesota, to dismiss the tortious-interference-with-contract claim asserted by respondent, the former associate head coach of women's golf at the university. The action was premised on the university's decision not to renew respondent's employment contract and to reassign her. She alleged that appellant's actions were motivated by bigotry and constituted constructive discharge. Appellant challenges the district court's decision, arguing that the court lacked subject-matter jurisdiction to hear the claim because it involved a discretionary decision by the university reviewable only by petition for writ of certiorari to this court. We agree and reverse. FACTS Because we are reviewing the district court's denial of dismissal on the pleadings, we accept as true the facts as alleged in respondent Kathryn Brenny's amended complaint. In July 2010, appellant John Harris, the newly hired director of golf at the university, contacted respondent to ask whether she was interested in the position of associate head coach for the women's golf team. The job description listed key duties as assisting in (1) "selection, supervision, and coaching of the team[;]" (2) "identification, and recruitment of qualified student-athletes[;]" (3) "development and execution of" season plans, "including tournament schedules, practice schedules and conditioning programs[;]" (4) "overseeing and monitoring" student-athletes' academic performances; and (5) "special events and tournaments[and] planning and conducting clinics, camps, 2

seminars, and outreach to public service." The job description also required the associate head coach to establish and maintain relationships with important groups within and outside of the university and to demonstrate a commitment to following pertinent rules and regulations. During August 2010, appellant met with respondent, and she applied and interviewed for the job. In one of their discussions, appellant disclosed that he could not hire his son-in-law, Ernie Rose, for the coaching position because Rose did not have a college degree. Appellant did hire Rose as director of golf instruction, however. This position did not require a college degree. Appellant offered respondent the coaching position, and she agreed to a 12-month contract with a base salary of $44,000. The contract permitted the university to "non-renew [respondent's] appointment and reassign [respondent] to other or no duties without just cause." Appellant also hired John Carlson to serve as associate head coach for the men's golf team. Carlson's qualifications and experience were similar to respondent's, and Carlson's job description was identical to respondent's. Respondent alleged in the amended complaint that appellant is homophobic: that appellant did not want to hire a homosexual to coach the women's golf team, and that when he learned of respondent's sexual orientation, he refused to allow her to perform her job, beginning at the start of her employment on September 1, 2010. Appellant allegedly prohibited respondent from traveling with the women's team, delegated administrative tasks to her, blocked her from meeting with the team, limited her e-mail contact with the team, prohibited her from providing golf instruction to the team, and told 3

her that Rose was to serve as the team's instructor. In denying her the ability to schedule team meetings, appellant allegedly said, "You have nothing to talk to these girls about[,]" and when she asked what she could talk to the team about, he replied, "[B]oys, life, and school[.]" Respondent complained to the senior and associate athletic directors, Elizabeth Eull and David Crum, about appellant's conduct, and on September 17, 2010, she attended a meeting with both athletic directors and appellant. During the meeting,

appellant told her that she would receive a new job description and that she had the weekend to decide if she was "on board" with appellant's program. The new job

description significantly curtailed respondent's duties, limiting her authority, giving her less contact with the team, and increasing her administrative duties. According to respondent, appellant's mistreatment of her continued. She was excluded from a team event and dinner at appellant's home, and appellant referred recruits to Rose for any questions about the women's team, told several players that respondent's hiring was "the worst decision that the [u]niversity's golf program [] ever made," and told players that respondent did not travel with the team because appellant "discovered she was a homosexual and did not want her on the road with the team." During October 2010, respondent met twice with head athletic director Joel Maturi, and contacted the human resources department about initiating a grievance. At the end of the month, the university offered respondent a sales position at TCF Bank Stadium, a position not affiliated with the golf program. The university also offered her a severance package, which respondent initially accepted but then later rescinded. Next, 4

the university informed respondent that it decided to not renew her employment contract and to reassign her to the sales position. She rejected the offered sales position because she concluded that she had been constructively discharged. In January 2011, respondent initiated a civil action against defendant The Board of Regents of the University of Minnesota (board) and appellant, suing appellant both individually and in his capacity as director of golf at the university. Respondent asserted three counts against only the board, alleging violations of the Minnesota Human Rights Act, Minn. Stat.

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