Jacobson v. County of Chisago et al
ORDER granting in part and denying in part 97 Motion for Partial Summary Judgment; granting in part and denying in part 105 Motion for Summary Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 7/15/2021. (avt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 18-cv-02528 (SRN/HB)
County of Chisago; and Richard Duncan,
both individually and in his official
capacity as Sheriff of County of Chisago,
Celeste E. Culberth and Leslie L. Lienemann, Culberth & Lienemann, LLP, 444 Cedar
Street, Suite 1050, St. Paul, MN 55101, for Plaintiff.
Cally R. Kjellberg-Nelson and Dyan J. Ebert, Quinlivan & Hughes, PA, P.O. Box 1008,
St. Cloud, MN 56302-1008, for Defendant County of Chisago.
Christopher Kent Wachtler, Wachtler Law Office, 983 Ashland Avenue, St. Paul, MN
55104, for Defendant Richard Duncan.
Kaitrin Christine Vohs and Rachel E. Bell-Munger, Minnesota Attorney General’s
Office, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101, for Amicus Curiae
Rebecca Lucero, Commissioner of the Minnesota Department of Human Rights.
Elizabeth J. Vieira and Scott T. Anderson, Rupp, Anderson, Squires & Waldspurger, 333
South Seventh Street, Suite 2800, Minneapolis, MN 55402, for Amicus Curiae
Association of Minnesota Counties.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion for Partial Summary Judgment [Doc.
No. 97] filed by Plaintiff Michelle Jacobson and the Cross-Motion for Summary Judgment
[Doc. No. 105] filed by Defendant County of Chisago (“Chisago”). Based on a review of
the files, submissions, and proceedings herein, and for the reasons below, the Court
GRANTS in part and DENIES in part both motions.
Plaintiff Michelle Jacobson began working as an Office Support Specialist for the
Chisago County Sheriff’s Office in July 2013. (Compl. [Doc. No. 1], at ¶ 9. 1) Sheriff
Richard Duncan was Jacobson’s highest-ranking supervisor. (Id. ¶ 10.) Duncan was elected
to his position in 2010, and was responsible for the Office’s operations. (Decl. of Leslie L.
Lienemann (“Lienemann Decl.”) [Doc. No. 100], Ex. 3 (“Duncan Dep.”), at 7, 13-14.) The
Chisago County Board did not supervise Duncan or Sheriff’s Office staff, but did set the
Office’s budget. (Id. at 23-24.) In addition, Duncan submitted hiring and firing
recommendations to county officials for final approval, and Chisago enacted personnel
policies applicable to Sheriff’s Office employees. (Id. at 23-25, 150-56.)
Beginning in October 2017, Duncan initiated a scheme in which he wrote letters—
under the pseudonym “Control Freak”—addressed to Jacobson and himself, in which
“Control Freak” attempted to coerce Duncan and Jacobson into having an affair. On
October 26, 2017, Duncan called Jacobson into his office, while wearing his badge and
uniform, and informed her that he was attempting to restructure her position and increase
her pay. (Compl. ¶ 13; Duncan Dep. at 74-75.) He then showed her a letter that he claimed
to have received from “Control Freak.” (Compl. ¶ 14.) Duncan testified that the letter
The allegations in the Complaint referenced in this Section have been admitted by
Defendants, unless otherwise noted. (See Chisago’s Answer [Doc. No. 11]; Duncan’s Am.
Answer [Doc. No. 85].)
“stated that both me and her were being threatened, both our families basically were being
threatened. No -- no explanation of what the threat might be. There was -- that we were to
basically have an affair.” (Duncan Dep. at 43.) Duncan wrote and printed the letter using
his home computer. (Id. at 37.) After showing the letter to Jacobson, Duncan destroyed it
in order to conceal his conduct. (Id. at 43, 52.) Duncan claimed that he had asked another
law enforcement agency to analyze the letter for fingerprints. (Compl. ¶ 19.) But Duncan
discouraged Jacobson from filing a police report, and explained to her that there was
insufficient evidence for him to refer the matter to the Sheriff’s Office’s investigators.
(Duncan Dep. at 42-43.) Instead, Duncan offered to assign an extra patrol to Jacobson’s
house, because “she was going to be out of town and her kids were basically home alone
at that time.” (Id. at 47.)
While Jacobson was traveling to North Dakota at the end of October, Duncan
claimed to have received additional letters. (Lienemann Decl., Exs. 10, 12.) As the plot
unfolded, Control Freak demanded that Jacobson and Duncan travel together to a training
conference in Bemidji, Minnesota, where the two would share a hotel room with a single
king-size bed and follow the directions that Control Freak would subsequently deliver in a
“packet.” 2 (See id., Ex. 12.) Control Freak attempted to coerce Jacobson’s compliance
through threats to Jacobson and her family. Illustrative examples from the letters include:
I assure you that if you follow my plan, no one has to get hurt . . . .
Duncan in fact booked a hotel room in Bemidji, and submitted a reimbursement
request to Chisago. (Duncan Dep. at 47-48.)
I don’t want to hurt your families so don’t make me do it. . . . Just follow my
plan and know you are doing the right thing for both of you. This is about
protecting others and yourselves. For me, I get the joy of controlling your
every move. Michelle how far would you go to protect your kids, your
husband, your reputation? . . . I bet both of you don’t really care about
yourself but you would do anything for others or especially your kids. . . .
I can assure you that if you carry this out without no one knowing your
families will be safe and no one will know you did it but you two.
As you can see I don [sic] know where you live. I also know where your kids
go to school. By the way have you been out of town, it seems pretty quite
[sic] at your house. As you can see if I wanted to hurt your kids, I could have
done it while you were away. This is not the point, I want you to challenge
yourself and do things that you might not do otherwise. Can you handle that
or will you have a nervous brake down [sic]? Lets see if you have it in you,
you really have no choice.
(Id.) And in a letter addressed exclusively to Jacobson, Control Freak wrote:
I want you both to know what is at stake here. This is no idol threat [sic]. I
don’t want to hurt anyone physically. I understand that this might be hurting
you or the Sheriff emotionally but this is the point (at least in your case). . . .
I know you are not the strongest person emotionally and really don’t like to
really step out of the box or norm. I am kind of shocked that you decided to
go along with this plan. I figured you would crumble and hide in the pathetic
shell of yours. . . .
In emails and text messages, Jacobson and Duncan discussed whether to comply
with Control Freak’s demands. 3 (See id., Exs. 10, 12-13.) At times, Duncan downplayed
Control Freak’s threats. (See, e.g., id., Ex. 12 (“I really don’t think he wants to hurt anyone,
I think he wants to control US now. I do think this guy is crazy and could do anything but
Duncan testified that he used his work cellphone to send text messages to
Jacobson. (Duncan Dep. at 56.)
he is smart.”).) But, at least initially, Duncan attempted to convince Jacobson that
complying with Control Freak’s demands was the best course. In an October 30 email, he
So are you agreeing we have to go forward or do you want to stop now. I
think we have to either stop it now or go with the plan and if we have to be
prepared to carry whatever is planned. It makes no sense to go with it and
then stop and be back at the same point we are now. I am for the later [sic]
because I think this will stop but I am not going to force you to do anything
you don’t want to. I just think we don’t have a choice but I am with any
decision you make. . . .
Yes, he has us now because there are just too many variables (using analyst
terms :) ) and too may [sic] moving parts. I just think we have to do it and
then if he does not keep his promise then come up with other options. This
will not jeopardize our current relationship, I won’t let that happen.
Remember he can make us act like we are in love with each other but he can
not make us love each other and that is why this will not jeopardize our
If you can’t or won’t even considering [sic] having sex (yes I threw it out
there) then I think we should just not do anything. There might be a way (him
not knowing what we do) but I think we have to be prepared if he does have
a way to know. Are you willing to go through with it? . . .
(Id., Ex. 13.)
Jacobson testified that, while exchanging emails with Duncan on October 30, she
deduced that Duncan wrote the Control Freak letters in an effort to sleep with her. (Id., Ex.
4 (“Jacobson Dep.”), at 96-99.) But she struggled with that conclusion because “what I
know of him from what my experience with him is, he wouldn’t do this.” (Id. at 98-100.)
Jacobson explained: “This is just plain crazy. And I struggled with on one hand I have the
Sheriff who I at that time trusted and believed wouldn’t cause me any harm or I have a
Control Freak that wants me to do this and wants to cause me and my family harm.” (Id. at
99.) Because of that conflict, Jacobson had lingering concerns that Control Freak was in
fact a malicious third party. (Id. at 103-04.)
By November 2, 2017, when Jacobson returned to the office, Jacobson decided not
to follow Control Freak’s plan. (Id. at 104-08.) When Jacobson informed Duncan of her
decision, he tried to change her mind, and alluded to her children’s vulnerability. 4 (Id. at
104.) In the following week, Duncan continued the Control Freak charade, telling Jacobson
that he had received a “FU” letter from Control Freak and claiming that his work computer
and phone had been hacked. (Id. at 109-12; Lienemann Decl., Ex. 18.) Jacobson last
discussed Control Freak with Duncan on November 6, 2017. (See Jacobson Dep. at 115.)
Thereafter, Jacobson developed a “safety plan,” which included leaving the door open
during meetings with Duncan and avoiding being alone with him. (Id. at 147-48.)
Duncan admits that he was the author of the Control Freak letters. (Duncan’s Am.
Answer ¶ 21; Lienemann Decl., Ex. 20.) At his deposition, he testified that he orchestrated
the Control Freak scheme in order to manufacture a crisis that he could solve, and thereby
feel like a “hero.” (Duncan Dep. at 37, 44, 52, 77-79.) He testified that he did not intend
for his actions to be discovered, and took steps to conceal them—including by shredding
the first Control Freak letter and discouraging Jacobson from discussing the letters with
others. (Id. at 42-43, 52, 86-87.) Duncan chose a Sheriff’s Office employee as the object
Duncan referenced her daughter’s Facebook page, which indicated that she worked
at a Culver’s restaurant, and advised that Jacobson should be more cautious about sharing
such information online. (Id. at 108-09.) Jacobson testified: “And I thought, You’re trying
to -- I felt, You’re trying to scare me.” (Id. at 109.)
of his scheme, as opposed to a member of the public, because he “had control of the
sheriff’s office in a sense. I had control of that environment.” (Id. at 38.) He chose Jacobson
because her role at the Sheriff’s Office required her to meet with him on a weekly basis—
“out of all . . . the support techs in the agency, I worked more closely with Michelle.” (Id.
at 37.) Duncan testified that he did not intend to frighten Jacobson, and he intended to
“solve” the Control Freak scenario before acting on Control Freak’s demands or threats.
(Id. at 44, 77-79.) However, he also testified that he understood that in order to create the
desired crisis, he would have to cause Jacobson some emotional harm. (Id. at 79.) Duncan
admitted that he intended to make Jacobson believe her spouse and children were in danger
and that she was being watched, and he understood that a person thus threatened would be
fearful. (Id. at 44, 73, 76, 79, 81.)
Jacobson reported the matter to Sergeant Justin Wood, her immediate supervisor,
on November 20, 2017. (Jacobson Dep. at 114-18, 125.) Jacobson testified that, initially,
Wood did not seem to believe her; but when she showed him Duncan’s messages, he told
her that they needed to inform Chisago’s human resources department. (Id. at 118.) But
Jacobson told Wood that she did not want to file a complaint with human resources, and
that she would deny having made the allegations if Wood filed a complaint without her.
(Id. at 118-19.) Jacobson testified that she was reluctant to inform human resources because
she was looking for work elsewhere, and feared the personal and professional harm that
might come from Duncan learning that she knew he was behind the letters. (Id. at 119-20,
124.) In addition, Jacobson testified that she did not trust the human resources personnel,
and specifically referenced another employee—Tracy Armistead—who had filed a sexual
harassment complaint against a county administrator, which was “just brushed under the
rug.” (Id. at 119-20, 123.) Wood acquiesced, but continued to ask about Jacobson’s wellbeing and encourage her to report the matter in the following weeks. (Id. at 124.) On
January 8, 2018, Jacobson confided in Tracy Armistead, an employee of Chisago, who also
encouraged Jacobson to report the matter to human resources. (Id. at 127.) Armistead,
however, was also sympathetic to Jacobson’s concern that Duncan would retaliate against
her—though, like Wood, Armistead pressured Jacobson to inform human resources. (Id. at
Jacobson did not file a complaint with Chisago’s human resources department until
March 2, 2018, after she had learned that her application for another job was unsuccessful.
(Id. at 156-58.) Chisago then hired an outside investigator, whose April 26, 2018 report
concluded that “Sheriff Duncan’s actions constitute an abhorrent and shocking violation of
the standard of conduct expected of a department head, a law enforcement officer, an
elected Sheriff, an employee of Chisago County, a supervisor, and a community leader. . . .
Sheriff Duncan engaged in sexual harassment of Jacobson by making unwelcome sexual
advances, albeit under an alias . . . while simultaneously engaging in discussions with
Jacobson about increasing the pay for her position at Chisago County.” (Lienemann Decl.,
Ex. 8, at 5.) Duncan declined to be interviewed for the investigation. (Id. at 19.) In an effort
to prevent the investigator’s report from being made public, Duncan announced his
retirement, effective May 4, 2018. (Duncan Dep. at 134-35.)
Jacobson was placed on paid administrative leave during the county’s investigation.
(See Jacobson Dep. at 183.) Chisago notified her that Duncan would resign on May 4, and
that she could therefore return to work on May 7; but Jacobson refused to return to work
because she had not yet received a copy of the investigator’s report confirming that Duncan
was in fact Control Freak, and because Duncan’s son continued to serve as a deputy for the
Chisago County Sheriff’s Office. (Id. at 180-83.) Jacobson instead took personal leave,
beginning May 4, until she obtained employment at the Federal Reserve in late May or
early June 2018. (Id. at 181-84.)
Jacobson asserts that Duncan’s actions caused her severe emotional anguish,
including fear for her safety and the safety of her children; fear for her job; feelings of
revulsion, disbelief, horror, confusion, and distrust; and fear of retaliation. (Lienemann
Decl., Exs. 22-25.) Jacobson’s distress has manifested in physical symptoms, such as
crying, shaking, sleeplessness, and nervousness. (Id.) She was diagnosed with posttraumatic stress disorder, and has received mental health counseling since February 2018.
(Id., Ex. 22.) Because of her fear of Duncan, Jacobson and her husband sold their home
and relocated to another county, requiring their children to change schools. (Id., Exs. 2325.)
Jacobson brought this suit against Duncan and Chisago (collectively,
“Defendants”). Jacobson alleges that Chisago is liable for sexual harassment under the
Minnesota Human Rights Act (“MHRA”); that Duncan is liable for the deprivation of her
equal protection rights under 42 U.S.C. § 1983, and for intentional infliction of emotional
distress under Minnesota law; and that Chisago is vicariously liable for intentional
infliction of emotional distress. (See generally Compl.)
After Jacobson filed this lawsuit, Duncan sought indemnity and a defense from
Chisago. The Chisago County Board of Commissioners denied that request. (Aff. of Cally
Kjellberg-Nelson (“Kjellberg-Nelson Aff.”) [Doc. No. 108], Ex. B.) And the Minnesota
Court of Appeals affirmed Chisago’s decision. See Duncan v. Cty. of Chisago, No. A181775, 2019 WL 2571711, at *5 (Minn. Ct. App. June 24, 2019). On October 22, 2020,
Duncan pleaded guilty to stalking and misconduct of a public officer. (Kjellberg-Nelson
Aff., Ex. N.)
Jacobson now moves for summary judgment on Defendants’ liability. (Pl.’s Mot.
for Partial Summ. J. [Doc. No. 97].) Chisago likewise moves for summary judgment on all
claims against the county. (Chisago’s Cross-Mot. for Summ. J. [Doc. No. 105].) In
response to Jacobson’s motion, Duncan asserts that genuine factual disputes preclude
summary judgment on Jacobson’s § 1983 and intentional infliction of emotional distress
claims. (Duncan’s Mem. in Opp’n to Pl.’s Mot. for Summ. J. [Doc. No. 111].)
Standard of Review
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it may affect the outcome of the lawsuit.” TCF
Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016). And a factual
dispute is “genuine” only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In evaluating a motion for summary judgment, the Court must view the evidence
and any reasonable inferences drawn from the evidence in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
Although the moving party bears the burden of establishing the lack of a genuine
issue of fact, the party opposing summary judgment may not “rest on mere allegations or
denials but must demonstrate on the record the existence of specific facts which create a
genuine issue for trial.” Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)
(internal quotation marks omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Moreover, summary judgment is properly entered “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477
U.S. at 322. Where, as here, the record is largely undisputed and “the unresolved issues are
primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt
v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1315 (8th Cir. 1996) (citing Crain v. Board
of Police Comm’rs, 920 F.2d 1402, 1405–06 (8th Cir. 1990)).
Chisago’s Liability Under the Minnesota Human Rights Act
The Court begins its analysis with Jacobson’s MHRA claim against Chisago. Under
the MHRA, sexual harassment is a prohibited unfair discriminatory employment practice.
See Minn. Stat. §§ 363A.03, subd. 43; 363A.08. Chisago does not dispute that Duncan’s
conduct qualifies as sexual harassment. (See Mem. in Supp. of Chisago’s Mot. for Summ.
J. [Doc. No. 107], at 18-23.) Rather, the parties dispute whether Chisago is liable for
As an initial matter, the Court must determine whether to analyze Chisago’s liability
under the rubric applicable in cases where an employer’s supervisory employee sexually
harasses a subordinate, or that applicable where harassment is perpetrated by a nonemployee third party. Chisago contends that because Duncan was an elected official, and
the county therefore could not directly terminate his employment, Duncan is properly
considered a non-employee third party. The Minnesota Supreme Court has adopted the
Equal Employment Opportunity Commission’s (“EEOC”) “expansive” view of which
individuals within an employer’s organization constitute a “supervisor” for employment
discrimination purposes. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 572–73
(Minn. 2008). Under the EEOC’s standard, “an individual qualifies as an employee’s
supervisor if the individual has authority to undertake or recommend tangible employment
decisions affecting the employee; or the individual has authority to direct the employee’s
daily work activities.” Id. at 572 (quotation omitted).
The record in this case demonstrates that Duncan qualifies as a supervisor under the
EEOC standard. As to the first prong of the test, an elected sheriff is generally empowered
by statute to hire and fire Sheriff’s Office employees. See Minn. Stat. § 387.14 (“The sheriff
shall appoint in writing the deputies and other employees, for whose acts the sheriff shall
be responsible and whom the sheriff may remove at pleasure.”). To be sure, Duncan
testified that he believed he was required to submit hiring and firing recommendations to
Chisago, and that the final decision rested with the county. (Duncan Dep. at 23-25, 15056.) Even if Duncan’s belief were correct, however, he also testified that the county had
never rejected his hiring recommendations. (Id. at 154.) Under the MHRA, “an employee
should be considered a supervisor even if he or she does not have the final say in making
tangible employment decisions if the individual’s recommendation is given substantial
weight by the final decisionmaker(s).” Frieler, 751 N.W.2d at 572 (quotation omitted).
With respect to the second prong of the EEOC test, the record demonstrates that Duncan
held “authority to direct [Jacobson’s] daily work activities.” Id. Duncan was Jacobson’s
highest-level supervisor, and her only other supervisor was Sergeant Wood; Chisago did
not supervise or direct her work. (Duncan Dep. at 23-24, 150; Jacobson Dep. at 125;
Compl. ¶ 10.) Thus, under either prong of the EEOC test, the record demonstrates that
Duncan qualifies as Jacobson’s supervisor.
It is true that Chisago could not directly fire Duncan. Although Chisago makes much
of this fact, it does not adequately acknowledge the various “soft” powers it wields over its
elected sheriff. Most notably, Chisago is empowered to investigate the conduct of its
elected sheriff, and publicize its findings. Here, Chisago did exactly that: the county hired
an outside investigator, who confirmed Jacobson’s allegations against Duncan. (See
Lienemann Decl., Ex. 8, at 5.) In an attempt to prevent Chisago from publicly releasing the
investigator’s report, Duncan resigned. (Duncan Dep. at 134-35.) Because Chisago’s
investigative power directly led to the resignation of its elected sheriff in this case,
Chisago’s assertion that it is powerless to discipline its elected sheriff rings hollow. 5
Cf. Meadows v. Guptill, 856 F. Supp. 1362, 1371 n.5 (D. Ariz. 1993) (“The Town
argued . . . that it could not be held liable for Guptill’s actions because Guptill was an
elected official, and the Town had no authority to discipline him. The court rejected this
argument, holding that Title VII imposed a duty on the Town to at least try to alleviate the
situation, even if there was no guarantee the Town could be successful.”).
Regardless, in determining whether an individual is a “supervisor” under the MHRA, the
Minnesota Supreme Court looks to the alleged supervisor’s control over the employee—
not necessarily to the employer’s control over the alleged supervisor. See Frieler, 751
N.W.2d at 572–73.
Therefore, the Court finds that Chisago’s liability must be analyzed under the
framework applicable to an employer’s liability for harassment perpetrated by a supervisor.
Generally, the MHRA does not render an employer strictly liable for its supervisor’s
misconduct. Id. at 568 (“We . . . reject Frieler’s argument that strict liability is the standard
to be applied in sexual harassment cases . . . .”). Instead, the Minnesota Supreme Court has
adopted the Faragher/Ellerth standard, under which “an employer is subject to vicarious
liability for an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over a victimized employee.” Id. at 570. Where the
harassment does not culminate in a tangible employment action, “the employer may raise
an affirmative defense to liability or damages if it proves by a preponderance of the
evidence: (1) ‘that the employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior,’ and (2) ‘that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.’” Id. at 570–71 (quoting Faragher v. City of Boca Raton, 524
U.S. 775, 808 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). An
employer cannot invoke the Faragher/Ellerth affirmative defense—and vicarious liability
therefore attaches automatically—“when the supervisor harassment ‘culminates in a
tangible employment action, such as discharge, demotion, or undesirable reassignment.’”
Id. at 571 (citing Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765).
Additionally, federal courts have read Faragher as recognizing the rule that the
Faragher/Ellerth defense is unavailable where the supervisor is “indisputably within that
class of an employer organization’s officials who may be treated as the organization’s
proxy.” Faragher, 524 U.S. at 789; see, e.g., Townsend v. Benjamin Enterprises, Inc., 679
F.3d 41, 52 (2d Cir. 2012) (“Every Court of Appeals to have considered this issue has held
that the Faragher/Ellerth affirmative defense is unavailable when the supervisor in
question is the employer’s proxy or alter ego.” (collecting cases from the Fifth, Seventh,
and Ninth Circuits)). Although the Minnesota Supreme Court has not yet addressed the
proxy theory’s application to MHRA claims, the Minnesota Court of Appeals—albeit in
an unpublished opinion and without analysis—has recognized the theory. Kaufenberg v.
Winkley Co., No. A14-1514, 2015 WL 3539744, at *4 (Minn. Ct. App. June 8, 2015)
(unpublished op.) (“[T]he Faragher/Ellerth affirmative defense is unavailable when the
harrassing [sic] supervisor is the employer’s proxy or alter ego.”).
In this case, the parties—as well as the Minnesota Department of Human Rights and
the Association of Minnesota Counties, appearing as amici curiae—contest whether the
proxy theory applies under the MHRA. Jacobson and the Department urge the Court to
recognize the theory and find that Duncan acted as the county’s proxy, thereby depriving
Chisago of the Faragher/Ellerth affirmative defense. Additionally, Jacobson argues that
she was constructively discharged, obviating the defense.
The Court need not consider whether the Minnesota Supreme Court would
recognize the proxy theory under the MHRA, or whether Jacobson was constructively
discharged, because it finds that Chisago has not raised a triable issue regarding the
Faragher/Ellerth defense. The defense comprises “two necessary elements,” namely:
(1) that the employer exercised reasonable care to prevent and correct harassment; and
(2) that the plaintiff unreasonably failed to avail herself of the preventive and corrective
procedures offered by the employer. Weger v. City of Ladue, 500 F.3d 710, 718 (8th Cir.
2007). In this case, Chisago cannot establish that Jacobson unreasonably failed to take
advantage of the county’s harassment reporting procedures.
The record is devoid of any evidence that Jacobson acted unreasonably. She
reported Duncan’s behavior to Sergeant Wood, her immediate supervisor, fairly promptly.
Although she asked Wood not to relay her report to Chisago’s human resources department
until she found a new job, it appears undisputed that Jacobson’s hesitation to escalate her
complaint was not “unreasonable.” It is undisputed that Jacobson’s reluctance to permit
Wood to file a report was fueled by Duncan’s threats (under the guise of “Control Freak”)
against her children, as well as Jacobson’s understanding that a past sexual harassment
complaint filed by another employee was “brushed under the rug.” (Jacobson Dep. at 11820, 124.) And perhaps most importantly, Sergeant Wood himself testified that he believed
Jacobson’s fear of retaliation was reasonable, and that he was similarly afraid of retaliation
by Duncan. (Lienemann Decl., Ex. 6, at 51-55.)
Rather than dispute the reasonableness of Jacobson’s conduct, which is not possible
on this record, Chisago urges the Court to apply the rule articulated in McCurdy v. Arkansas
State Police, 375 F.3d 762 (8th Cir. 2004). There, the Eighth Circuit held that an employer
need not prove the second prong of the Faragher/Ellerth defense where the alleged
harassment is limited to a single incident, and the employer takes “swift and effective
action to avoid further offensive conduct.” Id. at 772. The Minnesota Supreme Court has
neither accepted nor rejected McCurdy’s alteration of the Faragher/Ellerth framework
under the MHRA.
This Court need not consider whether the Minnesota Supreme Court would adopt
the McCurdy rule, because McCurdy is readily distinguishable on the facts of this case. In
McCurdy, the Eighth Circuit considered a single incident of harassment, which was quickly
reported to and addressed by the employer. There, a supervisor touched the plaintiff’s
breast and made crass comments to her on a single occasion, she reported the conduct, and
the employer took swift disciplinary action. Id. at 764–65. The Eighth Circuit reasoned
that, where an employee promptly reports a single incident of harassment and the employer
swiftly addresses it, an employer cannot establish the second prong of the Faragher/Ellerth
affirmative defense. Id. at 772. The result is, effectively, strict liability in single-incident
However, the instant case does not involve a single incident of harassment. Rather,
Duncan’s misconduct spanned multiple letters, emails, and text messages exchanged over
the course of two weeks. Moreover, when Jacobson reported the incident to Sergeant
Wood, Wood acquiesced in Jacobson’s request not to escalate the report out of fear of
Duncan. Thus, Chisago did not take the same “swift and effective” corrective action as the
employer in McCurdy. McCurdy is, therefore, inapplicable. Cf. Williams v. Missouri Dep’t
of Mental Health, 407 F.3d 972, 978 (8th Cir. 2005), abrogated on other grounds by
Torgerson v. City of Rochester (8th Cir. June 1, 2011) (distinguishing McCurdy in a case
that did not “involve a single, severe, unanticipated act of sexual harassment”).
Without the benefit of McCurdy, Chisago cannot establish the second prong of the
Faragher/Ellerth defense. 6 Accordingly, the Court finds that Chisago is vicariously liable
for Duncan’s harassment. The Court therefore grants Jacobson’s Motion for Partial
Summary Judgment, and denies Chisago’s Cross-Motion for Summary Judgment, with
respect to Jacobson’s MHRA claim.
Intentional Infliction of Emotional Distress
Next, the Court considers Jacobson’s claim for intentional infliction of emotional
distress against both Defendants. Although Chisago’s motion appears to treat the
Complaint as alleging that Chisago is both vicariously and directly liability for this tort,
Jacobson does not allege that Chisago’s own conduct is independently tortious under this
doctrine. Rather, Jacobson asserts that Duncan is directly liable for intentional infliction of
emotional distress and that Chisago, as his employer, is vicariously liable.
Under Minnesota law, the tort of intentional infliction of emotional distress has four
elements: “(1) the conduct must be extreme and outrageous; (2) the conduct must be
intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be
Because the Court finds that the record would not permit a reasonable jury to
conclude that Jacobson unreasonably failed to avail herself of Chisago’s anti-harassment
policy, the Court need not determine whether Chisago exercised reasonable care in
preventing and correcting sexual harassment.
severe.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438–39 (Minn. 1983).
Duncan argues that fact issues regarding the “extreme and outrageous” and “severe
distress” elements preclude summary judgment in Jacobson’s favor.
Conduct is “extreme and outrageous” if it is “so atrocious that it passes the
boundaries of decency and is utterly intolerable to the civilized community.” Id. at 439
(quotation omitted). The Court finds that Duncan’s dark masquerade as “Control Freak”
was extreme and outrageous as a matter of law. As part of his scheme, Duncan—an elected
sheriff—pretended to be an anonymous criminal, and repeatedly threatened to harm
Jacobson’s children if she did not follow a detailed plan culminating in an affair with
Duncan. Although Duncan notes that the conduct was limited to a two-week timeframe,
and that Jacobson had previously maintained a good working relationship with him, these
facts do not create a genuine fact dispute on this element. Duncan’s conduct throughout
the course of the Control Freak scheme, for which he was criminally charged and to which
he pled guilty, was “so atrocious that it passes the boundaries of decency and is utterly
intolerable to the civilized community,” and the Court finds that no reasonable jury could
conclude otherwise. 7
Duncan also disputes whether he caused Jacobson “severe” distress. But Duncan
does not identify any specific facts in dispute in the record regarding the severity of
Jacobson’s distress; rather, he argues only that “the trier of fact must be allowed to assess
Notably, Duncan testified that the Control Freak scenario he created was so
abhorrent that it made himself physically ill. (Duncan Dep. at 94-95.)
Plaintiff’s credibility as a witness in light of all the relevant facts and considerations . . . .”
(Duncan’s Mem. in Opp’n to Pl.’s Mot. for Summ. J. at 8.) A party opposing summary
judgment may not “rest on mere allegations or denials but must demonstrate on the record
the existence of specific facts which create a genuine issue for trial.” Krenik v. Cty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995). Ample record evidence supports the conclusion
that Jacobson’s distress was severe. As a result of her distress, Jacobson relocated her
family to another county—requiring her children to change schools; she has been
diagnosed with post-traumatic stress disorder, and has received counseling since January
2018; and her distress has manifested in physical symptoms and affected her family life,
as detailed in declarations submitted by Jacobson, her husband, and her daughter. (See
Lienemann Decl., Exs. 22-25.) Against this evidence, Duncan’s bare challenge to
Jacobson’s credibility does not create a genuine factual dispute.
Thus, the Court finds that there is no genuine factual dispute, and Jacobson is
entitled to judgment as a matter of law on her intentional infliction of emotional distress
claim against Duncan.
However, the Court finds that Chisago is immune from vicarious liability for
Duncan’s conduct. Minnesota’s Municipal Tort Claims Act imposes liability on counties
for the torts of county officers where those officers act “within the scope of their
employment or duties.” Minn. Stat. § 466.02. The Act provides counties with immunity
from several types of claims, including claims that, if brought against the state, would be
subject to the immunities provided in the State Tort Claims Act. Id. § 466.03, subd. 15.
Under the State Tort Claims Act, the state is liable “for injury . . . caused by an act or
omission of an employee of the state while acting within the scope of office or
employment,” subject to several exclusions not relevant here. Id. § 3.736, subd. 1.
Although the Municipal Tort Claims Act does not define “scope of office or employment,”
the State Tort Claims Act provides that the term means “that the employee was acting on
behalf of the state in the performance of duties or tasks lawfully assigned by competent
authority.” Id. §§ 3.732, subd. 1(3); 466.01.
In Doe 175 ex rel. Doe 175 v. Columbia Heights School District, the Minnesota
Court of Appeals examined this interplay between the State and Municipal Tort Claims
Acts. 873 N.W.2d 352 (Minn. Ct. App. 2016). There, the plaintiff was a student who
alleged that the defendant school district was vicariously liable for a sexual battery
committed by its employee. Id. at 355–56. The court held that the school district was
immune from liability under § 466.03, subdivision 15. Id. at 357–59. It reasoned that the
State Tort Claims Act “plainly excludes from vicarious liability torts committed by a state
employee who was not ‘acting on behalf of the state in the performance of duties or tasks
lawfully assigned by competent authority.’” Id. at 358 (citation omitted). By crossreferencing the State Tort Claims Act, § 466.03, subdivision 15 incorporates that
immunity. Id. Thus, the court reasoned:
There is no dispute that Warnke engaged in sexual misconduct for his own
personal reasons, not “on behalf of” the school district “in the performance
of duties or tasks lawfully assigned by competent authority.” See Minn. Stat.
§ 3.732, subd. 1(3). Therefore, if Warnke had been employed by the state
rather than the school district, Doe’s vicarious liability claim would have
been “excluded under section 3.736.” See Minn. Stat. § 466.03, subd. 15.
Thus, . . . the district court correctly concluded that the school district was
immune from liability under section 466.03, subdivision 15.
The Court finds Doe persuasive, and concludes that Chisago is immune from
liability under § 466.03, subdivision 15. As in Doe, Duncan’s actions were taken to gratify
his own desires, rather than “in the performance of duties or tasks lawfully assigned by
competent authority” to the county sheriff. 8 (See Duncan Dep. at 37, 44, 52, 77-79.) This
conclusion is bolstered by the Court of Appeals’ holding that Duncan was not “acting in
the performance of the duties of [his] position” for purposes of the Municipal Tort Claims
Act’s indemnity and defense obligations. See Duncan v. Cty. of Chisago, No. A18-1775,
2019 WL 2571711, at *4–5 (Minn. Ct. App. June 24, 2019). Because Duncan was not
acting “in the performance of duties or tasks lawfully assigned by competent authority,”
Jacobson’s vicarious liability claim would be barred by the State Tort Claims Act were he
a state employee. See Minn. Stat. § 3.736, subd. 1; Doe 175, 873 N.W.2d at 358.
Consequently, Chisago is entitled to immunity under Minnesota Statutes § 466.03,
In sum, the Court finds that Jacobson is entitled to summary judgment as to
Duncan’s liability for intentional infliction of emotional distress. But Chisago cannot be
Jacobson argues that the State Tort Claims Act’s narrow definition of “scope of
office or employment” does not apply to her claim against the county, and urges the Court
to instead apply the broader common law “scope of employment” standard. (Mem. in
Opp’n to Chisago’s Mot. for Summ. J. [Doc. No. 114], at 29-30.) But Jacobson does not
address the textual analysis in Doe, which the Court finds persuasive. Thus, the Court
applies the narrow definition of “scope of office or employment” provided by the statute,
rather than the broader common law “scope of employment” standards advanced by
held vicariously liable for that tort under the Municipal Tort Claims Act. Accordingly, the
Court grants in part and denies in part Jacobson’s motion as to this claim, and grants
Chisago’s motion with respect to this claim.
Duncan’s Liability Under 42 U.S.C. § 1983
Finally, the Court considers Jacobson’s § 1983 claim against Duncan. 9 Section 1983
imposes liability for the deprivation of a plaintiff’s rights by a person acting under color of
state law. 42 U.S.C. § 1983. Duncan does not dispute that his actions deprived Jacobson of
her rights, but contends that a triable issue of fact exists concerning whether he acted under
color of state law. Duncan relies heavily on the Minnesota Court of Appeals’ decision
holding that Chisago is not statutorily required to indemnify and defend him. In addition,
Duncan notes that he wrote the Control Freak letters pseudonymously in an attempt to hide
his identity as a law enforcement officer.
But the Court of Appeals’ decision does not speak to the color of law inquiry. In
holding that Chisago is not required to indemnify and defend Duncan, the Court of Appeals
applied the Municipal Tort Claims Act, which requires Chisago to
defend and indemnify any of its officers and employees, whether elective or
appointive, for damages, including punitive damages, claimed or levied
against the officer or employee, provided that the officer or employee:
(1) was acting in the performance of the duties of the position; and
The Court notes that Chisago’s motion seeks a judgment that the county is not
liable under § 1983. (Mem. in Supp. of Chisago’s Mot. for Summ. J. at 17-18.) Jacobson
does not assert a § 1983 or Monell claim against Chisago; Jacobson’s § 1983 claim is
pleaded solely against Duncan. (See Compl., Count III.)
(2) was not guilty of malfeasance in office, willful neglect of duty, or bad
Minn. Stat. § 466.07, subd. 1. The Court of Appeals affirmed Chisago’s finding that
Duncan was not “acting in the performance of the duties” statutorily assigned to county
sheriffs. Duncan v. Cty. of Chisago, No. A18-1775, 2019 WL 2571711, at *3–5 (Minn. Ct.
App. June 24, 2019).
The “performance of duties” inquiry conducted by the Court of Appeals is not the
same as the “color of law” inquiry required under § 1983. Applying Minnesota Statutes
§ 466.07, the Court of Appeals analyzed whether “Duncan was ‘acting’ (as in, taking some
action or engaging in some conduct) ‘in the performance of the duties of the position’ (as
in, while fulfilling some requirement and expectation of a sheriff).” Id. at *3. By contrast,
the color of law inquiry asks whether a public official “misuses power possessed by virtue
of . . . law and made possible only because he was clothed with the authority of . . . law.”
Peyro v. Holder, 574 F.3d 893, 900–01 (8th Cir. 2009) (quotation omitted).
Applying the “color of law” test, the Court finds that Jacobson is entitled to
summary judgment on her § 1983 claim. “[T]o find whether an official acts under color of
law, [courts] look to see whether a sufficient nexus exists between the official’s public
position and the official’s harmful conduct.” Id. (citation omitted). The nexus inquiry “is
necessarily fact intensive, and, in the context of police officers, includes considerations
such as whether the officers are on duty and in uniform, the motivation behind the officers’
actions, and whether the officers had access to the victim because of their positions, among
others.” Id. at 901 (citations omitted).
Each of the factors identified in Ramirez-Peyro is present on this record. When he
initiated his scheme, Duncan wore his badge and uniform, and called Jacobson into his
office to discuss her pay. (Compl. ¶ 13; Duncan Dep. at 74-75.) He testified that he was
motivated by his desire to feel like a “hero,” a desire prompted by his dissatisfaction with
his position’s focus on administration rather than policing. (Duncan Dep. at 37, 44, 52, 7779.) And he chose Jacobson specifically because his position gave him control over her
environment and ready access to her. (Id. at 38.) Although Duncan unsuccessfully
endeavored to conceal the fact that he was “Control Freak,” much of Duncan’s scheme
depended on Jacobson deferring to his analysis—as sheriff—of how to resolve the Control
Freak “crisis.” (See, e.g., Lienemann Decl., Exs. 12-19.) And Duncan purported to exercise
the powers of his position to “protect” Jacobson; for example, Duncan claimed to have
obtained a fingerprint analysis of the first Control Freak letter, and he pretended to assign
an additional patrol to Jacobson’s house. (Compl. ¶ 19; Duncan’s Am. Answer ¶ 8; Duncan
Dep. at 47.) Finally, Duncan was convicted of misconduct of a public officer, a crime
applicable where a public officer, in his official capacity, knowingly acts “in excess of
lawful authority or knowing [the act] is forbidden by law to be done in that capacity.” 10
Minn. Stat. § 609.43, subd. 2; Kjellberg-Nelson Aff., Ex. N, at 22.
The Court notes that Duncan’s conviction under Minnesota Statutes § 609.43,
subdivision 2 is consistent with the Court’s finding that Chisago is immune from liability
on Jacobson’s intentional infliction of emotional distress claim. Duncan’s conviction
required proof that, acting in his official capacity, he either acted in excess of his lawful
authority or he performed an act forbidden by law. Chisago’s immunity is premised on the
conclusion that Duncan was not acting “in the performance of duties or tasks lawfully
assigned by competent authority” to the county sheriff. Minn. Stat. § 3.732, subd. 1(3).
When Duncan executed the “Control Freak” scheme, using his position as sheriff to
On this record, the Court finds that no reasonable jury could conclude that Duncan
was not acting under color of law, and the Court therefore grants Jacobson’s Motion for
Partial Summary Judgment as to her § 1983 claim.
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 97] is
GRANTED in part and DENIED in part, as follows:
a. The motion is GRANTED as to Plaintiff’s Minnesota Human Rights
Act claim against Defendant County of Chisago, and as to Plaintiff’s
intentional infliction of emotional distress and 42 U.S.C. § 1983
claims against Defendant Richard Duncan; and
b. The motion is DENIED as to Plaintiff’s intentional infliction of
emotional distress claim against Defendant County of Chisago; and
2. Defendant County of Chisago’s Cross-Motion for Summary Judgment [Doc.
No. 105] is GRANTED in part and DENIED in part, as follows:
advance that scheme, he performed an action “in excess of [his] lawful authority” or
“forbidden by law,” yet that action was not taken “in the performance of [his] duties or
tasks lawfully assigned” to the county sheriff. Thus, Duncan was convicted of misconduct
of a public officer, supporting the conclusion that his conduct was “under color of law” for
purposes of liability under § 1983. But because his conduct under color of law and in excess
of his lawful authority was not taken “in the performance of duties” assigned to the sheriff,
the Municipal Tort Claims Act bars Jacobson’s vicarious liability claim against Chisago
for intentional infliction of emotional distress.
a. The motion is GRANTED as to Plaintiff’s intentional infliction of
emotional distress claim against Defendant County of Chisago; and
b. The motion is DENIED as to Plaintiff’s Minnesota Human Rights
Act claim against Defendant County of Chisago.
3. The parties are ordered to schedule a final settlement conference in this case
before Magistrate Judge Bowbeer. This matter will go to trial on January 18,
2022, and a more detailed order will follow.
IT IS SO ORDERED.
Dated: July 15, 2021
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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