This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0882
Jhonathan J. Robinson, Appellant,
vs.
Robert R. Amos, et al., Respondents.
Filed June 10, 2024 Affirmed in part, reversed in part, and remanded Bratvold, Judge
Hennepin County District Court File No. 27-CV-22-18106
Jhonathan J. Robinson, Brooklyn Park, Minnesota (pro se appellant)
Bradley A. Kletscher, Tyler W. Eubank, Barna, Guzy & Steffen, Ltd., Minneapolis, Minnesota (for respondents)
Considered and decided by Bratvold, Presiding Judge; Johnson, Judge; and Cleary,
Judge. *
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges the district court’s dismissal of his complaint with prejudice
under Minn. R. Civ. P. 12.02(e) for failing to state a claim upon which relief can be granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. Appellant’s handwritten complaint alleges that respondents misrepresented the parties’
work relationship by stating in an “employment contract” that appellant was a “contractor”
who worked for an “employer” and then later asserting that appellant was an “independent
contractor.” We conclude that the allegations in the complaint are sufficient to state claims
for misrepresentation of employment relationship, fraudulent misrepresentation, and
whistleblower retaliation. But we also conclude that the complaint fails to state claims for
defamation and intentional infliction of emotional distress. Thus, we affirm in part, reverse
in part, and remand.
FACTS
The following summarizes the factual allegations in the complaint served on
respondents Cornerstone Remodeling Group, LLC and Robert R. Amos. When helpful to
understanding the issues on appeal, these facts also summarize documents referenced in
the complaint, including a contract, job posting, and 1099 form.
In response to a posting on Indeed.com, appellant Jhonathan J. Robinson applied
for a job as a carpenter to do residential remodeling for Cornerstone. Robinson had two
interviews with Amos, owner of Cornerstone. They signed an “employment contract” (the
contract) on September 30, 2020. The contract stated that Robinson was a “contractor” in
a “temporary position” with an end date of November 20, 2020, and that Cornerstone was
the “employer.” Under the contract, Robinson had to “successfully complete a probationary
period of 60 days” and, during this period, he would “receive a 1099 Form for the
compensation paid,” was “responsible for income taxes and Social Security payments,”
and would not receive benefits.
2 Robinson was paid via checks issued in the account name, “Restoration Properties
LLC,” and signed by Amos. After completing the probationary period, Robinson asked
whether he would be hired. Respondents extended the contract for 30 days. Robinson then
“became concerned he was not going to be hired” and “looked into” the contract “more in
depth.”
Robinson “notified” Amos that he believed respondents had violated Minn. Stat.
§ 181.032 (Supp. 2023)—which requires employers to provide an earnings statement to
each employee at the end of a pay period. 1 Robinson also notified Amos that he “was
misclassified as an independent contractor.” On December 10, 2020, Robinson and Amos
discussed Robinson’s concerns. Amos stated that Robinson was “classified as an
‘independent contractor’” and that respondents “did not withhold taxes to avoid paying
employer-related taxes such as social security [and] unemployment.” Amos “suggested
that [Robinson] refrain from working until he made a decision [about] how he wished to
proceed with [his] employment.”
On December 11, Robinson “received his last check.” That same day, Robinson
requested “the truthful reason for his termination,” and respondents, via their attorney,
stated that Robinson “was his own business and left the employment because of lack of
work.” Robinson’s complaint asserts that this reason is “false,” alleging that, in the job
posting on Indeed.com, respondents stated that they “have some larger projects coming up
1 We cite the most recent version of Minn. Stat. § 181.032 because it has not been amended in relevant part. See 2023 Minn. Laws ch. 53, art. 12, § 1, at 90; 2023 Minn. Laws ch. 59, art. 1, § 4, at 2.
3 down the road.” The complaint also alleges that, three months after Robinson was
terminated, respondents posted another job listing for a carpenter to do residential
remodeling.
On December 8, 2022, Robinson served a complaint alleging five claims:
(1) fraudulent misrepresentation under Minn. Stat. § 268.182 (2020); (2) misrepresentation
of employment relationship under Minn. Stat. § 181.722 (2022) 2; (3) whistleblower
retaliation under the Minnesota whistleblower act (MWA), Minn. Stat. § 181.932 (Supp.
2023) 3; (4) defamation under Minn. Stat. §§ 181.933 (2022), 609.765 (2020); and
(5) intentional infliction of emotional distress (IIED). Respondents answered and moved
to dismiss under Minn. R. Civ. P. 12.02(e). Robinson opposed dismissal, arguing that
respondents made “no compelling arguments disputing [his] complaint.” Robinson also
contended that respondents did not comply with the requirements for serving their motion
to dismiss.
After a hearing, the district court issued an order granting respondents’ motion to
dismiss, determining that Robinson’s complaint failed to allege facts sufficient to state a
claim for relief. First, as to Robinson’s fraudulent-misrepresentation claim, the district
court concluded that Robinson “has no authority to bring criminal claims” under Minn.
2 This statute was amended during the 2024 legislative session. 2024 Minn. Laws ch. 127, art. 10, § 7. Because the amendment does not become effective until July 1, 2024, we cite the 2022 version of Minn. Stat. § 181.722. 3 The 2023 amendment to Minn. Stat. § 181.932 prohibits additional actions by employers. 2023 Minn. Laws ch. 53, art. 11, § 26, at 71. Because the amendment does not relate to or affect Robinson’s claim, we cite the most recent version of the statute.
4 Stat. § 268.182, respondents “were clear” that they were hiring a “contractor,” and the
complaint failed to allege pecuniary damage and did not meet the “more detailed factual
pleading threshold in claims involving fraud.” Second, regarding Robinson’s claim for
misrepresentation of employment relationship, the district court determined that “[t]here is
nothing in the record suggesting that [respondents] misrepresented anything about the
position” to Robinson and, “[i]ndeed, [respondents] highlighted the 1099 information in
the job posting.”
Third, as to Robinson’s whistleblower claim, the district court stated that the
complaint “admits that [respondents] suggested [Robinson] take some time to decide if he
wanted to continue work” and “alleges no facts beyond [Robinson’s] own conclusion” to
support the contention that he was terminated. Fourth, relating to Robinson’s defamation
claim, the district court concluded that the complaint did not “identify what statements
[respondents] made to the IRS or anyone else” and did not “plead how [Robinson] has been
damaged, as unspecified potential tax liability is not a valid damage.” And fifth, regarding
Robinson’s claim for IIED, the district court determined that the complaint’s allegations
were “facially insufficient to successfully plead a count of intentional infliction of
emotional distress.”
Robinson appeals.
DECISION
Appellate courts “review the allegations of a complaint subject to dismissal under
Rule 12.02 de novo.” Halva v. Minn. State Colls. & Univs., 953 N.W.2d 496, 500 (Minn.
5 2021). Appellate courts “must accept the facts alleged in the complaint as true and construe
all reasonable inferences in favor of the nonmoving party.” Id. (quotation omitted).
Under Minn. R. Civ. P. 12.02(e), a defendant may move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” “A claim is sufficient against a
motion to dismiss for failure to state a claim if it is possible on any evidence which might
be produced, consistent with the pleader’s theory, to grant the relief demanded.” Walsh v.
U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014). “A pleading will be dismissed only
if it appears to a certainty that no facts, which could be introduced consistent with the
pleading, exist which would support granting the relief demanded.” DeRosa v. McKenzie,
936 N.W.2d 342, 346 (Minn. 2019) (quotation omitted). “[A] court may consider
documents referenced in a complaint without converting the motion to dismiss to one for
summary judgment.” N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 490
(Minn. 2004) (emphasis omitted).
In his brief to this court, Robinson urges this court to reverse the district court’s
dismissal of his complaint under rule 12.02(e). 4 We first consider Robinson’s argument
that respondents improperly served their motion to dismiss. We then address Robinson’s
arguments about each of his five claims.
4 Robinson’s brief to this court makes three arguments that we decline to address: (1) that, before serving his complaint, Robinson received ineffective assistance of counsel, which led Robinson to proceed pro se; (2) that the IRS and the Minnesota Department of Labor failed to assist Robinson; and (3) that “discovery has not yet been conducted.” These arguments are not supported by legal analysis or citation. Thus, we decline to address them. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis or citation).
6 I. Robinson’s claim that respondents failed to properly serve their motion to dismiss lacks merit.
Robinson argues that respondents “failed to comply with Minn. R. Civ. P. 5.04”
because their motion to dismiss “was not accompanied by a ‘certificate of service’ as
described in rule 5.04(b).” Robinson made this argument in response to respondents’
motion to dismiss, but the district court did not address it, and respondents’ brief to this
court does not analyze the issue.
Rule 5.04(b) provides:
All documents after the complaint required to be served upon a party, together with a certificate of service specifying the details of how and when service was accomplished and signed under oath or penalty of perjury by the person effecting service, shall be filed with the court within a reasonable time after service . . . .
Minn. R. Civ. P. 5.04(b).
We note that Robinson does not claim that respondents failed to serve him with the
motion to dismiss. Robinson instead claims that respondents failed to serve him with a
certificate of service for their motion to dismiss. “When interpreting rules of procedure, we
look first to the plain language of the rule,” and “[w]here the language is plain and
unambiguous, that plain language must be followed.” In re Welfare of Child of R.K.,
901 N.W.2d 156, 160 (Minn. 2017) (quotation omitted). The plain language of rule 5.04(b)
and the comments to the rule indicate that a certificate of service need not be served on a
party. Rule 5.04(b) states that “all documents after the complaint required to be served
upon a party, together with a certificate of service . . . shall be filed with the court.” Minn.
R. Civ. P. 5.04(b). The advisory-committee comments to rule 5.04(b) state that it
7 “require[s] that proof of service be provided . . . by filing a separate certificate of service.”
Minn. R. Civ. P. 5.04(b) 2020 advisory comm. cmt. Because rule 5.04(b) provides that a
party must file the certificate of service with the court and does not state that the party must
serve it on another party, Robinson’s argument is unavailing.
II. Robinson’s complaint alleges facts sufficient to state a claim for misrepresentation of employment relationship.
Robinson argues that his complaint states a claim for misrepresentation of
employment relationship because it alleges that respondents made “clear and blatant
misrepresentations” that are actionable under Minn. Stat. § 181.722, subds. 1, 2. 5
Respondents argue that Robinson “failed to allege any misrepresentation” and “failed to
allege any damages” and that his “claim is time barred” under the two-year statute of
limitations.
The district court rejected Robinson’s claim for misrepresentation of employment
relationship because “nothing in the record suggest[s] that [respondents] misrepresented
anything about the position to [Robinson], any government entity, or other employees.”
The district court discussed only subdivision 1 of section 181.722, the
misrepresentation-of-employment-relationship statute. Robinson’s complaint, however,
alleges misrepresentation of employment relationship under section 181.722, subdivisions
1 and 2. We address both subdivisions, beginning with subdivision 2.
5 Section 181.722, subdivision 4, creates a civil action for damages in favor of a construction worker who is “injured” by a violation of the statutory section. A construction worker is defined as “any laborer or member of a trade who is employed in the building or construction industry and who is engaged in, but not limited to, any of the following occupations: carpenters . . . .” Minn. Stat. § 179.254, subd. 3 (2022).
8 A. Subdivision 2
Minnesota Statutes section 181.722, subdivision 2, provides that an employer may
not “require or request any employee to enter into any agreement, or sign any document,
that results in misclassification of the employee as an independent contractor or otherwise
does not accurately reflect the employment relationship with the employer.” Minn. Stat.
§ 181.722, subd. 2.
Five factors determine whether a worker is an employee or independent contractor:
“(1) The right to control the means and manner of performance; (2) The mode of payment;
(3) The furnishing of materials and tools; (4) The control of the premises where the work
is done; and (5) The right of the employer to discharge.” Unzen v. City of Duluth,
683 N.W.2d 875, 881 (Minn. App. 2004), rev. denied (Minn. Oct. 27, 2004). Whether a
worker is an independent contractor or an employee is a question of fact. Holzemer v. Minn.
Milk Co., 259 N.W.2d 592, 593 (Minn. 1977). Evidence that an employer controls the
means and manner of performance tends to prove an employment relationship. Hammes v.
Suk, 190 N.W.2d 478, 481 (Minn. 1971). “[T]he furnishing of materials and tools by the
employer” is also evidence of an employment relationship. Id.
Robinson’s complaint alleges that he “is not an ‘independent contractor’” because
respondents controlled his “time and place of work, all duties to be performed, and
provided [him] with company tools.” The complaint also alleges that respondents “drafted
[the] contract,” which Robinson signed, and “intentionally misclassified” him “as an
‘independent contractor,’” denying Robinson “his rights as an employee such as company
9 benefits, sick/vacation leave, increase in pay, increase in promotion, any 401K that may
have been offered, and any other benefits provided by the employer.”
Because the complaint alleges that respondents controlled the time and place of
Robinson’s work and provided tools for his work, the complaint states allegations sufficient
to support Robinson’s claim that he was an employee and that respondents required him to
sign a contract misclassifying him as an independent contractor, as section 181.722,
subdivision 2, prohibits.
B. Subdivision 1
Minnesota Statutes section 181.722, subdivision 1, provides:
No employer shall misrepresent the nature of its employment relationship with its employees to any federal, state, or local government unit; to other employers; or to its employees. An employer misrepresents the nature of its employment relationship with its employees if it makes any statement regarding the nature of the relationship that the employer knows or has reason to know is untrue and if it fails to report individuals as employees when legally required to do so.
Minn. Stat. § 181.722, subd. 1.
The complaint alleges that respondents “intentionally misclassified [Robinson] as
an ‘independent contractor’” and “did not withhold taxes to avoid paying employer-related
taxes,” Robinson received a 1099 form for “wages earned,” and Robinson suffered
damages. As discussed above, the complaint alleges facts that tend to prove Robinson was
an employee. Because we must take these alleged facts as true at this stage of the
proceedings, we conclude that the complaint sufficiently states a claim that respondents
10 misrepresented the nature of Robinson’s employment relationship as prohibited by section
181.722, subdivision 1.
C. Claim Not Time-Barred
Respondents argue that the district court properly dismissed Robinson’s claim for
misrepresentation of employment relationship because it is barred by the statute of
limitations. Robinson argues that his claim is timely because the complaint alleges that
respondents’ conduct was willful. The district court did not rule on this issue, but we may
nonetheless consider respondents’ argument because respondents preserved the issue
below and advanced it as an alternative ground for affirmance. Day Masonry v. Indep. Sch.
Dist. 347, 781 N.W.2d 321, 329-32 (Minn. 2010).
Minnesota Statutes section 541.07(5) (2022) prescribes a two-year limitation period
for actions “for the recovery of wages or overtime or damages, fees, or penalties accruing
under any federal or state law respecting the payment of wages or overtime or damages,
fees, or penalties,” except “if the nonpayment is willful and not the result of mistake or
inadvertence, the limitation is three years.” (Emphasis added.)
The parties agree that the statute of limitations under section 541.07(5) applies to
Robinson’s misrepresentation-of-employment-relationship claim. We therefore assume
without deciding that Robinson’s claim is for wages, damages, fees, or penalties as defined
by section 541.07(5).
Robinson’s complaint alleges that respondents “intentionally misclassified” him as
an independent contractor, denying him “a full job opportunity” and benefits, and “did not
withhold taxes to avoid paying employer-related taxes.” (Emphasis added.) Because the
11 complaint alleges that respondents intentionally denied Robinson the benefits of being an
employee, Robinson’s claim was timely under the three-year limitation period in section
541.07(5).
We conclude that Robinson’s complaint sufficiently states a claim for
misrepresentation of employment relationship and that the district court erred by
dismissing his claim.
III. Robinson’s complaint alleges facts sufficient to state a claim for fraudulent misrepresentation.
Robinson argues that the district court erred by dismissing his claim for fraudulent
misrepresentation under Minn. Stat. § 268.182. Respondents argue that “there was no
misrepresentation related to the job posting because the job posting expressly stated that
the position was for 1099 contract employment” and that “there were no damages.”
The district court first noted that section 268.182 is a criminal statute and that
Robinson “has no authority to bring criminal claims.” The district court next assumed that
Robinson’s fraudulent-misrepresentation claim relied on common law. The district court
dismissed the common-law fraud claim, determining that the “job posting state[d], in bold
letters, that [it was] a ‘1099 position’” and that “a ‘1099 position’ refers to an independent
contractor position.” The district court noted that, “[e]ven if there was some ambiguity in
the job posting,” Robinson failed to meet the “more detailed factual pleading threshold in
claims involving fraud.”
Minnesota Rule of Civil Procedure 9.02 requires that “the circumstances
constituting fraud or mistake . . . be stated with particularity.” To meet the particularity
12 requirement, a plaintiff must “plead[] facts underlying each element of the fraud claim.”
Hardin Cnty. Sav. Bank v. Hous. & Redev. Auth., 821 N.W.2d 184, 191 (Minn. 2012). We
assume, as the district court did, that Robinson’s fraud claim relies on common law. A
claim for fraudulent misrepresentation has five elements: (1) the defendant made a false
representation of a past or present material fact (2) with knowledge that the representation
was false and (3) with the intention to induce reliance on the misrepresentation; (4) the
representation caused such reliance by the plaintiff; and (5) the plaintiff suffered pecuniary
damage as a result. Hoyt Props., Inc. v. Prod. Res. Grp., LLC, 736 N.W.2d 313, 318 (Minn.
2007).
The district court accurately summarized the contract, which states that Robinson is
a “contractor,” that Cornerstone is an “employer,” and that Robinson will receive a 1099
form, must pay his own taxes, and will not receive benefits. The job posting stated that
“[t]his is a 1099 contract position” and that it “does NOT come with benefits at this time
since it is a 1099 contract opportunity.” As discussed above, the complaint alleges that
Robinson was an employee, not an independent contractor, that respondents “willful[ly]”
and “intentionally” misclassified him as an independent contractor, and that he was denied
an “increase in pay,” among other benefits.
At this stage in the proceedings, we must take the allegations in the complaint as
true. Halva, 953 N.W.2d at 500. We conclude that these allegations are sufficient to state
a claim that respondents fraudulently misrepresented that Robinson’s position was for an
independent contractor.
13 Robinson also argues that the district court erred by dismissing his claim for
fraudulent misrepresentation because respondents paid his wages “through a separate
business” different from the one named in the contract. Respondents argue that it “is
unclear how paying [Robinson] through a checking account belonging to another entity
amounts to fraud” or “how this is a misrepresentation” on which Robinson relied or that
damaged him. The district court did not address these allegations in its dismissal order.
Robinson’s complaint alleges that his contract was “fraudulent” because
Restoration Properties LLC issued the checks paying his wages even though he signed a
contract with Cornerstone. Robinson’s 1099 form lists the payor as Restoration Properties
LLC d/b/a Cornerstone Remodeling Group, indicating that Cornerstone is the assumed
name of Restoration Properties LLC. See Black’s Law Dictionary 499 (11th ed. 2019)
(defining “d/b/a” as an abbreviation preceding a business’s assumed name that “signals
that the business may be licensed or incorporated under a different name”). Thus, the
complaint fails to state a claim for fraudulent misrepresentation related to the entity paying
Robinson’s wages.
IV. Robinson’s complaint alleges facts sufficient to state a claim under Minnesota’s whistleblower act.
Robinson urges that the complaint sufficiently alleges facts showing that
respondents terminated his employment because he “notified” respondents that they were
violating a law. Respondents argue that they “did not terminate” Robinson and that the
complaint “says nothing of any actions by [respondents] to terminate the relationship.”
14 The district court determined that Robinson’s complaint “allege[d] no facts beyond
his own conclusion that he was terminated—wrongfully or otherwise”—and dismissed
Robinson’s whistleblower claim. The district court noted that Robinson “himself
admit[ted] that [respondents] suggested he take some time to decide if he wanted to
continue work” and that the complaint pleaded no facts supporting Robinson’s contention
that he was terminated.
The MWA prohibits an employer from retaliating or discriminating against an
employee who, “in good faith, reports a violation, suspected violation, or planned violation
of any federal or state law or common law . . . to an employer.” Minn. Stat. § 181.932,
subd. 1. The elements of an MWA claim are “(1) statutorily protected conduct by the
employee, (2) an adverse employment action by the employer, and (3) a causal connection
between the two.” Coursolle v. EMC Ins. Grp., Inc., 794 N.W.2d 652, 657 (Minn. App.
2011) (quotation omitted).
The MWA protects an employee from retaliation. Minn. Stat. § 181.932, subd. 1.
An employee is defined as “a person who performs services for hire in Minnesota for an
employer. Employee does not include an independent contractor.” Minn. Stat. § 181.931,
subd. 2 (2022). Because Robinson’s complaint alleges that he was “not an ‘independent
contractor,’” we will assume that he may offer evidence he performed services for hire
such that the MWA applies. See Halva, 953 N.W.2d at 500 (stating that appellate courts
must accept the facts alleged in the complaint as true).
Robinson’s complaint alleges that he informed respondents that he believed they
misclassified him as an independent contractor and violated Minnesota law requiring an
15 employer to provide each employee with an earnings statement at the end of the pay period.
Robinson and Amos “held a discussion about . . . [Robinson’s] concern[s],” and Amos
informed Robinson that he was “classified as an ‘independent contractor’” and “suggested
that [Robinson] refrain from working until he made a decision [about] how he wished to
proceed with [his] employment.” The next day, Robinson “received his last check.”
Robinson’s complaint alleges that he was “terminated after reporting possible violations of
Minnesota laws.”
Respondents challenge the second required element, arguing that the complaint fails
to allege adverse action. Respondents point out that the complaint alleges that all
communications between Robinson and respondents were by text message, but “none of
the text messages between the parties show any adverse action on the part of respondents.”
Indeed, Robinson’s complaint alleges that “[a]ll communications” between the parties
“were via text message.” In an exhibit accompanying their motion to dismiss, respondents
provided screenshots of text messages indicating that, on December 9, 2020, Robinson
notified Amos that he believed respondents had violated Minnesota law. The messages also
illustrated that, on December 9, Robinson and Amos arranged to meet, and then on
December 11, Robinson asked what time he could pick up his check and requested “[a]
written statement of the truthful reason” for his “termination.” Because the text messages
indicate that Robinson and Amos met before Robinson’s termination to discuss his
concerns that respondents were violating the law, we are not persuaded by respondents’
argument that “the text messages show no adverse action.”
16 At this stage of the proceedings, we must draw all reasonable inferences in favor of
Robinson. Id. Taking all reasonable inferences in Robinson’s favor, we conclude that the
complaint alleges that Robinson reported a suspected violation of state law to Amos and
then was terminated. Thus, the district court erred by dismissing Robinson’s whistleblower
claim.
V. Robinson’s complaint fails to allege facts sufficient to state a claim for defamation.
Robinson argues that the complaint “clearly pleads” defamation because
respondents “made false statements in regards to information reported to the IRS” and in
responding to Robinson’s question about “why [he] was terminated.” Respondents
disagree, arguing that Minnesota law “specifically prevents an action for defamation based
upon a written response to a request for a reason for termination” and that Robinson did
not allege “what was actually stated to the IRS, how the statements tended to put [him] in
a negative light, or how [he] was damaged by the statement[s].”
The district court determined that Robinson’s complaint did “not identify what
statements [respondents] made to the IRS or anyone else, . . . fail[ed] to establish any causal
link between the information reported by [respondents] to the IRS and himself,” and did
“not plead how he has been damaged, as unspecified potential tax liability is not a valid
damage.”
Robinson’s complaint alleges defamation under two statutes, neither of which
supports his cause of action. Robinson’s complaint cites Minn. Stat. § 181.933 and Minn.
Stat. § 609.765. Section 181.933, subdivision 1, provides that, within 15 days of
17 termination, a terminated employee may request in writing the reason for termination and
that the employer must respond within ten working days with “the truthful reason for the
termination.” Minn. Stat. § 181.933, subd. 1. Section 181.933, subdivision 2, states that
“[n]o communication of the statement furnished by the employer to the employee under
subdivision 1 may be made the subject of any action for . . . defamation by the employee
against the employer.” Minn. Stat. § 181.933, subd. 2. Accordingly, section 181.933 does
not provide a basis for a defamation claim.
Section 609.765, subdivision 2, provides that “whoever with knowledge of its false
and defamatory character . . . communicates any false and defamatory matter to a third
person without the consent of the person defamed is guilty of criminal defamation.” Minn.
Stat. § 609.765, subd. 2. This court has stated that “private plaintiff/private issue
defamation actions must be analyzed under state common law principles.” Weissman v. Sri
Lanka Curry House, Inc., 469 N.W.2d 471, 473 (Minn. App. 1991). Thus, Robinson cannot
bring his defamation claim against respondents under section 609.765.
Still, like the district court did, we consider whether Robinson’s complaint states a
claim for common-law defamation. The elements of a common-law defamation claim are
“(a) a false and defamatory statement about the plaintiff; (b) in an unprivileged publication
to a third party; (c) that harmed the plaintiff’s reputation in the community.” Maethner v.
Someplace Safe, Inc., 929 N.W.2d 868, 873 (Minn. 2019) (quotation omitted).
Robinson argues that the complaint alleges that respondents made two types of false
statements about him: (1) “false statements in regards to information reported to the IRS”;
18 and (2) false statements about “why [Robinson] was terminated.” We consider these
statements in turn.
First, Robinson’s complaint alleges that he “suffered damage to his reputation as a
tax payer and worker by [respondents] reporting false information to the IRS.” Robinson’s
complaint, however, does not allege that respondents made false statements about
Robinson to the IRS. The complaint alleges only that respondents provided “false
information” to the IRS. This allegation is insufficient to state a claim for defamation
because it does not allege that the information was about Robinson. See id. (stating that, in
a claim for defamation, the false and defamatory statements must be “about the plaintiff”
(quotation omitted)); Brill v. Minn. Mines, Inc., 274 N.W. 631, 633 (“Defamatory words,
to be actionable, must refer to some ascertained or ascertainable person and that person
must be the plaintiff[].”). The complaint therefore fails to allege facts sufficient to support
a defamation claim based on “false information” that respondents provided to the IRS.
Second, Robinson’s complaint alleges that he “requested the truthful reason for his
termination in accordance with Minn. Stat. § 181.933” and that respondents stated that
Robinson was “his own business and left” for “lack of work.” But Robinson’s complaint
does not allege that respondents made these statements to a third party or that the statements
harmed Robinson’s reputation in the community. Thus, the complaint fails to allege facts
sufficient to state a claim for defamation. See Maethner, 929 N.W.2d at 873. In addition
and as noted above, under Minnesota law, if an employee “request[s] in writing that the
employer inform the employee of the reason for the termination,” the employee cannot
bring an action for defamation based on the “statement furnished by the employer” in
19 response. Minn. Stat. § 181.933. Because the complaint alleges that Robinson asked
respondents for the reason he was terminated “in accordance with Minn. Stat. § 181.933,”
he cannot bring an action for defamation based on respondents’ answer.
We conclude that the complaint fails to allege facts sufficient to state a claim for
common-law defamation.
VI. Robinson’s complaint fails to allege facts sufficient to state a claim for intentional infliction of emotional distress.
Robinson argues that the complaint “clearly makes a claim for emotional distress”
because it alleges that respondents “misreported income and other information to the IRS,
and [Robinson] has incurred time and stress in clearing his reputation.” Respondents argue
that the district court properly dismissed Robinson’s IIED claim because the complaint
fails to allege extreme and outrageous conduct by respondents. The district court
determined that Robinson’s allegation that he suffered “mental anguish, embarrassment,
stress, frustration, usery [sic], helplessness” was “facially insufficient to successfully plead
a count of intentional infliction of emotional distress” and dismissed his IIED claim.
The elements of an IIED claim are as follows: “(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 severe.” Langeslag v. KYMN Inc., 664 N.W.2d 860,
864 (Minn. 2003) (quotation omitted). The supreme court has stated that “[c]onduct is
extreme and outrageous when it is so atrocious that it passes the boundaries of decency and
is utterly intolerable to the civilized community.” Id. at 865 (quotations omitted).
20 Robinson’s complaint alleges that he is entitled to compensation for “emotional
distress (mental anguish, embarrassment, stress, frustration, usery [sic], helplessness).” But
the complaint fails to allege any conduct by respondents that was extreme and outrageous
such that it would be “utterly intolerable to the civilized community.” Id. (quotations
omitted). The complaint therefore fails to allege facts sufficient to state a claim for IIED.
In sum, Robinson’s complaint alleges facts sufficient to state claims for
misrepresentation of employment relationship, fraudulent misrepresentation, and
whistleblower retaliation, but fails to allege facts sufficient to state claims for defamation
and IIED. In reaching this conclusion, we address only the sufficiency of the complaint
under rule 12.02(e) and offer no opinion on the merits of Robinson’s claims.
Affirmed in part, reversed in part, and remanded.