In Re the Matter of: Bonnie Sue Sherva and Ramsey County, Respondents, vs. Kevin Ernest Swanson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (1998).

Lillian Schurstein,

Respondent,

vs.

Selmer Law Firm, P.A., et al.,

Appellants.

Hennepin County District Court

File No. 9618089

David A. Singer, Carlson Center Towers, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for respondent)

Ronald I. Meshbesher, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellants)

Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

Respondent Lillian Schurstein brought this action against appellants the Selmer Law Firm, P.A., Born A Suspect Film Works, Ltd., and Scott Selmer (collectively Selmer), alleging Selmer sexually harassed her in violation of the Minnesota Human Rights Act while she was his employee. The trial court found in favor of Schurstein and awarded her $59,400 in damages. Selmer appeals, asserting that the evidence is insufficient to support the conclusion that he engaged in unwelcome sexual conduct and insufficient to support the award of damages and that the trial court abused its discretion in its admission and exclusion of evidence. We affirm.

This court reviews the trial court's findings of fact under the clearly erroneous standard. Minn. R. Civ. P. 52.01; Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983). The findings "will be reversed only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction a mistake has been made." Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987) (citation omitted). This is particularly true in employment discrimination cases, which "often involve intricate factual issues in which only the trial court, with its opportunity to observe the witnesses firsthand, can meaningfully assess the weight and credibility of the evidence." Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986).

The Minnesota Human Rights Act (MHRA) prohibits employers from discharging or discriminating against an employee with respect to compensation, terms, or privileges of employment on the basis of sex. Minn. Stat. § 363.03. subd. 1(2)(b), (c) (1998). An employee's claim under MHRA is analyzed under the three-part burden- shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1978). Sigurdson, 386 N.W.2d at 719-20; see Klink v. Ramsey County, 397 N.W.2d 894, 901 (Minn. App. 1987) (applying McDonnell- Douglas test to sexual harassment claim), review denied (Minn. Feb. 13, 1987). Under the test, an employee has the initial burden of establishing a prima facie case of discrimination. Sigurdson, 386 N.W.2d at 720. The burden of production then shifts to the employer "to present evidence of some legitimate, non-discriminatory reason for its actions." Id. (citation omitted). Selmer asserts the trial court erred because the evidence does not support a prima facie case that his sexual advances were unwelcome.

The trial court found that (1) Selmer initiated a sexual relationship with Schurstein; (2) when Schurstein attempted to end the sexual relationship, once by not taking his telephone calls and once by changing her telephone number, Selmer threatened to terminate her; (3) after Selmer terminated Schurstein over a paycheck dispute, Selmer called her the next day, went to her apartment, and initiated sexual intercourse; and (4) Schurstein asked if she had her job back, and Selmer rehired her after she complied with his request to write a thank-you note for her job. This evidence supports a prima facie case of sexual harassment. See Minn. Stat. § 363.01, subd. 14 (1998) (sexual harassment "includes unwelcome sexual advances, requests for sexual favors, [or] sexually motivated physical contact"); Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 2406 (1986) (gravamen of sexual harassment claim is that sexual advances were unwelcome); Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 962 (8th Cir. 1993) (unwelcome conduct is conduct that is uninvited and offensive).

Selmer also asserts that the evidence demonstrates Schurstein welcomed the sexual relationship. The record demonstrates that Schurstein prepared meals for Selmer, discussed her personal life with him; and sent him a number of intimate love letters and cards seeking a sexual relationship with him after she quit. This evidence may conflict with but does not rebut the prima facie case. See Kay v. Peter Motor Co., 483 N.W.2d 481, 482-83 (Minn. App. 1992) (despite evidence of a friendly relationship, other evidence demonstrated sexual harassment). Under the circumstances we cannot say the trial court's findings are clearly erroneous that Selmer conditioned Schurstein's employment on compliance with his demands for sexual favors in violation of the Minnesota Human Rights Act.

The trial court has broad discretion in determining damages and "will not be reversed except for a clear abuse of discretion." Admiral Merchants Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261, 267 (Minn. 1992) (citation omitted). Furthermore, a trial court's findings supporting its award of damages under the Minnesota Human Rights Act will not be set aside unless clearly erroneous. Kohn v. City of Minneapolis Fire Dep't, 583 N.W.2d 7, 14 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998); see Minn. Stat. § 363.071, subd. 2 (employer may be ordered to pay compensatory damages "up to three times the actual damages" and may be ordered to pay "damages for mental anguish"); 14 subd. 2 (1998) (providing section 363.071, subdivision 2 applies to actions in trial court). Selmer asserts the trial court's findings on damages are clearly erroneous.

The trial court found

Schurstein made $6,300 less per year in 1996 than she would have made had she remained employed on a full-time basis with the Selmer Law Firm. In 1997, Schurstein made approximately $3,000 less than she would have made had she been employed on a full-time basis with the Selmer Law Firm.

The record supports these findings. Schurstein was a full-time employee with Selmer beginning in July 1995, and the trial court based its award on Schurstein's pay and her mitigation of damages by seeking other employment. Moreover, "no findings are necessary to support a trial court's decision to multiply damages" under Minn. Stat. § 363.071. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 276 (Minn. 1995).

Selmer also asserts there was no basis for an award for mental anguish. "An award of mental anguish damages may be based on subjective testimony." Kohn, 583 N.W.2d at 14 (citation omitted). Schurstein and her therapist testified Schurstein experienced mental anguish caused by Selmer's sexual harassment. See also Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1298 (8th Cir. 1997) (noting probative value of expert evidence regarding causation of plaintiffs' emotional distress), cert. denied, 118 S. Ct. 2370 (1998). The trial court did not abuse its discretion in awarding damages.

The trial court has broad discretion in admitting evidence and "its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion." Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quoting Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990)).

The trial court admitted the testimony of Amy Bojarski, a receptionist hired by Selmer after Schurstein quit. Bojarski testified that after he hired her, Selmer invited her on a date, came up to her apartment on two occasions, and, while in her apartment, made other inappropriate advances. Selmer asserts the trial court abused its discretion by admitting this testimony because he was not given proper notice. But Schurstein questioned Selmer about his advances toward Bojarski in Selmer's deposition, and Selmer had adequate notice that his conduct toward Bojarski might be introduced at trial.

Selmer also asserts that Bojarski's testimony was used to show a pattern of conduct, in violation of Minn. R. Evid. 404(b). Rule 404(b) allows evidence of another act to establish motive, intent, or plan. Minn. R. Evid. 404(b). Selmer denied having a sexual relationship with Schurstein and denied visiting her apartment. He similarly denied having visited Bojarski's apartment and indicated he was only interested in a friendship with her. The admission of Bojarski's testimony was proper to show motive, intent, and plan. See Kay, 483 N.W.2d at 486 (harassing comments to other employees showed motive); cf. M.L. v. Magnuson, 531 N.W.2d 849, 859 (Minn. App. 1995) (because pastor admitted to sexual abuse, intent was not at issue and, thus, evidence of prior abuse not admissible), review denied (Minn. July 20, 1995). The trial court did not abuse its discretion by admitting Bojarski's testimony.

Selmer asserts the trial court erred in admitting the testimony of Alice Felicia, Schurstein's therapist, as an expert. The determination of an expert's competency and the admissibility of an expert's testimony are left to the sound discretion of the trial court. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998) (admissibility); Beckman v. Schroeder, 224 Minn. 370, 377-78, 28 N.W.2d 629, 633 (1947) (expert competency). A witness's competency as an expert may be demonstrated by "knowledge, skill, experience, training, or education." Minn. R. Evid. 702. Felicia testified that she obtained (1) a master's degree in counseling and psychological services in 1987, and (2) has been employed as a psychologist since obtaining her license in 1991, and had worked as a therapist prior to that. Based on these qualifications and her work experience, the trial court appropriately concluded that Felicia was competent to testify as an expert.

The trial court excluded proposed exhibit 18, a document written by Schurstein to Selmer in May of 1996. Selmer asserts the trial court erred in denying his motion to admit the cover page of the document for the purpose of proving Schurstein's familiarity with legal terms, apparently because he planned to use the exhibit to counter Schurstein's testimony that Selmer dictated a March 1995 note she wrote exculpating Selmer. Selmer does not explain how the 1996 document, written more than a year after the 1995 note, would demonstrate Schurstein's alleged ease with legal terms at an earlier time. This is particularly true in light of Schurstein's employment at Selmer's law firm during the interval. The trial court did not abuse its discretion by excluding the cover page of proposed exhibit 18.