Chantal Devane, Respondent, vs. Sears Home Improvement Products, Inc., et al., Appellants.

Annotate this Case

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).






Chantal Devane,





Sears Home Improvement Products, Inc., et al.,



Filed December 23, 2003


Randall, Judge


Hennepin County District Court

File No. EM-01-6586



Kathryn Ann Mrkonich, Andrew J. Voss, Littler, Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN  55402-3720 (for appellant)


Eric J. Magnuson, Andrew E. Tanick, Rider Bennett, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402; and


Gerald T. Laurie, Laurie & Laurie, P.A., 1660 South Highway 100, St. Louis Park, MN  55416 (for respondent)


Andrea F. Rubenstein, Elizabeth A. Glidden, Hedin & Goldberg, P.A., 2100 Stevens Avenue South, Minneapolis, MN  55404 (for Amicus Curiae Minnesota Affiliate of the National Employment Lawyers Association)



            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N


Appellants Sears Home Improvement Products (SHIP) and Eric Thompson challenge the district court's judgment holding them liable for sexual harassment and hostile work environment.  Appellants challenge the judgment and the district court's denial of their post trial motion arguing that (1) the district court erred by failing to make independent findings; (2) the district court erred by concluding that respondent proved her sexual harassment and hostile environment claims; (3) the district court erred by admitting irrelevant, prejudicial, and improper evidence, and the district court erred by improperly commenting about the case; (4) the district court erred by upholding the damage award; (5) the district court erred by concluding that appellants are jointly and severally liable for the damage award; and (6) the district court erred by imposing a civil penalty on SHIP.  Respondent Chantel Devane filed a notice of review challenging the district court's decision to award attorney fees and seeks additional attorney fees.  We affirm the district court on all issues. 


            In March of 1999, respondent Chantal Devane began working as a sales representative for SHIP's predecessor, American Home Improvement Products, in its Brooklyn Park office.  Respondent testified that, at her interview, Craig Ohren, SHIP's District Sales Manager, asked her several inappropriate questions, such as whether she was married, had any children, or planned to have any children.  Respondent testified that while she worked with Ohren he told her that his wife did not satisfy him sexually, and that his wife did not understand that he has a "wild side."  Timothy Divinski, a sales representative at SHIP, testified that another manager named Greg Davis told him that respondent was snobby, a "f---ing c--t," and that "it must be that time of the month" or she must "be on the rag."  Divinski also testified that Davis told him "he would like to let [respondent] have it."  In June or July of 1999, Divinski took over Ohren's position.  Divinski testified that he believed Ohren sexually harassed respondent, but he took no action because he felt he would lose his job over it. 

            In January 2000, Eric Thompson became Sales Manager at SHIP's Brooklyn Park office.  Respondent testified that Thompson began to make sexually inappropriate comments to her almost immediately after he began.  She testified that when she bent over Thompson said, "Ummm" or "Damn."  Respondent also testified that Thompson stood behind her in the hallway and stated, "Mmmm, mmmm, mmmm, I would like to get me some of that."  She stated that she heard Thompson make that comment on several occasions, although not always directed toward her.  Robert Lincoln, project coordinator at SHIP, testified that he heard Thompson make this comment to respondent.  Lincoln also testified that Thompson told him he "would like to f---" respondent, and that respondent was "a spoiled c--t," and a "b--ch."  By spring 2000, respondent interacted with Thompson four days a week, typically in the mornings, and before spring 2000, respondent visited the office twice a week.  Cassandra Knutson, a sales representative at SHIP, and respondent both testified that Thompson told them that while having sex with one women at a hotel the night before, he had phone sex with another woman, and a third women was waiting at the door to have sex with him.  Respondent testified that Thompson told her that he liked women with "big butts and large breasts."  Respondent testified that Thompson told her that Knutson was "fine," had a "nice booty," and that he slept with her.  Respondent also testified that Thompson made a thrusting motion simulating intercourse while telling stories she was unable to hear.  Lincoln testified that after Knutson's initial job interview, Thompson told him, he "hit every hole" with her and that "She was in the same clothes she was in when she left."  Lincoln also testified that Thompson told him that Knutson had a "nice rack."  According to Lincoln, respondent and Knutson would walk down the hall and Thompson would put his hand on his crotch and say, "Um, I would like to get me some of that." 

Knutson testified that Thompson told her he liked the way her "booty shakes."  Knutson also testified that when she and Thompson were out for a work appointment Thompson stated, "Don't you think they want -- they wanted to do me, didn't they[,]" in reference to two ladies they passed.  She also stated that Thompson told her that on one business outing a lady answered the door in a robe, and that he "got that sale."  Knutson testified that Thompson treated women in the workplace "like sexual objects." 

            Respondent testified that Trisha Clemes, an office manager at SHIP, told her that Thompson would brush up against her "any chance he g[ot]."  Lincoln testified that Clemes complained to him saying that Thompson wouldn't leave her alone, continued to make comments, brushed up against her breasts and buttocks, rubbed her, and that she couldn't take it anymore.

            Respondent testified that she told Thompson he was a "disgusting pig," he had given her "[m]ore information than she needed," he was inappropriate, and she "[did not] want to hear it."  Respondent testified that she complained three or four times to Lincoln about Thompson.  Lincoln testified that at a meeting Thompson told respondent that she needed to show her breasts, her legs, and her buttocks in order to increase her sales.  Lincoln testified that he told Thompson that he could not talk to respondent in that manner.  Thompson told Lincoln that he did nothing wrong and that he was just trying to motivate people. 

Respondent also stated that Thompson told her that she should wear a short skirt and knee-high boots so she could attract more business from male customers.  Respondent, Knutson, and Lincoln all testified that Thompson created a "skin to win" contest where whoever dressed "sexy" and showed parts of their body, would receive a 25-inch color television paid for by Thompson.  Respondent stated that she told Thompson that he was disgusting and that it would be inappropriate to wear such clothing to work.  Respondent, Knutson, and Lincoln testified that Thompson spent the day calling, "Here, kitty, kitty," to respondent after she wore a leopard-print cardigan to work one day.  Respondent also testified that that same day Thompson called her cat woman and stated, "Cat woman is looking hot," and then asked her if the leopard print sweater made her feel "saucy."  On Halloween of 2000, respondent came to work wearing a doctor costume, and Thompson gestured to her by unbuckling her pants and telling her, "Here Doctor.  It hurts here[,]" while pointing to his groin. 

            Respondent also stated that Curtis Conley, Regional Director of Sales, told sexually explicit jokes in front of her and others at sales meetings.  Respondent stated that Conley told her that she should try to use her appearance to persuade male customers to buy from her.      Lincoln testified that Conley told him that Knutson had a "nice rack!" 

Respondent testified that Joe Napolitano, a project coordinator manager from SHIPS's Chicago office, repeatedly asked respondent to go out with him, assuring her that her husband "wouldn't have to know about it."  Respondent testified that when she spoke with Napolitano on the phone regarding a business matter he told her, "I am just trying to picture you naked right now trying to bundle up from the cold."  He then told her that he was fantasizing about how she looked and how he would keep her warm. 

Before Lincoln located to Minneapolis from SHIP's St. Louis Missouri office, Timothy Graham, Conley, and another employee named "Darko" went out to a business dinner, for the purpose of discussing the Brooklyn Park office.  Lincoln testified that at dinner, Conley commented that Knutson had a "very nice rack," and that Thompson had slept with her.   Lincoln testified that Conley told him that respondent was a "spoiled b--ch" and that she sold well because she had a "nice a--."  After dinner, Conley left, but Graham, SHIP's Regional Director of Operations, took his subordinates to a topless bar, where they debated whether respondent shaved her pubic hair or had "a landing strip."  Lincoln also stated that Graham commented that he would like to "bang" respondent, and "get a hold of [Knutson]."  Lincoln testified that Graham came to the office where Lincoln and respondent worked, and invited Lincoln to go to the topless bars with him and "get some p---y in [his] face."  Lincoln felt that if he didn't go he would be treated differently, and that he was treated differently when he declined Graham's invitations.

            In February 2000, respondent called SHIP's "Ethics Hotline" and complained about Thompson's management style and inappropriate conduct.  She told the hotline about Thompson telling inappropriate stories at the office, and speaking derogatorily toward and about women.  Klinzing testified that on February 29, 2000, he received respondent's complaint.  Klinzing testified that he called respondent and she expressed dissatisfaction with Thompson's management style and that he was treating everyone like children.  He testified that he received no information from respondent that she was being sexually harassed.  The report did not contain any sexual-harassment accusations.  A day or two later, respondent received a phone call from Klinzing, responding to her phone call.  Respondent testified that Klinzing promised to get back to her but never did.  In mid-March, Respondent phoned Klinzing again and he told her that he spoke with Conley, and that there was nothing he could do.

In late March, respondent called Conley and reiterated her concerns.  Conley said that he was aware of her concerns, had spoken with Thompson, but there was nothing more he could do.  Respondent called Conley again to report Thompson's specific sexual comments and stories, but Conley told her that he could not deal with it right now and that he would get back to her.  Respondent testified that Conley never contacted her. 

            In May 2000, respondent complained to Jim Brown, SHIP's vice president of sales, about SHIP's lack of response to her prior sexual-harassment complaints.  Respondent testified that Brown told her that he would check into the situation, and he never did.  Respondent stated that she called Brown back, and he told her that he had "no specific answers."

            Respondent and Clemes both talked to Lincoln about Thompson's harassment.  When Lincoln's attempts to deal directly with Thompson failed, Lincoln called Graham and told him that he had received several complaints of Thompson rubbing up against women, and saying inappropriate things.  Lincoln testified that he specifically told Graham that he attended sales meetings where Thompson told respondent to "start showing some t-ts and a--" to increase sales.  Lincoln stated that Graham told him to keep his mouth shut and keep his "nose in [his] own business."  When Thompson would not stop his behavior, Lincoln called Graham again, and told him that Thompson's conduct toward respondent was getting worse.  Graham told him to "keep [his] mouth shut."  Graham also told him, "If you don't like what you hear, close the door and keep the door shut.  I told you this before.  I am not telling you again." 

            On May 12, 2000, respondent resigned.  The May 12 resignation does not mention specific sexual harassment complaints, but mentions her dissatisfactions with not receiving commissions, and SHIP's failure to resolve "issues that have evolved in the past few months and have gotten increasingly worse with time."  On May 25, 2000, respondent sent an email to Brown stating that Thompson acted inappropriately and disrespectfully toward her and that SHIP failed to take any action to resolve the situation.  Respondent testified that Brown never responded.        

In early July 2000, respondent came back to work after Larry Loftness, a sales representative, encouraged her to return.  Respondent stated, "It was pretty tame the first couple of weeks but eventually the different comments and the same behavior started happening again in the office."  Respondent testified that she tried to talk to Conley several times about the same issues, but that he either did not return her calls, or when she did reach him, he just listened to her complaints and told her to let him know if anything else came up. 

Respondent testified that when she went back to work in July 2000, the situation started to affect her emotionally.  Respondent testified that she started to feel nervous about coming into work, started having panic attacks, and was scared to be around Thompson.  She stated that during these panic attacks, she had chest pains, felt dizzy and nauseous, experienced dry mouth and migraine headaches, and had such trouble breathing that she feared for her life.  She stated the panic attacks occurred several times each week and typically lasted 10-15 minutes each. 

            Respondent also stated that she experienced changes in her relationships as a result of the harassment.  She stated that she withdrew socially and didn't talk to as many people.  Respondent also testified that the harassment caused marital problems because she began pushing her husband away.  Respondent testified that the sexual harassment harmed her self-image, and that she wondered if she was the problem.  Respondent also testified that she tried alternative or holistic treatments and talked to a psychologist to cope with her emotional distress. 

In June 2001 and April 2002, Dr. Lois Schlutter, a clinical psychologist, evaluated respondent.  Dr. Schlutter testified that respondent suffered sexual harassment at SHIP and that the harassment caused psychological pain.  Dr. Schlutter testified respondent was scared to go to work, felt trapped, felt anxiety, and that she felt even more abused and trapped when SHIP did nothing about her complaints.  She also testified that respondent suffered heart palpitations, chest discomfort, shortness of breath, shaking, nausea, fear of losing control, and dizziness.  Dr. Schlutter stated that respondent felt that things were not quite real or "de-realization", and that she could not get herself to work.  She stated that respondent's panic and anxiety symptoms caused her self-doubt, lack of self-confidence, and undermined her sense of self.  She also stated that respondent experienced insomnia, headaches, and gastrointestinal problems because of the sexual harassment.  Dr. Schlutter testified that respondent "will need some years of psychotherapy and [possibly] medication, but for certain psychotherapy."   

            On May 2, 2001, respondent sued SHIP for sexual harassment and reprisal under the Minnesota Human Rights Act (MHRA), and for unpaid commissions.  Respondent also sued Thompson for aiding and abetting sexual harassment.  The case was tried before an advisory jury, and the trial began on May 14, 2002.  On June 4, 2002, the advisory jury returned a special verdict.  The advisory jury found in SHIP's favor regarding respondent's reprisal claim, but found in respondent's favor regarding her sexual harassment claim against SHIP, and her aiding-and-abetting claim against Thompson.  The jury denied respondent any past economic damages and the court directed a verdict against her for any future lost income.  The advisory jury awarded respondent $500,000 for mental anguish up until trial, and $250,000 for future mental anguish. 

            On July 2, 2002, the district court adopted the jury's verdict, and issued Findings of Fact, Conclusion of Law, and Order for Judgment.  Based on those findings, the district court concluded that SHIP was liable for sexual harassment, Thompson was liable for aiding and abetting sexual harassment, and respondent was entitled to compensatory damages totaling $750,000 (exactly the amount of the advisory jury special verdict).  The court also awarded respondent $8,500 in punitive damages.  Finally, the district court held that respondent was entitled to reasonable attorney fees.  Subsequently, respondent submitted a petition for an award of reasonable costs and attorney fees. 

            On December 17, 2002, the district court issued subsequent findings and entered judgment rejecting in part respondent's fee petition and finding that "the 40% (contingency fee) provided for attorneys' fees in Mr. Laurie's contract with the [respondent was] reasonable, sufficient, and fully compensat[ed] Mr. Laurie for his professional services."  Laurie had applied for an additional $349,000 over and above his 40% of $750,000.  The court then granted attorney fees in the amount of $2,798.10 for services performed on respondent's behalf by Rider, Bennett, Egan & Arundel.  The court also ordered SHIP to pay a civil penalty in the amount of $50,000 to the state of Minnesota.  Subsequently, on January 6, 2003, the district court denied appellants' motion for Judgment Notwithstanding the Verdict and Amended Findings, or New trial or Remittitur.  On January 17, 2003, the July 2, 2002 order for judgment was entered.  This appeal follows. 


            1.  Independent Findings


Appellants argue that the district court "refused" to make its own independent findings because it adopted the advisory jury's findings of fact and verdict.  We disagree.  MHRA claims "shall be heard and determined by a judge sitting without a jury."  Minn. Stat. § 363.14, subd. 2 (2002).  But it is beyond dispute that the district court may try a case with an advisory jury.  Minn. R. Civ. P. 39.02.  When a jury acts in an advisory capacity, the district court is free to accept or reject the verdict.  Agner v. Bourn, 281 Minn. 385, 400, 161 N.W.2d 813, 823 (1968).  The district court is not required to adopt the advisory jury's findings and is required to make its own independent findings.  Doan v. Medtronic, Inc., 560 N.W.2d 100, 105 (Minn. App. 1997), review denied (Minn. May 14, 1997); see also Minn. R. Civ. P. 52.01 (stating that it is necessary that trial courts find facts and state conclusions clearly and specifically). 

The district court adopted the jury's verdict and findings of fact.  As in this case, district courts are entitled to empanel advisory juries.  District courts are free to accept or reject the advisory jury's verdict.  The district court is required to make independent findings to show it independently arrived at its legal conclusions, but it is always possible that an advisory jury's recommendations reflect the district court's view of the case.  In its July 2, 2002 order, the district court adopted the advisory jury's findings of fact and issued eleven separate findings of facts in support of the verdict.  The district court did enough to show that it independently reviewed the advisory jury's findings of fact.  Even though the district court adopted the advisory jury's verdict and findings of fact, it did not fail to make reasoned independent findings. 

2.  Sexual Harassment and Hostile Work Environment

Appellants argue that respondent failed to prove the existence of sexual harassment and hostile work environment.  We disagree.  A district court's "findings should not be disturbed on appeal if they are reasonably supported by the evidence as a whole."  Johnson v. Ramsey County, 424 N.W.2d 800, 804 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  A district court's "decision will be reversed only if the result is clearly erroneous."  Id.   Findings are not clearly erroneous if reasonably supported by the evidence in the record as a whole, with due regard given to the trial court's opportunity to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; see also Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986) ("Employment discrimination cases 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.").

Under the MHRA, sexual harassment includes "unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature," which has the effect of "substantially interfering with an individual's employment."  Minn. Stat. § 363.01, subd. 41 (2002).  To establish a prima facie case of sexual harassment based on hostile work environment, a claimant must show: (1) that the conduct was unwelcome; (2) that the harassment was based on sex; (3) that the conduct was pervasive enough to create an abusive working environment; and (4) that there is some basis for imputing knowledge or liability to the employer.  Johns v. Harborage I, Ltd., 585 N.W.2d 853, 861 (Minn. App. 1998).  If discriminatory harassment is present, such conduct is not actionable unless it is "so severe or pervasive" as to " ‘alter the conditions of the [plaintiffs'] employment and create an abusive working environment.'"  Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001) (quotation omitted).  Whether harassment is sufficiently severe to constitute discrimination must be determined based on the totality of the circumstances, including examination of the "nature, frequency, intensity, location, context, duration, and object or target" of the conduct.  Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986) (addressing sexual harassment), review denied (Minn. Feb. 13, 1987), abrogated on other grounds by Cummings v. Koehnen, 568 N.W.2d 418, 420 n. 2 (Minn. 1997).

            Because the evidence showed that appellants subjected respondent to repeated unwelcome sexually offensive conduct, respondent proved her sexual-harassment and hostile-work-environment claims.  Not only did respondent testify to several instances of sexual harassment that began with her initial employment interview, several witnesses confirmed her testimony.  Divinski corroborated the testimony respondent gave about Ohren, and Lincoln corroborated respondent's testimony about Thompson and Conley.  Because respondent saw Thompson four days a week, and later, twice a week at sales meetings, respondent frequently endured Thompson's sexually inappropriate behavior.  On several occasions, respondent and other SHIP employees complained to various SHIP personnel, but SHIP did nothing.  Respondent testified that SHIP personnel repeatedly failed to follow up on her claims, and Lincoln testified that he was told to keep his mouth shout.  The district court considered this testimony and found the witnesses credible.  Given the totality of the circumstances, the record supports the district court's conclusion that respondent established a prima facie case of sexual harassment and hostile work environment. 

3.  Evidence

Next, appellant argues that the district judge erred by admitting irrelevant, prejudicial and improper evidence, and the district court erred by improperly commenting about the case.  We disagree.  A district court's evidentiary 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) (quotation omitted).  Even if an evidentiary ruling is erroneous, it will not be reversed unless it resulted in prejudice.  Id. at 46.  An evidentiary error is prejudicial if it might reasonably be said to have changed the result of the trial.  See State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (providing that an error in admitting evidence is prejudicial "if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted").

A.  Former SHIP employee testimony

Appellants argue that the district court abused its discretion by admitting irrelevant and prejudicial testimony that had nothing to do with respondent.  Specifically, appellants contend that Lincoln's testimony about the dinner and strip club he attended with SHIP supervisors was irrelevant because it was not directed at respondent. 

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401.  Relevant evidence may be excluded if its prejudicial effect will substantially outweigh its probative value.  Minn. R. Evid. 403.  But evidence of discrimination not directed at the plaintiff is relevant to show the employer's sexist, racist, ageist, or otherwise corporate culture.  See, e.g., Hamblin v. Alliant Techsystems, 636 N.W.2d 150, 154 (Minn. App. 2001) (evidence of discriminatory corporate culture is relevant to show discriminatory intent).

The court allowed several former SHIP employees to testify about several alleged acts of sexual harassment committed by male management€‘level personnel.  Appellants are particularly concerned with Lincoln's testimony about the conversations that took place when Lincoln attended dinner and a strip club with SHIP supervisors.  The testimony consisted of sexually explicit statements made by both SHIP supervisors about SHIP employees.  Although some of the testimony by Lincoln and other former SHIP employees extended to the outer limits of what is relevant, the district court had wide discretion in determining which evidence was relevant.  See State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (concluding that district courts have "wide discretion in determining relevance and the probative value of evidence").  The court allowed this testimony because it was relevant to respondent's burden of showing a hostile environment.  Appellants were free to cross-examine and/or deny any part of this testimony.  We conclude the district court did not abuse its discretion by allowing former SHIP employees to testify about the comments made by SHIP supervisors. 

B.  Agency

An admission is not hearsay and is admissible if offered against a party and made by the party's agent or servant concerning a matter within the scope of the agency or employment.  Minn. R. Evid. 801(d)(2)(D); see also Minn. R. Evid. 801(d)(2)(D) 1989 comm. cmt. (stating that rule 801(d)(2)(D) "rejects the strict agency theory in determining whether or not the statement is admissible" and "requires only that the statement be made concerning a matter within the scope of the agency").  Appellants argue that the district court's decision to admit the testimony made by former SHIP employees was improper because the statements were made outside the scope of employment.  This argument is of limited value.  No company would ever admit that its employees committed sexual harassment "within the scope of their employment."  Further, illegal acts are not allowed whether an employee is acting within the scope of employment or not.  Thus, we find that the district court did not err by admitting this testimony.

C.  Judge's comment

Appellants further argue that the court erred by commenting about the case.  Following the court's ruling that Lincoln's testimony would not be stricken, the judge commented that "[Lincoln's testimony] goes to the hostile environment that was apparently rampant . . . at SHIP[.]"  After hearing testimony from several witnesses about the instances of sexual harassment at SHIP, the judge's comment was not inappropriate.  See In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986) ("Bias or prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case").

D.  Expert testimony

A qualified witness may give expert testimony "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."  Minn. R. Evid. 702.  The opinions of experts are admitted when "the subject matter of the inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance."  Wyatt v. Wyett, 200 Minn. 106, 110, 273 N.W. 600, 601-02 (1937).  The standard of review of expert-testimony admissibility is two-pronged.  Goeb v. Thoraldson, 615 N.W.2d 800, 815 (Minn. 2000).  The first prong, general acceptance in the relevant scientific field, is a question of law that we review de novo.  Id.  Under the second prong, expert-witness qualifications and helpfulness are reviewed under an abuse-of-discretion standard.  Id. 

Appellants argue that the district court abused its discretion by allowing Dr. Schlutter to testify that respondent was sexually harassed, which was consistent with Dr. Schlutter's understanding of the term.  When respondent's counsel asked Dr. Schlutter whether she had reached an opinion with a reasonable degree of psychological certainty that respondent was sexually harassed, appellants objected, and the district court sustained the objection.  The judge ruled that Dr. Schlutter could give her opinion within the context of her own definition of sexual harassment but not the legal definition.  Respondent's counsel then changed his question and asked, "In accordance with the definition that you just gave of sexual harassment, do you have an opinion with a reasonable degree of psychological certainty that [respondent] suffered sexual harassment at [SHIP]?"  Dr. Schlutter responded, "My opinion is that [respondent] did suffer sexual harassment at [SHIP]."  The court properly sustained appellants' first objection and any indication that Dr. Schlutter was giving improper expert testimony was corrected or was harmless error.  Under the circumstances of this case, it was not a surprise to the advisory jury, the judge, or defense counsel that respondent's expert thought respondent was sexually harassed.  Even assuming that it was error in the way it came in, it did not substantially change the outcome of the case or materially prejudice appellant.  See State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997) (stating that "[r]eversal is warranted only when the error substantially influences the jury's decision").

Appellants also argue that Dr. Schlutter was not a qualified witness, her testimony failed to assist the fact-finder, and the testimony was prejudicial because respondent's notice to appellants that Dr. Schlutter would possibly testify was untimely.  We find no merit to these arguments.  There is nothing to indicate that Dr. Schlutter was not qualified to testify as an expert witness.  Respondent's counsel properly laid foundation to establish her qualifications as an expert, and the district court was in the best position to determine if Dr. Schlutter was qualified and if Dr. Schlutter's testimony was helpful to her and members of the advisory jury.  Respondent notified appellants of Dr. Schlutter's potential for being a witness one month and as long as one year before trial.  Appellants failed to explain why this amount of prior notice was prejudicial, and we find respondent's notice timely.  We conclude the district court did not err by admitting Dr. Schlutter's testimony.  

            4.  Damage Award

Appellants argue that the district court erred by upholding the damage award because there is no causal connection between respondent's alleged injuries and the damage award, and the damage award is excessive when compared with other compensatory damage awards.  The discretion to grant a new trial on the ground of excessive damages rests with the trial court, whose determination will only be overturned for abuse of that discretion.  Advanced Training Sys. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).  "The trial judge has ‘large discretion' in determining if damages are excessive and whether the cure is a [remittitur] or a new trial."   Hanson v. Chicago, Rock Island & Pac. R.R. Co., 345 N.W.2d 736, 739 (Minn. 1984).  Appellate courts have stated that a verdict should be set aside if it "shocks the conscience."  Verhel v. Independent Sch. Dist. No. 709, 359 N.W.2d 579, 591 (Minn. 1984). 

Here, the psychologist's testimony and respondent's evidence, including but not limited to heart palpitations, chest discomfort, shortness of breath, shaking, nausea, fear of losing control, and dizziness combined with evidence of her insomnia, headaches, and gastrointestinal problems are sufficient to support the verdict.  The evidence supports the verdict, and the district court did not abuse its discretion by denying the motion for a new trial or remittitur on grounds the damage award was excessive. 

5.  Jointly and Severally Liable

Appellants argue that the district court erred by concluding that SHIP and Thompson are jointly and severally liable.  We disagree.  The MHRA prohibits employers from discrimination on the basis of gender in places of their respective employment.  Minn. Stat. § 363.03, subd. 1(2)(c) (2002).  The MHRA also provides that any person unfairly discriminates when they "intentionally aid, abet, incite, compel, or coerce a person to engage in any of the practices forbidden" under the statute.  Id., subd. 6(1) (2002) (emphasis added).  Under the "single divisible rule," apportionment is not required where two defendants caused harm to plaintiff through closely related wrongful acts.  Canada v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997).  Where the harm is indivisible, each actor is liable for the entire harm.  Id.  The defendant must prove that any damages caused by other factors were divisible, and if so, what portions of damages the defendant caused.  Id.

Appellants argue that Thompson could not have aided and abetted SHIP because the MHRA statute attaches liability to any person who aids and abets a person to commit unlawful acts under the statute, not employers.  But appellants fail to cite any authority for this assertion.  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).  Consequently, we decline to address this argument.  Given that appellants failed to prove that their acts were divisible or specify which party caused any particular portion of the damages, the district court did not error by concluding that SHIP and Thompson are jointly and severally liable for the damage award in this case.

6.  Civil Penalty

SHIP claims that the $50,000 civil penalty assessed by the district court is excessive and unsupported by the evidence.  We disagree.  The district court has the discretion to determine the amount of a civil penalty, and that decision will not be reversed absent an abuse of discretion.  Gillson v. State DNR, 492 N.W.2d 835, 843 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993).  The judge shall order any party found to be in violation of any provision of section 363.03 to pay a civil penalty to the state.  Minn. Stat. § 363.071, subd. 2 (1992).  The "judge shall determine the amount of the civil penalty to be paid, taking into account the seriousness and extent of the violation, the public harm occasioned by the violation, whether the violation was intentional, and the financial resources of the [party]."  Id.  A civil penalty is intended to supplement compensatory and punitive damages.  Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670, 678 (Minn. App. 1991), review denied (Minn. Aug. 2, 1991). 

Because we conclude that the evidence supports the verdict, we conclude that the district court did not abuse its discretion by imposing a $50,000 civil penalty on SHIP.  SHIP's apparent inability to follow through on complaints of sexual harassment could have perpetuated the inappropriate behavior of
Thompson and other employees, and the total climate at work regarding gender issues.  The district court was in the best position to assess the seriousness of the offense and other factors. 

7.  Attorney Fees

Respondent and amicus curiae, the National Employment Lawyers Association (NELA), claim that the district court erred by only giving respondent's attorney his 40 percent contingency fee and not awarding another substantial amount over and above the contingent fee.  We are not persuaded that this district court improperly assessed attorney fees. 

"On review, this court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion."  Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987).  The reasonable value of counsel's work is a question of fact and this court must uphold the district court's findings on that issue unless they are clearly erroneous.  Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-01 (1973).  Under the relevant language of the MHRA, "reasonable attorney's fees" may be awarded.  Minn. Stat. § 363.071, subd. 2.  Appellants argue that the district court failed to calculate attorney fees in accordance with the lodestar method that multiplies the reasonable hourly rate times the reasonable number of hours expended.  Shepard v. City of St. Paul, 380 N.W.2d 140, 143 (Minn. App. 1985).  A reasonable rate is based on prevailing market rates in the community.  Id.

The district court concluded that:

[respondent] entered into an Agreement with her attorney's firm, Laurie & Laurie, P.A. that provides for the payment of "40% of any total amount recovered either by way of suit or settlement" plus costs.  In support of his application for attorney fees beyond the amount set forth in the Agreement, [respondent's] attorney avers that, based upon the hours involved in this case and the value of his professional expertise, his reasonable fees (above the Agreement) would be an additional $349,605.75.  This includes a 50% enhancement of the actual hourly fees incurred, and would give Mr. Laurie's firm more tha[n] twice the fee he agreed to accept in his 40% contingency fee contract.  The Agreement between the [respondent] and her attorney provides that 40% of the $750,000 judgment previously issued by this Court will be paid to Laurie and Laurie, P.A. in attorneys' fees and totals $300,000.  This Court finds that to be a reasonable total fee and will not grant any additional fees to [respondent's] attorney or his firm above that amount.  This Court finds that $2,798.10 for attorney fees [respondent] incurred with Rider Bennett Egan & Arundel prior to the Laurie firm's acceptance of [respondent's] case reasonable and will grant Judgment in that amount to Rider Bennett Egan & Arundel, to be paid by the Defendants in addition to the judgment for $750,000.00


We recognize respondent's point that a contingency fee contract is not the determinative legal test.  But that does not mean that the amount the contingency fee engenders cannot be examined to consider what is reasonable compensation.  We cannot find that the district court's conclusion that $300,000 to respondent's attorney was reasonable was an abuse of discretion.  The court properly considered the reasonable hours devoted to this case, the result, and other relevant factors.  Respondent and NELA failed to show how the district court abused its discretion on the issue of reasonable attorney fees. 


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