130 F.3d 1287 (8th Cir. 1997), 97-1147, Jenson v. Eveleth Taconite Co.

Docket Nº:97-1147.
Citation:130 F.3d 1287
Party Name:Lois E. JENSON; Patricia S. Kosmach; Kathleen O'Brien Anderson, on their own behalf and on behalf of all others similarly situated; Plaintiffs-Appellants, Angel Alaspa; Shirley Burton; Audrey Daniels; Marilyn Greiner; Diane Hodge; Joan Hunholtz; Judy Jarvela; Mavie Maki; Michelle Mesich; Priscilla Robich; Debra Sersha; Marcia Steele; Marjorie Tolbe
Case Date:December 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1287

130 F.3d 1287 (8th Cir. 1997)

Lois E. JENSON; Patricia S. Kosmach; Kathleen O'Brien

Anderson, on their own behalf and on behalf of all

others similarly situated; Plaintiffs-Appellants,

Angel Alaspa; Shirley Burton; Audrey Daniels; Marilyn

Greiner; Diane Hodge; Joan Hunholtz; Judy Jarvela; Mavie

Maki; Michelle Mesich; Priscilla Robich; Debra Sersha;

Marcia Steele; Marjorie Tolbert; Denise Vesel, Appellants,


EVELETH TACONITE COMPANY; Eveleth Expansion Company;

Oglebay Norton Company; Oglebay Norton Taconite Company,

doing business as Evelyth Mines; United Steelworkers of

America, Local 6860, Defendants-Appellees,

NOW Legal Defense and Education Fund, Amicus Curiae,

National Employment Lawyers Association, Amicus Curiae.

No. 97-1147.

United States Court of Appeals, Eighth Circuit

December 5, 1997

Submitted Oct. 21, 1997.

Rehearing and Suggestion for Rehearing En Banc Feb. 18,


Page 1288

[Copyrighted Material Omitted]

Page 1289

Jean Marie Boler, Minneapolis, MN, argued (Lawrence P. Schaefer, Susan M. Coler, Paul C. Sprenger, Jane Lang, and Daniel B. Edelman), for Plaintiffs-Appellants.

David P. Jendrzejek, Minneapolis, MN, argued (W. Scott Herzog and Thomas R. Sheran, on the brief), for Defendants-Appellees.

Page 1290

Before McMILLIAN, FLOYD R. GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

This case has a long, tortured, and unfortunate history. In August 1988, Lois Jenson and Patricia Kosmach filed a class action suit against Eveleth Mines 1 alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2, and the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363.03, subd. 1(2). Three years later, the district court certified a class of plaintiffs that includes those who have been employed at Eveleth Mines in Eveleth, Minnesota, after December 30, 1983. See Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 667 (D.Minn.1991) (Jenson I ). 2

On May 13, 1993, the district court found Eveleth Mines liable on plaintiffs' classwide claims of (1) sex discrimination in promotions to the position of "step-up foreman" and foreman, and (2) sexual harassment. Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 889 (D.Minn.1993) (Jenson II). 3 On July 29, 1993, in accordance with 42 U.S.C. § 2000e-5(f)(5) and Federal Rule of Civil Procedure 53, the court appointed a Special Master to consider the compensatory damages and punitive damages claims under the MHRA raised by sixteen female employees of Eveleth Mines. 4 The compensatory damages plaintiffs sought included back pay, front pay, and damages for past and future mental anguish. See Minn.Stat. § 363.071, subd. 2 (administrative law judge may award damages for mental anguish); Minn.Stat. § 363.14, subd. 2 (allowing district court judge to award same relief).

The MHRA does not, however, define mental anguish. In his Report, the Special Master said mental anguish includes mental suffering caused by painful emotions such as indignation, wounded pride, shame, public humiliation and despair. Report and Recommendation, Jenson v. Eveleth Taconite Co., Civ. 5-88-163 (D.Minn. Mar. 28, 1996), Appellants' Addendum at 65; See also Black's Law Dictionary, 985-86 (6th ed.1990) (mental anguish includes mental sensation of pain resulting from emotions such as grief, severe disappointment, indignation, wounded pride, shame, despair and public humiliation). The Special Master thereafter allowed extensive discovery, took 7469 pages of testimony during a seven-week trial, and issued a 416-page Report and Recommendation. The Special Master awarded damages for mental anguish to various members of the class. 5 See Appellants'

Page 1291

Addendum at 466-67. 6 Plaintiffs thereafter filed objections to the Special Master's Report. The district court affirmed the Special Master's Report and Recommendation. See Memo. Op. and Order, Jenson v. Eveleth Taconite Co., Civ. No. 5-88-163 (D.Minn. Nov. 12, 1996), Appellants' Addendum at 46-47. This appeal followed.

On appeal, the plaintiffs generally attack the analysis and rationale the Special Master used in awarding damages. Plaintiffs also raise individual claims as to constructive discharge, the statute of limitations, whether one claim has survived one of the plaintiff's death, and the Special Master's failure to award punitive damages. We address these claims separately, infra. Plaintiffs assert the damages awards do not make the women whole and are totally inadequate and "shocking." We share plaintiffs' concern regarding the inadequacy of the damages. We are most concerned, however, with the Special Master's erroneous application of legal principles governing the award, and his restrictive rulings limiting the testimony of plaintiffs' expert witnesses. Therefore, we focus our analysis on these legal errors.

Although the defendant does not question liability on appeal, we briefly mention it for historical relevance to our review of the award of compensatory damages and the denial of punitive damages. 7 Any fair reading of the record requires this court to acknowledge that the sexual harassment conducted against the member class, individually and as a whole, is, to say the least, egregious. In certifying the class, Judge Rosenbaum summarized the preliminary evidence as follows:

Sexually explicit graffiti and posters were found on the walls and in lunchroom areas, tool rooms, lockers, desks, and offices. Such material was found in women's vehicles, on elevators, in women's restrooms, in inter-office mail, and in locked company bulletin boards.

Women reported incidents of unwelcome touching, including kissing, pinching, and grabbing. Women reported offensive language directed at individuals as well as frequent "generic" comments that women did not belong in the mines, kept jobs from men, and belonged home with their children.

Jenson I, 139 F.R.D. at 663.

Judge Kyle, in finding liability, held that "Eveleth Mines engaged in a pattern or practice of maintaining [a work] environment sexually hostile to women." Jenson II, 824 F.Supp. at 888. The court found sexual harassment was a "standard operating procedure" at Eveleth Mines. Id. at 888. In finding Eveleth Mines liable for creating or condoning a hostile work environment, the district court found:

[s]exual harassment at Eveleth Mines was so pervasive that an inference of knowledge

Page 1292

arises.... In addition, many of Eveleth Mines' first-line supervisors had actual knowledge of the harassing behaviors: some foremen participated in them and others worked closely with those who did. Further, management personnel testified that they saw photos and graffiti of a sexual nature.

Jenson II, 824 F.Supp. at 887.

Judge Kyle made numerous findings regarding the nature of the working environment at Eveleth Mines. He found Eveleth Mines male-dominated in terms of power, position, and atmosphere. Jenson II, 824 F.Supp. at 879. Judge Kyle found that male-focused references to sex and to women as sexual objects created a sexualized work place. Id. These references included graffiti, photos, and cartoons that male employees, including bargaining unit and salaried employees such as foremen, displayed throughout Eveleth Mines. Id. at 879-880. Other references included "verbal statements and language reflecting a sexualized, male-oriented, and anti-female atmosphere." Id. at 880. Some male employees subjected female employees to physical conduct of a sexual nature. In one incident, a male employee pretended to perform oral sex on a sleeping female co-worker. Id. at 880. Other incidents involved men touching women in an objectionable manner. Id. Some women were presented with various sexual materials. Id. Judge Kyle concluded "the presence of sexual graffiti, photos, language and conduct ... told women that the sex stereotypes reflected in and reinforced by such behavior were part and parcel of the working environment at Eveleth Mines." Id. at 884.

The district court concluded that "Eveleth Mines made no effort [to] eradicate the hostile environment existing within its facilities." Id. at 888. We emphatically reject the Special Master's conclusion in his Report that the fact that the culture of the Iron Range mining industry allowed sexual harassment is a mitigating factor for Eveleth Mines. See Appellants' Addendum at 461. Instead, we find this observation underscores the overall culpability of Eveleth Mines.

The Special Master's report reflects prodigious effort. Nonetheless, the Special Master's written findings contain numerous statements that lead us to question whether the Special Master fairly evaluated the plaintiffs' claims. 8 We make this observation to support our conclusion that on remand, the district court must approach the recorded testimony and any supplemental testimony on a de novo basis.

Our review and vacation of the district court's findings primarily turn on the Special Master's misapplication of legal principles regarding causation and admissibility of expert testimony. We review these conclusions of law de novo. See Pullman-Standard v. Swint, 456 U.S. 273, 290 n. 19, 102 S.Ct. 1781, 1791 n. 19, 72 L.Ed.2d 66 (1982).

I. Causation

In his Report, the Special Master stated that "[a] sexual harassment case based upon a hostile work environment, not quid pro quo, is founded on principles of negligence and conventional rules of civil litigation, including the doctrine of proximate cause, apply." Appellants' Addendum at 67 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 253, 109 S.Ct. 1775, 1792, 104 L.Ed.2d 268 (1990); Danz v. Jones, 263 N.W.2d 395, 399 (Minn.1978); Department of Human Rights v. Spiten, 424 N.W.2d 815, 818 (Minn.Ct.App.1988)). Plaintiffs claim the Special Master misapplied the burden of proof regarding the issue of causation. Confusion about the correct burden of proof set in at the early...

To continue reading