Frieler v. Carlson Marketing Group, Inc., No. A06-1693.

• Decision Date: 30 May 2008
• Docket Number: No. A06-1693.
• Citation: 751 N.W.2d 558
• Parties: Judy FRIELER, Appellant, v. CARLSON MARKETING GROUP, INC., Respondent.
• Court: Minnesota Supreme Court

751 N.W.2d 558

Judy FRIELER, Appellant, v. CARLSON MARKETING GROUP, INC., Respondent.

No. A06-1693.

Supreme Court of Minnesota.

May 30, 2008.

Frances E. Baillon, Joni M. Thome, Halunen & Associates, Minneapolis, MN, for Appellant.

Steven W. Wilson, Eric J. Magnuson, Gregory J. Stenmoe, Briggs and Morgan, P.A., Minneapolis, MN, for Respondent.

Leslie L. Lienemann, Culberth & Lienemann, L.L.P., St. Paul, MN, for Amicus Curiae National Employment Lawyers Ass'n.

Lori Swanson, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul, MN, for Amicus Curiae Minnesota Department of Human Rights.

Kerry L. Middleton, Sarah J. Gorajski, Littler Medelson, P.C., Minneapolis, MN, for Amicus Curiae of Employers Association, Inc.

Joseph G. Schmitt, Peter D. Gray, Megan J. Backer, Halleland, Lewis, Nilan & Johnson, P.A., Minneapolis, MN, for Amicus Curiae Minnesota Chamber of Commerce.

John J. McDonald, Jr., Bradley J. Lindeman, Jacalyn N. Chinander, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Amicus Curiae Minnesota Defense Lawyers Ass'n.

Robert R. Reinhart, Marilyn J. Clark, Dorsey & Whitney, L.L.P., Minneapolis, MN, for Amicus Curiae Minnesota Employment Law Council.

Heard, considered, and decided by the court en banc.

OPINION AND DISSENT¹

PAGE, Justice.

Appellant Judy Frieler (Frieler) sued respondent Carlson Marketing Group, Inc. (CMG), in 2006 for violating the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.03, subd. 43, and 363A.08, subd. 2 (2006), based on a hostile working environment due to sexual harassment by a supervisor, and for assault and battery. The district court granted CMG's motion for summary judgment, concluding that Frieler failed to raise an issue of material fact regarding whether: (1) CMG knew or should have known about the supervisor's harassment; (2) the supervisor was Frieler's supervisor for vicarious liability purposes; and (3) sexual harassment was foreseeable either at CMG or in CMG's industry. The court of appeals affirmed. With respect to Frieler's claim of sexual harassment under the MHRA, we reverse and remand, see parts I-IV infra, and with respect to her claim for assault and battery, we affirm. See part II of opinion of Justice Gildea.

Frieler began working in a part-time position at CMG in 1991. She eventually became interested in a full-time position and made that interest known to her direct supervisor in the bindery department, David Weber (Weber). At some point, Frieler learned that there was a full-time opening in CMG's shipping department through a job posting. During the week of February 1, 2005, Frieler told Ed Janiak (Janiak), the shipping department supervisor, that she was interested in the opening. Janiak told her that the position had been filled. Sometime during the week of February 7, 2005, after Frieler told Weber she had a full-time offer at another company Weber told her that the shipping department position was still open and that she should speak to Janiak. The second time Frieler spoke with Janiak regarding the position, he said the position was open and he would consider Frieler, along with another CMG employee. Frieler had no further contact with Janiak until February 23, 2005.

Frieler alleges that on four occasions between February 23, 2005, and March 9, 2005, Janiak sexually harassed her. On each occasion, Janiak told her he wanted to show her something related to the open shipping position. On three of the four occasions, Janiak brought her into a limited-access room requiring a key to enter. After they entered, Janiak closed the door, which locked automatically. Janiak then grabbed Frieler into a bear hug, grabbed her buttocks while pressing his erect penis against her body, put his hands under her shirt and groped her breasts, tried to kiss her, and told her that she was a "sex pot" and had been "making this old man horny for years and years." He would say, "[C]an you handle it? Can you handle it? I'm going to be your boss, you got to take it, you got to handle it." He also told Frieler that he was going out on a limb for her to get her the job. When he physically released her, he told her not to tell anyone, especially her sister-in-law, another CMG employee.

On March 9, 2005, Weber and Janiak were both present when Frieler accepted a verbal job offer for the full-time position in the shipping department. There is conflicting testimony about who made the decision to hire Frieler for this position. Janiak testified that Weber made the decision. Weber testified that he, "for the most part," made the decision, and that Janiak "had input" into it. Angela Krob (Krob), Weber's manager, testified that the decision to hire Frieler "was made as part of discussion in terms of Ed [Janiak], David [Weber], with input from myself."

CMG had a policy that prohibited sexual harassment, and Frieler was aware of this policy. Under the policy, a complainant should report sexual harassment to his or her supervisor, human resources, or the ethics hotline. Although Frieler told her sister-in-law and other members of her family about Janiak's assaults as they occurred, she did not report the harassment to CMG until March 10, 2005. She feared that if she reported the harassment, she might lose both her part-time position and the chance at the full-time position because Weber and Janiak were friends. She also did not want to cause trouble for Janiak's family.

On March 10, 2005, Frieler told two coworkers and her group leader, Vickie, about the harassment. Vickie insisted Frieler report the harassment to Weber. Weber, Krob, and Jackie Dahl (Dahl)² from human resources had a meeting with Frieler to discuss her allegations of sexual harassment by Janiak. In another meeting the next day, Frieler told Krob and Dahl that Janiak had been verbally harassing her for years and that other women would joke that he was her boyfriend and liked her.

Frieler was placed on paid leave for a week while an investigation was conducted. On March 11, 2005, Janiak admitted that he met with Frieler on the dates of the alleged harassment to show her job-related tasks but denied sexually harassing her. In addition, four other employees were interviewed about Frieler's allegations. They all stated that Janiak had never done anything to make them uncomfortable, and some of them expressed disbelief that Janiak could do what Frieler alleged.

Janiak resigned the following Monday, stating that his decision to leave was due to health issues and a desire to spend time with family. Weber and Dahl asked him to stay, but he refused.

Frieler testified that Dahl and Krob told her not to tell anybody at work about the harassment, but instead to explain her absence by saying she had family problems. When Frieler said she could not lie, Krob said to have the coworkers instead ask Krob, who would lie. Krob and Dahl "told her that she needed to forget about it now because it is over. [CMG] did what it needed to do." They also told her that, had Janiak not resigned, the inconclusive results of the investigation would have led to supervised meetings between Janiak and Frieler. After Frieler returned to work, she heard rumors that she was in drug rehab and had family problems. Other coworkers would not look at Frieler, and one asked "why did you do this" to Janiak. Frieler did not report this behavior to human resources but told Vickie.

Frieler saw a doctor and psychologist around April 1, 2005. After her second visit, the psychologist recommended that Frieler not return to any job at CMG. Frieler asserts that she suffers from post-traumatic stress disorder and major depression as a result of the harassment.

Frieler sued CMG for sexual harassment in violation of the MHRA, assault and battery, and negligent supervision and retention. CMG moved for summary judgment, and Frieler did not contest the motion with respect to her claims of negligent supervision and retention. The district court granted summary judgment on all the claims, concluding that Frieler failed to raise an issue of material fact regarding whether: (1) CMG knew or should have known about Janiak's harassment; (2) Janiak was Frieler's supervisor for vicarious-liability purposes; and (3) sexual harassment was foreseeable either at CMG or in CMG's industry.

The court of appeals affirmed. Frieler v. Carlson Mktg. Group, Inc., No. A06-1693, 2007 WL 2107300 (Minn.App. July 24, 2007). With regard to the sexual harassment count, the court of appeals determined that: (1) Minnesota has not adopted the supervisor distinction or vicarious-liability standards set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); (2) the "knows or should know" standard applied to claims of sexual harassment by a supervisor under the MHRA; (3) there was no evidence that CMG knew or should have known that Janiak sexually harassed Frieler; and (4) CMG took reasonable and appropriate actions in responding to Frieler's allegations. Frieler, 2007 WL 2107300 at *3-6. With respect to the assault and battery count, the court held that Frieler produced no expert testimony necessary to raise an issue of material fact regarding the foreseeability of sexual harassment within the industries of warehouse work or collation work. Id. at *6-7.

We granted review to Frieler on two issues: (1) whether the court of appeals erred when it held that Minnesota has not adopted the federal standard for imposing vicarious liability for harassment by a supervisor; and (2) whether the court of appeals erred when it determined that foreseeability for the assault and battery claim could be established only if Frieler provided affidavit or expert testimony demonstrating that sexual harassment was a well-known workplace hazard within her industry. We also granted cross-review to CMG regarding whether Frieler established a genuine issue...