Lord v. Hy-Vee Food Stores

• Decision Date: 02 August 2006
• Docket Number: No. 23409.,23409.
• Citation: 720 N.W.2d 443,2006 SD 70
• Parties: John LORD, Plaintiff and Appellee v. HY-VEE FOOD STORES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 443

720 N.W.2d 443

2006 SD 70

John LORD, Plaintiff and Appellee v. HY-VEE FOOD STORES, Defendant and Appellant.

No. 23409.

Supreme Court of South Dakota.

Argued October 5, 2005.

Decided August 2, 2006.

COPYRIGHT MATERIAL OMITTED

Tara L. Glasford, Canton, South Dakota, Attorney for plaintiff and appellee.

Gary P. Thimsen and Mary A. Akkerman of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

LOVRIEN, Circuit Judge.

[¶ 1.] John Robert Lord (Lord) brought suit against his former employer, Hy-Vee, Inc. d/b/a Hy-Vee Food and Drug # 3 (Hy-Vee), claiming wrongful termination and intentional infliction of emotional distress. A Minnehaha County jury found for Lord on the wrongful termination claim and awarded damages in the amount of $19,576.¹ Hy-Vee appeals claiming the trial court did not properly instruct the jury on the shifting burdens of proof inherent in Hy-Vee's affirmative defense that Lord was discharged for lawful reasons. Hy-Vee also claims that the jury did not have sufficient evidence and did not use the proper standard in determining Lord's damages. We affirm.

FACTS

[¶ 2.] In early 2000 Lord began working in Sioux Falls for Hy-Vee as a dairy stock person. He was terminated from that position on November 14, 2000. While it is undisputed that Lord was an at-will employee, he claimed he was wrongfully terminated because he reported to Hy-Vee that he had been sexually harassed by a female co-worker. Lord claimed that in June 2000, while he was working in the frozen freezer section in the back of the store, fellow employee Delyn Hinkle (Hinkle) came out of the freezer and "bumped" into him and patted his "left butt cheek." Brian Salter (Salter), a Hy-Vee supervisor, was with Lord at the time. Apparently, Lord expected Salter to take appropriate action against Hinkle. When nothing was done for two to three weeks Lord complained to store manager Brian Heinz (Heinz). Nothing more occurred at that time.

[¶ 3.] In late June or early July 2000 Lord was accused of touching a female co-worker, Glenis Hawke (Hawke), in an offensive manner by "swiping his hand across her buttocks." Lord denied the incident. Store director Paul Koll (Koll) investigated the accusation. After discussing the matter with Hawke, they decided the best solution was to reprimand Lord for the inappropriate contact rather than terminate him. Lord was also required to refrain from any further offensive contact with Hawke or other female employees.

[¶ 4.] On November 11, 2000, Lord claimed he was approached by Hinkle. She was angry after she learned of the accusations of sexual harassment Lord had made against her relating to the June freezer incident. In fact, Hinkle claimed she had been sexually harassed by Lord.

[¶ 5.] Hinkle, Lord, Brent Anderson (Anderson), the frozen dairy manager, and Jeff Elyra (Elyra), the shift supervisor, all met to discuss the allegations. During the meeting Lord was instructed to submit to Koll a formal complaint by the following Monday concerning the June freezer incident involving Hinkle. During this meeting Hinkle and Lord both claimed they had been sexually harassed in the workplace by the other. The following Monday morning Koll called Lord to his office and fired him. However, before deciding to terminate Lord, Hy-Vee claimed that store director Koll investigated the various allegations made by both Lord and Hinkle. After examining the facts and interviewing other employees, Koll concluded that Hinkle's version was most likely true and Lord's was most likely untrue. Hy-Vee maintained Lord was fired because Koll's investigation concluded that Lord misrepresented the June freezer incident, engaged in improper conduct toward Hawke and possibly sexually harassed Hinkle.

[¶ 6.] As a result, Lord filed this action against Hy-Vee. A jury awarded him $19,576 for wrongful termination. Hy-Vee appeals that award claiming the jury was not properly instructed on the issue of retaliatory discharge. Hy-Vee also claims that the jury did not have sufficient evidence and did not use the proper standard in determining Lord's damages.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 7.] Did the trial court err in failing to instruct the jury on the shifting burdens of proof inherent in a retaliatory discharge case given Hy-Vee's affirmative defense that Lord was discharged for lawful reasons?

[¶ 8.] Hy-Vee claims the trial court committed prejudicial error when it gave its proposed Jury Instruction No. 30 and refused to give Hy-Vee's requested Jury Instruction No. 23. We conclude that Hy-Vee did not preserve for appeal its objection to proposed Jury Instruction No. 30. We further conclude that requested Jury Instruction No. 23 is not a correct statement of the law and was properly refused by the trial court.²

[¶ 9.] This Court's standard of review concerning jury instructions is well settled. Behrens v. Wedmore, 2005 SD 79, ¶ 37, 698 N.W.2d 555, 570(citing First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448). We construe jury instructions "as a whole to learn if they provide a full and correct statement of the law." Id.; Von Sternberg v. Caffee, 2005 SD 14, ¶ 6, 692 N.W.2d 549, 552; Kappenman v. Stroh, 2005 SD 96, ¶ 14, 704 N.W.2d 36, 40. "The party alleging error on appeal must show error affirmatively by the record, and not only must the error be demonstrated, but it must also be shown to be prejudicial error." Tovsland v. Reub, 2004 SD 93, ¶ 15, 686 N.W.2d 392, 398; Morrison v. Mineral Palace Ltd. Partnership, 1998 SD 33, ¶ 10, 576 N.W.2d 869, 872 ("Mere assertions of what a jury may have concluded are insufficient to show prejudice"). However, we have also held that a trial court's failure to give a requested instruction that correctly sets forth the law, in the absence of another instruction which sufficiently does the same, is prejudicial error. Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995).

[¶ 10.] Hy-Vee's claim of prejudicial error is premised on the court's proposed Jury Instruction No. 30 and Hy-Vee's requested Jury Instruction No. 23, which the trial court rejected. Requested Jury Instruction No. 23 provided:

John Robert Lord was an at-will employee of Hy-Vee. This means his employment could have been terminated at any time and for any reason or for no reason by either Lord or Hy-Vee.

Notwithstanding the fact that Lord was an at-will employee, Hy-Vee could not terminate Lord's employment solely because he allegedly made complaints about sexual harassment.

If you find that Lord has established by a preponderance of the evidence that this employment was terminated solely because he complained about sexual harassment, the burden shifts to Hy-Vee to prove the termination occurred for reasons other than those alleged by Lord.

If you find Lord was terminated for reasons other than his alleged complaints of sexual harassment, you must find in favor of Hy-Vee on the wrongful discharge claim.

Instead of giving Hy-Vee's requested instruction, the trial court gave Jury Instruction No. 30:

John Robert Lord was an at-will employee of Hy-Vee. Hy-Vee could terminate his employment at any time for any reason except retaliation for making complaints about sexual harassment. If you find that Lord proved that Hy-Vee terminated his employment because he complained about sexual harassment, he may recover damages from the defendant.

[¶ 11.] On appeal, Hy-Vee argues that the trial court erred because the instructions given did not inform the jury of Hy-Vee's defense (nonretaliatory reasons for discharge). Hy-Vee points out that only Jury Instruction No. 23 mentioned that the burden shifted to Hy-Vee to articulate a legitimate reason for the termination. In Hy-Vee's view, only its requested Jury Instruction No. 23 properly informed the jury that Lord could be terminated if he was fired for reasons other than making the complaint of sexual harassment.

A. Waiver

[¶ 12.] SDCL 15-6-51(a) (Rule 51(a)) provides that: "[n]o party may claim error for the giving or failure to give an instruction unless that party objects stating distinctly the matter objected to and the grounds for the objection."³ Here, Hy-Vee failed to make any objection to the trial court's Jury Instruction No. 30, which Hy-Vee now claims was inadequate.

[¶ 13.] Hy-Vee argues in its brief that it "objected to the trial court's refusal to instruct the jury on [its] affirmative defense;" i.e., the giving of Jury Instruction No. 30 instead of requested Jury Instruction No. 23. In support of that assertion Hy-Vee cites volume two of the trial transcript, page forty-nine. However, the objection found there was insufficient to preserve error in this instance because, at that point, defense counsel was only arguing the motion for a directed verdict. Moreover, during that discussion counsel only mentioned the jury instructions as they regarded another theory of recovery involving intentional infliction of emotional distress. There was no reference to the instructions related to the retaliatory discharge claim now in issue. Thus, the cited reference does not preserve the jury instruction issue for appeal. The exact discussion bears repeating:

Both parties having rested and by stipulation of counsel and consent of the court, I make the following motions at this time and also the same as though they had been made at the close of the plaintiff's case. And I move for a directed verdict on behalf of the defendant. First, I'd like to address what you just said, Judge. There is absolutely no evidence whatsoever of intentional infliction of emotional distress. The court, I think, correctly identifies the legal elements of that claim in its instruction 27 here, and the Supreme Court has outlined it in numerous cases, Dahl, D-a-h-l, v. Sittner, S-i-t-t-n-e-r,; Tibke, T-i-b-k-e, v. McDougall. And the court has said, and you've got in your instruction here, it has to be conduct exceeding all...