Rasmussen v. Two Harbors Fish Co., A11–2178.

• Decision Date: 22 May 2013
• Docket Number: No. A11–2178.,A11–2178.
• Citation: 832 N.W.2d 790
• Parties: Jaime RASMUSSEN, et al., Respondents/Cross–Appellants, v. TWO HARBORS FISH COMPANY d/b/a Lou's Fish House, et al., Appellants.
• Court: Minnesota Supreme Court

832 N.W.2d 790

Jaime RASMUSSEN, et al., Respondents/Cross–Appellants,

v.TWO HARBORS FISH COMPANY d/b/a Lou's Fish House, et al., Appellants.

No. A11–2178.

Supreme Court of Minnesota.

May 22, 2013.

Syllabus by the Court

1.That sexually explicit behavior was directed at men as well as women is not relevant to a determination of whether plaintiffs proved a claim for hostile work environment sexual harassment under the Minnesota Human Rights Act, Minn.Stat. § 363A.03, subd. 43(3)(2012).

2.A plaintiff may prove a claim for hostile work environment sexual harassment under the Minnesota Human Rights Act, Minn.Stat. § 363A.03, subd. 43(3), without proving loss of pay or other employment benefits.

3.An individual and sole owner of an employer whose conduct subjects the employer to vicarious liability for hostile work environment sexual harassment claims cannot be individually liable as an aider and abettor under the Minnesota Human Rights Act, Minn.Stat. § 363A.14(1)(2012).

Thomas F. Andrew, Jane C. Poole, Aaron R. Bransky, Andrew & Bransky, P.A., Duluth, MN, for respondents/cross-appellants.

Joseph J. Roby, Jr., Johnson, Killen & Seiler, P.A., Duluth, MN, for appellants.

Dorene R. Sarnoski, Dorene R. Sarnoski Law Office, Stephen L. Smith, Law Firm of Stephen L. Smith, David Schlesinger, Steven A. Smith, Nichols Kaster, LLP, Justin D. Cummins, Cummins & Cummins, LLP, Minneapolis, MN; and Leslie L. Lienemann, Culberth & Lienemann, LLP, Saint Paul, MN, for amicus curiaeMinnesota Chapter National Employment Lawyers Association.

OPINION

GILDEA, Chief Justice.

At issue in this case is whether the respondents/cross-appellantsJaime Rasmussen, Jennifer Moyer, and Kathe Reinhold are entitled to relief under the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.01–.43(2012).Rasmussen, Moyer, and Reinhold (the Employees) filed a complaint alleging that their employers, Two Harbors Fish Company and BWZ Enterprises(the Employers), violated the MHRA based on sexual harassment perpetrated by Brian Zapolski, who is the sole owner of both entities.¹The Employees also alleged that Zapolski was individually liable under the MHRA's aiding and abetting provision.

The district court dismissed the Employees' claims with prejudice, finding that they had not been subject to harassment that is actionable under the MHRA.The Employees appealed, and the court of appeals reversed.Rasmussen v. Two Harbors Fish Co.,817 N.W.2d 189, 191(Minn.App.2012).The court of appeals held that the district court's determination that the harassment was not actionable was clearly erroneous, and the court of appeals ruled as matter of law that the Employees were entitled to judgment on their claims.Id. at 202.But the court held that Zapolski could not be individually liable for aiding and abetting the Employers' MHRA violations.Id. at 203.

The Employers and Zapolski appeal the court of appeals' decision on the merits of the Employees' sexual harassment claims.On cross-appeal, the Employees challenge the ruling on Zapolski's liability as an aider and abettor.We agree with the court of appeals that Zapolski cannot be liable on an aiding and abetting theory.But because we conclude that the district court made errors of law in its decision on the merits of the Employees' MHRA claims, we reverse and remand.

The Lake County District Court held a bench trial on the Employees' claims.At trial, the Employees testified about Zapolski's behavior.The district court made findings specific to each of the Employees.

With respect to Rasmussen, the district court found that her “testimony was substantially credible.”Rasmussen testified that approximately 6 months after she began working for the Employers, Zapolski began asking her questions about her sexual preferences.When Zapolski asked her these questions, Rasmussen told him that it was “none of [his] business.”Zapolski also told Rasmussen about his sexual preferences and sexual dreams.Zapolski called Rasmussen several pet names and used very explicit sexual language in the workplace.Rasmussen testified that she told Zapolski that she did not want to hear those things.Zapolski also told Rasmussen stories of a sexual nature regarding other employees, made sexual comments about female customers, and made a joke about his penis size.Rasmussen testified that she was “totally humiliated” by the comments Zapolski made toward female customers.

In addition to making comments of a sexual nature, Rasmussen testified that Zapolski engaged in other inappropriate conduct, including touching Rasmussen on the posterior on at least two occasions.Zapolski showed Rasmussen and other employees a picture in a Playboy magazine and told Rasmussen that the woman in the picture looked like her.Zapolski also gave Rasmussen a pornographic DVD and asked her to watch it.

Rasmussen testified that she was “grossed out by the way [Zapolski] looked at” her and talked about her.She said that she continued to work for the Employers for as long as she did because her husband was laid off, and she was the sole provider for her family.Despite the problems she was experiencing with Zapolski, however, Rasmussen recommended that Moyer begin working for the Employers in May 2009.

Rasmussen terminated her employment with the Employers in March 2010.The district court found that “Zapolski's conduct may have been a partial factor in Rasmussen's decision to leave her employment.”

Regarding Moyer, the district court found that “Moyer's testimony was moderately credible.”Moyer began working for the Employers in May 2009, and she worked between 10 and 20 hours per week.Moyer testified that about 2 or 3 weeks after she started working for the Employers, Zapolski began to ask Moyer about her sex life and told her about his sex life.He also occasionally made comments of a sexual nature to her about other people.In addition, Zapolski would sometimes call Moyer at work during an evening shift and ask, “[h]ow's my little horny one?”Moyer said that she did not want to answer the phone at work because she was “scared that it was gonna be [Zapolski] on the other line.”Also, on one occasion, Zapolski referred to Moyer as his girlfriend in front of a male employee.Moyer told Zapolski that she was not his girlfriend and “he got mad and walked out.”

Moyer testified that Zapolski asked her if she had any single friends that she“could hook him up with.”Zapolski told Moyer that he would be “willing to pay for it.”Moyer was also touched by Zapolski at least once when Zapolski grabbed her waist.Zapolski showed Moyer the same picture in the Playboy magazine that Rasmussen described and asked Moyer if the picture reminded her of Rasmussen.Moyer testified that the experience made her feel “[e]xtremely violated ... [a]nd uncomfortable.”

Moyer quit working for the Employers at the end of August 2009.On the day Moyer quit, Zapolski criticized her for using her cell phone at work.Moyer told him that she only used her phone to check on her daughter during the day.The district court found that “Moyer's decision to terminate her employment was precipitated, at least in part, by Zapolski['s] discipline regarding Moyer's use of her cell phone at work.”

Regarding Reinhold, the district court found that her “testimony was substantially credible.”Reinhold began working for the Employers in November 2009, but she soon quit.Reinhold testified that Zapolski began making sexual comments to Reinhold on her first day of work and did so every day thereafter, including describing the sex life of others and discussing the size of men's genitals.Zapolski told Reinhold that he was going to call her “Sweets.”Reinhold told Zapolski that she would not like that and that he should not call her that.Zapolski also touched Reinhold, including leading her around by the hand, and picking wood chips from the chest area of her sweater after she had been splitting and stacking wood.Zapolski's physical touching embarrassed Reinhold.Also, during her brief employment, Reinhold ran into Zapolski outside of work.She mentioned that there was a football game on the day she ran into Zapolski, and Zapolski said, “Well, it's a perfect day to watch football and make love.”Reinhold felt that Zapolski's comment “was an invitation” and it made her feel anxious.

Reinhold's last day of employment was November 16, 2009.The district court found that “Zapolski's sexually inappropriate conduct may have been a partial factor in Reinhold's decision to leave her employment.”

Zapolski testified at trial and denied that any of the offensive behavior the Employees described had occurred.The district court did “not believe Zapolski's testimony was truthful and therefore [the court] generally disregarded his denials.”

After trial, the district court issued written findings of fact and conclusions of law and dismissed the Employees' claims.The court made findings of fact regarding the conduct perpetrated by Zapolski against each Employee and stated that “even if [the conduct complained of was] totally true,” the Employees had not established sexual harassment that rose to a sufficiently severe or pervasive level so as to be actionable under the MHRA.The court found that the Employees were “subjected to coarse sexual talk, gestures, and conduct they did not welcome” and “that the majority of the sexual comments [were] based on sex.”But the court found that the Employees' employment was not conditioned on their submission to or participation in any sexual acts and that they did not suffer adversely in their employment because they did not lose salary or work hours for failing to participate.Ultimately, the court found that the Employees had not met “the high threshold of actionable harm by showing that the workplace is permeated with discriminatory intimidation, ridicule and insult.”In reaching this conclusion, the court noted that none of the Employees “sought counseling”...