Rasmussen v. Two Harbors Fish Co., No. A11–2178.

• Decision Date: 23 July 2012
• Docket Number: No. A11–2178.
• Parties: Jaime RASMUSSEN, et al., Appellants, v. TWO HARBORS FISH COMPANY d/b/a Lou's Fish House, et al., Respondents.
• Court: Minnesota Court of Appeals

817 N.W.2d 189

Jaime RASMUSSEN, et al., Appellants,

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

No. A11–2178.

Court of Appeals of Minnesota.

July 23, 2012.

Syllabus by the Court

1. To prove a hostile work environment claim for sexual harassment under the Minnesota Human Rights Act, a plaintiff must show that the defendant's conduct was unwelcome, that it consisted of sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature, and that it was sufficiently pervasive so as to substantially interfere with the plaintiff's employment or to create a hostile, intimidating, or offensive work environment.

2. A person cannot be individually liable for aiding and abetting a violation of the Minnesota Human Rights Act under Minn.Stat. § 363A.14 (2010) where the person is the sole shareholder and owner of the employer, the sole perpetrator of the violation, and no evidence exists of any discriminatory actions being separately undertaken by the corporate entities.

Thomas F. Andrew, Jane C. Poole, Andrew & Bransky, P.A., Duluth, MN, for appellants.

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

Considered and decided by SCHELLHAS, Presiding Judge; KALITOWSKI, Judge; and CHUTICH, Judge.

OPINION

CHUTICH, Judge.

In this appeal after a bench trial, appellants Jaime Rasmussen, Jennifer Moyer, and Kathe Reinhold challenge the dismissal of their hostile work environment claim against respondents Two Harbors Fish Co., BWZ Enterprises, and Brian Zapolski. Because the district court erred in concluding that Zapolski's conduct toward appellants was not sufficiently severe and pervasive to create a hostile, intimidating, or offensive work environment under the Minnesota Human Rights Act, we reverse and remand for further proceedings.

FACTS

Respondent Brian Zapolski is the owner and sole shareholder of Two Harbors Fish Co., doing business as Lou's Fish House (Lou's) and BWZ Enterprises, LLC, doing business as B & R Motel. Lou's is a retail store in Two Harbors that makes and sells smoked fish and other related products, and B & R Motel is a small, connected motel. Appellants were employed by both Two Harbors Fish Co. and BWZ Enterprises, and supervised by Zapolski.

Appellant Rasmussen

Jaime Rasmussen began working full-time at Lou's in September 2008, and she worked there until she quit in mid-March 2010. Rasmussen, who is married, was 32 years old when she began work at Lou's, and she has one child who was 13 years old at the time of trial. Her duties included selling fish and cleaning in the retail store, cleaning and renting the motel rooms, and making brine and splitting wood for the smoking operation. In 2009, she also began helping Zapolski with administrative tasks, such as payroll. Zapolski was very involved in the day-to-day operations of the businesses, and was often present when Rasmussen was working.

In early 2009, about six months after Rasmussen began working for Zapolski, he began to make sexual comments to her and to ask her questions of a sexual nature.¹ The district court found that Zapolski frequently asked Rasmussen about her sexual position preferences, described his favorite sexual positions, explicitly detailed sexual dreams that he had, and told her that he would wake up with an erection. He talked often, both in her presence and directly to her, about sex, and “how good it feels to orgasm,” using explicit terms like “blow job,” “pussy,” “g-spot,” “clitoris,” and “getting off.”

In July 2009, Zapolski showed nude photos in a Playboy magazine to Rasmussen and two other employees and told them that “the girl” in the photos looked like Rasmussen. He also brought a pornographic DVD entitled Squirters 2 to work and suggested that Rasmussen and a male employee each take it home, watch it, and report their observations to Zapolski. The district court further found that Zapolski engaged in inappropriate physical contact with Rasmussen, including twice touching her buttocks with his hands, and once grabbing her arms to feel her muscles.

Zapolski also occasionally called Rasmussen his “girlfriend” when speaking with other employees, and often called her “honey,” “beautiful,” “sexy,” and other similar terms. In addition, he often made coarse and inappropriate comments to Rasmussen about female customers, including comments about their breasts and posteriors, and often referred to females as “cunts.”

In making these findings, the district court found that Rasmussen's testimony was “substantially credible.” By contrast, the court did “not believe that Zapolski's testimony was truthful and therefore ... generally disregarded his denials.” Despite these findings on credibility, the district court sanitized some of Rasmussen's testimony and omitted other incidents described by her. We believe it appropriate to include these additional facts in our consideration because, in its analysis, the district court specifically accepted all of this asserted conduct, noting that “even if totally true,” the facts did not rise to the level of unwelcome sexual harassment under the Minnesota Human Rights Act. ²

Rasmussen testified that Zapolski told her that he often woke up with a “hard-on” and that he made love to his pillow because no one was next to him. In reference to customers, he often made comments such as, “Wow, look at the tits on that one,” and, “Look at that nice ass,” and if a nice-looking woman came into the store, he frequently asked Rasmussen if she thought that the customer “would go in a room with him and fuck.”

Zapolski also told Rasmussen that another employee had given him a “blow job” for his birthday. Once, after a customer asked him about certain long, beef-jerky strips, Zapolski came to Rasmussen in the back of the store laughing, grabbed his pants zipper, and said “I'll show you something big and long.” Regarding the physical touching, Rasmussen testified that Zapolski once grabbed her from behind and pushed his pelvis into her buttocks until she got beet red and yelled, “Get off me, get off me.”

S.P., a male who worked summers at Lou's during this time period, confirmed much of Rasmussen's key testimony. The district court specifically found that S.P. was “generally a credible witness.” S.P. testified that, more than once, he saw Zapolski touch Rasmussen's posterior with his hands. He also confirmed that Zapolski showed him a nude photo in Playboy magazine, and asked if “the girl in the photo didn't look like Jaime Rasmussen.” S.P. testified that he heard Zapolski talk about his favorite sexual positions and his sexual dreams, comment on customers' appearance, use the word “cunt” in reference to females at work, and call Rasmussen names like “honey,” “beautiful,” “sweetie,” and “sexy.”

Zapolski's conduct caused Rasmussen to feel embarrassed, ashamed, and uncomfortable. She told him that his comments and actions were inappropriate, he should stop touching her, and that she did not want to hear his explicit comments because they were “gross.” She told him, in response to the nude Playboy centerfold, that his comparison was “disgusting” and that she did not “need to hear that.” While she dressed nicely when she first started working at Lou's, Rasmussen began to wear baggy clothes and did not fix her hair because she was “grossed out” by the way Zapolski looked at her and talked to her.

Rasmussen quit working for Zapolski on March 15, 2010, after her husband, who had been laid off from his job since January 2009, was called back to work. She testified that she did not quit earlier because she “didn't have a choice”; her husband was laid off, they had a child and needed the money, and nobody else in town was hiring.

Appellant Moyer

Jennifer Moyer was 21 years old when she began working part-time, mostly weekends and evenings, at Lou's in May 2009. She provided the sole support for her one-year-old daughter at the time and was also working two other part-time jobs in Two Harbors. Moyer waited on customers, stocked the retail area, cleaned the inside of the store, and cleaned and did laundry for the motel.

The district court found that Zapolski began making sexual comments to Moyer within two weeks after she started working at Lou's. He asked her how her sex life was and told her that a girl of her age should be having “lots of sex.” He twice bragged to her about his sexual prowess with other women. Zapolski made sexual comments to her about other people, and the district court found that Zapolski “created a negative work environment for Moyer by showing her nude photos in a Playboy magazine and asking her if the person in the nude pictures looked like Rasmussen, a co-worker.” The district court further found that “Zapolski's attempt to have Moyer solicit other young women to have sex with him created a hostile work environment.” About a month after Moyer began to work for Zapolski, “for approximately a week, Zapolski asked her to hook him up with her friends ... or with her sister.”

During a trip to Duluth to buy supplies, Zapolski said to Moyer, “You know what people are thinking don't you; they think we're a couple.” Regarding physical touching, the district court found that Zapolski “may have patted [Moyer's] posterior once” and grabbed her waist on another occasion.

Again, while finding Moyer's testimony “moderately credible” and Zapolski's denials not credible,³ the district court sanitizedor omitted the more explicit portions of her testimony. It did so even though it accepted the allegations as “totally true” for purposes of analyzing whether Zapolski's conduct violated the Minnesota Human Rights Act. Moyer testified that Zapolski talked about how many times he made women orgasm in one setting, and often commented about female customers, such as “look at the tits on that one” or “look at the ass on that one.” Zapolski pestered her for about a...