Salveson v. Douglas County
| Decision Date | 28 March 2000 |
| Docket Number | No. 99-0946.,99-0946. |
| Citation | 2000 WI App 80,234 Wis.2d 413,610 N.W.2d 184 |
| Parties | Linda Margaret SALVESON, Plaintiff-Respondent, v. DOUGLAS COUNTY and Wisconsin County Mutual Insurance Corporation, Defendants-Appellants. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, the cause was submitted on the briefs of John J. Prentice and Andrew T. Phillips of Prentice & Phillips, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kyle H. Torvinen of Hendricks, Knudson, Gee, Hayden, Torvinen & Weiby, S.C., Superior.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1.
Douglas County and Wisconsin County Mutual Insurance Corporation (the County) appeal a judgment in favor of Linda Salveson in an employment discrimination and sexual harassment action. The County makes five arguments on appeal: (1) there was insufficient evidence to support the jury's finding that Salveson lost a portion of her earning capacity; (2) the trial court erred by awarding Salveson back pay; (3) the trial court erred by awarding Salveson front pay; (4) the trial court erroneously determined the statutory cap for damages; and (5) the trial court erroneously allowed Salveson to present new evidence on her motion to reconsider. We reverse the award for lost earning capacity because Salveson did not present any evidence establishing the extent of her diminished earning capacity. We reject the County's various other arguments, however.2
¶ 2. Salveson worked as a paramedic for the County from 1981 until 1995. She claimed that her supervisor, Richard Collyard, sexually harassed her and subjected her to a hostile work environment under Title VII.3
¶ 3. A jury returned a verdict in favor of Salveson finding the County liable for sexual harassment and discrimination. The County does not contest that finding. The jury awarded Salveson $40,000 for lost future earning capacity.4 The decision to award equitable remedies, if any, was left for the trial court to decide. After the jury trial, the trial court awarded equitable remedies of both front and back pay to compensate Salveson for her pecuniary damages.
¶ 4. The County claims that the evidence presented was insufficient to support the jury's finding that Salveson suffered $40,000 in lost earning capacity. In upholding the jury's award on motions after verdict, the trial court relied on the testimony of Salveson's treating psychologist, Dr. Kenneth Pride. The court concluded that Pride's testimony constituted sufficient evidence for the jury to find that Salveson suffered a permanent psychological impairment that "may affect her ability to gain and hold employment in the future."5
[1]
¶ 5. We sustain a jury's factual determinations if there is any credible evidence to support its verdict. See Lipinski v. Pakulski, 62 Wis. 2d 628, 635, 215 N.W.2d 468 (1974). We are even more reluctant to interfere when the trial judge has approved the jury verdict. See Herman v. Milwaukee Children's Hosp., 121 Wis. 2d 531, 545, 361 N.W.2d 297 (Ct. App. 1984).
[2-4]
¶ 6. Damages for impaired earning capacity are arrived at by comparing what the plaintiff was capable of earning before and after the time of the injury. See Ballard v. Lumbermens Mut. Cas. Co., 33 Wis. 2d 601, 609-10, 148 N.W.2d 65 (1967). Proof of lost earning capacity is naturally somewhat uncertain. See Fischer v. Cleveland Punch & Shear Works, Co., 91 Wis. 2d 85, 100, 280 N.W.2d 280 (1979). Generally, proof of permanent injury alone is not sufficient to establish lost earning capacity. There is an exception when common knowledge would permit a finding that permanent injury has completely disabled the plaintiff from all work for which she is suited. See Ianni v. Grain Dealers Mut. Ins. Co., 42 Wis. 2d 354, 363, 166 N.W.2d 148 (1969). Absent readily apparent and complete disability, however, an award for lost earning capacity must be supported by evidence indicating the extent of impairment. See Schulz v. St. Mary's Hosp., 81 Wis. 2d 638, 655-59, 260 N.W.2d 783 (1978).
[5]
¶ 7. In Schulz, the plaintiff had worked part-time as a typing and shorthand teacher. She testified that after her injury she suffered from fatigue requiring her to take daily naps. See id. at 655-56. The plaintiff's treating physician "testified that this fatigue could interfere with her capacity to earn a living." Id. at 656. The physician also testified that the plaintiff's injuries would reduce her earning capacity because she would continue to suffer fatigue and face potential difficulties in the future. See id. The jury awarded the plaintiff damages for lost earning capacity. The supreme court reversed the award, explaining that the issue raised by the evidence was not whether the plaintiff lost a portion of her earning capacity, but whether there was sufficient "evidence to enable the jury to measure the loss sustained." Id. The court stated:
Id. at 656 (citations omitted). The court termed these the "basic requirements" for an award for lost earning capacity. See id. at 657. However, the court concluded that the basic requirements were not satisfied because there was no evidence showing what the plaintiff's previous earning history was or what the salary expectations for similarly situated employees would likely be in the future. See Id.
[6]
¶ 8. In Klink v. Cappelli, 179 Wis. 2d 624, 630, 508 N.W.2d 435 (Ct. App. 1993), the court interpreted Schulz as requiring "evidence relating to earning capacity before and after an injury." The court explained that without that showing, the jury would be forced to "speculate or conjecture as to the amount of lost earning capacity." Id.
[7]
¶ 9. Here, the County claims: (1) there was no evidence Salveson suffered permanent injury, and (2) even if there was, Salveson did not prove how the permanent injury affected her earning capacity. It was undisputed at trial that Salveson currently suffers from post-traumatic stress disorder, depression and anxiety. Further, Salveson's treating psychologist, Dr. Pride, testified that Salveson is and will continue to be affected by the harassment she received at work. When asked whether the psychological effect would continue for the remainder of Salveson's life, Pride answered that "[t]hese are lifelong issues, yes." We conclude that a jury could reasonably infer from this evidence that Salveson suffered a permanent injury.
¶ 10. We agree with the County, however, that Salveson did not present any evidence that showed what effect her psychological injuries would have on her earning capacity. Although Pride discussed his doubt that Salveson would be capable of normal employment for the next three years, there was no evidence indicating how or to what extent her future jobs would be affected by her psychological injuries.6 If Pride's testimony were sufficient, the additional evidence requirement would be meaningless. On this record, the jury could only speculate as to the extent that Salveson's psychological injuries could be expected to affect her future earning capacity. See Klink, 179 Wis. 2d at 630. Accordingly, we reverse the award of damages for lost earning capacity.
¶ 11. The trial court awarded Salveson $89,434 in back pay for the period between her last day of work and the jury verdict. This was intended to compensate her for lost wages from the end of her employment until she obtained judgment. Complicating Salveson's damages claim was the fact that while employed by the County she also suffered from a number of unrelated physical injuries. Specifically, Salveson injured her knee in December 1993, requiring a light duty assignment. She returned to work in the field in December 1994. Then, in April 1995, she slipped on some ice and hurt her back and was again placed on light duty assignment.
¶ 12. At about that same time, Salveson applied for duty disability benefits under WIS. STAT. ch. 407 because her knee difficulties precluded her from working actively in the field as a paramedic. While her application was being considered, in September 1995, she began working in the Douglas County Register of Deeds office. After approximately two months, she retired and began receiving disability benefits. Salveson nevertheless continued to work part-time for the County as a medical examiner. On January 1, 1996, a private ambulance corporation named Gold Cross took over the County's ambulance department.
¶ 13. The County concedes that courts presumptively award back pay whenever employment discrimination occurs. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975). Nevertheless, the County argues that back pay was not appropriate in this case because: (1) Salveson was unable to work as a paramedic due to unrelated physical injuries, and (2) the award of back pay should have been offset by the amount Salveson received in duty disability benefits. The trial court rejected the first argument because it found that the evidence indicated Salveson "would most likely have been hired by Gold Cross either as an instructor or in some other light capacity." With regard to the second argument, the court concluded that because Salveson contributed to the fund that provided her disability benefits, she earned the benefits and, therefore, the benefits should not be used to offset her back pay.8
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