*1 not order a tran- Petitioner did statement. in- proceedings, Panel but script of the DISCIPLINARY the Petition for In re counsel, court, stead, through notified this Wendy Alison AGAINST ACTION pro- further reinstatement that she waived NORA, Attorney Law of the State at act the court to based ceedings and wanted of Minnesota. report. Panel on the amended No. CO-88-2283. court, having considered all of Minnesota. Supreme Court surrounding this facts and circumstances reinstatement, matter, petition for 11, 1991. July Panel, the recommendation ORDER peti- that the IT HEREBY ORDERED IS court on this This matter comes before Wendy Alison Nora for reinstate- tion of for rein- Wendy Alison Nora petition of practice of law is denied. ment to the By order practice of law. statement to 19, 1990, suspend- this court January
dated practice of law from the petitioner ed the There- days. period of at least for a 23, 1990, peti- after, April on or about for reinstatement. petition filed a tioner months, delay a delay a of several After investigate two com- by the need to caused BRADLEY, Wendy Respondent, filed against petitioner which were plaints suspended, panel a petitioner was after BROADCASTING, rein- petition hearing was held on HUBBARD INC., Appellant, panel At the conclusion of statement. findings and con- hearing, panel made that this court and recommended clusions by Stephen W. Coo- of Minnesota State a 2- petitioner place her on reinstate Commissioner, Department Hu- per, probation. year supervised Intervenor, Respondent. Rights, man 4, 1990, this court December before On reinstatement, No. C9-90-1911. petition for could rule on the requested that this Director’s Office Appeals of Minnesota. Court of peti- delay on the again once action court June 1991. of a disclo- for reinstatement because tion she had advised a by petitioner that sure Aug. Review Denied lawsuit and potential federal client about identifying petitioner as petition, drafted record, the client to file attorney
pro in the Federal District Court se The Director under- District of Minnesota. relating petition- investigation took and a practice unauthorized er’s disclosed hearing sched- Panel supplementary Director filed a uled. On June Findings, Panel Con- copy of the Amended this and Recommendation with clusions formally court, Panel with- in which the findings, conclu- its November 1990 drew recom- recommendation and sions and mended, from both the on evidence based hearings, Panel supplementary
initial and deny petition for rein- that this court *3 III, Gen., Humphrey, Atty.
Hubert H. Kircher, Sp. Atty. Andrea Mitau Asst. Gen., Vareo, Jr., Atty. Richard L. Asst. Gen., Paul, intervenor, respondent. St. DAVIES, P.J., Considered and decided LANSING, CRIPPEN, JJ.
OPINION
LANSING, Judge. *4 employment this defamation and re- action, prisal discrimination and compensatory the trial court awarded and punitive damages and the trial court as- penalty. employer sessed a civil The chal- lenges finding basis for def- implied good amation and an covenant of dealing, faith and fair court’s find- trial discrimination, ing reprisal and the propriety compensatory amount and damages. We affirm all issues of liability except implied breach of the cove- nant, modify but award.
FACTS being discharged, Wendy Bradley
After employer, Broad- sued her former Hubbard (HBI), defamation; casting, alleging Inc. implied good covenant of faith breach of estoppel; and dealing; promissory and fair sex, status, reprisal marital discrimina- Her first three claims were tried to a tion. Bradley was de- jury, which found false, supervisor’s her malicious famed leading the incident statements about discharge. Bradley’s began Bradley when noticed The incident her name on them scraps paper with cleaning photocopier. a table near a while scraps a memo together, Pieced formed supervisor’s replace intent to outlining her noting Bradley’s involvement Bradley and HBI and other disputes between two Bradley the memo to a employees. showed Peterson, Horton, Sonja E. R. Donald coworker. Associates, Minneapolis, for re- Horton and supervisor learned of Brad- When the spondent. actions, Bradley and sent a ley’s she fired Robiner, department claiming to the finance Mays, A. Susan M. memo Charles Leonard, Deinard, Bradley piece per- Minneapolis, that “Ms. retrieved Street and my bin.” correspondence sonal from waste appellant. employment dealing into an at-will and fair told that Brad- managers were
Upper-level contract? “gross misconduct.” discharged for ley was and admis- Did misconduct of counsel 3. Bradley’s dis- found that jury also The harassment testimony on a sexual sion of implied covenant charge breached require a new trial? investigation employ- dealing in her fair good faith and rejected promissory contract but ment pattern a continued 4. Was evidence of jury awarded estoppel claim. actions sufficient to employment of adverse damages and compensatory finding discrimina- support a tion? sex, marital status claims of by the Were the awarded tried reprisal discrimination contrary the evi- trial court trial court. Before simultaneously to the a matter of law? or excessive as dence Bradley participated in in- discharge, her disputes between legal two ANALYSIS vestigations of cooperat- After employees. HBI and other I Rights De- the Minnesota ing with Human arising from Defamation actions investigation of a coworker’s partment’s *5 private employ in a made communications and sexual discrimination allegations of setting analyzed under Minnesota ment are harassment, Bradley pro- denied a was law, which makes no distinction common communication and encountered motion “opin of “fact” and between statements re- her coworkers. She problems with Curry v. Sri Lanka ion.” See Weissman to another received a transfer quested and Inc., House, (Minn.App. 471 469 N.W.2d participated later department, where she 1991); v. Lorain Jour see also Milkovich dispute. job-posting of a investigation an — 2695, U.S.-,-, Co., 110 S.Ct. nal encouraged her to Bradley’s supervisor 2705, (1990) (rejecting L.Ed.2d 1 an 111 Bradley job, refused. leave her but privilege for state- constitutional absolute Bradley had court concluded The “opinion”). Accusations ments subjected to discrimination been correspondence Bradley personal retrieved After reduc- denied her other claims. but and was supervisor’s a wastebasket from $12,000 jury duplicative award of ing the gross misconduct were sufficient- fired for $1,000, damages the court compensatory to Bradley’s reputation sup- ly to to harmful totalling compensatory damages awarded Weissman, port a defamation action. See $46,180.80, damages for including treble at 473. 469 N.W.2d ($34,560), earnings lost insurance bene- lost supports The evidence ($10,- ($1,620), distress fits and emotional (1) supervisor’s state findings that: 000). also assessed The court communicated to someone oth ments were $200,000 $6,000 pen- civil damages of and a (2) Bradley; were the statements er than HBI.1 alty against false; the statements tended to v. Bradley’s reputation. See Lewis harm ISSUES Soc’y, 389 Equitable Assurance Life support finding the evidence a Does (Minn.1986). cannot 886 We N.W.2d false, employer’s mali- of defamation supervisor’s inconsistent that the conclude employee re- statements that an cious Brad testimony was more credible than correspondence from a su- personal trieved testimony. Wirig Kinney v. ley’s See fired for pervisor’s wastebasket and was (Minn. 533 Cory., 448 N.W.2d Shoe gross misconduct? (the jury must assess the credi App.1989) assign the the witnesses and bility as a mat- the evidence sufficient 2. Was testimony), weight given be to their imply good covenant of faith ter of law to Bradley brought tory applicable her originally when limit trial court awarded 1. The $8,500. By agreement par- Minn.Stat. damages claim in 1986. ties, was amended to the statu- the award
675 II N.W.2d 374 grounds, other rev’d on (Minn.1990). Bradley’s implied of an cove breach premised on in-house coun nant claim is contents of revealing if
Even HBI gross mis- sel’s oral assurances that would not constituted memo to a coworker Huecker, 744 conduct, against participating retaliate her for Henderson see Cir.1984), (8th investigation the evidence sexual harassment of a co F.2d finding complaint. that the state- The these compel not worker’s evidence of did gross assurances, true, fired for mis- legally was as ment that taken not Dissemination of adequate support conduct was true. this claim. given reason not the sole memo was consistently de- Minnesota courts have supervisor’s discharge. The
Bradley’s good dealing clined to read a faith and fair basis: provides an alternative memo itself employment covenant into contracts. See Bradley, good Wendy not Secretary: Employees Hunt v. IBM Mid America Single mother department. asset Union, Fed. Credit N.W.2d two, tough to elimi- will be a little she (Minn.1986). nonretaliation assur- Oral in the middle of Wendy has been nate. ances, Bradley signed made before company legal disputes within two agreement continuing employment her as termination, etc., of other regarding the notice,” legally “at-will with weeks building appropri- employees. I am modify parties’ at-will insufficient replace like to her file and ate [would] good employment require contract to faith secretary, possibly one topa notch with Disallowing discharge. this claim does building. from the] [within compensable damages. The alter intent to re- supervisor’s expressed jury’s award of *6 “building appropri- the place Bradley after duplication as a previously stricken emphasis Bradley’s partic- on ate file” and re- compensatory damages allowed on the employ- investigations in of other ipation prisal discrimination claim. from complaints provides evidence
ee’s readily that the could conclude which III for reasons other Bradley was terminated error, identifies, HBI as reversible gross than misconduct. in trial mo rulings trial cited its new two Although employer’s nonmali- an Bradley’s ruling permitted first tion. The conditionally communications are cious rights human testimony on her coworker’s Parke, v. Davis privileged, Stuempges see this evidence complaint. HBI contends (Minn.1980), Co., 297 N.W.2d 256-57 & confusing, thus and highly prejudicial was supervisor’s state jury found that the The Minn.R.Evid. 403. inadmissible under malice, de were made with actual ments not exten evidence, although graphic, was Bradley de feating privilege. After lead Bradley the actions summarized sive. resign voluntarily, supervisor clined to and sex dis the sexual harassment ing to and, according became noncommunicative The trial court admitted crimination claim. memo, “building appropri began to her explain to it “tended the evidence because Bradley. supervi The replace file” to ate related to job” for her and Bradley’s fear sor, investigation, Wirig, see without Although the evidence the contract claims. Bradley of retriev N.W.2d at accused relevance, say we cannot marginal is of and ing the memo from her wastebasket in its discretion the trial court abused that allegation gross misconduct caused the its admis trial because of denying a new gossip. as office This conduct to circulate sion. that the su supports conclusion trial ruling, In the second or improper an motive pervisor harbored trial for mis grant a new court refused to wantonly pur for the causelessly acted and Bradley’s Undeniably, conduct of counsel. Bradley. v. pose injuring See Harvet strong about statements Center, Inc., attorney made 428 N.W.2d Medical Unity testimony, and her supervisor, Bradley’s (Minn.App.1988). promotion, qualification lack attorney. To warrant of HBI’s the conduct is a fact issue however, by trial ultimate determination trial, misconduct a new court, considerable evidence severe, impact the trial and have must be counsel prejudice. finding that these as- clearly supports result in the court’s jury, Eklund, 359, 362, Lund, pretext. Minn. reasons were serted See (1974). 348, 350 222 N.W.2d includes HBI supporting evidence instruction, al- Bradley overqualified curative telling The trial court’s she was requested, strong leave, HBI so as noncommunica- though job her and should disregard counsel’s Bradley, and the cautioned toward tive behavior opposing counsel and party memo, attack on a intent to terminate which evinces attorney’s sentence, statements disregard and, also in states Bradley the next credibility. Because this personal belief legal in of two has “been the middle she any prejudice, undue negated instruction company regarding disputes with the did not abuse its discretion the trial court employees.” These termination of other denying a new trial. months the actions followed within two rights human conclusion of the coworker’s
IV the trial investigation. The record and Bradley that The trial court concluded findings amply support the conclu- court’s prima facie case of established prima facie established a sions 363.03, under Minn.Stat. discrimination § reprisal and that HBI’s rationale case of (1) (1986), partici- by showing: she pretext. for its actions was by cooperating protected activity pated in a disputes HBI that the actions investigation of a claim as a witness reprisal, except for the court found to be Human the Minnesota brought under termination, appli occurred within the Act; (2) repris- subjected Rights she 300-day period preceding cable limitation consisting of a demotion discrimination al filing human com status, promotion, poor job loss of a plaint. Minn.Stat. subd. See conditions, eventual dis- working that the de The trial court found the ac- charge; HBI’s reasons for status, promotion, loss of job motion pretext. Hubbard v. Unit- tions See part of a poor working conditions were *7 428, Int’l, Inc., 444 N.W.2d 330 ed Press leading to Brad of related violations series (Minn.1983). statutory time ley’s termination within Bradley her burden of met concluded that because period. The court “discernible, showing reprisal continuing, they not were the acts factor” in discriminating, and causative by 300-day limitation. Ber barred See employment actions. See HBI’s adverse L.S.U., 715 Supervisors ry v. Board of of Hunter, Keith, v. Marshall Anderson 971, (5th Cir.1983); F.2d 979-82 Gonzalez 619, (Minn.1988) (de Co., 417 627 N.W.2d Co., 610 F.2d v. Tire & Rubber Firestone three-part fining proof under burden of 241, (5th Cir.1980). The trial court’s 249 Corp. v. analysis Douglas of McDonnell standards of re findings satisfy Berry 1817, 792, Green, 93 36 411 U.S. S.Ct. discrimination in which the curring, similar (1973)). escape may HBI not L.Ed.2d 668 rights. complainant preserve acted to her discharge liability by proving the would attorney and noti Bradley’s retention of an in the absence of place have taken even fying of the earlier actions HBI’s counsel protected activity. id. at 626-27. See preservation actions. The were reasonable considering not err in trial court did spe- eight court found at least The trial 300-day preceded actions that related reprisal cific acts to be discrimination. period. though presented HBI evidence of Even
nondiscriminatory for some of the motives V actions, of including distribution memo, separate issues on dam- Bradley’s opening HBI raises four the confidential (1) to members, insufficiency of the evidence ages: mail intended for other staff
677
(2)
damages;
distress
support emotional
(2)
punitive damages based
of
impropriety
punitive
HBI contends that
dam
arising from an intra-
action
a defamation
ages
intracorporate
not
are
recoverable
(3) impermissible
publication;
corporate
recognized
defamation because it was not a
puni-
recovery
compensatory
of
double
HBI
cause of action when
made the state
defamation,
of
damages for
breach
tive
Lewis,
ments. See
separate cause of action for proximity period. same time This alone here, At how emotional distress. issue finding compel does not of double recov ever, damages, a cause is an element of recovery sepa occurs ery. Double when has been of action. When an individual liability premised are rate theories defamed, jury may compensation award Wirig, same harm. 461 N.W.2d at See distress as an element of for emotional HBI’s 379. The harm flows from Farm Mutual Auto. See State participation in punishment Bradley Isle, Minn. Village v. Ins. Co. investigation. If a human 367-68, (1963); Meyer 122 N.W.2d alone, had been fired for this without Co., F.Supp. Tenvoorde Motor statements, accompanying defamatory (D.Minn.1989). Bradley’s evidence of ina degree in kind and harm would be different headaches, anger, and de bility sleep, harm that flowed from the defam from the spair support is sufficient atory statements. for embarrass award ment, pain, and emotional distress. Further, did not include the trial court in the list of defamatory statements *8 363.071, 2, subd. Minn.Stat. § reprisal act was reprisal actions. The last permits the trial court to award specifically that action- jury found termination. anguish suffering damages for mental HBI char- occurred when able defamation Mental by reprisal caused discrimination. published and actions acterized accompanied anguish need not be severe or These statements gross as misconduct. Cooper v. by physical injury. by See State after was terminated. were made Services, 434 County Mower Social intertwined, the harms Although factually 494, (Minn.App.1989). N.W.2d 499-500 sufficiently discrete to sequential are and testimony of her dimin Bradley’s extensive compensatory awards.2 support separate and the deteriora ished sense of self-worth damages punitive Whether relationship with her children tion of her problematic. The sup duplicative are is more statutory requirements and meets the $6,000 punitive in dam- awarded discretionary trial court ports judge’s award. damages. overlapping compensatory trial court struck the no 2. We also note that the wages, leaving compensation repetitious for lost 678 549.20, subd. 3. Our con- claim Minn.Stat. reprisal discrimination See
ages on the
§
duplicative
and,
penalties
subd.
that
are
under Minn.Stat.
clusion
§
$200,000
(1990),
penalty.
a civil
We
remaining question
as
into the
of
factors
penalty is intended to
recognize that a civil
punitive damages are exces-
whether the
punitive
compensatory and
supplement
sive.
duplication between
damages and find no
$6,000 punitive
penalty
the civil
Blackmun
Justice
observed
Rights
under the Human
damages awarded
—
Haslip,
reasons,
Mutual
Ins. Co. v.
However,
Act.
for a number
Life
Pacific
1032,
U.S.-,-,
111 S.Ct.
113 L.Ed.2d
duplication
is
be-
conclude that there
we
(1991),
“punitive damages
long
have
Rights
penalties
Act
that
the Human
tween
jury
law.”
damages
part
awarded
been a
of traditional state tort
punitive
damages,
jury
claim.
is
assessing punitive
on the defamation
instructed,
statutory
under
or common law
First,
paid
is
although
penalty
the civil
standards,
gravity
of the
to consider
claimant, the
rather
than the
the state
wrong and the need to deter the harmful
into account: the
same factors are taken
process is satisfied if the
conduct. Due
violation; the
and extent of the
seriousness
sufficiently
standards are
definite and the
violation;
by the
public harm caused
punitive damages
grossly
award is not
out
intentional; and
the violation was
whether
severity
the offense.
proportion
respondent.
of the
the financial resources
eight-factor
Minnesota’s
measure of
Id.
Second,
jury’s punitive damages
punitive damages
significantly
is
more de-
likely premised on misconduct
award was
than the
statute
tailed
Alabama
reprisal
to the defamation. The
addition
passed scrutiny in
Mutual.3
Pacific
claims arose from a con-
and discrimination
course of interrelated events and
tinuous
legislature
In 1990 the
added subdivision
objec-
together, despite
tried
HBI’s
permit greater
5 to Minn.Stat.
549.20 to
result,
jury
tion. As a
heard evidence
appellate
scrutiny
puni
court
trial
permissible scope of its consid-
outside the
damages, codifying judicial
to
tive
trend
eration. The trial court did not instruct the
expanded supervisory
jury-
review of
ward
jury
disregard
evidence of human
See,
damages.
e.g.,
imposed punitive
Hod
assessing punitive damages,
offenses when
Co.,
Goodyear Tire & Rubber
der v.
ques-
broadly wording
special
verdict
(Minn.1988) (reducing
N.W.2d 826
$12.5
inquire:
tion to
mil
million
award to $4
punitive damages will
What amount of
cert,
lion),
denied,
U.S.
S.Ct.
Broadcasting
punish
serve to
Hubbard
(1989);
Stanger
children. The after a status DECISION loss, demotion, promotion and difficult part. part and reversed Affirmed conditions, working struck at the emotional life; (5) and financial base of CRIPPEN, (dissenting): Judge upon discovery conduct HBI’s attitude and 1. Defamation change. Bradley’s supervisor did did not damage than a decade For more Bradley’s account of how investigate specially scrutinized have awards been steps she obtained the memo or take however, today, has until Minnesota. Not Although evi- remedy any damage; simply its appellate court substituted suggest the dence does not involvement jury’s finding of fact on the judgment in- for a large employees, those number *10 damages.1 punitive employees; The measure of top-level volved court, 628, Gordon, 215, 222, (1976), supreme the Stanger 244 N.W.2d 632 v. 309 Minn. 1. In 680 punitive damages appeal turb the on
No doubt an award of
award
unless it is so
open-endedness and
excessive
as
be
has characteristics of
unreasonable.”
Parke,
Co.,
Stuempges v.
297
volatility.
Goodyear
v.
Tire &
Davis &
See Hodder
252,
(Minn.1980).
826,
(Minn.
my opin-
N.W.2d
In
Co.,
259
426 N.W.2d
835
Rubber
ion,
begins
our
926,
decision here
and ends with
1988),
denied,
109
cert.
492 U.S.
S.Ct.
a vital maxim
Thus,
of Minnesota law:
3265,
(1989).
It is fundamental in this that nei- penalized. party challenged appeal ther has
verdict form jury submitted to the or the respectfully I dissent from the decision employment single of a proceeding trial on to alter the jury’s verdict. jury fact issues both for the and the trial
judge.3 particularly, More party neither
disputes that properly posed this document question damages specifically punish appellant needed and deter for its addition, nothing defamation.4 in the Tracy In Re the Matter of Lee trial permitted jury court’s instructions ELGARD, Petitioner, to mix into the statutory punitive damage Respondent, any regarding factors considerations earli- er misconduct that led to the termination of respondent’s employment. No additional DUDLEY, Cheryl Appellant, Elaine cautionary clarifying instructions were requested. Nothing in the instructions or jury verdict form invited the to mea- Morrison, Intervenor, Respondent. Jan punitive damages by looking sure beyond No. C3-90-2715. defamatory statements to consider other evidencing appellant’s conduct state of Appeals of Minnesota. Court mind. June 1991. rights penalty. 3. Human majority I share with the a concern for appellant
the fact that penalized consecutively ap- two acts that occurred separately, 3. The admission of evidence on a discrimina- each addressed demonstrate a willful Mariana, employee tion claim of Marcea one part appellant indifference on the judge, element of the case decided the trial Question what others. 21 asks amount appeal. raised as an issue on This evidence was punish needed to and deter jury also relevant to issues before the and I appellant and others "from similar conduct.” majority share the conclusion of the that admis- question only was told to answer if sion of the evidence did not constitute reversible yes any subpart question it answered error. The verdict form instructed the it could not award on other form, including ques- 4. Section C of the verdict verdict, subjects namely, promissory of its es- through tions 9 Question is entitled “DEFAMATION.” good toppel implied and breach of covenant of compen- 19 asks for determination of dealing. faith and fair satory damages defamatory statements. statements, Question specified 20 asks whether