This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
KYMN Inc., a/k/a KYMN Radio, et al.,
Jeff Johnson, et al.,
Filed October 22, 2002
Rice County District Court
File No. C1-99-892
Robert L. Bach, Richard A. Beens, Ruth Silseth Marcott, Eric J. Riensche, Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for appellant)
Floyd E. Siefferman, Jr., Boris Parker, Saliterman & Siefferman, P.C., 1000 Northstar Center East, 608 Second Avenue South, Minneapolis, MN 55402 (for respondents)
Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.
Appellant, KYMN’s employee, brought this action against respondents, and they brought counterclaims against her. Appellant’s motion for a directed verdict on respondent’s counterclaims was denied, and the jury found in favor of respondents. Appellant’s whistleblower and Minnesota Human Rights Act (MHRA) claims were tried to the district court, which found no violations. Appellant challenges the district court’s denial of her posttrial motions for remittitur, JNOV, or a new trial, on the basis of evidentiary rulings. Because we see no error of law in the denial of appellant’s posttrial motions or in the district court’s resolution of her claims, and no abuse of discretion in the district court’s evidentiary rulings, we affirm.
In 1996, appellant Sharon Langeslag applied for a position as outside salesperson with respondent KYMN radio station. She was interviewed and ultimately hired by its president and director, respondent Wayne Eddy. As a KYMN employee, appellant antagonized Eddy, several other personnel of KYMN, and some of the advertisers whose business she was soliciting. Among other things, appellant used vulgar and abusive language to Eddy and frequently threatened to sue him and the station.
During her second year with KYMN, appellant witnessed Eddy and Jeff Johnson, another KYMN employee and director, move some of the belongings of Roger Johnson, a terminated employee. A criminal charge was brought against Eddy, who was ultimately convicted of a misdemeanor. Appellant testified against him at his trial.
During her third year with KYMN, appellant filed an 11-count complaint against KYMN; Eddy, her immediate supervisor; Bob Matheson, who was also a director; and Jeff Johnson. They counterclaimed, alleging three counts. Partly because of the lawsuit and partly because of appellant’s poor performance, relations between appellant and respondents deteriorated to the point where appellant was fired.
A jury trial ensued on appellant’s lawsuit and respondents’ counterclaims. The district court dismissed all counts against Matheson and Johnson and several other counts. After almost three weeks of trial, the jury was asked to decide only appellant’s breach of employment contract claim and respondents’ counterclaims, while the district court decided appellant’s whistleblower and MHRA claims. All decisions were adverse to appellant, who moved for a new trial, JNOV, or remittitur. Her motions were denied, and judgment was entered for respondents and against her in the amounts awarded by the jury on respondents’ counterclaims, which total $710,000.
On appeal, she challenges the denial of her motions for a directed verdict and JNOV on respondents’ counterclaims, the district court’s finding of no violation on her whistleblower and MHRA claims, and the rulings on two evidentiary issues.
D E C I S I O N
1. Motions for Directed Verdict and JNOV
Appellant moved for a directed verdict on respondents’ counterclaims of intentional infliction of emotional distress (IIED), defamation, and tortious interference with contractual relations. The district court denied her motion and submitted the three claims to the jury, which found for respondents on all three claims. Appellant’s motion for JNOV on the claims was denied.
[T]his court applies the same standard of review to denial of a motion for a directed verdict as to denial of a motion for judgment notwithstanding the verdict. This court asks whether the jury’s findings are manifestly against the entire evidence or are contrary to the law applicable in the case or if the evidence is so clear and conclusive as to preclude a reasonable difference of opinion among fair-minded people.
Mertes v. Estate of King, 501 N.W.2d 660, 665 (Minn. App. 1993) (quotation and citations omitted).
a. Intentional Infliction of Emotional Distress
A claim for IIED requires conduct that is extreme and outrageous, that is also intentional or reckless, and that causes severe emotional distress. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983). Appellant claims that the district court erroneously denied her motions because the evidence was insufficient to show either extreme and outrageous conduct or severe emotional distress.
But there is evidence to support the jury’s finding that appellant intentionally inflicted emotional distress on respondent Eddy. One incident concerned appellant’s report to the police that Eddy was scalping Vikings tickets. A police report showed that, contrary to appellant’s testimony that the police approached her, she telephoned them and reported the alleged scalping, although she knew the proceeds of the inflated ticket prices were to be used for charitable purposes and that the radio station had been auctioning off tickets to raise money for charities for many years.
When Eddy met with appellant to ask why she had reported this activity to the police as scalping tickets, they both recorded the meeting, held at the KYMN station. During the meeting, appellant called 911, saying:
I need an officer out to the * * * KYMN Radio station as soon as possible, please. * * * I want to leave and my employer, who’s Wayne Eddy, won’t let me do that.
Both the recording and appellant’s testimony show that Eddy did nothing to prevent appellant from leaving when she wanted to. Eddy testified that appellant had left the station by the time squad cars and officers arrived. The minutes of a subsequent KYMN board meeting show that appellant on a second occasion involved police and the sheriff’s department in KYMN business.
Eddy testified that appellant frequently threatened to involve her lawyers during her time at KYMN, and another employee testified that appellant threatened legal action if she were displeased.
Very shortly after [appellant] came to work at KYMN, she told me that she used to work in the [c]ourt system and she understood how it worked and she knew how to manipulate it and if anybody ever crossed her, they would be in big trouble.
When asked if appellant referred to anyone specifically, the employee answered, “Wayne Eddy.” Eddy also testified that, “ I was very concerned in regards to a lawsuit and so I tried to accommodate her any way I could.”
Appellant’s own testimony on direct examination reflected her efforts to cause distress to Eddy. She testified that she called Eddy an obscene name and, when asked if she did so on a number of occasions, replied, “I sure did.” A co-worker testified that appellant’s attitude was “[b]elligerent, very angry, always having something negative to say” and that appellant made disparaging comments about Eddy, saying “he was not trustworthy, that he lied to her, that he cheated, that he was capable of anything.” The co-worker also testified that, when Eddy asked appellant a question,
[i]t would immediately or very quickly turn into a very loud and aggressive shouting match between her and Wayne [Eddy] and in all cases I never saw him initiate it.
I only saw her initiate it.
* * * *
[M]any times she would charge into his space and get very, very close to him and just look right up into his face within inches of each other and shout at him.
Another employee testified that appellant’s relationship with Eddy was “very stormy, very combative” and that
[appellant] would * * * especially [with Eddy] * * *, go toe to toe. She would step up to [Eddy’s] face and yell at him. * * *
She called him just about every unkind name I could think of * * * very frequently in his presence and away from him.
This evidence would not preclude a reasonable difference of opinion among fair-minded people as to whether appellant engaged in extreme or outrageous conduct in regard to Eddy, and the jury’s finding that she did so was not manifestly contrary to the evidence.
Appellant also argues that Eddy did not prove that his emotional distress was severe because some of the medical conditions he referred to pre-existed his contact with appellant. However, no physical symptom is necessary to support a claim for intentional infliction of emotional distress. See Hubbard, 330 N.W.2d at 438 (adopting the tort and rejecting the view that physical injury was necessary for a tort recovery). Moreover, Eddy testified that, although his conditions predated his involvement with appellant, they were exacerbated by it. Therefore, Eddy’s testimony as to the severity of his emotional distress was adequate to sustain the jury’s finding.
The district court did not err in denying appellant’s motions for directed verdict and for JNOV on the IIED claim.
As a threshold matter, appellant argues that the district court erred in considering allegedly defamatory statements other than those set forth in respondents’ counterclaim. Respondents argue that appellant never raised this objection in the district court, and the record supports this argument. Therefore, whether the district court erred in admitting evidence of other defamatory statements is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court may consider only what was presented to and considered by the district court).
Appellant goes on to argue that none of her statements was defamatory.
To be defamatory, a statement must be communicated to someone other than the plaintiff, must be false, and must tend to harm plaintiff’s reputation in the community.
Harman v. Heartland Food Co., 614 N.W.2d 236, 240 (Minn. App. 2000). “Imputations concerning one’s business, trade, or profession are actionable * * * without proof of actual damages.” Bebo v. Delander, 632 N.W.2d 732, 739 (Minn. App. 2001), review denied (Minn. 16 Oct. 2001). The transcript shows that, on many occasions, appellant claimed to advertising clients and to fellow employees that those operating KYMN were incompetent.
Appellant relies on Harman, 614 N.W.2d at 241 (holding that a claim that a plaintiff with extensive experience in raising turkeys “knew nothing about raising turkeys” was not defamatory), and on Bebo, 632 N.W.2d at 739 (holding that “vulgar language or name-calling is not necessarily defamation”). Both are distinguishable. In Harman, the recipient of the alleged defamation “testified that he knew that [the plaintiff] was a competent turkey grower and did not believe [the] * * * statement was intended to provide information about his competence.” Harman at 241. Here, a KYMN employee testified that, before he was hired,
[appellant] told me that [Eddy] would probably be going bankrupt and we talked a little bit about a lawsuit. She didn’t say anything about what the lawsuit was about but she said that KYMN was going to go under and that put me uneasy.
A customer of KYMN testified that appellant spoke negatively about KYMN, about her problems with her job, and about her lawsuit against the station. Unlike the situation in Harman, the defamation affected more than one person, and those who heard it did not testify that they disbelieved it.
Bebo involved statements that were either vulgar statements of opinion rather than fact or that were true in substance. Bebo, 632 N.W.2d at 740. Appellant’s statement to the police that Eddy was scalping Viking tickets was at least arguably defamatory. That statement was not “true in substance”: Eddy was continuing a decades-old practice of auctioning tickets on the air to raise money for charity, not “scalping” them in the commonly understood criminal sense of that term.
Appellant invokes two exceptions to the law of defamation. First, she claims that her statements were subject to a qualified privilege. For this claim, she relies on Rudebeck v. Paulson, 612 N.W.2d 450 (Minn. App. 2000), review denied (Minn. 13 Sept. 2000). Rudebeck held that an employer's statements made during an investigation into wrongdoing by an employee are protected by a qualified privilege, when based on reasonable or probable cause and made without malice. Id. at 452-53. Appellant argues that the qualified privilege also applies to an employee's statements. Even assuming that it does, appellant was not conducting an investigation into any wrongdoing of Eddy when she made the statements found to be defamatory, so the qualified privilege exception does not apply.
Second, appellant argues that Eddy was a limited purpose public figure. This exception to defamation law requires “(a) the existence of a public controversy, (b) the individual's purposeful or prominent role in that controversy, and (c) a relation between the allegedly defamatory statements and the public controversy.” Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn. App. 1996) (citations omitted), review denied (Minn. 19 June 1996). Appellant's defamatory statements were not related to any public controversy, nor was Eddy engaged in a public controversy: he was engaged in a private dispute with appellant. This exception also does not apply.
A claim of tortious interference with contractual relations requires a showing that there was a contract, that the defendant knew of the contract, that the defendant intentionally interfered with the contract, that the interference was not justified, and that the plaintiff suffered damages. Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn. 1998). Appellant challenges the district court’s denials of her motions for directed verdict and JNOV on this claim. She argues that there is no evidence either of a breach or of resulting damages.
KYMN lost approximately $75,000 in advertising revenue during appellant’s employment. Advertisers testified that they resented having appellant draw them into the conflict between herself and KYMN and that she made negative comments about both KYMN and Eddy when soliciting their advertising.
From such testimony, the district court could have inferred that appellant was deliberately interfering with KYMN’s contractual relationship with its advertisers and that its loss of revenue was attributable in part to appellant’s activities. In considering a motion for directed verdict, a district court must accept as true all reasonable inferences that can be drawn from evidence favorable to the adverse party. Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. 4 Aug. 1992). Accepting those inferences as true, the district court did not err in denying appellant’s motion.
Respondents also alleged that appellant interfered with KYMN’s contractual relationships with its employees. Eddy testified concerning appellant and a new KYMN director hired from New Jersey ,
I observed [appellant] get up into [his] face and accuse him of being an easterner that doesn’t know radio worth a beep * * *. I heard her tell him to leave [her] alone. He was trying to do his job in the programming program. Had nothing to do with her whatsoever. * * * He eventually quit.
Eddy also testified concerning appellant’s relationship with her immediate superior, Bob Matheson.
I observed [her] calling him names. I observed [her] calling him a liar. I observed [her] interrupting his work. I recall [her] complaining to me about ‘the Wonderboy.’ I recall [her] telling me I should get rid of him, that he is lazy.
Eddy also testified that appellant called Matheson vulgar names and refused to stop when asked to do so by Eddy. Matheson, a long-time employee and member of the board, left the station for a few months and returned after appellant had been fired. Again, the district court could have inferred that appellant had interfered with the contractual relationship between Matheson and KYMN. The district court did not err in submitting this claim to the jury.
2. Appellant’s Whistleblower and MHRA Claims
The district court concluded that appellant failed to make a claim under either Minn. Stat. § 181.932 (2000), the whistleblower act, or under Minn. Stat. § 363.03 (2000), the MHRA. A district court’s findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the district court to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.
Both claims depended largely on appellant’s testimony, and the district court made specific findings as to her credibility.
The [c]ourt finds [appellant’s] testimony, after more than four days of observation, to be less than forthcoming. At times, her answers were so evasive almost to the point of paranoia that it was difficult to determine if she was ever telling the truth. She was combative, argumentative, and hostile. She refused to acknowledge any document(s) unless it contained her attorneys’ bates stamped number and repeatedly argued with opposing counsel.
* * * [I]t became quite apparent that [appellant] would present testimony about an issue on what she wanted the court and the jury to know, regardless of whether it answered the question asked of her by counsel or whether it was even relevant to the issues.
The district court also noted that 11 witnesses for whose accounts appellant claimed commissions testified that they had never met or heard from appellant and that five witnesses said that, based on appellant’s reputation for truth and veracity in her community, she should not be believed under oath.
The district court found that appellant had failed to prove that her participation in the criminal investigation of Eddy
resulted in increased scrutiny of her work or termination of her employment with KYMN. KYMN disciplined [appellant] because of her hostile attitude, insubordination, reduction in sales figures, and her failure to correct the deficiencies referenced [by Eddy] in the August 23, 1999, letter.
Appellant argues that her performance was subject to increased scrutiny after Eddy’s arrest and decision to plead “not guilty” and that the disciplinary letter referred to above “was some evidence of punishment because of [her] protected activity.” The fact that appellant received a letter criticizing her performance after she participated in Eddy’s trial did not mean she received it because she participated in Eddy’s trial.
In resolving this claim, the district court found Eddy to be more credible than appellant. We give due regard to the opportunity of the district court to judge the credibility of witnesses. Minn. R. Civ. P. 52.01. We have no basis to overturn that finding or the conclusion resulting from it.
b. The MHRA Claims
The district court’s credibility determination is also the basis for its ruling on appellant’s MHRA “hostile environment” sexual harassment claims.
To be actionable under the hostile environment theory, acts of sexual harassment must be sufficiently pervasive or severe to alter the conditions of the victim’s employment and create abusive working conditions. Whether the sexual conduct complained of is sufficiently severe or pervasive to create a hostile work environment must be determined from the totality of the circumstances.
* * * [A]n individual plaintiff alleging sex discrimination on the basis of hostile environment sexual harassment must prove that (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based upon sex; (4) the harassment affected a term, condition, or privilege or employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action.
Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 874-75 (D. Minn. 1993) (citations and quotations omitted). Appellant relies on Jenson in support of her claim, but Jenson is distinguishable. In that case, “sexual harassment * * * was so pervasive that an inference of knowledge arises.” Here, other employees, including four female employees, testified that sexual harassment was not pervasive, and appellant’s own notebook, in which she testified that she meticulously documented everything that happened at KYMN, contained no reference to harassment. Appellant did not complain about sexual harassment at KYMN prior to this lawsuit. The one corroborated instance of workplace sexual harassment, when internet pornography was visible on a computer screen, led to the immediate discipline of the employee responsible for it. Eddy testified that, when he apologized to appellant for the incident, she said, “Don’t worry, I’m a big girl.”
Appellant also complained that her compensation structure was inferior to that of male employees, but the evidence shows that her commission rate was higher than anyone else’s, that her first employment contract was revised in her favor, and that her earnings were, on average, third highest in the company. Appellant produced no example of a male employee who did the same job she did and earned more.
Moreover, the district court noted that
[a]fter observing [appellant] on the witness stand for at least four days * * * the [c]ourt can only assume that she was attempting to show the trier of fact the merits of her cause of action and that she was on her best behavior. Unfortunately, her best behavior showed her to be condescending, rude, evasive and belittling.
Appellant’s own behavior made her testimony on harassment suspect.
The district court did not err in finding no MHRA violation.
3. Evidentiary Issues
Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).
Count eight of appellant’s complaint was “Retaliation for Serving Complaint.” In support of this count, appellant offered two anonymous letters allegedly sent to her by Eddy. The first arrived a few days after she served the complaint; the second arrived about three weeks after she served the amended complaint. Eddy moved for summary judgment in regard to count eight and the district court, finding that there was no evidence connecting him to the letters, granted his motion.
Appellant attempted to introduce the letters as evidence during the trial; after she made an offer of proof, the district court rejected them. Again, appellant offered nothing except the sequence of events to connect the letters with Eddy.
On appeal, appellant claims that the district court abused its discretion in refusing to admit the letters because “if authored by Eddy, [the letters] are plainly relevant to the question as to whether Eddy engaged in retaliatory conduct * * * .” However, neither on summary judgment nor in the transcript of appellant’s offer of proof is there anything to connect the letters with Eddy. The district court did not abuse its discretion in refusing to admit them.
Appellant claimed that she received a third letter, containing a map that showed the location of her house and a vulgar statement, shortly after the district court dismissed count eight. She moved to reopen discovery and to reinstate count eight. The district court reopened discovery to allow a handwriting expert to analyze the letter but denied the motion to reinstate, saying that, if the handwriting analysis established a nexus between the letter and count eight, appellant could then move for reinstatement. The letter was received as Exhibit 33, but appellant never moved to reinstate count eight.
While discovery was reopened, respondents disclosed their handwriting expert and the district court agreed to permit that expert to examine the letter. Appellant contends that she was prejudiced as a result. However, at the bench trial on appellant’s non-jury claims, both appellant’s handwriting expert and respondents’ expert testified about the letter. The district court found that, “[b]ased on her education and extensive experience, [respondents’ expert] was the more credible witness.” Appellant asserts that she was damaged by the court’s decision to admit respondents’ expert as a witness, but she does not explain how, given that her own expert had a longer time to examine the letter and was also able to testify.
Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrated prejudicial error.
Kroning, 567 N.W.2d at 46 (quotation omitted). Appellant has not demonstrated prejudicial error.
In summary, we conclude that the district court did not err in denying appellant’s motions for directed verdict or JNOV or in finding that respondents had not violated the whistleblower act or the MHRA, and that the challenged evidentiary rulings were not an abuse of discretion.
 Obviously, Eddy’s fears of a lawsuit were not groundless.
 We note that the three cases appellant cites in support are distinguishable. Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 794 (Minn. App. 1998), review denied (Minn. 15 Dec. 1998), and Thompson v. Campbell, 845 F.Supp. 665, 680 (D. Minn. 1994), were both appeals from summary judgments. Special Force limited a defamation claim arising out of a televised broadcast to the specific statements cited in the complaint “[b]ecause the contents of the broadcast were readily available to respondents and the district court gave respondents an additional opportunity to state their claims with particularity.” Thompson did not concern evidence; it held that “[a plaintiff] cannot amend her defamation claim simply by making new allegations in her brief.” Respondents did not simply make new allegations of defamation; they presented evidence to support them. Finally, Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 538 (Minn. App. 1997), review denied (Minn. 11 June 1997), rejected the argument that a special verdict form should include separate questions on every specific statement alleged to be defamatory; it did not consider whether evidence of statements other than those referenced in the complaint was admissible.
 Relying on Williams v. St. Paul Ramsey Med. Ctr., 551 N.W.2d 483 (Minn. 1996) (holding that an MHRA claim precludes a whistleblower claim arising from the same facts), the district court concluded that appellant could not assert damage recovery claims under both statutes because both were based on the same facts. Appellant’s whistleblower claim was based on the alleged retaliation for her participation in Eddy’s criminal trial and her MHRA claims were based on alleged sexual harassment in the work environment, so Williams does not apply. But the district court’s error of law is not a basis for a new trial; the findings show that the district court appropriately considered the evidence relevant to each of appellant’s claims.