This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Marguerite Anderson-Johanningmeier,

et al.,





Mid-Minnesota Women’s

Center, Inc., et al.,




Filed January 7, 2003

Klaphake, Judge


Crow Wing County District Court

File No. C0961714


Judith Kahn Schermer, 950 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for appellants)


Kay Nord Hunt, Stephen C. Rathke, Lommen, Nelson, Cole & Stageberg, 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondents)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


            Appellants Kathy Delaney and Barbe Morrell[1] challenge the district court’s second grant of judgment notwithstanding the verdict (JNOV) following a remand by the supreme court.  Anderson-Johanningmeier v. Mid-Minnesota Women’s Ctr., Inc., 637 N.W.2d 270 (Minn. 2002).  By special verdict, the jury found that respondent Mid-Minnesota Women’s Center, Inc. (MMWC) was not liable under the Whistleblower Act, Minn. Stat. §§ 181.931-.937 (1996), but that respondent Louise Seliski, who was appellants’ former supervisor and an employee of MMWC, was liable because Morrell and Delaney’s reports of violations or suspected violations of law were motivating factors in Seliski’s decisions to discharge or penalize them regarding their terms and conditions of employment.

            The district court granted JNOV for a second time, determining that Seliski is not an “employer” and cannot be held personally liable under the act.  In dismissing appellants’ claims, the district court rejected appellants’ request to reconcile the jury verdict by holding MMWC liable under a vicarious liability or respondeat superior theory.  Seliski and MMWC have filed a notice of review challenging the district court’s rejection of their alternative grounds for JNOV.

            Because Seliski, the only party found liable by the jury, was not an employer and cannot be held liable under the act, we affirm the district court’s grant of JNOV to respondents.  Because respondents are not entitled to JNOV on any of their alternative grounds, we also affirm the district court’s rejection of the alternative grounds for JNOV raised in their notice of review.



            This case was remanded by the supreme court “[b]ecause the lower courts did not address respondents’ alternative grounds for [JNOV],” which the supreme court earlier identified as including “no law governs vacation pay,” “Delaney did not make a report,” “Seliski is not an employer,” and “no causal connection existed between the controversy surrounding [the dispute regarding] vacation pay and the decisions to terminate appellants.”  Anderson-Johanningmeier, 637 N.W.2d at 273, 277.  Appellants complain that consideration of the alternative grounds for JNOV is untimely and that the district court or one of the appellate courts should have addressed and ruled on those alternative grounds in connection with the first grant of JNOV.

            On remand, the district court has a duty to execute the mandate of the supreme court “strictly according to its terms.”  Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982).  We cannot question the wisdom of the supreme court’s directive that the alternative grounds asserted by respondents for JNOV be addressed.  See Waldo v. St. Paul City Ry. Co., 244 Minn. 416, 425, 70 N.W.2d 289, 295 (1955) (on reversal of order granting JNOV, matter is remanded to trial court to reconsider and rule on alternative new trial motion).  We therefore reject appellants’ claim that this second grant of JNOV should be reversed because they have been prejudiced by having to appeal these separate grants of JNOV.[2]


            The district court’s grant of JNOV “is a question of law subject to de novo review.”  Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn. 1990) (citation omitted).  JNOV should be granted only in the clearest of cases, where the facts are undisputed and reasonable minds can draw but one conclusion.  Kedrowski v. Czech, 244 Minn. 111, 116, 69 N.W.2d 337, 341 (1955); Imdieke v. Blenda-Life, Inc., 363 N.W.2d 121, 123-24 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).

            The district court here granted JNOV based on its determination that respondent Seliski cannot be held personally liable under the whistleblower act because she is not an “employer.”  This ruling is a correct application of law.  In Obst v. Microtron, Inc., 588 N.W.2d 550, 553-54 (Minn. App. 1999), aff’d, 614 N.W.2d 196 (Minn. 2000),[3] this court held that a supervisor or managerial employee cannot be held personally liable under the act, which defines an “employer” as “any person having one or more employees.”  See Minn. Stat. § 181.931, subd. 3 (1996).  Appellants do not challenge the district court’s reading of Obst and Minn. Stat. § 181.931, subd. 3, as they apply to this case.

            Rather, appellants argue that JNOV and dismissal of their claims against MMWC are inappropriate because MMWC remains liable for Seliski’s actions under a vicarious liability or respondeat superior theory.  Appellants insist that because the jury verdict can be reconciled on these theories, it should not be overturned.  Appellants reason that because the jury was instructed that MMWC could only act through its employees and because Seliski was the only employee involved in the retaliatory acts, the findings that Seliski was liable must be read to impose vicarious liability on MMWC.

            When faced with seemingly inconsistent answers, a district court may reconcile the answers in a manner consistent with the evidence and its fair inferences or amend the answers.  See Orwick v. Belshan, 304 Minn. 338, 343-44, 231 N.W.2d 90, 94-95 (1975); Lutterman v. Studer, 300 Minn. 507, 510-11, 217 N.W.2d 756, 759 (1974).  But a special verdict will not be disturbed so long as the answers are reasonable on any theory.  Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984).  For several reasons, we decline appellants’ invitation to “reconcile” the verdict to allow them to recover.

            First, appellants “invited the error” when they opposed respondents’ motion at the close of the evidence to dismiss Seliski and insisted that Seliski’s liability be submitted separately to the jury.  The record includes an exchange between the parties regarding a motion by respondents to dismiss Seliski as a defendant “on the grounds that the evidence presented in this case is not sufficient to support a finding of liability against her as an individual, and in the alternative, on the grounds that the whistleblower statute imposes liability on the employer only * * *.”  Appellants opposed the motion to dismiss Seliski and argued that the whistleblower act is analogous to the human rights act, which allows an individual to be found liable for aiding and abetting.  See Minn. Stat. § 363.03, subd. 6 (1996).  The district court denied respondents’ motion to dismiss Seliski at that time and ruled that it “may readdress [the] issue” depending on “what the jury comes up with.”

            The jury was instructed that there were two defendants, Seliski and MMWC, and that each was entitled to separate consideration “as though the lawsuits are being tried separately.”  The jury also was instructed that as a corporation, MMWC could act only through its employees and that the conduct of a corporation’s employee acting within the scope of employment was the conduct of the corporation.  The jury further received an instruction regarding scope of employment.

            In its special verdict, the jury found Seliski liable, but no liability on the part of MMWC.  Appellants made no post-trial motions for amended findings or a new trial, and did not otherwise challenge the jury’s findings regarding the lack of liability on the part of MMWC.

            Appellants cannot now complain that the jury was confused by the instructions or special verdict questions that they requested or by questions that they never challenged. Parties have a right and responsibility to suggest or object to special interrogatory questions; a party who fails to do so waives the right to later challenge the jury’s response, or lack of response, to the issue.  Vikse v. Flaby, 316 N.W.2d 276, 284 (Minn. 1982); Raymond v. Baehr, 289 Minn. 24, 27, 184 N.W.2d 14, 16 (1970).

            Second, appellants cannot shift their theory regarding Seliski’s liability merely because their initial theory was wrong as a matter of law.  As noted, appellants opposed respondents’ motion to dismiss Seliski as a defendant and argued that Seliski could be held liable.  The mere fact that their theory later proved to be incorrect under Obst does not justify a reversal of the jury’s verdict.

            Finally, appellants’ “reconciliation argument” does not seek to reconcile the special verdict responses, but seeks to overturn the jury’s verdict and find MMWC liable.  As the district court explained, the jury’s answers may be reconciled by assuming the jury found that Seliski was not acting within the scope of her employment when she retaliated against appellants.[4]  The jury was instructed regarding scope of employment and must be presumed to have followed the court’s instructions.  See Johnson v. Washington County, 506 N.W.2d 632, 640 (Minn. App. 1993), aff’d, 518 N.W.2d 594 (Minn. 1994).

            Given our standard of review of a grant of JNOV, we conclude that evidence was presented from which the jury could have found that Seliski was acting outside the scope of her employment.  For instance, appellants sought to convince the jury that Seliski’s purpose in terminating Morrell and Delaney was to punish them because she disliked them.  Appellants further suggested that Seliski’s conduct imposed liability on her individually because she was acting in bad faith and furthering her own interests.  Finally, appellants presented evidence and argument in an attempt to establish that Seliski was acting from personal motives.  From this evidence, the jury could have inferred that Seliski was acting outside the scope of her employment.  Because this inference presents a plausible explanation of how the jury found Seliski liable and MMWC not liable, we affirm the district court’s grant of JNOV on this issue.


            By notice of review, respondents challenge the district court’s rejection of its other bases to grant JNOV.  While these alternative grounds are not necessary to our decision, we will address them in order to meet the supreme court’s directions on remand.

            First, respondents argue that they are entitled to JNOV on Delaney’s claim because Delaney was not a reporter under the whistleblower act.  When the evidence is viewed in a light most favorable to the verdict, it shows that Delaney supported and assisted Morrell in making her report to someone at the Minnesota Department of Labor, and that she was retaliated against for supporting Morrell in her decision to call the department.  Because there is some evidence from which the jury could find Delaney was a reporter, we decline to overrule the district court’s decision refusing to grant JNOV on this ground.

            Next, respondents claim entitlement to JNOV on the basis that the asserted reports were not covered by the whistleblower act and did not implicate an actual federal or state law.  Respondents characterize the claim here as involving a dispute about another employee’s vacation pay, which was contractual and based on MMWC policy, not on any state or federal law.  In Obst, the supreme court affirmed this court’s reversal of a jury verdict, concluding that Obst’s reports regarding the employer’s deviations from its control plan with Ford Motor Company may have implicated safety concerns, a violation of the control plan, or a breach of the employer’s contract with Ford, but those reports did not implicate violation of any federal or state law.  Obst, 614 N.W.2d at 204.  Again, we refuse to reverse the jury’s finding that Delaney and Morrell reported a violation or suspected violation of a law or rule governing the payment of vacation pay to their employer or to the Department of Labor.  Rather, we choose to defer to the district court’s decision, particularly since the district court heard all of the evidence and was privy to the discussions regarding the wording of the special verdict questions and was present during closing arguments.

            Finally, respondents argue that JNOV was appropriate because there was no nexus between the alleged whistleblowing activity and appellants’ termination.  In Cokley v. City of Otsego, 623 N.W.2d 625, 633-34 (Minn. App. 2001), review denied (Minn. May 15, 2001), this court concluded that the district court erred by failing to grant JNOV because the employee “did not engage in protected activity and failed to present evidence beyond speculation to show any causal link between the concerns she had expressed several months earlier with the decision to eliminate her position.”  Because some evidence in the record here supports the jury’s verdict that Seliski’s actions were “motivated” by the reports made by Morrell and Delaney, we reject this as a basis for JNOV.

            The district court’s grant of JNOV on the ground that Seliski cannot be held liable under the whistleblower act and its denial of respondents’ alternative bases for relief are affirmed.






* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Although the case caption includes the names of two other plaintiffs, these plaintiffs were not parties to the whistleblower trial and are not involved here.

[2]  Appellants also claim that respondents’ original motion for JNOV was untimely because not brought within 15 days of the special verdict, as required by the former version of Minn. R. Civ. P. 50.02(c), 59.03.  Appellants further assert that respondents never raised two of the grounds for relief that were identified by the supreme court.  Even assuming that appellants are correct, an assumption that we do not suggest should be made, the supreme court specifically directed that these issues be addressed.  Again, we have no authority to question the supreme court’s express remand.

[3]  On appeal to the supreme court, Michael Obst did not challenge our ruling that his supervisor could not be held personally liable and our dismissal of Obst’s whistleblower claims against the supervisor.  Obst v. Microton, Inc., 614 N.W.2d 196 (Minn. 2000).  Thus, this court’s decision on that issue remains good law.

[4] Because transcripts of the discussions regarding the jury instructions and the parties’ closing arguments were not provided to us as part of the district court file, we are particularly reluctant to second-guess the district court’s explanation of the jury verdict.