This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-95-2646
C8-95-2647
CX-95-2648
C1-95-2649
C8-95-2650
CX-95-2651
C1-95-2652

Beverly Brand, Respondent (C6-95-2646)
Marilyn Fischer, Respondent (C8-95-2647)
Darlene Gray, Respondent (CX-95-2648)
Mary Beth Hageman, Respondent (C1-95-2649)
Camille Johnson, Respondent (C8-95-2650)
Diane Nightengale, Respondent, (CX-95-2651)
Dorothy Pribil, Respondent (C1-95-2652),

vs.

Archodiocese of St. Paul and Minneapolis,
Appellant.

Filed July 2, 1996
Affirmed
Amundson, Judge

Ramsey County District Court
File Nos. C3-92-2679
C1-92-2678
CX-92-2680
C6-92-2675
C4-92-2674
C3-92-2682
C1-92-2681

Jeffrey R. Anderson, Joanne Jirik Mullen,, Karen A. Kugler, Barbara J. Felt, Reinhardt and Anderson, E-1000 First National Bank Bldg., 332 Minnesota Streeet, St. Paul, MN 55101 (for Respondents)

Paul J. Zech, Richard A. Beens, Penelope J. Phillips, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Avenue South, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

The Archdiocese of St. Paul and Minneapolis appeals from amended judgments entered in favor of seven former employees on their claims of age discrimination and breach of contract. We affirm.

FACTS

The respondents, seven women over the age of 40, are former employees of the Catholic Education Center (CEC), a subdivision of the Archdiocese of St. Paul and Minneapolis. The respondents had each served on the CEC support staff, as secretaries or receptionists, for various lengths of time before the summer of 1991. The respondent with the longest record of employment at the CEC had worked for the Archdiocese for nearly 33 years. In January of 1991, the Archbishop of St. Paul and Minneapolis had issued to all Archdiocesean employees a manual of personnel policies that provided:

Under certain conditions related to financial resources, reorganization of employees, or change in the administrative structure, it may be necessary to transfer or release some employees. Should this occur, ability, job performance and evaluations, and seniority will weigh heavily as factors in retention.

At meetings in late May and early June of 1991, the new director of the CEC announced plans to reduce the number of support staff members and to restructure their responsibilities. The director indicated that she would not consider past job performance or seniority in the reorganization process. The director of the CEC also informed the support staff that she had contracted with Jeane Thorne, an employment services company, to conduct testing and interviews of individuals who were interested in applying for the restructured positions. Jeane Thorne's involvement in the process consisted of two phases. Six of the respondents participated in the first phase, in June 1991, which involved skills-testing and an interview. None of the respondents participated in the second phase, which took place in the first week of September 1991. Two younger members of the support staff participated in both of the testing and interviewing phases. [1]

During the reorganization process, various incidents occurred at the CEC that the respondents claim created a demoralizing work atmosphere for them. Those incidents included: the institution of a new policy to minimize employees' display of personal items around their work spaces; the withholding of a regularly scheduled cost-of-living-adjustment increase in the support staff's paychecks; and various alleged demonstrations of hostility by the CEC director toward the respondents. By the end of the summer of 1991, the respondents decided not to complete the scheduled interview procedures for the restructured support staff positions.

On the afternoon of September 11, 1991, the CEC director gave the respondents two-days' notice of their termination. The CEC later hired new support staff members ranging from 20 to 35 years of age.

The respondents filed age discrimination and breach of contract claims against the Archdiocese. Following a bench trial, the trial court entered judgments in favor of respondents, and the Archdiocese appealed. Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410 (Minn. App. 1995). This court remanded the consolidated cases after concluding that it could not determine whether the trial court had applied the proper standard in determining that respondents had been constructively discharged. Id. at 411. The Archdiocese now appeals from the amended judgments.

D E C I S I O N

The Archdiocese challenges: (1) the trial court's determination that the respondents were constructively discharged; (2) the trial court's conclusion that the Archdiocese created and breached an employment contract with respondents; and (3) the awards of back pay and front pay to each of the respondents.

I. Constructive Discharge (Age Discrimination)

The trial court's findings of fact must be sustained unless they are clearly erroneous. [2] Minn. R. Civ. P. 52.01. We need not defer to the trial court's conclusions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The Archdiocese contends that the trial court erred in concluding that respondents were constructively discharged. Proof of constructive discharge is required in order for the respondents to prevail on their age discrimination claims. Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412 (Minn. App. 1995) (citing Hubbard v. United Press Int'l, 330 N.W.2d 428, 442 (Minn. 1983)). [3]

In order to prove constructive discharge, a claimant must demonstrate that the employer intended to force the employee to quit by creating "intolerable working conditions" that would have caused a reasonable employee to resign. Pribil, 533 N.W.2d at 412. A claimant may prove intent with direct or circumstantial evidence. Id. at 413 (court may infer intent "upon a showing that the employee's resignation was a reasonably foreseeable result of the employer's conduct").

The Archdiocese criticizes the trial court's disposition of the constructive discharge issue, arguing in part that some of the court's determinations entail conduct that affected all of the support staff. See Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) ("Where * * * all employees are treated identically, no particular employee can claim that difficult working conditions signify the employer's intent to force that individual to resign."), cert. denied, 475 U.S. 1082 (1986). However, in the trial court's findings regarding conduct that the Archdiocese claims affected the entire support staff, the court stated that such conduct was intended to affect disproportionately the older members of the support staff. For example, the declaration by the CEC director not to consider seniority in the restructuring process particularly affected respondents, because nearly all of them had more extensive work histories at the Archdiocese than the two youngest employees at the CEC.

Moreover, even if some of the trial court's findings referred to matters that were common to all of the support staff, we conclude that the court made other findings that formed an adequate basis for the court's determination regarding the constructive discharge issue. Several of the trial court's findings indicated that the older support staff members received treatment different from that received by the younger employees at the CEC. For example, consistent with the record, the court found: (1) the CEC director had commented to representatives of Jeane Thorne that "she was looking for a staff that could grow with her and be with her for a long period of time"--qualities that the older support staff members were less able to satisfy; (2) the director treated the respondents in a less "respectful and courteous manner" than she did the younger support staff members; (3) before the completion of the Jeane Thorne interview process, a younger member of the support staff received assurances from her supervisor that "she would have a job at the CEC as long as she wanted one"; and (4) that same supervisor showed the younger employee a CEC floor plan listing only the names of the two youngest members of the CEC support staff and none of the respondents' names. These incidents would have adversely affected only the older employees.

We now address the trial court's determinations specific to the respondents' individual claims.

A. Mary Beth Hageman

At the time of her official termination, on September 13, 1991, Mary Beth Hageman was 47 years old and had completed just over 10 years of service with the Archdiocese.

In concluding that the Archdiocese intentionally caused Hageman to resign by creating intolerable working conditions, the trial court noted that (1) the CEC director caused a "drastic reduction in * * * [Hageman's] physical working conditions"; (2) the Archdiocese failed to "provide equal training" for Hageman on the computer; and (3) the director treated Hageman in a "hostile, intimidating and demeaning" manner. The record supports these conclusions.

In the summer of 1991, the CEC director required Hageman to move to two different working areas, the second of which was a small space already occupied by two other respondents and filled with considerable amounts of office equipment, including a copy machine. The director did not place younger support staff members in a comparable environment, but rather in a "large room." The record also indicates that a CEC computer coordinator denied Hageman's request to learn how to use a particular computer program and to have the software installed on her computer while a younger support staff member had access to the software and received training on it at the CEC. Finally, the CEC director's demonstrations of hostility toward Hageman included the director's abrupt removal of a cassette tape on which Hageman had been recording a support staff meeting in August 1991, although Hageman had requested permission in advance from the assistant director. Throughout the meeting, the CEC director addressed the group in a self-described "emphatic" voice of a schoolteacher admonishing her students.

These circumstances adequately evidenced the Archdiocese's intent and provided a sufficient basis for Hageman reasonably to conclude that the CEC director "did not want * * * [Hageman] employed there anymore."

B. Diane Nightengale

Similar evidence also supports the trial court's determinations regarding Diane Nightengale, a 49-year-old secretary who began working at the CEC in August 1986. Like Hageman, Nightengale requested, but was denied, opportunities to learn how to use a particular computer program that the trial court found "would have been an extremely beneficial tool in their work." Nightengale also shared the same cramped office space with Hageman after July 1991; the CEC director placed Nightengale and another respondent in the office earlier that month. During the period of rearrangements of seating assignments and equipment within the CEC, Nightengale once observed the CEC director "physically kicking things out of her way" in a corridor. Nightengale described the CEC director as "intense" or "angry" on other occasions as well.

On the basis of these occurrences, and other findings noted in the trial court's decision, Nightengale was reasonable in feeling "forced into choosing not to go through the process" of applying for the new support staff positions.

C. Marilyn Fischer

Marilyn Fischer, who turned 46 in the summer of 1991, started working at the CEC in July 1987. Fischer shared some common experiences at the CEC with Hageman and Nightengale, including being placed in the small office with them. The office was so cramped that the three women "had to talk over each other when speaking on the phone, and they could not turn their desk chairs without bumping into each other." Also like Hageman and Nightengale, Fischer unsuccessfully requested training on a computer program that a CEC computer coordinator had taught to a younger support staff member.

The trial court also concluded that the CEC director's plan not to offer part-time positions had an adverse effect on older support staff members who worked part-time. Fischer was one such employee. For the last year of her employment at the CEC, Fischer worked 32 hours per week, rather than full-time.

These determinations were consistent with the record and could have reasonably led Fischer to feel that, as the result of intentional acts by representatives of the Archdiocese, she "didn't have any options" for employment at the CEC by the end of the summer of 1991.

D. Dorothy Pribil

At the age of 65, Dorothy Pribil was the oldest member of the CEC support staff as of the summer of 1991, and she had also served the Archdiocese for the longest period of time--nearly 33 years.

According to Pribil and others at the spring meeting, when the director remarked that the restructuring would cause some to "fall through the cracks," she turned her gaze directly toward Pribil. On subsequent occasions, when the director passed Pribil in the hallways of the CEC, Pribil claims that the director never responded to Pribil's greetings or acknowledged her presence. Consistent with the record, the trial court noted these incidents in its findings in support of Pribil's constructive discharge claim. Also in support of Pribil's claim, the court found that (1) Pribil had received "repeated inquiries regarding retirement" from her supervisors; (2) the CEC failed to provide Pribil with "equal training;" and (3) Pribil was adversely affected by the CEC director's "sterilization of the work environment." The record establishes that: (1) the CEC office manager and the CEC assistant director both made comments to Pribil about the possibility of her retirement; (2) although Pribil requested a computer before the summer of 1991, the CEC did not provide her with one until August 1991; and (3) within a few weeks after the CEC director issued a memo in July 1991, requiring the support staff to minimize the display of personal items around their work areas, Pribil returned from a vacation to find that a plaque of hers (given to her for 25 years of service to the Archdiocese) had been removed from a wall where it had been displayed and was placed instead on her desk.

In addition, like Fischer, Pribil worked less than full-time, so the trial court concluded the lack of part-time positions under the reorganization had a particularly adverse impact on her. Pribil suggested to the CEC director the possibility of part-time positions, but received a negative response.

After the various developments over the summer of 1991, Pribil "didn't feel that there was any place there for [her]" at the CEC. These circumstances provided ample evidence for the trial court's conclusion that Pribil was constructively discharged.

E. Beverly Brand

Beverly Brand turned 58 during the period of the reorganization of the CEC, where she had been working as a media secretary. None of the other support staff members held that position.

As for all of the respondents, the trial court found that the CEC director's "intentional creation of an atmosphere of confusion and turmoil" contributed to Brand's termination at the CEC. For Brand, the court elaborated that the CEC director improperly withheld information regarding a media position opening. In the process of the CEC reorganization, the director informed the respondents that there would be a total of 8 support staff positions under the new arrangement: seven secretaries and one receptionist position. As late as August 30, 1991, the day that the support staff learned of the second phase of the Jeane Thorne interview dates scheduled for the following week, the CEC director indicated to Brand that her position as media secretary would be "incorporated" into two of the new secretarial positions. For this reason, Brand claims that she "didn't feel there was a real job there for * * * [her] to apply" for. Following her termination, Brand learned that the CEC director had created and filled a new "media position," independent of the previously disclosed secretarial positions. The director's nondisclosure of the job opening to Brand provided circumstantial evidence from which to infer the director's intent not to retain Brand on the CEC support staff.

The record also supports the trial court's conclusion that the working conditions at the CEC had become intolerable for Brand. Following the major events of the summer of 1991 at the CEC--meetings about the reorganization, the announcement of a pay freeze, the director's memorandum regarding procedures and appearances in the workplace--Brand often discussed the developments with her coworkers and wrote related entries into a diary. Her entries included comments such as "work has become less than nice" and "[there is] lots of unhappiness [at work]."

In light of these conditions, and the other reasons stated in the trial court's decision, the CEC director should have reasonably foreseen that her conduct would discourage Brand from applying for one of the eight remaining support staff positions.

F. Darlene Gray

Darlene Gray was 56 during the summer of 1991, and she had worked for the Archdiocese since 1979. Between 1985 and September 1991, she held one of two part-time receptionist positions at the CEC.

Relevant to Gray's part-time status, the trial court concluded that the CEC director's consolidation of the receptionist positions into a single full-time position had a particularly adverse effect on Gray. For much of the period that Gray worked for the CEC, she also worked part-time for the AIDS Ministry Office of the Archdiocese. Had Gray pursued and accepted a full-time position with the CEC, she would likely have had to sacrifice her position at the AIDS Ministry, where she earned a higher hourly wage. Gray's decision not to apply for the new full-time position was, therefore, a reasonably foreseeable result of the CEC director's elimination of the part-time receptionist positions.

The Archdiocese argues that Gray could not have been constructively discharged, because Gray did not participate in the first phase of the Jeane Thorne interview process. However, the trial court found that the CEC director never indicated to Gray or others on the support staff "that the first phase of the Jeane Thorne testing had to be completed in June 1991 or was a prerequisite to obtaining one of the newly created positions." When the director determined the dates for the second phase of interviewing, she included Gray on the list of people to whom she sent a memorandum with that information. The changes in the work atmosphere at the CEC over the summer of 1991 ultimately affected Gray no less significantly than the changes affected the other respondents. Gray testified, for example, that whenever she passed the CEC director entering or exiting the building, the director would not greet her. Examining the totality of the circumstances, we conclude that the trial court properly determined that Gray was constructively discharged.

G. Camille Johnson

Camille Johnson was 52 years old at the time of her termination from the CEC, where she had worked since 1981 as the second receptionist, sharing part-time duties with Darlene Gray.

Because Johnson worked part-time, the CEC director's decision to hire one full-time receptionist affected Johnson in an adverse manner. The director acknowledged to Johnson at a meeting in June 1991 that Johnson's job would "cease to be" after the reorganization. Johnson testified that the various developments at the CEC over the summer of 1991 left her anxious and made her view the CEC director as "unapproachable." The trial court's findings regarding Johnson are supported by the record, and the court did not err in concluding that Johnson was constructively discharged.

Because we conclude that the trial court properly ruled in favor of the respondents on their respective age discrimination claims, and the respondents have elected to receive damages only on those claims, we do not decide whether the trial court also correctly determined that the Archdiocese breached an employment contract with the respondents.

II. Damages

A reviewing court will not disturb a damage award "unless its failure to do so would be shocking or would result in plain injustice." Hughes v. Sinclair Mktg, Inc., 389 N.W.2d 194, 199 (Minn. 1986). A future damages award that is supported by the evidence will not be disturbed absent a clear abuse of discretion. Dallum v. Farmers Union Cent. Exchange, Inc., 462 N.W.2d 608, 614 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991).

The Archdiocese challenges the trial court's award of both back pay and front pay to the respondents on their age discrimination claims. A claimant's right to recover such damages is contingent upon that individual making "reasonable efforts" toward mitigation by seeking or accepting similar employment. Soules v. Independent Sch. Dist. No. 518, 258 N.W.2d 103, 105 (Minn. 1977); see also Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988) (duty to mitigate "is not onerous and does not require success").

A. Mary Beth Hageman

The record indicates that Mary Beth Hageman conducted an extensive job search following her termination by the CEC. She sent out between 800 and 1,000 resumes, she reviewed weekly want ads in the local newspapers, and she regularly inquired with the Minnesota job service regarding possible openings. Her efforts eventually led to obtaining a position as an administrative assistant and office manager, earning approximately one dollar less than her hourly wage at the CEC. [4] Under these circumstances, the trial court did not err in determining that Hageman adequately mitigated her damages. The court also acted within its discretion by awarding Hageman an amount of damages reflecting testimony that she intended to work at the CEC until the age of 65.

B. Diane Nightengale

The month following her discharge from the CEC, Diane Nightengale began working in a new secretarial position. In that position, Nightengale works three days a week and earns a slightly higher hourly wage than in her former job with the CEC.

As with Hageman, the trial court also awarded to Nightengale damages that include an amount of front pay reflecting that she would have continued working at the CEC until at least the age of 65. Such an award furthers the purposes of antidiscrimination employment legislation, such as the age discrimination laws on which this claim is based: to discourage discriminatory employment practices and to make victims whole. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S. Ct. 2362, 2371-72 (1975) (back pay award for race-based discrimination claim); Thompson v. Sawyer, 678 F.2d 257, 292 (D.C. Cir. 1982) (front pay award for gender-based claim). In light of these considerations, we conclude that the trial court did not abuse its discretion in awarding compensatory damages to Nightengale.

C. Marilyn Fischer

Within two months of her dismissal from the CEC, Marilyn Fischer started a new clerical job in which she earns a higher rate of pay per hour than she did at the CEC. At the CEC, Fischer had worked approximately 32 hours a week; in her current position, she works approximately 600 hours per year. Before finding her present job, Fischer worked one day a week for six weeks as a receptionist.

Fischer's award included front pay for a period up to her anticipated retirement date at age 65. We conclude that the same principles that justified Nightengale's damages apply equally well to Fischer's age discrimination claim. The trial court, therefore, acted within its discretion in setting Fischer's damages. [5]

D. Dorothy Pribil

For over one year following her discharge from the CEC, Dorothy Pribil inquired with several potential employers, but did not succeed in locating a job. Although Pribil eventually discontinued her job search, the trial court found that she had sufficiently mitigated her damages, noting that her "handicap" may "have likely hindered her efforts at re-employment." Pribil is blind in one eye, has a tumor around the eye, and has a birthmark covering one side of her face. Given these conditions, the trial court did not err in finding that Pribil had sufficiently mitigated her damages.

During the CEC reorganization process, Pribil repeatedly stated that she had no immediate plans for retirement. Although she was 65 at the time of her termination, Pribil testified that she had intended to continue working for the CEC as long as she could. On these facts, we conclude that the decision to base Pribil's damages on a projected retirement age of 70, a common age for mandatory retirement, was within the trial court's discretion. [6]

E. Beverly Brand

Within approximately one month after her termination from the CEC, Beverly Brand found a part-time position at which she worked until December 1991. According to the trial court's findings, Brand was "forced to quit that job," apparently due to eye strain. Brand testified that, in the months that followed, she applied for several jobs and, by March 1992, she obtained a second part-time position with another employer. In determining the amount of damages to award Brand, the trial court considered her stated intent to continue working until 1998, the year she turns 65. The award had the effect of making Brand whole and did not constitute an abuse of the trial court's discretion.

F. Camille Johnson

Camille Johnson has engaged in a sustained job search after her termination from the CEC, in which she has sent out resumes on a weekly basis and gone to several interviews. Finding that Johnson had adequately mitigated her damages, the trial court also noted that Johnson "should be able to find substitute employment in the near future." Accordingly, Johnson's amount of front pay reflects the assumption that she will find employment. We conclude that the total award of damages to Johnson was within the trial court's discretion. [7]

G. Darlene Gray

When Darlene Gray lost her job as a part-time receptionist at the CEC, she retained her other part-time job at the AIDS Ministry Office where she was working 15 hours per week. Within one month of her termination from the CEC, Gray added an additional 10 hours a week at the AIDS Ministry and continued to earn a higher hourly wage than she had at the CEC. Although Gray left her paid position at the AIDS Ministry in late June 1993, the trial court found that her departure was reasonable due to "burnout" due to the stressful nature of the job. By early August 1993, Gray found another job, where, as of the trial, she was working 30 hours per week. Based on these facts, the trial court did not err in finding that Gray had mitigated her damages.

The Archdiocese does not dispute the trial court's determination that Gray intended to continue working at the CEC until the age of 65. Gray's testimony supports this finding: she stated that she would have wanted to work indefinitely at the CEC if not for the reorganization in 1991.

Affirmed.


Footnotes

[1] Before the reorganization, the support staff consisted of 11 people: the seven respondents, two younger employees, and two women over the age of 40 who are not parties to this appeal. The third group of women, who participated in both phases of the employment agency's interviewing, also filed age discrimination claims, but their cases were decided in a prior appeal. Ley v. Archdiocese of St. Paul & Minneapolis, Nos. C5-94-2126, CX-94-2123 (Minn. App. June 20, 1995) (affirming judgments for employees), review denied (Minn. Aug. 30, 1995).

[2] The Archdiocese claims that the trial court adopted the respondents' proposed findings of fact verbatim and that, therefore, the "clearly erroneous" standard should not apply. This court has previously stated that the verbatim adoption of a party's proposed findings and conclusions does not constitute reversible error per se. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). The relevant inquiry in such cases is whether the findings are "detailed, specific and sufficient enough to enable meaningful review by this court." Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). For each of the seven cases here, the findings are sufficiently detailed so that a remand for further findings is not required.

[3] To establish a prima facie discriminatory discharge claim, a claimant must also demonstrate that (1) she is a member of a protected class; (2) she is qualified for the job from which she was discharged; and (3) the employer assigned a nonmember of the protected class to do the same work. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Pribil, 533 N.W.2d at 412. The Archdiocese does not challenge the trial court's determinations with respect to these three elements of the respondents' age discrimination claims.

[4] The trial court found that Hageman's ending salary at the CEC was $9.61 per hour, but calculated her loss of back pay and front pay based on a wage level of $9.67, a figure consistent with the record. Because the district court's erroneous statement of Hageman's ending hourly wage did not affect the court's ultimate calculations of Hageman's damage awards, it does not constitute reversible error.

[5] Although the trial court misstated Fischer's ending salary at the CEC as $8.80 per hour, it calculated her damage award based on the correct ending salary of $8.90 per hour.

[6] The trial court calculated Pribil's damages for front pay and back pay based on the assumption that she would have worked a 32-hour week at the CEC if she had continued to be employed there. Although Pribil's testimony suggests that she may have been working 35 hours per week at the time of her termination, she does not dispute the district court's use of a 32-hour week as a guidepost in determining her total damages. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (issues not argued in briefs are generally deemed waived on appeal).

[7] The trial court incorrectly found that Johnson's ending salary was $8.70 per hour, but calculated her damages based on her actual ending salary of $8.72.