This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




James B. Reiland,



Marie Lind, et al.,


Filed November 25, 1997


Huspeni, Judge

Hennepin County District Court

File No. 958946

Jesse Gant, III, The Gant Law Office, 500 Flour Exchange Bldg., 310 Fourth Ave. S., Minneapolis, MN 55415 (for appellant)

Kevin P. Hickey, Bassford, Lockhart, Truesdell & Briggs, 3550 Multifoods Tower, Minneapolis, MN 55402 (for respondents)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.



Appellant seeks review of the trial court's award of partial summary judgment to respondents, the denial of appellant's motion to amend, the exclusion of expert testimony, and the finding that there was no sexual harassment or sexual discrimination of appellant. We affirm.


Appellant James Reiland and respondent Marie Lind are both employed as slitter/operators for respondent American National Can Company (ANCC). Appellant contends that since approximately 1982, Lind has degraded him, punched him, sworn at him, kicked him, and exposed her underwear and flesh to him. In 1993, appellant reported to both ANCC and the Minnesota Department of Civil Rights that Lind exposed her breasts to him and pulled down the hip of her pants. After ANCC confronted Lind about the activity, no subsequent incidents were reported.

On October 15, 1993, Lind kicked appellant in the leg while they were waiting to punch out from work. Appellant filed a formal grievance. ANCC officials spoke to Lind about the incident and placed a formal letter of reprimand in her personnel file. Appellant sued Lind and ANCC for battery based on the kicking incident. The complaint also charged ANCC with negligent retention and defamation.

Before trial, appellant moved to amend the complaint to include claims of sexual harassment and sexual discrimination[1] against both Lind and ANCC and to request punitive damages on all claims. The court permitted the addition of claims of sexual harassment and sexual discrimination and the claim for punitive damages on the battery charge against Lind, but denied the addition of all other claims.

Respondents moved for summary judgment to dismiss all counts except the battery claim against Lind. One week later, appellant again moved to amend, this time to include claims of negligent supervision against ANCC and defamation against Lind. The court denied appellant's motions and granted summary judgment dismissing the sexual harassment and sexual discrimination claims against Lind, as well as the punitive damages claim on the battery charge. The court also granted summary judgment dismissing the battery, negligent retention, and defamation claims against ANCC. The remaining claims of battery against Lind and sexual harassment and sexual discrimination against ANCC were bifurcated. A jury trial was held on the battery issue and a bench trial was held on the sexual harassment and sexual discrimination issues.

Before trial, the court granted respondents' motion in limine to exclude from the battery trial expert testimony from psychologist Dr. Patricia Frasier. The court refused to allow her to testify because she could not isolate any of appellant's psychological symptoms that were linked only to the kick from Lind. The expert was allowed to testify during the sexual harassment and sexual discrimination trial.

The jury awarded appellant $2,500 on the battery claim; the court found for ANCC on both the sexual harassment and sexual discrimination claims.


I. Summary Judgment

"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

a. Negligent retention

Negligent retention imposes direct, not vicarious, liability on an employer for the employee's intentional tort if the employer knew or should have known of the employee's propensities. Oslin v. State, 543 N.W.2d 408, 415 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996).

Appellant challenges the award of summary judgment to respondents and contends that ANCC's failure to act on the numerous complaints against Lind led to the incident where Lind kicked him in the shin. We disagree. Appellant never reported any incident of physical contact between himself and Lind to management until the battery incident on October 15. The work-related injuries cited by appellant as evidence of Lind's dangerous propensities were found to be accidents after an ANCC investigation and no intentional fault was ever assigned. In addition, ANCC promptly dealt with the April 1993 incident involving Lind's inappropriate sexual conduct by issuing her a warning. No other incidents have been reported.[2] None of the examples cited by appellant indicates that ANCC officials should have been aware of Lind's violent propensities so that they could have anticipated the kicking incident.

Because the kick was the first official report of inappropriate physical contact between appellant and Lind, and ANCC took swift action, ANCC is not liable for negligent retention. See Kresko v. Rulli, 432 N.W.2d 764, 770 (Minn. App. 1988) (dismissal of negligent retention claim appropriate where there is no evidence that employer knew or should have known about the behavior and took immediate action upon discovery), review denied (Minn. Jan. 31, 1989). The trial court did not err in granting summary judgment.

b. Battery claim against ANCC

Appellant asserts that because ANCC officials refused to examine the wound on his leg after he was kicked, they could not determine an appropriate punishment for Lind and therefore ratified her conduct. The trial court, however, found that by disciplining Lind the next working day, ANCC's actions were prompt and appropriate. We agree.

The refusal by ANCC officials to look at a wound for which appellant did not seek medical attention does not constitute ratification of the kick. ANCC officials were capable of properly disciplining appellant without such an examination. There is no evidence of ratification and the trial court did not err in its application of the law.

c. Sexual harassment against Lind

Under the Minnesota Human Rights Act, it is an unfair employment practice for an employer to discriminate against an employee based on the employee's sex. Minn. Stat. § 363.03, subd. 1(2) (1996). Sexual harassment is a form of sexual discrimination. Continental Can Co. v. State, 297 N.W.2d 241, 249 (Minn. 1980). The trial court granted summary judgment on appellant's sexual discrimination claim against Lind on the basis that appellant and Lind were co-employees. Relying on Stefanski v. R.A. Zehetner, 855 F. Supp. 1030, 1033 (E.D. Wis. 1994) (holding that an employee may bring a Title VII claim against a co-employee only if the co-employee is acting as an agent or supervisor in an official capacity), the trial court held that appellant could not sustain an action for sexual harassment against Lind. We agree with the determination of the trial court.

Minnesota courts, without expressly adopting the Stefanski holding, have focused on the employer's culpability in sexual harassment cases. See, e.g., Continental Can, 297 N.W.2d at 249. Emphasis by both the Human Rights Act and Minnesota case law on the employer's conduct in sexual harassment cases demonstrates, we believe, that unless a harassing co-employee is also acting as an agent or supervisor in an official capacity, an action for sexual harassment will not lie against that person. Dismissal of the sexual harassment claim against Lind was appropriate.

II. Sexual Harassment and Sexual Discrimination against ANCC

In concluding that ANCC did not sexually harass appellant, the trial court made extensive findings of fact and noted that appellant: as a union steward had filed over 100 grievances for himself and others with ANCC; had filed only two formal complaints against Lind; had kept frequent notes on Lind's activities over the past ten years, but was unable to give specific dates and times of many alleged instances of harassment; had on at least ten occasions cast his personal grievance/charges as acts of discrimination or harassment; tended to see conduct that adversely affected him as motivated by discrimination or harassment; exaggerated his testimony; damaged his credibility by failing to remember many things he should have recalled; and testified that in some instances Lind was probably just "kidding around."

In assessing the testimony of appellant's expert, Dr. Patricia Frasier, the trial court found that she did not have significant knowledge of appellant's frequent workplace disputes or the circumstances surrounding his divorce, and, therefore, she could not make a reliable assessment as to which of appellant's psychological symptoms were attributable to workplace incidents. The court also found that appellant probably exaggerated the stories he had told Dr. Frasier.

The sexual harassment must be sufficiently pervasive so as to alter the conditions of employment and create a hostile, intimidating or offensive work environment. Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1977). While it is clear that Lind's conduct was often lewd and vulgar, the instances that the court did find to exist were handled promptly by ANCC officials and did not alter appellant's work environment. Also, there was doubt as to the severity of many of the complaints raised by appellant.

The trial court was in the best position to judge the credibility of witnesses, and its determination that appellant was not the victim of sexual harassment by ANCC is supported by the record.

Appellant also argues that ANCC's disparate treatment of his grievances against Lind in relation to other grievances against male employees constitutes sexual discrimination. The trial court, while finding that the preponderance of the evidence showed that in April 1993 Dier told appellant that "you as a male don't have the same rights as females," also found that ANCC did in fact act promptly in handling appellant's claim against Lind and that this isolated statement of Dier's fell far short of proof that the statement was accepted as company policy. Again, we believe that the record supports the trial court's determination on this issue.[3]

III. Motion to Amend

Whether to permit a party to amend a complaint rests with the discretion of the trial court and will not be reversed absent a clear abuse of discretion. Metag v. K-Mart Corp., 385 N.W.2d 864, 866 (Minn. App. 1986), review denied (Minn. July 23, 1986). We note initially that appellant did not file a motion for a new trial. Therefore, he should be deemed to have waived his right to appeal the trial court's denial of his motion to amend his complaint.[4] See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). However, even our review of this issue on its merits does not aid appellant.

a. Defamation claim

Appellant claims Lind defamed him when she told others that he was "stealing from the company" by making copies on the company-owned copy machine. For a statement to be defamatory, it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm a person's reputation or lower the person's standing in the community. Lewis v. Equitable Life Assur. Soc., 389 N.W.2d 876, 886 (Minn. 1986). Appellant's supervisor, Bill Schonning, stated in his deposition that when Lind informed him that appellant was making copies on the company copy machine, he did not think that it was wrong and did nothing about it because ANCC has no formal rule against such activity. Schonning also stated that Lind never accused appellant of "stealing from the company." There is no other evidence that Lind made such an accusation. The court did not err in concluding that appellant's reputation could not have been harmed by Lind's statements.

Negligent supervision

In order to prove a claim of negligent supervision, an employee must demonstrate that the tortious conduct of an employee was foreseeable and that the employer failed to exercise ordinary care when supervising the employee. Oslin, 543 N.W.2d at 415. Appellant's claim of negligent supervision is based on the same set of facts as his claim for negligent retention. He argues that both Schonning and Dier refused to look at his leg after Lind kicked him and therefore did not take proper steps to investigate the incident and assess the proper punishment. The record supports the trial court's determination that ANCC acted appropriately by reprimanding Lind and placing a letter in her file. There is no evidence that ANCC's conduct after the kicking incident demonstrates lack of ordinary care. Refusal of the court to add a claim for negligent supervision was not an abuse of discretion.

Punitive damages

Because we have earlier determined that appellant's claims of sexual harassment were properly dismissed or denied, we address the issue of punitive damages only in the context of appellant's battery claim against Lind. Punitive damages are appropriate only on clear and convincing evidence that the alleged acts show "deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1 (1996). Punitive damages are an extraordinary remedy and should be awarded only when the conduct shows malicious, willful, or reckless disregard for the rights of others. Wikert v. Northern Sand & Gravel, Inc., 402 N.W.2d 178, 182 (Minn. App. 1987), review denied (Minn. May 18, 1987).

In denying appellant's motion to seek punitive damages, the trial court found confusion in appellant's statements as to Lind's motivation for the kick. While appellant's affidavit described a mean look on Lind's face, which he took to indicate that she kicked him intentionally, appellant's deposition is silent as to a look on Lind's face. Also, appellant described the kick as "medium." Discrepancies between appellant's affidavit and his deposition testimony cast doubt as to the severity and the intent of the kick. The trial court's refusal to allow a claim for punitive damages was not an abuse of discretion.

IV. Exclusion of Expert Testimony

"[T]he trial court has broad discretion in deciding whether testimony by a qualified expert should be received." State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980); see Minn. R. Evid. 702. Again, appellant's failure to move for a new trial results in a waiver of his right to appeal the exclusion of Dr. Frasier's testimony in the battery trial. See Sauter, 389 N.W.2d at 201. However, review on the merits reveals no error. Dr. Frasier could not isolate which of appellant's symptoms were attributable to the kicking incident and which were attributable to appellant's numerous other claims of abuse and harassment at work. Experts may testify as to various possibilities, but must express an opinion as to which possibility likely caused the harm. Bernloehr v. Central Livestock Order Buying Co., 292 Minn. 222, 224, 208 N.W.2d 753, 754 (Minn. 1973). "[M]edical testimony which does nothing more than show a mere possibility, suspicion, or conjecture that such a causal connection exists, without any foundation for the exclusion of other admittedly possible causes, provides no proper foundation for a finding of a causal connection." Id., 208 N.W.2d at 755. Although appellant's expert was providing psychological testimony rather than medical testimony, the concept is still the same: in order to claim damages for a tort, one must be able to prove what damages were caused by that tort. Appellant had extraneous sources of stress in his life;[5] identification of symptoms which resulted solely from the kick was virtually impossible.

The trial court did not abuse its discretion in excluding Dr. Frasier's testimony in the battery trial.


[1] The sexual discrimination claim stemmed from an incident in April 1993 when ANCC's Human Resources Manager, Patrick Dier, refused to hear a complaint filed by appellant and told appellant that men do not have the same rights as women in filing sexual harassment claims.

[2] Although appellant asserts that on two occasions he reported Lind's vulgar and abusive language to ANCC and officials failed to take action, the trial court found that no formal complaint was filed and no report was made. The record supports the trial court's determination.

[3] Other incidents cited by appellant to support the proposition that ANCC treated grievances against females more leniently than grievances against males are factually distinguishable from the present case. Two males involved in a physical altercation with body slams, punches, and headlocks were disciplined more severely than Lind, as was a male involved in touching a female's breasts and legs.

[4] In addition to appellant's failure to file a posttrial motion, a satisfaction of judgment was filed on April 4, 1997. "Once a judgment is satisfied it ceases to exist and there is nothing to vacate." American Sharecom, Inc. v. LDB Int'l Corp., 553 N.W.2d 433, 434 (Minn. App. 1996).

[5] In addition to the battery charge against Lind, appellant complained of numerous incidents of verbal attacks and harassment since 1983; he filed a grievance for sexual harassment in 1993 and experienced a divorce while working at ANCC.