This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-97-1252

C3-97-1670

C8-97-1826

Sandra Landy,

Appellant,

vs.

Upper Lakes Foods, Inc.,

Respondent.

Filed May 5, 1998

Affirmed

Mansur, Judge**

Carlton County District Court

File No. CX95827

Elizabeth A. Storaasli, Lisa D. Wilson, Bye Boyd Agnew, Ltd., 202 West Superior Street, Suite 200, Duluth, MN 55802 (for appellant)

Joseph J. Roby, Jr., Laura Schacht, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent)

Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Mansur, Judge.

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

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

MANSUR, Judge

Appellant Sandra Landy challenges adverse trial court decisions following her trial and her posttrial motions in a lawsuit raising sex discrimination, tort, and whistleblower claims. Respondent Upper Lakes Foods, Inc. filed a notice of review challenging the trial court decision awarding Landy attorney fees and seeking additional costs and disbursements.

FACTS

In 1991, Upper Lakes Foods, Inc., a wholesale food company, bought the inventory and customer base of a competitor for whom Sandra Landy worked. Upper Lakes then hired Landy for a position as a computer operator.

At Upper Lakes, all of the computer room employees were women. These employees received a salary based on a 40-hour workweek, as well as various benefits, but did not receive overtime pay. There was conflicting testimony as to the extent to which they were allowed to take lunch and rest breaks, and whether they were allowed to take time off for family events.

All the warehouse employees were men who were paid on an hourly basis and could earn overtime pay. Warehouse employees were hired by "word-of-mouth," and they started in part-time positions with no benefits. A warehouse employee could achieve full-time status only when a full-time position became available, which usually took 14 to 18 months. Warehouse employees were also eligible for promotions. There was conflicting evidence as to whether Landy applied for a warehouse position and whether male management made comments to the effect that women should not work in the warehouse.

Two incidents occurred in which the president of the company swore at Landy and co-workers. In a third instance, the nightshift warehouse manager exploded with anger toward her and used profane language, including some relating to women, in reacting to a mistake she made. Landy also testified that Upper Lakes retaliated against her in regard to other jobs she sought with the company, raises, shift changes, and the opportunity to become a supervisor because of her complaints about overtime and unfairness. Upper Lakes put forth nondiscriminatory reasons for its actions.

In early 1995, Landy resigned from Upper Lakes to take another position outside of the company. She brought a lawsuit against Upper Lakes in August 1995.

D E C I S I O N

I.

Landy argues she was entitled to a jury trial on her human rights claims. Human rights claims are decided by a judge sitting without a jury. Minn. Stat. § 363.14, subd. 2 (1996). The parties here stipulated that the human rights claims would be tried to the jury on an advisory basis. See Minn. R. Civ. P. 39.02 (when issue not triable of right by jury, court may try with advisory jury).

Landy did not raise this issue below and is precluded from raising it for the first time on appeal. Hampton v. Hampton, 303 Minn. 500, 501, 229 N.W.2d 139, 140 (1975). Further, Landy stipulated to an advisory jury on the human rights claim. Her failure to demand a jury trial constitutes a waiver. Schweich v. Ziegler, 463 N.W.2d 722, 728 (Minn. 1990).

II.

Landy charges Upper Lakes discriminated against her in her attempts to obtain a warehouse job and in the terms and conditions of employment. Minn. Stat. § 363.03, subds. 2(a), 3 (1996).

The trial court findings are regarded as those of a court sitting without a jury and it is not bound by the advisory jury's verdict. Minn. R. Civ. P. 52.01; Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983). Findings are not clearly erroneous if reasonably supported by the evidence in the record as a whole, with due regard given to the trial court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01; Hubbard, 330 N.W.2d at 441.

We first address Landy's claim that she was subjected to sex discrimination through disparate treatment in her attempts to obtain a warehouse position. See Sigurdson v. Isanti County, 386 N.W.2d 715, 719 n.1 (Minn. 1986) (disparate treatment cases allege the employer has treated some employees more favorably based on their race, color, religion, sex, or national origin). As part of her prima facie case, Landy had to show she applied for the warehouse position. Id. at 720. Landy asserts she met this burden by her own testimony and supporting testimony from other witnesses. The trial court, however, had conflicting testimony from Upper Lakes' witnesses who testified she did not ask for a job or show interest in the warehouse position.

The three-part analysis for adjudicating discrimination claims requires direct evidence of discrimination or a prima facie case, an answer, and a rebuttal. Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978) (relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). Based on this conflicting testimony, the trial court found insufficient evidence to establish that Landy actually applied for the warehouse job opening within the one-year statute of limitations. See Minn. Stat. § 363.06, subd. 3 (1996). In a posttrial order, it explicitly found that Landy

did not make an application with [Upper Lakes] to become a warehouse employee for the company. Nor was she subject to an adverse employment decision by [Upper Lakes] to intentionally deny her employment in its warehouse based upon her gender.

The trial court made a credibility determination. Its decision is supported by the record and is not clearly erroneous. Under this finding, Landy was unable to establish a prima facie case of disparate treatment and her claim fails.

Landy also claims she met the first factor for the McDonnell Douglas test because she provided direct evidence of discriminatory motive, namely comments from male management to the effect that women should not work in the warehouse. See Danz, 263 N.W.2d at 399 (describing first McDonnell Douglas factor). She argues that while she produced this direct evidence by both her own testimony and by corroborating testimony, the trial court failed to specifically address this evidence. The trial court found no credible evidence showing that Upper Lakes turned down female applicants for warehouse positions or that Landy was denied a position based on her gender. The trial court heard conflicting evidence and based its decision on evidence in the record; we are unable to reverse its findings.

Landy also claimed she was subject to discrimination through disparate impact. Upper Lakes had a facially neutral method of obtaining applicants through word-of-mouth, resulting in an all-male workforce in the warehouse. See Sigurdson, 386 N.W.2d at 719 n.1 (explaining disparate impact); Minn. Stat. § 363.03, subd. 11 (1996) (discussing burden of proof). Based on the trial court's finding that Landy did not apply for the position, she cannot prevail on the disparate impact claim. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95, 108 S. Ct. 2777, 2789 (1988) (referring to applicants in discussing prima facie case).

Landy contended that she was treated in a discriminatory manner in the terms of employment. The McDonnell Douglas analysis is applicable to these claims as well. Sigurdson, 386 N.W.2d at 720. The court heard conflicting testimony as to whether she suffered loss of benefits such as overtime pay, smoke breaks, lunch breaks, or lack of advancement because of her gender. The trial court again had to make a credibility determination, and its decision that she did not lose benefits based on her gender is not clearly erroneous. We note that her overtime claim was settled prior to trial.

III.

We next address Landy's claim she was subjected to sexual harassment. Minn. Stat. § 363.01, subd. 41 (1996) (defining sexual harassment). The McDonnell Douglas shifting-burden framework applies to sexual harassment cases. Costilla v. State, 571 N.W.2d 587, 594-95 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998). Landy cites three instances in which management used vulgar language in angry outbursts.

The determination of whether claims give rise to a hostile work environment are based on the totality of the circumstances, including "the nature, frequency, intensity, location, context, duration, and object or target." Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987), overruled on other grounds, Cummings v. Koehen, 568 N.W.2d 418, 420 n.2 (Minn. 1997). Comments that are part of casual conversation, accidental, or sporadic do not trigger the discrimination sanction. Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 402 N.W.2d 125, 131 (Minn. App. 1987), aff'd, 425 N.W.2d 235 (Minn. 1988). Under these circumstances, Landy did not make a prima facie case of sexual harassment. See Costilla, 571 N.W.2d at 595 (setting out prima facie case).

IV.

Landy also charged that Upper Lakes retaliated against her for her complaints. Minn. Stat. § 363.03, subd. 7 (1996). To prove retaliation, the complaining party must show she was engaged in statutorily-protected conduct, that there was adverse action by her employer, and there is a causal connection between the two. Hubbard, 330 N.W.2d at 444.

The trial court found it incredible that Landy raised the overtime issue continually because she worked fewer than 40 hours for 65% of the time. Even if she did so, it found no evidence by her wage record or otherwise that she was subject to reprisals. It concluded the evidence did not show she made a report regarding overtime or engaged in other statutorily-protected conduct.

Landy contends the trial court findings are not supported by the evidence based on her testimony. The trial court made its decision based on conflicting evidence and it is not clearly erroneous.

V.

Next, Landy's negligent supervision and retention claims were submitted to the jury. The jury found in favor of Landy but attributed 15% of the negligence to Landy. The trial court then granted judgment notwithstanding the verdict in favor of Upper Lakes.

An employee may assert a claim for negligent retention and supervision relating to alleged sexual harassment only when there is a threat of physical injury or actual injury resulting from the harassment. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn. App. 1996). At trial, Landy stipulated that she suffered no actual or threatened physical injury, and thus she cannot prevail as a matter of law. We need not reach the comparative negligence or punitive damages issues.

VI.

Landy also claimed Upper Lakes intentionally retaliated against her because she reported to management suspected violations of the overtime law. Minn. Stat. § 181.932 (1996) (whistleblower statute). The jury found in favor of Landy, but the trial court granted JNOV on the grounds she did not meet the requirements for a whistleblower claim. When a party brings a reprisal action under the human rights statute, Minn. Stat. § 363.03, as Landy did here, she is precluded from bringing a whistleblower claim for reprisal based on the human rights act's exclusive remedies provision. Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 486 (Minn. 1996). In light of this decision, we do not reach Landy's punitive damages argument as to her whistleblower claim.

VII.

In its notice of review, Upper Lakes contests the trial court's award of attorney fees to Landy on her claim for unpaid overtime wages, which was settled before trial. In assessing this claim, the proper standard is whether the trial court abused its discretion. Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982). The trial court considered the appropriate factors and did not abuse its discretion.

Minn. R. Civ. P. 68 operates to shift the burdens of costs and disbursements when a settlement offer is greater than the amount recovered by the offeree. Upper Lakes challenges its award of costs and disbursements because the court did not include its costs relating to mediation that occurred prior to the Upper Lakes' rule 68 offer of judgment. Upper Lakes has not shown the trial court erred in its ruling.

Affirmed.