This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota

by Janeen Rosas, Commissioner,

Department of Human Rights,



Schult Homes Corporation,


Filed August 31, 1999

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Office of Administrative Hearings

File No. 9-1700-11362-2

Mike Hatch, Attorney General, Erica Jacobson, Assistant Attorney General, 525 Park Street, #200, St. Paul, MN 55103 (for respondent)

Frederick E. Finch, Robin Ann Williams, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, Minneapolis, MN 55402 (for relator)

Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.



Schult Homes Corporation challenges an ALJ's determination that (1) it engaged in employment discrimination based on a perceived disability; (2) the Workers' Compensation exclusivity clause does not bar respondent's claim; and (3) it is not entitled to dismissal because the Minnesota Department of Human Rights (MDHR) failed to make a probable cause determination within one year of filing of the complaint. Schult further questions whether the award of attorney fees and costs was reasonable. Because there is sufficient evidence to support the ALJ's decision, we affirm, but reverse in part on the issue of attorney fees and costs.


"Where more than one inference may be drawn from the evidence or where the record contains conflicting evidence, this court will uphold the ALJ's factual findings." Fahey v. Avnet, Inc., 525 N.W.2d 568, 571 (Minn. App. 1994) (citations omitted), review denied (Minn. Feb. 14, 1995). Findings are supported by substantial evidence if the record as a whole provides evidence that a reasonable mind would view as adequate. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn. 1984). Due deference must be given to the ALJ's opportunity to judge witness credibility. Id. at 59-60.

It is an unfair employment practice for an employer to discharge an employee because of the employee's disability. Minn. Stat. § 363.03, subd. 1(2)(b) (1998).

A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

Minn. Stat. § 363.01, subd. 13 (1998).

In order to maintain a case of employment discrimination, an aggrieved party must establish a prima facie case of discrimination, showing that the employee was (1) a member of a protected class, in this case, a disabled person; (2) qualified for the position held; (3) discharged; and (4) replaced by a non-member of the protected class. Lindgren v. Harmon Glass Co., 489 N.W.2d 804, 808 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). The employer may then produce a legitimate, non-discriminatory reason for the discharge; if successful, the burden shifts back to the employee to establish that the reason is mere pretext. Id.

A disability is an impairment that materially limits a person's ability to perform "major life activities." Minn. Stat. § 363.01, subd. 13. "Major life activities" have been defined to include, in part, "seeing, hearing, speaking, breathing, learning and working." Fuqua v. Unisys Corp., 716 F.Supp. 1201, 1204-05 (D. Minn. 1989) (quoting 45 C.F.R. 384.3(j)(2)(ii) (1995)). Although the employee, Susan Anderson, clearly was not disabled, she brought this matter under the third prong of the definition, claiming that Schult regarded her as having such an impairment. An employer regards an employee as disabled "where the employer perceives or treats the employee as substantially impaired in a major life activity." Wilking v. County of Ramsey, 983 F.Supp. 848, 854 (D. Minn. 1997) (citations omitted). Schult managers told Anderson, a person of limited skills who had a job history as a general laborer, that she had "crippling arthritis," that the company did not want to be responsible for "crippling" her, and that she was unable to perform her general labor job. While reasonable minds could perhaps draw more than one inference from the evidence, we conclude the evidence is adequate to support the ALJ's determination of employment discrimination based on a perceived disability. See Fahey, 525 N.W.2d at 571; Lindgren, 489 N.W.2d at 808.

Anderson neither filed for workers' compensation benefits nor claimed an actual injury or disability; her sole claim was for discrimination in employment, for which the Workers' Compensation Act provides no relief. Thus, because Anderson did not recover or attempt to recover under the Act, the ALJ properly concluded that the exclusivity clause has no bearing on this case. Hunter v. Nash Finch Co., 498 N.W.2d 759, 762 (Minn. App. 1993).

MDHR was dilatory in making a finding of probable cause; however, the remedy for this is left to the discretion of the ALJ. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 702 (Minn. 1996). The ALJ noted that no documents were lost, that timely notice of the charges pending was given, that no witnesses disappeared, and that Schult failed to demonstrate any prejudice. Based on this, the ALJ's decision not to dismiss is not a clear abuse of discretion. See id.

We conclude that the costs for the hearing awarded to the MDHR, while high, are authorized by statute. Minn. Stat. § 363.071, subd. 7 (1998). The ALJ may also order payment of reasonable attorney fees to a successful complainant. Minn. Stat. § 363.071, subd. 2 (1998). An award of attorney fees is within the discretion of the ALJ and will not be set aside unless clearly erroneous. Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 629-30 (Minn. 1988). However, bearing in mind the factors set forth in Hensley v. Eckhart, 461 U.S. 424, 430 n.3, 103 S. Ct. 1933, 1937 n. 3 (1983), we conclude that the award of fees and costs incurred by Anderson's private attorney after his withdrawal from representation are not reasonable.

We therefore affirm the decision of the ALJ, except as to the award of attorney fees and costs incurred by Anderson's attorney after the withdrawal from representation; as to those fees and costs, we reverse and remand for redetermination of these fees and costs.

Affirmed in part, reversed in part, and remanded.