Scott R. Suter, Webster & Suter, P.A., 301 Degree of Honor Building, 325 Cedar Street, Saint Paul, MN 55101 (for Relator)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]

Appellant Lloyd Wallin challenges the conclusion of the administrative law judge (ALJ) that Wallin's filing of a defamation suit against a former employee who previously filed a sexual harassment complaint constituted reprisal discrimination. Wallin contends (1) the successor ALJ abused his discretion by not granting a new trial when the presiding ALJ became disabled, (2) the record does not support the ALJ's finding of reprisal discrimination, and (3) the punitive damages award is not supported by substantial evidence. We affirm.

In January 1994, Smith filed a complaint against Wallin with the MDHR alleging Wallin had retaliated against her for filing the sexual discrimination charge. The MDHR brought a reprisal discrimination suit against Wallin. The ALJ who presided over the trial retired due to illness before issuing a decision. The successor ALJ made findings of fact, conclusions of law, and issued an order that was reviewed and signed by the presiding ALJ. The successor ALJ concluded that Wallin's defamation action against Smith was an unfair discriminatory practice pursuant to Minn. Stat. § 363.03, subd. 7, and ordered Wallin to pay $2,861.44 in compensatory damages, $3000 in damages for mental anguish and suffering, and $2000 in punitive damages. The successor ALJ denied Wallin's post-hearing motion, and this appeal follows.

Wallin argues that the successor ALJ abused his discretion by not granting a new trial. "The extent of a successor judge's authority to perform judicial duties is a question of law." Kornberg v. Kornberg, 542 N.W.2d 379, 384 (Minn. 1996). Wallin suggests that every case tried by a judge who retires or dies before making findings must be retried; however, that would be inconsistent with the requirement that the rules of procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action." Minn. R. Civ. P. 1.

In this case, the presiding ALJ told the parties that (1) another ALJ would prepare the findings of fact, conclusions of law, and order with the presiding ALJ's guidance on matters of credibility and critical findings, and if that were not possible, the successor ALJ would issue a decision based on the record, and (2) the parties should respond if they had any objections. Both parties responded by letter, and neither party objected. The successor ALJ had jurisdiction to make findings of fact and conclusions of law because the parties waived whatever aid the successor ALJ would have derived from viewing the witnesses. See Great Northern Ry. Co. v. Becher-Barrett-Lockerby Co., 200 Minn. 258, 260, 274 N.W. 522, 523 (1937) (holding that successor judge had jurisdiction to determine case where parties stipulated he could do so because "[p]arties may waive whatever aid the trier of fact derives from the appearance of the witnesses in court"). Moreover, the procedure followed here involved the presiding ALJ, to the extent that he reviewed, approved, and signed the findings of fact, conclusions of law, and order prepared by the successor ALJ.

2. Retaliatory Discharge.

It is an unfair discriminatory practice for any employer to engage in reprisal against an employee who files a charge under the Minnesota Human Rights Act (MHRA). Minn. Stat. § 363.03, subd. 7(1) (1996). Minnesota courts apply a three-step burden-shifting analysis for discrimination claims. Giuliani v. Stuart Corp., 512 N.W.2d 589, 593 (Minn. App. 1994). A plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to present evidence of some legitimate nondiscriminatory reason for his actions. Id. To prevail, the plaintiff must show that the reason stated by the employer is pretextual. Id. The plaintiff may do so "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981).

Wallin testified that he sued for defamation because he had been denied a hearing by the MDHR, he believed the BOD would rely on the MDHR's probable cause finding in making a determination affecting his dental license, and he wanted a venue to deny Smith's allegation that he had touched her inappropriately. Wallin challenges the ALJ's finding that the nondiscriminatory reasons he articulated for filing the defamation action were merely pretext for reprisal discrimination. This court will not reverse an agency decision unless it reflects "an error of law, the findings are arbitrary and capricious, or the findings are unsupported by substantial evidence."[1] Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984).

The fact that Wallin's defamation claim prevailed in conciliation court does not preclude a finding that he engaged in reprisal. Cf. Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1155 (8th Cir. 1989) (concluding that in order to establish a retaliation claim, employee must demonstrate a good faith, reasonable belief that employer's underlying challenged action violated the law, and employee's underlying discrimination claim need not be successful). The record here supports the ALJ's determination that retaliation was a substantial factor motivating Wallin to file the defamation suit against Smith. Two of Wallin's former employees testified that Wallin on other occasions had engaged in retaliatory behavior. One former employee stated that she was afraid of Wallin because "[retaliation] happened every day at the office" and that Wallin talked about anybody who opposed him. Another former employee testified that when Smith left, Wallin stated that he would tell the dental community about the scheduling problems Smith had caused him by quitting abruptly. When that employee refused to make a statement on Wallin's behalf, he told her she "would probably be sorry for that decision." Moreover, a MDHR employee testified that when the MDHR denied Wallin's request for reconsideration of the probable cause finding, Wallin "stated that he was going to see to it that the investigator and the deputy commissioner * * * never worked again."

In addition, the record does not support Wallin's contention that he sued Smith for defamation solely because he was concerned about the status of his dental license and wanted a venue to deny Smith's allegations of sexual harassment. The evidence shows that (1) Wallin consulted with an attorney about bringing the defamation action in January 1992, before the MDHR denied his request for a hearing, (2) he sought damages from Smith in his conciliation court action, (3) he removed the case to district court after obtaining a judgment, but no damages, and (4) Tom Vasaly of the BOD testified that Wallin did not express concern that his dental license could be revoked without a hearing at which he could deny Smith's allegations and that Wallin "wanted the Board of Dentistry to make a determination that he could show the court to assist his defamation action. It wasn't the other way around."

3. Punitive Damages.

Wallin claims that the $2000 punitive damages award is not supported by the evidence. Punitive damages may be awarded on a showing by "clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1(a) (1996). The record here contains clear and convincing evidence that Wallin filed his defamation suit in deliberate disregard for Smith's rights.

Factors to consider in determining a punitive damage award include the seriousness of the public hazard arising from the individual's misconduct and the individual's conduct upon discovery of his misconduct. Id., subd. 3 (1996). This case involves an important public policy consideration: protection of a citizen's right to file a discrimination complaint in good faith without being sued in retaliation. Further, Wallin pursued his defamation claim even after Vasaly told him that the claim could be viewed as retaliatory. The ALJ's award of punitive damages is justified. See Daines v. City of Mankato, 754 F. Supp. 681, 704 (D. Minn. 1990) (concluding that award of $6000 in punitive damages under the MHRA was appropriate because the city's acts of reprisal constituted a serious public hazard and the city continued to act in a retaliatory manner after the plaintiff filed her retaliation charge).

Affirmed.

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

[ ]¹ Wallin contends this court should not accord normal deference to the agency decision here because the successor ALJ did not have the opportunity to assess witness credibility. However, the parties waived whatever aid the successor ALJ would derive from viewing the witnesses personally.