This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-1279

Lawrence Werner,

Relator,

vs.

Teresa Little,

Respondent,

Commissioner of the Department of Human Rights,

Respondent.

Filed March 23, 1999

Affirmed as modified

Kalitowski, Judge

Department of Human Rights

File No. 3-1700-11277-2

Sabin S. Peterson, 247 3rd Avenue South, P.O. Box 583372, Minneapolis, MN 55458 (for relator)

Donald E. Horton, Michelle M. Lore, Horton and Associates, 9 Spruce Tree Centre, 1600 University Avenue West, St. Paul, MN 55104 (for respondent Teresa Little)

Michael A. Hatch, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of the Department of Human Rights)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.

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

KALITOWSKI, Judge

Relator Lawrence Werner contends the administrative law judge (ALJ) erred by finding relator violated the Minnesota Human Rights Act (MHRA) and by awarding damages to respondent, Teresa Little, plus penalties, litigation costs, and attorney fees. Relator argues that substantial evidence does not support either the determination that he discriminated against respondent or the award of punitive damages and attorney fees. We affirm as modified.

D E C I S I O N

Our review in this case is governed by Minn. Stat. § 14.69 (1998), which allows this court to affirm, remand, reverse, or modify an agency decision if the "substantial rights of the petitioners may have been prejudiced" because the administrative conclusions are unsupported by substantial evidence in view of the entire record as submitted. Under the substantial evidence standard, the reviewing court "will affirm the agency's decision if, in considering the entire record, it is supported by evidence that a reasonable mind might accept as adequate." Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 425 N.W.2d 235, 239 (Minn. 1988). Although a reviewing court may reach a contrary conclusion to that arrived at by an administrative body, the court "cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence." Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963).

I.

Relator contends that some of the evidence considered at the administrative hearing concerned events that occurred after the statute of limitations had run for an MHRA action. Because appellant did not raise this issue at the hearing, we will not consider it on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court will generally only consider matters presented and considered by district court).

Relator also complains that significant evidence presented was based on hearsay, and therefore may not be used to support an award. We disagree. An ALJ may admit all evidence that possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs. Lee v. Lee, 459 N.W.2d 365, 369 (Minn. App. 1990). Because the hearsay at issue meets this test, we conclude the ALJ did not err.

Relator contends the testimony of respondent's witness, a tenant of the same apartment building, was irrelevant and therefore should not have been considered by the ALJ. We disagree. Under federal law, evidence showing harassment of other women is directly relevant to the question of whether a hostile environment was created. See Vinson v. Talyor, 753 F.2d 141 (D.C. Cir. 1985) (reversing evidentiary ruling that disallowed the testimony of other women's experiences in a Title VII, employment law context because such testimony could help establish that there was a hostile work environment). Moreover, in Kay v. Peter Motor Co., Inc., 483 N.W.2d 481, 486 (Minn. App. 1992), a hostile work environment case, this court allowed coworker testimony because it was offered to demonstrate the employer's intent to make harassing comments, his knowledge of the offensive nature of his remarks, the hostile working environment he created by making such remarks, and his motive in making the remarks. Because the testimony of the cotenant was also relevant in determining whether there was a hostile environment, we conclude the ALJ did not err by considering the testimony.

Appellant's remaining complaints regarding the sufficiency of the evidence relate to credibility determinations. "We will generally defer to the factfinder's determination regarding credibility, and will not substitute our own judgment." State by Cooper v. Moorhead State University, 455 N.W.2d 79, 83 (Minn. App. 1990). After examining the record, we cannot say the ALJ erred in accepting the testimony of respondent and respondent's witness in concluding relator violated the MHRA.

II.

Relator challenges the attorney fees he was ordered to pay to respondent. The MHRA allows an ALJ to award reasonable attorney fees to an aggrieved party who has suffered discrimination. Minn. Stat. § 363.071, subd. 2 (1998). The attorney fee determination under Minn. Stat. § 363.071, subd. 2, rests within the trial court's discretion and will not be disturbed unless clearly erroneous. Gillson v. State Dep't of Natural Resources, 492 N.W.2d 835, 843 (Minn. App. 1992).

Relator argues the ALJ erred because both the number of hours and the hourly rate charged by respondent's attorneys were unreasonable. We disagree. The ALJ noted that the number of hours charged appeared "reasonable and reasonably necessary and consistent with the representation of Teresa Little" at the different stages of litigation. The ALJ also found the hourly rate charged to be reasonable and appropriate. We conclude the ALJ properly considered the issue, and the resulting attorney fee award was not clearly erroneous.

III.

Relator argues the ALJ erred in awarding punitive damages. Under the MHRA, an ALJ may award punitive damages in an amount not more than $8,500. Minn. Stat. § 363.071, subd. 2 (1998). Punitive damages shall be allowed only upon clear and convincing evidence that the acts show deliberate disregard for the rights or safety of others. Minn. Stat. § 549.20, subd. 1(a) (1998). A defendant has acted with "deliberate disregard" if he or she has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others, and

(1) deliberately proceeds to act in conscious or intentional

disregard of the high degree of probability of injury to the rights or safety of others; or

(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

Minn. Stat. § 540.20, subd. 1(b) (1998).

Here, the ALJ noted the "clear and convincing" standard and found that relator: (1) "recognized his advantage and control of the housing options" of respondent and other female tenants; (2) following respondent's complaints "knew or should have known that his conduct was offensive" but nevertheless continued; and (3) showed a "deliberate disregard for the Human Rights Act requirement that housing environments be free of sexual harassment."

Because the ALJ considered the appropriate factors in determining the punitive damage award, we cannot say the ALJ erred in determining respondent established by clear and convincing evidence that appellant's actions showed a deliberate disregard for her rights. We note, however, that in his supporting memorandum the ALJ concluded a punitive damage award of $2,500 was appropriate, while in his order, the ALJ, without further explanation, awarded $3,000 in punitive damages. We therefore modify the order to an award of $2,500 for punitive damages to comport with the memorandum.

Affirmed as modified.