Timothy Wodarck, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1515

Timothy Wodarck,
Appellant,

vs.

Lakota Inc.,
Respondent.

Filed December 30, 2019
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CV-17-999

Daniel Gray Leland, Leland Conners PLC, Minneapolis, Minnesota (for appellant)

Brian F. Kidwell, Kidwell Law Office, LLC, St. Louis Park, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Timothy Wodarck sued his former employer, respondent Lakota Inc., for
wrongful termination. The jury awarded Wodarck, in addition to other damages, $145,600
for lost future earning capacity. Lakota filed a motion for judgment as a matter of law
(JMOL), seeking to overturn the jury’s award for lost future earning capacity , which the

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district court granted. Because consideration of the evidence most favorable to the jury’s
verdict demonstrates insufficient evidence to support the jury’s verdict, we affirm.
FACTS
Wodarck proceeded to a jury trial against his former employer Lakota on his claims
under the Minnesota Whistleblower Act (MWA), Minn. Stat. §§ 181.931-.937 (2018); the
Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.44 (2018); and Minn.
Stat. § 181.79 (2018). Wodarck sought injunctive relief, back pay, front pay, compensatory
damages, attorney fees, and treble damages.
A unanimous seven-person jury primarily found in favor of Wodarck. First, the jury
found Lakota violated the MWA because Wodarck reported in good-faith a violation of
federal law prohibiting entering into a marriage to evade immigration law, which motivated
Lakota to discharge him fro m employment. Second, the jury found Lakota violated the
MHRA by discharging Wodarck from his employment with Lakota based on his marital
status. Third, the jury found Lakota violated Minn. Stat. § 181.79 through unlawful wage
deductions. Based on these findings, the jury awarded Wodarck $31,236.26 in past wage
loss, $145,600 in future lost earning capacity, no compensatory damages, and no
compensation for unlawful deduction from wages due or earned. It is the district court’s
order vacating the $145,600 jury award that we consider.
The district court granted Lakota’s JMOL motion, determining that the evidence did
not support the jury’s award for lost future earning capacity. In reaching its decision, the
district court relied on Ray v. Miller Meester Advert., Inc., 684 N.W.2d 404, 407-08 (Minn.
2004), and Feges v. Perkins Rests., Inc. , 483 N.W.2d 701, 710 ( Minn. 1992), to conclude

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that the award of lost future earning capacity was unsupported as a matter of law . The
district court reasoned that Wodarck “presented no evidence that his termination by Lakota
prevented him from finding reemployment after he lost his [new] job.” The district court
vacated the lost-future-earning-capacity award. This appeal follows.
D E C I S I O N
A party moving for JMOL after a jury verdict need not have “moved for judgment
as a matter of law before submission of the case to the jury.” Minn. R. Civ. P. 50.02. To
grant JMOL, the record must establish that there is “no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue.” Minn. R. Civ. P. 50.01(a). When
addressing a motion for JMOL after a verdict is returned, the district court may “(1) allow
the judgment to stand, (2) order a new trial, or (3) direct entry of judg ment as a matter of
law.” Minn. R. Civ. P. 50.02(a).
We review de novo a district court’s decision to grant or deny a motion for JMOL.
See Kedrowski v. Lycoming Engines, 933 N.W.2d 45, 55 (Minn. 2019); Christie v. Estate
of Christie, 911 N.W.2d 833, 838 n.5 (Minn. 2018). Appellate courts view “the evidence
in a light most favorable to the nonmoving party” and make “an independent determination
of whether there is sufficient evidence to present an issue of fact for the jury.” See Jerry’s
Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd. , 711 N.W.2d 811, 816 ( Minn.
2006). “‘In applying this standard, (1) all the evidence, including that favoring the verdict,
must be taken into account, (2) the evidence is to be viewed in the light most favorable to
the verdict, and (3) the court may not weigh the evidence or judge the credibility of the

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witnesses.’” Kedrowski, 933 N.W.2d at 55 (quoting Lamb v. Jordan , 333 N.W.2d 852,
855 (Minn. 1983)).
As a threshold matter, we note that the parties have conflated two distinct categories
of damages. Front pay, which was a damage specifically pleaded by Wodarck, is distinct
from lost future earning capacity . The district court instructed the jury on lost future
earning capacity, and the jury awarded $145,600 on that instruction. “[A] court may award
future damages, or front pay, for lost compensation that occurs after the time of trial.” See
Ray, 684 N.W.2d at 406. Because of its speculative nature, whether a plaintiff has a right
to front pay “is limited by the plaintiff’s duty to mitigate damages, the evidence presented
concerning the extent of the potential damages, and the principle that front pay awards are
limited to the damages caused by the breach of contract.” Id.
Contrasted with front pay damages, lost future earning capacity is often considered
in the context of personal-injury cases. See, e.g., Young v. Hansen, 209 N.W.2d 392, 395
(Minn. 1973); Herbst v. N. States Power Co. , 432 N.W.2d 463, 468 (Minn. App. 1988) ,
review denied (Minn. Feb. 10, 1989); Kwapien v. Starr, 400 N.W.2d 179, 183 -84 (Minn.
App. 1987). The parties do not point us to any precedential caselaw, and we found none,
addressing lost future earning capacity as a form of damages in a case involving wrongful
termination.1 The district court granted JMOL because the evidence did not support the

1 We did find cases from federal appellate courts that address ed the concept of lost future
earning capacity as a potential damage in wrongful termination. See, e.g., Teutscher v.
Woodson, 835 F.3d 936, 957 -58 (9th Cir. 2016) ; Williams v. Pharmacia, Inc. , 137 F.3d
944, 953 (7th Cir. 1998) (“When reputational injury caused by an employer’s unlawful
discrimination diminishes a plaintiff’s future earnings capacity, she cannot be made whole
without compensation for the lost future earnings she would have receiv ed absent the

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jury’s future damages award. In doing so, the district court explained that Wodarck failed
to establish he would suffer future lost earning capacity. We agree with the dist rict court.
Wodarck obtained comparable employment following his termination from Lakota, which
indicates that his earning capacity was not adversely impacted by his termination from
Lakota. Based on the evidence offered at trial, the district court prop erly granted JMOL
on Wodarck’s claims of lost future earning capacity as an appropriate damage.
As previously noted, Wodarck sought damages for front pay in his complaint.
Though the jury was not specifically instructed as to front pay, we nevertheless consider
whether the district court properly granted JMOL on the jury’s verdict without considering
the law related to front pay as applied to the jury’s award.
For an aggrieved party to receive front pay in a wrongful -termination case relying
on the MHRA, 2 that party has a duty to mitigate, and must establish a breach by the
employer, and that the damages are a natural, usual, and necessary result of that breach.
See Ray, 684 N.W.2d at 406 -07. The evidence presented by Wodarck at trial established

employer’s unlawful activity.”) . These cases are not binding on this court. See State v.
Curtis, 921 N.W.2d 342, 346 (Minn. 2018) (“The court of appeals is bound by supreme
court precedent . . . .”).

2 A similar form of relief would appear to be permitted pursuant to the MWA. “[A]n
employee injured by a violation of section 181.932 may bring a civil action to recover any
and all damages recoverable at law, together with costs and disbursements, including
reasonable attorney’s fees, and may receive such injunctive and other equitable relief as
determined by the court.” Minn. Stat. § 181.935(a). If a violation of the MWA occurs,
then “the court may order any appropriate relief, including but not limited to reinstatement,
back pay, restoration of lost service credit, if appropriate, compensatory damages, and the
expungement of any adverse records of an employee who was the subject of the alleged
acts of misconduct.” Id. (c).

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that he obtained comparable work through a different employer approximately five months
after his wrongful discharge from Lakota. The district court properly concluded that this
evidence demonstrates that the wrongful discharge from his prior employer did not prevent
his future employment. Because Wodarck obtained comparable employment, Wodarck is
not entitled to front pay. See Feges, 483 N.W.2d at 710 (“[T]he plaintiff’s duty to mitigate
damages limits front-pay awards to those cases where the plaintiff has been unable to find
comparable employment after termination.”).
Wodarck also asserted at trial that his new employer discharged him because
someone from Lakota called and made derogatory statements about him. Although we
accept Wodarck’s claims as true based on the posture of this case as an appeal from JMOL,
see Kedrowski, 933 N.W.2d at 55, these assertions are not relevant to Wodarck’s claim s
for unlawful termination and thus cannot support a front pay award. See Ray, 684 N.W.2d
at 408 (“As [the supre me court has] clearly stated, front pay awards are limited to the
damages caused by the employer’s breach.”).
Even considering the evidence most favorable to the jury’s verdict, Wodarck
presented insufficient evidence to support the jury’s future damage award. The district
court properly granted JMOL and vacated the future damage award.
Affirmed.