Bersie v. Zycad Corp.

OPINION NIERENGARTEN, Judge. This is an appeal from a judgment concluding Zycad Corporation did not discharge Jane F. Bersie for reasons based on her sex, or knowingly allow her to endure an intimidating, hostile, or offensive working environment in violation of the Minnesota Human Rights Act. We affirm. FACTS Jane Bersie was hired by Zycad Corporation (Zycad) in March 1982 to work as a computer systems analyst/programmer. Most Zycad employees have backgrounds in electrical engineering because of the company’s clientele and product focus. Bersie has a masters degree in mathematics and programming experience, but does not have an engineering background. Bersie was responsible for maintaining some of Zycad’s computer operating systems and also was required to perform certain programming tasks which became increasingly sophisticated as the months passed and the company developed. Bersie indicated to her supervisor, Harley Horsager that she felt she was not accorded the same respect as the other employees be *289 cause she did not have an engineering-background. Horsager concluded during the first few months of 1983 that Bersie’s work was unsatisfactory and that she was incapable of performing certain technical tasks. According to Horsager, Bersie was not completing projects in a timely manner, did not relate well to co-employees, and was becoming increasingly difficult to supervise. Horsager testified about Bersie’s inability to complete an important programming project despite several new deadlines. He also testified about how Bersie “lost” a bank of computer files which were needed for an important computer show and that he had to spend significant amounts of time assisting Bersie with projects. Hor-sager decided to change Bersie’s work responsibilities so she could work on assignments at which she could succeed and which would help re-establish her self-confidence. In July 1983, Bersie told Horsager she was having problems at work relating to other employees and that she thought she did not have a future with Zycad because she was not an engineer. Bersie said she was unhappy, indicated that maybe she should quit and suggested Zycad might consider firing her instead so she could qualify for unemployment benefits. On August 4 Bersie gave Horsager a letter which indicated she considered herself involuntarily terminated. In a reply letter, Zycad agreed Bersie’s employment was terminated as of her conversation with Horsager on July 30 and enclosed a check which included two weeks severance pay and accrued vacation pay. Several days later, Bersie’s attorney sent a letter to Zy-cad in which he stated Bersie had “reluctantly decided that her sex was a significant factor” in her termination. Bersie summarized incidents of sexual harassment such as an employee calling her “sweetheart” and “doll” several times and placing his hands on her neck and shoulders on a few occasions. The employee engaged in similar conduct with other female employees. According to Bersie, another employee asked Bersie why she did not prostitute herself for a living. Bersie testified that she resented the remarks but admitted they were a failed attempt at humor. Bersie indicated that those individuals and a third employee suggested Bersie and a male customer were “really tight” and asked if they should call her husband, alluding to recent stories about Control Data which had been accused of providing prostitutes for its customers. Bersie cited an incident in which one of those employees allegedly moved his chair close to Bersie’s chair and leaned his body in close proximity to Bersie’s body. Bersie also referred to an incident in which magazine photographs of nude women were posted on the walls of a male employee’s cubicle on that employee’s fortieth birthday. The photographs were removed by the next day at the direction of the company president. Although Bersie met with Horsager on numerous occasions to complain or report about job and performance problems, Ber-sie admitted she never reported any of these incidents to Horsager, who claimed no knowledge of the incidents. In March 1984, Bersie filed a lawsuit against Zycad alleging sexual discrimination and harassment in violation of the Human Rights Act. She also asserted various contract and tort claims based on fraud, misrepresentation, and defamation. An advisory jury returned a special verdict in Zycad’s favor, finding no defamation and no sexual discrimination and/or sexual harassment. The trial court adopted those findings and directed entry of judgment for Zycad. On appeal, this court concluded the trial court’s findings were not adequate and remanded for appropriate findings. See Bersie v. Zycad Corp., 399 N.W.2d 141 (Minn.Ct.App.1987). 1 On remand, the trial court adopted Zy-cad’s proposed findings and conclusions with only minor changes. The court found that Bersie’s termination was based on “le *290 gitimate non-discriminatory business performance-related reasons justified by the facts and circumstances taken as a whole,” including Bersie’s “increasing inability to cope with project deadlines and her inability to get along with co-employees and her manager.” The court concluded Bersie “failed to establish by credible evidence” the factors necessary to prove a prima fa-cie case of sexual discrimination and harassment. Bersie appeals from the February 1987 judgment and the denial of her post-trial motions for amended findings and a new trial. ISSUE Did the trial court err by concluding the appellant did not suffer sexual harassment or discrimination and that her employer did not violate the Minnesota Human Rights Act? . ANALYSIS The trial court’s findings “will not be disturbed if they are reasonably supported by evidence in the record considered as a whole.” Hubbard v. United Press International, Inc., 330 N.W.2d 428, 441 (Minn.1983). See Minn.R.Civ.P. 52.01 (“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”). Sexual Harassment and Discrimination Claims Under the Minnesota Human Rights Act, it is an unfair employment practice for an employer, because of sex, (b) to discharge an employee; or (c) to discriminate against a person with respect to his [or her] hire, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment. Minn.Stat. § 363.03, subd. 1(2) (1982). Sexual harassment is a form of sex-based discrimination and may include conduct or communication which.“has the purpose or effect of substantially interfering with an individual’s employment, * * * or creating an intimidating, hostile, or offensive employment * * * environment.” See id. § 363.01, subds. 10, 10a. In employment cases, the employer must know or should have known of the harassment and fail to take timely and appropriate action. See id. § 363.01, subd. 10a(3); see also Continental Can Co., Inc. v. State, 297 N.W.2d 241, 249 (Minn.1980). Since this is a disparate treatment claim under the Minnesota Human Rights Act, we must apply a three-part analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). See Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn.1986). That analysis requires the complainant to establish a prima facie case of discrimination, the employer to answer that showing, and the complainant to rebut the employer’s evidence of nondiscrimination. See McDonnell Douglas, 411 U.S. at 802-04 , 93 S.Ct. at 1824-25 . Five factors may demonstrate sexual harassment and may be used to establish a prima facie case. 1. Did the employee belong to a protected class? 2. Was the employee subject to unwelcome sexual harassment? 3. Was the harassment complained of based upon sex? 4. Did the harassment complained of affect a “term, condition, or privilege” of employment? (Or, more exactly, in Ber-sie’s case did the harassment create an “intimidating, hostile, or offensive working environment?”) 5. Respondeat superior (did the employer know or should the employer have been aware of the harassment?). Bersie, 399 N.W.2d at 146 (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982)). Bersie asserts her sex discrimination claims under the Minnesota Human Rights Act. For the purposes of our analysis, Bersie is a member of a protected class. While some conduct of Bersie’s co-employees was offensive, the evidence sup *291 ports the trial court’s conclusion that Ber-sie’s employment problems were caused in large part by her “increasing inability to cope with project deadlines and her inability to get along with co-employees and her manager.” When viewed as a whole, the record indicates Bersie’s problems were personal problems unrelated to her status as a female employee. See Continental Can Co., 297 N.W.2d at 249 (“all the circumstances surrounding the conduct alleged to constitute sexual harassment, such as the nature of the incidents and the context in which they occurred, should be examined”). The record indicates that the vast majority of Bersie’s “harassment” and interpersonal problems with her co-employees were not based on sex, but were the result of Bersie’s apparent lack of the requisite technical skills. 2 After reviewing the entire record, we cannot conclude the conduct of Bersie’s co-employees “substantially” interfered with Bersie’s employment or that the incidents were not “sufficiently severe or pervasive so as ‘to alter the conditions of [the victim’s] employment and create an abusive working condition.’ ” See Klink v. Ramsey County, 397 N.W.2d 894, 901 (Minn.Ct.App.1986) yet. for rev. denied (Minn. Feb. 13, 1987) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57 , -, 106 S.Ct. 2399, 2406 , 91 L.Ed.2d 49 (1986)). [T]he prohibition against sex discrimination in [the Human Rights Act] includes sexual harassment which impacts on the conditions of employment when the employer knew or should have known of the employees’ conduct alleged to constitute sexual harassment and fails to take timely and appropriate action. Continental Can Co., 297 N.W.2d at 249 (footnote omitted; emphasis added). Bersie never complained or told Horsager about any of the incidents which Bersie alleges constitute sexual harassment. Hor-sager denies actual knowledge of the incidents, and the record does not indicate the incidents were so obvious or pervasive the employer should have known of the alleged misconduct. See Minn.Stat. § 363.01, subd. 10a(3) (the employer must know or should have known of the existence of the harassment and failed to take timely and appropriate action). Since the evidence does not show Zycad had actual or constructive knowledge of the objectionable incidents, Bersie failed to prove a prima facie case of sex discrimination. Bersie’s discrimination claims and the factual circumstances of her ease were established largely by testimony which the trial court was able to hear and assess firsthand. Employment discrimination cases often involve intricate factual issues in which only the trial court, with its opportunity to observe the witnesses firsthand, can meaningfully assess the weight and credibility of the evidence. We have traditionally accorded great deference to the trial court in making findings of fact, recognizing that much must necessarily be left to its sound judgment and discretion because it has the advantage of fully hearing the testimony and acquiring a thorough familiarity with all the circumstances of the case. An appellate court cannot judge the credibility of a witness or the weight, if any, to be given to testimony. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn.1986) (citations omitted). Bersie’s case was tried before an advisory jury which also determined there was no sexual discrimination or harassment. We must defer to the factfinders’ conclusions when the findings “are reasonably supported by evidence in the record considered *292 as a whole.” See Hubbard, 330 N.W.2d at 441 ; see also Tretter v. Liquipak International, Inc., 356 N.W.2d 713, 715 (Minn.Ct.App.1984) (an appellate court does not “weigh the evidence as if trying the matter de novo,” but determines “if the evidence as a whole sustains the trial court’s findings”). Based on our review of the entire record, we cannot say the trial court erred by concluding Bersie’s termination was not based on her sex, or by concluding Zycad did not allow Bersie “to endure an intimidating and hostile employment environment.” Reversible Error Per Se Bersie contends the trial court improperly adopted Zycad’s proposed findings of fact and conclusions of law because the court adopted the findings almost verbatim. Such adoption by itself is not improper if the record supports the findings and shows the trial court conscientiously considered all the issues. See Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn.Ct.App.1987) pet for rev. denied (Minn. Aug. 19, 1987). The record supports the trial court’s findings. DECISION The trial court did not err by concluding the appellant did not suffer sexual harassment or discrimination in violation of the Minnesota Human Rights Act. The appellant failed to establish a prima facie case of sex discrimination. Affirmed. . Although this court suggested Bersie had made a prima facie showing of sex discrimination, the issue on appeal was limited only to whether the trial court's findings were adequate. See Bersie, 399 N.W.2d at 144 . . The dissent suggests that this opinion’s characterization of the facts is weak. However, a substantial portion of the record deals only with Bersic’s job performance and the difficulties she was experiencing while trying to complete tasks which required sophisticated skills she did not necessarily possess. Moreover, according to a letter from Bersie's attorney sent almost three weeks after Bersie’s termination, Bersie "reluctantly decided that her sex was a significant factor in the [termination] decision," only after she could not discern other reasons for her termination or her employer’s “actual motivation.” According to the Human Rights Act, sexual harassment must "substantially” interfere with an individual’s employment. See Minn. Stat. § 363.01 , subd. 10a(3).