STATE OF MINNESOTA
IN SUPREME COURT
A12-0709
Court of Appeals Page, J.
Concurring in part, dissenting in part, Anderson, J.,
Gildea, C.J., and Dietzen, J.
Darrel Schmitz,
Respondent,
vs. Filed: August 27, 2014
Office of Appellate Courts
United States Steel Corporation,
Appellant.
________________________
Michelle Dye Neumann, Phillip M. Kitzer, Halunen & Associates, Minneapolis,
Minnesota, for respondent.
Douglas R. Christensen, Joel O’Malley, Marilyn Clark, Dorsey & Whitney LLP,
Minneapolis, Minnesota; and
Rodney M. Torbic, United States Steel Corporation, Pittsburgh, Pennsylvania, for
appellant.
Steven Andrew Smith, Cristina Parra, Nichols Kaster, PLLP, Minneapolis, Minnesota,
for amicus curiae National Employment Lawyers Association.
________________________
1
SYLLABUS
1. A retaliatory-discharge claim under the Workers’ Compensation Act, Minn.
Stat. § 176.82, subd. 1 (2012), that seeks only money damages is legal in nature and
therefore carries an attendant right to a jury trial under the Minnesota Constitution.
2. An employer may not assert a Faragher/Ellerth affirmative defense to
vicarious liability for a threat-to-discharge claim under Minn. Stat. § 176.82, subd. 1.
Affirmed.
OPINION
PAGE, Justice.
Respondent Darrell Schmitz commenced an action against his former employer,
appellant United States Steel Corporation (U.S. Steel), alleging, among other things,
retaliatory-discharge and threat-to-discharge claims under the Workers’ Compensation
Act (WCA), Minn. Stat. §§ 176.001-.862 (2012). After various proceedings below, we
granted U.S. Steel’s petition for review on two issues. For the reasons discussed below,
we affirm the court of appeals and hold that: (1) Schmitz has the right to a jury trial on
his retaliatory-discharge claim under Minn. Stat. § 176.82, subd. 1; and (2) U.S. Steel
may not assert a Faragher/Ellerth affirmative defense1 to Schmitz’s threat-to-discharge
claim under Minn. Stat. § 176.82, subd. 1.
1
The United States Supreme Court first recognized this defense in Faragher v. City
of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S.
742 (1998), two decisions released on the same day. The decisions established a standard
for employer vicarious liability for hostile-environment sexual-harassment claims. As a
result of these decisions, a Faragher/Ellerth defense is available to employers as an
(Footnote continued on next page.)
2
In October 2006, Schmitz was employed as a maintenance mechanic for U.S. Steel
in Keewatin, Minnesota. On October 23, 2006, Schmitz injured his back while replacing
a steel liner. The injury occurred when he accessed some equipment and “felt a pop” in
his back, which caused him to fall to his knees. Schmitz immediately reported the
incident to his supervisor, foreman M.B. Schmitz testified that he did not fill out an
accident report that day, that it is the foreman’s job to fill out accident reports, and that
filing an accident report is the first step toward making a claim for workers’
compensation benefits at U.S. Steel.
The next day, Schmitz called M.B. from home to tell him that his side and back
felt strange. M.B. reported the call to his supervisor, L.S., and the two of them
subsequently spoke to Schmitz. Schmitz testified that L.S. warned Schmitz against filing
an accident report:
[L.S.] told me that the company would – was taking a big, dim view if I
would fill out an accident report and they wouldn’t like it at all. And I said,
“What are they going to do, fire me?” He said, “Well, without having to
perjure [myself],” he said, “Yes.”
(Footnote continued from previous page.)
affirmative defense to employee claims involving hostile work environment harassment
by the employee’s supervisors or superiors. An employer who proves that (1) it
exercised reasonable care to prevent and correct workplace harassment and (2) the
victim-employee unreasonably failed to take advantage of employer-established
preventive and corrective mechanisms can satisfy the affirmative defense. Faragher, 524
U.S. at 807; Ellerth, 524 U.S. at 765. We adopted the Faragher/Ellerth affirmative
defense, in the context of hostile-environment sexual-harassment claims brought under
the Minnesota Human Rights Act, in Frieler v. Carlson Marketing Group, Inc., 751
N.W.2d 558, 568 (Minn. 2008).
3
L.S.’s testimony contradicted Schmitz’s. L.S. claimed that he simply asked Schmitz if he
was hurt at work, and Schmitz responded that he was not saying he was injured at work,
just that his back did not feel the same. Two days later, after being examined by his
doctor, Schmitz returned to work without any physical restrictions.
In December 2006, Schmitz injured his back at home. Because of his December
2006 injury, Schmitz was not cleared to return to work until October 2007.2 At that time,
Schmitz had certain work restrictions that prevented him from performing the functions
of a maintenance mechanic, and U.S. Steel claimed that it did not have any job openings
that could accommodate those restrictions. Schmitz never returned to work at U.S. Steel.
In May 2008, Schmitz filed a complaint against U.S. Steel in district court. In the
complaint, Schmitz asserted that U.S. Steel discharged him for seeking workers’
compensation benefits, in violation of Minn. Stat. § 176.82, subd. 1, and refused to offer
Schmitz continued employment, in violation of Minn. Stat. § 176.82, subd. 2. Schmitz
also asserted a disability-discrimination claim under the Minnesota Human Rights Act
(MHRA), Minn. Stat. §§ 363A.01-.43 (2012). The district court granted summary
judgment to U.S. Steel on each of the claims.
Schmitz appealed for the first time, and the court of appeals affirmed the district
court’s grant of summary judgment on Schmitz’s claims under the MHRA, but reversed
2
In the meantime, Schmitz filed a claim for workers’ compensation benefits in
April 2007 for the December 2006 injury. U.S. Steel denied liability. A compensation
judge denied the petition in June 2008 after concluding that Schmitz’s December 2006
injury was not work-related.
4
and remanded on Schmitz’s section 176.82 claims. Schmitz v. U.S. Steel Corp., No.
A10-0633, 2010 WL 4941668, at *1 (Minn. App. Dec. 7, 2010).
On remand, the district court granted Schmitz’s motion to amend the complaint to
add a claim for threatening to discharge him for seeking workers’ compensation benefits
in violation of Minn. Stat. § 176.82, subd. 1. The court also granted U.S. Steel’s pretrial
motion to quash Schmitz’s demand for a jury trial on the retaliatory-discharge and
refusal-to-offer-continued-employment claims. In quashing the demand, the district court
concluded that Minn. Stat. § 176.82 does not provide such a right.
Following a bench trial, the district court: (1) entered judgment for Schmitz on his
threat-to-discharge claim, awarding $15,000 in emotional-distress damages; (2) rejected
Schmitz’s retaliatory-discharge and refusal-to-offer-continued-employment claims;
(3) denied U.S. Steel’s posttrial motion seeking a finding that U.S. Steel satisfied the
Faragher/Ellerth affirmative defense to supervisory misconduct; and (4) granted
Schmitz’s motion for attorney fees in part, awarding $203,112.
On appeal, the court of appeals again affirmed in part, reversed in part, and
remanded. Schmitz v. U.S. Steel Corp. (Schmitz II), 831 N.W.2d 656, 662 (Minn. App.
2013). The court of appeals affirmed the judgment for U.S. Steel on Schmitz’s refusal-
to-offer-continued-employment claim and concluded that Schmitz is not entitled to a jury
trial on that claim because it is equitable in nature. Id. at 679. However, the court of
appeals reversed and remanded the denial of a jury trial on Schmitz’s retaliatory-
discharge claim. It concluded that a retaliatory-discharge claim under Minn. Stat.
§ 176.82, subd. 1, that seeks only money damages is legal rather than equitable in nature
5
and, therefore, Schmitz is guaranteed the right to a jury trial under the Minnesota
Constitution. Schmitz II, 831 N.W.2d at 678. With respect to U.S. Steel’s contention that
it was entitled to assert a Faragher/Ellerth affirmative defense to Schmitz’s section
176.82 threat-to-discharge claim, the court of appeals ruled that there was no legal basis
for permitting such a defense. Schmitz II, 831 N.W.2d at 673.
I.
We turn first to the question of whether Schmitz has the right to a jury trial on his
retaliatory-discharge claim under Minn. Stat § 176.82, subd. 1.3 Minnesota Statutes
§ 176.82, subd. 1, provides a cause of action for retaliatory discharge for seeking
workers’ compensation benefits:
Any person discharging or threatening to discharge an employee for
seeking workers’ compensation benefits or in any manner intentionally
obstructing an employee seeking workers’ compensation benefits is liable
in a civil action for damages incurred by the employee including any
diminution in workers’ compensation benefits caused by a violation of this
section including costs and reasonable attorney fees, and for punitive
damages not to exceed three times the amount of any compensation benefit
to which the employee is entitled.
Minn. Stat. § 176.82, subd. 1. “The right to a jury trial must be found either in the
Minnesota Constitution or provided specifically by statute.” Ewert v. City of Winthrop,
278 N.W.2d 545, 550 (Minn. 1979). Section 176.82 does not expressly provide such a
right. Therefore, the right to a jury trial in this case, if it exists, must arise from the
3
In its petition for review to this court, U.S. Steel raised two issues: (1) whether
there is a right to a jury trial for retaliatory-discharge claims brought under Minn. Stat.
§ 176.82, subd. 1; and (2) whether U.S. Steel could raise a Faragher/Ellerth defense.
Schmitz did not file a petition for cross-review. Thus, only the two issues raised by U.S.
Steel are properly before us.
6
Minnesota Constitution. Whether the Minnesota Constitution provides the right to a jury
trial is a question of law that we review de novo. United Prairie Bank-Mountain Lake v.
Haugen Nutrition & Equip., LLC, 813 N.W.2d 49, 53 (Minn. 2012).
Article I, Section 4, of the Minnesota Constitution provides that: “The right of
trial by jury shall remain inviolate, and shall extend to all cases at law without regard to
the amount in controversy.” Minn. Const. art. I, § 4. “This provision is intended to
continue, unimpaired and inviolate, the right to trial by jury as it existed in the Territory
of Minnesota when our constitution was adopted in 1857.” Abraham v. Cnty. of
Hennepin, 639 N.W.2d 342, 348 (Minn. 2002). “A party is therefore constitutionally
entitled to a trial by jury ‘if a party raising that same theory for relief at the time the
Minnesota Constitution was adopted also would have been entitled to a jury trial.’ ”
United Prairie Bank, 813 N.W.2d at 53 (quoting Olson v. Synergistic Techs. Bus. Sys.,
Inc., 628 N.W.2d 142, 149 (Minn. 2001)).
We have explained, however, that “Article I, Section 4 does not freeze the right to
a jury trial to only those causes of action that existed in 1857.” United Prairie Bank, 813
N.W.2d at 53. To determine the right to a jury trial, we analyze “current causes of action
and pleading practices in the context of the theories of relief . . . and the jurisprudence” at
the time of the enactment of Minnesota’s Constitution. Id. at 53-54. We focus not on
whether the exact cause of action existed, but on the type of action—whether the claim is
an action at law, for which the Constitution guarantees a right to a jury trial, or an action
in equity, for which there is no constitutional guarantee to a jury trial. Id. at 54.
7
U.S. Steel argues that the court of appeals erred in reversing the district court’s
decision to quash Schmitz’s request for a jury trial on his retaliatory-discharge claim.
According to U.S. Steel, the Legislature was entitled to, and did, preclude the right to a
jury trial when it created a new set of rights and remedies under the WCA as part of the
mutual renunciation of common law rights and defenses by employers and employees in
cases involving workplace injuries. In doing so, U.S. Steel asserts, the Legislature did
not specifically include in the WCA the right to a jury trial. U.S. Steel cautions that
allowing Schmitz a jury trial on his retaliatory-discharge claim will treat section 176.82
claims differently than other claims arising under the WCA, contrary to the Act’s
purpose.
Schmitz argues that he has the constitutional right to a jury trial on his retaliatory-
discharge claim under section 176.82, subdivision 1, and that our analysis should not
focus on whether a particular cause of action was identified as a common law action
when the constitution was enacted, but rather on whether the action is of a type that
would have been considered an action at law in 1857. On that basis, he contends that,
because his claim is legal in nature and he is seeking monetary instead of equitable relief,
he is entitled to a jury trial.
We addressed an analogous situation in Abraham, 639 N.W.2d at 354, which held
that an action alleging the tort of retaliatory discharge and seeking only money damages
under the Whistleblower Act, Minn. Stat § 181.932-.935 (2012), and the Minnesota
Occupational Safety and Health Act, Minn. Stat. § 182.669, subd. 1 (2012), is “a cause of
action at law with a constitutional right to jury trial.” Abraham, 639 N.W.2d at 354. In
8
Abraham we traced the origins of wrongful discharge claims, noting that as early as 1861
we had recognized claims for wrongful discharge as “causes of action at law, and they
were consequently tried to juries.” Id. at 350-51. Although Abraham involved statutory
claims that were not available at the time the constitution was adopted, we explained that
our “analysis of the right to a jury trial remains the same: are these claims for retaliatory
discharge seeking only money damages causes of action at law?” Id. at 352. Ultimately,
we held that a retaliatory-discharge claim—a subcategory of wrongful-discharge
claims—sounded in tort and that a tort action seeking money damages is an action at law
with an attendant right to a jury trial. Id. at 352-54.
Schmitz’s claim under Minn. Stat. § 176.82, subd. 1, like Abraham’s claims under
the Whistleblower Act and the Minnesota Occupational Safety and Health Act, are legal
in nature and, like Abraham, Schmitz seeks only monetary damages. Seeing no basis to
treat Schmitz’s claim any differently than the retaliatory discharge claims in Abraham,
we conclude that Schmitz’s claim is a cause of action at law with a constitutional right to
jury trial.
U.S. Steel is generally correct that in enacting the WCA the Legislature created
specific rights and remedies as part of a mutual renunciation of common law rights and
defenses in cases involving workplace injuries. The WCA, which was “ ‘devised to
provide protection to [employees] in the form of compensation for injuries arising from
hazards having a reasonable relation to the employment and which followed as a natural
incident of the work,’ ” was a “ ‘salutary social development’ ” that created a specialized
claims process for workplace injury and an exclusive remedy for the injury. Jones v.
9
Schiek’s Cafe, 277 Minn. 273, 277, 152 N.W.2d 356, 358-59 (1967) (quoting Kiley v.
Sward-Kemp Drug Co., 214 Minn. 548, 555, 9 N.W.2d 237, 241 (1943) (Youngdahl, J.,
dissenting)). However, U.S. Steel’s reading of the Act to preclude the right to trial by
jury for retaliatory-discharge claims under section 176.82, subdivision 1, ignores the
constitutional mandate that guarantees the right to a jury trial for causes of action at law,
as well as the plain language of section 176.82, which refers to the retaliatory-discharge
claim as a “civil action” for damages.
U.S. Steel and the concurrence and dissent rely heavily on Breimhorst v. Beckman
to support their contention that a section 176.82 retaliatory-discharge claim is part and
parcel of the WCA’s comprehensive statutory scheme, one that created new and adequate
remedies based on a mutual renunciation of employer liability and employee tort claims. 4
227 Minn. 409, 35 N.W.2d 719 (1949). However, that reliance is misplaced. In
Breimhorst, we found no right to a jury trial for an injured employee’s claim for workers’
4
In Abraham, we looked to Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54
(Minn. 1993), to identify the “thread run[ning] through [the court’s] line of decisions.”
Abraham, 639 N.W.2d at 349. In Tyroll, an employer/insurer intervened in an injured
worker’s suit against a third-party tortfeasor. 505 N.W.2d at 56. The court held that
either party was entitled to a jury trial on a subrogation claim arising under the WCA. Id.
at 57; see also Abraham, 639 N.W.2d at 349 (“In Tyroll, . . . [w]e concluded that the
claims were common law issues triable to a jury because of the essential nature and
character of the controversy, even though the [WCA] statutorily created the right of the
employer-insurer to intervene and maintain the action as a subrogee long after our
constitution was adopted.”). Tyroll contradicts U.S. Steel’s argument that no jury-trial
right exists for any and all claims connected to the WCA. It is undisputed that Schmitz’s
retaliatory-discharge claim and Tyroll both involve rights arising under the WCA.
Schmitz’s claim involves the right to be free from retaliatory discharge for seeking
workers’ compensation benefits; and Tyroll involves the right to subrogation. As
evidenced by Tyroll, just because a case involves a right arising under the WCA (or is in
some way connected to the WCA) does not mean there is no right to a jury trial.
10
compensation benefits, concluding that a claim for workers’ compensation benefits
differs from “an action at law,” which is “a proceeding before a court and does not
pertain to proceedings before quasi-judicial bodies.” Id. at 434, 35 N.W.2d at 734.
Breimhorst emphasized that when the Legislature abolished the common law work-injury
tort—the claim before the court in Breimhorst—the Legislature replaced the tort claim
with a new statutory remedy under the WCA. Id. at 429, 35 N.W.2d at 732 (“The
workmen’s compensation act, insofar as it provides any compensation to an employe[e]
accidentally injured in the course of his employment, is exclusive of all other
remedies.”); see also McDaniel v. United Hardware Distrib. Co., 469 N.W.2d 84, 85-86
(Minn. 1991) (“Section 176.82 is not a codification of the common law. . . . [It] grants
specific rights and remedies, not previously recognized, to employees who are threatened
with discharge or are discharged for seeking workers’ compensation benefits.”);5 Ewert,
278 N.W.2d at 550 (stating that there is no right to a jury trial on an appeal from a special
assessment because such an appeal is a right established by statute and not a right
existing at common law).
5
The concurrence and dissent cites McDaniel, 469 N.W.2d at 85-86, to support its
contention that because the WCA abolished an injured employee’s common law action
for damages, a retaliatory-discharge claim under Minn. Stat. § 176.82, subd. 1, does not
carry the right to a jury trial. However, McDaniel does not undermine the court’s
declaration in Abraham that “the right to a jury trial applies to all causes of action at law,
regardless of whether the legislature has codified the cause of action.” Abraham, 639
N.W.2d at 354. The concurrence and dissent is wrong. Our conclusion that retaliatory-
discharge claims under Minn. Stat. § 176.82, subd. 1, carry an attendant right to a jury
trial is consistent with Abraham and is rooted in the Legislature’s creation of a civil
action that is legal in nature.
11
Breimhorst involved an injured employee’s claim for workers’ compensation
benefits. Schmitz no longer seeks workers’ compensation benefits. His workers’
compensation claim was denied by a workers’ compensation judge in 2008. In this
action, Schmitz’s claim seeks monetary damages for retaliatory discharge, and so it is
distinguishable from Breimhorst. In fact, the claim for workers’ compensation benefits in
Breimhorst was completely different from the retaliatory-discharge claim here. Chapter
176, which generally provides that claims for workers’ compensation benefits are to be
litigated before an executive branch compensation judge, eliminated common law
remedies, including punitive damages. Within chapter 176, however, Minn. Stat.
§ 176.82, subd. 1, explicitly provides for a civil cause of action and permits punitive
damages. Given its differences from this case, Breimhorst does not support the
concurrence and dissent’s position. There, the cause of action was new, adequate, and
fundamentally different, but here the retaliatory discharge cause of action, while new to
workers’ compensation, is not fundamentally different than such causes of action under
the common law. In actuality, it is fundamentally the same.
Our decision in Abraham reaffirmed Minnesota’s constitutional guarantee of the
right to a jury trial for actions at law regardless of whether the action is grounded in
common law or statute.6 639 N.W.2d at 354. Abraham also clarified that in Minnesota,
6
The concurrence and dissent’s focus is on the fact that workers’ compensation is
not an outgrowth of the common law. 1 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law, ch. 2, Scope (2013). That focus is misplaced. Regardless
of whether the exact cause of action of retaliatory discharge existed at common law,
retaliatory discharge is a cause of action at law because it is the type of action that would
(Footnote continued on next page.)
12
retaliatory-discharge claims are actions at law. Id. at 352-53. We even “recognized that
the legislature abolished a common law cause of action for an employee injured on the
job, replacing it with a remedy under the [WCA],” but explained that we “did not hold in
Breimhorst that the legislature could deny the constitutional right to jury trial when it
codifies, creates, or modifies a cause of action at law.” Id. at 353-54. Abraham also
clarified the court’s earlier decision in Ewert: “We did not hold in Ewert that all statutory
causes of action are equitable actions with no right to jury trial. When a statutory cause
of action is legal in nature . . . there is a constitutional right to jury trial.” Abraham, 629
N.W.2d at 354 (citation omitted).
While the concurrence and dissent contends that a retaliatory discharge claim7
under Minn. Stat. § 176.82, subd. 1, is new, adequate, and fundamentally different from
the common law action for retaliatory discharge, it offers no explanation as to why the
claim is new, adequate, and fundamentally different, other than that the Legislature said
that the WCA replaces common law remedies. The truth is that there is no fundamental
(Footnote continued from previous page.)
have been an action at law in 1857. Whether it existed at common law is not dispositive.
What is dispositive is the Legislature’s creation of a civil action under Minn. Stat.
§ 176.82, subd. 1.
7
The Legislature created a new system to address work-related injuries when it
enacted the WCA. Under that system, an injured employee’s entitlement to workers’
compensation benefits is not subject to a jury determination. Nor is the injured employee
entitled to have an Article IV judge make that determination. While a claim for workers’
compensation benefits is not an action at law, a retaliatory-discharge claim seeking only
money damages is by definition legal in nature. Minn. Stat. § 176.82, subd. 1 (stating
that an employer may be “liable in a civil action” for damages for discharging an
employee for seeking workers’ compensation benefits).
13
difference between the statutory retaliatory discharge remedy in the WCA and its
common law counterpart other than that the Legislature extended the cause of action to
workers’ compensation cases. The Legislature defines the cause of action as a “civil
action for damages,” Minn. Stat. § 176.82, subd. 1, just like its common law analog. The
elements of the cause of action are exactly the same as a common law wrongful discharge
claim, as examined in Abraham.8 In other words, the cause of action here, as defined by
the Legislature in Minn. Stat. § 176.82, subd. 1, is identical in all relevant respects to the
cause of action in Abraham. Because the Minnesota Constitution cannot be abrogated by
statute, the Legislature cannot simply place a workers’ compensation label on a common
law cause of action and do away with the jury-trial requirement. Abraham, 639 N.W.2d
at 354 (“[T]he legislature may expand the right to a jury but it may not withdraw the
8
U.S. Steel and the concurrence and dissent ignore some fundamental tenets of our
decision in Abraham. First, we explained in Abraham that in our Breimhorst decision we
concluded that “when the legislature abolished a common law cause of action and
substituted a remedy that was new, adequate, and fundamentally different from that
which was provided at common law, there was no constitutional right to a jury.”
Abraham, 639 N.W.2d at 353-54 (citing Breimhorst, 227 Minn. at 434, 35 N.W.2d at
734). With the creation of the WCA, the Legislature abolished common law tort claims
for injured workers and provided new remedies. One of those remedies is a claim for
retaliatory discharge, a claim that is not fundamentally different from claims that would
have been available at common law. Therefore, retaliatory-discharge claims brought
under section 176.82, subdivision 1, carry an attendant right to trial by jury. Second, in
Abraham, we made clear that in Breimhorst we did not hold that the Legislature could
deny the constitutional right to jury trial by codifying, creating, or modifying a cause of
action at law. Abraham, 639 N.W.2d at 354. Ultimately, what U.S. Steel and the
concurrence and dissent fail to recognize is that the Legislature, as part of the WCA’s
comprehensive statutory scheme, created a new and adequate remedy for a claim of
retaliatory discharge, a civil cause of action to be litigated as a claim for damages in
district court and not before the quasi-judicial bodies set up to hear workers’
compensation claims.
14
constitutional right to jury trial merely by codifying a common law cause of action.”).
But essentially, the concurrence and dissent contends that the Legislature can do just
that.
What we said in Abraham bears repeating here: “[W]e clarify today that the right
to a jury trial applies to all causes of action at law, regardless of whether the legislature
has codified the cause of action.” Abraham, 639 N.W.2d at 354. Here, the Legislature
codified a cause of action at law. In short, if the Legislature creates a cause of action at
law within a non-remedial statutory scheme, claims under that cause of action are no
different than any other cause of action at law and the claimant is entitled to a jury trial
on the claim.
By the plain language of Minn. Stat. § 176.82, subd. 1, the Legislature created a
civil action for damages for retaliating against an employee for seeking workers’
compensation benefits. By their very nature, civil actions, which are litigated in district
court, are outside the workers’ compensation system and damages awarded on the claim
do not constitute workers’ compensation benefits. Karnes v. Quality Pork Processors,
532 N.W.2d 560, 563 (Minn. 1995) (“A section 176.82 retaliatory discharge action is . . .
a common law cause of action outside the purview of the [WCA].”). Thus, U.S. Steel’s
contention that the WCA’s comprehensive statutory scheme abolished and repealed all
existing common law causes of action is unavailing. With respect to Minn. Stat.
§ 176.82, subd. 1, the Legislature did just the opposite; it codified a civil action for
damages for retaliatory discharge. Therefore, we conclude that an employee who brings
15
an action seeking monetary damages under section 176.82, subdivision 1, for retaliatory
discharge is entitled to a jury trial.
II.
We next address U.S. Steel’s contention that it was entitled to assert a
Faragher/Ellerth defense to Schmitz’s threat-to-discharge claim. The district court
awarded Schmitz $15,000 in emotional-distress damages on his threat-to-discharge claim
under Minn. Stat. § 176.82, subd. 1, crediting Schmitz’s testimony that his foreman’s
supervisor, L.S., told him that the company “would not look favorably upon” Schmitz if
he filed an accident report. U.S. Steel subsequently moved for amended findings, asking
the district court to find that U.S. Steel satisfied the Faragher/Ellerth defense to
supervisor misconduct. The district court concluded that U.S. Steel was not entitled to
assert the defense and denied U.S. Steel’s motion. The court of appeals affirmed,
concluding that U.S. Steel was vicariously liable for its supervisor’s threat to discharge
an employee for seeking workers’ compensation benefits. Schmitz II, 831 N.W.2d at 673.
In Faragher and Ellerth, the United States Supreme Court held that under agency
principles, an employer is liable for actionable discrimination caused by a supervisor.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indust., Inc. v. Ellerth,
524 U.S. 742 (1998). The Court further held, however, that in sexual harassment cases
involving a hostile environment “created by a supervisor with immediate (or successively
higher) authority over the employee,” an employer may raise an affirmative defense to
liability if no tangible employment action is taken and if the employer proves by a
preponderance of the evidence (1) “that the employer exercised reasonable care to
16
prevent and correct promptly any sexually harassing behavior” and (2) “that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at
765; Faragher, 524 U.S. at 807.
In essence, U.S. Steel is asking us to extend the Faragher/Ellerth affirmative
defense to claims beyond hostile environment sexual harassment. We decline to do so.
Therefore, we affirm the court of appeals.
Affirmed.
17
CONCURRENCE & DISSENT
ANDERSON, Justice (concurring in part, dissenting in part).
I concur with Part II of the majority opinion, concluding that an employer may not
assert a Faragher/Ellerth defense to a threat-to-discharge claim under Minn. Stat.
§ 176.82, subd. 1 (2012), but I dissent as to Part I regarding the right to a jury trial under
that statute. While I agree with the majority that we normally look to the nature and
character of an action to determine the right to a jury trial, this analysis does not apply in
situations in which the Legislature has specifically abolished a common law cause of
action and replaced it with a fundamentally new and different remedy. Abraham v. Cnty.
of Hennepin, 639 N.W.2d 342, 353-54 (Minn. 2002). Minnesota Statutes § 176.82, subd.
1, is part of the Workers’ Compensation Act (WCA), and we have repeatedly held that
the Legislature can either grant or withhold the right to a jury trial under the WCA
because the Act creates new remedies that abolish and replace any common law causes of
action. Abraham, 639 N.W.2d at 353-54; Breimhorst v. Beckman, 227 Minn. 409, 434,
35 N.W.2d 719, 734 (1949). Because the Legislature did not provide for a jury trial and
because this right is not guaranteed in this situation under Article I, Section 4, of the
Minnesota Constitution, I conclude that there is no right to a jury trial for claims brought
under Minn. Stat. § 176.82, subd. 1. Therefore, I respectfully dissent.
I.
As the majority discusses, the right to a jury trial must stem from either statute or
the Minnesota Constitution. Ewert v. City of Winthrop, 278 N.W.2d 545, 550 (Minn.
1979). Looking first at whether the right to a trial by jury is protected by the Minnesota
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Constitution, Article I, Section 4, states that “[t]he right of trial by jury . . . shall extend to
all cases at law.” We have clarified that this right attaches not only to causes of action
that existed when the Minnesota Constitution was written, but also to causes of action
that are “the same type of action for which a jury trial existed when the constitution was
adopted, any cause of action at law.” Abraham, 639 N.W.2d at 349. This includes
causes of action in which the Legislature “codifies, creates, or modifies a cause of action
at law.” Id. at 354. But “when the legislature abolishe[s] a common law cause of action
and substitute[s] a remedy that [i]s new, adequate, and fundamentally different from that
which was provided at common law, there [i]s no constitutional right to a jury.” Id. at
353-54; see also Breimhorst, 227 Minn. at 434, 35 N.W.2d at 734 (“[W]hen a certain
action at law is abolished the right of jury trial incident thereto is no longer involved.”).
The WCA is one instance in which we have acknowledged that the Legislature
abolished the common law and replaced it with a new, adequate, and fundamentally
different remedy. Abraham, 639 N.W.2d at 353-54; Breimhorst, 227 Minn. at 436, 35
N.W.2d at 735 (“By the weight of authority, it is recognized that compulsory workmen’s
compensation acts similar to ours do provide a remedy which is an adequate substitute for
the common-law or statutory action for damages for injuries sustained by an employe[e]
in his employment.”); see also McDaniel v. United Hardware Distrib. Co., 469 N.W.2d
84, 85 (Minn. 1991) (“Section 176.82 is not a codification of the common law.”).
“Workers’ compensation is not an outgrowth of the common law or of employers’
liability legislation; it is the expression of an entirely new social principle . . . .” 1 Arthur
Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, ch. 2, Scope (2013); see
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also Elmer H. Blair, Reference Guide to Workmen’s Compensation § 1.00 (1974)
(“Workmen’s compensation statutes today are recognized as substitutes for, not
supplements to, common law tort actions.”).
Thus, the workers’ compensation system is “a unique system which is neither a
branch of tort law nor social insurance.” 1 Larson & Larson, supra, § 1.02. The
separation of workers’ compensation from common law concepts, including the rights,
remedies, and defenses that would be found in tort law, is essential to ensuring that the
workers’ compensation system functions properly. Professor Larson has noted that
“[a]lmost every major error that can be observed in the development of compensation
law, whether judicial or legislative, can be traced . . . to the importation of tort ideas,” in
part due to “thwarting the social purposes of the legislation by the importation of
common-law restrictions.” Id. §§ 1.02, 1.04[4]. The majority incorrectly treats the
WCA, including Minn. Stat. § 176.82, subd. 1, as simply creating new civil actions,
similar to the common law actions that previously existed. The Legislature created new
remedies through the WCA, but these are fundamentally new remedies that abolished the
civil tort actions that previously existed. To treat Minn. Stat. § 176.82, subd. 1, as simply
a new civil action, as the majority does, ignores the unique remedies contained in the
WCA and the purpose behind those remedies.
The Legislature’s intent that the WCA, including Minn. Stat. § 176.82, subd. 1,
serve as a replacement for any previous common law causes of action can be found in
Minn. Stat. § 176.001 (2012). The Legislature specifically states that the workers’
compensation laws found in chapter 176 “are not remedial in any sense,” and that the
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system is “based on a mutual renunciation of common law rights and defenses by
employers and employees alike.” Minn. Stat. § 176.001. The Legislature determined
that the benefits gained by this system, including “the quick and efficient delivery of
indemnity and medical benefits to injured workers at a reasonable cost to the employers,”
id., warranted the loss of common law rights and defenses, including the right to a jury
trial. Therefore, it is clear that the workers’ compensation system, as laid out in chapter
176, was intended to abolish common law causes of action and replace them with an
entirely new system.
II.
Minnesota’s system for workers’ compensation includes Minn. Stat. § 176.82,
subd. 1, the retaliatory-discharge provision at issue here. Federal courts have previously
held that where a retaliatory-discharge claim is created by an express provision within the
workers’ compensation scheme, that retaliatory-discharge claim arises under the state’s
workers’ compensation laws and not the common law. See Humphrey v. Sequentia, Inc.,
58 F.3d 1238, 1246 (8th Cir. 1995) (“[W]here a state legislature enacts a provision within
its workers’ compensation laws and creates a specific right of action, a civil action
brought to enforce that right of action is, by definition, a civil action arising under the
workers’ compensation laws of that state . . . .”). This concept of “arising under” the
workers’ compensation scheme distinguishes between causes of action that are grounded
in a specific workers’ compensation statute and claims that are based on statutes that
cover many types of wrongful discharge or stem from the common law tort system. See
Hanna v. Fleetguard, Inc., 900 F. Supp. 1110, 1118-19 (N.D. Iowa 1995) (distinguishing
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“claims of retaliatory discharge . . . [that] are expressly provided for in [a state’s]
statutory workers’ compensation scheme,” and therefore “arise under” the workers’
compensation laws, from retaliatory discharge claims “fashioned by the courts from a
state’s common law” that do not “arise under” the workers’ compensation scheme even
when applied to retaliation for filing a workers’ compensation claim).1 This means Minn.
Stat. § 176.82, subd. 1, which is located within the WCA and is a specific remedy created
exclusively for retaliation based on filing a workers’ compensation claim, is properly
viewed as a part of the workers’ compensation system, and so it should be analyzed as a
workers’ compensation remedy, not as a general tort remedy.2
The majority claims that the remedy provided in Minn. Stat. § 176.82, subd. 1, is
not fundamentally different from claims available at common law, but this argument
ignores the fact that Minn. Stat. § 176.82, subd. 1, could not have existed at common law.
A remedy for retaliation based on filing a WCA claim did not and could not exist without
the WCA itself. Put simply, Minn. Stat. § 176.82, subd. 1, is one remedy in a new,
1
Although the majority cites Tyroll v. Private Label Chemicals, Inc. as evidence
that we have previously found the right to a jury trial in a case involving rights connected
to the WCA, Tyroll did not involve a cause of action arising under the WCA. 505
N.W.2d 54, 57 (Minn. 1993) (discussing the cause of action as “a routine negligence
personal injury action”). In Tyroll, the employer’s right to subrogation, not the actual
cause of action, was found in the Workers’ Compensation Act. Id. This is a far different
position than the case before us today, in which the cause of action itself, not just a right
that can be applied to other causes of actions, was established by the WCA.
2
See also McDaniel, 469 N.W.2d at 85 (“Section 176.82 is not a codification of the
common law.”); Sipe v. STS Mfg., Inc., 834 N.W.2d 683, 687 (Minn. 2013) (referring to
Minn. Stat. § 176.82 as “an intentional tort created by statute,” and distinguishing it from
an “action originat[ing] at common law”).
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unique system of rights and obligations that was entirely foreign to the common law. As
such it should be treated the same way as the other causes of action in the WCA, which
we have recognized do not include the right to a jury trial because they are fundamentally
different remedies that serve as a replacement for the common law causes of action
abolished by the WCA.3 See Breimhorst, 227 Minn. at 434, 35 N.W.2d at 734.
If the Legislature had intended for Minn. Stat. § 176.82, subd. 1, to operate as a
common law tort or general cause of action for wrongful discharge instead of as part of
the unique system created by the WCA, the Legislature easily could have done so. For
example, instead of creating Minn. Stat. § 176.82, subd. 1, as a provision within the
WCA, and therefore subject to the opening statement of intent found in Minn. Stat.
§ 176.001, the Legislature could have modified the statutes that codified the tort of
retaliatory discharge, such as Minn. Stat. § 181.932 (2012), to simply include retaliation
for filing a worker’s compensation claim. It did not do so. Minnesota Statutes § 176.82,
subd. 1, therefore, is properly analyzed as a unique remedy created under the WCA,
which abolished rather than codified or modified any common law causes of action.4
3
The majority argues that the Legislature cannot abrogate the constitutional right to
jury trial by rebranding a common-law tort as a workers’ compensation claim. True
enough, but this critique misses the point: Minn. Stat. § 176.82, subd. 1 is not a mere
codification of common-law retaliatory discharge. Despite similarities to preexisting tort
law, workers’ compensation is a novel statutory scheme with distinct rights,
responsibilities, and procedures. The Legislature therefore did not abrogate a
constitutional right to jury trial because such a right never existed in the first place.
4
Although historically there was no specific common law action correlating to the
modern remedy provided in Minn. Stat. § 176.82, subd. 1, we have recognized that there
was a general “species” of wrongful-discharge actions at common law that was similar to
(Footnote continued on next page.)
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The majority relies on Abraham to support the assertion of a right to a jury trial
where retaliatory-discharge claims are made. But because Minn. Stat. § 176.82, subd. 1,
abolished and replaced the common law, the framework laid out in Abraham simply does
not apply here. Abraham did not deal with the abolition and replacement of the common
law, but rather with situations in which the Legislature “codifies, creates, or modifies a
cause of action at law.” Abraham, 639 N.W.2d at 354. In Abraham, we stated that
“when the legislature abolishe[s] a common law cause of action and substitute[s] a
remedy that [i]s new, adequate, and fundamentally different from that which was
provided at common law, there [i]s no constitutional right to a jury.” Id. at 353-54. We
specifically distinguished the facts in Abraham from remedies created under the WCA,
noting that workers’ compensation remedies abolish and replace common law causes of
action, and so there is no constitutional right to a jury trial on these claims. Id.5
(Footnote continued from previous page.)
modern retaliatory-discharge claims. Abraham, 639 N.W.2d at 350. The inclusion of
Minn. Stat. § 176.82, subd. 1, in the WCA precluded the use of these general wrongful
discharge actions from ever applying to retaliation claims based on filing a WCA claim.
In that sense Minn. Stat. § 176.82, subd. 1, abolished the common law system that could
have been used to handle retaliatory discharge claims related to workers’ compensation
claims and replaced that common law system with a remedy that is unique to the context
of workers’ compensation.
5
Specifically, in Abraham we had the opportunity to overrule Breimhorst, 227
Minn. at 434, 35 N.W.2d at 734, which held that there was no right to a jury trial for a
remedy created under the WCA. See Abraham, 639 N.W.2d at 353-54. Instead of
overruling Breimhorst, however, we carefully distinguished it in Abraham because
Breimhorst involved the WCA. Abraham, 639 N.W.2d at 353 (stating that the analysis in
Abraham was “not altered by our decision[] in Breimhorst” because the “remedy under
the Workers’ Compensation Act” at issue in Breimhorst was “new, adequate, and
fundamentally different from the common law cause of action”). The majority concludes
(Footnote continued on next page.)
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Therefore, contrary to the majority’s analysis, Abraham bolsters the conclusion that there
is no constitutional right to a jury trial for claims brought under Minn. Stat. § 176.82,
subd. 1, because that statute, as part of the workers’ compensation system, does not
codify, create or modify a cause of action at law. Instead, Minn. Stat. § 176.82, subd. 1,
abolished and replaced common law causes of action with a fundamentally new type of
remedy that is part of the unique statutory system for workers’ compensation, which,
according to Abraham, puts it outside the scope of the right to a jury trial provided by
Article I, Section 4, of the Minnesota Constitution.
III.
Because there is no constitutional right to a jury trial for claims brought under
Minn. Stat. § 176.82, subd. 1, the next task is to determine whether the statute itself
provides a jury trial right. Minnesota courts have recognized that the Legislature has
chosen to withhold the right to a jury trial in Minn. Stat. § 176.82, subd. 1. Snesrud v.
Instant Web, Inc., 484 N.W.2d 423, 427 (Minn. App. 1992) (concluding that a jury trial
was not required because “section 176.82 has no element of a common law claim which
(Footnote continued from previous page.)
that the right to a jury trial exists in the present dispute because the cause of action is
legal in nature and the plaintiff seeks monetary damages, but this analysis would also
lead to the conclusion that the plaintiffs in Breimhorst, in which the action was also legal
in nature and the plaintiffs sought monetary damages, had a right to a jury trial. Thus, it
is essential to recognize that the formulation in Abraham of examining the type of action
and the type of relief to determine if a jury trial right exists does not apply in cases—
including Breimhorst, the case before us today, or other cases arising under the WCA—in
which the remedy designed by the Legislature is a new, adequate, and fundamentally
different substitution for any common law causes of action that could have otherwise
applied.
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could otherwise support the right to a jury trial”), rev. denied (Minn. June 17, 1992). The
text of Minn. Stat. § 176.82, subd. 1, says nothing about granting the right to a jury trial,
and other portions of the WCA do not include the right to a jury trial, even when the
claims governed by those provisions are heard in a district court. See Minn. Stat.
§ 176.301 (2012) (“When a workers’ compensation issue is present in the district court
action, the court may try the action itself without a jury, or refer the matter to the chief
administrative law judge for assignment to a compensation judge.” (emphasis added));
see also Breimhorst, 227 Minn. at 434, 35 N.W.2d at 734 (concluding that a remedy
provided by the WCA did not include the right a jury trial).
Concluding that Minn. Stat. § 176.82, subd. 1, provides for a jury trial right, even
though the Legislature did not provide for such a right, is not in harmony with the rest of
the WCA. See Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 496
(Minn. 2009) (noting that we construe a statute “as a whole so as to harmonize and give
effect to all its parts”). Reading the right to a jury trial into Minn. Stat. § 176.82, subd. 1,
also goes against the intent of the Legislature that all remedies included within chapter
176 are based on the “mutual renunciation of common law rights and defenses by
employers and employees alike.” Minn. Stat. § 176.001. Furthermore, allowing a jury to
calculate the “diminution in workers’ compensation benefits” incurred by the retaliation
under Minn. Stat. § 176.82, subd. 1, subverts an underlying rationale for the workers’
compensation system, which is that a compensation judge can more efficiently and
accurately determine appropriate workers’ compensation benefits than a jury with no
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workers’ compensation experience.6 Thus, the Legislature neither explicitly nor
implicitly intended Minn. Stat. § 176.82, subd. 1, to include the right to a jury trial.
IV.
Because the Legislature did not provide for the right to a jury trial and because this
right is not guaranteed under Article I, Section 4, of the Minnesota Constitution, for
remedies created by statute that abolish and replace common law actions, I conclude that
there is no right to a jury trial under Minn. Stat. § 176.82, subd. 1. Therefore, I
respectfully dissent on this issue.7
GILDEA, Chief Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Anderson.
DIETZEN, Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Anderson.
6
Although perhaps not relevant in this case, Minn. Stat. § 176.82, subd. 1, allows
an employee to seek damages that are based on the workers’ compensation benefits to
which the employee is entitled. Thus, under the majority’s analysis, if workers’
compensation benefits have not yet been awarded to the employee, a jury may be asked
to determine the amount of benefits to which the employee theoretically would be
entitled. The practical challenges associated with a jury attempting to assess a future
stream of benefits to be awarded by a future workers’ compensation court are obvious
and daunting.
7
My conclusion that no constitutional right to a jury trial attaches here should not
be confused with the public policy argument for enacting statutory authority for a jury
trial in these circumstances. The Legislature created the workers’ compensation system
and it is to the Legislature that this public policy issue should be addressed.
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