Rasmussen v. Two Harbors Fish Co.

WRIGHT, Justice

(concurring in part, dissenting in part).

Jaime Rasmussen, Jennifer Moyer, and Kathe Reinhold (the Employees) proved that Brian Zapolski’s conduct toward them was sexual harassment that created a hostile work environment in violation of the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.03, subd. 43(3), 363A.08, subd. 2 (2012). Therefore, I respectfully dissent as to the majority’s decision to reverse this aspect of the decision of the court of appeals and remand the Employees’ hostile work environment claims to the district court. However, because I agree with the majority’s conclusion that Zapolski cannot be held individually liable on an aiding and abetting theory, I concur solely in this aspect of the decision.

After a bench trial, the district court found that Zapolski, the Employees’ supervisor and the sole owner of the businesses that employed them, engaged in sexually harassing conduct. With respect to Rasmussen, the district court found that Zapolski touched her posterior with his hands on two occasions. He showed her and other employees a nude photo in a Playboy magazine and compared the woman in the photo to Rasmussen. He suggested that Rasmussen watch a pornographic DVD. He “frequently” asked her about her sexual position preferences. Za-polski described his sexual desires in a “very explicit” manner, and he called Rasmussen sexually suggestive names. The district court also found that Zapolski’s conduct made Rasmussen feel “very uncomfortable,” that it created a “negative work environment” for Rasmussen, and that Rasmussen expressly objected to Za-polski’s conduct. Although one need not leave her employment to sustain a hostile work environment claim, see Pa. State Police v. Suders, 542 U.S. 129, 133-34, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), the district court also found that Zapolski’s conduct “may have been a partial factor in Rasmussen’s decision to leave her employment.”

With respect to Moyer, the district court found that Zapolski grabbed Moyer’s waist, “told her that a girl her age should be having lots of sex,” and questioned her about her sex life. Zapolski showed Moyer a nude photo in a Playboy magazine and compared the photo to .Moyer’s co-worker, Rasmussen. The district court also found that Zapolski sought Moyer’s assistance in soliciting “other young women to have sex with him,” and that he “bragged to her about his sexual prowess.” Zapolski’s conduct, the district court found, created a “negative,” “uncomfortable,” and “hostile” work environment for Moyer.

Finally, with respect to Reinhold, the district court found that “[o]n a daily basis during her brief employment, Zapolski would talk about sex” with Reinhold. Za-polski also talked to her about orgasms. During Reinhold’s orientation at the beginning of her employment, Zapolski held Reinhold’s hand and led her by the hand as he trained her for her tasks. Zapolski called Reinhold at work and asked if she would kiss him when he arrived. He even touched her chest when wood shavings had fallen on her sweater during one of her tasks. When Reinhold encountered Zapol-ski at a local store, Zapolski told Reinhold “it would be a perfect day to watch a football game on television and make love.” In response to Zapolski’s conduct and statements to her, Reinhold told Zapolski that she did not want to talk about sex and “dodged [Zapolski’s] questions.” Accord*803ing to the district court’s findings, Zapolski “created a negative work environment for” Reinhold and made her feel “violated” and “embarrassed.”

A hostile work environment sexual harassment claim under the MHRA requires proof that a party was subject to “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature.” Minn.Stat. § 363A.03, subd. 43 (2012). The Employers do not dispute the district court’s factual findings regarding Zapolski’s conduct toward each of the Employees. The focal point of the parties’ dispute on appeal is whether Zapolski’s conduct had “the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment ... environment.”1 Id., subd. 43(3). When determining this disputed issue, both an objective inquiry and a subjective inquiry are conducted. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). This dual inquiry requires us to consider both whether the conduct is sufficiently severe or pervasive to create an objectively hostile work environment and whether the plaintiff subjectively perceived her employment environment as hostile. Id.

The nature of my dissent is twofold. First, I dissent because, unlike the majority, I would address the standard of review issue presented by this case. In declining, at least expressly, to reach this issue, the majority leaves unanswered the important legal question raised in this appeal — namely the standards of review that apply to an MHRA hostile work environment claim. The question presented “is an important one” on which our court should rule. Minn. R. Civ.App. P. 117, subd. 2(a). A decision by our court will “develop, clarify, or harmonize the law,” and unless resolved by our court, this important question “is likely to recur.” Id., subd. 2(d)(3); see also First Trust Co. v. Leibman, 445 N.W.2d 547, 549 n. 1 (Minn.1989) (stating that in exercising our discretionary review under Minn. R. Civ.App. P. 117 “we may review all issues we see as necessary to decide the case, however presented”). Therefore, I will take no part in playing “kick the can down the road” with a question of law that affects the legal protections of every worker — male and female— in Minnesota. For the reasons addressed below, I conclude that a de novo standard of review is the proper standard of review for the objective component of a hostile work environment claim and that a clearly erroneous standard of review should be employed for the subjective component of that claim.

Second, I dissent because I would not remand this case to the district court for any further proceeding, as none is necessary. Applying a de novo standard of review to the district court’s conclusion that Zapolski’s conduct did not create an objectively hostile work environment, I conclude that the district court erred. And when applying a clearly erroneous standard of review to the district court’s findings that the Employees did not subjectively perceive their work environment as hostile, I also conclude that the district court erred. While I do not dispute the majority’s assessment that the district court’s decision was influenced by errors of law, I nonetheless disagree with the decision to remand. I disagree because even if one or both of the inquiries presented here *804involve issues of fact infected by errors of law, when “the record permits only one resolution of the factual issue,” a remand to the district court is unwarranted. Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); see also Williams v. New Orleans S.S. Ass’n, 688 F.2d 412, 416 (5th Cir.1982) (declining to remand despite district court’s errors of law when “[t]he evidence show[ed] unmistakably that defendants discriminated purposefully” because “[a] remand on that issue would be a waste of time”).

Based on the district court’s findings as to Zapolski’s conduct that the Employees endured and based on the credibility determinations made by the district court, which are not challenged on appeal, the Employees are entitled to prevail on their claims. If the conduct at issue in this case does not unmistakably violate the MHRA, I shudder to consider both the degrading conduct that any employee must endure in a Minnesota workplace and the unreasonably burdensome actions she must take to prove that her workplace was hostile so as to vindicate her legal right to be free from a hostile work environment. On the record before us, applying the appropriate legal standard, we need not delay or deny the Employees a just resolution of their hostile work environment claims.

I.

To perform our appellate review, we first must decide the standards of review that apply to the dual inquiry of whether harassing conduct created an objectively hostile work environment and whether the plaintiff subjectively perceived her work environment as hostile. The appropriate standards of review depend on whether these questions pose questions of law, questions of fact, or mixed questions of law and fact.

We have described a mixed question of law and fact as one that requires an “appellate court to apply the controlling legal standard to historical facts as determined by the trial court.” State v. Wiemasz, 584 N.W.2d 1, 3 (Minn.1998). The objective question before us presents precisely this category of question. Whether the work environment for the Employees was objectively hostile is an inquiry that requires us to “apply the controlling legal standard” (whether the harassing conduct was sufficiently severe or pervasive so as to objectively interfere substantially with an individual’s employment or create an intimidating, hostile, or offensive employment environment) to “historical facts as determined by the trial court” (the district court’s factual findings that relate to the nature, frequency, and circumstances surrounding the conduct).2 See id.; see also Barbour v. Browner, 181 F.3d 1342, 1348 (D.C.Cir.1999) (stating that “[wjhether the harassment in a particular case can be considered ‘severe or pervasive’ is manifestly a mixed question of law and fact” because in answering it, a court “aligns the established historical facts along side the legal rule, and determines whether the facts satisfy the statutory standard”). As such, determining whether the harassing conduct created an objectively hostile work environment is a mixed question of law and fact.

*805This mixed question of law and fact is one that warrants de novo review for at least two reasons. First, a de novo standard of review is preferable when greater scrutiny by an appellate court will assist in developing and clarifying the governing legal standard. See Barbour, 181 F.3d at 1345, 1348. Whether conduct creates an objectively hostile work environment is a standard that “acquirefs] content only through application.” See Ornelas v. United States, 517 U.S. 690, 697, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that de novo standard of review should apply to reasonable-suspicion and probable-cause determinations); see also State v. Chavarria-Cruz, 784 N.W.2d 355, 363 (Minn.2010) (stating that our court reviews “fact-intensive, mixed questions of constitutional law” de novo (citation omitted) (internal quotation marks omitted)); State v. Lemieux, 726 N.W.2d 783, 787 (Minn.2007) (stating that “determinations of reasonable suspicion and probable cause ... should be reviewed de novo on appeal” (citation omitted) (internal quotation marks omitted)). De novo review of a district court’s application of the objective hostility standard brings clarity to the content of the standard and promotes consistency in the standard’s application, resulting in a “significant benefit to employees and employers alike.” Barbour, 181 F.3d at 1348. Moreover, after a district court makes findings regarding historical facts (such as whether certain harassing conduct took place and, if so, under what circumstances), an appellate court is fully capable of considering that conduct and its circumstances to determine whether they created an objectively hostile work environment without disturbing the district court’s ered-ibility determinations that underlie the historical findings of fact.

It is true that each harassment case will present a unique factual situation, which to a degree affects the precedential value of any individual case. Id. De novo review nonetheless permits the development of the legal standard across a body of cases, ultimately ensuring a measure of consistency in the application of the legal standard. See Ornelas, 517 U.S. at 698, 116 S.Ct. 1657; see also Shira A. Scheindlin & John Elofson, Judges, Juries, and Sexual Harassment, 17 Yale L. & Pol’y Rev. 813, 813-15 (1999) (observing that hostile work environment sexual harassment jurisprudence is “both tremendously important and profoundly ambiguous” and arguing that a de novo standard of review would help clarify the law). Without de novo review, variability in community standards, regional norms, or employment settings will undoubtedly result in disparity as to what type of sexually harassing conduct makes a work environment “objectively” hostile. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1292 (8th Cir.1997) (“We emphatically reject the ... conclusion ... that the fact that the culture of the Iron Range mining industry allowed sexual harassment is a mitigating factor for Eveleth Mines.”); see also Rabidue v. Osceola Ref. Co., 805 F.2d 611, 626 (6th Cir.1986) (Keith, J., concurring in part, dissenting in part) (rejecting the notion that a court should consider “ ‘prevailing’ ” attitudes and conduct in the workplace when considering whether a hostile work environment existed, because such an analysis suggests “that a woman assumes the risk of working in an abusive, anti-female environment”).3 The Legislature enacted *806the MHRA to protect all Minnesota workers. A de novo standard of review of whether sexually harassing conduct creates an objectively hostile work environment will help provide this protection and will provide much needed guidance to workers, employers, legal practitioners, and judges4 by promoting predictability and uniform application of the MHRA’s protections throughout the State of Minnesota.

A second, but no less important, reason for employing de novo review is the nature of the rights that the MHRA affords. The Legislature has declared that a workplace free from the conduct prohibited by the MHRA is “a civil right.” Minn.Stat. § 363A.02, subd. 2 (2012). As in the context of mixed questions of law and fact that implicate constitutional rights, the importance of vindicating the right at issue warrants de novo review. See Thompson v. Keohane, 516 U.S. 99, 115, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (noting that independent review of “in custody” determinations protects the right against self-incrimination). Like its federal counterpart, the MHRA is a civil rights act, and therefore serves to effectuate the rights of citizens guaranteed under our constitution. See Minn.Stat. § 363A.02, subd. 1(b) (2012) (stating that the conduct prohibited by the MHRA “threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy”); see also 42 U.S.C. § 2000e-2(a) (2006) (making it unlawful to “discriminate” or “to limit, segregate, or classify” employees based on “race, color, religion, sex, or national origin”); Black’s Law Dictionary 263 (8th ed. 2004) (defining “civil-rights act” as a statute enacted “for the purpose of implementing and giving further force to the basic rights guaranteed by the Constitution”). To characterize the inquiry of whether Zapolski’s conduct created an objectively hostile work environment as a pure question of fact would fail to identify accurately the nature of the question we review and would denigrate the civil right that is at issue.

Vindication of the right to be free from sexual harassment in one’s employment environment should not be postponed in this case. Nor should it be subject to the vagaries of social status, cultural norms, economic status, or the same sexist norms that this civil right intends to eradicate. It is evident when applying a de novo standard of review that the requisite objective threshold has been met. In Nichols v. Azteca Restaurant Enterprises, Inc., the Ninth Circuit reversed the district court and concluded that the complaining employee had established an objectively hostile work environment when he testified that his co-workers “habitually called him sexually derogatory names, referred to him with the female gender, and taunted him for behaving like a woman.” 256 F.3d 864, 871-72 (9th Cir.2001) (applying de novo standard of review).

Yet, we need not go beyond Minnesota’s border to find legal support for the conclusion that the conduct at issue here created an objectively hostile work environment. In 1980, we concluded that a worker had *807been sexually harassed when she was grabbed between the legs by a male coworker on one occasion and when she was subjected to sexually derogatory statements and sexual advances. Cont’l Can Co. v. State, 297 N.W.2d 241, 244, 249 (Minn.1980). Here, the Employees endured Zapolski’s discussions of his sexual experiences and proclivities, were regularly asked about their sexual desires, and were called sexually suggestive names. In addition, each Employee was subjected to at least one incident of Zapolski’s inappropriate and unwanted physical touching. Zapolski also exposed Rasmussen and Moyer to pornographic material in the workplace, and he made Rasmussen the subject for comparison to the pornography in discussions he led with her and her coworkers. Thirty-three years after our decision in Continental Can, it is evident when applying a de novo standard of review to the record before us that the district court erred by concluding that Zapol-ski’s conduct did not create an objectively hostile work environment.

Even if one applies a clearly erroneous standard of review to the objective question before us, the majority’s decision to remand in this case is befuddling. When applying a clearly erroneous standard, we may set aside the district court’s findings of fact if after reviewing the evidence, we are “left with the definite and firm conviction that a mistake has been made.” Minn. Pub. Interest Research Grp. v. White Bear Rod & Gun Club, 257 N.W.2d 762, 783 (Minn.1977). We will not disturb the findings of the district court, however, “if they are reasonably supported by evidence in the record considered as a whole.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 441 (Minn.1983). We give due regard to the district court’s assessment of witness credibility, Minn. R. Civ. P. 52.01, and we view the evidence in a light most favorable to the district court’s findings, Trondson v. Janikula, 458 N.W.2d 679, 682 (Minn.1990). Our review of a district court’s findings of fact is deferential, but our review is not abject. Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1008 (7th Cir.1994). Although generally we remand to the district court when a finding of fact is infected by errors of law, remand is not required when “the record permits only one resolution of the factual issue.” Pullman-Standard, 456 U.S. at 292, 102 S.Ct. 1781.

If one assumes both that the district court’s determination that Zapolski’s conduct did not create an objectively hostile work environment is a finding of fact and that this finding was infected by the legal errors identified by the majority, the finding is nonetheless clearly erroneous and remand remains unnecessary. See League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 877 (5th Cir.1993) (declining to remand when “under controlling law, the evidence [did] not support” the district court’s findings); United States v. Caballero, 936 F.2d 1292, 1297-98 & n. 5 (D.C.Cir.1991) (indicating that remand is unnecessary when a reviewing court can “conclude on the record before it that the trial court’s finding ... was clearly erroneous”); cf. United States v. Maragh, 894 F.2d 415, 420 (D.C.Cir.1990) (remanding -rather than reversing when the court could not conclude that the district court’s finding of fact, which was infected by errors of law, was clearly erroneous).

In finding that Zapolski’s conduct did not create an objectively hostile work environment, the district court relied in part on its finding that the Employees were never explicitly sexually propositioned. This underlying finding of fact is clearly erroneous and contradicted by the district court’s earlier finding that Zapolski asked *808Reinhold “if she would kiss him when he came to work,” to which Reinhold replied “no.” Notwithstanding Reinhold’s refusal, Zapolski’s request is a sexual proposition. Although Moyer was not personally propositioned, the district court found that during Zapolski’s sexual discussions with her, Zapolski “attempt[ed] to have Moyer solicit other young women to have sex with him.” In fact, the district court found that this solicitation request “created a hostile work environment.”

In their defense, the Employers contend that Zapolski touched the Employees inappropriately only on a handful of occasions, that some of Zapolski’s comments were only offensive utterances, and the novel defense theory that because Zapolski did not physically force the Employees to engage in sex with him, his conduct could not have been sufficiently severe or pervasive so as to create an objectively hostile work environment. Although accepted by the district court as persuasive, these contentions merely demonstrate that Zapol-ski’s conduct could have been more severe or pervasive. They cannot, however, be relied on to mitigate conduct that has already reached a level of severity or pervasiveness so as to create an objectively hostile work environment in violation of the MHRA. Even when viewed in a light most favorable to the district court’s findings, the record is replete with Zapolski’s regularly occurring, unwanted, highly inappropriate sexual conduct. The district court’s finding that Zapolski’s conduct was not sufficiently severe or pervasive so as to create an objectively hostile work environment is not “reasonably supported by evidence in the record considered as a whole.” Hubbard, 330 N.W.2d at 441, 444 (finding clear error where the record did “not support the inference, drawn by the trial court”).

I am left with a definite and firm conviction that a mistake has been made. That mistake can and should be remedied today. The district court’s finding that the harassment committed by Zapolski was not sufficiently severe or pervasive so as to create an objectively hostile work environment is clearly erroneous. Therefore, even if the question of whether a work environment is objectively hostile is a question of fact that was influenced by an error of law, the record permits only one resolution of that factual issue. A remand on this issue is not required.

II.

Although the question of whether an employee’s work environment was objectively hostile is a mixed question of law and fact subject to de novo review, the question of whether a particular employee subjectively perceived her work environment as hostile is a question of fact reviewed under the clearly erroneous standard. Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1412-13 (10th Cir.1997) (applying a de novo standard of review to the objective prong of the hostile work environment inquiry, but reviewing “for clear error the [district] court’s factual finding” with regard to subjective hostility). Applying the clearly erroneous standard in this case, it is evident that the district court clearly erred in finding that the Employees did not subjectively perceive their work environment as hostile.

The district court’s finding that Rasmussen did not perceive Zapolski’s conduct as creating a hostile work environment is clearly erroneous because the district court relied on facts that do not establish the full measure of Rasmussen’s perception of her work environment throughout the course of her employment. Notwithstanding its finding regarding Rasmussen’s perception, the dis*809trict court also found, and the record supports, that Rasmussen expressly objected to some of Zapolski’s conduct and that Zapolski’s conduct — including his comparison of Rasmussen to a Playboy centerfold in conversations with her and her co-workers — made Rasmussen feel “violated” and “uncomfortable,” and created a “negative work environment” for Rasmussen.

The district court’s finding that Moyer did not subjectively perceive her work environment as hostile likewise is clearly erroneous. The underlying factual findings on which the district court relied in making this ultimate finding appear to be that Moyer did not tell Zapolski that his conduct was offensive and that Moyer did not seek counseling. But Moyer expressly protested when Zapolski called her his girlfriend. Moreover, the absence of psychological harm cannot be determinative of whether Moyer perceived her work environment to be hostile. See Harris, 510 U.S. at 22, 114 S.Ct. 367 (“So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.” (citation omitted)).

The district court’s finding that Reinhold did not subjectively perceive her work environment as hostile also is clearly erroneous. In making this finding, the district court relied on its determination that Reinhold did not complain about Zapolski’s behavior, the absence of “lasting psychological effects” caused by Zapolski’s conduct, and the fact that Reinhold did not seek treatment or counseling. That Reinhold did not complain about Zapolski’s behavior is contrary to both Reinhold’s testimony and the district court’s findings. Moreover, the district court rejected Reinhold’s hostile work environment claim because she did not suffer “lasting psychological effects” and because she did not seek counseling. But neither is required under the MHRA. Finding Reinhold to be a “substantially credible” witness, the district court determined that Zapolski’s conduct created a “negative work environment” for Reinhold and made her feel “violated” and “embarrassed.” That Reinhold quit after a short tenure marred by daily instances of offensive sexually suggestive comments and conduct is probative of the district court’s clear error.

In sum, the district court’s findings that the Employees did not perceive their work environment as hostile are not reasonably supported by the record when considered as a whole. Because the record permits only one resolution of these factual issues, remand is not warranted. The majority’s decision to do so is alarming because implicit in the decision to remand is the determination that there is a possibility that the record before us does not require the conclusion that the Employees were victims of sexual harassment in violation of the MHRA.5

*810To conclude that Zapolski’s conduct did not create an objectively hostile work environment and to find that the Employees did not subjectively perceive their work environment as hostile would establish a legal standard for hostile work environment sexual harassment claims that closes the door to recovery to all but a very limited class of plaintiffs. This legal standard is contrary to the intended scope of the MHRA’s protections, which we are obligated to “construe[] liberally for the accomplishment of the purposes thereof.” Minn.Stat. § 363A.04 (2012).

To find reasonable support for the district court’s findings in the form of evidence that Zapolski did not always act inappropriately and evidence that Zapolski could have, but did not, perpetrate acts of harassment amounting to explicit demands for sex would trivialize the seriousness of the conduct that Zapolski actually perpetrated. A plaintiff need not show that she was subjected to sexual advances, requests for sexual favors, sexually motivated physical contact, and other verbal or physical conduct or communication of a sexual nature before the harassing conduct can be deemed sufficiently severe or pervasive so as to create an objectively and subjectively hostile work environment. The plain language of Minn.Stat. § 363A.03, subd. 43 allows for any single category of conduct to serve as the basis for a hostile work environment sexual harassment claim.

The majority’s decision will unnecessarily delay, if not deny, the Employees a decision on the Employers’ liability for hostile work environment sexual harassment claims arising from workplace conduct that we long ago deemed unlawful.6 It is a violation of the MHRA to subject any worker — regardless of her economic circumstances and regardless of the employment setting in which she works — to the unwanted sexual conduct and statements that each of the Employees experienced. Sadly, in 2013, these workers who alleged and proved conduct that is at least as egregious as the actionable sexual harassment in Continental Can face the prospect of justice delayed and denied.

. I will refer to the interference with an individual’s employment or the creation of an intimidating, hostile, or offensive employment environment using the general term “hostile work environment.’’

. Some objective standards, such as negligence, are treated as questions of fact. See, e.g., Canada by Landy v. McCarthy, 567 N.W.2d 496, 505 (Minn.1997). “But the class of plaintiffs seeking to recover for negligence is limited to those who have suffered harm,” whereas under the MHRA, whether conduct was sufficiently severe or pervasive so as to create an objectively hostile work environment is “the test of whether legal harm has been suffered.” Harris, 510 U.S. at 24, 114 S.Ct. 367 (Scalia, J., concurring) (emphasis added).

. Judge Damon J. Keith’s dissenting view in Rabidue is the prevailing view in numerous other cases. See, e.g., Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 194 (4th Cir.2000) (rejecting contention that a traditionally rugged or inhospitable work environment provides an exception to the protections in Title VII); Smith v. Sheahan, 189 F.3d 529, *806534-35 (7th Cir.1999) (noting that although "the severity of alleged harassment must be assessed in light of the social mores of American workers and workplace culture” there is not an "assumption-of-risk defense to charges of workplace discrimination”); Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir.1999) ("We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment; indeed, we find this reasoning to be illogical....”).

. MHRA claims are decided “by a judge sitting without a jury.” Minn.Stat. § 363A.33, subd. 6 (2012).

. The majority is critical of my application of the clearly erroneous standard of review to the district court’s findings that the Employees did not subjectively perceive their work environment as hostile. Such criticism is unwarranted. In reaching the conclusion that the district court clearly erred, I have not overlooked certain evidence in the record as the majority contends. A finding is clearly erroneous when, “although there is evidence to support it,” we are "left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); see also, e.g., Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn.1997); Montgomery Ward & Co. v. Cnty. of Hennepin, 482 N.W.2d 785, 788 (Minn.1992); In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972). That legal standard has been met here.

. Contrary to the majority’s contention, its decision marks a retreat from Continental Can. Although we criticized the district court in Continental Can for engaging in supplemental fact finding when reviewing the hearing examiner's decision, 297 N.W.2d at 250, I have not taken that improper liberty here. Rather, my analysis disregards the district court’s errors of law and reviews the district court’s findings in light of the record before us. Moreover, in Continental Can, we addressed the district court’s supplemental fact finding in the course of our analysis of the employer’s liability under the MHRA. Our conclusion that the conduct at issue there "amounted to ... sexual harassment" was reached after "[o]ur independent review of the record.” Id. at 249. Having conducted an independent review of the record before us, it is evident that the same conclusion is warranted here.