Lord v. Hy-Vee Food Stores

#23409-a-LOVRIEN, Circuit Judge

2006 SD 70

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

JOHN LORD, Plaintiff and Appellee

v.

HY-VEE FOOD STORES, Defendant and Appellant

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

HONORABLE WILLIAM J. SRSTKA, JR.
Judge

* * * *

TARA L. GLASFORD Attorney for
Canton, South Dakota plaintiff and appellee.

GARY P. THIMSEN and
MARY A. AKKERMAN of
Woods, Fuller, Shultz & Smith Attorneys for
Sioux Falls, South Dakota defendant and appellant.

* * * *

ARGUED
OCTOBER 5, 2005

OPINION FILED 8/2/06
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LOVRIEN, Circuit Judge

[¶1.] John Robert Lord (Lord) brought suit against his former employer, Hy-

Vee, Inc. d/b/a Hy-Vee Food and Drug #3 (Hy-Vee), claiming wrongful termination

and intentional infliction of emotional distress. A Minnehaha County jury found for

Lord on the wrongful termination claim and awarded damages in the amount of

$19,576. 1 Hy-Vee appeals claiming the trial court did not properly instruct the jury

on the shifting burdens of proof inherent in Hy-Vee's affirmative defense that Lord

was discharged for lawful reasons. Hy-Vee also claims that the jury did not have

sufficient evidence and did not use the proper standard in determining Lord's

damages. We affirm.

FACTS

[¶2.] In early 2000 Lord began working in Sioux Falls for Hy-Vee as a dairy

stock person. He was terminated from that position on November 14, 2000. While

it is undisputed that Lord was an at-will employee, he claimed he was wrongfully

terminated because he reported to Hy-Vee that he had been sexually harassed by a

female co-worker. Lord claimed that in June 2000, while he was working in the

frozen freezer section in the back of the store, fellow employee Delyn Hinkle

(Hinkle) came out of the freezer and "bumped" into him and patted his "left butt

cheek." Brian Salter (Salter), a Hy-Vee supervisor, was with Lord at the time.

Apparently, Lord expected Salter to take appropriate action against Hinkle. When

nothing was done for two to three weeks Lord complained to store manager Brian

Heinz (Heinz). Nothing more occurred at that time.

1. The jury found for Hy-Vee on the claim of intentional infliction of emotional
distress.
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[¶3.] In late June or early July 2000 Lord was accused of touching a female

co-worker, Glenis Hawke (Hawke), in an offensive manner by "swiping his hand

across her buttocks." Lord denied the incident. Store director Paul Koll (Koll)

investigated the accusation. After discussing the matter with Hawke, they decided

the best solution was to reprimand Lord for the inappropriate contact rather than

terminate him. Lord was also required to refrain from any further offensive contact

with Hawke or other female employees.

[¶4.] On November 11, 2000, Lord claimed he was approached by Hinkle.

She was angry after she learned of the accusations of sexual harassment Lord had

made against her relating to the June freezer incident. In fact, Hinkle claimed she

had been sexually harassed by Lord.

[¶5.] Hinkle, Lord, Brent Anderson (Anderson), the frozen dairy manager,

and Jeff Elyra (Elyra), the shift supervisor, all met to discuss the allegations.

During the meeting Lord was instructed to submit to Koll a formal complaint by the

following Monday concerning the June freezer incident involving Hinkle. During

this meeting Hinkle and Lord both claimed they had been sexually harassed in the

workplace by the other. The following Monday morning Koll called Lord to his

office and fired him. However, before deciding to terminate Lord, Hy-Vee claimed

that store director Koll investigated the various allegations made by both Lord and

Hinkle. After examining the facts and interviewing other employees, Koll

concluded that Hinkle's version was most likely true and Lord's was most likely

untrue. Hy-Vee maintained Lord was fired because Koll's investigation concluded

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that Lord misrepresented the June freezer incident, engaged in improper conduct

toward Hawke and possibly sexually harassed Hinkle.

[¶6.] As a result, Lord filed this action against Hy-Vee. A jury awarded him

$19,576 for wrongful termination. Hy-Vee appeals that award claiming the jury

was not properly instructed on the issue of retaliatory discharge. Hy-Vee also

claims that the jury did not have sufficient evidence and did not use the proper

standard in determining Lord's damages.

ANALYSIS AND DECISION

ISSUE ONE

[¶7.] Did the trial court err in failing to instruct the jury on the
shifting burdens of proof inherent in a retaliatory discharge case given
Hy-Vee's affirmative defense that Lord was discharged for lawful reasons?

[¶8.] Hy-Vee claims the trial court committed prejudicial error when it gave

its proposed Jury Instruction No. 30 and refused to give Hy-Vee's requested Jury

Instruction No. 23. We conclude that Hy-Vee did not preserve for appeal its

objection to proposed Jury Instruction No. 30. We further conclude that requested

Jury Instruction No. 23 is not a correct statement of the law and was properly

refused by the trial court. 2

[¶9.] This Court's standard of review concerning jury instructions is well

settled. Behrens v. Wedmore, 2005 SD 79, ¶37, 698 NW2d 555, 570 (citing First

Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448).

We construe jury instructions "as a whole to learn if they provide a full and correct

statement of the law." Id.; Von Sternberg v. Caffee, 2005 SD 14, ¶6, 692 NW2d 549,

2. We note that under our rules the trial court "proposes" instructions and a
party "requests" instructions. SDCL 15-6-51(b).
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552; Kappenman v. Stroh, 2005 SD 96, ¶14, 704 NW2d 36, 40. "The party alleging

error on appeal must show error affirmatively by the record, and not only must the

error be demonstrated, but it must also be shown to be prejudicial error." Tovsland

v. Reub, 2004 SD 93, ¶15, 686 NW2d 392, 398; Morrison v. Mineral Palace Ltd.

Partnership, 1998 SD 33, ¶10, 576 NW2d 869, 872 ("Mere assertions of what a jury

may have concluded are insufficient to show prejudice"). However, we have also

held that a trial court's failure to give a requested instruction that correctly sets

forth the law, in the absence of another instruction which sufficiently does the

same, is prejudicial error. Bauman v. Auch, 539 NW2d 320, 323 (SD 1995).

[¶10.] Hy-Vee's claim of prejudicial error is premised on the court's proposed

Jury Instruction No. 30 and Hy-Vee's requested Jury Instruction No. 23, which the

trial court rejected. Requested Jury Instruction No. 23 provided:

John Robert Lord was an at-will employee of Hy-Vee.
This means his employment could have been terminated
at any time and for any reason or for no reason by either
Lord or Hy-Vee.

Notwithstanding the fact that Lord was an at-will
employee, Hy-Vee could not terminate Lord's employment
solely because he allegedly made complaints about sexual
harassment.

If you find that Lord has established by a preponderance
of the evidence that this employment was terminated
solely because he complained about sexual harassment,
the burden shifts to Hy-Vee to prove the termination
occurred for reasons other than those alleged by Lord.

If you find Lord was terminated for reasons other than his
alleged complaints of sexual harassment, you must find in
favor of Hy-Vee on the wrongful discharge claim.

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Instead of giving Hy-Vee's requested instruction, the trial court gave Jury

Instruction No. 30:

John Robert Lord was an at-will employee of Hy-Vee. Hy-
Vee could terminate his employment at any time for any
reason except retaliation for making complaints about
sexual harassment. If you find that Lord proved that Hy-
Vee terminated his employment because he complained
about sexual harassment, he may recover damages from
the defendant.

[¶11.] On appeal, Hy-Vee argues that the trial court erred because the

instructions given did not inform the jury of Hy-Vee's defense (nonretaliatory

reasons for discharge). Hy-Vee points out that only Jury Instruction No. 23

mentioned that the burden shifted to Hy-Vee to articulate a legitimate reason for

the termination. In Hy-Vee's view, only its requested Jury Instruction No. 23

properly informed the jury that Lord could be terminated if he was fired for reasons

other than making the complaint of sexual harassment.

A. Waiver

[¶12.] SDCL 15-6-51(a) (Rule 51(a)) provides that: "[n]o party may claim

error for the giving or failure to give an instruction unless that party objects stating

distinctly the matter objected to and the grounds for the objection." 3 Here, Hy-Vee

failed to make any objection to the trial court's Jury Instruction No. 30, which Hy-

Vee now claims was inadequate.

[¶13.] Hy-Vee argues in its brief that it "objected to the trial court's refusal to

instruct the jury on [its] affirmative defense;" i.e., the giving of Jury Instruction No.

30 instead of requested Jury Instruction No. 23. In support of that assertion Hy-

3. This rule has been amended effective July 1, 2006.
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Vee cites volume two of the trial transcript, page forty-nine. However, the objection

found there was insufficient to preserve error in this instance because, at that point,

defense counsel was only arguing the motion for a directed verdict. Moreover,

during that discussion counsel only mentioned the jury instructions as they

regarded another theory of recovery involving intentional infliction of emotional

distress. There was no reference to the instructions related to the retaliatory

discharge claim now in issue. Thus, the cited reference does not preserve the jury

instruction issue for appeal. The exact discussion bears repeating:

Both parties having rested and by stipulation of counsel
and consent of the court, I make the following motions at
this time and also the same as though they had been
made at the close of the plaintiff's case. And I move for a
directed verdict on behalf of the defendant. First, I'd like
to address what you just said, Judge. There is absolutely
no evidence whatsoever of intentional infliction of
emotional distress. The court, I think, correctly identifies
the legal elements of that claim in its instruction 27 here,
and the Supreme Court has outlined it in numerous cases,
Dahl, D-a-h-l, v. Sittner, S-i-t-t-n-e-r,; Tibke, T-i-b-k-e, v.
McDougall. And the court has said, and you've got in
your instruction here, it has to be conduct exceeding all
bounds of decency usually tolerated in a civilized society,
not mere insults, indignities, et cetera. The most -- if you
view all of the evidence in this case in the light most
favorable to Mr. Lord -- which of course you have to do in
considering this motion -- is that they disbelieved his
complaints about Delyn Hinkle and fired him. That
doesn't even approach the legal standard. So I'm going to
object to any instructions in that regard and I move that
the court direct a verdict against the plaintiff on that
claim for intentional infliction of emotional distress.

The second thing is the claim of retaliation. He has to
prove under the law that the reason for his discharge was
in retaliation for his having filed that claim. Our
affirmative defense is that we had a legitimate
nondiscriminatiory reason for having terminated him and
that that -- and then he has to show that that articulated

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reason is a sham or a pretext. We have articulated a
nondiscriminatory reason, ie, he sexually harassed and
molested one Glenis Hawke and fabricated a story about
another female employee, Delyn Hinkle. He has offered
no evidence whatsoever to show that those reasons are a
sham or pretextual; therefore, we prevail as a matter of
law.

So I ask the court to direct a verdict on the retaliatory and
the intentional infliction claims.

This argument was insufficient to preserve any objection to Jury Instruction No. 30

relating to retaliatory discharge.

[¶14.] After the trial court heard the foregoing argument, it denied the

motion for directed verdict on the retaliatory discharge claim, and it then began

settlement of the jury instructions. At this point, Lord's attorney, rather than Hy-

Vee's counsel, brought up the shifting burden analysis stating: "Your Honor, if I

may also say there -- I probably should go through this. It is my opinion we might

need an instruction on what [Hy-Vee's counsel] has stated about the affirmative

defense and then the pretextual." The trial court rejected Lord's counsel's

suggestion stating:

We're not going to do anything. All that does is just -- I
disagree with the federal instructions on that, because
you don't need it. Either he was fired for retaliation or he
wasn't, and this pretext and all that kind of stuff I think
is flat unnecessary. 4

[¶15.] Soon thereafter, Hy-Vee's counsel was asked if he had any objections to

the court's instructions. Although Hy-Vee's counsel made a few objections, they all

related to the intentional infliction of emotional distress claim. Hy-Vee's counsel

stated:

4. As is explained herein, the trial judge was correct in his analysis.
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Yes. I'll be very brief. We discussed it off the record. In
accord with my motion for directed verdict, I'm going to
object to any instructions or reference in the instructions
or verdict form to intentional infliction of emotional
distress or damages for that count. Specifically, I see the
phrase. So I'm objecting to that part of the instruction 22
that refers to intentional infliction of emotional distress
and instructions 26, and 27, 28, 29 and object to the
verdict form insofar as it refers to severe emotional
distress, intentional infliction or damages to that.

* * *

We'll object to the court's failure to give our proposed or
requested jury instruction number 18.

However, Hy-Vee's counsel never objected to Jury Instruction No. 30. When the

trial court specifically asked for any other objections, none were given. Thereafter,

the trial court overruled all requested instructions stating: "All instructions not

given are refused. Instructions are settled."

[¶16.] Therefore, it is clear from the record that Hy-Vee never objected to the

trial court's proposed Jury Instruction No. 30. As a result, the only error that may

have been preserved for appeal was the trial court's refusal to give requested Jury

Instruction No. 23.

B. It was unnecessary to instruct the jury on Hy-Vee's
"affirmative defense" and the burden shifting analysis.

[¶17.] Hy-Vee's requested Jury Instruction No. 23 attempted to incorporate

the McDonnell Douglas Corp. v. Green burden shifting analysis. 411 US 792, 93

SCt 1817, 36 LEd2d 668 (1973). At the outset, however, it must be noted that this

instruction is an incorrect statement of the law. Therefore, it did not preserve the

burden shifting issue for appeal.

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[¶18.] Comparing requested Jury Instruction No. 23 to the McDonnell

Douglas burden shifting analysis reveals that the trial court properly rejected the

instruction as an incorrect statement of law. Under the correct McDonnell Douglas

burden shifting analysis, a plaintiff must first establish a "prima facie case by the

preponderance of the evidence." 5 Texas Dep't of Community Affairs v. Burdine, 450

US 248, 252-253, 101 SCt 1089, 1093, 67 LEd2d 207 (1981). To establish a prima

facie case of retaliatory discharge, a plaintiff must prove "(1) he engaged in Title VII

protected activity (reported sexual harassment); (2) he subsequently suffered

adverse employment action; and (3) [there was] a causal link between engaging in

protected activity and the adverse employment action." Leslie v. Hy-Vee Foods,

Inc., 2004 SD 59, ¶11, 679 NW2d 785, 789.

[¶19.] If the plaintiff establishes a prima facie case, the burden shifts to the

defendant to articulate some legitimate, nonretaliatory reason for the employment

action. McDonnell Douglas, 411 US at 802. The defendant's burden at this stage,

however, is only a burden of production, not persuasion. Burdine, 450 US at 259-

60. If the defendant produces a legitimate, nonretaliatory reason, the burden shifts

back to the plaintiff to prove by a preponderance of the evidence that the stated

reason is merely a pretext for retaliation. Id. at 252-53; see also Leslie, 2004 SD 59,

5. We note the inconsistency of the phrases "prima facie case" and
"preponderance of the evidence" appearing in the same burden of proof.
However, this is the United States Supreme Court's language. Interestingly,
it is only used by the federal courts in discussing summary judgment; i.e.,
presumptions that arise from establishing a prima facie case of retaliation.
Even the federal courts that have attempted to instruct a jury on the
McDonnell Douglas analysis do not instruct on prima facie case.
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¶11, 670 NW2d at 789; Johnson v. Kreiser's, Inc., 433 NW2d 225, 227-28 (SD 1988)

(utilizing the burden shifting analysis).

[¶20.] Here, requested Jury Instruction No. 23 required Lord to establish a

prima facie case that his termination was "solely" caused by retaliation for filing the

sexual harassment complaint. This is an incorrect statement of the law. As we

noted in Leslie, a plaintiff need only establish a "causal link between engaging in

protected activity and the adverse employment action." 2004 SD 59, ¶11, 679

NW2d at 789. In defining that causal link courts have not required a claimant to

prove that the protected activity was the sole cause of the adverse employment

action. Instead, they require a plaintiff to show that the sexual harassment

complaint was "merely a contributing factor" in the decision to terminate his

employment. Wiehoff v. GTE Directories Corp., 61 F3d 588, 598 (8th Cir 1995)

(specifically stating that the plaintiff is not required to "show that the retaliatory

motive was the sole reason for the employment action, but 'merely a contributing

factor'"). Thus, there can be no preserved error because Hy-Vee's requested

Instruction No. 23 was an incorrect statement of law.

[¶21.] More fundamentally, however, Jury Instruction No. 23 should not have

been given because most jurisdictions have concluded, for a variety of reasons, that

a jury instruction setting forth the McDonnell Douglas burden shifting analysis is

unnecessary. 6 Those courts reason that the terminology associated with the

6. In Sanghvi v. City of Claremont, 328 F3d 532 (9th Cir 2003), the Ninth
Circuit Court of Appeals concluded that it was error to instruct the jury on
the technical elements of the McDonnell Douglas burden shifting analysis
because such an instruction had "significant potential to confuse juries," was
"designed to allocate burdens and promote the orderly presentation of
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evidence," and "evades the ultimate question of discrimination," which should
be the focus of the fact finders. Id. at 541-42. In reaching its conclusion, the
Ninth Circuit Court of Appeals surveyed the cases on this subject:

Some decisions criticize any use of the McDonnell Douglas
formulation in instructing the jury, emphasizing that the
only question that should go to the jury is the ultimate
question of discrimination; other circuits condemn the use
of legalistic language and the complexities of burden
shifting without rejecting the McDonnell Douglas
framework outright. See Cabrera v. Jakabovitz, 24 F3d
372, 380-82 (2nd Cir 1994) (holding that, although a jury
instruction that included the phrase "prima facie case"
and referred to "defendant's 'burden' of produc[tion]"
"created a distinct risk of confusing the jury," in certain
instances it would be appropriate to instruct the jury on
the elements of a prima facie case); Watson v.
Southeastern Pa. Transp. Auth., 207 F3d 207, 221-222
(3rd Cir 2000) (holding that, although it is proper "to
instruct the jury that it may consider whether the factual
predicates necessary to establish the prima facie case
have been shown," it is error to instruct the jury on the
McDonnell Douglas burden shifting scheme), cert. denied,
531 US 1147, 121 SCt 1086, 148 LEd2d 961 (2001);
Mullen v. Princess Anne Vol. Fire Co., 853 F2d 1130, 1137
(4th Cir 1988) (noting that the "shifting burdens of
production of Burdine . . . are beyond the function and
expertise of the jury" and are "overly complex"); Walther
v. Lone Star Gas Co., 952 F2d 119, 127 (5th Cir 1992)
("Instructing the jury on the elements of a prima facie
case, presumptions, and the shifting burden of proof is
unnecessary and confusing. Instead, the court should
instruct the jury to consider the ultimate question of
whether defendant terminated plaintiff because of his
age"); Ryther v. KARE 11, 108 F3d 832, 849-50 (8th Cir
1997) (en banc) (Loken, J., in Part II.A. of the dissent,
which a majority of the court joined) (holding that "the
jury need only decide the ultimate issue of intentional
discrimination," and usually need not make findings on
the prima facie case or whether the defendant's
explanation is pretextual); Dudley v. Wal-Mart Stores,
Inc., 166 F3d 1317, 1322 (11th Cir 1999) ("We stress that
it is unnecessary and inappropriate to instruct the jury on
the McDonnell Douglas analysis").

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Id. at 539-40. In a footnote, the court continued and summarized other
cases from the First, Seventh, and Tenth Circuits:

The First, Seventh, and Tenth Circuits also appear to
disapprove of the wholesale adoption of the McDonnell
Douglas formulation in jury instructions. See Loeb v.
Textron, Inc., 600 F2d 1003, 1016-18 (1st Cir 1979)
(explaining that, while the phrase "prima facie case" and
other "legal jargon" need not be read to the jury, whether
jury instructions should include "the four elements of the
McDonnell Douglas-type prima facie case (properly
tailored to the circumstances) and that the employer's
reason is a pre-text" will depend upon the evidence
presented); disapproved of on other grounds by Trans
World Airlines, Inc. v. Thurston, 469 US 111, 126 n19,
105 SCt 613, 624, 83 LEd2d 523 (1985); Gehring v. Case
Corp., 43 F3d 340, 343 (7th Cir 1994) ("Once the judge
finds that the plaintiff has made the minimum necessary
demonstration (the 'prima facie case') and that the
defendant has produced an age-neutral explanation, the
burden-shifting apparatus has served its purpose, and the
only remaining question-the only question the jury need
answer-is whether the plaintiff is a victim of intentional
discrimination"); Messina v. Kroblin Transp. Sys., Inc.,
903 F2d 1306, 1308 (10th Cir 1990) ("The McDonnell
Douglas inferences . . . are of little relevance to the
jury."); but see Rowlett v. Anheuser-Busch, Inc., 832 F2d
194, 200 (1st Cir 1987)("[T]he district court was correct in
using the [McDonnell Douglas] framework in the
instructions to the jury" because "[i]t is a straightforward
way of explaining how to consider whether there is
intentional discrimination"); abrogated on other grounds
by Iacobucci v. Boulter, 193 F3d 14, 27 (1st Cir 1999);
Lynch v. Belden & Co., Inc., 882 F2d 262, 269 (7th Cir
1989)("[I]t was proper for the district court to instruct the
jury as to the McDonnell Douglas/Burdine formula for
evaluating indirect evidence . . . . [Such an instruction]
accurately informed the jury of the parties' burdens . . ."
(footnote omitted)); Faulkner v. Super Valu Stores, Inc., 3
F3d 1419, 1425 & n3 (10th Cir 1993) (holding that there
was no error in a jury instruction that incorporated the
entire McDonnell Douglas formulation because it set forth
the proper allocation of proof and directed the jury that
age must be the determinative factor in the failure to
hire).

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McDonnell Douglas analysis, including "prima facie case," "preponderance of the

evidence," "burden of production," and "pretext," "create a distinct risk of confusing

the jury." Dudley, 166 F3d at 1322; see also Lipchitz v. Raytheon Co., 434 Mass

493, 508, 751 NE2d 360, 373 (2001).

[T]he distinction between burden of persuasion and
burden of production is not familiar to jurors, and they
may easily be misled by hearing the word 'burden'
(though referring to a burden of production) used with
reference to a defendant in an explanation of that part of
the charge that concerns a plaintiff's burden of
persuasion.

Dudley, 166 F3d at 1322. We conclude that there is a significant risk that the jury

may be confused and misled by the use of these legal concepts in a McDonnell

Douglas burden shifting instruction. 7

[¶22.] Instead of instructing the jury regarding the burden shifting analysis,

the United States Supreme Court and the Eighth Circuit Court of Appeals have

indicated that the McDonnell Douglas analysis "is merely an analytical tool that

'serves to bring the litigants and the court expeditiously and fairly'" to the ultimate

question, which "in any retaliation case is whether the employer's adverse action

against the employee was motivated by retaliatory intent." Wallace v. DTG

Id. at 540 n6.

7. For example, requested Jury Instruction No. 23 states that if Lord
established by a "preponderance of the evidence" that his employment was
terminated solely because of his sexual harassment complaint, "the burden
shifts to Hy-Vee to prove" that Lord was terminated for nonretaliatory
reasons. Under this instruction, there is a great risk that the jury would
assume that Hy-Vee had the burden of proving a nonretaliatory reason for
termination by a "preponderance of the evidence" (a burden of persuasion),
rather than merely having a "burden of production."
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Operations, Inc., 442 F3d 1112, 1119 (8th Cir 2006) (quoting Burdine, 450 US at

253). The McDonnell Douglas "'analytical framework' was established in the

context of summary judgment 'to give judges a method of organizing evidence and

assigning the burdens of production and persuasion in [a] discrimination case.'"

Lipchitz, 434 Mass at 508, 751 NE2d at 372-73 (quoting Loeb, 600 F2d at 1016).

Thus, the analysis would only be applicable in a summary judgment or directed

verdict situation for the trial court to utilize to determine if the issue should be

given to the jury. Kanida v. Gulf Coast Medical Personnel LP, 363 F3d 568, 575

(5th Cir 2004) ("The McDonnell Douglas formula . . . is applicable only in a

directed verdict or summary judgment situation.")(quoting Powell v. Rockwell Int'l

Corp., 788 F2d 279, 285 (5th Cir 1986)). But, the analysis "is not the proper vehicle

for evaluating a case that has been fully tried on the merits." Id. In other words,

"the analysis 'was not written as a prospective jury charge,' and is ill-suited to the

task." Lipchitz, 434 Mass at 508, 751 NE2d at 372-73; see also Grebin v. Sioux Falls

Indep. Sch. Dist. No. 49-5, 779 F2d 18, 20 (8th Cir 1985); abrogated on other

grounds by Foster v. Univ. of Arkansas, 938 F2d 111 (8th Cir 1991) ("McDonnell-

Douglas was not a jury case and its ritual is not well suited as a detailed instruction

to the jury").

[¶23.] The United States Supreme Court and Eighth Circuit Court of Appeals

also explained that the McDonnell Douglas burden shifting analysis and

presumption disappears when the case is submitted to the jury: "at [the] final stage

of the burden shifting analysis, the plaintiff's burden 'merges with the ultimate

burden of persuading the jury that [the plaintiff] has been the victim of intentional

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[retaliation].'" Wallace, 442 F3d at 1120 (quoting Burdine, 450 US at 256). This

merging burden analysis appears to have been the basis for the trial court's decision

in this case. The merging burden theory is also required under state law. See

SDCL 19-11-1 (Rule 301). That rule of evidence provides that when a presumption

(the presumption of retaliation established by Lord's prima facie case) requires the

opposing party to produce evidence to rebut, and the rebutting party produces

substantial, credible evidence making the presumption disappear, the jury shall not

be instructed on the presumptions. 8 Thus, under the McDonnell Douglas

framework, the presumption of retaliation that arises once the plaintiff establishes

a prima facie case disappears when the defendant satisfies its burden of

articulating a legitimate, nonretaliatory reason for the employment action. At this

point, "the McDonnell Douglas framework – with its presumptions and burdens – is

no longer relevant." St. Mary's Honor Center v. Hicks, 509 US 502, 510, 113 SCt

2742, 2749, 125 LEd2d 407 (1993). The only question that the jury needs to be

instructed on is the ultimate question of whether the plaintiff was terminated in

retaliation for filing a complaint. See Walther, 952 F2d at 127.

8. SDCL 19-11-1 provides:

In all civil actions and proceedings, unless otherwise
provided for by statute or by chapters 19-9 to 19-18,
inclusive, a presumption imposes on the party against
whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not
shift to such party the burden of proof in the sense of the
risk of nonpersuasion, which remains throughout the trial
upon the party on whom it was originally cast. When
substantial, credible evidence has been introduced to
rebut the presumption, it shall disappear from the action
or proceeding, and the jury shall not be instructed
thereon.

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[¶24.] For these reasons, we conclude that the trial court was correct in

instructing the jury (Jury Instruction No. 30) that Lord had the burden of proving

"that Hy-Vee terminated his employment because he complained about sexual

harassment." The presumption of retaliation had disappeared following the

submission of conflicting evidence on this point, and therefore, this instruction

correctly required Lord to prove a retaliatory motive for the termination. The trial

court correctly rejected requested Jury Instruction No. 23 because it was an

incorrect statement of the law and because a jury should not be instructed to

conduct a burden shifting analysis in reaching its verdict.

ISSUE TWO

[¶25.] Did the jury use the proper standard, supported by sufficient
evidence, in determining Lord's damages?

[¶26.] Hy-Vee preserved this issue for appeal by making a motion for directed

verdict, judgment notwithstanding the verdict and new trial. We review the trial

court's ruling on these motions by the abuse of discretion standard. Gilkyson v.

Wheelchair Express, Inc., 1998 SD 45, ¶7, 579 NW2d 1, 3 (citing Bland v. Davison

County, 1997 SD 92, ¶26, 566 NW2d 452, 460 (additional citations omitted)).

[¶27.] Hy-Vee argues that there was insufficient evidence presented at trial

on the issue of damages and that the jury used an improper standard in making its

determination. Specifically, Hy-Vee argues that the jury award was incorrectly

determined because: (1) Lord was fired from his subsequent employer, Wal-Mart,

for sexual harassment; and (2) there was no rational basis for the jury's

determination of damages.

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[¶28.] Following his employment at Hy-Vee, Lord was employed at Wal-Mart

from November 2000 until March 2001. At trial, Hy-Vee repeatedly questioned

Lord as to the reason why his employment was terminated. Hy-Vee's contention

was that Lord was released from employment at Wal-Mart for sexual harassment.

Lord's testimony was that he had "suffered a hernia." Lord further testified that

there was a misunderstanding related to his employment. Lord also claimed that

he had come to the aid of a female customer who was being harassed by a former

Wal-Mart employee, that he was accused of sexual harassment for this incident and

this was partially the reason why he was fired.

[¶29.] In the alternative, Hy-Vee argues that any award of damages should

be limited to compensate Lord for his term of unemployment following termination

at Hy-Vee. Under this rationale, Lord would be compensated $720 for the two week

time period in November 2000; following his termination at Hy-Vee, up until he

found employment at Wal-Mart.

[¶30.] During final argument to the jury, Lord's counsel offered the jury a

formula by which it could determine damages in Lord's favor. Based on this

formula, Lord's counsel asked for damages in the amount of $19,576. The formula

was calculated as such: If Lord's hourly rate at a subsequent job was less than at

Hy-Vee, Lord asked for the difference. If Lord's hourly rate at a subsequent job was

equal to or more than at Hy-Vee, he asked for nothing. If Lord was unemployed for

any time period after his employment at Hy-Vee, he asked for his hourly rate while

at Hy-Vee.

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[¶31.] An award of damages is a factual issue to be determined by the jury.

Roth v. Farner-Bocken Co., 2003 SD 80, ¶26, 667 NW2d 651, 662. Damages must be

reasonable and must be proved with reasonable certainty. Id.; Kephart v.

Backhaus, 312 NW2d 473, 474 (SD 1981). Proof of damages requires a reasonable

relationship between the method used to calculate damages and the amount

claimed. See Swenson v. Chevron Chem. Co., 89 SD 497, 234 NW2d 38, 43 (1975).

Inclusively, "[i]n applying this rule, we refrain from dictating any specific formula

for calculating damages. Instead, we apply a 'simple reasonable certainty test

concerning the proof needed to establish a right to recover damages.'" McKie v.

Huntley, 2000 SD 160, ¶18, 620 NW2d 599, 603 (quoting Drier v. Perfection, Inc.,

259 NW2d 496, 506 (SD 1977)). The reasonable certainty standard requires there

to be proof of a rational basis for measuring loss, without allowing a jury to

speculate. Id. (quoting Kressly v. Theberge, 79 SD 386, 112 NW2d 232, 233 (1961)).

[¶32.] The trial court directly addressed the question of speculative damages

in Jury Instructions No. 4 and No. 5:

4. Any damages awarded must be fair and reasonable
under the circumstances. You must not base your verdict
on speculation, guesswork or conjecture. An employee who
was damaged as a result of termination of his
employment has a duty to take steps to minimize the loss
by making a reasonable effort to find comparable
employment. I have given you different measures of
damages for the various theories alleged by plaintiff.
These measures of damages overlap. You must not award
damages to plaintiff for the same injury more than one
time. If you award damages for an alleged injury or loss
under one theory, do not award damages for that injury or
loss under another theory. (emphasis added).

5. Damages for retaliation are the amount of agreed
compensation for a reasonable period that plaintiff would

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have received but for the wrongful discharge. You must
deduct any compensation actually earned or that with
reasonable efforts could have been earned, by the plaintiff
during the reasonable period referred to in the first
sentence of this paragraph.

This Court has noted that the difficulty in computing damages should not be

confused with the requirement of proving damages as an essential element for

recovery. McKie, 2000 SD 160, ¶20, 620 NW2d at 604 (quoting Seattle Western

Indus., Inc. v. David A. Mowat Co., 110 Wash2d 1, 750 P2d 245, 249 (1988)). After

providing sufficient evidence of damages, the claimant must only produce the best

evidence available to allow a jury a reasonable basis for calculating the loss. Id.

[¶33.] The jury was the trier of fact. Evidence and testimony were offered for

the jury's consideration concerning Lord's employment at Wal-Mart. Based on this

evidence, the jury determined Lord's testimony to be credible. The jury obviously

determined that the facts did not support Hy-Vee's contention that he was fired

from Wal-Mart for sexual harassment.

[¶34.] In addition, Lord presented a reasonable method for the jury to

determine damages and a rational basis for the jury to determine the amount of the

award. Given the fact that the amount proposed by Lord and the amount awarded

by the jury were the same, it is reasonable to conclude that the jury calculated

damages in the manner proposed by Lord. The evidence in the record is sufficient

to establish a rational basis for the jury to determine and measure Lord's damages.

Accordingly, the trial court did not abuse its discretion by denying Hy-Vee's motion

for directed verdict, judgment notwithstanding the verdict and new trial on the

issue of damages.

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APPELLATE ATTORNEY FEES

[¶35.] Lord has submitted a motion for appellate attorney fees in the amount

of $1,908. The motion is accompanied by an itemized and verified statement of the

costs incurred pursuant to SDCL 15-26A-87.3. An award of appellate attorney fees

is permissible if the attorney fees are otherwise allowable and if they are

accompanied by a verified, itemized statement of the legal services rendered. Id;

Schaefer ex rel. S.S. v. Liechti, 2006 SD 19, ¶20, 711 NW2d 257, 264; Stratmeyer v.

Engberg, 2002 SD 91, ¶29, 649 NW2d 921, 928. "We have interpreted this to mean

that appellate attorney fees may be granted 'only where such fees are permissible at

the trial level.'" Grynberg Exploration Corp. v. Puckett, 2004 SD 77, ¶33, 682

NW2d 317, 324 (quoting Hentz v. City of Spearfish, Dept. of Pub. Works, Office of

Planning & Zoning, 2002 SD 74, ¶13, 648 NW2d 338, 342). Attorney fees can only

be awarded at the trial level if provided by contract or if authorized by statute.

Matter of Estate of O'Keefe, 1998 SD 92, ¶17, 583 NW2d 138, 142. Lord fails to cite

any authority to support his claim that the court can award attorney fees in this

matter. Accordingly, Lord's motion is denied.

[¶36.] The judgment of the trial court is affirmed.

[¶37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

MEIERHENRY, Justices, concur.

[¶38.] LOVRIEN, Circuit Judge for SABERS, Justice, disqualified.

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