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Cuzzo decides case against Two Harbors business

In his second decision in the lawsuit brought by three former employees against the owner of Lou's Fish House, 6th District Judge Michael Cuzzo has ruled against Brian Zapolski and his business.

Jennifer Moyer, Jaime Rasmussen and Kathe Reinhold had claimed a hostile work environment created by sexual harassment against Two Harbors Fish Co., doing business as Lou's Fish House; BWZ Enterprises LLC, doing business as B&R Motel; and Zapolski.

"Judgment is awarded in favor of plaintiffs and against defendants on plaintiff's claims under the Minnesota Human Rights Act," Cuzzo said in his order last week, adding that "plaintiffs are entitled to compensatory and punitive damages."

The case was originally heard before Cuzzo in 2011, and he found that Zapolski frequently made sexually inappropriate comments to Rasmussen, asked her about her sex life and used vulgar language in her presence; that Zapolski subjected Moyer to constant sexually harassing conduct; and began making offensive, sexually explicit comments to Reinhold starting on the first day that she worked for him.

However, Cuzzo determined that Zapolski's conduct did not rise to the level of unwelcome sexual harassment under the Minnesota Human Rights Act. The women took that decision to the Minnesota Court of Appeals.

The attorney for the three women, Thomas Andrew, who has practiced law for 46 years, said he wasn't surprised by Cuzzo's new decision.

"Oh, no. I was surprised by the initial decision," he told the Lake County News-Chronicle, "but not by this decision."

Of his clients, Jaime Rasmussen, Jennifer Moyer and Kathe Reinhold, Andrew said: "(They're) probably a little happy, but exhausted. It was long grind."

In July 2012, the Court of Appeals ruled that Cuzzo erred in his decision making in the case. The appeals court said that Zapolski's conduct toward Moyer, Rasmussen and Reinhold more than met the standard of sexual harassment and ordered that Cuzzo determine what compensatory and punitive damages to award the women.

Zapolski appealed that decision to the state Supreme Court, which sent the case back in May to Cuzzo for re-evaluation.

In reversing Cuzzo's first decision, the appeals court said: "Zapolski's conduct in this case is at least as severe, if not more so, than the conduct found to be actionable in previous cases. Accordingly, the district court's conclusions that appellants failed to prove their claims of sexual harassment are erroneous."

The majority opinion of the Minnesota Supreme Court, written by Chief Justice Lori Gildea, said that two separate errors of law "infected the district court's determination that employees did not prove their sexual harassment claims, and therefore, the Court was unable to ascertain exactly how the errors impacted the court's decision to dismiss Employees' claims." The case was sent back to the District Court so it could be evaluated using the correct legal standard.

Zapolski's behavior included unwanted physical contact, making repeated sexually inappropriate comments in the workplace, suggesting that two employees take home a pornographic DVD, view it and report back to him, and showing nude photos from Playboy magazine to employees and asking them if the woman in the picture "didn't look like Rasmussen."

Two state Supreme Court justices put in writing their belief that the court should have gone one step further, finding Zapolski's behavior in violation of the Minnesota Human Rights Act. In her dissent, Justice Wilhelmina Wright questioned what it would take for the majority to find that Zapolski's behavior clearly crossed the legal line.

"If the conduct at issue in this case does not unmistakably violate the MHRA," she wrote, "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."

Justice Paul Anderson, now retired, expressed his distaste for the majority's decision in no uncertain terms and addressed what he said was the message sent to the people of Minnesota.

"The unfortunate consequence of the majority's opinion," wrote Anderson, "may well be that offensive and repulsive sexual misconduct in the workplace, like Zapolski's verbal and physical misconduct, will be much more difficult to curtail in Minnesota and that many victims of similar misconduct will be left without a remedy under the law."

Andrew said he was disheartened by the majority opinion of the Minnesota Supreme Court and what it represents for employees who may be facing sexual harassment in the workplace. Saying that he agreed with Anderson, Andrew said the majority's decision was also instructive.

"What it taught me is that elections matter," he said, pointing out that the majority justices were appointed by former Gov. Tim Pawlenty.

In finding last week for the plaintiffs, Cuzzo said a hearing will be scheduled to hear additional testimony regarding compensatory and punitive damages and attorney's fees.

Duluth attorney Joseph Roby of Johnson Killen and Seiler, who represented Two Harbors Fish Co. and Zapolski, said last week's decision might not be the final word.

"The clients and I are still evaluating the next steps," he said. Asked if there might be future appeals, Roby replied: "We just don't know yet. Judge Cuzzo is still required to make some additional rulings in the case. It's all up in the air right now."