Update (May 23, 2015):  In the case described below, a stinging opinion, dissenting in part and concurring in part with the Court’s majority opinion, from soon-to-be-retired Minnesota Supreme Court Justice Paul A. Anderson:

The unfortunate consequence of the majority’s opinion 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…I view the majority’s conclusion, whether explicit or implicit, to be extraordinary—even incogitable.  Its conclusion is difficult to explain….The district court made a very serious error in judgment in its findings when it was confronted with behavior that constitutes classic sexually motivated misconduct in the workplace. The majority compounds this serious error in judgment by allowing the views that inform the error to be applied not only to conduct in Lake County, but to conduct in the entire State of Minnesota.   The majority has in essence used our standard of review as a shield, behind which to abdicate our responsibility to review the district court’s findings for error…[A]s my service as an appellate judge draws to a close, I am concerned that the opinion the majority renders today signifies a step backwards on what I once believed was a one-way path toward ending sexual harassment in the workplace.

Alas, social progress never seems to be a one-way path but rather more like an arduous climb up steep terrain in which we slide back a bit, advance a bunch, slide back a bunch, advance a bit and so on and on.  We can, at a minimum celebrate that reversal of the district court’s decision adverse to the plaintiffs was affirmed.

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Adam McRunnel, like thousands of workers in farms across Minnesota and the Midwest  worked on a farm, and used a large conveyor belt to load the grain (soybeans, in his case) into grain storage bins.

He was using a Belt Conveyor Model 20100, manufactured by Batco Manufacturing when it started making a growling or squeaking sound that McRunnel realized meant the conveyor’s bearings needed lubrication.

The Batco conveyor belt was sold with sealed bearings.  Furthermore, the Batco conveyor belt came with emphatic warnings which pointed out that it was dangerous to do any kind of maintenance or repair while the machine was running.  But the Batco sealed bearings had been replaced by unsealed bearings when McRunnel was running the belt on January 18, 2010.  And McRunnel did not turn off the belt when he needed to grease the bearings as it was his understanding that greasing the bearings worked better when the machine was running.

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The Interstate 35W Bridge, Minneapolis, Bathed in Rainbow Light to Celebrate Marriage Equality in Minnesota (Photo By Ed Kohler)

With the passage of Minnesota’s historic marriage equality law, with the crisp Spring air sparkling with motes of not just a new season but a new era, Minnesota progressives, liberals, libertarians, and so many thousands of others who favor the freedom of Americans to love another person regardless of gender without shame or stigma, might be tempted to jump to the view that we are now (finally) in an era without bigotry, homophobia, or bias based on sexual orientation.

When the celebration and joy of progress subsides, though, we all realize that unique issues continue to face Minnesota LGBT litigators.  Learn about them from a distinguished panel at a CLE (1.5 elimination of bias credits) May 29, 2013, 3-5:30 p.m., at Blackwell Burke P.A., 431 S. 7th Street, Suite 2500, Minneapolis, MN 55415.

But what’s so unique about the challenges faced by LGBT litigators, in particular?  What about those faced by women? By the disabled? By other minority groups?

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Somewhere over the rainbow…

In the perfect work-place all hiring, all promotions, all compensation decisions would be made through scientifically precise and objective metrics.  Not only would no one be hired or fired etc. for inappropriate or discriminatory reasons in this work place but all such decisions would be so empirical, so data-driven, that no one would even have any dispute over these decisions.

This will not be happening any time soon anywhere on earth.

But this is plainly an ideal to which many employers, large and small, aspire to.  Many if not most or even all law firms, for example, look at billable hours, pro bono hours, business development hours, internal firm administrative hours, collection ratios, and other data, of course — hard data on which to make employment decisions.

But what if one worker is a nasty, unpleasant, and mean person who goes out of her way to stab co-workers in the back, subverting rather than encouraging their projects, (hurting the organization, of course) but who has “great numbers”?  (Think of this kind of worker as a selfish opportunist or  ”a Taker.”)  What if another worker’s hours are low, everyone knows, because she is constantly mentoring lawyers, both junior and senior to her, relentlessly sacrificing herself and her self-interest for the good of the firm? (She’s a “Giver.”)  What is the metric for that to measure these qualities in these workers?  A popularity contest?  How objective is that?

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Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

Update (May 17, 2013):  Mark Steffenson argued before the Minnesota Supreme Court for appellant Custom Conveyor Corporation, the issue being the trial court’s denial of CCC’s request to conduct trial depositions in advance of trial.  “There are occasions when the unfortunate, the unforeseen happens. A good example is what happened here….”  (A witness at trial got ill.  Some testimony was taken by trial deposition.)

Steffenson takes the position that a party can take a trial deposition at any time without leave of court.  Scheduling orders, Steffenson argues, play no part in trial depositions.  If another party has a problem with an 11th hour trial deposition, the burden should be on this party to come to court and move for a protective order or move to quash.

Shouldn’t the Minnesota Supreme Court apply a “just cause” burden on the party seeking discovery outside the discovery period?

Others on the Court (Justice G. Barry Anderson), with personal injury experience, where “late-in-the-process” depositions of medical experts, for example, are taken in the days or weeks before trial. This is commonplace.  Can it really be that an injured plaintiff MUST go to court to get permission to take such an expert trial deposition (of his own expert)?

Paul Shoemaker argued for respondent T/C Monorail.  Shoemaker emphasized that the Nevada witnesses never had agreed to testify in Minnesota.  Shoemaker emphasized that there has been no offer of proof as to what testimony they would have offered.

This looks to be a close case with some on the Court interested in respecting trial court’s control over its docket and others with a greater concern for pragmatic considerations such as pretrial depositions for experts who, often, simply cannot be available on call over weeks or months of trial.

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Boot Photograph by Ian Britton

Yeah, you keep lyin’ when you oughta be truthin’ And you keep losing when you oughta not bet. You keep samin’ when you oughta be changin’… Now, what’s right is right but you ain’t been right yet These boots are made for walking And that’s just what they’ll do. One of these days these boots are gonna walk all over you…

It was 1966 when Frank Sinatra’s daughter, Nancy Sinatra, went to the top of the charts with this angry screed/footwear product placement (written and produced by Lee Hazlewood).

Fast forward to this week, and we note a complaint, originally filed in Minnesota State court but removed to U.S. District Court the gist of which that a boot manufacturer has managed to make and sell a boot that is so bad that, according to the plaintiff, it is not made for walking and cannot be sold.

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