author: MEYER, Justice.

text:
    Raymond M. THEOBALD, Relator, Shirley A. Theobald, Petitioner, v. COUNTY OF LAKE, Respondent.
    No. A05-1657.
    Supreme Court of Minnesota.
    April 13, 2006.

      Raymond M. Theobald, pro se.
    Russell H. Conrow, Lake County Attorney, Two Harbors, for respondent.
   OPINION

MEYER, Justice.

In this appeal from the tax court, relator Raymond M. Theobald challenges the tax court’s assessment of his property as 11 separate parcels, instead of as a single property for tax purposes. Relator argues that the 11-parcel assessment resulted in a higher valuation of his land, and therefore violated the statutory requirement that similar properties be assessed uniformly. See MinmStat. § 273.12 (2004). We affirm the decision of the tax court.

The Lake County assessor valued relator’s White Iron Lake property for property tax purposes at $334,500 as of January 2, 2003: $215,300 for improvements made upon the land, and $119,200 for the land itself. Because the property had been listed as 11 separate taxable parcels by the Lake County auditor, the Lake County assessor valued the land on each of the 11 parcels separately to arrive at the total valuation of $119,200 for the land. Relator challenged the 11-parcel valuation of his land and other aspects of his property valuation in tax court. Relator presented an expert who valued his land as a single property worth $112,500 (using a $750-per-foot estimate of lakeshore value multiplied by relator’s 150 feet of lakeshore). Theobald v. County of Lake, No. CX-04-181, 2005 WL 937424, *5 (Minn. T.C. Apr. 1, 2005). Using the “cost approach” to valuation, the tax court separately evaluated relator’s land and the improvements on the land to arrive at a fair market value for the entire property. Id. at *4. The tax court determined that the Lake County assessor had overvalued the improvements on relator’s land, but the tax court adopted the county assessor’s valuation of the land. Id. at *5. The tax court decided that relator’s land “is comprised of eleven parcels and must be valued as such,” and therefore adopted the county assessor’s valuation of $119,200 over that of relator’s expert. Id. Relator now contests this decision, arguing that the county assessor’s statutory duty to uniformly assess similar properties requires that his land should not have been assessed at a higher value merely because it was comprised of 11 taxable parcels, not one. See Minn.Stat. § 273.12.

On review, this court will not disturb the tax court’s valuation of property unless the tax court’s decision is clearly erroneous, meaning that the decision is not reasonably supported by the evidence as a whole. Westling v. County of Mille Lacs, 512 N.W.2d 863, 866 (Minn.1994). A tax court’s decision is clearly erroneous when this court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” Id. (quoting In Re Assessments of Silver Lake Apartments v. County of Olmsted, 295 Minn. 548, 549-50, 204 N.W.2d 415, 416 (1973)). This court will defer to the decision of the tax court unless the tax court has either clearly overvalued or undervalued the subject property, or has completely failed to explain its reasoning. Harold Chevrolet v. County of Hennepin, 526 N.W.2d 54, 58 (Minn.1995).

Relator’s challenge of the 11-parcel assessment by the county assessor hinges on the proper roles of county auditors and county assessors, which are described by statute. It is the county auditor’s role to “make out * * * complete lists of all lands or lots subject to taxation,” and the lists of taxable properties prepared by the county auditor are “legal and valid deseription[s] of such land for taxation purposes.” Minn. Stat. § 273.03, subd. 1 (2004); Minn.Stat. § 272.195 (2004). After the county auditor has listed the lands and lots that are subject to taxation, it is the county assessor’s role to “determine the market value of each tract or lot of real property listed for taxation.” Minn.Stat. § 273.08 (2004). When determining the market value for the purpose of taxation, the county assessor must “give due weight to every element and factor affecting the market value thereof * * * [and] consider and give due weight to lands which are comparable in character, quality, and location, to the end that all lands similarly located and improved will be assessed upon a uniform basis and without discrimination.” Minn. Stat. § 273.12.

Relator argues that the county assessor’s duty to “consider and give due weight to lands which are comparable in character, quality, and location” requires that his property should not have been given a higher assessment merely because the land was comprised of 11 parcels for tax purposes. Relator invokes the tax laws’ “overwhelming purpose * * * to provide that owners of comparable properties share the tax burden equally.” This purpose, he argues, requires that the number of parcels comprising comparable properties should be inconsequential.

But the county assessor’s duty is to fairly assess parcels of property as they are subdivided by the county auditor for tax purposes. See Minn.Stat. § 273.08. In this case, the county auditor listed 11 separate and contiguous parcels of land owned by relator. If owners of contiguous parcels, like relator, wish to combine their property for tax purposes, there is a statutory procedure in place allowing them to petition the auditor for combination. See Minn.Stat. § 272.46, subd. 2 (2004) (stating that if a taxpayer makes written application to the county auditor, the auditor shall, “for property tax purposes only, combine legal descriptions * * * of contiguous parcels to which applicants hold title”). Relator does not argue that he has petitioned for combination, does not argue that his property was inappropriately identified as 11 separate taxable parcels by the county auditor, and does not argue that his property should have been combined into one taxable parcel by the county auditor without petition. Since it is undisputed that the county auditor has appropriately listed relator’s property as 11 separate taxable parcels, the property was appropriately assessed as such by the county assessor, and the tax court’s decision to adopt the county assessor’s valuation was not clearly erroneous.

Affirmed.

      . The tax court explains that the cost approach to valuation "is an attempt to determine the market costs of the property by analyzing the market costs to construct a similar property." Theobald, 2005 WL 937424, at *4 (citing The Appraisal of Real Estate 349 (12th ed.2001)).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Dennis R. LETOURNEAU, a Minnesota Attorney, Registration No. 62443.
    No. A05-755.
    Supreme Court of Minnesota.
    April 13, 2006.

      Kenneth Jorgensen, Dir., Timothy M. Burke, Sr. Asst. Dir., Office of Lawyers Professional Responsibility, St. Paul, for appellant.
    Edward F. Kautzer, St. Paul, for respondent.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action alleging that Dennis R. Letourneau neglected a client matter, failed to keep that client informed about her matter, made a misrepresentation to that client, and failed to cooperate with the Director’s investigation of these matters, in violation of Rules 1.3, 1.4, 8.1(a)(3), and 8.4(c), Minnesota Rules of Professional Conduct. The matter was heard by a referee, appointed by this court, who found that Letourneau violated Rules 1.3 (diligence) and 1.4 (communication). The referee recommended that Le-tourneau be publicly reprimanded. The referee also concluded that there was not clear and convincing evidence that Letour-neau had violated Rules 8.1(a)(3) (noncooperation) or 8.4(c) (misrepresentation). The Director appeals the findings and conclusion related to the alleged violation of Rule 8.4(c), and requests that Letourneau be suspended for 60 days and placed on two years of supervised probation. After a thorough review of the record, we conclude that the referee’s findings relating to Rule 8.4(c) are not clearly erroneous. We publicly reprimand Letourneau for his violation of Rules 1.3 and 1.4 and place him on supervised probation for one year.

The record provides the following facts. Darcie Sutherland, then a minor, was injured in a candy store on June 11, 1996. Sutherland’s parents retained Letourneau in July 1996 to represent Sutherland in connection with the injury. When Sutherland reached the age of majority, Letour-neau continued to represent her on the claim. While Letourneau undertook numerous activities on the file, he ultimately failed to commence an action on Sutherland’s behalf before the six-year statute of limitations expired.

Letourneau continued to meet with Sutherland after the statute of limitations expired, with the most recent meeting occurring in the summer of 2004. Additionally, Letourneau successfully represented Sutherland in a nursing licensure matter in August of 2003. Letourneau told Sutherland sometime in 2003 that he would deduct his legal fees for the licensure matter from the recovery in Sutherland’s personal injury claim. Letourneau never informed Sutherland that the statute of limitations applicable to her claim had expired, and she learned in early 2005 from another attorney that it had. Sutherland complained to the Director in March of 2005.

Letourneau has substantial experience in the practice of law, and was admitted to practice in 1970. He practices primarily in personal injury matters and is familiar with the law governing the statute of limitations. According to Letourneau, he became a sole practitioner in 1998, after working with a partnership for 28 years. From 1998 until 2002 Letourneau shared office space with another firm and ran his “accounting through their system.” In January 2002, Letourneau moved his law practice, and he was apparently practicing alone when the statute of limitations expired on Sutherland’s claim. Letourneau, who admittedly is not “very computer literate,” had a case management program installed on his computer in July, 2005, to help prevent him from making a similar statute of limitations error in the future. His wife, who is familiar with computers, is now working with him to help with administrative matters.

After receiving contact from Sutherland, the Director commenced a disciplinary proceeding against Letourneau. This court appointed the Honorable Randall J. Slieter to act as referee. After hearing the evidence the referee issued Findings of Fact, Conclusions of Law and Recommendations for Discipline. The referee concluded that Letourneau violated Rule 1.3 because he did not commence Sutherland’s personal injury action before the statute of limitations expired. Additionally, the referee concluded that Letourneau violated Rule 1.4 because he did not inform Sutherland that the statute of limitations had expired. These findings are not at issue in this appeal.

Regarding Rule 8.4(c), the referee found that the Director had not met his burden of proving a violation. Specifically, the referee found that it was “not clear * * * whether [Letourneau] knew that the statute of limitations had expired or, rather, whether his office procedures * * * simply failed to provide the appropriate reminder for the statute of limitations expiration date.” Because of this finding, the referee also found that “it is not clear whether [Letourneau] knew [that] his statement to Ms. Sutherland [regarding the deduction of legal fees from the licensing matter from her personal injury recovery] was false.” The Director challenges both of these findings.

In determining the recommended discipline, the referee assessed Letourneau’s prior discipline and found that Letourneau was privately admonished in February of 2001 “for providing financial assistance to a client, failing to cooperate with the Director’s investigation and practicing law while suspended for nonpayment of the attorney registration fee.” Additionally, in April of 2003, Letourneau stipulated to a private probation of two years for making a loan to a different client in violation of Rule 1.8 and for failing to cooperate with the Director in the investigation of that and another allegation of misconduct. The referee concluded that the private admonition was a minimally aggravating factor, and that the private probation was “a neutral factor for purposes of disposition” because the discipline occurred after the expiration of the statute of limitations at issue here.

The referee also assessed mitigating factors in determining a recommendation for discipline. The referee found a character witness’s testimony to be credible in describing Letourneau as “one of the best personal injury attorneys in the state and [having] a high reputation for honesty and good character.” Additionally, the referee found Letourneau to be credible in expressing regret for his error, in indicating “that he would take personal responsibility for his error,” and in promising to never make a similar error in the future. The referee also credited Letourneau’s testimony that he had never been sued for malpractice, and noted that there was no evidence Letourneau had missed any other statutes of limitation. The referee listed all of these factors as mitigating, but did not explain what weight he placed on them in making his recommendation that Le-tourneau be publicly reprimanded.

I.

We first address the Director’s contention that the referee clearly erred in failing to find that Letourneau violated Rule 8.4(c). We have indicated that a lawyer’s statements made with “intent to deceive” constitute a violation of Rule 8.4(c). See In re Westby, 639 N.W.2d 358, 370 (Minn.2002) (“A lawyer * * * violates Rule 8.4(c) by making false representations with an intent to deceive.”). The Director alleges that Letourneau violated Rule 8.4(c) when he “told Sutherland [in 2003] that he would deduct his legal fees for the licensure matter from Sutherland’s personal injury recovery.” The Director argues that when Letourneau made this statement he knew the statute of limitations had expired and that “there could be no recovery on the time-barred claim.” By implying the opposite to Sutherland, the Director concludes, Letourneau intended to mislead Sutherland in violation of Rule 8.4(c).

The Director’s theory ignores the burden of proof assigned to the Director in proving misconduct. “Allegations of professional misconduct must be proven by ‘full, clear and convincing evidence.’ ” In re Gherity, 673 N.W.2d 474, 480 (Minn. 2004) (quoting In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989)). The Director chose not to ask Letourneau when he first knew the statute had expired or whether, at the time of the fee arrangement, he thought Sutherland’s claim was still viable. Instead, the Director argues Letourneau must be deemed to have known that the statute had already expired when he discussed the fee arrangement with Sutherland because he did not claim not to have known. The Director also cites, as additional evidence of knowledge, Letourneau’s testimony that he “was not in any way attempting to deceive or do anything to the Sutherlands in the way of the situation that I knew had run.” Finally, the Director argues a letter Letourneau sent to the candy store’s insurer on June 5, 2002, shortly before the statute expired, proves Letourneau knew the statute had expired by the time he had the fee conversation with Sutherland.

The evidence the Director relies upon does not establish clear and convincing proof that Letourneau knew the statute of limitations had expired or that Letourneau knew Sutherland’s claim was no longer viable at the time he had the fee conversation with Sutherland. At best, the evidence is ambiguous on the question of what Letourneau knew and when he knew it.

Moreover, while the inferences made by the Director are plausible, the conclusion the Director seeks to draw from the evidence gives no deference to the referee’s findings. Because the Director ordered a transcript of the referee’s hearing, the referee’s findings and conclusions of law are not binding on this court. In re Wentzell, 656 N.W.2d 402, 405 (Minn.2003). Although not binding, this court gives “great deference to a referee’s findings and will not reverse those findings unless they are clearly erroneous, especially in cases where the referee’s findings rest on disputed testimony or in part on respondent’s credibility, demeanor, or sincerity.” Id. This court must be “ ‘left with the definite and firm conviction that a mistake has been made’ ” in order to find that a referee’s findings were clearly erroneous. Id. (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)). “If the referee’s findings are supported by the evidence, they will be upheld.” In re Erickson, 653 N.W.2d 184,189 (Minn.2002).

The referee’s findings rest upon his assessment of Letourneau’s credibility, and these findings are supported by the evidence. Letourneau repeatedly indicated that he believed that Sutherland might still recover on the personal injury claim. Letourneau also testified that he “was not in any way attempting to deceive or do anything to the Sutherlands.” Given this testimony, the referee had evidence that Letourneau’s intent in making the fee arrangement with Sutherland was not deceptive, but merely practical — he would not ask her to pay for the licensing matter until she recovered on the personal injury matter (a matter for which Letourneau expected a recovery). The referee’s finding that “[t]he Director has failed to establish, by clear and convincing evidence,” that Letourneau violated Rule 8.4(c) is not clearly erroneous.

II.

We turn now to the question of the appropriate discipline in this case. The referee recommended that Letour-neau be publicly reprimanded. “Although a referee’s recommendation for discipline carries great weight, we have final responsibility for determining whether discipline is appropriate and, if so, the type of discipline to be imposed.” In re Edinger, 700 N.W.2d 462, 467 (Minn.2005). At oral argument, the Director argued that a public reprimand and two years of supervised probation would be appropriate if this court determined, as we have, that a Rule 8.4(c) violation had not been proven.

“The purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather ‘to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.’ ” In re Vaught, 693 N.W.2d 886, 890 (Minn.2005) (quoting In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004)).

We consider four factors in determining the appropriate sanction: (1) the nature of the misconduct; (2) the cumulative weight of the violations of the rules of professional conduct; (3) the harm to the public; and (4) the harm to the legal profession. Disciplinary actions are imposed on a case-by-case basis after considering both aggravating and mitigating circumstances, as well as looking to similar cases for guidance.

Id. at 890 (citation omitted).

We generally impose “more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined.” In re Moore, 692 N.W.2d 446, 450 (Minn. 2005). The parties do not dispute the referee’s findings of aggravating and mitigating factors, but the Director argues that the referee placed insufficient weight on Letourneau’s prior discipline in recommending discipline for the instant case.

In particular, the Director disputes the referee’s conclusion that Letour-neau’s prior stipulation for private probation should be treated as a “neutral factor” in determining Letourneau’s discipline. The referee treated the stipulation as a neutral factor because the stipulation was signed after the expiration of the statute of limitations applicable to Sutherland’s personal injury claim. This court generally treats prior discipline as an aggravating factor even when the prior discipline is imposed after the misconduct at issue occurs. See, e.g., In re Brehmer, 642 N.W.2d 431, 434 (Minn.2002) (noting attorney’s prior discipline in determining current discipline when majority of misconduct for current petition occurred before prior discipline was imposed). Accordingly, the referee did not place appropriate weight on this aggravating factor.

The Director further argues that the prior misconduct was of a similar nature to Letourneau’s current misconduct and therefore requires a more severe sanction. Although the Director is correct that Letourneau’s prior misconduct should be treated as an aggravating factor, we disagree with the Director’s argument that Letourneau’s private probation for a failure to cooperate with the Director is similar to a failure to act diligently on behalf of a client.

Recent decisions of this court disciplining attorneys for violations of Rules 1.3 and 1.4 have ordered public reprimands, as the referee in the instant case recommended. E.g., In re Ohlsen, 696 N.W.2d 786, 787 (Minn.2005); In re Moore, 692 N.W.2d at 451; In re Ruhland, 689 N.W.2d 167, 167 (Minn.2004). In each of those cases, we ordered supervised probation as well.

Letourneau’s failure to commence an action for Sutherland prior to the expiration of the statute of limitations is a serious lapse of diligence. By not informing her of the expiration of the statute of limitations, he compounded his error and caused her additional harm. Although we accept the referee’s finding that Letourneau has installed a case management system to help him avoid such an error in the future, we are concerned that Letourneau’s lack of experience in working as a sole practitioner in his own office increases the risk of similar errors. Therefore, to prevent similar harm to other clients, we conclude that one year of supervised probation should be added to the discipline recommended by the referee. Thus, the appropriate discipline is a public reprimand, one year of supervised probation, and payment of $900 in costs pursuant to Rule 24, Rules on Lawyers Professional Responsibility. The supervised probation shall include the following conditions:

(1) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(2) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(3) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director, to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date of this opinion. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise agreement, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph 4 below. Respondent shall make active client files available to the Director upon request.
(4) Respondent shall cooperate fully with the supervisor’s efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly.
(5)Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.

So ordered.

      . "A lawyer shall act with reasonable diligence and promptness in representing a client.” Minn. R. Prof. Conduct 1.3.

      . "A lawyer shall keep a client reasonably informed about the status of a matter * * *.” Minn. R. Prof. Conduct 1.4(a), 14 Minn.Stat. 1386 (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      ."It is professional misconduct for a lawyer to * * * engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Minn. R. Prof. Conduct 8.4(c).


author: R.A. RANDALL, Judge.

text:
    Lester WENIGAR, Respondent, v. Lee JOHNSON, d/b/a Johnson’s, Johnson’s Sanitation, and Stratton Farms, Appellant.
    Nos. A05-158, A05-473.
    Court of Appeals of Minnesota.
    April 4, 2006.

      Eric Magnuson, Peter Gray, Rider Bennett, L.L.P., Minneapolis, MN; and Felix Mannella, Babcock, Neilson, Mannella, La-fleur & Klint, P.L.L.P., Anoka, MN, for appellant.
    Claire Schaff, Connor, Satre & Schaff, L.L.P., Cambridge, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge, RANDALL, Judge, and COLLINS, Judge.

         Retired judge of the district court, serving as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

R.A. RANDALL, Judge.

Respondent Lester Wenigar brought an action against appellant Lee Johnson, his former employer, asserting violations of the Fair Labor Standards Act (FLSA), disability discrimination under the Minnesota Human Rights Act (MHRA), violations of Minn.Stat. §§ 181.13, 181.79, and intentional infliction of emotional distress. The district court found Johnson liable for intentional infliction of emotional distress and for violations of the MHRA and the FLSA. The court later denied Johnson’s new trial motion and partially granted Wenigar’s petition for an award of attorney fees. Johnson appeals from the denial of his motion for a new trial and from the fee award. With respect to the FLSA claim, Johnson argues that (1) he is exempted from the overtime provisions of the FLSA because he is employed in agriculture and his farm business was not an “enterprise engaged in commerce;” (2) the district court abused its discretion in awarding Wenigar FLSA liquidated damages because Johnson is entitled to the benefit of the “good faith” defense; and (3) the district court clearly erred by finding that Wenigar worked 24 hours a day, six days a week. With respect to the MHRA claim, Johnson argues that (1) the MHRA does not include a cause of action for “disability hostile work environment;” (2) Wen-igar did not satisfy the requirements of a hostile-work-environment claim; and (3) there was no basis for an MHRA damage award. Johnson also argues that (1) the award of attorney fees under the FLSA and the MHRA must be reversed because Wenigar cannot prevail on those claims; and (2) the district court erred in finding Johnson liable for intentional infliction of emotional distress. Affirmed in part, reversed in part, and remanded.

FACTS

Lee Johnson, appellant, a pig farmer, owns and operates a farm with approximately 700 hogs. As a way to feed his pigs, appellant made arrangements with various restaurants, grocery stores, and hotels to collect leftover and discarded food. Each business places its discarded food in large buckets or cans that are collected by appellant’s employees. The discarded food is hauled to the pig farm where it is eventually fed to the pigs.

Appellant also owned a sanitation hauling business. Appellant’s sanitation business hauled refuse from commercial businesses to local landfills. His sanitation and food collection routes were separate and unrelated. He eventually sold the sanitation business in 2000.

All of appellant’s businesses, which he owned as sole proprietorships, had the same address and were operated from the same location and office. Appellant’s assets and businesses were intermingled on one tax return.

Lester Wenigar, age 57, respondent, was an employee of appellant. Respondent has a limited ability to read and write and an I.Q. of 54. Respondent cannot drive and does not possess a driver’s license.

Until he entered the sixth grade, respondent was raised on a farm. Then his family ties were distorted by the death of his mother. Respondent and his father moved to the Twin Cities area where respondent did not live with his father but with his uncle. While living with his uncle, he primarily performed farm chores. He had no contact with his father from age the time he was 10 until he was 18. Through out his life, respondent has worked as a dishwasher at local café, in a scrap yard, was unemployed for approximately three years, and eventually found employment with appellant in 1993.

Respondent was initially hired by appellant to clean pig pens, bed pigs, wash empty food cans, and spread manure using a tractor on appellant’s farm located in Andover. He worked Monday through Saturday, 7:00 a.m. to 4:30 p.m. At the start of his employment, respondent enjoyed working for appellant and would often refer to appellant as “bud” or even “dad.”

Beginning sometime in 1994, respondent began working overnight on the farm, as instructed by appellant. Appellant had trouble with people breaking into and stealing from farm buildings. Although he assumed that he was getting paid for his nighttime duties, respondent did not record his time on his timecard because he was instructed not to by appellant. Appellant told him that he would be paid “when the companies [sic] not there anymore.” While working his night duties, respondent normally slept three to four hours, waking up at 4:00 a.m. to prepare the food collection trucks for their routes.

During the summer of 1998, appellant moved his operations to Isanti. Respondent continued working his normal duties at the Isanti location, as well as his night watch duties. Appellant argued that he never instructed respondent to continue his night-watch duties at the Isanti location. Respondent’s work routine at Isanti began at 3 a.m. by preparing the food collection trucks for their routes, collecting food from various businesses, returning to the farm to perform chores,, and ending the day by washing cans. He worked nonstop beginning at 3:00 a.m. and ending at approximately 11:00 p.m. Although he retired no later than 11:00 p.m., he would awake throughout the night when needed to keep watch. He never slept through the night.

While performing duties on the farm, respondent was paid an hourly wage of $5.50 and when collecting food, he was paid $.50 per can. He was not paid overtime for the time he collected food.

Beginning in 1997, respondent’s relationship with appellant began to change for the worse. Appellant began shouting at respondent every day and often accused him of not completing his work, which respondent believed to be the work of three men. He was never allowed to take breaks unless he hid in the barn without anyone’s knowledge. He would request breaks but appellant told him no. Respondent attempted to take a vacation on one occasion but it was cut short because appellant demanded he return to work. Respondent was afraid of appellant. He was afraid to quit. He feared he would not find another job because appellant told everyone he was stupid and retarded. Respondent was routinely teased and insulted at work.

Respondent’s living quarters on the farm were uninhabitable. The room that he lived in on the farm measured 8' x 10'. It was' essentially a storeroom over a garage with no air-conditioning, electrical outlets, windows, heat registers, carpet, or paint on the walls. Respondent often complained to appellant about his living quarters, stating it was either too hot in the summer or too cold in the winter. He often slept in appellant’s office in a chair in order to stay warm or cool.

The refrigerator in the room did not work properly and respondent resorted to eating food that would not spoil. He ate food from cans on the food collection route, as did other employees. There was a microwave oven for his use but respondent testified that appellant instructed him not to use it because of the electric bill.

As a result of his working and living conditions, respondent suffered emotional and psychological injuries. Respondent’s housemate, Deloris Thomas, testified that in the late 1980’s and into the early 1990’s, respondent was talkative, humorous, and jovial. Thomas testified that respondent is no longer the same person. She testified that beginning in 1994, respondent changed physically and emotionally, looking run-down, skinny, and sickly. Emotionally he was not talkative, happy, friendly, or outgoing. She testified that respondent slept all the time when he was not working. Respondent would often call her from work crying, complaining about appellant. She testified that respondent was afraid to “put up a fight or a fuss” because he feared that appellant would terminate his employment. When his work environment got to the point that he could not function, he would go to his hiding place in the straw to cry. Due to a work-related injury, respondent’s employment with appellant ended in 2001.

Respondent sought treatment from Dr. Rebecca Thomley, a licensed clinical psychologist, after ending his employment with appellant. Dr. Thomley diagnosed respondent with post-traumatic stress disorder and dysthymia. It was Dr. Thom-ley’s opinion that respondent suffered dreaming problems, intruding thoughts, the feeling he was being threatened, and trouble sitting still and thinking. Other symptoms included not interacting with others, changes in relationships, and isolation. Dr. Thomley described respondent as passive and vulnerable. It was Dr. Thomley’s opinion that respondent experienced a traumatic event caused by another individual. She believed that it will be far too difficult for respondent to recover because his harm was intended and deliberate. She opined that he may never recover.

Appellant also called upon Dr. Thomas Gratzer, a board-certified psychiatrist, for an expert opinion. He described respondent as borderline intellectual functioning to mild mental retardation. He opined that someone with limited cognitive abilities was more vulnerable to emotional and psychological injury. It was also his impression that being called “stupid” and “retard” was an ongoing daily event while respondent was working. Dr. Gratzer testified that respondent’s version of the events described a negative, antagonistic, persecutory environment, and that respondent may have developed psychiatric symptoms in this environment. Dr. Grat-zer actually expected respondent to have more problems than he displayed or reported. He believed that respondent was sleep and food deprived and overworked.

For litigation purposes, Dr. Susan Phipps-Yonas, a licensed psychologist, was retained to examine respondent. She opined that respondent met the criteria for a diagnosis of post-traumatic stress disorder and that his abusive experiences on the farm caused his traumatic stressors.

Presently, respondent wakes every night crying and experiences nightmares. He currently takes medication to help him with emotional distress.

Respondent brought claims against appellant for (1) disability discrimination in violation of the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363A (2004); (2) intentional infliction of emotional distress; (3) violation of the Federal Fair Labor Standards Act (FLSA); (4) violation of Minn.Stat. § 177, payment of minimum wages, and the Minnesota Fair Labor Standards Act; (5) payment pursuant to Minn.Stat. § 181.13 (2004); and, (6) violation of MinmStat. § 181.79 (2004), wage deductions for faulty workmanship, loss, theft, or damage.

The district court found that respondent had a limited mental capacity that all appellant’s employees were aware of respondent’s limitations, and that respondent was psychologically harmed while working for appellant. It found there was discriminatory conduct against respondent that continued and worsened throughout his employment.

The district court found that appellant owned three businesses that were operated together at the same location and that all assets were intermingled on one tax return. It also found that appellant’s businesses could not be disassociated from one another and that appellant sold hogs directly to clients in Iowa and was engaged in interstate commerce. The court found that respondent worked both hauling and collecting cans of garbage and farm work and that respondent was paid for work, regardless of which business he was working for.

The district court established the following: respondent was teased, taunted, and worked in an offensive environment, which was known by appellant; appellant knew that other workers conned respondent into doing their work; appellant’s conduct and actions caused respondent to be in fear of him; appellant had total power over and manipulated respondent; appellant’s conduct was extreme and outrageous; respondent suffered severe emotional distress; respondent’s injuries were the result of extreme and outrageous conduct by appellant; and respondent’s injuries were severe and extensive, affecting his entire life.

The district court concluded that respondent was disabled, as defined under Minn. Stat. § 363.03 (now codified as 363A.03) and that appellant regarded respondent as disabled. The district court determined that respondent suffered disability discrimination and a hostile work environment due to his disability, in violation of Minn.Stat. § 363A.01, subd. 41, and that appellant should have known of the discrimination and hostile work place, which he failed to remedy. The district court determined that respondent suffered intentional infliction of emotional distress, that appellant violated the FLSA by not paying respondent for overtime, and that respondent was not entitled to a penalty for no payment after a written demand for wages under Minn.Stat. § 181.13.

After trial, appellant moved for amended findings and/or a new trial but the motion was denied. At the same time, respondent’s motion for punitive damages was denied and he was granted partial award for attorney fees and disbursements. This appeal followed.

ISSUES

I. Did the district court err in finding appellant liable under the federal and state Fair Labor and Standards Act (FLSA)?
II. Did the district court err by finding appellant liable under the Minnesota Human Rights Act (MHRA)?
III. Did the district court err in finding appellant liable for intentional infliction of emotional distress?
IV. Did the district court properly award damages and attorney fees?

ANALYSIS

I. Federal and State Fair Labor and Standards Act (FLSA)

Appellant argues that the district court erred by finding him liable under the FLSA. He argues that he is not liable under the FLSA because respondent was employed in agriculture and under both the federal and state FLSAs, individuals employed in agriculture are exempt from receiving overtime pay. Additionally, appellant argues that his farm business was not an enterprise engaged in commerce and therefore cannot be covered by the federal FLSA.

a) Federal FLSA

Employed in Agriculture

Appellant argues that respondent was exempt from receiving overtime pay because he was an employee employed in agriculture and under the state and federal FLSAs, employees engaged in agriculture are exempt from receiving overtime pay.

A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003) (citing Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984)).

The federal FLSA sets forth labor requirements for employees who are engaged in interstate or foreign commerce or in the production of goods for such commerce. See 29 U.S.C. §§ 206-07 (2004). Employers must adhere to the requirements under the FLSA unless the Act provides for an exception. One of these exceptions is if an employee is employed in agriculture. 29 U.S.C. § 213(b)(12) (2004). Under the FLSA, agriculture:

... includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities ... the raising of livestock, bees, fur-bearing animals, or poultry, and any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

29 U.S.C. § 203(f) (2004).

In Bayside Enterprises, Inc. v. NLRB, the United States Supreme Court held that the definition of farming includes “both a primary and a secondary sense.” 429 U.S. 298, 300, 97 S.Ct. 576, 579, 50 L.Ed.2d 494 (1977). Primary farming includes “specific practices such as cultivation and tillage of the soil, dairying, etc ...,” and secondary farming is agriculture in a broader sense, including “any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with ‘such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762-763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672 (1949).

Appellant argues that respondent was employed in agriculture under the primary farming definition. Appellant relies on the wording in 29 U.S.C. § 203(f) which states that primary farming includes “farming in all its branches” and the “raising of livestock” and argues that respondent’s duties fit within this definition of an employee employed in agriculture. Appellant also relies on interpretive regulations from the United States Department of Labor (DOL). Regulations from the DOL are entitled to judicial deference and are the “primary source of guidance for determining the scope and intent of [FLSA] exemptions.” Key West, Inc. v. Winkler, 322 Mont. 184, 95 P.3d 666, 668-69 (2004). The DOL has concluded that “[if] an employee is employed in any of these activities [listed in 29 U.S.C. § 203(f)], he is engaged in agriculture regardless of whether he is employed by a farmer or on a farm.” 29 C.F.R. § 780.105(b) (2004). The DOL has further explained that “[employees] are employed in the raising of livestock ... only if their operations relate to animals of the type named and constitute the ‘raising’ of such animals. If these two requirements are met, it makes no difference for what purpose the animals are raised or where the operations are performed.” 29 C.F.R. § 780.119. Livestock has been defined by the DOL as “domestic animals ordinarily raised or used on farms,” which includes “cattle (both dairy and beef cattle), sheep, swine, horses, mules, donkeys, and goats.” 29 § C.F.R. 780.120 (2004). Finally, appellant relies on the DOL’s definition of “raising” which “includes such operations as the breeding, fattening, feeding, and general care of livestock.” 29 C.F.R. § 780.121 (2004).

Applying these interpretive definitions to respondent’s duties, we find that respondent was an employee engaged in agriculture. Respondent’s primary duties were done for the sole purpose of “fattening, feeding, and the general care of livestock.” Id. He routinely cleans and beds pigs. His work on the food collection route served only one purpose, to feed pigs.

Not only is respondent an employee engaged in agriculture under the primary farming definition, but also he is such an employee under the definition of secondary farming. Under the secondary definition of farming, agriculture is defined in a broader sense, including “any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with ‘such’ farming operations.” McComb, 337 U.S. at 762-63, 69 S.Ct. at 1278. The United States Supreme Court has analyzed the application of this definition of agriculture in Holly Farms Corp. v. N.L.R.B., 517 U.S. 392, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996).

In Holly, the issue was whether employees who hauled chickens from independent contractor farms to their employer were employees engaged in agriculture. Id. at 394, 116 S.Ct. at 1399. In order to raise its chickens for slaughter, Holly Farms sent its baby chickens to independent contractor farms to be raised and fattened. Id. at 395, 116 S.Ct. at 1400. Once the chickens were ready for slaughter, Holly employees, known as “live-haul crews” went out to the farms to reclaim the chickens for slaughter. Id. The crews were made up of truck drivers, catchers, and forklift operators. Id. Because all parties agreed that the live-haul crews were not employed in agriculture under the primary definition of farming (the crews did not raise livestock) the Court had to determine whether the crews where employees engaged in agriculture under the secondary definition. Id. at 399-400, 116 S.Ct. at 1402.

In its analysis of the meaning of secondary farming, the Court found that the crews’ duties did not constitute work “performed by a farmer” because their employer had contracted the raising of the chickens to independent farmers. Id. at 400, 116 S.Ct. at 1402. The Court reasoned that Holly Farms lost its status as a farmer engaged in raising chickens when it contracted with the independent farmers, therefore, the crews’ activities were not performed by a farmer. Id. The Court reasoned that Holly Farms could not “reclaim” its farmer status by merely returning to pick up the chickens. Id. Unlike the crews’ employer in Holly, appellant owned both the pigs and the food collection business. There was no independent contractor carrying out the food collection. Respondent collected the food and cared for the pigs. In accordance with the holding in Holly, because appellant never lost his status as a farmer, neither did respondent.

Although the Court in Holly held that the workers’ activities were not “by a farmer,” the workers could still be employed in agriculture if their work was “on a farm, as an incident to or in conjunction with such farming operations.” Id. Holly Farms conceded that the truck drivers did not work on a farm but argued that the catchers and forklift operators worked on a farm because their work was incidental to farming operations. Id. at 400-01, 116 S.Ct. at 1402. The Court held otherwise. Id. at 401, 116 S.Ct. at 1402. The Court reasoned that “to qualify for the statutory exemption, ... the work must be incidental to, or conjoined with, primary farming operations.” Id. at 402, 116 S.Ct. at 1403. The Court reasoned that the catchers and forklift operators could not be incidental or conjoined with primary farming operations because Holly Farms was not involved in primary farming. Id. Furthermore, the workers activities were not incident to or conjoined with the independent contract farms because the workers had no business relationship with the independent farmers. Id.

Unlike the employer in Holly, appellant was involved in primary farming, the raising of pigs. Respondent’s activities, whether conducted on the farm or while food collecting, were a result of respondent’s business relationship with appellant. Respondent’s work was incident to appellant’s pig farming. In its analysis and to bolster its position, the Court in Holly found that there was “minimal overlap between the work of the live-haul crew and the independent growers’ raising activities.” Id. This is not the case here. There was sufficient overlap between respondent’s work and appellant’s pig raising. Obviously, respondent’s duties on the farm were in support of appellant’s pig raising, and so was respondent’s food collection. He colleted food to feed the pigs. There was more than minimal overlap between respondent’s work and appellant’s pig raising. The DOL has interpreted that in order to qualify as secondary agriculture, work must be performed in connection with the farmer-employer’s own farming. 29 C.F.R. § 780.137 (2004). That is the case here.

The Court in Holly also held that DOL regulations instruct that in “determining whether a practice is performed ‘for’ a farmer, it is ‘highly significant’ whether the practice involves property to which the farmer has title or for which the farmer otherwise had responsibility.” 517 U.S. at 408, 116 S.Ct. at 1406. Here, appellant owns both the pigs and the food collection route. Appellant owns all property and has the responsibility to carry out all duties that respondent performed.

Respondent argues that he worked for two separate entities owned by appellant and that he was not employed in agriculture because his work for one of the entities was not agricultural work. Although the district court found that respondent collected food waste for appellant, respondent never worked for the garbage hauling side of the business. The records show the food collection route was a part of the farming business and had nothing to do with Johnson Sanitation. Respondent’s night watch duties were obviously in furtherance of appellant’s farming operations.

Enterprise Engaged in Commerce

Appellant argues that his farm business is not an enterprise engaged in commerce and therefore his business is not covered by the overtime provisions of the FLSA.

An enterprise engaged in commerce is defined as a business that “has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and whose “annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated).” 29 U.S.C. § 203(s)(l)(A)(i-ii).

Appellant argues that his farming business never had an annual gross volume of sales made of at least $500,000. Tax records show appellant earned the following gross incomes: $340,520 in 1997, $209,620 in 1998, $402,935 in 1999, and $92,137 in 2000. Appellant’s tax returns show he earned the following from the sale of livestock: $288,325 in 1997, $192,747 in 1998, $179,696 in 1999, and $195,233 in 2000. Records show that appellant did not gross at least $500,000 in any year. His farm business is not an enterprise engaged in commerce within the meaning of the federal FLSA.

Nor were appellant’s business operations an “integrated enterprise.” Respondent argues that appellant’s group of business operations should be considered an “integrated enterprise” and if this rings true, he is liable under the federal FLSA. An enterprise is defined by 29 U.S.C. § 203(r)(l) to mean:

the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor.

In Brennan v. Arnheim and Neely, Inc., the Supreme Court of the United States held that there are three main elements to consider when determining whether various entities constitute an enterprise. 410 U.S. 512, 518, 93 S.Ct. 1138, 1142, 35 L.Ed.2d 463 (1973). A court is to consider (1) whether the activities are related, (2) if there is unified operation or common control, and (3) if there is a common business purpose. Id. The three prongs of the test are “conjunctive, not disjunctive” meaning that if the businesses fail to meet any of the three prongs, there is no enterprise under the Act. Griffin v. Daniel, 768 F.Supp. 532, 536 (W.D.Va.1991).

First, we determine whether or not appellant’s businesses engaged in related activities. Appellant currently owns and operates a pig farm and food collection business. Until 2000, appellant also owned and operated a sanitation business. Appellant’s food collection business was essentially an agreement with various businesses to pick up their discarded food so that he could use it as feed for his pigs. Appellant’s sanitation business did as the name suggests; it picked up and hauled garbage from various locations to a local landfill. The purpose of appellant’s sanitation business was not related to the pig farming or food collection.

Although we do not need to consider the other two factors, we do so briefly. Next, we determine whether or not the businesses were subject to common control. Here, it is apparent that appellant oymed and operated all three businesses. Therefore, they were all under common control.

Finally, we determine whether the businesses are linked together by a common purpose. “The critical inquiry is whether there is ‘operational interdependence in fact.’ ” Dole v. Odd Fellows Home Endowment Board, 912 F.2d 689, 692 (4th Cir.1990) (quotation omitted). “The answer to the question whether the activities are ‘related’ or not ... depend in each case upon whether they serve a business purpose common to all the activities of the enterprise, or whether they serve a separate and unrelated business purpose.” Griffin, 768 F.Supp. at 536 (citing 29 C.F.R. § 779.206(b) (1990)). The business activities in question must be in furtherance of the same business objective. Griffin, 768 F.Supp. at 536.

Appellant has a strong argument for his position that his businesses are not a single entity. The purpose of appellant’s pig farm and food collection businesses are to raise pigs for commercial purposes. Food collection is done for the sole purpose of collecting feed for appellant’s pig farm. The district court found that appellant “engages in a pig farm operation, which involves raising and selling pigs and picking up foodstuffs from local businesses to feed the pigs.” Appellant’s sanitation business was operated for the purpose of hauling garbage from local establishments to the local landfill, to dispose of refuse. There is no common purpose between the two businesses. Appellant’s sanitation and pig farm businesses served separate and unrelated business purposes. A common business purpose can not solely rest upon the finding that appellant occasionally exchanged inventory or employees. See id. at 537.

b) Minnesota FLSA

Appellant also cannot be held liable under the Minnesota FLSA. Under Minn.Stat. § 177.23, subd. 7(2) (2004), an individual is not an employee for purposes of the Act if he “is employed in agriculture on a farming unit or operation who is paid a salary greater than the individual would be paid if the individual worked 48 hours at the state minimum wage plus 17 hours at 1 1/2 times the state minimum wage per week.”

The district court erroneously awarded respondent overtime compensation for time worked between September 17, 1999 and April 5, 2001. Due to the fact that respondent is not an employee under Minn.Stat. § 177.23, subd. 7(2), he is not entitled to the district court’s award.

MinmStat. § 177.24, subd. 1 (2004), mandates a minimum wage for employees depending on the earnings of his employer. If the employer’s annual gross sales are at least $500,000, the employer is considered a large employer and the employee’s hourly minimum wage is $5.15; for a small employer, annual gross sales must be less than $500,000 and the hourly minimum wage is $4.90.

Using the hourly wage requirement for a large employer, under Minn.Stat. § 177.23, subd. 7(2), if respondent worked 48 hours at the state minimum wage plus 17 hours at one and a half times the state minimum wage per week, he would have earned $19,687.72 in 1999 and 2000 ($5.15 x 48 hours) + ($7.73 + 17 hours) = $378.61 weekly; $378.61 x 52 weeks = $19,687.72. Records show that respondent earned $36,540.95 in 1999 and $32,590.69 in 2000. Because respondent was paid a salary greater than he would have earned if he were paid for 48 hours at the state minimum wage plus 17 hours at one and a half times the state minimum wage per week, he is not an employee for purposes of the state FLSA. Appellant is not liable, on this basis, under Minnesota FLSA.

II. Minnesota Human Rights Act (MHRA)

Appellant argues that the district court erred by finding him liable under the MHRA. He argues that the MHRA does not include a cause of action for disability discrimination as a result of a hostile work environment. We disagree.

Disability hostile work environment

The district court found appellant liable under the MHRA for disability discrimination for a “disability hostile work environment.”

Whether an action exists under the MHRA for disability discrimination as a result of a hostile work environment is one of first impression in Minnesota. We conclude that such an action does exist under the MHRA. See Shaver v. Independent Stave Co., 350 F.3d 716, 722 (8th Cir.2003) (finding that a claim for a hostile work environment under the American with Disabilities Act (ADA) exists).

Statutory interpretation is a question of law subject to de novo review. Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn.2001). When this court interprets a statute, its goal is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2000). Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn.2001).

The legislature has indicated that the MHRA is to be liberally interpreted so as to accomplish its purposes. Minn.Stat. § 363A.11 (2004). To help us determine if a cause of action exists under the MHRA, it is appropriate to call on the interpretations of the federal anti-discrimination statutes when the provisions of the federal statute and the MHRA are similar. Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn.2002). In Kolton, the Minnesota Supreme Court concluded that because the purposes and language of Minn.Stat. § 363.03 (now codified as 363A.03) and Title I of the ADA were similar, the ADA can appropriately be used to analyze the MHRA. Id. at 408, 410.

Minnesota law states that it is “an unfair employment practice for an employer, because of ... disability ... to discriminate against a person with respect to ... [the] terms, ... conditions, ... or privileges of employment.” Minn.Stat. § 363A.08, subd. 2(c) (2004). Disability is defined as “any condition or characteristic that renders a person a disabled person. A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.” Minn.Stat. § 363A.03, subd. 12 (2004); Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543 (Minn.2001). There is no language under the MHRA that specifically allows for a cause of action for disability discrimination as a result of a hostile work environment.

To find that a claim existed under the ADA for a hostile work environment, the Shaver court looked to the intent of the drafters of the ADA and concluded that Congress intended to include a cause of action for a hostile work environment under the ADA because the language used “prohibited a broad range of employment practices, including workplace harassment.” Shaver, 350 F.3d at 720. Because the language of the MHRA is similar to the language used in the ADA and their purposes are identical, we conclude that a cause of action exists under the MHRA for disability discrimination as a result of a hostile work environment.

Appellant next argues respondent has not proven all elements of his claim. Specifically, he argues that respondent has failed to prove (1) he is a member of a protected group; (2) any harassment was based upon a disability; and (3) any harassment affected the terms, conditions, or privileges of his employment.

To prevail on a hostile work environment claim, respondent must show (1) membership in a protected group; (2) the occurrence of unwelcome harassment; (3) a causal nexus between the harassment and his or her membership in the protected group; (4) that the harassment affected a term, condition, or privilege of employment; and (5) that appellant knew or should have known of the harassment and failed to take prompt and effective remedial action. Goins v. West Group, 635 N.W.2d 717, 725 (citing Carter v. Chrysler, 173 F.3d 693, 700 (8th Cir.1999)).

A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal' issue. Modrow, 656 N.W.2d at 393.

Appellant argues that respondent is not a member of a protected class. We find that he is. Respondent is disabled because he has a mental impairment that materially limits one or more major life activities. He is illiterate and cannot obtain a driver’s license. Respondent is disabled because he is vulnerable as a result of a low IQ, has limited mental capacity, and has no formal education. Coupled with his age, these factors materially limit his social and economic opportunities. In finding that respondent is disabled, we do so narrowly and do not conclude that having a low IQ, alone, is a disability for purposes of the MHRA.

Respondent suffered unwel-comed harassment and was discriminated against because of his disability. Appellant and respondent’s co-workers referred to him as slow and often made derogatory comments as a result of his IQ and limited mental capacity. The district court found that appellant and his co-workers were aware of his limited mental capacity. He was constantly called names being referred to as “stupid,” “you f — king dumb ass,” “brain dead” and “idiot.” Appellant was aware of the name calling and even did it himself. Appellant called respondent a “dumb f — ker,” “stupid,” “retard,” “no good sh-t,” and often told him that he came from a retarded or stupid family. We recognize that “[c]onduct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of the law” but find that the conduct here was more than merely rude, abrasive, unkind, or insensitive. Shaver, 350 F.3d at 721.

We conclude that appellant’s harassment affected respondent’s working environment. The eighth circuit court of appeals has held that “[i]n order to be actionable, harassment must be both subjectively hostile or abusive to the victim and ‘severe and pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive.’ ” Shaver, 350 F.3d at 721 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295, (1993)). The insults were a direct result of his perceived low IQ, limited mental capacity, and other lifestyle shortcomings.

We find that respondent’s coworkers and appellant’s conduct were so “severe and pervasive” as to “alter the conditions of [respondent’s] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). The objectionable environment “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662, (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71,126 L.Ed.2d 295 (1993)).

In ascertaining whether an environment is sufficiently hostile or abusive to support a claim, we look at the totality of the circumstances, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 787-88, 118 S.Ct. at 2283 (quoting Harris, 510 U.S. at 23, 114 S.Ct. at 371).

Respondent was manipulated into working early in the morning after washing cans late into the night and as a result was afforded little time to eat and sleep. He was harassed, chastised, and berated if he tried to take a break to rest and eat. He was constantly made fun of and taunted, causing him to suffer physical illness requiring the use of medication. There is sufficient evidence to find that the harassment was so severe or pervasive to alter the conditions of respondent’s employment and create an abusive working environment. We conclude that appellant was aware of the conduct and failed to take action to remedy the problem.

III. Intentional infliction of emotional distress

Appellant argues that the district court erred in finding that he was liable for the intentional infliction of emotional distress. He argues that the intentional infliction of emotional stress is limited to cases involving egregious facts and that respondent has not met the required high threshold of standard of proof.

Extreme, outrageous, and intentional or reckless

Appellant argues that respondent failed to prove that his conduct was extreme, outrageous, and intentional or reckless.

To prove the intentional infliction of emotional distress, respondent must show appellant’s conduct (1) was extreme and outrageous; (2) was intentional or reckless; (3) caused emotional distress; and that the emotional distress caused by appellant (4) was severe. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn.1983).

Respondent’s standard of proof is a “high threshold” and for appellant’s conduct to be actionable, it must be “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” Id. at 439 (quoting Haagenson v. Nat’l Farmers Union Prop. and Cas. Co., 277 N.W.2d 648, 652 n. 3 (Minn.1979)). Respondent must prove that his mental distress was so severe “that no reasonable man could be expected to endure it.” Id. at 439 (citing Restatement (Second) of Torts 46 cmt. j (1965)). Intentional infliction of emotional distress is “sharply limited to cases involving particularly egregious facts.” Id. We conclude that respondent suffered such emotional distress.

Appellant’s behavior in light of the surrounding facts and circumstances constitutes extreme and outrageous behavior. As a result of the name calling and the taunting, respondent hid in a barn to cry. He often called his housemate crying, complaining about appellant’s behavior. Respondent’s condition materially deteriorated over the years he worked for appellant. He was fearful of appellant to the point that he would not quit his job because he was fearful that appellant would tell other potential employers that he was stupid and dumb. Appellant’s conduct was extreme and outrageous. A reasonable person would not be expected to endure the conduct that appellant was subjected to.

Suffer severe distress

Appellant argues that respondent did not suffer severe distress as a result of his conduct. He argues that respondent failed to show that his distress was caused by his actions.

When determining whether an individual has suffered severe distress, we “may look to ‘[t]he intensity and the duration of the distress.’ ” Cafferty v. Garcia’s of Scottsdale, Inc., 375 N.W.2d 850, 853 (Minn.App.1985) (citing Restatement (Second) of Torts 46 cmt. j (1965)). “If the claimed distress is of the type that people commonly encounter and endure in their lives, then the claim should not even be submitted to the jury.” Id. at 853. The emotional distress suffered by respondent “must be so severe that no reasonable person could be expected to endure it.” Id. Appellant may escape liability “if the distress is exaggerated in comparison to that which a reasonable man would experience under the circumstances, unless the exaggerated distress results from a peculiar susceptibility to such distress of which the defendant had knowledge.” Id. at 854.

Respondent suffered severe distress as a result of appellant’s conduct in the form of nightmares, crying spells, and feelings of hurt. His condition deteriorated over the years he worked for appellant. He suffered physical illness as a result and currently takes medication to control his illness. We find that respondent’s emotional distress is indicative of distress that no reasonable person could be expected to endure. Expert testimony supports the conclusion that respondent suffered severe distress as a result of appellant’s conduct.

The record shows that respondent suffered from post-traumatic stress disorder (PTSD). One expert testified that respondent’s experiences on the farm constituted the traumatic stressor for PTSD.

IV. Damages and Attorney Fees

The district court awarded the following damages: $150,000 for emotional distress, $50,000 for future emotional distress, $39,819 for past economic loss, $119,909.50 pursuant to the MHRA, and $79,638 pursuant to the federal and Minnesota FLSA. Total damages awarded by the district court totaled $439,366.50.

Federal and Minnesota FLSA

Because we conclude that appellant is not liable under the federal and Minnesota FLSAs, respondent is not entitled to damages awarded pursuant to those acts nor is he entitled to damages for any past economic loss awarded for unpaid overtime.

Intentional Infliction of Emotional Distress

Appellant argues that the district court erred by awarding respondent damages for his emotional distress from 1996 to present. He argues that this is contrary to the evidence and to the two-year statute of limitations for claims of intentional infliction of emotional distress.

We review an award of damages for abuse of discretion. Robert W. Carlstrom, Co., Inc. v. German Evangelical Lutheran St. Paul’s Congregation of the Unaltered Augsburg Confession at Jordan, 662 N.W.2d 168,173 (Minn.App.2003).

The district court awarded respondent $150,000 for emotional distress from January 1, 1996 to June 4, 2004. Appellant argues the record shows that respondent was satisfied and enjoyed his time working for appellant until 1997 and that for the court to award damages for emotional distress before this period is in error. The district court found that discriminatory conduct began, continued, and worsened throughout respondent’s employment and awarded damages pursuant to the continuing doctrine violation.

Appellant argues that respondent’s claim for intentional infliction of emotional distress cannot be tolled under the continuing tort or violation doctrine. In Minnesota, the continuing violation doctrine is most commonly applied in discrimination cases involving wrongful acts that take place over a period of time, rather than in a series of discrete acts. See Sigurdson v. Isanti County, 448 N.W.2d 62, 66-67 (Minn.1989); see also Giuliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn.App.1994). But it has been applied to other areas of law. See Northern States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 28-29 (1963) (trespass); State Dep’t of Labor Indus. v. Wintz Parcel Drivers, Inc., 555 N.W.2d 908, 912 (Minn.App.1996) (workers’ compensation coverage), review granted in part, decision modified, 558 N.W.2d 480 (Minn.1997). There is no record of the continuing tort or violation doctrine being applied to a claim of intentional infliction of emotional distress. We conclude that the “continuing doctrine’’ does not apply to the facts before us. The damages awarded are restricted by the two-year statute of limitations. The question of which statute of limitations to apply is one of law, which this court reviews de novo. Manteuffel v. City of North St. Paul, 570 N.W.2d 807, 809 (Minn.App.1997).

Minn.Stat. § 541.07(1) (2004) states that “the following actions shall be commenced within two years: (1) for libel, slander, assault, battery, false imprisonment, or other tort, resulting in personal injury .... ” (emphasis added). Appellant is correct; there is two-year statute of limitations for commencing an intentional infliction of emotional distress claim. See Wallin v. Minnesota Dept. of Corrections, 598 N.W.2d 393, 400 (Minn.App.1999), review denied (Minn. Oct. 21, 1999). Damages awarded for past emotional distress need to be adjusted to the two-year’ statute of limitations.

MHRA

We also conclude that respondent is entitled to damages under the MHRA but for an amount different from the district courts award. Whether the district court’s award for damages under the MHRA was proper is reviewed by this court under an abuse of discretion standard. Phelps v. Commonwealth Land Title Insurance Co., 537 N.W.2d 271, 274 (Minn.1995). Findings as to an award for damages under the MHRA by the district court sitting without a jury will not be set aside unless clearly erroneous, giving due regard to the district court’s opportunity to judge the credibility of witnesses. Kohn v. City of Minneapolis Fire Dept., 583 N.W.2d 7, 14 (Minn.App.1998), review denied (Minn. Oct. 20,1999).

The district court awarded respondent damages under the MHRA in the amount of $119,909. The district court arrived at this figure by adding the amount awarded for past and future emotional distress to the amount awarded for past economic wage loss and then dividing that amount by 50%, which is permitted under Kohn. Id. (stating that when a court finds unfair discriminatory practice, it may award compensatory damages “in an amount up to three times the actual damages sustained.”). We conclude that the district court was in error to add to the amount of damages awarded for past and future emotional distress ($200,000) the amount of $89,819 for past economic wage loss. The correct amount of damages under the MHRA, excluding the amount for past economic wage loss and keeping with the equation of the district court, is $100,000.

Appellant argues that the district court was wrong to award respondent damages under the MHRA in addition to the amounts already awarded. He argues that the award fails to adhere to the purpose of the MHRA, which is to put the respondent back into the same position he would have been in had no discrimination occurred. Brotherhood of Ry. and S.S. Clerks, Freight Handlers, Exp. and Station, et al., 303 Minn. 178, 195, 229 N.W.2d 3, 13 (1975). He argues that respondent received a “windfall.”

Respondent argues that when a court finds unfair discriminatory practice, it may award compensatory damages “in an amount up to three times the actual damages sustained.” Kohn, 583 N.W.2d at 14 (quoting Minn.Stat. 363.071, subd. 2 (1996); now codified as 363A.29, subd. 4(a)). We find respondent’s argument persuasive.

In Phelps, where disability discrimination was proven, the petitioner challenged the district court’s award of compensatory damages in the amount twice that of the actual damages proved at trial pursuant to Minn.Stat. 363.071, subd. 2 (now codified as MinmStat. 363A.29, subd. 4(a)). Phelps, 537 N.W.2d at 274. The petitioner put forth arguments similar to appellant.

The supreme court in Phelps held that multiplication of damages under the statute was proper. Id. at 274. The court held that because the statute gave no guidelines as to when and under what circumstances a court may multiply damages, it was in the discretion of the district court when to multiply damages. Id.

The petitioner next argued that before any multiplication of damages occurred, the court had to find that the victim was not fully compensated. Id. at 275. The court disagreed concluding “after an initial finding of damages, a trial court need not make an additional finding that uncompensated damages exist prior to multiplying damages.” Id.

Next, the petitioner argued that the district court failed to make findings in support of its award of double damages. Id. at 276. The supreme court has held that the statute:

does not require a trial court to make any findings prior to multiplying damages. If the legislature had said damages may be trebled only if the trier of fact determines that actual damages are nominal or uncompensated damages exist, then failure by the trial court to make findings prior to multiplying damages would be error. However, since the legislature has not made findings of any sort a requirement, we conclude that no findings are necessary to support a trial courts’ decision to multiply damages. Id.

Finally, the petitioner argued “that the trial courts’ award of both punitive damages and double actual damages constituted an unfair double recovery for punitive damages.” Id. Again, the supreme court has disagreed, concluding that “multiple compensatory damages are not duplicative of punitive damages where at least one objective of multiple compensatory damages is nonpunitive. Thus, the district courts’ award of both punitive damages and double actual damages does not constitute an unfair double recovery for punitive damages.” Id. at 277.

Based on the above analysis, the district court properly awarded damages under the MHRA. It awarded damages as a result of respondent’s emotional distress as a result of his discrimination. The district court found that highly egregious conduct occurred. Accordingly, the district court had discretion to fashion a damage award appropriate under the circumstances.

After considering the issues, we conclude that respondent is entitled to damages for past and future emotional distress, damages pursuant to the MHRA along with attorney fees and costs and disbursements awarded by the district court. This case is remanded to the district court so that damages may be recalculated.

DECISION

We conclude that appellant is not liable under the federal or state FLSAs.

We find that a cause of action does exist under the MHRA for a hostile work environment as a result of discrimination based on a disability, and that appellant caused a hostile environment for respondent based on respondent’s mental disability-

The district court properly found that appellant’s conduct toward respondent was extreme, outrageous, and intentional or reckless, which intentionally inflicted severe emotional distress on respondent.

Respondent is entitled to additional damages under the MHRA along with damages for appellant’s intentional infliction of emotional distress.

Because we are reversing in part and remanding in part and that affects the damages amount owed to respondent, we remand to the district court to recalculate damages in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

      . Even if we were to use the minimum wage for a small employer, appellant would not be found liable under the Minnesota FLSA.


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Kenneth Eric HANKE, Appellant.
    No. A05-261.
    Court of Appeals of Minnesota.
    April 11, 2006.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Katherine Johnson, Chisa-go County Attorney, Center City, MN, for respondent.
    John M. Stuart, State Public Defender, Minneapolis, MN; and John J. Brogan, Special Assistant State Public Defender, Dorsey & Whitney LLP, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, HUDSON, Judge, and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

KLAPHAKE, Judge.

Appellant Kenneth Eric Hanke was convicted of fifth-degree possession of cocaine in violation of Minn.Stat. § 152.025, subd. 2(1) (2002). He moved posttrial for a Schwartz hearing because of improper comments made by the bailiff in the presence of at least three jurors during trial. The district court found that the bailiff had commented on the pervasive methamphetamine problem in Chisago County and suggested that such offenders should be imprisoned. The court concluded that the comments were harmless. We reverse and remand for a new trial.

FACTS

On the afternoon of January 6, 2003, Corporal R.S. Berg of the Chisago County Sheriffs Department drove past a blue Camero driven by Anthony Scholten. Berg recognized the car and knew that Scholten’s driver’s license had been revoked. As he pulled the car over on the shoulder of County Road 22 near Wyoming to initiate a traffic stop, Berg saw the passenger, appellant Kenneth Eric Hanke, make furtive movements in the car and then throw a plastic baggie and what looked like a drug bindle out of the passenger window. Berg called for backup. The stop of the vehicle and appellant’s arrest were videotaped.

During questioning at the scene, Schol-ten admitted that he had obtained more than 350 pseudoephedrine pills, which are used to make methamphetamine; he was not arrested. Appellant refused to admit to any wrongdoing, but police retrieved the plastic baggie and an aluminum foil-encased drug bindle containing what was later revealed to be .2 grams of cocaine. In field tests, the plastic baggie tested positive for drug residue, but it was not sent to the Bureau of Criminal Apprehension for further testing. Appellant was charged with fifth-degree possession of cocaine under Minn.Stat. § 152.025, subd. 2(1).

During appellant’s two-day trial, the jury viewed the arrest videotape because appellant moved for its admission, believing that it would reveal that he had thrown nothing out of the car window. The district court gave a Spreigl instruction to limit jury deliberations to only the charged offense. The jury deliberated more than eight hours before reaching a guilty verdict, at one point informing the court that they were deadlocked. The court individually polled the jurors about their votes.

In a juror exit questionnaire, one juror revealed that the bailiff had spoken with some jurors about there being a real methamphetamine problem in Chisago County and had suggested that the only way to stop the problem was to get the offenders off the streets. Based on these improper comments, appellant moved for and was granted a Schwartz hearing to allow the jurors to be examined by the court in the presence of counsel to determine whether they were influenced by the improper comments. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).

The court individually interviewed 11 of the 12 jurors at the Schwartz hearing. Three of the jurors stated that on two occasions during their breaks, the bailiff had made comments substantially the same as those alleged by the juror in the exit questionnaire. The court found that “the bailiffs conversations were harmless, as [appellant] was not prejudiced by the improper bailiff conduct.”

ISSUE

Was appellant entitled to a new trial because of the improper comments made by the bailiff?

ANALYSIS

The appellate court reviews a district court’s decision whether to grant a new trial because of a court official’s improper prejudicial remarks made in the presence of the jury under an abuse of discretion standard of review. State v. Cox, 322 N.W.2d 555, 560 (Minn.1982). The purpose of a Schwartz hearing is “to avoid harassment of jurors and to provide a record on appeal in cases where, after the jury renders the verdict, the losing party becomes aware of facts which indicate the possibility of jury misconduct.” Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn.1977).

A defendant in a criminal trial has the constitutional due process right to a fair trial and an impartial jury. State v. Varner, 643 N.W.2d 298, 304 (Minn.2002). Private communication about a case between a court official, such as a bailiff, and the jury is improper and “presumptively prejudicial.” State v. Erickson, 610 N.W.2d 335, 338 (Minn.2000); State v. Richards, 552 N.W.2d 197, 210 (Minn.1996) (stating that court officials’ “[p]rivate communications with a juror sitting on a criminal case about the pending matter are presumptively prejudicial”); Cox, 322 N.W.2d at 558 (bailiffs statements about merits of criminal case in presence of jury creates rebuttable presumption of prejudice). Extraneous material heard by jurors that may affect a case, even though that material does not go to the merits of a case, is considered prejudicial, especially if the material places a defendant’s right to an impartial jury in jeopardy. State v. Watkins, 526 N.W.2d 638, 641 (Minn.App.1995). “The presumption of prejudice to the defendant is not conclusive; rather, the government bears the heavy burden of establishing that the contact involving the juror was harmless.” Richards, 552 N.W.2d at 210 (quotation omitted).

The supreme court has set forth a four-part test to weigh whether prejudicial communications between jurors and a court official merit a new trial. Cox, 322 N.W.2d at 559. In reviewing the jury verdict, the court may not scrutinize the jury’s deliberations, which are protected under Minn. R. Evid. 606(b). Id. Instead, a court reviewing the outside influences on the jury must “estimate their probable effect on a hypothetical average jury” by considering “the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.” Id.

The bailiffs comments here were presumptively prejudicial because they were privately made to the jurors and could have affected appellant’s right to an impartial jury. We also conclude that, using the four Cox inquiry factors, the state did not overcome the presumption of prejudice and satisfy its burden of establishing that the contact was harmless.

The bailiff was an officer of the court whose personal opinions might have improperly influenced a jury because of his position of authority and his presumed experience. His comments were made to at least three of the jurors, and possibly more, and they were made on two occasions. The comments pertained to methamphetamine, a drug that was implicated in this ease, even though it was not the subject of the charged offense. Any possible jury confusion from the evidence in the arrest videotape, which contained references to both the charged cocaine offense and methamphetamine use, could have been exacerbated by the bailiffs comments. Further, the overall evidence in the case was circumstantial, and this was a “close” case, as suggested by the fact that the jury was deadlocked during deliberations. Finally, the court had no opportunity to take specific curative measures because it only became aware of the improper bailiff comments posttrial.

On these facts, we conclude that the state did not meet its heavy burden of establishing that the bailiffs contact with the jurors was harmless, and the district court abused its discretion in failing to order a new trial. See Watkins, 526 N.W.2d at 641-42 (bailiffs use of racial epithet and jurors’ repeated use of epithet during deliberations entitled defendant of disparaged race to a new trial when remarks were severe, significant number of jurors heard remarks, evidence did not weigh heavily against defendant, and court had no opportunity to take measures to cure prejudice),

DECISION

We reverse the district court’s decision that the bailiffs improper comments were harmless and remand for a new trial.

Reversed and remanded.