author: KONENKAMP, Justice.

text:
    2004 SD 17
    STATE of South Dakota, Plaintiff and Appellee, v. Patrick Jon THIELSEN, Defendant and Appellant.
    No. 22673.
    Supreme Court of South Dakota.
    Argued on Jan. 14, 2004.
    Decided Feb. 4, 2004.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Timothy D. Bormann, Faulkton, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant was charged with the rape and murder of one woman and the rape of another, as well as aggravated assault and attempted escape from custody. On the morning his jury trial for the rape charge was to begin, he pleaded guilty under a plea agreement to murder and rape. In exchange, the State dismissed the remaining charges and dropped its request for the death penalty, whereupon defendant would receive a life sentence without possibility of parole. After the plea but before sentencing, defendant moved to withdraw his guilty plea. In the hearing to withdraw his plea, defendant alleged that he was innocent and that he had entered the plea under coercion in a state of severe emotional and physical distress. The trial court denied defendant’s motion, finding that he had entered the plea knowingly and willingly and that the motion was frivolous. On appeal, defendant contends that the trial court abused its discretion because his argument that he was coerced into accepting a plea agreement amounted to a tenable reason for withdrawal of his plea. Because the record shows that defendant’s grounds for wishing to withdraw his plea were insufficient, we find no abuse of discretion and affirm.

Background

[¶ 2.] On November 9, 2001, a Brown County Grand Jury indicted defendant, Patrick Jon Thielsen, for the felony murder of Kelly Ryan (Count I), or in the alternative, the first degree murder of Kelly Ryan (Count II). The indictment also charged defendant with the second degree rapes of Kelly Ryan (Count III) and T.L.J. (Count IV). Finally, the indictment charged defendant Tjsdth aggravated assault (Count VI) against a jailer while attempting to escape from custody (Count V).

[¶ 3.] The court appointed attorneys Leon J. Vander Linden, Thomas L. Sannes, and William D. Gerdes to represent defendant. Although the trial court denied defendant’s motion requesting an attorney with greater experience in capital cases, the court authorized attorney Mark Meierhenry to act as a consultant.

[¶ 4.] On February 7, 2002, defendant was arraigned and pleaded “not guilty” to the charges contained in the Indictment. However, on November 11, 2002, the day before trial for the rape of T.L.J., the Brown County State’s Attorney made a plea bargain proposal to defense counsel. That same day defendant was transported from the South Dakota State Penitentiary to a holding cell at the Brown County Jail. Defendant arrived at 5:30 p.m. His holding cell was a six-foot by nine-foot room. The cell contained no water or toilet and was lit by a single light bulb, which remained on throughout the night. The cell contained a mattress that rested directly on the floor.

[¶ 5.] The next morning, November 12, 2002, defendant was allowed to shower and dress for his scheduled court appearance. He wore a suit provided by his wife; however, he was still required to wear handcuffs and a leg brace. At 8:00 a.m., defendant met with his attorneys and his wife in a small conference room. Almost two hours later, defense counsel called in a court reporter to record the discussions on defendant’s decision to accept the State’s plea offer. During this discussion, defense counsel explained to defendant the content and import of the proposed plea agreement. Counsel set forth the pros and cons of accepting the agreement. Counsel spent several minutes explaining to defendant his constitutional rights and the consequences of entering into the plea agreement. At the conclusion of that meeting, defendant signed the plea agreement.

[¶ 6.] Under the agreement, defendant would plead guilty to the murder of Kelly Ryan and the rape of T.L.J. In exchange for his plea, the State would drop the remaining charges and not seek the death penalty.

[¶ 7.] At 10:40 a.m., the change of plea hearing convened. During the hearing, the judge asked defendant whether he had signed the plea agreement, whether he had read the agreement, whether he had understood the agreement, and whether he had the opportunity to discuss the agreement with his attorneys. Defendant answered affirmatively to all the questions. Additionally, the agreement was read aloud by the State. Again, the judge asked if defendant understood and agreed to the plea agreement. Defendant answered that he did. The Indictment was then read aloud by the State. Again, the judge asked if defendant understood the charges against him. Defendant responded, “Yes.” The judge then informed defendant that the minimum sentence was life without the possibility of parole. Defendant acknowledged his understanding of the minimum sentence. The judge informed defendant of his constitutional rights to a speedy and public trial and the rights accompanying a trial. The judge informed defendant that as a result of his guilty plea he would effectively waive those constitutional rights. The judge specifically asked defendant whether he had enough time to speak with his attorneys about his plea, whether he had the opportunity to discuss possible defenses with his attorneys, whether his attorneys had explained his constitutional rights, and whether he was satisfied with his attorneys’ advice. Finally, the judge asked defendant if his plea was voluntary and whether he had been threatened, forced, or intimidated into entering a plea. At no time did defendant indicate to the court that he was not entering the plea knowingly and freely.

[¶ 8.] Following the judge’s questioning, the court found that defendant was acting voluntarily and intelligently, was represented by able counsel, was competent to enter a plea, and understood the nature and consequences of the plea. The defendant then entered his “guilty” plea. Afterwards, the hearing was continued until 2:00 p.m. so that a factual basis stipulation could be prepared.

[¶ 9.] From 10:55 a.m. until 2:00 p.m., defendant sat in the conference room with his wife. The factual basis stipulation was prepared and defendant signed it. At 2:10 p.m., the hearing was reconvened. The judge asked defendant whether he had an opportunity to examine the factual basis stipulation, whether he read it, whether he signed it, whether he consulted with his attorneys before signing it, whether he voluntarily signed it, whether he understood it, and whether the stipulated statement was true and correct. To each question, defendant responded, “Yes.”

[¶ 10.] Although defendant would later testify that he did not read the factual basis stipulation, the statement was read aloud in open court in his presence. In essence, defendant agreed that on November 1, 2001, he premeditatedly murdered Kelly Ryan in her home in Aberdeen, South Dakota, “by ligature strangulation, blunt force trauma to her abdomen causing a ruptured liver, and by stabbing her in the chest with a knife.” Thereafter he fled the scene of the murder. The victim’s body was found on the basement floor of her home. The stipulation also provided that on September 26, 2001, defendant drove T.L.J. and her three-month-old daughter to a remote location in Brown County, where he twice forced T.L.J. to perform oral sex on him and where he performed an act of anal sex on her.

[¶ 11.] After the reading of the factual basis stipulation, the court accepted the plea. Sentencing was set for November 21, 2002. Defendant was returned to the South Dakota State Penitentiary in Sioux Falls where, as a matter of routine precaution, he was placed on a suicide watch. He spent 48 hours confined to a “hard cell.” A hard cell is an eight by ten foot room with a bare concrete floor and a raised concrete pad upon which a mattress is placed. The cell has a toilet, but is kept at a very cool temperature. Inmates confined to a hard cell wear only a gown.

[¶ 12.] During the time he spent in the “hard cell,” defendant came to the realization that he had been pressured by his wife and attorneys into entering his guilty plea. Consequently, he prepared and submitted a pro se motion to withdraw his plea of guilty and a motion to dismiss his appointed counsel.

[¶ 13.] On November 21, 2002, defendant was again transferred to Brown County. At the urging of his attorneys, defendant took the stand to explain his reasons for wishing to withdraw both of his guilty pleas. In support of his plea withdrawal, defense counsel had defendant describe the conditions under which he felt coerced to plead guilty. The prosecutor was given the opportunity to cross-examine.

[¶ 14.] Defendant testified that as a result of his living conditions and in an effort to console his distraught wife, he unknowingly and unwillingly entered into the plea agreement. After personally questioning the defendant, the court denied his motion to dismiss his attorneys and to withdraw his guilty plea, finding that defendant entered into the agreement knowingly and willingly. The judge recalled that when defendant pleaded guilty, the judge did not “note any mental deficiency or any lapse of memory or any other problems or indication that the defendant was emotionally upset in any manner.” Furthermore, the court found that defendant’s testimony “clearly” demonstrated that he understood the proceedings and that defendant’s “motion to withdraw his plea [was] frivolous.” Defendant was then sentenced in accordance with the agreement. With new counsel, defendant now appeals on the following issue: whether the circuit court abused its discretion by denying his motion, made before sentencing, to withdraw his guilty plea because he was coerced into accepting a plea agreement.

Analysis and Decision

[¶ 15.] Defendant argues that the trial court abused its discretion in denying his request to withdraw his plea. SDCL 23A-27-11 provides:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice a court after sentence may set aside a judgment of conviction and permit the defendant to withdraw his plea.

We have often said that when requested to allow a plea withdrawal before sentencing, a “judge’s discretion in the matter should be exercised liberally in favor of withdrawal[.]” State v. Bailey, 1996 SD 45, ¶ 12, 546 N.W.2d 387, 391 (citing State v. Lohnes, 344 N.W.2d 686, 687 (S.D.1984)). Nonetheless, SDCL 23A-27-11 does not create an automatic right to withdraw a guilty plea. State v. Engelmann, 541 N.W.2d 96, 100 (S.D.1995) (citations omitted). While a trial court should exercise its discretion liberally, it need not grant a defendant’s request where such a request is “frivolous.” Id. (quoting State v. Wahle, 521 N.W.2d 134, 137 (S.D.1994)). A request is meritorious if a defendant puts forth “a tenable reason why withdrawal should be permitted, a reason based on more than a mere wish to have a trial.” Id. (citations omitted). Defendants bear the burden of establishing that the request is based on “more than a mere desire to have a trial.” Bailey, 1996 SD 45, ¶ 13, 546 N.W.2d at 391.

[¶ 16.] The question here is whether the trial court abused its discretion in determining that defendant’s motion was without merit. Engelmann, 541 N.W.2d at 100. A trial court abuses its discretion when that discretion is “exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. (citations omitted).

[¶ 17.] In determining whether a request to withdraw a plea is meritorious, a trial court should look to the reasons why a defendant seeks to withdraw the plea. Bailey, Í996 SD 45, ¶ 12, 546 N.W.2d at 391. In State v. Grosh, 387 N.W.2d 503, 506 (S.D.1986), we set forth a non-exclusive list of six potential factors to consider in deciding whether to allow a withdrawal of a guilty plea. Defendant argues:

In the instant case [defendant] has asserted innocence, has asserted that the plea is contrary to the truth, has asserted that he misapprehended the facts, has asserted that advice from his defense counsel is incorrect and has asserted that the plea was procured by misapprehension and improper means via coercion.... This should produce a tenable reason for allowing withdrawal of the plea as no prejudice to the State is evident.

[¶ 18.] We begin our analysis by noting that defendant’s understanding of our reasoning in Grosh is faulty. Grosh does not stand for the proposition that a mere assertion . of one or more of those factors would suffice to meet the burden of demonstrating a tenable reason for withdrawal of a plea. We will examine each of the Grosh elements asserted here.

1. Innocence and Plea Contrary to Truth

[¶ 19.] In Bailey, we noted that a defendant who has pleaded guilty no longer enjoys the presumption of innocence and, on a motion to withdraw the plea, bears the burden of production and persuasion. 1996 SD 45, ¶ 13, 546 N.W.2d at 391 (citations omitted). While defendant now asserts that he is innocent of the charges against him, he presented no evidence to the trial court demonstrating such innocence. In Engelmann, this Court rejected as “meritless” a defendant’s argument that his Alford plea should be freely revocable. Engelmann, 541 N.W.2d at 101. Here, defendant contends that because he now proclaims his innocence he should have been allowed to freely revoke his plea. However, as we stated in Engelmann, a plea “cannot be withdrawn as a matter of course.” Id. Without more than a self-serving declaration of innocence, defendant’s argument is without merit.

[¶ 20.] Defendant produced no evidence during his hearing that his plea was contrary to the truth. He suggests no further proof in his appellate briefs. In Grosh, we cited Champion v. People, 124 Colo. 253, 236 P.2d 127, 130 (1951), as standing for the proposition that a plea might be withdrawn where such a plea was contrary to the truth. Grosh, 387 N.W.2d at 506. In Champion, the defendant produced persuasive evidence that the State would have been unable to prove the elements of the crime charged had his ease proceeded to trial. 236 P.2d at 130. Furthermore, the prosecutor in that case conceded that evidence received after defendant’s guilty plea would not have sufficed to garner a conviction on the crime charged. Id. Here, defendant produced no such evidence or even suggested that the State would have been unable to' prove the charges against him. Therefore, we cannot say that the trial court abused its discretion in denying defendant’s withdrawal on such grounds.

2. Misapprehension of Facts, Faulty Advice, Coercion

[¶ 21.] We deal with defendant’s other assertions together because they each arise from his contention that his guilty plea was the result of overwhelming stress brought on by his poor living conditions and relentless pressure from his wife and attorneys. He argues that these circumstances .placed him under a great deal of physical and emotional stress at the time he entered the plea agreement. Therefore, he believes that the plea was done “without rational thought.”

[¶ 22.] In determining whether a guilty plea was offered knowingly and voluntarily, -we look to the totality of the circumstances. Lohnes, 344 N.W.2d at 688 (citations omitted). Whether a defendant entered into a plea either unknowingly or involuntarily is judged by objective standards. See Engelmann, 541 N.W.2d at 101. Therefore, we must review objectively the facts surrounding defendant’s plea.

[¶23.] Defendant points to his living conditions immediately before his plea as evidence of physical stress sufficient to contribute to his unwitting decision to accept the plea bargain. Specifically, he notes that during his transport from the South Dakota State Penitentiary to the Brown County Jail on November 11; 2002, the day before his change of plea, he was kept in full ankle shackles, and a belly chain, with handcuffs enclosed in a “black box,” a' device to prevent opening the handcuffs. He notes that upon his arrival at the Brown County Jail he was placed in a six by nine foot holding cell that had no water or toilet and only a light that remained lit throughout the night. While defendant argues that such conditions were “beyond what a normal defendant would experience,” he offers no evidence that other similarly situated defendants do not undergo similar conditions. Thus, he has failed to demonstrate that the physical stress he endured would cause a similarly situated person to unknowingly or unwillingly accede to a plea agreement.

[¶ 24.] That the trial court could have reasonably found that defendant’s claim of excessive physical stress was meritless is fortified by the events that transpired immediately after his plea. Upon his return to the South Dakota State Penitentiary, defendant states that he was “placed on a suicide watch and confined in the ‘hard cell.’ ” In his brief, defendant states that it was during his confinement that he “realized he was pressured into making the [guilty plea].” He also notes that the conditions in the “hard cell” were not significantly better than those found in the Brown County holding cell. Yet, it was during this 48-hour confinement that defendant admits he was able to reflect on the events leading up to his guilty plea. According to defendant’s own statements, he was able to think rationally while enduring substantially similar conditions immediately after his plea. Thus, it appears that the physical conditions defendant endured did not alone hinder his ability to think rationally. We cannot say that the trial court abused its discretion in concluding that defendant’s assertion of undue physical stress was insufficient.

[¶ 25.] Defendant next points to the events that transpired the day he accepted the plea agreement as showing that excessive mental stress was unduly placed upon him by his attorneys and his wife. In his testimony, he said he “vaguely” recalled the events leading up to his guilty plea. However, his testimony belies this self-serving statement.

[¶ 26.] He remembered that he was taken to the Brown County Jail on November 11, 2002 in “fflull ankle shackles, belly chain, handcuffs, and black box.” He remembered that upon his arrival at the Brown County Jail he was strip searched. He remembered that at 8:00 a.m. on November 12, 2002, he was “allowed to shower, and dress, and come upstairs to the courtroom for the trial that was to start.” He remembered he wore “a suit with a leg brace and handcuffs on.” He remembered that the leg brace bothered him that morning, because it “kept falling down” and pinched him. He remembered that his attorneys, his private investigator, and his wife were present at the meeting to discuss the plea agreement. He remembered that his wife “basically immediately started crying and holding [his] hand and talking to [him] about the conversation that she had with [his] attorneys the night before.” He remembered that his attorneys had “informed [his] wife that this was a death penalty case and that scared her a great deal.” He remembered that his wife threatened to leave him if he was to persist in pleading not guilty. He remembered he was not thinking clearly at the time. However, he vaguely remembered talking with his attorneys about withdrawing his not guilty plea. He vaguely remembered signing documents that were placed before him. He remembered that his wife did not read the documents placed before him. He remembered, “She had actually made the comment if [he] wanted to read them more thoroughly.” He remembered that he did not actually read all of the documents. He remembered not understanding the documents he was signing.

[¶ 27.] As for his appearance in court, defendant remembered that when he appeared before the judge his emotional state at the time was “[s]till very much emotionally drained and emotionally upset.” He remembered that he was thinking about his wife and- children at the time he pleaded guilty. He remembered that was also the reason why he signed any documents. However, he vaguely remembered the State’s Attorney reading the factual basis stipulation which he had signed. He remembered not understanding what the factual statement meant. And finally, he remembered that the possibility of being executed for the crime did not factor into his decision to enter his guilty plea. Defendant offers only minimal evidence to support any of his assertions. Given defendant's inconsistent and self-serving testimony, we cannot say that the trial court abused its discretion in concluding that defendant merely changed his mind on his desire to have a trial.

[¶ 28.] Defendant’ points to his steadfast refusal to acquiesce in a plea bargain up until the morning that the trial was to commence as evidence of the pressure that was unduly placed on him by his attorneys and his wife. He had discussed proposed plea agreements with his attorneys earlier, but he declined to proceed with them. He submits, “It was only after introducing the added pressure of his wife and her concern for him and-the effect of a jury trial on the family that he altered his stance on the subject.” He notes that he almost- immediately decided to withdraw his guilty plea.

[1129.] In Engelmann, we found no error in the trial court’s rejection of the defendant’s assertion that pressure from family members to accept a plea bargain sufficed to show a tenable reason to withdraw a plea. 541 N.W.2d at 103. Standing alone, an assertion that a plea was made as a result of pressures exerted by family members is not a sufficient cause to grant a motion to withdraw a plea.

[¶ 30.] Moreover, the record does not support defendant’s assertion that his attorneys coerced him into accepting the plea agreement. First, defendant’s wife was present immediately before and during defendant’s signing of the plea agreement at the sole discretion of defendant. Defendant, not his attorneys, had the sole authority to either permit his wife to stay or demand that she leave. Defendant chose to allow his wife to stay. This can hardly be classified as a coercive act by defendant’s attorneys. Second, that defendant’s attorneys urged him to accept a plea agreement does not amount to coercion. This Court has previously stated, “[T]here comes a time when it is defense counsel’s duty to advise a defendant that in the light of the facts and circumstances surrounding the offense his plight is serious indeed and that there appears to be no escape from the harsh truth that he is in fact guilty.” Stacey v. State, 349 N.W.2d 439, 444 (S.D.1984). The transcript of defendant’s private conference with his attorneys during which he signed the plea agreement reveals that defendant’s attorneys were concerned about the probability that defendant would be sentenced to death should he proceed to trial on all the-pending charges. The transcript also reveals that defendant’s attorneys recognized that defendant had very little to gain by pleading not guilty. During the conference defendant’s counsel opined:

[O]ne of the primary reasons that we have urged that, beyond what we view as the strength of the State’s case and the likelihood of a not guilty plea on both the — both the rape charges as well as the murder charge, is the fact that [defendant], in our view, has virtually no chance of being found not guilty of either attempted escape or aggravated assault. [Defendant] is also on parole on a prior rape. And adding up the numbers, it is in essence long enough just on those charges to put him in the penitentiary for the rest of his life, just adding his age.... And adding the potential maximum sentences on the other charges and the reality is [defendant] would be in the penitentiary for the rest of his life or until he is an old man. So our view is that’s going to happen anyway, and what this plea agreement ... avoids the possibility of capital punishment.

This logical advice to defendant was perhaps persuasive, but hardly coercive. Nonetheless, the attorneys reminded defendant of all his constitutional and statutory rights, including his right to a “speedy trial by a judge or jury of 12 citizens of Brown County, South Dakota.”

[¶ 31.] Considering the totality of factors here, we cannot say that it was against reason for the trial court to rule that defendant did not provide tenable grounds to withdraw his plea. Our decision in Engelmann is not helpful to defendant. In Engelmann, we held that a defendant’s diagnosed mental condition sufficed to show that he did not enter into a plea agreement knowingly and willingly. Engelmann asserted that he did not completely apprehend the details of the plea he entered. 541 N.W.2d at 99. To confirm this assertion, he offered the testimony of a psychologist and the letter of a psychiatrist who diagnosed him with “a serious mental illness.” Id. at 99-100. In addition, at the time Engelmann entered his plea, he was taking an antidepressant and a minor tranquilizer. Id. For his part, the State’s psychiatrist noted that Engelmann’s ability to think would have been “blunted.” Id. Engel-mann’s assertion, coupled with evidence, led this Court to hold that his “serious mental disorder was not a frivolous excuse.” Id. at 103. Here, defendant has presented no evidence that his mental capacity was diminished. Instead, he relies solely on his own assertions.

[¶ 32.] In conclusion, the trial court did not abuse its discretion in finding that defendant’s attempt to withdraw his plea was without sufficient support in light of the totality of the circumstances. Defendant was aware that by proceeding to trial on all the charges he risked being sentenced to death. He was aware that by signing the plea agreement he would receive a sentence of life without the possibility of parole. He signed the plea agreement. He acknowledged his understanding of and acquiescence in a guilty plea on at least forty-five separate occasions on the day he pleaded guilty. He signed a factual basis statement that was read to him. In short, defendant has failed to show that any of the factors to which he points objectively lead to the conclusion that he was entitled to withdraw his guilty pleas to rape and murder.

[¶ 33.] Affirmed.

[¶ 34.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, and GORS, Circuit Judge, concur.

[¶ 35.] GORS, Circuit Judge, sitting for MEIERHENRY, Justice, disqualified.


source: Caselaw Access Project

license: Public Domain

text:
    2004 SD 16
    LAKOTA COMMUNITY HOMES, INC., Plaintiff and Appellee, v. Agnes RANDALL, Defendant and Appellant.
    No. 22885.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided Feb. 4, 2004.

      Terri L. Williams of Gunderson, Palmer, Goodsell, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Douglas D. Tucker of Dakota Plains Legal Services, Rapid City, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Agnes Randall leases a home with Lakota Community Homes (LCH). A member of Randall’s household was charged with the offenses of minor consumption and possession of drug paraphernalia. As a result, LCH brought a forcible entry and detainer action against Randall. After a trial in magistrate court, the magistrate concluded that Randall had breached her occupancy agreement and that LCH was entitled to a judgment of eviction. On appeal to the circuit court, the decision was affirmed. Randall now raises two issues before this Court: (1) whether the trial court abused its discretion by entering judgment for LCH based on drug-related criminal activity; (2) whether the trial court erred in awarding attorney’s fees in an unreasonable amount. .Because the magistrate’s conclusion was not clearly erroneous that sufficient grounds existed under federal regulations to evict Randall, we affirm.

Background

[¶2.] In November 1998, Agnes Randall signed an occupancy agreement for a single-family home with LCH. LCH owns a federally subsidized cooperative consisting of 198 dwellings in Rapid City, South Dakota. The U.S. Department of Housing and Urban Development (HUD) subsidizes the cooperative through a Housing Assistance Payment (HAP) Contract with LCH. As a requisite for federal subsidization, HUD mandates that leases between LCH. and its .tenants meet certain requirements. If LCH meets the requirements, HUD pays a portion of the monthly housing charges on behalf of qualified tenants.

[¶ 3.] To meet the federal mandates, LCH requires that tenants complete and sign each year a document entitled “HAP Assistance Addendum to the Occupancy Agreement.” Under the addendum, Randall listed herself and her three sons as occupants of the residence. Furthermore, Randall agreed that “persons occupying [her] household must not engage in or permit;, (a) any criminal activity, including drug related criminal activity, whether in the unit or elsewhere on or near' the Cooperative housing; or (b) any other unlawful- activity in the unit or on the Cooperative housing area.”

[¶ 4.] On May 18, 2002, Randall’s son, Daryl Mesteth, age twenty, was arrested for minor consumption of alcohol and involuntarily committed to “Detox.” The arrest was a result of an encounter between Mesteth and a Rapid City police officer. According to the testimony of the officer, passengers.of a vehicle flagged him down. The vehicle had a broken windshield. The passengers stated that several individuals had used a baseball bat to damage the windshield. After receiving a description of the vehicle the suspects were driving, the officer spoke with a highway construction worker who had witnessed the incident. The worker told the officer that the ■license plate number of the vehicle carrying the vandals was “CUT 3469.” Shortly after broadcasting the description of the vehicle and its license plate number, another officer stopped the vehicle. The occupants of the vehicle fled. However, the officers managed to detain two of the occupants. One of them was Daryl Mesteth.

[¶ 5.] The officer detected an odor of alcohol coming from Mesteth and noted that he appeared to be intoxicated. Mes-teth admitted that he had been drinking alcoholic beverages. Randall later told the officer that her son had an alcohol abuse history. Based on Mesteth’s admission and Randall’s comments, the officer placed Mesteth under arrest for minor consumption of alcohol and proceeded with involuntarily committing him to “Detox.”

[¶ 6.] Mesteth was transported to the Pennington County jail where a search of his person revealed a pipe, alleged by the officer to have “smelled strongly of burnt marijuana.” Mesteth was then additionally charged with possession of drug paraphernalia under SDCL 22-42A-3. The officer testified that the pipe contained a black sooty substance. However, the officer did not believe there was sufficient material in the pipe to conduct an analysis. Eventually, the ticket for possession of drug paraphernalia was dismissed.

[¶ 7.] As a result of the incident, LCH brought a forcible entry and detainer action against Randall, alleging that she had breached the terms of her Occupancy Agreement. Specifically, LCH complained that the actions of Randall’s household member constituted material noncompliance with the agreement, in that Mesteth’s minor consumption, possession of drug paraphernalia, and other criminal activity constituted violations of the Occupancy Agreement that disrupted the livability of the project or adversely affected the health, safety, or right of quiet enjoyment of other tenants.

[¶8.] The action was tried in magistrate court. The magistrate found that Mesteth engaged in criminal activity that threatened the health, safety, or right to peaceful enjoyment of the public housing premises for other residents of LCH. Specifically, the magistrate found that Mes-teth was involved in intentional damage to private property, had consumed alcoholic beverage, and was in possession of drug paraphernalia at the time of his arrest. In its findings, the court also noted that before these incidents Randall had been warned that “if another complaint was received concerning the occupants of her residence, the Board would proceed with an eviction.... ” The magistrate entered a final order and judgment and writ of execution for possession. After reviewing the itemized bill submitted by LCH, the magistrate awarded “necessary and reasonable” attorney’s fees to LCH in the amount of $2,393.60. The circuit court affirmed. In this appeal, we consider whether the eviction order was erroneous and whether the award of attorney’s fees was reasonable.

Analysis and Decision

[¶ 9.] Statutory and contract interpretation are questions of law reviewed de novo. State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994). This Court gives no deference to the circuit court’s conclusions of law. S.B. P’ship v. Gogue, 1997 SD 41, ¶ 8, 562 N.W.2d 754, 756 (citations omitted). Findings of fact are reviewed under the clearly erroneous standard; therefore, we will overturn fact findings only when we are definitely and firmly convinced a mistake has been made. Id. On the issue of whether cause for eviction existed, we are bound to determine only whether the magistrate’s factual findings were clearly erroneous. Id. ¶ 17. “In cases where attorney’s fees are statutorily authorized, the trial court’s ruling is reviewed under an abuse of discretion standard.” Hoffman v. Olsen, 2003 SD 26, ¶ 7, 658 N.W.2d 790, 792. “We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.” City of Sioux Falls v. Johnson, 2003 SD 115, ¶ 6, 670 N.W.2d 360, 362 (citations omitted).

[¶ 10.] Randall asserts that federal regulations forbid LCH from terminating her tenancy under the circumstances presented here. She contends that “no evidence exists [that] this household committed any criminal activity, [or] that this household possessed drug paraphernalia.” Alternatively, Randall asserts that even if Mesteth did possess drug paraphernalia, the possession is not a sufficient basis for termination of her tenancy. Federal regulatory language, Randall argues, allows evictions only for “serious or repeated violation of material terms of the lease.” Under such an interpretation of the regulations, she reasons that the trial court erred in concluding that LCH could properly evict her from the property based on her son’s conduct.

[¶ 11.] We begin by examining Randall’s contention that Mesteth’s actions were not a sufficient basis to terminate her tenancy. The declared policy of the United States is to “promote the goal of providing decent and affordable housing for all citizens through the efforts and encouragement of Federal, State, and local governments, and by the independent and collective actions of private citizens, organizations, and the private sector.” 42 USC 1437. In furtherance of its goal to provide decent housing for all citizens, federal regulations mandate that public housing agencies offer leases that, among other things, “obligate the public housing agency to maintain the project in a decent, safe, and sanitary condition ... [and] provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.” 42 USC 1437d(Z).

[¶ 12.] The grounds under which a lease may be terminated are found in 24 CFR 966.4(Z). Those regulations provide:

(Z) Termination of tenancy and eviction.—
(2) Grounds for termination of tenancy. The PHA [Public Housing Agency] may terminate the tenancy only for:
(ii) Other good cause. Other good cause includes but is not limited to, the following:
(A) Criminal activity or alcohol abuse as provided in paragraph (Z )(5) of this section;
(5) PHA termination of tenancy for criminal activity or alcohol abuse.
(i) Evicting drug criminals.
(B) Drug crime on or off the premises. The lease must provide that drug-related criminal activity engaged in on or off the premises by any tenant, member of the tenant’s household or guest, and any such activity engaged in on the premises by any other person under the tenant’s control, is grounds for the PHA to terminate tenancy. In addition, the lease must provide that a PHA may evict a family when the PHA determines that a household member is illegally using a drug or when the PHA determines that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.
(ii) Evicting other criminals.
(A) Threat to other residents. The lease must provide that any criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including PHA management staff residing on the premises) or threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises is grounds for termination of tenancy.

24 CFR 966.4(¾).

[¶ 13.] Randall argues that these regulations apply only if a family member has engaged in “drug-related criminal activity” or “violent criminal activity” as described in 24 CFR 982.553. Drug-related criminal activity is defined as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug.” 24 CFR 5.100. Therefore, Randall argues that possession of drug paraphernalia does not fit within the regulatory scope of a drug-related criminal activity. While we agree that possession of drug-paraphernalia may not precisely fit within the definition of “drug-related criminal activity,” we do not agree with Randall’s suggestion that the regulations prohibit termination of a lease where an individual possesses drug paraphernalia, participates in criminal activity, and demonstrates a destructive pattern of alcohol abuse.

[¶ 14.] 24 CFR 982.552(c) delineates when housing assistance may be denied or terminated. Section 982.553 of the same title specifically identifies when assistance may, or in certain cases, must be denied or terminated for criminals and alcohol abusers. For example, under section 982.553(b)(l)(ii) a PHA “must immediately terminate assistance for a family under the program if the PHA determines that any member of the household has ever been convicted of drug-related criminal activity for manufacture or production of methamphetamine on the premises of federally assisted housing.” (Emphasis added.) In addition, section 982.553(b)(l)(i) provides that a PHA “must establish standards that allow the PHA to terminate assistance for a family under the program if the PHA determines that: (A) Any household member is currently engaged in any illegal use of a drug; or (B) A pattern of illegal use of a drug by any household member interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.” (Emphasis added.) Also, a PHA “must establish standards that allow the PHA to terminate assistance under the program for a family if the PHA determines that any household member has violated the family’s obligation under § 982.551 not to engage in violent criminal activity.” 24 CFR 982.553(b)(2). In regards to alcohol abusers, the regulations for terminating assistance state that a PHA “must establish standards that allow termination of assistance for a family if the PHA determines that a household member’s abuse or pattern of abuse of alcohol may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents.” 24 CFR 982.553(b)(3).

[¶ 15.] Thus, the regulations do not limit the termination of a lease to “drug-related criminal activity.” It is true that a PHA must terminate the lease of a family where a member of that family has been convicted of “drug-related criminal activity.” However, the regulations also clearly permit a PHA to terminate a lease where the PHA determines that a family member is engaged in the illegal use of a drug, a family member has engaged in violent criminal activity, or a family member’s abuse of alcohol threatens the health, safety, or right to peaceful enjoyment of the premises by other residents.

[¶ 16.] Randall next argues that no evidence existed under which LCH might have determined that Mesteth was engaged in activity warranting eviction. She argues that Mesteth was neither charged nor convicted for the possession of drag paraphernalia or the vandalism of the automobile. Therefore, she contends that the magistrate was clearly erroneous in finding that Randall violated her lease agreement “on the basis a member of her household engaged in criminal activity that threatened the health, safety, or right to peaceful enjoyment of the public housing premises by other residents;” or on the basis that her son was involved in the intentional damage to private property and had possession of drag paraphernalia.

[¶ 17.] 24 CFR 966.4(7 )(5)(iii)(A) provides that “[t]he PHA may evict the tenant by judicial action for criminal activity in accordance with this section if the PHA determines that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction.” Similarly, § 982.553(c) provides that a PHA “may terminate assistance for criminal activity by a household member as authorized in this section if the PHA determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity.”

[¶ 18.] Under these regulations, it is not necessary for a tenant to be either charged or convicted of a criminal act. Here, evidence was presented that Mes-teth participated in the vandalism to the automobile. LCH also presented evidence that Mesteth’s alcohol abuse resulted in behavior that threatened the health, safety, and right to peaceful enjoyment of the premises by other residents. Finally, LCH presented evidence that Mesteth was engaged in the illegal use of drugs. These allegations were the basis for LCH’s determination that it was prudent to evict Randall. Even one of the allegations, if proven, would have been sufficient to justify eviction. See CFR 966.4(Z)(5) (alcohol abuse); CFR 966.4(Z)(B) (illegal use of drag); CFR 966.4(i)(A) (criminal activity threatening right to peaceful enjoyment by other tenants). At trial, Randall presented no facts to rebut LCH’s evidence that Mesteth caused or participated in vandalism, abused alcohol, and used illegal drugs. Instead, Randall relied only on the fact that Mesteth had not been charged or convicted for any of the alleged acts. Under such circumstances, we cannot say that the magistrate court abused its discretion in finding by a preponderance of the evidence that Mesteth had committed the acts alleged.

[¶ 19.] Lastly, Randall disputes the magistrate’s finding that the attorney’s fees request submitted by LCH was necessary and reasonable. She points to several of the itemized charges submitted by LCH’s counsel as duplicative, routine, or unnecessary. However, Randall has not shown that the court abused its discretion in determining that the fees were both necessary and reasonable.

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . While the passengers of the damaged car stated to the officer that the car from which Mesteth fled was definitely involved in the incident that led to the damaged windshield, they were unable to positively identify Mes-teth as directly participating. Therefore, Mes-teth was not charged in relation to that incident.

      . Although Randall argues that Mesteth’s possession of drug paraphernalia was the sole basis of the eviction, the record demonstrates that LCH based its complaint on 'minor consumption, possession of drug paraphernalia, and criminal activity.”

      . Randall does not contend that LCH was not authorized to recover attorney's fees. Her sole contention is that the fees sought by LCH were unreasonable.


author: TERNUS, Justice.

text:
    VAN METER INDUSTRIAL, Appellant, v. MASON CITY HUMAN RIGHTS COMMISSION and Jane Sires, Appellees.
    No. 02-1161.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Mark L. Zaiger and Jennifer E. Rinden of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellant.
    David A. O’Brien of Willey, O’Brien, Mullin, Laverty & Hanrahan, L.C., Cedar Rapids, for appellee Sires.
   TERNUS, Justice.

The Mason City Human Rights Commission ruled that appellant, Van Meter Industrial (VMI), had discriminated against the appellee, Jane Sires, on the basis of her gender and had constructively discharged Sires from her job with VMI in violation of Iowa Code section 216.6 (1997). The Commission awarded back pay, front pay, and damages for emotional distress, denied punitive damages, and entered a remedial order requiring, the company to develop job descriptions and policies to govern promotion decisions. On judicial review, the district court reversed the finding of constructive discharge but otherwise affirmed the Commission, including the damage awards. The court of appeals affirmed the district court with the exception of increasing the amount of front pay and back pay recoverable by Sires. We granted further review.

Upon our review of the record and the applicable legal principles, we hold there was substantial evidence to support the Commission’s finding that Sires was constructively discharged from her employment at VMI. While we agree with the court of appeals that the Commission erred in calculating front pay and back pay, we conclude the amounts computed by the court of appeals must be increased due to our affirmance of the Commission’s finding of constructive discharge. Finally, we concur in the district court’s ruling that the Commission did not have'authority to award punitive damages. In view of these conclusions, we vacate the decision of the court of appeals, affirm in part and reverse in part the judgment of the district court, and remand the case with directions.

I. Scope of Review.

Review of this agency decision is governed by the Iowa Administrative Procedure Act, Iowa Code chapter 17A. See Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 740 (Iowa 2003). The errors asserted by the parties rest on two well-known grounds for reversal under section 17A.19(8): (1) the agency’s factual findings are not supported by substantial evidence in the record as a whole; and (2) the agency relied on incorrect legal principles in making its decision. See Iowa Code § 17A.19(8)(e), (f).

In considering the claimed errors, we rely on well-established principles governing our review. “Evidence is substantial if a reasonable person would find it adequate to reach a given conclusion.” Civil Serv. Comm’n v. Iowa Civil Rights Comm’n, 522 N.W.2d 82, 85 (Iowa 1994). That one may draw a contrary inference from the evidence does not mean the evidence in support of the agency’s factual findings is insubstantial. Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512, 515-16 (Iowa 1990). If we conclude the agency has committed a legal error, it is our obligation to correct it. See Henkel Corp. v. Iowa Civil Rights Comm’n, 471 N.W.2d 806, 809 (Iowa 1991). We turn now to a review of the evidence.

II. Evidence in the Record.

VMI is a wholesale distributor of electrical products, primarily in the industrial market. It has fifteen locations in Iowa, employs over 250 individuals, and has annual sales of approximately $100,000,000.

Jane Sires began her employment with VMI in 1988 as a part-time receptionist in the company’s Waterloo location. She testified she soon realized there were two tracks for advancement within the company: the male track and the female track. Men, depending on their educational background and experience, generally started in the warehouse, moved up through counter sales, inside sales, and outside sales, with the possibility of eventually obtaining a branch manager position or more. Women, on the other hand, started with clerical work and could advance to an “operations manager” or other support position, such as human resources or marketing. It was undisputed the ultimate key to advancement in the company was in sales. At the time Sires made her claim of discrimination, there were only one or two women in outside sales and they were both “lighting specialists,” a narrow and less technical area of sales.

In 1991, Sires took a position as office coordinator at a newly opened branch in Mason City. This position did not involve sales. Because Sires realized she would need sales experience to advance in the company, she asked the branch manager, John Skow, to involve her in counter sales and inside sales. She told Skow her goal was to run her own branch. Skow accommodated Sires’ request and noted in an evaluation of Sires’ job performance that he would be hiring another individual to take over Sires’ clerical duties so Sires could “transition into counter and inside sales.” In her effort to advance in the sales arena, Sires completed the technical training available to inside salespersons and attended sales seminars offered by VMI.

In 1995 Pat’Freilinger became the new branch manager in Mason City and promoted Sires to operations manager. ■ Although Sires’ duties were focused on overseeing all aspects of the daily operation of the branch, she continued to spend approximately forty percent of her time on inside sales. During this period, and throughout her employment with VMI, Sires received very favorable employee reviews.'

In 1996 the company decided to restructure its branch organization. Freilinger was a key participant in the strategic planning process and was gone from the Mason City office for significant periods of time. Sires took on much of Freilinger’s responsibilities during his absence, including business decision making. Her evaluations reflected that she performed these added duties with competence. Her reviews in 1996 and 1997 included the following assessments by Freilinger: (1) Jane has “taken on a lot of responsibilities and duties from me.”; (2) Jane “understands the big picture of running a branch.”; (3) Jane “does very well at making business decisions when I am out of the office.”; (4) “Jane has done a great job at keeping the branch on track and holding things together.”; and (5) “Jane has taken on • more responsibility in the branch and done well with it. She really is the glue that holds things together on a day to day basis.”

Under the new organizational structure, the position of branch manager was to be eliminated and a new position, “local leader,” was created for each branch. The person in this role would be “a lead sales person with the sales knowledge and experience necessary to serve as the local ‘figurehead’ for clients.” In addition, operations management was to be moved from the branch level to the regional level. As part of the reorganization, Freilinger was immediately moved to a new position, leaving vacant the Mason City branch manager position and the future local leader position.

At a January 1998 presentation on the new company organization held in Mason City, the regional general manager, Mark Schon, announced that anyone interested in the local leader job should speak to him. Sires was not present when this announcement was made because she had attended the same presentation earlier in Des Moines. In any event, no one, including Sires, contacted Schon about the local leader position. Schon did not post or advertise the position because he already had someone in mind for the job: Bill Meyers, an outside salesperson in the Mason City branch. Freilinger had hired Meyers, an electrician, in early 1997 with the idea that Myers would be the type of person who could take over for Freilinger should the opportunity arise for Freilinger to move up in the company.

When Schon was in Mason City for the reorganization presentation, he spoke with Sires about her responsibilities during Freilinger’s transition to his new position. He informed Sires her salary and commission would stay the same, but she would have the potential to earn another $3000 based on new sales goals. Schon told Sires she “would be the go-to person for any sales decisions and business decisions and operations” when Meyers was out of the office, which was most of the time.

Sires was confident she would be promoted to branch manager upon Freilinger’s departure and eventually local leader. Her confidence was buoyed by a memo prepared by an executive vice president of the company stating “the industry considers inside sales support as more important than outside sales.” Sires’ experience was in inside sales, whereas Meyers had no experience in inside sales, only in outside sales, and that experience was in a non-supervisory capacity.

Schon returned to Mason City on February 6, 1998, and announced that Meyers, who had one year of company experience in outside sales, was the new local leader. Sires was devastated. Her administrative assistant asked Sires if she thought it was because she was a woman. Sires was so upset and tearful over the weekend that her husband became concerned she might need medical attention.

Nonetheless, Sires returned to work on Monday, February 9, and talked with Freilinger about her confusion and distress at not getting the local leader position. Freilinger said she was not considered for this job because she did not have enough sales experience. Sires pointed out, however, that men with less sales experience than she had had been promoted to branch manager.

The next day Sires spoke with Mary Beth Standerski, the director of human resources for VMI. She again expressed her disappointment and confusion and wondered whether there was any place left for her in the company. Standerski advised Sires to contact Schon, who had made the decision to put Meyers in the local leader position. Standerski also asked Sires if she thought the decision had been based upon sex.

Sires called Schon immediately. She asked what qualifications were considered for the position and what Meyer’s qualifications were. Schon told Sires that he did not take qualifications into account. He said he viewed Meyers as a person who could be “molded” into the position, and that he was counting on Sires to help do that. Schon also observed that Sires’ experience was in operations, not sales, and he saw opportunities for Sires in the operations part of the company. Sires was not very comforted by Schon’s vague reassurance and concluded that she had hit a “glass ceiling” with VMI.

On February 23, Sires told Freilinger that she “had reached [the] highest level [she] was going to be allowed to go” and that she was considering resigning. Freil-inger asked her to wait and said that he would talk to Schon. Standerski called Sires a few days later and told her to “hang in there. It will work out.”

A week passed with no response from anyone and Sires concluded they were ignoring her. On March 3, she told Stan-derski that she was going to resign. Stan-derski told her to wait. At Standerski’s request, Schon then contacted Sires. Schon and Sires’ conversation was much the same as their telephone conversation a week earlier. During their second conversation, however, Schon told Sires that if he had it to do over again, he would still promote Meyers over her.

Concluding she had been left with no reasonable alternatives, Sires resigned two days later on March 5, 1998. VMI accepted her resignation without protest. Although Sires obtained employment after her resignation, she was unable to find a job with comparable pay.

On May 21, 1998, Sires filed a claim of sex discrimination with the Mason City Human Rights Commission. After a contested case hearing, an administrative law judge issued a proposed decision that included the above factual findings. In addition, the ALJ noted that in February and March 1998, thirteen local leader positions were filled. All the local leaders were men: four had inside sales experience; six had outside sales experience; and three had sales management experience. Of eleven promotions between December 1997 and May 1998 when Sires filed her complaint, only four were female and none of the female employees were assigned to a local or regional leader position. The company explained the lack of women in leadership roles resulted from a scarcity of women in electrical wholesales with sales or technical backgrounds.

The ALJ rejected VMI’s contention that Sires was not qualified for the local leader position. The ALJ concluded Sires could have handled not only that job but also the operations manager position during the organizational transition had she “been given the same kind of support [that] VMI gave to male employees in similar situations.” Freilinger’s claim that the company wanted someone who already had a sales job and could be the “go to guy” also lacked credibility in view of the evidence that other employees viewed Sires as the “go to” person. Moreover, Freilinger was well aware of the responsibilities Sires had capably taken on in his absence.

The ALJ also rejected other reasons offered by VMI for why Sires did. not get the promotion: Sires did not apply for the position and she did not tell anyone she was interested in it. Although Sires did not apply for the job, neither did Meyers. Clearly, the ALJ stated, it would be discriminatory to require an application from females desiring the position, but-not from male applicants. The ALJ found Freilinger’s testimony that VMI was unaware Sires was interested in promotion within the company not credible. The ALJ concluded, therefore, that Sires was not considered for a leadership position because she was not a man.

The ALJ also found that Sires had been constructively discharged. The ALJ held that VMI management knew or should have known that Sires found her situation intolerable, yet they failed to take any action to clarify her role during the transition or to consider her for a leadership position in the Mason City branch or some other branch.' The ALJ found that the only tenable option for Sires was to resign.

In awarding front pay and back pay, the ALJ found that in 1997 Meyers earned $50,000 in outside -sales and Sires earned $29,140 as operations manager. When Meyers was moved into the local leader position, he received a $2000 raise. The ALJ concluded, therefore, that had Sires been designated as the local leader, she too would have received $2000 more per year. Consequently, in determining Sires’ damages, the .ALJ assumed Sires would have.earned $31,140 had she been promoted. Basing her computation on the difference between this figure and Sires’ actual earnings at VMI and subsequent jobs, the ALJ determined Sires was. entitled to $43,959.77 in back pay (with interest at the statutory rate) and $9202 in front pay through 2000.

The ALJ also concluded Sires should have $7500 to compensate her for the emotional distress resulting from ■ VMI’s discriminatory actions. In addition, VMI was ordered to pay the costs of the proceeding and Sires’ attorney fees. As a final measure, the ALJ required VMI to establish (1)'job descriptions, and (2) written policies for transfers, promotions, demotions, wage increases, and wage decreases. The Commission adopted the ALJ’s proposed decision in its entirety.

Both parties sought judicial review. VMI challenged the Commission’s finding of discrimination, its finding of constructive discharge, its award of damages for emotional distress, and its remedial order. Sires claimed the agency erred in its calculation of front pay and back pay, the award for emotional distress was inadequate, and the agency should have awarded punitive damages. The district court found no error in the Commission’s ruling with one exception: the court concluded there was not substantial evidence to support the Commission’s finding that Sires was constructively discharged. The district court viewed Sires’ complaint as focusing on “a promotional decision,” not “working conditions as such.” The court also believed Sires had not given VMI “any opportunity to work on the problem before she quit.” Notwithstanding the court’s conclusion that Sires voluntarily resigned, the district court affirmed the Commission’s award of back pay and front pay.

VMI appealed and Sires cross-appealed. Because VMI conceded on appeal that there was substantial evidence to support the Commission’s finding of sex discrimination, the only issues on appeal concerned the proper measurement of Sires’ damages. VMI first claimed the court erred in affirming the back pay and front pay awards in view of its determination that Sires was not constructively discharged. VMI contended Sires’ damages resulting from the company’s discriminatory promotion decision ended when she voluntarily terminated her employment. VMI again challenged the emotional distress damages and the agency’s remedial order. Sires filed a cross-appeal, contending the district court erred in ruling she was not constructively discharged. She also asserted the Commission had incorrectly calculated her damages and had erroneously failed to award punitive damages.

We transferred the appeal to the court of appeals. That court affirmed the district court’s decision, with the exception of the front pay and back pay awards. Because the court agreed there was no constructive discharge, it held Sires’ earnings loss was to be measured by the difference between what she would have earned at VMI had she not quit and what she should have earned as a local leader. Relying on Meyers’ testimony that $50,000 was in the range for a local leader position, the court of appeals decided it would violate the Equal Pay Act to assume, as the Commission did, that Sires would be paid only $31,140 in the local leader position. It concluded, therefore, that the Commission’s damage calculation was in violation of law and must be modified. The court of appeals held the $50,000 figure paid other local leaders should be the baseline against which Sires’ loss should be measured. Accordingly, it recalculated Sires’ damages on the basis of the difference between what she earned in the year before her resignation ($29,140) and what local leaders were being paid ($50,000). The court increased Sires’ back pay award to $48,138.20 and her front pay award to $12,435.65.

We granted both parties’ applications for further review. VMI challenges the court of appeals’ decision to increase the front pay and back pay awards and claims such damages are not recoverable where the employee has voluntarily resigned. Sires raises two complaints in her application for further review: (1) the reviewing courts erred in concluding there was not substantial evidence to support the agency’s finding of constructive discharge; and (2) the reviewing courts erred in ruling the Commission could not award punitive damages. Because the constructive discharge issue affects the computation of damages, we will consider that issue first and then address the other damage issues.

III. Constructive Discharge.

The question presented is whether the district court correctly determined there was not substantial evidence to support the Commission’s finding that Sires was constructively discharged. This issue is important to the measure of damages because, as a general rule, employees are entitled to back pay only when they have been actually or constructively discharged. Major v. Rosenberg, 877 F.2d 694, 695 (8th Cir.1989); Muller v. United States Steel Corp., 509 F.2d 923, 930 (10th Cir.1975) (noting back pay award stops upon employee’s voluntary resignation); see Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641-42 (Iowa 2000) (stating a constructive discharge carries the same legal consequences as does a termination of employment by the employer).

“Constructive discharge exists when the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” First Judicial Dist. Dep’t Of Correctional Servs. v. Iowa Civil Rights Comm’n, 315 N.W.2d 83, 87 (Iowa 1982). Generally, trivial or isolated acts of the employer are not sufficient to support a constructive discharge claim. Haberer v. Woodbury County, 560 N.W.2d 571, 576 (Iowa 1997). Rather, the “working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Id. (citation omitted). In addition, conditions will not be considered intolerable unless the employer has been given a reasonable chance to resolve the problem. Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir.1999); see First Judicial Dist. Dep’t of Correctional Servs., 315 N.W.2d at 89. On the other hand, an employee need not stay if he or she reasonably believes there is no possibility the employer will respond fairly. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir.1997). In. determining whether a constructive discharge has occurred, the fact finder uses an objective standard. Haberer, 560 N.W.2d at 575.

In arguing Sires did not meet her burden of proof to establish that her working conditions were objectively intolerable, VMI asserts Sires’ dissatisfaction with her employment rests on a discrete employment decision to place Meyers in the local leader position, not on any harassment in the workplace or on a hostile work environment. It argues, therefore, she could have stayed on the job and pursued her legal remedies. While it is true that Sires did not suffer harassment and did not work in a hostile environment, the discrimination that occurred was broader than a single staffing decision. There is substantial evidence that she was discriminatorily relegated to the operations side of the business where there was no reasonable likelihood of advancement into a manager position. Thus, she was foreclosed from a career path, not simply deprived of one promotion. See Clark v. Marsh, 665 F.2d 1168, 1174-76 (D.C. Cir. 1981) (finding constructive discharge where, although precipitating event for plaintiffs retirement was denial of a promotion, the evidence showed that coupled with “the predictable humiliation and loss of prestige accompanying her failure to obtain this particular position,” the plaintiff was “locked into a position from which she could apparently obtain no relief’). For this reason, the cases cited by VMI, holding the loss of a single promotional opportunity is not a sufficient reason to quit and therefore will not support a finding of constructive discharge, are not on point. See, e.g., Breeding, 164 F.3d at 1160; Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 495 (8th Cir.1996); Wensel v. State Farm Mut. Auto. Ins. Co., 218 F.Supp.2d 1047, 1064 (N.D.Iowa 2002). Finally, we observe that an employee’s work environment need not be literally unbearable in order to effect a constructive discharge. It is enough that the employee has no recourse within the employer’s organization, see Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356-57 (8th Cir.1997), or “reasonably believes there is no chance for fair treatment,” see Kimzey, 107 F.3d at 574.

Here, there was substantial evidence that a reasonable person in Sires’ position would have concluded there was no opportunity for fair treatment and the resulting work environment was so difficult or unpleasant that she had no choice but to resign. As already mentioned, VMI placed Sires in the “woman’s track” — operations. When she questioned the company’s choice for the local leader position, she was referred for redress to Schon, the very person who made the discriminatory decision. Schon gave her no assurances that she would ever be allowed to pursue management opportunities in the sales area, but rather confirmed that the company saw her future in operations. Moreover, Schon affirmed he would make the same decision again. To add insult to injury, he expected Sires to train— “mold” — the man chosen for the job she wanted. We think this evidence supports the Commission’s finding that Sires’ working conditions were objectively intolerable.

VMI also claims Sires’ admission that she did not think VMI really wanted her to quit precludes a finding of constructive discharge. Although it may be undisputed that VMI wanted Sires to stay on the job, this fact does not preclude a finding that the company deliberately rendered Sires’ working conditions so intolerable that a reasonable employee in Sires’ position would resign. See Satterwhite v. Smith, 744 F.2d 1380, 1383 (9th Cir.1984) (rejecting view that employer’s subjective intent is determinative); Clark, 665 F.2d at 1175 n. 8 (stating “an employer’s subjective intent is irrelevant”). It is sufficient that the employee’s resignation was a reasonably foreseeable consequence of the insufferable working conditions created by the employer. Hukkanen v. Int’l Union of Operating Eng’rs, 3 F.3d 281, 285 (8th Cir.1993); Clark, 665 F.2d at 1175 n. 8 (stating the employer “must be held to have intended those consequences it could reasonably have foreseen”).

Here, there was substantial evidence in the record showing Sires was denied a promotion for which she was qualified because she was a woman; that she was relegated to a position where her advancement opportunities were limited at best; that she was told management would make the same decision again; and that she was asked to stay in her inferior position and train the man who had been promoted over her. We conclude these facts, all known to VMI, sufficiently support the agency’s finding that it was or should have been reasonably foreseeable to the eompa-ny that an employee in this situation would find her working conditions so oppressive and hopeless that resignation was the only tenable option. See Satterwhite, 744 F.2d at 1383 (finding constructive discharge where black employee was denied advancement opportunities and was put in embarrassing and humiliating position of training white men promoted ahead of him).

VMI also claims Sires failed to give the company an adequate opportunity to address her grievances and so cannot rely on the constructive discharge doctrine. See West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir.1995) (“ Tart of an employee’s obligation to be reasonable is an obligation not to assume the worst and not to jump to conclusions too fast.’ An employee who quits without giving her employer a reasonable chance to work out a problem is not constructively discharged.” (Citation omitted.)). While Sires waited only one month before quitting, a relatively brief period, we cannot say under the specific circumstances of this particular case that she acted precipitously. A review of the evidence shows this ease is not one where the company did not have sufficient time to rectify its wrong. Nor is it a case where the employee assumed the worst and jumped to conclusions too fast. Rather, this case presents a situation where the company, when given the opportunity, chose to perpetuate its discriminatory practices.

In the weeks between Meyers’1 promotion and Sires’ resignation the company not only took no action to investigate Sires’ complaints, it gave no indication that it intended to conduct an inquiry. See Kimzey, 107 F.3d at 575 (noting “unresponsive management” as evidence of constructive discharge). The company’s indifference was further demonstrated by the fact Sires was referred to the individual who made the discriminatory promotion decision to seek a resolution of her grievance. This individual, rather than assuring Sires that appropriate and prompt remedial action would' be taken, informed her that he would make the same decision again if he had' it to do over and reaffirmed that the company saw her future in operations. Given this attitude, we do not think Sires was required to stay in her subordinate job, training the man who obtained the promotion denied to her, with no promise or hope of a change in company policy, or even of a meaningful investigation into VMI’s discriminatory employment practices.

In summary, we conclude- the district court erred in ruling there was not substantial evidence that Sires was constructively discharged. ' Consequently, we reverse the district court’s judgment on this issue and affirm the Commission’s decision that Sires was constructively discharged from her employment with VMI.

IV. ■ Award of Front and Back Pay.

This court’s affirmance of the Commission’s finding that Sires was constructively discharged renders moot VMI’s argument that Sires was not entitled to front pay and back pay because she voluntarily quit. Our decision also means Sires’ earnings loss must be computed on the basis of her actual earnings during the relevant period rather than what she would have earned at VMI had she not resigned. The only remaining issue, then, is VMI’s challenge-to the court of appeals’ ruling that the Commission employed the wrong baseline for measuring front pay and back pay.

In considering this issue, we first acknowledge that the calculation of front pay and back pay is “a judgment call within the province of the commission and not the court.” Hy-Vee Food Stores, Inc., 453 N.W.2d at 532. Nonetheless, the agency must exercise its judgment within the framework of the legal principles governing the proof and measurement of this element of damage. Thus, our focus here is on the Commission’s application of these legal principles, not its factual findings.

We start with the proposition that absolute precision in proving what an employee would have earned but for the employer’s discrimination is not required. Id. at 530. Furthermore, because the difficulty in determining what an employee would have earned is often the result of the employer’s discriminatory wage structure, any uncertainties in computing back pay are resolved against the employer. Id. An appropriate yardstick for measuring damages resulting from sexual discrimination is what comparable male employees are earning. Id. at 531.

With these parameters in mind, we first examine the Commission’s decision. The Commission observed “that there was general confusion as to the title and role of ‘local leader.’ ” No job description had ever been prepared; these positions were not advertised or posted; and the company had no official salary range for the job. The lack of clarity in the job duties of a local leader resulted from VMI’s practice of filling positions by hand-picking employees (generally men) for promotion, rather than advertising or posting such opportunities. This practice eliminated the need for formal job descriptions that could be posted and advertised. Although the parameters of the local leader position lacked precision, the record shows that Meyers, who was making $50,000 as an outside salesman, received a $2000 raise when he was made the local leader. In addition, Meyers testified that $50,000 was the general pay range for the local leader position.

The Commission concluded “[t]he only helpful evidence in computing back pay is the fact that in moving to the ‘local leader’ position, Meyers received $2000 more per year.” It concluded, therefore, that Sires too would have received a $2000 raise had she been designated the local leader, making her salary in that position $31,140. The Commission then calculated back pay and front pay based on the difference between what Sires actually earned and the $31,140 she would have received as a local leader position. The Commission refused to use Meyers’ $50,000 or $52,000 salary for this purpose because he was an outside salesman, which was an “entirely different job” from Sires’ position as operations manager.

The error in this reasoning is the Commission’s failure to apply the principle that any uncertainty in determining what a claimant would make in the new position is resolved against the employer. Here, the Commission was apparently concerned that the local leader position was not clearly defined and there was no official salary for the position. Therefore, it assumed Sires would have remained the operations manager while serving as the local leader and her operations manager responsibilities would have driven her salary, not her responsibilities as local leader. This uncertainty was clearly attributable, however, to VMI’s discriminatory practices. Therefore, the Commission, rather than assuming Sires would have been paid less than other local leaders because of her operations duties, should have resolved this lack of clarity against the company. Id. (suggesting that where difficulty in determining damages arises from employer’s discriminatory conduct, the fact finder should resolve uncertainties against the employer, relying on just and reasonable inferences).

We agree with the court of appeals (though for a different reason) that once the Commission found Sires had been denied the local leader position on the basis of sex, it was the salary earned by local leaders that should have provided the baseline against which her loss was measured. The record was undisputed that the salary range for local leaders was $50,000, and that Meyers earned $52,000 in this job. Thus, Sires’ earnings loss should have been measured by the difference between her actual earnings and $52,000, the sum earned by Meyers in the position discriminatorily denied to Sires. See EEOC v. Delight Wholesale Co., 973 F.2d 664, 670 (8th Cir.1992) (affirming district court’s decision to use “the salary for the position comparable to the one the claimant was unlawfully denied” as the baseline to determine the back pay award); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir.1985) (requiring defendant, who had discriminatorily failed to promote the claimant, to pay damages based on the highest salary paid to persons holding position denied the claimant); Grimes v. Athens Newspaper, Inc., 604 F.Supp. 1166, 1167 (M.D.Ga.1985) (measuring damages of female copy editors by highest amount paid male employees doing the same work). Because the Commission did not properly apply the rules governing the computation of front pay and back pay, its calculation of these damages must be corrected. Measuring Sires’ earnings loss using the sum paid to Meyers as a baseline, her back pay award must be increased to $94,104 and her front pay award to $21,638.

V. Punitive Damages.

Sires complains about the Commission’s failure to award punitive damages, but concedes that punitive damages are not available under the Iowa Civil Rights Act. In Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375 (Iowa 1986), this court applied the “general rule ... that an administrative agency cannot award punitive damages absent express statutory language allowing such an award.” 394 N.W.2d at 384. We held, therefore, that because the Iowa act did not give the Iowa Civil Rights Commission the express authority to award punitive damages, the commission had no power to do so. Id. The same reasoning obviously applies to the Mason City Human Rights Commission. Cf. Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n, 268 N.W.2d 862, 868 (Iowa 1978), superceded by statute on other grounds as stated in Gray v. Kinseth Corp., 636 N.W.2d 100, 102 (Iowa 2001) (holding local human rights commission lacked authority to order class action relief because there was no power to do so conferred in the Iowa Civil Rights Act or the local ordinance creating the commission). Therefore, it too has no authority to award punitive damages under the Iowa act.

Sires argues, however, that because she also filed her complaint with the EEOC, the Commission should be able to award punitive damages as permitted by federal civil rights law. Sires’ argument ignores the limited jurisdiction of this local civil rights commission. Under Iowa Code section 216.5, the Iowa Civil Rights Commission is given the power to determine complaints alleging an unfair or discriminatory practice under Iowa Code chapter 216. See Iowa Code § 216.5(2); see also id. § 216.2(13) (defining “[u]nfair practice” and “discriminatory practice”). In addition, a city may create a local civil rights commission to protect the rights of citizens secured by the Iowa Civil Rights Act. Id. § 216.19. Thus, the Commission in this case acted under the authority and subject to the limitations of chapter 216, not federal law. Therefore, it correctly determined that it had no power to award punitive damages.

VI. Conclusion and Disposition.

There was substantial evidence to support the Commission’s finding that Sires was constructively discharged from her employment with VMI. The district court erred in ruling to the contrary and accordingly we reverse that part of the court’s judgment.

The Commission erred in resolving ambiguities with respect to the job duties and corresponding salary of local leaders against Sires. This uncertainty should have been resolved against VMI. As a result, the Commission erred in failing to use the salary of the man who was promoted into the local leader position over Sires to calculate the wages Sires lost as a result of her employer’s discriminatory conduct. Therefore, we reverse the district court’s order affirming the Commission’s award of front pay and back pay, and remand for entry of an order recalculating these damages as outlined above.

We otherwise affirm the district court’s decision, including its ruling that the Commission had no authority to award punitive damages.

Sires requests an award of her attorney fees on appeal. See Iowa Code § 216.15(8)(a)(8) (providing a successful complainant may recover damages, including “reasonable attorney fees”). Therefore, on remand, the district court shall conduct a hearing on this issue and determine the amount of appellate attorney fees to which Sires is entitled. Lynch v. City of Des Moines, 464 N.W.2d 236, 241 (Iowa 1990); See Landals v. George A. Rolfes Co., 454 N.W.2d 891, 898-99 (Iowa 1990); Lynch v. City of Des Moines, 464 N.W.2d 236, 241 (Iowa 1990).

DECISION OF COURT OF APPEALS VACATED. DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED WITH DIRECTIONS.

All justices concur except CARTER and WIGGINS, JJ., who take no part.

      . Because Sires’ charge of discrimination was filed on May 21, 1998, the 1998 amendments to chapter 17A do not apply. See 1998 Iowa Acts ch. 1202, § 46 (making 1998 amendments to chapter 17A applicable to all agency proceedings commenced after July 1, 1999); Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 421 (Iowa 2002).

      . A counter salesperson takes walk-in orders. An inside salesperson takes phone orders and theoretically has more technical knowledge in order to identify over the phone what products the customer needs or wants. An outside salesperson goes to the customer to sell company products, and focuses more on developing new customers.

      . The evidence supports the following explanation found in the plaintiff's brief for why VMI did not want her to quit: "VMI wanted [Sires] to be a good girl, stay on the woman's track, do clerical and operations duties, and help mold’ the man who got the job she should have gotten, into a good branch supervisor.” Thus, VMI sought to keep Sires with the company, not because it was willing to address her concerns, but because it needed her to assist in implementing its discriminatory staffing decision.

      . Sires testified: "I felt I had nowhere to go. After [Schon] had told me ... I want you to mold Bill [Meyers] into this position, I felt, okay, you’re going to have me train him up, and then I am going to be gone. I had no place to go.” Sires' view of her situation was not mere paranoia. Under the company's new organizational structure, branch operations were controlled at the regional level. In fact, Sires’ position as branch operations manager was not filled after she resigned. Although VMI claimed at the hearing that Sires was in line for a regional operations position, the AU found Sires more credible than Schon and Freilinger. Sires testified that no one mentioned the possibility of a regional position with the company in the weeks following Meyers' appointment as local leader.

      . We have calculated back pay and front pay based on the time periods deemed appropriate by the Commission and using the earnings and projected earnings figures determined by the agency. For 1998, Sires' actual earnings of $10,993 were subtracted from $52,000, leaving lost earnings of $41,007 for that year. For 1999, actual earnings of $13,561 were subtracted from $52,000, for lost earnings of $38,439. For the first twenty-one weeks of 2000, actual earnings of $6,342 were subtracted from $21,000, for a loss of $14,658. (The hearing on Sires' claim was in May 2000.) Adding together these amounts produces total back pay of $94,104. Front pay was determined by subtracting Sires' projected earnings for the remainder of 2000 ($9362) from $31,000, resulting in a front pay award of $21,638.