Ambers v. Village Family Service Center, Inc.

• Decision Date: 08 July 2004
• Docket Number: Civil File No. A2-03-04.
• Citation: 329 F.Supp.2d 1046
• Parties: Rachel AMBERS, Plaintiff, v. VILLAGE FAMILY SERVICE CENTER, INC., Defendant.
• Court: U.S. District Court — District of North Dakota

329 F.Supp.2d 1046

Rachel AMBERS, Plaintiff, v. VILLAGE FAMILY SERVICE CENTER, INC., Defendant.

Civil File No. A2-03-04.

United States District Court, D. North Dakota, Northeastern Division.

July 8, 2004.

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Thomas Dayton Fiebiger, Ohnstad Twichell, Fargo, ND, for plaintiff.

Richard A. Clapp, Pearson Christensen, Grand Forks, ND, for defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ERICKSON, District Judge.

Before the Court is Defendant's Motion for Summary Judgment (doc. # 26). Plaintiff filed a brief in opposition (doc. # 30). Defendant filed a reply brief (doc. # 32). The Court held a hearing on July 1.

SUMMARY OF HOLDING

In order to present a prima facie claim of retaliation under either the Age Discrimination in Employment Act (ADEA) or the North Dakota Human Rights Act (NDHRA), a plaintiff must first show that she engaged in protected activity. Under the ADEA, this protected activity must consist of conduct done to oppose age discrimination. In this case, Rachel Ambers (Ambers) did not hire a lawyer to oppose age discrimination, so she did not engage in protected activity. Even if the Court were to assume Plaintiff presented a prima facie case, the Village Family Service Center (Village) has produced complaints of employees Ambers supervised to present sufficient evidence of a legitimate nondiscriminatory reason to terminate Ambers. Ambers did not present evidence that this reason was a pretext for discrimination.

To constitute protected activity under the North Dakota Whistleblower statute, a plaintiff must report a violation or suspected violation of federal or state law. Ambers only informed her employer of the twenty-one day provision in the Older Workers Benefit Protection Act (OWBPA). However, this provision only relates to whether a waiver of an ADEA claim is knowing and voluntary. The failure of an employer to give an employee twenty-one days to consider a waiver is not a violation of the law; it merely invalidates the waiver.

FACTS

In November 1996, Ambers began working full time as a regional director for the Village. She was hired for the Bismarck office, and her duties included supervising employees. One of the employees Ambers supervised was Jackie Johnson (Johnson).

After Johnson quit working at the Village, she wrote to the Chairman of the Village's Board. In the letter, dated May 17, 1999, Johnson mentioned several problems she had encountered with Ambers. (Def.Ex.1) Ambers had made comments about Johnson to other staff members including statements that Johnson was a communication problem in the office, that she had probably been victimized in her life, so she was trying to get co-workers to "caretake" her, and that Ambers was placing her on probation and recommending that she seek counseling. (Id.) Ambers sent Johnson an apology letter, and Gary Wolsky (Wolsky), the CEO of the Village, sent Johnson a letter acknowledging that Ambers' behavior was inappropriate.

In December 1999, Ambers moved to the Grand Forks office. One of the employees Ambers supervised there was Melissa Ruth (Ruth). On June 22, 2001, Ruth filed a grievance against Ambers. Ruth alleged that Ambers was exaggerating how late she was for meetings, Ambers was using personal information about Ruth inappropriately, and Ambers was singling her out for reprimand. (Def.Ex.2)

Wolsky hired a human resources consultant, Al Vacek (Vacek), to investigate the grievance. When Ambers spoke with Vacek, she mentioned that she would consider leaving the Village once her pension vested. (Ambers 2-9-04 Depo. at 20-21) After learning that, Vacek's investigation turned to focus on how to get Ambers out of management but also allow her to stay with the Village so her pension could vest. (Vacek Depo. at 37; 40)

On July 25, 2001, the Village offered Ambers a clinical position that would not entail any supervisory responsibilities to allow her to stay at the Village until her pension vested. (Meshefski Depo. at 36-39) As part of this offer, Ambers would have to waive any claims under Title VII, ADEA, ADA, or state human rights laws. (Vacek Depo. Ex. 6) If she agreed to the terms of the agreement, the Village would not expand its investigation of Ambers' supervisory relationships in the Grand Forks office. (Id.) The agreement gave her five days, until July 30, to consider the offer. (Id.)

Ambers hired a lawyer, Alice Senechal, to represent her with respect to this agreement. (Ambers 2-9-04 Depo. at 33) Ambers wanted her attorney to make a couple of changes to the agreement. (Id. at 34) In a letter dated July 27, 2001, Attorney Senechal stated that Ambers would sign the agreement if certain changes were made, and she enumerated those changes. (Wolsky Depo. Ex. 10) In a letter dated July 30, Attorney Senechal further advised the Village that Ambers had twenty-one days to consider the agreement. (Wolsky Depo. Ex. 12) The Village never agreed to the changes. In the meantime, Vacek expanded his investigation to talk with other employees in the Grand Forks office. (Vacek Depo. at 69-70) On August 20, the Village terminated Ambers' employment.

On January 8, 2003, Ambers filed the present lawsuit. Plaintiff represents to this Court that her Complaint only alleges three claims. She alleges that the Village retaliated against her pursuant to the ADEA and the NDHRA. Her third claim is that the Village's conduct violated the North Dakota Whistleblower statute, North Dakota Century Code section 34-01-20.

ANALYSIS

Summary judgment is appropriate where, viewing the record in the light most favorable to the nonmoving party, no genuine issue of material fact exists. Mems v. City of St. Paul, 224 F.3d 735, 738 (8th Cir.2000). The moving party bears the burden of proving that there is no genuine issue of material fact. Id. Summary judgment should rarely be granted in employment cases because employment claims are inherently fact based. Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999) (quoting Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998)). Only if the evidence could not support any reasonable inference of discrimination may summary judgment be granted. Id. (quoting Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999)).

I. Retaliation Under the ADEA and the NDHRA

To establish a prima facie case of retaliation under the ADEA, a plaintiff must show that: 1) she engaged in conduct protected by the act; 2) she was subjected to an adverse employment action at the time or after the protected conduct occurred; and 3) there was a causal link between the protected conduct and the adverse employment action. Berg v. Bruce, 112 F.3d 322, 328 (8th Cir.1997). It is likely that these same elements apply to a retaliation claim under the NDHRA. See Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D.1993) (stating that there are obvious parallels between North Dakota state law and federal law and North Dakota will rely on federal law when it is helpful and sensible to do so). Therefore, the Court will apply this same analysis to Ambers' retaliation claims under the ADEA and the NDHRA.

Only activity done to oppose age discrimination is protected conduct under the ADEA. Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 615 (8th Cir.2003) (citing 29 U.S.C. § 623 (2002)); see also Jeseritz v. Potter, 282 F.3d 542, 548 (8th Cir.2002) (stating that the conduct must involve some kind of opposition to the employer's practice that the employee reasonably believes violates the statute); Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1028 (8th Cir.2002) (same). Hiring an attorney to represent you when you believe you are being discriminated against based upon your age is protected activity under the ADEA. Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir.1991).

In this case, Ambers hired an attorney to review the July 25 agreement. She went to this attorney because she wanted a couple of demands added. (Ambers 2-9-04 Depo. at 33-34) Plaintiff does not allege, nor is there any evidence before the Court, that she hired Attorney Senechal to represent her on an age discrimination claim. Since Ambers did not hire an attorney to oppose age discrimination, she did not engage in protected activity. Trammel, 345 F.3d at 615.

Plaintiff argues that she engaged in activity to oppose age discrimination when Attorney Senechal informed the Village of the twenty-one day consideration provision in the OWBPA. Informing an employer of a provision in the OWBPA does not, by itself, constitute an act done to oppose age discrimination. See Whitehead v. Oklahoma Gas & Elec. Co., 187 F.3d 1184, 1191 (10th Cir.1999) (stating that the OWBPA does not determine in the first instance whether age discrimination has occurred). Therefore, Attorney Senechal's July 30 letter is also not a protected activity. Id.

However, even assuming Ambers had presented a prima facie case of retaliation under the ADEA and the NDHRA, the Village presented a legitimate nondiscriminatory reason for her termination, and Ambers can not establish that this reason was a pretext. Once the plaintiff establishes a prima facie case, her employer may still prevail on a summary judgment motion if it can establish a legitimate nondiscriminatory reason for the adverse employment action. Kneibert v. Thomson Newspapers, Michigan Inc., 129 F.3d 444, 454 (8th Cir.1997). The employer's burden is merely one of production, not persuasion. Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir.2004) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

The Village alleges that it terminated Ambers because she was unable to perform to the Village's expectations of a manager. The Village produced two employee complaints about Ambers' management style. (Def. Exs. 1 & 2) Ambers agreed that Johnson's complaint...