Anderson v. Meyer Broadcasting Co.

Decision Date10 July 2001
Docket NumberNo. 20000322.,20000322.
Citation2001 ND 125,630 N.W.2d 46
PartiesColleen ANDERSON, Plaintiff and Appellant, v. MEYER BROADCASTING COMPANY, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Lee J. Balerud, Minot, ND, for plaintiff and appellant.

Jerome C. Kettleson, Pearce & Durick, Bismarck, ND, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Colleen Anderson has appealed from a summary judgment dismissing her claims against Meyer Broadcasting Company ("Meyer") for age discrimination, sex or gender discrimination, retaliatory discharge, defamation, and breach of contract. We affirm, concluding Anderson failed to raise genuine issues of material facts on required elements of her claims.

I

[¶ 2] Meyer owned a statewide network of television and radio stations. In 1985, Anderson began working in the sales department at Meyer's Minot television station, KMOT. In March 1995 Anderson was promoted to general manager of KMOT, replacing a person ("the Fargo manager") who had transferred to Meyer's Fargo television station, KVLY.

[¶ 3] After taking over as general manager at KMOT, Anderson discovered financial improprieties from prior years. In January 1996 Anderson reported these alleged improprieties and provided supporting documentation to Meyer's comptroller. The comptroller reported the matter to a Meyer vice president, who reviewed the material and decided no further action was needed.

[¶ 4] In June 1996 an employee at KVLY told Anderson during a telephone call that she had seen the Fargo manager and a female employee engaging in inappropriate sexual contact in a hallway at KVLY. Anderson reported the incident to the vice president and general manager of Meyer ("general manager"), who investigated the incident but took no formal action.

[¶ 5] In the summer of 1997, concerned that no action had been taken on the alleged financial improprieties, Anderson reported the suspected embezzlement to the general manager, who initiated an investigation.

[¶ 6] In August 1997 a position opened at KVLY for a general sales manager. The Fargo manager was responsible for the hiring. Anderson applied for the position, but was not hired. In September 1997 the Fargo manager hired the woman with whom he had been accused of engaging in sexual contact in the office.

[¶ 7] In late 1997, the investigation into the Fargo manager's alleged misappropriation of funds while he was at KMOT was completed, and he was asked to resign.

[¶ 8] In early 1998, the general manager announced that he was retiring. Anderson and Penny Borg, the general sales manager for Meyer's western North Dakota television stations, were asked to apply for the general manager's position by Meyer's chief executive officer and president ("the president"). The president, after interviewing Anderson and Borg and consulting with the general manager, ultimately decided to hire Borg. When the general manager retired on June 1, 1998, Borg became Meyer's general manager and Anderson's immediate supervisor.

[¶ 9] In late June a dispute arose between Borg and Anderson over Borg speaking directly with other KMOT employees rather than coordinating communications through Anderson. Borg and Anderson discussed the matter in a June 26, 1998, telephone call. The parties' recollection of the conversation is similar, and they do not dispute the nature or content of the call. During the conversation, Anderson said to Borg, among other things:

"You think I'm going to trust you after that move?"
"I operate by this: `Fair-fair/unfair-unfair. You set the pace because you're my boss.' In other words, if you're fair with me, I'll be very fair back; however, if you're unfair, I'll jack you around as well."
"Fire me, but know this, I won't go easy."

[¶ 10] After the June 26 telephone conversation, Borg learned that Anderson had sent information to representatives of Sunrise Television, which was in the process of purchasing Meyer. Meyer claims Anderson and other management had been told all communications with Sunrise were to be handled through the Bismarck office and they were not to provide information directly to Sunrise. Anderson disputes she was ever informed of that directive.

[¶ 11] On June 30, 1998, Borg fired Anderson. The reasons given by Meyer for termination were that Anderson had been insubordinate and had provided information directly to Sunrise after having been told not to do so.

[¶ 12] Anderson sued Meyer for age discrimination, sex or gender discrimination, retaliatory discharge, defamation, and breach of contract. Following extensive discovery, Meyer moved for summary judgment. The district court granted summary judgment and dismissed all of Anderson's claims. Anderson has appealed.

[¶ 13] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01. The appeal was timely under N.D.R.App.P. 4(a).

II

[¶ 14] We consider the merits of Anderson's appeal in the posture of summary judgment. Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. E.g., Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 17, 606 N.W.2d 908

. We have outlined the duty of a party opposing a summary judgment motion:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991) (citations omitted), quoted in Barnes v. St. Joseph's Hosp., 1999 ND 204, ¶ 9, 601 N.W.2d 587,

and Strom-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, ¶ 16, 597 N.W.2d 414.

[¶ 15] Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Dahlberg v. Lutheran Soc. Servs. of N.D., 2001 ND 73, ¶¶ 11, 42, 625 N.W.2d 241; Van Valkenburg, 2000 ND 38, ¶ 25, 606 N.W.2d 908; Black v. Abex Corp., 1999 ND 236, ¶ 23, 603 N.W.2d 182; Barnes, 1999 ND 204, ¶ 9, 601 N.W.2d 587. When no pertinent evidence on an essential element is presented to the trial court in resistance to summary judgment, it is presumed no such evidence exists. Van Valkenburg, at ¶ 27; Miller v. Medcenter One, 1997 ND 231, ¶ 15, 571 N.W.2d 358.

III

[¶ 16] Anderson argues the trial court erred in dismissing her age discrimination claim under the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4.

[¶ 17] The Human Rights Act outlines numerous exceptions to the employment-at-will doctrine. Hougum v. Valley Mem'l Homes, 1998 ND 24, ¶ 35, 574 N.W.2d 812. The Act's purpose is to prevent and eliminate discrimination in employment relations, and it prohibits an employer from taking certain adverse employment actions on the basis of, among other things, age or gender. See N.D.C.C. §§ 14-02.4-01, 14-02.4-03; Hougum, at ¶ 35. In the context of this case, the Act prohibits an employer from according adverse or unequal treatment with respect to promotion on the basis of age. N.D.C.C. § 14-02.4-03. For purposes of the Act, "age" is defined in N.D.C.C. § 14-02.4-02(1):

"Age" insofar as it refers to any prohibited unfair employment or other practice means at least forty years of age.

[¶ 18] The plaintiff in a discrimination action under the Human Rights Act must carry the initial burden of establishing a prima facie case. Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 14, 591 N.W.2d 101; Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D. 1993). To establish a prima facie case of discrimination under the Human Rights Act, the plaintiff must prove: (1) she was a member of a protected class under the Act; (2) she was satisfactorily performing the duties of her position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably. See Miller, 1997 ND 231, ¶¶ 13-14,

571 N.W.2d 358; Schuhmacher v. North Dakota Hosp. Ass'n, 528 N.W.2d 374, 378 (N.D.1995); Schweigert, 503 N.W.2d at 227 n. 2. Thus, in order to show a prima facie case of age discrimination, Anderson must show she is a member of the protected class (at least forty years old), see N.D.C.C. § 14-02.4-02(1), and others not in the protected class (under forty) were treated more favorably.

[¶ 19] The basis for Anderson's age discrimination claim is her allegation she was passed over for promotions in favor of younger employees. Anderson failed to direct the court's attention to any evidence to show that she is at least forty years of age or that the people promoted to the positions she sought were younger than forty. When no evidence on an essential element is presented to the trial court in...

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