Bakken v. North American Coal Corp.

• Decision Date: 16 June 1986
• Docket Number: Civ. No. A1-85-146.
• Citation: 641 F. Supp. 1015
• Parties: Valeree J. BAKKEN, Plaintiff, v. The NORTH AMERICAN COAL CORPORATION, Defendant.
• Court: U.S. District Court — District of South Dakota

641 F. Supp. 1015

Valeree J. BAKKEN, Plaintiff, v. The NORTH AMERICAN COAL CORPORATION, Defendant.

Civ. No. A1-85-146.

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

June 16, 1986.

Irvin B. Nodland, Bismarck, N.D., for plaintiff.

Robert J. Udland, Bismarck, N.D., for defendant.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

This is an action alleging sex discrimination in employment. Defendant moves to dismiss, or in the alternative for summary judgment. Plaintiff opposes that motion.

FACTS

The relevant facts, taken in the light most favorable to Plaintiff as the non-moving party, are as follows. Plaintiff Valeree J. Bakken (Bakken) began working for Defendant The North American Coal Corporation (NACC), as a secretary in the Exploration Department in Bismarck, North Dakota, on February 1, 1977. Her beginning salary was $6,600 per year. She received salary increases over the next two years, and on October 16, 1979 she was promoted to a position of technical assistant in the department at a salary of $9,020 per year. Her job title was changed to research technician on January 1, 1980 and her salary was raised to $9,600 per year. Her annual salary was increased to $10,800 on March 1, 1980, $12,000 on April 1, 1981, $13,500 on April 1, 1982, and $14,000 on April 1, 1983. As a research technician, her responsibilities included research, drafting, maintaining a drill hole inventory and a map collection, representing NACC at meetings with federal agencies, and performing other support tasks for geologists in the department.

The complaint alleges several different forms of sex discrimination. Bakken alleges that her salary was less than that of one male employee in the department, Alan Moch (Moch). Though Moch worked in a different division of the department than Bakken and had a different job title, Bakken alleges their job duties were the same. Moch left the department in 1981. NACC explains Moch's higher salary as being related to his having received a college degree and to his working in a different division within the department than Bakken. Additionally, NACC alleges this portion of Bakken's claim is time barred.

NACC decided to move its Exploration Department from Bismarck to Cleveland, Ohio effective May 1, 1984. On January 3, 1984, Virgil Carmichael (Carmichael), head of the department, informed Bakken and two other department employees of the decision to move the department. Bakken alleges that Carmichael told the three employees that each would have the option of transferring to the Cleveland office, and that she told Carmichael she would move to Cleveland. She alleges Carmichael told the employees that those who chose not to transfer to Cleveland would be given first priority for job openings in other departments in the Western Division in Bismarck. NACC alleges that, of the three employees in the department, Bakken was the only one given the initial option of transferring to Cleveland.

At the time a transfer to Cleveland was first discussed, Bakken asked what raise in salary she might expect. NACC asserts that she stated she would need a raise in order to transfer to Cleveland; Bakken asserts that she asked about a salary increase because her annual raise was due in April and because she wanted to know what financial position she might expect, should she transfer, in light of the higher cost of living in Cleveland. Bakken claims that two NACC supervisors, upon returning to Bismarck from a trip to Cleveland, reported to Bakken that NACC president Harry Washburn (Washburn) told them they were to discourage Bakken from transferring to Cleveland "at all costs." (Bakken affidavit, Doc. No. 23, at 4). Bakken was told that she would not be receiving a raise.

Bakken alleges that she was told soon after she began work for NACC that Washburn disliked women, and that women in her department were told to stay out of Washburn's way when he was in town. (Id. at 2). She claims that approximately six months after she began work, Carmichael told her he could approve a raise for her of only $25.00 rather than $50.00 per month as recommended by her immediate supervisor, because "Washburn wouldn't approve any more money than that because you're a woman." (Id.).

Bakken states that the other employees working in the Exploration Department in Bismarck were told on February 24, 1984 that they would have other positions available to them with NACC in Bismarck, but that she was told there would be no position available for her. Bakken asserts that she wanted to apply for a position as secretary in the Exploration Department in Cleveland, and that she told several people in the department that she wanted to stay with NACC and was willing to transfer to Cleveland without a raise and without reimbursement for her moving expenses. Another woman was hired as a secretary in the Exploration Department in Cleveland, at a salary higher than Bakken's. Bakken attempted to apply for other positions with NACC in Bismarck, but she alleges that Linda Carmen, of the NACC Personnel Department, discouraged or blocked those attempts. The other Exploration Department employees were transferred to other positions with NACC in Bismarck.

On April 10, 1984, Bakken filed a complaint with the North Dakota Department of Labor¹, alleging sex discrimination. On April 18, 1984, she met with two NACC supervisors to discuss her complaint. On that date, one of her supervisors told her that her position of research technician was being eliminated when the department was moved to Cleveland.

On April 19, 1984, Bakken was offered a position with another employer in Bismarck. She spoke with an NACC supervisor, who told her that if she did not agree to drop the complaint she had filed with the Department of Labor, she would not receive the severance pay that had been promised earlier. On April 27, 1984, NACC offered Bakken a position as a secretary/key punch operator in Bismarck; she did not accept that offer.

The Department of Labor concluded that NACC had not violated Title VII. The EEOC later found no probable cause for a finding of sex discrimination.

DISCUSSION

The complaint alleges three causes of action: sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 (1981); breach of an implied covenant and agreement of good faith and fair dealing; and bad faith so as to justify an award of punitive damages.

NACC raises several arguments in support of its motion. It alleges that Bakken cannot establish a prima facie case of discrimination under Title VII, that Bakken is not entitled to compensatory or punitive damages under Title VII, that Bakken's claim of unequal pay is time barred, that North Dakota does not recognize a cause of action for breach of an implied covenant of good faith and fair dealing in employment contracts, and that this court should decline to exercise pendent jurisdiction over Bakken's second cause of action.

Title VII Claim

This court will first address NACC's contention that Plaintiff cannot establish a prima facie case of discrimination under Title VII. NACC cites several cases which discuss elements of a prima facie case when the alleged discriminatory practice is a failure to hire. Bakken alleges several discriminatory practices involving salary, promotion, transfer opportunities, severance pay, harassment in the form of antifemale comments, and retaliation for filing a discrimination complaint. Bakken characterizes the case as one of discriminatory transfer and discharge, with the central question being NACC's motive for the discharge.

To ultimately prevail on her Title VII claim, Bakken must first present evidence that an employment decision was based on sex. NACC will then likely attempt to show that the decision was in fact made for a legitimate business reason. Bakken would then have the burden of showing that the proffered "legitimate business reason" was a pretext for sex discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Given the varied allegations and Bakken's supporting affidavits, this court cannot conclude that Bakken will be unable to establish a prima facie case of violation of Title VII. Genuine issues of material fact preclude summary judgment for NACC on the Title VII claim.

NACC contends that it is entitled to dismissal of Bakken's claim insofar as she seeks compensatory and punitive damages on the Title VII action. Bakken concedes that compensatory damages may not be recovered on a Title VII claim under Eighth Circuit law, and that recovery of punitive damages on a Title VII claim is a matter that is unsettled under Eighth Circuit law. In other cases, this court has followed the weight of authority in not allowing recovery of punitive damages in actions based solely on Title VII. Tuttle v. Henry J. Kaiser Company, Civil No. A1-84-222 (D.N.D. Oct. 25, 1985) Available on WESTLAW, DCTU database; Cottingham v. Mid Continent Theater Company, Civil No. A1-85-54 (D.N.D. July 29, 1985) Available on WESTLAW, DCTU database. Insofar as Bakken seeks compensatory and punitive damages on her Title VII claim, this action will be dismissed.

NACC asserts that Bakken's claim that her salary was less than that of Alan Moch, a male employee in the department who performed the same or similar job duties, is time barred. Under section 2000e-5(e), a charge must be filed within 300 days of the occurrence of an unlawful employment practice. Moch left the Exploration Department in 1981. Bakken did not file her claim until 1984. Bakken's position is that the alleged equal pay violation is one incident in a continuing pattern of discriminatory treatment, and that the time for filing a charge thus runs from the time of the last discriminatory act. Bakken's position is supported by the Eighth Circuit's decision in Satz v. ITT Financial Corp., 619 F.2d 738 (8th Cir.1980). Satz involved a claim...