Clausnitzer v. Tesoro Ref. & Mktg. Co.

• Decision Date: 20 August 2012
• Docket Number: No. 20120107.,20120107.
• Citation: 820 N.W.2d 665,2012 ND 172
• Parties: Tim CLAUSNITZER, Plaintiff and Appellant v. TESORO REFINING AND MARKETING COMPANY, Defendant and Appellee.
• Court: North Dakota Supreme Court

820 N.W.2d 665

2012 ND 172

Tim CLAUSNITZER, Plaintiff and Appellant

v.TESORO REFINING AND MARKETING COMPANY, Defendant and Appellee.

No. 20120107.

Supreme Court of North Dakota.

Aug. 20, 2012.

Sean T. Foss (argued) and Timothy M. O'Keeffe (appeared), Fargo, N.D., for plaintiff and appellant.

Clark J. Bormann (argued) and Sophie Y. Morgan (appeared), Bismarck, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Tim Clausnitzer appeals from a summary judgment dismissing his lawsuit against Tesoro Refinery and Marketing Company alleging lawful-activity discrimination under the North Dakota Human Rights Act, N.D.C.C. ch. 14–02.4. We affirm, concluding Clausnitzer failed to make a prima facie showing that he was a member of a protected class under the Act when Tesoro terminated his employment.

I

[¶ 2] Clausnitzer was employed as manager of maintenance at Tesoro's Mandan refinery. On March 24, 2009, Clausnitzer drove his two-wheel drive personal vehicle to work from his home in Bismarck. During the morning, Clausnitzer took Ativan, an anti-anxiety pill prescribed by his doctor. A winter storm developed that morning. Clausnitzer took a late lunch break and drove a four-wheel drive company vehicle, marked “Tesoro,” to Bismarck. The purpose of the trip was to locate a printer for a Tesoro employee and to run some personal errands. After looking at printers, Clausnitzer stopped at his girlfriend's house, but left because she was not home. He decided to return to the refinery and, while driving back, Clausnitzer was involved in a minor motor vehicle accident. A Bismarck police officer responded, citing Clausnitzer with careless driving on slippery roads. Clausnitzer called Tesoro's human resources manager to inform him about the accident.

[¶ 3] Clausnitzer took the remainder of the afternoon off from work and drove home, where he drank a vodka tonic. He then drove the Tesoro vehicle to his girlfriend's house. Clausnitzer fell on the steps, and his girlfriend told him to leave. Clausnitzer's girlfriend called the police, gave them his license plate number and informed them she believed Clausnitzer had been drinking and might harm himself. The same police officer who earlier had investigated the accident pulled Clausnitzer over, asked him if he had been drinking and gave him a breath alcohol test. The test indicated Clausnitzer had a blood alcohol content of .058 percent, which was lower than the presumptive level of .08 percent for driving under the influence of alcohol under N.D.C.C. § 39–08–01(1)(a), but was higher than the .04 percent limit for driving company vehicles imposed by Tesoro's personnel policies. The police officer allowed Clausnitzer to leave the scene of the stop but called Tesoro and informed its human resources manager that Clausnitzer earlier had been involved in an accident and later had been drinking while operating a company vehicle. The officer told the human resources manager the result of the breath alcohol test and said, “[H]e just wanted the company to know.” Tesoro eventually gave Clausnitzer the option of either retiring or being fired for violating the company's policy. Clausnitzer retired.

[¶ 4] Clausnitzer sued Tesoro, claiming lawful-activity discrimination under the Human Rights Act. Clausnitzer contended he was improperly terminated from employment for engaging in a lawful activity because he was under the presumptive limit for driving under the influence under state law and was driving the Tesoro vehicle during off-duty hours when the incident leading to his termination occurred. Tesoro denied discriminating against Clausnitzer, arguing it terminated his employment because he violated the company's policy prohibiting driving a Tesoro vehicle with a blood alcohol content exceeding .04 percent.

[¶ 5] The district court granted Tesoro's motion for summary judgment dismissing the action, concluding Clausnitzer failed to establish a prima facie case of employment discrimination under the Human Rights Act. The court ruled Clausnitzer was on Tesoro's “premises” when he was pulled over in the company vehicle in Bismarck, based on a Tesoro personnel policy that defined “[c]ompany property or premises” as including “automobiles, trucks, [and] all other vehicles.” The court further ruled Clausnitzer's actions conflicted with Tesoro's “essential business-related interests.”

II

[¶ 6] Clausnitzer argues the district court erred in granting summary judgment dismissal of his claim.

[¶ 7] Our standard of review for summary judgments is well-established:

“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.”

Richard v. Washburn Pub. Sch., 2011 ND 240, ¶ 9, 809 N.W.2d 288 (quoting Loper v. Adams, 2011 ND 68, ¶ 19, 795 N.W.2d 899).

[¶ 8] “The Human Rights Act authorizes a person claiming to be aggrieved by an unlawful discriminatory practice to bring an action for damages in the district court.” Spratt v. MDU Res. Grp., Inc., 2011 ND 94, ¶ 9, 797 N.W.2d 328;see alsoN.D.C.C. § 14–02.4–19(2). The plaintiff bears the initial burden of “demonstrating a prima facie case under the modified McDonnell Douglas test.” Spratt, at ¶ 16;see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

“To establish a prima facie case of discrimination under the North Dakota Human Rights Act, a plaintiff must prove: (1) membership in a protected class under the Act; (2) satisfactory performance of the duties of the position; (3) an adverse employment decision; and (4) others not in the protected class were treated more favorably.”

Jacob v. Nodak Mut. Ins. Co., 2005 ND 56, ¶ 13, 693 N.W.2d 604. If the plaintiff fails to present a prima facie case, the burden-shifting rule of McDonnell Douglas does not come into play. Heng v. Rotech Med. Corp., 2004 ND 204, ¶ 37, 688 N.W.2d 389.

[¶ 9] The district court concluded Clausnitzer failed under the first element to make a prima facie showing he was a member of a protected class under the Human Rights Act, and did not address the remaining elements. The applicable protected class in this case is “participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.” N.D.C.C. § 14–02.4–03; see also Ramey v. Twin Butte Sch. Dist., 2003 ND 87, ¶ 12, 662 N.W.2d 270. The issue is whether Clausnitzer raised a genuine issue of material fact that he was a member of this protected class. See Spratt, 2011 ND 94, ¶ 16, 797 N.W.2d 328.

[¶ 10] The district court determined Clausnitzer's consumption of alcohol was a “lawful activity” and he had raised a genuine issue of material fact that the incident occurred during “nonworking hours.” However, the court determined Clausnitzer failed to raise a genuine issue of material fact that the incident occurred off Tesoro's “premises” and that his actions did not conflict with Tesoro's “essential business-related interests.” We need not address the “lawful activity,” “nonworking hours” and “premises” issues because the district court correctly ruled Clausnitzer failed to raise a genuine issue of material fact that his actions did not conflict with Tesoro's “essential business-related interests.”

[¶ 11] This Court has not interpreted under similar factual circumstances the phrase “essential business-related interests of the employer” used in N.D.C.C. § 14–02.4–03 and elsewhere in the Human Rights Act. SeeN.D.C.C. §§ 14–02.4–01, 14–02.4–02(6), 14–02.4–06 and 14–02.4–08. The parties have not cited, and we have not found, any caselaw from other jurisdictions interpreting this phrase in the context of alleged human rights acts violations. Each party argues, however, that Hougum v. Valley Mem'l Homes, 1998 ND 24, 574 N.W.2d 812, and Fatland v. Quaker State Corp., 62 F.3d 1070 (8th Cir.1995), support their positions.

[¶ 12] Fatland, 62 F.3d at 1073 n. 2, involved a federal court interpretation of the Human Rights Act under the law before the effective date of a 1993 amendment to N.D.C.C. § 14–02.4–03 which added the phrase, “which is not in direct conflict with the essential business-related interests of the employer.” 1993 N.D. Sess. Laws ch. 140, § 2. An employee worked as a sales representative for his employer and opened a “fast lube business.” Fatland, at 1071. The employer had a policy prohibiting employees from having conflict of interest situations with the company. Id. The employee told a customer of the employer about his new fast lube business, and the employer terminated his employment based on the conflict of interest policy because he had become a competitor of the employer's customers. Id. at 1072. The employee sued the employer claiming, among other things, that his termination violated the Human Rights Act. Id. The court interpreted N.D.C.C. § 14–02.4–08, which declared it was not lawful-activity discrimination to terminate employment “ ‘if that participation is contrary to a bona...