Dahlberg v. LUTHERAN SOCIAL SERV. OF ND

• Decision Date: 17 April 2001
• Docket Number: No. 20000152.,20000152.
• Citation: 2001 ND 73,625 N.W.2d 241
• Parties: Joyce DAHLBERG, Plaintiff and Appellant, v. LUTHERAN SOCIAL SERVICES OF NORTH DAKOTA, and Mary J. Weiler, Defendants and Appellees.
• Court: North Dakota Supreme Court

625 N.W.2d 241

2001 ND 73

Joyce DAHLBERG, Plaintiff and Appellant, v. LUTHERAN SOCIAL SERVICES OF NORTH DAKOTA, and Mary J. Weiler, Defendants and Appellees.

No. 20000152.

Supreme Court of North Dakota.

April 17, 2001.

Timothy P. Hill, Hill Law Office, Fargo, for plaintiff and appellant.

Benjamin E. Thomas, Wold Johnson, P.C., Fargo, for defendants and appellees.

MARING, Justice.

[¶ 1] Joyce Dahlberg appealed from a summary judgment¹ dismissing her claims against Lutheran Social Services of North Dakota and Mary J. Weiler for breach of contract, retaliatory discharge, and intentional infliction of emotional distress. We hold Lutheran Social Services was not contractually required to follow a progressive discipline policy in terminating Dahlberg's employment; the defendants' conduct was not so extreme and outrageous as to satisfy the threshold requirement for a claim for intentional infliction of emotional distress; and Dahlberg failed to establish a prima facie case for retaliatory discharge under N.D.C.C. § 34-01-20. We affirm.

I

[¶ 2] In May 1996, Lutheran Social Services hired Dahlberg for an unspecified term as a therapeutic recreational therapist at Luther Hall, a residential treatment center for troubled children and adolescents. Dahlberg's duties at Luther Hall included organizing recreational activities for the residents.

[¶ 3] When Lutheran Social Services hired Dahlberg, she received an Employee Handbook which stated:

The LSS Employee Handbook is provided for use by agency employees. This Handbook is not intended to be a contract. Interpretation of information contained in this handbook remains the right of the agency. Employees of Lutheran Social Services of North Dakota are employees at will. As such, the employee may resign at any time for any reason, although at least two weeks notice is expected; and, conversely, LSS/ND may terminate the employee for any reason or no reason. Also, if conditions warrant, the agency reserves the right to make changes and/or modifications in the Handbook without notice.

[¶ 4] Dahlberg acknowledged signing an employee handbook receipt and agreement which provided:

I have read and understand the Employee Handbook of Lutheran Social Services of North Dakota and I understand and accept the policies and procedures as part of my employment relationship with the agency. I have received a copy of the Employee Handbook and understand that this handbook or the policies contained in the handbook may be amended from time to time by the agency without notice. It is understood that this handbook does not create a contract and both Lutheran Social Services of North Dakota and I have the right to terminate the employment relationship at any time for any reason, although I agree that wherever possible I will give at least two weeks notice.

[¶ 5] In March 1997, Lutheran Social Services adopted a three-step progressive discipline policy, which defined progressive discipline as a sequence of increasingly serious actions taken in response to unacceptable behavior and said the steps outlined in the procedure were intended to assist employees in correcting work-related performance. The policy identified the three steps of progressive discipline as a first notice, a second notice, and termination. The policy said a supervisor must follow principles of equity in imposing progressive discipline, and the discipline must fit the infraction. The policy said employees must be informed of the action taken and why, and employees must be given the opportunity to respond and explain their behavior. The policy indicated progressive discipline is attempted whenever possible, but serious breaches of conduct may result in immediate suspension without using the progressive discipline procedure.

[¶ 6] On August 19, 1997, Dahlberg was supervising several residents during a recreational activity at Luther Hall. One of the residents left the recreational activity, and Dahlberg pursued that resident, leaving the other residents unattended. Mary Weiler, the Administrative Director of Luther Hall, prepared a summary of the incident and a written statement of employee performance concerns, a first notice under the progressive discipline procedure, which cited lack of judgment related to supervision of residents, leaving the building without communicating supervision needs to the residential specialist, lack of decision making in a crisis situation, and lack of initiative in cooperative working relationships.

[¶ 7] In October 1997, Dahlberg was involved in an incident in which a resident at Luther Hall was found in possession of a confidential list of names and home addresses of Luther Hall staff members. The resident reported she had obtained the list from a drawer in Dahlberg's desk while being supervised by Dahlberg. Weiler investigated the incident, and she prepared a report and a second notice under the progressive discipline procedure, which cited Dahlberg's lack of good judgment regarding supervision of a resident.

[¶ 8] According to Dahlberg, in November 1997 she began making verbal reports to Weiler regarding what Dahlberg "believed to be violations or suspected violations of law pertaining to abuse of residents." On December 18, 1997, Dahlberg wrote Weiler a letter "concerning inappropriate touching by several residents during different time frames involving supervision by different staff." According to Dahlberg, from December 1997 through the spring of 1998 she persisted in her "insistence that allegations of abuse be investigated," and she began experiencing a marked change in how she was treated by management and her supervisors. She claimed her work environment became "hostile."

[¶ 9] In April 1998, Dahlberg was involved in another incident at Luther Hall. According to an April 29, 1998 summary by Amy Dahlin, on April 22 Dahlberg left Luther Hall with a 13-year-old female resident without informing a supervisor, Dahlberg provided the resident with caffeinated pop, and Dahlberg returned the resident twenty to thirty minutes after the resident's scheduled bedtime. On April 29, Weiler suspended Dahlberg without pay until May 7, 1998, when a meeting was scheduled with Dahlberg's immediate supervisor, Brent Larson, to determine her status. Weiler prepared a third written employment performance concern regarding Dahlberg, and Dahlberg was told not to return to Luther Hall during the suspension. However, Dahlberg returned to Luther Hall later on April 29, and talked to some residents. On May 11, 1998, the president of Lutheran Social Services, Tony Ingle, terminated Dahlberg's employment.

[¶ 10] Dahlberg sued Lutheran Social Services and Weiler for breach of contract, retaliatory discharge, and intentional infliction of emotional distress. The trial court granted summary judgment dismissing all three of Dahlberg's claims, and she appealed.

II

[¶ 11] We review this appeal in the posture of summary judgment, which is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Reed v. University of North Dakota, 1999 ND 25, ¶ 7, 589 N.W.2d 880. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. Although the party seeking summary judgment must initially demonstrate there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings or upon unsupported conclusory allegations. Engel v. Montana Dakota Utils., 1999 ND 111, ¶ 7, 595 N.W.2d 319. A party resisting a summary judgment motion 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 raising an issue of material fact. Id. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Id. Issue of fact may be appropriate for summary judgment if reasonable minds can draw only one conclusion from the evidence. Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101.

III

[¶ 12] Dahlberg argues she was terminated in violation of her employment contract with Lutheran Social Services. She argues Lutheran Social Services' progressive discipline policy was part of her employment contract, and Lutheran Social Services failed to follow that policy in terminating her.

[¶ 13] Under N.D.C.C. § 34-03-01, employment without a definite term is presumed to be at will, and an at-will employee may be terminated with or without cause. See e.g., Jose v. Norwest Bank, 1999 ND 175, ¶ 10, 599 N.W.2d 293

. By contract, however, the parties may modify the at-will presumption and define their contractual rights regarding termination. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 8, 610 N.W.2d 53. An employer may contractually modify the at-will presumption with an employee handbook or personnel policy manual. Eldridge v. Evangelical Lutheran Good Samaritan Soc., 417 N.W.2d 797, 799-800 (N.D.1987).

[¶ 14] The construction of an employment contract to determine its legal effect is a question of law, and on appeal, we will independently examine and construe the contract to determine if the trial court erred in its interpretation. Eldridge, 417 N.W.2d at 799. We construe employment contracts, including handbooks and policies, as a whole to determine the parties' intent. See Jose, 1999 ND 175, ¶ 11,

599 N.W.2d 293; Olson v. Souris River Telecomms. Co-op., Inc., 1997 ND 10, ...