Hysjulien v. Hill Top Home of Comfort, Inc.

• Decision Date: 04 March 2013
• Docket Number: No. 20120163.,20120163.
• Citation: 2013 ND 38,827 N.W.2d 533
• Parties: Lindsey HYSJULIEN, Plaintiff and Appellant v. HILL TOP HOME OF COMFORT, INC., and Greg Armitage, Defendants and Appellees.
• Court: North Dakota Supreme Court

827 N.W.2d 533

2013 ND 38

Lindsey HYSJULIEN, Plaintiff and Appellant

v.HILL TOP HOME OF COMFORT, INC., and Greg Armitage, Defendants and Appellees.

No. 20120163.

Supreme Court of North Dakota.

March 4, 2013.

Daniel E. Phillips (argued), Fargo, N.D., and Scott T. Solem (appeared), Beulah, N.D., for plaintiff and appellant.

Monte L. Rogneby (argued), Brenda L. Blazer (on brief), and Amanda E. Peterson (on brief), Bismarck, N.D., for defendants and appellees.

CROTHERS, Justice.

[¶ 1] Lindsey Hysjulien appeals from a summary judgment dismissing her claims for employment discrimination and negligent and intentional infliction of emotional distress against Hill Top Home of Comfort, Inc. and Greg Armitage. We conclude the district court did not err in granting summary judgment on Hysjulien's claim for negligent infliction of emotional distress. However, because genuine issues of material fact exist regarding the running of the statutes of limitations for her state and federal employment discrimination claims and regarding her intentional infliction of emotional distress claim, the court erred in granting summary judgment on these claims. We affirm in part, reverse in part and remand.

I

[¶ 2] In 2010, Hysjulien sued Hill Top and Armitage, Hill Top's administrator and chief executive officer, asserting employment discrimination claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the North Dakota Human Rights Act, N.D.C.C. § 14–02.4–01 et seq. (“Human Rights Act”). Hysjulien also asserted claims against Hill Top and Armitage for intentional infliction of emotional distress and negligent infliction of emotional distress.

[¶ 3] Hysjulien alleged she began working as an occupational therapist at Hill Top, a long term care facility in Killdeer, in 1999, was promoted to head of the physical therapy department approximately five years later and continued to work in that position until her employment was terminated on September 30, 2008. She claimed Armitage assaulted her in May 2005, while attending a work conference in Bismarck with other department heads. She claimed that after an evening of drinking with Armitage and co-workers, she had fallen asleep and been left in Armitage's hotel room at his request, that she awoke shortly after everyone else had left the room and found Armitage naked on top of her trying to remove her clothes and that she resisted and left his room. Hysjulien claims her work environment changed after that 2005 incident.

[¶ 4] Hysjulien claimed that in January 2006, she reviewed wages for her department and discovered a male physical therapist was paid more than she and other female employees in the department. Hysjulien asserts that when she asked Armitage about the disparity, Armitage said he had made a “deal” with the male employee but was “unwilling” to make a deal with her. Hysjulien claims she was treated in a hostile manner and differently than other department heads. She asserts Armitage would not allow her to hire a qualified physical therapist for an opening in her department, effectively keeping her department short of employees. According to Hysjulien, when the department's other occupational therapist resigned effective September 10, 2008, Armitage authorized Hysjulien to advertise for the open position for only one week, with an application deadline of Friday, September 5, 2008.

[¶ 5] She claimed she met with Armitage on September 2, 2008, and he told her the Hill Top board of directors approved his recommendation to eliminate her department and to terminate her position. Hysjulien claims she advised Armitage that she had been receiving calls for the open position and the deadline for applications was September 5, 2008. Hysjulien asserts that at the September 2, 2008 meeting with Armitage, he told her a decision on closing the department would not be made until after the September 5 deadline for applications.

[¶ 6] On Monday, September 8, 2008, Hysjulien again spoke with Armitage regarding the calls she had received about the open position, but Armitage told her the department would be closed. Hysjulien claims she asked Armitage for written notice that her position was terminated and requested the notification be backdated to their meeting on September 2, 2008. Hysjulien asserts she received the written notice of termination, dated September 2, 2008, from Armitage on September 9, 2008.

[¶ 7] Hysjulien alleges Armitage continued to treat her differently and in a hostile manner through her last day of employment on September 30, 2008. She alleges Hill Top had a policy of paying employees additional pay if they were required to work “short-staffed” in their department but she was not compensated for working short-staffed in her final paycheck. She claims when she contacted Armitage about the issue, he told her she would not be paid for working short-staffed.

[¶ 8] Hysjulien claims that, shortly after her termination at Hill Top, she contacted the North Dakota Department of Labor (“Department”) and reported the facts regarding the sexual assault and her employment termination. Hysjulien claims the Department referred her to the North Dakota Attorney General's office, which in turn referred her to local law enforcement authorities to file criminal charges against Armitage, but she chose not to pursue criminal charges.

[¶ 9] On July 2, 2009, Hysjulien filed a discrimination charge against Hill Top and Armitage with the Department, which dismissed her claim after concluding the 300–day deadline for making a claim had expired. Hysjulien submitted additional documentation to the Department, and the Department determined it did not have “authority to investigate” the complaint under state law due to the 300–day statute of limitations and transferred the charge to the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued Hysjulien a notice of right to sue on March 2, 2010.

[¶ 10] In June 2010, Hysjulien sued Hill Top and Armitage, alleging employment discrimination and intentional and negligent infliction of emotional distress. Hill Top and Armitage jointly answered Hysjulien's complaint, denying liability. Hill Top and Armitage moved for summary judgment, relying on Armitage's affidavit and Hysjulien's July 2009 sworn statements to the Department. Hysjulien responded with her affidavit. The district court granted summary judgment dismissing Hysjulien's claims against both Hill Top and Armitage.

II

[¶ 11] “Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and 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.” Koehler v. Cnty. of Grand Forks, 2003 ND 44, ¶ 7, 658 N.W.2d 741. A summary judgment movant “bears the burden of establishing there is no genuine issue of material fact and, under applicable principles of substantive law, the [movant] is entitled to judgment as a matter of law.” Id. In considering a summary judgment motion, the court views the evidence in the light most favorable to the party opposing the motion, who is given the benefit of all favorable inferences reasonably drawn from the evidence. Id.

[¶ 12] “Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of [a] claim and on which [the party] will bear the burden of proof at trial.” Koehler, 2003 ND 44, ¶ 9, 658 N.W.2d 741. “When no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed no such evidence exists.” Id.

[¶ 13] “Whether the [district] court has properly granted summary judgment is a question of law which [this Court] review[s] de novo on the entire record.” Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689. For purposes of applying a statute of limitations, determining when a cause of action accrues normally presents a question of fact; however, if the material facts are undisputed, the issue of whether a statute of limitations has run becomes a question of law. See Johnson v. Hovland, 2011 ND 64, ¶ 13, 795 N.W.2d 294;Abel v. Allen, 2002 ND 147, ¶ 11, 651 N.W.2d 635.

III

[¶ 14] Hysjulien argues the district court erred in deciding her claims alleging violations of Title VII and the North Dakota Human Rights Act were not timely filed and in granting summary judgment on those claims.

[¶ 15] In the posture of this summary judgment proceeding, the parties do not dispute that administrative complaints under both the Human Rights Act and Title VII must be filed within 300 days after the claimed discriminatory conduct. SeeN.D.C.C. § 14–02.4–19; 42 U.S.C. § 2000e–5(e)(1). On appeal, the parties have treated Hysjulien's initial complaint received by the Department on July 2, 2009, as the earliest date her charges were filed for calculating the 300–day period under the Human Rights Act and Title VII. We therefore analyze the issues raised by Hysjulien within that time frame and date.

A

[¶ 16] Hysjulien's arguments regarding whether her initial administrative filing was within the 300–day period are two-fold. First, she contends she filed her administrative complaint within 300 days from when she received notice of termination from Hill Top. Second, she argues any dispute regarding when she received her termination notice is not dispositive because she also asserts a hostile work environment claim.

[¶ 17] In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court held that whether a claim of an unlawful employment practice under Title VII was timely filed depends on whether the claim raises discrete discriminatory or retaliatory acts or alleges a hostile...