Koehler v. County of Grand Forks

• Decision Date: 26 March 2003
• Docket Number: No. 20020188.,20020188.
• Citation: 658 N.W.2d 741,2003 ND 44
• Parties: Peggy A. KOEHLER, Plaintiff and Appellant. v. COUNTY OF GRAND FORKS, Grand Forks County Board of Commissioners and Gary Malm, Arvin Kvasager, William "Spud" Murphy, Constance Triplett and Robert Wood, individually, and Arlene Lucke and Mary Ann Gunderson, jointly and severally, Defendants and Appellees.
• Court: North Dakota Supreme Court

658 N.W.2d 741

2003 ND 44

Peggy A. KOEHLER, Plaintiff and Appellant. v. COUNTY OF GRAND FORKS, Grand Forks County Board of Commissioners and Gary Malm, Arvin Kvasager, William "Spud" Murphy, Constance Triplett and Robert Wood, individually, and Arlene Lucke and Mary Ann Gunderson, jointly and severally, Defendants and Appellees.

No. 20020188.

Supreme Court of North Dakota.

March 26, 2003.

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

Margaret Moore Jackson, Pearson Christensen, Grand Forks, ND, for defendants and appellees.

KAPSNER, Justice.

[¶ 1] Peggy Koehler appealed from a summary judgment dismissing her claims against the County of Grand Forks, the Board of County Commissioners, Arlene Lucke, and Mary Ann Gunderson. We affirm, concluding Koehler failed to raise a genuine issue of material fact precluding summary judgment.

I

[¶ 2] Koehler began working in the office of the Grand Forks County Register of Deeds in February 1993. At that time Lylah Sollom was the Register of Deeds and Mary Ann Gunderson was the First Deputy. In 1995, Gunderson was elected Register of Deeds and the Second Deputy, Arlene Lucke, became First Deputy. When Gunderson retired in 1999, Lucke was elected Register of Deeds.

[¶ 3] In May 1998, Koehler suffered a heart attack and was on medical leave until October 1, 1998, when she returned to work on a part-time basis. After her heart attack, Koehler was restricted from lifting more than ten pounds and was diagnosed with congestive heart failure. She asserts she is now easily fatigued, has difficulty climbing and descending stairs, is unable to walk more than a short distance, has breathing problems, and has memory lapses.

[¶ 4] Koehler claims she was subjected to harassment and unfair treatment by Gunderson and Lucke throughout her employment in the Register's office. Koehler alleges her workstation was placed at the rear of the office; she received less comfortable office furniture; she received a warning for insubordination; she was unable to take vacation time when she wanted; she was not invited to office social gatherings; she was not promoted to a First or Second Deputy position; an alarm clock was placed near her desk to signal breaks; Gunderson and Lucke followed her to the bathroom; and Gunderson and Lucke telephoned her and her doctor while she was on medical leave.

[¶ 5] In June 1999 Koehler resigned her position in the Register's office and accepted another job with the County in the Veterans Services office. Koehler had been earning $1,811 per month at the Register's office. Her new position paid $1,843 per month.

[¶ 6] Koehler brought this action against the County, the Board of County Commissioners, Lucke, and Gunderson, alleging disability discrimination, tortious interference with contract, and negligent supervision. The district court granted the defendants' motion for summary judgment, concluding Koehler had failed to demonstrate a genuine issue of material fact on an essential element of each of her claims. Koehler appealed from the judgment dismissing her claims.¹

II

[¶ 7] 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. Hilton v. North Dakota Educ. Ass'n, 2002 ND 209, ¶ 23, 655 N.W.2d 60. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and, under applicable principles of substantive law, the party is entitled to judgment as a matter of law. Moen v. Thomas, 2001 ND 110, ¶ 10, 628 N.W.2d 325. In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Id.

[¶ 8] We have outlined the duty of a party opposing a motion for summary judgment:

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.

Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991)).

[¶ 9] 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. Hilton, 2002 ND 209, ¶ 23, 655 N.W.2d 60. 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. Mr. G's Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 23, 651 N.W.2d 625.

[¶ 10] Whether the trial court properly granted summary judgment is a question of law which we review de novo on the entire record. Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689.

III

[¶ 11] Koehler argues the district court erred in dismissing her disability discrimination claim under the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4.

[¶ 12] The Human Rights Act outlines exceptions to the employment-at-will doctrine. Anderson, 2001 ND 125, ¶ 17,630 N.W.2d 46; 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, physical disability. See N.D.C.C. §§ 14-02.4-01, 14-02.4-03; Anderson, at ¶ 17. The Act prohibits an employer from according adverse or unequal treatment to an employee with respect to promotions because of a physical disability. N.D.C.C. § 14-02.4-03. An employee who has been subjected to discrimination in violation of the Act may bring an action for damages. N.D.C.C. § 14-02.4-19. We have previously indicated that, when considering claims under the Act, we will look to federal interpretations of corresponding federal antidiscrimination statutes for guidance when it is "helpful and sensible to do so." Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 12, 591 N.W.2d 101 (quoting Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D.1993)).

[¶ 13] The plaintiff in a discrimination action under the Act bears the initial burden of establishing a prima facie case. Anderson, 2001 ND 125, ¶ 18, 630 N.W.2d 46; Opp, 1999 ND 52, ¶ 14, 591 N.W.2d 101. To establish a prima facie case of discrimination under the 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. Anderson, at ¶ 18.

A

[¶ 14] Koehler claims she was discriminated against on the basis of her disability because she was passed over for promotion to First or Second Deputy in the Register's office. The United States Court of Appeals for the Eighth Circuit has delineated the essential elements of a failure-to-promote case:

To establish a prima facie case in a failure-to-promote case, a plaintiff must show: (1) that she was a member of a protected group; (2) that she was qualified and applied for a promotion to an available position; (3) that she was rejected; and (4) that a similarly qualified employee, not part of a protected group, was promoted instead.

Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 (8th Cir.1998).

[¶ 15] Koehler has failed to meet her burden of drawing our attention to evidence in the record raising a genuine issue of material fact on each element of a prima facie case. Rather, Koehler makes only vague, conclusory, unsupported assertions that she was passed over for a promotion because of her alleged disability. The only evidence she cites to support her assertion that "[e]ven though [she] was the most senior ... employee she was time and again overlooked for promotion to second or first deputy" was the following exchange from her deposition:

Q. What promotion do you now think you should have received?

A. Well, I think that I was, should have been moved up to the next grade when the last person, when the person left that I was in line for.

Q. And do you know which person you're talking about?

A. I don't know if it was Nancy or who it was or—it was before Nancy. It was before Nancy. Before Nancy that worked there, Nancy Driscoll, before, somebody that left before her.

[¶ 16] We have previously clarified that, in opposing a motion for summary judgment, a plaintiff in a failure-to-promote case must present evidence that she was a member of the protected class and the person promoted was not a member of the protected class. Anderson, 2001 ND 125, ¶ 9,630 N.W.2d 46. In this case...