Miller v. Medcenter One

• Citation: 571 N.W.2d 358
• Decision Date: 02 December 1997
• Docket Number: No. 970077,970077
• Parties: Gary J. MILLER, Plaintiff and Appellant, v. MEDCENTER ONE, Defendant and Appellee. Civil
• Court: United States State Supreme Court of North Dakota

Page 358

571 N.W.2d 358

1997 ND 231

Gary J. MILLER, Plaintiff and Appellant, v. MEDCENTER ONE, Defendant and Appellee.

Civil No. 970077.

Supreme Court of North Dakota.

Dec. 2, 1997.

Rehearing Denied Jan. 20, 1997.

William E. McKechnie, William E. McKechnie & Associates, P.C., Grand Forks, for plaintiff and appellant.

Robert J. Udland (argued) and DeeNelle L. Ruud, Fleck Mather & Strutz, Bismarck, for defendant and appellee.

VANDE WALLE, Chief Justice.

¶1 Gary J. Miller appealed from a Judgment dismissing his action against Medcenter One for wrongful termination under the North Dakota Human Rights Act. We affirm because Miller failed to establish a factual dispute that his termination was because of his sex.

I

¶2 Gary Miller was employed at Medcenter One since 1990. During his employment, he held various positions, mostly in the psychiatric unit. After becoming a registered nurse in 1992, Miller continued to work in the psychiatric unit at Medcenter One.

¶3 Around 3:00 in the morning on October 13, 1992, a female arrived at the psychiatric unit seeking voluntary admission. Miller had previous contact with the patient. Her medical file was several inches thick. Miller was aware the patient was a frequent admittee but was unaware of the patient's history of manipulating staff members or her prior allegations of sexual abuse.

¶4 Miller recalled the patient was anxious and distressed because of personal matters. As part of the admission procedure, Miller asked the patient when her last breast exam was and whether she did self exams. The patient told Miller she thought she had a lump on one of her breasts. She did not express pain associated with the lump or any pain in her breasts. The patient asked Miller several times to perform the breast exam. Miller finally performed the exam.

¶5 While he was trained how to do breast exams in nursing school, Miller had no specific training in locating lumps or oncology. Moreover, breast exams were not part of the regular admission procedure at the Medcenter One psychiatric unit. Miller claims he conducted the exam in order to relieve the patient's anxiety. However, his deposition testimony reveals he conducted more than a merely cursory exam. Miller placed a towel under the patient's shoulder blade, removed her gown, exposed each breast and physically examined each of them.

¶6 Miller did not document the patient's anxiety or the extent of his examination on the patient's chart. He merely indicated with a checkmark on the chart the patient's breasts were normal. Consequently, 16 months later, when the patient complained Miller abused her, Medcenter One had no record of the exam. The patient claimed she did not ask for the breast exam and submitted to it only because she thought it was part of the regular admission procedure. The patient said she trusted Miller and felt he had taken advantage of her. When asked by Medcenter One, Miller admitted he had done the exam, but only at the patient's request and to ease her anxiety.

¶7 Miller was terminated on March 9, 1994. He was told by a Medcenter One executive "it was inappropriate for a male nurse to perform a breast exam on a female psychiatric patient." Miller requested review of the termination decision through Medcenter One's "Fair Treatment Procedure." After several reviews provided in the process, the termination decision was upheld by the president of Medcenter One.

¶8 Miller commenced this action against Medcenter One, claiming his termination was in violation of the North Dakota Human Rights Act. After filing its answer, Medcenter One moved for summary judgment. Miller resisted. The district court ordered summary judgment for Medcenter One because Miller failed to prove three of the four elements of a prima facie case. Judgment was entered for Medcenter One.

II

¶9 On appeal, Gary J. Miller claims the district court erred in concluding he failed to establish the elements of a prima facie case of discrimination under the North Dakota Human Rights Act. We agree with the district court, Miller did not establish a prima facie case of discrimination.

¶10 The North Dakota Human Rights Act was passed "to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions...." N.D.C.C. § 14-02.4-01. While there are similarities between our state law and federal anti-discrimination laws, this Court applies a federal interpretation only when it is helpful and sensible. Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D.1993).

¶11 In Schweigert, 503 N.W.2d at 227 (citing Moses v. Burleigh County, 438 N.W.2d 186 (N.D.1989)), the majority applied the analytical framework utilized by the federal courts in alleging discriminatory treatment:

"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the [employment decision]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." ¹

Id. (Internal quotations omitted) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)).

¶12 The majority further observed the formula does two things: "[f]irst, it allocates the order of presentation of proof[, and,] [s]econd, it ascribes the burden of proof each party bears." Schweigert, 503 N.W.2d at 227. The court, quoting Burdine, further observed "[e]stablishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." ² Id. at 227-28. (Internal quotations and citation omitted).

¶13 The prima facie elements of a disparate-treatment, sex discrimination case under the North Dakota Human Rights Act are: (1) the plaintiff is a member of a protected class, ³ (2) the plaintiff suffered an adverse employment decision, ⁴ (3) the plaintiff's work performance was satisfactory to the employer, ⁵ and (4) the plaintiff must point to actions by the employer treating him adversely because of his protected status. Schuhmacher, 528 N.W.2d at 378. See also Schweigert, 503 N.W.2d at 227, n. 2.

¶14 Because employers do have the right to terminate at-will employees who are in a protected class and perform their job satisfactorily, N.D.C.C. § 34-03-01, the fourth element is often the essence of a prima facie case of discrimination. In a sex- based, disparate-treatment case, the employee must prove similarly situated employees not in the protected class were treated more favorably. Schuhmacher, 528 N.W.2d at 378 (citing Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th Cir.1994)). ⁶ The fourth element focuses on specific employer practices to establish the prima facie case through indirect evidence of discrimination.

III

¶15 In granting Medcenter One's Motion for Summary Judgment, the district court concluded Miller failed to establish three of the four elements of a prima facie case. Summary judgment under Rule 56, N.D. R. Civ. P., should be granted when there is no genuine dispute as to the material facts. Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 707, 709-10 (N.D.1995) (concluding summary judgment is appropriate in a case where plaintiff failed to establish prima facie elements under the North Dakota Human Rights Act). The non-movant cannot rely on simple allegations. Id. The resisting party must present competent evidence creating a factual dispute as to each essential element. Pulkrabek v. Sletten, 557 N.W.2d 225, 226 (N.D.1996). When no such evidence is presented it is presumed the evidence does not exist. Id. While the district court discussed all of the elements of the prima facie case, the last element is dispositive on appeal. On this record, Miller has failed to present evidence female employees were treated more favorably at Medcenter One.

¶16 Miller offered the deposition testimony of Ms. Mary Schmid, R.N., M.S.N., as an expert witness. Nurse Schmid said she believes Miller's breast exam conformed with applicable standards of nursing care. In her deposition, Schmid said Miller's charting error warranted other forms of discipline such as coaching or counseling. ⁷ Schmid further testified the performance of a breast exam in this instance would not be improper according to standards of nursing care. In order to prove disparate treatment Miller must present evidence female nurses at Medcenter One were treated more favorably than he. Schuhmacher, 528 N.W.2d at 378. Nurse Schmid's testimony fails to establish Medcenter One, in particular, treated Miller any less favorably than female nurses. In a prima facie case, the plaintiff "must identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently." Molloy v. Blanchard, 115 F.3d 86, 91 (1st Cir.1997) (internal quotations and citation omitted) (concluding female police officer presented sufficient evidence to show similarly situated male officers were treated differently). Without more, Nurse Schmid's national standard testimony is insufficient to transform allegations of discriminatory conduct into a factual dispute.

¶17 Miller claims, despite Medcenter One's assertion charting is critical, Medcenter One cannot demonstrate any female nurses have ever been fired for a single instance of incomplete charting. The North Dakota Human Rights Act often requires a showing of disparate treatment by the specific defendant-employer. But see footnote 6 (explaining the fourth element may vary from case to case). However, the burden is on the plaintiff to offer the evidence in his prima facie...