Opp v. Source One Management, Inc.

• Decision Date: 18 March 1999
• Docket Number: No. 980154,980154
• Citation: 591 N.W.2d 101
• Parties: Kelly OPP, Plaintiff and Appellant, v. SOURCE ONE MANAGEMENT, INC., and Jule Holzer, Defendants and Appellees.
• Court: North Dakota Supreme Court

Page 101

591 N.W.2d 101

1999 ND 52

Kelly OPP, Plaintiff and Appellant, v. SOURCE ONE MANAGEMENT, INC., and Jule Holzer, Defendants and Appellees.

No. 980154.

Supreme Court of North Dakota.

March 18, 1999.

Rehearing Denied April 6, 1999.

Deborah J. Carpenter, of Carpenter Law Offices, Bismarck, for plaintiff and appellant.

Patrick J. Ward (argued) and Lawrence E. King, of Zuger Kirmis & Smith, Bismarck, for defendants and appellees.

MARING, Justice.

¶1 Kelly Opp appeals from the district court's judgment granting Source One Management, Inc.'s motion for summary judgment. We affirm.

I

¶2 Opp, a male, began working for Source One as a warehouse clerk in September 1992. Source One, a private corporation based in Denver, Colorado, contracts with governmental agencies to provide administrative and clerical support. Opp's duties included warehouse maintenance, equipment distribution, and operation of government vehicles to transport equipment and perform field inventories. Jule Holzer, a female, was Source One's site manager in Bismarck, and at all times relevant, was Opp's supervisor. Opp was fired on July 3, 1995, for violating government regulations and Source One policy by using a government vehicle for personal use.

¶3 Opp originally filed this case in federal district court in September 1996, alleging claims under state and federal law for breach of contract, sexual discrimination and harassment, retaliatory discharge, and violations of the first amendment and 42 U.S.C. § 1983. On September 2, 1997, the federal court dismissed with prejudice Opp's Title VII claims because they were not timely filed. Guided by a stipulation between the parties, the court also dismissed with prejudice Opp's breach of contract, first amendment and 42 U.S.C. § 1983 claims, but permitted Opp to file an amended complaint alleging discrimination claims under the North Dakota Human Rights Act. On September 4, 1997, the court declined to exercise supplemental jurisdiction over Opp's state claims and dismissed them without prejudice. Opp did not appeal any of the federal district court's orders, and instead commenced this action in state court.

¶4 Opp filed a summons and complaint in state court on October 24, 1997, alleging sexual harassment and retaliatory discharge claims under the North Dakota Human Rights Act and breach of employment contract. In lieu of an answer, Source One filed a motion for summary judgment on November 13, 1997. Opp filed a response opposing the summary judgment motion on December 16, 1997. On February 2, 1998, after a hearing on the matter, the district court issued a memorandum opinion granting Source One's summary judgment motion on the sexual harassment, retaliatory discharge, and breach of contract claims. After judgment was entered, Opp timely filed his notice of appeal.

¶5 To support his sexual harassment claim, Opp alleges a number of cards, notes, e-mails, and social invitations received from Holzer over the nearly three year period of his employment contained sexual innuendo and impliedly sought a sexual relationship with him. For instance, in 1993, Holzer sent Opp a birthday card, the cover of which has a painting of a pair of cowboy boots, and states, "Wouldn't it be wonderful if we could be like a pair of old boots. The worse we look, the better we feel. Happy Birthday and many more." Opp believes the card is sexual in nature because the pair of boots imply Holzer wanted the two of them to be a couple. In 1994, Holzer sent Opp another birthday card stating, "Go ahead. Make a wish. Happy Birthday." Holzer wrote on the card, "Have a good one. Jule." Opp believes "make a wish" also implied Holzer wanted a relationship with him. For Opp's birthday in 1994, Holzer also sent him an e-mail reciting the words of the Happy Birthday song. Opp believes the message was "flirtatious and inappropriate." Opp also alleges while in Fargo for company meetings, Holzer asked him to go drinking and dancing. Opp refused. Later, when Opp was to take another business trip to Fargo, Holzer commented she should go along so they could go dancing together, since they had not been able to before.

¶6 Opp also alleges a series of notes, cards and e-mails from Holzer show Holzer "flirted" with him. Specifically, Holzer sent Opp: (1) a note stating "Have a nice, great weekend--rest up and start taking care of yourself--Jule," (2) an e-mail stating "hope you are feeling better," (3) another e-mail saying "Have a nice time off--Jule," in reference to a day off Opp was to have, (4) a note on the envelope of one of his paychecks, saying "Have a good Memorial Day weekend," and (5) a Christmas card on which she wrote, "Keep up the good work. Wishing you and your family a happy holiday season. JH." Also, on a number of occasions Holzer and Opp had lunch meetings in which business was initially discussed. During these lunches, Holzer would turn the conversation to Opp's personal life, such as how his family was doing or what his vacation plans were. Opp argues this "delving into his personal life" was "flirtatious."

¶7 Opp complains Holzer inappropriately discussed off-color jokes and sexual topics at work. Opp alleges Holzer: (1) repeated a joke about John Wayne Bobbit in the company of other Source One employees, (2) recounted for Opp a recent camping trip taken with co-workers where the subject of glow-in-the-dark condoms was discussed, (3) asked Opp if he had seen a recent episode of "Dave's World," a popular television show, where the plot line for the particular show revolved around kids blowing up condoms, and (4) told Opp he would have enjoyed seeing the two women she had seen walking down the street topless during a trip to Denver.

¶8 Finally, Opp alleges Holzer physically harassed him. On one occasion Holzer reached across Opp's desk to use his phone and in the process brushed her hip against his body. Another time, while seated side by side at Opp's desk, Holzer pushed her chair closer to Opp's and in the process brushed her arm against his. While walking side by side down a hallway at work, Opp claims Holzer continued to brush up against him while they walked. On another occasion, while Opp was seated at his desk, Holzer stood over him and rubbed his back for "between 2-10 seconds." On two other occasions, after lengthy meetings, Holzer allegedly hugged Opp.

¶9 Source One had its own complaints. Over a sixteen-month period beginning in January 1994, Opp was issued two formal written warnings concerning his inappropriate behavior in the workplace. On January 18, 1994, Holzer and Les Tomac, Source One's Group Manager in Denver, issued Opp a "final written warning" documenting concerns about his conduct. The formal warning cited Opp for sexually harassing behavior towards Holzer, an unprofessional work attitude, and personal use of government resources in violation of Source One policy and governmental regulation. In a written response to the warning, Opp denied most of the conduct for which he was cited, including the sexual harassment allegation. Notably Opp did not complain about any sexually harassing behavior on Holzer's part either in his written response or during a meeting he had with Tomac concerning the written warning. Opp did tell Tomac he did not like Holzer "prying into his personal life." On May 3, 1995, Opp was given a second "final written warning," again being cited for "inappropriate behavior addressing the same type of problems that have previously occurred." Opp apparently did not acknowledge or respond to the second warning. He was fired on July 3, 1995, for again violating government regulations and Source One policy by using a government vehicle for personal use.

II

¶10 As a preliminary matter, we must address Opp's argument that the district court improvidently granted summary judgment because Source One did not respond to his complaint with a proper responsive pleading. Source One argues responding to Opp's complaint with a summary judgment motion was proper because N.D.R.Civ.P. 12 and 56 combine to allow a summary judgment motion to be brought in lieu of a responsive pleading. Under N.D.R.Civ.P 12(b)(5) any defendant to a complaint, counterclaim, or cross-claim may move to dismiss for "failure to state a claim upon which relief can be granted." When matters outside the pleadings are presented to the court in conjunction with such a motion, "the motion must be treated as one for summary judgment and disposed of as provided in Rule 56." N.D.R.Civ.P. 12(b); Livingood v. Meece, 477 N.W.2d 183, 187 (N.D.1991). Clearly, a motion under N.D.R.Civ.P. 12(b)(5) can be filed in lieu of an answer. Source One initially filed its summary judgment motion under N.D.R.Civ.P. 56, however, and not as a Rule 12(b) motion. Thus, we must look to N.D.R.Civ.P. 56 to determine whether a summary judgment motion is a proper responsive pleading.

¶11 N.D.R.Civ.P 56(b) specifically provides a defendant "may move, at any time, with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." While N.D.R.Civ.P. 56(a) requires plaintiffs to wait 20 days from the commencement of the action to move for summary judgment, N.D.R.Civ.P. 56(b) clearly allows defendants to move at any time. "The different rules for plaintiffs and defendants attempt to ensure that the target of a summary judgment motion is familiar with the dispute at issue in the lawsuit for at least a modest amount of time." 11 Moore's Federal Practice, § 56.10 (3d ed.1998) (discussing Fed.R.Civ.P. 56). Since plaintiffs have an inherent familiarity with their lawsuit from the onset, "there is less reason for concern about unfairness if defendants immediately move for summary judgment against the plaintiff's claim." Id. Opp nevertheless argues he was prejudiced by the timing of Source One's summary judgment motion because he was precluded from pursuing adequate discovery. Opp fails to acknowledge the...