Swenson v. Northern Crop Ins., Inc., 920219

CourtUnited States State Supreme Court of North Dakota
Citation498 N.W.2d 174
Docket NumberNo. 920219,920219
PartiesCatherine SWENSON, Plaintiff and Appellant, v. NORTHERN CROP INSURANCE, INC., and John Krabseth, individually, Defendants and Appellees. Civ.
Decision Date24 March 1993

Nodland & Dickson, Bismarck, for plaintiff and appellant; argued by Irvin B. Nodland.

Winkjer, McKennett, Stenehjem, Reierson & Forsberg, Williston, for defendants and appellees; argued by Mark L. Stenehjem.

RALPH J. ERICKSTAD, Surrogate Judge. 1

Catherine Swenson appeals from a summary judgment and order, entered by the District Court for Williams County, dismissing her claims of gender discrimination, equal pay violations, and intentional infliction of emotional distress. We affirm in part, reverse in part, and remand.

As this is an appeal from a summary judgment and order, the reviewing court must consider the facts in a light most favorable to the opposing party. Rott v. Connecticut Gen. Life Ins. Co., 478 N.W.2d 570 (N.D.1991); Volk v. Wisconsin Mortgage Assurance Co., 474 N.W.2d 40 (N.D.1991). Swenson began working for Northern Crop Insurance, Inc., (NCI) in February of 1986 as a clerk/secretary. The only other employee in the office at that time was Rick Wallace, the office manager. Wallace resigned in December of 1986, and recommended Swenson for the position. Swenson contends that when she approached John Krabseth, an NCI officer, its general manager, and a stockholder, about filling the position, he told her that he needed a "man fresh out of college" to fill the position, not a woman. NCI's Board of Directors disagreed with Krabseth and approved Swenson's promotion.

Subsequent to her promotion, Swenson's salary was increased from $7.50 per hour to $10.00 per hour (approximately $5,000 per year less than Wallace, a man, made in the same position). Krabseth allegedly continued making derogatory and sexist comments to Swenson concerning her gender; he persisted in saying that a man belonged in her position and that men deserved to get paid more than women, apparently because they had families to support. Krabseth supposedly threatened Swenson that he was going to replace her with a man simply because he would not tolerate a woman in a management position making a high salary.

NCI was a growing business, so Krabseth initiated a plan to expand and reorganize the office structure. Swenson contends that in conjunction with this reorganization, and in step with Krabseth's desire to remove Swenson from the management position, Krabseth demoted Swenson to her clerk/secretary position, paying her $6.00 per hour ($1.50 per hour less than she made in the same position before). He also hired two young men to fill the positions of program specialist and computer operator. They were hired at higher rates than Swenson. According to Swenson, Krabseth did not offer her the opportunity to apply for either of the positions, and he allegedly made comments pertaining to gender as being the reason for hiring the men. Krabseth did most of these actions either without the approval of NCI's Board of Directors, or he informed the Board of his actions after they were implemented. Regardless of the time when the Board gained its knowledge, it allegedly refused to help Swenson, even after she repeated her attempts to have the Board remedy Krabseth's wrongs.

During the time of the reorganization, Krabseth allegedly began purposefully avoiding Swenson, refusing to speak with her about her employment at NCI. Even when Swenson confronted him and requested meetings with him, Krabseth allegedly avoided her. It was also at this time that Swenson returned to treatment and counseling for her alcoholism. Swenson, a recovering alcoholic, believed she was experiencing so much stress at work that she needed counseling and treatment to keep from drinking again. Swenson argues that Krabseth was aware of her deteriorating emotional condition because she asked for an extra five to ten minutes during her lunch hour so she could attend Alcoholics Anonymous meetings. At no time during Swenson's employment with NCI were there ten or more employees on NCI's payroll.

Contrary to Swenson's presentation of the facts, NCI and Krabseth argue that Swenson was demoted not as a result of her gender, but because her position was phased out during the reorganization--she was no longer needed in that capacity because the position no longer existed. They also assert that Swenson was not qualified for the two new positions, and that the new positions were different from any of her former positions. They point to her lack of formal education in the field of agriculture, and emphasize that the two young men hired had college educations and were very familiar with the agriculture industry, as was Rick Wallace. They claim that Swenson was simply deficient in the necessary qualifications for an upper-level position at NCI following its expansion.

Swenson terminated her employment and sued NCI and Krabseth in the District Court for Williams County. She claimed: (1) gender discrimination in violation of Chapter 14-02.4, N.D.C.C.; (2) violations of North Dakota's Equal Pay Act, codified in Chapter 34-06.1, N.D.C.C.; and (3) intentional infliction of emotional distress. Upon NCI and Krabseth's motion, the trial court granted summary judgment against Swenson on all three claims, dismissing her suit. This timely appeal followed.



The first issue on appeal is whether or not Swenson is entitled to relief under North Dakota's anti-discrimination statutes, or in the alternative, whether or not those statutes were unconstitutional at the time of the alleged discriminatory conduct.

The anti-discrimination statutes in effect in 1986 and 1987, the time of the alleged violations, only prohibited discrimination in workplaces with ten or more employees because "employer" was defined in the Chapter as one employing "ten or more" employees. Chapter 14-02.4, N.D.C.C. (1985 and 1987). 2 Swenson's gender discrimination claim was dismissed by the trial court because less than ten people were employed at NCI when the alleged discrimination occurred.

The statutory definition of employer in effect in 1986 and 1987 was very clear and unambiguous. This Court is under a legislative directive to construe unambiguous statutes so that the meaning of the words are given full effect. "When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Section 1-02-05, N.D.C.C. See Wills v. Schroeder Aviation, Inc., 390 N.W.2d 544, 546 (N.D.1986) (legislative intent is presumed clear from the face of the statute); Haggard v. Meier, 368 N.W.2d 539, 541 (N.D.1985) (it is improper for courts to attempt to construe statutory provisions so as to legislate additional requirements or proscriptions which the words of the provisions do not themselves include). Thus, under the wording of Chapter 14-02.4, as it was in 1986 and 1987, the anti-discrimination statutes did not apply to NCI. The inquiry, however, does not end here.

In the alternative, Swenson asserts that if the anti-discrimination statutes did not apply to NCI in 1986 and 1987, due to the ten-employee limitation, then the statutes were unconstitutional as invidious discrimination and violative of her equal protection rights. Swenson, however, has failed to clear various procedural hurdles in presenting this argument to our Court. Not only is this part of her argument anemic on appeal due to lack of attention and support in her appellate brief, but it is unavailing because it was not raised in the trial court. In her brief to the trial court opposing summary judgment, Swenson's comments pertaining to the constitutionality of the earlier statutory definition were vague, very brief, and lacking case citation. We have repeatedly said:

"It is well established that an issue not presented to the trial court will not be considered for the first time on appeal. Gange v. Clerk of Burleigh County District Court, 429 N.W.2d 429, 432 n. 3 (N.D.1988). This constraint applies with particular force to a constitutional issue. Gange, 429 N.W.2d at 432 n. 3; State v. Slapnicka, 376 N.W.2d 33, 36 (N.D.1985). We therefore decline to address [the constitutional] argument."

Hanson v. Williams County, 452 N.W.2d 313, 315 (N.D.1990).

During oral argument before this Court, Swenson urged that the attention afforded the constitutional issue in the trial court was sufficient to "raise the issue below." We disagree. Swenson must do much more than acknowledge, in passing, the constitutional difficulties of a statute. We very recently reiterated the rule that parties must bring up the "heavy artillery" when asserting constitutional claims.

"The attention given the constitutional challenge [at the trial court] was not sufficient to 'raise the issue below.' One must do more than merely assert that a statute is [unconstitutional] to appropriately raise a constitutional issue. As Justice Vogel said:

'One who attacks a statute on constitutional grounds, defended as that statute is by a strong presumption of constitutionality, should bring up his heavy artillery or forego the attack entirely.'

So. Valley Grain Dealers v. Bd. of Cty. Com'rs, 257 N.W.2d 425, 434 (N.D.1977) (emphasis added)."

State v. Tweed, 491 N.W.2d 412, 417 n. 5 (N.D.1992) (further emphasis added). Thus, Swenson's failure to sufficiently raise her constitutional claim in the trial court precludes her from presenting it here. 3 We affirm the trial court on the issue that Chapter 14-02.4, N.D.C.C., did not apply to NCI in 1986 and 1987.



The second issue Swenson presents on appeal is that NCI violated North Dakota's Equal Pay Act by paying her less than a man for a similar job because she is a woman. The Act establishes public policy in these words:

"Declaration of public policy. ...

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