Zuger v. State

• Decision Date: 20 January 2004
• Docket Number: No. 20030170,20030170
• Citation: 673 NW 2d 615,2004 ND 16
• Parties: William P. Zuger, Plaintiff and Appellant v. State of North Dakota, Defendant and Appellee.
• Court: North Dakota Supreme Court

2004 ND 16

673 NW 2d 615

William P. Zuger, Plaintiff and Appellant v. State of North Dakota, Defendant and Appellee.

No. 20030170

Supreme Court of North Dakota.

Filed January 20, 2004

William P. Zuger, pro se, 320 West Avenue B, Bismarck, N.D. 58501-3413, for plaintiff and appellant.

Tag Christian Anderson, Assistant Attorney General, Attorney General's Office, 500 North 9th Street, Bismarck, N.D. 58501-4509, for defendant and appellee.

Opinion of the Court by Maring, Justice.

Maring, Justice.

[¶1] William P. Zuger has appealed a summary judgment dismissing the complaint in his action against the State of North Dakota. We affirm.

[¶2] The State posted a vacancy announcement for an Attorney II position with the Protection and Advocacy Project, which stated, in part:

Application Procedures:

Applicants must submit a cover letter, resume, and completed State of North Dakota Application for Employment (SFN 10950) to Teresa Larsen, Executive Director, Protection and Advocacy Project . . . .

Contact Corinne Hofmann at (701) 328-2950, 1-800-472-2670, or TDD 1-800-366-6888 for more information or accommodation or assistance in the application or interview process.

Summary of Work:

The Protection and Advocacy Project is a statewide agency with the federally mandated purpose of protecting and advocating for the rights of people with disabilities in North Dakota. The Project provides a continuum of services from information/referral to legal representation. The Attorney II provides legal representation to the Project's clients, researches and develops legal opinions to assist non-attorney staff in representing clients, provides information and training to staff, consumers, parents, and other professionals on legal rights issues, and provides legislative and systemic advocacy on behalf of people with disabilities.

A decision was made to interview only the four highest-ranked applicants. Zuger's application was ranked fifth, and he was not afforded an interview. Protection and Advocacy Project hired one of the four applicants who were interviewed.

[¶3] Zuger sued the State, alleging he applied for an Attorney II position advertised with "the criteria therefor described in a June 28, 2002, posting on the State's web site;" the position was subject to the protections of N.D.C.C. ch. 54-44.3; the State partially waived its sovereign immunity and provided for actions against it in N.D.C.C. ch. 32-12.2; he received a merit rating precluding him from further consideration for the position; the State made available to applicants, upon request, a Position Information Questionnaire describing job qualifications for the position in greater detail; and in assigning merit ratings, the State used an Application Screening and Rating sheet containing specific qualifications for the job, but it was not made available to applicants. Zuger's complaint further alleged:

15

There were described seven addition[al] Items, 2 through 8, purporting to describe the qualitative practice experiences of the applicants. He received a zero in each, for the purported reason that his application did not provided sufficient detail to determine whether that experience was specifically in the area of disability law.

Neither the web posting, nor the defendant's description of the job in the PIQ, stated that any disability related experience was required, except that the web posting Vacancy Announcement (but not the PIQ) stated the job required "three years of professional experience working with people with disabilities," which was specifically addressed in the plaintiff's cover letter of July 24, 2002, and clearly established by the attachments.

All of the applicants approved for interviews received credit for having done legal research and analysis, such as appellate briefing.

The complaint also alleged the State did not "request further specification of disability related experience," did not contact his professional references, and did not perform "[a] simple on-line search," which "would have confirmed . . . that he has appeared . . . in the North Dakota Supreme Court." The complaint alleged the State deprived Zuger of property rights by violating N.D.C.C. ch. 54-44.3 and by violating his rights under the 14th Amendment to the United States Constitution. Finally, the complaint alleged:

The transparency of the wrongful circumstances establishes that the actions of the application rater, Kim Wassim, were done deliberately, and any reasonable and reasonably competent lawyer in the position of and having the information of staff attorney Corinne Hofmann of the Protection Advocacy Project would so determine, and was legally obligated to so determine. Therefore, he is entitled to compensation for emotional distress, in the absence of physical injury, which injury was proximately foreseeable to the State.

[¶4] On December 2, 2002, the State filed a motion for dismissal under N.D.R.Civ.P. 12, asserting the complaint did not state a claim upon which relief could be granted. On December 31, 2002, the trial court noted that discovery had not been conducted, determined Zuger had "stated a claim which, if valid, may entitle him to relief," denied the State's motion to dismiss, and said, "the Court will consider a motion for summary judgment by either party once discovery has been completed." On January 29, 2003, the State filed an answer to Zuger's complaint, alleged the complaint failed to state a claim upon which relief could be granted, asserted it did not violate any of Zuger's statutory or constitutional rights, and requested dismissal of the complaint. On February 20, 2003, the State filed a brief and motion for dismissal under either N.D.R.Civ.P. 12 or N.D.R.Civ.P. 56. Zuger responded with a brief filed on March 11, 2003.

[¶5] After considering the briefs and numerous depositions and exhibits, the trial court issued a Memorandum Decision and Order stating, in part:

In this court's opinion, the Plaintiff has failed to adequately identify any state source to support his allegation of a constitutionally protected property interest. While he alleges that N.D. CENT. CODE ch. 54-44.3 creates a property right in prospective employment, neither the text of that chapter nor case law supports that assertion. . . . Additionally, there has been nothing presented for the court's consideration which indicates that the Central Personnel System Act supports a claim of entitlement to any benefit.

. . . .

In summary, it is this court's determination that North Dakota law does not create a constitutionally protected property interest in a prospective employment opportunity. . . . In light of this determination, the remaining causes of action need not be addressed.

As a matter of law, the Defendant is entitled to the relief it seeks. Plaintiff William P. Zuger has failed to state a claim upon which the relief he seeks can be validly asserted against the State of North Dakota. Therefore, the motion for summary judgment by the Defendant is GRANTED.

A judgment dismissing Zuger's complaint was filed on May 23, 2003.

Zuger appealed, raising the following issues:

1. The state merit selection law, NDCC chapter 54.44.3, and the administrative regulations promulgated to enforce it are binding on the State and a clear breach of its provisions is a wrong for which the state's tort claim statute, NDCC chapter 32-12.2, provides a remedy, as alleged by the Complaint.

2. The state merit selection law also creates a sufficient property interest in those it protects from discrimination to permit an action against the State under the 14th amendment of the United States Constitution, as alleged by the Complaint.

3. The Complaint also alleges a cause of action for the tort of outrage, for which action may be brought by virtue of the state's tort claim act, NDCC chapter 32-12.2.

[¶6] The trial court reviewed the parties' briefs and the depositions and other evidence in ruling on the State's motion for dismissal under N.D.R.Civ.P. 12 or 56. When the trial court considers matters outside the pleadings in ruling on a motion to dismiss, the motion is treated as one for summary judgment and disposed of under N.D.R.Civ.P. 56. Towne v. Dinius, 1997 ND 125, ¶ 9, 565 N.W.2d 762. Thus, we consider this appeal in the posture of summary judgment.

[¶7] Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Tarnavsky v. McKenzie County Grazing Ass'n, 2003 ND 117, ¶ 7, 665 N.W.2d 18. "Whether summary judgment was properly granted is `a question of law which we review de novo on the entire record.'" Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343 (quoting Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689). On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Keator v. Gale, 1997 ND 46, ¶ 7, 561 N.W.2d 286. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial. Iglehart, at ¶ 9.

[¶8] A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. "Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)." Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). "Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion." Id.

The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and

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