Feick v. Sivalls, Inc.

Filing 37

ORDER by Magistrate Judge Charles S. Miller, Jr. granting in part and denying in part 14 Motion for Summary Judgment. (KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Mark B. Feick,
Plaintiff,
vs.
Sivalls, Inc.,
Defendant.

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ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Case No. 1:12-cv-107

This is an action brought by plaintiff against defendant seeking compensation for alleged
violations of the Americans with Disabilities Act (“ADA”), the North Dakota Human Rights Act
(“NDHRA”), and what may be a separate claim for mental and emotional distress. Before the court
is defendant’s motion for summary judgment (Doc. No. 14). Plaintiff opposes the motion - at least
with respect to the ADA and NDHRA claims.
I.

STANDARD OF REVIEW
The law governing motions for summary judgment is well known to this court and need not

be repeated here. However, it is worth noting what this court recently stated in another ADA case
about motions for summary judgment in employment-discrimination cases:
“Motions for summary judgment in employment discrimination cases are
scrutinized more carefully because of the inherently factual nature of the inquiry and
the factual standards set forth by Congress.” Henderson v. Ford Motor Co., 403 F.3d
1026, 1032 (8th Cir. 2005). As such, “‘summary judgment should seldom be used
in employment-discrimination cases.’” Snow v. Ridgeview Med. Ctr., 128 F.3d
1201, 1205 (8th Cir. 1997) (quoting Crawford v. Runyon, 37 F.3d 1338, 1341 (8th
Cir. 1994)). “Nonetheless, ‘summary judgment is proper when a plaintiff fails to
establish a factual dispute on an essential element of her case.’ ” Simpson, 425 F.3d
at 542 (quoting EEOC v. Woodbridge Corp., 263 F.3d 812, 814 (8th Cir. 2001)).
Lizotte v. Dacotah Bank, 677 F. Supp. 2d 1155, 1161 (D.N.D. 2010).
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II.

DISCUSSION
A.

ADA and NDHRA claims

Defendant’s motion for summary judgment with respect to the ADA and NDHRA claims
is limited to the argument that, even if plaintiff has established a prima facie case of violations,
plaintiff cannot dispute defendant’s putative, non-discriminatory reasons for not hiring him. The
court does not agree. Based on the court’s review of the deposition transcripts, exhibits, and other
proffered evidentiary material, there is sufficient disputed evidence from which a jury could
conclude that the real reason why plaintiff was not hired was his workers’ compensation history and
that the reasons subsequently proffered by defendant for why he was not hired were simply
pretextual.
One reason that defendant now gives for why plaintiff was not hired was because he did not
have a completely “clean” driving record. However, there is evidence that: (1) the time period of
concern to defendant was an applicant’s driving record for the previous three years; (2) plaintiff had
only one violation during that time period, which was a failure to yield with his personal vehicle
resulting in a minor accident;1 (3) defendant hired one or more other persons for what, arguably,
was the same position who did not have completely “clean” driving records; (4) defendant’s insurer
did not require an absolutely clean driving record; and (5) defendant’s job description for “Driver,
Trucking, and Shipping” stated only that the applicant have a “satisfactory driving record.”2 In

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Defendant claims there were two violations within the three-year period, but that is not supported by any
record evidence this court has reviewed.
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Defendant points to its North Dakota Job Service posting stating it had job openings for full-time employees
in Williston for truck drivers with a “clean driving record with Class A CDL.” The jury could conclude, however, that,
even if it found the job listing to be relevant, “clean driving record” was a relative term or a requirement defendant was
willing to waive for an applicant, like plaintiff, whose application disclosed only one minor violation within the threeyear period.

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addition to this specific evidence, there is also evidence of what the jury might consider to be
defendant’s shifting explanations for why it did not hire plaintiff - a point that applies to both of
defendant’s proffered explanations for why he was not hired. Further, there is the fact that
defendant’s employment application required disclosure of prior workers’ compensation claims,
which appears to be a per se violation of the ADA’s requirements,3 and something that the jury
might consider in assessing any after-the-fact explanation for why plaintiff was not hired.
Defendant’s second reason for why plaintiff was not hired was the Williston branch
manager’s initially-proffered reason for not considering plaintiff, which was expressed in a
memorandum to the corporate office after plaintiff made his EEO claim. In the memorandum, the
branch manager stated the reason why plaintiff was not considered was because the branch manager
was under the impression after visiting with plaintiff that he was only interested in a full-time
driving position. Plaintiff, however, has offered evidence from which the jury could conclude that
this was not true and was simply pretextual. This includes: (1) plaintiff’s testimony regarding
statements made by defendant’s employees that defendant was in immediate need of hiring a person;
(2) plaintiff’s testimony as to his conversations with the branch manager about the details of the job
opening available, his expression of interest even though the job was not full-time driving, and his
immediate return of a completed employment application following his meeting with the branch
manager, which further demonstrated his interest; (3) plaintiff’s testimony that the branch manager

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See, e.g., Griffin v. Steeltek, 160 F.3d 591, 593 (10th Cir. 1998) (it is “clear” that an employer “cannot inquire
at the preoffer stage about an applicant’s workers’ compensation history”) (citation omitted); Downs v. Massachusetts
Bay Transp. Auth., 13 F. Supp. 2d 130, 138 (D.Mass. 1998) (employer may not ask at the pre-offer stage about
job-related injuries or workers’ compensation history); 29 C.F.R. Pt.1630, App. at 362-363 (“This provision makes clear
that an employer cannot inquire as to whether an individual has a disability at the pre-offer stage of the selection process.
Nor can an employer inquire at the pre-offer stage about an applicant’s workers’ compensation history.”).

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expressly made a point during his discussion with him about completing the portion of the
application addressing his prior workers’ compensation history; and (4) the evidence of what the
jury might consider to be shifting explanations by defendant for why plaintiff was not hired. As to
the last point, the branch manager’s memorandum stating he did not consider plaintiff for
employment because he was under the impression plaintiff was only interested in a full-time driving
position is an odd way of stating plaintiff was not considered because of his driving record, if that,
in fact, was a reason for why he was not hired.4
B.

Separate claims for mental and emotional distress

Defendant makes several arguments for why plaintiff does not have a separate claim for
mental and emotional distress as a matter of law. Plaintiff has failed to respond to these arguments
and appears to have conceded the point.
In any event, “bodily harm” is a necessary element of an independent claim for negligent
infliction of mental distress under North Dakota law, and plaintiff has failed to proffer any evidence
of “bodily harm.” E.g., Hysjulien v. Hill Top Home of Comfort, Inc., 2013 ND 38, ¶¶ 44-46, 827
N.W.2d 533. Likewise, a claim for intentional infliction of emotional distress under North Dakota
law requires proof of “(1) extreme and outrageous conduct that is (2) intentional or reckless and that
causes (3) severe emotional distress.” Id. at ¶ 40 (quoting Muchow v. Lindblad, 435 N.W.2d 918,
923-25 (N.D. 1989)). And here, plaintiff has failed to proffer evidence sufficient to establish either

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There is some suggestion in the deposition questioning of plaintiff that defendant may also claim that plaintiff
would have been ineligible in any event for the job of “driver” because one of its purported requirements was being able
to have the physical ability to load and unload materials in excess of 100 plus pounds. However, the jury could conclude
that the ability to load and unload as a practical matter meant something different than being able to lift or carry that
weight and/or that it would include the ability to use assistive devices. Also, there appears to be a question over the
extent to which these job descriptions were actually used by the Williston Branch, and, if so, the extent to which they
were followed.

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that defendant’s conduct was extreme or outrageous or that he suffered severe emotional distress.
Consequently, the court will grant summary judgment with respect to any separate claim for mental
or emotional distress and only allow recovery for such injuries to the extent they are compensable
for claims pursuant to the ADA and the NDHRA.
III.

CONCLUSION AND ORDER
Based on the foregoing, defendant’s motion for summary judgment (Doc. No. 14) is

GRANTED to the extent plaintiff is making separate claims for mental and emotional distress under
North Dakota law and DENIED as to plaintiff’s ADA and NDHRA claims. 5
IT IS SO ORDERED.
Dated this 3rd day of January, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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Plaintiff’s evidence suggesting that he was not hired because of his workers’ compensation record, however,
is by no means overwhelming. For example, the jury could credit the branch manager’s testimony that he did not believe
plaintiff was a good fit based on his perception (whether valid or not) that plaintiff was more interested in a job that
involved primarily driving. In fact, plaintiff’s past medical history might lend credence to that at trial.

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