Opinion
Civil No. A3-02-129, Docket Number: 94.
September 30, 2004
MEMORANDUM AND ORDER
I. Introduction
The plaintiff, Earle Myers, Jr., brings an action against the defendants for breach of contract, intentional infliction of emotional distress, and defamation stemming from an alleged violation of a settlement agreement. The defendants move for summary judgment on all three claims. As articulated below, the defendants' motion for summary judgment is GRANTED as to all three of plaintiff's claims.
II. Background
The plaintiff served as the elected Richland County North Dakota State's Attorney from 1977 to 2003. The plaintiff's primary duty was to prosecute criminal actions on behalf of the County. He also served as legal advisor to the Richland County Board of Commissioners.
In May of 2000, Jewel Jones-Van Tassel filed an action against the Richland County Commissioners, among others, for gender discrimination in violation of Title VII of the Civil Rights Act. The plaintiff's deposition was taken because as Richland County's attorney, he was familiar with the County's discrimination history and policy.
In December of 2000, the parties settled the case. Jones-Van Tassel received $1.2 million in settlement, letters of apology, and a commitment of non-disparagement. Paragraph six of the Settlement Agreement provided:
Defendants agree that they will not retaliate with respect to any employment related matter against any former, present, or prospective City or County employee, or individual whose compensation is paid, in whole or part, by the City or County, who have provided any support to Plaintiff, whether by affidavit, deposition testimony, providing information to Plaintiff, or any other manner of support.
In addition, Paragraph 17 provided that "[t]he parties agree that the Federal District Court for the District of North Dakota shall retain jurisdiction of this matter to enforce the terms of this Settlement Agreement and Release." At the end of theJones-Van Tassel litigation, this express retention of jurisdiction was incorporated into the Court's order adopting the settlement. In November of 2002, the plaintiff initiated a lawsuit against Richland County, those serving on its Board of Commissioners as of that date, as well as those serving on its Board of Commissioners as of January 10, 2001. On March 3, 2003, the defendants filed a Motion to Dismiss the action for lack of subject matter jurisdiction and a Motion to Strike the plaintiff's prayer for relief as it pertained to punitive damages. In an order dated October 24, 2003, this Court denied the plaintiff's motion to dismiss and granted the defendants' motion to strike the plaintiff's prayer for relief as it pertained to punitive damages.
The parties then stipulated that defendants Steve Campbell and Merlin "Mort" Berg be dismissed with prejudice (doc. #51). That stipulation left Richland County and former Richland County Commissioners Ray Ward and Dave Paulson as the only remaining defendants. The defendants filed a Motion for Summary Judgment (doc. #52) on May 17, 2004. Oral argument was held in front of this Court on August 13, 2004.
The plaintiff claims that Richland County breached paragraph six of the Jones-Van Tassel Settlement Agreement by retaliating against him for his testimony in the Jones-Van Tassel lawsuit. The plaintiff also brings claims for defamation and intentional infliction of emotional distress against defendants Ward and Paulson.
III. Discussion and Legal Analysis
Before the Court is defendants' motion for summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All evidence and inferences are to be viewed in a light most favorable to the nonmoving party. Id. at 255. The moving party bears the initial responsibility to demonstrate the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the nonmoving party must go beyond the pleadings and designate specific facts showing a genuine issue of material fact for trial. Id. at 324. With this standard in mind, the Court begins its analysis.
The plaintiff advances three separate claims. The first claim is a breach of contract claim against Richland County. The second claim is for intentional infliction of emotional distress. This claim is brought against defendants Paulson and Ward in their individual capacities. The third claim is for defamation. This claim is also brought against defendants Paulson and Ward in their individual capacities. The Court will address each claim in turn.
A. Breach of Contract
The plaintiff contends that Richland County breached the Settlement Agreement reached between Jewel Jones-Van Tassel and Richland County in the action entitled Jones-Van Tassel v. Richland County et al. (case #A3-99-60). The plaintiff contends that Richland County breached section 6 of the Settlement Agreement by retaliating against the plaintiff for his deposition testimony in that case. The plaintiff contends that Richland County engaged in a pattern of conduct that constituted a concerted effort to remove the plaintiff from his position as Richland County State's Attorney. The defendants argue that the allegations of retaliation have no factual support and do not give rise to an actionable claim as a matter of law. The Court agrees that the plaintiff's allegations of retaliation do not give rise to an actionable claim for breach of contract as a matter of law.
The Court considers the granting of summary judgment an extreme remedy and grants such motions only where the facts clearly demonstrate no issue to be tried. The Court acts with extreme caution in granting a summary judgment motion. See Liberty Lobby, Inc., 477 U.S. at 255. Although a court should never grant summary judgment solely on the desirability of saving time or expense, the Court is conscious of the fact that Rule 56 of the Federal Rules of Civil Procedure is intended to promote the expeditious disposition of cases and avoid unnecessary trials when no genuine issues of fact have been raised by the nonmoving party. See Celotex, 477 U.S. at 327 (holding that "[s]ummary judgment procedure is properly regarded not as disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action'(quoting Fed.R.Civ.P. 1)); Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir. 1976). When the requirements of Rule 56 are met, summary judgment should be "viewed with favor and applied according to its terms." 10A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2712 (3d ed. 1998 Supp. 2004).
The trial court's function at the summary judgment stage is not to weigh the evidence but to determine whether there are any issues for trial. Liberty Lobby, Inc., 477 U.S. at 249. However, there are no issues for trial unless there is sufficient evidence for a jury to return a verdict for the nonmoving party.Id.; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995); see also McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Liberty Lobby, Inc., 477 U.S. at 249. The Court concludes that no genuine issue of material fact exists and that the evidence is such that a reasonable jury could not return a verdict for the plaintiff.
The plaintiff brings the breach of contract claim (retaliation) only against Richland County, not the individual commissioners. (Compl. ¶ 34; Pl.'s Br. Opp'n Summ. J. at 21 n. 1.) Therefore, the first issue for the Court is which of plaintiff's allegations can be attributed to the County and not just the individual commissioners. In North Dakota, a county is a body corporate for civil and political purposes and may sue, be sued, contract, and be contracted with. N.D. Cent. Code § 11-10-01 (2001). The fiscal affairs of a county are transacted by a board of three or five county commissioners. § 11-11-14. The board of commissioners is required to "meet and hold sessions for the transaction of business at the courthouse, or at the usual place of holding court, in the first week of January, April, July, and October of each year." § 11-11-05. For the County to be held liable for breach of contract, the board of county commissioners must take formal action collectively and as a board. Hart v. Bye, 86 N.W.2d 635, 638 (N.D. 1957); Rolette State Bank v. Rolette County, 218 N.W. 637, 639 (N.D. 1928); State v. Larson, 189 N.W. 626 (N.D. 1922); see also N.D. Cent. Code § 11-11-29 (2001) (stating that "[a] contract shall be entered into under the provisions of this chapter only after it has been approved by the vote of a majority of the members of the board of county commissioners"); Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002) (stating that in order for the county to be liable, the plaintiff must first show that the county acted through an official proclamation or official acts of the county's officers). The County is not bound by the acts of individual commissioners unless lawfully authorized by the Board. Rolette State Bank, 218 N.W. at 639. Thus, the acts that allegedly breached the Settlement Agreement must have been accomplished by formal board action or lawfully authorized by the Board.
Looking at the evidence in a light most favorable to the plaintiff, the Court will look at each of the plaintiff's claims of retaliation in turn. In paragraph 14 of the Complaint, the plaintiff alleges that defendant Ward began spreading rumors to Wahpeton residents that the monetary settlement in the Jones-Van Tassel lawsuit was because of the plaintiff's deposition in that case. In paragraph 17 of the Complaint, the plaintiff alleges that defendant Paulson made numerous phone calls to a local committee considering the recall of various Richland County officials associated with the Jones-Van Tassel lawsuit and specifically requested the committee to keep plaintiff's name on the recall ballot. In paragraph 19 of the Complaint, the plaintiff alleges that several of the original individual defendants made statements to the press regarding a private and sealed Richland County Commission report regarding plaintiff's professional judgment. The plaintiff puts forth no evidence, and nothing in the record indicates that the actions of any of the individual commissioners in the above allegations were part of official board action or lawfully authorized by the Board of Commissioners. Therefore, the Court will not attribute these allegations to the County and will not consider them in the breach of contract claim. All other allegations of the plaintiff will be discussed in detail.
When confronted with the question of when the Board took "formal action," the plaintiff only came up with two examples — (1)when the Board held meetings on April 1, 2002 and April 4, 2002 for the purpose of revoking a county ordinance that required the State's Attorney position to be full-time and (2)when the Board revoked the county ordinance upon Warren Stokes taking office. (Pl. Second Supplemental Br. Opp'n Summ. J. at 4.)
In order to consider if the plaintiff has submitted sufficient evidence of retaliation to create genuine issues of material fact, the Court must decide which definition of retaliation to use. The defendant argues that since the Settlement Agreement was negotiated in connection with claims by Ms. Jones-Van Tassel for gender discrimination and retaliation under federal law, the Court should use the definition of retaliation as defined by the Eighth Circuit exclusively to determine whether a reasonable jury could return a verdict for the plaintiff. The plaintiff argues that the retaliation claim is for breach of the Settlement Agreement and should be analyzed as a breach of contract claim and not under Title VII. The plaintiff also argues that because the action is for breach of the Settlement Agreement, the Court should use the plain meaning and normal usage of the word "retaliation" to determine whether the plaintiff has met his burden. The Court agrees with the plaintiff; the retaliation claim is for breach of the Settlement Agreement. See e.g., In re Gen. Am. Life Ins. Co. Sales Practices Litig., 357 F.3d 800, 803 (8th Cir. 2004) (holding that once approved, a settlement agreement is interpreted as a contract). In fact, this Court has already recognized that this is a contract action, not a Title VII action, in its Memorandum and Order denying defendants' Motion to Dismiss (doc. #30).
Because a settlement agreement is a contract and is to be construed using contract principles, the Court must give great deference to the plain meaning and normal usage of the words contained in the agreement. See United States v. ITT Cont'l Baking Co., 420 U.S. 223, 236-37 (1975) (holding that a consent decree must be construed "as it is written") Kaler v. Kraemer 603 N.W.2d 698,702 (1999) (holding that a court should ascertain the intention of parties from the writing alone if possible). Unless it plainly appears that a different definition is intended, the meaning of a term in a settlement agreement will be the lay person's definition of that term. In re Airline Ticket Comm'n Anitrust Litig., 268 F.3d 619, 623(8th Cir. 2001) (citing In re Popkin Stern, 196 F.3d 933, 939 (8th Cir. 1999)). Thus, the Court will consider the plain and ordinary meaning of "retaliation" when evaluating the plaintiff's remaining list of claims.
The Court notes that the parties occasionally cite cases discussing consent decrees instead of settlement agreements. A consent decree is not exactly the same thing as a settlement agreement. See Jennifer A. v. Bloomberg, 315 F.3d 990, 993-94 (8th Cir. 2003) (holding that a district court's retained jurisdiction over a settlement, by itself, does not create a consent decree). A consent decree is a court decree that all parties agree to. Black's Law Dictionary 419 (7th ed. 1999). However, the Court agrees with the parties that the similarities between a consent decree and a settlement agreement are sufficiently analogous for consent decree cases to lend support.
While considering the lay person's definition of retaliation, the Court will also look to the definition of retaliation developed under federal law, as defined by the Eighth Circuit, for guidance. When giving contract language its plain and ordinary meaning, a court should not ignore the common and popular usage of a contract term. In re Airline Ticket Comm'n Anitrust Litig., 268 F.3d at 623. Section 6 of the Settlement Agreement states that the "defendants will not retaliate with respect to any employment related matter" (emphasis added). Litigation of retaliation claims in employment related matters under Title VII is very common is society today, and the common and popular understanding of retaliation in employment related matters comes from Title VII. Also, when considering the plain meaning of language in a settlement agreement, a court should consider the circumstances surrounding the agreement's formation and any technical meaning the words may have had with the parties. United States v. ITT Cont'l Baking Co., 420 U.S. 223, 238 (1975). If possible, a court should give effect to the intention of the parties to a contract. Kaler v. Kraemer, 1999 ND 237, 603 N.W.2d 698,702 (1999). The Settlement Agreement in the Jones-Van Tassel case was negotiated in connection with claims for gender discrimination and retaliation under federal law, and Ms. Jones-Van Tassel wanted "the law" against retaliation put in writing. In sum, the Court will look to the plain and ordinary meaning of the Settlement Agreement by giving effect to the parties' intention as well as the layperson's definition of retaliation in employment related matters. Either way, the Court must look to federal law, as defined by the Eighth Circuit, as guidance.
In the Eighth Circuit, a prima facie case of retaliation consists of the following elements: (1)protected activity, (2)subsequent adverse employment action, and (3) a causal relationship between the two. Kobrin v. Univ. of Minnesota, 34 F.3d 698, 704 (8th Cir. 1994). The Court finds the cases dealing with what is considered an adverse employment action particularly instructive. The Eighth Circuit has interpreted the definition of adverse employment action narrowly. To be considered an adverse employment action, there must be a "tangible change in duties or working conditions that constitute a material employment disadvantage." Cossette v. Minnesota Power Light, 188 F.3d 964, 972 (8th Cir. 1999). There usually must be an "ultimate employment action" — a material change in salary, position, or duties. Id. (citing Ledergerber v. Stangler, 122 F.3d 1142, 1144-45 (8th Cir. 1997)).
In the present case, the plaintiff claims that the County began a "campaign" to tarnish the plaintiff's reputation and remove him from office after his deposition in the Jones-Van Tassel lawsuit. This "campaign" included the County intentionally disregarding the plaintiff's legal role as legal counselor by directly submitting legal questions to the North Dakota Attorney General's office, by submitting complaints directly to the North Dakota Insurance Reserve Fund (NDIRF) instead of to the plaintiff, and by requesting legal advice from the County Auditor instead of the plaintiff.
The Court first notes that it is significant that the plaintiff is an elected official, and therefore there is not the same employee/employer relationship between the County and the plaintiff that is present in many retaliation cases. The County Commissioners do not have the same supervision and control over the plaintiff that a employer usually has over an employee. It is virtually impossible for the County Commissioners to take any adverse employment against the plaintiff. The Board of County Commissioners "has no statutory authority to sanction elected officials for poor job performance, improper behavior, or failure to perform their jobs." N.D. Op. Att'y Gen. No. 96-F-01 (Jan. 9, 1996). However, North Dakota Century Code section 11-11-11 makes it a duty of the board of county commissioners to oversee the conduct of elected county officers. This duty to supervise the county elected officers comes with the absence of any specific enforcement powers. N.D. Op. Att'y Gen. No. 96-F-01 (Jan. 9, 1996).
As to the plaintiff's contentions that the County intentionally disregarded the plaintiff's legal role as legal counselor by directly submitting legal questions to the North Dakota Attorney General's office, by submitting complaints directly to the NDIRF instead of to the plaintiff, and by requesting legal advice from the County Auditor instead of the plaintiff, the Court finds that plaintiff has not cited any authority or put forth any evidence that supports the proposition that these sorts of actions rise to the level of an adverse employment action.
The plaintiff argues that the conduct on the part of the County constituted an usurping of the powers and duties specifically granted to the plaintiff as an elected official. It is true that county commissioners cannot usurp the powers and duties specifically granted to elected officials. N.D. Op. Att'y Gen. No. 96-F-01 (Jan. 9, 1996). However, to usurp the powers of an elected official, the Board of Commissioners would have to perform the elected official's duties or exercise prerogatives of the county officer. Id. The County Commission did not do that here. With respect to submitting legal questions to the Attorney General's office, Commissioner Flaa testified that the Sheriff's Deputy, who was the informant regarding the issue in question, asked him not to involve the State's Attorney. With respect to submitting two civil complaints to the NDIRF, the plaintiff testified that civil complaints go to the NDIRF for appointment of outside counsel and that it was important for the NDIRF to receive the complaints as soon as possible. He also testified that he received a copy of the complaints within four or five days. With respect to asking the County Auditor for legal advice, this can hardly be characterized as rising to the level of retaliation in an employment related matter. The Court notes that during his tenure as a States Attorney, many times the County Auditor was at commission meetings alone, and the State's Attorney was only called when needed. A Richland County Assistant State's Attorney testified to a similar situation in the present case.
Besides the above explanations, it is possible that the Board of Commissioners had lost faith in the plaintiff following the settlement of the Jones-Van Tassel lawsuit and subsequent aftermath and were acting accordingly. The Court also notes that the working relationship between the plaintiff and the Board of Commissioners was strained before the Jones-Van Tassel lawsuit.
The plaintiff also contends that the County retaliated against the plaintiff in an employment related matter by having the plaintiff investigated for conduct unrelated to the Jones-Van Tassel suit. Following the Jones-Van Tassel settlement, former North Dakota District Court Judge James Vukelic was hired as a special investigator to look into the possibility of misconduct by various elected officials. The plaintiff states that after Mr. Vukelic began his investigation, the Commissioners asked Mr. Vukelic to look into matters involving the plaintiff's conduct as Richland County States Attorney that were not relevant to the Jones-Van Tassel lawsuit. The Court finds that this conduct does not breach the Settlement Agreement as a matter of law.
The party opposing summary judgment cannot rely on unsupported, conclusory allegations. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). The nonmoving party must present competent evidence by affidavit or other means that raises an issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Id. at 252. The bare allegations of the plaintiff in his complaint and affidavit that the Commissioners asked Mr. Vukelic to look into matters not related to the Jones-Van Tassel lawsuit is not enough. The plaintiff has shown no additional evidence that it was actually the Commission or any of the commissioners that asked Mr. Vukelic to expand his investigation. The plaintiff, in his own deposition, testified that he was not sure who on the Board asked Mr. Vukelic to look into the additional allegations. In fact, the plaintiff states that he thinks it came out of the Auditor's office. Mr. Vukelic states in his report that he advertised in the Wahpeton Daily News that he was investigating elected officials urging citizens to contact him with information and concerns. (Vukelic Report at 9.) That is exactly what happened. Four substantive complaints were made by citizens against State's Attorney Myers — (1)that he refused to prosecute certain individuals suspected of criminal offenses, (2)that he advised the County Commissioners to destroy county records, (3)that he misused county funds, and (4)that he failed to carry out county policy prohibiting sexual harassment of employees. Id. at 10. Surely the plaintiff is not asserting that the County should be held liable for the complaints made by its private citizens. Additionally, it was the plaintiff that recommended to the Commission to appoint special counsel to investigate allegations against elected county officials. Also, the contract between the Commission and Vukelic gave Vukelic complete discretion in deciding whether or not to file a complaint with the Governor, and while the special counsel was to focus on the Jones-Van Tassel lawsuit, the Commission and State's Attorney Myers agreed not to limit the scope of the investigation to those matters. In fact, Vukelic found that there was not sufficient wrong-doing on the part of the plaintiff to warrant removal by the Governor. See Spears v. Missouri Dep't of Corr. and Human Res., 210 F.3d 850, 854 (holding that "[a]n unfavorable evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment"). The plaintiff cannot sign-off on the agreement and then later accuse the County of retaliation for what Vukelic has the authority to do. See Jones v. Fitzgerald, 285 F.3d 705, 714-15 (8th Cir. 2002) (finding that warranted internal investigation does not constitute adverse employment action sufficient to show retaliation).
Plaintiff's next claims of retaliation are that the County actively solicited Warren Stokes to run against the plaintiff in the 2002 election for Richland County State's Attorney, illegally tried to rescind the position's prohibition on outside practice in order to convince Stokes to run for the office, and ultimately gave Stokes what he demanded by making the States Attorney position part-time. Following the Jones-Van Tassel settlement, Commissioner Flaa approached Warren Stokes inquiring as to why the plaintiff had no competition for re-election. Stokes told Flaa that it was his belief that one ran for State's Attorney because the position was a full-time position and did not allow the States Attorney to conduct a private practice. On March 31, 2002, Flaa once again talked to Stokes about the State's Attorney position, stopping at his home to pick up a letter to be presented to the full Board.
The plaintiff has brought forth no evidence that this was anything but an individual commissioner acting on his own. As stated earlier in this Opinion, action by individual commissioners in no way is formal board action and will not be attributed to the County.
The entire Board did discuss the 1977 resolution making the State's Attorney position full-time on April 4, 2002. At that time, Commissioner Dotzenrod moved to rescind the 1977 resolution, and the motion was seconded by Commissioner Larson. The plaintiff claims that this consideration of rescinding the resolution was an act of retaliation by the County. The plaintiff fails to consider two important facts: (1) the motion to rescind the 1977 resolution failed, and (2) even if the resolution would have passed, it would not have affected the plaintiff without his consent. North Dakota Century Code section 11-16-05(5) specifically states that an adoption or rescission of a resolution making the State's Attorney Position full-time shall not be effective during the State's Attorney's current term unless agreed upon between the board and the States Attorney. There is no adverse employment action by the County as a matter of law when the rescission of the resolution could not have even adversely affected the plaintiff. See Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002) (granting summary judgment because the complained of action must have an adverse impact);Bechtel v. City of Belton, MO., 250 F.3d 1157, 1162 (8th Cir. 2001) (holding that "to constitute an adverse employment action, 'the action must have some adverse impact' on the employee" (quoting Montandon v. Farmland Indust., 116 F.3d 355, 359 (8th Cir. 1997)).
After the plaintiff was defeated by Stokes in the 2002 election, the Board held a special session on January 6, 2003, for the purpose of swearing in the State's Attorney and rescinding the 1977 resolution. The Board voted to rescind the resolution. The plaintiff fails to show how the rescinding of the 1977 resolution, thereby making the State's Attorney part-time, had any adverse impact on the plaintiff. The plaintiff had already lost the election for State's Attorney; the passing of the resolution had no adverse effect on him whatsoever.
The plaintiff's next contention is that the County breached the Settlement Agreement by discussing at a county employee meeting a letter written by County Engineer, Tim Shulte, expressing concerns about the aftermath of the Jones-Van Tassel lawsuit. The plaintiff argues that the contents of the letter were intimidating and retaliatory in nature. One problem with the plaintiff's contention is that the Shulte letter makes absolutely no reference to the plaintiff. The letter does make reference to elected officials in general terms, but it does not explicitly refer to the plaintiff as one of the elected officials. The second problem with the plaintiff's contention is that the letter was written by the County Engineer, Tim Shulte, not by any of the County Commissioners. Tim Shulte was not expressing the view of the County or the County Commission.
The plaintiff argues that distributing the letter to County employees was retaliation in itself. Absent some evidence in the record that links the statements made by Shulte to Mr. Myers, the publication of the letter is immaterial. As the court in Bechtel v. City of Belton, MO., 250 F.3d 1157, 1162 (8th Cir. 2001) pointed out, the cases discussing retaliation in the employment context are uniform in their requirement that there be some material change in the plaintiff's employment. (Citing Scusa v. Nestle U.S.A. Co. Inc., 181 F.3d 958, 968-69 (8th Cir. 1999) (finding no adverse employment action where plaintiff suffered no diminution in title, salary, or benefits); Cross v. Cleaver, 142 F.3d 1059, 1073 (8th Cir. 1998) (holding that adverse employment actions are usually actions involving actual or apparent authority resulting in a material employment disadvantage)); accord Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (holding that adverse employment action must effectuate a material change in the terms or conditions of employment). Without the Shulte letter even referring to the plaintiff, it is hard to imagine the County publishing the letter to retaliate against him or the plaintiff suffering an adverse employment action because of it.
The plaintiff's final two contentions are that the plaintiff was often subjected to degradation and verbally berated at the Board of Commissioner's meetings he attended and that the Board of Commissioners failed to give him notice of a meeting at which the Board was to discuss changing the State's Attorney position from full-time to part-time.
The only specific instance of degradation and verbal abuse the plaintiff points to is defendant Paulson telling the plaintiff to "sit down and shut up" during a commission meeting. Again, the Court will not consider the individual act of one commissioner telling the plaintiff to sit down and shut up at a single commission meeting formal board action sufficient enough to find the County in breach of the Settlement Agreement. Even if the action on the part of defendant Paulson was attributable to the County, telling someone to sit down and shut up is not sufficient to be considered retaliation as a matter of law. See Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (holding that "bruised ego" does not constitute adverse employment action).
As to the Board failing to give the plaintiff notice of a commission meeting, there is no statutory duty of the Board of Commissioners that requires it to give notice to the State's Attorney. See N.D. Cent. Code § 11-11-05 (2001). Also, failure to inform the plaintiff of a meeting does not constitute retaliation. LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 692 (8th Cir. 2001). "Not everything that makes an employee unhappy is an actionable adverse employment action." Id. at 691 (citing Coffman v. Trackers Marine, L.P., 141 F.3d 1241, 1245 (8th Cir. 1998)).
The Court agrees with the plaintiff that a series of actions that may not individually constitute an adverse employment action may still collectively constitute actionable relation. Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997). However, inKim, the defendant's conduct included a reduction of duties; disciplinary action; multiple negative personnel reports, both written and oral; "papering" of his personnel file with negative reports; placement under constant surveillance at work; mischaracterization of various incidents between Kim and other employees; as well as requiring Kim to attend remedial training.Id. at 1052-53. This conduct is far more pervasive than getting legal advice from the Attorney General or forwarding legal complaints to the NDIRF, acts the County Commission had the right and authority to do. What happened to Kim was much "more disruptive than a mere inconvenience or an alteration of job responsibilities or changes in duties or working conditions that cause no materially significant disadvantage." Id. at 1060(citing Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994)). What happened to the plaintiff in the current case is not the kind of serious employment consequences that concerned the court in Kim.
In conclusion, the Court has reviewed the evidence in the light most favorable to the plaintiff, assumed that all conflicts in the evidence were resolved in his favor, assumed as proved all facts that his evidence tended to prove, and given him the benefit of all reasonable inferences that may reasonably be drawn from the facts proved. The Court holds that the record as a whole does not provide a sufficient basis from which reasonable jurors could find that the County breached the Jones-Van Tassel Settlement Agreement by retaliating against Myers for his deposition testimony in that case.
Any allegations listed by the plaintiff in his complaint not analyzed by the Court were not listed in the plaintiff's Local Rule 7.1(B)(2) Statement of Material Facts or mentioned in any of the Plaintiff's motion papers. Therefore, the Court assumes that the plaintiff has abandoned these contentions. Even if not abandoned, the contentions are not supported in the record and are not of sufficient merit to warrant consideration.
In addition to the plaintiff's failure to provide a sufficient basis from which reasonable jurors could find that the County breached the Jones-Van Tassel Settlement Agreement, the plaintiff has failed to prove that the plaintiff's loss of the 2002 election for Richland County States Attorney was the result of the County's breach of the Settlement Agreement. Summary judgment is appropriate when a party who will bear the burden of proof at trial fails to make a showing sufficient to establish an element essential to the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In North Dakota, a plaintiff cannot recover damages based on "speculation and conjecture." Knoff v. Am. Crystal Sugar Co., 380 N.W.2d 313, 318-19 (N.D. 1986). The damage the plaintiff claims to have suffered is the loss of his position as Richland County States Attorney, causing lost wages. This is, in essence, a suit to recover damages for a lost election. The plaintiff has failed to produce any evidence of Richland County voters who voted for Warren Stokes instead of the plaintiff because of the County's alleged breach of contract. "Ultimately, elected county officials are responsible to the electorate for their conduct and job performance." N.D. Op. Att'y Gen. No. 96-F-01 (Jan. 9, 1996). In all likelihood, it was the adverse public opinion of the plaintiff that he did not do everything in his power to stop the sexual harassment and gender discrimination that were running rampant in the Richland County Law Enforcement Center before the Jones-Van Tassel settlement of 1.2 million dollars that cost the plaintiff the election, but that is not for the Court to decide. The Court will not engage in a post-election analysis of the decisions made by voters in Richland County in this or any other election. See Southwestern Publishing Co. v. Horsey, 230 F.2d 319, 322 (9th Cir. 1956) (holding that loss of an election is not compensable in damages because it is too uncertain and speculative); Aycock v. Padgett, 516 S.E.2d 907, 167-168 (N.C.App.Ct. 1999) (refusing to grant relief for loss of election because too speculative and uncertain).
The plaintiff has brought forth insufficient evidence on the breach of contract claim to raise a genuine issue of material fact that the County's actions were a causal factor in his loss of the 2002 election. Without more than the plaintiff's conclusory allegations that the County's actions caused his loss of the 2002 election, his action for breach of contract must fail. Therefore, the defendants' motion for summary judgment in regards to the plaintiff's breach of contract claim is GRANTED. B. Intentional Infliction of Emotional Distress
The plaintiff brings count II of his complaint for intentional infliction of emotional distress (IIED) against defendants Paulson and Ward in their individual capacities. (Compl. ¶ 43.) The plaintiff argues that reasonable persons could find that he has proved all of the required elements for IIED.
For a claim to survive summary judgment under North Dakota Law, the plaintiff must show (1)extreme and outrageous conduct that is (2)intentional or reckless and that causes (3)severe emotional distress. Muchow v. Lindblad, 435 N.W.2d 918, 923-24 (N.D. 1989) (citing Restatement (Second) of Torts § 46 (1965)). The plaintiff must first show that there was extreme and outrageous conduct. Dahlberg v. Lutheran Soc. Services of North Dakota, 625 N.W.2d 241, 248 (N.D. 2001). Whether the alleged actions meet the threshold of extreme and outrageous conduct is a question of law to be decided by the trial court. Vandall v. Trinity Hospitals, 676 N.W.2d 88, 97 (N.D. 2004); Dahlberg, 625 N.W.2d at 249. Extreme and outrageous conduct is "narrowly limited to outrageous conduct which exceeds all possible bounds of decency."Muchow, 425 N.W.2d at 924. The conduct must be so outrageous and extreme as to be regarded as "atrocious, and utterly intolerable in a civilized community." Id. Liability does not extend to "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id.
The plaintiff contends that the defendants subjected him to IIED by "blatantly and willfully" violating the plaintiff's rights under the Settlement Agreement. As examples of this blatant and willful violation, the plaintiff states that the defendants had Myers publicly re-investigated for past issues of prosecutorial discretion, affirmatively approached area attorneys to find someone to run against him in the 2002 election, attempted to change the State's Attorney position from full-time to part-time without Myers' knowledge, and made Warren Stokes a promise that the Board would allow him to work the state's attorney position part-time with full-time pay.
The plaintiff has failed to bring forth any evidence that attributes these actions to the individual defendants or that these actions would amount to extreme and outrageous conduct under North Dakota law. At oral argument held on August 13, 2004, the Court requested specific examples of defendant Ward's retaliatory acts against the plaintiff. The plaintiff replied in his motion papers that Myers was informed by Don Hukee that Ray Ward told him (Don Hukee) that the settlement amount in the Jones-Van Tassel case was so high because of the plaintiff's testimony. Besides being hearsay, telling someone that you believe a settlement award is so high because of the plaintiff's testimony is not a case in which the "recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, outrageous."Dahlberg, 625 N.W.2d at 249.
As to the other claimed outrageous acts, Ward was not even a County Commissioner when the Vukelic investigation took place or when the Board attempted to change the State's Attorney position to part-time. Also, there is no evidence that anyone but Commissioner Flaa approached Warren Stokes to run against the plaintiff in the 2002 election, and the plaintiff's guess that promises were made to Warren Stokes by a few of the commissioners at the time is not enough to attribute such action to defendant Ward.
As to defendant Paulson, he was a subject of the Vukelic investigation himself, and there is no evidence that Paulson approached Warren Stokes to run against the plaintiff or made him any promises. Like defendant Ward, Paulson was no longer on the Board of Commissioners when it attempted to change the State's Attorney position to part-time.
The plaintiff cites Swenson v. Northern Crop Ins., 498 N.W.2d 174 (N.D. 1993) for the proposition that questions of fact with respect to IIED claims must be left to the jury. In Swenson, the North Dakota Supreme Court reversed a summary judgment dismissal of the plaintiff's IIED claims. The plaintiff alleged that her employer isolated her by refusing to talk to her and by virtually avoiding any contact with her whatsoever, that her employer placed her under so much stress that she needed to attend AA meetings during her lunch hours to remain alcohol free, and blatantly violated her rights under the North Dakota Human Rights Act. Swenson is distinguishable on many grounds.
First, the conclusory allegations of the plaintiff in this case hardly rise to the level of what the plaintiff in Swenson endured. See Vandall v. Trinity Hospitals, 676 N.W.2d 88 (N.D. 2004) (holding that physician's claims against employer and colleague that colleague's complaints to governing administrative bodies, letter to employer's quality assurance committee, and resulting nonrenewal of physician's employment contract by employer failed to allege outrageous conduct as required element of intentional infliction of emotional distress claim). Second,Swenson involved gender discrimination, and discriminatory conduct is much more likely to be extreme and outrageous than the conduct alleged by the plaintiff in this case. See Swenson, 498 N.W.2d at 184 n. 7 (citing numerous jurisdictions that have held that almost any type of discriminatory conduct is sufficient to withstand summary judgment).
The Court agrees with the plaintiff that the fact-finder must consider the context and background of the conduct causing the plaintiff's distress. Swenson, 498 N.W.2d at 185. The Court also agrees that the relationship of the parties is an important factor to consider. Id. However, as explained earlier, the plaintiff is an elected official, not the employee of the County Commissioners. There is no position of power over the plaintiff that can enhance the individual defendant's ability to do harm. As an elected official, the plaintiff must necessarily expect a certain amount of insults and annoyances. "There is no occasion for the law to intervene in every case where some one's feelings are hurt." Muchow, 425 N.W.2d at 924.
The plaintiff's conclusory allegations are insufficient to raise a factual issue about whether the defendants' conduct was "extreme and outrageous," and he has not pointed to any instances of conduct so outrageous in character and extreme in degree as to go beyond all possible bounds of decency and to be regarded utterly intolerable in a civilized community. Viewing the evidence in the light most favorable to the plaintiff, the Court concludes that no reasonable person could find that the defendants' conduct was so extreme and outrageous as to satisfy the threshold requirement for IIED. Therefore, the defendants' motion for summary judgment in regards to the plaintiff's IIED claim is GRANTED. C. Defamation
Count III of the Complaint is brought against defendants Paulson and Ward in their individual capacities. (Compl. ¶ 51.) The Plaintiff alleges that the defendants' actions and statements were defamatory towards plaintiff, exposing him to hatred, contempt, and ridicule, and injuring his reputation in the community and profession in violation of North Dakota Century Code sections 14-02-03 and 14-02-04.
Defamation is defined as either libel or slander. N.D. Cent. Code § 14-02-02 (2001). "Libel is a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person's occupation." § 14-02-03. "Slander is a false and unprivileged publication other than libel, which . . . tends directly to injure the person in respect to the person's office, profession, trade, or business, either by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires. . . ." § 14-02-04.
The plaintiff's only allegation against defendant Ward is that Myers was informed by Don Hukee that Ray Ward told him that the settlement amount in the Jones-Van Tassel lawsuit was so high because of the plaintiff's testimony. This is an admittedly hearsay statement and Mr. Hukee's statement has not been independently verified by anyone. "Inadmissable hearsay evidence alone may not defeat a summary judgment motion." Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993); see also Fed.R.Civ.P. 56(e) (stating that supporting and opposing affidavits shall set forth facts as would be admissible in evidence). However, evidence may be admissible at trial pursuant to an exception to the hearsay rules. Id. at 1311 n. 10.
In this case, the plaintiff argues that the Court should admit the statements pursuant to the residual exception to the hearsay rule, Rule 807 of the Federal Rules of Evidence. Rule 807 provides:
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and © the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence.
To be admissible under the catch-all exception, the proffered statement must have circumstantial guarantees of trustworthiness.United States v. Earles, 113 F.3d 796, 800 (8th Cir. 1997). "In assessing the qualitative degree of trustworthiness of a particular statement, courts should inquire into the reliability of and necessity for the statement." Id.
In this case, the only evidence in the record of the statement of Don Hukee is by the testimony of the plaintiff himself. There is no other circumstantial evidence of the statement's trustworthiness. The plaintiff has failed to explain why he cannot contact Mr. Hukee or why Mr. Hukee has been unavailable to provide deposition testimony. Therefore, the Court would be reluctant to admit the hearsay testimony at trial because the exceptional circumstances warranting application of the catch-all provision do not exist. See United States v. Dierling, 131 F.3d 722, 733 (8th Cir. 1997) (excluding testimony because it was hearsay and circumstantial evidence of trustworthiness did not exist).
Even if there was admissible evidence that Ray Ward made comments that the large settlement paid by the County in the Jones-Van Tassel lawsuit was because of the plaintiff's deposition testimony, the plaintiff has failed to show the Court how such a statement is cause for a valid action. The alleged defamation by defendant Ward must "tend to directly injure him (Myers) in respect to his office, profession, trade, or business, . . . by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires." N.D. Cent. Code § 14-02-04 (2001). Ward's alleged statement that the Jones-Van Tassel settlement was so high because of the testimony of the plaintiff does not impute to the plaintiff disqualifications that his occupation peculiarly requires. See Moritz v. Medical Arts Clinic, P.C., 315 N.W.2d 458, 461 (N.D. 1982) (holding that the words must be construed as people generally understand them and according to their ordinary meaning). The language used is not "fairly susceptible of a defamatory meaning." Little v. Spaeth, 394 N.W.2d 700, 706 (N.D. 1986) (quoting Moritz, 315 N.W.2d at 460). "The fact that the plaintiff places a defamatory connotation on the statement does not make it actionable." Moritz, 315 N.W.2d at 461.
Also, in order for a statement to be slanderous, it must be false. Meir v. Novak, 338 N.W.2d 631, 635 (N.D. 1983). Although the plaintiff's testimony was not the direct cause of the Jones-Van Tassel settlement, the parties cannot deny that Myers' deposition testimony was a factor in the Jones-Van Tassel lawsuit.
The alleged statement by defendant Ward cannot support the meaning given to it by the plaintiff nor is it slander as defined by North Dakota Century Code section 14-02-04. Therefore, there is no genuine issue of material fact and summary judgment is appropriate. See id. at 462(stating that only when evidence raises a genuine issue of material fact as to whether the statement is defamatory should summary judgment be precluded). Defendants' motion for summary judgment as it pertains to the defamation claim against defendant Ray Ward is GRANTED.
The plaintiff's only allegation against defendant Paulson is that he wrote a note containing criticisms directed towards the plaintiff in his capacity as State's Attorney. It is undisputed that Paulson gave this note to Commissioner Flaa. More specifically, the note reads in part:
Any additional allegations listed in the Complaint were not mentioned in the plaintiff's statement of facts or motion papers. Therefore, the Court considers these allegations abandoned and not of sufficient merit to warrant consideration.
In regard to the County representation, when the Jones lawsuit became reality our State's Attorney declared he had a conflict of interest and could not represent the County in any way, when in reality he was supposedly trying to represent a couple of County employees who were his personal friends. When depositions were taken for the lawsuit there is many, many pages of (quote unquote) true? statements made by our State's Attorney, that again is supposed to represent the County, that were proven to be mistrue in the public hearing.
The plaintiff contends that the statement contained in the note exposed the plaintiff to hatred, contempt, and ridicule, and injured his reputation in the community and profession. The defendants contend that the statement contained in the note is an absolutely privileged communication under North Dakota Century Code 14-02-05.
Under North Dakota Century Code section 14-02-05, a communication is absolutely privileged when made (1)in the proper discharge of an official duty or (2)in any legislative or judicial proceeding or in any other proceeding authorized by law. "Absolute privilege is limited to situations in which the free exchange of information is so important that even defamatory statements made with actual malice are privileged." Soentgen v. Quain Ramstad Clinic, P.C., 467 N.W.2d 73, 78 (N.D. 1991). Since the statement in the note was not published during any legislative or judicial proceeding, it would have to have been made in the proper discharge of an official duty to be absolutely privileged.
The Court finds that defendant Paulson's statement was made in a proper discharge of an official duty and therefore is absolutely privileged. Defendant Paulson was voicing his frustration as a county commissioner to a fellow county commissioner about the representation that the County was receiving from its State's Attorney. It is the official duty of the county commissioners to supervise the conduct of the respective county officers. N.D. Cent. Code § 11-11-11(2); see also N.D. Op. Att'y Gen. No. 96-F-01 (Jan. 9, 1996) (stating that "it [is] a duty of the board of county commissioners to direct or oversee the behavior or management of the respective elected county officers"). "Supervise" means to direct and inspect the performance of or to look over. N.D. Op. Att'y Gen. No. 96-F-01 (Jan. 9, 1996) (quoting Am. Heritage Dictionary 1221 (2d coll. ed. 1991)). That is exactly what Paulson was doing when he wrote the note to Commissioner Flaa — he was supervising the performance of the plaintiff. Paulson had a duty as a county commissioner to voice his concerns and frustration with the State's Attorney's representation of the County to a fellow commissioner. As county commissioners, Paulson and Flaa had a legitimate interest in the performance of the States Attorney, and they had the right to inquire and comment upon all aspects of his performance and representation of the County. Cf. Rykowsky v. Dickinson Public School District #1, 508 N.W.2d 348, 351 (N.D. 1993) (granting absolute liability to statements by school board members).
The Court considers this case against the background that the plaintiff is a elected public official, and criticism of official conduct of government officials, such as elected state's attorneys does not lose its constitutional protections for speech merely because it is effective criticism and hence diminishes their official reputations. New York Times Co. v. Sullivan, 376 U.S. 254, 273-74 (1964). "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Id. at 269.
In addition, the plaintiff has failed to produce any evidence that Commissioner Flaa held the plaintiff in lower esteem because of Paulson's statement. "There can be no defamation unless the recipient of the communication believes it to be defamatory, i.e., the plaintiff is defamed in the recipient's eyes." Little v. Spaeth, 394 N.W.2d 700, 706 (N.D. 1986). When asked about the note, Commissioner Flaa testified that although he had seen the document, he never had a conversation about it with Paulson or knew what Paulson was referring to. It is hard to imagine that if Commissioner Flaa didn't even know what defendant Paulson was referring to, that he understood the statement "in a defamatory sense." Id.
Viewing the evidence in the light most favorable to the plaintiff, the Court is not persuaded that he has raised a genuine issue of material fact about whether defendant Paulson's note to Commissioner Flaa is subject to an absolute privilege. The Court holds, as a matter of law, that the note is privileged and that summary judgment is proper on that claim. Therefore, the defendants' motion of summary judgment in regards to plaintiff's defamation claim against defendant Paulson is GRANTED.
IV. Conclusion
Defendants' motion for summary judgment (doc. # 52) as to all of plaintiff's claims is GRANTED.