Opinion
FILE NO. A4-03-041
October 21, 2003
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-entitled action was referred to Magistrate Judge Alice R. Senechal for the issuance of a Report and Recommendation. Magistrate Judge Senechal issued her Report and Recommendation on September 29, 2003, wherein she recommended that the Defendant's Motion for Summary Judgment be granted. On October 17, 2003, the Plaintiff filed an objection asserting (1) that an "alleged act of wrongdoing" occurred within 300 days of when she filed her complaint and (2) that she clearly established a claim for retaliation. The Defendant did not file an objection to the Report and Recommendation.
Under Local Rule 72.1(E)(4),
A district judge must make a de novo determination of those portions to which a specific objection is made and may accept, reject, or modify in whole or in part the findings or recommendations made by the magistrate judge. The district judge will not normally conduct a new hearing, but in appropriate circumstances may receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.I. PLAINTIFF'S FIRST OBJECTION
The plaintiff, Cheryl Stroklund, asserts that she timely filed her complaint because the last act of wrongdoing took place on March 16, 2001. Stroklund contends that Wal-Mart engaged in several "wrongful acts" at a hearing before Job Service on March 16, 2001, including: (1) attempting to deny her benefits, (2) misstating her termination date, and (3) admitting that it was trying to deny her unemployment benefits because she earlier refused a directive to request unpaid medical leave. Stroklund asserts that she complied with Section 14-02.4-19 of the North Dakota Century Code when she filed a charge of discrimination with the North Dakota Department of Labor on January 2, 2002-292 days after the March 16, 2001, hearing at Job Service.
Under Section 14-02.4-19 of the North Dakota Century Code, Stroklund needed to file her charge of discrimination with the Department of Labor or bring an action in state district court within three hundred (300) days of the "alleged act of wrongdoing." The essence of the issue is whether Stroklund satisfied the requirements of Section 14-02.4-19.
From the record it is clear that Wal-Mart sent Stroklund a letter of termination which stated that her termination was effective January 13, 2001. See Affidavit of Cheryl Stroklund, 8. In her complaint filed on March 21, 2003, Stroklund mentions only her January 13, 2001, termination date. Stroklund did not assert that March 16, 2001, was the most recent date of discrimination in her responsive brief to Wal-Mart's Motion for Summary Judgment. The only time Stroklund had alleged that wrongful actions had occurred on March 16, 2001, was in the January 2, 2002, "Charge of Discrimination" filed with the North Dakota Department of Labor, wherein she alleged that
On 3/16/01, Wal-Mart representatives provided false information with regard to the reason I was terminated from employment to the Appeals Referee for Job Service North Dakota in an attempt to deny my job insurance benefits.
On March 17, 2003, the North Dakota Department of Labor concluded that the evidence presented did not establish any violations of the North Dakota Human Rights Act or Title I of the Americans with Disabilities Act of 1990. On this same date, the Department of Labor also informed Stroklund that she had six (6) days to file a civil action in state court. This statement was apparently made by the Labor Department based on the date of harm being March 16, 2001, which was the latest date identified in the charge of discrimination filed by Stroklund. It appears from the record that Stroklund then contacted attorney Lee Balerud who commenced a lawsuit in state district court on March 21, 2003, with service occurring on March 24, 2003. However, the action needed to be commenced within 300 days of the last "alleged act of wrongdoing" which clearly occurred on January 13, 2001 when Stroklund was terminated as an employee. The original "Charge of Discrimination" submitted by Stroklund to the North Dakota Department of Labor on January 2, 2002, was untimely and should have been summarily dismissed by the Labor Department.
In a Report and Recommendation filed on September 29, 2003, Magistrate Senechal reached the following conclusion:
Although it might be conceivable that some set of facts could establish "an act of wrongdoing" in connection with Wal-Mart providing information to Job Service, Stroklund has not made any factual showing on any such set of facts. She submitted no statement of material facts in dispute in response to this motion, as provided in Local Rule 7. 1. She submitted no evidence of any kind to counter Wal-Mart' s position that no act of wrongdoing could have occurred after January 13, 2001.See Report and Recommendation, p. 4.
In the objection to Magistrate Judge Senechal's Report and Recommendation, Stroklund now seeks to provide such evidence. Stroklund's affidavit sets forth the following statements regarding Wal-Mart's actions at the March 16, 2001 hearing:
8. During the application and hearing procedures, Wal-Mart went back to saying that I quit until the hearing officer told them that their statements and other documents indicated otherwise. Then they said I was guilty of "misconduct" for not obeying a directive of the store manager, even though it was contrary to company employment policy; illegal; contrary to North Dakota law; and unconstitutional.
9. In Defendant's attempts to deny me company benefits; reasonable accommodation; terminate me and deny me unemployment benefits they displayed a continuous pattern of deceit; discrimination; and admitted violations of North Dakota law; federal law; and the constitutions of both. This series of illegal acts of harm began in December, 2000, and continued to March 16, 2001.
Affidavit of Stroklund, ¶¶ 8 9.
Even when taking into account the new evidence filed with her objection to the Report and Recommendation, Stroklund has failed to specify an "alleged act of wrongdoing" that occurred after January 13, 2001. Assuming that Wal-Mart's representatives did make false statements at the Job Service hearing on March 16, 2001, Stroklund has not indicated what, if any, effect this action had on her application for unemployment benefits. Stroklund has not revealed whether she received unemployment benefits at the conclusion of this hearing. More important, Stroklund has not provided the Court with any authority to support her contention that comments made by an employer at a Job Service hearing about a former employee after the employee has been terminated may constitute a "discriminatory practice" or an "act of wrongdoing" for purposes of employment discrimination under North Dakota law. Specifically, the fact that Wal-Mart contested Stroklund's attempt to obtain unemployment benefits, or allegedly provided false information to Job Service officials concerning the reason(s) for her termination, is not sufficient evidence of an "act of wrongdoing" amounting to employment discrimination or a "discriminatory practice" under Chapter 14-02.4. The Court finds that Stroklund has not set forth evidence to establish that an alleged act of wrongdoing took place after January, 13, 2001. Therefore, Stroklund's charge of discrimination was not filed within three-hundred (300) days as proscribed by Section 14-02.4-19 of the North Dakota Century Code. II. PLAINTIFF'S SECOND OBJECTION
Stroklund also asserts that she set forth a claim for retaliation in her complaint. In her Report and Recommendation, Magistrate Judge Senechal concluded that "Stroklund has not made any factual showing of retaliation." See Report and Recommendation, p. 5. Stroklund did not address the issue of retaliation in her response to Wal-Mart's Motion for Summary Judgment. Taking into account the additional information contained in her objection, the Court finds that Stroklund has still not set forth a factual showing of retaliation.
III. CONCLUSION
The Court has carefully reviewed the record along with the Report and Recommendation and finds that Magistrate Judge Senechal's Report and Recommendation is thorough and persuasive. The Court has also carefully reviewed the plaintiff's objections to the Report and Recommendation and finds the objections do not alter the conclusions reached by Magistrate Judge Senechal. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 15). The Defendant's Motion for Summary Judgment (Docket No. 10) is GRANTED.