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Tim Clausnitzer v. Tesoro Refining and Marketing Company

August 20, 2012

TIM CLAUSNITZER,
PLAINTIFF AND APPELLANT
v.
TESORO REFINING AND MARKETING COMPANY,
DEFENDANT AND APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme CourtClausnitzer v. Tesoro Refining and Marketing Co.,

2012 ND 172

This opinion is subject to petition for rehearing.

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AFFIRMED.

Opinion of the Court by Crothers, Justice.

[¶1] Tim Clausnitzer appeals from a summary judgment dismissing his lawsuit against Tesoro Refinery and Marketing Company alleging lawful-activity discrimination under the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4. We affirm, concluding Clausnitzer failed to make a prima facie showing that he was a member of a protected class under the Act when Tesoro terminated his employment.

I

[¶2] Clausnitzer was employed as manager of maintenance at Tesoro's Mandan refinery. On March 24, 2009, Clausnitzer drove his two-wheel drive personal vehicle to work from his home in Bismarck. During the morning, Clausnitzer took Ativan, an anti-anxiety pill prescribed by his doctor. A winter storm developed that morning. Clausnitzer took a late lunch break and drove a four-wheel drive company vehicle, marked "Tesoro," to Bismarck. The purpose of the trip was to locate a printer for a Tesoro employee and to run some personal errands. After looking at printers, Clausnitzer stopped at his girlfriend's house, but left because she was not home. He decided to return to the refinery and, while driving back, Clausnitzer was involved in a minor motor vehicle accident. A Bismarck police officer responded, citing Clausnitzer with careless driving on slippery roads. Clausnitzer called Tesoro's human resources manager to inform him about the accident.

[¶3] Clausnitzer took the remainder of the afternoon off from work and drove home, where he drank a vodka tonic. He then drove the Tesoro vehicle to his girlfriend's house. Clausnitzer fell on the steps, and his girlfriend told him to leave. Clausnitzer's girlfriend called the police, gave them his license plate number and informed them she believed Clausnitzer had been drinking and might harm himself. The same police officer who earlier had investigated the accident pulled Clausnitzer over, asked him if he had been drinking and gave him a breath alcohol test. The test indicated Clausnitzer had a blood alcohol content of .058 percent, which was lower than the presumptive level of .08 percent for driving under the influence of alcohol under N.D.C.C. § 39-08-01(1)(a), but was higher than the .04 percent limit for driving company vehicles imposed by Tesoro's personnel policies. The police officer allowed Clausnitzer to leave the scene of the stop but called Tesoro and informed its human resources manager that Clausnitzer earlier had been involved in an accident and later had been drinking while operating a company vehicle. The officer told the human resources manager the result of the breath alcohol test and said, "[H]e just wanted the company to know." Tesoro eventually gave Clausnitzer the option of either retiring or being fired for violating the company's policy. Clausnitzer retired.

[¶4] Clausnitzer sued Tesoro, claiming lawful-activity discrimination under the Human Rights Act. Clausnitzer contended he was improperly terminated from employment for engaging in a lawful activity because he was under the presumptive limit for driving under the influence under state law and was driving the Tesoro vehicle during off-duty hours when the incident leading to his termination occurred. Tesoro denied discriminating against Clausnitzer, arguing it terminated his employment because he violated the company's policy prohibiting driving a Tesoro vehicle with a blood alcohol content exceeding .04 percent.

[ΒΆ5] The district court granted Tesoro's motion for summary judgment dismissing the action, concluding Clausnitzer failed to establish a prima facie case of employment discrimination under the Human Rights Act. The court ruled Clausnitzer was on Tesoro's "premises" when he was pulled over in the company vehicle in Bismarck, based on a Tesoro personnel policy that defined "[c]ompany property or premises" as including "automobiles, trucks, [and] all other ...


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