Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.
Peter W. Zuger (argued) and Ronald H. McLean (on brief), Fargo, N.D., for plaintiff and appellant.
Zachary E. Pelham (argued) and Rachel A. Bruner-Kaufman (on brief), Bismarck, N.D., for defendant and appellee.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom.
[¶1] Lori Yahna appealed from a summary judgment dismissing her complaint against Altru Health System for age discrimination and for wrongful termination of employment. She asserts there are disputed issues of material fact on her claims that her termination constituted age discrimination and violated Altru's employment policies and procedures. We affirm.
[¶2] In 1984, Yahna began working for the Grand Forks Clinic, the predecessor to Altru, as a licensed practical nurse. She received additional training in vascular technology to work with Dr. Rolf Paulson in the ultrasound department and by 1986 she was working solely as a vascular technologist. According to Yahna, she was the technical director of the vascular lab, she developed the vascular medicine practice at Altru with Dr. Paulson, she trained other ultrasound technologists to work in the vascular lab, and she helped with quality assurance and became the supervisor of the ultrasound department in 1997. She initially worked full time as a vascular technologist with on-call responsibilities, but she received approval to work three days per week in 2001 with no on-call responsibility. According to Yahna, she became coordinator and technical director of the vascular lab in 2006. In February 2012, Altru created a new position for an education and quality assurance coordinator, and hired Derek Todd for that full-time position. According to Yahna, she did not apply for that position because it was full time. She claimed, however, she maintained her position as technical director of the vascular lab and understood she would still be doing quality assurance and reviewing other technologists' films. Yahna claimed Altru required her to work full time with on-call responsibilities in July 2012, and she was terminated on July 2, 2012, after she informed Altru " she would not be able to take call at this time." Yahna was forty-eight years old when she was terminated.
[¶3] In October 2012, Yahna sued Altru, alleging it wrongfully terminated her employment on July 2, 2012, in violation of its written policies and procedures and in violation of statutory provisions prohibiting age discrimination under the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4.
[¶4] Altru answered, alleging Yahna was an at-will employee and was terminated for the legitimate non-discriminatory reason of refusing to take required on-call responsibilities. According to Altru, in May and June 2012 it expanded and restructured its ultrasound department into separate departments for vascular and general ultrasound and Laurie Mahin became the full-time supervisor of both departments. According to Mahin, supervisors and the education and quality assurance coordinator were exempt from taking call and Yahna was not required to take call until 2012, when her job title changed and she went from supervisor and quality assurance coordinator to technologist. Altru claimed that after the ultrasound department split into separate departments, all general and vascular ultrasound technologists were required to take on-call responsibilities. According to Altru, Yahna did not have a managerial, supervisory, or coordinator position when she was terminated and she was terminated from her job as a vascular technologist because she refused to take required on-call responsibilities.
[¶5] The district court granted Altru's motion for summary judgment, concluding there were no disputed issues of material fact that Altru's employment policies and procedures did not abrogate Yahna's at-will employment status with Altru and that her termination did not constitute age discrimination. The court explained the provisions in Altru's employment policy manual unambiguously preserved the presumption of at-will employment and did not evidence an intent that the manual created a contractual right to employment. In rejecting Yahna's age discrimination claim, the court cited the requirements for a prima facie age discrimination claim and said that because Yahna refused to take required on-call responsibilities for an ultrasound technologist she failed to satisfactorily perform the duties of her position and she failed to establish employees outside her protected age class were treated more favorably than her. The court ruled Altru established it terminated Yahna because she refused to take on-call responsibilities for her job and granted summary judgment dismissing her complaint.
[¶6] Our standard of review of summary judgment is well-established:
" Summary judgment . . . is 'a procedural device for promptly resolving a controversy on the merits without a trial if [there are no genuine issues of] material facts or the inferences to be drawn from the undisputed facts, or if resolving disputed facts would not alter the result.'" " 'In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record.'" " 'Whether summary judgment was properly granted is a question of law that this Court reviews de novo on the entire record.'"
" A party resisting a [properly supported] motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations," but " must set forth specific facts by presenting competent, admissible evidence, whether by affidavit or by directing the court to relevant evidence in the record, demonstrating a genuine issue of material fact." " '[T]he court has no duty to scour the record for evidence that would preclude summary judgment.'" The party opposing the motion has the responsibility to draw " 'the court's attention to evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising a material factual issue or from which the court may draw an inference creating a material factual issue.'" The party opposing summary judgment " 'must also explain the connection between the factual assertions and ...