IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Tesoro Refining and Marketing
Supreme Court No. 20120107
Morton County District Court No. 10-C-00759
APPEAL FROM THE ORDER FOR JUDGMENT AND JUDGMENT ENTERED ON FEBRUARY 14, 2011 IN MORTON COUNTY DISTRICT COURT
REPLY BRIEF OF APPELLANT TIM CLAUSNITZER
|KENNELLY & O'KEEFFE, LTD|
|Timothy M. O'Keeffe (ND ID. No. 05636)|
|Sean T. Foss (ND ID. No. 06422)|
|313 N.P. Avenue|
|P.O. Box 2105|
|Fargo, ND 58107-2105|
|Phone: (701) 235-8000|
|Fax: (701) 235-8023|
TABLE OF CONTENTS
|TABLE OF AUTHORITIES||3|
|I. Clausnitzer Was Terminated For Driving a Company Vehicle After Consuming a Legal Amount of Alcohol||4|
|II. The District Court Erred as a Matter of Law By Concluding The Term "Premises" under N.D.C.C. § 14-02.4-03 Includes Personal Property||5|
|A. The Term "Premises" is Not Ambiguous||5|
|B. The District Court Improperly Considered Tesoro's Employment Policies in Determining the Definition of "Premises" as a Matter of|
|C. The Term "Premises" Under N.D.C.C. § 14-02.4-03 Must Have A Single Definition for All Employers||8|
|III. The District Court Was Clearly Erroneous to Find Clausnitzer's Actions Contravened Tesoro's Essential Business-Related Interests||9|
|A. The Fatland Decision Demonstrates Actual Essential Business-Related Interests Necessary to Permit Termination on the Basis of Participation in a Lawful Activity During Non-Working Hours Under N.D.C.C. § 14-02.4-03||10|
|B. The Evidence Must Be Viewed in the Light Most Favorable to Clausnitzer||11|
|IV. Tesoro Failed to Cite Any Applicable and Precedential Legal Authority In Support of Its Position||14|
TABLE OF AUTHORITIES
|Am. Family Ins. v. Waupaca Elevator Co., Inc., 2012 ND 13, 809 N.W.2d 337|
|Fatland v. Quaker State Corp., 62 F.3d 1070 (8th Cir. 1995)|
|Manning v. K-Trans Mgmt., Inc., E2000-02462-COA-R3CV, 2001 WL 1328522 (Tenn. Ct. App. Oct. 29, 2001)|
|Miners v. Cargill Communications, Inc., C8-97-837, 1997 WL 757157 (Minn. Ct. App. Dec. 9, 1997)|
|Risk v. Eastside Beverage, 664 N.W.2d 16 (Minn. Ct. App. 2003)|
|Skjefte v. Job Serv. N. Dakota, 392 N.W.2d 815 (N.D. 1986)|
|State ex rel. McClain v. Indus. Comm., 732 N.E.2d 383 (Ohio 2000)|
|N.D.C.C. § 14-02.4-03|
|4-11, 14, 16|
|Minn. Stat. Ann. § 181.938, subd. 2....12, 13|
In reviewing the Appellee's brief, this Court should find Tesoro Refining and Marketing Company (hereinafter "Tesoro") fails to adequately rebut Clausnitzer's argument that (1) the district court erred as a matter of law by concluding Clausnitzer was on Tesoro's "premises" for purposes of N.D.C.C. § 14-02.4-03 when he was located in a company vehicle in Bismarck, and (2) the district court was clearly erroneous to find the evidence established Clausnitzer's actions directly conflicted with Tesoro's essential business-related interests.
I. Clausnitzer Was Terminated For Driving a Company Vehicle After Consuming a Legal Amount of Alcohol.
In its brief, Tesoro provides an overly-convoluted factual background that attempts to disguise that the parties actually agree Clausnitzer was terminated by Tesoro for driving a company vehicle after consuming alcohol. As the Appellee's Brief states: "Since Clausnitzer was driving the company vehicle when he was stopped by Officer Horner, and because Clausnitzer had consumed enough alcohol to have a .058 BAC, the Refinery determined Clausnitzer violated the Company policies and it had no other choice but to terminate Clausnitzer." Appellee's Brief, p. 6.
Beyond this statement, Tesoro attempts to introduce irrelevant facts about prescription drug use, alcohol treatment, vehicle accidents and the like in an apparent attempt to distract the Court's attention from the essential facts. Nevertheless, the issue remains narrow: whether an employer may terminate an employee for engaging in a legal activity off the employer's premises during nonworking hours, which is not in direct conflict with the essential business-related interests of the employer. Because the North Dakota Legislature has specifically prohibited such employer action, the answer is simply no.
II. The District Court Erred as a Matter of Law By Concluding The Term "Premises" Includes Personal Property.
In reviewing Tesoro's brief, this Court should conclude the company failed to adequately demonstrate why the district court did not err as a matter of law by concluding the term "premises" includes personal property.
The Term "Premises" is Not Ambiguous.
Recognizing that case law prohibits this Court from engaging in statutory interpretation where the meaning of the statute is clear, Tesoro argues that the definition of "premises" is ambiguous. While Appellant Clausnitzer cited the definition of "premises" in the New Oxford American Dictionary to demonstrate the plain and ordinary meaning of the word, see Appellant's Brief, p. 15, Tesoro cited no authority to support its argument that the meaning of "premises" is ambiguous. For example, Tesoro did not cite a dictionary, case, or other authority containing a definition of "premises" that includes personal property physically distinct and separate from real property.
Rather, Tesoro simply attempts to create a self-fulfilling prophecy, arguing the term "premises" is ambiguous because the company declares it so. In support, Tesoro cites its own company policies, which broadly define "premises" to include real property as well as personal property. However, this line of reasoning demonstrates the problem with Tesoro's argument and the district court's decision. The question is one of statutory interpretation: is the use of the term "premises" in N.D.C.C. § 14-02.4-03 ambiguous and, if so, what did the North Dakota legislature mean? The question is not whether Tesoro acted reasonably by defining "premises" to include company vehicles for purposes of its own employment policies. While Tesoro may have provided such a broad definition for its own purposes, such fact has no bearing on whether "premises" is ambiguous as used by the North Dakota legislature under the statute.
Furthermore, this Court should find that applying the ordinary definition of premises, which is limited to real property, is entirely rational. If the purpose of the legislation was to prevent employers from taking adverse action against employees based upon an employee's participation in lawful activity during non-working hours, it is rational to draw a line at the gate of the employer's actual physical premises. This line creates a distinction between an employee who participates in a lawful activity after hours, but while still at the office, versus an employee who participates in a lawful activity after hours, but away from the office. To create a distinction between employees located on and off the employer's actual physical premises is entirely rational. More importantly, that is the line drawn by the North Dakota legislature.
Therefore, because the plain and ordinary meaning of "premises" is limited to real property, and the North Dakota legislature acted rationally in drawing this line, this Court should find that further statutory interpretation is unnecessary.
The District Court Improperly Considered Tesoro's Employment Policies in Determining the Definition of "Premises."
This Court should find Tesoro failed to explain how the district court did not err as a matter of law by considering the company's employment policies when determining the meaning of "premises" under N.D.C.C. § 14-02.4-03. Tesoro argues:
[T]he courts are well within their discretion to consider an employer's definitions within an applicable policy for purposes of defining a term within the context of an applicable statute. In this particular case, the trial court examined the evidence, specifically Clausnitzer's knowledge of the company policies, in determining Tesoro was permitted to apply its definition of "company premises" to the "lawful activity" provision, because it "is not so far outside the ordinary understanding of the term." (App. 19).
Appellee's Brief, p. 14-15.
Tesoro's argument once again reflects the company does not understand the relevant inquiry. The question is not whether Tesoro acted reasonably by defining "premises" to include company vehicles as part of its employment policies. Rather, the question is whether the North Dakota legislature intended for the term "premises" to encompass personal property when prohibiting lawful activity discrimination. Tesoro's definition has no impact upon application of the law. If it did, employers could circumvent the Legislature's intent by, for example, expanding the definition of "premises" to include personal property like company vehicles.
Furthermore, this Court should recognize the inherent danger in allowing courts to consider employers' policies in applying employment discrimination statutes. In this case, the district court concluded Tesoro's definition "is not so far outside the ordinary understanding of the term." (App. 19.) Under this approach, employers are free to adopt employment policies that differ from the employment discrimination statutes so long as the policies are "not so far outside" of those statutes. Of course, the "not so far outside" standard is ambiguous to the point of being arbitrary and capricious. However, the greater danger is that the standard allows an erosion of anti-discrimination statutes.
The Term "Premises" Must Have A Single Definition for All Employers.
Somewhat confusingly, Tesoro argues the district court was not required to define "premises" for all employers, just the parties to this case. Had the issue been whether the definition of "premises" under Tesoro's employment policies included company vehicles, perhaps Tesoro would be correct. But, as stated above, in the Appellant's Brief, and at the district court hearing, the issue is the definition of "premises" under N.D.C.C. § 14-02.4-03. Tesoro correctly notes the district court stated: "I conclude that Tesoro is able to define premises to include automobiles owned by the company and used for company purposes." (App. 19).
The problem with this approach is that it leaves open the possibility that "premises" means one thing for Tesoro and another for a different company. If that is the case, even though N.D.C.C. § 14-02.4-03 prohibits all discrimination on the basis of "participation in a lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer, " the law would actually apply differently to identical situations, depending on the employer. Under Tesoro's approach, if another company's policies did not define "premises" to include company vehicles, the result would be different even though the statute remains the same.
However, this Court can avoid such result by overturning the district court's decision and holding not only does "premises" not include personal property, the term can only have one meaning for all employers under N.D.C.C. § 14-02.4-03.
I. The District Court Was Clearly Erroneous to Find Clausnitzer's Actions Contravened Tesoro's Essential Business-Related Interests.
In addition, this Court should conclude Tesoro failed to cite evidence in the record that, when viewed in the light most favorable to Clausnitzer, supports the district court's finding that Tesoro considers prohibiting employees from legally driving a company vehicle after consuming a small amount of alcohol to be an essential business-related interest. As such, the district court's finding was clearly erroneous.
A. The Fatland Decision Demonstrates Actual Essential Business-Related Interests Necessary to Permit Termination on the Basis of Participation in a Lawful Activity During Non-Working Hours.
In an argument that ultimately demonstrates the company's lack of understanding in this case, Tesoro claims
Fatland v. Quaker State Corp., 62 F.3d 1070 (8th Cir. 1995) supports the district court's decision in this matter. In Fatland, the employee operated a side business that directly competed with his employer, Quaker State. The Eighth Circuit of Appeals stated:
We conclude that Quaker State's argument is well taken. Prohibiting employees such as Fatland from operating off-hours businesses that would benefit from confidential information that the employees' positions within the company would enable them to secure from competitors, resulting in resentment towards, and termination of business with, the employer is a bona fide occupational qualification that is reasonably and rationally related to a particular employee or group of employees within the meaning of section 14-02.4-08. Thus, Quaker State did not run afoul of section 14-02.4-03 when it terminated Fatland's employment.
Id. at 1073 (footnote omitted).
The district court said the Tesoro employment policy "protects Tesoro from incurring negative economic consequences, such as being subjected to legal liability, much the same way the policy at issue in Fatland protected Quaker State's interests." (App. 21.) But as this Court can see, the employer in Fatland was faced with an employee being in a position to misuse confidential and proprietary information to benefit a separate, competing business. The potential economic consequences were related to profits and losses of Quaker State's day-to-day operations, not abstract concepts of potential legal liability. Thus, the Fatland decision provides a stark contrast to this case by demonstrating actual essential business-related interests.
Section 14-02.4-03, N.D.C.C., refers to "essential business-related interests," not nebulous potential economic liabilities. (Emphasis added). Essential business-related interests are implicated where an employee has a substantial personal interest in a competing business and a motivation to steal customers. If Clausnitzer had been moonlighting for a competing refinery, Tesoro's essential business-related interests would have been implicated. But when Clausnitzer is legally driving a company vehicle miles from the Mandan refinery, it is difficult to discern what business-related interests are at stake, much less essential ones.
Therefore, using Fatland as a measuring stick, this Court should conclude essential business-related interests are not implicated by generalized concerns about possible liability, as the district court concluded. As explained in Appellant's Brief, concluding otherwise would create a slippery slope where the most attenuated and imaginative justifications would become sufficient to circumvent the prohibition against legal activity discrimination.
I. Tesoro Failed to Cite Any Applicable and Precedential Legal Authority In Support of Its Position.
In a last-ditch attempt to prevent this Court from overturning the district court's decision, Tesoro cites a wide swath of case law that the company claims is somehow applicable to this case and supports the award of summary judgment. However, by actually analyzing each case, this Court shall see that all of the cases are factually and legally distinguishable.
First, Tesoro cites
Miners v. Cargill Communications, Inc., C8-97-837, 1997 WL 757157 (Minn. Ct. App. Dec. 9, 1997). In Miners, the Minnesota Court of Appeals upheld a summary judgment award where an employee was fired for driving a company vehicle after consuming alcohol. The employee claimed such action violated Minn. Stat. Ann. § 181.938, subd. 2, which provides:
An employer may not . . . discipline or discharge an employee because the . . . employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.
The Minnesota Court of Appeals affirmed the summary judgment award because the employee was fired for the act of driving after consuming alcohol, rather than the act of consuming alcohol. Miners, at *3.
However, this Court should recognize that North Dakota's prohibition against lawful activity discrimination provides far greater protection than Minnesota's statute regarding lawful consumption. While Minnesota's law relates solely to the "use or enjoyment of lawful consumable products," N.D.C.C. § 14-02.4-03 covers all lawful activities. Thus, Minnesota law only protects the lawful consumption of an alcoholic beverage, while North Dakota law protects the lawful consumption of an alcoholic beverage as well as lawfully driving a vehicle after consuming an alcoholic beverage. As such, despite Tesoro's best attempt, the comparison between the statutes is apples to oranges.
From Miners, the cases cited by Tesoro only become more and more irrelevant to the present case. In
Risk v. Eastside Beverage, 664 N.W.2d 16 (Minn. Ct. App. 2003), the Minnesota Court of Appeals affirmed an administrative ruling providing that, for purposes of unemployment benefits, an employee committed misconduct when the employee had a blood alcohol concentration above the applicable legal limit during working hours. Similarly, in
State ex rel. McClain v. Indus. Comm., 732 N.E.2d 383 (Ohio 2000), the Ohio Supreme Court affirmed a denial of workers compensation benefits to an employee who filed a claim for benefits only after he was terminated for drinking alcohol during working hours. Likewise, in
Manning v. K-Trans Mgmt., Inc., E2000-02462-COA-R3CV, 2001 WL 1328522 (Tenn. Ct. App. Oct. 29, 2001), the Tennessee Court of Appeals affirmed a summary judgment award against an employee who was terminated for drinking alcohol during working hours and refusing to submit to a drug test following an accident. Finally, in
Skjefte v. Job Serv. N. Dakota, 392 N.W.2d 815 (N.D. 1986), this Court affirmed a denial of unemployment benefits, holding that an employee committed misconduct when she violated employment policies during working hours.
Here, the Court is not dealing with unemployment or workers compensation benefits. Clausnitzer's blood alcohol content was below the applicable legal limit, and his conduct occurred during nonworking hours. While Clausnitzer was involved in an accident on the day in question, the accident occurred before his alcohol consumption. Clausnitzer also did not refuse any alcohol or drug tests. While Tesoro attempts to gloss over these factual distinctions, this Court should recognize their significance. Simply put, despite Tesoro's best efforts, no case law supports its position in this matter.
Based on the above, Plaintiff Tim Clausnitzer respectfully requests that this Court hold the definition of "premises" under N.D.C.C. 14-02.4-03 is limited to real property and the district court was clearly erroneous to find Tesoro established Clausnitzer's conduct violated its essential business-related interests.
Dated this ___ day of June, 2012.
|KENNELLY & O'KEEFFE, LTD|TIMOTHY M. O'KEEFFE (ND ID. No. 05636) SEAN T. FOSS (ND ID. No. 06422) 313 N.P. Avenue P.O. Box 2105 Fargo, ND 58107-2105 Phone: (701) 235-8000 Fax: (701) 235-8023