Opinion
No. A-09-340.
Filed December 29, 2009.
Appeal from the District Court for Madison County: ROBERT B. ENSZ, Judge. Affirmed.
C.J. Gatz for appellant.
Douglas R. Novotny and Brian D. Nolan, of Nolan, Olson Stryker, P.C., L.L.O., for appellee.
SIEVERS, MOORE, and CASSEL, Judges.
THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
INTRODUCTION
Robin Merchant appeals from an order granting summary judgment in favor of her former employer, Northeast Community College (Northeast). Merchant claims that Northeast constructively discharged her from her position as an instructor in violation of Neb. Rev. Stat. § 85-1528 (Reissue 2008). We conclude that Merchant's claim fails as a matter of law because the evidence, viewed in the light most favorable to Merchant, shows that Northeast did not intentionally make the conditions of Merchant's employment intolerable to a reasonable person.
BACKGROUND
Merchant began her employment as an instructor in Northeast's licensed practical nursing (L.P.N.) program in 1988 and terminated her employment with Northeast pursuant to a letter dated July 5, 2005. She then pursued other employment. From the time that Merchant was hired until 2004, she generally taught the same nursing classes and had few difficulties with her employer. However, Merchant's proposed teaching assignments for the 2005-06 school year were different from her previous teaching assignments, and although Merchant had no difficulty with her previous supervisor, she had certain difficulties related to Ann Oertwich, who took over as the director of nursing in 2003. On April 16, 2008, Merchant filed a complaint in which she alleged that she was constructively discharged from her employment with Northeast. Merchant alleged that she was constructively discharged "when [Northeast], acting through its employee, . . . Oertwich, deliberately rendered [Merchant's] working conditions intolerable, thereby forcing her to quit her job."
Northeast filed a motion for summary judgment on the constructive discharge claim, which the district court granted. At the summary judgment hearing, Merchant adduced evidence of the employment contract which she signed and the conditions of her work environment. The signature page for the contract is in the record, but neither the written terms of the contract nor other evidence of the written contract terms are in the record. Merchant also adduced evidence regarding the allegedly intolerable conditions to which she was subjected while working at Northeast. Much of this evidence was related to Oertwich. We further describe this evidence in the analysis section as it pertains to the assigned error. Merchant timely appeals.
ASSIGNMENTS OF ERROR
Merchant alleges, as restated, that the district court erred in (1) finding that a reasonable person in Merchant's position would not have found the conditions of employment to be intolerable, (2) finding that no constructive discharge claim was proved as a matter of law, and (3) sustaining Northeast's motion for summary judgment.
STANDARD OF REVIEW
Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Erickson v. U-Haul Internal., 278 Neb. 18, 767 N.W.2d 765 (2009). In reviewing summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. Id.
ANALYSIS
Merchant argues that she adduced sufficient evidence to prevent the entry of summary judgment on her constructive discharge claim.
We first emphasize that Merchant's constructive discharge claim, as pled, is based on a statutory right. Merchant had an interest in continuing employment with Northeast protected by § 85-1528. Section 85-1528 provides as follows in pertinent part:
The contracts of the teaching staff and school nurses employed by a board of a community college shall require the sanction of a majority of the members of the board. . . . [E]ach such contract shall be deemed renewed and in force and effect until a majority of the board votes, sixty days before the close of the contract period, to amend or terminate the contract for just cause.
There are certain limited exceptions to this general rule, but none are applicable to the facts of the instant case. Thus, Merchant's claim is derived from statute rather than the mere fact of her employment with Northeast.
Second, the scope of Merchant's brief confines our ability to review this appeal. To be considered by an appellate court, an error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Obad v. State, 277 Neb. 866, 766 N.W.2d 89 (2009). A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered. State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d 194 (2008). It is not the duty of a reviewing court to search the record for the purpose of ascertaining whether there is error, and any error alleged must be specifically pointed out. Coyle v. Janssen, 212 Neb. 785, 326 N.W.2d 44 (1982). Further, where there is a vague and general assignment of error, it will be considered only to the extent that it is narrowed by the specific arguments asserted in the appellant's brief. See State ex rel. Wagner v. Gilbane Bldg. Co., supra. Merchant's only specific assignment of error is that the court erred in finding that a reasonable person in Merchant's position would not have found the conditions of Merchant's employment to be intolerable. The two other assignments of error merely allege that the district court's ultimate disposition of the case was erroneous. The brief contains an argument that summary judgment was improper because the statements in Oertwich's affidavit conflict with the deposition testimony of Merchant and Rose Jones (another employee), and partially sets forth the deposition testimony of Merchant and Jones regarding the allegedly intolerable conditions of employment. Thus, the only issue which Merchant has presented for our determination is whether the conditions of her employment were sufficiently intolerable to permit a constructive discharge claim.
We next address what Northeast was required to show to obtain a summary judgment on Merchant's constructive discharge claim. To prove constructive discharge, a plaintiff must demonstrate that (1) a reasonable person in her situation would find the working conditions intolerable and (2) the employer intended to force the employee to quit. Gavin v. Rogers Tech. Servs., 276 Neb. 437, 755 N.W.2d 47 (2008). We digress to note that although the standard we set forth typically applies to claims under title VII of the Civil Rights Act of 1964 for sexual harassment and discrimination, the Nebraska Supreme Court has determined that the same standard is applicable to contract-based constructive discharge claims. See Sanders v. May Broadcasting Co., 214 Neb. 755, 336 N.W.2d 92 (1983). Because this is an appeal from a summary judgment, Northeast was required to prove that there was no genuine issue of material fact as to either or both of the elements of Merchant's claim and that Northeast was entitled to judgment in its favor as a matter of law. See Erickson v. U-Haul Internal., 278 Neb. 18, 767 N.W.2d 765 (2009). In considering whether Northeast has made the requisite showing, we must construe the evidence in the light most favorable to Merchant to determine whether a genuine question of material fact exists. See id. Thus, we assess whether the evidence, as construed in the light most favorable to Merchant, creates a genuine issue of material fact as to whether a reasonable person in Merchant's situation would find the working conditions intolerable.
Before we may describe the content of the evidentiary record in light of this standard, we must dispose of Northeast's argument that Merchant failed to adequately set forth the evidentiary record as pertinent to her assigned errors. Neb. Ct. R. App. P. § 2-109(D)(1)(g) (rev. 2008) requires that the appellant's brief contain a "statement of facts . . . made in narrative form, and shall consist of so much of the substance of the record as is necessary to present the case." We have already noted that it is not the duty of a reviewing court to search the record for the purpose of ascertaining whether there is error. In the facts section, Merchant's brief states that "[i]t would be improper to itemize all the mistreatment and only a few [instances of mistreatment] are mentioned here." Brief for appellant at 3. Under the rules, Merchant should have set forth the substance of all the evidence which she believed supported her arguments. Although Merchant failed to do so, we have reviewed all the evidence and set it forth below construed in the light most favorable to Merchant. We do so because it provides the reader with a more precise understanding of this appeal and it does not change the outcome.
The first incident which Merchant described in her deposition occurred on September 14, 2004. Merchant met with Oertwich to discuss a transition in the nursing program. We digress to note that the transition consisted of Northeast's shifting from offering separate L.P.N. and registered nurse (R.N.) programs to providing a single nursing program in which it would be possible to obtain either certification. One effect of this transition was that instructors such as Merchant who did not yet have a master's degree in nursing were required to enroll in a master's degree program. In the September 14 conversation, Oertwich stated that she was "very surprised that you are going to get your Master's, [Merchant], because you had a hard time with your [bachelor of science in nursing degree]." Oertwich had known Merchant at the time Merchant was completing her bachelor of science in nursing degree (B.S.N.), because Oertwich was Merchant's preceptor in one of her courses. Apparently, Merchant had difficulty with alopecia and high blood pressure while she was completing her B.S.N. and also working full time at Northeast. Merchant was not sure if she had mentioned her health difficulties to Oertwich. Merchant also testified that during the September 14 conversation, Oertwich suggested to her that Brenda Herrod needed a full-time job. At the time, Herrod was a newly hired part-time instructor and Oertwich's acquaintance.
The next incident which Merchant described in her deposition occurred on September 20, 2004. According to Merchant, nursing students spoke with Oertwich regarding their dissatisfaction with the end-of-rotation evaluations Merchant gave them. The students received passing grades but were unhappy that they had not received the highest possible grade and that Merchant had not given them weekly evaluations. Merchant stated that she knew she was supposed to give her students weekly evaluations, but that she told the students to assume they were doing well if they were not receiving evaluations. Merchant stated that she had engaged in this same practice in prior years. She also explained that under Northeast's policy, the students were supposed to speak to her about alleged problems — not Oertwich. Oertwich informed Merchant about the students' complaints, giggled, and stated, "We'll make an educator out of you yet, [Merchant]," in a sarcastic and demeaning tone. Merchant then cried and wrote a memorandum stating that she would give the students weekly evaluations. Upon receiving the memorandum, Oertwich was upset and asked Merchant why she wrote the memorandum.
The next incident which Merchant described occurred on October 25, 2004. Merchant conferred with Oertwich regarding the appropriate action to take regarding a student who had missed too many hours of Merchant's clinical practice course. Oertwich informed Merchant that Merchant had discretion to handle the situation as she wished. Merchant testified that when she gave Oertwich the incident report, Oertwich laughed in a demeaning manner and made Merchant feel belittled.
On November 11, 2004, Merchant met with David Ptak, legal counsel for Northeast, to discuss the above-mentioned incidents. Merchant stated that the purpose of meeting with Ptak was because she "wanted someone to be aware of . . . Oertwich's leadership."
On November 24, 2004, Merchant met with Charles Pohlman, who was Oertwich's superior and the dean of the agricultural and nursing programs at Northeast, about further concerns regarding Oertwich. At this meeting, Merchant stated that she and the other L.P.N. faculty members were being excluded from the decisionmaking process regarding programming changes. Merchant believed that the formal meetings which she could attend regarding these matters were "pre-planned" and that Oertwich was having informal meetings with other faculty members regarding these matters to which she was not invited and where the actual decisionmaking occurred. Merchant did not testify regarding any additional adverse consequences resulting from her being excluded from the informal meetings.
On the same day, Merchant again met with Pohlman and Oertwich regarding the changes to the nursing program which Merchant and Pohlman had discussed. Merchant noticed that Oertwich had a "smug" look on her face, and Merchant stated to Oertwich that she knew that Oertwich was a "psych nurse" and was analyzing Merchant's body language as hostile. According to Merchant, at one point in the meeting, Oertwich "put her hand on the table, . . . raised off the seat[, and said] . . . you cannot do what you want to do" with a raised voice. Merchant stated that "Pohlman allowed that [i.e., Oertwich's angry behaviors] and then tried to turn it all around and make it like it was me." Merchant believed that Pohlman was trying to act as a mediator and stated that he was "probably going to hire a mediator . . . from the employee assistance program." In March 2005, the nursing faculty met with an employee assistance program professional for the purpose of facilitating cohesiveness between the L.P.N. and R.N. faculty. It is not apparent whether this resulted from the November 24, 2004, meeting. At the November 24 meeting, Oertwich also requested to meet with Merchant on a weekly basis. Merchant declined to do so because she believed that similar weekly meetings had an adverse effect on another instructor's self-esteem, but did not report any adverse employment actions that occurred afterward other than a change in teaching assignments, which we discuss below.
On December 1, 2004, Merchant again met with Ptak, who was empathetic and said he would try to arrange a meeting for Merchant with the director of nursing. Merchant does not know if Ptak took any further action after the meeting.
The next incidents Merchant reported occurred in April 2005. Merchant claims that at that time, she was subjected to unfair evaluations of her teaching. Merchant was evaluated pursuant to the normal evaluation procedure on April 8. This evaluation was entirely favorable, and Merchant did not take issue with this evaluation in her deposition. Merchant also claims that from April 11 to 22, students who were close to Oertwich and enrolled in Merchant's clinical practice section either sought Oertwich out or were sought out by Oertwich to discuss their complaints about Merchant. Female students complained that a male student was not receiving sufficient obstetrics experience because he was not allowed to participate in a "postpartal assessment." Merchant explained that it was the patient's choice whether to have a male student perform an examination. Two other incidents which may have been reported include one where Merchant criticized a student when the student failed to check the identification of a mother or baby prior to bringing the baby into the mother's room and a second one where a student was written up for saying bad things about Merchant outside of Merchant's presence.
On April 19, 2005, when Oertwich, Pohlman, and Karen Weidner, a preceptor in one of Merchant's classes, met with Merchant regarding her April 8 evaluation, Merchant learned that another, undisclosed, evaluation had occurred. Merchant was informed that the evaluation indicated that the students liked her. Merchant was also informed that the male student who allegedly did not receive sufficient obstetrics experience was potentially filing a lawsuit regarding this matter. No adverse employment actions were taken against Merchant at that time.
Merchant later learned that in April 2005, certain students were also hand-selected to participate in a meeting regarding Merchant in which their comments were recorded. In a separate document, Merchant alleged that she was unfairly evaluated when Oertwich interviewed four male nursing students about not completing a postpartum examination. However, it is not apparent whether this was part of the evaluations which Merchant spoke about in her deposition or an entirely separate incident.
On May 2, 2005, Merchant met with a Dr. Giddings regarding the evaluations. Giddings' employment position with Northeast is not stated in the record. However, we infer that he was a member of Northeast's administration from the fact that he had a secretary and a doctorate, and Merchant spoke with him after having spoken with her more direct superiors. Giddings informed Merchant that she could file a grievance regarding the situation. Merchant stated that she did not do so because the school year was nearly over, Giddings was leaving, the grievance "would have been put at the bottom of the pile," and filing a grievance would have caused her to be classified as "noncooperative."
On May 5, 2005, Oertwich called a faculty meeting at which she presented the nursing faculty with a printed version of the recorded comments students made regarding Merchant and other faculty members. Merchant was not mentioned by name in the comments, but the comments mentioned the clinical portion of the obstetrics rotation, which Merchant conducted. Merchant maintains that the meeting was primarily about her performance.
Merchant additionally testified that at some point, her preceptor took over part of her class and additionally criticized Merchant for presenting too much information in too little time.
Merchant also testified that her name was blacked out on the hard copy of the list of the nursing instructors' names distributed to new students in May 2005. However, in June, Merchant received from Pohlman a list of the classes she was assigned to teach. For the fall term of 2005, Merchant was assigned to teach a nurse's aide class, which she had not previously taught, and Merchant considered this teaching assignment to be a demotion. Merchant was also assigned to work as an assistant to a new faculty member in a clinical skills class in which Merchant had previously been the main instructor.
Another instructor who left Northeast at approximately the same time as Merchant testified in her deposition that Oertwich made negative comments about Merchant in meetings and that Oertwich had hired Oertwich's acquaintances as new faculty members even though they did not appear to be qualified to teach in the particular areas that they were assigned. The instructor also observed in her deposition that after Oertwich hired her own friends, she talked about downsizing the nursing department.
The evidentiary record also indicates that Merchant failed to comply with Northeast's requirement that she work toward a master's degree. Merchant began a master's program in the fall of 2004 but took a semester sabbatical in the spring of 2005. Merchant testified that under the rules of the program, a one semester sabbatical was permitted. Merchant ultimately quit the master's degree program entirely pursuant to a letter dated April 22, 2005. Prior to quitting the master's program, Merchant began to seek out new employment with Faith Regional Health Services. The record contains a recommendation for Merchant to work at Faith Regional Health Services dated April 8, 2005.
Viewed in the light most favorable to Merchant, the evidence does not support a constructive discharge claim based on intolerable working conditions.
First, we conclude that regardless of whether a reasonable person would conclude that the conditions of Merchant's employment were intolerable, as a matter of law Northeast's actions prior to April 2005 are not causally related to Merchant's resignation. Therefore Merchant cannot claim constructive discharge on the basis of such events.
Alleged intolerable conditions must be causally related to the employee's resignation. See
1 Barbara T. Lindemann Paul Grossman, Employment Discrimination Law ch. 20.IV.B at 1448-49 (4th ed. 2004). See, also, Wright v. Rolette County, 417 F.3d 879 (8th Cir. 2005) (conditions not intolerable where employee was subjected to serious sexual harassment prior to approximately 4-month long administrative leave, but not afterward, and employee resigned approximately 3 months after returning from administrative leave).
In the instant case, Merchant reported no problems after November 24, 2004, until April 2005 — or for in excess of 4 months. Further, the particular set of problems that arose on and prior to November 24 appears to have dissipated prior to the events of April 2005. Merchant did not report any more unfriendly exchanges between herself and Oertwich until April. Merchant did not have any additional problems related to providing students with weekly evaluations. Northeast brought in an employee assistance professional to smooth the transition process in March, Merchant did not report additional issues related to the transition process, and Merchant admitted that by January or February 2005, she had no remaining misgivings regarding the program changes.
Second, as a matter of law, regardless of whether the conditions of Merchant's employment were intolerable, most of the alleged misconduct cannot be attributed to Northeast. The element of intending to force the employee to quit is satisfied if the employer could have reasonably foreseen that the employee would quit as a result of its actions. Gavin v. Rogers Tech. Servs., 276 Neb. 437, 755 N.W.2d 47 (2008). However, a reasonable employee has an obligation not to assume the worst and not to jump to conclusions too quickly. Id. And an employee who quits without giving her employer a reasonable chance to work out a problem has not been constructively discharged. Id. When the employer is an entity with a hierarchical organizational structure, in order to show that the employer "intended" to force the employee to quit as the result of intolerable conditions, the employee must make the higher levels of management aware of such treatment and provide them the opportunity to remedy the situation.
[C]ourts generally require that the employee must give higher levels of management the opportunity to correct the situation before quitting and claiming constructive discharge. The evident purpose of the requirement is to allow the employer as an entity — as opposed to, for example, an individual (and perhaps aberrational) supervisor — to redress the problem. However, to avoid a finding of constructive discharge, the employer's response must be adequate. . . .
1 Lindemann Grossman, supra at 1446-47. See, also, Anda v. Wickes Furniture Co., Inc., 517 F.3d 526 (8th Cir. 2008) (summary judgment for employer where employer had no reasonable opportunity to correct intolerable conditions because employee did not report them); Brenneman v. Famous Dave's of America, Inc., 507 F.3d 1139 (8th Cir. 2007) ("reasonable" employee must provide employer chance to remedy problems).
The record shows that Merchant did not provide Northeast an opportunity to remedy potential problems in the evaluation process. The individuals involved in the evaluation process (Oertwich, Pohlman, and Weidner) were not part of Northeast's highest level of administration. Merchant subsequently complained about the evaluation process to Giddings, who appears to have been at a higher level of the administration. In response to Merchant's complaint about the evaluation done without her knowledge, Giddings informed Merchant that she could file a grievance. This would have resulted in an administrative proceeding. However, Merchant did not file a grievance regarding this evaluation or any other evaluation procedure. Further, even after the May 5, 2005, incident, Merchant did not file a grievance regarding the evaluation process. Because the administration told Merchant to follow a grievance procedure if she wanted redress for the allegedly unfair evaluation procedure and she did not follow the grievance procedure, Merchant did not provide Northeast, as an entity, an adequate opportunity to remedy this alleged problem. Therefore, as a matter of law, Merchant cannot show that Northeast "intended" to make Merchant's employment intolerable through the use of an allegedly unfair evaluation process.
Finally, viewed in the light most favorable to Merchant, the evidence does not show that the remaining conditions of employment were intolerable such that a reasonable person would resign. The changes to Merchant's teaching assignments followed naturally from the changes instituted to Northeast's nursing program, which changes were applied to all similarly-situated instructors. Merchant was informed that changes to the nursing program required that she and the other instructors with only a B.S.N. begin to work toward a master's degree to be able to continue instructing nursing courses. Another employee who held only a B.S.N. testified in her deposition that she was informed that she would be able to teach nonnursing courses if she did not work toward her master's degree. Merchant quit the master's program in April 2005, did not enroll in another master's program, and received her teaching assignments from Northeast in June. The changes to Merchant's teaching assignments were necessary in light of her failure to comply with the educational requirements to which all nursing instructors were subjected.
The other incidents which Merchant claimed made her working conditions intolerable included criticism of her teaching performance by a preceptor, an unknown individual crossing out her name on the instructor's list, and ongoing difficulties in her relationship with Oertwich. In the related context of employment discrimination law, "courts have rejected claims based merely on evidence of humiliation, criticism of performance, tension with a supervisor, stress and depression, overzealous supervision, or events that had occurred too far in the past." 1 Lindemann Grossman, supra at 1459-62. The individual incidents which Merchant described generally consisted of these types of things.
While the conditions of Merchant's employment may have been unpleasant, they were not intolerable. The only major circumstance relates to the change to her teaching assignments. That Merchant's teaching assignments changed after she failed to comply with Northeast's educational requirements and that there were instances where she was not treated favorably by Northeast employees is not intolerable in the context of constructive discharge.
CONCLUSION
We affirm the district court's grant of summary judgment because the evidence, viewed in the light most favorable to Merchant, does not create a genuine issue of material of fact as to whether Northeast has constructively discharged her by intentionally rendering the conditions of her employment intolerable.
AFFIRMED.