                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-3198
                                      ___________

Anton "Tony" Carlson; Paula Straub,        *
                                           *
      Plaintiffs - Appellants,             *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * District of North Dakota.
Cooperative Power Association,             *
                                           *      UNPUBLISHED
      Defendant - Appellee.                *
                                      ___________

                                 Submitted: June 13, 2000

                                     Filed: August 8, 2000
                                      ___________

Before LOKEN and BRIGHT, Circuit Judges, and HAND,* District Judge.
                             ___________

PER CURIAM.

      In January 1997, Cooperative Power Association (“Cooperative”) terminated
two employees, Anton Carlson and Paula Straub, for work-related misconduct. Carlson
and Straub filed separate actions in state court, asserting numerous claims under North
Dakota law and a claim for severance pay governed by ERISA. Cooperative removed
the two actions to federal court, where they were consolidated, and moved for summary



      *
       The HONORABLE WILLIAM BREVARD HAND, United States District
Judge for the Southern District of Alabama, sitting by designation.
judgment. The district court granted partial summary judgment dismissing Carlson’s
claim of age discrimination and Straub’s claim of sex discrimination under the North
Dakota Human Rights Act (“NDHRA”), N.D. CENT. CODE §§ 14-02.4-02, 14-02.4-03
(2000). After four days of trial, the district court dismissed plaintiffs’ remaining claims
at the close of plaintiffs’ evidence. Carlson and Straub appeal both rulings, arguing in
addition that the court erred in denying their post-trial motions because the district
judge rendered the trial fundamentally unfair by inappropriate behavior reflecting
extreme judicial bias. We affirm.

                                    I. Background

       Carlson and Straub worked at Cooperative’s Coal Creek Station near
Underwood, North Dakota. Carlson had worked for Cooperative since 1979, most
recently as an auxiliary operator. Straub had worked for Cooperative since 1982,
primarily as a mechanic. Both were at-will employees paid at an hourly rate.

        In late December 1996, a male warehouse clerk, Kim Gutknecht, mistakenly
gained access to newly-computerized files containing the salaries of high-level
management. Gutknecht told Straub, and they accessed the files together. Straub made
a list of some managers’ salaries and showed it to others, including Carlson. Carlson
made his own handwritten list and distributed photocopies to other employees, which
he later retrieved. When Cooperative became aware of this activity, it commenced an
investigation to retrieve the information, block further access, and determine who was
primarily responsible. During the investigation, Straub and Carlson were initially
reluctant to admit their involvement or divulge all they knew. At the end of the
investigation, Cooperative disciplined numerous employees, including Gutknecht, and
terminated three -- Carlson, Straub, and a younger male employee, Steve Bruestle. At
the time of his termination, Carlson was fifty-four years of age.




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       Carlson and Straub brought this action alleging state law claims of age and sex
discrimination, breach of implied contract, deceit, defamation, equitable estoppel, and
intentional infliction of emotional distress, plus an ERISA claim for severance pay. In
support of its motion for summary judgment, Cooperative argued only the state law
discrimination claims. The district court granted summary judgment on those claims,
adopting the Report and Recommendation of the magistrate judge. On the eve of trial,
Cooperative filed a motion in limine to bar all of plaintiffs’ evidence as irrelevant -- in
effect, a belated motion for summary judgment on plaintiffs’ remaining claims. The
district court denied that untimely motion and permitted plaintiffs to present their
evidence to the court and a jury. At the close of plaintiffs’ case, the court granted
Cooperative judgment as a matter of law and dismissed all remaining claims.

                           II. The Discrimination Claims

      First we address the dismissal of Carlson’s and Straub’s discrimination claims
under the NDHRA. We review the grant of summary judgment de novo. See Lundell
Mfg. Co. v. ABC, 98 F.3d 351, 358 (8th Cir. 1996).

       A. Carlson. Carlson alleges that he was wrongfully terminated on account of
his age. The parties’ summary judgment briefs to the district court focused primarily
on cases applying federal summary judgment standards under the ADEA. The
magistrate judge analyzed the summary judgment record under those standards,
assuming that Carlson had presented a prima facie case of age discrimination, but
recommending that summary judgment be granted because Carlson had insufficient
evidence that Cooperative’s proffered reasons for termination -- misuse of confidential
salary information and dishonesty during the ensuing investigation -- were a pretext for
age discrimination. After reviewing recent North Dakota cases, we conclude this mode
of analysis was error. Though the North Dakota Supreme Court generally follows
federal employment discrimination law in applying the NDHRA, that Court has
modified the familiar McDonnell Douglas burden-shifting paradigm:

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      [T]he plaintiff has the initial burden of proving by a preponderance of the
      evidence a prima facie case of discrimination. Establishment of the prima
      facie case creates a presumption that the employer unlawfully
      discriminated against the plaintiff. If the plaintiff meets his or her burden
      of persuasion . . . then . . . the burden of persuasion shifts to the
      employer to rebut the presumption of discrimination by a preponderance
      of the evidence that its action was motivated by one or more legitimate,
      nondiscriminatory reasons. If the employer fails to persuade the trier of
      fact that the challenged action was motivated by legitimate,
      nondiscriminatory reasons, the plaintiff prevails. If, however, the
      employer persuades the fact finder that its reasons were
      nondiscriminatory, the employer prevails.

Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 229 (N.D. 1993) (emphasis
added).

       In Schweigert, the appellate court reviewed a trial court’s findings and
conclusions after a bench trial. By shifting the burden of persuasion to the employer
after plaintiff proves a prima facie case, Schweigert obviously made it more difficult
to grant summary judgment to the employer at the pretext stage of the McDonnell
Douglas analysis, because the party with the burden of proof is rarely entitled to
summary judgment. Therefore, in cases after Schweigert, the North Dakota Supreme
Court has remained willing to affirm the grant of summary judgment in favor of
employers, but its analysis has consistently focused on whether the plaintiff satisfied
his or her burden to prove a prima facie case of discrimination. See Opp v. Source One
Mgmt., Inc., 591 N.W.2d 101, 105-08 (N.D. 1999); Miller v. Medcenter One, 571
N.W.2d 358, 361-63 (N.D. 1997); Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d
704, 709-10 (N.D. 1995).

       To establish a prima facie case of age discrimination, Carlson must show: (1)
that he is a member of a protected age group; (2) that he was performing the job at a

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level that met Cooperative’s legitimate expectations; (3) that he suffered an adverse
employment action; and (4) that he was replaced by a younger employee, or that
similarly situated younger employees were treated more favorably. See Schuhmacher
v. North Dakota Hosp. Ass’n, 528 N.W.2d 374, 378 (N.D. 1995). After careful review
of the summary judgment record, we conclude Carlson failed to prove that he met
Cooperative’s legitimate expectations when he disseminated confidential company
information and then failed to fully cooperate in the ensuing investigation. Carlson
argues that the salary information was not previously treated as confidential, but the
undisputed evidence is to the contrary. Carlson further argued to the district court that
“[i]t is not Tony’s burden to demonstrate that his conduct met [Cooperative’s]
legitimate expectations,” but North Dakota law is clearly to the contrary. See Hummel,
526 N.W.2d at 709-10. Finally, there is undisputed evidence that a similarly situated
younger employee received the same treatment, since Cooperative also fired Steve
Bruestle for disseminating the salary information. See Miller, 571 N.W.2d at 362
(plaintiff must offer evidence of disparate treatment in his prima facie case). Therefore,
we affirm the grant of summary judgment on this ground. See, e.g., Hall v. LHACO,
Inc., 140 F.3d 1190, 1193-94 (8th Cir. 1998) (court of appeals may affirm summary
judgment on any ground).

        B. Straub. We likewise affirm the grant of summary judgment dismissing
Straub’s sex discrimination claim on the ground that she did not establish a prima facie
case. Straub failed to meet Cooperative’s legitimate performance expectations, she
failed to introduce evidence that Cooperative treated her differently because of her sex,
and there is undisputed evidence that Carlson was replaced by a woman.

          III. Judgment as a Matter of Law on the Remaining Claims

      Straub and Carlson appeal the grant of judgment as a matter of law on their state
law claims for breach of contract, defamation, deceit, and equitable estoppel.


                                           -5-
Reviewing this issue de novo, we affirm the district court’s conclusion that plaintiffs
presented insufficient evidence to support these claims under North Dakota law.

        Plaintiffs do not appeal the dismissal of their ERISA claim for severance pay, but
in their judicial bias argument they sharply criticize the district court for not letting this
claim go to the jury because “there was both fact and law supporting this claim.” As
the district court noted in denying their post-trial motions, plaintiffs failed to put the
relevant ERISA plan into evidence. Moreover, the benefits summary document that
was put into evidence strongly suggests that Straub and Carlson were not eligible for
severance pay. This criticism of the district court is plainly without merit.

                   IV. The Issue of Judicial Bias or Misconduct

       Plaintiff Carlson was the first witness at trial. By the end of his lengthy
testimony, the district judge had become frustrated at the apparent lack of evidence to
support plaintiffs’ remaining claims. In addition to warning counsel for plaintiffs
outside the presence of the jury that these claims might never reach the jury -- an
appropriate warning, but something no trial lawyer likes to hear -- the judge by his own
admission lost his temper toward the end of Carlson’s redirect testimony and criticized
Carlson’s counsel in the presence of the jury. This was followed by lengthy
proceedings outside the presence of the jury, during which Carlson’s attorney made
offers of proof that further persuaded the judge that plaintiffs’ claims lacked substance.
However, at the conclusion of these proceedings, the judge denied Cooperative’s
motion for judgment as a matter of law, stating “I’m going to let [plaintiffs] complete
[their] record.” When the jury returned, the judge admitted to losing his temper and
stated, “I promise I will behave.” The trial then continued until the close of plaintiffs’
evidence some 430 transcript pages later.

      On appeal, plaintiffs argue that the district judge denied them a fair trial by being
abusive to counsel for Carlson, both outside and within the hearing of the jury; by

                                             -6-
making numerous rulings evidencing the court’s bias in favor of the defense; by
questioning witnesses and interrupting the trial with numerous comments that favored
the defense; by treating female witnesses and the only female attorney disparagingly;
and by exhibiting an injudicial lack of civility. After careful review of the entire record,
we conclude there was no reversible error because the alleged misconduct did not
affect the validity of the court’s summary judgment and JAML rulings, which properly
removed the entire case from the jury’s consideration. The judge’s comments during
trial reflected frustration over the fact that four trial days were being spent on claims
having insufficient support to submit to the jury. That is not judicial “bias.” See Liteky
v. United States, 510 U.S. 540, 555-56 (1994).

       There are nonetheless two aspects of this issue that we find worthy of further
comment. First, we agree with the district judge that he should not have lost his temper
with counsel for Carlson in front of the jury. In addition, we note that the judge took
an active role in questioning and interacting with the trial witnesses. While there is
nothing wrong with that, our comparison of the submissions by plaintiffs in support of
their post-trial motions, and the judge’s memorandum order reacting to those
submissions, suggests to us that the judge may have lost sight of the fact that trial
comments intended by a judge to be neutral and innocuous, or even helpful, may be
perceived by parties and trial counsel as biased, abusive, or disparaging. Second, at
various times the judge made remarks on the record, some in the presence of the jury,
using language that would charitably be called salty, and that many would consider
vulgar, particularly in a courtroom. We consider this type of language to be unbefitting
a federal judge.

       The judgment of the district court is affirmed.




                                            -7-
BRIGHT, Circuit Judge, concurring and dissenting.

       I concur in the per curiam opinion except as to Carlson’s age discrimination
case. After a careful review of the North Dakota case law, I do not agree with the
majority that Carlson failed to satisfy the requirements of his prima facie case for age
discrimination under the North Dakota Human Rights Act (“NDHRA”). Summary
judgment is only proper where the evidence, when viewed in the light most favorable
to the nonmoving party, indicates that no genuine issue of material fact exists and that
the moving party is entitled to judgment as a matter of law. See Henerey ex rel.
Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999).

        Here, a genuine dispute exists regarding Cooperative’s legitimate expectations
of its employees. Whether or not Carlson’s distribution of salary information failed to
meet Cooperative’s legitimate expectations is a question of fact for a jury. The
magistrate made no finding regarding Carlson’s failure to meet Cooperative’s
legitimate expectations but did find that Carlson had established a prima facie case.
The parties dispute whether the employees were on notice that salary information was
confidential, either as a matter of company policy or practice. The record shows that
the hourly wage rates for employees paid by the hour were widely disseminated at the
plant. Thus, it cannot be said, as a matter of law, that Carlson’s actions in this regard
failed to meet the legitimate expectations of his employer.1 In my view, we should not
affirm the district court’s grant of summary judgment against Carlson on the grounds
suggested by the majority.




      1
       Furthermore, the parties do not dispute the fact that Cooperative replaced
Carlson with a younger person.

                                          -8-
      Accordingly, summary judgment on this issue was improper, and I would reverse
and remand on Carlson’s age discrimination claim.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -9-
