## Facts

- Catherine Swenson began working for Northern Crop Insurance, Inc. (NCI) in February 1986 as a clerk/secretary.
- After the office manager resigned in December 1986, he recommended Swenson as his replacement.
- Swenson alleged NCI officer and general manager John Krabseth told her NCI needed “a man fresh out of college” for the job, not a woman.
- NCI’s board approved Swenson’s promotion to office manager; her pay increased from $7.50/hour to $10.00/hour, about $5,000 per year less than her male predecessor earned in the same position.
- Swenson alleged Krabseth made repeated sexist and derogatory comments, asserted a man belonged in her job, and stated men should be paid more because they supported families.
- Swenson alleged Krabseth threatened to replace her with a man because he would not tolerate a woman in management making a high salary.
- During an organizational reorganization, Swenson alleged she was demoted back to clerk/secretary at $6.00/hour, $1.50/hour less than she previously earned in that role, while two young men were hired into new roles at higher pay.
- NCI and Krabseth asserted the manager position was phased out, and Swenson was not qualified for the newly created positions.
- Swenson alleged stress aggravated her recovering-alcoholic condition, leading her to seek additional counseling and to request extra time at lunch to attend Alcoholics Anonymous.
- Swenson alleged Krabseth, aware of her emotional vulnerability, deliberately avoided her and refused to discuss her employment.
- It was undisputed that NCI never had ten or more employees on its payroll during Swenson’s employment.

## Issues

1. Whether NCI and Krabseth could be liable for sex discrimination under N.D.C.C. ch. 14-02.4 when NCI undisputedly had fewer than ten employees.
2. Whether Swenson’s equal-pay and wage-discrimination theories were barred to the extent they depended on the same statutory “employer” coverage requirement.
3. Whether, viewing the evidence favorably to Swenson, the alleged conduct could allow a reasonable jury to find intentional infliction of emotional distress (IIED), making summary judgment improper.

## Decision

- The court affirmed summary judgment dismissing the statutory gender-discrimination claim because the then-applicable statute covered only employers with ten or more employees, and NCI did not meet that threshold.
- The court affirmed summary judgment dismissing equal-pay and wage-discrimination claims to the extent they relied on the same statutory coverage requirement.
- The court reversed summary judgment on the IIED claim, holding a reasonable jury could find the alleged course of conduct extreme and outrageous.
- The court remanded for further proceedings on the IIED claim.

## Legal Principles

- Statutory employment-discrimination liability depends on meeting the statute’s definition of “employer”; when coverage requires a minimum number of employees and the employer falls below that number, statutory claims fail as a matter of law.
- On summary judgment, courts must view the record in the light most favorable to the nonmoving party.
- IIED requires conduct so extreme and outrageous as to go beyond all possible bounds of decency; where reasonable jurors could differ, the question is for the jury.
- In evaluating IIED at the summary-judgment stage, alleged conduct may be assessed cumulatively, including repeated discriminatory comments, threats, adverse job actions, and the actor’s awareness of the plaintiff’s particular vulnerability.

## Conclusion

The court held that NCI’s small size placed it outside the statutory coverage of North Dakota’s then-existing anti-discrimination provisions, requiring dismissal of Swenson’s statutory discrimination and wage-based claims, but it allowed her IIED claim to proceed because a jury could reasonably find the alleged sexist harassment, threats, and demotion—especially given her known vulnerability—extreme and outrageous.


Swenson v. N. Crop Ins., Inc., 498 N.W.2d 174 (N.D. 1993)