author: VANDE WALLE, Chief Justice.

text:
    2001 ND 67
    MIDWESTERN ENTERPRISES, INC., Plaintiff and Appellant, v. Wayne K. STENEHJEM, North Dakota Attorney General, Defendant and Appellee.
    No. 20000168.
    Supreme Court of North Dakota.
    April 12, 2001.
    John J. Mahoney, Mahoney & Mahoney, Center, for plaintiff and appellant.
    David W. Huey, Assistant Attorney General, Bismarck, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Midwestern Enterprises, Inc. (“Midwestern”) appealed the district court’s summary judgment in favor of the Attorney General, concluding Midwestern’s Lucky Strike two-minute phone card dispensing device is a gambling apparatus as defined by N.D.C.C. § 12.1-28-01(3) and a coin-operated gaming device as defined by N.D.C.C. § 12.1-28-02(4)(a). We affirm.

I

[¶ 2] Midwestern placed six Lucky Strike two-minute phone card dispensing devices in Minot and West Fargo in April and May of 1999. The Lucky Strike devices are distributed nationally by PrePaid Plus, Inc. of Austin, Texas. Midwestern is the exclusive distributor of Lucky Strike devices in North Dakota.

[¶ 3] The Lucky Strike device dispenses a perforated slip of paper for each dollar inserted. Half of the slip of paper is the two-minute pre-paid phone card, the other half is a game piece giving the buyer a chance to win up to $500 in cash.

[¶4] According to a product description from PrePaid Plus, Inc., the Lucky Strike device “closely resembles a Las Vegas style casino machine.” The Lucky Strike device is the size and shape of a slot machine with a screen that displays a video graphic of three spinning wheels projected as a grid of nine symbols aligned in three horizontal and three vertical rows. When money is inserted in the machine and the “dispense” button is pushed, the wheels spin, the lights blink, and the music plays. Cash prizes are awarded if the symbols are aligned in specific configurations. The combinations are determined randomly by a cartridge in the device. The configuration of the spinning wheels image is printed by an internal printer onto the half of the slip of paper that is the game piece. Winning combinations are noted on the printed game piece. Winners can redeem their game piece for cash from the clerk at the facility where the Lucky Strike device is located.

[¶ 5] The pre-paid phone card on the other half of the slip of paper is pre-printed on the roll of paper in the machine. The phone card side lists a toll-free phone number and code number for use to access the two-minute phone call to anywhere in the United States; however, the phone card can only be used once, even if the phone call lasts for less than two minutes.

[¶6] The Lucky Strike device accepts one, five, ten and twenty dollar bills; however it does not return change. Once a twenty dollar bill is inserted, the customer cannot buy one card and get nineteen dollars in change; rather, the customer can push the dispense button on the front of the machine twenty times for twenty two-minute phone cards and twenty chances to win cash prizes.

[IF 7] The winning grid configurations are listed on the upper left-hand corner of the Lucky Strike device. Each cartridge contains 7,500 game pieces with 1,288 winners for a total of $4,875 in prizes. This is a sixty-five percent pay out. The $4,875 in prizes are distributed as listed below.

Dollar

Winners Odds Number Value

$1 1:7.5 1,000 $1,000

$5 1:41.6 180 $ 900

$10 1:94 80 $ 800

$25 1:500 15 $ 375

$50 1:1250 6 $ 300

$100 1:1500 5 $ 500

$500 1:3750 2 $1,000

1,288 $4,875

- [¶ 8] Out of the total of $7,500 inserted to play the entire cartridge, $4,875 is paid out as cash prizes. PrePaid Plus, Inc. is paid $1,125, or $0.15 per phone card, to handle the phone time, the cartridge loading, the free entries, and to offer a toll-free number for customer service. This leaves $1,500 per cartridge, $0.20 per card, of gross profits to be split between Midwestern and the facility where the Lucky Strike device is placed.

[¶ 9] The rules for the Lucky Strike game and the odds of winning are posted on each machine. A supply of postage-paid postcards are available on the side of the machine that can be used to send for a free game piece with a limit of one per request.

[¶ 10] Although one location reported only a few phone cards were discarded, a high percentage of the phone cards were reported discarded in the other locations in North Dakota according to affidavits from personnel at the locations. In four of the locations with a Lucky Strike device, the facility owners reported the unused and discarded phone cards were placed in a basket and made available, free for the taking. Despite the availability of free phone cards, people continued to insert dollar bills into the Lucky Strike device that dispensed phone cards and a chance to win cash.

[¶ 11] Midwestern communicated with the North Dakota Attorney General’s office regarding the legality of the Lucky Strike device from late March to July of 1999. On July 19,1999, the Attorney General wrote a letter to Midwestern stating the Lucky Strike devices were illegal under North Dakota law. On July 20, 1999, Midwestern filed a complaint seeking declaratory and injunctive relief. Midwestern also sought, and the trial court granted, a temporary restraining order and an order to show cause commanding the Attorney General to desist and refrain from any action against the Lucky Strike devices. On August 12, 1999, the Attorney General sought and obtained a restraining order and order to show cause restraining Midwestern from disposing of any business records. One hearing on both of the orders to show cause was held on August 24, 1999. The district court subsequently vacated both temporary restraining orders.

[¶ 12] The parties agreed a justiciable controversy existed and a declaratory judgment proceeding would be appropriate. Both parties submitted motions for summary judgment. A hearing was held and the district court subsequently entered judgment declaring the Lucky Strike device is a gambling apparatus as defined by N.D.C.C. § 12.1-28-01(3) and a coin-operated gaming device as defined by N.D.C.C. § 12.1 — 28—02(4) (a). The district court ordered Midwestern pay costs and disbursements in the sum of $1,435.58.

II

[¶ 13] Summary judgment is a procedure for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts or if resolving factual disputes would not alter the result. DeCoteau v. Nodak Mut Ins. Cq., 2000 ND 3, ¶ 7, 603 N.W.2d 906. On appeal from a district court’s summary judgment, questions of law are fully reviewable. Jones v. Barnett, 2000 ND 207, ¶ 6, 619 N.W.2d 490. In this case, the material facts are undisputed.

III

[¶ 14] Midwestern argues the trial court was incorrect in ruling the Lucky Strike device was a “gambling apparatus” as defined by N.D.C.C. § 12.1-28-01(3) because the phone card sales and sweepstakes promotion do not constitute gambling as defined by N.D.C.C. § 12.1-28-01(1) since no consideration is given for the chance to win a cash prize.

[¶ 15] Section 12.1-28-01(3), N.D.C.C., defines a gambling apparatus to include devices used or usable in gambling activity-

“Gambling apparatus” means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons, or gambling by a person involving the playing of a machine. Gambling apparatus does not include an amusement game or device as defined in section 53-04-01.

In order to determine if a device is used for the playing phases of a gambling activity we first consider Midwestern’s issue of whether or not the Lucky Strike game is a gambling activity.

[¶ 16] Section 12.1-28-01(1), N.D.C.C., defines gambling.

“Gambling” means risking any money, credit, deposit, or other thing of value for gain, contingent, wholly or partially, upon lot, chance, the operation of gambling apparatus, or the happening or outcome of an event, including an election or sporting event, over which the person taking the risk has no control. Gambling does not include:
a. Lawful contests of skill, speed, strength, or endurance in which awards are made only to entrants or to the owners of entries; or
b. Lawful business transactions, or other acts or transactions now or hereafter expressly authorized by law.

[¶ 17] Section 12.1-28-01(1), N.D.C.C., defines gambling as risking something of value for gain contingent on chance, over which the person taking the risk has no control. The three elements of gambling are generally recognized as consideration, prize, and chance. Middlemas v. Strutz, 71 N.D. 186, 189, 299 N.W. 589, 591 (N.D.1941); 29 A.L.R.3d 888, Promotion Schemes of Retail Stores as Criminal Offense Under Anti-Gambling Laws § 3 (1970).

[¶ 18] Midwestern claims the element of consideration is missing from the Lucky Strike device because for every dollar spent the customer receives a two-minute emergency phone card. Therefore, Midwestern argues, the fact the customer may also receive an additional cash prize is an extra bonus because the dollar was consideration paid for the phone card, not for the chance to win a cash prize.

[¶ 19] Similar arguments were made in a series of cases decades ago involving vending machines that dispensed gum or mints along with a chance to win something additional of value. For example, in State v. Apodoca, 32 N.M. 80, 251 P. 389, 389 (1926) the appellant argued “the player operating the machine in question is not engaged in a game of chance, because, while he enjoys the possibility of winning, there is no chance of loss, since, for each nickel deposited, he is sure to obtain value in chewing gum.” The New Mexico court rejected this argument, holding the vending machine was a gambling device. Id. Other courts agreed a machine that dispenses merchandise represented to be the value of the money inserted, plus at uncertain intervals an additional varying amount of money or something else of value by chance, is a gambling device. 38 Am. Jur.2d Gambling § 104 (1999). See, e.g., Boynton v. Ellis, 57 F.2d 665 (10th Cir.1932); Mueller v. Wm. F. Stoecker Cigar Co., 89 Neb. 438, 131 N.W. 923 (1911); State v. Branney, 62 Wyo. 40,160 P.2d 972 (1945). Since the return to the customer is therefore dependent on an element of chance, the device was determined to be a gambling device, even if the player is assured something of value for his money for each play. 38 Am.Jur.2d Gambling § 104 (1999). See, e.g., Kirk v. Morrison, 108 Fla. 144, 146 So. 215 (1933); Ferguson v. State, 178 Ind. 568, 99 N.E. 806 (1912); Meyer v. State, 112 Ga. 20, 37 S.E. 96 (1900).

[¶ 20] According to Nelson Rose, a law professor who studies gambling law, early courts were split on whether the dispensing of mints with every nickel played converted the slot machine into a legitimate vending machine, “until it was pointed out that players continued to put in their nickels long after the mints had run out.” I. Nelson Rose, Gambling and the Law 89 (1986). At four of the North Dakota locations with the Lucky Strike devices, personnel reported the phone cards were often discarded. Discarded phone cards were placed in a basket and were available free for the taking. Despite this ready' availability of two-minute phone cards, people continued to put their dollars into the Lucky Strike devices. Since phone cards were available free for the taking, it is logical to conclude people paid their dollars for a chance to win cash. The similarity to the gum and mint cases is obvious.

[¶ 21] The Mississippi Court of Appeals recently determined a very similar machine called the Lucky Shamrock was a slot machine. Mississippi Gaming Commission v. Six Electronic Video Gambling Devices, — So.2d -, 2001 WL 19737 (Miss.App. Jan 09, 2001). The Lucky Shamrock, for one dollar, dispenses a two-minute emergency long distance calling card and a game piece. Id. The Lucky Shamrock simulates a slot machine, with spinning nine squares, lights and music. Id. Winning game pieces pay one dollar up to five hundred dollars, payable by the clerk at the store. Id. It is illegal to possess a “slot machine” in Mississippi in areas not authorized for casinos. Prohibited by Miss.Code Ann. § 97-33-7 is:

Any slot machine other than an antique coin machine as defined in Section 27-27-12 which delivers, or is so constructed as that by operation thereof it will deliver to the operator thereof anything of value in varying quantities, in addition to the merchandise received, and any slot machine ... that is constructed in such manner as that slugs, tokens, coins or similar devices are, or may be, used and delivered to the operator thereof in addition to merchandise of any sort contained in such machine, is hereby declared to be a gambling device.

[¶ 22] The Mississippi Court of Appeals concluded “a slot machine that delivers no guaranteed product at all is illegal, and so is one that always delivers specific merchandise and also something else of value in varying quantities. It is the possible prize that makes use of the machine of great interest to a class of customers as well as to the [Mississippi Gaming] Commission.” Six Electronic Video Gambling Devices, — So.2d -, 2001 WL 19737 (Miss.App. Jan 09, 2001).

[¶ 23] The Court of Appeals of California also determined the VendaTel machine which dispenses with each dollar paid a five-minute phone card and a game piece for a chance to win up to $100, was a slot machine. People ex rel. Lockyer v. Pacific Gaming Technologies, 82 Cal.App.4th 699, 98 Cal.Rptr.2d 400, 402 (2 Dist.2000). California statute makes it illegal to possess a slot machine and California Penal Code § 330b(2) defines a slot machine as any device:

that is adapted, or may readily be converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object, or by any other means, such machine or device is caused to operate or may be operated, and by reason of any element of hazard or chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money ... or thing of value ... which may be exchanged for any money ... or which may be given in trade, irrespective of whether it may, apart from any element of hazard or chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value.

[¶ 24] While Pacific Gaming Technology claimed the VendaTel fit an exception to the statute defining slot machines because it dispensed a five-minute phone card with every dollar inserted, the court responded “[s]ince the machine also dispenses a chance to win the sweepstakes, it gives more than the merchandise — which means the sum deposited is not the ‘exact consideration’ for the telephone card.” (Citations omitted; emphasis in original.) Pacific Gaming Technologies, 98 Cal. Rptr.2d 400, 403 (2 Dist.2000).

[¶ 25] Midwestern relies on an earlier Mississippi case which held a telephone card with a “scratch-and-win” game piece on one side with a chance to win prizes ranging from $1 to $50,000 was not a lottery. Mississippi Gaming Commission v. Treasured Arts, Inc. 699 So.2d 936, 940 (Miss.1997). No machine was used to dispense this phone card; therefore the issue was not whether the dispensing machine was a slot machine but rather whether the calling card was a lottery under Mississippi law. The Mississippi Supreme Court determined the Treasured Arts phone card was not a lottery because there was no proof the amount paid for the telephone card was more than the retail price of the telephone time. Id. at 940. In view of the above discussion we find the Mississippi case unpersuasive.

[¶ 26] The Lucky Strike device dispenses a two-minute emergency phone card plus a chance to win up to $500 in cash for every dollar paid. Putting a dollar into a Lucky Strike device is “risking any money, credit, deposit, or other thing of value for gain, contingent, wholly or partially, upon lot, chance, the operation of gambling apparatus, or the happening or outcome of an event, including an election or sporting event, over which the person taking the risk has no control,” and therefore, according to N.D.C.C. § 12.1-28-01(1), it is gambling.

[¶ 27] Midwestern also argues there is no consideration because there is no purchase necessary to play the game. Upon sending the postage-paid postcard or making a written request to the address on the side of the machine, a person can get one free game piece per request. Because of this availability of free play, Midwestern claims the Lucky Strike game is a promotional sweepstakes, not gambling. Midwestern urges us to conclude there is no basis for finding consideration from a person who pays nothing merely because other people voluntarily pay something. It contends the obvious purpose of the sweepstakes promotion is to increase the sales of phone cards.

[¶ 28] But, the limited availability of free play does not exempt the Lucky Strike game from being defined as gambling. Sweepstakes that are commonplace as marketing promotion tools are significantly different than the Lucky Strike game. The high pay-out rate of the Lucky Strike game is a distinguishing feature because it goes to the true purpose of the game.

[¶ 29] Midwestern offers one free Lucky Strike game piece per mailed request and on this basis claims, because no purchase is necessary, it is as acceptable as a retail promotional sweepstakes. However it does not follow that simply because low-stakes, temporary promotional sweepstakes with pay-out rates of one-half of one percent that offer free play are not pursued as lotteries, we must conclude high-stakes, permanent games with payout rates of sixty-five percent are immune from the definition of a lottery because they also offer limited free play. North Dakota has not established, by either legislation or judicial ruling, an exception to the gambling and lottery definitions for promotional sweepstakes. A number of states, rather than finding gambling is acceptable because it has one characteristic of limited free play in common with promotional sweepstakes, have concluded retail promotions violate gambling and lottery statutes despite the availability' of limited free play. See Boyd v. Piggly Wiggly Southern, Inc., 115 Ga.App. 628, 155 S.E.2d 630 (1967); Kroger Co. v. Cook, 24 Ohio St.2d 170, 265 N.E.2d 780 (1970); State ex rel. Schillberg v. Safeway Stores, Inc., 75 Wash.2d 339, 450 P.2d 949 (1969).

[¶ 30] Furthermore, the argument that the availability of limited free play means the Lucky Strike game is not gambling is weakened by North Dakota’s definition of a lottery which does not require that all participants pay to play. N.D.C.C. § 12.1-28-01(2).

“Lottery” means any plan for the distribution of a thing of value, whether tangible or intangible, to a person or persons selected by chance from among participants, some or all of whom have given a consideration for the chance of being selected. (Emphasis added.)

[¶ 31] It is adequate to be defined as a lottery if some of the participants have given a consideration for the chance to be selected as a winner. According to Midwestern’s response to interrogatory questions, only seven people requested free Lucky Strike game pieces by mail in the three months the devices were operated in North Dakota. Only two of these were members of the general public, the remaining five being police officers or people associated with the gaming industry. Midwestern answered they did not know if any free game pieces were distributed on site, but that practice was eliminated after consultation with the Attorney General. Therefore, nearly all of the participants gave “a consideration for the chance of being selected.” N.D.C.C. § 12.1-28-01(2).

[¶ 32] Despite Midwestern’s characterization of the Lucky Strike game as a promotional sweepstakes with the purpose to increase the sales of phone cards, people continued to play even when phone cards were available free of charge. People were not paying their dollars for phone cards but rather, were paying their dollars for a chance to win up to $500 in cash. The element of consideration is not missing from the Lucky Strike game.

[¶ 33] The plain language of N.D.C.C. § 12.1-28-01(3) prohibits devices that are “used or usable in the playing phases of any gambling activity.” The Lucky Strike game is gambling as defined by 12.1-28-01(1), as discussed above; therefore it is a gambling apparatus on the basis of being used for gambling. While not every device which might conceivably be used for gambling, but is not, would be a gambling apparatus, the Lucky Strike device is designed like a slot machine and is used for gambling. Therefore, the Lucky Strike device is a gambling apparatus as defined by N.D.C.C. § 12.1-28-01(3).

IV

[¶ 34] The Lucky Strike device is also a “coin-operated gaming device” as defined by N.D.C.C. § 12.1-28-02(4).

a. As used in subsection 3 but with the exceptions provided by subdivision b
of this subsection, the term “coin-operated gaming device” means any machine that is:
(1) A so-called “slot” machine that operates by means of the insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens; or
(2) A machine that is similar to machines described in paragraph 1 and is operated without the insertion of a coin, token, or similar object.
b. The term “coin-operated gaming device” does not include a bona fide vending or amusement machine in which gambling features are not incorporated as defined in section 53-04-01, or an antique “slot” machine twenty-five years old or older that is collected and possessed by a person as a hobby and is not maintained for the business of gambling.

[¶ 35] Midwestern argues the Lucky Strike device qualifies for the exception of N.D.C.C. § 12.1-28-02(4)(b) because it is a bona fide vending machine “in which gambling features are not incorporated.” Once again using the analogy to promotional sweepstakes, Midwestern claims the Lucky Strike device is not gambling because sweepstakes offered by soft drinks sold in vending machines have not been found to violate N.D.C.C. § 12.1-28-02(4). This analogy fails, as previously explained, because the Lucky Strike game is very different from a low pay-out, temporary promotion. The Lucky Strike device does not qualify for the N.D.C.C. § 12.1-28-02(4)(b) exception because gambling features are incorporated in the Lucky Strike device.

[¶ 36] The Lucky Strike device incorporates visual and audio “gambling features.” Also, the Lucky Strike device randomly dispenses a chance for cash prizes with each dollar risked, with a pay-out rate of sixty-five percent. The Lucky Strike device accepts one, five, ten and twenty dollar bills in payment for the two-minute phone cards, but does not give change. These are functional “gambling features” incorporated into the Lucky Strike device.

[¶ 37] The Lucky Strike device is designed as a slot machine that operates by means of insertion of dollar bills and “by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash” and therefore is a “coin-operated gaming device” as defined by N.D.C.C. § 12.1-28-02(4)(a). The Lucky Strike device incorporates “gambling features” and therefore does not qualify for the exception described by N.D.C.C. § 12.1 — 28—02(4)(b).

[¶ 38] We affirm the judgment of the district court.

[¶ 39] SANDSTROM, KAPSNER, MARING and NEUMANN, JJ.

      . " ‘Amusement games or devices’ includes such coin-operated games and devices as electric ray guns, music boxes, picture boxes, bumperball or pinball, and other similar coin-operated miniature games or devices, whether or not they show a score, but does not apply to any machine which may constitute a lottery under the laws of this state." N.D.C.C. § 53-04-01(1).


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2001 ND 73
    Joyce DAHLBERG, Plaintiff and Appellant, v. LUTHERAN SOCIAL SERVICES OF NORTH DAKOTA, and Mary J. Weiler, Defendants and Appellees.
    No. 20000152.
    Supreme Court of North Dakota.
    April 17, 2001.

      Timothy P. Hill, Hill Law Office, Fargo, for plaintiff and appellant.
    Benjamin E. Thomas, Wold Johnson, P.C., Fargo, for defendants and appellees.
   MARING, Justice.

[¶ 1] Joyce Dahlberg appealed from a summary judgment dismissing her claims against Lutheran Social Services of North Dakota and Mary J. Weiler for breach of contract, retaliatory discharge, and intentional infliction of emotional distress. We hold Lutheran Social Services was not contractually required to follow a progressive discipline policy in terminating Dahlberg’s employment; the defendants’ conduct was not so extreme and outrageous as to satisfy the threshold requirement for a claim for intentional infliction of emotional distress; and Dahlberg failed to establish a prima facie case for retaliatory discharge under N.D.C.C. § 34-01-20. We affirm.

I

[¶ 2] In May 1996, Lutheran Social Services hired Dahlberg for an unspecified term as a therapeutic recreational therapist at Luther Hall, a residential treatment center for troubled children and adolescents. Dahlberg’s duties at Luther Hall included organizing recreational activities for the residents.

[¶ 3] When Lutheran Social Services hired Dahlberg, she received an Employee Handbook which stated:

The LSS Employee Handbook is provided for use by agency employees. This Handbook is not intended to be a contract. Interpretation of information contained in this handbook remains the right of the agency. Employees of Lutheran Social Services of North Dakota are employees at will. As such, the employee may resign at any time for any reason, although at least two weeks notice is expected; and, conversely, LSS/ND may terminate the employee for any reason or no reason. Also, if conditions warrant, the agency reserves the right to make changes and/or modifications in the Handbook without notice.

[¶ 4] Dahlberg acknowledged signing an employee handbook receipt and agreement which provided:

I have read and understand the Employee Handbook of Lutheran Social Services of North Dakota and I understand and accept the policies and procedures as part of my employment relationship with the agency. I have received a copy of the Employee Handbook and understand that this handbook or the policies contained in the handbook may be amended from time to time by the agency without notice. It is understood that this handbook does not create a contract and both Lutheran Social Services of North Dakota and I have the right to terminate the employment relationship at any time for any reason, although I agree that wherever possible I will give at least two weeks notice.

[¶ 5] In March 1997, Lutheran Social Services adopted a three-step progressive discipline policy, which defined progressive discipline as a sequence of increasingly serious actions taken in response to unacceptable behavior and said the steps outlined in the procedure were intended to assist employees in correcting work-related performance. The policy identified the three steps of progressive discipline as a first notice, a second notice, and termination. The policy said a supervisor must follow principles of equity in imposing progressive discipline, and the discipline must fit the infraction. The policy said employees must be informed of the action taken and why, and employees must be given the opportunity to respond and explain their behavior. The policy indicated progressive discipline is attempted whenever possible, but serious breaches of conduct may result in immediate suspension without using the progressive discipline procedure.

[¶ 6] On August 19, 1997, Dahlberg was supervising several residents during a recreational activity at Luther Hall. One of the residents left the recreational activity, and Dahlberg pursued that resident, leaving the other residents unattended. Mary Weiler, the Administrative Director of Luther Hall, prepared a summary of the incident and a written statement of employee performance concerns, a first notice under the progressive discipline procedure, which cited lack of judgment related to supervision of residents, leaving the building without communicating supervision needs to the residential specialist, lack of decision making in a crisis situation, and lack of initiative in cooperative working relationships.

[¶ 7] In October 1997, Dahlberg was involved in an incident in which a resident at Luther Hall was found in possession of a confidential list of names and home addresses of Luther Hall staff members. The resident reported she had obtained the list from a drawer in Dahlberg’s desk while being supervised by Dahlberg. Weiler investigated the incident, and she prepared a report and a second notice under the progressive discipline procedure, which cited Dahlberg’s lack of good judgment regarding supervision of a resident.

[¶ 8] According to Dahlberg, in November 1997 she began making verbal reports to Weiler regarding what Dahlberg “believed to be violations or suspected violations of law pertaining to abuse of residents.” On December 18, 1997, Dahlberg wrote Weiler a letter “concerning inappropriate touching by several residents during different time frames involving supervision by different staff.” According to Dahl-berg, from December 1997 through the spring of 1998 she persisted in her “insistence that allegations of abuse be investigated,” and she began experiencing a marked change in how she was treated by management and her supervisors. She claimed her work environment became “hostile.”

[¶ 9] In April 1998, Dahlberg was involved in another incident at Luther Hall. According to an April 29, 1998 summary by Amy Dahlin, on April 22 Dahlberg left Luther Hall with a 13-year-old female resident without informing a supervisor, Dahlberg provided the resident with eaffei-nated pop, and Dahlberg returned the resident twenty to thirty minutes after the resident’s scheduled bedtime. On April 29, Weiler suspended Dahlberg without pay until May 7, 1998, when a meeting was scheduled with Dahlberg’s immediate supervisor, Brent Larson, to determine her status. Weiler prepared a third written employment performance concern regarding Dahlberg, and Dahlberg was told not to return to Luther Hall during the suspension. However, Dahlberg returned to Luther Hall later on April 29, and talked to some residents. On May 11, 1998, the president of Lutheran Social Services, Tony Ingle, terminated Dahlberg’s employment.

[¶ 10] Dahlberg sued Lutheran Social Services and Weiler for breach of contract, retaliatory discharge, and intentional infliction of emotional distress. The trial court granted summary judgment dismissing all three of Dahlberg’s claims, and she appealed.

II

[¶ 11] We review this appeal in the posture of summary judgment, which is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Reed v. University of North Dakota, 1999 ND 25, ¶ 7, 589 N.W.2d 880. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. Although the party seeking summary judgment must initially demonstrate there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings or upon unsupported conclu-sory allegations. Engel v. Montana Dakota Utils., 1999 ND 111, ¶ 7, 595 N.W.2d 319. A party resisting a summary judgment motion must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Id. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Id. Issue of fact may be appropriate for summary judgment if reasonable minds can draw only one conclusion from the evidence. Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101.

III

[¶ 12] Dahlberg argues she was terminated in violation of her employment contract with Lutheran Social Services. She argues Lutheran Social Services’ progressive discipline policy was part of her employment contract, and Lutheran Social Services failed to follow that policy in terminating her.

[¶ 13] Under N.D.C.C. § 34-03-01, employment without a definite term is presumed to be at will, and an at-will employee may be terminated with or without cause. See e.g., Jose v. Norwest Bank, 1999 ND 175, ¶ 10, 599 N.W.2d 293. By contract, however, the parties may modify the at-will presumption and define their contractual rights regarding termination. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 8, 610 N.W.2d 53. An employer may contractually modify the at-will presumption with an employee handbook or personnel policy manual. Eldridge v. Evangelical Lutheran Good Samaritan Soc., 417 N.W.2d 797, 799-800 (N.D.1987).

[¶ 14] The construction of an employment contract to determine its legal effect is a question of law, and on appeal, we will independently examine and construe the contract to determine if the trial court erred in its interpretation. Eldridge, 417 N.W.2d at 799. We construe employment contracts, including handbooks and policies, as a whole to determine the parties’ intent. See Jose, 1999 ND 175, ¶ 11, 599 N.W.2d 293; Olson v. Souris River Telecomms. Co-op., Inc., 1997 ND 10, ¶ 8, 558 N.W.2d 333; Bykonen v. United Hospital, 479 N.W.2d 140, 141 (N.D.1992); Eldridge, 417 N.W.2d at 799; Bailey v. Perkins Rests., Inc., 398 N.W.2d 120, 121 (N.D.1986). An explicit and conspicuous disclaimer in an employee personnel policy manual, stating no contract rights exist or the policies are not intended to create contractual rights, demonstrates the employer’s intent that the manual is only a guide for the employee. See Jose, at ¶ 11; Bykonen, at 142; Eldridge, at 800-01; Bailey, at 123.

[¶ 15] Dáhlberg’s employment at Lutheran Social Services was for an indefinite term and was presumed to be at will under N.D.C.C. § 34-03-01. Lutheran Social Services’ employment handbook expressly stated it was “not intended to be a contract,” and Lutheran Social Services “may terminate the employee for any reason or no reason.” Lutheran Social Services communicated Dahlberg’s at-will status to her in an employee handbook and receipt agreement, which Dahlberg acknowledged signing and which said she understood the handbook or policies could be amended without notice, the handbook was not a contract, and both Lutheran Social Services and she had the right to terminate the employment relationship at any time for any reason.

[¶ 16] Dahlberg nevertheless argues Lutheran Social Services’ progressive discipline policy creates an ambiguity in her employment relationship, because that policy was promulgated after the employee handbook, it was not specifically incorporated into the handbook, and it did not state it was not a part of the employment contract. Dahlberg argues Lutheran Social Services was contractually bound to follow the progressive discipline policy in terminating her employment.

[¶ 17] Lutheran Social Services’ employee handbook specifically said “the agency reserves the right to make changes and/or modifications in the Handbook without notice.” The handbook contained a specific and clear disclaimer, stating it was not intended to be a contract and Lutheran Social Services could terminate an employee for any reason or no reason. Dahlberg acknowledged signing an employee handbook receipt with similar language. The progressive discipline policy was part of Dahlberg’s employment relationship with Lutheran Social Services to assist in documenting and correcting her work performance, and the progressive discipline policy did not include any specific language overriding her at-will status. Although Lutheran Social Services could have included a specific disclaimer in the progressive discipline policy, we do not believe that failure raises a reasonable inference that Lutheran Social Services intended the progressive discipline policy to override the at-will presumption preserved in the unambiguous language of the handbook and Dahlberg’s signed acknowledgment that she received the handbook. See Bykonen, 479 N.W.2d at 142 (stating failure to include disclaimer in policy manual did not raise reasonable inference employer intended to override at-will presumption unambiguously preserved in employee handbook). When the employee handbook and the progressive discipline policy are construed together as a whole, we conclude they unambiguously preserved the at-will presumption. Lutheran Social Services was not contractually bound to follow the progressive discipline policy in terminating Dahlberg, and, the trial court did not err in granting summary judgment on her breach of contract claim.

IV

[¶ 18] Dahlberg argues the trial court erred in granting summary judgment on her claim for intentional infliction of emotional distress. She argues Lutheran Social Services created an environment of intimidation and a workplace of fear and anxiety, which was not part of a normal employment relationship.

[¶ 19] In Muchow v. Lindblad, 435 N.W.2d 918, 924 (N.D.1989), we said a claim for intentional infliction of emotional distress requires the plaintiff to show extreme and outrageous conduct which is intentional or reckless and causes severe emotional distress. See also Kautzman v. McDonald, 2001 ND 20, ¶ 18, 621 N.W.2d 871; Security Nat’l. Bank v. Wald, 536 N.W.2d 924, 927 (N.D.1995); Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 710 (N.D.1995). The threshold element of extreme and outrageous conduct is narrowly limited to outrageous conduct that exceeds all possible bounds of decency. Kautzman, at ¶ 18; Wald, at 927; Muchow, at 924. In determining whether or not conduct is “extreme and outrageous,” courts consider whether or not the conduct is so extreme in degree as to be beyond all possible bounds of decency or to be utterly intolerable in a civilized society. Muchow, at 924 (quoting Restatement 2nd Torts § 46, comment d).

[¶ 20] In Muchow, 435 N.W.2d at 924, we quoted from comment d of Restatement 2nd Torts § 46:

“The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’
“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt.”

[¶ 21] The court initially decides if a defendant’s conduct reasonably may be regarded as extreme and outrageous. Wald, 536 N.W.2d at 927; Muchow, 435 N.W.2d at 924. If reasonable persons could differ, a plaintiff is entitled to have the trier-of-fact decide whether the conduct is sufficiently extreme and outrageous to result in liability. Wald, at 927; Muchow, at 924.

[¶ 22] In Kautzman 2001 ND 20, ¶ 22, 621 N.W.2d 871, we held the trial court properly granted summary judgment on a claim for intentional infliction of emotional distress against law enforcement officers who shot the plaintiffs’ five dogs. We said there was no • dispute the officers were unaware the dogs belonged to the plaintiffs and the officers were responding to calls by concerned citizens. Id. We said the major dispute was the distance from which the dogs were shot and whether the shootings were actually necessary, and we concluded those circumstances were insufficient to constitute extreme and outrageous conduct by the officers. Id.

[¶ 23] In Wald, 536 N.W.2d at 928, we held the trial court properly granted summary judgment on a claim for intentional infliction of emotional distress against a bank, because the plaintiffs’ allegations that the bank failed to release insurance proceeds to them did not rise to the level of extreme and outrageous conduct. We said the bank was under no obligation to release insurance proceeds to the plaintiffs, and its conduct reasonably could not be viewed as so extreme in degree as to be beyond all bounds of decency or to be utterly intolerable in a civilized society. Id.

[¶ 24] In Muchow, 435 N.W.2d at 924-25, we held a police officer’s investigation of a death and his statements to the decedent’s family, while inconsiderate and unkind, did not rise to the level of extreme and outrageous conduct. We concluded reasonable persons could not disagree that the police officer’s conduct was not extreme and outrageous, and we affirmed summary judgment dismissal of the claim. Id.

[¶ 25] Here, Dahlberg was an at-will employee. Although Dahlberg claims Lutheran Social Services created an environment of hostility toward her, we agree with the trial court that “[t]he nature of any termination is such that it often produces stress and mental anguish in the person being terminated [and] the test i's not whether or not the termination was traumatic, but whether or not the termination was outrageous.” Dahlberg’s conclusory allegations of a hostile work environment are insufficient to raise a factual issue about whether the defendants’ conduct was “extreme and outrageous,” and she has not pointed to evidence of specific instances in which the defendants’ conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. See Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 439-40 (Minn.1983) (holding employer discipline and written and verbal criticism of employee’s job performance not extreme and outrageous).

[¶ 26] Viewing the evidence in the light most favorable to Dahlberg, we conclude reasonable persons could not disagree that the defendants’ conduct was not so extreme and outrageous as to satisfy the threshold requirement for intentional infliction of emotional distress. We hold the trial court did not err in granting summary judgment on Dahlberg’s claim for intentional infliction of emotional distress.

V

[¶ 27] Dahlberg argues she set forth sufficient grounds to establish a prima fa-cie case for retaliatory discharge under N.D.C.C. § 34-01-20, which prohibits an employer from discharging an employee because the employee in good faith reports a violation or suspected violation of state law to an employer. According to Dahl-berg, in November 1997, she verbally reported to Weiler incidents of “inappropriate touching” between 12 to 14-year-old residents of Luther Hall, including masturbation, kissing, holding hands, and one resident physically forcing another resident into inappropriate touching in order to masturbate. Weiler confirmed “[w]hat was reported were incidents of touching, holding hands, one incident I believe of a girl being forced to put her hand in the crotch of a male. There were kissing incidents.” Dahlberg wrote Weiler a December 18, 1997 letter about the “inappropriate touching by several residents during different time frames involving supervision by different staff,” in which Dahlberg “posed the question of fairness applied under these circumstances in regards to [her] own letters of reprimand” and stated she was “by no means advocating for reprimanding all parties involved.” Rather, Dahlberg indicated the “purpose of [her] letter is to point to unfair treatment and consequences given.” Dahlberg’s letter explained, “In [the] case of my own letters of reprimand, which I continue to disagree with, the potential for something to happen was present but actually nothing happened” and “[t]he previous mentioned incidents (inappropriate touching) did result in serious offenses. ‘Lack of good judgment in the supervision’ was definitely present.” Dahlberg requested “an official hearing and/or reevaluation by [Weiler’s] supervisor Janell Regimbal,” and Dahlberg asked to meet with the president of Lutheran Social Services, Tony Ingle. Dahlberg explained her “decision to pursue this matter further is related to pointing to inconsistency and that written incident reports appear to have the tendency to result in letters of reprimand to the staff involved; especially for certain staff.”

[¶ 28] According to a January 2, 1998 letter from Weiler to Dahlberg, Weiler met with Dahlberg to discuss Dahlberg’s concerns. Weiler’s January 1998 letter summarized that meeting:

2. Clarification that when you discussed your concerns with me regarding recent incidents about inappropriate touching by several residents on Friday, December 21, 1997 you were not initiating the resolution of employee concerns. You[r] intent was to discuss the issue of fairness.
3. Your request for a review of your written notices by Janell Regimbal and Tony Ingle.
4. Concerns about the inconsistencies of staff completing written reports regarding the supervision of residents and that when a report is written there is a tendency for certain staff to receive a written notice. You indicated there have been seven occasions that you have seen the residents unsupervised. You stated that you took the risk and helped out in these situations. Written reports were not completed by you regarding these seven occasions.
5. Concerns regarding confidentiality and privacy were discussed. You indicated that shortly after you were issued the second written notice you shared this information with two staff members.
As I mentioned to you, in the next week or so I will be reviewing your written notices and our discussions related to your concerns with Janell Regimbal. I am confident this process will clarify your concerns.

[¶ 29] On January 26, 1998, Janell Re-gimbal, the vice president of youth services at Lutheran Social Services, responded to Dahlberg’s request for a review of the two written notices of employee performance concerns:

I have thoroughly reviewed all the written documentation available on the incidents in question. As I discussed with you when we met on January 23, I find the written warnings to be appropriate and have no reason to rescind them at this time. In review of your personnel file, I see that you have placed a written response to the warnings, as is your right.
As we discussed, I will further explore the concern you stated of how and when it is determined that an incident report is filed at Luther Hall, to aid in ensuring uniformity in its usage.

[¶ 30] According to Dahlberg’s affidavit, from December 1997 through the spring of 1998 she persisted in insisting the allegations of abuse be investigated. She argues her reports implicated possible violations of the child abuse and neglect law under N.D.C.C. ch. 50-25.1, and possible criminal violations. She claims that, after she reported the possible abuse, she was subjected to a “hostile” work environment and was ultimately terminated in retaliation for making the reports.

[¶ 31] The trial court analyzed Dahl-berg’s retaliation claim under the burden-shifting framework for federal discrimination claims announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. The trial court said Dahlberg’s reports involved alleged lack of supervision by Luther Hall employees, which resulted in resident-on-resident sexual abuse, but the court decided Dahlberg had no legal duty to report the alleged “inadequate supervision.” The court decided Dahlberg failed to show the existence of protected activity which was prior in time to an adverse employment decision, and she failed to establish a prima facie case for retaliation. The court alternatively assumed Dahlberg established a prima facie case for retaliation, and concluded Lutheran Social Services had legitimate, non-discriminatory reasons for the termination and Dahlberg had provided no evidence from which a rational trier of fact could conclude the termination was pretextual.

[¶ 32] Although at-will employees generally may be discharged at any time for any reason, we have recognized limited, public policy exceptions to the at-will presumption if employees establish they were terminated in retaliation for complying with a clear public policy. See Ressler v. Humane Soc., 480 N.W.2d 429, 432 (N.D.1992) (holding public policy prohibited employer from discharging employee in retaliation for honoring subpoena and informing employer she was prepared to testify contrary to employer’s interest in criminal proceeding); Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 795 (N.D.1987) (holding public policy prohibited employer from discharging employee in retaliation for seeking workers compensation benefits). Compare Jose, 1999 ND 175, ¶ 21, 599 N.W.2d 293 (holding employees identified no clear public policy which their termination violated); Lee v. Walstad, 368 N.W.2d 542, 547 (N.D.1985) (same).

[¶ 33] In 1993, the North Dakota Legislature enacted a whistle-blower statute, which is now codified in N.D.C.C. § 34-01-20(1) and provides “[a]n employer may not discharge ... an employee ... because ... [t]he employee ... in good faith, reports a violation or suspected violation of federal or state law or rule to an employer or to a governmental body or law enforcement official.” 1993 N.D. Sess. Laws ch. 346, § 1. Under the 1993 enactment, an employer who willfully violated that statute was guilty of an infraction. 1993 N.D. Sess. Laws ch. 346, § 1. In 1997, the Legislature enacted N.D.C.C. § 34-01-20(3), which authorizes an employee asserting a retaliatory discharge to bring a civil action for injunctive relief or damages, and N.D.C.C. § 34-01-20(4), which allows the department of labor to receive complaints about violations of the statute and to attempt to obtain voluntary compliance with it. 1997 N.D. Sess. Laws ch. 291 § l.

[¶ 34] The plain language of N.D.C.C. § 34-01-20, authorizes an employee to bring a civil action for retaliatory discharge if an employer discharges the employee because the employee “in good faith, reports a violation or suspected violation of federal or state law or rule to an employer or to a governmental body or law enforcement official.” Section 34-01-20(1), N.D.C.C., is consistent with caselaw stating an employee’s prima facie case for retaliatory discharge requires the employee to show (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the existence of a causal connection between the employee’s protected activity and the employer’s adverse action. See Opp, 1999 ND 52, ¶23, 591 N.W.2d 101 (stating “[t]o establish a prima facie case of retaliatory discharge, a plaintiff must introduce probative evidence that he or she (1) opposed an unlawful employment practice, (2) the employer took adverse employment action, and (3) a causal connection exists between the adverse employment action and the protected activity”). See e.g., Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); Holland v. Jefferson Nat’l. Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989); Donnellon v. Fruehauf Corp., 794 F.2d 598, 600-01 (11th Cir.1986); Irvin v. Aireo Carbide, 837 F.2d 724, 727 (6th Cir.1987); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980); Shallal v. Catholic Soc. Servs., 455 Mich. 604, 566 N.W.2d 571, 574 (1997); Hubbard, 330 N.W.2d at 444; Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn.App.1996). See generally 1 Lex K. Larson, Unjust Dismissal § 6.08 (2000).

[¶ 35] To establish a prima facie case for retaliatory discharge under N.D.C.C. § 34-01-20(1), Dahlberg must show she engaged in protected activity and that activity was causally related to her termination on May 11, 1998. Under our statutory formulation of the substantive basis for a retaliatory discharge claim, an employee’s good faith report to the employer of a violation or suspected violation of federal or state law is protected activity. That statutory formulation is similar to Minnesota’s whistle-blower statute. Compare N.D.C.C. § 34-01-20(1) with Minn. Stat. § 181.932.

[¶ 36] In Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn.2000), the Minnesota Supreme Court construed the reporting requirement of its whistle-blower statute:

In order to determine whether a report of a violation or suspected violation of law is made in good faith, we must look not only at the content of the report, but also at the reporter’s purpose in making the report. The central question is whether the reports were made for the purpose of blowing the whistle, i.e., to expose an illegality. See Minn.Stat. § 181.932, subd. 1(a). We look at the reporter’s purpose at the time the reports were made, not after subsequent events have transpired. See generally Wolcott v. Champion Intern. Corp., 691 F.Supp. 1052, 1059 (W.D.Mich.1987) (holding that the good faith requirement of the whistle-blower statute was not met where the purpose of the employee, at the time of the making of reports, was not to protect the public, but to protect the jobs of himself and his co-workers). In part, the rationale for looking at the reporter’s purpose at the time the report is made is to ensure that the report that is claimed to constitute whistle-blowing was in fact a report made for the purpose of exposing an illegality and not a vehicle, identified after the fact, to support a belated whistle-blowing claim.

In Obst, at 203, the court concluded a former employee’s report that the employer was shipping defective wiper control modules to a car manufacturer did not constitute a good faith report under Minnesota’s whistle-blower statute, because at the time the report was made, the manufacturer was aware the employer was shipping the defective modules and the employee’s purpose was to inform the manufacturer of a contractual violation of the testing requirements of a control plan and not to expose illegality. The court also concluded the employee’s report that the employer was deviating from established testing procedures did not implicate a violation of law. Id. at 204. The court held, as a matter of law, the employee’s reports did not constitute good faith reports under Minnesota’s whistle-blower statute. Id. at 203-04.

[¶ 37] In Rothmeier, 556 N.W.2d at 593, the Minnesota Court of Appeals considered whether an employee’s mentioning of a SEC registration issue constituted a report under Minnesota’s whistle-blower statute. There, the employee was the investment manager for an investment banking group which had been losing money. During a March 15, 1993. meeting, the employee “brought up the issue” of whether the employer’s subsidiary should have been registered with the SEC under federal law. Id. at 592. The employer fired the employee two days later. Id. The employee conceded he learned about the employer’s suspected violation of the law from an internal memorandum that showed the supervisor and corporate counsel were aware of the suspected violation and were investigating the issue. Id. at 593. The court recognized Minnesota’s whistle-blower statute did not require an employer to be ignorant of a suspected violation before an employee makes a report, but the court held, as a matter of law, the employee’s “mere mention of that issue to [the employer] did not constitute a ‘report’ ” because the employee knew his employer was already aware of the potentially illegal conduct. Id.

[¶ 38] We agree with the Minnesota courts’ interpretation of its substantively similar provisions for a retaliatory discharge claim. Section 34-01-20, N.D.C.C., was obviously intended to prohibit an employer from discharging an employee because the employee makes a good faith report to the employer of a violation or suspected violation of state law. The clear purpose of N.D.C.C. § 34-01-20 is to protect employees who expose illegalities in the workplace, and we are not persuaded N.D.C.C. § 34-01-20 was intended to protect an employee who acts for a purpose other than exposing an illegality. We construe N.D.C.C. § 34-01-20 to require a “report” to be made for the purpose of blowing the whistle to expose an illegality, and the reporter’s purpose must be assessed at the time the report is made.

[¶ 39] Here, according to Dahlberg, in November 1997, she made verbal reports to Weiler regarding what Dahlberg “believed to be violations or suspected violations of law pertaining to abuse of residents” at Luther Hall, and Dahlberg wrote Weiler a December 18, 1997 letter outlining concerns about “inappropriate touching” .between residents at Luther Hall. Dahlberg claims her reports to Weiler were protected activity, because the reports complied with Lutheran Social Services’ reporting procedures and the residents’ conduct “had implications of being-in violation of North Dakota’s Child Abuse and Neglect Laws and possibly triggering the criminal code.” She argues the “public interest is at stake when resident abuse may warrant assault charges.”

[¶ 40] Dahlberg testified in her deposition that she did not personally observe any of the incidents of “inappropriate touching,” and she obtained most of the information on those incidents from a “log writing 11/19/97, page 44 through 54,” or from other Luther Hall employees. Dahl-berg does not dispute the “log” is a “communication log where all the events of the day are recorded,” and the communication log is “an open record to all the [Luther Hall] staff people.” Dahlberg also does not dispute that the defendants were aware of the incidents of “inappropriate touching” when Dahlberg made her November and December 1997 statements to Weiler. Moreover, Dahlberg’s November and December 1997 statements to Weiler about “inappropriate touching” were in the context of questioning disparate internal discipline against Luther Hall employees for inadequate supervision of residents and only incidentally implicated potential violations of state law. See Obst, 614 N.W.2d at 202-03; Rothmeier, 556 N.W.2d at 593. Dahlberg’s contemporaneously documented purpose for her statements to Weiler was not to expose any potential violations of law; rather, her stated purpose was to question disparate internal discipline of Luther Hall employees for inadequate supervision. We decline to extend Dahl-berg’s clearly documented purpose .for her statements into a vehicle for a belated whistle-blowing claim.

[¶ 41] Dahlberg’s affidavit also included conclusory assertions that from December 1997 through the spring of 1998, she persisted in insisting the allegations of abuse be investigated. However, she has not pointed the trial court or this Court to any different “reports [of] a violation or suspected violation of federal or state law” after her November and December 1997 statements to Weiler. Dahlberg alludes to a report the morning of April 29, 1998, the date of her third writeup, which she claims raised concerns about resident supervision. That incident involved a “concern about cement glue being found in one of the resident’s rooms,” and Dahlberg has not articulated how that incident implicated a violation or suspected violation of law under N.D.C.C. § 34-01-20.

[¶ 42] A party resisting a summary judgment motion must present competent admissible evidence which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Engel, 1999 ND 111, ¶ 7, 595 N.W.2d 319. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which the party will bear the burden of proof at trial. Id. Dahlberg had the burden of establishing a prima facie case of retaliatory discharge. Viewing the evidence in the light most favorable to Dahlberg, we conclude her statements to Weiler about “inappropriate touching” do not constitute “reports [of] a violation or suspected violation of federal or state law or rule to an employer” under N.D.C.C. § 34-01-20(1). On this record, we conclude reasonable minds could only conclude Dahlberg’s statements to Weiler were made for the purpose of questioning disparate discipline of staff for incidents of inadequate supervision and not for the purpose of reporting an illegality. Because Dahlberg failed to establish a prima facie case for retaliatory discharge under N.D.C.C. § 34-01-20, we conclude the trial .court did not err in granting summary judgment dismissing her claim for retaliatory discharge.

[¶ 43] We affirm the summary judgment.

[¶ 44] VANDE WALLE, C.J., KAPSNER and NEUMANN, JJ., and william: w. Mclees, d.j.

[¶ 45] The Honorable McLEES, D.J., sitting in place of SANDSTROM, J., disqualified.

      . Dahlberg's notice of appeal says the appeal is from "the Memorandum Opinion on Motion for Summary Judgment and Order granting Defendant's Motion for Summary Judgment.” The trial court's memorandum opinion and order disposed of all of Dahl-berg's claims and says it "shall stand as the final judgment of the Court.” The trial court's decision reflects the court intended the memorandum opinion and order to be final, and Dahlberg's appeal is properly before us. See Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 608 (N.D.1992).

      . An employer's documentation of an employee’s work performance may have significant ramifications for discrimination claims under N.D.C.C. ch. 14-02.4, in which an employer may be required to articulate a legitimate, non-discriminatory reason for adverse employment actions. See fn.3, infra.

      . We have applied a modification of the McDonnell Douglas framework to discrimination claims under N.D.C.C. ch. 14-02.4, the North Dakota Human Rights Act. See Engel, 1999 ND 111, ¶8, 595 N.W.2d 319 (disability claim involving failure to accommodate); Opp, 1999 ND 52, ¶ 14, 591 N.W.2d 101 (sexual harassment and retaliatory discharge); Zimmerman v. Minot Pub. Sch. Dist., 1998 ND 14, ¶ 10, 574 N.W.2d 797 (discrimination claim based on physical handicap); Miller v. Medcenter One, Inc., 1997 ND 231, ¶ 11, 571 N.W.2d 358 (sex discrimination); Schuhmacher v. North Dakota Hosp. Ass’n, 528 N.W.2d 374, 378-83 (N.D.1995) (age discrimination); Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227-29 (N.D.1993) (sex discrimination); Moses v. Burleigh Cty., 438 N.W.2d 186, 189 n. 3 (N.D.1989) (sex and race discrimination).
      This case does not involve allegations of Human Rights Act violations; rather, it concerns allegations of retaliatory discharge under N.D.C.C. § 34-01-20. In the trial court and their appellate briefs to this Court, the parties did not raise an issue about the effect of Schweigert on allegations of retaliatory discharge under N.D.C.C. § 34-01-20. The trial court did not apply the Schweigert modification of federal law to this case, and because we conclude Dahlberg has not established a prima facie case for retaliation, we need not decide the applicability of Schweigert to a claim for retaliation under N.D.C.C. § 34-01-20.

      . The 1997 legislative history says the 1997 enactment was intended to provide "employee protection teeth [beyond] only [the] criminal penalty for the employer,” and the provisions authorizing a civil action were based on Montana law. Hearing on H.B. 1468 Before House Judiciary Committee, 55th N.D. Legis. Sess. (Feb. 3, 1997) (testimony of Representative John Mahoney).
      The Montana law, see Mont.Code Ann. § 39-2-901 et seq., generally outlines a remedy for wrongful discharge from employment. See Mont.Code Ann. §§ 39-2-902, 39-2-905 to 39-2-915. Our substantive provisions outlining the elements of a retaliatory discharge claim, see N.D.C.C. § 34-01-20(1), were enacted in 1993 and are different from the substantive provisions in Mont.Code Ann. § 39-2-904, which says: a discharge is wrongful only if:
      (1) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
      (2) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
      (3) the employer violated the express provisions of its own written personnel policy. The Montana Supreme Court has construed
      MontCode Ann. § 39-02-904(2) as impliedly repealing the at-will presumption for non-probationary employees. See Whidden v.

        John S. Nerison, Inc., 294 Mont. 346, 981 P.2d 271, 1999 MT 110, ¶21.

      . Minn.Stat. § 181.932(1) provides:
      An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:
      (a) the employee, or a person acting on behalf of an employee, in- good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;
      (b) the employee is requested by a public body or office to participate in an investigation, hearing, inquiry;
      (c) the employee refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason; or
      (d)the employee, in good faith, reports a situation in which the quality of health care services provided by a health care facility, organization, or health care provider violates a standard established by federal or state law or a professionally recognized national clinical or ethical standard and potentially places the public at risk of harm.
      Under Minn.Stat. § 181.935, an employee injured by a violation of Minn.Stat. § 181.932 may bring a civil action to recover any and all damages recoverable at law.

      . Section 50-25.1-09.1, N.D.C.C., prohibits an employer from retaliating against an employee because the employee in good faith reported to the department of Human Services, or its designee, reasonable cause to suspect a child was abused or neglected, and authorizes a civil action for all damages, including exemplary damages, costs of litigation, and reasonable attorney fees. Under N.D.C.C. § 50-25.1-09.1(3), there is a rebut-table presumption that any adverse employer action within ninety days of a report is retaliatory. Section 50-25.1-02(2) and (8), N.D.C.C., define an abused and a neglected child for purposes of those reporting requirements. Under N.D.C.C. § 50-25.1-02(8), a "neglected child” means a deprived child under N.D.C.C. ch. 27-20. Under N.D.C.C. § 50-25.1-02(2), an "abused child” is a child "who is suffering from serious physical harm or traumatic abuse caused by other than accidental means by a person responsible for the child's welfare.” Under N.D.C.C. § 50-25.1-02(1), a person responsible for the child's welfare means "the child's parent, guardian, or foster parent; an employee of a public or private school or nonresidential child care facility; an employee of a public or private residential home, institution, or agency; or a person responsible for the child's welfare in a residential setting.”
      According to Dahlberg, none of the incidents of inappropriate touching involved Luther Hall employees physically or sexually abusing residents, and she has not argued the presumption in N.D.C.C. § 50-25.1-09.1(3) is applicable to this case.

      . Because we have concluded Dahlberg's statements to Weiler were not protected reports under N.D.C.C. § 34-01-20, we do not consider whether she presented competent admissible evidence to raise a genuine issue of material fact about a causal connection between her statements and her May 11, 1998 termination.


author: NEUMANN, Justice.

text:
    2001 ND 72
    Larry WRIGHT, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20000292.
    Supreme Court of North Dakota.
    April 17, 2001.
    Rehearing Denied May 29, 2001.

      Stephen D. Little of Dietz, Little & Haas, Bismarck, ND, for claimant and appellant.
    Tracy Vigness Kolb, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   NEUMANN, Justice.

[¶ 1] Larry Wright appealed the district court order and judgment affirming a North Dakota Workers Compensation Bureau (“Bureau”) order determining Wright was not entitled to further disability or rehabilitation benefits. We affirm.

I

[¶ 2] Wright injured his back on September 9, 1985, while he was working as a mechanic for Butler Machinery Company (“Butler”) in Minot. Wright applied for workers compensation benefits in connection with his back injury. The Bureau accepted Wright’s claim and paid him benefits.

[¶ 3] Wright underwent back surgery in April 1986. Although his treating physician, Dr. Peter Earnshaw, released Wright to return to work in October 1986, Dr. Earnshaw advised Wright to consider pursuing a lighter type of work. The Bureau referred Wright to a vocational rehabilitation service provider. Although a rehabilitation specialist recommended vocational testing and possible retraining for Wright, he chose to continue working at Butler, and his rehabilitation file was closed.

[¶ 4] In September 1988, Dr. Oheneba Boachie Adjei performed lumbar fusion surgery on Wright. As a result of the surgery, Wright was unable to work, and his rehabilitation file was reopened.

[¶ 5] In August 1989, Wright underwent a functional capacity assessment. The physical therapist recommended Wright continue exercising on his own, and restricted Wright’s lifting, bending, sitting, and standing. Dr. Boaehie Adjei evaluated Wright in September 1989, and released Wright to return to work within the limits of the August 1989 assessment. A rehabilitation specialist identified a robotics training program at Staples Technical Institute in Staples, Minnesota, within Wright’s restrictions. Wright visited the school and, according to the rehabilitation specialist, was “very motivated for retraining.” In May 1990, the Bureau issued a rehabilitation order awarding Wright vocational training as a robotics technician. Wright did not appeal the order.

[¶ 6] Wright participated in the vocational training program from July 1990 to May 1992. During his training, Wright was found eligible for social security disability insurance. Upon completion of the program, Wright elected not to return to work. Wright was eligible for and received two years of partial rehabilitation benefits. After his partial rehabilitation benefits expired on May 29, 1994, Wright reapplied for benefits, asserting he had sustained a significant change in his medical condition. The Bureau reinstated Wright’s benefits, effective June 12, 1994.

[¶ 7] In March 1995, Dr. Timothy Garvey performed additional lumbar fusion surgery on Wright. A lengthy recovery period followed. In May 1996, Dr. Garvey released Wright for . sedentary to light work, starting at two to four hours of work each day with restrictions on bending, twisting, and lifting. However, Wright had an appointment with Dr. Garvey in November 1996, and Dr. Garvey’s office note stated Wright was again unable to work. In June 1997, Dr. Garvey released Wright to work at home. A rehabilitation consultant recommended no additional vocational rehabilitation for Wright unless his physical condition improved.

[¶ 8] In March 1998, the Bureau contacted Wright requesting an updated medical report. Because Wright had moved to Ohio, Dr. Garvey referred Wright to Dr. Christopher Cannell, an Ohio physician. Dr. Cannell recommended a ten-week aerobic conditioning and strengthening program for Wright. After he completed the ten-week program, Wright underwent another functional capacity assessment in December 1998. The physical therapist who conducted the assessment concluded Wright qualified for light to medium physical demand work, with restricted lifting, standing, and bending. Dr. Garvey reviewed the functional capacity assessment and opined that Wright should be kept in a light demand category rather than a light to medium category as recommended by the physical therapist. Dr. Garvey and Dr. Cannell agreed Wright was capable of returning to work, although his return would have to be gradual, beginning with two to four hours daily.

[¶ 9] The Bureau issued a notice of its intention to discontinue Wright’s benefits as of March 10, 1999, because Wright had been released to return to work. Wright requested reconsideration of the Bureau’s decision.

[¶ 10] On February 9, 2000, a formal administrative hearing was held to determine Wright’s entitlement to further disability or rehabilitation benefits. The administrative law judge (“ALJ”) concluded Wright was employable within his restrictions and recommended the Bureau deny further benefits.

[¶ 11] On February 24, 2000, Wright went to see Dr. Garvey. Following Wright’s visit, Dr. Garvey issued a report indicating Wright was permanently disabled from all employment. Based on Dr. Garvey’s report, Wright filed a petition for reconsideration on March 15, 2000. The Bureau denied Wright’s request for reconsideration, explaining the medical evidence was not before the ALJ at the administrative hearing and was not timely. On March 7, 2000, the Bureau issued its final order adopting the ALJ’s findings, conclusions, and recommendation. Wright appealed to the district court, which affirmed the Bureau’s decision. Wright appealed.

II

[¶ 12] We exercise limited review in appeals involving Bureau decisions. Berger v. ND Workers Comp. Bureau, 2000 ND 224, ¶ 7, 620 N.W.2d 576. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, its decision violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Jacobson v. ND Workers Comp. Bureau, 2000 ND 225, ¶ 7, 621 N.W.2d 141. We exercise restraint in determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence. Id. at ¶ 7. We do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Id. at ¶ 7.

III

[¶ 13] Wright argues the evidence shows he does not have the physical capacity to work as a robotics technician because he does not have the ability to work at all. Wright relies on Dr. Garvey’s February 24, 2000, assessment of Wright’s ability to work. Dr. Garvey’s report indicated Wright is permanently unable to work as of the date of the assessment.

[¶ 14] The administrative hearing to determine Wright’s eligibility to further disability or rehabilitation benefits was held on February 9, 2000. At that time, Dr. Garvey had released Wright to light work, restricting his lifting and standing. In his patient progress notes dated April 22, 1999, Dr. Garvey wrote: “At the present time, I do believe that Mr. Wright is capable of gainful employment. However, I believe that he has significant restrictions.” Dr. Cannell had similarly concluded Wright could return to work. In a January 12,1999, letter from Dr. Cannell to the Bureau, Dr. Cannell wrote:

I do believe that Larry [Wright] is capable of sustained remunerative employment activity. In talking with Mr. Wright, however, he makes it very clear to me that he does not feel he is able to return to work at any intensity level. I don’t necessarily agree with this. I feel that he can work again, although it would clearly have to be with restrictions and limitations.

In May 1999, Wright visited Dr. Cannell to discuss Wright’s work situation and Dr. Cannell’s comments in his January 12, 1999, letter to the Bureau suggesting Wright was capable of sustained remunerative employment activity. Wright insisted he was unable to work eight hours a day. On May 28, 1999, Dr. Cannell wrote to the Bureau again, after consulting Dr. Garvey. Dr. Cannell indicated he and Dr. Garvey agreed that Wright was capable of working two to four hours per day initially, increasing the hours gradually to eight hours per day. Wright did not offer any evidence at the hearing showing he was unable to work, aside from his own testimony. The ALJ found the undisputed medical evidence at the hearing showed Wright was able to return to work as a robotics technician.

[¶ 15] Reviewing the evidence presented at the hearing, we conclude a reasoning mind could have determined the preponderance of the evidence showed Wright was able to return to work.

[¶ 16] However, Wright argues the issue is not whether a robotics position was ever within his work abilities, but, rather, whether a robotics position is presently appropriate.

[¶ 17] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, information or evidence that has not been offered, admitted, and made a part of the official record of the proceeding generally may not be considered by the administrative agency. N.D.C.C. § 28-32-06(2); Aggie Inv. GP v. Public Serv. Comm’n, 470 N.W.2d 805, 811 (N.D.1991). Section 28-32-07, N.D.C.C., provides an exception to this general rule, providing in part:

In any adjudicative proceeding, an administrative agency may avail itself of competent and relevant information or evidence in its possession or furnished by members of its staff, or secured from any person in the course of an independent investigation conducted by the agency, in addition to the evidence presented at the hearing.

Wright did not submit Dr. Garvey’s February 24, 2000, assessment to the Bureau until he petitioned the Bureau for reconsideration on March 15, 2000. Thus, the Bureau had no way of knowing the existence of the letter or considering its contents before entering its March 7, 2000, final order.

[¶ 18] Wright could have applied to the district court for leave to offer additional evidence to the agency under N.D.C.C. § 28-32-18, which provides in relevant part:

If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper.

See generally Horsley v. ND Workers Comp. Bureau, 2001 ND 60, 623 N.W.2d 377 (involving a district court’s consideration of a letter received by a claimant from his physician two days after an administrative hearing).

[¶ 19] Wright failed to utilize the procedures available for making Dr. Garvey’s February 24, 2000, assessment a part of the record in this case. Accordingly, this evidence is not considered in this appeal.

[¶ 20] Next, Wright argues that if he can work at all, he can only perform light work. Relying on the description of a field service technician position as provided in the United States Department of Labor’s Dictionary of Occupational Titles, Wright argues the average robotics technician job is a heavy labor position.

[¶ 21] Employment as a field service technician is only one type of work within the robotics field. According to the testimony of Wright’s vocational instructor, Greg Scheler, the robotics field includes a range of employment opportunities. Scheler’s testimony and other evidence presented at the hearing indicate robotics employment opportunities are available in the areas of design, sales, repair, installation, maintenance, development, production, operation, distribution, management, manufacturing, and programming. Scheler testified that the different areas of work within the robotics field demand varying levels of physical activity, several of them involving sedentary or light work.

[¶ 22] At oral argument, Wright conceded the existence of light work employment opportunities within the robotics field. He asserted, however, that entry level robotics positions require heavy labor and light work positions are only available with experience.

[¶ 23] During his deposition, Scheler testified:

I’ve had students that have advanced into management. I’ve had students that have advanced into sales, but, again, they started out as entry level technicians, and maybe to clarify that you have to start as a tech and you have to know the manufacturing processes that the robots are capable of performing, programming them, those kinds of things.

However, Scheler continued, stating:

But, no, I mean, I don’t want to say that those are the only jobs that people can get but people typically will start out as, and I try to be typical, they typically will start out as a field service engineer and advance into sales, management, supervision, yeah, there’s—

Wright argues the Bureau did not present evidence showing lighter robotics technician jobs exist in sufficient numbers to form a viable job market. Wright also argues the Bureau did not present evidence showing he has the necessary skills to be a competitively employable robotics technician.

Section 65-05.1-04, N.D.C.C., provides in relevant part:

1. The injured employee shall seek, obtain, and retain reasonable and substantial employment to reduce the period of temporary disability to a minimum. The employee has the burden of establishing that the employee has met this responsibility.
4. If the first appropriate rehabilitation option under subsection 4 of section 65-05.1-01 is return to the same, modified, or alternative occupation, or return to an occupation that is suited to the employee’s education, experience, and marketable skills, or on-the-job training, the employee is responsible to make a good faith work trial or work search. If the employee fails to perform a good faith work trial, the bureau may not pay additional disability benefits unless the employee meets the criteria for reapplying for benefits required under subsection 1 of section 65-05-08....
6. If, without good cause, the injured employee fails to make a good faith work search in return to work utilizing the employee’s transferable skills, the employee is in noncompliance with vocational rehabilitation. A good faith work search that does not result in placement is not, in itself, sufficient grounds to prove the work injury caused the inability to acquired gainful employment. The employee shall show that the injury significantly impacts the employee’s ability to successfully compete for gainful employment in that the injury leads employers to favor those without limitations over the employee.... In all eases of noncompliance by the employee, the bureau, by administrative order, shall discontinue disability and vocational rehabilitation benefits.

[¶ 24] During the hearing, when asked about his work search efforts, Wright identified one employer with whom he had applied for a robotics technician position. He testified he had not made an effort to look for work since his workers compensation benefits ended in February 1999 because he did not think he was able to work.

[¶ 25] Wright’s argument that it is the Bureau’s burden to present evidence of currently available jobs and the sufficiency of Wright’s skills fails. The Bureau met its responsibilities when it developed Wright’s vocational plan and approved training him as a robotics technician. See N.D.C.C. § 65-05.1-02(5). After Wright finished training and was released by his doctor to return to work, it was his burden to either find a job or inform the Bureau if he was unable to find a job. See N.D.C.C. § 65-05.1-04(1), (2). Scheler’s testimony that an entry-level robotics technician “typically” begins as a field service engineer and advances into another area of the robotics field is insufficient to show that Wright’s injury significantly impacts his ability to successfully compete for gainful employment. See N.D.C.C. § 65-05.1-04(4). We conclude Wright failed to meet his burden of demonstrating he made a good faith work search.

[¶ 26] Finally, Wright argues he cannot work full time as a robotics technician, so he is entitled to continued benefits.

[¶ 27] Partial disability benefits partially restore an injured worker’s earnings, based on a percentage of the difference between the worker’s pre-injury earnings and post-injury earning capacity. N.D.C.C. § 65-05-10. Because Wright has not provided any evidence of a loss of earning capacity, there is currently no basis for awarding Wright partial disability benefits.

IV

[¶ 28] Based on the record, Wright was not entitled to further disability or rehabilitation benefits. We affirm.

[¶ 29] VANDE WALLE, C.J., MARING, SANDSTROM, O’KEEFE, S.J., concur.

[¶ 30] The Honorable O’KEEFE, S.J., sitting in place of KAPSNER, J., disqualified.

      . Under N.D.C.C. § 65-05-08(1), Wright can reapply for benefits based on this new evidence.