Page Page 336 N.W.2d 134, ; 1983 N.D. LEXIS 302, ;36 U.C..docx

Page
Page
336 N.W.2d 134, *; 1983 N.D. LEXIS 302, **;
36 U.C.C. Rep. Serv. (Callaghan) 649
The General Fixture and Supply, Inc. (hereinafter General
Fixture), appealed from a district court decision in a declaratory
judgment 1 action in which the district court determined that
First Bank of North Dakota (NA) Minot (hereinafter First Bank)
had a purchase money security interest in equipment superior to
General Fixture's purchase money security interest in the same
equipment and ordered $30,000.00 in proceeds from the sale of
that equipment held by Thet Mah and Associates, Inc.
(hereinafter Thet Mah), to be paid to First Bank.
[**2] First Bank, through its senior vice-president, Robert
Turner, sent a letter dated 14 January 1980 to Dan Schmaltz,
president of Dakota Square Restaurants, Inc. (hereinafter
Dakota Square), putting into writing a loan request (offer of
loan commitment) by Dakota Square for a loan to equip a
restaurant and lounge in the Dakota Square Mall at Minot,
North Dakota. The letter referred to a total projected capital
cost of $310,000.00, with $120,000.00 of that total for
equipment, furniture, small wares, uniforms, and supplies.
Dakota Square, through Dan Schmaltz, accepted the loan
commitment on 22 January 1980.
On 7 March 1980 First Bank advanced the sum of $25,000.00 to
Dakota Square pursuant to the commitment letter, and Dakota
Square executed a security agreement in favor of First Bank
covering all of Dakota Square's equipment, supplies, furniture,
and fixtures described in an attached list. A financing statement
was filed on 12 March 1980 with the Ward County Register of
Deeds and the Secretary of State. The financing statement
provided that it covered the following collateral:

"All inventory wherever located, now existing or hereafter
acquired, and all accounts and contract [**3] rights now
existing or hereafter acquired. All equipment, supplies,
furniture and fixtures now owned or hereafter acquired."
On 28 May 1980 Dakota Square entered into a contract for sale
and security agreement with General Fixture for the purchase by
Dakota Square of certain restaurant equipment for a total cost of
$87,292.25. General Fixture filed a financing statement
covering the equipment on 23 June 1980.
General Fixture, through its credit manager Jim Butts, sent First
Bank a request, dated 5 June 1980, to fill out a "form letter for
commitment of funds" for Dakota Square. First Bank, through
Turner, replied on 12 June 1980 that it did not have information
from Dakota Square regarding the dollar amount of the
purchases from General Fixture. The reply also stated that First
Bank had consented to a dollar-amount [*137] loan for all
phases of the restaurant -- including equipment.
On 17 July 1980 General Fixture delivered the equipment to
Dakota Square, and Schmaltz wrote First Bank a letter
authorizing First Bank to specifically hold $45,000.00 in funds
committed to Dakota Square for direct payment to General
Fixture after satisfactory delivery and installation of the [**4]
equipment and notification by Schmaltz.
On 18 July 1980 Turner wrote General Fixture certifying that
First Bank had committed funds in the amount of $45,000.00 for
the equipment for the restaurant. The letter stated that the funds
would be made available upon completion of General Fixture's
contract with Dakota Square and in connection with the opening
of the establishment.
The equipment was installed between 2 August and 19 August
1980 and the grand opening of the restaurant was on 29
September 1980. On 29 September 1980 Schmaltz authorized
First Bank to transfer the $45,000.00 to the Dakota Square
account and Dakota Square subsequently wired the money to a

bank in Ohio for credit to General Fixture.
In May 1981 Dakota Square and Thet Mah executed a contract
for the sale of the restaurant to Thet Mah. After execution of the
contract for sale, the total purchase price ($200,000.00) was
deposited with counsel for Thet Mah for distribution to Dakota
Square and its creditors. After other disbursements, the
remaining proceeds from the sale ($30,000.00) were insufficient
to pay the secured claims of both First Bank and General
Fixture. Dakota Square's indebtedness to General Fixture [**5]
was $30,000.00, and to First Bank was in excess of $30,000.00.
Because of the possible conflicting security interests held by
First Bank and General Fixture and because the $30,000.00 in
proceeds was insufficient to pay the claims of both First Bank
and General Fixture, Thet Mah commenced an action for
declaratory judgment and interpleader and asked the trial court
to declare the rights of the parties; to direct Thet Mah
concerning the disposition of the proceeds; and to declare Thet
Mah's title to the equipment purchased from Dakota Square free
of security interest claimed by First Bank and General Fixture.
The district court determined that both General Fixture and First
Bank had a purchase money security interest in the equipment;
that the security interest of both parties attached at the same
time (delivery of the equipment to Dakota Square); and that
First Bank had priority to the proceeds of the sale because it
was the first to file its financing statement. The court ordered
the $30,000.00, with interest, to be paid to First Bank. The trial
court also determined that the security interest of General
Fixture on the equipment remained attached to the collateral,
junior to the [**6] security interest of First Bank to the extent
First Bank's security interest was unpaid or unreleased.
General Fixture appealed to this Court and contended that First
Bank did not have a purchase money security interest or, if it
did, that the security interest was inferior to the purchase money
security interest held by General Fixture.
The principal issue is which security interest has priority -- the
one held by First Bank or the one held by General Fixture.

However, in resolving this issue we must first consider if the
security interest 2 held [*138] by either or both constituted a
purchase money security interest as defined in North Dakota
Century Code § 41-09-07.
2 A security interest is defined in NDCC § 41-01-11(37), which
provides as follows:
"'Security interest' means an interest in personal property or
fixtures which secures payment or performance of an obligation.
The retention or reservation of title by a seller of goods
notwithstanding shipment or delivery to the buyer ( section 41-
02-46) is limited in effect to a reservation of a 'security
interest'. The term also includes any interest of a buyer of
accounts or chattel paper which is subject to chapter 41-09.
The special property interest of a buyer of goods on
identification of such goods to a contract for sale under section
41-02-46 is not a 'security interest', but a buyer may also
acquire a 'security interest' by complying with chapter 41-09.
Unless a lease or consignment is intended as security,
reservation of title thereunder is not a 'security interest' but a
consignment is in any event subject to the provisions on
consignment sales ( section 41-02-43). Whether a lease is
intended as security is to be determined by the facts of each
case; however, (a) the inclusion of an option to purchase does
not of itself make the lease one intended for security, and (b) an
agreement that upon compliance with the terms of the lease the
lessee shall become or has the option to become the owner of
the property for no additional consideration or for a nominal
consideration does make the lease one intended for security."
[**7] NDCC § 41-09-07 [HN1] provides as follows:

"A security interest is a 'purchase money security interest' to the
extent that it is
1. taken or retained by the seller of the collateral to secure all
or part of its price; or
2. taken by a person who by making advances or incurring an
obligation gives value to enable the debtor to acquire rights in
or the use of collateral if such value is in fact so used."
Initially, we note, and First Bank apparently concedes, that
General Fixture qualifies as a purchase money security interest
pursuant to NDCC § 41-09-07(1). Because First Bank did not
sell the equipment to Dakota Square, in order for it to have a
purchase money security interest, it must qualify pursuant to
NDCC § 41-09-07(2) by giving value by making advances or
incurring an obligation which enable the debtor (Dakota Square)
to acquire rights in or the use of the equipment.
General Fixture contended that First Bank's advance to Dakota
Square to make part payment for the equipment occurred on or
about 29 September 1980, well after the receipt and installation
of the collateral and, therefore, First Bank did not give value to
enable Dakota Square to acquire rights [**8] in or the use of
the collateral within the meaning of NDCC § 41-09-07(2).
The official comments to Uniform Commercial Code § 9-107
[NDCC § 41-09-07], reflect that the value given must be present
consideration and cannot be taken as security for, or in the
satisfaction of, a preexisting claim or antecedent debt. For
purposes of the Uniform Commercial Code, [HN2] a person
gives value for rights if he acquires them in return for a binding
commitment to extend credit, and generally for any
consideration sufficient to support a simple contract. NDCC §
41-01-11(44) (a) and (d). If a secured party has bound himself
to make an advance, the advance is made pursuant to
commitment. NDCC § 41-09-05(1)(k).

[HN3]
"A secured party may give value just as fully by committing
himself to supply goods or money as he does if he actually
supplies the goods or furnishes the money at the time the
agreement is made." 1 Bender's Uniform Commercial Code
Service, Secured Transactions, § 4.05(4), p. 304 (1983).
See also, Honea v. Laco Auto Leasing, Inc., 80 N.M. 300, 454
P.2d 782 (1969).
We believe that the "loan commitment" executed by First Bank
on 14 January 1980 and accepted by Dakota Square [**9] on 22
January 1980 constituted an incurred obligation which was a
binding commitment on First Bank and satisfied the value
requirement for a purchase money security interest. The
advance given on 7 March 1980 further reflects that the loan
commitment was a binding commitment sufficient to satisfy the
requirement of value. Nothing in the record suggests that, at
least by the time of the advance on 7 March 1980, the loan
commitment was conditional. Furthermore, the record reflects
that this binding commitment was acted upon and relied upon by
the parties in their actions involving the equipment. In this
respect the loan commitment enabled Dakota Square to acquire
the use of the equipment. We conclude that the security interest
of First Bank satisfied the requirements for a purchase money
security interest.
General Fixture contended that even if First Bank had a
purchase money security interest, its purchase money security
interest attached after General Fixture's attached [*139] and,
therefore, General Fixture had priority.
The requisites for a security interest to attach are the existence
of an agreement that the security agreement attach, value must
have been given, and the [**10] debtor must have rights in the
collateral. NDCC § 41-09-16(1). The value necessary for

purposes of attachment is the same requirement of value for
purposes of determining whether or not a security interest is a
purchase money security interest. In this instance, General
Fixture accomplished all the requisites of attachment pursuant
to NDCC § 41-09-16 no later than when Dakota Square acquired
rights in the collateral and its security interest attached at that
time. First Bank also accomplished all of the requisites of
attachment pursuant to NDCC § 41-09-16 when Dakota Square
acquired rights in the collateral and its security interest attached
at that time. Thus, the security interest of both General Fixture
and First Bank attached at the same time.
Because First Bank and General Fixture held purchase money
security interests which attached at the same time, priority is
determined pursuant to NDCC § 41-09-33(5)(a), [HN4] which
provides as follows:
"5. In all cases not governed by other rules stated in this section
(including cases of purchase money security interests which do
not qualify for the special priorities set forth in subsections 3
and 4), priority between conflicting security [**11] interests in
the same collateral shall be determined according to the
following rules:
a. Conflicting security interests rank according to priority in
time of filing or perfection. Priority dates from the time a filing
is first made covering the collateral or the time the security
interest is first perfected, whichever is earlier, provided that
there is no period thereafter when there is neither filing nor
perfection."
In this instance, First Bank filed its security interest on 12
March 1980, and General Fixture filed its security interest on 23
June 1980. Consequently, the purchase money security interest
of First Bank is superior to and has priority over General
Fixture's purchase money security interest and First Bank was

entitled to the proceeds held by Thet Mah.
Thet Mah cross-appealed from the portion of the trial court's
determination that General Fixture's security interest on the
equipment remained attached to the collateral junior to First
Bank's security interest to the extent that it was unpaid or
unreleased.
The trial court, in its memorandum decision, framed this issue
as "the second aspect of the motion for declaratory judgment
which asks the Court to [**12] declare that the Plaintiff [Thet
Mah] takes the property it purchased from the debtor [Dakota
Square] free of any security lien." The trial court concluded that
"the lien of General Fixture as a secured creditor upon the
collateral sold by the debtor [Dakota Square] to the Plaintiff
[Thet Mah] continues impressed on that collateral, however it is
junior to the lien of the First Bank to the extent that First Bank
remains unpaid upon its unreleased security interest it has in the
collateral."
The issue raised by Thet Mah is "whether Thet Mah, as
purchaser of property subject to prior and junior security
interests, obtains title to the property superior to the junior
security interest when the sale proceeds are applied to pay the
prior security interest."
NDCC § 41-09-27(2) [HN5] provides that:
"Except where this chapter otherwise provides, a security
interest continues in collateral notwithstanding sale, exchange,
or other disposition thereof unless the disposition was
authorized by the secured party in the security agreement or
otherwise, and also continues in any identifiable proceeds
including collections received by the debtor."
The record does not reflect that the [**13] secured parties,
First Bank or General Fixture, authorized the disposition of the
collateral either in the security agreement or [*140] otherwise.
Neither does the transaction between Thet Mah and Dakota
Square fit within any of the exceptions of NDCC Ch. 41-09.

See, e.g., NDCC §§ 41-09-28; 41-09-29; 41-09-30.
We conclude that General Fixture's security interest continues
in the collateral as required by NDCC § 41-09-27(2). We
believe such a result is fair and logical because Thet Mah
bought the property from Dakota Square with notice of the
security interest in the same collateral held by First Bank and
General Fixture.
The district court decision is affirmed.
Kessler Case- Holder in Due Course
Plaintiffs-appellants, City Rentals, Inc. and E.J. Zeller Inc.
(collectively referred to as "City Rentals"), ap-
peal the judgment of the Defiance County Municipal Court
dismissing City Rentals' case against Rodney
Kesler (hereinafter "Kesler"). For the reasons that follow, we
affirm.
In the fall of 2008, City Rentals discovered that its former
bookkeeper, Robin Bauer (hereinafter
"Bauer"), had embezzled several hundred thousand dollars from
the company. (Docs. Nos. 20, 31). On July
29, 2009, Bauer was convicted in a separate criminal case and
ordered to pay $ 200,000.00 in restitution to
City Rentals. (Docs. Nos. 34, 43).
During the commission of the criminal offense, Bauer forged
several checks drawn on City Rentals' bank
account and issued them to various people including Kesler.

Kesler described Bauer as a neighbor and
family friend whom he had known for over thirty years. (Doc.
No. 37, Ex. A). Kesler also explained that be-
tween 2005 and 2007, he had lent money to Bauer on several
occasions in the form of personal loans.
(Docs. Nos. 31, 37, Ex. A). Between June 2007 and July 2008,
Bauer repaid the some of the money she owed
to Kesler by directly depositing checks into his bank account or
making payments on his commercial and
mortgage loans serviced by the bank. Kesler admitted to giving
Bauer permission over the phone to make
each deposit or payment.
However, Kesler stated that unbeknownst to him at the time,
Bauer made these deposits and payments
using City Rentals' checks. (Docs. Nos. 31, 37, Ex. A). Kesler
explained that he never saw or endorsed the
checks Bauer deposited into his account, and he further denied
having any knowledge that the checks used
by Bauer were paid from City Rentals' funds. Kesler
maintained that he only became aware of Bauer's
wrongdoing when the police questioned him about the checks in
the fall of 2008 during their investigation
of Bauer. Kesler was never charged in connection with Bauer's
crime.
City Rentals claimed that Bauer was not authorized to write
the checks to Kesler. (Doc. No. 22). In addi-
tion, it is undisputed by the parties that Kesler never provided
any goods or services to City Rentals. After
becoming aware of Bauer's embezzlement, City Rentals notified
Kesler that Bauer had forged the checks
issued to him and demanded that he return the funds. (Doc. No.
34). Kesler refused City Rentals' demands.
City Rentals subsequently filed this action in the Defiance

County Municipal Court alleging that Kesler's
retention of the funds constituted unjust enrichment. Kesler
maintained that because he received the
checks as payment on an antecedent debt he was a holder in due
course under the relevant provisions of
the UCC and, therefore, was under no obligation to return the
funds to City Rentals.
Prior to trial, the parties stipulated that Bauer deposited $
13,420.00 of City Rentals' money into Kes-
ler's accounts. On May 20, 2010, the court conducted a bench
trial. The only witnesses to testify were
Kesler and his wife. On June 10, 2010, the trial court issued its
decision granting judgment in favor of Kesler
and dismissing City Rentals' case. . In rendering its decision,
the trial court concluded that the UCC, and not
common law principles, governed this case. . The trial court
further stated that it was "convinced that De-
fendant Kesler had no knowledge of Robin Bauer using money
embezzled from the Plaintiffs." The trial
court then concluded as follows:
With the evidence presented to the Court, case law mandates
that Plaintiffs' case be dis-
missed, the Defendant having received payment of an
antecedent debt in good faith with-
out knowledge of the funds having been embezzled by the payer
[sic].
This is not to say that Plaintiffs don't have further recourse as
to the return of their
money, as the Defiance County Common Pleas Court has
already ordered the repayment of
the money embezzled by their former employee.

On June 29, 2010, City Rentals filed its notice of appeal and
submitted the following three assignments
of error for our review.
ASSIGNMENT OF ERROR NO. I
Although the trial court did not explicitly indicate that it relied
on the UCC in rendering its decision, it is
apparent that it followed the UCC doctrine of holder in due
course in making its ruling. In particular, the
trial court in its Judgment Entry dismissing City Rentals' case
quoted at length from Hinkle v. Cornwell Qual-
ity Tool Company (1987), 40 Ohio App.3d 162, 532 N.E.2d 772.
In Hinkle, the Ninth District Court of Appeals
held that "only bad faith on the part of a third person receiving
stolen money or his failure to pay valua-
ble consideration therefor, will defeat his title thereto as against
the true owner. Money and bank notes
are the exception to the general rule that no one can obtain title
to stolen property. A holder in due course
of a stolen negotiable instrument can receive good title thereto
and is subject only to the defense that he
was a party to the theft."
Despite City Rentals' contentions that the common law should
control this case, we believe the trial
court correctly determined that the facts of this case fall under
the province of the UCC. The payments at
issue were made by eight checks written on City Rentals'
account. Checks are negotiable instruments
falling within the scope of the UCC, .

Having concluded that the provisions of the UCC govern the
parties' rights and responsibilities in this case,
we must next determine whether the trial court's decision.
Implicit in the trial court's ruling is its determi-
nation that Kesler was a holder in due course and, therefore, not
subject to City Rentals' claim for unjust
enrichment. Generally speaking, a holder in due course takes
an instrument, in this instance a check, free
from all claims and defenses with certain limited exceptions.
All American Finance Co. v. Pugh Shows, Inc.
(1987), 30 Ohio St.3d 130, 131-32, 30 Ohio B. 443, 507 N.E.2d
1134. A person who is not a holder in due
course takes the instrument subject to all valid claims, defenses
available in an action on a simple contract,
claims in recoupment and certain other specified defenses. Id.;
see also, R.C. 1303.35 (listing the claims and
defenses in recoupment).
In order to qualify as a holder in due course, a person must
meet all the statutory requirements. Arca-
num Nat. Bank v. Hessler (1982), 69 Ohio St.2d 549, 552, 433
N.E.2d 204. "Under UCC 3-302, a holder be-
comes a holder in due course if the holder takes the instrument
(1) for value, (2) in good faith, (3) and
without notice of any claims or defenses otherwise available to
the person obligated on the instrument or
various defects in the instrument." Dice v. White Family
Companies, Inc., 173 Ohio App.3d 472, 480, 2007
Ohio 5755, P 27, 878 N.E.2d 1105, citing R.C. 1303.32(A)(2).
At trial, Kesler testified that he had known Bauer for over
thirty years. Kesler explained that he and
Bauer were raised in the same town, went to the same primary
and secondary schools and were neighbors
at one point. Kesler testified that his family and Bauer's

family spent time together on several occa-
sions because their children were roughly the same ages.
Kesler testified that he did not hesitate in lending Bauer
money because he was aware that she was go-
ing through a difficult time with her marriage and, based on the
first few instances that he had lent her
money, he trusted that Bauer would promptly repay him. .
Kesler stated that Bauer had established a
course of conduct in which she would repay him in person with
either cash or a check written on her per-
sonal checking account.
Kesler maintained that when he was able to meet with Bauer she
would pay him in cash or with a personal
check.. It was only on the occasions that he did not personally
meet with Bauer that she repaid him by di-
rectly depositing the checks into his accounts.
Kesler revealed that he was notified of Bauer's wrongdoing
several months after Bauer's last repayment
when the police questioned him during their investigation of
Bauer. Kesler denied having any knowledge
that Bauer had used City Rentals' checks to make repayment to
him.
Based on the testimony elicited at trial, we find that the
judgment of the trial court was supported by
some competent, credible evidence going to all of the essential
elements in this case. In reviewing the trial
court's application of the holder in due course doctrine to this
case, we agree with the trial court that Kes-
ler paid value for the checks in question. Bauer deposited the

checks into Kesler's account as repayment for
an existing debt she owed to him. [HN10] Section 1303.33 of
the Revised Code provides that "an instru-
ment is issued or transferred for value if * * * the instrument is
issued or transferred as payment of, or as
security for, an antecedent claim against any person, whether or
not the claim is due." R.C. 1303.33(A)(3).
Regarding the second holder in due course element of good
faith, City Rentals presented no evidence
that Kesler lacked good faith when he received the checks. See
Buckeye Check Cashing, Inc., v. Camp, 159
Ohio App.3d 784, 787, 2005 Ohio 926, 825 N.E.2d 644 (stating
that good faith is defined as the absence of
bad faith or dishonesty with respect to a party's conduct with a
commercial transaction). On the contrary,
Kesler's testimony indicates that he was completely unaware
that Bauer used City Rentals' checks to
make the repayments that she deposited into his accounts.
We also find that the evidence supported the trial court's
decision with respect to the third holder in due
course element of notice. In order to prevent one from taking as
a holder in due course, notice of claims or
defenses of the person obligated on the instrument must be
acquired at the time of the taking or the time
the instrument is transferred and not subsequently arising
thereafter. Kesler was consistent in his adamant
denial of having any knowledge that Bauer forged the checks
she deposited into his accounts at the time
she made the repayments. Furthermore, City Rentals presented
no evidence at trial to rebut Kesler's testi-
mony. After reviewing the record before us it is evident that
City Rentals simply failed to present any evi-
dence to overcome Kesler's defense that he was a holder in due
course under these circumstances.

A central tenant of the holder in due course doctrine is that the
holder in due course takes the instru-
ment free of claims or defenses made by the obligor, in this case
City Rentals.
Moreover, although not mentioned by the parties, we note that
the UCC expressly addresses the liability
of the em-ployer in a situation, such as this one, where an
employee entrusted with the responsibility of
issuing checks on behalf of the employer has committed fraud.
See R.C. 1303.47 (Employer's responsibility
for fraudulent endorsement by employee). This particular
section adopts the principle that the risk of loss
for certain fraudulent conduct by employees who are entrusted
with the responsibility with respect to
checks should fall on the employer rather than on innocent third
parties. The rationale for this position is
that "the employer is in a far better position to avoid the loss by
care in choosing their employees, in super-
vising them, and in adopting other measures to prevent fraud in
the issuance of instruments in the name
of the employer." Official comment to UCC § 3-405; see R.C.
1303.47. Notwith-standing the above, we
acknowledge that Bauer was not a party to this case and that no
evidence was presented at trial regarding
Bauer's employment with City Rentals other than the fact that
she was employed as a bookkeeper for the
company.
Finally, in upholding the judgment of the trial court we are
reminded of the following. "[T]he Uniform
Commercial Code is a delicately balanced statutory scheme
designed, in principle, to ultimately shift the
loss occasioned by negotiation of a forged instrument to the
party bearing the responsibility for the loss.

Ideally, the thief is held accountable. The unfortunate reality is
that the loss is often shifted to the innocent
party whose conduct or relationship with the forger most
facilitated the risk of loss." Ed Stinn Chevrolet, Inc.
v. National City Bank (1986), 28 Ohio St.3d 221, 226, 28 Ohio
B. 305, 503 N.E.2d 524.
Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm
the judgment of the trial court.
Judgment Affirmed.
The American Society for Training and Development (ASTD)
Trainer’s Sourcebook on Diversity
Valuing Diversity Self-Assessment – Worksheet
Rate yourself openly and honestly on a scale of 1 to 5 for each
item.
Rarely Sometimes Always
1. I understand the agency’s diversity goals 1 2 3 4
5
2. I regularly assess my strengths and weaknesses in the areas
of diversity, and I consciously try to improve myself. 1 2
3 4 5

3. I’m always asking questions. I’m curious about new things
and people. 1 2 3 4 5
4. When I don’t understand what someone says, I ask for
clarification. 1 2 3 4 5
5. I’m committed to respecting all co-workers, customers, and
vendors. 1 2 3 4 5
6. I work willingly and cooperatively with people different
from me. 1 2 3 4 5
7. I recognize how bonding with my own group may exclude,
or be perceived as excluding others. 1 2 3 4 5
8. I can communicate with and influence people who are
different from me in positive ways. 1 2 3 4 5
9. I’m interested in the ideas of people, who don’t think as I do,
and I respect their opinions even when I disagree. 1 2 3
4 5
10. Some of my friends are different from me in age, race,
background, etc. 1 2 3 4 5
11. I recognize I’m a product of my background: my way isn’t
the only way. 1 2 3 4 5
12. I’m aware of my prejudices and consciously try to control
my assumptions about people. 1 2 3 4 5
13. I try to help others understand my differences. 1 2 3
4 5
14. I work to make sure that people who are different from me

are heard and are respected. 1 2 3 4 5
The American Society for Training and Development (ASTD)
Trainer’s Sourcebook on Diversity
15. I help others succeed by sharing unwritten rules and
showing them how to function better. 1 2 3 4 5
16. I apologize when I’ve offended someone. 1 2 3
4 5
17. I resist the temptation to make another group the scapegoat
when something goes wrong. 1 2 3 4 5
18. I think of the impact of my comments and actions before
I speak or act. 1 2 3 4 5
19. I refrain from repeating rumors that reinforce prejudice
and bias. 1 2 3 4 5
20. I recognize and avoid using language that reinforce
stereotypes. 1 2 3 4 5
21. I include people different from me in informal networks
and events. 1 2 3 4 5
22. I believe and convey the nontraditional employees are as
skilled and competent as others. 1 2 3 4 5
23. I get to know people as individuals who are different
from me. 1 2 3 4 5

24. I turn over responsibility to people who are different from
me as often as I do people who are like me. 1 2 3 4
5
25. I disregard physical characteristics when interacting with
others
and when making decisions about competence or ability. 1
2 3 4 5
26. I avoid generalizing the behavior or attitudes of one
individual to an entire group. 1 2 3 4 5
(e.g, “All men are…” “All black people are…”)
27. I say “I think that’s inappropriate” when I think someone is
making a derogatory comment or joke. 1 2 3 4 5
28. I recognize that others may stereotype me, and I try to
overcome incorrect assumptions that they may make. 1 2
3 4 5
Score by column ____+______+_____+_____+______
=Total Score
0 4 24 44 35
107

Page Page 336 N.W.2d 134, ; 1983 N.D. LEXIS 302, ;36 U.C..docx

Page Page 336 N.W.2d 134, ; 1983 N.D. LEXIS 302, ;36 U.C..docx

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Page Page 336 N.W.2d 134, ; 1983 N.D. LEXIS 302, ;36 U.C..docx