concurring specially.
I concur in the result reached by the majority opinion. Insofar as the analysis under and reliance upon federal law are concerned, I retain the same reservation I expressed in Moses v. Burleigh County, 438 N.W.2d 186, 194 (N.D.1989) [Vande-Walle, J., concurring in part and dissenting in part]. St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), is but an example of why we ought to develop our own jurisprudence or be prepared to change our decisions based on the next turn of events in *233the construction and application of the Federal Act.
In Moses, I was skeptical of the adaptation of the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) scheme to our law. The adaptation by the majority in this case with the difference in the effect of presumption under NDREv 301 and Rule 301 of the Federal Rules of Evidence only heightens that skepticism. The McDonnell Douglas scheme is, after all, not “black letter” law. Its presumption is but “a procedural device, designed only to establish an order of proof and production.” Hicks, supra, — U.S. at -, 113 S.Ct. at 2754-56, and has been described as “a ... ‘way to evaluate the evidence’ in a Title VII disparate-treatment case_” Hicks, supra, at -, 113 S.Ct. at 2756, [Souter, J., dissenting] quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).
The majority opinion elevates that scheme — which includes a presumption of unlawful discrimination I believed objectionable in Moses — beyond what the Supreme Court has contemplated, by combining the McDonnell Douglas presumption with our Rule 301 which shifts the burden of persuasion, not the burden of production as does Federal Rule 301. I suggest the effect is not “a procedural device” “to evaluate evidence” but rather the effect is to create evidence for the purpose of assisting the plaintiff to win a lawsuit. Nothing in Chapter 14-02.4, NDCC suggests such a result and I would not import the McDonnell Douglas scheme into our law to achieve it. Triers of fact have historically evaluated evidence, without such a scheme. The results may not always be what certain plaintiffs or defendants desired, but that does not justify a contrived result.
Notwithstanding the scheme envisioned by the majority, I agree with the trial court and the majority that plaintiff did not prove her case.