Davis v. Wharf Res. (USA), Inc.
| Decision Date | 15 July 2015 |
| Docket Number | No. 27204.,27204. |
| Citation | 867 N.W.2d 706 |
| Parties | Lisa M. DAVIS, Plaintiff and Appellant, v. WHARF RESOURCES (USA), INC., a wholly owned subsidiary of Goldcorp, Inc., Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Heather M. Lammers Bogard, Christopher A. Christianson of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
Daneta Wollmann of Banks, Johnson, Kappelman & Becker, PLLC, Rapid City, South Dakota, Attorneys for defendant and appellee.
[¶ 1.] Wharf Resources, Inc. (Wharf), a wholly owned subsidiary of Goldcorp, Inc., terminated Lisa Davis for “disruptive behavior in the workplace.” Davis filed two claims of gender discrimination and retaliatory discharge with the South Dakota Department of Labor, Division of Human Rights (Department). The circuit court affirmed the Department's finding of no probable cause. We affirm.
[¶ 2.] Wharf, a mining company, employed Davis until she was terminated on May 21, 2013.1 Davis received good performance evaluations during her tenure at Wharf. She was promoted to leader of her crew and was asked to lead her crew in the Wellness Program, serve in the Emergency Response Team, and attend the Leadership Development Program. At her five-year employment anniversary, she was commended in front of her crew and acknowledged as a “great crew leader.” Both Davis and Wharf agree that with the exception of one “minor” write up, Davis worked without incident until May 7, 2013.
[¶ 3.] Wharf employed Davis as a truck driver. Sometime in the beginning of 2010, Davis was asked to learn how to perform the Plant Operator II (Operator II) position. She subsequently learned and temporarily performed the Operator II position. When a permanent position became available several months later, she applied. In July of 2010, Dave Emery, the Process General Foreman, hired Bill Swenson for the position. This decision upset Davis because she thought she deserved the position instead of Swenson. Soon after Swenson was hired, Davis learned from other employees that several years ago, Emery made negative remarks about women not belonging in mining. Davis talked to Ron Everett, the Administrative Department Head, about feeling uncomfortable with Emery's comments. Wharf investigated the matter and concluded that Emery was joking when he made the comments.
[¶ 4.] Wharf included an “Open–Door Policy” in its employee handbook that allowed employees to meet with upper-management and discuss certain problems and concerns:
Problems and concerns can often be effectively resolved by communication. The open-door policy at Wharf Resources allows employees the opportunity to discuss ideas, policies, procedures, working relationships, and other concerns with any member of Company management. If you need assistance to resolve a problem, you are encouraged to discuss it with your immediate supervisor first. If the problem is not satisfactorily resolved or if you feel you cannot discuss the matter with your supervisor, you may address the issue with the manager of your department, human resources staff, or with the general manager.
The purpose section of the policy provided, (Emphasis added.)
[¶ 5.] Davis utilized the open-door policy and scheduled a meeting with Mine General Manager, Mike McClelland, on May 7, 2013. The original purpose of the meeting was to discuss a project that McClelland needed to approve before Davis could present it at a class. However, when the meeting started, Davis told McClelland that she needed to discuss some personnel issues and invited him to have someone from human resources in the meeting. McClelland asked Ken Nelson, the Operations Manager, to participate in that part of the meeting because Ron Everett and Human Resources Generalist Meg Manke were unavailable. Davis became flustered and nervous because, in her view, Nelson was part of the problem; but she ultimately agreed to the presence of Nelson at the meeting.
[¶ 6.] At the May 7th meeting, Davis informed McClelland and Nelson about past improprieties involving the management at Wharf and current low morale among an unhappy, disgruntled workforce. She stated that the “new” work schedule was a large part of employee dissatisfaction. She further expressed dissatisfaction with the hiring of a male employee, Swenson, for the Operator II position instead of her. She explained that Bobbie Isaak, a female employee at Wharf, had applied for a similar position that was also assumed by a male employee. Davis spent most of the meeting discussing her frustration that her husband, Bruce Davis, an employee of Wharf, was placed on a performance improvement plan by Emery—his supervisor. Davis further stated that Bruce should have received the Process General Foreman position instead of Emery.
[¶ 7.] On May 14, 2013, Davis met with Meg Manke in a follow-up, audio-recorded meeting. Davis elaborated on the problems and concerns she had expressed at the May 7th meeting. At the beginning of this meeting, Davis reiterated that Emery was a bully, a liar, and a sociopath, and that he had no integrity, morals, or ethics. Davis admitted she was emotional at the prior meeting and that “[i]t took [her] two days to get over her hysteria last week.” She conceded,
[¶ 8.] Wharf terminated Davis for “disruptive behavior in the workplace” on May 21, 2013. Several months later on August 15, 2013, Davis filed a gender discrimination claim and a retaliatory discharge claim with the Department alleging Wharf violated SDCL 20–13–10 of the South Dakota Human Relations Act and Title VII of the Civil Rights Act of 1964.2 Davis submitted a detailed narrative describing the basis for her gender discrimination and retaliatory discharge claims. She stated in part, “I believe that I was fired for following the company's open door policy and whistle blower policy because I brought my concerns about myself and Bobbie Isaak being passed over and for bringing to the company's attention that I believe the same man that passed her and I over is bullying and harassing the people in his department.”
[¶ 9.] On September 7, 2013, Wharf submitted a written position statement addressing Davis's termination. Wharf stated that at the May 7, 2013 meeting, “Davis was overtly hostile, aggressive, and disrespectful.” She used “vulgar language” and made “allegations regarding corruption and mismanagement of the Wharf mine.” She “repeatedly made disrespectful comments toward employees in supervisory or managerial positions.” Specifically, Davis “expressed anger that her husband should have been given the position of General Process Foreman, instead of Dave Emery.” She made “derogatory and disparaging comments about” Emery and stated that he was “sexist.” Consequently, Wharf concluded that although it “has an open door policy that welcomes constructive criticism and recommendations,” Davis's behavior during the May 7th meeting exceeded “any reasonable use” of the policy. Moreover, before and after the May 7, 2013 meeting, Davis “went to various other Wharf Resources employees expressing her dissatisfaction with ... Emery in an attempt to raise support for her belief that [he] should be fired.” Thus, Wharf stated that it terminated Davis “due to her disrespectful and unprofessional conduct which caused disruption in the workplace.”
[¶ 10.] The Department mailed Davis a copy of Wharf's position statement on September 18, 2013, instructing her to reply to the statement and identify those facts which were in dispute and provide evidence to support her position. The Department expressly told Davis that a “failure to dispute any of [Wharf's] facts will indicate that you agree with those facts.” She was asked to respond by October 2, 2013. The deadline was extended to October 9, 2013, after she requested an extension. Ultimately, Davis did not dispute Wharf's rendition of the facts or the reason for her termination.
[¶ 11.] The Department issued findings of fact, conclusions of law, and a memorandum decision on December 11, 2013. The Department determined that there was no probable cause for Davis's claims. The Department noted that Davis “did not provide a response disputing [Wharf's] reasons for her discharge.” The circuit court affirmed the Department's finding of no probable cause. Davis appeals and raises the following issues for our review:
[¶ 12.] “On an appeal from an administrative agency decision, this Court reviews the agency findings in the same manner required of the circuit court.”
Associated Sch. Bds. of S.D., Inc. v. Hughes Cnty., 2002 S.D. 41, ¶ 8, 643 N.W.2d 417, 419. “When the record before the agency consists entirely of documentary evidence, our review is de novo.” Williams v. S.D. Dep't of Agric., 2010 S.D. 19, ¶ 5, 779 N.W.2d 397, 400. Here, the record before us consists entirely of documentary evidence; therefore, our review is de novo.
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