Ferderer v. North Dakota
| Decision Date | 22 August 2006 |
| Docket Number | No. 1:05-cv-019.,1:05-cv-019. |
| Citation | 447 F.Supp.2d 1053 |
| Parties | Jacqui FERDERER, Plaintiff, v. State of NORTH DAKOTA and Leo Reinbold, in his individual and official capacity, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Jacqueline S. Anderson, Patricia R. Monson, Nilles Law Firm, Fargo, ND, for Plaintiff.
Tag C. Anderson, Attorney General's Office, Civil Litigation, Bismarck, ND, for Defendants.
Plaintiff Jacqui Ferderer ("Ferderer") commenced this action on February 10, 2005, against the State of North Dakota ("State") and former North Dakota Public Service Commissioner Leo Reinhold ("Reinhold"), both in his individual and official capacities, alleging gender discrimination in violation of Title VII of the Civil Rights Act, violations of 42 U.S.C. § 1983, and various state law claims.1
The state law claims were later dismissed in favor of an action filed in state court. Also, Reinhold reached a settlement with Ferderer and was dismissed from the action. Consequently, the sole remaining defendant is the State and the remaining cause of action is gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq.
Before the court is the State's motion for summary judgment. Unless otherwise indicated, the facts set forth below have been construed most favorably for Ferderer.
Ferderer is employed as an administrative assistant in the office of Karen Tyler, the State's securities commissioner. She reports directly to Commissioner Tyler.
The securities commissioner is a legislatively-created, as opposed to constitutionally-created, executive branch officer. The securities commissioner is appointed by the governor for a four-term, subject to confirmation by the senate. N.D.C.C. § 10-04-03. The securities commissioner's office is relatively small; only eight or nine persons were employed in the office when the events in this case took place.
Reinhold was an elected public service commissioner. The North Dakota Constitution mandates that, within the executive branch, there shall be three publicly-elected public service commissioners whose powers and duties are to be determined by the legislature. N.D. Const. Art V, § 2. Pursuant to this mandate, the legislature created the public service commission ("PSC"), which is compromised of the three public service commissioners. N.D.C.C. 49-01-02. The legislature has also enacted statutes that govern the PSC's operations and define its jurisdiction. See generally N.D.C.C. chs. 49-01 & 49-02.
Reinhold was a well-recognized figure around the capitol, having served as a PSC commissioner for many years and being at that time one of the longest-serving public utility commissioners in the country. Reinhold was pressured into retirement because of the incidents occurring in this case, as well as other incidents that were brought to light as result of what happened.
The securities commissioner's office is located on the fifth floor of the tower portion of the State Capitol and the PSC's offices are located on the twelfth and thirteenth floors. All elected state officials and the chief-executive officers of the principal departments are required to maintain their offices in the Capitol. N.D. Const. Art. V, § 6.
1. First incident
In late February or early March 2003, Ferderer states she encountered Reinhold in the hallway of the Capitol on the ground floor. She claims Reinhold asked her if she was "being good" and she responded by asking him if he was being good. Reinbold then allegedly told her that his secretary was not in the office and that she should come up "to play games." Ferderer states she then asked him what kind of games he was talking about and that Reinbold answered "we can make them up as we go along." After this comment, Ferderer states that they both entered the elevator where he then proceeded to bend down and kiss her on the cheek while the elevator was en route to the fifth floor. No one else was on the elevator. Ferderer states that, before she could get off the elevator, Reinhold kissed her on the cheek a second time. See Docket No. 30, Deposition of Jacqui Ferderer ("Ferderer Dep.") at 12-19; Docket No. 30, Laurie Hammeren Deposition ("Hammeren Dep."), ex. 1A, Investigation Report dated April 1, 2003 ("First Investigation Report").
2. Events following the first incident
Shortly afterwards, Ferderer reported to Diane Lillis, a co-worker in the securities commissioner's office, what happened The evidence is disputed as to exactly what the conversations were between Ferderer and Lillis. In an affidavit filed in this action, Lillis states that Ferderer told her about the incident because Lillis knew Reinhold casually through political circles. She states that Ferderer seemed embarrassed but not overly upset and claims that Ferderer told her not to mention what happened to anyone else. Finally, Lillis states that, despite what she understood to be Ferderer's request not to mention it to anyone, she felt compelled to call PSC Commissioner Tony Clark, another political acquaintance, to tell him about the incident anyway. See Docket No. 42, Affidavit of Diane Lillis ("Lillis Affidavit").
It appears that part of the reason why Lillis called Commissioner Clark was because she also had been the subject of an unwanted advance by Reinbold in the fall of 2002. On that occasion, Lillis was leaving the Capitol to go to lunch and met Reinhold at the north entrance to the Capitol tower. Reinhold opened the door for her and then kissed her on the lips. Lillis claims she thought it was strange, but not something she felt had to be reported. See Lillis Affidavit.
Ferderer disputes, in part, Lillis's account of their conversations. Although her deposition testimony is unclear, and at points may be contradictory, she suggests in her deposition, and again in an affidavit filed with the court, that the reason she told Lillis was because Commissioner Tyler was not in the office that day and because her understanding from her conversation with Lillis was that Lillis was going to call PSC Commissioner Clark to report what had happened. She also states in her affidavit that she approved Lillis calling Clark. See Ferderer Dep. at 51-52; Docket No. 52, Affidavit of Ferderer ("Ferderer Affidavit").2
Lillis does not say anything in her affidavit about whether she told Ferderer about the fact that she had called Commissioner Clark and what Clark's response was. However, Ferderer appears to suggest in her affidavit that Lillis later told her about her conversation with Clark. This is also consistent with what Ferderer stated earlier in a complaint filed with the North Dakota Department of Labor on December 11, 2003, before litigation was commenced. In that filing, Ferderer stated that Lillis immediately called Clark and suggested that someone had to do something about Reinhold because this had been going on for sometime. She also states that Lillis's comment to Clark specifically was that someone had to put a "leash on this guy once and for all." Ferderer also claims that Clark's response to Lillis after being advised of the incident was "Oh gross." See Ferderer Dep., ex. 2.
While there are disputed issues of fact as to what Ferderer told Lillis and what Ferderer's understandings were in terms of what Lillis was going to do, there is no dispute about the fact that Ferderer did not inform Commissioner Tyler about the first incident, at least initially. The only other person she told at that time was her husband. See Ferderer Dep. at 43-45.
The securities commissioner did not have any formal, written policies in place dealing with sexual harassment at the time of the first and second Ferderer incidents. Commissioner Tyler states in an affidavit that she filed with this court that she maintained an "open door" policy and that her employees were advised to come to her anytime they had a problem. One of Ferderer's contentions now is that she and Lillis would likely have handled things differently, and that this in turn would likely have resulted in an earlier investigation and discovery that Reinbold was a serial harasser, had there been an effective sexual harassment policy in place. See Docket No. 43, Affidavit of Karen Tyler ("Tyler Affidavit").
As it turned out, Commissioner Tyler had her own encounter with Reinhold, also in a Capitol elevator, in February 2003, which most likely was just prior to the first Ferderer incident. The investigation report prepared following the second Ferderer incident states that Commissioner Tyler told investigators that, in February 2003, Reinbold stepped close to her in one of the Capitol elevators and stated "it's just the two of us." See First Investigation Report.
Thus, with the occurrence of the first Ferderer incident, Reinhold had managed, within less than six months, to either assault or make questionable remarks to not only Ferderer, but also Lillis and Tyler. This represents one-third of the total persons employed within the securities commissioner's office, and, if only female employees are considered, the percentage is undoubtedly much higher.
In an affidavit filed with the court, Commissioner Clark acknowledges that Lillis called and told him about the first elevator incident involving Ferderer, but without disclosing Ferderer's identity. Clark states that he asked Lillis what she wanted him to do and was advised that the individual accosted was not making a big deal out of the matter and did not want it pursued. Clark, who at that point had been a commissioner for only about two years, states in his affidavit that he had never witnessed nor been made aware of any complaints by "PSC employees" of Reinbold engaging in any inappropriate or harassing behavior.3 See Docket No. 36, Affidavit of Anthony Clark ("Clark...
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