Gardner v. Tripp County, S.D.
| Decision Date | 28 October 1998 |
| Docket Number | Civ.No. 97-3042. |
| Citation | 66 F.Supp.2d 1094 |
| Parties | Deb GARDNER, Plaintiff, v. TRIPP COUNTY, SOUTH DAKOTA, and Tripp County Highway Department, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Charles Thomas Abouresk, Abouresk Law Offices, Rapid City, SD, Stephanie Carlson Bengford, Rapid City, SD, for plaintiff.
William C. Garry, Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, Theresa Moore Maule, Winner, SD, for defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
[¶ 1] Deb Gardner has been employed as a secretary and bookkeeper by the Tripp County Highway Department ("TCHD") in Winner, South Dakota, since 1988. She is supervised by Joel Swedlund ("Swedlund"), the Highway Superintendent for Tripp County, and is ultimately supervised and employed by Tripp County through its Board of County Commissioners.
[¶ 2] On June 29, 1995, plaintiff was visiting with two female co-workers in the county highway shop when Darrell Olson ("Olson"), an employee and foreman of TCHD, slapped plaintiff hard on the buttocks. Plaintiff immediately reported Olson's unwelcome sexual conduct to Swedlund. According to plaintiff, Swedlund failed to respond to her complaint over the next day and a half, despite her repeated requests. Soon thereafter, plaintiff reported the incident and Swedlund's failure to act on her complaint to the Tripp County Commissioners and to Kathleen Flakus, the Tripp County Auditor. On July 7, 1995, Swedlund met with TCHD employees and distributed the County's sexual harassment policy. Plaintiff claims that at this meeting, which lasted approximately thirty seconds, Swedlund stated that he did not agree with the policy, nor did he ever put a reprimand in Olson's file. Olson subsequently apologized to plaintiff at a Commission meeting and resigned from his position with TCHD on September 17, 1995, for reasons unrelated to plaintiff's complaint. Plaintiff believes Olson's apology was insufficient punishment for his behavior towards her.
[¶ 3] According to plaintiff, she and Swedlund enjoyed a positive working relationship prior to the incident involving Olson and her notification to the Commissioners of his failure to take appropriate action. She claims Swedlund adversely changed his behavior toward her since that time, including (1) ignoring or being rude to her; (2) referring to her as a "redheaded bitch"; (3) refusing to speak to her even when necessary for plaintiff to do her job; (4) directing questions to her through a third person; and (5) refusing to help her with daily business activities at the shop. Plaintiff claims this behavior has had a direct effect on her ability to do her job at the level to which she had been performing prior to her sexual harassment complaint.
[¶ 4] Between June 30, 1995, and July 25, 1995, plaintiff communicated with the Commissioners three times about Swedlund's claimed retaliatory behavior towards her. On July 25, plaintiff attended a Commission meeting to discuss her complaints about Swedlund's behavior. She claims that the Commissioners advised her to take vacation time immediately and admitted they had not spoken to Swedlund about his behavior. Plaintiff believes certain Commissioners knew of, and some even supported, Swedlund's treatment of her after she filed the sexual harassment complaint. As a result of defendants' conduct, plaintiff claims that she suffered emotional and physical health problems, including a nervous breakdown on September 8, 1995, for which she was hospitalized. She further claims she has been diagnosed with a medical condition aggravated by stress and has received treatment and medication for this condition and for her depression.
[¶ 5] Until 1996, plaintiff received additional overtime hours during the summer months. The Commission affirmed Swedlund's decision not to extend summer hours to plaintiff in 1996, because, according to defendants, additional hours for a secretary-bookkeeper were not justified by the workload. Plaintiff claims that she did not receive the additional hours because of her sexual harassment complaint and that in previous years, she received 50 hours per week, the same as other TCHD employees, because their additional work made more work for her. Moreover, she claims that when she approached Swedlund to ask him why her overtime hours were not extended, he answered that one of the Commissioners was "giving him some shit" about giving her the extra hours. Plaintiff also claims that she did not receive interviews for other jobs for which she applied because she had been labeled a "troublemaker" for her sexual harassment complaints. Finally, plaintiff claims that she remains in fear of losing her job based on defendants' conduct.
[¶ 6] Plaintiff instituted this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (1982), and included pendent state law claims. In Count I of the complaint, plaintiff alleged that the acts and omissions of defendants constitute sexual harassment and sex discrimination in violation of Title VII. 42 U.S.C. § 2000e-2(a). Count II alleges that the acts and omissions of defendants constitute sex discrimination and retaliation in violation of Title VII. 42 U.S.C. § 2000e-3. Plaintiff asserts in Counts III and IV that these same acts and omissions constitute sex discrimination and reprisal in violation of the South Dakota Human Rights Act, i.e., SDCL §§ 20-13-10 and 20-13-26 (Michie 1995). Plaintiff also alleges in Count V intentional infliction of emotional distress, negligent infliction of emotional distress in Count VI, and slander in Count VII, all based on defendants' alleged acts and omissions.
[¶ 7] Defendants filed a motion for summary judgment, Doc. 30. Defendants claim they are entitled to summary judgment as to Counts I and III because plaintiff has failed to show that she has been a victim of sexual harassment or subjected to a hostile work environment. Defendants also claim they are entitled to summary judgment as to Counts II and IV because plaintiff has failed to establish that they took adverse action against her, and even if such adverse action is demonstrated, plaintiff has failed to show a causal relationship between her complaint of sexual harassment and the adverse action. Finally, defendants point out that if summary judgment is granted, this Court would lack jurisdiction over the pendent state law claims. 28 U.S.C. § 1367. These matters came on for hearing on September 30, 1998, with Charles Abourezk appearing for plaintiff and with William Garry and Theresa Maule appearing for defendants.
[¶ 8] Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Donaho v. FMC Corp., 74 F.3d 894, 898 (8th Cir.1996). The United States Supreme Court has held that:
The plain language of Rule 56(c) mandates the entry of summary judgment ... 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "A material fact dispute is genuine if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995). In considering the motion for summary judgment, this Court must view the facts in the light most favorable to plaintiff and give plaintiff the benefit of all reasonable inferences that can be drawn from the facts. Donaho, 74 F.3d at 897-98. The Court further points out that in employment discrimination cases under Title VII, summary judgment should seldom be granted. Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir.1997); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994).
[¶ 9] Plaintiff claims generally that the acts and omissions of defendants constitute sexual harassment under Title VII and SDCL § 20-13-10. Defendants argue that the isolated incident in which Olson slapped plaintiff on the buttocks is insufficient to establish a hostile work environment. According to defendants, the alleged harassment involving Olson was not sufficiently pervasive to constitute a hostile work environment as required by Title VII. Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir.1986) ().
[¶ 10] In order to prove that she was subjected to a hostile work environment in violation of Title VII, plaintiff must show that "(1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) defendants knew or should have known of the harassment and failed to take proper remedial action." Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998) (citing Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir.1993)); see also Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Both sides admit that, at least for the purpose of the motion under consideration, the first three elements of the hostile work environment claim are satisfied.
[¶ 11] As to the fourth element, harassment affects a term, condition, or privilege of employment if it is "`sufficiently severe or pervasive to alter the...
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