Nelson v. Zinke, CV 16-135-M-DWM

Decision Date27 February 2018
Docket NumberCV 16-135-M-DWM
CourtU.S. District Court — District of Montana

In October 2016, Plaintiff Karen Nelson ("Nelson") sued Defendant Ryan Zinke, Secretary of the United States Department of the Interior ("the Department"), and Lawrence Lockard ("Lockard") because she was sexually assaulted on a work scuba diving trip in September 2015. Nelson seeks to hold the Department liable for sexual discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), and to hold Lockard liable for negligence. (Doc. 1.) The Department moved for summary judgment, insisting that Nelson cannot show liability under Title VII as a matter of law. (Doc. 20.)

Nelson's only chance of success on her Title VII discrimination claim is to show that Lockard was her supervisor. Given the isolated nature of the incident, Nelson cannot establish a hostile work environment. And, while Nelson raises a genuine issue of material fact as to the authority held by Lockard, she fails to show he could effectuate tangible employment action against her as a matter of law. Consequently, Lockard is not her supervisor for the purposes of Title VII. Because Nelson fails to show that the Department was negligent, summary judgment in the Department's favor is appropriate. The Department is also entitled to judgment on Nelson's Title VII retaliation claim.


The facts are largely undisputed, (see Fact Statements, Docs. 22, 33), but to the extent disputes exist, the factual record is viewed in the light most favorable to Nelson, Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam).

I. The Montana Ecological Services Office

The United States Fish and Wildlife Service ("the Service") is one of many bureaus that make up the Department. (Doc. 33 at ¶ 1.) The Service itself is divided into regions and offices. (Id.) Both Nelson and Lockard worked for the Montana Ecological Services Office in Region 6. (Id.) The Montana Ecological Services Office is involved in the oversight and evaluation of federally funded, licensed, or permitted projects and provides expertise on environmental contamination issues. (Id. at ¶ 2.) It has two offices in Montana, one in Helena and a sub-office in Kalispell. (Id. at ¶ 4.)

Nelson works in the Helena office as a toxicologist, (id. at ¶ 6), and Lockardworked in the Kalispell sub-office as a Fish and Wildlife Biologist, (id. at ¶ 10). Nelson was directly supervised in her daily activities by Jodi Bush in Helena. (Id. at ¶¶ 3, 5, 6.) Lockard was supervised by Ben Conard in Kalispell, with Bush as his second-line supervisor. (Id. at ¶¶ 9, 10.) Nelson's husband, Brent Esmoil, also works in the Helena office as a Deputy Field Supervisor. (Id. at ¶ 5.)

II. The Dive Team

Region 6 has a small dive team, consisting of eight volunteer members from several states in Region 6. (Id. at ¶ 12.) Participation in the dive program is voluntary and available to those who are qualified and express an interest in conducting dive team missions. (Id.) Divers must be authorized by their line supervisor to apply for participation and to take part in any particular dive or dive training. (Id.) James D. Chandler is the Chief of the Division of Safety and Occupational Health for Region 6 and has served as the Regional Dive Officer since 2012. (Id. at ¶ 14.) Because Chandler is not a diver, Mitch Osborne, the Region 7 Regional Dive Officer, assisted the Region 6 team by providing program oversight as required by Service policy. (Id.) Diving operations are governed by the Diving Safety Chapter of the Service Manual. (See Doc. 25-1.)

Both Nelson and Lockard were on the Region 6 dive team. (Doc. 33 at ¶¶ 17, 19.) Lockard had served as the Region 6 Field Dive Officer since February 2015, (id. at ¶ 17), until he retired. Bush authorized Nelson's participation on thedive team, (id. at ¶ 19), and since she joined the team, Nelson has conducted dives on approximately 50 workdays, (id. at ¶ 18). Certain benefits are extended to members of the dive team that are not offered to other Service employees. Given the physical requirements of diving, supervisors are expected to provide the necessary time, equipment, and training for divers to meet and maintain authorization standards, including up to three hours a week for aerobic exercise and strength building. (Id. at ¶ 13.) Nelson therefore received three hours of paid physical training per week. (Nelson Decl., Doc. 34 at ¶ 6.) Dive team members may also receive dive insurance or paid certifications, (id. at ¶¶ 7-8), and be eligible for hazard pay, (Doc. 33 at ¶ 12).

III. The Incident

On September 11, 2015, Nelson reported a sexual assault to her supervisor, Jodi Bush. (Id. at ¶ 21.) At Bush's request, Nelson submitted a written statement and, on September 15, 2017, Bush emailed the statement to Special Agent in Charge for the Service Professional Responsibility Unit, Keith Toomey. (Id.; see Report, Doc. 26-2.) An undisputed summary of that statement is provided below:

Between September 8 and 10, 2015, Fish & Wildlife employees Lawrence Lockard, of the . . . Kalispell suboffice, Karen Nelson, Toxicologist, and Chris Downs, Fishery Biologist, Glacier National Park, conducted a dive mission at Quartz Lake in Glacier National Park. . . . Quartz Lake is in a remote area of Glacier National Park, accessible by an approximately 6-mile hike from Bowman Lake. Nelson and Lockard slept in a small, one-room National Park Service cabin with two separate bunk beds. Downs slept outside because he did not wishto disturb anyone's sleep due to his sleep apnea.
On the evening of Wednesday, September 9, 2016 [sic], the second night at the site, Downs, Lockard, and Nelson ate dinner and drank a glass of wine. Nelson then took a sleep aid and went to bed; Downs again slept outside. Nelson recalls Lockard entering the cabin and getting into his bunk. She recalled that [Lockard] told her he snored and she had teased him by saying she had ear plugs and had taken a sleeping pill.
At some point during the night, Nelson became aware that someone was in bed with her, but she still was not awake enough to be aware of what was happening. She stated she could feel that the person had lifted her long underwear top, and was fondling her breasts and felt her long underwear bottoms being moved down. She was groggy and wondering where she was and reported that she originally thought that her husband was with her. She started to become more fully awake and knew that something wasn't right and stood up from her bunk. Lockard quickly moved from her bunk and crawled back to his own.
The following day, September 10, 2015, Lockard and Nelson hiked out of the area while Downs stayed behind to load their gear onto mules. During the hike, Nelson reported that she and Lockard discussed what happened the night before. Lockard told Nelson he had only realized that she had been asleep once she got up from her bunk. After hiking back to her vehicle, Nelson drove to a hotel in Kalispell, Montana, where she stayed the night in a hotel before driving back to Helena on Friday, September 11, 2015.

(Doc. 33 at ¶ 21 (internal citations omitted).) Nelson's report also included two photographs, one of the cabin, (Doc. 26-2 at 4), and one of the bunks inside, (id. at 5). Based on Nelson's administrative complaint, some of the comments Lockard made as they hiked out together included him describing sliding his hand up her leg to "hit [her] where it counts" and his attempt to remove her long underwear to"go down on [her]." (See Doc. 32-4 at 4.) He also claimed he thought she was receptive. (Id.)

Prior to Nelson's report, no employee had ever reported to Bush that they had observed or were the victim of any inappropriate behavior by Lockard. (Doc. 33 at ¶ 22.) Nelson had never reported any concerns regarding sexual harassment or inappropriate behavior by Lockard toward her or anyone else. (Id.)

IV. The Department's Response
A. Initial Response

On September 12, 2015, the day after Nelson reported the incident to Bush, Bush notified her supervisors, Nicole Alt and Michael Thabault. (Id. at ¶ 24.) Bush also contacted Human Resources and Kathy Dennis, the Assistant Regional Director for Budget and Administration. (Id.) Because Nelson and Lockard worked in separate offices that were located hours apart, according to policy it was determined that Lockard need not be placed on administrative leave. (Id.)

The next day, Sunday, September 13, Bush contacted Michelle Rockwell, Regional Human Resources Officer for Region 6. (Id. at ¶ 25.) Bush informed Rockwell of the allegation and Rockwell concurred that administrative leave was not appropriate due to the substantial physical distance between the two employees. (Id.) Bush and Rockwell discussed informing Lockard that he was to have no contact with Nelson. (Id.) Bush was told that Carla Goltz was theEmployee Relations Specialist handling the matter. (Id.) Bush also spoke to Ben Conard, Lockard's direct supervisor in Kalispell. (Id. at ¶ 29.) Bush informed Conard of the incident and that Lockard was to have no contact with Nelson. (Id.)

On Monday, September 14, Conard and Bush informed Lockard that he had been accused of sexual misconduct and that he was to have no contact with Nelson or her husband, was not to travel to the Helena office, and was to remove himself from any dive events in which Nelson—or any other female—would be involved. (Id. at ¶ 30.) Later that week, Bush prepared a memo, approved by Goltz, reiterating the oral notice given to Lockard. (Id. at ¶ 31.) The memo clarified that Lockard was to have no email, phone, or personal contact with Nelson or her husband. (Id.) The memo was provided to Conard and delivered to Lockard. (Id.) The memo also removed Esmoil from Lockard's chain of command. (Id. at ¶ 32.)

B. ...

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