Delgado v. GGNSC Grand Island Lakeview LLC

Filing 88

MEMORANDUM AND ORDER that Golden Living's motion for summary judgment (filing 45 ) is granted in part and denied in part. Specifically, a) Golden Living's motion for summary judgment as to Delgado's claims for retaliation, retaliator y hostile work environment, and gender discrimination is granted. b) Golding Living's motion for summary judgment as to Delgado's claim for hostile work environment based on sexual harassment is denied. Golden Living's motion to limit punitive damages and lost wages is denied. Delgado's unopposed motion for leave to submit additional evidence (filing 67 ) is granted. Ordered by Judge John M. Gerrard. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TARA DELGADO,
Plaintiff,

4:15-CV-3124

vs.
MEMORANDUM AND ORDER
GGNSC GRAND ISLAND
LAKEVIEW LLC,
Defendant.
The plaintiff, Tara Delgado, has sued her former employer, GGNSC
Grand Island Lakeview LLC, for sexual harassment, hostile work
environment, retaliation, retaliatory hostile work environment, and genderbased discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the Nebraska Fair Employment Practices Act,
Neb. Rev. Stat. § 48-1101 et seq. Filing 15.1 The defendant has moved for
summary judgment. For the reasons explained below, the defendant's motion
will be granted in part and denied in part.
BACKGROUND
The defendant, GGNSC Grand Island Lakeview ("Golden Living"), runs
a skilled nursing facility that provides long-term care to elderly residents.
Filing 47 at 2. The company has at least two facilities in Grand Island,
Nebraska: Golden Living Lakeview, and Golden Living Park Place.

1

Delgado's state-law claims are substantially identical to their federal equivalents, so there

is no need to consider them separately. See, Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030,
1039-40 (8th Cir. 2005); Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002).

1. PLAINTIFF'S EMPLOYMENT
Delgado began her employment with Golden Living in 2002 at its Park
Place location. She later transferred to the Lakeview facility, where she
worked until taking medical leave in December 2014. Filing 47 at 3, 8. At the
start of her employment, Delgado received training on Golden Living's antiharassment policy, which the company refers to as the "Four-Step
Compliance Communications Process." Filing 53 at 5. That policy outlines
four paths employees may use if they believe they have been the victim of, or
a witness to, unlawful behavior. The Four-Step Process directs employees to:
First, talk to your supervisor. He or she will be familiar with the
laws, regulations and policies that relate to your work, and will
be able to handle most matters.
If you are not comfortable talking with your supervisor (for
example, if you are questioning your supervisor's conduct), talk to
your supervisor's supervisor, or human resources.
If you feel the matter cannot be handled at your department
level, contact your compliance liaison—your group's vicepresident.
If none of the above steps resolves your questions or concerns, or
if you prefer, call the toll-free Customer Response and
Compliance Hotline at 800-572-9981. All calls are confidential,
and you may call anonymously if you choose.

-2-

Filing 46-4 at 16. All employees were trained on this policy, and it was
published in Golden Living's employee handbook. Filing 47 at 3. In addition
to the Four-Step Process, a victim or witness could report sexual harassment
to any supervisor2 or to human resources personnel by filling out a problem
resolution form available to all employees. Filing 53 at 3–4.
Delgado transferred to Golden Living's Lakeview facility in July 2015.
Initially, Delgado was a bath aid, but she later held the positions of med aide,
certified nursing assistant (CNA), central supply and scheduling, and
restorative aide. Filing 46-3 at 3, 5-6. From around 2011 to 2014, Delgado
primarily worked as a restorative aide—but she was occasionally assigned to
the CNA or med aide positions depending on staffing. Filing 46-3 at 5–6;
filing 46-3 at 7.
Delgado's direct supervisor differed depending on her assigned duties
during a particular shift. See filing 52-1 at 11. For example, on days Delgado
worked as a CNA or med aide, her direct supervisor was the charge nurse on
duty; but if she was working as a restorative aide, her direct supervisor was
another Golden Living employee named Kim Long. Filing 53 at 6. Jackie
Connery, the assistant director of nursing, provided the next level of
supervision, and she was in turn supervised by Laura Wolfe, director of
nursing. Filing 47 at 4. The facility's executive director was Dean Dragon.
2

The parties dispute the meaning of the term "supervisor" for the purposes of reporting

harassment. Delgado contends that any person in a managerial position was a supervisor.
Golden Living argues that Delgado's overbroad interpretation would define most Lakeview
employees as supervisors. For example, Delgado describes the following individuals as
supervisors: the facility's office supplies manager, Lurleen Statler; the medical records
clerk, Melissa Trejo; and the facilities' van driver, Marcia Pointer. Defendant disputes that
these individuals qualify as supervisors and limits the term to include the director of
nursing, the assistant director of nursing, and the executive director. See filing 55 at 11.

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Filing 47 at 5. Brenda Knutson was the Nebraska area vice president for
Golden Living, filing 53 at 27, and Kris Laverty was an HR consultant based
in Omaha, Nebraska. See filing 53 at 26; filing 55 at 9.
2. ALLEGED HARASSMENT
Roy Miller was hired as the facility's maintenance director on March
31, 2014. Soon after, Delgado claims that Miller began harassing her—calling
her sexually discriminatory names, making sexually charged statements, and
subjecting her to unwanted and inappropriate touching. According to
Delgado, Miller's alleged conduct continued on a near constant basis over the
following 6 months. Filing 47 at 4.
On or around June 11, 2014, Delgado claims that Miller cornered her in
an empty patient room and sexually assaulted her, grabbing her breasts and
buttocks. Filing 47 at 5; filing 52-1 at 28. Delgado claims to have reported the
assault to her sister and coworker, Lacie McGee, immediately after it
happened. Filing 52-1 at 29. Then, she says, she completed a problem
resolution form reporting Miller's behavior, but when she attempted to
deliver it to Dragon (the executive director), he was not in his office. So,
Delgado states that she slid the completed form under his office door. Filing
53 at 11.
Over a month later, on July 17, 2014, Miller allegedly assaulted
Delgado again—this time touching her buttocks. Filing 47 at 5; filing 52-1 at
30. Delgado asserts that she discussed Miller's behavior with McGee, before
completing another resolution form regarding Miller's conduct. Delgado
claims to have placed the resolution form—like she had done before—under
Dragon's office door. Delgado then says she reported Miller's actions to the
office supplies manager, Lurleen Statler, who purportedly responded: "oh
honey, you should write him up for that." See filing 52-3 at 10-11.

-4-

The parties dispute whether Dragon or any other employee received or
saw the resolution forms Delgado claims to have left under Dragon's door.
Dragon says he never received the forms, and there is no indication that
Delgado personally followed up with him to make sure that he did. Filing 47
at 5; filing 52-1 at 28. Further, other employees with access to Dragon's office
deny ever seeing the forms. Filing 46-11 at 4–5. But Delgado claims that after
submitting the forms, Miller became distant and began using derogatory
language when speaking or referring to her. Filing 53 at 11. This change in
demeanor, Delgado says, is evidence that Dragon received and discussed the
resolution forms with Miller.
In July 2014, Delgado requested a copy of the employee handbook to
review Golden Living's policy for reporting harassment and to retrieve the
hotline number. But after receiving the handbook, she did not review it, and
did not immediately call the hotline. Filing 55 at 10; see filing 52-1 at 20-22.
However, Delgado claims to have called the number months later—in or
around September 2014—but it is unclear what, if anything, she reported.
Filing 52-1 at 22.
On September 18, 2014, Delgado approached Connery, the assistant
director of nursing, and asked if Dragon was going to follow up on her
complaints. Connery inquired further, and Delgado informed her of Miller's
behavior and actions. Filing 47 at 7; filing 46-3 at 25. Connery was supportive
of Delgado, and by the next day, she (Connery) had contacted HR consultant
Laverty. Filing 46-11 at 5. Laverty and Knutson (Golden Living's Nebraskaarea vice president) investigated Delgado's complaint, concluding that Miller
did, in fact, violate Golden Living's anti-harassment policy. Miller's
employment was suspended during the investigation, and ultimately
terminated. Filing 47 at 7-8.

-5-

Prior to September 18, 2014, Delgado did not directly report Miller's
harassing behavior and conduct to Laura Wolfe, Jackie Connery, or Dean
Dragon. Filing 46-3 at 26. However, Delgado says that she complained about
Miller's conduct to her direct supervisor, Long, as well as other facility
managers—namely, Statler and Pointer. Delgado claims that Long, Statler,
and Pointer generally told her to "write him up," but otherwise ignored her
complaints. Filing 53 at 15.
3. EXTENT OF HARASSMENT AND OTHER COMPLAINTS
According to Delgado, a large majority of the facility's female employees
fell victim to Miller's sexually harassing behavior, which numerous
supervisors and employees purportedly witnessed first-hand. See filing 52-1
at 23. Indeed, Delgado says that she personally witnessed Miller harass
employees Kayla Miller, Lacie McGee, and Melissa Trejo. Filing 53 at 9. And,
Delgado says, "supervisors" Lurleen Statler, Kim Long, and Kayla Rohmiller
each witnessed Miller sexually harass Delgado. Filing 53 at 14.
Golden Living claims that the harassment was not wide-spread. After
all, it argues, while many of the individuals identified by Delgado admitted to
hearing rumors and gossip concerning Miller's alleged conduct, very few
actually witnessed it. See e.g., filing 46-20 at 3; filing 46-21 at 3–5; filing 52-4
at 16–17; filing 46-11 at 17–18; filing 52-7 at 8; filing 55 at 4. For example,
Delgado specifically names employees Claudia Lopez and Maricruz Aguilera
for the proposition that, as of May 2014, "numerous female employees [had]
reported Miller's sexual harassment." Filing 53 at 16; filing 52-1 at 37. But
when deposed, Lopez testified that she never heard Miller say anything of a
sexual nature and never saw him engage in sexual contact. Filing 46-21 at 4.
And Aguilera testified that while Miller bumped into her in the halls, she had

-6-

not personally experienced or heard his sexually suggestive comments or
behavior. Filing 46-20 at 3.3
Other employees provided similar testimony. For example, Jackie
Connery was purportedly aware—through office gossip—of Miller's behavior,
but she did not see or hear any sexually harassing conduct or speech. And
when she spoke with Trejo about a hotline tip (in which a caller reported
Trejo as being a victim of improper sexual contact), Trejo denied the report.
Filing 46-11 at 3. Further, Lurleen Statler claims to have heard about
Miller's alleged harassment of Delgado, but she did not personally experience
or witness such conduct during Miller's employment with Golden Living.
Filing 46-18 at 2. And while Marsha Pointer thought Miller was "rude and
obnoxious," she, too, did not personally witness or hear any sexuallysuggestive comments or behavior. Filing 46-19 at 3.
But as noted above, Delgado claims to have experienced and witnessed
Miller's harassment first-hand. See filing 52-1 at 23. For example, in addition
to her own allegations, Delgado claims that, on one occasion, she saw Miller

3

But as discussed below, Golden Living also provided as evidence interview statements

from various employees stemming from the company's internal investigation. During the
investigation, Lopez and Aguilera were asked whether anyone had ever touched them or
said inappropriate things to them at work. Lopez responded: "Yes, Roy always flirts and
tries to touch people. I came in one day to pick up shifts and I was in street clothes. He saw
me and said 'damn you look so good you are going to make me bust a nut.' . . . He always
says I'm mean and a bitch because I just ignore him." Filing 46-9 at 3. Aguilera said, "One
day me and Claudia went to the staffing office when Lacie was doing the schedule and Roy
saw us come in. He said, 'I never realized how big those were until I saw you in street
clothes.' He was talking about our boobs. . . . Me and Claudia went to Dean and told him
about the comment he made to us. Dean said Roy wasn't that way and that he couldn't do
anything about it." Filing 46-9 at 4.

-7-

grab another employee's breast. Filing 52-1 at 25. She also claims that Miller
grabbed the back of a different female employee's hair
and made gestures like down towards his crouch [sic], like push
her head down. And she'd be like, Roy, stop it, stop it. And he'd
pull the back of her ponytall [sic] backwards and say, you know
you like that, you know you like that.
Filing 52-1 at 26. Record evidence—including statements from both of the
alleged victims—does, to some extent, substantiate Delgado's account. See,
filing 46-8 at 3; filing 46-9 at 3.
Delgado also testified to Miller's alleged verbal harassment. To this
end, Delgado claims that Miller would often approach groups of women with
sexually suggestive comments. See filing 52-1 at 24. According to Delgado,
Miller would sometimes direct his comments to the entire group; but more
often, he would single out one member of the group. Filing 52-1 at 25. On one
occasion, Delgado says,
we [Delgado, Long, and Miller] had went outside, got in the shed,
whatever. We were coming out of the shed and there was some
people up on the roof fixing the roof or fixing the air conditioner[.]
. . . [Miller] yelled up to them and pretended like he was zipping
up his pants and said, yep, it's just one of the perks of the job.
Filing 52-1 at 27 55. Other employees provided similar testimony. See, filing
52-6 at 12-19; filing 52-4 at 3-4; filing 52-7 at 8. And records from the
company's internal investigation of Miller suggest that multiple employees
either witnessed first-hand, or heard through colleagues, Miller's use of
-8-

sexually inappropriate words or gestures. See filing 46-9. One employee
reported being "sick every time I come to work because I worry about [Miller].
I lock the door to my office unless Nikki is there with me." Filing 46-9 at 3.
As noted above, prior to Delgado's complaint to Connery in September
2014, at least one other employee reported Miller's conduct to the company's
hotline. The reporting employee claimed that Miller had sexually harassed
and assaulted Melissa Trejo, the medical records clerk at the facility. Filing
47 at 7. Responding to the report, Laverty and Knutson traveled to the
facility to conduct an investigation into Miller's alleged conduct. Laverty and
Knutson interviewed Trejo, who expressly denied that she had been
harassed. Filing 47 at 7. Later, when deposed for this matter, Trejo said that
she lied to the investigators out of fear of losing her job. Filing 47 at 7.
4. ALLEGED POSITION-RELATED RETALIATION
Delgado claims that Golden Living retaliated against her in the terms
of her employment after she purportedly placed the complaints under
Dragon's door. See filing 52-1 at 12-13. Specifically, she contends that,
beginning in 2014, she was consistently assigned to work as a med aide.
Filing 47 at 18. And while this change did not affect her pay, med aides—
unlike restorative aides—had to report to work at 6:00 a.m. This earlier
reporting time impacted her ability to drive her children to school in the
mornings. Filing 52-1 at 11; filing 53 at 20. Delgado also claims that she,
unlike other employees, was assigned multiple positions or tasks at once. As
a result, she was forced to oversee medications for 18 people, give 2 or 4
baths, answer call lights, and make beds—all of which, she says, amounts to
"three full-time positions [i]n one shift." Filing 53 at 21-22; filing 52-1 at 14.
These scheduling changes were purportedly initiated by the assistant director
of nursing, Connery, and the director of nursing, Wolfe.

-9-

According to Golden Living, Delgado's assignment change was neither
a demotion nor retaliatory. Rather, it argues that Delgado's work
assignments changed in accordance with the facility's needs during the
relevant time period. Filing 46-11 at 4. And in any event, the change could
not have been retaliatory because the supervisors in charge of scheduling
knew nothing about Delgado's alleged complaints.
After Miller was fired in September, Delgado claims her hours were cut
and that she lost wages. However, Delgado's hours and pay were not lowered;
in fact, her paystubs show she received more hours in the fall of 2014 than
she had in the spring, and her hourly pay remained the same from April to
December 2014. Filing 55 at 13; filing 56-4.
5. ALLEGED VERBAL RETALIATION/HARASSMENT
Delgado further alleges that, following Miller's suspension, she was
subjected to retaliatory harassment until her eventual departure in
December 2014. Filing 53 at 2. Specifically, she says that other employees
accused her of lying, claiming that she had secret motives for reporting
Miller. She claims to have reported this harassment to Connery and Wolfe—
but, she says, neither acted on her reports. Delgado did not, however, report
the alleged verbal harassment to Laverty or Knutson, and it was not
observed or reported by other employees.
6. PLAINTIFF'S MEDICAL LEAVE
On December 23, 2014, Delgado went on medical leave at the
recommendation

of

her

mental

health

provider.

Delgado

provided

documentation to Golden Living indicating she had post-traumatic stress
disorder and required a leave of absence. Delgado has also suffered an
unrelated back injury which prevents her from returning to work. As of May
2016, Delgado had not returned to work due to her conditions.

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STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The existence of a mere scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

- 11 -

ANALYSIS
Delgado has sued Golden Living for sexual harassment based on a
hostile work environment; retaliatory hostile work environment; retaliation
for reporting Miller's conduct; and gender discrimination. Golden Living
moves for summary judgment as to each of these claims. It further argues
that, assuming any claims survive summary judgment, the Court should
limit Delgado's ability to recover punitive damages and lost wages incurred
after June 2015.
1. SEXUAL HARASSMENT: HOSTILE WORK ENVIRONMENT
Delgado alleges that Miller, her co-employee, subjected her to
unwelcome sexual harassment. To establish a prima facie case against an
employer for sexual harassment by one of its employees, Delgado must show:
(1) she is a member of a protected group; (2) was the victim of unwelcomed
sexual harassment; (3) the harassment occurred because of her sex; (4) the
harassment affected a term, condition, or privilege of her employment; and
(5) the employer knew or should have known of the harassment and failed to
take proper action. Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016).
Golden Living argues that Delgado cannot establish the last element of
her prima facie case—that is, that Golden Living knew or should have known
of the harassment and failed to take proper action. Filing 47 at 11. To
support this contention, Golden Living claims that Delgado failed to properly
report Miller's conduct until September 2014, and that when she did, it
immediately suspended and then terminated Miller. Delgado claims she
reported Miller's conduct as early as July 2014, when she purportedly slid
two separate complaint forms under the locked office door of the facility's
executive director, Dragon, and by telling Kim Long, her direct supervisor, as
well as "facility managers" Statler and Pointer. Delgado further suggests that

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the sexual harassment was so pervasive that constructive knowledge must be
imputed to Golden Living. See Myers v. Croell Redi-Mix, Inc., 672 F. Supp. 2d
889, 915 (N.D. Iowa 2009) ("the harassment was so severe and pervasive that
management reasonably should have known of it") (quoting Weger v. Ladue,
500 F.3d 710, 721 (8th Cir. 2007)). Finally, Delgado claims that any reporting
of sexual harassment by Miller would have been futile because Dragon
"believed Miller over every other employee," filing 53 at 18, and that Laura
Wolfe, the director of nursing, and Jackie Connery, the assistant director of
nursing, "both flirted and made sexual comments to and with Roy Miller in
the hallways." Filing 53 at 12.
As a preliminary matter, the reporting requirement, at least on these
facts, is mandatory. Thus, Delgado cannot overcome that element of her
prima facie case with allegations of futility. Weger, 500 F.3d at 725. Rather,
to establish her prima facie case, she must show that the employer knew or
should have known of the harassment and failed to take proper action.
An employer's "knowledge" for purposes of sexual harassment liability
can be either actual or constructive. Where an employer has a specified
complaint procedure that identifies the persons to be notified, "actual notice
is established when the employee notifies those individuals." Myers, 672 F.
Supp. 2d at 913 (citing Jenkins v. Winter, 540 F.3d 742, 749 (8th Cir. 2008)).
Constructive notice, on the other hand, exists where the harassment is so
severe in character and pervasive in the workplace that "it must have come to
the attention of someone authorized to do something about it." Sandoval v.
American Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009)
(emphasis omitted). This standard requires more than a handful of
observations or remarks made over a "substantial period of time." Weger, 500
F.3d 722. Rather, constructive notice is shown when the harassment is so

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widespread as to be "obvious to everyone." Smith v. St. Louis Univ., 109 F.3d
1261, 1265 n.3 (8th Cir. 1997).
It is undisputed that Golden Living had actual knowledge of Miller's
conduct as of September 2014, and took immediate action to terminate his
employment. But there is a genuine issue of fact as to whether the company
knew—or should have known—of the alleged harassment before that date.
Indeed, Delgado claims that she slid complaint forms detailing Miller's
conduct under Dragon's door as early as July 2014, and that she verbally
reported the harassment to her supervisors. And while Dragon denies ever
receiving Delgado's complaints, a reasonable jury could—on these facts—
conclude otherwise. Further, assuming the truth of Delgado's position, it
appears that the means by which she reported the harassment complied with
the company's four-step process for reporting such conduct. Filing 46-4 at 16;
filing 52-8 at 17; filing 52-9 at 9-12.4
Delgado may also pursue her theory of constructive notice. To this end,
the Court finds enough evidence at this stage for a reasonable jury to
conclude that Miller's alleged harassment was so pervasive that "it must
have come to the attention of someone authorized to do something about it."
Sandoval, 578 F.3d at 802 (emphasis omitted). Indeed, as summarized above,
the record includes testimony from several witnesses who either experienced
the alleged harassment, witnessed it, or heard about it (albeit often through
rumors) at some point during Miller's 6-month tenure. See, filing 52-1 at 234

Golden Living argues that Delgado failed to comply with the four-step process, and

therefore is foreclosed as a matter of law from pursuing her "actual" knowledge argument.
See filing 47 at 12. But the process specifically provides that if the employee is not
comfortable talking with her supervisor, she can "talk to [her] supervisor's supervisor."
Filing 46-4 at 16. The Court does not see how Delgado, in attempting to notify the executive
director (as she claims), failed to follow this protocol.

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30 (Delgado); filing 52-7 at 8 (Connery); filing 46-8 at 3 (McGee); filing 52-4 at
4 (Pointer); filing 52-6 at 7-26 (Trejo); filing 46-18 at 3 (Statler). And at least
two of the witnesses who expressly denied hearing or seeing the harassment
provided

contradictory

statements

during

Golden

Living's

internal

investigation. Compare filing 46-20 at 3; filing 46-21 at 3, with filing 46-9 at
3-4.
It is true, as Golden Living argues, that Delgado's response relies
extensively on hearsay statements from third parties. But the standard on
summary judgment is not whether the evidence would be admissible at trial,
"it is whether it could be presented at trial in an admissible form." See, Rule
56(c)(2); Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012). And
the Court presumes, at least at this stage, that the alleged victims of Miller's
harassment

could

testify

to

their

own

experiences

during

Miller's

employment at Golden Living.5 Golden Living's motion for summary
judgment on this claim will be denied.
2. RETALIATION
Delgado claims that she was retaliated against in the terms, conditions,
and privileges of her employment after reporting Miller's harassing conduct.
To establish a prima facie claim for retaliation, Delgado must present facts
showing: (1) she engaged in protected conduct, (2) she was subjected to an
adverse employment action, and (3) there is a causal nexus between her
protected conduct and the adverse action. Wood v. SatCom Mktg., LLC, 705
F.3d 823, 829 (8th Cir. 2013). Golden Living argues that Delgado's claim fails

5

That said, the Court is fully aware of the exacting standard for establishing constructive

notice under Title VII. See Smith, 109 F.3d at 1265 n.3. And while Delgado has presented
enough to overcome Golden Living's motion at this stage of the proceeding, the Court may,
or may not, revisit this issue prior to or during trial.

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as a matter of law because she has not come forward with any evidence that
she suffered an adverse employment action. Filing 47 at 17.
To satisfy the "adverse employment action" requirement, Delgado must
show "that a reasonable employee would have found the challenged action
materially adverse." Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53, 68 (2006). This, in turn, requires a showing that the employment
action "might have dissuaded" a reasonable worker from reporting the
alleged harassment. Id. To meet this burden, Delgado must demonstrate that
the employment action was material, not trivial, and that it resulted in some
concrete "injury or harm." AuBuchon v. Geithner, 743 F.3d 638, 643-44 (8th
Cir. 2014). After all, reporting discriminatory behavior "cannot immunize
that employee from those petty slights or minor annoyances that often take
place at work and that all employees experience." Id. (quoting Burlington,
548 U.S. at 68)).
As noted, Delgado argues that she was retaliated against in several
respects for reporting Miller's conduct. Specifically, she alleges that Golden
Living cut her hours, reassigned her to a less desirable position, and assigned
her extra work. She also contends that employees and supervisors directed
hostile remarks toward her, resulting in a retaliatory hostile work
environment. But as discussed below, many of these allegations are
unsupported by the record evidence, or otherwise amount to slights or
annoyances that, under Supreme Court precedent, do not give rise to a
retaliation claim under Title VII. See Burlington, 548 U.S. at 68. Accordingly,
Golden Living's motion for summary judgment as to Delgado's claims for
retaliation and retaliatory hostile work environment will be granted.

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(a) Job Reassignment
Delgado first contends that Golden Living wanted her to quit and
therefore "overloaded her with work, cut[] her hours and reassigned her to a
different position." Filing 53 at 22. To support this contention, Delgado claims
that, prior to reporting Miller's sexually harassing conduct, she worked as a
restorative aide for Golden Living, with her work day beginning at 7:30 a.m.
After she complained about Miller, however, she was assigned to work as a
med aide, with her workday beginning at 6:00 a.m., and on at least one
occasion, she was assigned to perform multiple duties resulting in a very
heavy workload. Although Delgado received the same pay for these positions,
she claims the change in her work schedule adversely impacted her because
she could no longer take her children to school before going to work. She
claims that any time someone was permitted to work as a restorative aide
instead of her, the job assignment was made in retaliation for complaining
about Miller. Filing 52-1 at 10, 15.
But "not everything that makes an employee unhappy is an actionable
adverse action." Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th
Cir. 1997). Indeed, changes in duties or working conditions that cause no
materially significant disadvantage "'are insufficient to establish the adverse
conduct required to make a prima facie case.'" Hughes v. Stottlemyre, 454
F.3d 791, 797 (8th Cir. 2006) (quoting Harlston v. McDonnell Douglas Corp.,
37 F.3d 379, 382 (8th Cir. 1994)); see Recio v. Creighton University, 521 F.3d
934, 940 (8th Cir. 2008) (minor changes in duties do not satisfy a claim for
retaliation). Accordingly, to the extent that Delgado supports her retaliation
claim on these grounds, that claim fails as a matter of law.

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(b) Loss of Hours
Delgado also claims that the defendant "cut her hours" after she
reported Miller's harassing behavior. Filing 53 at 38. Specifically, she alleges
that when the facility was on "low census," her hours as a restorative aide
were given to part-time employees—some of whom Delgado claims were
unqualified to perform the work. Filing 52-1 at 42. But the available evidence
suggests otherwise. In fact, Delgado's timecards suggest that her weekly
average hours and pay actually increased after she reported Miller's
harassment. Filing 56-4. Thus, it cannot be said that Delgado suffered an
adverse employment action in either the distribution of her hours, or pay,
following the reporting of Miller's conduct.
(c) Assignment to Physically Strenuous Work
Delgado also claims that she was assigned to work as a med aide in
retaliation for reporting the alleged harassment. Specifically, she claims that
supervisor Laura Wolfe assigned her to the med aide duties—which requires
frequent bending—despite knowing that Delgado had a bad back. Filing 53 at
20. But Delgado's own testimony suggests the opposite—that is, that she was
reassigned from her CNA position, to the med aide position, to accommodate
her bad back:
Q: And you are telling me during that same period you were
concerned about being physically able to do the CNA work
because you thought it was too physical and too hard on your
back?
A: Correct.

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Q: And so you were given the med aide duties, which you were
able to do?
A: Yea, I could do it.
Filing 52-2 at 4; see also filing 52-1 at 12 ("I spoke to [Wolfe] about being on
the med cart. . . . I told her that I was under no restrictions, I didn't have any
physical limitations at that time or anything."). In sum, the evidence does not
support Delgado's claim of an adverse employment action on account of overly
strenuous responsibilities.
(d) Excessive Work and Improper Tasks
And finally, Delgado claims that, after reporting the alleged
harassment, she was "assigned work that was to be performed by two or
three full-time employees[.]" Filing 53 at 21. To this end, she suggests that
the defendant improperly increased her workload, and at times asked her to
perform tasks that she was not certified to do. Filing 53 at 22. But even
assuming this as true, Delgado admits that she refused to perform such
tasks, and there is no indication that she was disciplined for doing so. Filing
52-1 at 14, 42; see Geithner, 743 F.3d at 645 (holding acceleration of
employee's work deadlines and assigning extra work to him is not adverse
employment action). Thus, Delgado's allegations in this regard do not support
her claim for unlawful retaliation under Title VII.
(e) Retaliatory Hostile Work Environment
Although pled as a separate claim, filing 15 at 5, Delgado also alleges
that she was retaliated against by means of a hostile work environment.
Specifically, Delgado alleges that she was "harassed by numerous co-workers"
regarding her complaints and reports of illegal conduct. Filing 15 at 3. For
example, she claims that one employee told her "how Lacie and I and Melissa
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were trying to tear apart this fucking company," and how "Roy would never
do anything like that to us." Filing 52-1 at 39. Another employee purportedly
said "so you are the one that got Roy fired, Roy didn't do anything to you."
Filing 52-1 at 39. And yet another allegedly approached Delgado claiming
that she "wish[es] Roy would have sexually harassed me, I would have
enjoyed it, I don't know why you didn't." Filing 52-1 at 39.6
Retaliation claims under Title VII may be based on a hostile work
environment and need not be based solely on discrete adverse employment
actions that affect the terms of conditions of employment. Stewart v.
Independent School Dist. No. 196, 481 F.3d 1034, 1042 (8th Cir. 2007). But as
noted above, because Title VII was not enacted to create a general civility
code, the standard for establishing an adverse employment action on these
grounds is high. See Burlington, 548 U.S. at 68 ("[a]n employee's decision to
report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all
employees experience"). Indeed, as noted by one circuit court of appeals, to
prevail on a claim for retaliatory hostile work environment, the claimant
must demonstrate that the actions complained of were severe or pervasive.
See Gowski v. Peake, 682 F.3d 1299, 1313 (11th Cir. 2012). This standard is
generally evaluated by considering, among other matters, "the frequency of
the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Kirby v. Brennan, 2017 WL
1157093, at *9 (D. Minn. 2017) (quoting Faragher v. City of Boca Raton, 524
U.S. 775, 787 (1998)).
6

Contrary to the argument raised in Delgado's brief, Delgado expressly testified that

managers Wolfe and Connery did not retaliate against her. Filing 52-1 at 40.

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Against this backdrop, the Court concludes that Delgado has failed to
meet her prima facie burden with respect to her retaliatory hostile work
environment claim. While her coworker's alleged statements were no doubt
unwelcome, they are not the type of severe and pervasive conduct required
under Title VII. See, Sutherland v. Missouri Dep't of Corr., 580 F.3d 748, 752
(8th Cir. 2009); Clegg v. Arkansas Dep't of Correction, 496 F.3d 922, 929 (8th
Cir. 2007). Accordingly, Golden Living's motion for summary judgment on
this claim will be granted.
3. GENDER DISCRIMINATION
Delgado asserts separately pled claims for gender discrimination and
gender-based hostile work environment. Filing 15 at 6. As an initial matter,
it appears that Delgado's gender-based hostile work environment claim is
duplicative of the hostile work environment claim discussed above. See
McCurdy v. Ark. State Police, 375 F.3d 762, 767 (8th Cir. 2004) ("Unlawful
discrimination based on sex includes claims of hostile or abusive work
environment sexual harassment"). The Court has already addressed the
merits of that claim, and it need not do so again here.
Delgado also alleges gender discrimination, which requires a showing
that: (1) she is a member of a protected class; (2) she was qualified for her job;
(3) she suffered an adverse employment action; and (4) the facts support an
inference of unlawful gender discrimination. Wells v. SCI Mgmt., L.P., 469
F.3d 697, 700 (8th Cir. 2006). Golden Living urges summary judgment on the
third element, arguing that Delgado has failed to demonstrate an adverse
employment action. Filing 47 at 21.
For purposes of a Title VII discrimination claim, an adverse
employment action is "a tangible change in working conditions that produces
a material employment disadvantage." Wedow v. City of Kan. City, 442 F.3d

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661, 671 (8th Cir. 2006). This might include "termination, cuts in pay or
benefits, and changes that affect an employee's future career prospects, as
well as circumstances amounting to a constructive discharge." Clegg, 496
F.3d at 926 (internal quotation marks omitted). But minor changes in duties
or working conditions, "even unpalatable or unwelcome ones," which cause no
materially significant disadvantage, do not rise to the level of an adverse
employment action. Id.
As noted above, there is no evidence to suggest that Delgado
experienced a cut in pay or benefits. Rather, the record indicates that
Delgado experienced changes in her daily responsibilities, and at most,
received additional work. But those allegations, without more, are
insufficient to establish a prima facie case of gender discrimination. See,
Holland v. Sam's Club, 487 F.3d 641, 644-45 (8th Cir. 2007); Zhuang v.
Datacard Corp., 414 F.3d 849, 854-55 (8th Cir. 2005). Golden Living's motion
for summary judgment on this claim will be granted.
4. LIMITATION ON DAMAGES
(a) Punitive Damages
Golden Living argues that Delgado cannot recover punitive damages on
her remaining Title VII claim for sexual harassment. Under Title VII,
punitive damages are available "if the complaining party demonstrates that
the respondent engaged in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to [her] federally protected
rights.” 42 U.S.C. § 1981a(b)(1). The terms "malice" and "reckless
indifference" pertain to the employer's knowledge that it may be acting in
violation of federal law. Kolstad v. American Dental Ass'n, 527 U.S. 526, 535
(1999).

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Golden Living argues that it cannot be subject to punitive damages
"because there is absolutely no evidence in the record indicating that it acted
with malice or reckless indifference in allegedly discriminating against
Plaintiff." Filing 47 at 26. It further notes that it has an anti-harassment
policy and reporting process, and upon receiving notice of Miller's conduct, it
immediately investigated and fired Miller.
But, for the reasons described above, issues of fact remain as to when
the company learned of the alleged harassment, and whether it intentionally
disregarded earlier complaints. Thus, the Court cannot, on the record before
it, foreclose Delgado's request for punitive damages at this stage of the
proceeding.
(b) Lost Wages
The plaintiff seeks lost wages for the alleged harassment she endured.
See filing 15 at 4. Golden Living argues that her ability to recover these
damages is limited by her testimony in a parallel workers' compensation
case. There, Delgado testified that she was "psychologically capable of
returning to work in June of 2015." Filing 47 at 24. Golden Living claims that
this statement is a "judicial admission sufficient to bind [Delgado] as a
matter of law in this case," and therefore establishes that Delgado's
emotional distress from the alleged harassment ceased in June 2015. Filing
47 at 25. Accordingly, it argues that the Court should limit Delgado's lost
wages "to the period between December 2014 to June 2015." Filing 47 at 24.
A judicial admission is conclusive on the party by whom it was made, or
to whom it is attributable. However, that effect is confined to the cause in
which the admission was made, including appeals, "but not in separate and
subsequent cases." In re Somerset Apts., 2007 WL 552209, at *4 (D. Neb.
2007) (citing State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683,

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686 (8th Cir. 1968)); see Universal American Barge Corp., v. J-Chem, Inc., 946
F.2d 1131, 1142 (5th Cir. 1991). Thus, while Delgado's seemingly inconsistent
testimony may be explored on cross-examination, her testimony in the state
workers' compensation case cannot be construed as a binding judicial
admission in this federal employment case. Accordingly, the defendant's
motion to bar any claim for lost wages after June 2015 based on Delgado's
testimony before the workers' compensation court is denied.
CONCLUSION
For the reasons discussed above, Golden Living's motion for summary
judgment will be in granted in part and denied in part. Specifically, Golden
Living's motion with respect to Delgado's claims for retaliation, retaliatory
hostile work environment, and gender discrimination is granted. However,
Delgado may proceed on her claim for hostile work environment based on
sexual harassment.
IT IS ORDERED:
1.

Golden Living's motion for summary judgment (filing 45) is
granted in part and denied in part. Specifically,
a) Golden Living's motion for summary judgment as to
Delgado's claims for retaliation, retaliatory hostile work
environment, and gender discrimination is granted.
b) Golding Living's motion for summary judgment as to
Delgado's claim for hostile work environment based on
sexual harassment is denied.

2.

Golden Living's motion to limit punitive damages and lost
wages is denied.

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3.

Delgado's unopposed motion for leave to submit additional
evidence (filing 67) is granted.

Dated this 27th day of April, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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