Duncan v. County of Dakota et al

Filing 89

MEMORANDUM AND ORDER - The county defendants' motion for summary judgment (Filing No. 49 ) is denied. Defendant Rodney Herron's motion for summary judgment (Filing No. 52 ) is denied. Defendant James L. Wagner's motion for summary judgment (Filing No. 55 ) is granted. The plaintiff's claims against James L. Wagner in his individual capacity are hereby dismissed. Ordered by Chief Judge Joseph F. Bataillon. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TONI DUNCAN,

)
)
Plaintiff,
)
)
v.
)
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COUNTY OF DAKOTA, NEBRASKA,
)
JAMES L. WAGNER, Dakota County
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Sheriff, in his official capacity and
)
personally, AND RODNEY HERRON, in )
his official capacity and personally,
)
)
)
Defendants.
)
)

8:09CV277

MEMORANDUM AND ORDER

This matter is before the court on the motions for summary judgment filed by
defendants James L. Wagner (hereinafter, “Sheriff Wagner”), Rodney Herron (“Deputy
Sheriff Herron”), and County of Dakota, Nebraska (sometimes, collectively, “the county
defendants”), Filing No. 49, and by Deputy Sheriff Herron and Sheriff Wagner on claims
asserted against them in their individual capacities, Filing No. 52 and Filing No. 55. This
is an action for discrimination in employment brought under 42 U.S.C. § 1983. The claim
remaining in this case is a claim for “hostile environment” gender-based discrimination or
sexual harassment.1
The county defendants argue that they are entitled to qualified immunity if Wagner
and Herron are entitled to qualified immunity on individual-capacity claims. The county

1

This court previously found that the plaintiff failed to state a claim for race discrim ination or for
constructive discharge and dism issed both of those claim s. See Filing No. 30. Further, the court found that
the plaintiff's “claim ” for punitive dam ages, although labeled a freestanding claim , was actually an elem ent of
dam ages. Id.

defendants also assert the Ellerth-Faragher defense,2 claiming that the county had an
effective anti-harassment policy in place and the plaintiff failed to utilize it. Herron and
Wagner argue they are entitled to qualified immunity and further assert that the undisputed
evidence establishes that the conduct at issue was neither severe nor pervasive so as to
amount to actionable harassment. In response to defendant Wagner’s motion, the plaintiff
concedes that the claim against Sheriff Wagner in his individual capacity is subject to
dismissal, but asserts there are genuine issues of fact that preclude summary judgment
with respect to the other claims. See Filing No. 69, Response; Filing No. 70, Brief.
I. Background
Duncan asserts that her supervisor, defendant Rodney Herron, had numerous
sexual relationships with other employees, resulting in favorable treatment of those
employees, to the detriment of Duncan.3 Filing No. 1, Complaint. She asserts that
defendant Herron created an “openly sexually charged environment.” Id. She further
alleges that Herron harassed and intimidated employees who were not in his favor by
ordering deputies to follow these employees and “set them up for arrest.” Id. at 4. Also,
she alleges that Dakota County was on notice of the behavior, took no steps to correct it,
and covered it up. Id. at 5-6.

2

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775, 778 (1998).
3

There are a total of four related cases pending in this district that involve the working environm ent
at Dakota County’s correctional facility. See W illiams v.. County of Dakota, et al., Case No. 8:09CV201;
Crutcher-Sanchez v. County of Dakota, et al., Case No. 8:09CV288, and Criss, et al. v. Dakota County Bd.
of Comm’rs, Case No. 8:09CV387. Recently, the m agistrate Judge recom m ended denial of a m otion to
recuse in the Criss case. See Criss, et al. v. Dakota County Bd. Comm’rs, Case No. 8:09CV387, Filing No.
91, m otion to recuse; Filing No. 123, Findings and Recom m endation.

2

In support of and opposition to the defendants’ motions, the parties have submitted
extensive deposition testimony and the affidavits of several other female employees of the
Dakota County Jail. See Filing No. 73, Index of Evid., Ex. A, Deposition of Alana
Crutcher-Sanchez (f/k/a Alana Smith) (“Crutcher-Sanchez Dep.”); Ex. B., Deposition of
Charvette Williams (“Williams Dep.”); Ex. C, Affidavit of Heather Shelby (f/k/a Heather
Skow) (“Shelby Aff.”); Ex. D, Affidavit of Betty O’Neill (“O’Neill Aff.”); and Ex. E, Affidavit of
Diana Moctezuma (“Moctezuma Aff.”); Filing No. 50 & Filing No. 53, Indices of Evid., Ex.
1, Exs. A & B, Deposition of plaintiff Toni Marie Duncan, Vols. I and II (“Duncan Dep.”); Ex.
D, Deposition of James L. Wagner (“Wagner Dep.”); Ex. E, Deposition of Rodney Herron
(“Herron Dep.”). Duncan testified that rumors of sexual activity permeated the job. Ex. B,
Duncan Dep. at 394. She further stated that on her first day of employment, Deputy Sheriff
Herron warned her that the “sheriff would be making advances on her.” Id. To Duncan’s
knowledge, Herron had a child with one woman who had worked at the jail and another
had become pregnant. Id. at 199-200. She testified she was aware that Crutcher-Sanchez
had a sexual relationship with Deputy Sheriff Herron and was terminated after ending the
relationship. Id. at 138. Further, she stated she was aware that Moctezuma had a
relationship with defendant Herron and was promoted. Id. at 214-15. She believed
promotions were based on something other than merit. Id. She also testified that
pornography and sexual jokes were pervasive in the workplace, preferential treatment was
given to women who engaged in sexual activity with superiors. Id. at 202, 434, 453.
Further, she testified that she was adversely affected by the environment in that she
believed she was qualified for a promotion but did not apply because other officers would

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have suspected that she “would have sexual activity with [her] superiors.” Id. at 291. She
sought medical attention for stress. Id. at 383-86.
In her affidavit, former Dakota County Jail employee Heather Shelby stated that
defendant Herron attempted to kiss her and touched her inappropriately on multiple
occasions. Filing No. 71. Ex. 3, Shelby Aff. at 1. She further stated that Deputy Sheriff
Herron promised her an easier work schedule in exchange for “doing a strip tease for him
or [posing] for him at work.” Id. at 2. Shelby further states in the affidavit that “[t]he work
environment was sexually charged” and that “[p]ornography was present on computers at
work” and sexual jokes were distributed via email at the jail during the time she worked
there. Id. at 2. She also states that she was told she would lose her job if she testified
truthfully at an investigation into improprieties at the jail. Id. at 3.
The affidavit of Betty O’Neill shows that there were numerous allegations that Sheriff
Wagner and Chief Deputy Herron were sexually harassing female employees. Id., Ex. 4
at 1. She participated in the investigation and, based on her observations, believes
“Wagner and Herron sexually harassed female employees at the Dakota County Jail and
that all employees were subject to a sexually charged and hostile work environment
created by Wagner and Herron and covered up by other Dakota County Commissioners
and Dakota County Attorney.” Id. at 2.
The affidavit of Diane Moctezuma shows that defendant Herron had an ongoing
relationship with Alana Crutcher-Sanchez at the time Moctezuma was first employed, and
that Moctezuma began a relationship with him shortly thereafter. Id., Ex. 5 at 2. Defendant
Herron told Moctezuma that he was trying to have Alana arrested for a DUI so he could fire

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her. Id. Herron also asked Moctezuma to lie to investigators. Id. at 3. She stated that
“Herron made it clear that [she] would receive benefits if [she] dated him and that he would
retaliate against [her] in some way if [she] did not comply. Id. at 3.
The testimony of defendant Herron is at odds with much evidence submitted by the
plaintiff, although he admits having sex with Diana Moctezuma and promoting her within
two weeks after she was hired. See Filing No. 50, Ex. E., Herron Dep. at 38, 76. He
denies making any advances on Shelby. Id. at 34, 42-43. He also admits to a sexual
relationship with Charvette Williams, but testified that she initiated it. Id. at 56. Also, he
admits having a sexual relationship with a nurse at the jail and to having a relationship, and
a child, with another Dakota County employee. Id. at 56-57, 60-61. Further, he admits that
texts and e-mails of jokes were sent on county computers. Id. at 74. He denies, however,
that the women received favorable treatment and also denies that he ever pressured any
individual to have a relationship with him. Id. at 49, 51-52, 93-94, 111.
II. Discussion
A. Law
On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984,
990 (8th Cir. 2005). “Where unresolved issues are primarily legal rather than factual,
summary judgment is particularly appropriate.” Mansker v. TMG Life Ins. Co., 54 F.3d
1322, 1326 (8th Cir. 1995).

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The burden of establishing the nonexistence of any genuine issue of material fact
is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). Therefore, if defendant does not meet its initial burden with respect to an
issue, summary judgment must be denied notwithstanding the absence of opposing
affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v.
Doughboy Recreational Inc., 825 F.2d 167, 174 (8th Cir. 1987).
Once defendant meets its initial burden of showing there is no genuine issue of
material fact, plaintiff may not rest upon the allegations of his or her pleadings but rather
must set forth specific facts, by affidavit or other evidence, showing that a genuine issue
of material fact exists. See Fed. R. Civ. P. 56(e)(2); Chism v. W.R. Grace & Co., 158 F.3d
988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show
that there is some metaphysical doubt as to the material facts; he or she must show there
is sufficient evidence to support a jury verdict in his or her favor. Id. “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion,
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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Although facts are viewed
in the light most favorable to the non-moving party, in order to defeat a motion for summary
judgment, the non-moving party cannot simply create a factual dispute; rather, there must
be a genuine dispute over those facts that could actually affect the outcome of the lawsuit.”
Carter v. St. Louis Univ., 167 F.3d 398, 401 (8th Cir. 1999).
There is no “discrimination case exception” to the application of summary judgment,
which is a useful pretrial tool to determine whether any case, including one alleging
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discrimination, merits a trial. Torgerson v. City of Rochester, No. 09-1131, slip op. at 14
(8th Cir. June 1, 2011) (en banc) (quoting Fercello v. County of Ramsey, 612 F.3d 1069,
1077 (8th Cir. 2010). Nevertheless, “[a]t the summary judgment stage, the court should
not weigh the evidence, make credibility determinations, or attempt to determine the truth
of the matter.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986). The court’s
function is to determine whether a dispute about a material fact is genuine, that is, whether
a reasonable jury could return a verdict for the nonmoving party based on the evidence.
Id. at 248. To be material, a fact “must affect the outcome of the lawsuit under governing
law.” Id. “The evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in [the nonmoving party's favor].” Id. at 255. “If reasonable minds could
differ as to the import of the evidence,” summary judgment is inappropriate. Id. at 250. In
a discrimination case, when the record on summary judgment is fully developed, the “court
need only decide whether, on the record as a whole, there is a genuine issue for trial on
the ultimate question of discrimination vel non.” Torgerson, slip op. at 32 (Colloton, J.,
concurring).
Duncan’s “right to be free from gender discrimination is secured by the equal
protection clause of the Fourteenth Amendment.” Tipler v. Douglas County, Neb., 482
F.3d 1023, 1027 (8th Cir. 2007); Ottman v. City of Independence, 341 F.3d 751, 756 (8th
Cir. 2003) (“intentional gender discrimination in public employment by persons acting under
color of state law violates the Equal Protection Clause of the Fourteenth Amendment”).
Equal protection claims may be asserted under 42 U.S.C. § 1983. See, e.g., Mercer v. City
of Cedar Rapids, 308 F.3d 840, 844 (8th Cir. 2002). Discrimination based on gender that
creates a hostile or abusive working environment also violates § 1983. Weger v. City of
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Ladue, 500 F.3d 710, 171 (8th Cir. 2007) (hostile work environment claims under Title VII
and § 1983 are subject to the same analysis).
To establish a prima facie hostile work environment claim for harassment by a
supervisor, a plaintiff must prove: (1) that she was a member of a protected group; (2) that
unwelcome harassment occurred; (3) a causal nexus between the harassment and her
membership in the protected group; and (4) that the harassment affected a term, condition,
or privilege of employment. Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008).
Title VII “prohibits both quid pro quo harassment, where an employee’s submission
to or rejection of a supervisor’s unwelcome sexual advances is used as the basis for
employment decisions, and hostile work environment harassment, where ‘the workplace
is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Tenge v. Phillips Modern Ag Co., 446 F.3d 903, 908 (8th Cir.2006)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Sexual harassment is quid pro quo if a tangible employment action follows the
employee’s refusals to submit to a supervisor’s sexual demands. Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 752 (1998). A plaintiff in that situation need not prove that the
offensive conduct is severe or pervasive because any carried-out threat is itself deemed
an actionable change in the terms or conditions of employment. Id. at 753-54; Henthorn
v. Capitol Communications, Inc., 359 F.3d 1021, 1027 (8th Cir. 2004). Thus, to avoid
summary judgment on a quid pro quo harassment claim, the plaintiff must present
evidence capable of proving that “submission to unwelcome advances was an express or

8

implied condition for receiving job benefits or [that] refusal to submit resulted in a tangible
job detriment.” Newton v. Cadwell Labs., 156 F.3d 880, 882 (8th Cir. 1998).
“Harassment affects a term, condition, or privilege of employment if it is ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Nitsche v. CEO of Osage Valley Elec. Co-op., 446 F.3d
841, 845 (8th Cir. 2006) (quoting Harris, 510 U.S. at 21). “[The plaintiff] must clear a high
threshold to demonstrate actionable harm, for ‘complaints attacking the ordinary
tribulations of the workplace, such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing’ obtain no remedy.” Id. at 845-46 (quoting Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998)). “[A] sexually objectionable environment must
be both objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.” Id. at 846 (quoting
Faragher, 524 U.S. at 787). “To be actionable, the conduct complained of must be
extreme in nature and not merely rude or unpleasant.” Id. “Allegations of a few isolated
or sporadic incidents will not suffice; rather, the plaintiff must demonstrate the alleged
harassment was ‘so intimidating, offensive, or hostile that it poisoned the work
environment.’” Id. (quoting Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003). “Such
standards are demanding, for ‘Title VII does not prohibit all verbal or physical harassment’
and is not ‘a general civility code for the American workplace.’” Id. (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). “In determining whether a work
environment was sufficiently hostile or abusive, [courts] examine the totality of the
circumstances, including whether the discriminatory conduct was frequent and severe;
whether it was physically threatening or humiliating, as opposed to merely an offensive
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utterance; and whether it unreasonably interfered with the employee’s work performance.”
Id.
In order for a person to claim sexual favoritism, there must be evidence of either
quid pro quo or hostile environment sexual harassment. See Tenge, 446 F.3d at 908
(noting that the EEOC “was careful to distinguish cases of favoritism to an employee
actually involved in a romantic relationship with a supervisor from favoritism based on
coerced sexual conduct, which amounts to quid pro quo sexual harassment, and from
widespread sexual favoritism in the workplace, which may establish a hostile work
environment claim” and citing EEOC Policy Guidance on Employer Liability Under Title VII
for Sexual Favoritism, EEOC Notice No. 915-048 (Feb. 15, 1990)). A single allegation
cannot constitute widespread sexual favoritism. McGinnis v. Union Pacific R.R., 496 F.3d
868, 874 (8th Cir. 2007).
Government entities are not liable under section 1983 for an employee’s actions
under a theory of respondeat superior, but the county may be liable if the plaintiff can prove
an official policy or a widespread custom that violated the law and caused the plaintiff’s
injury. See Artis v. Francis Howell North Band Booster Ass’n, Inc., 161 F.3d 1178, 1181
(8th Cir. 1998); Polacco v. Curators of University of Missouri, 37 F.3d 366, 369 (8th Cir.
1994) (stating that an employer may be held liable even if its individual agents are not).
Locating a “policy” ensures that a municipality is held liable only for those deprivations
resulting from the decisions of its duly constituted legislative body or of those officials
whose acts may fairly be said to be those of the municipality. Board of County Comm'rs
of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04 (1997). “[A]n act performed
pursuant to a ‘custom’ that has not been formally approved by an appropriate
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decisionmaker may fairly subject a municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.” Id. at 404 (citing Monell v. Dep’t of
Soc. Serv. of City of New York, 436 U.S. 668, 690-91 (1978).
Under section 1983, to establish liability against a defendant in his individual
capacity, because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead
that each government-official defendant, through the official’s own individual actions, has
violated the Constitution. Parrish v. Ball, 594 F.3d 993, 1000 (8th Cir. 2010); Ashcroft v.
Iqbal, 129 S. Ct. at 1948. “Thus, ‘each Government official, his or her title notwithstanding,
is only liable for his or her own misconduct.’” Parrish, 594 F.3d at 1001 (quoting Iqbal, 129
S. Ct. at 1949). A supervising officer can be liable for an inferior officer’s constitutional
violation only if he directly participated in the constitutional violation, or if his failure to train
or supervise the offending actor caused the deprivation.

Id.; Ottman v. City of

Independence, Mo., 341 F.3d 751, 761 (8th Cir. 2003) (stating that the supervisor must
know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear
of what [he or she] might see).
The Ellerth/Faragher affirmative defense protects employers in harassment cases
in which an employee fails to stop the harassment by using the employer’s effective
anti-harassment policy. McCurdy v. Arkansas State Police, 375 F.3d 762, 772 (8th Cir.
2004). The defense, which is available only when no tangible employment action been
taken, “comprises two necessary elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive or corrective

11

opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at
765; Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
B. Analysis
Viewing the evidence in the light most favorable to the plaintiff, the court finds the
county defendants and defendant Herron in his individual capacity are not entitled to
summary judgment. The court has reviewed the evidence submitted by the parties and
finds that a reasonable juror could draw an inference of discrimination from the defendant’s
actions, if the testimony of the plaintiff and other witnesses were credited.

This

determination is a fact issue that should be submitted to a jury.
The evidence indicates that defendant Herron has a long history of conduct with
employees that could be characterized as harassment. There is evidence from which a
jury could infer that other employees received preferential treatment for engaging in sexual
relationships with defendant Herron. The evidence also supports the inference that the
plaintiff was adversely affected by the favoritism. Importantly, there is evidence from
which a jury could find quid pro quo sexual harassment and also evidence of unwelcome
advances and harassing conduct based on gender. Whether the conduct rose to the level
of severe and pervasive conduct that affects a term or condition of employment is for the
jury to decide. The evidence supports the plaintiffs’ assertion that the actions were taken
either by policy-makers or pursuant to an official policy or custom and practice of the
County. The court finds there are genuine issues of material fact with respect to the
severity and pervasiveness of the conduct.

Resolution of these issues will involve

assessments of credibility and present questions of fact for the jury.

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The court also finds the defendants’ reliance on the Ellerth/Faragher defense is
misplaced because the evidence does not establish that the county had an effective antiharassment policy in place. Further, for the reasons stated in this court’s Memorandum
and Order on the defendant’s motion to dismiss, the court finds the defendants are not
entitled to summary judgment on the basis of qualified immunity. Accordingly, the court
finds the defendants’ motions for summary judgment should be denied.
IT IS ORDERED:
1. The county defendants’ motion for summary judgment (Filing No. 49) is denied.
2. Defendant Rodney Herron’s motion for summary judgment (Filing No. 52) is
denied.
3. Defendant James L. Wagner’s motion for summary judgment (Filing No. 55) is
granted.
4. The plaintiff's claims against James L. Wagner in his individual capacity are
hereby dismissed.
DATED this 21st day of June, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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