Holtorf v. Fraternal Order of the Eagles

Filing 107

MEMORANDUM AND ORDER - IT IS ORDERED: Defendant Grand Aerie of the Fraternal Order of Eagles' Objections to Plaintiff's Evidence Offered in Opposition to Defendant's Motion for Summary Judgment (Filing No. 101 ) are granted in par t, as follows: The Court has not considered any evidentiary materials that were not properly authenticated or that constituted inadmissible hearsay; the Court has disregarded Holtorf's statements that reflected speculation or conclusions of law; and the Court has disregarded testimony of Debra Sorensen that was irrelevant, and The Objections are otherwise denied. Defendant Grand Aerie of the Fraternal Order of Eagles' Motion for Summary Judgment (Filing No. 84 ) is granted. Ordered by Chief Judge Laurie Smith Camp. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KATRINA HOLTORF,

CASE NO. 8:11CV259

Plaintiff,
vs.

MEMORANDUM
AND ORDER

FRATERNAL ORDER OF EAGLES,
LOCAL CHAPTER 200, and GRAND
AERIE OF THE FRATERNAL ORDER OF
EAGLES,
Defendants.
This matter is before the Court on the Motion for Summary Judgment (Filing No.
84) submitted by Defendant Grand Aerie of the Fraternal Order of Eagles (“Grand
Aerie”), and the Grand Aerie’s Objections to the Plaintiff’s Evidence (Filing No. 101).
For the reasons that follow, the Objections will be granted in part, and the Motion for
Summary Judgment will be granted.
OBJECTIONS TO PLAINTIFF’S EVIDENCE
First, the Grand Aerie objects to the Court considering evidence presented by
Plaintiff Katrina Holtorf that is not properly authenticated or that constitutes inadmissible
hearsay. The Court will grant the Grand Aerie’s Objection in this respect, and will not
consider any evidentiary materials that have not been properly authenticated or that
constitute inadmissible hearsay.
Second, the Grand Aerie objects to statements in Holtorf’s affidavit that Grand
Aerie contends are inconsistent with her deposition testimony, or that reflect
speculation, feelings and perceptions, or legal conclusions. The Court will grant the
Grand Aerie’s Objection in this respect, in part, disregarding Holtorf’s statements that

reflect speculation or conclusions of law.

The Court will also consider any prior

inconsistent statements of Holtorf when determining whether genuine issues of material
fact remain for a jury.
Third, the Grand Aerie objects to testimony of Holtorf’s co-worker, Debra
Sorensen, suggesting that it is inadmissible under Fed. R. Evid. 401 and 403. The
Court will grant the Grand Aerie’s Objection in this respect, in part, disregarding
statements of Sorensen that are irrelevant.
FACTS
Plaintiff Katrina Holtorf’s two remaining claims are presented under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), asserting (1) hostile
work environment based on sexual harassment, and (2) constructive discharge.
The record before the Court demonstrates that there is no genuine issue as to
the following facts:
Holtorf is a female resident of Cedar Bluff, Nebraska. She was hired by the
Fraternal Order of Eagles Local Chapter 200 (the “Local Chapter”) on or about March 2,
2009, to work as a bartender, and was supervised by the Local Chapter Trustees, Jeff
Clark, Paul Mittura1, and Scott VonSeggern, as well as the bar manager, Mike Saxton.
The Local Chapter’s charter as an aerie of the Fraternal Order of Eagles was
suspended on or about March 16, 2009, and it has not regained its charter.
On March 9, 2009, Holtorf’s first day of work, Clark told her there were rumors
that another female employee gave him “blow jobs” after work, but if he was going to do
such a thing it would be with someone with an “ass” like Holtorf’s.
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Mittura also served as the accountant for the Local Chapter.
2

On or about April 18, 2009, Holtorf came to work in casual clothes to set up the
bar for a special event, bringing her work clothes with her. She later asked Clark if she
had time to change her clothes before the event, and he said he could take her to his
house to change her clothes. She replied that she would change in the restroom.
On or about April 20, 2009, Clark held a staff meeting in his office. Holtorf and
other employees attended the meeting. Clark put his leg on his desk, revealing a large
hole in the crotch of his pants, and he scratched his crotch throughout the meeting.
On May 1, 2009, Holtorf was bartending and helping customers, when Clark
grabbed her, pulling her toward him. He began to rub his body against her back, and
she could feel his genitals against her. Clark repeated the behavior later in the evening.
Holtorf told Clark the behavior was unacceptable and unwelcome.
On another occasion after May 1, 2009, Holtorf was having a drink at the bar
after work. Clark told Holtorf he would buy her another drink, and she should tell her
husband she wouldn’t be coming home because she would be staying overnight at
Clark’s house that evening.

Holtorf told Clark what he was suggesting was

unacceptable and would not happen.
On another occasion, Holtorf was standing on a counter in the Local Chapter
kitchen, cleaning. She was wearing shorts. Her immediate supervisor at the time was
Ty Broulliette. He said to her “nice purple panties.” Holtorf complained to Saxton about
Broulliette’s comment and about Clark’s behavior, noting that Clark put his hands on her
every time he walked by, making her uncomfortable.

Holtorf also complained to

VonSeggern, telling him and Saxton that she felt humiliated and demeaned by Clark’s
behavior, and she was frightened and intimidated in his presence.
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On twenty to thirty occasions during Holtorf’s employment, Mittura held his cell
phone screen in front of Holtorf, displaying photos of male genitalia and men and
women engaged in sex acts. Holtorf told him the images were disgusting and she did
not want to see them.
In mid-May 2009, Holtorf told Saxton and VonSeggern she did not want to work
with Clark any longer. They told her to report Clark’s behavior to Vince Kinman, the
Grand Aerie’s Field Service Manager. A few days later, Holtorf called Kinman and told
him she had been assaulted and sexually harassed by Clark and was not comfortable
working with him. Kinman told Holtorf she was not the only employee who complained
about Clark and he would be fired.
Within a week of Holtorf’s call to Kinman, VonSeggern told her he wanted Clark
to continue to work as the Local Chapter manager.

Holtorf told VonSeggern she

believed she had been sexually assaulted by Clark, and she would be forced to quit her
job if Clark continued to work there. The next day, Holtorf called Kinman again, telling
him she would resign if Clark continued to work at the Local Chapter, because she
could not work with someone who sexually harassed and assaulted her.
On June 3, 2009, Kinman called Clark and Clark admitted he asked Local
Chapter employees to “suck his dick under the desk.” Kinman removed Clark as a
trustee and suspended his membership in the Fraternal Order of Eagles for 90 days
During the time of Clark’s suspension, he attended events at the Local Chapter
on at least two occasions. Also during the time of Clark’s suspension, Mittura continued
to put his cell phone screen in front of Holtorf when she was working, forcing her to see
sexually explicit images.
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Clark’s 90-day membership suspension was scheduled to end on August 31,
2009. On or about August 8, 2009, Holtorf was placed on a two-week suspension from
her employment at the Local Chapter, for the stated reason that she had locked, but not
latched, a cooler in the bar area.

She received no other discipline during her

employment with the Local Chapter, and she perceived that the suspension was
imposed in an effort to encourage her to quit her job before Clark returned from his
membership suspension.
Knowing that Clark would return as a member of Local Chapter on September 1,
2009, and fearing continued harassment by him, Holtorf telephoned Saxton a few days
after August 8, 2009, and resigned her employment.
Holtorf brought this action against the Local Chapter on July 26, 2011. She filed
her Amended Complaint (Filing No. 53) on September 8, 2012, adding the Grand Aerie
as a Defendant.
STANDARD OF REVIEW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the nonmoving party and
mak[e] all reasonable inferences in [that party's] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir 2011). “[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper summary
judgment motion to be opposed by any of the kinds of evidentiary materials listed in
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Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). The moving party need not negate the nonmoving party’s claims by
showing “the absence of a genuine issue of material fact.” Id. at 325. Instead, “the
burden on the moving party may be discharged by ‘showing’ . . . that there is an
absence of evidence to support the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact' such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “‘must do more than simply show that there is some
metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir.) (quoting Matsushita, 475 U.S. at 586-87)), cert. denied, 132
S. Ct. 513 (2011). “‘[T]he mere existence of some alleged factual dispute between the
parties’” will not defeat an otherwise properly supported motion for summary judgment.
Quinn v. St. Louis County., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding “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.’” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott
v. Harris, 550 U.S. 372, 380 (2007)). Otherwise, where the Court finds that “the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party”–
where there is no “'genuine issue for trial'”–summary judgment is appropriate.
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Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)).
DISCUSSION
The Grand Aerie contends Holtorf cannot establish that (1) she timely filed suit
against Grand Aerie, (2) Grand Aerie was subject to Title VII2, (3) she was a Grand
Aerie employee, (4) she exhausted her administrative requirements with respect to
Grand Aerie, (5) she suffered an adverse action, (6) she was treated less favorably than
similarly situated males, or (7) she was subjected to sexual harassment severe enough
to affect the terms and conditions of her employment, and Kinman failed to take
appropriate remedial action.
Assuming, without deciding, that Holtorf can establish Grand Aerie was her
employer, it was subject to Title VII, she was subjected to sex discrimination in the form
of sexual harassment, she exhausted her administrative remedies, and she timely filed
suit, summary judgment will be granted in favor of Grand Aerie, because it took
appropriate remedial action to end the harassment, and because Holtorf’s decision to
resign involved no “adverse action” by Grand Aerie.
I. Hostile Work Environment Based on Sexual Harassment
“Title VII prohibits employers from discriminating against any individual based on
sex with respect to their compensation, terms, conditions, or privileges of employment.”
Brenneman v. Famous Dave’s of America, Inc., 507 F.3d 1139, 1143 (8th Cir. 2007)
(citing 42 U.S.C. § 2000e-2(a)(1)). “‘Discrimination based on sex that creates a hostile
2

Title VII, at 42 U.S.C. § 2000e(b), excludes from the definition of employer “a
bona fide private membership club (other than a labor organization) which is exempt
from taxation under section 501(c) of (the Internal Revenue Code of 1954) . . . .”
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or abusive working environment violates Title VII.’” Id. (quoting Weger v. City of Ladue,
500 F.3d 710, 718 (8th Cir. 2007)).
“To prove a hostile-work-environment claim, [a plaintiff] must show (1) she was a
member of a protected group; (2) she was subject to unwelcome harassment; (3) the
harassment was based on sex; (4) that it ‘affected a term, condition, or privilege of
employment;’ and (5) that her employer knew or should have known of the harassment
and failed to take appropriate remedial action.” Duncan v. County of Dakota, Neb., 687
F.3d 955, 959 (8th Cir. 2012) (quoting Sutherland v. Missouri Dep't of Corr., 580 F.3d
748, 751 (8th Cir. 2009)).
Here, Holtorf has demonstrated that she was a member of a protected group,
i.e., female; she was subject to unwelcome harassment; and the harassment was based
on sex. The Grand Aerie argues that Holtorf has not demonstrated that the harassment
affected a term, condition, or privilege of her employment, nor has she demonstrated
that Grand Aerie knew or should have known of the harassment and failed to take
appropriate remedial action.
In Duncan v. General Motors Corp., 300 F.3d 928 (8th Cir. 2002), the Eighth
Circuit noted that “[t]o clear the high threshold of actionable harm, [a plaintiff] has to
show that ‘the workplace is permeated with discriminatory intimidation, ridicule, and
insult.’” 300 F.3d at 934 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
“Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable
person would find hostile or abusive—is beyond Title VII's purview.”
Oncale [v. Sundowner Offshore Servs., Inc.,] 523 U.S. 75, 81 [1998].
(Internal quotation omitted). Thus, the fourth part of a hostile environment
claim includes both objective and subjective components: an environment
that a reasonable person would find hostile and one that the victim
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actually perceived as abusive. Harris, [v. Forklift Sys., Inc.,] 510 U.S. 17,
21 [1993]. In determining whether the conduct is sufficiently severe or
pervasive, we look to the totality of the circumstances, including 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.”
Id. at 23[.]
Duncan v. General Motors, 300 F.3d at 934.
The Court finds that Holtorf has come forward with sufficient evidence to create,
at a minimum, genuine issues of material fact as to whether the unwelcome harassment
affected a term, condition, or privilege of her employment, i.e., whether a reasonable
person would find Clark’s and Mittura’s conduct hostile or abusive, and whether Holtorf
actually perceived it as such.
The Grand Aerie also argues that Holtorf cannot demonstrate that the Grand
Aerie knew or should have known of the harassment and failed to take appropriate
remedial action. The Grand Aerie refers the Court to the Eighth Circuit’s decisions in
Mariwether v. Caraustar Packing Co., 326 F.3d 990 (8th Cir. 2003), McCurdy v. Ark.
State Police, 375 F.3d 762 (8th Cir. 2004), Tatum v. Ark. Dep’t of Health, 411 F.3d 955
(8th Cir. 2005), and Green v. Franklin Nat. Bank of Minneapolis, 459 F.3d 903 (8th Cir.
2006), in support of its argument that Kinman’s response was timely and sufficient, as a
matter of law.
Mariwether and McCurdy offer little support for the Grand Aerie’s position. In
Mariwether, the employer immediately investigated the plaintiff’s complaint, initially
suspending the offending co-worker for two days, and within one week taking further
disciplinary and corrective action.

326 F.3d at 994.

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In McCurdy, the employer

immediately took steps to investigate the plaintiff’s complaint, insulate the plaintiff from
further offensive conduct, and take appropriate corrective measures. 375 F.3d at 771.
The Eighth Circuit’s decisions in Tatum and Green do suggest that the Grand
Aerie’s response to Holtorf’s complaints was sufficient as a matter of law. In Tatum, no
investigation was begun until two weeks after the plaintiff’s complaint, and the
investigation took eight weeks to complete. During the investigation, the plaintiff was
required to work in the same office as her alleged harasser. The Eighth Circuit found
that the plaintiff had not shown that her employer failed to complete a prompt and
effective investigation, and affirmed the district court’s grant of a judgment in favor of the
employer as a matter of law. 411 F.3d at 959-60. In Green, the Eighth Circuit affirmed
the district court’s grant of summary judgment in favor of an employer that terminated
an alleged harasser approximately one month after the plaintiff’s complaint of
harassment.

459 F.3d at 912.

It was unclear how many alleged incidents of

harassment occurred between the time of the complaint and the termination. Id. at n.6.
The Eighth Circuit noted that the employer “may not have acted in an ideal manner,” but
its remedial actions “were sufficient.” 459 F.3d at 912. “[C]ases that [plaintiff] cites to
support her claim involved situations where the employer waited much longer than one
month to terminate the employee. Therefore, we conclude that the grant of summary
judgment on the hostile work environment claim as to [the] harassment was proper
because [the employer] took prompt remedial action.” Id.
This Court finds that no genuine issues of material fact remain as to whether the
Grand Aerie took appropriate remedial action following Holtorf’s communication of her
complaint to Kinman. Clark’s position as a Trustee, and his supervisory relationship to
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Holtorf, were terminated by Kinman approximately two weeks after Holtorf’s initial
complaint to Kinman. Although Kinman’s investigation and remedial action ideally might
have happened sooner, the Grand Aerie is entitled to judgment as a matter of law on
Holtorf’s claim of hostile work environment discrimination under Title VII, because it took
sufficient remedial action in response to her complaints.
II. Constructive Discharge
“‘Constructive discharge occurs when an employer deliberately renders the
employee’s working conditions intolerable, thereby forcing her to quit.’” Brenneman,
507 F.3d at 1144 (quoting Tatum v. Ark. Dep’t of Health, 411 F.3d 955, 960 (8th Cir.
2005)).

“To prove constructive discharge, a plaintiff must demonstrate that: ‘(1) a

reasonable person in her situation would find the working conditions intolerable and (2)
the employer . . . intended to force the employee to quit.’” Id. (quoting Tatum, 411 F.3d
at 960).

The second element is satisfied if the employer reasonably could have

“foreseen that the employee would [quit] as a result of its actions. Id. (alteration in
original) (quoting Fenney v. Dakota, Minn. & E. R. Co., 327 F.3d 707, 717 (8th Cir.
2003)) (citing Wright v. Rolette County, 417 F.3d 879, 886 (8th Cir. 2005)).

“A

reasonable employee ‘has an obligation not to assume the worst and not to jump to
conclusions too quickly.

An employee who quits without giving [her] employer a

reasonable chance to work out a problem has not been constructively discharged.’” Id.
(quoting Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir.1997)) (citing Duncan
v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir.2002)).
The Grand Aerie argues that Holtorf’s resignation was voluntary, and her fear of
future harassment by Clark was unfounded. Holtorf contends that her suspension for
11

failing to latch the cooler was a pretext for sex discrimination, and when Clark’s
suspension ended, her working conditions would have been intolerable.
Construing the facts in a light most favorable to Holtorf, she has demonstrated
that after Clark was removed as a trustee and supervisor, and his membership was
suspended, she continued to be subjected to sexual harassment by another supervisor,
Mittura. There is no evidence that Holtorf brought that harassment to the attention of
Kinman or anyone else associated with the Grand Aerie, however. Nor is there any
evidence that Kinman or anyone else associated with the Grand Aerie was involved in
the decision to suspend Holtorf, or that Holtorf complained to Kinman or anyone else
associated with the Grand Aerie about her suspension or about her fear of Clark’s
return as a member of the Fraternal Order of Eagles. She gave the Grand Aerie no
opportunity to work out the problems, and no reasonable jury could conclude that the
Grand Aerie intended to force her to quit, or reasonably could have foreseen that she
would quit as a result of its actions or inactions.
Accordingly,
IT IS ORDERED:
1.

Defendant Grand Aerie of the Fraternal Order of Eagles’ Objections to
Plaintiff’s Evidence Offered in Opposition to Defendant’s Motion for
Summary Judgment (Filing No. 101) are granted in part, as follows:
The Court has not considered any evidentiary materials that
were not properly authenticated or that constituted
inadmissible hearsay; the Court has disregarded Holtorf’s
statements that reflected speculation or conclusions of law;
and the Court has disregarded testimony of Debra Sorensen
that was irrelevant, and
The Objections are otherwise denied; and

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2.

Defendant Grand Aerie of the Fraternal Order of Eagles’ Motion for
Summary Judgment (Filing No. 84) is granted.

Dated this 12th day of November, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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