Kaiser v. Gortmaker et al

Filing 88

OPINION AND ORDER re 58 MOTION for Summary Judgment . Signed by U.S. District Judge Charles B. Kornmann on 8/30/17. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

FILED
AUG 3 0 2017

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1: 15-CV-01030-CBK

LAURA ZYLSTRA KAISER,

Plaintiff,
OPINION AND ORDER

vs.
BRYAN GORTMAKER, IN HIS OFFICIAL
CAPACITY AS SOUTH DAKOTA
DIRECTOR OF THE DIVISION OF
CRIMINAL INVESTIGATION; AND MARK
BLACK,

Defendants.
The plaintiff, Laura Kaiser, filed her First Amended Complaint with the Court alleging:
reprisal and sex discrimination in violation of Title VII of the Civil Rights Act of 1964; reprisal
and sex discrimination in violation of the South Dakota Human Relations Act of 1972; and
tortious interference. Defendant Bryan Gortmaker, in his official capacity as the South Dakota
Director of the Division of Criminal Investigation, has made a motion for summary judgment on
the plaintiffs reprisal and sex discrimination claims in violation of federal and state law. The
defendant also requests the Court to conclude as a matter of law that the plaintiff is barred from
recovering punitive damages. The Court is fully advised on the matter.

FACTUAL BACKGROUND
On August 13, 2003, Kaiser was hired as a Special Agent and was assigned to the Drug
Task Force of the South Dakota Division of Criminal Investigation ("DCI") in Aberdeen, South
Dakota. Kaiser was responsible for preparing and executing search warrants, drug
investigations, interrogating suspects, interviewing witnesses, and testifying in court.

Director Gortmaker has two Assistant Directors that are responsible for managing
Supervisory Special Agents ("SSAs") within their assigned region. Each SSA is responsible for
the agents within their region. Brian Zeeb was the Northeast SSA and Kaiser's supervisor from
2006 until he was promoted to Assistant Director in 2011. Jason Even was promoted to Zeeb's
former position as the Northeast SSA in 2011. The DCI agents are stationed in a basement office
in the Brown County facility. The Drug Task Force is a team comprised of federal and state
officers. In the fall of 2011, the office included DCI Agents Mark Black and Dave Lunzman and
Brown County Investigators Damian Bahr and Ross Erickson. Jason Even supervised the DCI
agents and Brown County Sheriff Mark Milbrandt supervised Erickson and Bahr.
Kaiser alleges she was subject to disparate treatment while she was training at the
academy. Kaiser reported to Gortmaker that the men would call her "Ellen," in reference to
Ellen DeGeneres. Moreover, she reported to Zeeb that her lab instructor said, "We're going to

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strip you down and take turns washing you down," after meth was splattered on her. Finally,
while at the academy, Kaiser reported to Zeeb that a detective made romantic advances and
"almost stalked her" after she said she was not interested.
In 2005, Kaiser reported to Zeeb that Brown County Investigator Bryan Locke was
harassing her. Locke made numerous comments that Kaiser found inappropriate, such as telling
her she would be assigned to search a kitchen because that is where women belong, asking if she
wanted a recipe he found in a search, and telling Kaiser the only reason an informant spoke to
her was because of her "boobs." Zeeb arranged for Kaiser to confront Locke in front of himself
and Milbrandt. When Kaiser later reported she felt she was being retaliated against, Zeeb told
her that if the issue "gets back to Pierre, you better be ready to bend over and take it" and she
needed to "eat the shit sandwich." Zeeb held a "coaching session" to let her know that, should

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she want a promotion or transfer in the future, others may see her complaint as an inability to get
along with others. In response, Kaiser was required to double her case numbers.
For eight years, Kaiser received positive performance reviews. In January 2011, she was
promoted to Special Agent III, the highest level for that position. In her 2011 mid-year
evaluation, Kaiser was praised for her exceptional work product, ability to work amicably with
others, relentless work, and above-average case activity. In July 2011, Kaiser was appointed to
serve as the acting supervisor for the Northeast DCI agents while her supervisor was on vacation.
In August 2011, Brown County Deputy Ross Erickson was assigned to the Drug Task
Force in Aberdeen, South Dakota. Kaiser alleges that Erickson immediately established a
custom of making sexually explicit comments to her. Plaintiff alleges she wanted to make a
harassment complaint, but feared she would be adversely affected because she had a negative
experience when she made the harassment complaint in 2005.
On October 17, 2011, Kaiser asked fellow coworker, Jessica Page, for advice. Page
advised Kaiser to not file a complaint because it would only cause problems. Later that day,
Kaiser informed Mark Black about Erickson's conduct. Black offered to speak with Erickson,
but Kaiser declined. Kaiser requested that Black keep her concerns confidential, and Black gave
her the impression that he would.
The following day, Kaiser approached Erickson about the sexually inappropriate
comments and questions. Erickson apologized and said he would stop being inappropriate in the
future. On October 20, 2011, Erickson informed Kaiser that Black had told the entire office
about the issue. Kaiser apologized and said it was not her intent to have the office know about
the incident. Later that day, Kaiser approached Black and asked why he shared her conversation

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with the rest of the office. Black attempted to shift the blame on Kaiser and began ignoring her
at work.
Later that afternoon, Black secretly assembled a meeting with Erickson, Bahr, and
Lunzman at Melgaard Park in Aberdeen, South Dakota. Black Dep. 35, Lunzman Dep. 19. At
the park, Erickson admitted to making some of the statements and acknowledged they could be
construed as sexual harassment, but claimed they were taken out of context. Black stated that
Kaiser was using the information to test their friendship. Plaintiff alleges that Black conspired

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with Erickson, Bahr, and Lunzman to formulate a set of talking points in an effort to have her

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removed from the department or be fired. Kaiser claims the group agreed they would all tell
supervisor, Jason Even, that Kaiser was not to be trusted, was unpleasant to work with, and was

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mentally ill. After the meeting at Melgaard Park, Black called Even to report a hostile work

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environment. Black relayed some of Erickson's comments, which Even found concerning and

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inappropriate.
On October 20, 2011, Even called Satterlee about the situation. Satterlee instructed Even
to "get to the bottom" of it. This was the first time Satterlee had directed a subordinate to
conduct a workplace investigation. Even called Milbrandt as a courtesy to let him know he
would be speaking with the sheriff's deputies and apologized for the turmoil.
On October 21, 2011, Even interviewed Black, Erickson, Bahr, and Lunzman regarding
Kaiser's complaint. Plaintiff alleges that Black, Erickson, Bahr, and Lunzman all followed their
plan to disparage her. Afterward, Even met with Kaiser and accused her of fabricating her
allegations and threatened the issue could result in her termination. Kaiser denied such
allegations and told Even that Erickson had acknowledged his behavior and apologized. Even

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was still skeptical of Kaiser and informed her that he was not satisfied with her work product and

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performance. Gortmaker conceded that Erickson's conduct qualified as harassment under DCI
policy. Gortmaker Dep. 24, 25.
Satterlee contacted Southeast SSA Leuning and directed him to go to Aberdeen to
investigate Kaiser's relationship with the agents and task force members. Leuning was not
directed to investigate sexual harassment; he was told to investigate Kaiser. Leuning asked the
interviewees about Kaiser's work quality, case levels, whether they could have a relationship
with her, whether they were aware ofrecordings, and if they could trust her in the future. When
Leuning interviewed Milbrandt, he raised Kaiser's situation with Locke, told Leuning he did not
want her stationed in Aberdeen, and gave Leuning the impression that he did not like Kaiser.
On November 4, 2011, Kaiser was put on a thirty-day work improvement plan ("WIP")
because she failed to maintain satisfactory relationships with her coworkers and supervisors, was
a disruptive influence in the office, produced unsatisfactory work products, and failed to provide
leadership. Kaiser was given nine tasks to complete the WIP. One of her tasks was to rebuild
positive relationships with coworkers, supervisors, and managers. When Kaiser attempted to
rebuild her relationship with Black, he responded, "We are done. Don't ever approach me
again."
On December 8, 2011, Assistant Director Dan Satterlee informed Kaiser she met the
WIP's requirements with one exception; she had failed to rebuild positive relationships with her
coworkers, supervisors, and managers. Kaiser was demoted to Special Agent II and was
involuntarily transferred to the Medicaid Fraud Control Unit in Pierre, South Dakota, effective
January 3, 2012.
Kaiser filed a grievance regarding her demotion, transfer, and treatment on December 12,
2011. On December 27, 2011, Kaiser reported sexual harassment and retaliation to then Brown

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County State's Attorney, Kim Dorsett. The next day, Kaiser filed a formal grievance with the
Director of the South Dakota Division of Criminal Investigation, Bryan Gortmaker. Kaiser also
contacted South Dakota Attorney General Marty Jackley on December 28, 2011, to alert him to
the facts and request that he stay the order of transfer.
Kaiser began her employment in Pierre, South Dakota, on January 3, 2012. Kaiser's
grievance was denied on January 9, 2012. In response, Kaiser contacted the Equal Employment
Opportunity Commission ("EEOC") in January 2012 to file a "charge of discrimination." Kaiser
believes DCI began providing negative references about her to potential employers in retaliation.
Plaintiff officially filed a grievance with Attorney General Jackley that was denied on February
23, 2012.
On April 16, 2012, Kaiser was informed she would not be allowed to live in the Pierre
law enforcement dormitory after September 1, 2012. In addition, Kaiser would not be receiving
her per diem, compensation for travel time, and an ability to use a state vehicle to commute
beginning on June 1, 2012. On May 8, 2012, Kaiser alleges she was constructively discharged.
She e-mailed DCI that she had no choice but to resign and that her last day would be May 18,
2012. Kaiser received a letter accepting her offer ofresignation and suspending her from pay
until her resignation date.
Plaintiff alleges DCI has since prevented her from obtaining numerous positions of
employment, including with the Department of Social Services, Department of Corrections,
Department of Labor and Relations, and private employers, by providing negative references and
misrepresentations about her employment, demotion, discharge, and performance.
Defendant Gortmaker has filed a motion (Doc. 58) for summary judgment in his favor on
the plaintiffs sex and reprisal discrimination claims under federal and state law.

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STANDARD OF REVIEW
The standard of review for summary judgment motions is well established. Plaintiff
argues, "summary judgment should seldom be granted in discrimination cases, and is proper only
where the evidence could not support any reasonable inference of discrimination." Pl. 's Resp. in
Opp. to Def.'s Mot. for Summ. J., p. 15. Plaintiff misstates the law in this regard. The United
States Supreme Court has reiterated that district courts should "not treat discrimination
differently from other ultimate questions of fact." Torgerson v. City of Rochester, 643 F.3d
1031, 1043 (8th Cir. 2011) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
148 (2000)). The Court has also stated: "Summary judgment procedure is properly regarded not
as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole,
which are designed "to secure the just, speedy and inexpensive determination of every action."
Celotex Com. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). Therefore,
"[t]here is no 'discrimination case exception' to the application of summary judgment ... ' "
Torgerson, 643 F.3d at 1043 (citing Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir.
2010)).
Summary judgment is appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). The Court views the evidence in the light most favorable to the nonmoving party and
draws all reasonable inferences from that evidence in favor of the nonmoving party. Smith v.
URS Corp., 803 F.3d 964, 968 (8th Cir. 2015) (citing Moody v. Vozel, 771F.3d1093, 1096 (8th
Cir. 2014)). "Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of the judge." Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011); Reeves v. Sanderson Plumbing Prods., Inc.,

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530 U;S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 206 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "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." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Com., 475 U.S. 574, 586-87,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
ANALYSIS
I. Reprisal Discrimination in Violation of Title VII

Title VII prohibits employers from "discriminat[ing] against any of his employees ...
because [s]he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3. Kaiser
must provide "either direct evidence of discrimination or create an inference of it under the
McDonnell Douglas burden-shifting framework to defeat the defendant's motion for summary
judgment on [her] retaliation claim." Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014). "Direct
evidence of retaliation is evidence that demonstrates a specific link between a materially adverse
action and the protected conduct, sufficient to support a finding by a reasonable fact finder that
the harmful adverse action was in retaliation for the protected conduct." Id. (quoting Griffith v.
City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). The plaintiff fails to assert the presence
of direct evidence to support an inference of retaliation, but rather, argues the presence of an
inference of retaliation under the McDonnell Douglas burden-shifting framework.
Under the McDonnell Douglas framework, "the initial burden is on the plaintiff to
establish aprimafacie case, consisting of evidence: (1) that he or she engaged in [a] statutorily
protected activity; (2) an adverse employment action was taken against him or her; and (3) a

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causal connection exists between the two events." Green v. Franklin Nat'l Bank of Minneapolis,
459 F.3d 903, 914 (8th Cir. 2006). If the plaintiff established aprimafacie case, the burden then
shifts to the defendant to show a "non-retaliatory reason for the adverse employment action."
Lors, 746 F.3d at 867. "If the defendant can show a legitimate, non-retaliatory reason for its
actions, the burden returns to the plaintiff who is then obliged to present evidence that (1) creates
a question of fact as to whether the defendant's reason was pretextual and (2) creates a
reasonable inference that the defendant acted in retaliation." Id.
The issue is whether the plaintiff has established a prima facie case of reprisal
discrimination. First, "Employers may not retaliate against employees who 'oppose
discriminatory conduct.'" Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (citing
42 U.S.C. § 2000e(a). In Ogden, the plaintiff engaged in a statutorily protected activity "when
she told [her harasser] to stop his offensive behavior." Id. Here, plaintiff engaged in a statutorily
protected activity when she confronted Erickson to stop his harassment on October 18 and
reported the conduct to Even during her meeting on October 21. Therefore, the plaintiff has
made an adequate showing that she engaged in a statutorily protected activity.
The next question is whether the plaintiff suffered from an adverse employment action.
An employer's retaliatory act is actionable when it would "dissuade a reasonable worker from
making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co v. White,
548 U.S. 53, 57 (2006). When considering this analysis, courts must consider the actions from
the perspective of a reasonable person in the plaintiff's position, considering "all the
circumstances." Id. (quoting Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 81 (1998)).
There is no dispute that Kaiser suffered a series of adverse employment actions. First, she was
placed on a work improvement plan, demoted, and transferred to Pierre to work for the Medicaid

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Fraud division. After filing an EEOC charge, she was disallowed the necessary benefits that
allowed her to continue working in Pierre, which resulted in her constructive discharge. The
defendant does not dispute the plaintiff experienced several adverse employment actions.
Therefore, the second element necessary to establish a prima facie case of retaliation has been
fulfilled.
Lastly, the plaintiff must demonstrate that the adverse employment actions were caused
by her protected activity. "Proximity alone can be enough to establish causation for a prima
facie case." Gibson v. Geithner, 776 F.3d 536, 541 (8th Cir. 2015). "An employee who alleges

status-based discrimination under Title VII need not show that the causal link between injury and
wrong is so close that the injury would not have occurred but for the act." Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2522-3 (2013). "It suffices instead to show that the motive
to discriminate was one of the employer's motives, even ifthe employer also had other, lawful
motives that were causative in the employer's decision." Id. at 2523. When Kaiser informed
Even about Erickson's conduct, he accused her of fabricating her allegations and threatened the
issue could result in her termination. Kaiser was then put on a work improvement plan on
November 4, 2011. On December 8, 2011, Kaiser was demoted to Special Agent II,
involuntarily transferred to Pierre, and reassigned to the Medicaid Fraud Unit, effective January,
3, 2012. On April 16, 2012, the plaintiff was informed she would no longer be allowed to live in
the Pierre Dormitory after September 1, 2012. In addition, she would no longer be receiving her
per diem, compensation for travel time, and an ability to use a state vehicle to commute,
effective June 1, 2012. On May 8, 2012, Kaiser alleges to have been constructively discharged.
Before Kaiser reported Erickson's behavior to Even, Kaiser had consistently received good
performance reviews. A reasonable finder of fact could find that informing Even about her

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confrontation with Erickson was causally connected to her adverse employment actions.
Therefore, the plaintiff has established a prima facie case for retaliation.
Next, the McDonnell Douglas test shifts the burden to the employer to provide a "nonretaliatory reason for the adverse employment action." Lors, 746 F.3d at 867. Gortmaker asserts
Kaiser's work quality, caseload, and relationships with her coworkers were unacceptable. If the
employer acted as result of the plaintiffs performance, that would be a legitimate non-retaliatory
reason for the adverse employment action.
Finally, the McDonnell Douglas framework shifts the burden back to the plaintiff to show
the employer's explanation for the adverse employment actions are merely pretextual. Pretext is
proven either directly by persuading the court that a discriminatory reason more likely motivated
the employer, or indirectly by showing that the employer's proffered explanation is unworthy of
credence. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir. 2011). It is more likely that the
Employer was motivated by discriminatory reasons given Kaiser's evaluation months prior and
her recent promotion. DCI's harsh approach to Kaiser's alleged relationship issues is also an
indication of pretext. Kaiser was expected to complete a nine-task WIP in 30 days, when a male
placed on a WIP was given 60 days for only three tasks. More significantly, the plaintiff is the
only agent ever transferred involuntarily. A reasonable finder of fact could find the employer
was motivated by Kaiser's confrontation with Erickson and the potential liability that came along
with Erickson's conduct. Therefore, the plaintiff has established there is a genuine issue of
material fact as to whether the employer retaliated against her in response to her opposing
Erickson's conduct.

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II. Hostile Work Environment in Violation of Title VII
Title VII also protects employees from being subjected to a hostile work environment as
a result of sexual harassment. Sexual harassment can be a form of sex discrimination prohibited
by 42 U.S.C. § 2000e-2(a)(l). To establish the elements of a claim for coworker sexual
harassment, a plaintiff must demonstrate: "( 1) she was a member of a protected group; (2)
unwelcome harassment occurred; (3) a causal nexus between the harassment and her
membership in the protected group; (4) that the harassment affected a term, condition, or
privilege of employment; and (5) that the employer knew or should have known of the
harassment and failed to take prompt and effected remedial action." Anda v. Wickes Furniture
Co, 517 F.3d 526, 531 (8th Cir. 2008). "Employer liability can be imposed when the harassment
is committed by coworkers or by third parties." Lapka v. Chertoff, 517 F.3d 974, 984 n. 2 (7th
Cir. 2008). It is necessary for employees to inform their employers of behavior they find
objectionable before they can seek to hold an employer responsible for failure to correct the
behavior in question. Whitmore v. O'Connor MGMT, Inc., 156 F.3d. 796 (8th Cir. 1998).
Kaiser agrees she confronted Erickson on October 18, 2011 and that he never harassed her after
that date. Kaiser also agrees that DCI supervisors were not aware of her complaints concerning
Erickson prior to October 20, 2011, when Black called Even. The Eighth Circuit has reiterated
that in order to establish employer liability for harassment by a coworker, a plaintiff must
establish that the employer "knew or should have known of the conduct and failed to take proper
remedial action." Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir. 1999). The
plaintiff is unable to provide evidence that DCI knew or should have known of Erickson's
specific comments and questions directed at Kaiser. Because the plaintiff is unable to provide

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such evidence, she is unable to establish a prima facie case for discrimination based on ~hostile
work environment as a result of sexual harassment.

III. Sex Discrimination in Violation of Title VII
Title VII prohibits discrimination with respect to an individual's compensation, terms,
conditions, or privileges of employment because of such individual's sex. 42 U.S.C. § 2000e2(a)(l). Kaiser argues that she was placed on a WIP, demoted, transferred, and constructively
discharged because of her sex. An employee's Title VII claim for sex discrimination can survive
summary judgment in one of two ways. To make a prima facie case under the McDonnell
Douglas framework, the plaintiff must show: "(1) she was a member of the protected group; (2)

she was qualified to perform the job; (3) she suffered an adverse employment action; and (4)
circumstances permit an inference of discrimination." Lewis v. Heartland Inns of Am., L.L.C.,
591 F.3d 1033, 1038 (8th Cir. 2010). Such a showing creates a presumption of unlawful
discrimination, requiring the defendant to produce a "legitimate nondiscriminatory reason for its
employment action." Id. The burden then returns to the plaintiff to prove the defendant's reason
for firing her is pretextual. Id.
Gortmaker does not dispute that the plaintiff is a member of a protected group, that she
was qualified to perform the job, and that she suffered an adverse employment action. The only
issue for the plaintiff to establish a prima facie case for sex discrimination is to show
circumstances that permit an inference of discrimination. "Because the required showing for a
prima facie case is a 'flexible evidentiary standard,' a plaintiff can establish an inference of

discrimination to satisfy the fourth element 'in a variety of ways, such as by showing morefavorable treatment of similarly-situated employees who are not in the protected class, by
showi11g biased comments by a decisionmaker.'" Grant v. City of Blytheville, Arkansas, 841

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F.3d 767, 774 (8th Cir. 2016) (quoting Pye v. Nu Aire, Inc., 641F.3d1011, 1019 (8th Cir. 2011).
Plaintiff argues that males are treated significantly more favorably, especially when it came to
work improvement plans. Although Even had concerns about Black's role in the dispute and his
work product, DCI declined to investigate him, place him on a work improvement plan, or
discipline him. Moreover, DCI treated Kaiser harsher than any other male employee that was
placed on a work improvement plan. Kasier was given three times the tasks and half the time to
complete them. DCI's investigation attempts to justify Kaiser's demotion and transfer because
she was unable to rebuild her relationships with her coworkers. Kaiser was the only DCI
employee who has ever been involuntarily transferred. Finally, DCI hired a man to replace
Kaiser. A reasonable fact finder could find an inference of discrimination by way of morefavorable treatment of similarly- situated employees who are not in the protected group.
Therefore, the plaintiff has established a prima facie case of sex discrimination.
DCI's stated reason for demoting and transferring Kaiser was that she failed to meet one
of the objectives of her WIP: rebuilding relationships. What if co-workers refuse to rebuild
relationships? DCI has attempted to allow other employees to determine Kaiser's fate. This is
not to be permitted. This could be called a "pass the buck" policy. DCI recognizes there is
ample testimony reflecting Kaiser's genuine attempts to improve the relationships with her
coworkers. Despite Kaiser's many attempts to fulfill the requirements of her WIP, she was
nonetheless demoted and transferred against her will. No other male agent has ever been
transferred against his will. A common method of proving pretext is "to show that it was not the
employer's policy or practice to respond to such problems in the way it responded in the
plaintiffs case." Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001). The
plaintiff has established that DCI's response was inconsistent with its policy and general

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practices. Therefore, the plaintiff has created a genuine issue of material fact as to whether
DCI's reasons for its adverse employment actions against Kaiser were mere pretext. The motion
for summary judgment on the plaintiffs sex discrimination claim is denied.

IV. Failure to Exhaust Administrative Remedies on State Claims
The South Dakota Human Relations Act of 1972 makes it an unfair or discriminatory
practice to engage in any reprisal, economic or otherwise, against a person by reason of his or
her protected activity. SDCL § 20-13-10. The South Dakota Human Relations Act of 1972 also
makes it an unfair or discriminatory practice to discharge an employee or refuse to hire an
applicant because of sex. SDCL § 20-13-10. The defendant asserts the plaintiff has failed to
exhaust her administrative remedies to bring reprisal and sex discrimination claims pursuant to
the South Dakota Human Relations Act. The plaintiff fails to address the issue in her brief in
opposition. "Exhaustion of remedies is broadly stated as the withholding of judicial relief on a
diam or dispute cognizable by an administrative body until the administrative process has run its
course." Tombollo v. Dunn, 342 N.W.2d 23, 25 (S.D. 1984) (quoting Gottschalk v. Hegg, 228
N.W.2d 640, 642 (S.D. 1975)). "SDCL Ch. 20-13 provides a comprehensive format for
investigating, delineating, and acting on sexual discrimination cases." Id. The plaintiff in not
permitted to simply assert a claim based on the South Dakota Human Relations Act in this
federal action without complying with and exhausting the administrative requirements and
remedies. It was necessary for the plaintiff to seek a determination from the South Dakota
Human Rights Commission and appeal its decision in order for the plaintiff to have exhausted

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her administrative remedies. See Tombollo, 342 N.W.2d at 25. Therefore, the defendant's
motion for summary judgment regarding the plaintiffs sex and reprisal discrimination claims
pursuant to the South Dakota Relations Act of 1972 should be granted.

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Finally, the plaintiff's arguments regarding punitive damages are now deemed as moot
because the plaintiff was seeking punitive damages in connection with her state claims. Because
the Court is dismissing her state claims, punitive damages are no longer an issue for
consideration. The plaintiff is barred from recovering punitive damages in this case.

ORDER
Now, therefore,
IT IS ORDERED:
1. The plaintiff's motion, Doc. 70, requesting oral argument pursuant to Local Rule
7.l(c), is denied.
2. The defendant's motion, Doc. 58, for summary judgment on the plaintiff's sex and
reprisal discrimination claims pursuant to Title VII of the Civil Rights Act of 1964, is
denied.
3. The defendant's motion, Doc. 58, for summary judgment on the plaintiff's sex and
reprisal discrimination claims in violation of the South Dakota Human Relations Act
of 1972, as well as the plaintiff's hostile work environment as a result of sexual
harassment in violation of Title VII of the Civil Rights Act of 1964, is granted.
DATED this 30th day of August, 2017.

BY THE COURT:

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