Mader v. Lowes Home Centers, LLC et al

Filing 38

MEMORANDUM OPINION AND ORDER granting in part and denying in part 17 Motion for Summary Judgment. Signed by U.S. District Judge Lawrence L. Piersol on 8/16/2019. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

VICKIE MADER,

18-4066

Plaintiff,
MEMORANDUM OPINION AND ORDER

vs.

GRANTING IN PART AND DENYING

LOWE'S HOME CENTERS,LLC,

AND PART MOTION FOR SUMMARY
JUDGMENT

and

RONALD HEIDZIG, Individually,
Defendants.

On June 14,2018,Plaintiff, Vickie Mader("Mader")filed a Complaint against Defendants
Lowes Home Centers, LLC, ("Lowe's") and Ronald Heidzig ("Heidzig"). Doc. 1. In her
Complaint, Mader alleges a claim for sexual harassment/hostile work environment in violation of

42 U.S.C. § 2000e-2(a)(l), intentional infliction of emotional distress, vicarious liability, punitive
damages, and breach of contract. Doc. 1.

On April 1, 2018, Lowe's filed a Motion for Summary Judgment on all of Mader's claims.

Doc. 17. On August 6, 2019, the Court issued an order setting oral argument on the pending
summary judgment motion for August 8, 2019. Doc. 35. The Court indicated in its order that it

wanted to hear argument on whether the alleged conduct was severe and pervasive as to affect a
term, condition, or privilege of Mader's employment and whether or not Lowe's took prompt
remedial action reasonably calculated to stop the harassment. Doc. 35. At oral argument, both
Mader and Lowe's were represented by counsel. Heidzig has not yet entered an appearance in this
matter.

For the following reasons, this Court grants in part and denies in part Lowe's' motion for
summaryjudgment.
BACKGROUND

In May 2017, Plaintiff, Vickie Mader("Mader"), was a part-time employee working at the

Sioux Falls Lowes's store and was an at-will employee. Doc. 19, ^ 1; Doc. 24,^ 1. On May 2,
2017, Mader reported to Lowe's Assistant Store Manager Oltman that the prior day, while she was
speaking with customers about a ceiling fan, Heidzig squeezed her left butt cheek as he was passing
by. Doc. 19, ]f 2; Doc. 24, ^ 2; Mader Dep. 67:15-68:9. No words were exchanged during this

alleged incident and Mader and Heidzig never spoke about the incident thereafter. Doc. 19, ^ 2;
Doc. 24,^2; Mader Dep. 69:11-21. Heidzig was a co-worker of Mader's and had never served in
a management or supervisory position for Lowe's. Doc. 29, ]f 2. Although Mader testified that

her male co-workers often "act[ed] like sophomores in sehool...[tjelling dirtyjokes,[]stufflike
that," this incident was unusual and nothing like it had happened to Mader during her prior thirteen
years of employment with Lowe's. Mader Dep: 32:12-23; Doe. 19,]f 2; Doc. 24,^ 2.
Lowe's has an Employee Handbook which contains the company's No Harassment Policy.
Doc. 21, Tf 9. The No Harassment Policy provides that:

The purpose ofthe No Harassment policy is to outline the Company's commitment
to building and preserving a community in which all of its members can work
together, free of discrimination and harassment of any kind.

All reports [of discrimination or harassment] will be investigated promptly and
thoroughly by [Lowe's]....

Doc. 21-1. The Employee Handbook has no required pre-termination proeedure for employees
and does not have exclusive list oftermination reasons. Doe. 2\,\9. In the Employee Handbook

is language providing that the Handbook is not to be considered a contract. Doc. 21,^9.
On May 2,2017,the day that Mader reported to Oltman that Heidzig grabbed her butt, they
reviewed video footage of the incident. Mader Dep. 73:18-76:9. While reviewing the video
footage, Mader saw Heidzig's hand out in a "claw-like" position, reaching toward her and Oltman
responded that"we got him" and "this is a slam dunk." Mader Dep. 75:1-24; 76:3-4. Eventually,
Mader was informed by Oltman that Lowe's had spoken to Heidzig, that he denied the incident,
and that Human Resources("HR")had viewed the video and had not come to the conclusion that
it clearly showed Heidzig grabbing Mader's butt. Mader Dep. 79:19-80:3.

After reporting the incident, Mader continued to work, was able to perform her job duties,

and was not required to work with or in the same department of Heidzig. Doc. 19,^ 4; Doe. 24,
4. Mader had a dedicated office with an office door that she could close. Mader Dep. 35:6-16.
Until Mader resigned on May 26,2017,she saw Heidzig approximately 20 times, but the two never
spoke to each other. Doc. 19, ^ 4; Doc. 24,f 4; Mader Dep. 41:1-25. Most of those occasions
involved Mader seeing Heidzig somewhere in the store, but on five of six of those occasions,

Mader opened her office door, which was located by an exit door, and found Heidzig standing
there, staring at her. Mader Dep. 48:24-49:25. On one occasion, Heidzig "barged" into Mader's
office, "hit the door, and it flew open and hit the wall." Mader Dep. 48:15-16. Mader's male coworker was in her office and he "jumped up and put his hand on [Heidzig's] chest and backed him
right out ofthe office, pulling the door shut behind him." Mader Dep. 48:16-19.

Mader testified that she felt intimidated by Heidzig's conduct. Mader Dep. 50:2-4.
Mader's eo-worker would sometimes open her office door to see if Heidzig was there before she
exited. Mader Dep. 50:11-14. Although Mader's counsel states in his statement of material facts

that Mader needed the assistance of other employees to walk her around the store because of her

concerns about Mr. Heidzig having contact with her. Doe. 24,14, the Court has not been able to
find evidence supporting this assertion in the record before it.

At some point during the month, Mader had also called the Lowe's compliance line because
she had not received any information about what, if anything, was being done to address her initial
complaint. Mader Dep. 89:19-90:6. Mader twice left her name and store number and asked that
someone return her call, but nobody called her back. Mader Dep. 89:19-90:6.
On or around May 19, 2017, approximately two and one-half weeks after the incident,
Mader still had not yet heard from Lowe's on how they would be addressing her initial complaint.
At that time, Mader approached HR to inquire about what action Lowe's would be taking in
response to the alleged incident. Mader Dep. 81:8-21; 84:9-24. Mader told HR that she wanted

to know what was going to be done because she "still had to deal with this guy." Mader Dep.
81:18-21. Mader testified that she felt intimidated and told HR that Heidzig had been standing
outside her office, staring at her when she exited on more than one occasion. Doc. 24,^ 4; Mader
Dep. 50:2-4; 83:15-24. The Court finds that there is no evidence in the record showing that Lowe's

was also made aware ofthe incident in which Heidzig barged into Mader's office. Mader testified

that HR told her that because her office was by an exit door, Heidzig may have been coming or
going, and offered to have someone escort Mader to her car. Mader Dep. 81:22-82:8; 83:15-17.
Mader responded that she was not concerned about walking to her car, but about having to be in
the store with Heidzig. Mader Dep. 82:5-10. HR stated that if he was being an issue, they could
change Mader's hours so she would not be in the store at the same time as him. Mader Dep.49:1922; 81:18-23. When Mader responded that she felt like it was not fair to change her hours and that

they should consider changing Heidzig's hours, HR responded that they would have to talk to the
manager of Heidzig's department about changing Heidzig's hours, and that Lowe's "may be able
to arrange that." Mader Dep. 81:18-82:4.

At that time, Mader was told that they were waiting for an update fi*om corporate in Omaha
as to how they were going to address the alleged butt-grabbing incident. Mader Dep. 82:16-19.

Additionally, management expressed that what happened to Mader was less important than some
ofthe personal issues the manager had been dealing with in her own life. Mader Dep. 82:16-19.
Sometime on or around May 23, 2017, Mader spoke with management and was informed

that Lowe's had concluded its investigation and that Heidzig had received a written reprimand.
Doc. 19, ^ 5; Doc. 24, ^ 5; Mader Dep. 85:11-86:3. Lowe's also required Heidzig to undergo

counseling on sexual harassment and notified him that any further conduct would result in
termination, although it appears from the record that Mader was not aware that these other

disciplinary measures had been taken. Doc. 19,]f 5; Doc. 24, 5; Mader Dep. 96:17-25. As part
of its investigation, in addition to speaking with Mader and reviewing the video footage, Lowe's

also reviewed Heidzig's performance. Doc. 19, ^ 3; Doc. 24, ^ 3. Prior to this May 1, 2017,
incident, Heidzig generally had a good performance history, had a good pre-employment
background, and no reports of inappropriate conduct by Heidzig had been made. Doc. 19, 3;
Doc. 24,If 3; Doc. 20, Tf 4(c).

After hearing that Heidzig had received a written reprimand, Mader asked her manager to
revisit their decision. Mader Dep. 86:2-22. On May 26, 2017, Mader was informed that Lowe's
would not be altering its remedial action plan. Mader. Dep. 88:17-21. That day, Mader tendered
her letter of resignation. Mader Dep. 89:8-11. Mader again expressed to concern about having to
continue working with Mader, and Lowe's did not again reiterate their week-old offer to look into

changing Heidzig's hours and said that the corporate office had made its decision and there was
nothing they could do. Mader Dep. 92:14-22.

Lowe's later fired Heidzig, and during that process asked Mader to return to work, but
Mader decided not to return. Doc. 19,]f 7; Doc. 24, 7.

On June 14, 2018, Mader filed a Complaint against Lowe's and Heidzig. Doc. 1. In her
Complaint, Mader alleges claims for hostile work environment in violation of42 U.S.C. § 2000e2(a)(1), intentional infliction of emotional distress, vicarious liability, punitive damages, and
breach of contract. Doc. 1.

On April 2, 2019, Lowe's filed a Motion for Summary Judgment, and in its Motion, asks
the Court to grant summaryjudgment in its favor and dismiss each of Mader's claims. The Motion

for Summary Judgment has been fully briefed by the parties and the Court heard oral argument on
the motion on August 8, 2019. For the following reasons, the Court grants summary judgment in
favor of Lowe's on Mader's claims alleging intentional infliction of emotion distress, vicarious
liability, and breach of contract and denies summary judgment on Mader's hostile work
environment claim.
STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate where "there is no dispute as to any material fact and the movant is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant 'bears the initial responsibility
ofinforming the .. . district court of the basis for its motion,' and must identify 'those portions of
[the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.'"
Torgerson v. City ofRochester, 643 F.3d 1031, 1042 (8th Cir. 2001)(en banc)(quoting Celotex
Corp V. Catrett, All U.S. 317, 323 (1986)). Once the motion for summary judgment is made and

supported, it places an affirmative burden on the non-moving party to go beyond the pleadings and
cite to particular parts of materials in the record, showing that there is a genuine issue for trial. See

Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992); Fed. R. Civ. P. 56(c).
The nonmovant must do more than "assert[] 'the mere existence of some alleged factual dispute
between the parties'; the [nonmovant] must assert that there is a 'genuine issue of material fact'"

Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011){c^otmg Anderson v. Liberty Lobby,
Inc., 477 U.S. 242(1986)(emphasis omitted)).
DISCUSSION

Lowe's has moved for summaryjudgment on Mader's claims alleging: sexual harassment

and hostile work environment in violation of 42 U.S.C. § 2000e-2(a)(l), intentional infliction of
emotional distress, vicarious liability, and breach of contract.
I.

Sexual Harassment/Hostile Work Environment Claim

Under Title VII of the Civil Rights Act of 1964, an "employer" is prohibited from

discriminating against "any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(l). "Sexual discrimination that creates a hostile or abusive work

environment is a violation of Title VII." Hall v. Gus Constr. Co., 842 F.2d 1010, 1013 (8th Cir.
1988). "A hostile work environment 'arises when sexual conduct has the purpose or effect of
unreasonably interfering with an individual's work performance or creating an intimidating,
hostile, or offensive working environment.'" Vajdl v. Mesabi Academy ofKidsPeace, Inc., 484

F.3d 546, 550(8th Cir. 2007)(quoting FZh//, 842 F.2d at 1013). To establish aprima facie hostile
work environment claim, a plaintiff must show: 1) that she belonged to a protected group; 2)that
she was subjected to unwelcome harassment; 3) that the harassment was based on sex; 4) that it
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 effective remedial action. Alagna v.
Smithville R-IISch. Dist., 324 F.3d 975,979(8th Cir. 2003).

The parties do not dispute that Mader is a member of protected group or that a juror could
reasonably infer that she was subject to unwelcome harassment. The parties disagree whether the
allegedly hostile acts directed at Mader were because of her gender and whether they were severe
and pervasive so as to alter the terms and conditions of her employment. Additionally, the parties
dispute whether Lowe's failed to take prompt and effective remedial action reasonably calculated
to stop the harassment.
A. On the Basis of Sex and Severe and Pervasive

In order to establish a prima facie hostile work environment claim, Plaintiff must establish
a reasonable juror could infer that the alleged harassment was based on sex and was so severe or

pervasive as to alter a term, condition, or privilege of employment. Id. In determining whether
conduct is sufficiently severe or pervasive, a court must look to the totality of the circumstances.
Duncan v. Gen. Motors Corp., 300 F.3d 928, 934(8th Cir. 2002). "The whole pattem of conduct

must be examined, for its severity and pervasiveness cannot be fully understood by "carving it
'into a series of discrete incidents.'" Sheriffv. Midwest Health Partners, P.C., 619 F.3d 923, 930

(8th Cir. 2010) (quoting Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1999) (citation
omitted)).
i.

Isolated incidence?

Lowe's contends that the incidents alleged by Mader in her Complaint cannot, as a matter

of law, constitute harassment so severe and pervasive as to alter a term, condition, or privilege of
Mader's employment. Lowe's characterizes the conduct alleged by Mader in her Complaint as an
isolated incidence (a butt grab) and argues that no reasonable juror could infer that the other
incidents (standing and staring outside her office), constituted harassment on the basis of Mader's
sex.

It is true, that, as argued by Defendant, an isolated incidence of a butt grab, without more,

would not be so severe as to alter the terms and conditions of Plaintiffs emplo5ment. However,
the conduct that Mader experienced did not stop here. Mader also alleges that over the next few
weeks, on approximately five to six different occasions, she opened her office door to find Heidzig
standing approximately five feet away by the exit door, staring at her. In addition, Mader testified
to one instance in which Heidzig "barged" into her office, "hit the door, and it flew open and hit
the wall" and the male employee in her office "jumped up and put his hand on [Heidzig's] chest
and backed him right back out of the offiee, pulling the door shut behind him."
Whether harassing eonduet is based on sex is determined by inquiring "whether 'members
of one sex are exposed to disadvantageous terms or conditions of employment to which members
of the other sex are not exposed.'" Quickv. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996)
(quoting Tfarm v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)(Ginsburg, J., concurring)). While

Heidzig's conduct toward Mader subsequent to the butt-grabbing incident is not explieitly sexual
in nature, it is well-settled that "[n]ot every aspect ofa work environment charaeterized by hostility
7

and intimidation need be explicitly sexual in nature to be probative." Hathaway, 132 F.3d at 1222.
"All instances of harassment need not be stamped with signs ofovert discrimination to be relevant

under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory
animus." Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999).
The Court must assume for purposes of this motion that Heidzig grabbed Mader's butt on
May 1, 2017; that Mader found Heidzig standing and staring at her on five to six occasions when

she exited her office; and that Mader burst into her office and was forcibly removed by a male coworker. The sexual nature of the butt-grah justifies an inference that it was sexually
discriminatory. See Sheriff, 619 F.3d at 930. Moreover, there is no evidence in the record before

the Court that Heidzig grabbed the butts of other male employees. While the conduct subsequent
to the butt grab was not overtly sexual in nature, it appears from the record that such conduct did
not begin until after the butt-grabhing incident. Accordingly, the Court concludes that a reasonable

juror could determine that there was a connection between the butt grab and the other offending
behavior that was not overtly sexual. See Hathaway, 132 F.3d at 1222; Sutherland v. Mo. Dept.
of Corrections, 580 F.3d 748, 751 (8th Cir. 2009)(stating that'm Hathaway, the jury determined
there was a connection between the two physical advances and the other non-overtly sexual
offending behavior)).

The question then, is whether a reasonable juror could find that the alleged harassment is
so severe and pervasive as to alter the conditions of Mader's employment.
a.

Severe and Pervasive?

The Supreme Court has identified certain factors to consider in determining whether the
complained-of conduct is sufficiently severe or pervasive as to affect an employee's terms and

conditions of employment.

Specifically, a court should consider "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," as well as physical proximity to the harasser, and the presence or absence of other
people. Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737(8th Cir. 2000)(citing F/am'j, 510
U.S. at 23); Carter, 173 F.3d at 702.

"To support a cause of action, conduct must be extreme and not merely rude or unpleasant
to affect the terms and eonditions of employment." Meriwether v. Caraustar Packaging Co., 326
F.3d 990, 993 (8th Cir. 2003)(internal quotation and citation omitted). "Harassment need not be
so extreme that it produces tangible effeets on joh performance or psychological well-heing to be
actionable," although sueh evidence is prohative of the severity and pervasiveness of the
requirement. Carter, 173 F.3d at 702(citing//arm, 510 U.S. at 22); see also Kopp v. Samaritan

Health Sys., Inc., 13 F.3d 264,269(8th Cir. 1993)("Psychological harm to the plaintiffis relevant,
as one factor among many, but Title VII does not require concrete psychological harm.").
However, a plaintiff must show that the harassment was "so intimidating, offensive, or hostile that

it poisoned the work environment." Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003).
"'[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment." Faragher v. City
ofBoca Raton, 524 U.S. 775, 778 (1998)(internal citation and quotation omitted). Similarly, for
sexual harassment to be suffieiently severe or pervasive to create a hostile working environment

"[mjore than a few isolated incidents are required." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d
568, 573 (8th Cir. 1997){ciiingMeritor Sav. Bank v. Vinson, All U.S. 57,67(1986)).

Further, the conduct allegedly creating a hostile work environment must he hoth
objectively and subjeetively offensive. See Harris, 510 U.S. at 21-22. Thus, Mader must present

evidence that she subjectively perceived the harassment as sufficiently severe and pervasive to
alter the terms or eonditions ofher employment, and this subjective pereeption must be objectively
reasonable. Id. ("Conduct that is not severe or pervasive enough to create an objectively hostile
or abusive environment—an environment that a reasonable person would find hostile or abusive—
is beyond Title VIFs purview.").

Here, Mader has shown that she subjectively perceived Heidzig's alleged harassment as
sufficiently severe and pervasive so as to alter the terms and conditions ofher employment because
Heidzig's actions and Lowe's remedial actions allegedly prompted her to resign from employment
with Lowe's. Additionally, Mader testified in her deposition that she was offended and intimidated
by Heidzig's conduct.

The Court acknowledges that there is a high standard in this Cireuit for what constitutes
harassment sufficient to ereate an objectively hostile work environment. See, e.g., Tuggle, 348

Accordingly, viewing the totality of the alleged harassment in the light most favorable to

Mader, the non-moving party, the Court coneludes there is a jury question as to whether Heidzig's
conduct was sufficiently severe and pervasive to alter the terms and eonditions of Mader's
employment.

Hi.

Remedial Action Taken by the Employer

"Once an employee complains to her employer about sexual harassment by a coworker,

the employer is on notiee and must take proper remedial action to avoid liability under Title VII."
Hathaway, 132 F.3d at 1223 (8th Cir. 1997). "In addition to eondueting an investigation, the
employer must take 'prompt remedial action reasonably calculated to end the harassment.'" Id. at
1224(quoting £)avi5 v. Tri-State MackDistrib., Inc., 981 F.2d 340, 343 (8th Cir. 1992)).
If a plaintiff makes a submissible case that management knew or should have known ofthe
harassment and failed to put a stop to it promptly, the promptness and adequacy of an employer's
response will often be a question offaet for the fact-finder to resolve. See Howard v. Burns Bros.,
Inc., 149 F.3d 835, 841 (8th Cir. 1998)(citing Smith v. St. Louis Univ., 109 F.3d 1261, 1265 (8th
Cir. 1997)). An employer is not necessarily obligated to terminate an employee who engaged in
sexual harassment. See Bailey v. Runyon, 167 F.3d 466, 468 (8th Cir. 1999). Rather, what an
employer must do is take prompt remedial action reasonably calculated to stop the harassment.
Carter, 173 F.3d at 702 (citations omitted). Factors to assess the reasonableness of remedial
measures may include:(1)the amount oftime that elapsed between the notiee and remedial action;

(2) the options available to the employer, possibly including employee training sessions,
transferring the harassers, written warnings, reprimands in personal files, or termination; and (3)
whether or not the measure ended the harassment. Id. (eitations omitted).
Once Lowe's was informed of the butt-grabbing incident, it began conducting an

investigation which involved speaking to both Mader and Fleidzig, reviewing the video footage,
as well as Heidzig's performance history. There is no dispute that after this initial ineident, Mader
not subjected to further sexual touching or other overtly sexual behavior by Heidzig. However, as
the Court stated previously, the diseriminatory eonduct by Heidzig eontinued, and although it was
less overtly sexual in nature, in the Court's view, Heidzig's eonduct had become more threatening.

A reasonable inference eould be made that over the next eouple of weeks, Heidzig was going out

of his way to hang outside Mader's office and stare at her when she exited and, as the Court has
11

already discussed at length, the threatening nature of Hedizig's continued to escalate when he
harged into Mader's office and had to be forcibly removed.

It was not until approximately two and one-half weeks after the initial butt-grahbing
incident that Mader made management aware that Heidzig was continuing to harass her. Mader

had not yet heard from management about what they were doing to address her initial complaint
and Mader made clear to management that she was "still having to deal with this guy," that she
would find him standing outside her office staring at her, that she did not know why he was doing
this, and that she was intimidated. Given Mader's initial complaint that Heidzig had grabbed her

butt and the video footage of the incident, the Court concludes that Lowe's was obligated to at
least investigate Mader's complaints offurther harassing conduct by Heidzig. Hathaway, 132 F.3d
at 1224 ("In addition to conducting an investigation, the employer must take prompt remedial
action reasonably calculated to end the harassment.) Lowe's made no such efforts. In fact,
management dismissed Mader's concerns, stating that Heidzig may have been coming or going
and that what happened to Mader was less important than some ofthe personal issues the manager
had been dealing with in her own life. Although management did not feel it was necessary to
investigate Mader's complaints further, management did feel that it was appropriate to offer to
have someone walk Mader to her vehicle.

Shortly thereafter, on or around May 22, 2017, the corporate office completed its
investigation into the butt-grabbing incident. Lowe's issued Heidzig a written reprimand, required
him to undergo sexual harassment training, and told him that further such conduct would result in

his termination. Had the one-time butt grab been the only conduct that Mader complained of, the
Court concludes that this the action taken by Lowe's would have been prompt and reasonably
calculated to stop the harassment.
However,that is not the only conduct that Mader had complained of. The Court concludes

that a reasonable juror may conclude that Lowe's proposed remedial action was not reasonably
calculated to end the harassment complained of given it did not address the more threatening
conduct that Mader complained of at least several days prior. A reasonable inference can be made
from the facts in the record that Lowe's had no intention ofinvestigating these additional instances
of harassment or would consider these new.complaints by Mader in reconsidering its remedial
action plan. Although Lowe's had informed Mader that they may be willing to rearrange Heidzig's
12

F.3d at 721-22. However, "[e]ach ease must stand on its own circumstances." Eich v. Bd. of
Regentsfor Cent. Mo. States Univ., 350 F.3d 752, 760(8th Cir. 2003). Compared to many of the
other Eighth Circuit cases examining the severity and pervasiveness of a defendant's conduct, the

conduct that forms the basis of Mader's complaint took place over a relatively short period oftime,

less than one month', although the alleged acts occurred approximately seven times during that
short time.^ Additionally, although Mader was not required to work in close proximity to Heidzig
and was able to largely perform herjob duties, as stated above,"harassment need not be so extreme

that it produces tangible effects on job performance." Tuggle,348 F.3d at 720. And,as the record
shows, Heidzig was able to continue his discriminatory conduct despite the fact that the parties
were not required to work in close proximity to each other. The Court finds that in the aggregate,

Heidzig's conduct that was not simply"boorish, chauvinistic,[or][]immature,"Duncan, 300 F.3d
at 935 (8th Cir. 2002), nor was it a "merely rude or unpleasant," Cross v. Prairie Meadows
Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir. 2010). Rather, the Court finds that a

reasonable person in Mader's position would find Heidzig's discriminatory conduct to be
physically threatening and intimidating conduct taken toward Mader on the basis of her sex. The
conduct allegedly began with the humiliating act of grabbing of Mader's butt in fiont ofcustomers

and a reasonable inference can be made that Heidzig went out of his way to continue engaging in
intimidating and harassing behavior by standing outside Mader's office and staring at her when
she exited. Mader put up with the dirty jokes and sophomoric behavior exhibited by many of her
male co-workers in the past. However,the incident where Heidzig barged into Mader's office not

only appeared threatening to Mader,but also to her male co-worker whose response was to forcibly
remove Heidzig from the office. Heidzig's conduct is was a good deal more than boorish or
sophomoric.

^ Sheriff, 519 F.3d at 930 (concluding that repeated unwelcome and offensive physical contact for approximately
two years despite complaints to management was severe and pervasive); Cross v. Prairie Meadows Racetrack &
Casino, inc., 615 F.3d 977, 981(8th Cir. 2010)(four incidents over two years did not rise to the level of harassment);
Eich, 350 F.3d at 760 (sexual touching and innuendos continuing over a 7 year period was sufficiently severe or
pervasive); Carter, 173 F.3d at 702(finding evidence that plaintiff experienced a "host of indignities" over the course
of some two years); Howard v. Burns Bros., 149 F.3d 835,843(8th Cir. 1998)(defendant's pattern of sexual innuendo
and other inappropriate conduct was chronic and continued over years).

^ After the initial butt-grabbing incident, Mader testified that she saw Heidzig standing outside her office five to six
times and that he forcefuily barged into her office on a separate occasion.
10

hours, a reasonable juror find that its offer rang hollow. After Mader tended her resignation and
reiterated that she was concerned about having to continue working with Heidzig, Lowe's never
mentioned that it would continue to explore its week-old offer to rearrange Heidzig's hours.
Instead, management in the Sioux Falls office made it clear that corporate had made its decision
and there was nothing further they could do.
In viewing the facts most favorably to Mader and making all reasonable inferences in her

favor, this Court cannot conclude as a matter of law that Lowe's took prompt and effective
remedial action reasonably calculated to stop the harassment that Mader complained of. Lowe's
motion for summary judgment on Mader's claim for hostile work environment is denied.
I.

Breach of Contract Claim

Under South Dakota law, the elements of a breach of contract action are: 1) an enforceable
promise, 2) a breach of the promise, and 3) resulting damages. Guthmiller v. Deloitte & Touche,

LLP,699 N.W.2d 493,498 (S.D. 2005).^
Mader alleges that Lowes's Employee Handbook which contained Lowes's No
Harassment Policy constituted a contract of emplojmient between Mader and Lowes. The No
Harassment Policy provides that "[a]ll reports [of discrimination or harassment] will be
investigated promptly and thoroughly by [Lowe's]." Doc. 21-1. Mader contends that Lowe's
breached its employment contract by failing to "promptly" handle and investigate all of Mader's
allegations of sexual harassment in accordance with the provisions of the No Harassment Policy.
Compl.

102-04. Mader alleges that as a result ofsuch breach,she was constructively discharged

from her employment with Lowe's, resulting in lost earnings to Mader. Compl. ^T[ 102-04.
This Court addressed a similar argument in Jaros v. Lodgnet Entertainment Corp., No. 004007, Docket 38(D.S.D. Apr. 26,2001)(J. Piersol). There, the plaintiff argued, as Mader does in
this case, that the employer violated its sexual harassment policy by failing to "promptly"
investigate the plaintiffs complaints of sexual harassment. Id. at 7. The Court noted that the

^ A federal court exercising supplemental jurisdiction over claims arising under state law applies the substantive
law governing the claims, which in this case, is South Dakota law. See Rau v. Roberts, 640 F.3d 324, 327-28 (8th
Cir. 2011)(citation omitted).
13

South Dakota Supreme Court had not specifically resolved whether, and in what circumstances,
complaint procedures in an employee handbook become contractually binding. Id.
In determining how the South Dakota Supreme Court would resolve the issue, the Court

found instructive cases examining whether an employee manual may explicitly or implicitly
contractually alter an employee's at-will status. In these cases, the South Dakota Supreme Court
stated that the language of the employee manual must clearly indicate intent to create a binding
contract—either by expressly limiting discharge to cause, or by implication, by creating a detailed
list of exclusive grounds for discharge and "a mandatory and specific procedure which the
employer agrees to follow prior to any employee's termination." Petersen v. Sioux Valley Hasp.
Ass'n,486N.W.2d 516,520(S.D. 1992)(quoting Butterfield v. Citibank ofS.D.,437N.W.2d 857,
859(S.D. 1989)).

Applying the logic of the South Dakota cases to Jaros case, this Court concluded that the

employee handbook, which contained LodgeNet's sexual harassment policy, did not evince a elear
intent to create new contractual rights, but rather contained general statements of adherence to the

anti-discrimination laws. Id.-, see also Petersen, 486 N.W.2d at 520. To the contrary, the Court
noted that the employee handbook expressly stated that it did not create any contractual rights. Id.
The Court held that under those circumstances, LodgeNet's sexual harassment policy did not
constitute an "enforceable promise" and accordingly granted LodgeNet's motion for summary
judgment on this claim. Id.-, see also Houck v. ESA,Inc., No. Civ. 12-4197, 2014 WL 2615773, at

*12 (D.S.D. 2014) (citing Johnson v. Gateway, Inc., No. 04-4186, 2007 WL 1231657, at *15
(D.S.D. Apr. 24, 2007)("The fact that a company puts a harassment policy in place does not act

as a waiver or relinquishment of its status as an at-will employer.")); Poulos v. Summit Hotel
Properties, LLC, No. 09-4062, 2010 WL 3604127, at *7 (D.S.D. Sept. 10, 2010) (J. Lange)
(holding that the whistleblower provision did not alter the employee's at-will employment status
because the employee handbook containing the whistleblower provision was explicit in preserving
the at-will relationship).

In the present,case, the Court concludes that there is nothing in Lowes's Employment
Handbook or No Harassment Policy evincing an intent to create any contractual rights. While the

14

Handbook clearly demonstrates intent by Lowe's to adhere to anti-discrimination laws,'* the

Handbook specifically states that it is not to be considered a contract. Accordingly, Lowes's
Motion for Summary Judgment on Mader's breach of contract claim is granted.
II.

Intentional Infliction of Emotional Distress

In order to establish a claim of intentional infliction of emotional distress ("IIED") under

South Dakota law, a plaintiff must show:(1) extreme and outrageous conduct by the defendant;
(2) intent on the part of the defendant to cause plaintiff severe emotional distress; (3) that the
defendant's conduct was the cause in-fact of plaintiffs injuries; and (4)that the plaintiff suffered
an extreme disabling emotional response to defendant's conduct. Petersen v. Sioux Valley Hasp.
Ass'n, 486 N.W.2d 516, 518 (S.D. 1992), rehg granted, 491 N.W.2d 467 (S.D. 1992). Under

South Dakota law,"the tort ofintentional infliction of emotional distress imposes liability on the
defendant for intentional and reckless conduct resulting in emotional distress." Petersen v. Sioux

Valley Hosp. Ass'n, 491 N.W.2d 467,468(S.D. 1992). A defendant may be liable for IIED under
a recklessness theory where his or her conduct constitutes a deliberate disregard of a high
probability that the emotional distress will follow." Id.

"The conduct necessary to form [IIED] must be so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency, and be regarded as atrocious and utterly
intolerable in a civilized community." Harris v. Jefferson Partners, L.P., 653 N.W.2d 496, 500
(S.D. 2002). The question of whether the defendant's conduct was extreme and outrageous is
initially for the trial court. Id. "When reasonable minds differ, it is for the jury to determine

whether the conduct has been sufficient extreme and outrageous to result in liability." Kjerstad v.
Ravellette Publ'ns, Inc., 517 N.W.2d 419,429(S.D. 1994).
The Court does not find that Mader has presented sufficient evidence to allow a reasonable

trier of fact to conclude that she suffered severe emotional distress resulting from the defendant's
conduct. "Although physical symptoms are not required to prove severe emotional distress in
South Dakota, the plaintiff must provide some type of evidence adequate to prove that severe
emotional distress does, in fact, exist." See Christians v. Christians, 62>1 N.W.2d 377, 389(S.D.
"Lowes's No Harassment Policy states that "[t]he purpose of the No Harassment policy is to
outline the Company's commitment to building and preserving a community in which all of its
members can work together, free of discrimination and harassment of any kind."
15

2001)(J. Amundson, concurring in part and dissenting in part)(citing Stene v. State Farm Mut.
Auto. Ins. Co., 583 N.W.2d 399, 404 (S.D. 1998)(indicating that a "manifestation of physical
syniptoms" is required for negligent infliction of emotional distress, but not for intentional

infliction of emotional distress)); see also, e.g., U.S. ex rel. Kappenman v. Compassionate Care
Hospice ofthe Midwest, LLC,No.09-4039 ,2012 WL 602315, at *11 (D.S.D. Feb. 23,2012)(J.
Schreier)(quoting Christians, 647 N.W.2d at 389); McLeod USA Publishing. Co., No. 03-4087,
2006 WL 978705 at *11 (D.S.D. Apr. 12, 2006)(J. Schrier)(finding sufficient evidence ofsevere

emotional distress from the plaintiffs testimony that she was prescribed anti-depressants as a result
of the stress she experienced from defendant's conduct and from her supervisor's testimony that
plaintiff discussed killing herself after he fired her); Wangen v. Knudson, 428 N.W.2d 242, 248-

49 (S.D. 1988) (finding sufficient evidence of severe emotional distress when two treating
psychiatrists testified that plaintiffs depression has worsened after the incident and that he missed

five weeks of work); Bass v. Happy Rest, Inc., 507 N.W.2d 317, 323 n22 (S.D. 1993)(restating
the trial court's finding that there was sufficient evidence in the doctor's report for a jury to find
that she suffered depression and other symptomatic emotional distress).
In the present case, Mader testified in her deposition that she suffered from anger,
sleeplessness, and nightmares. Mader Dep. 66:21-67:3. There is no evidence that Mader

experienced any physical symptoms, missed work, or that she sought medical attention to help
treat any alleged emotional distress. See Rodriguez v. Siouxland Urology Ass.,P.C., No.09-4051,
2013 WL 684243, at *1 (D.S.D. Feb. 22,2013)(J. Schrier). Overall, the Court finds that Mader's

conditions are "no more than ordinary" and do not rise to the level necessary to sustain a claim of
IIED. See Anderson v. First Century Fed. Credit Union, 738 N.W.2d 40, 51 (S.D. 2007)(stating
that plaintiffs testimony regarding difficulty sleeping, irritability, and general feeling that he was
not well were "no more than ordinary" and did not rise to the level necessary to sustain a claim of
IIED). Moreover, Mader provided no evidence that Heidzig's conduct was the cause-in-fact of
her alleged symptoms.
Because Mader has failed to provide evidence sufficient to establish a claim for IIED, the

Court will grant summary judgment in favor of Lowe's on this claim. However, because Heidzig
has not yet entered an appearance in this matter, the Court will not dismiss Mader's IIED claim as
alleged against Heidzig in his individual capacity.

16

III.

Vicarious Liability

Mader alleges that Lowe's is liable for the acts committed by Heidzig constituting sexual
harassment and intentional infliction of emotional distress under the law of vicarious liability.
Compl. 100.

"Vicarious liability, also known as the doctrine of respondeat superior, provides that a
principal or employer may be held responsible for 'the employee's or agent's wrongful acts
committed within the scope ofthe employment or agency.'" State v. Bosworth, 899 N.W.2d 691,
701 (S.D. 2017)(quoting

v. Catholic Diocese ofSioux Falls, 821 N.W.2d 232, 237 (S.D.

2012)).

The Court has already established that, in viewing the facts in the liglit most favorable to

Mader,no reasonable juror could find that Lowe's failed to take prompt remedial action reasonably
calculated to stop the harassment, nor that Heidzig's conduct constituted intentional infliction of
emotional distress. Because the Court grants summary judgment and dismisses Mader's hostile
work environment and intentional infliction of emotion distress claims, Lowe's may not he held

vicariously liable for such conduct.

See Total Auctions & Real Estate, LLC v. S.D. Dept. of

Revenue & Regulation, 888 N.W.2d 577, 582 (S.D. 2016)(stating that respondeat superior is a
means of imposing vicarious liability on an employer for an employee's torts committed within
the scope of employment; it is not an independent tort claim against employer).
Even if Heidzig's conduct created a hostile work environment, Lowe's cannot he
vicariously liable for Heidzig's alleged sexual harassment because Heidzig is a co-worker and not

a supervisor of Mader. See Engel v. Rapid Cty. Sch. Dist., 506 F.3d 1118, 1123 (8th Cir. 2007);
see also Vance v. Ball State Univ., 570 U.S. 421, 427-28 (2013)(stating that while an employer
may be directly liable for a non-supervisory employee's unlawful harassment ifthe employer knew
or should have known about the conduct and failed to take remedial action, an employer may he
vicariously liable for the creation of a hostile work environment only by supervisory employees).
Because Heidzig was not a supervisor, and not empowered by Lowe's "to take tangible

employment actions against [Mader], i.e., to effect a 'significant change in employmept status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits,"' Lowes may not be vicariously liable for
Heidzig's alleged conduct. See Vance, 570 U.S. at 431.
17

Additionally, the Court concludes that even if Mader has met all ofthe elements ofa claim

for intentional infliction of emotional distress, under South Dakota law, Heidzig's alleged conduct

falls outside the scope ofhis employment. Accordingly, Lowe's may not be held vicariously liable
for such a claim under South Dakota law.

In determining whether an intentional tort such is at issue in this case is within the scope
of employment, the South Dakota Supreme Court uses a two-prong test: whether the purpose of
the act was to serve the principal and whether the act was foreseeable. Bernie, 821 N.W.2d at 237.

Under the first prong, a "principal may be liable for an agent's acts where the agent's 'purpose,
however misguided,is wholly or in part to further the [principal's] business[.]'" Id.(quoting
V. Wentzlajf, 816 N.W.2d 96, 102-03 (S.D. 2012). "An act furthers the principal's business if it
carries out the objectives of employment." Id.

"[Wjithin the scope of employment" has been called vague but flexible, referring
to "those acts which are so closely connected with what the servant is employed to
do, and so fairly and reasonably incidental to it, that they may be regarded as
methods, even though quite improper ones, of carrying out the objectives of the
emplojmient."

Id. (quoting Kirlin, 758 N.W.2d at 444)(citation omitted)). "But if[the agent] acts from purely
personal motives ... he is considered in the ordinary case to have departed from his employment
and the [principal] is not liable." Id. {quoting Hass, 816 N.W.2d at 103).

Therefore, it must first be determined whether the act was wholly motivated by the
agent's personal interests. If the agent acted with intent to serve solely his own
interest, the act is not within the scope ofemployment and the principal is not liable.
Liability does, however, attach if"the act had a dual purpose that is, to serve the
[principal] and to further personal interests."

Bernie, 821 N.W.2d at 238 (quoting Hass, 816 N.W.2d at 103).
There is no evidence that the alleged harassment by Heidzig was "closely connected" with
what Heidzig was employed to do and "so fairly and reasonably incidental to it, that [it] may be
regarded as methods, even though quite improper ones, of carrying out the objectives of
employment." See Bernie, 821 N.W.2d at 237; see also Vance, 570 U.S. at 428 (stating that
"sexual harassment [is] unlikely to fall within the scope of a servant's duties"); Burlington Indus.,
Inc. V. Ellerth, 524 U.S.633, 755-57(1998)(noting that the "general rule is that sexual harassment

by a supervisor is not conduct within the scope of employment");Jaros, No. 00-4007, at *6(citing

18

Ellerth, 524 U.S. at 755-57); Harvey v. Regional Health Network, Inc., 906 N.W.2d 382, 393-94

(S.D. 2018)(concluding that even though employer's policies required employees to report abuse

of nursing home residents, employee's false reports of abuse fell outside scope of employment).
ButseeHansen v. McLeod USA Pub. Co., No. 03-4087, 2006 WL 978705, at *9-=^10(D.S.D. Apr.
12, 2006) (J. Schrier) (finding harassment within scope of employment because it took place
during working hours and was foreseeable because employee handbook addressed harassment)^.
In addition, there is no evidence in the record to suggest that Heidzig's actions were
reasonably foreseeable. See Buus v. Stelzer, No. 12-4173, 2015 WL 1464710 at *2-*3 (D.S.D.
Mar. 30, 2015) (J. Piersol) (finding that a traffic accident was a reasonably foreseeable
consequence when employer permitted employees to use its vehicles to get food after the last ration

was provided at 4;00pm). Prior to Mader's complaint, there was no knowledge of Heidzig's

alleged propensity to engage in inappropriate behavior. Heidzig had a good pre-employment
background, and there had been no prior history or allegations raised against him for inappropriate
conduct.

For the foregoing reasons, Lowe's cannot be held vicariously liable for Heidzig's actions.
Accordingly, IT IS ORDERED:

1) Lowes's Motion for Summary Judgment, Doc. 17, is granted in part and denied in part;
Mader's claims against Lowe's for intentional infliction of emotional distress.

^

Mader argues in her brief that even if Heidzig was acting outside his scope of empioyment, Lowe's may be

vicariously liable for his conduct because Heidzig, as agent of Lowe's "was aided in accomplishing the tort by the
existence ofthe agency relation." Mader Br. at 16(citing Restatement(Second) of Agency § 219(2)(d)). The Supreme
Court applied that concept to the Title VII context in Ellerth and Faragher and "identified two situations in which the
aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these
situations involve harassment by a "supervisor" as opposed to a co-worker." Vance, 570 U.S. at 428-29. First, the
Court held that an employer is vicariously liable when a supervisor takes a tangible employment action.^ Id. at 429
(citing Ellerth, 524 U.S. at 762; Faragher, 524 U.S. at 790) The reasoning for this is that when a supervisor makes a
tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation.
Id. Second, Ellerth and Faragherheld that, even when the supervisor's harassment does not culminate in a tangible
employment action, the employer can be vicariously liable for the supervisor's creation of a hostile work
environment if the employer is unable to show that it exercised reasonable care to prevent and promptly correct
any harassing behavior and that the plaintiff unreasonably failed to take advantage of any preventive or corrective
opportunities that were provided. Id. The Court noted that "a supervisor's power and authority invests his or her
harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the
agency relation." Id. (citing Ellerth, 524 U.S. at 763; Faragher 52^ U.S. at 803-05).
Here, it is undisputed that Heidzig was never in management at Lowe's, nor was he ever a supervisor of
Mader's, or vested with the power to take tangible employment actions against her. Accordingly, Lowe's may not
be vicariously liable for any of Heidzig's alleged conduct.
19

vicarious liability, and breach of contract are dismissed with prejudice and her hostile
work environment claim remains for trial; and

2) Mader's claim against Heidzig in his individual capacity for intentional infliction of
emotional distress also remains in this case.

Dated this

y/O"

day of August, 2019.
BY THE COURT:

\(UUjUJUju
^wrence L. Piersol
ATTEST:

United States District Judge

MA%I;HEW,W- THT&fcg^ CLERK

20