Riggs et al v. Bennett County Hospital & Nursing Home

Filing 33

ORDER granting in part and denying in part 20 Motion for Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 3/31/19. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JOYCE RIGGS and ALFRED RIGGS,
Plaintiffs,

CIV. 16-5077-JLV
ORDER

vs.
BENNETT COUNTY HOSPITAL AND
NURSING HOME,
Defendant.
INTRODUCTION

Plaintiffs Joyce Riggs and Alfred Riggs filed a multi-count complaint
against the defendant, Bennett County Hospital and Nursing Home, their
former employer. (Docket 1). They allege unlawful discrimination in violation
of the Americans with Disabilities Act, 42 U.S.C. § 12201 (“ADA”), the South
Dakota anti-discrimination act, S.D.C.L. Chap. 20-13, and South Dakota
common law. Id. at pp. 1-2. Defendant denies plaintiffs’ claims. (Docket 6).
Defendant filed a motion for summary judgment, a statement of
undisputed material facts with supporting exhibits and a supporting brief.
(Dockets 20-22 & 23-1 through 23-37). Plaintiffs filed a brief in resistance to
defendant’s motion, together with a response to defendant’s statement of
undisputed facts and plaintiffs’ statement of undisputed material facts with a
supporting exhibit. (Dockets 27-28 & 29-1). Defendant filed a reply brief in

support of its motion, together with defendant’s response to plaintiffs’
statement of undisputed material facts with a supporting exhibit. (Dockets
30-31 & 32-1). For the reasons stated below, defendant’s motion for summary
judgment is granted in part and denied in part.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if
the movant can “show that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Once the moving party meets its burden, the nonmoving party may not
rest on the allegations or denials in the pleadings, but rather must produce
affirmative evidence setting forth specific facts showing that a genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Only disputes over facts that might affect the outcome of the case
under the governing substantive law will properly preclude summary judgment.
Id. at p. 248. “[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party,
then summary judgment is not appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving party failed to “make a
2

sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In such a case, “there can be ‘no genuine issue as to any material
fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at
p. 323.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). The key inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
pp. 251-52.
UNDISPUTED MATERIAL FACTS
The following recitation consists of the material facts developed from the
complaint (Docket 1 at pp. 2-13), defendant’s answer (Docket 6), the parties’
statements of undisputed material facts (Dockets 22 & 28 at pp. 12-14), the
parties’ responses to the opposing party’s statements of undisputed material
facts (Dockets 28 & 31) and other evidence where indicated. 1 Where a
statement of fact is admitted by the opposing party, the court will only
The court quotes from the parties’ submissions without quotation
marks, unless indicated.
1

3

reference the initiating document. These facts are “viewed in the light most
favorable to the [party] opposing the motion.” Matsushita Elec. Indus. Co.,
475 U.S. at 587. The facts material to defendant’s motion for summary
judgment are as follows.
Joyce Riggs began working at the Bennett County Hospital and Nursing
Home (“Bennett County”) in 2006. (Docket 22 ¶ 1). Joyce’s husband, Alfred
Riggs, was also employed by Bennett County as the ambulance director. Id.
¶ 2. Joyce worked as a dietary aide, purchasing-central supply-accounts
payable clerk, medication aide-certified nursing assistant, and an emergency
medical technician (“EMT”) during her tenure at Bennett County. Id. ¶ 3.
During her employment, Joyce received reprimands for poor work performance,
including: acting outside her scope of practice, unacceptable conduct,
inappropriate communication with others, engaging in inappropriate behavior
with a male nurse, and criticizing other staff members. Id. ¶ 4. During the
time period immediately preceding Joyce’s termination, she worked in central
supply, Monday through Friday, and served as an on-call EMT for the Bennett
County ambulance service. Id. ¶ 5. Some of Joyce’s primary responsibilities
in central supply included receiving goods, stocking shelves, recording delivery
of supplies, sterilizing all sterile supplies and medical waste disposal. Id. ¶ 7.

4

The central supply room is where all sterile patient supplies were maintained. 2
Id. ¶ 6. Joyce was responsible for maintaining her work area in a clean
manner, using the sterilizer machine, preparing invoices and maintaining
inventory. Id. ¶ 8.
Throughout her employment, Joyce regularly brought her dogs to work,
namely: “Katie,” a Catahoula, “Peabody,” a miniature Dachshund, and
“Cheikah,” a Dalmatian-Bluetick Coonhound. 3 Id. ¶ 9. Joyce’s dogs were
rarely restrained and often urinated throughout Bennett County’s facilities. 4
Id. ¶ 10. Lynn Ward, a registered nurse, documented the following:
As a floor nurse on the hospital side prior to my present position, I
had many encounters with Joyce Riggs and her dogs in the facility.
I had requested to Joyce that she keep her dogs out of the hospital
side of the facility while I was working as I had numerous times
Plaintiffs object that this statement is not presented in an admissible
form. (Docket 28 ¶ 6). Ethel Martin is a registered nurse with more than 40
years of work experience and is qualified to make the declaration from which
this statement of facts originated. (Docket 23-22 at pp. 1 & 4). Plaintiffs do
not challenge the statement as inaccurate. See D.S.D. Civ. LR 56.1(D) (“All
material facts set forth in the movant’s statement of material facts will be
deemed to be admitted unless controverted by the opposing party’s response to
the moving party’s statement of material facts.”). Plaintiffs’ objection is
overruled.
2

Plaintiffs object to this statement on the basis Alfred lacked personal
knowledge and there is insufficient foundation for the statement to be
admissible. (Docket 28 ¶ 9). Plaintiffs do not challenge the statement as
inaccurate. D.S.D. Civ. LR 56.1(D). Plaintiffs’ objection is overruled.
3

Plaintiffs object to this statement on the basis Alfred lacked personal
knowledge and there is insufficient foundation for the statement. (Docket 28
¶ 10). Plaintiffs do not challenge the statement as inaccurate. D.S.D. Civ. LR
56.1(D). Plaintiffs’ objection is overruled.
4

5

cleaned up dog urine from the floor, and didn’t feel it was
appropriate in an acute care setting. The dogs were often found
running in the hallway or down the passage to the nursing home.
The dogs were seldom on a leash. 5
Id. ¶ 11. Registered nurse Jennifer Risse, the director of nursing in the
nursing home side of Bennett County, noted “there were a number of times
where I witnessed Joyce Riggs bringing her dogs to work with her. The dogs
were never restrained and would run freely throughout the hospital.” 6 Id.
¶ 12; see also Docket 23-30 at pp. 3:7-8:7 In a 2012 memorandum, RN Risse
wrote:
[Cheikah] was friendly enough and some of the residents did enjoy
her. The issue became that [Joyce] would not follow the policy and
keep her dog restrained or out of the dining area. The dog would
wander freely in and out of resident rooms and at times had an issue
of getting excited and urinating on the floor. This was not only an
Infection Control issue, but also a safety issue for our residents. 8
Id. ¶ 13. Joyce’s supervisor, Katie Dillon, cleaned up urine from all three dogs

Plaintiffs object to this statement on the basis RN Ward lacked personal
knowledge and there is insufficient foundation for the statement. (Docket 28
¶ 11). RN Ward’s statement is based on her own personal observations.
Plaintiffs’ objection is overruled.
5

Plaintiffs object to this statement on the basis no witness had personal
knowledge to support the statement and it lacks foundation. (Docket 28
¶ 12). RN Risse’s statement is based on her personal observations. Plaintiffs’
objection is overruled.
6

The court cites to the transcript pages as they appear in CM/ECF, not to
the transcript page numbers.
7

See footnote 6, except the reference is to Docket 28 ¶ 13. Plaintiffs’
objection is overruled.
8

6

as well as Peabody’s bowel movements. 9 Id. ¶ 14. Ms. Dillon reported “[o]ne
incident happened with the Catahoula [Katie] where she was afraid and voided
on an upholstered chair down by the emergency/x-ray area. Joyce spent quite
awhile [sic] shampooing upholstery that day.” 10 Id. ¶ 15.
Alfred admitted Joyce’s dogs were not always restrained, “there were
some times I did not see a leash, but they were always with Joyce or they were–
you know, may not necessarily be right beside her . . . .” Id. ¶ 16. Joyce
acknowledged an occasion where one of her dogs ate food off a plate on the
floor in the TV room. (Docket 23-28 at pp. 19:7-11 & 20:10-20).
Maintenance manager Lenny Allison was upset about the dog eating food off a
resident’s plate. (Docket 22 ¶ 18). He yelled and kicked at Joyce’s dog. Id.
Mr. Allison and Joyce screamed and swore at each other in the presence of the
residents. Id. This incident prompted RN Risse to request the
implementation of a pet policy. Id. In June 2012, Bennett County
implemented a “Pet Policy.” Id. ¶ 19; see also Docket 23-9.

Plaintiffs object to this statement on the basis no witness had personal
knowledge to support the statement and it lacks foundation. (Docket 28
¶ 14). Plaintiffs acknowledge Ms. Dillon cleaned up urine left by Joyce’s dogs.
Id. Plaintiffs’ objection is overruled.
9

Plaintiffs object to this statement on the basis no witness had personal
knowledge to support the statement and it lacks foundation. (Docket 28
¶ 15). The objection is granted in part and overruled in part. The court has
not included a statement which constituted speculation on the part of the
declarant.
10

7

In August 2012, Ethel Martin became the CEO of Bennett County. 11
(Docket 22 ¶ 22). Ms. Martin, formerly Ethel Frein, had been an employee of
Bennett County since 1999. (Docket 1 ¶ 7). In September 2012, CEO Martin
implemented a “Pet Visitation Policy.” (Docket 22 ¶ 24; see also Docket
23-100. The Pet Visitation Policy allowed pets to be in Bennett County’s
facilities only for visitation purposes and restricted pets from the dining area,
food preparation areas, laundry, supply storage areas, medication preparation
areas and isolation areas. (Docket 22 ¶ 25). The policy required that at all
times the animals must be supervised and restrained on a leash. Id. ¶ 26.
On November 29, 2012, Joyce was suspended for the afternoon and the
next day as the result of a conflict with another employee. 12 Id. ¶ 33. Later
that day, Joyce attempted suicide. Id. ¶ 35. She was transported to the
Rapid City Regional Hospital (“RCRH”). Id. ¶ 36. Her RCRH medical records

Plaintiffs object to this statement as coming from an inadmissible
pleading. (Docket 28 ¶ 22). The pleading in question is plaintiffs’ complaint
(Docket 1 ¶ 11) to which defendant had no objection (Docket 6 ¶ 11). See Fed.
R. Civ. P. 8(b)(6) (“An allegation . . . is admitted if . . . the allegation is not
denied.” Plaintiffs acknowledge “the statement is undisputed.” (Docket 28
¶ 22). Plaintiffs’ objection is overruled.
11

Plaintiffs object to the specific content of defendant’s statement of
undisputed material facts as not being based on personal knowledge, without
foundation and constituting inadmissible hearsay. (Docket 28 ¶ 33). Without
waiving their objection, plaintiffs acknowledge the statement is undisputed but
claim the statement is not material. Id. The court finds the specific content
of the statement is not material, but the incident is necessary to provide
context for subsequent events. Plaintiffs’ objection is granted in part and
denied in part.
12

8

charted an assessment of “[m]ajor depressive disorder, recurrent, severe
without psychotic features” and “[r]ule out posttraumatic stress disorder”
(“PTSD”). Id.; see also Docket 23-16 at p. 4. The discharge summary on
December 2, 2012, contained the same two assessments. (Docket 22 ¶ 37; see
also Docket 23-17 at p. 1).
When Joyce returned to work, CEO Martin and Ms. Dillon met with
Joyce to follow-up on her suspension and to ensure she was able to return to
work. 13 Id. ¶ 38. CEO Martin instructed Joyce to let Ms. Dillon know if Joyce
was having a bad day and she would be allowed to go home. 14 Id.
¶ 39.
Joyce had no write-ups or outbursts for the remainder of 2012 and 2013,
despite not having her dogs at work with her. Id. ¶ 40. During this period
Joyce never left work because she was having a bad day. Id. Joyce met all
the necessary requirements to perform the essential functions of her job and
performed those duties and responsibilities from 2012 until November 2014,
even though Cheikah was not with her at work during this period. (Docket
22 ¶ 54).
Plaintiffs object to this statement on the basis no witness had personal
knowledge to support the statement and it lacks foundation. (Docket 28
¶ 38). Plaintiffs acknowledge “the statement is undisputed.” Id. Plaintiffs’
objection is overruled.
13

Plaintiffs object to this statement on the basis no witness had personal
knowledge to support the statement and it lacks foundation. (Docket 28
¶ 39). Plaintiffs acknowledge “the statement is undisputed.” Id. Plaintiffs’
objection is overruled.
14

9

Sometime in late October or early November 2014, CEO Martin took a
leave of absence for medical purposes. (Docket 1 ¶ 27). During this time
period Joyce made a request of Ms. Dillon to permit Cheikah to come to work
with her. Id. ¶ 28. Through a series of staff communications, CEO Martin
advised Bennett County Chief Financial Officer (“CFO”) Judy Soderli that some
research needed to be completed on Joyce’s request. (Docket 1 ¶ 31). CEO
Martin concluded Bennett County had no policy regarding a request for an
accommodation of service animals on the premises. Id. ¶ 34.
On November 3, 2014, Joyce requested that Cheikah be allowed to come
to work with her as her “service dog” as a reasonable accommodation. 15
(Docket 22 ¶ 41; see also Docket 23-32 at pp. 1 & 39). In support of her
request, Joyce provided a “US Service Dog” certificate which she purchased
online. (Dockets 22 ¶ 43; 23-12 & 23-13). Joyce believed Cheikah was her
“service dog” by virtue of this certificate. (Docket 22 ¶ 46). Joyce indicated
the request to bring Cheikah to work was an ADA request for a reasonable
accommodation. Id. ¶ 47. Joyce did not request an accommodation to permit
Cheikah to accompany her on the ambulance. (Dockets 22 ¶ 42 &
28 ¶ 42).
Plaintiffs object to this statement as inadmissible hearsay and failing to
acknowledge a finding of the South Dakota Division of Human Rights
(“SDDHR”) Determination of Probable Cause. (Docket 28 ¶ 41) (referencing
Docket 23-32 at p. 39). The Determination of Probable Cause contains the
following declaration: “Ms. Martin testified that [Joyce] requested reasonable
accommodation for her disability on or about November 3, 2014 and January
13, 2015[,] and [Joyce] does not dispute this.” (Docket 23-32 at p. 39).
Plaintiffs’ objection is overruled.
15

10

On November 6, 2014, CEO Martin instructed Ms. Dillon to tell Joyce
that Bennett County did not have a service dog policy, but that they were
creating a policy. Id. ¶ 39. Pending that process, Bennett County asked
Joyce to abide by the pet policy currently in place. Id. Ms. Dillon was
instructed to ask Joyce if she was requesting a reasonable accommodation.
Id. ¶ 38.
On December 2, 2014, CEO Martin met with Joyce and asked how she
could function on the ambulance crew when working in the office appeared to
be stressful. (Docket 22 ¶ 41). CEO Martin expressed concern about what
would be done with Joyce’s dog when Joyce was required to respond to an
ambulance call. Id. ¶ 42; see also Dockets 6 ¶ 42 and 22 ¶ 42. Joyce
responded that she wanted Ms. Dillon to take care of Cheikah during
ambulance service calls. 16 (Docket 22 ¶ 42; see also Docket 6 ¶ 42).
On December 5, 2014, Joyce was given a copy of Bennett County’s
reasonable accommodation policy, together with a medical inquiry form in
support of a reasonable accommodation. 17 (Docket 1 ¶ 43). Joyce was asked
to have her medical provider fill out the form to ascertain what disability she
had and what reasonable accommodation was necessary. (Docket
22 ¶ 48).
Plaintiffs object to this statement as not being made upon personal
knowledge and lacking foundation. (Docket 28 ¶ 42). Plaintiffs acknowledge
“this fact is undisputed.” Id. Plaintiffs’ objection is overruled.
16

The reasonable accommodations policy appears in the record as Docket

17

23-19.

11

On January 5, 2015, Lyle P. Christopherson, DO, Joyce’s psychiatrist,
completed the form. (Dockets 1 ¶ 44; 22 ¶ 49 & 26 at p. 2). To the question
“[d]oes the employee have a physical or mental impairment?” Dr.
Christopherson checked “[y]es.” (Docket 23-20 at p. 1). He identified “the
impairment or the nature of the impairment” as “[d]pression & PTSD.” Id.
The introduction to the second question contained the following:
Answer the following question based on what limitations the
employee has when . . . her condition is in an active state and what
limitations the employee would have if no mitigating measures were
used. Mitigating measures include things like medication, medical
supplies, equipment, hearing aids, mobility devices, the use of
assistive technology, reasonable accommodations or auxiliary aids
or services, prosthetics, learned behavioral or adaptive neurological
modifications, psychotherapy, behavioral therapy, and physical
therapy. Mitigating measures do not include ordinary eyeglasses
or contact lenses.
Id. Following this introduction, the second question was “[d]oes the
impairment substantially limit a major life activity as compared to most people
in the general population?” to which Dr. Christopherson answered “[y]es.” Id.
When asked to “[d]escribe the employee’s limitations when the impairment is
active,” Dr. Christopherson wrote “mood fluctuation.” Id. When asked “what
major life activity(s) (includes major bodily functions) is/are affected?” Dr.
Christopherson wrote “n/a.” Id. When asked to identify the “[m]ajor bodily
functions,” Dr. Christopherson wrote “n/a.” Id.
The form included three “[q]uestions to help determine whether an
accommodation is needed.” Id. at p. 2. The preamble to the questions was:

12

“[a]n employee with a disability is entitled to an accommodation only when the
accommodation is needed because of the disability.” Id. Dr. Christopherson
answered the following questions:
1.

What limitation(s) is interfering with job performance or
accessing a benefit of employment?
Companion dog

2.

What job function(s) or benefits of employment is the
employee having trouble performing or accessing because of
the limitation?
all

3.

How does the employee’s limitation(s) interfere with his/her
ability to perform the job function(s) or access a benefit of
employment?
Marked [increase] in depression when dog was banned

Id.; see also Docket 22 ¶ 50.
The final two questions were “to help determine effective accommodation
options.” (Docket 23-20 at p. 2). The preamble to those two questions stated:
If an employee has a disability and needs an accommodation
because of the disability, the employer must provide a reasonable
accommodation, unless the accommodation poses an undue
hardship. The following questions may help suggest effective
accommodations.
Id. Dr. Christopherson answered the following questions:
1. Do you have any suggestions regarding possible accommodations
to improve job performance? If so what are they? Let her have
her dog back.

13

2. How would your suggestions improve the employee’s job
performance? See 1 above.
Id.
While Cheikah was not specifically trained by an outside service, Joyce
personally trained Cheikah “for PTSD/obedience.” (Docket 28 ¶ 52; see also
Docket 22 ¶ 52). Joyce contends that to prevent her from going into an
anxiety attack Cheikah would get in front of Joyce, look at her and whine.
(Docket 28 ¶ 52). If Joyce ignores this response, Cheikah will jump up on
Joyce, take her to the door and according to Joyce, prevent her from going into
an anxiety attack. Id.; see also Docket 28 ¶ 53).
On January 13, 2015, Alfred delivered to CEO Martin Joyce’s formal
reasonable accommodation request together with the completed medical
inquiry form. (Docket 1 ¶ 48). CEO Martin understood Joyce was making a
reasonable accommodation request. (Docket 23-30 at p. 7:20-22). The next
day, CEO Martin spoke with Joyce, acknowledged receipt of the documents and
indicated the reasonable accommodation committee would try to meet the
following week. (Docket 1 ¶ 49).
Joyce requested CEO Martin meet with Joyce, Dr. Christopherson and
Joyce’s therapist to discuss bringing Cheikah to work as her service dog.
(Docket 28 at p. 13 ¶ 8). CEO Martin refused to attend such a meeting.
(Docket 29-1 at p. 3:16-4:1).

14

On January 21, 2015, the reasonable accommodation committee
composed of CEO Martin, CFO Soderli and Ms. Dillon met to consider Joyce’s
accommodation request. (Docket 1 ¶ 51). Along with other facts and
circumstances, 18 the committee reviewed Joyce’s job description, her two most
recent performance evaluations, her attendance record, considered whether
she had received any verbal or written warnings over the past year, considered
whether there were any concerns or complaints which Joyce had made to her
supervisor concerning her ability to perform her duties and considered the
medical inquiry form completed by Dr. Christopherson. Id. ¶ 53; see also
Docket 6 ¶ 53. The committee found no significant changes in Joyce’s job
duties occurred during the past year, her performance evaluations showed
improvements, her attendance record was very good, she had not received any
verbal or written warning relating to her job performance over the past year
and Joyce had not mentioned any specific stressors. (Docket 1 ¶ 54). On
January 28, 2015, the committee provided Joyce with its written denial of her
request for a reasonable accommodation, that is, to bring Cheikah to work with
her. Id. ¶ 58; see also Dockets 22 ¶ 55 and 23-21.

Defendant does not identify other facts or circumstances. See Docket

18

6 ¶ 53.

15

According to CEO Martin, after the request was denied, Joyce’s behavior
at Bennett County became disruptive and unprofessional. 19 (Docket 22 ¶ 56).
On February 4, 2015, Joyce told Ms. Dillon that Joyce wished CEO Martin
would get beaten “so bad she can never do anything to anyone again” and
referred to her as a “bitch.” 20 Id. ¶ 57.
On February 26, 2015, Joyce appeared at a meeting of the Bennett
County Board of Directors. (Dockets 1 ¶ 62 & 6 ¶ 62). Joyce demanded that
the Board listen to her complaints about the reasonable accommodation
committee. 21 (Docket 22 ¶ 58). Because Joyce was not on the agenda, Board
President David Jones asked Joyce to follow the appropriate policy and get on
the agenda for the following week’s meeting. 22 Id. Mr. Jones instructed Joyce

Plaintiffs object to CEO Martin’s statement as self-serving and
inadmissible hearsay. (Docket 28 ¶ 56). CEO Martin’s statement is a sworn
affidavit and expresses the declarant’s opinion as to Joyce’s conduct. (Docket
23-32 at pp. 1-4). Plaintiffs’ objection is overruled.
19

Plaintiffs object to Ms. Dillon’s statement as inadmissible hearsay and
irrelevant to any of Joyce’s causes of action. (Docket 28 ¶ 57). Ms. Dillon’s
statement is a sworn affidavit and describes Joyce’s statements to the
declarant. (Docket 23-32 at pp. 18-20). Plaintiffs do not challenge the
declarant’s statement as inaccurate. D.S.D. Civ. LR 56.1(D). Plaintiffs’
objection is overruled.
20

Plaintiffs object on the basis the affidavits of CEO Martin and Board
President David Jones are inadmissible hearsay and self-serving. (Docket 28
¶ 58). The affidavits are sworn testimony and Plaintiffs do not challenge the
declarants’ statements as inaccurate. D.S.D. Civ. LR 56.1(D). Plaintiffs’
objection is overruled.
21

See footnote 21. Plaintiffs’ objection is overruled.

22

16

to follow the steps outlined in the grievance procedure. 23 Id. ¶ 59. Joyce
stormed out of the room, slammed the door and was heard yelling down the
hallway as she left. 24 Id.
On March 2, 2015, CEO Martin attempted to speak with Joyce about her
disrespectful and disruptive attitude and conduct, but Joyce refused to
listen. 25 Id. ¶ 60. Bennett County terminated Joyce’s employment that day.
(Dockets 1 ¶ 68 and 6 ¶ 68). Bennett County’s stated reasons for termination
included Joyce’s continuing insubordination toward the administration, her
failing to follow facility policies and her attempts to polarize staff against
management through misrepresentation of facts. (Docket 1 ¶ 69).
On March 11, 2015, Alfred delivered to CEO Martin an envelope
addressed to “whom it may concern,” containing Joyce’s appeal of her
termination. Id. ¶ 72; Docket 6 ¶ 72. That same day Joyce filed a charge of
discrimination with the SDDHR alleging Bennett County discriminated and

See footnote 21, except the reference is to Docket 28 ¶ 59. Plaintiffs’
objection is overruled.
23

See footnote 21. Plaintiffs’ objection is overruled.

24

Plaintiffs object to CEO Martin’s statement as self-serving and hearsay.
(Docket 28 ¶ 60). CEO Martin’s statement is a sworn affidavit and expresses
the declarant’s opinion as to Joyce’s conduct. (Docket 23-32 at pp. 1-4).
Plaintiffs do not challenge the statement as inaccurate. D.S.D. Civ. LR
56.1(D). Plaintiffs’ objection is overruled.
25

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retaliated against her in violation of the ADA by terminating her employment
after she requested that Cheikah be allowed at work with her. (Docket 22
¶ 63; see also Docket 23-33 at pp. 8-9).
On March 12, 2015, Joyce filed a claim for unemployment benefits with
the South Dakota Unemployment Insurance Division (“SDUID”). (Docket
22 ¶ 64. On March 16, 2015, Bennett County filed its opposition to Joyce’s
claim for unemployment benefits due to her workplace misconduct. Id. ¶ 65.
On March 18, 2015, CEO Martin received a copy of Joyce’s SDDHR charge of
discrimination. (Docket 1 ¶ 78).
On March 18, 2015, Certified Nurse Practitioner (“CNP”) Nancy Webb
completed a form for the SDUID which indicated Joyce suffered from
depression and PTSD. 26 (Dockets 23-34). CNP Webb noted she had treated
Joyce for these conditions since 2004, with the most recent examination
occurring on March 2, 2015. Id.

CNP Webb referred to Cheikah as Joyce’s

“[s]ervice dog” which “helps calm at times of anxiety.” (Dockets 28 ¶ 53 &
23-34).
On March 19, 2015, Alfred met with CEO Martin and Bennett County’s
Human Resources (“HR”) Director Melanie Peil. (Docket 1 ¶ 83). Alfred asked
them to permit Joyce to return to work with the ambulance service. Id. ¶ 84.

The court presumes Dr. Christopherson works with CNP Webb at the
Bennett County Community Health Center, a facility not associated with
Bennett County. (Docket 23-34).
26

18

CEO Martin told Alfred she could not hire Joyce back into the most stressful
department in the facility. Id. ¶ 85.
On March 26, 2015, SDUID concluded Joyce was disqualified from
receiving unemployment insurance benefits. (Dockets 1 ¶ 86 & 23-32 at
p. 15 ¶ 33). Joyce appealed that decision to the South Dakota Department of
Labor and Regulation Unemployment Insurance Appeals Division (“Appeals
Division”). Id.
At a meeting on April 7, 2015, CEO Martin chastised Alfred because he
had used a Bennett County ambulance to perform personal errands after
transporting a patient from Martin, South Dakota to Rapid City, South Dakota.
(Docket 1 ¶ 88). The next day CEO Martin drafted a new Bennett County
policy which prohibited staff from using ambulances for personal errands. Id.
¶ 89; see also Docket 23-35 at p. 14.
On April 20, 2015, a hearing was held before an Appeals Division
administrative law judge (“ALJ”). 27 (Docket 22 ¶ 67). On April 28, 2015, the
ALJ entered findings of fact, conclusions of law and an order affirming the
decision of the SDUID. Id. ¶ 70.

The hearing was conducted by telephone conference call during which
Joyce, Alfred, Shana Rosentrater, CNP Weber, CEO Martin and Ms. Dillon
testified. (Docket 23-32 at p. 12).
27

19

Between April and June 2015, CEO Martin received numerous
complaints about Alfred’s employment performance. 28 Id. ¶ 71. Alfred agreed
it was a problem for Bennett County not to be able to reach him as the
ambulance director when ground transportation was needed. Id. ¶ 78. Alfred
was terminated on June 2, 2015. (Docket 1 ¶ 97). Bennett County’s reasons
for his dismissal included: substandard performance, insubordination, failing
to follow the proper chain of command, overstepping scope of practice and past
unauthorized use of the ambulance for personal errands. Id.
On July 24, 2015, Joyce filed a second charge of discrimination alleging
Bennett County retaliated against her by opposing her application for
unemployment benefits in violation of the South Dakota Human Relations Act
(“SDHRA”) (“second charge”). (Docket 22 ¶ 83; see also Docket 23-33 at
pp. 1-2). On the same day, Alfred filed a charge of discrimination with the
SDDHR alleging he was retaliated against for “participating and assisting”
Joyce in her efforts to enforce her rights under the ADA. Id. ¶ 84.
On July 31, 2015, the SDDHR issued a determination of probable cause
in Joyce’s favor on her charge of failure to accommodate and her claim of

Plaintiffs object to CEO Martin’s statement as self-serving and
inadmissible hearsay. (Docket 28 ¶ 71). CEO Martin’s statement is a sworn
affidavit and details the declarant’s receipt of complaints from other employees
of Alfred’s performance. (Docket 23-35 at pp. 26-29). The underlying
complaints are detailed in sworn affidavits. Id. at pp. 30-36. Plaintiffs do not
challenge the statements as inaccurate. D.S.D. Civ. LR 56.1(D). Plaintiffs’
objection is overruled.
28

20

retaliatory discharge. (Dockets 1 ¶ 98 & 22 ¶ 82). On June 2, 2016, the
United States Equal Employment Opportunity Commission (“EEOC”) adopted
the SDDHR’s finding in favor of Joyce on her charges of failure to accommodate
and retaliatory discharge and issued a dismissal and notice of right to sue
letter. (Docket 1 ¶ 103).
On December 1, 2015, SDDHR issued a no probable cause determination
and dismissed Joyce’s second charge. (Dockets 1 ¶ 104 & 22 ¶ 85). Joyce
appealed the SDDHR’s second charge dismissal to the Sixth Judicial Circuit
Court in Hughes County, South Dakota. (Docket 22 ¶ 86). A circuit court
judge affirmed SDDHR’s second charge dismissal. Id. ¶ 87. Joyce appealed
the circuit court decision to the South Dakota Supreme Court. Id. ¶ 88. On
June 27, 2018, the Supreme Court “remanded [the case] back to [SDDHR] for
further proceedings . . . [to] consider [Joyce’s] March 2 and March 11 letters,
the Hospital’s articulated reason for terminating [her], and any evidence of
pretext.” Riggs v. Bennett County Hospital and Nursing Home, 915 N.W.2d
156, 161 (S.D. 2018).
The South Dakota Supreme Court also addressed Joyce’s claim “that her
interruption of the February 26, 2015, board meeting . . . [was a] protected
activit[y].” Id. at 160 n.2. The court ruled “[w]hile appealing adverse
employment action may be protected activity generally, interrupting a board
meeting is not.” Id. (referencing Kiel v. Select Artificials, Inc., 169 F.3d 1131,
1136 (8th Cir. 1999) (“Although contesting an unlawful employment practice is
21

protected conduct, the anti-discrimination statutes do not insulate an
employee from discipline for violating the employer’s rules or disrupting the
workplace.”)).
On December 1, 2015, the SDDHR issued a no probable cause
determination on Alfred’s charge of discrimination. (Docket 22 ¶ 89). Alfred
appealed that adverse decision to the Sixth Judicial Circuit Court in Hughes
County, South Dakota. Id. ¶ 90. While Alfred’s case was on appeal, on
August 9, 2016, the EEOC issued a dismissal and notice of rights with respect
to Alfred’s charge of discrimination. (Docket 1 ¶ 108). On December 23,
2016, the circuit court reversed and remanded the decision against Alfred back
to SDDHR. Id.; see also Docket 23-37 at p. 1. On January 17, 2017, SDDHR
issued a second no probable cause determination on Alfred’s charge of
discrimination. (Dockets 22 ¶ 91 & 23-37 at p. 1). Alfred did not appeal that
decision. (Docket 22 ¶ 91).
ANALYSIS
Bennett County seeks summary judgment as to all of plaintiffs’ claims on
the following grounds:
1.

Joyce is not disabled as defined in the ADA;

2.

Joyce’s failure to accommodate claim fails because she
cannot establish her requested accommodation was
reasonable on its face;

3.

Joyce’s retaliation claim fails because applying for
unemployment benefits is not a protected activity under the
ADA;
22

4.

Bennett County did not engage in extreme or outrageous
conduct to support a claim for intentional infliction of
emotional distress; and

5.

Alfred’s retaliation claim fails because he cannot establish he
engaged in protected activities and because Bennett County
terminated his employment for a legitimate,
nondiscriminatory reason.

(Docket 21 at pp. 1-2).
I.

AMERICANS WITH DISABILITIES ACT
REASONABLE ACCOMMODATION CLAIM
The ADA prohibits discriminating against a “qualified individual” on the

basis of disability. 42 U.S.C. § 12112(a). A “qualified individual” is one “who,
with or without reasonable accommodation, can perform the essential
functions” of her job. 42 U.S.C. § 12111(8). “To establish a claim under the
ADA, a plaintiff must show (1) that she is disabled within the meaning of the
Act; (2) that she is qualified to perform the essential functions of the job either
with or without accommodation; and (3) that she has suffered adverse
employment action because of the disability.” Fjellestad v. Pizza Hut of
America, Inc., 188 F.3d 944, 948 (8th Cir. 1999). See also Liljedahl v. Ryder
Student Transportation Services, Inc., 341 F.3d 836, 841 (8th Cir. 2003).
Termination from employment is an adverse employment action. Hill v.
Walker, 737 F.3d 1209, 1219 (8th Cir. 2013); Cross v. Cleaver, 142 F.3d 1059,
1073 (8th Cir. 1998).

23

The United States Court of Appeals for the Eighth Circuit interprets the
“because of” element of a prima facie ADA discrimination claim as requiring the
plaintiff “to present direct or indirect evidence showing a causal link between
the adverse employment action and [the] disability.” Brown v. City of
Jacksonville, 711 F.3d 883, 889 (8th Cir. 2013) (citing Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004)).
A plaintiff bringing a claim under the ADA may survive a motion for
summary judgment in two ways. First, if the plaintiff can provide “direct
evidence” of discrimination, summary judgment is not appropriate. Griffith,
387 F.3d at 736. “Direct evidence in this context is not the converse of
circumstantial evidence . . . . Rather, direct evidence [of discrimination] by
‘showing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder
that an illegitimate criterion action motivated’ the adverse employment action.”
Id. (citing Thomas v. First National Bank of Wynne, 111 F.3d 64, 66 (8th Cir.
1997)). “Thus, ‘direct’ refers to the causal strength of the proof, not whether it
is ‘circumstantial’ evidence. A plaintiff with strong (direct) evidence that illegal
discrimination motivated the employer’s adverse action does not need the
three-part McDonnell Douglas 29 analysis to get to the jury, regardless of
whether [her] strong evidence is circumstantial.” Id.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

29

24

Second, “if the plaintiff lacks evidence that clearly points to the presence
of an illegal motive, [s]he must avoid summary judgment by creating the
requisite inference of unlawful discrimination through the McDonnell
Douglas analysis, including sufficient evidence of pretext.” Id. (referencing
Harvey v. Anheuser–Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994)). Under the
McDonnell-Douglas analysis, the plaintiff must establish a prima facie case of
discrimination by a preponderance of the evidence. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981).
If the plaintiff presents a prima facie case of disability discrimination, the
employer then must show a legitimate, nondiscriminatory reason for the
adverse employment action. McDonnell Douglas Corp., 411 U.S. at 802. If
the employer establishes a legitimate nondiscriminatory reason for the adverse
employment action, the burden shifts back to the plaintiff to show that the
employer’s reason is a pretext for discrimination. Id. at 804. While the
burden of production may shift between the plaintiff and the defendant, the
plaintiff “retains the burden of persuading the trier of fact that . . . she has
been the victim of illegal discrimination . . . .” Cravens v. Blue Cross & Blue
Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000). “[S]ummary
judgment is proper if the plaintiff fails to establish any element of . . . her
prima facie case.” Id.
The court addresses the elements of Joyce’s disability claim in the
manner most efficient to resolve defendant’s summary judgment motion.
25

1.

DISABILILTY
“The ADA defines disability as ‘(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an
impairment.’ ” Fjellestad, 188 F.3d at 948 (citing 42 U.S.C. § 12102(2)).
“Major life activities include caring for one’s self, performing manual tasks,
walking, seeing, hearing, breathing, learning and working.” Id. (citing
29 CFR. § 1630.2(i)). “An impairment is ‘substantially limiting’ if it renders an
individual unable to perform a major life activity that the average person in the
general population can perform, or if it significantly restricts the condition,
manner, or duration under which an individual can perform a particular major
life activity as compared to an average person in the general population.” Id.
at 948-49 (citing 29 CFR § 1630.2(j)(1)(i)-(ii)). “[T]he determination of whether
an individual is substantially limited in a major life activity must be made on a
case by case basis.” Id. at 949.
The 2008 amendments to the ADA made clear that a person is brought
under the definition of “disabled” when she is subjected to an adverse
employment action “because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a
major life activity.” 42 U.S.C. § 12102(3)(A); see also Brown, 711 F.3d at
889.

26

For purposes of analyzing defendant’s summary judgment motion, the
court finds Dr. Christopherson documented Joyce suffers from a mental
impairment that affects her major activities of life. (Docket 28 at p. 12 ¶ 1).
He identified PTSD and depression as those mental impairments. (Docket
23-20 at p. 1). Joyce is disabled for purposes of her ADA claim. 42 U.S.C.
§ 12202(2).
2.

REASONABLE ACCOMMODATION
An employee requesting an accommodation must “make a facial showing

that reasonable accommodation is possible and that the accommodation will
allow her to perform the essential functions of the job.” Burchett v. Target
Corporation, 340 F.3d 510, 517 (8th Cir. 2003). Essential functions of the job
are “the fundamental job duties of the employment position the individual with
a disability holds . . . .” 29 CFR § 1630.2(n)(1). The employee must show the
requested accommodation is “reasonable on its face.” U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 401 (2002).
“[O]nce the plaintiff makes ‘a facial showing that reasonable
accommodation is possible,’ the burden of production shifts to the employer to
show that it is unable to accommodate the employee.” Cravens, 214 F.3d at
1016 (citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.
1995) (internal citation omitted). Accommodations are not reasonable if the
employer “can demonstrate that the accommodation would impose undue
hardship on the operation of the business.” 42 U.S.C. § 12112(5)(A). “[T]he
27

ADA does not require an employer to create a new position to accommodate a
disabled employee or to shift the essential functions of the position to other
employees.” Fjellestad, 188 F.3d at 950. “[A]n employer need not reallocate
or eliminate the essential functions of a job to accommodate a disabled
employee.” Id.
“ ‘[A]n accommodation that would cause other employees to work harder,
longer, or be deprived of opportunities is not mandated’ under the ADA.”
Minnihan v. MediaCom Communications Corp., 779 F.3d 803, 813 (8th Cir.
2015). “[A]n employer need not . . . eliminate the essential functions of a job
to accommodate a disabled employee.” Fjellestad, 188 F.3d at 950.
On November 3, 2014, Joyce made a formal request for an
accommodation by asking to be allowed to bring Cheikah to work with her. 30
(Docket 28 at p. 13 ¶ 9). The question then becomes: was Joyce’s request for
an accommodation reasonable? The court finds this question must be
answered in the negative.
By Joyce’s own admissions, she wanted Cheikah to accompany her to
work, but expected other Bennett County employees to supervise Cheikah

For purposes of summary judgment analysis, the court will assume
with the assistance of Cheikah, Joyce could perform the essential functions of
her position.
30

28

while Joyce was on ambulance calls. 31 Bennett County demonstrated it could
not expect other employees to supervise Cheikah in Joyce’s absence. This
would “impose an undue hardship on the operation of [Bennett County].”
42 U.S.C. § 12112(5)(A). Requiring other Bennett County employees to take
over supervision of Cheikah is not “reasonable on its face.” U.S. Airways, Inc.,
535 U.S. at 401.
Joyce fails to show her requested accommodation was reasonable.
Bennett County’s motion for summary judgement as to count I is granted.
Count I of Joyce’s complaint, a failure to accommodate claim under the ADA, is
dismissed.
RETALIATORY DISCHARGE CLAIMS
1. UNLAWFUL DISCHARGE FOR SEEKING AN ACCOMMODATION
In count II of her complaint, Joyce asserts while she was engaged in a
protected activity, that is, repeatedly requesting an accommodation for her
disability, Bennett County engaged in an unlawful, retaliatory termination of
her employment. (Docket 1 ¶¶ 115-18).
The ADA specifically prohibits retaliation against an employee engaged in
a protected activity. “No person shall discriminate against any individual
Because of this analysis, the court concludes it is not necessary to
resolve (1) whether Cheikah’s training qualified it as a service dog; (2) whether
Cheikah’s sporadic lack of bladder control while in the building still permitted
him to qualify as a service dog; or (3) whether permitting Cheikah to
accompany Joyce in the Central Supply room constituted a reasonable
accommodation.
31

29

because such individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
this chapter.” 42 U.S.C. § 12203(a). “To prove a retaliation claim, a plaintiff
must show (1) that . . . she engaged in statutorily protected activity; (2) an
adverse employment action was taken against . . . her; and (3) a causal
connection exists between the two events.” Green v. Franklin National Bank
of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006) (internal citations omitted);
see also Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (To succeed on an
ADA retaliation claim, Joyce must establish “(1) she engaged in a statutorily
protected activity, (2) the employer took an adverse action against [her], and
(3) there was a causal connection between the adverse action and the protected
activity.”).
The court already concluded Joyce was engaged in a protected activity
when seeking an accommodation for her disability. She was ultimately
terminated from her position of employment with Bennett County.
Termination from employment is an adverse employment action. Hill,
737 F.3d at 1219. Joyce argues the “evidence of a causal connection” between
her seeking an accommodation and her termination “is temporal proximity[.]”
Id. She contends the brief period of five days between her appearance before
the Bennett County Board of Directors on February 26, 2015, seeking an
accommodation from the Board of Directors, and her termination on March 2,
30

2015, establishes Bennett County terminated her for seeking the
accommodation.
Bennett County acknowledges that summary judgment is not
appropriate on this element. “Bennett County understands that there may be
a genuine dispute between the parties as to the basis of Joyce’s termination
. . . .” (Docket 21 at p. 19).
Summary judgment on count II, Joyce’s ADA retaliatory discharge claim,
must be denied.
Before moving to plaintiffs’ other claims, the court must point out that
compensatory and punitive damages are not available on retaliation claims
brought under 42 U.S.C. § 12203.
[T]he 1991 Civil Rights Act does not expand the remedies available
to a party bringing an ADA retaliation claim against an employer
and therefore compensatory and punitive damages are not available.
A close reading of the plain language of [42 U.S.C.] § 1981a(a)(2)
makes it clear that the statute does not contemplate compensatory
and punitive damages for a retaliation claim under the ADA.
Section 1981a(a)(2) permits recovery of compensatory and punitive
damages (and thus expands the remedies available under [42
U.S.C.] § 2000e-5(g)(1) ) only for those claims listed therein. With
respect to the ADA, § 1981a(a)(2) only lists claims brought under
§§ 12112 or 12112(b)(5). Because claims of retaliation under the
ADA (§ 12203) are not listed, compensatory and punitive damages
are not available for such claims. Instead, the remedies available
for ADA retaliation claims against an employer are limited to the
remedies set forth in § 2000e-5(g)(1).
Kramer v. Banc of America Securities, LLC, 355 F.3d 961, 965 (7th Cir. 2004).
See also EECO v. CRST International, Inc., 351 F. Supp. 3d 1163, 1185 (N.D.
Iowa 2018) (“The Eighth Circuit Court of Appeals has not opined on whether
31

retaliation or interference claims may provide the basis for an award of
compensatory or punitive damages. Most courts to consider the issue,
however, including two district courts within the Eighth Circuit, have followed
the Seventh Circuit’s rationale in Kramer.”) (references omitted).
“In the absence of a right to recover compensatory and punitive damages,
plaintiff is entitled only to equitable relief on the retaliation and interference
claims. . . . The Court therefore finds that plaintiff is not entitled to a trial by
jury on plaintiff's retaliation and interference claims.” CRST Int’l, Inc., 351 F.
Supp. 3d at 1186 (referencing 42 U.S.C. § 2000e-5(g)(1)).
Joyce’s claim for compensatory and punitive damages on her retaliation
claim must be dismissed. If the retaliation claim is proven at trial, Joyce’s
remedies are limited to reinstatement and back pay. At that point, Joyce’s
retaliation claim remedies will be resolved by a court trial. Id.
2. UNLAWFUL DISCHARGE FOR SEEKING UNEMPLOYMENT BENEFITS
In count III of plaintiffs’ complaint, Joyce alleges Bennett County
terminated her in retaliation for filing for state unemployment insurance
benefits. (Docket 1 at p. 14-15). “A retaliation claim under the ADA . . .
requires a but-for causal connection between the employee’s assertion of her
. . . rights and an adverse action by the employer.” Oehmke v. Medtronic,
Inc., 844 F.3d 748, 758 (8th Cir. 2016) (citing University of Texas Southwest
Medical Center v. Nassar, 570 U.S. 338, 352 (2013)). An ADA retaliation claim
follows the same direct evidence or burden-shifting analysis employed in
32

discrimination claims. EEOC v. Product Fabricators, Inc., 763 F.3d 963, 972
(8th Cir. 2014).
“The defense can rebut a retaliation claim by showing a ‘non retaliatory
reason for the adverse employment action.’ ” Green, 459 F.3d at 914 (citing
Rheineck v. Hutchinson Tech., Inc., 261 F.3d 751, 757 (8th Cir. 2001)). “If the
defendant can show a legitimate reason, the plaintiff must show that the given
reason was only a pretext for discrimination.” Id. (citing Gilooly v.
Missouri Department of Health & Senior Services, 421 F.3d 734, 739 (8th Cir.
2005)).
To assert she was engaged in a protected activity, Joyce is required to
make a prima facie showing she was engaged in a proceeding under the
retaliation provision of the ADA. Green, 459 F.3d at 914. Joyce argues
Burlington Northern Santa Fe Railway v. White, 548 U.S. 53 (2006), supports
her ADA retaliation claim. (Docket 27 at p. 11). White involved a Title VII
discrimination claim. White, 548 U.S. at 56. The “antiretaliation provision”
of Title VII “prohibits an employer from ‘discriminating against’ an employee
. . . because that individual ‘opposed any practice’ made unlawful by Title VII
or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding
or investigation.” Id. (citing 42 U.S.C. § 2000e-3(a)). The Supreme Court held
“[t]he scope of the antiretaliation provision extends beyond workplace-related
or employment-related retaliatory acts and harm.” Id. at 67. “In our view, a
plaintiff must show that a reasonable employee would have found the
33

challenged action materially adverse, “which in this context means it well might
have ‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’ ” Id. at 68 (citing Rochon v. Gonzales, 438 F.3d 1211, 1219
(C.A.D.C. 2006) (quoting Washington v. Illinois Department of Revenue, 420
F.3d 658, 662 (7th Cir. 2005)). “The antiretaliation provision seeks to prevent
employer interference with ‘unfettered access’ to Title VII’s remedial
mechanisms. . . . It does so by prohibiting employer actions that are likely ‘to
deter victims of discrimination from complaining to the EEOC,’ the courts, and
their employers.” Id. (citing Robinson v. Shell Oil Co., 519 U.S. 337, 345
(1997) (“Insofar as § 704(a) expressly protects employees from retaliation for
filing a ‘charge’ under Title VII, and a charge under § 703(a) alleging unlawful
discharge would necessarily be brought by a former employee, it is far more
consistent to include former employees within the scope of ‘employees’
protected by § 704(a).”). The Court “phrase[d] the standard in general terms
because the significance of any given act of retaliation will often depend upon
the particular circumstances. Context matters.” Id. at 69.
Joyce also argues Ward v. Wal-Mart Stores, Inc., 140 F. Supp. 2d 1220
(D.N.M. April 19, 2001), supports her position. (Docket 27 at p. 12). In
Ward, the court found that Wal-Mart’s reason for opposing plaintiff’s
unemployment benefits application was not based on the only statutory
allowed reason: wrongful conduct. Ward, 140 F. Supp. 2d at 1231. Rather,
the court found Wal-Mart appealed the application because its “policy at the
34

time was to appeal all unemployment . . . awards as a matter of course.” Id.
Addressing the pretext element of a retaliation claim, the court found
“[b]ecause Wal-Mart had no legitimate basis for appeal, a reasonable factfinder
could find the company’s proffered explanation to be unworthy of credence.”
Id. at 1232. For that reason, the court denied Wal-Mart’s motion for summary
judgment on Ward’s ADA retaliation claim. Id. In Ward, the court concluded
the earlier filing of an EEOC claim by Ward was the “protected activity.” Id. at
1230. Further, the Ward court focused on the pretextual explanation for WalMart’s opposition to Ward’s unemployment benefits award. The court did not
consider whether the application for unemployment benefits was a protected
activity. The court finds Ward unpersuasive and it does not provide good
guidance on the issues presented in Joyce’s case.
Asserting an unemployment benefits claim is associated with the
economic impact of losing one’s job and is not associated with asserting a right
under the ADA. Whether asserting one’s own unemployment compensation
claim or testifying during an administrative hearing on behalf of another
individual seeking unemployment benefits, the conduct is not a protected
activity under the ADA. See Edwards v. Creoks Mental Health Services, Inc.,
505 F. Supp. 2d 1080, 1093 n.4 (N.D. Okla. 2007) (“[F]iling for unemployment
compensation is not a protected activity under the ADA[.]”); Hamilton v. New
Horizons Home Healthcare Limited Liability Co., No. 1:16-CV-399, 2018 WL
3633951, at *5 (N.D. Ind. July 31, 2018) (“[T]estifying at an administrative
35

proceeding regarding unemployment benefits is not a protected activity under
the ADA. . . . Because Sorah was not engaging in protected activity under the
ADA by filing for unemployment—a proceeding completely unrelated to the
ADA—the Plaintiff’s testimony at the [Indiana Department of Workforce
Development] hearing necessarily cannot have been aiding or encouraging
Sorah in a protected activity under the ADA.”). See also Small v. WW Lodging,
Inc., 106 F. App’x 505, 508 (7th Cir. 2004) (“[A]pplying for unemployment
benefits is not activity protected under Title VII.”); McDonald-Cuba v. Santa Fe
Protective Services, Inc., 644 F.3d 1096, 1102 (10th Cir. 2011) (“While we have
recognized that an employer’s opposition to an unemployment benefits claim
may represent an adverse employment action . . . McDonald–Cuba fails to cite
any authority recognizing an application for unemployment benefits, without
more, as a form of protected activity under Title VII.”) ( referencing Williams v.
W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090-91 (10th Cir. 2007) (emphasis in
original)); Gentile v. DES, Properties, Inc., No. 3:08-CV-2330, 2012 WL
2792347, at *7 (M.D. Pa. July 9, 2012) (“The Court finds as a matter of law that
[an application for unemployment compensation] do[es] not constitute
protected activity under a Title VII retaliation claim.”); Dannenbring v. Wynn
Las Vegas, LLC, No. 2:12-CV-00007, 2012 WL 3317500, at *3 (D. Nev. Aug. 13,
2012) (“[A]n application for unemployment benefits does not constitute
protected activity under Title VII.”); Edwards, 505 F. Supp. 2d at 1093 (“[F]iling
for unemployment compensation [is] entirely unrelated to Title VII.”).
36

In count III, Joyce claims her application for unemployment benefits was
the protected conduct. (Docket 1 ¶ 119). The court finds as a matter of law
the filing of a claim for unemployment benefits is not a “protected activity”
under the ADA. Joyce’s retaliation claim under the ADA fails. Green, 459
F.3d at 914.
Joyce’s retaliation claim fails for another reason. In Riggs, the South
Dakota Supreme Court found:
[T]he filing of [Joyce’s] first charge of discrimination on March 16
could not have had any causal connection to the Hospital’s decision
to oppose her unemployment-insurance claim until the Hospital
received notice of that charge on March 18. But [SDDHR] found
that the Hospital’s opposition to [Joyce’s] unemployment-insurance
claim occurred before the Hospital received notice of [her] first
charge of discrimination. A review of the record does not create a
definite and firm conviction that this finding is erroneous.
Riggs, 915 N.W.2d at 160 n.2 (internal citation and quotation marks omitted).
Had the court found filing for unemployment benefits was a protected activity,
the undisputed facts in this case show that Bennett County’s challenge to
Joyce’s unemployment claim occurred before she filed the first charge of
discrimination. The court finds as a matter of law Bennett County’s challenge
was neither unreasonable nor connected to the assertion of her ADA rights.
Oehmke, 844 F.3d at 758.
Defendant’s summary judgment motion as to count III is granted.
Count III of plaintiffs’ complaint is dismissed.

37

II.

INTENTIONAL OR RECKLESS INFLICTION OF EMOTIONAL
DISTRESS
Count IV of plaintiffs’ complaint alleges Bennett County “engaged in

extreme and outrageous conduct” and “either intentionally or recklessly caused
Joyce . . . to suffer extreme and disabling emotional distress.” (Docket 1
¶ 123). In this count, Joyce alleges:
]Bennett County] repeatedly rejected [Joyce’s] requests that [Bennett
County] accommodate her disability, delaying its responses to her
accommodation requests, insulting and demeaning her when she
demonstrated symptoms of depression, forcing Joyce to take
unnecessary action to present her requests, rejecting her requests
despite medical documentation validating her claim, retaliating
against her by terminating her employment, further retaliating
against her by opposing her claim for unemployment insurance
benefits in bad faith, and further retaliating against her by
terminating her husband.
Id.
This is a state law claim. “[A] federal court exercising supplemental
jurisdiction [over state-law claims] is bound to apply the substantive state law
governing the claims.” Emmenegger v. Bull Moose Tube Co., 324 F.3d 616,
624 n.9 (8th Cir. 2003).
In South Dakota, to prevail on an intentional infliction of emotional
distress claim a plaintiff must prove the following:
(1)

[A]n act by the defendant amounting to extreme and
outrageous conduct;

(2)

[I]ntent on the part of the defendant to cause the plaintiff
severe emotional distress;

38

(3)

[T]he defendant’s conduct was the cause-in-fact of plaintiff’s
distress; and

(4)

[T]he plaintiff suffered an extreme disabling emotional
response to defendant’s conduct.

Estate of Johnson by and through Johnson v. Weber, 898 N.W.2d 718, 726
(S.D. 2017) (internal citation omitted). “[T]he tort of intentional infliction of
emotional distress includes liability on the part of the defendant for reckless
conduct resulting in emotional distress.” Id. (citing Petersen v. Sioux Valley
Hospital Association, 491 N.W.2d 467, 469 (S.D. 1992)). In Petersen, the
South Dakota Supreme Court “specifically [found] that the tort of intentional
infliction of emotional distress encompasses liability for reckless infliction of
emotional distress . . . .” Petersen, 491 N.W.2d at 469.
“Proof under this tort must exceed a rigorous benchmark.” Estate of
Johnson by and through Johnson, 898 N.W.2d at 726 (internal citation
omitted). “For conduct to be ‘outrageous,’ it must be so extreme in degree as
to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Id. (internal citation
omitted). “The extreme and outrageous character of the conduct may arise
from the actor’s knowledge that the other is particularly susceptible to
emotional distress by reason of some physical or mental condition or
peculiarity.” Ruane v. Murray, 380 N.W.2d 362, 364 (S.D. 1986) (citing
Restatement (Second) of Torts § 46, Comment f (1965)). “The requirement that
the conduct be extreme and outrageous reflects [the South Dakota Supreme
39

Court’s] concern with the difficulties surrounding proof of the existence of
severe emotional harm, and proof of a causal relationship between the injury
and the defendant’s conduct. If the conduct is gross and extreme it is more
probable that the plaintiff did, in fact, suffer the emotional distress alleged.”
Tibke v. McDougall, 479 N.W.2d 898, 907 (S.D. 1992). The South Dakota
Supreme Court applies this standard because “the requirement of extreme and
outrageous conduct as a condition of recovery will avoid litigation ‘in the field of
bad manners, where relatively minor annoyances had better be dealt with by
instruments of social control other than law.’ ” Id. (internal citation omitted).
“The question whether the defendant’s conduct was extreme and
outrageous is initially for the trial court.” Estate of Johnson by and through
Johnson, 898 N.W.2d at 726 (internal citation omitted). See also Tibke,
479 N.W.2d at 907 (“The determination of outrageous conduct by the
defendant is initially for the court.”); Christensen v. Quinn, 45 F. Supp. 3d
1043, 1091 (D.S.D. 2014) (“Whether conduct is ‘extreme enough to permit
recovery’ is a question of law.”) (citing Reeves v. Reiman, 523 N.W.2d 78, 83
(S.D. 1994)).
“The tort of intentional infliction of emotional distress requires no proof
of physical injury or actual pecuniary loss.” Henry v. Henry, 604 N.W.2d 285,
288 (S.D. 2000). The conduct must, however, be “calculated to cause, and
does cause, mental distress of a very serious kind.” Tibke, 479 N.W.2d at 907
(internal citation omitted). “It has not been enough that the defendant has
40

acted with an intent which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that his conduct has been characterized by
‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort.” Christensen, 45 F. Supp. 3d at 1091 (citing
Restatement (Second) of Torts § 46 cmt. d (1965)).
Joyce asserts Bennett County’s “conduct was extreme and outrageous.”
(Docket 27 at p. 14). The court already found Joyce’s request for an
accommodation was not reasonable. 32 The undisputed facts articulated
earlier in this order do not comport with Joyce’s argument that Bennett County
“obstructed [her] attempts to even get on the board meeting agenda.” 33
Finally, the court concluded Bennett County’s resistance to Joyce’s
unemployment claim was neither unreasonable nor a violation of the ADA. 34
The court finds that reasonable minds could not differ and as a matter of
law the decisions of Bennett County were neither extreme nor outrageous
conduct nor was the conduct “calculated to cause . . . mental distress of a very
serious kind.” Tibke, 479 N.W.2d at 907. See also Christensen, 45 F. Supp.
3d at 1091 (defendant’s “actions, while questionable, possibly tortious, and
found by [a magistrate judge] to be unconstitutional, do not go beyond all

Supra, at p. 29.

32

Compare, supra, at p. 16-17 and Docket 27 at p. 14.

33

Supra, at p. 38.

34

41

possible bounds of decency. The rigorous benchmark has not been met in this
case, and all defendants are entitled to summary judgment on [the intentional
infliction of emotional distress claim].”); Groseth International,
Inc., v. Tenneco, Inc., 410 N.W.2d 159, 169 (S.D. 1987) (“The trial court did not
find any evidence of unreasonable conduct by [defendant] or any evidence that
[defendant’s conduct] was intended or calculated to cause any mental
distress.”).
Bennett County is entitled to summary judgment on Joyce’s intentional
infliction of emotional distress claim. Count IV of plaintiffs’ complaint is
dismissed.
III.

ALFRED’S CLAIMS
1. THIRD-PARTY RETALIATION
Count V of plaintiffs’ complaint asserts a third-party retaliation claim

against Bennett County because it terminated Alfred “as a means of further
retaliation against Joyce[.]” (Docket 1 ¶ 126). Alfred alleges Bennett County
violated his “rights under 42 U.S.C. § 12203[a] 35 and S.D.C.L. § 20-13-26.”
Id. ¶ 127.
Under the participation clause of the ADA, an employer is prohibited
from discriminating against an individual who has “assisted, or participated in
any manner in an investigation, proceeding, or hearing under this chapter.”
The court believes plaintiffs intended to reference 42 U.S.C. § 12203(a),
the participation clause of the ADA.
35

42

42 U.S.C. § 12203(a). “[T]he purpose of Title VII is to protect employees from
their employers’ unlawful actions.” Thompson v. North American Stainless,
LP, 562 U.S. 170, 178 (2011). “[A] plaintiff may not sue unless he falls within
the ‘zone of interests’ sought to be protected by the statutory provision whose
violation forms the legal basis for his complaint.” Id. at 177 (internal
quotation marks and citation omitted). The Court “described the ‘zone of
interests’ test as denying a right of review if the plaintiff’s interests are so
marginally related to or inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the
suit.” Id. at 178 (internal quotation marks and citation omitted). “We hold
that the term ‘aggrieved’ in Title VII incorporates this test, enabling suit by any
plaintiff with an interest arguably sought to be protected by the statute . . .
while excluding plaintiffs who might technically be injured in an Article III
sense but whose interests are unrelated to the statutory prohibitions in Title
VII.” Id. at 178-179 (internal quotation marks, brackets and citation omitted).
The EEOC “counsels that Title VII ‘prohibits retaliation against someone
so closely related to or associated with the person exercising . . . her statutory
rights that it would discourage or prevent the person from pursuing those
rights.’ ” Id. at 179 (J. Ginsberg, concurring) (quoting EEOC Compliance
Manual § 8–II(C)(3) (1998) (internal reference omitted). “Such retaliation ‘can
be challenged . . . by both the individual who engaged in protected activity and
the relative, where both are employees.’ ” Id. (quoting Compliance Manual
§ 8–II(B)(3)(c) (internal reference omitted).
43

“At a minimum there would have to be factual allegations of
discrimination against a member of a protected group and the beginning of a
proceeding or investigation under Title VII.” Brower v. Runyon, 178 F.3d
1002, 1006 (8th Cir. 1999). “An inference of retaliatory motive may be
supported by evidence that the defendant was aware of protected activity and
that the date of the adverse employment action closely followed such activity.”
Id. The retaliation clause exists to “protect proceedings and activities which
occur in conjunction with or after the filing of a formal charge with the
[EEOC].” EEOC v. Total Systems Services, 221 F.3d 1171, 1174 (11th Cir.
2000). See also Hatmaker v. Memorial Medical Center, 619 F.3d 741 (7th Cir.
2010):
The participation clause prohibits retaliation against an employee
who has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under Title VII.
A purely internal investigation does not involve a charge, or
testimony, and neither is it a proceeding or a hearing. To bring an
internal investigation within the scope of the clause we would have
to rewrite the statute. We therefore join the courts that interpret
the participation clause as being limited to official investigations.
Id. at 747 (internal quotation marks omitted) (referencing Total System
Services, Inc., 221 F.3d at 1174; Brower, 178 F.3d at 1006; Vasconcelos v.
Meese, 907 F.2d 111, 113 (9th Cir. 1990)).
A plaintiff may assert a claim for retaliation even where the underlying
claim for disability discrimination fails. All that is required is that Joyce held

44

a good faith belief that her requested accommodation was appropriate. Heilser
v. Metropolitan Council, 339 F.3d 622, 632 (8th Cir. 2003).
“The plaintiff’s ultimate burden in a Title VII retaliation case is to prove
an impermissible retaliatory motive was the ‘but-for cause’ of the adverse
employment action.” Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th
Cir. 2017) (citing University of Texas Southwestern Medical Center, 570 U.S. at
360 (“Title VII retaliation claims must be proved according to traditional
principles of but-for causation . . . . This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer.”). “[T]emporal proximity serves as . . . strong
evidence of causation . . . .” Id. at 741.
Bennett County argues Alfred acknowledged only engaging in two
activities to assist Joyce in her first charge of discrimination. (Docket 21 at
p. 38-40). According to Bennett County those were: (1) taking pictures of the
doors at Bennett County, which Joyce was accused of slamming on her way
out of a meeting of the Board of Directors of Bennett County; and (2) attending
Joyce’s unemployment benefits hearing. Id. at p. 38.
Alfred submits he “has presented sufficient facts in the record to
demonstrate that he participated in a protected activity.” (Docket 27 at p. 16).
Alfred argues “[h]e assisted Joyce with her attempts to have [Bennett County]
accommodate Joyce’s disability.” Id. The conduct Alfred identifies within his
course of “protected activity” was: delivering letters to the Bennett County
45

board members; taking pictures of the doors; trying to persuade Bennett
County to allow Joyce to return to ambulance duty after her termination; and
assisting Joyce with her unemployment benefits claim. Id. Alfred asserts
because he was fired “within a matter of weeks,” this “temporal proximity tends
to show his termination was caused by his participation in a protected activity
rather than legitimate reasons.” Id.
From the undisputed factual summary above, Alfred’s activities related to
Joyce’s ADA discrimination claim were the following: 36
On January 13, 2015, Alfred delivered Joyce’s accommodation
request together and the completed medical inquiry form to CEO
Martin. (Docket 1 ¶ 48).
On March 2, 2015, Alfred delivered copies of Joyce’s termination
grievance appeal to the members of the Board of Directors of
Bennett County. Id. ¶ 66.
On March 11, 2015, Alfred delivered to CEO Martin an envelope
addressed to “whom it may concern,” containing Joyce’s appeal of
her termination. (Dockets 1 ¶ 72 & 6 ¶ 72). Alfred also e-mailed
CEO Martin asking her to reconsider the decision to not permit
Joyce to work as an EMT on the ambulance crew. (Docket 1
¶ 73).

36On

February 26, 2015, Joyce appeared at a meeting of the Bennett
County Board of Directors. (Dockets 1 ¶ 62 & 6 ¶ 62). When instructed to
follow the proper grievance procedure Joyce stormed out of the room, slamming
the door. (Docket 1 ¶ 59). Albert later took pictures of the door to show that
anyone could be accused of slamming the door because it closed so easily. It
is unclear when this activity occurred or how Alfred believes it is related to
Joyce’s ADA claim. Taking these photographs does not rise to the level of
proof of his assistance to Joyce or his participation in her ADA discrimination
claim. Thompson, 562 U.S. at 178.
46

Joyce filed her first Charge of Discrimination on March 11, 2015, with
SDDHR. While an employee of Bennett County, Alfred’s activities undertaken
to support his wife do not rise to the level of assistance or participation
contemplated by § 12203(a). These de minimus activities and Alfred’s interest
in supporting Joyce are “so marginally related to or inconsistent with the
purposes implicit in [42 U.S.C. §12203(a)] that it cannot reasonably be
assumed that Congress intended to permit” him to assert a retaliation claim on
these facts. Thompson, 562 U.S. at 178.
Alfred’s support of Joyce after March 11, 2015, does not fare any better.
On March 19, 2015, Alfred met with CEO Martin and HR Director Peil. Alfred
asked if Joyce could continue to work for the Bennett County ambulance
service. This single conversation is only marginally related, at best, to Joyce’s
ADA claim and “it cannot reasonably be assumed that Congress intended to
permit” him to assert a retaliation claim based on this isolated fact. Id.
While Alfred’s conversation with CEO Martin and HR Director Peil
occurred after Joyce’s Charge of Discrimination, his effort to get Joyce at least
partial re-employment is far removed from his termination on June 2, 2015.
Alfred fails to satisfy his burden at this stage to show that his single
conversation with these Bennett County officials was the “but-for cause” of his
termination. Donathan, 861 F.3d at 739.
Alfred’s third-party retaliation claim fails for another reason. The
justification for Alfred’s termination on June 2, 2015, according to Bennett
47

County included: substandard performance, insubordination, not following the
proper chain of command, overstepping the scope of his practice or authority
and past unauthorized use of the ambulance for personal errands. Because
Bennett County has shown legitimate reasons for terminating Alfred, he “must
show that the given reason[s were] only a pretext for discrimination.” Green,
459 F.3d at 914.
The court is required to “keep in mind that ‘[f]ederal courts do not sit as
a super-personnel department that reexamines an entity’s business decisions
. . . . Rather, [the court’s] inquiry is limited to whether the employer gave an
honest explanation of its behavior.’ ” Wilking v. County of Ramsey, 153 F.3d
869, 873 (8th Cir. 1998) (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968,
973 (8th Cir. 1994)). In this process,
[The] trial judge is allowed to decide on a motion for summary
judgment that the evidence is insufficient for a reasonable trier of
fact to infer discrimination even though the plaintiff may have
created a factual dispute as to the issue of pretext. . . . To
demonstrate pretext, a plaintiff must present sufficient evidence to
demonstrate both that the employer’s articulated reason for the
adverse employment action was false and that discrimination was
the real reason. . . . This burden will not be met by simply showing
that the reason advanced by the employer was false; rather, [the
plaintiff] must demonstrate that a discriminatory animus lies
behind the defendants’ neutral explanations. . . . Specifically, the
plaintiff must do more than simply create a factual dispute as to the
issue of pretext; he must offer sufficient evidence for a reasonable
trier of fact to infer discrimination.
Id. at 874 (internal citations and quotation marks omitted) (emphasis in
original).

48

“[M]ore substantial evidence of discrimination is required to prove
pretext, because evidence of pretext is viewed in the light of [the employer’s]
legitimate, non-discriminatory explanation.” Jones v. United Parcel Service,
Inc., 461 F.3d 982, 992 (8th Cir. 2006). “To succeed at this stage . . .
plaintiff[] must prove the prohibited reason was a determinative factor in [the
employer’s] decision . . . .” Id.
Alfred fails to show pretext. He acknowledges Bennett County had
reason to be concerned he was not available by cell telephone service on a
24-hour basis and that his ambulance trips far exceeded the reasonable time
period required to transport a patient from Martin, South Dakota, to Rapid
City, South Dakota. Further, Bennett County’s assertion Alfred overstepped
his authority with the medical staff providing health care to patients requiring
ambulance transportation to other facilities is unchallenged.
The period between the March 19 conversation and his termination on
June 2 also diminishes the probability that the two events were connected.
See Kipp v. Missouri Highway & Transportation Commission, 280 F.3d 893,
897 (8th Cir. 2002) (“[T]he interval of two months between the complaint and
[plaintiff’s] termination so dilutes any inference of causation that we are
constrained to hold as a matter of law that the temporal connection could not
justify a finding [of causation].”) (some brackets omitted); Brower, 178 F.3d at
1007 (Plaintiff “failed to offer evidence sufficient to support a finding of a causal

49

connection between this visit and the subsequent adverse employment
action.”).
Alfred’s third-party retaliation claim fails as a matter of law.
Defendant’s motion for summary judgment on count V is granted. Count V of
plaintiffs’ complaint is dismissed.
2. RETALIATION
Count VI of plaintiffs’ complaint alleges Bennett County “unlawfully
retaliated against [Alfred] when it terminated his employment because he
assisted and encouraged Joyce . . . in her efforts to enforce her rights
[guaranteed by the ADA and the South Dakota Human Relations Act].”
(Docket 1 ¶ 130). Alfred’s count VI retaliation claim differs from his thirdparty retaliation claim in that count VI is based on 42 U.S.C. § 12203(b). Id.
at 131. That section provides that it is “unlawful to coerce, intimidate,
threaten, or interfere with any individual in the exercise or enjoyment of, or on
account of his . . . having exercised or enjoyed, or on account of his . . . having
aided or encouraged any other individual in the exercise or enjoyment of, any
right granted or protected by this chapter.” 42 U.S.C. § 12203(b).
“A plaintiff alleging an interference claim under [§ 122023(b)] must show
that 1) [Alfred] engaged in activity statutorily protected by the ADA; 2) [Alfred]
engaged in, or aided or encouraged [Joyce] in, the exercise or enjoyment of ADA
protected rights; 3) [Bennett County] interfered on account of [Alfred’s]
protected activity; and 4) [Bennett County was] motivated by an intent to
50

discriminate.” CRST Int’l, Inc., 351 F. Supp. 3d at 1181 (referencing Frakes v.
Peoria School District No. 150, 872 F.3d 545, 550-51 (7th Cir. 2017) (citations
omitted)).
It is not necessary for Joyce to have prevailed on her ADA claim for Alfred
to be protected under § 12203(b), “as long as she had a good faith belief that
. . . [her] accommodation [request] was appropriate.” Heilser, 339 F.3d at 632.
For purposes of analysis of Alfred’s retaliation claim, the court presumes that
Joyce was engaged “in the exercise . . . of [her] ADA protected rights.” CRST
Int’l, Inc., 351 F. Supp. 3d at 1181.
For the same reasons articulated in analyzing Alfred’s third-party
retaliation claim, his retaliation claim fails. His single conversation with CEO
Martin and HR Director Peil is only marginally related to Joyce’s ADA claim
and “it cannot reasonably be assumed that Congress intended to permit” him
to assert a retaliation claim based on this isolated fact. Thompson, 562 U.S.
at 178. No reasonable factfinder could conclude this isolated conversation
constituted support of Joyce’s ADA accommodation request. Additionally,
Alfred has not shown this conversation was temporally connected with his
termination three months later. Kipp, 280 F.3d at 897.
Alfred’s retaliation claim under § 12203(b) fails as a matter of law.
Defendant’s motion for summary judgment on count VI is granted. Count VI
of plaintiffs’ complaint is dismissed.

51

IV.

SOUTH DAKOTA ANTI-DISCRIMINATION CLAIMS
Plaintiffs’ complaint generally cites South Dakota’s Human Rights Act

(“SDHRA”), S.D.C.L. Chap. 20-13, as an additional basis in support of their
claims. (Docket 1 p. 1). Other than this introductory reference, Joyce’s
causes of action do not reference S.D.C.L. Chap. 20-13. Id. ¶¶ 110-122.
Alfred’s retaliation claims specifically reference S.D.C.L. 20-13-26. Id. ¶¶ 127
& 131. Plaintiffs’ brief in resistance to defendant’s motion for summary
judgment does not address S.D.C.L. Chap. 20-13. See Docket 27.
The South Dakota Supreme Court instructs that discrimination claims
are to be analyzed under the same framework as claims under Title VII. Huck
v. McCain Foods, 479 N.W.2d 167, 169-70 (S.D. 1991). See also Alexander v.
Avera St. Luke’s Hospital, 768 F.3d 756, 765 (8th Cir. 2014) (“In interpreting
the SDHRA, the South Dakota Supreme Court has followed federal court
decisions construing analogous federal anti-discrimination statutes.”)
(referencing Huck, 479 N.W.2d at 169-70). Because plaintiffs’ state claims are
premised on the same factual bases as their ADA claims, the court resolves
plaintiffs’ SDHRA claims in the same manner as their ADA claims.
ORDER
Based on the above analysis, it is
ORDERED that defendant’s motion for summary judgment (Docket 20) is
granted in part and denied in part.

52

IT IS FURTHER ORDERED that count I of plaintiffs’ complaint, Failure to
Accommodate, is dismissed with prejudice.
IT IS FURTHER ORDERED that defendant’s motion for summary
judgment as to count II of plaintiffs’ complaint, Retaliatory Discharge, is
granted in part and denied in part. Joyce’s claim for compensatory and
punitive damages on this claim is dismissed. Joyce’s right to relief, if the
claim is proven at trial, is limited to reinstatement and back pay. Count II to
be resolved by a court trial.
IT IS FURTHER ORDERED that count III of plaintiffs’ complaint,
Retaliation, is dismissed with prejudice.
IT IS FURTHER ORDERED that count IV of plaintiffs’ complaint,
Intentional Infliction of Emotional Distress, is dismissed with prejudice.
IT IS FURTHER ORDERED that count V of plaintiffs’ complaint, ThirdParty Retaliation, is dismissed with prejudice.
IT IS FURTHER ORDERED that count VI of plaintiffs’ complaint,
Retaliation, is dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiffs’ SDHRA claims are resolved in
the same manner as the corresponding ADA claims.
Dated March 31, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
53