Baker v. Davidson

Filing 91

ORDER granting 52 MOTION for SUMMARY JUDGMENT, Dismissing Counterclaim, and Denying Rule 11 Sanctions. All remaining motions in this case are dismissed as moot. Signed by U.S. District Judge Karen E. Schreier on 11/17/2022. (DJP)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
5:21-CV-05093-KES

WILLIAM RAY BAKER,
Plaintiff/Counter Defendant,
vs.
PAULETTE DAVIDSON, CEO/President
of Monument Health,
Defendant/Counter Claimant.

ORDER GRANTING SUMMARY
JUDGMENT FOR DAVIDSON ON
BAKER’S CLAIMS, DISMISSING
COUNTERCLAIM, AND DENYING
RULE 11 SANCTIONS

Plaintiff, William Ray Baker, filed a pro se lawsuit alleging unlawful
discrimination under Title VII of the Civil Rights Act of 1964 and under the
Americans with Disabilities Act of 1990 (ADA). Docket 1 at 3. Baker also alleges
retaliation in violation of the Fair Labor Standards Act (FLSA). Id. Defendant,
Paulette Davidson, moves for summary judgment on all claims, summary
judgment on her counterclaim of barratry, and Rule 11 sanctions. See Docket
23, 52, 53 at 18. In several filings to the court, Baker opposed summary
judgment and Davidson’s other motions. See Docket 58, 59, 60, 64, 77.
BACKGROUND
I.

Factual Background
Baker was employed by Rapid City Regional Hospital, the predecessor

affiliate to Monument Health (collectively, the Hospital), from approximately

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July 1, 1981 to November 7, 2016. Docket 54 at 1. 1 During his employment at
the Hospital, Baker worked “in various capacities, including as a custodian,
psychiatric aide, life coach, and psychiatric technician.” Id. (citation omitted).
Twice during his employment, once in November 2013 and again in December
2014, Baker suffered blows to the head when he was attacked by patients in
the psychiatric unit. Id. at 1-2. After the second attack, Baker experienced
various symptoms, including short-term memory deficits, and was off work
until early February 2015. Id. at 2.
Baker resumed work in February 2015 but again took leave in July of
2015 when his psychiatrist ordered him off work. Id. Baker never returned to
work for the Hospital. Id. After the Hospital determined that Baker exhausted
his available leave, including leave under the Family Medical Leave Act (FMLA)
and the ADA, the Hospital terminated his employment on November 7, 2016.
Id.
II.

Prior Lawsuits
Numerous legal proceedings followed Baker’s termination. See id. at 2-6.

The first of these proceedings began on November 8, 2016, when Baker filed
two small claims lawsuits. Id. at 2-3. One suit was against Janel Brown, the
Nursing Director at Regional health, alleging sexual orientation discrimination,
Because Baker did not object to Davidson’s Statement of Undisputed Material
Facts, the court bases its background summary on the Statement. See Docket
54. Under the local rules, “[a]ll 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.” D.S.D. L.R. 56.1(D). See also United States v. Morse, 2011 WL 197579 at
2 (D.S.D. Jan. 20, 2011).
1

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disability discrimination, and retaliation. Id. at 2. The other was against
Tristina Weekley, supervisor at Rapid City Regional Hospital, alleging sexual
orientation discrimination, disability discrimination, retaliation, and
conspiracy. Id. at 2-3. Both complaints were dismissed by Baker. Id.
On November 16, 2016, Baker filed a “Petition and Affidavit for a
Protection Order (Stalking, or Physical Injury as a Result of an Assault, or a
Crime of Violence)” against Comet Harldson, an attorney working for the
Hospital. Id. at 3. Judge Robert Gusinksy dismissed the complaint on
December 6, 2016, when Baker failed to appear at a hearing. Id. Baker did not
appeal. Id.
On November 21, 2016, Baker filed a small claims lawsuit alleging
discrimination, harassment, exploitation, and retaliation against Judith
Warnke, an employee of the Hopsital. Id. Baker dismissed this suit on January
13, 2017 and did not appeal the dismissal. Id.
On November 22, 2016, Baker sued Paula McInerney Hall, in-house
counsel for the Hospital, alleging abuse and neglect, hardship to a disabled
individual, exploitation, deceit, and failure to assist in criminal prosecutions.
Id. Baker dismissed the suit on January 13, 2017 and did not appeal the
dismissal. Id.
Also on November 22, 2016, Baker filed a small claims lawsuit against
Brent Phillips, who was then the CEO of the Hospital. Id. The suit alleged
fraud, deceit, harassment, discrimination against a disabled adult, life
endangerment, and abuse and neglect of a disabled individual. Id. at 3-4.
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Baker dismissed the suit on January 4, 2017 and did not appeal the dismissal.
Id. at 4.
On November 29, 2016, Baker filed again for a protection order against
Comet Haraldson. Id. Judge Gusinsky denied and dismissed the petition the
same day, finding that there did not exist sufficient grounds for relief. Id. Baker
did not appeal. Id.
On March 14, 2017, Baker filed a small claims lawsuit against Maureen
Henson, a human resources officer, alleging violations of the FMLA. Id. Judge
Jeff Connolly dismissed the suit on May 2, 2017, when Baker failed to appear
at a status hearing. Id. Baker did not appeal the dismissal. Id.
On April 6, 2017, Baker filed a complaint in federal district court that
named thirteen individuals who were employed by or affiliated with the
Hospital. Id. The complaint alleged violations of the Health Insurance
Portability and Accountability Act, the Occupational Safety and Health Act, and
the National Labor Relations Act, and intentional infliction of emotional
distress. Id. at 5. On February 9, 2018, Judge Jeffrey Viken dismissed the
complaint via a written opinion and order. Id. Baker did not appeal the
dismissal. Id.
On June 30, 2017, Baker again filed suit in federal court. Id. This suit
was brought against four individuals affiliated with the Hospital, two lawyers
representing the Hospital, and two persons of unknown affiliation. Id. Baker
alleged discrimination under Title VII, the ADA, the Genetic Information
Nondiscrimination Act, and the Age Discrimination in Employment Act of 1967,
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and retaliation for filing federal complaints. Id. On February 9, 2018, Judge
Viken dismissed this complaint. Id. Baker did not appeal the dismissal. Id.
On July 14, 2017, Baker filed a suit in federal court naming 29
Defendants, 23 of whom were affiliated with the Hospital. Id. The suit asserted
multiple claims arising under federal law, in addition to various state-law
claims. Id. Judge Viken dismissed the complaint on February 9, 2018. Id. at 6.
Baker did not appeal the dismissal. Id.
On September 8, 2021, Baker filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC), complaining of
discrimination on the basis of sex (sexual orientation), disability, and
retaliation. Id.; Docket 1-1 at 35-38. The EEOC dismissed the charge on
September 23, 2021. Id. at 1; Docket 54 at 6.
III.

Instant Dispute
Baker filed the instant action on December 17, 2021. Docket 1. Because

Baker commenced this action pro se, the court construes his complaint
liberally, because “pro se litigants are held to a lesser pleading standard than
other parties.” Gerstner v. Sebig, LLC, 386 Fed. App’x. 573, 575 (8th Cir. 2010)
(internal quotations omitted) (quoting Whitson v. Stone County Jail, 602 F.3d
920, 922 n.1 (8th Cir. 2010)). Applying this standard to Baker’s filing, the court
finds that he has made three claims against Davidson. 2 See Docket 1 at 1-4.

Baker has filed several motions to amend his complaint. See Docket 5, 49,
50, 66. Because the court cannot discern what aspects of the complaint Baker
seeks to change from most of these filings, the court considers only the
complaint as amended by Docket 5.
2

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The first claim alleges discrimination under the Title VII. Id. at 3. The second
claim alleges discrimination under the ADA. Id. The third claim alleges
retaliation in violation of FLSA. Id.
SUMMARY JUDGMENT
Davidson moves for summary judgment under Fed. R. Civ. P. 56. Docket
52. Davidson argues that Baker’s claims are untimely, that Baker has failed to
demonstrate a legal and factual basis for each of his claims, and that Baker’s
claims are barred by res judicata. Docket 53 at 9, 11, 13, 14. Baker opposes
the motion. See Docket 58.
I.

Legal Standard
“Summary judgment is proper when the movant shows that there is no

genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” RSA 1 Ltd. P’ship v. Paramount Software Assocs.,
Inc., 793 F.3d 903, 907 (8th Cir. 2015) (citing Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). “The moving party has the
burden to establish both the absence of genuine issue of material fact and that
it is entitled to judgment as a matter of law.” Boyer v. Scott Bros. Inv. Corp.,
2013 WL 772874 at *1 (D. Mo. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986)). The court views the record in a light most favorable
to the nonmoving party. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
"To survive a motion for summary judgment, the nonmoving party must
substantiate his allegations with sufficient probative evidence that would
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permit a finding in his favor based on more than mere speculation, conjecture,
or fantasy.” Boyer, 2013 WL 772874 at *2 (D. Mo. 2013) (cleaned up). “A
plaintiff may not merely point to unsupported self-serving allegations, but must
substantiate allegations with sufficient probative evidence that would permit a
finding in the plaintiff’s favor.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638
(8th Cir. 2005). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the
factfinder could reasonably find for the plaintiff.” Turner v. XTO Energy, Inc.,
989 F.3d 625, 627 (8th Cir. 2021) (cleaned up) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)).
II.

Timeliness
A. Discrimination Claims
Davidson argues that Baker’s claims of discrimination under Title VII

and under the ADA are time barred because he did not file his claims with the
EEOC during the statutory period. Docket 53 at 9-11. “Title VII requires that
before a plaintiff can bring suit in court to allege unlawful discrimination, []he
must file a timely charge with the EEOC or a state or local agency with
authority to seek relief.” Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850
(8th Cir. 2012) (citation omitted). Under 42 U.S.C. § 2000e-5(e)(1) and 42
U.S.C. §12117(a), claims under Title VII and under the ADA must be filed with
the EEOC within 180 days of the alleged discrimination. If the complainant
files first with a state agency analogous to the EEOC, then the time to file is
extended to 300 days. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. §12117(a).
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But failure to timely file is not an absolute bar to relief. See Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). “[F]iling a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite to suit in
federal court, but a requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling.” Id. “The party who is claiming the
benefit of an exception to the operation of a statute of limitations bears the
burden of showing that he is entitled to it.” Wollman v. Gross, 637 F.2d 544,
549 (8th Cir. 1980).
To determine whether Baker’s filing was timely, the court must first
determine the date of the alleged discrimination. Baker does not clearly allege
the discriminatory incident in his complaint. See Docket 1. But two dates
appear relevant. First is November 7, 2016, the date on which Baker was
discharged. Docket 54 at 2. Second is September 7, 2021, the date on which
Baker signed his EEOC complaint and at which time he alleged that
discrimination was ongoing. Docket 1-1 at 36. The nature of the discrimination
occurring on September 7, 2021 is opaque, but Baker gestures to “retaliat[ion]
against [himself] for filing [f]ederal [c]omplaints.” Docket 1 at 3. Liberally
construing the filings in favor of Baker, the court assumes that November 7,
2016 is the date relevant for Baker’s claims of discrimination under Title VII
and under the ADA, with his termination being the adverse employment action.
The court further construes September 7, 2021 to be the relevant date for
Baker’s claim of ongoing FLSA retaliation, but not for his discrimination
claims. Because November 7, 2016 is more than 300 days before September 7,
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2021, Baker was untimely in filing his EEO complaint as to his discrimination
claims even under the extended timeline. See 42 U.S.C. § 2000e-5(e)(1).
Though untimeliness is not a jurisdictional bar, Baker does not state a
reason as to why the court should waive the requirement in this case. See
Zipes, 455 U.S. at 393. Because Baker has not articulated grounds to justify
tolling of the filing deadlines for either of his discrimination claims, they are
untimely and Davidson is entitled to summary judgment on both counts.
But even if the court were to toll Baker’s filing deadlines on these claims,
Baker fails to allege a prima facia case of discrimination under either statute.
Discrimination claims under both Title VII and the ADA require that the
plaintiff be able to adequately perform the job at issue. Fields v. Shelter Mt. Ins.
Co., 520 F.3d 859, 864 (8th Cir. 2008) (finding that “meeting [the] employer’s
legitimate job expectations” is an essential element of discrimination under
Title VII); Denson v. Steak ‘n Shake, Inc., 910 F.3d 368, 370-71 (8th Cir. 2018)
(holding that a plaintiff alleging discrimination under the ADA show that he is
“able to perform the essential job functions, with or without reasonable
accommodation.”) (citation omitted). Baker at no point alleges that he is
qualified to perform the position from which he was dismissed. Rather, Baker’s
filings indicate that he believes himself unable to perform any work. See, e.g.,
Docket 1-1 at 45 (asserting that Baker’s psychiatrist imposed work restrictions
allowing for no employment). Because Baker has failed to demonstrate this
essential element of discrimination, Davidson would be entitled to summary
judgment on these claims even if they were timely filed.
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B. Timeliness FLSA Retaliation Claim
Davidson also argues that Baker’s FLSA retaliation claim is barred due to
untimeliness. FLSA claims must be brought within two years of the alleged
wrongdoing, unless such wrongdoing was shown to be willful. 29 U.S.C.
§255(a). When a willful violation is present, then the statute of limitations is
extended to three years. Id. Davidson contends that the date at issue here is
November 7, 2016, the date of Baker’s termination. Docket 54 at 3. Under this
theory, even applying the more lenient three-year limitation, Baker’s claim
would be untimely because it was filed after November 7, 2019. Id. But Baker
alleges that the retaliation was ongoing, at least until the date of the EEOC
filing on September 8, 2021. Docket 1-1 at 36. The Eighth Circuit has held that
“ongoing discriminatory acts toll the statute of limitations under the FLSA.”
Redman v. U.S. West Business Resources, Inc., 153 F.3d 691, 695 (8th Cir.
1998). Construing the record in the light most favorable to Baker, the court
finds that Baker’s FLSA retaliation claim is not untimely because he filed
within two years of September 8, 2021. The court will next consider the merits
of the remaining claim.
III.

Merits of FLSA Retaliation Claim
Davidson argues that Baker does not sufficiently allege a factual basis for

all elements of the count. Docket 53 at 14. “To establish a prima facie case of
retaliation, [Baker] ha[s] to show that he participated in a statutorily protected
activity, that [Davidson] took an adverse employment action against him, and
that there was a causal connection between them.” Grey v. City of Oak Grove,
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Mo., 396 F.3d 1031, 1034-35 (8th Cir. 2005). Baker must provide specific
allegations, and “more than labels and conclusions[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “[A] formulaic recitation of the elements of
a cause of action will not do[.]” Id.
Baker repeatedly alleges, and the record supports, that he engaged in the
protected activity of filing federal complaints. See, e.g., Docket 71-1 at 5;
Docket 55-6. See also 29 U.S.C. § 215(a)(3) (prohibiting “discriminat[ion]
against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related to this
chapter”). Baker fails, however, to sufficiently articulate the second element of
retaliation, namely that an adverse employment action was taken against him.
Though Baker makes conclusory reference to retaliation, he does not describe
any specific action taken by Davidson. Baker’s employment at the Hospital
ended on November 7, 2016 and he does not allege any additional adverse
employment action that happened after that date but within the three-year
statute of limitations. Because the court needs “more than labels and
conclusions,” Baker’s statements are inadequate for a facial showing of FLSA
retaliation. Twombly, 550 U.S. at 555. Thus, his claim is dismissed.
IV.

Res Judicata
Given that Baker’s claims are dismissed on other grounds, the court

declines to consider whether they are also barred by res judicata.

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COUNTERCLAIM
Davidson also moves for summary judgment on her state-law
counterclaim for barratry. Docket 53 at 18. Davidson alleges that Baker’s filing
is both frivolous and malicious and, therefore, barred under South Dakota law.
Id. Baker does not clearly address the barratry claim in his filings.
Barratry is defined by S.D.C.L. § 20-9-6.1 as “the assertion of a frivolous
or malicious claim or defense or the filing of any document with malice or in
bad faith by a party in a civil action.” South Dakota courts have held that a
frivolous action is one where “the proponent can present no rational argument
based on the evidence or law in support of the claim.” Pioneer Bank & Trust v.
Reynick, 760 N.W.2d 139, 143 (S.D. 2009) (internal quotations omitted)
(quoting Citibank (S.D.), N.A. v. Hauff, 668 N.W.2d 528, 537 (S.D. 2003)). A
frivolous claim is not merely a losing claim, but one which “connotes an
improper motive or a legal position so wholly without merit as to be ridiculous.”
Id. (cleaned up). A malicious action “is begun in malice, and without probable
cause to believe it can succeed, and which finally ends in failure.” Id. (citation
omitted).
Before any consideration of the merits of Davidson’s counterclaim, the
court must first analyze its jurisdiction. “Federal courts are not courts of
general jurisdiction; they have only the power that is authorized by Article III of
the Constitution and the statutes enacted by Congress pursuant thereto.”
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). “The
threshold inquiry in every federal case is whether the court has jurisdiction,
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and the Eighth Circuit has admonished district judges to be attentive to a
satisfaction of jurisdictional requirements in all cases.” Sesseton-Wahpeton
Oyate v. U.S. Dept. of State, 659 F.Supp.2d 1071, 1076 (D.S.D. 2009) (citation
omitted). If jurisdiction does not exist, the claim must be dismissed. Fed. R.
Civ. P. 12(b)(1); (h)(3).
Because Davidson’s counterclaim rests on state law and because the
pleadings do not suggest that diversity jurisdiction exists, the court must look
to see if supplemental jurisdiction allows for the claim to proceed. See 28
U.S.C. §§ 1331-32; Docket 6 (not alleging diversity of the parties or the amount
in controversy). Under 28 U.S.C. §1367, supplemental jurisdiction exists “over
all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution.” § 1367(a). “Claims within the action are part
of the same case or controversy if they derive from a common nucleus of
operative fact.” Benchmark Ins. Co. v. SUNZ Ins. Co., 36 F.4th 766, 771 (8th Cir.
2022) (quoting Myers v. Richland Cty., 429 F.3d 740, 746 (8th Cir. 2005)). A
common nucleus of operative fact exists when the claims “are such that [a
party] would ordinarily be expected to try them all in one judicial proceeding.”
Id. (cleaned up).
In this case, the nucleus of operative fact concerns Baker’s employment
history and termination. See Docket 1 (alleging claims arising from employment
termination). Actions arising from this set of facts would be within the court’s
supplemental jurisdiction. Barratry actions, however, do not arise from the
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underlying source of the litigation, but instead arise from the litigation itself. As
this court has held before, “any state-law claim for barratry should be
dismissed without prejudice, because the barratry claim does not rely on the
same core set of facts.” Ferebee v. Smith, 2006 WL 3423903 at *14 (D.S.D. Nov.
28, 2006). “Rather, claims for barratry may well require inquiry into matters
not yet addressed in this case.” Id. In the present action, entertaining the
barratry claim would require the court to inquire into matters outside the
nucleus of operative fact, namely Baker’s history of court filings. The court
thus “decline[s] to exercise supplemental jurisdiction over the barratry claim[.]”
Id. See also Crest Const. II, Inc. v. Doe, 660 F.3d 346, 359 (8th Cir. 2011) (“A
district court’s decision whether to exercise that jurisdiction after dismissing
every claim over which it had original jurisdiction is purely discretionary.”
(quoting Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009)).
Davidson’s claim for barratry is dismissed without prejudice.
RULE 11 SANCTIONS
Davidson also moves for Rule 11 sanctions to be imposed on Baker in
the form of fines and a ban on further filing on this matter. Docket 24 at 1.
Davidson argues that sanctions are appropriate because Baker instigated the
instant suit to harass Davidson into quickly settling a related worker’s
compensation claim between the parties. Id. at 1.
Under Rule 11, sanctions may be imposed if a party pursues litigation for
an “improper purpose” such as “to harass, cause unnecessary delay, or
needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1). Rule 11 is
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permissive in its approach to sanctions, not mandatory; though the court may
impose them, if and when sanctions should be imposed is left to the discretion
of the court. See Cooter & Gell v. Hartmarx Corp., 110 S.Ct. 2447, 2458 (1990).
Given Baker’s pro se status, the court does not impose sanctions at this time. 3
Baker is warned, however, to proceed cautiously with any future filings.
Further meritless and frivolous suits may result in the imposition of sanctions.
See Fed. R. Civ. P. 11(c). Baker has already filed numerous suits on this topic,
as noted by the record, and should not file further suits in order to gain
advantage in collateral matters. Docket 54 at 2-6. Sanctions, if imposed, could
consist of “what suffices to deter repetition of the conduct” and may include
nonmonetary directives, as well as penalties and reasonable attorney’s fees.
Fed. R. Civ. P. 11 (c)(4).
CONCLUSION
Because Baker failed to properly allege any of his three claims and
because the court declines supplemental jurisdiction over Davidson’s
remaining counterclaim, it is
ORDERED that Baker’s claims against Davidson are dismissed with
prejudice and Davidson’s counterclaim is dismissed without prejudice. The

The court also does not impose sanctions on Davidson. Though Baker’s filings
contain both alleged grievances and an expressed desire for sanctions, at no
point does Baker identify with specificity a legal or factual basis for the
imposition of sanctions. See, e.g., Docket 27 at 8; Docket 28 at 6; Docket 67;
Docket 68.
3

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court does not impose Rule 11 sanctions at this time. Further, all other
pending motions in this case are dismissed as moot.
DATED November 17, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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