The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants, Texas Roadhouse Management Corp. and Murray Welder, move for summary judgment. Plaintiff, Lisa Esser, opposes defendants' motion. For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part.
Viewed in the light most favorable to Esser, the nonmoving party, the facts are as follows:
Esser worked at the Texas Roadhouse in Sioux Falls as a service manager, and some of her duties included overseeing the hosts and wait-staff. Murray Welder was Esser's immediate supervisor and the manager of the Texas Roadhouse. Tom Scheel was the managers' supervisor.
The female employees of Texas Roadhouse routinely complained to Esser about Welder's behavior and comments. (Docket 38-2, Ex. 1 at 10.)
Esser also witnessed some of Welder's actions and heard some of his comments about the female employees. (Id. at 8-10.) On one occasion, Welder said that Esser needed to show more cleavage and proceeded to pull down Esser's shirt. (Id. at 10.)
On August 11, 2006, an employee, Cecelia Gerdes, complained to Esser about Welder's behavior, which included him repeatedly touching Gerdes's thigh with his hand. (Id. at 6.) On August 15, 2006, Esser went to Scheel and informed him of what she had been told. (Id. at 7.) Scheel fired Esser on August 18, 2006.
Esser filed a formal complaint with the Equal Employment Opportunity Commission on February 7, 2007. (Docket 49-9, Ex. G.) On October 12, 2007, Esser received her "Right to Sue" letter and filed suit in a timely manner. (Docket 49-12, Ex. J.)
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate 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. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
In determining whether a genuine issue for trial exists, the court applies the standard and burden associated with the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ("The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]").
While this case is before the court under Title VII of the Civil Rights Act of 1964, South Dakota substantive law applies to the ancillary state-law claims involving the South Dakota Human Relations Act, SDCL 20-13-1, et seq., intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and punitive damages because those causes of action arise under South Dakota law. See Witzman v. ...