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Moberly v. Midcontinent Communication

May 7, 2010


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Defendant, Midcontinent Communication (Midcontinent), moves for summary judgment on plaintiff, Denise Moberly's, claims of sexual harassment and retaliation under Title VII. Moberly opposes the motion. The motion is granted in part and denied in part.


Viewed in the light most favorable to Moberly, the nonmoving party, the facts are as follows: Moberly was hired in April 2006 to be a Regional Sales Supervisor (RSS) for Midcontinent. The RSS position was new to Midcontinent. As an RSS, Moberly's duties included managing a team of account executives, some of whom sold cable television advertising and others of whom sold Business Solutions. Moberly was hired to be the RSS for Midcontinent's Sioux Falls office. During Moberly's interview, there was a specific discussion regarding the challenges of the team Moberly would manage. Midcontinent was aware that there were specific personality challenges on the team. Moberly understood that she would be overseeing a group of salespersons and that one of the challenges of her job would be dealing with different personalities.

Moberly's direct supervisor was Shawn Carolan, a general sales manager. From April 2006 to September 2006, Carolan reported to Dennis Kautz, who in turn reported to Mark Powell, the director of sales. In September 2006, Kautz was removed from the reporting chain so that Carolan reported directly to Powell. Both Carolan and Powell oversaw Moberly's work. Due to the newness of the RSS position, Carolan spent a lot of time training the new RSSes in other offices. While Carolan was out of the office, Kautz and Powell provided assistance and direction for Moberly in the Sioux Falls office.

Moberly received Midcontinent's employee handbook on her first day on the job. She was given a second copy of the employee handbook in January 2007. As a supervisor, Moberly had access to all of Midcontinent's policies, procedures, and handbooks. The employee handbook contained Midcontinent's sexual harassment policy. This policy states that an employee who has a complaint of discrimination, harassment, or inappropriate or offensive conduct by anyone, "must promptly bring the problem to the attention of [her] Supervisor, Department Head or one of" three specified persons at Midcontinent, including Debbie Stang, the director of employee services and the primary human resources contact for Midcontinent's Sioux Falls office. Docket 16, Ex. 8 at 4-5. The sexual harassment policy also provides that if the complaint involves someone in the employee's direct line of command, then the employee must bring the complaint to one of the three specified persons. Further, the policy provides, "Midcontinent will not retaliate against any employee who makes a good faith report of discrimination, harassment, or inappropriate or offensive conduct, or assists in or cooperates in an ensuing investigation. Nor will Midcontinent permit any employees to retaliate." Id. at 5. The sexual harassment policy also sets out the procedure by which an employee who disagrees with the results of an investigation may seek review of the investigation. Moberly received the sexual harassment policy but did not read it. She did not consult the sexual harassment policy before reporting that she was sexually harassed.

A few months after Moberly began working at Midcontinent, she began having romantic encounters with Powell. In August 2006, Powell kissed Moberly twice after a work event in Sioux Falls. Moberly agrees that the kisses were mutual and that at the time, she suffered no distress and did not feel like she was being harassed. She did not report the kissing to anyone at Midcontinent at the time because she believed it was mutual. After the contact in August, Moberly continued to have a good working relationship with Powell.

Later in August 2006, while on a business trip in Bismark, North Dakota, Powell touched Moberly's leg and invited her to his hotel room. They spent the night together in Powell's room. Moberly went to Powell's room because they had a mutual attraction. She was not forced to go and she did not go because Powell was her supervisor. At the time, Moberly did not feel that Powell's conduct constituted sexual harassment. Moberly did not report the events in Bismark to anyone at Midcontinent because she believed the contact was mutual.

No physical contact of a romantic nature occurred between Moberly and Powell from August 2006 to November 2006. During this time, Powell told Moberly that he found her attractive and flirted with her. Moberly admits that the attraction and flirting were mutual.

In November 2006, during a work-related trip to Minneapolis, Minnesota, Powell went to Moberly's hotel room. Moberly claims that Powell called her room, but admits that she invited him to her room. Moberly ordered two beers from room service at some point before Powell arrived at her room. No physical or sexual contact happened between Powell and Moberly, but they did discuss the nature and duration of their romantic relationship. Moberly told Powell that their mutual attraction could not go anywhere because Powell was not going to leave his wife and children. Moberly admits that until this conversation, the attraction between herself and Powell was mutual. At some point after this conversation, Moberly began to believe that all of her previous romantic contact with Powell was sexual harassment because of Powell's position as a supervisor.

After the conversation in Minneapolis, Moberly and Powell did not engage in any sexual touching. In December 2006, Powell made multiple comments to Moberly about being attracted to her and two comments that he wished he could spend the day in her office. Moberly does not recall Powell making any similar comments in January 2007. She does not know how many times Powell made comments of this type because she did not keep a diary of his statements. Moberly claims that these comments made her uncomfortable and created tension between her and Powell. She told Powell one or two times that his comment that he was attracted to her made her feel uncomfortable. She did not contact anyone at Midcontinent about Powell's comments. Moberly testified that these comments were the only conduct by Powell that made her uncomfortable in the post-November 2006 time period. There is no evidence that anyone at Midcontinent, including Carolan and Stang, was aware of Moberly's personal relationship with Powell.

Meanwhile, Moberly had issues managing her team of account executives. In late October or early November 2006, before Moberly and Powell's conversation in Minneapolis, Moberly reported to Powell that her team members were complaining about a rumored relationship between Carolan and Leigh Jerzak, an account executive on Moberly's team. Moberly told Powell that the way Carolan treated Jerzak was causing contention on Moberly's team. Moberly claimed that accounts were handed to Jerzak. Moberly also explained in her deposition that Carolan showed favoritism in his day-to-day interactions with Jerzak by telling her that she looked cute and had great shoes while not greeting the other employees. Moberly reported that she needed help with the situation.

The source of the rumor regarding Carolan's relationship with Jerzak is unclear. Moberly claims that Julie Van Overschelde, an account executive, had shared with the rest of the team that she believed Carolan and Jerzak were in a relationship based on what Van Overschelde saw at an off-site work social. No one told Moberly directly of the rumored relationship between Carolan and Jerzak; rather, Van Overschelde told the rest of the team, which created a morale problem. Van Overschelde later denied that she saw Carolan and Jerzak engaged in a personal relationship or told anyone at Midcontinent that she was uncomfortable about the behavior in which she had seen Carolan and Jerzak engage.

Moberly also claims that team members Annette Lewis, Cathy Mathison, Kim Burma, and Shanna Dirkson had information about the relationship between Carolan and Jerzak. There is no evidence in the record relating to Lewis or Mathison. Burma testified that Carolan and Jerzak had a social or personal relationship. She testified that she did not believe Jerzak got better treatment from Carolan, just different treatment. Burma testified that the rumor that Carolan and Jerzak kissed at a work function was disruptive to the team. Dirkson testified that she was aware of a rumor regarding Carolan and Jerzak, but did not think they were having an affair. Dirkson knew that other employees had complained to Moberly about Carolan's workplace behavior with Jerzak. Dirkson testified that Carolan and Jerzak's relationship was not a problem for her and that she did not think the rumor affected how the team worked together. Dirkson testified that she was upset because Carolan reported to her that Moberly had claimed that it was Dirkson who had contacted Moberly about the rumor. Dirkson denied calling Moberly and was upset that Carolan believed she had. Moberly did not ask Jerzak about her relationship with Carolan.

After Moberly reported the rumor to Powell, Powell approached Carolan with the information about the rumor, and Carolan held one-on-one meetings with each member of Moberly's team on November 7, 2006, through November 9, 2006. Stang was aware that Carolan would be conducting oneon-one meetings. She did not conduct an investigation regarding the rumor of a romantic relationship between Carolan and Jerzak. Moberly later told Stang that she felt good about the way Powell handled the situation and thought that it was prudent for Carolan to have one-on-one meetings. During Moberly's one-on-one meeting with Carolan, she informed him that the problems she had managing her team were related to Carolan's relationship with Jerzak.

Burma and Dirkson both discussed the rumored affair in their meetings with Carolan. After meeting with all of the members of Moberly's team, Carolan concluded that the rumored affair was not affecting the team. He concluded that the "affair concern seemed to be solely a Denise Moberly perception." Docket 23, Ex. 7 at 2.

Moberly faced more difficulties with her team in the time after Carolan's one-on-one meetings and Moberly's hotel room conversation with Powell in Minneapolis. On November 27, 2006, Jerzak sent an email to Stang and Carolan setting out certain complaints about Moberly. Jerzak indicated that a client reported to Jerzak that Moberly had been rude to him on the telephone regarding the client's request to have Jerzak as an account executive.

On December 4, 2006, Carolan issued a written warning to Moberly instructing her that she was not permitted to display any type of favoritism when dealing with account executives on her team. This was the first written warning Moberly received regarding her work performance. Carolan had orally discussed some issues regarding Moberly's communication and supervision, but he did not document his concerns at the time. Powell reviewed and approved of the written warning. Moberly asserts that Powell had input into the warning.

Moberly admits that the facts set forth in the warning were accurate and admits that she engaged in unprofessional conduct by displaying favoritism toward a particular account executive when dealing with one of Midcontinent's customers. But Moberly claims that the situation was escalated by Powell telling Carolan that Moberly had complained about Carolan's rumored relationship with Jerzak. Midcontinent denies that Carolan issued the warning because Moberly complained about his rumored relationship and further denies that Carolan was angry at Moberly. Rather, Midcontinent asserts that Carolan was angry at Dirkson, who he believed started the rumor of the affair.

On or about December 19, 2006, Carolan issued Moberly's annual performance evaluation. Carolan's review of Moberly's performance was negative. Carolan indicated that Moberly had personality conflicts with management, peers, subordinates, and customers. Carolan also indicated that Moberly had not treated all of the members of her team with equality and fairness, creating a perception of favoritism. Moberly's performance evaluation also stated that she was to attend a minimum of one appointment per week with each account executive and that she was to provide a weekly report of the appointments she attended. Moberly was not timely in providing these reports to Carolan. The performance evaluation also stated that Moberly was to complete tasks and meet deadlines as established by management. She was not timely on these goals. Under Midcontinent policy, if an employee believes her review is unfair or inaccurate, she may file a grievance with Stang within five days of reviewing the evaluation with her supervisor. Moberly did not file a grievance regarding her performance evaluation.

Carolan drafted Moberly's performance evaluation, and Powell reviewed and approved it. Powell did not recommend any substantive changes to the evaluation. The evaluation was what Powell expected. Carolan testified that the evaluation was based on his own personal observations and conclusions as Moberly's direct supervisor. There is no evidence that Carolan knew about Moberly's relationship with Powell or that Moberly was having difficulty in her relationship with Powell when Carolan prepared the evaluation.

In early February 2007, Carolan told Moberly that he had seen an improvement in her attitude and stress level, but that this did not change the way things were going regarding her performance. Moberly believed that Carolan thought her performance had improved and that she was off the disciplinary warning at this time. Carolan did not document this meeting.

In mid-February 2007, Carolan informed Moberly that she would not receive a bonus. Carolan told Moberly that he had about "fallen off his chair" when Powell told him that Moberly would not be getting a bonus. Powell told Moberly and Carolan that Moberly would not receive a bonus because of the written warning and performance issues. Under Midcontinent's bonus policy, employees with unsatisfactory performance reviews are not eligible for a bonus. Moberly was the first employee supervised by Carolan who had not received a bonus. She was also the first employee who had received a written warning or an unacceptable performance evaluation. Moberly was upset that she would not be receiving a bonus and asked Powell if she could talk to Stang.

Later in February 2007, Carolan recommended to Powell and Stang that Moberly be terminated for lack of improvement in her performance. Carolan had to obtain Powell's approval to terminate Moberly, and Powell gave his approval. Moberly asserts that Powell had input into Carolan's recommendation. It is undisputed that Powell drafted the termination ...

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