The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' SUMMARY JUDGMENT MOTION
Plaintiff, Rachel A. Kopman, brought suit against defendants, City of Centerville and Jay Ostrem in his individual and official capacities, alleging a hostile work environment and retaliation in violation of 42 U.S.C. § 1983 and SDCL 20-13-10. Kopman seeks compensatory and punitive damages. Defendants move for summary judgment on all of Kopman's claims, which Kopman resists. Defendants' motion is denied in part and granted in part.
In the light most favorable to Kopman, the nonmoving party, the pertinent facts to this order are as follows:
Centerville is a small town located in Turner County, South Dakota. Centerville is governed by an elected mayor and a six-person elected city council. In 2008, Centerville advertised for a chief of police. Kopman, who at the time worked for the City of Sioux Falls as a law enforcement officer, applied for the position.
Centerville hired Kopman as its chief of police on June 2, 2008. At that time, Val Fischer was Centerville's mayor and Ostrem was on Centerville's City Council (Council). The Council voted 5-0 to hire Kopman. Ostrem, a former law enforcement officer with 30 years of experience and an investigator with the Turner County sheriff's office, and other Centerville officials declared that Kopman was the most qualified candidate. Ostrem became Centerville's mayor in April of 2009.
In late June of 2008, Ostrem began making comments to Kopman that she felt were sexually inappropriate. These comments continued until about September of 2009.
Ostrem saw Kopman two to three times a week and, when he saw her, he made sexually inappropriate comments to her. Ostrem often commented on Kopman's body. For example, in the first few weeks of her job, Kopman did not have a uniform; instead, she wore a white T-shirt and jeans. Ostrem told Kopman he liked how her "large boobs" looked in her white shirt, how her "butt" or "a**" looked in her jeans, and that he could almost see her panties. Ostrem told Kopman that her hair had a "wild, sexy look," or some similar phrase. He stated that if she batted her eyes, she could get the Council and other men to do whatever she wanted. Ostrem referred to Kopman as the "hot mama cop" and "hot cop." He commented on how she dressed and, once she received her uniform, often told her that she looked good in her uniform or that she made the uniform look good.
Ostrem also discussed Kopman's boyfriend at the time, Jerry James, with her. Ostrem told her that if he were younger and more attractive then maybe he could be in the position where James was, i.e., dating Kopman. He expressed his desire to date Kopman multiple times if only the circumstances were different.
Some of Ostrem's remarks reflected comments that were being made in Centerville about Kopman. For example, Ostrem heard about Kopman wearing a bikini to the local pool, and he told her that her "hot body" was causing a lot of rumors in Centerville, including that the women hated her and the men wanted to "do" her. Ostrem also told Kopman that she should make up a fiance and put that story on the front page of the paper to stop the rumors.
Ostrem often asked Kopman to stop by his house to discuss business matters.*fn1 When she would leave his house, he would walk behind her, leer at her rear end, and make comments about how good her "a**" looked in jeans. Kopman estimated that she visited Ostrem more than once a month at his home.
Ostrem also made comments about Kopman in front of other people, including James. Most of the statements that James heard occurred when James and Kopman stopped at Ostrem's house at Ostrem's request. While James was present, Ostrem told sexual jokes and then commented on or made a sexual joke regarding the size of Kopman's breasts or otherwise commented on her body. He also called Kopman "hot cop" and "mama cop" in front of James. James felt that Ostrem was demeaning women when he made these comments.
Other people also heard Ostrem make comments about Kopman, including Mario Massa, a Turner County sheriff's deputy during the relevant time period. Massa heard Ostrem comment about how hot Kopman was and that he wanted to "bang" her. Matt Wetterling, also a Turner County sheriff's deputy, heard Ostrem comment about Kopman. For example, Ostrem told Wetterling that when Kopman was hired she had the body of a 24-year-old (Kopman was 38 when she was hired) and she would make a good-looking deputy. Wetterling stated that every time Kopman's name would come up, Ostrem would "mention something off-color." Docket 41-11 at 4.*fn2
Ostrem also made derogatory comments about female police officers to Kopman. For example, Ostrem told Kopman not to act angry because other people would assume she was on her menstrual cycle, and that female police officers only need to look good and do not need to have any knowledge about the job. Ostrem told Kopman that she was doing a "man's job," and that women cannot be successful police officers like men.
Kopman told Ostrem at least six times that his comments made her uncomfortable and that she wanted him to stop making the comments. She told him that his comments were disgusting, wrong, and hurtful, and she hated the statements. Ostrem did not stop making comments. One time, Ostrem told Kopman that she needed to grow thicker skin.
Greg Baker served as a councilperson from 2008 to late 2009 or early 2010. Baker sent Kopman text messages about work. But he also sent her sexually inappropriate text messages. Baker was a councilperson during the entire time that he sent Kopman sexually inappropriate text messages.
Kopman estimated that Baker began sending sexually inappropriate text messages in April of 2009 and he sent her approximately 50-60 such messages. Some days Kopman did not receive any sexually inappropriate text messages and other days she received more than one message. Kopman estimated that half of Baker's sexually inappropriate text messages were forwarded messages that Baker received from another person.
In one set of messages, which were not forwarded messages, Baker stated that he wanted to see Kopman in a pair of "a**less" chaps and he wanted to see her sexy "a**" on the back of his motorcycle. He followed up on those messages with a verbal comment to Kopman that she was a pretty female and asked her when she was going to go on a motorcycle ride with him. Another time, while Kopman was waiting to give a police department report to the Council during a Council meeting, Baker texted Kopman and asked her how it felt when her phone was vibrating in her pocket. He followed up by asking what her vibrating phone felt like sexually.
Baker also forwarded a number of sexually suggestive text messages to Kopman. He forwarded to her pictures of female genitalia, nude photos of men and women, and photos of a man and a woman having sex in a certain sexual position, such as "doggy style." He would then follow up with a text message asking Kopman if she had tried that position or if she would like to try that position. Kopman felt that, through these text messages, Baker was expressing an interest in having sex with her.
Another time, Baker forwarded a picture of tattooed female genitalia to Kopman and asked her what she thought about tattooing female genitalia. James recalled Kopman receiving text messages with pictures of women having sex and a picture of a woman with a bull's eye over her vagina. James recalled seeing these text messages on Kopman's phone months before any concerns were raised by Ostrem or the Council concerning her performance as chief of police.
Kopman initially did not report either Ostrem's or Baker's conduct because she did not want to lose her job. Ostrem told her that he was good at getting rid of people. He boasted to her that he had helped fire two Turner County sheriff's deputies and all he had to do to get someone fired was "plant seeds and watch them grow." Docket 1 at 4.
Centerville maintains a sexual harassment policy that prohibits sexual harassment manifested as a hostile work environment or retaliation. Under the policy, if an employee feels like she has been harassed, she "should immediately report the matter to the immediate supervisor unless the supervisor is the offending party. If the supervisor is unavailable, or the employee believes that it would be inappropriate to contact [the] supervisor, the employee should immediately contact the mayor, council president or a council member." Docket 41-14 at 2.
On September 2, 2009, Kopman complained about Ostrem's and Baker's conduct to Nancy Kludt, who is Centerville's Finance Manager. Kludt also handles Centerville's human resources needs and has received human resources training. Kopman believed that Kludt was a manager or supervisor because she was a financial officer and handled human resources paperwork for Centerville. Kludt did not file a sexual harassment complaint on behalf of Kopman after their September 2 conversation.
On September 2, 2009, Kopman called the Equal Employment Opportunity Commission (EEOC) or the South Dakota Division of Human Rights (SDDHR) to complain about Ostrem and Baker. On that same day, she filed her initial paperwork with the EEOC/SDDHR, which she printed off of the internet. She also contacted the Division of Criminal Investigation (DCI), a department that investigates complaints in police departments. On October 7, 2009, Kopman submitted a formal charge of discrimination with the SDDHR. On February 25, 2010, the SDDHR found that there was probable cause to believe that sexual discrimination or harassment and/or retaliation had occurred against Kopman.
Before September of 2009, Ostrem frequently complimented Kopman on her job as chief of police, particularly on her call coverage. James heard Ostrem frequently compliment Kopman on her performance. Dean Austin, a councilperson, stated that Kopman patrolled about the same amount as her predecessor. Former mayor Fischer never received any complaints about Kopman; instead, she only received compliments. Kopman specifically recalled receiving compliments from Ostrem during her birthday party on March 14, 2009, and knew that Ostrem continued to compliment her work during the 2009 summer.
On September 18, 2009, Ostrem sent Kopman a letter, not on Centerville letterhead, outlining issues with Kopman's performance as chief of police. Ostrem did not talk with Kopman about the concerns before writing the letter. Ostrem also sent a copy of the letter to every councilperson.
In the letter, Ostrem stated that he did not support the wage increase that Kopman requested in a September 9, 2009, budget meeting, and Kopman's statement to the Council that she would leave if she did not receive the wage increase caused the Council stress. He admonished Kopman to "refrain from referring to the Council Members, and the Mayor, as 'two face,' 'back stabbers,' and 'a** holes.' You will refrain from making statements that someone is 'suicidal,' 'beats their wife,' and 'beats their kids,' just because they don't support your budget." Docket 31-7 at 5.
Ostrem also stated that Kopman incorrectly handled a domestic assault on September 13, 2009, because she allegedly did not submit paperwork in a timely manner. He also admonished Kopman to update her timecard by the end of each day, to use the police radio whenever practical, and to keep the Turner County sheriff's dispatch appraised of her status.
Kopman responded to the September 18 letter in an undated letter, received by Centerville on September 21. Kopman believed that the September 18 letter was a reprimand or a threat of a reprimand and requested a grievance hearing.
In a September 22, 2009, letter to the Council, Ostrem stated that he was attaching a letter from Centerville's attorney, Greg Brewers, about complaints made by the Turner County state's attorney Tiffani LandeenHoeke. Landeen-Hoeke had not complained about Kopman's performance until Ostrem contacted her to inquire about Kopman's performance as chief of police. In the September 22 letter, Ostrem also stated that he participated in a conference call with Turner County sheriff Byron Nogelmeier and dispatcher Todd Baldwin. Nogelmeier and Baldwin allegedly told Ostrem that they had had difficulties with Kopman answering calls. Ostrem gave every councilperson a copy of the letter.
In a letter dated September 23, 2009, Brewers informed Kopman that the September 18 letter was "actually more of a cautionary statement than a reprimand." Docket 41-12 at 2. Nevertheless, Brewers told Kopman that a grievance hearing would be held on October 5, 2009, the next regularly-scheduled Council meeting.
After Brewers scheduled the October 5 grievance meeting, Ostrem called a special Council meeting on September 30, 2009, to discuss concerns about Kopman's performance.
Kopman retained attorney Bill Janklow. On September 28, 2009, Brewers informed Janklow about the September 30 meeting. That same day, Kopman notified Centerville that because Janklow would be unable to attend the meeting, she would not be there. The Council held the meeting as planned.
During the September 30 meeting, which Ostrem and Baker attended and Ostrem led, Ostrem relayed that Nogelmeier and Baldwin had allegedly expressed concerns to Ostrem about Kopman's deficient call coverage. Neither Nogelmeier nor Baldwin testified about Kopman's call coverage; instead, the Council's only information about Kopman's call coverage was relayed through Ostrem in his September 22 letter and during the September 30 meeting.*fn3
Landeen-Hoeke spoke during the September 30 special session. Landeen-Hoeke told the Council that Kopman was late with paperwork one time for a domestic abuse incident and had been rude to her assistant. In her affidavit, Landeen-Hoeke relayed three other concerns she had with Kopman, but she did not advocate for Kopman's termination.
Ostrem reported to the Council that he received complaints from citizens about the amount of time Kopman spent patrolling. The only citizen from whom Ostrem recalled receiving a complaint was Dawn Murra, the wife of Mike Murra, a councilperson. Dawn Murra did not testify before the Council.
The Council voted 5-0 to suspend Kopman without pay until her October 5 grievance meeting. The Council determined that Kopman had violated various sections of policy number nine in Centerville's Personnel Manual.
In a letter dated October 14, 2009, Brewers informed Janklow that Centerville would be unable to settle Kopman's harassment claim. Brewers also stated that the grievance hearing would be held on October 19, 2009. Kopman was unable to attend the October 19 grievance meeting and asked for a continuance. Centerville rescheduled the grievance hearing for November 2, 2009, and Brewers stated that this would be the last continuance. Brewers also notified Janklow that Centerville was considering termination or suspension of Kopman at the November 2, 2009, meeting. Kopman continued to be suspended without pay.
Even though Kopman did not attend the October 19 meeting, the Council heard testimony from two residents, Deb Otto and Charles Fritts. Otto told the Council that Kopman was tanning at a tanning salon while on duty but provided no date(s) for the alleged incident(s). No one followed up with the tanning salon's owner to substantiate the claims. Kopman contends that she was called to the tanning salon because of complaints about dogs in the alleyway. Fritts complained about a lack of patrol and provided no other testimony on what he meant by stating that Kopman's patrol car was not out enough. No one substantiated Fritts's complaints. At the end of the meeting, Ostrem presented Kopman's formal charge of discrimination from the SDDHR to the Council. The Council voted to continue Kopman's suspension without pay.
Neither Kopman nor Janklow attended the November 2, 2009, meeting. The Council voted to terminate Kopman. Ostrem withdrew the appointment of Kopman as chief of police. About a month after the Council voted to terminate Kopman, Baker resigned from the Council.
No investigation was conducted into the allegations regarding Baker's conduct. Ostrem and Brewers conducted the investigation into Kopman's sexual harassment complaints against Ostrem. Ostrem reported to the Council that nothing had happened. Brewers never addressed the Council on the investigation's outcome. During his deposition, Austin testified that he still does not know what occurred between Ostrem and Kopman.
During a November 14, 2009, conversation between Kopman, Austin, and Dave Parmley, Austin told Kopman that Ostrem told the Council that the issues with Kopman went from "housecleaning" to a "witch hunt." Docket 41- 10 at 2.*fn4 Austin stated that Ostrem bragged to the Council that he could handle the negative publicity in the media about Kopman's harassment lawsuit. Ostrem and Brewers laughed about Ostrem's statements to the media and thought it was ...