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Griffith v. City of Watertown

United States District Court, D. South Dakota, Northern Division

August 12, 2016




         Debra Griffith ("Griffith") sued her former employer, the City of Watertown ("the City"), alleging claims of hostile work environment, gender discrimination, retaliation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Doc. 1 at 7-9. Griffith seeks monetary relief, including compensatory damages, attorney's fees, and punitive damages. Doc. 1 at 9-10. The City moved for summary judgment on all claims, Doc. 18, which Griffith opposes, Doc. 27. For the reasons explained below, the City's motion for summary judgment is granted.


         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (stating that a dispute is '"genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" and a fact is "material" where it would affect the outcome of the case). Rule 56 places the burden initially on the moving party to clearly establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has met that burden, the nonmoving party must establish that a material fact is genuinely disputed either by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed.R.Civ.P. 56(c)(l)(A), (B); see also Gacek v. Owens & Minor Distribution, Inc., 666 F.3d 1142, 1145-46 (8th Cir. 2012). "A party opposing summary judgment may not rest upon mere allegations or denials contained in the pleadings, but must, by sworn affidavits and other evidence, set forth specific facts showing that there is a genuine issue for trial." Mehrkens v. Blank, 556 F.3d 865, 868-69 (8th Cir. 2009); see also Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005). "If 'opposing parties tell two different stories, ' the court must review the record, determine which facts are material and genuinely disputed, and then view those facts in a light most favorable to the non-moving party, as long as those facts are not so 'blatantly contradicted by the record ... that no reasonable jury could believe' them." True v. Nebraska, 612 F.3d 676, 679 (8th Cir. 2010) (quoting Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009)). Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en bane) (internal quotation marks omitted) (quoting Celotex Corp., 477 U.S. at 327).


         The City moved for summary judgment on all of Griffith's claims and on her request for punitive damages. Doc. 18. Griffith's brief in response to the City's motion, however, only directly addresses the gender discrimination claim. Doc. 27. The City contends that due to Griffith's limited response, Griffith has waived all other causes of action. Doc. 33 at 1 (citing Satcher v. Univ. of Ark. at Pine Bluff Bd. Tr., 558 F.3d 731, 734-35 (8th Cir. 2009) ("[F]ailure [of the nonmoving party to] oppose a basis for summary judgment constitutes a waiver of that argument.")). Although it is not this Court's "responsibility to sift through the record to see if, perhaps, there [is] an issue of fact, " Satcher, 558 F.3d at 735, Rule 56(a) of the Federal Rules of Civil Procedure provides that a "court shall grant summary judgment if the movant shows 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); see also Fed.R.Civ.P. 56(e) (providing that if a party "fails to properly address another party's assertion of fact ... the court may ... consider the fact undisputed ... [or] grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it"). Thus, this Court will address the arguments Griffith failed to defend in her brief. See also South Dakota v. U.S. DOI, 775 F.Supp.2d 1129, 1133 n.1 (D.S.D. 2011) (addressing all arguments despite non-movant's failure to respond to all of movant's arguments and non-movant's waiver of challenges at oral argument).

         III. FACTS[1]

         Griffith was hired by the City as a police officer for the Watertown Police Department ("the Department") in January 2007. Doc. 23 at ¶ 1; Doc. 28 at ¶ 1. Griffith married Tylor Griffith ("Tylor"), a coworker and fellow police officer, in September 2009.[2] Doc. 23 at ¶ 3; Doc. 28 at ¶ 3. Griffith and Tylor have one special-needs child, who was born in March 2012. Doc. 22-3 at 25; Doc. 30-7 at 2.

         In early January 2011, Griffith spoke with Communications Officer Leslie Rau ("Rau") about how she and Tylor had recently argued at a police Christmas party. Doc. 22-3 at 9-10; Doc. 30-5 at ¶ 16. Griffith told Rau that Tylor accidentally slammed a door on her hand. Doc. 22-3 at 10. Rau reported the conversation she had with Griffith to Captain Tracy Schaefer, noting that Griffith had a "mark above her eye" or "very slight swelling." Doc. 30-5 at ¶ 16; Doc. 30-6 at 1; Doc. 30-7 at 2.

         As a result of Rau's report, the South Dakota Division of Criminal Investigation ("DCI") investigated a possible domestic assault by Tylor on Griffith. Doc. 22-3 at 10; Doc. 23 at ¶ 5 (first paragraph 5); Doc. 28 at ¶ 5. During the investigation, Griffith told the DCI investigator that Tylor never hit or pushed her and that the injury she received to her hand was accidental. Doc. 23 at ¶ 6; Doc. 28 at ¶ 6. The City also investigated the January 2011 incident and Griffith similarly told the City that Tylor never hit her or pushed her and that her hand injury was an accident. Doc. 23 at ¶ 7; Doc. 28 at ¶ 7. Neither Griffith nor Tylor was criminally charged for the January 2011 incident, but both were reprimanded by the City for public intoxication. Doc. 23 at ¶ 8; Doc. 28 at ¶ 8. Following the reprimand, Griffith had a counseling session with the female chief of police, during which she denied being a victim of domestic violence. Doc. 23 at ¶ 9; Doc. 28 at ¶ 9.

         Later, in October 2012, Griffith called 911 to report that Tylor was banging his head and slamming doors. Doc. 22-3 at 12; Doc. 23 at ¶ 10; Doc. 28 at ¶ 10. Assistant Chief of Police Lee McPeek[3] ("McPeek") called to check on Griffith. Doc. 23 at ¶ 14; Doc. 28 at ¶ 14; Doc. 30-1 at 2. Griffith told McPeek that she was okay. Doc. 22-3 at 13; Doc. 23 at ¶ 14; Doc. 28 at ¶ 14; Doc. 30-7 at 4. McPeek later questioned Tylor about the incident. Doc. 23 at ¶ 15; Doc. 28 at ¶ 15. McPeek testified that Tylor said he was just frustrated, that he could not do anything right in Griffith's eyes, and that he just hit his head on the door frame. Doc. 22-4 at 2. Shortly thereafter, Griffith and Tylor separated and eventually divorced in November of 2013. Doc. 23 at ¶ 16; Doc. 28 at ¶ 16; Doc. 34-1 at 6-7. Griffith did not tell the responding officers that Tylor had assaulted her or that she feared for her safety, nor did she tell anyone on the ambulance crew that she was threatened or harmed by Tylor. Doc. 23 at ¶¶ 11-13; Doc. 28 at ¶¶ 11-13.

         After the October 2012 incident, Griffith declined McPeek's offer to change Griffith's and Tylor's shifts. Doc. 22-3 at 14; Doc. 23 at ¶ 17; Doc. 28 at ¶ 17. Approximately two weeks later, however, the City made the decision to separate Griffith and Tylor's shifts in an effort to pre-emptively avert any future issues that could arise between the divorcing couple. Doc. 22-4 at 4; Doc. 23 at ¶¶ 18-19; Doc. 28 at ¶¶ 18-19. Tylor's shift was changed, and the City informed him that he and Griffith could not work together on future shifts. Doc. 22-4 at 3-4; Doc. 23 at ¶ 18; Doc. 28 at ¶ 18.

         As part of her employment, Griffith received domestic violence training at the police academy, and an additional twenty-eight hours of training on domestic violence and sexual assault was provided by the City. Doc. 22-3 at 3, 7; Doc. 23 at ¶ 24; Doc. 28 at ¶ 24. Around March of 2013, she was assigned to the domestic violence unit at the Department where she focused on investigating domestic violence issues. Doc. 22-3 at 8; Doc. 23 at ¶ 25; Doc. 28 at ¶25.

         Griffith acknowledged that she failed to timely report that she was a victim of any domestic assault or abuse. Doc. 22-3 at 6; Doc. 23 at ¶ 22; Doc. 28 at ¶ 22. Griffith testified that she failed to utilize the City's anti-harassment policies, the Department's anti-harassment and sexual misconduct policies, and the employee assistance program. Doc. 22-3 at 3, 5, 14; Doc. 23 at ¶ 23; Doc. 28 at ¶ 23. Griffith did not seek help from anyone at the Department regarding domestic violence counseling or training for her or Tylor. Doc. 22-3 at 14; Doc. 23 at ¶ 23; Doc. 28 at ¶ 23.

         On July 8, 2013, Griffith met with the new Assistant Chief Tim Toomey ("Toomey") and told him that she lied during the investigation of the January 2011 incident; she claimed that Tylor had physically abused her that evening. Doc. 22-3 at 16; Doc. 23 at ¶ 20; Doc. 28 at ¶ 20. For the first time, Griffith informed the City that Tylor had been harassing or stalking her at work. Doc. 22-3 at 16; Doc. 23 at ¶ 21; Doc. 28 at ¶ 21. Toomey asked Griffith to write out a statement regarding the history of abuse and advised her that the DCI would investigate the matter. Doc. 22-3 at 16-17; Doc. 23 at ¶¶ 26-27; Doc. 28 at ¶¶ 26-27. By mutual agreement, Griffith was sent home for the day. Doc. 22-3 at 16-17. Toomey asked Griffith to call him at a specific time and at a specific number twice a day to check in and confirm that she was safe. Doc. 22-3 at 17; Doc. 23 at ¶ 28; Doc. 28 at ¶ 28.

         Griffith testified that she returned to the Department on July 10, 2013, provided her written statement to Toomey and McPeek, and was placed on administrative leave with pay. Doc. 22-3 at 17-18; Doc. 23 at ¶ 28; Doc. 28 at ¶ 28. She agreed that going on paid leave was probably the best course of action. Doc. 23 at ¶ 29; Doc. 28 at ¶ 29. Also on July 10, Griffith testified that she told Toomey and McPeek that she had been previously diagnosed with posttraumatic stress disorder ("PTSD")[4] and was taking medication. Doc. 22-3 at 17.

         On July 15, 2013, Tylor, who was in Pierre, South Dakota for training, also was put on administrative leave with pay following Griffith's allegations.[5] Doc. 25 at ¶ 6; Doc. 23 at ¶ 30; Doc. 28 at ¶ 30. The City sent Toomey to Pierre to take Tylor out of his training early and drive him back to Watertown. Doc. 25 at ¶ 6; Doc. 23 at ¶ 31; Doc. 28 at ¶ 31. Tylor was advised that any contact with Griffith would not be tolerated. Doc. 23 at ¶ 32; Doc. 28 at ¶ 32. After July 15, Tylor and Griffith were never in the Department at the same time again. Doc. 25 at ¶ 5; Doc. 23 at ¶ 33; Doc. 28 at ¶ 33. The DCI began its extensive investigation into Griffith's allegations against Tylor that same month. Doc. 25 at ¶ 2; Doc. 23 at ¶ 34; Doc. 28 at ¶ 34.

         Codington County State's Attorney Dawn Elshere ("Attorney Elshere") was notified that Griffith had admitted to lying in the 2011 police investigation[6] Doc. 24 at ¶ 4; Doc. 30-4 at 2; Doc. 30-9 at 1. Attorney Elshere determined that under Brady v. Maryland, 373 U.S. 83 (1963), [7] Griffith's untruthfulness must be revealed to defense counsel in each case Griffith was or would be associated with and that prosecutors would experience difficulties prosecuting cases those cases. Doc. 23 at ¶ 40; Doc. 24 at ¶ 5; Doc. 28 at ¶ 40; Doc. 30-9 at 1. Attorney Elshere attested that she had a case at that time which involved Griffith as a necessary witness and that the case was pied down, stating that the "major reason" for doing so was because "Griffith ... had [a] Brady issue." Doc. 24 at ¶ 6; Doc. 23 at ¶ 41; Doc. 28 at ¶ 41. After reviewing the information provided by the City, Attorney Elshere, although not asked by the City to make such a determination, decided that there were no Brady issues with Tylor. Doc. 24 at ¶ 5; Doc. 30-1 at 8; Doc. 30-4 at 4. Tylor never admitted to lying during any investigation, and McPeek testified that Tylor's version of the events surrounding the January 2011 incident has never changed. Doc. 22-4 at 10; Doc. 23 at ¶ 36; Doc. 28 at ¶ 36. Attorney Elshere later received the DCI investigation report and referred the matter to the Beadle County State's Attorney. Doc. 24 at ¶ 3; Doc. 30-4 at 2. The Beadle County State's Attorney reviewed the entirety of the report and opined that there was not enough evidence to charge Tylor with a criminal violation. Doc. 23 at ¶ 35; Doc. 28 at ¶ 35. After reviewing all the information after Griffith's 2013 allegations against Tylor, including the DCI report and the no-charge recommendation from the Beadle County State's Attorney, McPeek did not believe that he had cause to terminate Tylor or ask him to resign. Doc. 23 at ¶ 62; Doc. 25 at ¶ 7; Doc. 28 at ¶ 62. Tylor has not been charged with any crimes, and as of the filing of the motion for summary judgment, he remains employed as a police officer at the Department. Doc. 24 at ¶ 3; Doc. 25 at ¶ 7.

         On the morning of July 24, 2014, McPeek and Toomey met with Griffith regarding her employment with the Department. Doc. 30-13. The meeting was audio recorded and lasted just under seventeen minutes. Doc. 30-13. McPeek and Toomey explained to Griffith how her untruthfulness in the 2011 investigation posed a Brady issue for prosecutors and that her untruthfulness violated Department policy. Doc. 30-13 at 00:40, 4:50, 7:19, 10:50; see also Doc. 23 at ¶ 2; Doc. 28 at ¶ 2. Under the union contract governing Griffith's employment, dishonesty provided grounds for termination. Doc. 23 at ¶ 2; Doc. 28 at ¶ 2.[8] Toomey and Griffith had the following exchange:

Toomy: We're not going to get past the credibility issues so that you can effectively testify in the future. ... So we have some options for you. ... So, we will give you the opportunity to resign, if you want.
Griffith: No.
Toomy: You're not going to resign your position?
Griffith: No.
Toomy: Okay. So you understand we are going to go through with a Loudermill [9] hearing?
Griffith: Uh-huh.
Toomy: And then we are-we are going for ...

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