United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
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.
SUMMARY JUDGMENT STANDARD
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).
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).
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. 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.
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.
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.
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 ("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.
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.
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.
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.
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.
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") and was taking medication.
Doc. 22-3 at 17.
15, 2013, Tylor, who was in Pierre, South Dakota for
training, also was put on administrative leave with pay
following Griffith's allegations. 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.
County State's Attorney Dawn Elshere ("Attorney
Elshere") was notified that Griffith had admitted to
lying in the 2011 police investigation 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),
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.
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 ¶
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.
Toomy: You're not going to resign your position?
Toomy: Okay. So you understand we are going to go through
with a Loudermill  hearing?
Toomy: And then we are-we are going for ...