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Kaiser v. Gortmaker

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

April 14, 2017

LAURA ZYLSTRA KAISER, Plaintiff,
v.
BRYAN GORTMAKER, IN HIS OFFICIAL CAPACITY AS SOUTH DAKOTA DIRECTOR OF THE DIVISION OF CRIMINAL INVESTIGATION; AND MARK BLACK, Defendants.

          ORDER AND OPINION

          CHARLES B. KORNMANN United States District Judge.

         Plaintiff, Laura Kaiser, filed an amended complaint with the Court on December 17, 2015, which alleges reprisal and sexual discrimination in violation of Title VII of the Civil Rights Act of 1964, reprisal and sexual discrimination in violation of The South Dakota Human Relations Act, and tortious interference. Defendant, Mark Black, has made a motion to dismiss Kaiser's claim of tortious interference because it does not qualify for supplemental jurisdiction under 28 U.S.C. § 1367. The Court is fully advised on the matter.

         FACTUAL BACKGROUND

         On August 13, 2003, Kaiser was hired as a Special Agent and was assigned to the Drug Task Force in Aberdeen, South Dakota. The Drug Task Force is supervised and managed by the South Dakota Division of Criminal Investigation ("DCI"). Kaiser was responsible for preparing and executing search warrants, drug investigations, interrogating suspects, interviewing witnesses, and testifying in court. For eight years, Kaiser received positive performance reviews and was promoted to Special Agent III in January 2011. In her 2011 mid-year evaluation, Kaiser was praised for her exceptional work product, ability to work amicably with others, relentless work, and above-average case activity. In July 2011, Kaiser was appointed to serve as the acting supervisor for the Northeast DCI agents while her supervisor was on vacation.

         In August 2011, Brown County Deputy Ross Erickson was assigned to the Drug Task Force in Aberdeen, South Dakota. Kaiser alleges that Erickson immediately established a custom of making sexually explicit comments to her. Plaintiff alleges she wanted to make a harassment complaint but feared she would be adversely affected because she had a negative experience when she made a harassment complaint in 2005.

         On October 17, 2011, Kaiser asked fellow coworker, Jessica Page, for advice. Page advised Kaiser to not file a complaint because it would only cause problems. Later that day, Kaiser informed Mark Black about Erickson's conduct. Black offered to speak with Erickson, but Kaiser declined.

         The following day, Kaiser approached Erickson about the sexually inappropriate comments and questions. Erickson allegedly apologized and said he would not make such comments in the future. A few days later, Erickson informed Kaiser that Black had told the entire office about the issue. Kaiser apologized and said it was not her intent to have the office know about the incident. Later that day, Kaiser approached Black and asked why he shared her conversation with the rest of the coworkers. Black attempted to shift the blame on Kaiser, and began ignoring her at work.

         That afternoon, Kaiser alleges that Black secretly assembled a meeting with Erickson, Deputy Damian Bahr, and DCI Agent Dave Lunzman in a park. Plaintiff alleges that Black conspired with Erickson, Bahr, and Lunzman to formulate a set of talking points in an effort to have her removed from the department or be fired. Kaiser claims the group agreed they would all tell supervisor, Jason Even, that Kaiser was not to be trusted, was unpleasant to work with, and had mental health issues.

         On October 21, 2011, Even interviewed Black, Erickson, Bahr, and Lunzman regarding Kaiser's complaint. Plaintiff alleges that Black, Erickson, Bahr, and Lunzman all followed their plan to disparage her. Afterward, Even met with Kaiser and accused her of fabricating her allegations and threatened the issue could result in her termination. Kaiser denied such allegations and told Even that Erickson had acknowledged and apologized for his behavior. Even was still skeptical of Kaiser and informed her that he was not satisfied with her work product and performance.

         On November 4, 2011, Kaiser was put on a thirty-day work improvement plan ("WIP") because she failed to maintain satisfactory relationships with her coworkers and supervisors, was a disruptive influence in the office, produced unsatisfactory work products, and failed to provide leadership. Kaiser was given nine tasks to complete the WIP. One of her tasks was to rebuild positive relationships with coworkers, supervisors, and managers. When Kaiser attempted to rebuild her relationship with Black, he responded, "We are done. Don't ever approach me again." On December 8, 2011, Assistant Director Dan Satterlee informed Kaiser she met the WIP's requirements with one exception: she had failed to rebuild positive relationships with her coworkers, supervisors, and managers. Kaiser was demoted to Special Agent II and was reassigned to the Medicaid Fraud Control Unit in Pierre, South Dakota, effective January 3, 2012.

         Kaiser filed a grievance regarding her demotion, transfer, and treatment on December 12, 2011. On December 27, 2011, Kaiser reported sexual harassment and retaliation to then Brown County State's Attorney, Kim Dorsett. The next day, Kaiser filed a formal grievance with the Director of the South Dakota Division of Criminal Investigation, Bryan Gortmaker. Kaiser also contacted South Dakota Attorney General Marty Jackley on December 28, 2011, to alert him to the facts and request that he stay the order of transfer.

         Kaiser began her employment in Pierre, South Dakota, on January 3, 2012. Kaiser's grievance was denied on January 9, 2012. In response, Kaiser contacted the Equal Employment Opportunity Commission ("EEOC") in January 2012 to file a "charge of discrimination." Kaiser believes DCI began providing negative references about her to potential employers in retaliation. Plaintiff officially filed a grievance with Attorney General Jackley which was denied on February 23, 2012.

         On April 16, 2012, Kaiser was informed she would not be allowed to live in the Pierre dormitory after September 1, 2012. In addition, Kaiser would not be receiving her per diem, compensation for travel time, and an ability to use a state vehicle to commute beginning on June 1, 2012. On May 8, 2012, Kaiser alleges she was constructively discharged. She e-mailed DCI that she had no choice but to resign and that her last day would be May 18, 2012. Kaiser received a letter accepting her offer of resignation and suspending her from pay until her resignation date.

         Plaintiff alleges DCI has since prevented her from obtaining numerous positions of employment, including with the Department of Social Services, Department of Corrections, Department of Labor and Relations, and private employers, by providing negative references and ...


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