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Riggs v. Bennett County Hospital & Nursing Home

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

March 31, 2019

JOYCE RIGGS and ALFRED RIGGS, Plaintiffs,
v.
BENNETT COUNTY HOSPITAL AND NURSING HOME, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Plaintiffs Joyce Riggs and Alfred Riggs filed a multi-count complaint against the defendant, Bennett County Hospital and Nursing Home, their former employer. (Docket 1). They allege unlawful discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12201 (“ADA”), the South Dakota anti-discrimination act, S.D.C.L. Chap. 20-13, and South Dakota common law. Id. at pp. 1-2. Defendant denies plaintiffs' claims. (Docket 6).

         Defendant filed a motion for summary judgment, a statement of undisputed material facts with supporting exhibits and a supporting brief. (Dockets 20-22 & 23-1 through 23-37). Plaintiffs filed a brief in resistance to defendant's motion, together with a response to defendant's statement of undisputed facts and plaintiffs' statement of undisputed material facts with a supporting exhibit. (Dockets 27-28 & 29-1). Defendant filed a reply brief in support of its motion, together with defendant's response to plaintiffs' statement of undisputed material facts with a supporting exhibit. (Dockets 30-31 & 32-1). For the reasons stated below, defendant's motion for summary judgment is granted in part and denied in part.

         STANDARD OF REVIEW

         Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can “show 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). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at p. 248. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).

         If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at p. 323.

         In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at pp. 251-52.

         UNDISPUTED MATERIAL FACTS

         The following recitation consists of the material facts developed from the complaint (Docket 1 at pp. 2-13), defendant's answer (Docket 6), the parties' statements of undisputed material facts (Dockets 22 & 28 at pp. 12-14), the parties' responses to the opposing party's statements of undisputed material facts (Dockets 28 & 31) and other evidence where indicated.[1] Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document. These facts are “viewed in the light most favorable to the [party] opposing the motion.” Matsushita Elec. Indus. Co., 475 U.S. at 587. The facts material to defendant's motion for summary judgment are as follows.

         Joyce Riggs began working at the Bennett County Hospital and Nursing Home (“Bennett County”) in 2006. (Docket 22 ¶ 1). Joyce's husband, Alfred Riggs, was also employed by Bennett County as the ambulance director. Id. ¶ 2. Joyce worked as a dietary aide, purchasing-central supply-accounts payable clerk, medication aide-certified nursing assistant, and an emergency medical technician (“EMT”) during her tenure at Bennett County. Id. ¶ 3. During her employment, Joyce received reprimands for poor work performance, including: acting outside her scope of practice, unacceptable conduct, inappropriate communication with others, engaging in inappropriate behavior with a male nurse, and criticizing other staff members. Id. ¶ 4. During the time period immediately preceding Joyce's termination, she worked in central supply, Monday through Friday, and served as an on-call EMT for the Bennett County ambulance service. Id. ¶ 5. Some of Joyce's primary responsibilities in central supply included receiving goods, stocking shelves, recording delivery of supplies, sterilizing all sterile supplies and medical waste disposal. Id. ¶ 7. The central supply room is where all sterile patient supplies were maintained.[2] Id. ¶ 6. Joyce was responsible for maintaining her work area in a clean manner, using the sterilizer machine, preparing invoices and maintaining inventory. Id. ¶ 8.

         Throughout her employment, Joyce regularly brought her dogs to work, namely: “Katie, ” a Catahoula, “Peabody, ” a miniature Dachshund, and “Cheikah, ” a Dalmatian-Bluetick Coonhound.[3] Id. ¶ 9. Joyce's dogs were rarely restrained and often urinated throughout Bennett County's facilities.[4] Id. ¶ 10. Lynn Ward, a registered nurse, documented the following:

As a floor nurse on the hospital side prior to my present position, I had many encounters with Joyce Riggs and her dogs in the facility. I had requested to Joyce that she keep her dogs out of the hospital side of the facility while I was working as I had numerous times cleaned up dog urine from the floor, and didn't feel it was appropriate in an acute care setting. The dogs were often found running in the hallway or down the passage to the nursing home. The dogs were seldom on a leash.[5]

Id. ¶ 11. Registered nurse Jennifer Risse, the director of nursing in the nursing home side of Bennett County, noted “there were a number of times where I witnessed Joyce Riggs bringing her dogs to work with her. The dogs were never restrained and would run freely throughout the hospital.”[6] Id. ¶ 12; see also Docket 23-30 at pp. 3:7-8:[7] In a 2012 memorandum, RN Risse wrote:

[Cheikah] was friendly enough and some of the residents did enjoy her. The issue became that [Joyce] would not follow the policy and keep her dog restrained or out of the dining area. The dog would wander freely in and out of resident rooms and at times had an issue of getting excited and urinating on the floor. This was not only an Infection Control issue, but also a safety issue for our residents.[8]

Id. ¶ 13. Joyce's supervisor, Katie Dillon, cleaned up urine from all three dogs as well as Peabody's bowel movements.[9] Id. ¶ 14. Ms. Dillon reported “[o]ne incident happened with the Catahoula [Katie] where she was afraid and voided on an upholstered chair down by the emergency/x-ray area. Joyce spent quite awhile [sic] shampooing upholstery that day.”[10] Id. ¶ 15.

         Alfred admitted Joyce's dogs were not always restrained, “there were some times I did not see a leash, but they were always with Joyce or they were- you know, may not necessarily be right beside her . . . .” Id. ¶ 16. Joyce acknowledged an occasion where one of her dogs ate food off a plate on the floor in the TV room. (Docket 23-28 at pp. 19:7-11 & 20:10-20). Maintenance manager Lenny Allison was upset about the dog eating food off a resident's plate. (Docket 22 ¶ 18). He yelled and kicked at Joyce's dog. Id. Mr. Allison and Joyce screamed and swore at each other in the presence of the residents. Id. This incident prompted RN Risse to request the implementation of a pet policy. Id. In June 2012, Bennett County implemented a “Pet Policy.” Id. ¶ 19; see also Docket 23-9.

         In August 2012, Ethel Martin became the CEO of Bennett County.[11](Docket 22 ¶ 22). Ms. Martin, formerly Ethel Frein, had been an employee of Bennett County since 1999. (Docket 1 ¶ 7). In September 2012, CEO Martin implemented a “Pet Visitation Policy.” (Docket 22 ¶ 24; see also Docket 23-100. The Pet Visitation Policy allowed pets to be in Bennett County's facilities only for visitation purposes and restricted pets from the dining area, food preparation areas, laundry, supply storage areas, medication preparation areas and isolation areas. (Docket 22 ¶ 25). The policy required that at all times the animals must be supervised and restrained on a leash. Id. ¶ 26.

         On November 29, 2012, Joyce was suspended for the afternoon and the next day as the result of a conflict with another employee.[12] Id. ¶ 33. Later that day, Joyce attempted suicide. Id. ¶ 35. She was transported to the Rapid City Regional Hospital (“RCRH”). Id. ¶ 36. Her RCRH medical records charted an assessment of “[m]ajor depressive disorder, recurrent, severe without psychotic features” and “[r]ule out posttraumatic stress disorder” (“PTSD”). Id.; see also Docket 23-16 at p. 4. The discharge summary on December 2, 2012, contained the same two assessments. (Docket 22 ¶ 37; see also Docket 23-17 at p. 1).

         When Joyce returned to work, CEO Martin and Ms. Dillon met with Joyce to follow-up on her suspension and to ensure she was able to return to work.[13] Id. ¶ 38. CEO Martin instructed Joyce to let Ms. Dillon know if Joyce was having a bad day and she would be allowed to go home.[14] Id. ¶ 39.

         Joyce had no write-ups or outbursts for the remainder of 2012 and 2013, despite not having her dogs at work with her. Id. ¶ 40. During this period Joyce never left work because she was having a bad day. Id. Joyce met all the necessary requirements to perform the essential functions of her job and performed those duties and responsibilities from 2012 until November 2014, even though Cheikah was not with her at work during this period. (Docket 22 ¶ 54).

         Sometime in late October or early November 2014, CEO Martin took a leave of absence for medical purposes. (Docket 1 ¶ 27). During this time period Joyce made a request of Ms. Dillon to permit Cheikah to come to work with her. Id. ¶ 28. Through a series of staff communications, CEO Martin advised Bennett County Chief Financial Officer (“CFO”) Judy Soderli that some research needed to be completed on Joyce's request. (Docket 1 ¶ 31). CEO Martin concluded Bennett County had no policy regarding a request for an accommodation of service animals on the premises. Id. ¶ 34.

         On November 3, 2014, Joyce requested that Cheikah be allowed to come to work with her as her “service dog” as a reasonable accommodation.[15](Docket 22 ¶ 41; see also Docket 23-32 at pp. 1 & 39). In support of her request, Joyce provided a “US Service Dog” certificate which she purchased online. (Dockets 22 ¶ 43; 23-12 & 23-13). Joyce believed Cheikah was her “service dog” by virtue of this certificate. (Docket 22 ¶ 46). Joyce indicated the request to bring Cheikah to work was an ADA request for a reasonable accommodation. Id. ¶ 47. Joyce did not request an accommodation to permit Cheikah to accompany her on the ambulance. (Dockets 22 ¶ 42 & 28 ¶ 42).

         On November 6, 2014, CEO Martin instructed Ms. Dillon to tell Joyce that Bennett County did not have a service dog policy, but that they were creating a policy. Id. ¶ 39. Pending that process, Bennett County asked Joyce to abide by the pet policy currently in place. Id. Ms. Dillon was instructed to ask Joyce if she was requesting a reasonable accommodation. Id. ¶ 38.

         On December 2, 2014, CEO Martin met with Joyce and asked how she could function on the ambulance crew when working in the office appeared to be stressful. (Docket 22 ¶ 41). CEO Martin expressed concern about what would be done with Joyce's dog when Joyce was required to respond to an ambulance call. Id. ¶ 42; see also Dockets 6 ¶ 42 and 22 ¶ 42. Joyce responded that she wanted Ms. Dillon to take care of Cheikah during ambulance service calls.[16] (Docket 22 ¶ 42; see also Docket 6 ¶ 42).

         On December 5, 2014, Joyce was given a copy of Bennett County's reasonable accommodation policy, together with a medical inquiry form in support of a reasonable accommodation.[17] (Docket 1 ¶ 43). Joyce was asked to have her medical provider fill out the form to ascertain what disability she had and what reasonable accommodation was necessary. (Docket 22 ¶ 48).

         On January 5, 2015, Lyle P. Christopherson, DO, Joyce's psychiatrist, completed the form. (Dockets 1 ¶ 44; 22 ¶ 49 & 26 at p. 2). To the question “[d]oes the employee have a physical or mental impairment?” Dr. Christopherson checked “[y]es.” (Docket 23-20 at p. 1). He identified “the impairment or the nature of the impairment” as “[d]pression & PTSD.” Id.

         The introduction to the second question contained the following:

Answer the following question based on what limitations the employee has when . . . her condition is in an active state and what limitations the employee would have if no mitigating measures were used. Mitigating measures include things like medication, medical supplies, equipment, hearing aids, mobility devices, the use of assistive technology, reasonable accommodations or auxiliary aids or services, prosthetics, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy. Mitigating measures do not include ordinary eyeglasses or contact lenses.

Id. Following this introduction, the second question was “[d]oes the impairment substantially limit a major life activity as compared to most people in the general population?” to which Dr. Christopherson answered “[y]es.” Id. When asked to “[d]escribe the employee's limitations when the impairment is active, ” Dr. Christopherson wrote “mood fluctuation.” Id. When asked “what major life activity(s) (includes major bodily functions) is/are affected?” Dr. Christopherson wrote “n/a.” Id. When asked to identify the “[m]ajor bodily functions, ” Dr. Christopherson wrote “n/a.” Id.

         The form included three “[q]uestions to help determine whether an accommodation is needed.” Id. at p. 2. The preamble to the questions was:

“[a]n employee with a disability is entitled to an accommodation only when the accommodation is needed because of the disability.” Id. Dr. Christopherson answered the following questions:
1. What limitation(s) is interfering with job performance or accessing a benefit of employment?
Companion dog
2. What job function(s) or benefits of employment is the employee having trouble performing or accessing because of the limitation?
all
3. How does the employee's limitation(s) interfere with his/her ability to perform the job function(s) or access a benefit of employment?
Marked [increase] in depression when dog was banned

Id.; see also Docket 22 ¶ 50.

         The final two questions were “to help determine effective accommodation options.” (Docket 23-20 at p. 2). The preamble to those two questions stated:

If an employee has a disability and needs an accommodation because of the disability, the employer must provide a reasonable accommodation, unless the accommodation poses an undue hardship. The following questions may help suggest effective accommodations.

Id. Dr. Christopherson answered the following questions:

1. Do you have any suggestions regarding possible accommodations to improve job performance? If so what are they? Let her have her dog back.
2. How would your suggestions improve the employee's job performance? See 1 above.

Id.

         While Cheikah was not specifically trained by an outside service, Joyce personally trained Cheikah “for PTSD/obedience.” (Docket 28 ¶ 52; see also Docket 22 ¶ 52). Joyce contends that to prevent her from going into an anxiety attack Cheikah would get in front of Joyce, look at her and whine. (Docket 28 ¶ 52). If Joyce ignores this response, Cheikah will jump up on Joyce, take her to the door and according to Joyce, prevent her from going into an anxiety attack. Id.; see also Docket 28 ¶ 53).

         On January 13, 2015, Alfred delivered to CEO Martin Joyce's formal reasonable accommodation request together with the completed medical inquiry form. (Docket 1 ¶ 48). CEO Martin understood Joyce was making a reasonable accommodation request. (Docket 23-30 at p. 7:20-22). The next day, CEO Martin spoke with Joyce, acknowledged receipt of the documents and indicated the reasonable accommodation committee would try to meet the following week. (Docket 1 ¶ 49).

         Joyce requested CEO Martin meet with Joyce, Dr. Christopherson and Joyce's therapist to discuss bringing Cheikah to work as her service dog. (Docket 28 at p. 13 ¶ 8). CEO Martin refused to attend such a meeting. (Docket 29-1 at p. 3:16-4:1).

         On January 21, 2015, the reasonable accommodation committee composed of CEO Martin, CFO Soderli and Ms. Dillon met to consider Joyce's accommodation request. (Docket 1 ¶ 51). Along with other facts and circumstances, [18] the committee reviewed Joyce's job description, her two most recent performance evaluations, her attendance record, considered whether she had received any verbal or written warnings over the past year, considered whether there were any concerns or complaints which Joyce had made to her supervisor concerning her ability to perform her duties and considered the medical inquiry form completed by Dr. Christopherson. Id. ¶ 53; see also Docket 6 ¶ 53. The committee found no significant changes in Joyce's job duties occurred during the past year, her performance evaluations showed improvements, her attendance record was very good, she had not received any verbal or written warning relating to her job performance over the past year and Joyce had not mentioned any specific stressors. (Docket 1 ¶ 54). On January 28, 2015, the committee provided Joyce with its written denial of her request for a reasonable accommodation, that is, to bring Cheikah to work with her. Id. ¶ 58; see also Dockets 22 ¶ 55 and 23-21.

         According to CEO Martin, after the request was denied, Joyce's behavior at Bennett County became disruptive and unprofessional.[19] (Docket 22 ¶ 56). On February 4, 2015, Joyce told Ms. Dillon that Joyce wished CEO Martin would get beaten “so bad she can never do anything to anyone again” and referred to her as a “bitch.”[20] Id. ¶ 57.

         On February 26, 2015, Joyce appeared at a meeting of the Bennett County Board of Directors. (Dockets 1 ¶ 62 & 6 ¶ 62). Joyce demanded that the Board listen to her complaints about the reasonable accommodation committee.[21] (Docket 22 ¶ 58). Because Joyce was not on the agenda, Board President David Jones asked Joyce to follow the appropriate policy and get on the agenda for the following week's meeting.[22] Id. Mr. Jones instructed Joyce to follow the steps outlined in the grievance procedure.[23] Id. ¶ 59. Joyce stormed out of the room, slammed the door and was heard yelling down the hallway as she left.[24] Id.

         On March 2, 2015, CEO Martin attempted to speak with Joyce about her disrespectful and disruptive attitude and conduct, but Joyce refused to listen.[25] Id. ¶ 60. Bennett County terminated Joyce's employment that day. (Dockets 1 ¶ 68 and 6 ¶ 68). Bennett County's stated reasons for termination included Joyce's continuing insubordination toward the administration, her failing to follow facility policies and her attempts to polarize staff against management through misrepresentation of facts. (Docket 1 ¶ 69).

         On March 11, 2015, Alfred delivered to CEO Martin an envelope addressed to “whom it may concern, ” containing Joyce's appeal of her termination. Id. ¶ 72; Docket 6 ¶ 72. That same day Joyce filed a charge of discrimination with the SDDHR alleging Bennett County discriminated and retaliated against her in violation of the ADA by terminating her employment after she requested that Cheikah be allowed at work with her. (Docket 22 ¶ 63; see also Docket 23-33 at pp. 8-9).

         On March 12, 2015, Joyce filed a claim for unemployment benefits with the South Dakota Unemployment Insurance Division (“SDUID”). (Docket 22 ¶ 64. On March 16, 2015, Bennett County filed its opposition to Joyce's claim for unemployment benefits due to her workplace misconduct. Id. ¶ 65. On March 18, 2015, CEO Martin received a copy of Joyce's SDDHR charge of discrimination. (Docket 1 ¶ 78).

         On March 18, 2015, Certified Nurse Practitioner (“CNP”) Nancy Webb completed a form for the SDUID which indicated Joyce suffered from depression and PTSD.[26] (Dockets 23-34). CNP Webb noted she had treated Joyce for these conditions since 2004, with the most recent examination occurring on March 2, 2015. Id. CNP Webb referred to Cheikah as Joyce's “[s]ervice dog” which “helps calm at times of anxiety.” (Dockets 28 ¶ 53 & 23-34).

         On March 19, 2015, Alfred met with CEO Martin and Bennett County's Human Resources (“HR”) Director Melanie Peil. (Docket 1 ¶ 83). Alfred asked them to permit Joyce to return to work with the ambulance service. Id. ¶ 84. CEO Martin told Alfred she could not hire Joyce back into the most stressful department in the facility. Id. ¶ 85.

         On March 26, 2015, SDUID concluded Joyce was disqualified from receiving unemployment insurance benefits. (Dockets 1 ¶ 86 & 23-32 at p. 15 ¶ 33). Joyce appealed that decision to the South Dakota Department of Labor and Regulation Unemployment Insurance Appeals Division (“Appeals Division”). Id.

         At a meeting on April 7, 2015, CEO Martin chastised Alfred because he had used a Bennett County ambulance to perform personal errands after transporting a patient from Martin, South Dakota to Rapid City, South Dakota. (Docket 1 ¶ 88). The next day CEO Martin drafted a new Bennett County policy which prohibited staff from using ambulances for personal errands. Id. ¶ 89; see also Docket 23-35 at p. 14.

         On April 20, 2015, a hearing was held before an Appeals Division administrative law judge (“ALJ”).[27] (Docket 22 ¶ 67). On April 28, 2015, the ALJ entered findings of fact, conclusions of law and an order affirming the decision of the SDUID. Id. ¶ 70.

         Between April and June 2015, CEO Martin received numerous complaints about Alfred's employment performance.[28] Id. ¶ 71. Alfred agreed it was a problem for Bennett County not to be able to reach him as the ambulance director when ground transportation was needed. Id. ¶ 78. Alfred was terminated on June 2, 2015. (Docket 1 ¶ 97). Bennett County's reasons for his dismissal included: substandard performance, insubordination, failing to follow the proper chain of command, overstepping scope of practice and past unauthorized use of the ambulance for personal errands. Id.

         On July 24, 2015, Joyce filed a second charge of discrimination alleging Bennett County retaliated against her by opposing her application for unemployment benefits in violation of the South Dakota Human Relations Act (“SDHRA”) (“second charge”). (Docket 22 ¶ 83; see also Docket 23-33 at pp. 1-2). On the same day, Alfred filed a charge of discrimination with the SDDHR alleging he was retaliated against for “participating and assisting” Joyce in her efforts to enforce her rights under the ADA. Id. ¶ 84.

         On July 31, 2015, the SDDHR issued a determination of probable cause in Joyce's favor on her charge of failure to accommodate and her claim of retaliatory discharge. (Dockets 1 ¶ 98 & 22 ¶ 82). On June 2, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) adopted the SDDHR's finding in favor of Joyce on her charges of failure to accommodate and retaliatory discharge and issued a dismissal and notice of right to sue letter. (Docket 1 ¶ 103).

         On December 1, 2015, SDDHR issued a no probable cause determination and dismissed Joyce's second charge. (Dockets 1 ¶ 104 & 22 ¶ 85). Joyce appealed the SDDHR's second charge dismissal to the Sixth Judicial Circuit Court in Hughes County, South Dakota. (Docket 22 ¶ 86). A circuit court judge affirmed SDDHR's second charge dismissal. Id. ¶ 87. Joyce appealed the circuit court decision to the South Dakota Supreme Court. Id. ¶ 88. On June 27, 2018, the Supreme Court “remanded [the case] back to [SDDHR] for further proceedings . . . [to] consider [Joyce's] March 2 and March 11 letters, the Hospital's articulated reason for terminating [her], and any evidence of pretext.” Riggs v. Bennett County Hospital and Nursing Home, 915 N.W.2d 156, 161 (S.D. 2018).

         The South Dakota Supreme Court also addressed Joyce's claim “that her interruption of the February 26, 2015, board meeting . . . [was a] protected activit[y].” Id. at 160 n.2. The court ruled “[w]hile appealing adverse employment action may be protected activity generally, interrupting a board meeting is not.” Id. (referencing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (“Although contesting an unlawful employment practice is protected conduct, the ...


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