United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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).
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.
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).
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.
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.
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. 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.
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. 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.
her employment, Joyce regularly brought her dogs to work,
namely: “Katie, ” a Catahoula, “Peabody,
” a miniature Dachshund, and “Cheikah, ” a
Dalmatian-Bluetick Coonhound. Id. ¶ 9.
Joyce's dogs were rarely restrained and often urinated
throughout Bennett County's facilities. Id.
¶ 10. Lynn Ward, a registered nurse, documented the
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.
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.” Id. ¶ 12; see also
Docket 23-30 at pp. 3:7-8: 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.
Id. ¶ 13. Joyce's supervisor, Katie Dillon,
cleaned up urine from all three dogs as well as Peabody's
bowel movements. 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.” Id. ¶ 15.
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
August 2012, Ethel Martin became the CEO of Bennett
County.(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.
November 29, 2012, Joyce was suspended for the afternoon and
the next day as the result of a conflict with another
employee. 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).
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. 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. Id.
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).
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.
November 3, 2014, Joyce requested that Cheikah be allowed to
come to work with her as her “service dog” as a
reasonable accommodation.(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).
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.
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. (Docket 22 ¶ 42; see
also Docket 6 ¶ 42).
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. (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).
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 &
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
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.
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?
2. What job function(s) or benefits of employment is the
employee having trouble performing or accessing because of
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.
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
Id. Dr. Christopherson answered the following
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.
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).
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
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.
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,  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.
to CEO Martin, after the request was denied, Joyce's
behavior at Bennett County became disruptive and
unprofessional. (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.” Id. ¶ 57.
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. (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. Id. Mr. Jones
instructed Joyce to follow the steps outlined in the
grievance procedure. Id. ¶ 59. Joyce stormed
out of the room, slammed the door and was heard yelling down
the hallway as she left. Id.
March 2, 2015, CEO Martin attempted to speak with Joyce about
her disrespectful and disruptive attitude and conduct, but
Joyce refused to listen. 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).
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).
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).
March 18, 2015, Certified Nurse Practitioner
(“CNP”) Nancy Webb completed a form for the SDUID
which indicated Joyce suffered from depression and
PTSD. (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).
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.
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.
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.
April 20, 2015, a hearing was held before an Appeals Division
administrative law judge (“ALJ”). (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.
April and June 2015, CEO Martin received numerous complaints
about Alfred's employment performance. 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
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.
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).
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).
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 ...