United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING AND PART MOTION FOR SUMMARY JUDGMENT
Lawrence L. Piersol, United States District Judge
14, 2018, Plaintiff, Vickie Mader ("Mader") filed a
Complaint against Defendants Lowes Home Centers, LLC,
("Lowe's") and Ronald Heidzig
("Heidzig"). Doc. 1. In her Complaint, Mader
alleges a claim for sexual harassment/hostile work
environment in violation of 42 U.S.C. § 2000e-2(a)(1),
intentional infliction of emotional distress, vicarious
liability, punitive damages, and breach of contract. Doc. 1.
April 1, 2018, Lowe's filed a Motion for Summary Judgment
on all of Mader's claims. Doc. 17. On August 6, 2019, the
Court issued an order setting oral argument on the pending
summary judgment motion for August 8, 2019. Doc. 35. The
Court indicated in its order that it wanted to hear argument
on whether the alleged conduct was severe and pervasive as to
affect a term, condition, or privilege of Mader's
employment and whether or not Lowe's took prompt remedial
action reasonably calculated to stop the harassment. Doc. 35.
At oral argument, both Mader and Lowe's were represented
by counsel. Heidzig has not yet entered an appearance in this
following reasons, this Court grants in part and denies in
part Lowe's' motion for summary judgment.
2017, Plaintiff, Vickie Mader ("Mader"), was a
part-time employee working at the Sioux Falls Lowes's
store and was an at-will employee. Doc. 19, ¶ 1; Doc.
24, ¶ 1. On May 2, 2017, Mader reported to Lowe's
Assistant Store Manager Oltman that the prior day, while she
was speaking with customers about a ceiling fan, Heidzig
squeezed her left butt cheek as he was passing by. Doc. 19,
¶ 2; Doc. 24, ¶ 2; Mader Dep. 67:15-68:9. No. words
were exchanged during this alleged incident and Mader and
Heidzig never spoke about the incident thereafter. Doc. 19,
¶ 2; Doc. 24, ¶2; Mader Dep. 69:11-21. Heidzig was
a co-worker of Mader's and had never served in a
management or supervisory position for Lowe's. Doc. 29,
¶ 2. Although Mader testified that her male co-workers
often "act[ed] like sophomores in school... [t]elling
dirty jokes, [ ] stuff like that," this incident was
unusual and nothing like it had happened to Mader during her
prior thirteen years of employment with Lowe's. Mader
Dep: 32:12-23; Doc. 19, ¶ 2; Doc. 24, ¶ 2.
has an Employee Handbook which contains the company's No.
Harassment Policy. Doc. 21, ¶ 9. The No. Harassment
Policy provides that:
The purpose of the No. Harassment policy is to outline the
Company's commitment to building and preserving a
community in which all of its members can work together, free
of discrimination and harassment of any kind.
All reports [of discrimination or harassment] will be
investigated promptly and thoroughly by [Lowe's]....
Doc. 21-1. The Employee Handbook has no required
pre-termination procedure for employees and does not have
exclusive list of termination reasons. Doc. 21, ¶ 9. In
the Employee Handbook is language providing that the Handbook
is not to be considered a contract. Doc. 21, ¶ 9.
2, 2017, the day that Mader reported to Oltman that Heidzig
grabbed her butt, they reviewed video footage of the
incident. Mader Dep. 73:18-76:9. While reviewing the video
footage, Mader saw Heidzig's hand out in a
"claw-like" position, reaching toward her and
Oltman responded that "we got him" and "this
is a slam dunk." Mader Dep. 75:1-24; 76:3-4. Eventually,
Mader was informed by Oltman that Lowe's had spoken to
Heidzig, that he denied the incident, and that Human
Resources ("HR") had viewed the video and had not
come to the conclusion that it clearly showed Heidzig
grabbing Mader's butt. Mader Dep. 79:19-80:3.
reporting the incident, Mader continued to work, was able to
perform her job duties, and was not required to work with or
in the same department of Heidzig. Doc. 19, ¶ 4; Doc.
24, ¶ 4. Mader had a dedicated office with an office
door that she could close. Mader Dep. 35:6-16. Until Mader
resigned on May 26, 2017, she saw Heidzig approximately 20
times, but the two never spoke to each other. Doc. 19, ¶
4; Doc. 24, ¶ 4; Mader Dep. 41:1-25. Most of those
occasions involved Mader seeing Heidzig somewhere in the
store, but on five of six of those occasions, Mader opened
her office door, which was located by an exit door, and found
Heidzig standing there, staring at her. Mader Dep.
48:24-49:25. On one occasion, Heidzig "barged" into
Mader's office, "hit the door, and it flew open and
hit the wall." Mader Dep. 48:15-16. Mader's male
co-worker was in her office and he "jumped up and put
his hand on [Heidzig's] chest and backed him right out of
the office, pulling the door shut behind him." Mader
testified that she felt intimidated by Heidzig's conduct.
Mader Dep. 50:2-4. Mader's co-worker would sometimes open
her office door to see if Heidzig was there before she
exited. Mader Dep. 50:11-14. Although Mader's counsel
states in his statement of material facts that Mader needed
the assistance of other employees to walk her around the
store because of her concerns about Mr. Heidzig having
contact with her, Doc. 24, ¶ 4, the Court has not been
able to find evidence supporting this assertion in the record
point during the month, Mader had also called the Lowe's
compliance line because she had not received any information
about what, if anything, was being done to address her
initial complaint. Mader Dep. 89:19-90:6. Mader twice left
her name and store number and asked that someone return her
call, but nobody called her back. Mader Dep. 89:19-90:6.
around May 19, 2017, approximately two and one-half weeks
after the incident, Mader still had not yet heard from
Lowe's on how they would be addressing her initial
complaint. At that time, Mader approached HR to inquire about
what action Lowe's would be taking in response to the
alleged incident. Mader Dep. 81:8-21; 84:9-24. Mader told HR
that she wanted to know what was going to be done because she
"still had to deal with this guy." Mader Dep.
81:18-21. Mader testified that she felt intimidated and told
HR that Heidzig had been standing outside her office, staring
at her when she exited on more than one occasion. Doc. 24,
¶ 4; Mader Dep. 50:2-4; 83:15-24. The Court finds that
there is no evidence in the record showing that Lowe's
was also made aware of the incident in which Heidzig barged
into Mader's office. Mader testified that HR told her
that because her office was by an exit door, Heidzig may have
been coming or going, and offered to have someone escort
Mader to her car. Mader Dep. 81:22-82:8; 83:15-17. Mader
responded that she was not concerned about walking to her
car, but about having to be in the store with Heidzig. Mader
Dep. 82:5-10. HR stated that if he was being an issue, they
could change Mader's hours so she would not be in the
store at the same time as him. Mader Dep. 49:19-22; 81:18-23.
When Mader responded that she felt like it was not fair to
change her hours and that they should consider changing
Heidzig's hours, HR responded that they would have to
talk to the manager of Heidzig's department about
changing Heidzig's hours, and that Lowe's "may
be able to arrange that." Mader Dep. 81:18-82:4.
time, Mader was told that they were waiting for an update
from corporate in Omaha as to how they were going to address
the alleged butt-grabbing incident. Mader Dep. 82:16-19.
Additionally, management expressed that what happened to
Mader was less important than some of the personal issues the
manager had been dealing with in her own life. Mader Dep.
on or around May 23, 2017, Mader spoke with management and
was informed that Lowe's had concluded its investigation
and that Heidzig had received a written reprimand. Doc. 19,
¶ 5; Doc. 24, ¶ 5; Mader Dep. 85:11-86:3.
Lowe's also required Heidzig to undergo counseling on
sexual harassment and notified him that any further conduct
would result in termination, although it appears from the
record that Mader was not aware that these other disciplinary
measures had been taken. Doc. 19, ¶ 5; Doc. 24, ¶
5; Mader Dep. 96:17-25. As part of its investigation, in
addition to speaking with Mader and reviewing the video
footage, Lowe's also reviewed Heidzig's performance.
Doc. 19, ¶ 3; Doc. 24, ¶ 3. Prior to this May 1,
2017, incident, Heidzig generally had a good performance
history, had a good pre-employment background, and no reports
of inappropriate conduct by Heidzig had been made. Doc. 19,
¶ 3; Doc. 24, ¶3; Doc. 20, ¶ 4(c).
hearing that Heidzig had received a written reprimand, Mader
asked her manager to revisit their decision. Mader Dep.
86:2-22. On May 26, 2017, Mader was informed that Lowe's
would not be altering its remedial action plan. Mader. Dep.
88:17-21. That day, Mader tendered her letter of resignation.
Mader Dep. 89:8-11. Mader again expressed to concern about
having to continue working with Mader, and Lowe's did not
again reiterate their week-old offer to look into changing
Heidzig's hours and said that the corporate office had
made its decision and there was nothing they could do. Mader
later fired Heidzig, and during that process asked Mader to
return to work, but Mader decided not to return. Doc. 19,
¶ 7; Doc. 24, ¶ 7.
14, 2018, Mader filed a Complaint against Lowe's and
Heidzig. Doc. 1. In her Complaint, Mader alleges claims for
hostile work environment in violation of 42 U.S.C. §
2000e-2(a)(1), intentional infliction of emotional distress,
vicarious liability, punitive damages, and breach of
contract. Doc. 1.
April 2, 2019, Lowe's filed a Motion for Summary
Judgment, and in its Motion, asks the Court to grant summary
judgment in its favor and dismiss each of Mader's claims.
The Motion for Summary Judgment has been fully briefed by the
parties and the Court heard oral argument on the motion on
August 8, 2019. For the following reasons, the Court grants
summary judgment in favor of Lowe's on Mader's claims
alleging intentional infliction of emotion distress,
vicarious liability, and breach of contract and denies
summary judgment on Mader's hostile work environment
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where "there is no dispute as to
any material fact and the movant is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(a). "The movant
'bears the initial responsibility of informing the .. .
district court of the basis for its motion,' and must
identify 'those portions of [the record] . . . which it
believes demonstrate the absence of a genuine issue of
material fact.'" Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2001) (en banc)
(quoting Celotex Corp v. Catrett, 477 U.S. 317, 323
(1986)). Once the motion for summary judgment is made and
supported, it places an affirmative burden on the non-moving
party to go beyond the pleadings and cite to particular parts
of materials in the record, showing that there is a genuine
issue for trial. See Commercial Union Ins. Co. v.
Schmidt, 961 F.2d 270, 271 (8th Cir. 1992); Fed.R.Civ.P.
56(c). The nonmovant must do more than "assert
'the mere existence of some alleged factual dispute
between the parties'; the [nonmovant] must assert that
there is a 'genuine issue of material fact'"
Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th
Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) (emphasis omitted)).
has moved for summary judgment on Mader's claims
alleging: sexual harassment and hostile work environment in
violation of 42 U.S.C. § 2000e-2(a)(1), intentional
infliction of emotional distress, vicarious liability, and
breach of contract.
Sexual Harassment/Hostile ...