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Mader v. Lowe's Home Centers, LLC

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

August 16, 2019

VICKIE MADER, Plaintiff,
v.
LOWE'S HOME CENTERS, LLC, and RONALD HEIDZIG, Individually, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING AND PART MOTION FOR SUMMARY JUDGMENT

          Lawrence L. Piersol, United States District Judge

         On June 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.

         On 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 matter.

         For the following reasons, this Court grants in part and denies in part Lowe's' motion for summary judgment.

         BACKGROUND

         In May 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.

         Lowe's 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.

         On May 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.

         After 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 Dep. 48:16-19.

         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 before it.

         At some 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.

         On or 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.

         At that 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. 82:16-19.

         Sometime 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).

         After 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 Dep. 92:14-22.

         Lowe's 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.

         On June 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.

         On 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 claim.

         STANDARD OF REVIEW

         Under 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)).

         DISCUSSION

         Lowe's 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.

         I. Sexual Harassment/Hostile ...


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