Kathleen Leipold, Kathleen Able, and Lisa Wagner,
PORTER APPLE CO.,
a South Dakota corporation,
d/b/a Applebee's Neighborhood Grill & Bar,
[1998 DSD 43]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Dec 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] On October 1, 1997, Susan Rifenberick, Kathleen Leipold, Kathleen Albe, and Lisa Wagner ("plaintiffs") filed a complaint against Porter Apple Co. ("Porter Apple"), d/b/a Applebee's Neighborhood Grill & Bar ("Applebee's")(fn1) under Title VII of the Civil Rights Act of 1964, as amended, 42 USC §§ 2000e, et seq. ("Title VII"), and the South Dakota Human Relations Act of 1972, as amended, SDCL Ch. 20-13. Plaintiffs assert that during their employment with Porter Apple they were subjected to repeated instances of sexual harassment at the hands of their managers and co-workers. Currently before this Court is Porter Apple's motion for summary judgment (Docket #12). Plaintiffs have responded, and Porter Apple has replied. Jurisdiction is founded upon 28 USC §§ 1331, 1343(a)(4) and 42 USC 2000e-5(f).
[¶2] Each plaintiff worked at Applebee's in Rapid City, South Dakota, between November 1995 and August 1996.(fn2) Rifenberick Affidavit ("Rifenberick Aff.") at 1; Leipold Affidavit ("Leipold Aff.") at 1; Able Affidavit ("Albe Aff.") at 1; Wagner Affidavit ("Wagner Aff.") at 1. All four plaintiffs allege they were forced to resign or were terminated from their employment due to the pervasive discriminatory practices and hostile work environment at Applebee's. Rifenberick Aff. at 3; Leipold Aff. at 2; Albe Aff. at 2; Wagner Aff. at 3.
[¶3] The Rapid City Applebee's franchise is owned and operated by the Porter Apple Company. Defendants' Statement of Material Facts ("Defendants' SMF") at 1; Exhibit F, "Store Fact Sheet" Defendants' Motion for Summary Judgment. Todd Porter is both the owner of Porter Apple and the director of operations for Applebee's. Exhibit F, "Store Fact Sheet" Defendants' Motion for Summary Judgment. During the time frame pertinent to this lawsuit, Applebee's maintained an all-male management team at its Rapid City location. Id. Todd Schriever was the general manager; Tom Nuagle served as the service manager; Pat Hirsch was the bar manager; Lynn Versteeg functioned as the assistant general manager and kitchen manager; and Jeremy Gorham was the assistant kitchen manager. Id.
[¶4] Plaintiffs assert that throughout their employment at at Applebee's they were continuously bombarded with foul language of a sexual nature, lewd gestures, and physical harassment.(fn3) According to Rifenberick, managers Hirsch, Naugle, and Gorham repeatedly referred to female servers as "fucking bitches," "fucking whores," and "sluts," among other foul names. Rifenberick Aff. at 1. In one instance, Rifenberick suffered pains in her leg following the surgical removal of a tumor in her lymph node. Needing to go the hospital emergency room, Rifenberick told manager Naugle of the pains in her leg, and he replied: "I have something between my legs. Would you like to take care of that?" Id. at 2. On another occasion, Naugle approached Rifenberick and asked her if she knew where he could "find a good piece of ass ... ." Id. at 2; Leipold Aff. at 1; Albe Aff. at 1.
[¶5] In addition, Rifenberick asserts that many of the female servers were subjected to obscene verbal attacks from the all-male kitchen staff if food was not being served in a timely manner. Rifenberick Aff. at 2. Female servers were often physically pushed aside and repeatedly called offensive names such as "fucking whores." Rifenberick left her employment at Applebee's following a final altercation with manager Hirsch. Upon being called a "fucking bitch" by Hirsch, Rifenberick threatened to leave her shift if Hirsch continued to use such foul language. Hirsch responded by summarily firing her. Id. at 3.
[¶6] The allegations of plaintiffs Leipold, Albe, and Wagner mirror those of Rifenberick. Like Rifenberick, Leipold alleges that male managers and co-workers subjected female servers to obscene verbal abuse "[o]n virtually a daily basis." Leipold Aff. at 2. Specifically, Leipold asserts that male cooks would often call her "cunt" or "fat cow." Id. at 2. On one occasion, a male cook threw a plate at Leipold in manager Gorham's presence. Leipold barely caught the plate in time to avoid injury. Manager Gorham responded by saying simply "good catch." Leipold provided Applebee's with a written two weeks notice of her intention to quit saying that she could no longer work under "these conditions anymore." Leipold Deposition ("Leipold Depo.") at 68. Leipold did not show up for her last two shifts at Applebee's. Leipold Aff. at 2.
[¶7] Plaintiff Albe also alleges that she, like other female servers, was continually bombarded with lewd and vulgar language. She too was often asked by manager Naugle where he could "find a good piece of ass." Albe Aff. at 1. According to Albe, manager Naugle also frequently came up behind her and rubbed her shoulders. When she objected to this physical contact he reportedly told her to "relax." Id. In addition, Albe alleges that she was physically accosted by a male cook who pushed her, stating "Get the fuck out of my way." Id. She also asserts that other male co-workers threw hand warmers and ice at her as well. Id. Albe quit following the pushing incident, saying that it "was the final straw." Albe Deposition ("Albe Depo.") at 26.
[¶8] Plaintiff Wagner's allegations are not unlike those of her co-plaintiffs. In addition to being continually subjected to obscene language, Wagner asserts that one of the male cooks repeatedly made lewd gestures towards her, sometimes standing behind her and whispering that he "had something for her to take care of . . ." and that he "had a wood for her." Wagner Aff. at 2. Another male cook also made frequent lewd gestures at her, pulling up his apron, and saying that he "had something underneath" for her. Id. According to Wagner, kitchen manager Gorham also used foul language with her and did nothing to stop the inappropriate behavior of the male cooks under his supervision, even when one male cook threw a wooden serving platter at Wagner in Gorham's presence. Id. Wagner quit after writing a letter to store management stating that if conditions did not change her last day of work would be June 30, 1996. Wagner Aff. at 3; Wagner Depo. at 72.
[¶9] According to plaintiffs, numerous complaints were verbalized to all levels of the Applebee's management team, but to no avail. Plaintiffs' Statement of Material Facts ("Plaintiffs' SMF") at 2. In addition, plaintiffs assert that various managers either participated in or witnessed many of the incidents described above, yet did nothing to curtail the behavior. Id. at 2-3. Following a complaint by Rifenberick to management, however, at least one co-worker, Trinity Wallace, was disciplined by manager Todd Schriever. Schriever Affidavit ("Schriever Aff.") at 3. Manager Schriever denies that Rifenberick made any additional complaints to him regarding the abusive working conditions. Id.
[¶10] Rifenberick also alleges that she took her complaints beyond the store to the owner, Tom Porter. Rifenberick asserts that she first called the office of Porter Apple and spoke to Porter's secretary, Kim. When Kim informed Rifenberick that Porter was not in the office, Rifenberick explained what was taking place at Applebee's.
[¶11] In speaking on the telephone to Porter, Rifenberick alleges that she outlined the egregious behavior of Applebee's management and employees and asked to meet with Porter in order to discuss the situation. Porter allegedly stated in response: "These managers are my dream team" and hung up the telephone. Plaintiffs' SMF at 5; Rifenberick Aff. at 3. Following this call, Rifenberick sent a letter to Porter at his Sioux Falls address again conveying her complaints regarding the situation at Applebee's. Plaintiffs' SMF at 4-5; Rifenberick Aff. at 3. Porter responded by phone, calling Rifenberick and her co-plaintiffs liars and allegedly making a veiled threat to Rifenberick. Plaintiffs' SMF at 5-6; Rifenberick Aff. at 4.
[¶12] In addition to their own complaints, plaintiffs contend that on more than one occasion customers eating in the store also registered complaints to the managers on duty after overhearing obscene language emanating from the kitchen and employee "break table" located within the dinning room. Plaintiffs' SMF at 4; Rifenberick Aff. at 3; Leipold Aff. at 2. In response to these complaints, the manager on duty simply instructed the offending male employees to lower their voices. None of the employees were ordered to stop using the abusive and obscene language. Plaintiffs' SMF at 2.
[¶13] Upon obtaining little to no relief from the Applebee's management team or Porter Apple, each plaintiff filed a sexual harassment claim with the South Dakota Division of Human Rights ("SDDHR") and the Equal Employment Opportunity Commission ("EEOC"). Plaintiffs' SMF at 1. Plaintiffs terminated their action with SDDHR on June 23, 1996, prior to a full investigation by the division. Id. The Denver District Office of the EEOC did, however, provide each of the plaintiffs with a "Right to Sue Letter" on July 10, 1997. Id.
[¶14] Although plaintiffs made numerous complaints to management regarding their working conditions, Porter Apple urges that they failed to avail themselves to a direct telephone complaint line designed to aid employees in seeking redress for sexual harassment in Applebee's stores. Porter Apple asserts that during the course of plaintiffs' employment at Applebee's each received an Employee Handbook that contained the following policy:
Any employee who has been harassed by a co-worker, supervisor, vendor, customer or agent of the company should promptly report the facts of the incident or incidents and the name(s) of the individual(s) involved to his or her supervisor and Human Resource Department. The confidentiality of your concerns will be maintained at all times. You should feel free to report such incidents with anonymity by calling LeAnn or Kim at the Corporate Office at (605) 361-5301.
Defendants' SMF 3. While it is undisputed that Applebee's maintained the employee handbook described above, only Albe admits she received a copy for review. Albe Depo. at 28; Leipold Depo. at 60; Wagner Depo. at 62; Rifenberick Depo. at 93-94.
[¶15] Following plaintiffs' sexual harassment complaints, Porter Apple discovered that all four had failed to divulge their complete work history on their employment applications. Defendants' SMF at 4-6, 9-12, 15, 19-20. Additionally, Wagner failed to divulge that she was a convicted felon, though she insists that she did tell the manager who interviewed her of her conviction. Id. at 19; Wagner Depo. at 43. Porter Apple urges that had it discovered the plaintiffs' omissions during their period of employment, it would have terminated them immediately. Defendants' SMF at 6, 12, 16, 20-21; Schriever Aff. at 2.
III. SUMMARY JUDGMENT STANDARD
[¶16] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶17] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The Supreme Court has instructed that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). The nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts," and "[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 106 S. Ct. at 1356.
[¶18] The trilogy of Celotex, Anderson, and Matsushita provides the Court with a methodology in analyzing motions for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson).
[¶19] For plaintiffs to establish a violation of Title VII(fn4), they must prove that "discrimination based upon sex has created a hostile or abusive work environment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 67; 106 S. Ct. at 2399. Accordingly, plaintiffs "must show both that the offending conduct created an objectively hostile environment and that . . . [each] subjectively perceived her working conditions as abusive." Rorie v. United Parcel Service, Inc., 151 F3d 757, 761 (8th Cir. 1998) (quoting Hathaway v. Runyon, 132 F. 3d 1214, 1221 (8th Cir. 1997).
[¶20] A prima facie hostile work environment claim under Title VII requires the plaintiff show that:
(1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) [Porter Apple] knew or should have known of the harassment and failed to take proper remedial action.
Kopp v. Samaritan Health Sys., Inc., 13 F3d 264, 269 (8th Cir. 1993). When attempting to discern the amount of harm surrounding a hostile work environment claim, the district court is required to examine the "totality of circumstances," without dividing the work environment into a series of isolated incidents. Burns v. McGregor Electronic Indus., Inc., 989 F2d 959, 961 (8th Cir. 1992).
[¶21] Porter Apple seeks judgment as a matter of law on three grounds: (1) that plaintiffs failed to exhaust their administrative remedies under South Dakota law, thereby divesting this Court of jurisdiction over their claims; (2) that plaintiffs' own wrongdoing and falsifications bar them from obtaining the remedies they seek; and (3) that plaintiffs failed to avail themselves of the sexual harassment policies and procedures set in place by Porter Apple, thereby barring their claims. The Court will address these claims in the order in which they have been made.
[¶22] A. Exhaustion of Administrative Remedies
[¶23] Porter Apple challenges this Court's jurisdiction to hear plaintiffs' sexual harassment claims due to plaintiffs' failure to fully exhaust their administrative remedies under South Dakota law. Defendants' Memorandum of Law in Support of Motion for Summary Judgment ("Defendants' Memorandum of Law") at 2. Porter Apple's challenge is simply too broad.
[¶24] Plaintiffs' sexual harassment claim is founded on both the South Dakota Human Relations Act of 1972, as amended, SDCL Ch. 20-13, and Title VII. The Court is in agreement with Porter Apple that plaintiffs failed to exhaust their administrative remedies in regard to their claim of sexual harassment under South Dakota law; however, this failure does not affect the Court's jurisdiction to entertain plaintiffs' claims under Title VII. See, e.g., Whitmore v. O'Connor Managment, Inc., 156 F3d 796 (8th Cir. 1998) (employee's failure to exhaust state administrative remedies precluded claims under Missouri Human Rights Act, Title VII claim considered on its merits).
[¶25] It is well settled in South Dakota that claims of sexual harassment must first be filed with SDDHR in order to exhaust administrative remedies. See Weller v. Spring Creek Resort, Inc., 477 NW2d 839, 840 (S.D. 1991). A plaintiff wishing to avail herself of a judicial forum may not "bypass . . . [this] legislatively mandated process." Id. While it is true that plaintiffs need not carry the administrative process to completion before starting a civil action, the administrative process must at least have had an opportunity to fully "run its course." SDCL 20-13-28; Tombollo v. H. Dunn, 342 NW2d 23, 24 (S.D. 1984).
[¶26] For the SDDHR "to achieve its human rights objectives, it must receive all sexual harassment complaints before such claims enter the judicial process." Montgomery v. Big Thunder Gold Mine, Inc., 531 NW2d 577, 579 (S.D. 1995); SDCL 20-13-7. Thus, a potential civil litigant must first have followed all the steps in the requisite administrative process, including an appeal, if necessary. Jansen v. Lemmon Federal Credit Union, 562 NW2d 122, 123 (S.D. 1997).
[¶27] Once the mandatory charge of sexual harassment has been made to SDDHR, the division is thereby empowered to validate the charge. After a full investigation, and if probable cause is found, SDDHR may begin its reconciliation efforts between the parties. SDCL 20-13-32; Jansen, 562 NW2d at 123. If the reconciliation process becomes futile, the respondent is given notice to answer the charge at an administrative hearing. SDCL 20-13-32. Only at this point may a charging party elect to sue for damages in a judicial forum in lieu of an administrative proceeding. SDCL 20-13-35.1; Jansen, 562 NW2d at 123-24.
[¶28] In this case, plaintiffs properly filed a complaint with SDDHR; however, they improperly withdrew their complaint well before a full investigation had ensued. Because of their withdrawal, SDDHR lost its opportunity to determine whether probable cause was or was not present. Plaintiffs could not proceed to a judicial proceeding until SDDHR had fully investigated the charges and attempts at reconciliation had failed. Accordingly, the Court finds that plaintiffs failed to exhaust their administrative remedies under the South Dakota Human Relations Act of 1972, thereby barring this Court's consideration of plaintiffs' claims under the act. Nonetheless, because plaintiffs did fully exhaust their administrative remedies before the EEOC, the Court concludes that it may entertain plaintiffs' Title VII claim.
[¶29] B. Plaintiffs' Wrongdoing and Falsification as a Bar
[¶30] Porter Apple asserts that the plaintiffs' own wrongdoing and falsification of their employment applications bars them from obtaining the remedies they seek: "Plaintiffs should not be rewarded for cleverly concealing the truth about their past from Porter Apple, and their claims should be dismissed." Defendants' Memorandum of Law at 4. The Court disagrees.
[¶31] Porter Apple premises this assertion on the doctrine of "after-acquired evidence." Under this doctrine, evidence of a wrongdoing which occurred during a plaintiff's employment may be asserted as a bar to some forms of remedial relief (usually reinstatement and back pay) under Title VII if the defendant establishes that it would have terminated the employee had it known of the wrongdoing. Carr v. Woodbury County Juvenile Detention Center, 905 F. Supp. 619, 621 (N.D. Iowa 1995). Porter Apple cites the case of McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995)(fn5) to support its proposition that this Court may, on summary judgment, completely dismiss plaintiffs' claims due to their alleged wrongdoing under the after-acquired evidence doctrine.
[¶32] Porter Apple misapprehends the holding of McKennon. In contrast to Porter Apple's suggestion that the plaintiffs' claims are barred, the Court in McKennon rejected the line of cases holding that after-acquired evidence of misconduct acts as a complete bar to recovery, concluding instead that it affects only the amount of damages an employee may recover. 513 U.S. at 358, 115 S. Ct. at 884-85. Thus, whether or not an employer may have fired an employee upon learning of certain damning evidence is a matter to be considered following the presentation of the merits of the case and not at the summary judgment phase. Hence, the Court does not feel it is at liberty to dismiss plaintiffs' claims out of hand as Porter Apple urges.
[¶33] Porter Apple also asks the Court to dismiss plaintiffs' claims based upon its contention that plaintiffs obtained better paying jobs following their employment at Applebee's and thus have failed to show any economic damages.(6) The Court finds this argument to be completely unavailing. "Congress designed the remedial measures in . . . [Title VII] to serve as a 'spur or catalyst' to cause employers to 'self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of discrimination.'" McKennon, 513 U.S. at 357, 115 S. Ct. at 884 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S. Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975)). This being the case, Title VII has two major objectives: compensation and deterrence. McKennon, 513 U.S. at 357, 115 S. Ct. at 884. "The private litigant [in Title VII] not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices." Id. at 357, 115 S. Ct. at 884. In light of this policy, the Court will not dismiss plaintiffs' claims based upon Porter Apple's assertion that plaintiffs have not established that they are entitled to monetary damages. A contrary approach would undermine the congressional policy against discriminatory employment practices promoted by Title VII.
[¶34] C. The Failure to Use Porter Apple's Sexual Harassment Reporting Procedures
[¶35] Porter Apple urges that plaintiffs failed to use the sexual harassment reporting procedures available to all Applebee's employees, and therefore Porter Apple should not be liable for any continuing harassment. Defendants' Memorandum of Law at 10-11. The Court disagrees.
[¶36] Porter Apple cites the companion cases of Burlington Indus., Inc. v. Ellerth, U.S. , 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), and Faragher v.City of Boca Raton, U.S. ,
118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) in support of its position. In both of these cases, however, the Supreme Court held that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by [the employee's] supervisor." Burlington at , 118 S. Ct. at 2261; Faragher at , 118 S. Ct. at 2278-79 (emphasis added). An employer may defend against liability and damages if it establishes by a preponderance of the evidence "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Burlington at , 118 S. Ct. at 2270; Faragher at , 118 S. Ct. at 2279.
[¶37] Porter Apple insists that it provided the requisite corrective opportunities to plaintiffs through its Employee Handbook. In the Handbook, an employee who was feeling sexually harassed was to register a complaint with her supervisor and the "Human Resources Department." In addition, the employee was instructed to "feel free to report such incidents with anonymity by calling LeAnn or Kim at the Corporate Office at (605) 361-5301." Though it is undisputed that Porter Apple maintained the above sexual harassment policy in its Employee Handbook, it does not necessarily follow that Porter Apple is automatically insulated from all liability. An examination of the facts reveals that only one of the four plaintiffs has even admitted receiving the Handbook. Moreover, the Eighth Circuit has recently held that the question of whether an employer's sexual harassment policy is sufficient to establish an affirmative defense under Burlington and Faragher "is best left to the finder of fact." Phillips v. Taco Bell Co., 156 F3d 884, 889 (8th Cir. 1998).
[¶38] In addition, the Court notes that it is Porter Apple's burden to establish both prongs of the Burlington/Faragher affirmative defense by a preponderance of the evidence. Yet, despite this heavy burden, Porter Apple makes little more than an half-hearted attempt to show that plaintiffs failed to take advantage of the Handbook's complaint procedure and makes no attempt whatsoever to show that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior.
[¶39] Nonetheless, even assuming arguendo that plaintiffs did unreasonably fail to take advantage of Porter Apple's sexual harassment policies and procedures, Porter Apple's argument under Burlington and Faragher still fails. An employer may not avail itself of this affirmative defense "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Burlington at , 118 S. Ct. at 2270; Faragher at , 118 S. Ct. at 2279. Under the facts of the instant case, plaintiffs have each alleged that the sexual harassment they suffered at the hands of their managers culminated in the tangible employment action of actual or constructive discharge. Accordingly, Porter Apple may not, at least at the summary judgment phase, avail itself of the affirmative defense outlined in Burlington and Faragher.
[¶40] Finally, Porter Apple's argument under Burlington and Faragher ignores the alleged sexual harassment plaintiffs suffered at the hands of their co-workers. For an employer to be liable for co-worker harassment, plaintiffs must show that the employer knew or should have known of the harassment and failed to remedy the problem. See, e.g., Whitmore, 156 F3d at 802; Varner v. National Super Markets, Inc., 94 F3d 1209, 1213 (8th Cir. 1996). Plaintiffs have alleged that they repeatedly complained to all levels of the Applebee's management team, even going so far as to contact the owner of Apple Porter, Tom Porter. Though a company will not be liable for isolated instances of sexual harassment by a co-worker, when the incidents are so egregious, numerous, and concentrated so as to add up to a campaign of harassment, as has been alleged in the instant case, the employer will be culpable for failing to discover what is going on and to take remedial steps. Hall v. Gus Construction Co., Inc., 842 F2d 1010, 1016
(8th Cir. 1988) (citing Hunter v. Allis-Chalmers Corp., Engine Div., 797 F2d 1417, 1421-22
(7th Cir. 1986). Accordingly, the Court finds that defendants' motion for summary judgment based upon plaintiffs' alleged failure to avail themselves of Porter Apple's sexual harassment complaint procedure is without merit. In light of this determination, as well as the Court's previous discussion, it is hereby
[¶41] ORDERED that Porter Apple's motion for summary judgment (Docket #12) is granted only as to plaintiffs' claims under the South Dakota Human Relations Act of 1972. Plaintiffs' claims under the South Dakota Human Relations Act of 1972 shall be dismissed.
[¶42] IT IS FURTHER ORDERED that Porter Apple's motion for summary judgment
(Docket #12) is denied in all other respects.
[¶43] IT IS FURTHER ORDERED that Porter Apple's motion for oral argument (Docket #12) is denied.
1. The Court will refer to the defendant as "Porter Apple" and the location of the events at issue as "Applebee's."
2. Susan Rifenberick worked from December 1995 to July 1996.
Kathleen Leipold worked from November 1995 to August 1996.
Kathleen Albe worked from November 1995 to July 1996.
Lisa Wagner worked from November 1995 to June 1996.
3. Plaintiffs' allegations of sexual harassment are too numerous for the Court to recount in full. The Court is cognizant, however, of each and every allegation involved, though, for purposes of brevity it has chosen to recount only a representative portion.
4. Section 703(a) of Title VII forbids an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's ... sex.
42 USC § 2000e-2(a)(1).
5. In McKennon, the employer discharged the employee because of her age. The employer later found out that while still employed by defendant, the employee had wrongly copied some confidential documents from the company's files. The defendant employer contended that had it known of this improper behavior at the time it would have fired her on that basis alone. The Supreme Court reversed the district court's summary judgment on behalf of the employer and found that an employee was not barred from all relief when the employer discovered evidence of the employee's wrongdoing. McKennon, 515 U.S. at 358, 115 S. Ct. at 884-85.
6. The Court holds no opinion as to whether plaintiffs have or have not suffered any economic damages due to their ability to obtain better paying employment.