Allen v. Oil

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DONNA ALLEN, Plaintiff, v. M.G. OIL, d/b/a HAPPY JACKS CASINO, Defendant.

No. 4:23-CV-4052

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

February 20, 2024

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant, M.G. Oil's, d/b/a Happy Jacks Casino, Motion to Dismiss Plaintiff's complaint. (Doc. 3). For the following reasons, Defendant's Motion to Dismiss is. denied. .

BACKGROUND

On or about June 16, 2021, Plaintiff began working at the Happy Jacks Casino in Sioux Falls, South Dakota. (Doc. 1, ¶ 6). Plaintiff was later transferred to the Happy Jacks Casino location on Western Avenue in Sioux Falls and was promoted to an assistant manager position. (Doc. 1, ¶ 7). Richard Moe (“Moe”) was Plaintiff's manager and direct supervisor at the Western Avenue location. (Doc. 1 ¶ 8). In January 2022, Moe began sexually harassing Plaintiff by sending her suggestive text messages photographs, and love songs, including repeated invitations to his home to engage in sexual activity. (Doc. 1 ¶.,9). Plaintiff repeatedly told Moe to stop, but the messages from him continued and were relentless. (Doc. 1, ¶ 10). The messages were so frequent and offensive that co-workers and customers complained about the frequency of the text messages that Plaintiff was receiving. (Doc. 1, ¶ 11). Plaintiff was unable to turn her phone off because she needed to be available to answer calls and text messages from other employees and from her son, who is autistic. (Doc. 1, ¶ 12). Moe also frequently made lewd and offensive comments to Plaintiff while she was working. (Doc. 1, ¶ 13).

On or about March 16, 2022, Plaintiff called Dave Kulish (“Kulish”), Defendant's general manager, to report the sexual harassment. (Doc. 1, ¶ 14). The following morning, on March 17, 2022, Plaintiff emailed and texted Pam LaCroix (“LaCroix”), Defendant's casino supervisor, and Steve Rickenbach (“Rickenbach”), Defendant's Sioux Falls casino manager, to report the sexual harassment. (Doc. 1, ¶ 15). On the morning of March 17, 2022, Plaintiff met with LaCroix and Rickenbach for approximately one and a half hours to discuss the situation and to show them the hundreds of suggestive text messages that she had received from Moe. (Doc. 1, ¶ 16). LaCroix and Rickenbach stated that they would meet with Moe and planned to terminate his employment, and encouraged Plaintiff to seek a restraining order against him. (Doc. 1, ¶ 17). Later that same day, LaCroix contacted Plaintiff to tell her that she had met with Moe, that he had admitted to sexually harassing Plaintiff, and that his employment would be terminated. (Doc. 1, ¶ 18).

On or about March 17, 2022, at LaCroix's and Rickenbach's urging, Plaintiff filed a Petition and Affidavit for a Protection Order (Stalking, or Physical Injury as a Result of an Assault, or a Crime of Violence) against Moe. (Doc. 1, ¶ 19). Plaintiff's Petition for a Protection Order sought to restrain Moe from contacting her or from coming withing 1,000 feet of her residence or the Happy Jacks Casino location on Western Avenue. (Doc. 1, ¶ 19).

On March 30, 2022, Doug Reilly (“Reilly”), who is Rickenbach's assistant, informed Plaintiff that Moe had only been suspended for two weeks, and that he would be returning to his manager position at the Happy Jacks Casino location on Western Avenue. (Doc. 1, ¶ 20). To avoid contact between Moe and Plaintiff, Reilly told Plaintiff that she-not Moe-was to be transferred to a different location. (Doc. 1, ¶ 20). When Plaintiff expressed concerns that she may still be required to have contact with Moe in her duties as an assistant manager at a different location, Reilly responded, “that's probably why you won't be assistant manager,” indicating that Defendant also planned to demote Plaintiff from her current position to allow Moe to keep his position. (Doc. 1, ¶ 21). Upon information and belief, Happy Jacks did not terminate Moe's employment. (Doc. 1, ¶ 22). Upon information and belief, Moe is still employed with Defendant in a managerial role. (Doc. 1, ¶ 23). On or about March 30,2022, due to the alleged discrimination, sexual harassment, and retaliation that Plaintiff was experiencing, due to Defendant's alleged failure to adequately address it, and due to the fact that Plaintiff was allegedly forced to choose between her job continued contact with Moe, Plaintiff resigned from her position with Defendant. (Doc. 1, ¶ 24).

Shortly after Plaintiff left her position with Defendant, Plaintiff experienced a panic attack due to the stress she experienced from the incidents alleged. (Doc. 1, ¶ 25). Plaintiff continues to suffer extreme and debilitating emotional distress as a result of these alleged incidents. (Doc. 1, ¶ 26).

On or about April 12, 2022, Plaintiff's Petition for Protection Order was granted on a temporary, ex-parte basis for a period of one month, until May 10, 2022. (Docs. 1; 1-3). The Order for Protection, dated April 12, 2022, restrained Moe from contacting Plaintiff or from coming within 1,000 feet of Plaintiff, her residence, or the Happy Jacks location on Western Avenue. (Doc. 1, ¶ 27). Following a hearing on May 10, 2022, at which Moe did not appear, Plaintiff's Petition for a Protection Order was granted for a period of one year. (Docs. 1, ¶ 28; 14). The Order for Protection, dated May 10, 2022, restrained Moe from contacting Plaintiff or from coming within 1,000 of Plaintiff or her residence. (Docs. 1, ¶ 28; 1-4).

On or about May 20,2022, Plaintiff filed a formal Charge of Discrimination with the South Dakota Department of Labor and Regulation, Division of Human Rights, which was subsequently transferred to the Equal Employment Opportunity Commission (“EEOC”) for investigation. (Doc. 1, ¶ 29). On or about January 18, 2023, the EEOC issued Plaintiff a Dismissal and Notice of Rights. (Doc. 1, ¶ 30).

On April 13, 2023, Plaintiff filed a Complaint in this Court against M.G. Oil, d/b/a Happy Jacks Casino alleging the following claims: 1) Count I, Sex Discrimination in violation of Title VII of the Civil Rights Act; 2) Count II, Hostile Work Environment and Constructive Discharge in violation of Title VII of the Civil Rights Act; 3) Count III, Retaliation in violation of Title VII of the Civil Rights Act; 4) Count IV, Sex Discrimination in violation of the South Dakota Human Rights Act; 5) Count V, Retaliation in violation of the South Dakota Human Rights Act; 6) Count VI, Intentional Infliction of Emotional Distress. (Doc. 1).

On June 14, 2023, Defendant filed a Motion to Dismiss. (Doc. 3). The Motion has been fully briefed and is ready for disposition.

STANDARD OF REVIEW

“To withstand a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations to ‘state a claim to relief that is plausible on its face.' ” Smithrud v. City of St. Paul, 746 F.3d 391, 397 (8th Cir. 2014) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A court assessing such a motion must accept all factual allegations in the complaint as true and draw all inferences in favor of the nonmovant. Blakenship v. USA Truck Inc., 601 F.3d 852, 853 (8th Cir. 2010). Courts consider “plausibility” by “ ‘drawing] on [their] own judicial experience and common sense.' ” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Courts must “ ‘review the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation.' ” Id. (quoting Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)).

At the pleading phase, “a plaintiff need not plead facts establishing a prima facie case for [her] Title VII claim.” Warmington v. Bd. of Regents of the Univ, of Minn., 998 F.3d 789, 796 (8th Cir. 2021). Since “the prima facie model is an evidentiary, not a pleading, standard ... there is no need to set forth a detailed evidentiary proffer in a complaint.” Id. (quoting Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016)). However, the “elements of the prima facie case are [not] irrelevant to a plausibility determination in a discrimination suit.” Id. (quoting Blomker, 831 F.3d at 1056). The elements are “part of the background against which a plausibility determination should be made.” Id. Therefore, “[w]hile a plaintiff need not set forth detailed factual allegations or specific facts that describe the evidence to be presented, the complaint must include sufficient factual allegations to provide the grounds on which the claim rests.” Blomker, 831 F.3d at 1056 (citation omitted); see also Twombly, 550 U.S. at 555. “A claim is facially plausible where the plaintiff ‘pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' ” Warmington, 998 F.3d at 795 (quoting Iqbal, 556 U.S. at 678). “This standard ‘asks for more than a sheer possibility that a defendant has acted unlawfully.' ” Id. (quoting Iqbal, 556 at 678).

When the court considers a motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6), it examines the complaint and “ ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned' without converting the motion into one for summary judgment.” Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2001) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).

DISCUSSION

I. Counts I & IV - Title VII and Soutth Dakota Human...