United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
plaintiff, Tara Delgado, has sued her former employer, GGNSC
Grand Island Lakeview LLC, for sexual harassment, hostile
work environment, retaliation, retaliatory hostile work
environment, and gender-based discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and the Nebraska Fair Employment Practices Act, Neb.
Rev. Stat. § 48-1101 et seq. Filing 15. The defendant has
moved for summary judgment. For the reasons explained below,
the defendant's motion will be granted in part and denied
defendant, GGNSC Grand Island Lakeview ("Golden
Living"), runs a skilled nursing facility that provides
long-term care to elderly residents. Filing 47 at 2.
The company has at least two facilities in Grand Island,
Nebraska: Golden Living Lakeview, and Golden Living Park
began her employment with Golden Living in 2002 at its Park
Place location. She later transferred to the Lakeview
facility, where she worked until taking medical leave in
December 2014. Filing 47 at 3, 8. At the start of
her employment, Delgado received training on Golden
Living's anti-harassment policy, which the company refers
to as the "Four-Step Compliance Communications
Process." Filing 53 at 5. That policy outlines
four paths employees may use if they believe they have been
the victim of, or a witness to, unlawful behavior. The
Four-Step Process directs employees to:
First, talk to your supervisor. He or she will be familiar
with the laws, regulations and policies that relate to your
work, and will be able to handle most matters.
If you are not comfortable talking with your supervisor (for
example, if you are questioning your supervisor's
conduct), talk to your supervisor's supervisor, or human
If you feel the matter cannot be handled at your department
level, contact your compliance liaison-your group's
If none of the above steps resolves your questions or
concerns, or if you prefer, call the toll-free Customer
Response and Compliance Hotline at 800-572-9981. All calls
are confidential, and you may call anonymously if you choose.
Filing 46-4 at 16. All employees were trained on
this policy, and it was published in Golden Living's
employee handbook. Filing 47 at 3. In addition to
the Four-Step Process, a victim or witness could report
sexual harassment to any supervisor or to human resources
personnel by filling out a problem resolution form available
to all employees. Filing 53 at 3-4.
transferred to Golden Living's Lakeview facility in July
2015. Initially, Delgado was a bath aid, but she later held
the positions of med aide, certified nursing assistant (CNA),
central supply and scheduling, and restorative aide.
Filing 46-3 at 3, 5-6. From around 2011 to 2014,
Delgado primarily worked as a restorative aide-but she was
occasionally assigned to the CNA or med aide positions
depending on staffing. Filing 46-3 at 5-6; filing 46-3 at
direct supervisor differed depending on her assigned duties
during a particular shift. See filing 52-1 at
11. For example, on days Delgado worked as a CNA or med
aide, her direct supervisor was the charge nurse on duty; but
if she was working as a restorative aide, her direct
supervisor was another Golden Living employee named Kim Long.
Filing 53 at 6. Jackie Connery, the assistant
director of nursing, provided the next level of supervision,
and she was in turn supervised by Laura Wolfe, director of
nursing. Filing 47 at 4. The facility's
executive director was Dean Dragon.
47 at 5. Brenda Knutson was the Nebraska area vice
president for Golden Living, filing 53 at 27, and
Kris Laverty was an HR consultant based in Omaha, Nebraska.
See filing 53 at 26; filing 55 at
Miller was hired as the facility's maintenance director
on March 31, 2014. Soon after, Delgado claims that Miller
began harassing her-calling her sexually discriminatory
names, making sexually charged statements, and subjecting her
to unwanted and inappropriate touching. According to Delgado,
Miller's alleged conduct continued on a near constant
basis over the following 6 months. Filing 47 at 4.
around June 11, 2014, Delgado claims that Miller cornered her
in an empty patient room and sexually assaulted her, grabbing
her breasts and buttocks. Filing 47 at 5; filing
52-1 at 28. Delgado claims to have reported the assault
to her sister and coworker, Lacie McGee, immediately after it
happened. Filing 52-1 at 29. Then, she says, she
completed a problem resolution form reporting Miller's
behavior, but when she attempted to deliver it to Dragon (the
executive director), he was not in his office. So, Delgado
states that she slid the completed form under his office
door. Filing 53 at 11.
month later, on July 17, 2014, Miller allegedly assaulted
Delgado again-this time touching her buttocks. Filing 47
at 5; filing 52-1 at 30. Delgado asserts that
she discussed Miller's behavior with McGee, before
completing another resolution form regarding Miller's
conduct. Delgado claims to have placed the resolution
form-like she had done before-under Dragon's office door.
Delgado then says she reported Miller's actions to the
office supplies manager, Lurleen Statler, who purportedly
responded: "oh honey, you should write him up for
that." See filing 52-3 at 10-11.
parties dispute whether Dragon or any other employee received
or saw the resolution forms Delgado claims to have left under
Dragon's door. Dragon says he never received the forms,
and there is no indication that Delgado personally followed
up with him to make sure that he did. Filing 47 at
5; filing 52-1 at 28. Further, other employees
with access to Dragon's office deny ever seeing the
forms. Filing 46-11 at 4-5. But Delgado claims that
after submitting the forms, Miller became distant and began
using derogatory language when speaking or referring to her.
Filing 53 at 11. This change in demeanor, Delgado
says, is evidence that Dragon received and discussed the
resolution forms with Miller.
2014, Delgado requested a copy of the employee handbook to
review Golden Living's policy for reporting harassment
and to retrieve the hotline number. But after receiving the
handbook, she did not review it, and did not immediately call
the hotline. Filing 55 at 10; see filing 52-1 at
20-22. However, Delgado claims to have called the number
months later-in or around September 2014-but it is unclear
what, if anything, she reported. Filing 52-1 at 22.
September 18, 2014, Delgado approached Connery, the assistant
director of nursing, and asked if Dragon was going to follow
up on her complaints. Connery inquired further, and Delgado
informed her of Miller's behavior and actions. Filing
47 at 7; filing 46-3 at 25. Connery was
supportive of Delgado, and by the next day, she (Connery) had
contacted HR consultant Laverty. Filing 46-11 at 5.
Laverty and Knutson (Golden Living's Nebraska-area vice
president) investigated Delgado's complaint, concluding
that Miller did, in fact, violate Golden Living's
anti-harassment policy. Miller's employment was suspended
during the investigation, and ultimately terminated.
Filing 47 at 7-8.
to September 18, 2014, Delgado did not directly report
Miller's harassing behavior and conduct to Laura Wolfe,
Jackie Connery, or Dean Dragon. Filing 46-3 at 26.
However, Delgado says that she complained about Miller's
conduct to her direct supervisor, Long, as well as other
facility managers-namely, Statler and Pointer. Delgado claims
that Long, Statler, and Pointer generally told her to
"write him up, " but otherwise ignored her
complaints. Filing 53 at 15.
Extent of Harassment and Other Complaints
to Delgado, a large majority of the facility's female
employees fell victim to Miller's sexually harassing
behavior, which numerous supervisors and employees
purportedly witnessed first-hand. See filing 52-1 at
23. Indeed, Delgado says that she personally witnessed
Miller harass employees Kayla Miller, Lacie McGee, and
Melissa Trejo. Filing 53 at 9. And, Delgado says,
"supervisors" Lurleen Statler, Kim Long, and Kayla
Rohmiller each witnessed Miller sexually harass Delgado.
Filing 53 at 14.
Living claims that the harassment was not wide-spread. After
all, it argues, while many of the individuals identified by
Delgado admitted to hearing rumors and gossip concerning
Miller's alleged conduct, very few actually witnessed it.
See e.g., filing 46-20 at 3; filing
46-21 at 3-5; filing 52-4 at 16-17; filing
46-11 at 17-18; filing 52-7 at 8; filing 55
at 4. For example, Delgado specifically names employees
Claudia Lopez and Maricruz Aguilera for the proposition that,
as of May 2014, "numerous female employees [had]
reported Miller's sexual harassment." Filing 53
at 16; filing 52-1 at 37. But when deposed,
Lopez testified that she never heard Miller say anything of a
sexual nature and never saw him engage in sexual contact.
Filing 46-21 at 4. And Aguilera testified that while
Miller bumped into her in the halls, she had not personally
experienced or heard his sexually suggestive comments or
behavior. Filing 46-20 at 3.
employees provided similar testimony. For example, Jackie
Connery was purportedly aware-through office gossip-of
Miller's behavior, but she did not see or hear any
sexually harassing conduct or speech. And when she spoke with
Trejo about a hotline tip (in which a caller reported Trejo
as being a victim of improper sexual contact), Trejo denied
the report. Filing 46-11 at 3. Further, Lurleen
Statler claims to have heard about Miller's alleged
harassment of Delgado, but she did not personally experience
or witness such conduct during Miller's employment with
Golden Living. Filing 46-18 at 2. And while Marsha
Pointer thought Miller was "rude and obnoxious, "
she, too, did not personally witness or hear any
sexually-suggestive comments or behavior. Filing 46-19 at
noted above, Delgado claims to have experienced and witnessed
Miller's harassment first-hand. See filing
52-1 at 23. For example, in addition to her own
allegations, Delgado claims that, on one occasion, she saw
Miller grab another employee's breast. Filing 52-1 at
25. She also claims that Miller grabbed the back of a
different female employee's hair
and made gestures like down towards his crouch [sic], like
push her head down. And she'd be like, Roy, stop it, stop
it. And he'd pull the back of her ponytall [sic]
backwards and say, you know you like that, you know you like
52-1 at 26. Record evidence-including statements from
both of the alleged victims-does, to some extent,
substantiate Delgado's account. See, filing
46-8 at 3; filing 46-9 at 3.
also testified to Miller's alleged verbal harassment. To
this end, Delgado claims that Miller would often approach
groups of women with sexually suggestive comments. See
filing 52-1 at 24. According to Delgado, Miller would
sometimes direct his comments to the entire group; but more
often, he would single out one member of the group.
Filing 52-1 at 25. On one occasion, Delgado says,
we [Delgado, Long, and Miller] had went outside, got in the
shed, whatever. We were coming out of the shed and there was
some people up on the roof fixing the roof or fixing the air
conditioner[.] . . . [Miller] yelled up to them and pretended
like he was zipping up ...