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Delgado v. GGNSC Grand Island Lakeview LLC

United States District Court, D. Nebraska

April 27, 2017

TARA DELGADO, Plaintiff,
v.
GGNSC GRAND ISLAND LAKEVIEW LLC, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         The 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.[1] The defendant has moved for summary judgment. For the reasons explained below, the defendant's motion will be granted in part and denied in part.

         BACKGROUND

         The 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 Place.

         1. Plaintiff's Employment

         Delgado 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 resources.
If you feel the matter cannot be handled at your department level, contact your compliance liaison-your group's vice-president.
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[2] or to human resources personnel by filling out a problem resolution form available to all employees. Filing 53 at 3-4.

         Delgado 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 7.

         Delgado's 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.

         Filing 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 9.

         2. Alleged Harassment

         Roy 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.

         On or 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.

         Over a 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.

         The 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.

         In July 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.

         On 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.

         Prior 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.

         3. Extent of Harassment and Other Complaints

         According 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.

         Golden 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.[3]

         Other 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 3.

         But as 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 that.

         Filing 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.

         Delgado 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 ...

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