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Alford v. Petrol III, LLC

United States District Court, D. Nebraska

April 15, 2019

LEKENVISH S. ALFORD, an individual; Plaintiff,
v.
PETROL III, LLC, a Nebraska Limited Liability Company; Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the Court on Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Filing No. 30. Plaintiff brought this action alleging sexual harassment and retaliation in employment under 42 U.S.C. 2000e-2 et seq, 42 U.S.C. 2000e-3 et seq, Neb. Rev. Stat. §§ 48-1001 et seq., and Neb. Rev. Stat. §§ 48-1114 et seq. Filing No. 1. Plaintiff dually filed her charge of retaliation with the Nebraska Equal Opportunity Commission (“NEOC”) and the Equal Employment Opportunity Commission (“EEOC”). Filing No. 1, at 2. The EEOC issued a right to sue letter on December 23, 2016. Id. at 3.

         I. STANDARD OF REVIEW

         Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “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. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). ”If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.'” Id. (quoting Celotex, 477 U.S. at 324). “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If “reasonable minds could differ as to the import of the evidence, ” summary judgment should not be granted. Id. at 251.

         The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations.” Id. “Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).

         II. BACKGROUND

         This case involves allegations that Defendant retaliated against Plaintiff after Plaintiff reported to her general manager and store manager that she was being sexually harassed by a coworker. Filing No. 1. In August of 2015, Plaintiff was hired by Defendant to work at Defendant's store, Kicks 66. Id. at 1. According to the Plaintiff, two months into her employment, a coworker named James (Terrell) Henderson (“Henderson”) started sexually harassing her verbally and via text message. Id.

         Specifically, Plaintiff reported that Henderson continually subjected her to offensive, lewd, and lascivious harassment. Id. Plaintiff has produced text messages from Henderson which include lewd and offensive messages containing the following statements: “You work 2 night? I'm taking that pussy wait on it”, “Bitch fuck you keep saving that pushy you dike ass bitch acting like you ant neva fucked a nigga b4”, and “when you gonna let me fuck? You been playing and acting like you don't even fuck with a nigga at work.” Id. at 4.

         According to both parties, on November 4, 2015, Plaintiff reported the sexual harassment to Store Manager, Rodney Collins (“Collins”). At this time, Plaintiff forwarded the text messages Henderson had sent her to Collins. Plaintiff alleges that Collins forwarded these messages to the General Manager, Debra Kielty (“Kielty”). Filing No. 1, at 5. Both parties contend that Kielty subsequently paid a visit to the store location on this date while both Plaintiff and Henderson were at the location.

         Plaintiff further alleges that Kietly intimidated her on this date to not make a sexual harassment report. Id. Plaintiff reports that Kielty met with her privately and told her that she did not have any evidence and then subsequently brought Henderson in for a private meeting before bringing both Plaintiff and Henderson into the office, so they could confront each other in the presence of Kielty. Id. Plaintiff reports that Kielty threatened her with “serious consequences” if she pursued sexual harassment charges based on her allegations. Id.

         In contrast, Defendant alleges that Kielty came to the store on November 4, 2015 and diffused the situation. Filing No. 31, at 1-2. According to Defendant, Henderson reported to Kielty on this date that he and the Plaintiff had a history prior to employment at Kicks 66 and used to see each other. Id. at 6. Plaintiff denies that she and Henderson ever had a sexual relationship and reported that she only knew him as an acquaintance. Filing No. 35, at 6. Defendant contends that Kielty looked at Henderson's phone during her private meeting with him and saw that Plaintiff and Henderson had communicated back and forth including Plaintiff asking Henderson for some of his prescribed pain pills two days prior. Filing No. 31, at 6. Defendant alleges that Kielty told Henderson that harassment was wrong and that Kicks 66 was not tolerant of that behavior. Id.

         After the confrontation in the office, the Plaintiff and Defendant have different characterizations of an argument between Plaintiff and Henderson which Kielty witnessed inside of the store. According to the Defendant, Henderson and Plaintiff argued like a married couple for a minute, there was no physical altercation, and no threats of physical violence. Id. at 6-7. According to the Plaintiff, Henderson “ranted and raved” including using explicit language and screaming at Plaintiff while Kielty stood watch for customers at the store's front door. Filing No. 35, at 7.

         Defendant alleges that Kielty told Plaintiff that sexual harassment claims are treated very seriously and asked Plaintiff if she wanted to pursue the charge. Filing No. 31, at 7. Defendant reports that Plaintiff told Kielty she would contact Kielty the next morning with her decision. Id. In contrast, Plaintiff alleges that Kielty told her that she would be in serious trouble if she was lying about Henderson and needed to think about it. Filing No. 35, at 7-8. Plaintiff contends that she repeated that she wanted to pursue a charge of sexual harassment at this time. Id.

         Both parties contend that the next day Kietly texted Plaintiff and asked what she had decided. Plaintiff responded, “Hey Ms Deb…Well I guess I'll hold off he said he'll stay in his lane and do his job and I'll do mines and we'll be cordial. He apologized and said if I took anything out of context. But I'm sorry Deb we cool.” Defendant contends that after this text message exchange Kielty felt the matter was closed. Filing No. 31, at 8. Plaintiff asserts that when she texted Kielty the next day she already felt as though her general manager ...


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