United States District Court, D. Nebraska
LEKENVISH S. ALFORD, an individual; Plaintiff,
PETROL III, LLC, a Nebraska Limited Liability Company; Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
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.
STANDARD OF REVIEW
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.
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).
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.
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.
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.
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.
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.
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,
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.
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 ...