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Nelson v. Zinke

United States District Court, D. Montana, Missoula Division

February 27, 2018

KAREN JANE NELSON, Plaintiff,
v.
RYAN ZINKE, SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, and LAWRENCE LOCKARD, Defendants.

          OPINION AND ORDER

          Donald W. Molloy, District Judge United States District Court.

         In October 2016, Plaintiff Karen Nelson ("Nelson") sued Defendant Ryan Zinke, Secretary of the United States Department of the Interior ("the Department"), and Lawrence Lockard ("Lockard") because she was sexually assaulted on a work scuba diving trip in September 2015. Nelson seeks to hold the Department liable for sexual discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), and to hold Lockard liable for negligence. (Doc. 1.) The Department moved for summary judgment, insisting that Nelson cannot show liability under Title VII as a matter of law. (Doc. 20.)

         Nelson's only chance of success on her Title VII discrimination claim is to show that Lockard was her supervisor. Given the isolated nature of the incident, Nelson cannot establish a hostile work environment. And, while Nelson raises a genuine issue of material fact as to the authority held by Lockard, she fails to show he could effectuate tangible employment action against her as a matter of law. Consequently, Lockard is not her supervisor for the purposes of Title VII. Because Nelson fails to show that the Department was negligent, summary judgment in the Department's favor is appropriate. The Department is also entitled to judgment on Nelson's Title VII retaliation claim.

         Factual Background

         The facts are largely undisputed, (see Fact Statements, Docs. 22, 33), but to the extent disputes exist, the factual record is viewed in the light most favorable to Nelson, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam).

         I. The Montana Ecological Services Office

         The United States Fish and Wildlife Service ("the Service") is one of many bureaus that make up the Department. (Doc. 33 at ¶ 1.) The Service itself is divided into regions and offices. (Id.) Both Nelson and Lockard worked for the Montana Ecological Services Office in Region 6. (Id.) The Montana Ecological Services Office is involved in the oversight and evaluation of federally funded, licensed, or permitted projects and provides expertise on environmental contamination issues. (Id. at ¶ 2.) It has two offices in Montana, one in Helena and a sub-office in Kalispell. (Id. at ¶ 4.)

         Nelson works in the Helena office as a toxicologist, (id. at ¶ 6), and Lockard worked in the Kalispell sub-office as a Fish and Wildlife Biologist, (id. at ¶ 10). Nelson was directly supervised in her daily activities by Jodi Bush in Helena. (Id. at ¶¶ 3, 5, 6.) Lockard was supervised by Ben Conard in Kalispell, with Bush as his second-line supervisor. (Id. at ¶¶ 9, 10.) Nelson's husband, Brent Esmoil, also works in the Helena office as a Deputy Field Supervisor. (Id. at ¶ 5.)

         II. The Dive Team

         Region 6 has a small dive team, consisting of eight volunteer members from several states in Region 6. (Id. at ¶ 12.) Participation in the dive program is voluntary and available to those who are qualified and express an interest in conducting dive team missions. (Id.) Divers must be authorized by their line supervisor to apply for participation and to take part in any particular dive or dive training. (Id.) James D. Chandler is the Chief of the Division of Safety and Occupational Health for Region 6 and has served as the Regional Dive Officer since 2012. (Id. at ¶ 14.) Because Chandler is not a diver, Mitch Osborne, the Region 7 Regional Dive Officer, assisted the Region 6 team by providing program oversight as required by Service policy. (Id.) Diving operations are governed by the Diving Safety Chapter of the Service Manual. (See Doc. 25-1.)

         Both Nelson and Lockard were on the Region 6 dive team. (Doc. 33 at ¶¶ 17, 19.) Lockard had served as the Region 6 Field Dive Officer since February 2015, (id. at ¶ 17), until he retired. Bush authorized Nelson's participation on the dive team, (id. at ¶ 19), and since she joined the team, Nelson has conducted dives on approximately 50 workdays, (id. at ¶ 18). Certain benefits are extended to members of the dive team that are not offered to other Service employees. Given the physical requirements of diving, supervisors are expected to provide the necessary time, equipment, and training for divers to meet and maintain authorization standards, including up to three hours a week for aerobic exercise and strength building. (Id. at ¶ 13.) Nelson therefore received three hours of paid physical training per week. (Nelson Decl., Doc. 34 at ¶ 6.) Dive team members may also receive dive insurance or paid certifications, (id. at ¶¶ 7-8), and be eligible for hazard pay, (Doc. 33 at ¶ 12).

         III. The Incident

         On September 11, 2015, Nelson reported a sexual assault to her supervisor, Jodi Bush. (Id. at ¶ 21.) At Bush's request, Nelson submitted a written statement and, on September 15, 2017, Bush emailed the statement to Special Agent in Charge for the Service Professional Responsibility Unit, Keith Toomey. (Id.; see Report, Doc. 26-2.) An undisputed summary of that statement is provided below:

Between September 8 and 10, 2015, Fish & Wildlife employees Lawrence Lockard, of the . . . Kalispell suboffice, Karen Nelson, Toxicologist, and Chris Downs, Fishery Biologist, Glacier National Park, conducted a dive mission at Quartz Lake in Glacier National Park. ... Quartz Lake is in a remote area of Glacier National Park, accessible by an approximately 6-mile hike from Bowman Lake. Nelson and Lockard slept in a small, one-room National Park Service cabin with two separate bunk beds. Downs slept outside because he did not wish to disturb anyone's sleep due to his sleep apnea.
On the evening of Wednesday, September 9, 2016 [sic], the second night at the site, Downs, Lockard, and Nelson ate dinner and drank a glass of wine. Nelson then took a sleep aid and went to bed; Downs again slept outside. Nelson recalls Lockard entering the cabin and getting into his bunk. She recalled that [Lockard] told her he snored and she had teased him by saying she had ear plugs and had taken a sleeping pill.
At some point during the night, Nelson became aware that someone was in bed with her, but she still was not awake enough to be aware of what was happening. She stated she could feel that the person had lifted her long underwear top, and was fondling her breasts and felt her long underwear bottoms being moved down. She was groggy and wondering where she was and reported that she originally thought that her husband was with her. She started to become more fully awake and knew that something wasn't right and stood up from her bunk. Lockard quickly moved from her bunk and crawled back to his own.
The following day, September 10, 2015, Lockard and Nelson hiked out of the area while Downs stayed behind to load their gear onto mules. During the hike, Nelson reported that she and Lockard discussed what happened the night before. Lockard told Nelson he had only realized that she had been asleep once she got up from her bunk. After hiking back to her vehicle, Nelson drove to a hotel in Kalispell, Montana, where she stayed the night in a hotel before driving back to Helena on Friday, September 11, 2015.

(Doc. 33 at ¶ 21 (internal citations omitted).) Nelson's report also included two photographs, one of the cabin, (Doc. 26-2 at 4), and one of the bunks inside, (id. at 5). Based on Nelson's administrative complaint, some of the comments Lockard made as they hiked out together included him describing sliding his hand up her leg to "hit [her] where it counts" and his attempt to remove her long underwear to "go down on [her]." (See Doc. 32-4 at 4.) He also claimed he thought she was receptive. (Id.)

         Prior to Nelson's report, no employee had ever reported to Bush that they had observed or were the victim of any inappropriate behavior by Lockard. (Doc. 33 at ¶ 22.) Nelson had never reported any concerns regarding sexual harassment or inappropriate behavior by Lockard toward her or anyone else. (Id.)

         IV. The Department's Response

         A. Initial Response

         On September 12, 2015, the day after Nelson reported the incident to Bush, Bush notified her supervisors, Nicole Alt and Michael Thabault. (Id. at ¶ 24.) Bush also contacted Human Resources and Kathy Dennis, the Assistant Regional Director for Budget and Administration. (Id.) Because Nelson and Lockard worked in separate offices that were located hours apart, according to policy it was determined that Lockard need not be placed on administrative leave. (Id.)

         The next day, Sunday, September 13, Bush contacted Michelle Rockwell, Regional Human Resources Officer for Region 6. (Id. at ¶ 25.) Bush informed Rockwell of the allegation and Rockwell concurred that administrative leave was not appropriate due to the substantial physical distance between the two employees. (Id.) Bush and Rockwell discussed informing Lockard that he was to have no contact with Nelson. (Id.) Bush was told that Carla Goltz was the Employee Relations Specialist handling the matter. (Id.) Bush also spoke to Ben Conard, Lockard's direct supervisor in Kalispell. (Id. at¶29.) Bush informed Conard of the incident and that Lockard was to have no contact with Nelson. (Id.)

         On Monday, September 14, Conard and Bush informed Lockard that he had been accused of sexual misconduct and that he was to have no contact with Nelson or her husband, was not to travel to the Helena office, and was to remove himself from any dive events in which Nelson-or any other female-would be involved. (Id. at ¶ 30.) Later that week, Bush prepared a memo, approved by Goltz, reiterating the oral notice given to Lockard. (Id. at ¶ 31.) The memo clarified that Lockard was to have no email, phone, or personal contact with Nelson or her husband. (Id.) The memo was provided to Conard and delivered to Lockard. (Id.) The memo also removed Esmoil from Lockard's chain of command. (Id. at ¶ 32.)

         B. Investigation

         On September 14, Keith Toomey, Special Agent in Charge for the Service's Professional Responsibility Unit, received a call from Les Seago, Assistant Special Agent in Charge, National Park Service, reporting that his office was investigating criminal allegations regarding the alleged sexual assault. (Id. at ¶ 33.) The Professional Responsibility Unit was notified based on the serious allegations of misconduct; however, because the incident occurred in the national park and the National Park Service had an agent in the vicinity, the National Park Service took the lead in the investigation. (Id.) On September 15, Toomey informed Bush that jurisdiction for the investigation of the incident was a joint effort of the National Park Service and Fish and Wildlife Service, that a criminal investigation was being conducted, and that Human Resources would not conduct interviews until the United States' Attorney made a decision about bringing a criminal complaint. (Id. at ¶ 35.) Toomey also informed Goltz that the civil investigation would need to wait until after the criminal case. (Id. at ¶ 36.)

         On September 21, Human Resources learned that Lockard had put in his paperwork to retire with a planned retirement date of October 31, 2015. (Id. at ¶ 37.) Lockard's last day in the office was October 29. (Id.) Although the parties dispute when the Department became aware the criminal investigation was concluded, (see Id. at ¶ 39), on October 16, Nelson requested via email that expedited employment action be taken against Lockard, (id. at ¶ 41). Ultimately, the Professional Responsibility Unit decided not to pursue an administrative investigation until the criminal case was complete, (id. at ¶¶ 34-35), and due to Lockard's retirement, no administrative discipline ever occurred.

         C. Email Contact

         Prior to his retirement, Lockard's contact with Nelson was limited to two group emails. On September 29, Lockard announced his impending retirement in an email to 12 recipients, including Nelson. (Id. at ¶ 44.) On October 1, Conard verbally informed Lockard that he was not to have any contact with Nelson, including email. (Id.) On October 29, Lockard sent another group email to seven recipients, including Nelson, providing a scientific factual debrief of the September 8-10 dive mission. (Id. at ¶ 45.) Lockard retired within hours of sending that email, preventing Conard from discussing it with him. (Id.)

         D. Criminal Case

         On November 20, 2015, Lockard was indicted for attempted sexual abuse in violation of 18 U.S.C. § 2242(2) (Count I) and abusive sexual contact in violation of 18 U.S.C. § 2244(b) (Count II). (UnitedStates v. Lockard, CR 15-37-M-DLC, Doc. 1.) Lockard appeared in United States District Court on December 8, 2015, pled not guilty, and was released on conditions. (Id. at Doc. 5) On February 5, 2016, Lockard pled guilty to a Superseding Information charging abusive sexual contact in violation of 18 U.S.C. § 2244(b). (Id. at Doc. 14.) In his plea agreement, he admitted that he knowingly had sexual contact with Nelson without her permission. (Id. at Doc. 20, p. 3.) On May 20, 2016, Lockard was sentenced to six months custody with five years of supervision to follow and ordered to pay restitution in the amount of $ 21, 872.49. (Id. at Doc. 31, 36.) He was also required to register as a sex offender. (Id. at Doc. 31, p. 3.)

         E. Co-Worker and Supervisor Conduct

         Near the end of November 2015, Conard was made aware of a pending newspaper report about Lockard's indictment. (Doc. 33 at ¶ 47.) Conard informed his supervisees in the Kalispell sub-office of a possible news article. (Id.) Nelson argues that Conard did so at the behest of Lockard, as the two were friends. (Id.) The Department insists that Conard was told by someone other than Lockard and notified the office "in order to control the office environment, so that staff would not be taken by surprise." (Id.) Following Lockard's arraignment, Agent Toomey also contacted Bush to inform of possible press coverage. (Id. at ¶ 48.)

         After the commencement of the criminal proceeding became public, Nelson reported to Bush in January 2016 that the office's administrative officer, Sharon Hooley, was treating her coldly and no longer speaking to her. (Id. at ¶ 49.) Nelson felt that this was due to the action taken against Lockard. (Id.) Bush spoke with Hooley around January 29, 2016, explaining that the office was a working environment and that Hooley needed to work with Nelson regardless of her personal feelings. (Id.) Bush notified Hooley that if she could not control her behavior, Bush would need to bring in some assistance. (Id.) Hooley returned to work and confirmed with Bush that she would work with Nelson and knew what was expected of her. (Id.)

         A month later, Nelson reported another problem with Hooley. (Id. at ¶ 50.) In February 2016, Hooley sent an email to staff notifying them of an upcoming self-defense class. (Id.) Nelson reported that during a birthday celebration, the self-defense class came up and Nelson stated that she was not ready for one. (Id.) Nelson stated that Hooley looked directly at her and asked why she was not ready yet. (Id.) Nelson felt that this was a reference to the sexual assault. (Id.) Bush was not at the event, but met with Hooley on February 24 to discuss it. (Id.) Hooley denied any ulterior ...


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