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Root v. Montana Department of Corrections

United States District Court, D. Montana, Billings Division

May 23, 2019

DANIEL ROOT, Plaintiff,



         Plaintiff Daniel Root brings this action against Defendants Montana Department of Corrections (the “DOC”), Paul Law and Alex Schroeckenstein for retaliation relating to his employment as a correctional officer at the Montana Women's Prison. (Doc. 1.)

         Presently before the Court is Defendants' Motion to Dismiss, which has been referred to the undersigned under 28 U.S.C. § 636(b)(1)(B). The motion is fully briefed and ripe for the Court's review. (Docs. 6, 7, 8, 9, 10.)

         Having considered the parties' submissions, the Court RECOMMENDS Defendants' Motion to Dismiss be GRANTED in part and DENIED in part.

         I. BACKGROUND

         For the purposes of this motion, the Court accepts as true the following allegations contained in Root's Complaint. Wyler Summit P'ship v. Turner Broadcasting Sys, Inc., 135 F.3d 658, 661 (9th Cir. 1998).

         Root is an employee of the DOC, and works as a correctional officer at the Montana Women's Prison. At all times relevant to the allegations in the Complaint, Defendant Law was Root's supervisor, and Defendant Schroeckenstein was the assistant warden and overall supervisor of the Montana Women's Prison's employees.

         Root alleges that in early May 2017, he received information that Law had engaged in inappropriate sexual conduct with or towards a female prisoner. Within days, Root reported the information to a superior, Lieutenant Moorman, as required by DOC policy and the Prison Rape Elimination Act (“PREA”).

         On May 18, 2017, Law expressed to Root his anger at being the subject of an investigation. Root alleges Law subsequently made false accusations claiming Root and one or more other officers had made malicious comments about Law.

         On May 24, 2017, Law conducted a staff briefing, where he was angry and agitated. Law reportedly acted out during the briefing and expressed disdain for any officer who makes complaints against him, accused them of being vindictive, derided their commitment to the job, and recommended any such officer stop coming to work and take time off. Root contends Law's purpose in acting out at the briefing was to deter subordinate officers from making complaints about Law's conduct.

         After the May 24, 2017 briefing, Root presented a grievance under his union contract based on Law's conduct at the briefing. On June 8, 2017, DOC human resources personnel requested that Root suspend his grievance pending an investigation of Law's conduct. Root was promised he could re-file the grievance if he deemed it appropriate following the DOC investigation. The next day, Root agreed to suspend his grievance as requested.

         The DOC's investigation resulted in a decision to discipline Law. But the DOC declined to advise Root what discipline was imposed, or what remedial action was taken to prevent Law's misconduct in the future. Root alleges the DOC also informed him on July 14, 2017, that his grievance had been denied, contrary to its representation that it would be suspended.

         Beginning in July 2017, Root was assigned to act as “Officer in Charge” of the night shift. He performed the duties of the Officer in Charge on a majority of his working days from July 2017 through December 2017. In November 2017, Root applied for a promotion to the position of DOC Lieutenant. His application was rejected by Schroeckenstein in January 2018. Root alleges another officer was promoted who had less experience and qualifications for the job, and who had been subject to prior disciplinary actions. Root asserts he has never been subject to any disciplinary action by the DOC. He also states that shortly after his application was rejected, he was recognized as “Employee of the Quarter” for his job performance, including his work as Officer in Charge of his shift. Root alleges the DOC's decision to promote the other candidate over him was not made on the basis of merit and qualification, or without regard to the fact he had engaged in protected activities.

         Root contacted the Montana Human Rights Bureau on January 22, 2018 for purposes of filing a claim of discrimination and retaliation with that agency and the EEOC. On February 23, 2018, he filed his complaint with the Human Rights Bureau and EEOC. He filed an amended complaint on February 27, 2018.

         In May 2018, Root was subpoenaed to testify in court concerning Law and his conduct at work, and he was interviewed by the attorneys who subpoenaed him. From the interview, Root learned further information indicating Law had engaged or might engage in sexual misconduct toward female prisoners. Root ultimately appeared in court and testified on or about June 6, 2018.

         Root requested to be paid his usual compensation for the time he spent responding to the subpoena. The DOC declined his request as not work related, and only paid him for the one hour of testimony given on June 6, 2018. Root made no further effort to recoup his lost wages out of concern of retaliation.

         Following his interview with the attorneys involved in his court appearance, Root advised DOC human resources on May 18, 2018 that he had received additional information about Law's actions or propensity for sexual misconduct with female inmates. Root asked whether there were any options for reporting the PREA information outside the DOC because he was concerned about adverse actions being taken against him. On May 22, 2018, Root was advised he could report the information to the YMCA. But under DOC guidelines, the YMCA was not a third party to whom DOC officers or prisoners could report PREA information.

         On July 13, 2018, the DOC ordered Root to report any PREA information about Law to DOC personnel. He was threatened with action for violation of DOC policy if he did not respond as ordered. Therefore, Root reported the PREA information on July 13, 2018 to DOC human resources and his immediate supervisor, Lieutenant Johnston.

         Root alleges that after reporting the PREA information, Johnston acted out against him during their shift, made false and accusatory statements regarding Root's conduct in making the PREA report, and demanded Root meet unrealistic work assignments before the end of his shift. Root filed a grievance on July 20, 2018, concerning Johnston's actions, and he was re-assigned to a shift not commanded by Johnston. But on August 14, 2018, Root's grievance was denied, and he was returned to the shift commanded by Johnston.

         On September 12, 2018, Root met with a member of the media outside of work, who requested information regarding conditions at the prison, particularly instances of sexual misconduct by ranking officers. Root called the DOC to ask for clarification and guidance about whether he could discuss such matters with the media. Root alleges the DOC command officers declined to provide any guidance.

         On November 18, 2018, Root filed this lawsuit, alleging retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Count I); the Montana Human Rights Act (“MHRA”), Mont. Code Ann. Title 49 (Count II); and 42 U.S.C. § 1983 for violation of his First Amendment rights (Count III).

         II. ...

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