United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
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.)
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.)
considered the parties' submissions, the Court
RECOMMENDS Defendants' Motion to Dismiss
be GRANTED in part and DENIED in part.
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).
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.
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
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.
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
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.
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
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.
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.
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.
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
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.
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,
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
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.
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).