ROBERTO A. LANCE, District Judge.
Tim Lors, acting pro se, sued Defendants Jim Dean, Deb Dufour, Kim Stahl, and Otto Doll, both personally and as employees of the Bureau of Telecommunications of the State of South Dakota, as well as South Dakota Attorney General Marty Jackley, and then-South Dakota Governor Michael Rounds. Doc. 1. Lors alleged that the Defendants had terminated him from his employment with the State of South Dakota in violation of Title VII of the Civil Rights Act of 1964 and as a consequence of Lors having filed a prior civil suit charging some of the same defendants with unlawful discrimination.
This Court takes the facts primarily from Plaintiffs Supplemental Responsive Statement of Material Facts, Doc. 48, because, on summary judgment, this Court views the facts in the light most favorable to the non-movant, Tim Lors, This Court also draws the facts from Plaintiffs Supplemental Statement of Material Facts, Doe. 47, Lors's pro se filing regarding the facts, Doc. 16, and other materials of record not in genuine dispute.
Lors was employed by the South Dakota Bureau of Information and Technology ("BIT") from 1996 until April 23, 2009. Doc. 48 at ¶ 1. BIT provides telecommunication related information technology services for agencies of the South Dakota state government. Doc. 48 at ¶ 2. BIT operates South Dakota Public Broadcasting, wires computer programs for agencies, maintains communication infrastructure, and provides support to computer users throughout state government.
The support services component of BIT provides support to end users through the use of teams of technicians called "computer support teams." Doc. 48 at ¶ 3. Each team is responsible for the employees within a particular group of buildings or an area of the state.
After Lors was demoted to computer support analyst, he sued Defendants Dean, Dufour, Stahl, Doll, the State of South Dakota, and then-Attorney General Larry Long in the United States District Court for the District of South Dakota. Doc. 48 at ¶ 7;
In
In fairness, Lors had received positive comments with regard to his job performance throughout the history of his employment with BIT. Doc. 48 at ¶ 9. The performance reviews suggest that while at times very opinionated and assertive, Lors was very detail-oriented and knowledgeable. Doc. 47 at 6-13.
After his demotion, Lors was assigned to a team led by Dan Houck. Lors remained under the supervision of Jim Dean, but was instructed to follow team leader Houck's directives. Doc. 48 at ¶ 6. Issues developed between Houck and Lors. On September 3, 2008, BIT issued a formal reprimand to Lors for failing to follow a directive from team leader Houck and for being disrespectful to his team leader in his communications concerning the directive. Lors responded in writing to the formal reprimand referring to Houck's emails as "absurd and taunting" and expressing the belief that Houck had failed in his duties on this occasion and previously. Doc. 48 at ¶ 10; Doc. 15-4 at 2. Thereafter, Houck sent an email to his supervisors expressing mistrust of Lors, forecasting that Lors would claim a hostile work environment, and suggesting that some preemptive claim be made against Lors for creating a hostile work environment. Doc. 48 at ¶ 10.
In January of 2009, the State of South Dakota adopted a policy prohibiting its employees from using recording devices unless authorized as a part of their job duties. Doc. 48 at ¶ 27. Before January of 2009, there existed no such formal policy. Doc. 47 at ¶ 11. Lors had secretly recorded conversations with several of his co-workers in 2004 and 2005, including defendants Dufour and Dean and co-employee Houck.
On February 24, 2009, Lors and Defendant Dufour, the support services manager for BIT, had a meeting at Lors's request to discuss, among other things, an incident where Lors indicated to a co-worker that he was going to test a computer code written from a "secret location." Doc. 48 at ¶ 11. Lors's "secret location" from which he had written a computer code merely was a separate area of Lors's H-drive, but the reference to a "secret location" had prompted BIT to have Lors's computer examined.
For the alleged insubordination in the February 24, 2009 meeting with Dufour, Lors received a one-day suspension without pay. Doc. 48 at ¶ 12. During the course of this litigation this Court issued an order compelling Lors to produce any recordings made of Lors's co-workers. Doc. 38. Lors produced recordings of conversations with Dean, Dufour, and Houck from February 18, 2009, but no recordings from February 24, 2009. Doc. 40 at 2. Lors maintains that he was not aware that the State of South Dakota had initiated a policy in January of 2009 that prohibited such recordings without permission of all involved. Doc. 48 at ¶ 12.
On March 17, 2009, Lors was placed on a thirty-day work improvement plan ("WIP"), with the stated reasons being that (1) he refused to give a direct answer when asked if he was recording conversations; (2) he continued to refer to supervisors and managers in disrespectful terms and did not respect their authority; (3) he would not accept answers or decisions made by management and challenged these decisions; (4) Lors's relationship with his co-workers continued to be strained; and (5) Lors's managers and co-workers did not trust him. The WIP set out several goals for Lors to achieve during the 30-day period, including that Lors was to answer directly when asked if he were recording conversations, was to refrain from making threatening remarks to co-workers, and was to treat co-workers, managers, and supervisors professionally and with respect. Doc. 15 at ¶ 13; Doc 15-4 at 3; Doc. 48 at ¶ 13. Lors felt that he was being treated unfairly and that others in BIT, including team leader Houck, had been and were openly sarcastic, unprofessional, and rude towards Lors. Doc. 48 at ¶ 13.
On April 20, 2009, BIT issued a Notice of Intent to Terminate, ostensibly because Lors failed to meet the goals established by the WIP. Doc. 15 at ¶ 14; Doc. 48 ¶ 14. Lors believes that it was a pretense to terminate him for recording of conversations and for behavior that not only Lors, but others like Houck were openly engaging in as well.
Lors then filed a grievance with the South Dakota Career Service Commission ("CSC") challenging his termination. Doc. 48 at ¶ 15. In his opening statement before the CSC, Lors, acting pro se, maintained that his filing of the ADA claim in federal court "played a part in his termination."
On May 5, 2009, Lors applied for unemployment benefits. Doc. 48 at 124; Doc. ¶ at ¶ 24. After his claim was denied, Lors appealed to the South Dakota Department of Labor Unemployment Insurance Appeals Division. Doc. 48 at ¶ 24. The Unemployment Insurance Appeals Division determined that Lors was ineligible for unemployment benefits because he had been terminated for misconduct.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is not "a disfavored procedural shortcut, but rather... an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.'"
Federal courts give "full faith and credit" to state court rulings under 28 U.S.C. § 1738. Federal courts, however, are only required to give preclusive effect to state court decisions as would the state from which the ruling comes. 28 U.S.C. § 1738. The Supreme Court of South Dakota applies the doctrine of issue preclusion or collateral estoppel when an issue has been "actually and directly in issue in a former action and was judicially passed upon and determined by a domestic court of competent jurisdiction."
Under precedent from the United States Court of Appeals for the Eighth Circuit, "the doctrine of issue preclusion, which was formerly known as collateral estoppel, provides that `when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in another lawsuit.'"
The first element of issue preclusion plainly is met. Lors was a party to both the CSC proceeding and the Unemployment Insurance litigation.
The second element of issue preclusion—the issue sought to be precluded must be the same as the issue involved in the prior action—deserves greater attention. There are two rulings to which issue preclusion arguably may apply. First, the Defendants seek to preclude Lors from a claim that his discharge from employment violated Title VII of the Civil Rights Act of 1964 and that his termination allegedly was due to Lors having filed and maintained his ADA case. The CSC indeed made findings of fact that included "[t]here is no credible evidence that any of the disciplinary actions taken by BIT were a result of or related to the commencement or continuation by Lors of the ADA case." Doc. 15-3 at ¶ 30. The interrelation of the ADA claim to Lors's termination was "involved in the prior action" to the extent that Lors referenced it and there was brief testimony of certain witnesses regarding it. Doc. 48 at ¶¶ 15-16; Doc. 56. Lors's argument that he expressed uncertainty to the CSC as to how to proceed given the ADA case and said that he was uncomfortable addressing the issue in full relates more to the third and fifth elements. Second, issue preclusion may extend to findings of the CSC and the Unemployment Insurance Appeals Division that BIT had cause to discipline and terminate Lors based on grounds completely unrelated to his ADA claim,
The third element for issue preclusion—the issue sought to be precluded must have been actually litigated in the prior action—applies without question to the conclusion of the CSC and the Unemployment Insurance Appeals Division that BIT had cause to discipline and terminate Lors, apart from anything relating to the ADA claim. As to the CSC finding that there was no credible evidence that Lors's discipline was related to his ADA claim, it is somewhat unclear whether the ADA claim and its influence on Lors's discipline was being litigated before the CSC. No doubt, the CSC made a finding of fact on the subject and a couple of witnesses testified that the ADA claim did not influence the ultimate reason for Lors's termination. However, the comments of Lors, both referencing the ADA claim and expressing discomfort in addressing and litigating it before the CSC, cast doubt on whether the interplay between the termination and the ADA claim was "actually litigated in the prior action." However, it was clear that the existence of cause separate and apart from the ADA filing was "actually litigated" both before the CSC and the Unemployment Insurance Appeals Division.
The fourth element of issue preclusion is met here. The issue sought to be precluded was in "a valid and final judgment." Both the CSC ruling, as affirmed by the circuit court, and the Unemployment Insurance Appeals Division rulings are valid and final. Issue preclusion stems from administrative determinations as long as "the proceeding resulting in the determination entailed the essential elements of adjudication," which happened before the Unemployment Insurance Appeals Division. 47 Am. Jur. 2d Judgments § 518.
The fifth element of issue preclusion is that the determination in the prior action must have been essential to the prior judgment. Here, the determination that there was cause for disciplinary action and termination of Lors was essential to the prior judgment of the CSC as affirmed by the circuit court and to the Unemployment Insurance Appeals Division's denial of unemployment benefits. Thus, there is issue preclusion on the subject that there was cause for disciplinary action and termination of Lors, apart from Lors's ADA case. This Court, on the record as it exists at this time, cannot conclude that the CSC determination that Lors's ADA claim had nothing to do with his termination and should be given preclusive effect. Viewing the facts in the light most favorable to non-movant Lors in considering the summary judgment motion, this Court concludes that there is at least a question of fact as to whether the interplay, if any, between the ADA claim and the ultimate termination was actually litigated by Lors and was essential to the determination of whether there was cause apart from Lors's ADA claim for the discipline and termination of Lors's employment.
Lors and the Defendants agree that evaluation of Lors's claim must take place under the framework set forth in
Under the
To establish a prima facie case of retaliation, Lors must establish that he was engaged in protected conduct, that he suffered an adverse employment action, and that the adverse action was causally linked to the protected conduct.
The evidence Lors has produced does show some cattiness on the part of his team leader and an atmosphere of mistrust at BIT in the aftermath of the revelation of Lors's recordings of certain conversations with his co-workers without their prior knowledge or consent. Lors, contrary to his argument, has no direct evidence of discrimination. Even if Lors had some evidence of a causal link, such that this Court could conclude he had a prima facie case, Lors's claims do not survive under the burden-shifting portion of the
Under
Based on the foregoing and for good cause, it is hereby
ORDERED that Defendants' Motion for Summary Judgment (Doc. 13) is granted and that summary judgment enter under Rule 56 of the Federal Rules of Civil Procedure on Lors's Complaint.