JUDY DEYO v. SECURITY FIRST BANK
5:23-CV-05012-KES
UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION
March 11, 2025
Plaintiff, Judy Deyo, sued defendant, Security First Bank, for various violations of the Age Discrimination in Employment Act of 1967 (ADEA), Title VII of the Civil Rights Act of 1964, and South Dakota state law. Docket 1. Deyo alleges that Security First engaged in sex-based and age-based discrimination, created a hostile working environment, retaliated against her, and constructively discharged her from her position as a managing agent at Security First‘s Rapid City office when it replaced her with a younger man. See id. Security First now moves for summary judgment on all counts. Docket 12. Plaintiff opposes the motion. Docket 20. After reviewing the parties’ arguments and the record, the court issues the following order.
BACKGROUND
Viewing the record in the light most favorable to Deyo,1 the court recites the following factual background:
From 2017 to 2022, employees supervised by Deyo made repeated complaints about her management style. Docket 13 ¶ 3; Docket 21 at 1-2 (Deyo not disputing complaints were made). During this same period, at least six employees supervised by Deyo resigned citing Deyo‘s management as a reason for leaving. See Docket 16-1 at 1; Docket 16-6; Docket 16-8; Docket 16-10; Docket 16-13. Security First alleges a seventh employee resigned and another employee threatened to resign due to Deyo‘s management style, Docket 13 ¶¶ 4-5, but Deyo disputes this and claims the employee resigned due to vertigo and the other employee threatened to resign because she had seen an advertisement for her position at Security First for more money, Docket 21 at 2. These complaints were typically brought to Security First‘s Human Resource Director, Julie Benedict. See, e.g., Docket 16-10 at 1. Deyo asserts that these complaints were never thoroughly discussed with her, and she was never
Deyo notes that while she was generally unaware of the complaints and resignations against her management practices, a written evaluation from December of 2016 provided by Security First cites her performance as “exceed[ing] expectations.” Docket 22-1 at 2. The only other written evaluation provided by Security First, which was undated, noted that Deyo “raises team spirit,” “set[s] example for other employees,” and “appreciate[s] team member‘s help and contribution.” See Docket 22-2 at 2-3. Additionally, Deyo “received several compliments and endorsements from insurance company executives and reps praising [her] for turning around the reputation of the agency.” Docket 22-1 at 2. Olson recalled that Deyo was “very personable” and both he and another coworker indicated that Deyo had good relationships with Security First‘s customers. Docket 22-11 at 27, 29; Docket 22-14 at 22.
At the time he was hired as managing agent, Blumenthal was a male 62-year-old, and Deyo was 67 years old. Docket 13 ¶¶ 6, 8; Docket 21 at 2. Security Bank asserts that Blumenthal was hired because “[he] would be a good fit for the Rapid City Office and because of Deyo‘s problems managing her staff.” Docket 13 ¶ 7. Deyo asserts that Blumenthal was hired to help Security First expand its commercial insurance line. Docket 21 at 2. Hunter stated that the management issues between Deyo and Security First‘s employees were “typical strife that happens sometimes between employees or a supervisor” as
On March 17, 2022, Benedict and Olson met with Deyo to inform her that “she was being named a Senior Agent and would no longer have the responsibility to supervise the two employees previously supervised by her.” Docket 13 ¶ 12; Docket 21 at 3 (Deyo admitting she was notified). Deyo asserts she was not provided a specific reason for the demotion and was told that Security First was going to try a man in her position. Docket 22-9 at 93, 152. During the meeting, Deyo indicated that she looked at Olson and stated “[y]ou finally got what you wanted,” because she knew he preferred male employees. Id. at 93. About two years prior to her demotion, Olson told Deyo that “he thought she should hire a younger male for the Rapid City Office.”4 Docket 13 ¶ 10; Docket 21 at 5.
After being notified of the change in position, Deyo worked a few days prior to using her PTO to take time off from work. Docket 13 ¶ 13; Docket 21 at 3 (Deyo admits she worked only a few days). Deyo asserts that the demotion and replacement were “devastating” and “humiliating.” Docket 21 at 3, 5. Blumenthal was given the larger office next to Deyo‘s office, which required her to remove some of her fitness equipment and other items in the previously unused office. Docket 22-10 at 41. There was a smaller office that Blumenthal could have used. Docket 22-12 at 36. On April 1, 2022, Deyo filed a claim with Security First alleging that she was subjected to a hostile work environment because her coworkers would “whisper” and not communicate with her. Docket 22-9 at 147-48. She also alleged that Benedict made negative, suggestive
DISCUSSION
I. Summary Judgment Standard
Under
II. Age-Based and Sex-Based Discrimination
Deyo alleges that Security First engaged in age discrimination in violation of the ADEA and engaged in sex discrimination in violation of Title VII and
To survive summary judgment on her age and sex discrimination claims, Deyo must show “either direct evidence of discrimination or evidence . . . sufficient to create an inference of discrimination under the McDonnell Douglas burden shifting framework.” Robinson v. Am. Red Cross, 753 F.3d 749, 754 (8th Cir. 2014) (citation omitted) (Title VII); Canning v. Creighton Univ., 995 F.3d 603, 611 (8th Cir. 2021) (ADEA). Under McDonnell Douglas‘s framework,
A. Prima Facie Case of Age Discrimination
“[T]he ADEA prohibits discrimination against employees, over the age of 40, because of their age.” Id. at 610 (citation omitted). Because Deyo has not offered any direct evidence of age discrimination, she must establish a prima facie case of discrimination. Id. at 611. To do so, Deyo must show she (1) was at least over 40 years old; (2) was qualified for her job; (3) “suffered an adverse employment action“; and (4) “was replaced by someone substantially younger.” Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012). Deyo must show by a preponderance of the evidence that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
Security First asserts that for purposes of its summary judgment motion, it “does not dispute that Deyo has satisfied the first three elements.” Docket 14
Here, the court agrees with Security First that Deyo has not established her prima facie case because she has failed to show she “was replaced by someone substantially younger.” Gibson, 670 F.3d at 856. The Eighth Circuit has held that a “five-year age difference is insufficient to establish a prima facie case . . . and [has] voiced doubt about whether a nine-year age difference is ‘sufficient to infer age discrimination.‘” Lewis, 467 F.3d at 1134 (citations omitted); see also Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1412-13 (8th Cir. 1997) (holding that a five-year age difference is insufficient to infer age
Deyo urges this court to look at the totality of the circumstances to infer that Security First discriminated against her based on her age. Docket 20 at 11. “With respect to the fourth element, [Deyo] argues that [her] evidence [of pretext] creates a genuine issue of material fact. Evidence of pretext, normally considered at step three of the McDonnell Douglas analysis, can satisfy the inference-of-discrimination element of the prima facie case.” Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). Because Deyo seeks to establish her prima facie case by relying on evidence of pretext, the court addresses her arguments on pretext as part of the discussion on sex discrimination.
B. Prima Facie Case of Sex Discrimination
Because Deyo has not provided direct evidence of sex discrimination, she must establish a prima facie case of sex discrimination. Robinson, 753 F.3d at
Again, Security First does not dispute that Deyo has satisfied the first three elements for her prima facie case. Docket 14 at 22; Docket 23 at 13. Security First argues that Deyo has failed to satisfy the fourth element because she has “not presented any evidence that a ‘similarly situated male employee’ was treated differently than her.‘” Docket 14 at 22. Instead of relying upon evidence that Security First has treated its male employees differently, however, Deyo argues that she has satisfied the fourth element because Olson had previously advised her to hire more male employees and during the demotion meeting, Olson told her Security First “was going to try a man in [her] position.” Docket 20 at 15. Security First argues that even if these statements were made, it is immaterial because Olson was not involved in the process of hiring Blumenthal to take over Deyo‘s managerial role. Docket 23 at 19-21.
Deyo asserts that Security First‘s motion for summary judgment should be denied because a factual question exists as to whether Olson was involved in the decision to hire Blumenthal. Docket 20 at 15. And Deyo argues that while Benedict and Hunter attested that they were unaware of Olson‘s alleged statement, Security First should be held liable for Olson‘s statement because he is an agent of Security First. Id.
To make out a case of sex discrimination, Deyo must show that the alleged discriminatory statements were made by a decisionmaker. See, e.g., Shaffer v. Potter, 499 F.3d 900, 904-05 (8th Cir. 2007) (holding that statements made by an employee who was not a decision-maker cannot be evidence supporting a prima facie case of sex discrimination under Title VII). While Deyo notes that there is a dispute as to whether Olson was involved in the decision-making process, she has offered no evidence of his involvement beyond his comment that he felt he had no choice in her demotion. See Docket 22-11 at 34. It is mere speculation on Deyo‘s part that Olson was involved in the decision to hire Blumenthal because both Benedict and Hunter deny his involvement in the process, see Docket 22-13 at 17-18; Docket 22-10 at 32-33, and Olson himself denies being part of the decisions to hire Blumenthal or demote Deyo, see Docket 22-11 at 27, 34. Olson‘s statement that he felt as though he had no choice in her demotion makes sense because he confirmed it
Deyo also asks the court to rely upon evidence of pretext to prove the fourth element of her prima facie case. Docket 20 at 16-17. As with Deyo‘s claim for age discrimination, the court addresses her arguments for sex discrimination in the pretext section below. See Lake, 596 F.3d at 874 (“Evidence of pretext can satisfy the inference-of-discrimination element of the prima facie case.“).
C. Legitimate, Non-Discriminatory Reason
Before discussing whether Deyo can prove the final element for her age and sex discrimination claims, the court first addresses whether Security First has provided a legitimate, non-discriminatory reason for Deyo‘s demotion. See Canning, 995 F.3d at 611. Security First alleges that it replaced Deyo because her “abrasive interactions with staff, lack of communication, lack of transparency, and failure to take responsibility of her mistakes . . . caused the Rapid City Office to hemorrhage employees and caused perpetual short-staffing issues.” Docket 14 at 24. Security First cites the numerous complaints and resignations made by employees who Deyo supervised as evidence of the “toxic”
D. Pretext
Because Security First has provided a legitimate, nondiscriminatory reason for Deyo‘s demotion, the burden shifts to Deyo to establish that the proffered reason was not the true reason for the demotion because it was merely “a pretext for discrimination.” Kohrt v. MidAm. Energy Co., 364 F.3d 894, 897 (8th Cir. 2004) (citation omitted). “Although a plaintiff may establish pretext by showing that the employer did not truly believe the employee engaged in the conduct justifying [demotion], if the employer‘s proffered reason was truly the reason for the plaintiff‘s [demotion], [the court] will not decide whether [that] reason was wise, fair, or even correct.” Canning, 995 F.3d at 612 (internal quotation marks and citation omitted). To establish pretext, Deyo must show that Security First‘s proffered reason is false and “that age [and sex]
Deyo first argues that her favorable performance reviews and good relationships with customers shows that Security First‘s reason is pretextual.6 Id. at 13. “[A] strong showing that the plaintiff was meeting [her] employer‘s reasonable expectations at the time of [demotion] may create a fact issue as to pretext when the employer claims that the employee was [demoted] for poor or declining performance.” Canning, 995 F.3d at 613 (quoting Ridout v. JBS USA, LLC, 716 F.3d 1079, 1084 (8th Cir. 2013)). While favorable performance reviews leading up to the employee‘s demotion can be evidence of pretext, see, e.g., Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 733 (8th Cir. 1996) (finding that plaintiff showed pretext, in part, by pointing to favorable evaluations
Deyo next argues that Security First‘s reason for demoting her was pretextual because it failed to address its employees’ complaints and resignations with Deyo. Docket 20 at 14, 16. Deyo argues that if Security First was concerned with her managerial practices, it should have disciplined Deyo or offered her some assistance to improve. Id. at 16. Security First argues that it did make attempts to speak with Deyo about the employee complaints and
While the Eighth Circuit has found it relevant to consider whether an employer counseled the employee about improving their performance where it argues the employee was terminated or demoted for poor performance, it has only found pretext after considering a multitude of factors. See, e.g., Ridout, 716 F.3d at 1084 (finding pretext because the employer failed to counsel its employee about his alleged poor performance and where other evidence suggested that the employee was a productive and satisfactory worker). In comparison, Security First did speak with Deyo on a few occasions about complaints with her management. Olson was primarily responsible for speaking with Deyo about these complaints, and he indicated that he spoke with Deyo about complaints but was uncertain how many times he had done so. Docket 22-11 at 25. On one occasion, Benedict spoke with Deyo to discuss an individual employee‘s filed complaint. Docket 22-10 at 16-17. This is not a case where Deyo was completely unaware of the complaints about her managerial style. Further, as noted above, there is evidence to suggest that there were issues with Deyo‘s management. Thus, even if Security First failed to discuss all the employee complaints and resignations with Deyo, that is not sufficient to establish that Security First‘s reason for demoting her was pretext.
Deyo next argues that Security First‘s reason for demoting her was pretextual because Security First offered conflicting reasons for why Blumenthal was hired. Docket 20 at 13. Deyo points to Hunter‘s testimony that
Deyo last argues that Security First‘s proffered reason is pretextual because Security First failed to follow its written policies regarding her
Here, Deyo has failed to establish pretext by arguing that Security First did not follow its employee handbook. The handbook provides that employees who are “pursuing career development” may accept a demotion without a change in salary. Docket 22-8 at 28. The court agrees with Deyo that the handbook does not include a provision detailing when Security First can demote an employee for any other reason. See generally Docket 22-8. But it is unclear why this would establish pretext. Employers may “choose how to run its business, including not to follow its own personnel policies regarding [demotion] as long as it does not unlawfully discriminate in doing so.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 904 (8th Cir. 2015) (McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 863 (8th Cir. 2009)). “Even if the employer‘s acts are unfair, there has to be evidence connecting the unfairness to a discriminatory animus.” Id. Deyo has failed to provide evidence that Security First‘s true reason in demoting her was based on her age or sex.
Because Deyo has failed to show that her poor performance as a managing agent was pretext for her demotion, Deyo has failed to establish the fourth element of her prima facie cases for age-based and sex-based discrimination. Thus, Security First is entitled to summary judgment on Deyo‘s claim for age discrimination under the ADEA and claims for sex discrimination under Title VII and
III. Hostile Work Environment
Deyo asserts that Security First created a hostile work environment based upon age, in violation of the ADEA, and a hostile work environment based upon sex, in violation of Title VII and
Security First argues that Deyo has failed to show that “she has suffered any harassment because [of] her age or sex[,]” or that such harassment was severe or pervasive. Docket 14 at 16-17. Deyo asserts she was subjected to “unwelcome harassment when she was demoted and replaced by a younger male [and] expected to remain employed by Security First and report to her replacement as her boss in his larger office.” Docket 20 at 19. Deyo claims this environment was “severe” because it was “devastating and embarrassing to Deyo, who, after 20 years in the insurance industry and almost 8 years working for Security First, was demoted without getting any chance to improve or even [given] any sort of warning.” Id.
While Deyo belongs to a protected group under the ADEA and Title VII because she was a female over the age of 40 when the alleged conduct took place, see Docket 13 ¶ 8; Docket 21 at 2, under the totality of the
A. Age-Based Harassment
In her claim for age-based harassment, Deyo appears to rely solely on the fact that she was replaced by Blumenthal, who was 5 years younger than her. Docket 20 at 19. This allegation alone is insufficient to establish a claim for age-based hostile work environment. See EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 687 (8th Cir. 2012) (“[M]ore than a few isolated incidents are required to support a hostile work-environment claim“) (internal quotation marks omitted). Even if this court were to assume that replacing Deyo with Blumenthal constituted a harassing action, “the conduct about which [Deyo] complains is not severe enough to support [her] hostile work environment claim.” Sellers, 791 F.3d at 945. Because Deyo has failed to provide an example of how Security First engaged in age-based harassment, the court finds that no genuine issue of material fact exists as to Deyo‘s claim of hostile work environment under the ADEA. Thus, summary judgment is granted to Security First as to this claim.
B. Sex-Based Harassment
To show sex-based harassment, Deyo can “(1) show the actions were motivated by sexual desire, (2) show [her] employer had a general hostility toward members of [her] sex in the workplace, and (3) offer evidence that similarly situated individuals of the opposite sex were treated more favorably.”
For similar reasons as to why her claim for age-based harassment fails, Deyo has failed to establish a claim for hostile work environment based upon sex. Deyo only offers Olson‘s statement that she should hire more men as evidence of sex-based harassment. Id. “A single offensive utterance or exposure to distasteful conduct ordinarily does not rise to the level of a Title VII violation.” Curran v. Bernhardt, 2023 WL 2586085, at *13 (D.S.D. Mar. 21, 2023). Because Olson‘s statement fails to constitute “severe or pervasive” harassment that is “objectively hostile,” Moses, 894 F.3d at 922, the court finds that no genuine issue of material fact exists as to Deyo‘s claims of hostile work environment under Title VII or
IV. Retaliation
Deyo alleges that she was subjected to illegal retaliation under the ADEA, Title VII, and
In the absence of direct evidence of retaliation, claims of retaliation under the ADEA, Title VII, and
To prove her claims under Title VII and
To prove retaliation under the ADEA, Deyo asserts that Olson was aware that Deyo was 60 years old when hired and that she intended to work at Security First for a period of 10 years. Id. at 21. Deyo asserts that replacing her with a younger man constituted statutorily protected activity. Id. Deyo argues that because Olson knew she was only 2.5 years away from her intended retirement, Security First demoted her, at least in part, due to her age. Id.
Here, the court agrees with Security First that Deyo has failed to establish her claims for retaliation under the ADEA, Title VII, and
As to Deyo‘s retaliation claim under the ADEA, Deyo has failed to explain how she has engaged in protected activity that Security First retaliated against. See Docket 20 at 20-21. Deyo has not alleged that she made a complaint or allegation to her employer prior to her demotion that opposed some alleged age discrimination. See id. Deyo has also failed to point to any authority that suggests an employer‘s knowledge of an employee‘s age constitutes protected activity. See id. As such, Deyo‘s retaliation claim under the ADEA cannot survive summary judgment. Thus, Security First is entitled to summary
V. Constructive Discharge
To prevail on a claim for constructive discharge, Deyo must show that “(1) a reasonable person in her situation would find the working conditions intolerable, and (2) the employer intended to force her to quit.” Bell, 60 F.4th at 1203 (citation omitted). “The intolerability of working conditions is judged by an objective standard, not the employee‘s subjective feelings.” Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000). Because Deyo resigned, she can satisfy the intent requirement by showing “that [Security First] could have reasonably foreseen that [Deyo] would quit as a result of its actions.” Sanders v. Lee Cnty. Sch. Dist., 669 F.3d 888, 893 (8th Cir. 2012) (citation omitted). An employee, however, must allow “her employer a reasonable opportunity to correct the intolerable condition before she terminates her employment.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1132 (8th Cir. 2014).
Deyo argues that she was constructively discharged when she was replaced by a younger man because of alleged issues with her management. Docket 20 at 17-18. Deyo also cites “whispering” by her co-workers and comments made by Benedict as evidence that Benedict was working toward Deyo‘s termination. Id. at 18. Following her demotion, in the few days that Deyo was present in the Rapid City office, Deyo admitted during her deposition that her interactions with Blumenthal and her coworkers were “civil.” Docket 22-9 at 108-09. Deyo also confirmed that she was unable to determine what
Moreover, in support of her constructive discharge claim, Deyo relies on the same allegations used for her hostile work environment claims. See Docket 20 at 17-19 (citing her demotion and alleged humiliation that followed as evidence supporting her claims for hostile work environment and constructive discharge). Because the court determined that these facts were insufficient to establish a hostile work environment claim, Deyo also has not shown constructive discharge. See Parker v. USDA., 2025 WL 649898, at *5 (8th Cir. 2025) (holding summary judgment was appropriate on constructive discharge claim where plaintiff “premises her constructive discharge claim on the same allegations [that were] insufficient to establish a hostile work environment“); see also Penn. State Police v. Suders, 542 U.S. 129, 147 (2004) (“A hostile-environment constructive discharge claim entails something more [than a hostile work environment claim].“). As such, because there is no dispute as to any material fact regarding Deyo‘s claim for constructive discharge, Security First is entitled to summary judgment on this claim.
CONCLUSION
Because there is no genuine dispute of material fact for any of Deyo‘s claims, summary judgment is properly awarded to Security First. Thus, it is
Dated March 11, 2025.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE