Cone v. Orrock

CourtDistrict Court, D. South Dakota
DecidedJanuary 3, 2025
Docket5:22-cv-05087
StatusUnknown

This text of Cone v. Orrock (Cone v. Orrock) is published on Counsel Stack Legal Research, covering District Court, D. South Dakota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cone v. Orrock, (D.S.D. 2025).

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

MATTHEW A. CONE, 5:22-CV-05087-RAL Plaintiff, OPINION AND ORDER GRANTING IN vs. PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND JULIA ORROCK, LUCA ORROCK, DECLINING TO EXERCISE KENNETH ORROCK, BRENT BORRENSON, | SUPPLEMENTAL JURISDICTION OVER GEORGE GAZZOLA, PLAINTIFF’S STATE-LAW CLAIMS Defendants.

Plaintiff Matthew Cone filed this pro se lawsuit alleging employment discrimination. Doc. 1. This Court granted Cone leave to proceed in forma pauperis and screened his complaint □□□□□ 28 U.S.C. § 1915(e)(2). Doc. 5. Because Cone’s complaint failed to plead facts satisfying the elements of the claims he wished to pursue and because Cone failed to attach his EEOC complaint and right-to-sue letter to his complaint, this Court granted Cone thirty days to file an amended complaint. Id. at 10. Cone submitted a supplement containing his EEOC complaint, his right-to-sue letter, his employer’s response to the allegations in his EEOC complaint, and his reply to that response. Doc. 6. After screening Cone’s amended complaint under 28 U.S.C. § 1915(e)(2), this Court dismissed the amended complaint in part and directed service on the defendants who remained after screening, Doc. 7 at 16-17. Cone’s Title VII retaliation claim and state-law claims for slander, stalking and harassment, wrongful termination and breach of contract survived § 1915 screening. Id.

Defendants move for summary judgment. Doc. 32. Defendants also move to dismiss the state-law claims under Federal Rule of Civil Procedure 12(b)(1), arguing that they are barred by res judicata. Doc. 40. Cone has filed a number of discovery motions because Defendants have failed to provide the information Cone claims to have requested during the parties’ Rule 26(f) meeting. Docs. 27, 31, 45, 49, 58. I. FACTUAL BACKGROUND In accordance with D.S.D. Civ. LR 56.1.A, Defendants filed a statement of material facts presenting each material fact “in a separate numbered statement with an appropriate citation to the record in the case.” See Doc. 33. As the party opposing summary judgment, Cone “must respond to each numbered paragraph in the moving party’s statement of material facts with a separately numbered response and appropriate citations to the record.” D.S.D. Civ. LR 56.1.B. “All material facts set forth in the movant’s statement of material facts will be deemed to be admitted unless controverted by the opposing party’s response to the moving party’s statement of material facts.” D.S.D. Civ. LR 56.1.D; see also Fed. R. Civ. P. 56(e)(2) (providing that the court can consider a fact undisputed when a party “fails to properly address another party’s assertion of fact as required by Rule 56(c)”). This rule apples even when the nonmoving party is proceeding pro se. Johnson v. Kaemingk, 4:17-CV-04043-LLP, 2020 WL 1441713, at *1 (D.S.D, Mar. 23, 2020) (deeming facts admitted where a pro se plaintiff filed an opposition to a motion for summary judgment but did not comply D.S.D. Civ. LR 56.1.B); Joe v. Walgreens Co/ILL, 4:09-CV-04144-RAL, 2010 WL 2595270, at *1 (D.S.D. June 23, 2010) (deeming facts admitted where a pro se nonmoving party did not submit a statement of material facts or directly respond to the moving party’s statement of material facts): see also Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1067 (8th

Cir. 2017) (holding that a litigant’s pro se status does not excuse him from following the district court’s local rules), This Court granted Cone’s request for an extension of time to respond to Defendants’ motion to dismiss pursuant to Rule 12(b)(1) and motion for summary judgment. Docs. 44, 46. The Order instructed that “when filing his response, Cone should comply with Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1 of the District of South Dakota’s Civil Local Rules of Practice.” Doc. 46 at 2. Although Cone has filed pleadings opposing Defendants’ Motion for Summary Judgment, see Docs. 47, 52, 54, he has not responded to Defendants’ Statement of Material Facts with separately numbered paragraphs and appropriate citations to the record, as required by D.S.D. Civ. LR 56.1.B. Defendants’ Statement of Material Facts, Doc. 33, is deemed admitted because Cone did not comply with D.S.D. Civ. LR 56.1.B. Nevertheless, because Cone’s complaint, Doc. 1, and Charge of Discrimination, Doc. 6 at 1, are verified, this Court will consider any specific, non-conclusory facts alleged in these documents. See Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001) (“[T]he facts alleged in a verified complaint need not be repeated in a responsive affidavit in order to survive a summary judgment motion.”). Cone was employed by Black Hills Asset Protection Group, LLC (BHAPG).! Doe. 33 □ 1. Cone had an employment contract with BHAPG that authorized him to hire and fire employees, enter into contracts on behalf of BHAPG, set work schedules and assignments, and make recommendations for promotion and raises for subordinate employees. Id. 4. Cone hired Claudia Coonce to work as a security officer for BHAPG. Id. 45. After meeting Coonce during her employment interview, Cone immediately began to pursue Coonce romantically. Id. 1/7. Coonce

1 Cone’s complaint alleges that he was employed by Black Hills Patrol. Doc. 1-1 at 1. BHAPG does business as Black Hills Patrol. Doc. 35 1; Doc. 38 { 1.

and Cone began a sexual relationship. Id. 9. Coonce was Cone’s direct subordinate; he had the power to fire her. Id. | 8. Cone arranged for raises, promotions, and preferential assignments for Coonce while concealing from his employer his relationship with Coonce. Id. 10. Eventually Cone’s employer, BHAPG, became aware of his relationship with Coonce, and Cone admitted to the member officers of BHAPG that he was in a sexual relationship with Coonce, his subordinate. Id. 11. Cone contends that his relationship with Coonce did not violate any BHAPG policy. Doc. 1-1 at 1. BHAPG placed Cone on a sixty-day corrective action plan that required Cone to terminate his relationship with Coonce and to make specific improvements in his performance, not related to Coonce. Doc, 33 7 12. Coonce filed an EEOC complaint against BHAPG, which, according to BHAPG, the EEOC deemed as unfounded. Id, □ 13. BHAPG did not take any adverse action against Coonce, though she did file an EEOC complaint. Id. Cone alleges that his corrective action plan was retaliation against him in response to Coonce’s EEOC complaint. Doc. 54 at 4. BHAPG denies taking any adverse action against Cone based on his support of Coonce’s EEOC complaint. Doc. 33 §29. Cone did not comply with the requirements of his corrective action plan, and BHAPG terminated him for cause. Id, § 14. Before his termination, Cone had filed a complaint with the EEOC, but BHAPG was not aware of Cone’s EEOC complaint when he was terminated. Id. ff 15-16, 31. After Cone’s termination, the EEOC forwarded Cone’s complaint to BHAPG and requested a response. Id. §] 15, 31. One of the Defendants, Julia Orrock, responded to the EEOC complaint on behalf of BHAPG. Id. J 15.

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