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Erdahl v. Groff3/18/1998
Erdahl v. Groff, 1998 SD 28
#20027
Affirmed
Argued Dec 4, 1997; Opinion Filed Mar 18, 1998
[ ] This discretionary appeal is from an order issued by the circuit court reversing a decision of the South Dakota Department of Commerce, Division of Human Rights, and remanding the case to the Division for further proceedings. We affirm.
FACTS AND PROCEDURAL HISTORY
[ ] Kristine Erdahl (Erdahl) alleges sexual harassment by Dennis Groff (Groff) when she worked as an intern and paralegal in the Pennington County State's Attorney's office from October 1993 to May 20, 1994. During most of this period, she worked primarily with Groff, who was the Pennington County State's Attorney.
[ ] In July 1994, Erdahl filed a charge of discrimination with the Division of Human Rights, pursuant to SDCL 20-13-10, alleging that Groff engaged in unwelcome sexual conduct which was used as a basis for employment decisions (quid pro quo) and which altered the conditions of her employment (hostile work environment).
[ ] Division investigated Erdahl's complaint in accordance with SDCL 20-13-28. The investigator reviewed approximately sixteen transcripts of interviews submitted by Groff's attorney and seven unsigned statements, and conducted thirty interviews. There was no adversarial hearing at this stage of the proceedings, and witnesses were not cross-examined. The record was reviewed under the standard set forth in SDCL 20-13-28.1, which, at the time of the investigation, provided:
If the Division of Human Rights determines there is no probable cause to support the allegations of a charge after an investigation of the charge in accordance with Sec20-13-28, the division shall issue an order dismissing the charge. This shall be considered a final agency action for purposes of appeal under chapter 1-26.
[ ] Division investigator analyzed Erdahl's claim in light of the elements a complainant must show in a sexual harassment case:
1. That the complainant belongs to a protected group;
2. That the complainant was subject to unwelcome sexual harassment;
3. That the harassment was based on sex;
4. That the harassment affects a "term, condition, or privilege" of employment; and
5. That the employer knew or should have known of the harassment in question and failed to take proper remedial action.
Huck v. McCain Foods, 479 NW2d 167 (SD 1991); Hall v. Gus Constr. Co., Inc., 842 F2d 1010 (8thCir 1988); Meritor Savings Bank FSB v. Vinson, 477 US 57, 106 SCt 2399, 91 LEd2d 49 (1986).
[ ] The investigator concluded there was a sexual relationship between Groff and Erdahl, but that it was voluntary, and that " preponderance of the evidence indicates that Erdahl welcomed Groff's behavior towards her and was not offended." (emphasis original).
[ ] Erdahl also claimed she terminated the sexual relationship some time at the end of April 1994, and that Groff retaliated by taking work away from her, ignoring her, and moving her desk. She argued such conduct constituted conditional sexual harassment (quid pro quo). The investigator concluded her claims in this regard were "shallow at best." Division adopted the investigator's report and Erdahl's complaint was dismissed. She appealed to the circuit court.
[ ] The circuit Judge held the Division erred as a matter of law in applying a "preponderance of the evidence" standard, reasoning that a probable cause determination under SDCL 20-13-28.1 dictated a lower threshold of proof requirement. The court adopted the definition of "probable cause" in a civil c
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