Former Division of Criminal Investigation special agent Laura Zylstra Kaiser of Aberdeen is suing DCI chief Bryan Gortmaker and former DCI agent Mark Black for hindering her employment. Let’s look at Zylstra Kaiser’s complaint, filed Wednesday in U.S. District Court in Aberdeen, to learn what the suit is about.
Zylstra Kaiser says she went to work for the DCI Drug Task Force straight out law school in August 2003. She says she received positive performance reviews through mid-2011, when she says her mid-year evaluation praised her “for her exceptional work product, ability ‘to work amicably with other DCI agents and members of her task force, relentless work, and above-average case activity.”
Then comes Brown County Deputy Ross Erickson:
In or about August 2011, Brown County Deputy Ross Erickson was assigned to the Drug Task Force. Almost immediately, he began making sexually explicit comments to Plaintiff, revealing personal information, and making her feel uncomfortable, including, but not limited to:
- Asking “Were you horny when you were pregnant?”;
- Saying “Go ahead and walk away, because I am going to stare at your ass the whole time”;
- Texting her to ask what color underwear she was wearing;
- Stating it was a “good thing” she was not single because otherwise he would hit on her “all the time”;
- Remarking that Plaintiff looked “hot” when she wore glasses,
- When she spoke about her guns, commenting to her “that sounds hot”;
- Petting her hair and, on one occasion, putting his arm around her and swaying;
- When Plaintiff asked for his keys, stating they were in his pocket and she should get them herself;
- After Plaintiff said her husband would be out of town that weekend, asking her: “Should I come over Saturday around 6?” and,
- Having her watch a lewd music video set in a police department [Complaint, Zylstra Kaiser v. Gortmaker and Black, U.S. District Court of South Dakota Northern Division, 2015.09.23].
Now the proper workplace response to such behavior is to take this behavior straight to the boss, whose response should be to drop the hammer on the harasser. Weighing on Zylstra Kaiser’s mind, though, was a 2005 experience in which she had reported another co-worker for sexual harassment and gotten the wrong response from the boss:
Her then-supervisor, Assistant Director Brian Zeeb, said her complaint could be seen as a sign of weakness and made a comment along the lines of, “In the future, if you want a promotion or transfer to a new duty station, some may see this incident as your inability to get along with others.” Rather than undertaking an investigation, Zeeb forced her to confront her harasser. As a result of this experience with DCI administration, Plaintiff feared future reports would adversely affect her career [Complaint, 2015.09.23].
In October 2011, Zylstra talked with fellow female agent Jessica Page about Erickson’s harassment, and Page took the same position: reporting Erickson would only lead to trouble. Zylstra decided to talk about the harassment with fellow Aberdeen agent Mark Black, with whom she had a “close relationship.” (Remember, this is the same Mark Black who eventually was fired from the DCI following revelations of violent behavior toward his own wife.) For a moment, Zylstra thought she’d found a supportive ear:
Black was supportive offered to speak to Erickson for Plaintiff. Plaintiff considered his offer but decided she would speak to Erickson herself. Plaintiff thanked Black for his support and asked him not to tell anyone about her difficulties with Erickson.
Plaintiff approached Erickson on or about October 18, 2011 and explained that she was not comfortable with his sexually-oriented comments. Erickson acknowledged his comments were inappropriate, apologized, and said he would not make any such comments in the future [Complaint, 2015.09.23].
Then Black talked:
Unbeknownst to Plaintiff, Black told Brown County Deputy Damian Bahr and DCI Agent Dave Lunzman, the only other law enforcement in the Aberdeen office, about Erickson’s treatment toward Plaintiff.
On or about October 20, 2011, Erickson told Plaintiff that Black had told the “entire office” about what was happening. Plaintiff apologized and stated that it was not her intent to have the office know about the issue. She mentioned she regretted telling Black [Complaint, 2015.09.23].
When called to account, Black allegedly turned against Zylstra Erickson:
Later that day, Plaintiff approached Black and asked why he shared her personal information. Black attempted to shift the blame to Plaintiff and began ignoring her.
On information and belief, Black then called Supervisor Jason Even to report Plaintiff’s complaints against Erickson and told Even he no longer wanted to work with Plaintiff because he could not trust her.
That afternoon, Black surreptitiously met with Erickson, Bahr, and Lunzman in a park. On information and belief, and knowing Even would investigate Plaintiff’s harassment complaint, Black worked with Erickson, Bahr, and Lunzman to formulate a set of talking points in an effort to have Plaintiff removed from the department or terminated, including planning to state they did not trust Plaintiff, she falsified the harassment to test Black’s trustworthiness, they were unwilling to work with her, and that she was mentally ill and schizophrenic [Complaint, 2015.09.23].
Supervisor Jason Even took the men’s side immediately, accused Zylstra Kaiser of fabricating the sexual harassment allegations against Erickson, and warned her that the issue could lead to her termination. When Zylstra Kaiser pointed out that that Erickson admitted to the conduct, Even chose not to believe her and said he was unhappy with her general work performance. On November 4, 2011, (the same day that Black interrogated the Mette children as Brown County and the DCI revved up their attack on Shirley Schwab and Brandon Taliaferro in the Mette child rape case) Even put Zylstra Kaiser on a 30-day Work Improvement Plan, the nine tasks of which included submitting to a psychological evaluation, “which DCI had linked to her maternity leave even though Plaintiff had returned from leave nearly a year earlier and had received two positive performance reviews and a promotion since then.” The WIP also ordered Zylstra Kaiser to “rebuild positive relationships with co-workers, supervisors, and managers.” Zylstra obeyed, but got the cold shoulder from co-workers, including Black, who allegedly told her on November 8, “We are done. Don’t ever approach me again.”
That lack of cooperation from her co-workers led to job consequences for Zylstra Kaiser:
On December 8, 2011, Assistant Director Dan Satterlee informed Plaintiff she met the WIP’s requirements with one exception: she had not rebuilt positive relationships.
Although she successfully met eight of nine objectives, Plaintiff was involuntarily demoted from Special Agent III to Special Agent II, which resulted in a reduction in her pay.
Plaintiff was reassigned to the Medicaid Fraud Control Unit in Pierre, South Dakota, over 150 miles from Aberdeen, effective January 3, 2012. On information and belief, Plaintiff is the only agent who has ever been transferred against her wishes [Complaint, 2015.09.23].
Zylstra Kaiser filed grievances over the demotion and transfer with Gortmaker and Attorney General Marty Jackley. Both grievances were denied. Zylstra resigned from DCI effective May 18, 2012. She applied for jobs with the Department of Social Services, the Department of Corrections, the Department of Labor Relations, and private employers but received no offers, because, she alleges, of DCI’s “negative references and misrepresentations about [her] employment, demotion, discharge, and performance.” She filed charges of discrimination in 2014 against those three state agencies who didn’t hire her.
Zylstra Kaiser now charges Gortmaker with reprisal discrimination and sex discrimination under the federal Civil Rights Act and the South Dakota Human Relations Act. She charges Black with tortious interference, meaning he undermined her contractual relationship with DCI to cover his backside. She seeks, among other things, a jury trial, “compensatory relief and damages arising from loss of past and future income, benefits, emotional distress, and other damages, with interest on such amounts, and punitive damages in an amount in excess of $75,000,” and lawyer fees.