Hodges v. South Dakota School of Mines and Technology

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
TASHA HODGES, CIV.5:22-5011-LLP
Plaintiff,
vs.
SOUTH DAKOTA SCHOOL OF MINES AND
TECHNOLOGY,
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR JUDGMENT
ON THE PLEADINGS AND GRANTING
MOTION FOR RECONSIDERATION
Defendant.
Pending before the Court is Defendant South Dakota School of Mines and Technology's
Motion for Judgment on the Pleadings on Plaintiff Tasha Hodges's Fair Labor Standards Act claim
(Doc. 11)and Plaintiffs Motion for Reconsideration ofthe Court's denial of her motion to amend
her complaint to add the Board of Regents as a defendant to her claim for retaliation arising under
SDCL § 60-11-17.1 (Doc. 32). For the following reasons, Defendant's Motion for Judgment on
the Pleadings is denied and Plaintiffs Motion for Reconsideration is granted.
BACKGROUND
On January 28, 2022, Plaintiff Tasha Hodges ("Plaintiff) filed a complaint against
Defendant South Dakota School of Mines and Technology ("Defendant") alleging the following
claims: 1)sex discrimination in violation of Title VII ofthe Civil Rights Act of 1964,42 U.S.C. §
2000e(a)(l); 2)sex discrimination in violation of Title IX ofthe Education Amendments of 1972,
as amended, 42 U.S.C. § 2000e(a)(l); 3) sex discrimination in violation of SDCL § 20-13-22—
Educational institutions' unfair or discriminatory practices; 4) sex discrimination in violation of
SDCL § 20-13-10—^Unfair or discriminatory practices; 5) retaliation under Title VII of the Civil
Rights Act of 1964; 5) retaliation under SDCL § 20-13-26—Concealing, aiding, compelling, or
inducing unlawful discrimination—Threats or reprisals; 6)a violation ofthe Fair Labor Standards
Act, 29 U.S.C. § 203; 7) failure to pay wages owed in violation of SDCL § 60-11-9; and 8)
retaliation and reprisal for complaints about wages in violation of SDCL § 60-11-17.1.
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 1 of 13 PageID #: <pageID>

On May 12, 2022,Defendant filed a Motion for Judgment on the Pleadings. (Doc. 11). In
support of its motion. Defendant argued that it lacked capacity to be sued under Rule 17(c)(3) of
the Federal Rules of Civil Procedure and that the proper defendant in this matter was instead the
South Dakota Board of Regents. (Doc. 12 at 64-65). Defendant argued that even if it were the
proper party to this action, dismissal was appropriate based on Plaintiffs failure to effectuate
proper service on it. (Doc. 12 at 64). Finally, Defendant argued that to the extent the Court found
that Plaintiff properly served the correct party, her claim that Defendant violated the FLSA by its
failure to pay her overtime in 2019 fails as a matter oflaw because the allegations in the complaint
establish that she was a professionally exempt employee during that time frame. (Doc. 12 at 64).
On May 13, 2022, Plaintiff filed a Request for Summonses to the South Dakota School of
Mines, a state institution under the control of the Board of Regents, care ofthe Attorney General
and South Dakota Governor Kristi Noem. (Doe. 13). On May 23, 2022, new summonses were
issued pursuant to Ms. Hodges' May 13,2022 request. (Doc. 15). On May 27,2022, Ms. Hodges
filed a Motion to Amend/Correct Complaint and for an Extension of Time for Service of Process.
(Doe. 16). The Governor and the Attorney General were served the summonses and complaint
that same day—^May 27, 2022. (Does. 19, 20).
On May 27, 2022, Plaintiff moved to amend her complaint to substitute the South Dakota
Board ofRegents for the School ofMines as a defendant in this matter. (Doc. 16). Plaintiff argued
that her claims against the Board ofRegents relate back to the date the original complaint was filed
under Federal Rule of Procedure 15(c) and are thus timely. (Docs. 16, 17). Defendant opposed
Plaintiffs motion to amend on the basis of futility. (Doc. 25). Defendant argued that the statute
of limitations had run on Plaintiffs claims and that her claims did not relate back to the date ofthe
filing ofthe initial complaint. (Doc. 25 at 222).
On October 5, 2022, this Court issued a Memorandum Opinion and Order granting in part
and denying in part Plaintiffs motion to Amend. (Doc. 30). The Court granted Plaintiffs motion
to amend her complaint to add the Board of Regents as a defendant to her federal law claims,
finding that such claims related back to the filing of her initial complaint. The Court denied
Plaintiffs motion to amend her complaint to add the Board ofRegents as a defendant to her claims
arising imder SDCL Ch. 60-11,finding that they were untimely under South Dakota law because
service, rather the filing of the complaint initiates a lawsuit in South Dakota and service upon the
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 2 of 13 PageID #: <pageID>

School of Mines had not been effectuated within the two-year statute of limitations applicable to
wage claims. The Court reserved judgment on Plaintiffs motion to amend with regard to her
claims arising under SDCL Ch. 20-13. The Court ordered that Plaintifffile a brief within ten days
addressing whether her claims under SDCL Ch. 20-13 were time-bared for failure to file a charge
of discrimination within 180 days of the alleged discrimination and allowed Defendant an
additional 10 days in which to file a brief in response. In its Opinion, the Court denied Plaintiffs
Motion for Judgment on the Pleadings with respect to all ofPlaintiffs claims but for her Fair Labor
Standards Act ("FLSA") claim and reserved judgment on this claim. The Court ordered that
Plaintifffile a brief within 10 calendar days responding to Defendant's argument that Plaintiff was
a professionally exempt employee in 2019 and therefore not entitled to overtime pay and
permitting Defendant an additional 10 days in whieh to file a reply brief.
On May 15, 2022, Plaintiff filed her supplemental brief in response to the Court's
Memorandum Opinion and Order. (Doc. 32). Therein, Plaintiff concedes that she failed to file a
discrimination charge within 180 days in order to commence a SDCL Ch. 20-13 elaim and agrees
that dismissal of these claims is appropriate. (Doe. 32 at 278). Plaintiff also urges the Court to
deny Defendant's Motion for Judgment on the Pleadings as to Plaintiffs FLSA claim, arguing that
Defendant has failed to prove that based upon the allegations in the complaint,there are no material
issues offact regarding Plaintiffs exempt status. Finally, Plaintiff moves the Court to reconsider
its order denying Plaintiffs motion to amend her eomplaint to add the South Dakota Board of
Regents as a defendant to her retaliation claim arising under SDCL § 60-11-17.1.
Beeause Plaintiffconcedes that dismissal ofher SDCL Ch.20-13 elaims is appropriate, the
Court will now address Defendant's Motion for Judgment on the Pleadings pertaining to Plaintiffs
FLSA claim and Plaintiffs Motion to Reconsider the Court's opinion denying leave to amend to
add the South Dakota Board of Regents as a defendant to her SDCL § 60-11-17.1 claim.
DISCUSSION
I. FLSA Claim
Defendant has moved for judgment on the pleadings, arguing that Plaintiffs claim that
Defendant violated the FLSA by its failure to pay her overtime in 2019 fails as a matter of law
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 3 of 13 PageID #: <pageID>

because the allegations in the complaint establish that she was a professionally exempt employee
during that time frame. (Doc. 12 at 64).
A. Background
In her complaint, Plaintiff alleges she was employed by the School of Mines as a Research
Scientist II("RSII") in the Civil and Environmental Engineering Department("the Department")
from May 22,2019 until June 19,2020. (Doe. 1, If 6). From May 22,2019, until March 22,2020,
Plaintiff worked in the RSII position part-time. (Doc. 1, If 6). Plaintiff started off as a salaried
employee for a few months, but was then informed that she was not paid enough to be a salaried
employee and was going to hourly pay and would need to enter her time on a timecard. (Doe. 1,
Tf 7). Plaintiffs hourly wage as an RSII was $27.50 per hour. (Doc. 1,^ 10).
Throughout Plaintiffs part-time employment. Plaintiff alleges that her supervisor, Bret
Lingwall, told her that she should only enter 20 hours on her timecard, but still demanded that she
work like a salaried employee. (Doc. 1, If 7). Plaintiff alleges that during her employment as a
RSII, she consistently worked well beyond the 20 hours per week for which she was paid, and
often worked more than 40 hours per week. (Doc. 1,^9). Plaintiff alleges that over the week
from Sunday October 20,2019 to Saturday October 26, 2019, she worked 54.5 hours, but was not
paid overtime for her hours above 40 as required under the FLSA. (Doc. 1, T| 15). Plaintiff alleges
that Lingwall knew that she was working more than 40 hours that week yet required Plaintiff to
report having worked only 20 hours. (Doc. 1,117).
On March 24, 2020, Plaintiff was informed by HR that she was moving to fulltime
employment. (Doc. 1, ^ 28). Plaintiff alleges that she became a salaried employee at this time.
(Doc. 1, If 31).
In her complaint. Plaintiff alleges that Defendant's failure to pay her, when she was an
hourly employee, eamed wages and overtime for hours worked beyond 40 hours a week violated
the Fair Labor Standards Act. (Doc. 1, 6, 77; see also 32 at 282-83). Defendant has moved for
judgment on the pleadings, arguing that Plaintiffs 2019 FLSA claim fails as a matter of law
because she was a professionally exempt employee under the FLSA at that time. (Doc. 12 at 70-
73).
B. Standard of Review
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 4 of 13 PageID #: <pageID>

A court may grant a motion under Federal Rule of Civil Procedure 12(c) for judgment on
the pleadings "only when there is no dispute as to any material facts and the moving party is
entitled to judgment as a matter oflaw." Wishnatsky v. Rovner,433 F.3d 608,610(8th Cir. 2006).
When ruling on a motion for judgment on the pleadings, the court applies the same standard it
would use when addressing a motion to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). The
Court must accept as true the facts in the complaint and draw all reasonable inferences in the favor
ofthe nonmoving party. Partridge v. City ofBenton, Arkansas,929 F.3d 562,564(8th Cir. 2019).
When considering a motion for judgment on the pleadings, the court considers "the
pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and
matters ofpublic record." Mills v. City ofGrand Forks,614 F.3d 495,498(8th Cir. 2010)(citation
omitted). In general, materials embraced by the pleadings include "documents whose contents are
alleged in a complaint and whose authenticity no party questions, but which are not physically
attached to the pleadings." Zean v. Fairview Health v. Best Buy Co., Inc., 858 F.3d 520, 526(8th
Cir. 2017); see also Ashanti v. City ofGolden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012)("The
contents of the Notice of Seizure and Intent to Forfeit Vehicle and the letter by Golden Valley's
attorney that accompanied the notice were alleged in the complaint and thus necessarily embraced
by the complaint. The contents of the separate letter from the Minnesota State Patrol were not
alleged in the complaint" and thus constituted a matter outside the pleadings).
C. Analysis
1. FLSA
"The purpose ofthe FLSA 'is to protect the rights ofthose who toil, ofthose who sacrifice
a full measure oftheir freedom and talents to the use and profit of others.'" Specht v. City ofSioux
Falls, 639 F.3d 814, 819 (8th Cir. 2011)(citation omitted). "It does so in part by setting forth
substantive wage, hour, and overtime standards." Kasten v. Saint-Gobain Performance Plastics
Corp., 563 U.S. 1,11 (2011). This includes a provision establishing that no employee shall have
a "workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified rate not less than one and one-half times the
regular rate at which he is employed." 29 U.S.C. § 207(a)(1).
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 5 of 13 PageID #: <pageID>

A plaintiff seeking relief under the FLSA bears the initial burden of proving an employer-
employee relationship and that the activities for which recovery is sought "constitute employment
for purposes ofthe Act." Specht, 639 F.3d at 819. If this burden is satisfied, the burden shifts to
the employer to prove an exemption or exception to the FLSA's compensation requirements. See
id. at 819-20. "When an employer contends it is exempt from the Act,the employer has the burden
of establishing the exemption clearly and affirmatively." Id. (citation omitted).
"Courts should broadly interpret and apply the FLSA to effectuate its goals because it is
'remedial and humanitarian in purpose.'" Id. at 819(citation omitted). However,the Court should
not interpret FLSA exemptions narrowly. Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134,
1142 (2018). "Because the FLSA gives no textual indication that its exemptions should be
construed narrowly, there is no reason to give them anything other than a fair (rather than a
'narrow')interpretation." Id. (cleaned up).
In the present case. Defendant argues that Plaintiffs allegations that she was not paid
overtime in 2019 fail as a matter oflaw because the allegations in her complaint, accepted as true,
demonstrate that she was a professionally exempt employee in 2019 and thus not entitled to
overtime under the FLSA. (Doc. 12 at 70-73). The specific exemption upon which Defendant
relies is set forth in 29 U.S.C. § 213(a), which states that overtime requirements "shall not apply
with respect to... any employee employed in a bona fide executive, administrative, or professional
capacity ...."
FLSA exempts from its overtime requirements "any employee employed in a bona fide
executive, administrative, or professional capacity... as such terms are defined and delimited from
time to time by regulations ofthe Secretary [ofLabor]." Coates v. Dassault Falcon Jet Corp.,961
F.3d 1039, 1042 (8th Cir. 2020)(citing 29 U.S.C. § 213(a)(1)). A separate regulation governs
each exemption. Id.(citing29 C.F.R. § 541.100(executive),§ 541.200(administrative), § 541.300
(professional). To establish an exemption in 2019—^the time Plaintiff alleges she was denied
overtime pay—^Defendant must establish that Plaintiffs "primary duty" was the performance of
exempt work, 29 C.F.R. § 541.700; that she was paid not less than the minimum salary level, §
541.600; and that she was paid on a "salary basis," § 541.602. Id.
Pursuant to 29 C.F.R. § 541.602,"an employee will be considered to be paid on a 'salary
basis' within the meaning of this part if the employee regularly receives each pay period on a
6
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 6 of 13 PageID #: <pageID>

weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's
compensation, which amoimt is not subject to reduction because of variations in the quality or
quantity ofthe work performed." In 2019,an employer had to pay an employee a salary of at least
$455 per week for the employee to qualify for the exemption. 84 F.R. 10900-01 (Mar. 22, 2019).
The minimum salary was increased to $684 in January 1, 2020. 29 C.F.R. § 541.600.
2. Legal Analysis
Defendant contends that Plaintiffs complaint establishes that all the requirements have
been met for Plaintiff to qualify as an exempt employee. (Doc. 12 at 71). The parties do not
dispute that based on the allegations in Plaintiffs complaint that her primary duty while employed
with the School of Mines was the performance of work "requiring knowledge of an advanced type
in a field of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction," and thus, that Plaintiff was employed in a "professional capacity" as
defined under 29 C.F.R. § 541.300(a). In their Motion for Judgment on the Pleadings, Defendant
argues that Plaintiffs complaint also establishes that she was paid a minimum salary level on a
salaried basis. Specifically, Defendant cites paragraph 13 of Plaintiffs complaint which alleges
that she "received the same $2,383.33 paycheck for all pay periods between May 22, 2019, and
December 1, 2019." (Doc. 12 at 71)(citing Doe. 1, 13). The $455 a week requirement is met if
the employee is compensated monthly on a "salary basis of $1,971.66." Estes v. Buell, Civ. No.
4:18-00026-KGB, 2019 WL 1338396, at *6 (E.D. Ark. Mar. 25, 2019) (citing 29 C.F.R. §
541.600(b))(2019)).
In court-ordered briefing. Plaintiff states that during 2019,she was paid on an hourly basis,
not on a salaried basis. (Doc. 32 at 282-83). Plaintiff provides that the reason her paychecks were
the same is because her supervisor, Brett Lingaman, instructed her to report having worked only
20 hours per week, even though she consistently worked more hours than that. (Doc. 32 at 282).
In response. Defendant argues in its supplemental brief that Plaintiffs contract of employment
provides that Plaintiff was an exempt employee. (Doe. 33 at 294). Defendant is of the position
that the Court may consider this contract as being "embraced by the pleadings" in its analysis of
its motion for judgment on the pleadings because Plaintiff references her contract several times in
her complaint. (Doc. 33 at 295).
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 7 of 13 PageID #: <pageID>

Contrary to Defendant's position, the Court is of the position that Plaintiffs contract of
employment is not embraced by the pleadings. Although Plaintiff makes several references to the
fact that her contract of employment was not renewed after she sent a letter to Human Resources
detailing her issues with Lingwall,the contract is not attached to the complaint and nowhere in the
complaint does she allege the contents of the employment contract. Zean v. Fairview Health
Servs., 858 F.3d 520, 526 (8th Cir. 2017) ("In general, materials embraced by the complaint
include 'documents whose contents are alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the pleadings.'")(quoting Ashanti v. City of
Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012)). Furthermore, the Court does not find that
the employment contract is "integral" to Plaintiffs FMLA claim because nowhere in the complaint
does she "rel[y] heavily upon its terms and effect." See Rosa v. MiTeklnc., Civ. No. 4:21-00187,
2021 WL 5371251, at *3 (E.D. Mo. Nov. 18, 2021)(citing States v. Strock, 982 F.3d 51, 63 (2d
Cir. 2020)(stating that "a document is 'integral' when the complaint 'relies heavily upon [the
document's] terms and effect.'"); Anglim v. Sharp Med. Staffing, LLC, Civ. No. 8:21-0171, 2021
WL 4627873, at *2(D. Neb. Oct. 7, 2021)(same). "Most courts . . . view 'matters outside the
pleading' as including any written or oral evidence in support of or in opposition to the pleading
that provides some substantiation for and does not merely reiterate what is said in the pleadings."
Gibb V. Scott, 958 F.2d 814, 816 (8th Cir. 1992). The Court therefore will not consider the
employment contract in its analysis of Defendant's motion for judgment on the pleadings.
Although Plaintiff alleges that she received the same amount each pay period during this time, she
alleges that it was because she consistently worked 20 or more hours per week, but was only paid
for her 20 hour part-time position. This does not, as argued by Defendant, necessarily mean that
she was paid a predetermined amormt. Because Plaintiff alleged she was paid on an hourly basis,
it can be inferred that she was not guaranteed $2,383.33 if she had worked less than 20 hours a
week. This is a factual dispute that precludes the Court from granting Defendant judgment as a
matter oflaw on this claim.
11. Claim arising under SDCL § 60-11-17.1
A. Background
In Plaintiffs supplemental briefing to the Court, she also moves the Court to reconsider its
denial of her motion to amend her complaint alleging a claim arising under SDCL § 60-11-17.1
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 8 of 13 PageID #: <pageID>

against the South Dakota Board ofRegents. In her complaint, Ms. Hodges alleged that the School
of Mines failed to pay her appropriate wages from November 2019 imtil March 2020 in violation
of SDCL § 60-11-9 and retaliated against her for making a wage complaint in violation of SDCL
§ 60-11-17.1. Her proposed amended complaint sought to name the South Dakota Board of
Regents rather the South Dakota School of Mines of Technology as a defendant to these claims.
Defendant argued in opposition to Plaintiffs Motion to Amend that her claims arising under SDCL
Ch. 60-11 were not timely commenced against the first-named defendant,the South Dakota School
of Mines and Technology, and therefore did not relate back under South Dakota law.
In its Memorandum Opinion and Order dated October 5, 2022, the Court noted that
Plaintiffs claims arising under SDCL Ch. 60-11 must be commenced within two years from the
date the cause of action accrued. (Doc. 30)(citing SDCL § 15-2-15(3))(providing that "an action
for wages regulated by either state or federal statute or for a penalty or liquidated damages for
failure to pay wages regulated by either such state or federal statute" must be "commenced only
within two years after the cause of action shall have accrued."). For Plaintiffs SDCL § 60-11-9
claim alleging failure to pay wages, the Court found that Plaintiffs claim accrued on March
2020—^the last date of Defendant's alleged failure to pay Plaintiffs due wages—and found that
her claims thus needed to have commenced by March 2022 under the applicable statute of
limitations. The Court noted that under South Dakota law, it is the service of the summons that
commences the action, not the filing ofthe complaint. Because the governor and attorney general
were not served with the summons and complaint in this matter until May 27,2022, subsequent to
the expiration of the statute of limitations on Plaintiffs SDCL § 60-11-9 claim, the Court
concluded that Plaintiffs SDCL § 60-11-9 claim did not relate back and was untimely. See
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010)(stating that Fed. R. Civ. P. 15(c)
govern when an amended pleading "relates back" to the date ofa timely filed original pleading and
is thus itself timely even though it was filed outside an applicable statute of limitations.). In its
order, however, the Court denied Plaintiffs motion to amend all claims arising under SDCL Ch.
60-11, without having separately analyzed the timeliness of Plaintiffs retaliation claim under
SDCL §60-11-17.1.
In her supplemental brief. Plaintiff urges the Court to reconsider its order denying
Plaintiffs Motion to Amend her retaliation claim arising under SDCL § 60-11-17.1, arguing that
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 9 of 13 PageID #: <pageID>

such claim was timely filed against the initially-named defendant and thus relates back under
SDCL § 15-6-15(c).
B. Standard of Review
"The Federal Rules of Civil Procedure do not mention motions for reconsideration."
Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999)). "District courts have considerable
discretion in deciding whether to grant a motion to reconsider an interlocutory order." Karg v.
Transmerica Corp., Civ. No. 18-0134, 2019 WL 9093998, at *2 (W.D. Iowa Nov. 7, 2019).
"Depending on the circumstances, motions for reconsideration may be properly analyzed under
Federal Rule of Civil Procedure 54(b), 59(e), or 60(b)." Id. Rule 60(a) of the Federal Rules of
Civil Procedure also allows a court to "correct a clerical mistake or a mistake arising from
oversight or omission." Fed. R. Civ. P. 60(a). Plaintiff has not indicated under which Rule of
Civil Procedure she has moved the Court for reconsideration.
Rule 54(b)provides that"any order or other decision, however designated,that adjudicates
fewer than all the claims or the rights and liabilities offewer than all the parties ... may be revised
at any time before the entry of ajudgment adjudicating all the claims and all the parties' rights and
liabilities." Fed. R. Civ. P. 54(b). "The exact standard applicable to the granting ofa motion imder
Rule 54(b)is not clear, though it is typically held to be less exacting than would be a motion under
Federal Rule of Civil Procedure 59(e), which is in turn less exacting than the standards enunciated
in Federal Rule of Civil Procedure 60(b)." Allstate Ins. Co. v. Weber, Civ. No. 1:05-000039-
WRW,2007 WL 1427598, at *2(E.D. Ark. May 11, 2007). Pursuant to a Rule 54(b) motion to
reconsider, an order that does not dispose ofthe case may be amended "to correct any 'clearly' or
'manifestly' erroneous findings offacts or conclusions oflaw." Id.; see also Hagerman v. Yukon
Energy Corp., 839 F.2d 407,414(8th Cir. 1988). A motion for reconsideration under Rule 54(b),
however,"is not a vehicle to identify facts or legal arguments that could have been, but were not,
raised at the time the relevant motion was pending." Julianello v. K-VPharm. Co., 791 F.3d 915,
923 (8th Cir. 2015); SFV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111 (8th Cir.
2019).
Rule 60(a) allows a court to "correct a clerical mistake or a mistake arising from oversight
or omission whenever one is found in ajudgment,order, or other part ofthe record." Fed. R. Civ.
10
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 10 of 13 PageID #: <pageID>

p. 60(a). Rule 60(a) allows clerical mistakes to be corrected so that orders "reflect what the court
originally intended." In re Modern Textile, Inc., 900 F.2d 1184, 1193 (8th Cir. 1990).
The Court concludes that reconsideration of its October 5, 2022, Memorandum Opinion
and Order denying Plaintiffs motion to amend to add the South Dakota Board of Regents as a
defendant to its retaliation claim arising under SDCL § 60-11-17.1 is appropriate under either Rule
54(b) or Rule 60(a) of the Federal Rules of Civil Procedure. In her Complaint, Plaintiff alleged
two claims arising under SDCL Ch. 60-11. First, Plaintiff alleged that the School of Mines failed
to pay her appropriate wages from November 2019 until March 2020 in violation of SDCL § 60-
11-9. Second, Plaintiff alleged that the School of Mines retaliated against her for making a wage
complaint in violation of SDCL § 60-11-17.1. In its Opinion, the Court found that Plaintiffs
wage claim under SDCL 60-11-9 was barred by South Dakota's two-year statute of limitations
governing wage claims because she failed to serve the governor and attorney within this time. In
its order, however, the Court denied Plaintiffs motion to amend all claims arising under SDCL
Ch. 60-11, without having separately analyzed the timeliness ofPlaintiffs retaliation claim under
SDCL 60-11-17.1.
C. Legal Analysis
Upon further review, the Court finds that its order dismissing all of Plaintiffs claims
arising under SDCL Ch. 60-11 was manifestly in error and arose from the Court's oversight of
facts relating to Plaintiffs SDCL § 60-11-17.1 claim. SDCL 60-11-17.1 proscribes "discharge,
discriminat[ion], or engag[ing] in or threaten[ing] to engage in any reprisal, economic or
otherwise, against any employee because the employee has made any complaint to the employer.
. . that the employee has not been paid wages in accordance with this chapter . . . ." In her
complaint. Plaintiff alleges that when she complained about not being paid earned wages and
overtime, she suffered reprisal when she was issued a performance improvement plan on May 4,
2020, and when she was informed that her contract was not renewed on June 19, 2020.
Plaintiff argues that her SDCL § 60-11-17.1 claim is in essence a retaliatory discharge
claim subject to a three-year statute oflimitations applicable to personal injury actions. (Doc. 32
at 289 (citing SDCL § 15-2-14(3)). In South Dakota, "retaliatory discharge is a tort arising from
a breach ofpublic policy duties independent ofthe employment contract." Tiede v. CorTrustBank,
N.A., 748 N.W.2d 748, 752(S.D. 2008). Whether a party's termination violates South Dakota's
11
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 11 of 13 PageID #: <pageID>

public policy is a question oflaw. Niesent v. Homestake Mining Co. ofCal,505 N.W.2d 781,783
(S.D. 1993). "Substantial public policies are 'found in the letter or purpose of a constitutional or
statutory provision or scheme, or in ajudicial decision.'" Semple v. Fed. Express Corp., 566 F.3d
788,792(8th Cir. 2008)(quoting Niesent, 505 N.W.2d at 783). The South Dakota Supreme Court
has reeognized a breach of public policy where the employer terminates an employee for: (1)
refusing to commit a criminal or unlawful act;(2) filing a worker's compensation claim; and (3)
whistleblowing that promotes the public good. Stathis v. Marty Indian Sch. Bd. Inc., 560
F.Supp.3d 1283, 1302-03 (D.S.D. 2021) (Lange, J.) (citing Dahl v. Combined Ins. Co., 621
N.W.2d 163, 166-67(S.D. 2001)). The South Dakota Supreme Court has not addressed whether
retaliation for making a wage claim violates public policy and constitutes a common law retaliatory
discharge claim under state law. Courts of other jurisdictions are divided on this issue. Compare
Pierkarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1493 (8th Cir. 1992)(eoncluding
that Minnesota courts have not recognized a common law action for retaliatory wage
discrimination because it duplicates a statutory claim), andLisakv. Great Masonry, Inc., Civ. No.
08-1930, 2009 WL 855952, at *2(N.D. 111. Mar. 30, 2009)(noting that Illinois courts have ruled
that retaliatory discharge actions could not be based on the policy contained in the Illinois Wage
Payment and Collection Act, 820 ILCS II5/I etseq.), with Campbell v. Husky Hogs., LLC.,155
P.3d 1, **7 (Kan. 2011)(finding a common-law retaliatory discharge claim when an employer
fires a worker who seeks to exercise his Kansas Wage Payment Act rights hy filing a wage claim),
and Tullis v. Merrill, 584 N.W.2d 236, 239(Iowa 1998)("We now hold that Iowa Code chapter
91A plainly articulates a public policy prohibiting the firing of an employee in response to a
demand for wages due under an agreement with an employer.").
The Court need not decide whether the 3-year statute of limitations applicable to personal
injury actions or the two-year statute oflimitations applicable to wage claims applies to Plaintiffs
claim under SDCL § 60-11-17.1. Plaintiffs complaint asserts that Defendant was guilty of the
non-payment of wages in two distinet ways: the failure to pay proper wages when her hours
exeeeded 20 hours per week, and the failure to pay overtime when her hours exceeded 40 hours.
Plaintiffs complaint asserts that when she complained about these two violations. Defendant
retaliated against her when, among other things, it informed her on June 19, 2020, that it would
not be renewing her contract. Plaintiffs retaliation claim thus accrued on June 19, 2020. It is
undisputed that Plaintiff served her summons and complaint on the attorney general and governor
12
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 12 of 13 PageID #: <pageID>

on May 27,2022—^within both the two year statute oflimitations period applicable to wage claims
and the three-year statute of limitations period applicable to personal injury actions. The Court's
dismissal of this claim was based on its inadvertent oversight of the facts alleged in Plaintiffs
complaint pertaining to her retaliation claim under SDCL § 60-11-17.1.
Accordingly, it is hereby ORDERED:
1. that Defendant's Motion for Judgment on the Pleadings(Doc. 11) is DENIED; and
2. that Plaintiffs motion for reconsideration/motion to correct order(Doc. 32)is
GRANTED;Plaintiff may amend her complaint to allege a claim arising under SDCL
§ 60-11-17.1 against Defendant Board of Regents.
Dated this TA^^day of December,2022.
BY THE COURT:
(jLuaxua.
Lawrence L. Piersol
ATTEST: United States District Judge
MATTHEW W.THELEN^ERK
13
Case 5:22-cv-05011-LLP Document 40 Filed 12/21/22 Page 13 of 13 PageID #: <pageID>