The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Plaintiff filed suit in the Pulaski County Circuit Court on April 5, 2006, alleging sexual harassment, retaliation, and gender discrimination under Title VII and the Arkansas Civil Rights Act ("ACRA"). The case was removed on April 21, 2006, based on federal question jurisdiction. The claims against the two individual defendants were dismissed by a May 16, 2006 order leaving Plaintiff's employer as the only Defendant.
On January 8, 2007, Defendant filed a motion for partial summary judgment on the claims of sex discrimination and sexual harassment. This motion is supported by brief, exhibits, and a statement of undisputed facts in compliance with Local Rule 56.1. Defendant argues that Plaintiff cannot prove sex discrimination because she has not suffered any adverse employment action. Defendant also asserts that Plaintiff's sexual harassment claim should be dismissed as untimely and that she cannot establish a prima facie case of sexual harassment because the conduct complained of was not so severe or pervasive as to create a hostile work environment.
Plaintiff responded to Defendant's motion on January 22, 2007, with brief, exhibits, and a responsive Local Rule 56.1 statement. She counters that she timely filed her EEOC charge; that there is a one-year statute of limitations under the ACRA; and that she suffered a tangible job detriment in the form of a hostile work environment and by her termination.
On January 12, 2007, Plaintiff filed a motion for partial summary judgment as to liability on her retaliation claim. She contends that there is no dispute that she complained of discrimination, that she was terminated, and that she was terminated because of her complaint although the facts as to the exact sequence of events leading to termination may differ. Defendant responded on January 23, 2007, that there are material facts in dispute as to whether Plaintiff was fired and, if so, whether she was fired in retaliation of filing a complaint.
Summary Judgment Standard
Summary judgment can properly be entered when there are no genuine material facts that can be resolved by a finder of fact; that is, there are no facts which could reasonably be resolved in favor of either party. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."*fn1 The non-moving party may not just rest upon his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial.*fn2 "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law."*fn3
Plaintiff worked for M-K Industries ("M-K"), which provided contract labor to Defendant, from March 22, 2004 to September 15, 2004.*fn4 Her duties were to pull parts, deliver parts, pick up parts, transfer parts from one plant to another, and inventory. There was no team coordinator over supply during Plaintiff's employment with M-K, but Bob Hall, Vice President of Manufacturing, oversaw the department. During this time, John Gannaway worked in the small parts department, but he was not a supervisor.
According to Plaintiff, Gannaway began sexually harassing Plaintiff soon after she began working for Defendant. He would send messages to Plaintiff through Maple Neal, a co-worker, that he was having dreams about Plaintiff, and that he wanted to have sex with Plaintiff. Gannaway also allegedly tried to get Plaintiff to come in his office three or four times a week so he could hug and kiss her although she would tell him "No" and "Stop." Plaintiff also alleges that Gannaway offered her money on multiple occasions although she did not know why he did so. Gannaway also allegedly made comments like "Hey, sexy," "Hey beautiful," or "when are we going to hook up," and "stuff like that" "throughout" the time she worked there.
Plaintiff testified in her deposition*fn5 that she complained to Hall about what was going on with Gannaway. She stated that he told her "Don't worry about it, I will take care of it" and "Just don't go to Gay."*fn6 However, Plaintiff testified that nothing seemed to change. She talked to Hall a second time and he asked "It is still going on?" He assured her that he would take care of it and not to worry. Plaintiff left Defendant to go to school to obtain her heavy equipment operating license and partly because of Gannaway.
Plaintiff returned to Defendant in January 2005 as an employee of Defendant. Since her employment with M-K, Gannaway had been named Team Coordinator over the supply department. Plaintiff testified that she did not tell anyone what happened the first time she had worked there for M-K because she had already discussed it with Hall. She felt like things would be different because of the passage of time and that Gannaway would be different.
One of the responsibilities of the supply department is to pick up or deliver parts out of town. Plaintiff and Neal were primarily responsible for making out of town trips. After Neal left, Plaintiff and Blake Hicks made the deliveries. Plaintiff often made trips to Crossett, Warren, and Little Rock. Plaintiff testified that making deliveries was not a preferred job in ...