The opinion of the court was delivered by: Wm. R.Wilson, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
In her December 20, 2005 Amended Complaint,*fn1 Plaintiff alleges a violation of Title VII because of her race (white) and gender when she was threatened by two co-workers in the presence of supervisors.*fn2 She complains that the United States Postal Service ("USPS") breached an EEOC settlement agreement by failing to conduct a thorough investigation into the actions of Johnny Marshall, a black male, and Delores Overton. In addition, Plaintiff contends that the threats violated federal employment policy regarding a safe workplace. She also asserts that USPS denied her right of exercise of free speech under the First Amendment of the United States Constitution by failing to protect her by enforcing its policies to ensure safety and a non-hostile work environment. Invoking pendent jurisdiction, Plaintiff alleges that the actions or inactions of the USPS set out above resulted in a violation of her right of exercise of free speech under the Arkansas Constitution and under the Arkansas Civil Rights Act ("ACRA") for race and gender discrimination. Plaintiff seeks both compensatory and punitive damages.
On January 5, 2007, USPS filed a motion for summary judgment supported by brief, exhibits, and a separate statement of undisputed facts. First, Defendant asserts that Plaintiff's complaint is barred by the October 16, 2003 settlement agreement. Defendant notes that although Plaintiff does make one reference to breach of the settlement agreement, she seeks neither specific performance nor rescission of the settlement agreement - - only monetary damages. USPS further contends that the Overton incident is not mentioned in Plaintiff's informal EEO complaint regarding her confrontation with Marshall. As a result of that failure and Plaintiff not filing a separate EEO complaint regarding the alleged threat by Overton, USPS asserts the claim as to Overton is barred for failure to exhaust administrative remedies.
Next, USPS argues that Plaintiff cannot make a prima facie case of discrimination on the basis of her race or gender as failure to take disciplinary action against a co-employee for the co-employee's misbehavior does not qualify as an adverse employment action for purposes of a claim of discriminatory treatment on the basis of race and gender. Defendant continues that there is no evidence to show that management's decision that the Marshall incident was not a threat to Plaintiff's personal safety is based on Plaintiff's race or gender.
USPS further argues that, even if Plaintiff could show a prima facie case, she cannot show pretext. Defendant contends that two investigations were conducted - - one by Kenneth Little, the Manager of Distribution Operations Tour II, in 2003 based on the settlement agreement and the other by Larry Harrison, Manager of Distribution Operations Tour III in 2005 based on the EEOC remand order. USPS also contends that Little instructed Marshall to have no contact with Plaintiff. Plaintiff's amended complaint does not allege any confrontation with Marshall after May 23, 2003, and the settlement agreement required only that USPS conduct a "thorough investigation" of the Marshall incident that had been fulfilled. USPS contends that it has articulated non-discriminatory reasons for its actions by addressing Plaintiff's complaint regarding Marshall's conduct. USPS argues that although Plaintiff is not satisfied and USPS may have reached an erroneous conclusion about the conduct, she cannot show that its reasons are pretext for racial and gender discrimination.
Turning to the claim of hostile work environment, USPS asserts that the Marshall and Overton incidents do not, either individually or collectively, rise to the level of hostile work environment - - objectively to a reasonable person and subjectively to Plaintiff - - on the basis of her race or gender as required to establish a prima facie case. Defendant argues that Plaintiff has no evidence that the misconduct of her co-workers was based on her race or sex or that management's alleged failure to take appropriate action was based on her race or gender. USPS states that these isolated incidents occurred because Plaintiff was checking the employee parking lot for vehicles that were improperly parked in handicapped parking spaces and they were not sufficiently pervasive or severe to rise to the level of a hostile work environment.
Additionally, USPS argues that this Court lacks subject matter jurisdiction of the non-Title VII claims as Plaintiff's exclusive remedy is Title VII. Finally, Defendant states that claims for monetary damages for violations of constitutional rights are not actionable against agencies of the United States government.
In the February 2, 2007 response, Plaintiff states that the ultimate issues in this case are whether Marshall issued a threat to Plaintiff; whether USPS violated its own Zero Tolerance Policy; and whether those facts taken together constitute a hostile work environment that continues to be forced upon her.
She contends that she has established a prima facie case since she is in a protected group of being female and of being white. Plaintiff continues that she was subjected to unwelcome harassment when Marshall approached her in a threatening manner at the time clock the afternoon of May 23, 2003; told her she was in trouble and that she was going to get her ass hurt; told her to stay out from behind his vehicle; and called her a "nappy-headed whore." She asserts that Overton, later that day, told her that she would take Plaintiff to court if there was even one scratch on her car. Plaintiff argues that USPS did not take action against Marshall in violation of its own Zero Tolerance Policy; violated the settlement agreement with Plaintiff; and failed to take prompt and effective remedial measures to end the harassment which they knew about.
Next, Plaintiff addresses the argument that the settlement agreement bars all her Title VII claims. She states that USPS failed to advise the Court that the February 15, 2005 EEOC decision clearly and explicitly documents that USPS breached the settlement agreement when the agency failed to honor its duty to conduct a "thorough" investigation. She points to the evidence that at least one of the named witnesses to the incident was never contacted and that the agency's finding no breach of the settlement agreement was reversed. Plaintiff argues that USPS is estopped from making any argument seeking a remedy under that settlement agreement.
Plaintiff also asserts that she was granted the right to file a civil action in each of the EEOC decisions rendered in this case, and has satisfied all administrative prerequisites. Regarding whether the incident involving Overton is barred from consideration since it was not included specifically in the EEOC case, Plaintiff argues that courts do not insist upon a precise identity of the claims raised administratively and those pursued in subsequent litigation.
Plaintiff argues that she has provided direct evidence of race/gender discrimination through her affidavit and the statements of two witnesses who heard the same phrase from Marshall including that Plaintiff may get hurt and was a "nappy-headed whore." She insists that saying "nappy-headed whore" to a woman of a different race clearly shows a discriminatory attitude based upon gender and race.
She also discusses situations where the Zero Tolerance Policy against threats of violence were enforced in being a legitimate reason for terminating an employee. Plaintiff states that USPS is perhaps the most notorious employer to have violence in its workplace and the threat of violence still affects Plaintiff since Marshall clocks on duty at the register room time clock where she works, and still gives her menacing looks. She continues that the policy may be violated by inaction as well as action, and here supervisor Cathy Sims did nothing and declined to give a statement during the first investigation. Plaintiff contends that the inaction by USPS, coupled with the conduct of Marshall, constituted a hostile work environment.
She also charges that the deceitful conduct by USPS's supervisors and management which allowed her to be threatened and to be called a "nappy-headed whore" in violation of the Zero Tolerance Policy also breached the settlement agreement and constitutes disparate treatment. Plaintiff alleges that recently an African American union steward "punched out" a white employees and the Zero Tolerance Policy was not enforced, and that Marshall had previously assaulted a white female.*fn3 She states that the threat to her was ...