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Stoner v. Arkansas Dep't of Corr.

United States District Court, E.D. Arkansas, Jonesboro Division

November 18, 2013

TRACY STONER, PLAINTIFF
v.
ARKANSAS DEPARTMENT OF CORRECTION, et al., DEFENDANTS

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For Tracy Stoner, Plaintiff: James M. Scurlock, Lucien Ramseur Gillham, Luther Oneal Sutter, Sutter & Gillham, PLLC, Benton, AR.

For Arkansas Department of Correction, John Maples, Warden, in his individual capacity & in his official capacity, Defendants: Lori Freno, LEAD ATTORNEY, Regina Haralson, Arkansas Attorney General's Office, Little Rock, AR.

For Correctional Medical Services Inc, Defendant: Edward E. Hollis, Baker & Daniels LLP, Indianapolis, IN; Jane Marie Yocum, Munson, Rowlett, Moore & Boone, P.A., Little Rock, AR; Robert D. Moreland, Shellie Lynn Goetz, Faegre Baker Daniels LLP, Fort Wayne, IN.

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OPINION AND ORDER

KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE.

Plaintiff Tracy Stoner brings this action against the Arkansas Department of Correction (the " ADC" ) under 42 U.S.C. § 2000e et seq. (" Title VII" ), for gender discrimination, based on hostile work environment and disparate treatment, and retaliation; against Warden John Maples, in his individual and official capacities, under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-101 et seq. (the " ACRA" ), for gender discrimination, based on disparate treatment, and retaliation; and against Correctional Medical Services, Inc. (" CMS" ), under Title VII and the ACRA for gender discrimination, based on hostile work environment and disparate treatment, and retaliation. The ADC and Warden Maples filed a motion for summary judgment (Dkt. No. 30). CMS filed a separate motion for summary judgment (Dkt. No. 36). Ms. Stoner filed a response to both (Dkt. Nos. 42, 45). The ADC and Warden Maples (Dkt. No. 52), and CMS (Dkt. No. 53), filed a reply. On June 27, 2013, defendants filed a supplemental brief (Dkt. No. 69), to which Ms. Stoner responded on June 28, 2013 (Dkt. No. 70).

For the reasons that follow, the ADC and Warden Maples's motion is granted in part and denied in part. Summary judgment is granted as to Ms. Stoner's hostile work environment claims against the ADC and Warden Maples. Those claims are hereby dismissed. Summary judgment is denied as to Ms. Stoner's claims against the ADC and Warden Maples for gender discrimination based on disparate treatment and retaliation. Those claims will proceed to trial. CMS's summary judgment motion is granted in its entirety, and thus all of Ms. Stoner's claims against CMS are hereby dismissed.

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I. Factual Background

The following facts are undisputed and taken from defendants' statements of undisputed facts (Dkt. Nos. 32, 38) and Ms. Stoner's responses to defendants' statements of undisputed facts (Dkt. Nos. 44, 47), unless otherwise specified by citation.

In November 2008, Ms. Stoner was hired as a Licensed Practical Nurse by CMS, now Corizon, Inc. CMS contracts with the ADC to provide on-site medical services to ADC inmates at its 19 facilities throughout the state, including the Newport Complex. The Newport Complex is the site of the McPherson Unit, where Ms. Stoner worked. CMS contends that it controls the means by which nursing tasks are accomplished; interviews and hires nurses with no input from the ADC; supervises nurse duties; pays nurses and sets their work schedules; conducts nurse performance evaluations; and provides nurses with medical protocols and all " disposable" medical supplies necessary to care for inmates, except for X-ray machines and gurneys, which the ADC provides. While employed, Ms. Stoner worked under the supervision of CMS Director of Nursing Janet Tiner, who worked under the supervision of CMS Health Services Administrator James Pratt. Ms. Stoner maintains that she also received training from the ADC, was required to abide by all ADC rules, and, if she failed to do so, could be barred from the ADC facility by Warden Maples, effectively terminating her employment. She also contends that Warden Maples indicated that he subjected CMS employees to the same standards as ADC employees.

Upon her hire, Ms. Stoner received a copy of CMS's Handbook. She admits the CMS Handbook included a policy on " Institutional Action," which states that a CMS employee normally will be terminated if the employee's access to a facility is revoked by the ADC because, without access to the facility, the CMS employee cannot get to work or perform any job duties. She also admits the CMS Handbook contained provisions prohibiting sexual harassment, requiring that sexual harassment be reported, and addressing retaliation. CMS's sexual harassment policy, with which Ms. Stoner was familiar, further emphasized that employees must report sexual harassment and also notified employees that falsification during an investigation was " strictly prohibited" and would result in disciplinary action.

Ms. Stoner also received a copy of the ADC's sexual harassment and reporting policies, which like CMS's policies state that sexual harassment will not be tolerated, requires an employee to notify a supervisor when she or he is being sexually harassed, and includes anti-retaliation language protecting individuals who report sexual harassment. Further, the ADC provided Ms. Stoner with sexual harassment training that addressed what the ADC contends is a zero tolerance for sexually inappropriate conduct and the requirement to report such conduct. Ms. Stoner maintains that the ADC does not have a zero tolerance policy.

On June 4, 2009, Ms. Tiner was at the nurses' station when she overheard Ms. Stoner say, " I'm going to put a stop to this." Ms. Tiner questioned Ms. Stoner about the comment, and Ms. Stoner said that corrections officer Eric Wellman had acted inappropriately toward her. Ms. Stoner then told Ms. Tiner that she was going to handle the situation herself.

Ms. Tiner reported her conversation with Ms. Stoner to Mr. Pratt, who then reported it to ADC Major Linda Dixon. Ms. Dixon instructed Mr. Pratt to obtain a written statement from Ms. Stoner. Ms. Dixon then interviewed Mr. Wellman in her office and obtained a written statement from him.

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Mr. Wellman first claimed that he had never touched Ms. Stoner " sexually," but admitted to having Ms. Stoner's cell phone number, claiming she gave it to him, and admitted to having called her. The next day, after being placed on administrative leave, Mr. Wellman clarified that he had rubbed Ms. Stoner's shoulders but reported that Ms. Stoner did not indicate to him that she found it offensive. Ms. Stoner maintains that Mr. Wellman was sexually harassing her, obtained her phone number through unknown means, and inappropriately and sexually touched her. Ms. Stoner asserts that she did find it offensive and moved away from him.

Ms. Stoner drafted the following statement regarding the matter:

On a Saturday in the month of March (not sure of date) I was in the pill room pulling up pills and Officer Wellman came to the pharmacy door wanting to talk with me. I let him in the pharmacy. I was standing on the left side of the room and Officer Wellman was leaning on the cabinet on the other side of the room. He started making sexual remarks to me like " I got something for you," " I need to come by and visit you at home," and things that made me feel uncomfortable. I asked him about the ring on his finger and he said it didn't mean anything. I told him it meant something to some woman. As I started out of the pharmacy Officer Wellman came up behind me and ran his hands under my shirt at my waist. I didn't really say anything but that he shouldn't do that. He laughed and said you know you like it Ms. Stoner. On May 30 around noon Officer Wellman came to medical stating he needed his blood pressure checked. I checked his blood pressure and he asked how I had been. I tried to hurry up and get back around into medical because I was feeling uncomfortable. He followed me behind the desk and started massaging my shoulders. Officer Ponder was present on this 2nd occurrence.

(Dkt. No. 44, ¶ 18). In her deposition, Ms. Stoner alleged that during this time Mr. Wellman called her cell phone twice, though she did not answer, and stopped by her house once, leaving after he learned she was not there.

Surveillance camera footage was retrieved for the May 30 incident but purportedly was not available for the March incident. According to Ms. Dixon, the May 30 footage showed that Officer Wellman walked into the nurses' station before Ms. Stoner and rubbed her shoulders for approximately two to three minutes. Ms. Tiner indicated that Ms. Stoner did not appear to enjoy or welcome the behavior.

On June 8, 2009, Ms. Stoner met with Mr. Pratt and defendant John Maples, who is the Warden of the ADC's Newport Complex. Warden Maples claims to stress the agency's alleged zero tolerance for sexual harassment and the importance of reporting it, but he has never terminated anyone's employment for failure to report sexual harassment. The parties agree that Warden Maples was concerned about Ms. Stoner's failure to report the incident and made his concern known to Ms. Stoner. When asked by Warden Maples why she did not report Mr. Wellman's conduct until asked to do so, Ms. Stoner said she thought that she could take care of the situation herself. The parties agree that Ms. Stoner's statements during this meeting regarding the March and May incidents were consistent with what was in her written statement.

Ms. Stoner contends that, during the June 8 meeting, Warden Maples told her in an intimidating manner that she was interfering with the livelihood of one of his officers and asked her if she was sure this is what she wanted to do. Ms. Stoner maintains Warden Maples was angry

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based on tone, volume, and facial expression. Ms. Stoner also alleges that Warden Maples claimed that Ms. Stoner filed the charge because her sexual preference was women (Dkt. No. 43, at 5).

Mr. Pratt described the meeting as " a straight-forward conversation of [Warden Maples] questioning [Ms. Stoner]," but testified that Warden Maples talked more about Ms. Stoner and her reporting obligations than Mr. Wellman's conduct and that Warden Maples told Ms. Stoner that she was putting people's livelihoods at stake, particularly Mr. Wellman's (Dkt. No. 44, ¶ 25).

Immediately after the June 8 meeting, Warden Maples barred Ms. Stoner from the Newport Complex, without having reviewed the surveillance footage. Mr. Pratt and Ms. Tiner did not agree with Warden Maples's decision, and both expressed their disagreement to Warden Maples. Mr. Pratt discussed the decision twice with Warden Maples, expressing his disagreement both times. When Ms. Tiner heard of Warden Maples's decision, she " got very angry." (Dkt. No. 47, ¶ 58). Because Ms. Stoner could not report to work, CMS placed her on leave with pay. Warden Maples claims that, at this time, he had only temporarily barred Ms. Stoner from the Newport Complex pending the outcome of the investigation. Ms. Stoner contends that alleged failure to report is not an offense that would lead to being barred from the Newport Complex and that Warden Maples admits this.

On June 12, 2009, Warden Maples issued a memo permanently barring Ms. Stoner from the Newport Complex. Warden Maples contends that he permanently barred Ms. Stoner because, after viewing the May 30 surveillance footage, he concluded that Ms. Stoner had falsified her statement. Specifically, Warden Maples claims that the footage showed that Ms. Stoner visited with Mr. Wellman " very non-chalant[ly]" for over two minutes after taking his blood pressure, " just laid back, just talking," and appearing very relaxed in his presence. Further, although Ms. Stoner reported that she " tried to hurry up and get back around into medical" and that Mr. Wellman " followed [her] behind the desk," the footage according to Warden Maples showed that Ms. Stoner first went down the corridor to visit another corrections officer and that Mr. Wellman walked behind the desk first (Dkt. No. 44, ¶ ¶ 28, 29). The ADC and Warden Maples contend that falsification is an extremely serious offense at the ADC and is a first-time terminable offense under ADC policy. Absent some mitigating circumstance, Warden Maples claims he always has terminated staff found to have falsified. Ms. Stoner disputes this. Ms. Stoner counters that Ms. Tiner did not think the footage indicated Ms. Stoner welcomed the conduct. She maintains that Warden Maples, Mr. Pratt, and Ms. Tiner all acknowledged that people have different reactions to harassment and that such a reaction may not include a strong verbal or physical opposition. She also contends that Warden Maples admitted he could not say if Ms. Stoner " wanted it" ; that the view of Ms. Stoner on the footage during the back rubbing was obstructed; and that it is understandable a person might forget the exact order in which she went from room to room. Further, Ms. Stoner argues that her response to Mr. Wellman's conduct must be viewed with the understanding that she is a past victim of abuse. On June 19, 2009, after receiving Warden Maples's memo permanently barring Ms. Stoner from the Newport Complex, Mr. Pratt sent Ms. Stoner a letter discharging her pursuant to CMS's policies as stated in the CMS Handbook. Mr. Pratt and Ms. Tiner were unhappy that they were forced to discharge Ms. Stoner due to her security clearance being revoked by Warden

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Maples. Mr. Pratt informed Ms. Stoner in her termination letter that Ms. Stoner could apply for a job at another CMS facility, though there was no other CMS facility in the area, and could use Mr. Pratt and Ms. Tiner as a reference. Following a disciplinary hearing held in accordance with ADC policy, Mr. Wellman also was terminated by the ADC for his inappropriate behavior.

On August 17, 2009, Ms. Stoner filed a Charge of Discrimination with the Equal Employment Opportunity Commission (" EEOC" ) against the ADC, alleging gender discrimination and retaliation and receiving a right-to-sue letter on June 15, 2010. She filed this action on September 13, 2010.

II. Standard Of Review

Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). " The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under the prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). " The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

" There is no 'discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (citing Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010) (quoting Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)) (citing Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir. 2006))). " Because summary judgment is not disfavored and is designed for 'every action,' panel statements to the contrary are unauthorized and should not be followed." Id. Accordingly, this Court applies the same summary judgment standard to discrimination cases as it does to all others.

III. Overview Of Claims

A. Claims Against The ADC


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