United States District Court, W.D. Arkansas, Texarkana Division
SUSAN O. HICKEY, District Judge.
Before the Court is a Motion for Summary Judgment (ECF No. 34) filed by Defendant Truman Arnold Companies. Plaintiff Teresa Jones has filed a response. ECF No. 39. Defendant has filed a reply. ECF No. 40. The matter is ripe for the Court's consideration.
The Court states the facts in the light most favorable to Plaintiff Teresa Jones. Jones was employed by Truman Arnold Company ("TAC") at its Road Runner convenience store "No. 2" in Texarkana, Arkansas, from February 2011 until the end of January 2012. Jones alleges that her store manager, John Kelly, sexually assaulted her on or about May 24, 2011, in the car wash of the Road Runner. Prior to that time, Jones alleges that Kelly harassed her through a pattern of uninvited and unwelcome sexual propositions, lewd text messages, and unwanted touching. Jones also alleges that Kelly threatened to fire her if she told anyone of his behavior.
On July 23, 2011, Jones claims that she suffered an epileptic seizure at work and blacked out. Later that day, TAC personnel determined that Jones's cash register was short $715.82. Jones asserts that she found $300 of the missing money on July 26, 2011. On that same day, Jones met with Kelly and a female supervisor, Elsie Washington. At the meeting, Jones provided a doctor's note stating that she had a seizure on July 23, 2011. Plaintiff states that she does not recall the events that happened on the day of the seizure, but she does not dispute that her cash register was short. Kelly and Washington told Jones that she could not return to work for a period of two weeks because of the seizure, the black out, and the loss of the money. They further told her that she could no longer handle cash or work at a register, and Jones agreed to being taken off cash register duties. Jones was informed that, before she could return to work, she must obtain a doctor's note stating that she "could work the hours or [she] would not have [any] more blackouts at the store." ECF No. 39-2, p. 14.
According to Jones, a few days prior to the July 23, 2011 cash register incident, she had contacted the TAC human resources representative, Denny Peterson, to complain of the alleged sexual harassment by Kelly. Jones met with Peterson on July 26, 2011, after her meeting with Kelly and Ms. Washington. During the meeting with Peterson, Jones provided a written statement to Peterson about the alleged assault in the car wash that occurred in May 2011, and Jones showed Peterson saved text messages on her cell phone that were purportedly from Kelly. Peterson consulted with Kelly's supervisor and TAC's general counsel, and Kelly's employment was terminated on July 27, 2011. Jones, however, remained employed with TAC until TAC sold its convenient stores at the end of January 2012.
TAC maintained a written sexual harassment policy that all employees were provided upon employment. The TAC anti-harassment policy states, in the section entitled "Employee Responsibility, " that an employee who believes that they have been subjected to harassment of any type is to report the incident "immediately to your direct supervisor or to the human resources representative at 903-794-3835." ECF No. 35-1, p. 7. The policy also identifies two other persons (the company president and a company vice-president) who could be contacted for the reporting of harassment. ECF No. 35-1, p. 7. The policy declares that each allegation will be investigated. ECF No. 35-1, p. 8. The policy further expresses that, under no circumstances, will any employee who reports an alleged incident of harassment be subjected to reprisal or retaliation of any kind. ECF No. 35-1, p. 8.
At the beginning of her employment with TAC in February of 2011, Jones received a copy of the policy, acknowledged receipt of the policy, and admitted that she understood what constituted sexual harassment and that any incident of sexual harassment was to be immediately reported. Jones also acknowledged the posting of the policy at the store in which she worked. In fact, Jones used the posted information within her store to make her initial phone call reporting the alleged harassment by Kelly.
After receiving a right to sue letter, Jones filed the present suit on August 29, 2012. In her First Amended Complaint (ECF No. 23), Jones makes the following claims against TAC: sexual harassment and retaliation; outrage; battery; defamation; and negligent hiring, supervision, and retention. TAC asserts that it is entitled to summary judgment on all of these claims.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) states that summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Under this standard, the inquiry is not whether the evidence favors one side or the other, but "whether a fair minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). When considering a summary judgment motion, the Court "must view the evidence in the light most favorable to the nonmoving party.'" Sappington v. Skyjack, Inc., 512 F.3d 440, 445 (8th Cir. 2008) (quoting F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997)). To defeat a motion for summary judgment, however, the non-moving party must "make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The "nonmovant must present more than a scintilla of evidence and must advance specific facts to create a genuine issue of material fact for trial." Bell, 106 F.3d at 263 (8th Cir. 1997). "In order to survive a motion for summary judgment, the non-moving party must be able to show sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy." Binkley v. Entergy Operations, Inc., 602 F.3d 928, 931 (8th Cir. 2010).
Jones makes two federal claims against TAC: a Title VII hostile work environment claim and a Title VII retaliation claim. Jones also makes corresponding state law claims ...