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. 32) filed by Defendant Truman Arnold Companies. Plaintiff Patricia Adams has filed a response. ECF No. 36. Defendant has filed a reply. ECF No. 37. The matter is ripe for the Court's consideration.
The Court states the facts in the light most favorable to Plaintiff Patricia Adams. Adams was hired by Truman Arnold Company ("TAC") to work at its Road Runner convenience store "No. 2" in Texarkana, Arkansas, on two separate occasions: (1) beginning May 24, 2004; and (2) beginning February 15, 2008. When Plaintiff was hired the second time, the manager of the store was John Kelly. Adams alleges that Kelly sexually assaulted her in May 2011 in the car wash of the Road Runner. Adams did not immediately report the alleged sexual assault.
On July 26, 2011, another employee, Teresa Jones, complained to TAC's human resource officer of sexual harassment by Kelly. The human resources officer, Denny Peterson, began an immediate investigation into the matter involving Jones. Kelly was terminated on July 27, 2011. The next day, Adams reported to Peterson that Kelly had sexually assaulted her in May 2011.
On September 20, 2011, there was a cash handling incident involving Adams. Elsie Washington, assistant manager, reviewed videotape and certain paperwork regarding the incident. Washington concluded that Adams had committed theft while working as a cashier. Prior to this incident, Adams had received three written warnings regarding improper cash handling and violations of company policies regarding cash. On September 22, 2011, TAC terminated Adams's employment.
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. 33-1, p. 10. 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. 33-1, p. 11. The policy declares that each allegation will be investigated. ECF No. 33-1, p. 11. 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. 33-1, p. 11. On the dates of her first and second hire, Adams acknowledged receipt of TAC's harassment policy, admitted that she understood what constituted sexual harassment, and acknowledged that she should report any incident of sexual harassment immediately. ECF No. 33-1, pp. 1-4.
After receiving a right to sue letter, Adams filed the present suit on August 29, 2012. In her First Amended Complaint (ECF No. 23), Adams 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).
Adams makes two federal claims against TAC: a Title VII hostile work environment claim and a Title VII retaliation claim. Adams also makes corresponding state law claims pursuant to the Arkansas Civil Rights Act.
A. Hostile Work Environment Claim
Adams alleges that TAC subjected her to sexual harassment in violation of Title VII of the Civil Rights Act of 1964 and the Arkansas Civil Rights Act. TAC, however, maintains that summary judgment should be granted in its favor because it is entitled to its Ellerth-Faragher affirmative defense for supervisor harassment. Adams argues that TAC is not ...