United States District Court, E.D. Arkansas, Western Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Gidget Pambianchi, Plaintiff: Anthony Bryce Brewer, LEAD ATTORNEY, Bryce Brewer Law Firm, LLC, North Little Rock, AR; James M. Scurlock, Wallace, Martin, Duke & Russell, PLLC, Little Rock, AR, Michael Muskheli, Muskheli Law Firm, P.A., Little Rock, AR.
For Arkansas Tech University, Defendant: Patrick E. Hollingsworth, LEAD ATTORNEY, Arkansas Attorney General's Office, Little Rock, AR.
OPINION AND ORDER
Kristine G. Baker, United States District Judge.
Plaintiff Gidget Pambianchi brings this action against defendant Arkansas Tech University (" ATU" ) alleging discrimination on the basis of her gender and sexual orientation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Before the Court is ATU's motion for summary judgment (Dkt. No. 34). Ms. Pambianchi has responded (Dkt. No. 42), and ATU has replied (Dkt. No. 47). For the reasons that follow, the Court grants ATU's motion for summary judgment and dismisses with prejudice Ms. Pambianchi's Title VII claim against ATU.
I. Factual Background
Ms. Pambianchi was as formerly employed by ATU as the head coach of ATU's softball team. Ms. Pambianchi worked for ATU from July 2005 until ATU terminated her employment in April 2012. Ms. Pambianchi was originally hired as an assistant softball coach, became the interim head softball coach, and was later retained as the head coach of the softball team. During her employment, ATU's athletic director, Steve Mullins, was Ms. Pambianchi's direct supervisor.
ATU entered into a new one-year contract with Ms. Pambianchi each year between 2006 and 2011. Ms. Pambianchi's 2011-2012 contract includes an addendum by which Ms. Pambianchi agreed to perform
her duties and personally comport herself at all times consistent with good sportsmanship and " with the high moral, ethical and academic standards of the Athletic Department and the University." (Dkt. No. 36-1, at 5). The addendum further provides that Ms. Pambianchi agreed, at all times, to " exercise due care that all personnel and students under . . . her supervision, control or authority, comport themselves in a like manner." ( Id. ; Dkt. No. 41, ¶ 4(B)). Lastly, the addendum provides that Ms. Pambianchi agreed at all times to comply with and obey all federal and state laws, ATU regulations, and governing athletic rules and would exercise due care that all personnel or students under her supervision, control, or authority also comply with those laws, regulations, and rules.
ATU's sexual harassment policy states in part that sexual harassment is a violation of the law and ATU policy and will not be tolerated (Dkt. No. 36-2, at 11-16). The policy further provides that what constitutes sexual harassment will vary with the particular circumstances of each case but " may be generally described as repeated and unwanted sexual behavior, such as physical contact and verbal comments or suggestions that adversely affect the working or learning environments of others." ( Id. ). The policy lists examples of sexual harassment, including: " Use of sexual jokes, stories, analogies or images which are not related to the subject of the class or work situation" and " Sexually suggestive jokes, comments, e-mails, or other written or oral communications" ( Id. at 12). The sexual harassment policy establishes a procedure for handling complaints of sexual harassment and assigns the task of investigating complaints to the ATU Affirmative Action Officer, who was Jennifer Fleming at the time of the incidents at issue in this lawsuit. The policy provides two options for reporting and resolving matters involving alleged sexual harassment: an informal resolution process and a formal complaint process ( Id. at 13).
Ms. Pambianchi does not dispute the existence of ATU's sexual harassment policy, but she repeatedly contends in her summary judgment papers that the policy is invalid based on her allegations of the inconsistent and erroneous application of the policy.
A. Randall Trout Complaint
On March 2, 2012, while attending an athletic event out of state, Mr. Mullins received a message from assistant athletic director Kristy Bayer that Ms. Bayer had been contacted by a member of the softball team who stated that she had knowledge of inappropriate behavior between ATU assistant softball coach Randall Trout and a member of the softball team. Mr. Mullins traveled back to Russellville, Arkansas, and after questioning Mr. Trout, the player in question, and witnesses, concluded that Mr. Trout had engaged in an inappropriate relationship with a player. Mr. Mullins immediately terminated Mr. Trout's employment. Mr. Mullins informed Ms. Pambianchi shortly thereafter, and Ms. Pambianchi stated that she had no knowledge of the relationship between Mr. Trout and the softball player.
ATU asserts that Ms. Pambianchi knew that Mr. Trout expressed a preference for " hanging out" with the players and that Mr. Trout and the player with whom he was later accused of having a relationship were " very close" but did not know that they were having a relationship (Dkt. No. 36, ¶ 7) (Dkt. No. 36-1, at 21-22). Ms.
Pambianchi denies this assertion and states that she only knew that Mr. Trout, who was the hitting coach for the softball team, had spent time with students practicing hitting, which Ms. Pambianchi described in her deposition as " very normal" (Dkt. No. 41, ¶ 7; Dkt. No. 43-3, at 2-3).
According to ATU and Mr. Mullins's declaration, on March 13, 2012, Mr. Trout sent an email to Mr. Mullins and asked where to send a complaint of sexual harassment. In response, Mr. Mullins directed Mr. Trout to Ms. Fleming (Dkt. No. 36, ¶ 8; Dkt. No. 36-1, at 2). Ms. Fleming interviewed Mr. Trout on March 14, 2012, and recorded the interview. According to Ms. Fleming's declaration, Mr. Trout said at the beginning of the interview that he wanted to make it clear that he did not consider himself to be Ms. Pambianchi's friend and that Ms. Pambianchi had told him the type of things one would tell a friend, with which Mr. Trout said he was uncomfortable (Dkt. No. 36-2, at 2). Ms. Fleming states in her declaration that she explained both the informal and formal complaint options.
After being interviewed by Ms. Fleming initially and presented with the option of pursuing an informal or formal complaint, Mr. Trout elected to submit a formal written complaint on March 15, 2012, asserting that Ms. Pambianchi had sexually harassed him on two occasions based on conversations of a sexual nature with Ms. Pambianchi. First, Mr. Trout's complaint claims that, on December 1, 2011, while in an airport bar with Ms. Pambianchi on the way to a softball coaching convention, Ms. Pambianchi initiated a conversation with Mr. Trout regarding relationships in which Ms. Pambianchi asked Mr. Trout: " Let's just get it out there, are you one of those guys that just has to have sex all the time? Because I'm not, I could care less if I ever have sex." (Dkt. No. 36-2, at 21). Second, Mr. Trout's complaint states that, sometime in February 2012, Ms. Pambianchi came into the softball office and, in front of Mr. Trout and Ms. Pambianchi's graduate assistant, Tifani Moon, described a fight with her " girlfriend," informing Mr. Trout that she was a lesbian ( Id. ). Mr. Trout further states in his complaint that, the next morning, with Ms. Moon present again, Ms. Pambianchi provided further information about her sex life, stating she had been with her girlfriend after engaging in a " threesome" at the request of her former fiancé, a man who was employed in the ATU football program at the time ( Id. at 21-22). Mr. Trout's complaint also states that Ms. Pambianchi said during the February 2012 conversation that " she wasn't into sex and could go without it but also informed us that [her companion] wanted it all the time." ( Id. at 22). In addition to the two alleged incidents directed at him, Mr. Trout's complaint asserts that Ms. Pambianchi at some point made a comment to a softball player that " you need to get on your knees, I hear that's how you like it anyway" and that several players had spoken to Mr. Trout about their knowledge of Ms. Pambianchi's sexual orientation and stated that they were uncomfortable with Ms. Pambianchi's presence in the locker room while the players were changing ( Id. ).
Ms. Pambianchi disputes the specifics of Mr. Trout's complaint, although she repeatedly references a portion of her deposition in which she denies using the word " threesome" but does not address the other aspects of Mr. Trout's allegations (Dkt. No. 41, ¶ 11; Dkt. No. 43-3, at 6). In a declaration submitted with her summary judgment papers, Ms. Pambianchi contends that Mr. Trout had asked Ms. Pambianchi about her relationship and sex life and never told Ms. Pambianchi that she was making him feel uncomfortable (Dkt. No. 43-1). Ms. Pambianchi has also submitted the declaration of Ms. Moon, in
which Ms. Moon states that Mr. Trout identified himself as a friend, asked about Ms. Pambianchi's problems, and never said that the conversation made him feel uncomfortable (Dkt. No. 43-2).
In investigating Mr. Trout's complaint, Ms. Fleming interviewed both Ms. Pambianchi and Ms. Moon and other individuals identified in the investigation process. Ms. Fleming's April 2, 2012, report to Mr. Mullins indicates that Ms. Moon made comments in her interview with Ms. Fleming that are consistent with the statements in Ms. Moon's declaration (Dkt. No. 36-2, at 25). As to Ms. Pambianchi's alleged comment about a softball player getting on her knees, Ms. Fleming's report states that Ms. Pambianchi responded that this comment was just a joke and that the specific player involved also said that the comment was a joke (Dkt. No. 36-2, at 26). As to Mr. Trout's comments about players being uncomfortable in the locker room, according to Ms. Fleming's report, the four players mentioned in Mr. Trout's complaint all said that Ms. Pambianchi's presence in the locker room does not make them feel uncomfortable ( Id. at 26-27).
Ms. Fleming's report contains no specific opinions, although Ms. Pambianchi contends that Ms. Fleming essentially expressed an opinion when she chose information to include and omit from Ms. Pambianchi's hour-long interview in drafting her written report (Dkt. No. 41, ¶ 20). Ms. Pambianchi does not offer specifics, but she stated in her deposition that Ms. Fleming should have " investigated it a little bit more" and that Ms. Fleming could have " added tons of things" in her investigation ( Id., ¶ 21; Dkt. No. 43-3, at 7-8). Ms. Fleming states in her declaration that it is not her practice to include recommendations or opinions in her reports; she claims her typical role is to collect and report information objectively (Dkt. No. 36-2, at 1-2). However, Ms. Fleming also states in her declaration that it is her opinion that discussing matters of a sexual nature, particularly with a subordinate, is a violation of ATU's sexual harassment policy ( Id. at 5). Ms. Fleming states in her declaration that, as she interprets ATU's policy, it makes no difference whether Mr. Trout did not appear to be offended at the time of Ms. Pambianchi's statements about personal, sexual matters ( Id. at 6).
B. The Howard Branch Complaint
On March 28, 2012, Ms. Pambianchi, Mr. Mullins, and ATU President Robert Brown received via email a letter signed by " Howard Branch," who claimed to be a concerned tax payer and parent of a prospective ATU softball recruit (Dkt. No. 36-1, at 10). The letter made a number of allegations, including: that Ms. Pambianchi was a " known lesbian," which the writer found to be " very immoral" and not supportive of a family environment; that, in the past, female graduate assistants had been engaged in intimate relationships with players; and that Ms. Pambianchi had been observed in unflattering arguments with umpires and with punishing the team in an inappropriate manner ( Id. ). The letter also alleged that information found on Facebook and Twitter accounts checked by the writer's daughter was " quite horrible" ( Id. ). Finally, the letter alleged that the writer had been told of " accusations of an alleged affair" between Mr. Mullins and " his athletic secretary" at ATU ( Id. ).
Four photographs accompanied the letter, the first three of ATU softball players that the Howard Branch letter suggests are from social media posts. ATU states that the fourth picture is a photograph of Ms. Pambianchi, dressed in an ATU softball camp t-shirt, attending a post-game gathering with the team and " flipping off" the camera. Ms. Pambianchi states that
the first two photographs are still frames from a video that was shot at the home of the parents of an assistant coach in Illinois, that the third was taken on the team bus, and that the fourth was taken at a postgame gathering in Alabama at the home of an assistant coach at the time (Dkt. No. 41, ¶ 23).
ATU takes the position in its moving papers that " [n]either these allegations, nor the report of the investigation that followed, caused Pambianchi's dismissal." (Dkt. No. 35, at 8). Ms. Pambianchi testified that Mr. Mullins told her that he normally did not respond to anonymous emails but, because the Howard Branch letter had a name attached to it, he would do a little more research and respond (Dkt. No. 41, ¶ 24). Ms. Fleming commenced an investigation into the allegations in the Howard Branch letter on March 29, 2012, and submitted a report to Dr. Brown on April 2, 2012, the same date as her report into Mr. Trout's complaint. Ms. Fleming states in her declaration that she emailed Mr. Branch but received no response. On March 29, 2012, Ms. Fleming interviewed Ms. Pambianchi, Mr. Mullins, Ms. Moon, and four softball players whose alleged misconduct was depicted in the materials provided in the Howard Branch letter. According to ATU and Ms. Fleming, during Ms. Fleming's interviews: Ms. Pambianchi denied the rumor that her personal life had any effect on the team's " family environment" ; Ms. Pambianchi informed Ms. Fleming that she had twice discovered a graduate assistant having intimate relations with a team member, as confirmed by the interview with Ms. Moon; and Ms. Pambianchi and Ms. Moon admitted that Ms. Pambianchi ran the team after a game as punishment for a player's disrespectful behavior (Dkt. No. 36-2, at 7-8, 30-32). ATU and ...