United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey, United States District Judge
the Court is Defendants' Motion for Summary Judgment.
(ECF No. 20). Plaintiff Leslie Meshell filed a response. (ECF
No. 27). Defendants filed a reply. (ECF No. 30). The Court
finds the matter ripe for consideration.
case is an employment-discrimination action brought under
Title VII of the Civil Rights Act of 1964 and the Arkansas
Civil Rights Act (“ACRA”). Plaintiff is a female
who previously worked for Separate Defendant City of El
Dorado as a dispatcher for the El Dorado Police Department
(“EDPD”). Plaintiff asserts a claim of
hostile-work-environment sexual harassment in connection with
Separate Defendant Billy White's alleged behavior toward
Plaintiff, and a claim of constructive termination. Plaintiff
also asserts a claim under the Arkansas common-law tort of
2012, Plaintiff reached out to Separate Defendant White,
among others, in hopes that he would assist her in obtaining
reemployment as a dispatcher with the EDPD. At this time,
Separate Defendant White was the captain of detectives at the
EDPD. Sometime after this initial communication, Separate
Defendant White asked Plaintiff if she wanted to read short
stories that he wrote. Plaintiff agreed, and Separate
Defendant White emailed two sexually explicit stories to her.
Plaintiff met Charlie Phillips, captain of the Special
Investigation Division of the EDPD, in a local grocery store
and discussed the short stories with him because she wanted
him to know that the stories had been sent and did not want
them to harm her chances of being rehired. Phillips indicated
that everything would be fine and that Separate Defendant
White would not continue to send stories to Plaintiff.
Following this conversation, Separate Defendant White did not
send any more stories to Plaintiff.
September 17, 2012, Plaintiff was rehired as a dispatcher for
the EDPD. Sometime after Plaintiff was rehired, Separate
Defendant White became the chief of police at the EDPD. From
July 10, 2013 through December 12, 2013, Plaintiff and
Separate Defendant White communicated via Facebook messaging,
email, and text messaging, engaging in both personal and
workplace-related discussions. Also during this time, Plaintiff
and Separate Defendant White had several interactions at work
which Plaintiff asserts were harassing, including him
occasionally standing behind her work station and a separate
exchange in which he told her that she “needed to get
floaties and put them in the back of her pants so that [she]
would have a butt because [she] don't fill out [her]
pants very well.” (ECF No. 19). Plaintiff did not ask
Separate Defendant White to stop his conduct or otherwise
indicate to him that his conduct was offensive, and she did
not file a complaint with the EDPD regarding his
March 3, 2014, Plaintiff's attorney contacted the mayor
of El Dorado, Arkansas, to notify him that Plaintiff was
alleging sexual harassment in connection with her employment
at the EDPD. The mayor called a meeting of Separate Defendant
El Dorado Civil Service Commission, which questioned
Plaintiff and reviewed all related documents on March 5,
2014. On March 6, 2014, the commission determined that
Separate Defendant White's behavior did not constitute
harassment, sexual or otherwise, but nonetheless ordered him
to undergo employer/employee communications training
courses. On the same day, Plaintiff filed a charge
of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Fair Employment
Practices Agency (“FEPA”). Also on March 6, 2014,
Kevin Holt, a captain in the EDPD, began working to rearrange
Plaintiff's shifts so that she could work nights, in
order to minimize her contact with Separate Defendant White.
On March 12, 2014, Plaintiff resigned from the EDPD.
April 3, 2014, the Arkansas Department of Workforce Services
determined that Plaintiff was not harassed and quit her job
voluntarily without good cause connected to the work, thus
disqualifying her for insurance through the City of El
Dorado. Plaintiff appealed this decision to the Arkansas
Appeal Tribunal, which affirmed the decision on May 1, 2014.
Plaintiff then appealed to the Arkansas Board of Review,
which affirmed the decision on June 3, 2014.
March 8, 2015, the EEOC provided Plaintiff with a
notice-of-rights letter. On April 2, 2015, Plaintiff filed
suit in this Court against Defendants. In her complaint,
Plaintiff alleges that Defendants' actions constituted
sexual harassment in violation of Title VII of the Civil
Rights Act of 1964 and the Arkansas Civil Rights Act, and
that Defendants constructively discharged her by failing to
protect her from being ostracized by co-workers after she
filed her EEOC charge. She also claims that Defendants'
actions were outrageous under the Arkansas common-law tort of
outrage. Defendants assert that they are entitled to summary
judgment on all claims.
standard for summary judgment is well established. When a
party moves for summary judgment, “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Krenik v. County of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial-whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they reasonably may
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is
material only when its resolution affects the outcome of the
case. Id. at 248. A dispute is genuine if the
evidence is such that it could cause a reasonable jury to
return a verdict for either party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enterprise Bank v. Magna Bank,
92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must
then demonstrate the existence of specific facts in the
record that create a genuine issue for trial.
Krenik, 47 F.3d at 957. However, a party opposing a
properly supported summary judgment motion “may not
rest upon mere allegations or denials . . . but must set
forth specific facts showing that there is a genuine issue
for trial.” Id. at 256.
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).
Accordingly, the Court applies the same summary judgment
standard to discrimination cases as it does to all others.
initial matter, the Court must address the parties'
statements of material facts. Plaintiff filed a Disputed
Statement of Facts (ECF No. 29) along with her response to
Defendants' summary judgment motion. Plaintiff's
statement of facts asserts no facts and contains no citations
to the record. Instead, it presents ten questions of fact
which Plaintiff states a jury should determine. Defendants
argue that this is insufficient under Federal Rule of Civil
Procedure 56(c) and Local Rule 56.1 to dispute any of the
facts set forth in Defendants' own statement of material
facts, and therefore, Defendants submit that their Statement
of Undisputed Facts (ECF No. 19) should be deemed admitted
for summary judgment purposes.
Rule of Civil Procedure 56(c)(1) provides that a party
asserting a genuine dispute of material fact must support the
assertion by either citing to materials in the record or by
showing that the cited materials do not establish the absence
of a genuine dispute. Federal Rule of Civil Procedure 56(e)
states that a court may deem undisputed a party's
asserted fact if it is not properly controverted by the other
party pursuant to Rule 56(c). Similarly, Local Rule 56.1(c)
states that all facts asserted in the moving party's
statement of facts shall be deemed admitted if they are not
controverted by the nonmoving party's own statement of
Court finds that Plaintiff has failed to controvert any of
Defendants' asserted facts for two reasons. First,
Plaintiff's statement of facts fails to satisfy Rule
56(c)(1) because it contains no citations to the record and
does not show that Defendants' cited materials fail to
establish the absence of a genuine dispute. Second,
Plaintiff's statement of facts lists no facts at all, and
instead presents questions of fact which she asserts should
be submitted to a jury. Thus, the Court finds that Plaintiff
has failed to controvert Defendants' asserted facts under
Federal Rule of Civil Procedure 56(c) and Local Rule 56.1.
Accordingly, all facts asserted in Defendants' statement
of facts are deemed admitted for summary judgment purposes.
Court will now turn its analysis to Plaintiff's claims of
hostile-work-environment sexual harassment, constructive
discharge, and outrage.
Hostile Work Environment
brings a Title VII claim against Separate Defendant City of
El Dorado, Separate Defendant El Dorado Civil Service
Commission, and against Separate Defendant White in both his
individual and official capacities. Defendants argue that they
are entitled to summary judgment.
Separate Defendant White in His Individual Capacity
argue that summary judgment is appropriate on Plaintiff's
Title VII claim against Separate Defendant White in his
individual capacity. The Court agrees.
Eighth Circuit has instructed that Title VII claims are
applicable to employers, but not to individuals. See Van
Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1147 (8th
Cir. 2008) (noting that Title VII provides for actions
against employers but not supervisors); Powell v. Yellow
Book USA, 445 F.3d 1074, 1079 (8th Cir. 2006)
(“Title VII addresses the conduct of employers only and
does not impose liability on coworkers.”). Therefore,
Plaintiff's Title VII hostile-work-environment claim
against Separate Defendant White in his individual capacity
must fail because there is no individual liability under
the Court finds that Defendants' summary judgment motion
should be granted as to Plaintiff's Title VII claim
against Separate Defendant White in his individual capacity.
Separate Defendants City of El Dorado, El Dorado Civil
Service Commission, and White in His Official
claims that Defendants' unlawful employment practices
subjected her to sexual harassment and constituted a hostile
work environment in violation of Title VII. “The
question of whether an environment is sufficiently hostile to
be actionable is a legal question, and, like any legal
question, is a matter for the court to decide. In other
words, a showing of some minimal level of harassment is
necessary before a case is submissible to a jury.”
Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869, 869
(8th Cir. 2004).
VII provides, in relevant part, that an
employer may not “discriminate against any
individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . sex.” 42 U.S.C. §
2000e-2(a). A successful hostile-work-environment claim under
Title VII must show that: (1) the plaintiff belongs to a
protected group; (2) the plaintiff experienced unwelcome
harassment; (3) there was a causal link between the
harassment and the plaintiff's membership in the
protected group; and (4) the harassment affected a term,
condition, or privilege of employment. Beard v. Flying J,
Inc., 266 F.3d 792, 797 (8th Cir. 2001). When the
harassment was at the hands of a co-worker, rather than a
supervisor, a fifth prima facie element must be
shown: that the employer knew or should have known about the
harassment and failed to take proper action. See Sallis
v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005). If
a plaintiff can make a prima facie case of
supervisor harassment, the employer is generally vicariously
liable for the supervisor's conduct unless the employer
can establish that it is entitled to the
brief sets out the five-element prima facie standard
for co-worker harassment, which Plaintiff agrees is
applicable to this case. However, Defendants' and
Plaintiff's briefs also argue whether the
Ellerth/Faragher affirmative defense to
supervisor harassment is available to Defendants. Under this
case's unusual set of facts, the Court finds that an
analysis under both prima facie burdens is
appropriate. Plaintiff alleges one instance of harassment
which occurred when Separate Defendant White had no
supervisory capacity over her, and other instances of
harassment which occurred when Separate Defendant White had
supervisory capacity over her. The Court will jointly conduct
the co-worker and supervisor harassment analyses through the
first four prima facie factors, and then will divide
do not dispute that Plaintiff is a member of a protected
class, and the Court finds that she is. Defendants do,
however, argue that Plaintiff cannot establish the remaining
requisite elements. Therefore, Defendants argue that
Plaintiff cannot establish a prima facie case of
hostile-work-environment sexual harassment and that they are
entitled to summary judgment as a matter of law.