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Meshell v. City of El Dorado

United States District Court, W.D. Arkansas, El Dorado Division

January 20, 2017

LESLIE MESHELL PLAINTIFF
v.
CITY OF EL DORADO; THE EL DORADO SERVICE COMMISSION; and BILLY WHITE, in both his official and individual capacities DEFENDANTS

          MEMORANDUM OPINION

          Susan O. Hickey, United States District Judge

         Before 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.

         I. BACKGROUND

         This 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 outrage.

         In 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.[1] 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.

         On 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.[2] 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 behavior.[3]

         On 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.[4] 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.

         On 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.

         On 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.

         II. STANDARD

         The 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.

         In 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.

         “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). Accordingly, the Court applies the same summary judgment standard to discrimination cases as it does to all others.

         III. DISCUSSION

         As an 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.

         Federal 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 facts.

         The 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.

         The Court will now turn its analysis to Plaintiff's claims of hostile-work-environment sexual harassment, constructive discharge, and outrage.

         A. Hostile Work Environment

         Plaintiff 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.[5] Defendants argue that they are entitled to summary judgment.

         1. Separate Defendant White in His Individual Capacity

         Defendants argue that summary judgment is appropriate on Plaintiff's Title VII claim against Separate Defendant White in his individual capacity. The Court agrees.

         The 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 Title VII.

         Accordingly, 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.

         2. Separate Defendants City of El Dorado, El Dorado Civil Service Commission, and White in His Official Capacity

         Plaintiff 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).

         Title VII provides, in relevant part, that an employer[6] 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 Ellerth/Faragher affirmative defense.[7]

         Defendants' 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.[8] The Court will jointly conduct the co-worker and supervisor harassment analyses through the first four prima facie factors, and then will divide its analysis.

         Defendants 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.

         a. ...


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