United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Defendant City of Springdale's
(“Springdale”) Motion for Summary Judgment (Doc.
19), Statement of Facts (Doc. 20), and Brief in Support (Doc.
22); Plaintiff Marcella Aaron's Response in Opposition
(Doc. 25) and Response to Statement of Facts (Doc. 24);
Springdale's Reply (Doc. 26) and Reply to Statement of
Facts (Doc. 27); and Mr. Aaron's Sur-Reply (Doc. 29). The
Motion is now ripe for decision, and for the reasons stated
herein, is GRANTED.
lawsuit arises from Plaintiff Marcella Aaron's claims of
race discrimination in the workplace, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000(e), et seq., and the Arkansas Civil Rights Act
of 1993 (“ACRA”), Ark. Code Ann. §
16-123-101, et seq. The Amended Complaint (Doc. 15)
states a claim for a hostile work environment due to
race-based harassment, and a claim for race discrimination
resulting in constructive discharge. Both claims were
addressed in the briefing on Springdale's Motion for
Summary Judgment, and both will be discussed in this Order.
As a preliminary matter, the Court observes that claims made
under Title VII and the ACRA are evaluated using the same
standards. See McCullough v. Univ. of Ark. for Med.
Scis., 559 F.3d 855, 860 (8th Cir. 2009). The Court will
therefore analyze the federal claims together with the state
case involves a series of incidents that took place in the
Public Works Department of Springdale over an approximately
two-year period. The timeline begins on June 5, 2012, when
Mr. Aaron, an African-American male, was hired as a part-time
Maintenance I worker in the Public Works Department. He
remained in that position until January 14, 2013, when he was
hired on, full-time, as a Maintenance II worker, a job that
involved primarily mowing and brush-hogging on a tractor or
rotary mower, and working with the concrete crew. His pay
increased when he started working full-time. He also received
a Personnel and Procedures Manual (“Manual”),
which he admits to having read and understood at the time he
received it. The Manual discusses, among other topics, the
issue of harassment in the workplace and describes several
types of disciplinary actions that Springdale could take
against an employee who harassed another employee, depending
on the severity of the offense and the offending
employee's prior history. See Docs. 20-40,
20-41. According to the Manual, “harassment based on
race, religion, color, sex, national origin, age, handicap,
or status as a veteran or special disabled veteran . . . .
WILL NOT BE TOLERATED”; and “[a]n employee should
report harassment or suspected harassment to their immediate
supervisor, or another supervisor within their department, or
the department head, or the Mayor.” (Doc. 20-41, p. 1).
relevant times, Sam Goade served as the Director of
Springdale's Public Works Department; Terry Anderson
served as supervisor of the General Construction Division of
the Public Works Department; and James Carr served as
Supervisor of the Street Construction Division of the Public
Works Department. As Mr. Aaron was an employee of the Street
Construction Division, he reported directly to Mr. Carr, who
reported to Mr. Anderson, who reported to Mr. Goade-and Mr.
Goade reported directly to the Mayor.
about January 29, 2013, about two weeks after Mr. Aaron
started working fulltime, he was standing on a bench outside
with his co-worker Troy Flood, who is Caucasian. Another
co-worker named Chuck Harris drove up alongside Mr. Aaron and
Mr. Flood and said to Mr. Aaron, “Boy, you look good up
there . . . the only thing missing is a rope around your
neck, ” and then drove away. (Dep. Marcella Aaron, Doc.
24-1, p. 11). Mr. Aaron believed the comment to be racial in
nature but did not report it to a supervisor immediately.
Instead, Mr. Flood reported the comment to Mr. Anderson,
because he believed the comment was racist. Mr. Anderson then
reported the incident up the chain of command to Mr. Goade,
who advised Mr. Anderson to seek out Mr. Aaron and confirm
that the statement was made, and then inquire whether Mr.
Aaron found it offensive and wished to discuss it in Mr.
Goade's office. Mr. Goade next informed Human Resources
Director Loyd Price and Mayor Doug Sprouse of the incident
and advised them that he was investigating the issue.
Goade eventually sought out Mr. Aaron himself so that he
could speak with him directly about the comment. Mr. Goade
told Mr. Aaron that he had spoken to Mr. Harris, the person
who made the comment, and told Mr. Harris that he was not to
speak in that manner again. Mr. Goade further assured Mr.
Aaron that he would not tolerate any racism or prejudice from
any employee in the Public Works Department, and that Mr.
Aaron should come to him if any issues of this nature
occurred while he was working for Springdale. The incident
was documented in Mr. Harris's personnel file, and Mr.
Harris apologized to Mr. Aaron. Mr. Aaron agrees that Mr.
Harris never made any other racially-charged comments in the
workplace after that.
later in 2013, Mr. Aaron was present during a conversation
between Mr. Flood, and another co-worker named Tim Burton.
The men were pouring concrete at a work site. The mud and
concrete had started to harden at one point into small balls,
and Mr. Burton commented to Mr. Flood that “back in the
day, we called these nigger balls.” Id. at 12.
Mr. Aaron told Mr. Burton that he did not appreciate that
comment, and Mr. Burton responded by saying that he was
“just playing.” Id.
another occasion in 2013, the same men were standing outside
the break room. Mr. Flood lit a cigarette for Mr. Burton, and
after it was passed to Mr. Burton, he examined the cigarette
and said that Mr. Flood had “nigger lipped” it.
Id. Mr. Aaron again confronted Mr. Burton, asking
him, “What did you say?” Id. at 13. And
Mr. Burton replied that he didn't know Mr. Aaron had been
standing there. Id.
next incident involved comments made by both Mr. Flood and
Mr. Burton, which Mr. Aaron overheard as he was coming up the
stairs to the break room. On that day, a truck carrying an
African-American woman and a Hispanic man pulled into the
Public Works yard. The men observed the truck, and Mr. Aaron
heard Mr. Burton say, “what is that beaner doing with
that nigger, ” and Mr. Flood laughed. Id. Then
Mr. Flood asked, “what would you rather have in your
yard? A beaner or a dog turd?” and then answered his
own question, stating, “well, a dog turd eventually
turns white and stops stinking.” Id. Mr.
Burton then commented that “these immigrants were
driving better trucks than the white man.” Id.
After this last comment, Mr. Aaron asked Mr. Burton what he
meant by it, but Mr. Burton did not respond.
time passed, and in 2014, Mr. Aaron, Mr. Burton, and Mr.
Flood were all sitting in the break room playing dominoes
with several other Public Works employees. Mr. Flood began
speaking about his new, white pitbull, who only liked to kill
black things, like black squirrels and blackbirds. Mr. Burton
then asked Mr. Flood, “well, was the black squirrel
named Marcella?”-referring to Mr. Aaron. Id.
at 14. At that point, Mr. Aaron turned to Mr. Burton and told
him he had “one more time to disrespect [him] like
that, ” and then Mr. Aaron would “have to find
some kind of way to get him addressed.” Id.
Supervisors Carr and Anderson were in the break room at the
time, and Mr. Anderson was seated at the table directly
behind Mr. Aaron; however, Mr. Aaron was not sure whether
either supervisor heard the entire exchange. See Id.
at 15. Mr. Aaron testified that he and Mr. Burton
“confronted each other right then and there”
after that and “had words.” Id. at 14.
But Mr. Aaron admits that he did not report the incident to a
supervisor. See Id. at 15.
April 2, 2014, Mr. Flood agreed to drive Mr. Aaron back to
the Public Works yard so that Mr. Aaron could meet a family
member for lunch. After pulling into the yard, Mr. Burton and
his brother, who was also an employee of the Department,
stopped Mr. Flood and asked him where he was going. Mr. Flood
responded, “I was supposed to be going to eat, but I
got to go drop this Negro off first.” Id. at
15. Mr. Aaron reached up to punch Mr. Flood, but then thought
better of it and simply got out of the truck. He said to Mr.
Burton, “enough is enough. I think I've took too
much of this shit without acting violent or doing anything
stupid, but I'm tired of asking all you guys to be civil.
I'm going to handle this my way.” Id. Then
Mr. Aaron went to his supervisor, Mr. Carr, and asked him if
he could take the rest of the day off, as well as the
following day. Mr. Carr agreed, but asked Mr. Aaron why he
wanted to leave, and Mr. Aaron responded that he was
“tired of being called a nigger.” (Doc. 20-17).
Mr. Carr asked who had called him that word, and Mr. Aaron
refused to answer. Mr. Carr then suspected that the guilty
party might be Mr. Flood, so Mr. Carr confronted him directly
and asked about the incident. The undisputed testimony is
that Mr. Flood then “blew up” at Mr. Carr and
denied that he had called Mr. Aaron “nigger, ”
but admitted he had instead called him “Negro.”
Id. Mr. Carr instructed Mr. Flood to stop the
comments, or he could be fired.
after the “Negro comment” incident took place,
Mr. Carr reported it to Mr. Goade, who in turn reported it to
Human Resources Director Gina Lewis. The following day, April 3,
2014, Mr. Goade asked Mr. Aaron to participate in a meeting
involving himself, Mr. Carr, Mr. Anderson, and Ms. Lewis, to
discuss the “Negro comment.” At the meeting, Mr.
Aaron also mentioned Mr. Burton's and Mr. Flood's
comments and jokes about the African-American woman and
Hispanic man. Mr. Goade reminded Mr. Aaron that he would not
tolerate those sorts of comments and instructed Mr. Aaron to
let him or the other supervisors know immediately if there
were any more problems. Ms. Lewis also told Mr. Aaron that
she was sorry he was having to go through all of this and
advised him that she was going to come up with a plan to keep
it from happening again.
meeting with Mr. Aaron on April 3, the three supervisors and
Ms. Lewis met with Mr. Flood, who confirmed that he had
called Mr. Aaron “this Negro” at one point, and
also that he had made racially-charged comments and jokes in
Mr. Aaron's presence about an African-American woman and
a Hispanic man. Mr. Goade and Ms. Lewis explained to Mr.
Flood that this type of joking was inappropriate and a
violation of Springdale's harassment policy, and further,
that they would be in touch regarding disciplinary action.
The next day, April 4, 2014, Mr. Goade drafted a disciplinary
notice, which was approved by Ms. Lewis, and issued in
writing to Mr. Flood.
April 3, 2014, Mr. Burton and his brother were interviewed by
the same group of supervisors, and Mr. Burton agreed that the
comments and jokes about the African-American woman and
Hispanic man had been made and were inappropriate. Ms. Lewis
advised Mr. Burton that he would receive a written warning in
his personnel file, but in the end, she only gave him a
verbal warning. After the meeting with Mr. Burton and his
brother, Mr. Goade and Ms. Lewis met to discuss the need for
diversity training for the Public Works Department, and on
that same day, Ms. Lewis began putting together harassment
and diversity training materials and identified two possible
dates to conduct the training. Mr. Goade selected April 16,
2014, as the day to conduct the training, and Ms. Lewis
posted a notice about the training, which would be mandatory
for all Public Works employees to attend.
Aaron returned to work on Monday, April 7, 2014. Around that
time, Mr. Aaron went out to lunch with Mr. Flood, trying to
make amends. They went to a Mexican restaurant. When a
Hispanic man entered the restaurant, Mr. Aaron mentioned to
Mr. Flood that the Hispanic man's car had a number
“6" on it, and Mr. Aaron mused that the man
“must race”-as in, must race cars. (Doc. 24-1, p.
18). Mr. Flood responded that the man was “barely in
the human race.” Id. Mr. Aaron found the
April 15, 2014, the day before the scheduled diversity
training, Mr. Aaron was sitting in the break room, and an
employee named Dennis Sinclair approached him from behind and
said, apparently in reference to Mr. Aaron's untucked
shirt, “Boy, you need to put your shit in your pants.
You look like a fucking thug.” Id. at 17.
After this exchange, Mr. Aaron went to his supervisor, Mr.
Anderson, who was also present in the break room, and told
him that he was quitting. Mr. Anderson denies hearing the
specific comment that was said to Mr. Aaron in the break
room, as there were approximately ten other people in the
room at the same time, talking and making noise. Mr. Anderson
then reported to Mr. Carr that Mr. Aaron was quitting, and
Mr. Carr immediately ran out to Mr. Aaron's car to catch
him before he left and ask him what was wrong. Mr. Aaron
informed Mr. Carr that he felt unwanted by the crew he worked
with, but mentioned no specific names. Mr. Carr then asked
Mr. Aaron to reconsider quitting, but Mr. Aaron refused,
stating he had made his decision. Both Mr. Carr and Mr.
Anderson then went to Mr. Goade to tell him that Mr. Aaron
had quit. The following day, April 16, 2014, Ms. Lewis
attempted to call Mr. Aaron, but she dialed the wrong phone
number and was unable to reach him. The parties agree that
with respect to Mr. Aaron's on-the-job performance, he
was an above-average employee, and none of his supervisors
wanted him to quit. He was described by Mr. Carr in an
October 2013 performance evaluation as a “good
worker” who was “willing to learn more.”
(Doc. 20-8). Mr. Aaron received a pay increase for his job
performance on December 12, 2013, and he was never
disciplined during his tenure at the Public Works Department.
standard of review for summary judgment is well established.
Under Federal Rule of Civil Procedure 56(a), “[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.” The
Court must review the facts in the light most favorable to
the opposing party and give that party the benefit of any
inferences that logically can be drawn from those facts.
Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13
(8th Cir. 1997). The moving party bears the burden of proving
the absence of a genuine dispute of material fact and that it
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l.
Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co.,
165 F.3d 602 (8th Cir. 1999).
the moving party has met its burden, the non-moving party
must “come forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P.
56(c)). In order for there to be a genuine issue of material
fact, the non-moving party must produce evidence “such
that a reasonable jury could return a verdict for the
nonmoving party.” Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 66 (8thCir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “The nonmoving party must do more than rely on
allegations or denials in the pleadings, and the court should
grant summary judgment if any essential element of the prima
facie case is not supported by specific facts sufficient to
raise a genuine issue for trial.” Register v.
Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130,
1136 (8th Cir. 2005) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)).
Hostile Work Environment
hostile environment exists when ‘the workplace is
permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an
abusive working environment.'” Palesch v. Mo.
Comm'n on Human Rights, 233 F.3d 560, 566 (8th Cir.
2000) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)). Establishing a prima facie case of
hostile work environment requires proof of the following
elements: (1) membership in a protected class; (2) unwelcome
harassment; (3) a causal connection between the harassment
and the protected status; and (4) proof that the harassment
affected a term, condition, or privilege of employment.
Gordon v. Shafer Contracting Co., 469 F.3d 1191,
1194-95 (8th Cir. 2006) (citing Al-Zubaidy v. TEK Indus.,
Inc., 406 F.3d 1030, 1038 (8th Cir. 2005)).
above four factors are established, then the court must turn
to the question of whether the perpetrators of the harassment
were co-workers or supervisors, as liability may depend on
the employment status of the harasser. See Vance v. Ball
State Univ., 133 S.Ct. 2434, 2439 (2013). An employer is
strictly liable for the actions of a supervisor who harasses
an employee, if such harassment “culminates in a
tangible employment action.” Id. For purposes
of this inquiry, a supervisor is defined as someone who is
“empowered by the employer to take tangible employment
actions against the victim, ” such as “the power
to hire, fire, demote, promote, transfer, or
discipline.” Id. On the other hand, if a
victim alleges that a ...