United States District Court, W.D. Arkansas, Fort Smith Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendants' motion (Doc. 26) for summary
judgment. Defendants filed a brief (Doc. 27) and statement of
facts (Doc. 28) in support. Plaintiff Chris White
(“White”) filed a response (Doc. 31) and brief
(Doc. 32) in opposition. Contrary to Local Rule 56.1(b),
White did not file a separate response to Defendants'
statement of facts. Defendants filed a reply. (Doc. 33). The
parties filed a joint motion (Doc. 42) to continue the trial.
White alleges Defendants have violated his federal and state
constitutional rights in a manner actionable under Title III
of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and
the Arkansas Civil Rights Act of 1993. For the reasons set
forth below, Defendants' motion for summary judgment will
Marvin Vinson Multi-Purpose Building is a recreational
building open to the City of Clarksville community. It is
owned by the City of Clarksville and operated by the city
council and the Parks and Recreation Advisory Board.
Community members may swim at the Marvin Vinson
Building's Aquatic Center. The Aquatic Center relies on
various safety measures to ensure patron safety and
satisfaction, such as employing lifeguards to monitor those
using the pool. Additionally, the Aquatic Center has a list
of sixteen rules and regulations that must be followed. (Doc.
28-6). Rule number ten provides “[n]o obscene language,
crude or inappropriate behavior will be tolerated.”
Barnes works as a lifeguard at the Aquatic Center. White and
Ms. Barnes presumably met at the Aquatic Center while White
would swim, and the two would talk often. Each would initiate
conversation with the other. (Doc. 32-1, p. 2). Ms. Barnes
regularly spoke with White and did not always tell him that
he was bothering her. (Doc. 28-7, p. 5). Although some of
their conversations made her feel uncomfortable, Ms. Barnes
“didn't feel it was necessarily inappropriate at
the time.” (Doc. 32-1, p. 5). Ms. Barnes testified that
she and White would openly discuss her religious beliefs.
(Doc. 32-1, p. 8). Ms. Barnes never told anybody prior to
December 2016 that she and White were having religious-based
and Barnes spoke nearly every day that White was at the
Aquatic Center, which eventually became most days Ms. Barnes
worked. During the fall of 2016, Ms. Barnes's work
schedule was rearranged so that she worked in the morning
rather than in the afternoon. (Doc. 28-7, p. 3). White, who
previously swam at the Aquatic Center in the afternoon,
altered his schedule to swim in the mornings. (Doc. 28-7, p.
3; Doc. 28-2, p. 3; Doc. 28-5, p. 4). Both continued to
communicate with each other regularly. Their conversations
eventually became lengthy enough to distract Ms. Barnes from
her duties as a lifeguard. (Doc. 28-2, p. 2). During one
conversation, Mary Townsend, the Director of the Aquatic
Center, observed Ms. Barnes speaking to White with her back
to the pool for five minutes. (Doc. 28-8, p. 2).
Townsend met with both White and Ms. Barnes to discuss the
distractions caused by their conversations. Ms. Townsend
documented in her journal that she discussed the issue with
Ms. Barnes on December 2, 2016. (Doc. 28-8, p.1). White
“was never notified that his failure to ‘stop
distracting the life guards' could result in a complete
ban from the Marvin Vinson MultiPurpose Building . . .
.” (Doc. 32, p. 18). However, White testified that Ms.
Townsend indeed spoke to him about distracting the
lifeguards, stating, “Mary told me later that when I
talked to the lifeguards that I need to make sure and not
stand in front of them and make sure I don't block their
vision of the pool.” (Doc. 28-5, p. 7). Ms. Townsend
agrees, and claims that she told White to “stop
distracting the lifeguards.” (Doc. 32-3, pp. 2-3).
Despite these warnings, however, Ms. Townsend observed White
on surveillance video engaging in the same distracting
behavior while she was not at the Aquatic Center. Concerned
for the safety of those using the pool, she decided action
was necessary. She contacted Tom Cogan, the Parks and
Recreation Director for the City of Clarksville, at the
beginning of December 2016 and the two decided to seek the
assistance of the Mayor, Jon Simpson, in handling the
problem. (Doc. 32-3, pp. 2-3).
December 2016, Mayor Simpson, Mr. Cogan, and Chief Weathers
met with Ms. Barnes. (Doc. 32-4, p. 3). During their
discussion, Ms. Barnes disclosed that, in addition to
distracting her while she was on duty, White regularly
engaged in inappropriate behavior. (Doc. 32-4, p. 3). This
was the first time she discussed White's behavior with
anybody. (Doc. 28-1, p. 3). She identified two other females,
Christal Brooke and Emilie Rohr, with similar stories. Ms.
Barnes stated that White sexually harassed her, Ms. Brooke,
and Ms. Rohr on different occasions. Mayor Simpson, Mr.
Cogan, and Chief Weathers decided it was necessary to ban
White from the Marvin Vinson Building, but chose to wait for
Ms. Townsend to provide a statement before memorializing the
decision. (Doc. 28-1, p. 3).
December 16, 2016, prior to Defendants banning him from the
premises, White delivered a boxed Christmas gift to Ms.
Barnes at the Marvin Vinson Building. Ms. Barnes immediately
notified Ms. Townsend but did not open the box. Ms. Townsend
then notified Mr. Cogan. (Doc. 28-2, p. 4). White testified
that the gift contained “Skittles and one of those
vacuum insulated cups” with a card that read,
“Merry Christmas, Whitney, Jesus loves you.
Chris.” (Doc. 28-5, p. 13). No. Defendant opened the
box. Mr. Cogan, Mayor Simpson, and Chief Weathers decided it
was necessary to immediately ban Mr. White from the Marvin
Vinson Building. (Doc. 28, ¶ 76). That same day, Officer
Jeff Ross provided White with written notice that he was
banned from the Marvin Vinson Building for violating policy
and procedures. (Doc. 32-13; Doc. 28-1). Specifically,
Defendants identify pool rule number ten as the basis for the
ban. (Doc. 28-15, p. 2).
February 16, 2017, written statements were obtained from Ms.
Brooke and Ms. Rohr corroborating the information provided by
Ms. Barnes. (Doc. 32-10; Doc. 32-11). Ms. Brooke detailed the
various times White engaged in inappropriate behavior,
including statements that he “lusts” after her
and other female lifeguards. (Doc. 32-10). Ms. Rohr
identified a conversation in which White described a
wrestling move that “was a good way to control a woman
from behind.” (Doc. 32-11).
August of 2017, the City of Clarksville's Parks and
Recreation Board held a hearing to discuss White's ban
from the Marvin Vinson Building. (Doc. 28, p. 16). White
chose not to testify at the hearing, but Kevin Holmes,
White's attorney, addressed the Board on White's
behalf. (Doc. 28-14). The Board ultimately upheld White's
November 6, 2017, White filed the instant action against
Mayor Simpson, The City of Clarksville, Jeff Ross, Tom Cogan,
and Mary Townsend alleging the defendants violated his
constitutional rights including his right to freedom of
religion, speech, association, and due process. On August 16,
2018, Defendants moved for summary judgment on all counts. In
their motion for summary judgment, Defendants argue that the
City of Clarksville and its representatives were justified in
banning White from the Marvin Vinson Building because White
created a safety risk by repeatedly distracting on-duty
lifeguards. Defendants argue that the decision was further
justified because White repeatedly sexually harassed female
employees of the Marvin Vinson Building. Finally, Defendants
contend that White received constitutionally sufficient
process throughout the procedure leading to the City's
decision to ban him.
party moves for summary judgment, it must establish both 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; 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, 606-07 (8th Cir. 1999). In order for there to be a
genuine issue of material fact, the nonmoving 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, 66-67 (8th Cir.
1994) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Only facts “that might affect
the outcome of the suit under the governing law” need
be considered. Anderson, 477 U.S. at 248. Indeed,
“a fact is material if its resolution affects the
outcome of the case.” Rakes v. Life Inv'rs Ins.
Co. of Am., 582 F.3d 886, 893 (8th Cir. 2009).
“[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the
burden of proof.” P.H. v. Sch. Dist. of Kan. City,