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White v. Simpson

United States District Court, W.D. Arkansas, Fort Smith Division

October 10, 2018

JON MARK SIMPSON, individually and in his official capacity as Mayor, et al. DEFENDANTS



         Before 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 be granted.

         I. Background

         The 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.” (Doc. 28-6).

         Whitney 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 conversations.

         White 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).

         Ms. 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).

         In 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).

         On 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).

         On 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).

         In 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 ban.

         On 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.

         II. Legal Standard

         When a 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, ...

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