United States District Court, W.D. Arkansas, Texarkana Division
MEMORANDUM OPINION AND ORDER
SUSAN
O. HICKEY, CHIEF UNITED STATES DISTRICT JUDGE
Before
the Court is Defendants' Motion for Summary Judgment.
(ECF No. 14). Plaintiff has filed a response. (ECF No. 22).
Defendants have filed a reply. (ECF No. 27). The Court finds
this matter ripe for consideration.
BACKGROUND
This is
a sex discrimination and retaliation action brought under
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and the Arkansas
Civil Rights Act (“ACRA”), Ark. Code Ann.
§16-123-107(a)(1). Plaintiff is a female who was
employed by Defendant Miller County, Arkansas. Plaintiff
alleges that she was subjected to a hostile work environment
when Defendant Grigsby repeatedly sexually harassed her and
that she was fired in retaliation for reporting the sexual
harassment to her supervisors and the Equal Employment
Opportunity Commission (“EEOC”).
Plaintiff
began her employment with Miller County in September 2013,
initially as a detention officer in the Miller County Jail.
In early 2015, Plaintiff became a patrol officer with the
Miller County Sheriff's Department. After serving as a
patrol officer for approximately one year, Plaintiff was
transferred to the Bi-State Drug Task Force on February 29,
2016. While working with the task force, Plaintiff was
partnered with Defendant Grigsby, another Miler County deputy
sheriff.
At some
point after becoming partners, Plaintiff alleges that
Defendant Grigsby began sexually harassing her.[2] Plaintiff alleges
that the harassment consisted of multiple “small”
instances where Defendant Grigsby attempted to verbally
solicit sex from her. Plaintiff is unable to recount how many
times Defendant Grigsby allegedly propositioned her, or the
specifics of anything said during these exchanges. However,
Plaintiff alleges that the gist of these encounters was that
Defendant Grigsby told her it would be convenient for them to
engage in a sexual relationship because she was single, and
they spent so much time alone together. Plaintiff claims that
she repeatedly refused Defendant Grigsby's advances.
Plaintiff
also alleges that there were two “bigger”
instances of sexual harassment. The first of these bigger
instances consisted of a discussion where Defendant Grigsby
allegedly invited her to go on a
“mudding”[3] trip where the participants would ride
four-wheelers during the day and engage in sexual activities
at night. Plaintiff claims that she informed Defendant
Grigsby that she was open to the prospect of riding
four-wheelers but that she was not interested in engaging in
sexual activity with anyone.
The
second bigger instance of alleged sexual harassment occurred
during a trip to the mall in Hot Springs, Arkansas. Plaintiff
alleges that Defendant Grigsby suggested they go to the mall
during a break at a conference for narcotics law enforcement
officers. Once at the mall, Plaintiff alleges that she told
Defendant Grigsby that she needed to go to Victoria's
Secret to purchase sports bras. Plaintiff alleges that she
told Defendant Grigsby that he did not need to accompany her,
but he told her “don't worry about it.”
Plaintiff and Defendant Grigsby entered Victoria's Secret
where Plaintiff alleges that Defendant Grigsby said that he
would buy her lingerie if she would model it for him back at
their hotel. Plaintiff claims that she responded that she
“wouldn't buy that underwear even if I was doing it
for myself.” Plaintiff then proceeded to try on several
garments, ultimately purchasing a “regular bra.”
Plaintiff
also alleges that she had conversations with Defendant
Grigsby about another woman that Defendant Grigsby was
allegedly pursuing. Plaintiff alleges that Defendant Grigsby
asked her to purchase flowers for this other woman so
Defendant Grigsby's wife would not see any record of the
purchase. Plaintiff claims that she purchased the flowers as
requested. Defendant Grigsby maintains that he never
propositioned or otherwise sexually harassed Plaintiff.
On June
13, 2016, the Bi-State Drug Task Force began investigating a
report of a possible murder for hire. That same day,
Plaintiff attended a meeting where the investigation was
discussed in depth. At this meeting, task force members were
instructed to keep all aspects of the investigation
confidential. The intended victims of the murder for hire
were Plaintiff's roommate's brother and his
girlfriend. Plaintiff broke confidentiality and revealed
details of the investigation to her roommate who subsequently
informed his brother, stymieing the investigation. Plaintiff
later informed her task force supervisor that she had
divulged details about the investigation to her roommate.
Approximately
one week after telling her supervisor that she had leaked
details of the investigation, Plaintiff told him that
Defendant Grigsby was treating her “shady.” Her
supervisor asked Plaintiff what she meant by “shady,
” and she told her supervisor that Defendant Grigsby
was not talking to her like he had before and seemed to be
avoiding her. Plaintiff's supervisor told her that
Defendant Grigsby's conduct was likely the result of her
breaking the task force's trust by breaching
confidentiality in the murder for hire investigation.
Plaintiff did not report any sexual harassment by Defendant
Grigsby at that time. On June 27, 2016, Plaintiff voluntarily
transferred out of the Bi-State Drug Task Force and returned
to her position as a patrol officer with the Miller County
Sheriff's Department. Plaintiff cited a potential
deployment to Africa with her National Guard unit as her
reason for leaving the task force.
On
August 11, 2016, Plaintiff reported that Defendant Grigsby
had sexually harassed her to one of her supervisors, Sergeant
Kathy Hillis. Sergeant Hillis reported Plaintiff's
allegations of sexual harassment to her supervisors and the
Miller County Sheriff's Office began an internal
investigation. The result of the internal investigation was
that the investigators could not sustain Plaintiff's
allegations.
On
September 7, 2016, Plaintiff was on patrol and pulled over a
motorist for suspected drunk driving. Defendants characterize
the stop as routine and unnecessary because the motorist had
simply swerved to avoid a large pothole in the road. However,
Plaintiff contends that the motorist was driving erratically
and tried to evade pursuit. Instead of conducting field
sobriety tests herself, Plaintiff called in an Arkansas State
Trooper to administer the sobriety tests for her. The delay
in waiting for the trooper caused the traffic stop to last
approximately thirty minutes, causing Plaintiff's
supervisors to question whether the stop was constitutional.
On
September 8, 2016, Plaintiff filed an EEOC charge alleging
sex discrimination. On September 15, 2016, Defendant Stovall,
the Miller County Sheriff, met with legal counsel and made
the decision to fire Plaintiff. On September 20, 2016,
Defendant Stovall terminated Plaintiff's employment,
citing the potentially unconstitutional traffic stop. After
her employment was terminated, Plaintiff amended her EEOC
charge to include retaliation.
On May
11, 2018, the EEOC provided Plaintiff with a notice-of-rights
letter. On August 18, 2018, Plaintiff filed suit in this
Court. Plaintiff alleges that Defendants' actions
constituted sexual discrimination and retaliation in
violation of Title VII and the ACRA. On August 28, 2019,
Defendants filed the instant motion asserting that they are
entitled to summary judgment on all claims. Plaintiff opposes
the motion.
LEGAL
STANDARD
“Summary
judgment is appropriate 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.” Hess v.
Union Pac. R.R. Co., 898 F.3d 852, 856 (8th Cir. 2018)
(citation omitted). Summary judgment 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 Enter. 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 v. Cnty. of
LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). 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.” Anderson, 477 U.S.
at 256.
DISCUSSION
I.
Plaintiff's Statement of Disputed Facts
As an
initial matter, the Court must address Plaintiff's
statement of disputed facts. A party responding to a motion
for summary judgment “shall file, in addition to any
response and brief, a separate, short and concise statement
of the material facts as to which it contends a genuine
dispute exists to be tried” and “[a]ll material
facts set forth in the statement filed by the moving party .
. . shall be deemed admitted unless controverted by the
statement filed by the non-moving party.” Local Rule
56.1. Plaintiff did not file a statement of disputed facts.
Rather, Plaintiff filed her own statement of facts. Thus, to
the extent any facts in Defendants' statement of facts
are not directly controverted by Plaintiff's statement of
facts, they will be deemed admitted.
Defendants
also object that some evidence contained in Plaintiff's
summary judgment response is inadmissible and therefore
should not be considered. However, “the standard is not
whether the evidence at the summary judgment stage would be
admissible at trial-it is whether it could be
presented at trial in an admissible form.” Gannon
Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir.
2012) (emphasis in original). Defendants do not identify any
specific evidence or argue why it could not conceivably be
admissible at trial in some form. Therefore, the Court will
consider all of Plaintiff's evidence that it finds could
be admissible in ruling on the instant motion.
II.
Sex Discrimination
The
Court now turns to Plaintiff's sex discrimination
hostile-work-environment claims.[4]Title 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).
“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).
Defendants
argue that Plaintiff cannot make a prima facie case
of sex discrimination because Plaintiff has failed to
demonstrate that (1) there was “unwelcome” sexual
harassment; (2) that the alleged harassment was so severe or
pervasive that it affected a term, condition, or privilege of
Plaintiff's employment; and (3) that Defendant Miller
County knew or should have known of the harassment and failed
to take remedial action. The Court addresses each of these
arguments in turn.
A.
Unwelcome Sexual Harassment
Defendants
argue that Plaintiff cannot establish that she experienced
...