Elkins v. Miller County

          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 ...