Harrell v. Independence County, Arkansas et al
ORDER granting 38 defendants' Motion for Summary Judgment. Signed by Judge D. P. Marshall Jr. on 9/30/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
INDEPENDENCE COUNTY, ARKANSAS;
ODUS FULMER, Tax Assessor for Independence
County, Arkansas, Individually and in his Official
Capacity; and GREG POTTS, Supervisor,
Independence County, Arkansas Tax Assessor's
Office, Individually and in his Official Capacity
Genie Harrell was one of two appraisers who worked for Odus Fulmer,
the Independence County Assessor.
Harrell and her female co-worker,
Robbie Turner, both made $28,000.00 a year. Turner left without notice, and
Assessor Fulmer had to scramble to a hire a replacement. Fulmer hired a
former County appraiser, Kenny Mize, for $32,000.00 a year. Harrell and
Mize both worked for Greg Potts, the County's reappraisal manager. Fulmer
became concerned about Harrell's idle time because County residents
complained that they had seen her taking long breaks when she was on the
job. Fulmer circulated a memo, urging Harrell and Mize to work more
thoroughly, and minimize idle time, when they were out appraising real
property. Fulmer also installed GPS tracking devices on Harrell's and Mize' s
work vehicles without telling them. Mize's GPS data showed that he drove
around needlessly. He was not disciplined. Fulmer fired Harrell because her
GPS data showed that she was spending a lot of time parked in out of the way
Harrell has sued Independence County, Assessor Fulmer, and her
supervisor Potts alleging a violation of the Equal Pay Act, disparate treatment
and termination under Title VII, echoing constitutional claims under§ 1983,
and a§ 1985 conspiracy. The present question is whether there are issues for
trial on any of Harrell's claims. Many of the material facts are undisputed;
those that are disputed, the Court takes in the light most favorable to Harrell.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en bane).
1. Preliminary Issues. Four matters need attention at the threshold.
First, all claims against Fulmer and Potts in their official capacities are
dismissed without prejudice.
As the Court has noted, these duplicate
Harrell's claims against the County. NQ 19 at 2. Second, Harrell's individualcapacity Title VII claim against Potts is dismissed with prejudice. Supervisors
may not be held individually liable under Title VII. Spencer v. Ripley County
State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997) (per curiam). Third, the parties
have briefed the case as if Harrell's Fourteenth Amendment claims are
coextensive with her discrimination claims. The Court therefore need not
analyze the constitutional claims separately. Fourth, the issue of qualified
immunity rises or falls with the merits. Twiggs v. Selig, 679 F.3d 990, 995 (8th
Cir. 2012). Given the stage of the case, the Court will discuss qualified
immunity as needed issue by issue.
2. Equal Pay Act. Harrell has made a prima facie case under the Equal
Pay Act against her employers, Independence County and Fulmer. No claim
exists against her supervisor, Potts. It is undisputed that Harrell received less
pay than Mize, her male comparator. And viewing the evidence in the light
most favorable to her, Harrell and Mize performed equal work under similar
conditions. Bearden v. International Paper Co., 529 F.3d 828, 833 (8th Cir. 2008).
Both were County appraisers; they split the work equally; and both were
supervised by Potts.
But the County and Fulmer have a solid defense to Harrell's claim. The
undisputed facts show that Mize' s greater pay was based on factors other
than gender. Brown v. Fred's, Inc., 494 F.3d 736, 740 (8th Cir. 2007). Mize had
more field experience than Harrell and had worked for the County as an
appraiser before. Assessor Fulmer was in a lurch when Turner, Harrell's first
co-worker, quit without notice. He negotiated with a former employee, a
known quantity, to fill the vacancy quickly, and had to offer Mize a higher
salary to induce him to return to the job. NQ 40-3 at 2. $4,000.00 is real money.
But the difference between Harrell's and Mize' s salaries alone is not large
enough in the circumstances to support a reasonable inference of gender
discrimination. Paying a male employee more because his "experience and
ability made him the best person available for the job and because a higher
salary was necessary to hire him" is a valid defense under the Equal Pay Act.
Horner v. Mary Institute, 613 F.2d 706, 714 (8th Cir. 1980).
Alternatively, Fulmer is entitled to qualified immunity here. The right
to equal pay across genders is clearly established. The dispositive question
thus becomes whether a reasonable person in Assessor Fulmer's place would
have known that he was violating clearly established rights by paying Mize
a higher salary than Harrell to get him back on the job. Tuggle v. Mangan, 348
F.3d 714, 720 (8th Cir. 2003). Fulmer's decision to negotiate with Mize to fill
the unexpected vacancy, and to pay him several thousand dollars more to get
him to return, was a judgment call in the circumstances. "Officials are not
liable for bad guesses in gray areas; they are liable for transgressing bright
lines." Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004). At a minimum, Fulmer
is entitled to qualified immunity. Because he is, Independence County is
entitled to judgment as a matter of law too. Turpin v. County oj Rock, 262 F.3d
779, 784 (8th Cir. 2001).
3. Title VII/§ 1983.
The parties have stipulated to the first three
elements under the McDonnell Douglas framework. Wells v. SCI Management,
L.P., 469 F.3d 697, 700 (8th Cir. 2006). The issue is whether the facts support
a reasonable inference of gender discrimination. Harrell must make only a
modest evidentiary showing at the prima facie case stage, Lake v. Yellow
Transportation, Inc., 596 F.3d 871, 874 (8th Cir. 2010), and she has done so.
Harrell and Mize dealt with the same supervisor and were subject to the same
standards. Mize made more money annually than Harrell. His GPS data
showed that he spent some unexplained time driving around. He was not
disciplined or terminated. Viewing the facts in Harrell's favor, she has shown
that she was treated less favorably than Mize, a similarly situated male
employee. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011).
The County and Fulmer, however, have identified a legitimate, nondiscriminatory basis for firing Harrell. The GPS data confirmed that Harrell
engaged in "long term parking and idling[,]" NQ 44-7 at 5; NQ 40-3 at 12-15, and
her termination letter stated that this "work conduct [was] not conducive to
the requirements of ... a field appraiser." NQ 44-7 at 5.
Harrell does not
dispute the fact that she parked for long periods of time, only her reasons for
So the case boils down to pretext- was Fulmer's reason for terminating
Harrell a pretext for intentional gender discrimination? Harrell tries to show
it was by arguing that she and Mize were similarly situated employees and
subject to disparate treatment. But at this stage, the comparator standard is
rigorous; Harrell must show that she and Mize were similarly situated in all
relevant respects. Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009). Mize
"must have dealt with the same supervisor, have been subject to the same
standards, and have engaged in the same conduct without any mitigating or
distinguishing circumstances." Wright v. St. Vincent Health System, No. 123162, 2013 WL 5225214, at *8 n.7 (8th Cir. 18 Sept. 2013).
Mize fits on the supervisor and standards issues. Potts supervised both
Harrell and Mize. They were both subject to the same standards. Fulmer
issued a memo to both Harrell and Mize to address the appraisers' idle time,
emphasizing a slower work pace and a focus on better work quality. NQ 44-7
at 4. Fulmer installed GPS trackers on both appraisers' vehicles and tracked
both appraisers' activities. Harrell argues that Fulmer did not analyze Mize' s
GPS data, but the record shows beyond dispute that he did. E.g., NQ 44-6 at
31-33; NQ 44-7 at 42-43.
Harrell argues that Mize also engaged in misconduct, but was not fired
She says that Mize "hopp[ ed] back and forth from
communities," apparently to kill time. NQ 45 at 16. The record seems to
confirm that Mize drove around without explanation. E.g., NQ 44-6 at 32-37;
NQ 44-7 at 42-43. The Court agrees with Harrell that killing time by driving
around was misconduct too. But Harrell has not shown that Mize's actions
were similar enough to her actions to make him a comparator at the pretext
stage. E.E.O.C. v. Kohler Co., 335 F.3d 766, 775 (8th Cir. 2003). Harrell has the
burden of demonstrating that Mize was similarly situated in all relevant
aspects, Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000), and she has not met
proof with proof. Both appraisers' activities were misguided, but Harrell has
not shown that Mize's misconduct was comparable in either degree or
frequency, Bone v. G4S Youth Services, LLC, 686 F.3d 948, 956 (8th Cir. 2012),
nor has she shown that they did the same things wrong but were disciplined
in different ways. Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.
1994). The Court of Appeals' precedent binds this Court to hold Harrell to an
extremely strict proof requirement here.
Harrell acknowledges that Mize's misconduct was "just the opposite"
of her misconduct. Ng 46 at 8. She hurried through her work and then parked
for long periods of time. She was working months ahead of schedule when
she was fired, despite Fulmer's instructions to work more slowly. Ng 44-4 at
23. Mize, on the other hand, drove around more than he should have. Harrell
points to only a few instances of Mize killing time this way; the GPS data
shows that Harrell parked in vacant locations for longer than an hour more
than twenty times in the three months before she was fired. Ng 44-7 at 57-60.
Discounting some of that time for lunch, substantial idle time remains.
"Violations of different company policies do not necessarily support an
inference that employees are similarly situated, particularly when one
violation is considered more serious than the other." Johnson v. Ready Mixed
Concrete Co., 424 F.3d 806, 811 (8th Cir. 2005).
Mize's misconduct was
different in quantity and quality from Harrell's misconduct.
differing responses are therefore not probative of pretext. Kohler, 335 F.3d at
Harrell's burden of showing pretext "merges with the ultimate burden
of persuading the court that [she was] the victim of intentional
discrimination." Torgerson, 643 F.3d at 1046. The deep question is whether
Fulmer terminated Harrell on the basis of gender or not, considering the
whole record, including a comparison with how Fulmer treated Mize.
Fulmer, it is undisputed, employed mostly women. Ng 46 at 9; Ng 40-3 at 4.
There is no evidence of gender-based slights, remarks, or ill treatment
through the years toward any female employee. So Harrell's claims come
down to the pay difference and the firing. Based on all the circumstances, no
reasonable fact finder could conclude that gender drove Fulmer's decision to
fire Harrell. Burkhart v. American Railcar Industries, Inc., 603 F.3d 472, 473-74
(8th Cir. 2010). Because Fulmer's actions were not unconstitutional, Harrell
has no claim against the County as a matter of law. McVay v. Sisters of Mercy
Health System, 399 F.3d 904, 909 (8th Cir. 2005).
In any event, Fulmer's decision to fire Harrell because she was spending
too much time idling was a matter of judgment. Davis, 375 F.3d at 712.
Fulmer reviewed both appraisers' GPS data and concluded that Harrell's
substantial idle time warranted substantial discipline. There was nothing
objectively unreasonable about that decision in the circumstances. Herts v.
Smith, 345 F.3d 581, 585 (8th Cir. 2003). Fulmer is therefore entitled to
qualified immunity on Harrell's Title VII/§ 1983 claims. And the County is
entitled to judgment because the claims against Fulmer fail. Turpin, 262 F.3d
4. 42 U.S.C. § 1985. Harrell's conspiracy claim fails as a matter of law
for lack of a trial-worthy issue on her underlying discrimination claims.
Hanten v. School District of Riverview Gardens, 183 F.3d 799,809 (8th Cir. 1999).
Defendants' motion for summary judgment, NQ 38, is granted.
D.P. Marshall Jr.
United States District Judge
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