Gunn v. Langston et al
ORDER granting in part and denying in part 21 Defendants' Motion for Summary Judgment; denying 26 Plaintiff's Motion in Limine. Gunn may proceed against Greene County on her Title VII & ACRA retaliation claims. The rest of Gunn's claims are dismissed with prejudice. The remaining claims are reset for trial at 9:30 A.M. on February 21, 2012. Signed by Judge D. P. Marshall Jr. on 8/22/2011. (jct)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 3:10-cv-35-DPM
SHERIFF DAN LANGSTON, in his
official and individual capacities;
and GREENE COUNTY
Audra Gunn (now Eubanks after marriage) has sued her former
employer under Title VII, § 1983, and the Arkansas Civil Rights Act. Gunn
alleges that she was sexually harassed by a fellow employee of the Greene
County Sheriff's Office and then fired for complaining about the harassment.
Gunn also says that Sheriff Langston discriminated against her because she
is a woman. The Defendants deny the allegations and move for summary
judgment. Most of the material facts are undisputed. The Court construes the
disputed ones as Gunn asserts. And it views all the proof in the light most
favorable to Gunn. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003).
1. One Preliminary Point. The official-capacity claim against Sheriff
Langston is a legal redundancy because Greene County is also a party,
Kentucky v. Graham, 473 U.s. 159, 165-66 (1985). So the Court dismisses that
.claim with prejudice.
Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998). The
Court has already dismissed the Greene County Sheriff's Office as a party.
Document No. 11. The individual-capacity claims against Langston, and the
claims against Greene County, must still be decided.
2. Sexual Harassment. The Greene County Sheriff's Office hired Gunn
as a dispatcher in October 2007. Soon thereafter, Gunn dated Deputy David
Hampton. During their relationship, the two exchanged nude photographs
of themselves using text messages. The relationship ended around January
2008. Gunn says Deputy Hampton nonetheless continued showing her nude
photos of himself while they were at work. She also says Hampton touched
her inappropriately at work five or six times. And Gunn contends that after
they stopped dating Hampton's demeanor towards her became more
aggressive, which scared her. Then the harassment paused. Gunn hoped it
had stopped. But two months into the hiatus, Hampton tried to send Gunn
another racy photo of himself. She reported him.
To establish a prima facie case of a hostile work environment based on
sexual harassment, Gunn must produce admissible evidence that: (1) she is
a member of a protected group; (2) she was subjected to unwelcome sexual
harassment; (3) the harassment was based on sex; and (4) the harassment
affected a term, condition, or privilege of her employment. Duncan v. General
Motors Corp., 300 F.3d 928, 933 (8th Cir. 2002) (Title VII); Wright v. Rolette
County, 417 F.3d 879, 884-85 (8th Cir. 2005) (§ 1983). Because Gunn is suing
her employer for the actions of a co-worker, she must also create a fact
question on this fifth element: Sheriff Langston knew, or should have known,
about the harassment and failed to take appropriate remedial action. Smith
v. Hy- Vee, Inc., 622 F.3d 904, 907 (8th Cir. 2010).
Even if Gunn's sexual-harassment claim clears the fourth prima facie
hurdle, which the Eighth Circuit has said creates a "high threshold of
actionable harm," Duncan, 300 F.3d at 934, her claim falls on the fifth element.
It is undisputed that when Sheriff Langston was told about Deputy
Hampton's conduct, his office investigated the matter promptly, and then
Sheriff Langston firmly and unequivocally disciplined Hampton by telling
him that he could resign or be fired. Langston ordered Hampton to stay away
Hampton resigned, admitting later that he had violated
This is not a case of employer neglect. The Sheriff took prompt and
proper remedial action once he learned that a deputy acted inappropriately
towards a dispatcher.
Langston's correct handling of the investigation
protects him from liability as Hampton's supervisor.
Ottman v. City of
Independence, Missouri, 341 F.3d 751, 760-61 (8th Cir. 2003) (§ 1983). On these
undisputed material facts, summary judgment is warranted on sexual
3. Gender Discrimination. Gunn's gender-discrimination claim fails
too. An exchange between Gunn and her lawyer on deposition shows the
basis of her gender claim:
COUNSEL: Why do you think you were discriminated on the
basis of your gender?
No one else was harassed except for myself and also
the situation as far as with the deputy was concerned
and him being able to resign, I just felt like that all
contributed to that.
Document No. 32-2, at 39. "I was terminated but yet he gave the [D]eputy the
option to resign." Document No. 32-2, at 19.
Gunn argues she was treated differently, but she offers no proof. Gunn
never observed Sheriff Langston discriminate against another woman.
During her deposition, Gunn recited some hearsay about other alleged events.
But when pressed for details she said, "1 wasn't there and I'm not sure."
Document No. 32-2, at 41. Gunn was satisfied, moreover, with Langston's
discipline of Hampton.
Langston raised these performance-related problems when he fired
She left people on hold on the telephone too long;
She left the dispatch area unattended;
She came to work late twice;
She opened a letter addressed to someone else;
She switched shifts with another dispatcher without prior approval;
She had problems when training another dispatcher;
Another dispatcher had said she was uncomfortable working with
• Gunn had spent work time on the internet planning her wedding.
Document No. 31, at 4; Document No. 32-2, at 10, 52-56, 72; Document No. 32-1,
at 18, 20. Langston also said Gunn had a disrespectful attitude during the
final discipline meeting-so he fired her.
Gunn admitted that the
performance-related events occurred, though she also explained why they
were neither matters of concern nor fairly raised points against her. She
denies treating Langston disrespectfully, but agrees with Defendants that it
did not appear he started the meeting intending to fire her.
Because the Court is convinced that Gunn has presented no direct
evidence of discrimination, she must point to admissible proof that creates a
prima facie case on these elements: (1) she is a woman; (2) she is qualified to
dispatch; (3) she suffered an adverse-employment action; and (4) similarly
situated males were treated differently. McDonnell Douglas Corp. v. Green, 411
U.s. 792,802 (1973); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1157
(8th Cir. 1999), abrogated in part on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031, 1059 (8th Cir. 2011) (en bane). If Gunn can show these
things, then the County must state legitimate, non-discriminatory reasons for
her termination. If it does so, Gunn must show that the stated reasons are
pretextual. The analysis under the ACRA is substantially similar, if not
identical. Flentje v. First National Bank of Wynne, 340 Ark. 563, 571-73, 11
S.W.3d 531, 537-39 (2000).
Gunn has failed to create a jury question on her gender claims. The
claims fall on the fourth element of her prima facie case: Gunn has not created
a genuine issue of material fact that similarly situated males were treated
differently. In this circuit, courts can apply either a rigorous or more lenient
standard at the prima facie stage. Rodgers v.
N.A., 417 F.3d 845,
850-52 (8th Cir. 2005), abrogated in part on other grounds by Torgerson, 643 F.3d
at 1058. In keeping with the spirit of McDonnell Douglas's shifting burdens,
the Court applies the more lenient standard.
Gunn's gender-related claim fails nonetheless. It is based solely on the
fact that Deputy Hampton was allowed to resign but she was fired. Gunn and
Deputy Hampton were not "accused of the same or similar conduct [but]
disciplined in different ways." Rodgers, 417 F.3d at 852 (internal quotation
omitted). Hampton committed sexual harassment and was given the option
of resigning or being fired. Almost six months later, Gunn was accused of
numerous performance-related issues and a bad attitude; she was fired. The
Court has considered Langston's statement during the termination about
Gunn's opposition to harassment.
This proof, however, touches only
Even if a primafacie case exists, the Defendants prevail as a matter of law
considering the record as a whole. The circumstances of Gunn's termination
do not overcome her performance problems and disrespectful attitude during
the last meeting.
The distance between her misconduct and Deputy
Hampton's misconduct is too far to show a pretext for gender discrimination.
Torgerson, 643 F.3d at 1051. All things considered, Gunn's federal gender-
discrimination claim fails under McDonnell Douglas and related circuit
precedent. The gender claim fails under Arkansas law for the same reasons.
4. Retaliation. Gunn also brings retaliation claims based on § 1983, Title
VII, and the ACRA. A deposition exchange between Gunn and counsel puts
these claims into context:
COUNSEL: [W]hy do you think that your termination ... had
anything to do with your reporting of sexual
harassment against [D]eputy Hampton?
Because the sheriff had brought it up when I was
Document No. 32-2, at 32. "[H]e stated, quote, was that I had took it upon
myself to notify the Arkansas state police about the sexual harassment and I
got too many people involved." Document No. 32-2, at 33. Langston denies
making this statement.
This genuine dispute creates a jury question. Retaliation requires three
things: protected activity, an adverse employment action, and causal linkage.
Fercello v. County oj Ramsey, 612 F.3d 1069,1077-78 (8th Cir. 2010). Langston's
statement during the firing meeting, viewed in the light most favorable to
Gunn, is direct evidence of retaliation. Pye v. NuAire, Inc., 641 F.3d 1011, 1020
(8th Cir. 2011). And his statement creates a reasonable inference of pretext for
retaliation about Langston's other reasons for firing Gunn. Pye, 641 F.3d at
Gunn's protected activity was unusual. She never reported the sexual
harassment to the sheriff's office or Langston. Instead, Gunn's fiance - an
Arkansas State Trooper-reported the harassment to his supervisor. Gunn
and her fiance chose this route because" [Gunn] didn't feel like the [S]heriff,
on his part, would do what was right, as far as doing something about it
quickly[.]" Document No. 32-2, at 15. Gunn thought "the [S]heriff would be
upset with me, being bad publicity for him[.]" Document No. 32-2, at 22. "My
[fiance] just said that he would take care of it." Document No. 32-2, at 24.
Gunn expected the State Police to take her complaint to Langston. It
did. Her fiance's supervisor called the Sheriff. Document No. 23-4, at 2. "[T]he
lieutenant commander there of Troop F, called me and said, you have a
problem." Document No. 23-3, at 3. The resulting investigation put a stop to
Hampton's inappropriate touching and the pictures.
Title VII protects persons who oppose sexual harassment or
"participat[e] in any manner in an investigation, proceeding, or hearing under
this subchapter." 42 U.s.C.A. § 2000e-3 (West 2003). The ACRA provision is
almost identical, but also extends liability to Langston individually. ARK.
CODE ANN. § 16-123-108 (Repl. 2006); Calaway v. Practice Management Services,
Inc., 2010 Ark. 432, at 2. Typical protected activity includes grievances,
incident reports, and charges of discrimination. Sutherland v. Missouri Dep't
ofCorrections, 580 F.3d 748, 752 (8th Cir. 2009). Any activity opposing sexual
harassment is protected if the sexual harassment was unlawful, or if Gunn
had "a good faith, objectively reasonable belief that the practices were
unlawful." Barkerv.Missouri Dep'tofCorrections,513 F.3d 831,834-35 (8th Cir.
2008) (internal quotation omitted).
After considering the supplemental briefs on protected activity, the
Court concludes that a question exists here for the jury. The statute speaks
broadly. Thompson v. North American Stainless, LP, 131 S. Ct. 863, 867-69
(2011). Although the Court is uncertain if Hampton's harassment was enough
to alter a term, condition, or privilege of Gunn's employment, an issue of fact
exists on whether Gunn had an objectively reasonable, good-faith belief that
Hampton's harassment was unlawful. Duncan, 300 F.3d at 934. Complaining
about harassment is "the very essence of protected activity ... [,]" Green v.
Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006), although
Gunn chose a somewhat unusual channel.
The motion for summary
judgment on the retaliation claims is denied; Gunn can proceed against the
County under Title VII and the ACRA for retaliation.
But as Gunn
acknowledged in her brief, she has no individual-capacity claim for retaliation
against Langston under Title VII. Calaway, 2010 Ark. 432, at 1.
5. Qualified immunity. Gunn's ACRA retaliation claim against Sheriff
Langston individually fails. Having measured Langston's alleged conduct
against the controlling law, the Court grants him qualified immunity. Smith
v. Brt, 363 Ark. 126, 130-31, 211 S.W.3d 485, 489 (2005). The law was and is
murky about whether the particulars of Gunn's activity were protected.
Langston could not have reasonably known that firing Gunn based in part on
her complaint to the Arkansas State Police violated Gunn's civil rights.
Langston's immunity protects him against a state-law retaliation claim. Ibid.;
Robinson v. Langdon, 333 Ark. 662, 667-68, 970 S.W.2d 292, 294-95 (1998).
6. First Amendment Retaliation. Gunn also brings federal retaliation
claims based on the First Amendment through § 1983. She says her right to
free speech was violated when Sheriff Langston fired her in retaliation for the
complaint she made about Deputy Hampton's harassment.
precedent about public employees' speech directly on point. Connick v. Myers,
461 U.s. 138 (1983); Pickering v. Board of Education oj Township High School
District 205, Will County, Illinois, 391
U.s. 563 (1968); Richardson v. Sugg,448
F.3d 1046, 1062-63 (8th Cir. 2006).
There was no First Amendment violation. The Court agrees with the
Defendants that, considering the entire record, what Gunn told the State
Police (through her fiance) about the Hampton incidents was personal to
Gunn. Her speech was not on a matter of public concern - unless that
category is so broad that it loses any legal meaning. If this were not so, then
every public-employee Title VII discrimination case involving a report about
harassmentto an outside agency would also be a First Amendment retaliation
case. This cannot be the law. Because Gunn did not speak on a matter of
public concern "for purposes of the Connick test[,]" Sugg, 448 F.3d at 1063,
Gunn's First Amendment-related retaliation claim fails to create a triable
7. Miscellaneous. The Court acknowledges Gunn's passing allegation
that she was not fully paid for all of her work. This strikes the Court as a
matter of debt. No such claim was made in the complaint.
Gunn's motion in limine, Document No. 26, is denied with a clarification.
Gunn and Hampton's prior relationship is relevant on whether harassment
actually occurred or Gunn reasonably believed it did, and thus is relevant on
whether Gunn's report was protected activity. The Court has concluded, for
purposes of summary judgment, that there was a reasonable belief of
harassment. But this is an open question before the jury on the retaliation
claim. Defendants are not offering unrelated evidence about Gunn's behavior
outside the workplace or with third parties. Compare Burns v. McGregor
Electronic Industries, Inc., 989 F.2d 959, 961-62 (8th Cir. 1993). Instead, the
Gunn/Hampton relationship is at the hub of this case. Warren v. Prejean, 301
F.3d 893, 906 (8th Cir. 2002).
The clarification is this: how deeply the prior relationship is explored
in the testimony, and in particular how many explicit photographs are
admitted, raises the potential for unfair prejudice under Federal Rules of
Evidence 403 and 412(b)(2). The Court therefore directs the parties to confer
and see if they can find common ground-perhaps a few example
photographs and the total number exchanged, with similar commonsense
limitations on the testimony. If the parties cannot agree, then the Court will
rule on exactly what may come before the jury by way of testimony and
photographs. This is a situation where some, but not too much, is needed for
the case to be tried fairly to both sides.
* * *
Defendants' motion for summary judgment, Document No. 21, is granted
in part and denied in part. Gunn may proceed against Greene County on her
Title VII and ACRA retaliation claims.
The rest of Gunn's claims are
dismissed with prejudice. The remaining claims are reset for trial at 9:30 A.M.
on 21 February 2012.
D.P. Marshall Jr.
United States District Judge
22 August 2011
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