Stoner v. Arkansas Department of Correction et al

Filing 80

DOCKET ENTRY FILED IN ERORR - DISREGARD (jak) (Docket text modified on 11/18/2013 to indicate the document was filed in error).(jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
TRACY STONER
v.

PLAINTIFF
Case No. 3:10-cv-00218 KGB

ARKANSAS DEPARTMENT OF
CORRECTION, et al.

DEFENDANTS

OPINION AND ORDER
Plaintiff Tracy Stoner brings this action against the Arkansas Department of Correction
(the “ADC”) under 42 U.S.C. § 2000e et seq. (“Title VII”), for gender discrimination, based on
hostile work environment and disparate treatment, and retaliation; against Warden John Maples,
in his individual and official capacities, under 42 U.S.C. § 1983 and the Arkansas Civil Rights
Act, Ark. Code Ann. § 16-123-101 et seq. (the “ACRA”), for gender discrimination, based on
disparate treatment, and retaliation; and against Correctional Medical Services, Inc. (“CMS”),
under Title VII and the ACRA for gender discrimination, based on hostile work environment and
disparate treatment, and retaliation. The ADC and Warden Maples filed a motion for summary
judgment (Dkt. No. 30). CMS filed a separate motion for summary judgment (Dkt. No. 36). Ms.
Stoner filed a response to both (Dkt. Nos. 42, 45). The ADC and Warden Maples (Dkt. No. 52),
and CMS (Dkt. No. 53), filed a reply. On June 27, 2013, defendants filed a supplemental brief
(Dkt. No. 69), to which Ms. Stoner responded on June 28, 2013 (Dkt. No. 70).
For the reasons that follow, the ADC and Warden Maples’s motion is granted in part and
denied in part. Summary judgment is granted as to Ms. Stoner’s hostile work environment
claims against the ADC and Warden Maples. Those claims are hereby dismissed. Summary
judgment is denied as to Ms. Stoner’s claims against the ADC and Warden Maples for gender
discrimination based on disparate treatment and retaliation. Those claims will proceed to trial.

CMS’s summary judgment motion is granted in its entirety, and thus all of Ms. Stoner’s claims
against CMS are hereby dismissed.
I.

Factual Background

The following facts are undisputed and taken from defendants’ statements of undisputed
facts (Dkt. Nos. 32, 38) and Ms. Stoner’s responses to defendants’ statements of undisputed facts
(Dkt. Nos. 44, 47), unless otherwise specified by citation.
In November 2008, Ms. Stoner was hired as a Licensed Practical Nurse by CMS, now
Corizon, Inc. CMS contracts with the ADC to provide on-site medical services to ADC inmates
at its 19 facilities throughout the state, including the Newport Complex. The Newport Complex
is the site of the McPherson Unit, where Ms. Stoner worked. CMS contends that it controls the
means by which nursing tasks are accomplished; interviews and hires nurses with no input from
the ADC; supervises nurse duties; pays nurses and sets their work schedules; conducts nurse
performance evaluations; and provides nurses with medical protocols and all “disposable”
medical supplies necessary to care for inmates, except for X-ray machines and gurneys, which
the ADC provides. While employed, Ms. Stoner worked under the supervision of CMS Director
of Nursing Janet Tiner, who worked under the supervision of CMS Health Services
Administrator James Pratt. Ms. Stoner maintains that she also received training from the ADC,
was required to abide by all ADC rules, and, if she failed to do so, could be barred from the ADC
facility by Warden Maples, effectively terminating her employment. She also contends that
Warden Maples indicated that he subjected CMS employees to the same standards as ADC
employees.
Upon her hire, Ms. Stoner received a copy of CMS’s Handbook. She admits the CMS
Handbook included a policy on “Institutional Action,” which states that a CMS employee

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normally will be terminated if the employee’s access to a facility is revoked by the ADC
because, without access to the facility, the CMS employee cannot get to work or perform any job
duties. She also admits the CMS Handbook contained provisions prohibiting sexual harassment,
requiring that sexual harassment be reported, and addressing retaliation.

CMS’s sexual

harassment policy, with which Ms. Stoner was familiar, further emphasized that employees must
report sexual harassment and also notified employees that falsification during an investigation
was “strictly prohibited” and would result in disciplinary action.
Ms. Stoner also received a copy of the ADC’s sexual harassment and reporting policies,
which like CMS’s policies state that sexual harassment will not be tolerated, requires an
employee to notify a supervisor when she or he is being sexually harassed, and includes antiretaliation language protecting individuals who report sexual harassment. Further, the ADC
provided Ms. Stoner with sexual harassment training that addressed what the ADC contends is a
zero tolerance for sexually inappropriate conduct and the requirement to report such conduct.
Ms. Stoner maintains that the ADC does not have a zero tolerance policy.
On June 4, 2009, Ms. Tiner was at the nurses’ station when she overheard Ms. Stoner
say, “I’m going to put a stop to this.” Ms. Tiner questioned Ms. Stoner about the comment, and
Ms. Stoner said that corrections officer Eric Wellman had acted inappropriately toward her. Ms.
Stoner then told Ms. Tiner that she was going to handle the situation herself.
Ms. Tiner reported her conversation with Ms. Stoner to Mr. Pratt, who then reported it to
ADC Major Linda Dixon. Ms. Dixon instructed Mr. Pratt to obtain a written statement from Ms.
Stoner. Ms. Dixon then interviewed Mr. Wellman in her office and obtained a written statement
from him.

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Mr. Wellman first claimed that he had never touched Ms. Stoner “sexually,” but admitted
to having Ms. Stoner’s cell phone number, claiming she gave it to him, and admitted to having
called her. The next day, after being placed on administrative leave, Mr. Wellman clarified that
he had rubbed Ms. Stoner’s shoulders but reported that Ms. Stoner did not indicate to him that
she found it offensive. Ms. Stoner maintains that Mr. Wellman was sexually harassing her,
obtained her phone number through unknown means, and inappropriately and sexually touched
her. Ms. Stoner asserts that she did find it offensive and moved away from him.
Ms. Stoner drafted the following statement regarding the matter:
On a Saturday in the month of March (not sure of date) I was in the pill room
pulling up pills and Officer Wellman came to the pharmacy door wanting to talk
with me. I let him in the pharmacy. I was standing on the left side of the room
and Officer Wellman was leaning on the cabinet on the other side of the room.
He started making sexual remarks to me like “I got something for you,” “I need to
come by and visit you at home,” and things that made me feel uncomfortable. I
asked him about the ring on his finger and he said it didn’t mean anything. I told
him it meant something to some woman. As I started out of the pharmacy Officer
Wellman came up behind me and ran his hands under my shirt at my waist. I
didn’t really say anything but that he shouldn’t do that. He laughed and said you
know you like it Ms. Stoner. On May 30 around noon Officer Wellman came to
medical stating he needed his blood pressure checked. I checked his blood
pressure and he asked how I had been. I tried to hurry up and get back around
into medical because I was feeling uncomfortable. He followed me behind the
desk and started massaging my shoulders. Officer Ponder was present on this 2nd
occurrence.
(Dkt. No. 44, ¶ 18). In her deposition, Ms. Stoner alleged that during this time Mr. Wellman
called her cell phone twice, though she did not answer, and stopped by her house once, leaving
after he learned she was not there.
Surveillance camera footage was retrieved for the May 30 incident but purportedly was
not available for the March incident. According to Ms. Dixon, the May 30 footage showed that
Officer Wellman walked into the nurses’ station before Ms. Stoner and rubbed her shoulders for

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approximately two to three minutes. Ms. Tiner indicated that Ms. Stoner did not appear to enjoy
or welcome the behavior.
On June 8, 2009, Ms. Stoner met with Mr. Pratt and defendant John Maples, who is the
Warden of the ADC’s Newport Complex. Warden Maples claims to stress the agency’s alleged
zero tolerance for sexual harassment and the importance of reporting it, but he has never
terminated anyone’s employment for failure to report sexual harassment. The parties agree that
Warden Maples was concerned about Ms. Stoner’s failure to report the incident and made his
concern known to Ms. Stoner. When asked by Warden Maples why she did not report Mr.
Wellman’s conduct until asked to do so, Ms. Stoner said she thought that she could take care of
the situation herself.

The parties agree that Ms. Stoner’s statements during this meeting

regarding the March and May incidents were consistent with what was in her written statement.
Ms. Stoner contends that, during the June 8 meeting, Warden Maples told her in an
intimidating manner that she was interfering with the livelihood of one of his officers and asked
her if she was sure this is what she wanted to do. Ms. Stoner maintains Warden Maples was
angry based on tone, volume, and facial expression. Ms. Stoner also alleges that Warden Maples
claimed that Ms. Stoner filed the charge because her sexual preference was women (Dkt. No. 43,
at 5).
Mr. Pratt described the meeting as “a straight-forward conversation of [Warden Maples]
questioning [Ms. Stoner],” but testified that Warden Maples talked more about Ms. Stoner
and her reporting obligations than Mr. Wellman’s conduct and that Warden Maples told Ms.
Stoner that she was putting people’s livelihoods at stake, particularly Mr. Wellman’s (Dkt. No.
44, ¶ 25).

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Immediately after the June 8 meeting, Warden Maples barred Ms. Stoner from the
Newport Complex, without having reviewed the surveillance footage. Mr. Pratt and Ms. Tiner
did not agree with Warden Maples’s decision, and both expressed their disagreement to Warden
Maples.

Mr. Pratt discussed the decision twice with Warden Maples, expressing his

disagreement both times. When Ms. Tiner heard of Warden Maples’s decision, she “got very
angry.” (Dkt. No. 47, ¶ 58). Because Ms. Stoner could not report to work, CMS placed her on
leave with pay. Warden Maples claims that, at this time, he had only temporarily barred Ms.
Stoner from the Newport Complex pending the outcome of the investigation.

Ms. Stoner

contends that alleged failure to report is not an offense that would lead to being barred from the
Newport Complex and that Warden Maples admits this.
On June 12, 2009, Warden Maples issued a memo permanently barring Ms. Stoner from
the Newport Complex.

Warden Maples contends that he permanently barred Ms. Stoner

because, after viewing the May 30 surveillance footage, he concluded that Ms. Stoner had
falsified her statement. Specifically, Warden Maples claims that the footage showed that Ms.
Stoner visited with Mr. Wellman “very non-chalant[ly]” for over two minutes after taking his
blood pressure, “just laid back, just talking,” and appearing very relaxed in his presence.
Further, although Ms. Stoner reported that she “tried to hurry up and get back around into
medical” and that Mr. Wellman “followed [her] behind the desk,” the footage according to
Warden Maples showed that Ms. Stoner first went down the corridor to visit another corrections
officer and that Mr. Wellman walked behind the desk first (Dkt. No. 44, ¶¶ 28, 29). The ADC
and Warden Maples contend that falsification is an extremely serious offense at the ADC and is a
first-time terminable offense under ADC policy. Absent some mitigating circumstance, Warden
Maples claims he always has terminated staff found to have falsified. Ms. Stoner disputes this.

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Ms. Stoner counters that Ms. Tiner did not think the footage indicated Ms. Stoner welcomed the
conduct. She maintains that Warden Maples, Mr. Pratt, and Ms. Tiner all acknowledged that
people have different reactions to harassment and that such a reaction may not include a strong
verbal or physical opposition. She also contends that Warden Maples admitted he could not say
if Ms. Stoner “wanted it”; that the view of Ms. Stoner on the footage during the back rubbing
was obstructed; and that it is understandable a person might forget the exact order in which she
went from room to room. Further, Ms. Stoner argues that her response to Mr. Wellman’s
conduct must be viewed with the understanding that she is a past victim of abuse. On June 19,
2009, after receiving Warden Maples’s memo permanently barring Ms. Stoner from the Newport
Complex, Mr. Pratt sent Ms. Stoner a letter discharging her pursuant to CMS’s policies as stated
in the CMS Handbook. Mr. Pratt and Ms. Tiner were unhappy that they were forced to discharge
Ms. Stoner due to her security clearance being revoked by Warden Maples. Mr. Pratt informed
Ms. Stoner in her termination letter that Ms. Stoner could apply for a job at another CMS facility,
though there was no other CMS facility in the area, and could use Mr. Pratt and Ms. Tiner as a
reference. Following a disciplinary hearing held in accordance with ADC policy, Mr. Wellman
also was terminated by the ADC for his inappropriate behavior.
On August 17, 2009, Ms. Stoner filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) against the ADC, alleging gender
discrimination and retaliation and receiving a right-to-sue letter on June 15, 2010. She filed this
action on September 13, 2010.
II.

Standard Of Review

Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact and that the defendant

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is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable
jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008).
“The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather,
the dispute must be outcome determinative under the prevailing law.” Holloway v. Pigman, 884
F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not
rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th
Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving
party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v.
Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
“There is no ‘discrimination case exception’ to the application of summary judgment,
which is a useful pretrial tool to determine whether any case, including one alleging
discrimination, merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011) (en banc) (citing Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)
(quoting Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)) (citing Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1118 (8th Cir. 2006))). “Because summary judgment is not
disfavored and is designed for ‘every action,’ panel statements to the contrary are unauthorized
and should not be followed.” Id. Accordingly, this Court applies the same summary judgment
standard to discrimination cases as it does to all others.

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III.

Overview Of Claims
A.

Claims Against The ADC

Ms. Stoner brings claims of Title VII gender discrimination, based on hostile work
environment and disparate treatment, and retaliation against the ADC. Title VII prohibits an
“employer” from discriminating “against any individual with respect to his compensation, terms,
conditions, or privileges of employment” on the basis of “sex,” 42 U.S.C. § 2000e-2(a)(1), or
from retaliating against an individual “because [she] has opposed any practice made an unlawful
employment practice by [Title VII], or because [she] has made a charge under [Title VII],” id. §
2000e-3(a). Accordingly, to begin, the Court must determine whether, under Title VII, the ADC
was Ms. Stoner’s “employer.”
Title VII defines the term “employer” as “a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year.” Id. § 2000e(b). To determine
whether a defendant is a Title VII “employer,” a “fact-intensive consideration of all aspects of
the working relationship between the parties” must be employed. Hunt v. State of Mo., Dep’t of
Corr., 297 F.3d 735, 741 (8th Cir. 2002) (citations omitted) (internal quotation marks omitted).
The Supreme Court and the Eighth Circuit have set forth the following 12 factors to consider:
the skill required; the source of the instrumentalities and tools; the location of the
work; the duration of the relationship between the parties; whether the hiring
party has the right to assign additional projects to the hired party; the extent of the
hired party’s discretion over when and how long to work; the method of payment;
the hired party’s role in hiring and paying assistants; whether the work is part of
the regular business of the hiring party; whether the hiring party is in business; the
provision of employee benefits; and the tax treatment of the hired party.
Schwieger v. Farm Bureau Ins. Co. of N.E., 207 F.3d 480, 484 (2000) (quoting Nationwide Mut.
Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)). While the “primary consideration” is who has

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the “right to control the manner and means by which tasks are accomplished,” no single factor is
decisive. Hunt, 297 F.3d at 741. Further, “the list of factors is nonexhaustive and the inquiry
must take into account the ‘economic realities’ of the worker’s situation,” such as “how the work
relationship may be terminated and whether the worker receives yearly leave.” Schwieger, 207
F.3d at 484.
The ADC argues that application of the 12 factors shows it was not Ms. Stoner’s
“employer.” In response, Ms. Stoner does not apply the 12 factors but instead argues that the
ADC should be held liable under an “indirect theory of liability,” as advanced in Sibley
Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973). The rationale of Sibley, as
explained by the D.C. Circuit, is that:
[c]ontrol over access to the job market may reside, depending upon the
circumstances of the case, in a labor organization, an employment agency, or an
employer as defined in Title VII; and it would appear that Congress has
determined to prohibit each of these from exerting any power it may have to
foreclose, on indivious grounds, access by any individual to employment
opportunities otherwise available to him. To permit a covered employer to
exploit circumstances peculiarly affording it the capability of discriminatorily
interfering with an individual’s employment opportunities with another employer,
while it could not do so with respect to employment in its own service, would be
to condone continued use of the very criteria for employment that Congress has
prohibited.
Id. at 1341. While the Eighth Circuit has not directly addressed the matter, it has stated that:
“Title VII of the Civil Rights Act of 1964 is to be accorded a liberal construction in order to
carry out the purposes of Congress to eliminate the inconvenience, unfairness and humiliation of
racial discrimination.

Such liberal construction is also to be given to the definition of

‘employer.’” Baker v. Stuart Broad. Co., 560 F.2d 389, 391 (8th Cir. 1977) (citing Sibley, 488
F.2d 1338) (other citations omitted). Further, district courts in the Eighth Circuit have followed
the spirit of Sibley and Baker. See Bone v. G4S Youth Servs., LLC, 2010 WL 1980845, at *3

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(E.D. Ark. May 14, 2010) (citing Baker, 560 F.2d at 391); Trimble v. BNSF Ry. Co., 636 F.
Supp. 2d 916, 924 (D. Neb. 2009) (holding that under Title VII “no direct employment
relationship is required”); Daud v. Golden Pump Poultry, Inc., 2007 WL 1621386, at *6 (D.
Minn. May 11, 2007); Dunn v. St. Louis Cnty., 1989 WL 35541, at *2 (E.D. Mo. Mar. 31, 1989)
(unpublished). This Court will do so as well.
Further, even when considering the 12 factors as outlined by the ADC, the Court
determines the ADC may be considered Ms. Stoner’s employer under Title VII. The Court
reaches this conclusion based on the facts in the record regarding the ADC’s training of CMS
employees on sexual harassment policies and reporting requirements, Warden Maples’s view
that he holds CMS employees accountable to the same standards as ADC employees, and
Warden Maples’s ability to ban a CMS employee from the Newport Complex, effectively
terminating his or her employment. These facts inform the Court’s decision, given that no single
factor is decisive and that “the inquiry must take into account the ‘economic realities’ of the
worker’s situation,” such as “how the work relationship may be terminated . . . .” See Schwieger,
207 F.3d at 484.
B.

Claims Against Warden Maples

Ms. Stoner brings claims of gender discrimination, based on disparate treatment, and
retaliation against Warden Maples, in his individual and official capacities, under § 1983 and the
ACRA. Ms. Stoner does not bring Title VII claims against Warden Maples, as an individual
employee cannot be held personally liable under Title VII. See Bales v. Wal-Mart Stores, Inc.,
143 F.3d 1103, 1111 (8th Cir. 1998). In her response to the summary judgment motion, Ms.
Stoner concedes that Warden Maples in his official capacity, like the ADC itself, is absolutely
immune from suit under the ACRA (Dkt. No. 42, ¶ 3).

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“To establish a violation of § 1983, the plaintiff must show the deprivation was (1) a right
secured by the Constitution and laws of the United States, and (2) caused by a person or persons
acting under the color of state law.” Tipler v. Douglas Cnty., 482 F.3d 1023, 1027 (8th Cir.
2007) (citing Hicks v. St. Mary’s Honor Ctr., 970 F.2d 487, 490-91 (8th Cir. 1992), rev’d on
other grounds, 509 U.S. 502, 506 n.1 (1993); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155
(1978); Creason v. City of Wash., 435 F.3d 820, 823 (8th Cir. 2006)). Likewise, “[t]he ACRA
provides a cause of action for damages for ‘the deprivation of any rights . . . secured by the
Arkansas Constitution’ by any person acting under color of state law,” and “further provides that,
in construing this section, ‘a court may look for guidance to state and federal decisions
interpreting . . . 42 U.S.C. § 1983.’” Smith v. Insley’s Inc., 499 F.3d 875, 882 (8th Cir. 2007)
(quoting Ark. Code Ann. § 16-123-105). As to the first requirement, Ms. Stoner’s right to be
free from gender discrimination is secured by the equal protection clause of the Fourteenth
Amendment, Tipler, 482 F.3d at 1027 (citing United States v. Virginia, 518 U.S. 515, 532
(1996)), and Ms. Stoner’s right to be free from retaliation based on protected speech is secured
by the First Amendment, see McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 865 (8th
Cir. 2009). As to the second requirement, “[p]rison authorities are clearly person[s] acting under
color of state law.” Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994) (alteration in original)
(quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981)) (internal quotation marks omitted). Thus,
Ms. Stoner may bring her claims under § 1983 and the ACRA.
C.

Claims Against CMS

Ms. Stoner brings claims of gender discrimination, based on hostile work environment
and disparate treatment, and retaliation against CMS under Title VII and the ACRA. She also
claimed that CMS violated her free speech under the United States and Arkansas Constitutions

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but now moves to dismiss voluntarily those claims. Accordingly, Ms. Stoner’s free speech claim
against CMS is dismissed.
Ms. Stoner argues that CMS is liable for the ADC and Warden Maples’s discriminatory
and retaliatory actions toward her. In support of this theory, Ms. Stoner points to cases finding
that an employer may be liable for sexual harassment of an employee by a third party, see
Lockard v. Pizza Hut, 162 F.3d 1062, 1073-74 (10th Cir. 1998); Whitaker v. Carney, 778 F.2d
216, 221 (5th Cir. 1985); Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1982), and a
case where an employer was held liable for conditioning employment on submission to sexual
demands of a client, see Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir.
1982). Like the circuits cited by Ms. Stoner, the Eighth Circuit appears to have held that, under
certain circumstances, an employer may be liable for a hostile work environment created by a
third party. See Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111-12 (8th Cir. 1997) (finding that
a home for developmentally-disabled patients could be liable for a hostile work environment
created by a third party resident against an employee because the home “clearly controlled the
environment in which [the third party resident] resided, and it had the ability to alter those
conditions to a substantial degree”). Based solely on these cases, Ms. Stoner claims that it is
reasonable to hold an employer responsible for a third party’s alleged disparate treatment and
retaliation.
However, this Court declines to extend Title VII employer liability to third party
disparate treatment and retaliation, as Ms. Stoner only produces cases extending employer
liability for third party sexual harassment. Moreover, Ms. Stoner makes no arguments as to
CMS’s own discriminatory or retaliatory intent. Instead, based on her theory of third party
liability, Ms. Stoner’s response to CMS’s motion for summary judgment relies on her response

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to the ADC and Warden Maples’s motion for summary judgment to show “discriminatory intent,
retaliatory intent, the hostility of the work environment, welcomeness of the conduct, and
whether or not appropriate remedial action was taken” (Dkt. No. 46, at 2). With this in mind, the
Court will analyze Ms. Stoner’s claims against CMS below.
IV.

Gender Discrimination Claims
A.

Hostile Environment Claims Against The ADC And CMS

Ms. Stoner brings Title VII hostile work environment claims against the ADC and CMS.
To state a prima facie claim for hostile work environment harassment by non-supervisory coworkers, a plaintiff must establish: “(1) membership in a protected group; (2) the occurrence of
unwelcome harassment; (3) a causal nexus between the harassment and her membership in the
protected group; (4) that the harassment affected a term, condition, or privilege of employment;
and (5) that the employer knew or should have known of the harassment and failed to take
prompt and effective remedial action.” Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.
1999). To state a claim of harassment by supervisors, only the first four factors are required.
See Anderson v. Family Dollar Stores of Ark., 579 F.3d 858, 862 (8th Cir. 2009). To hold an
employer liable for hostile work environment harassment by a third party, which appears to be
possible under Eighth Circuit precedent, all five factors must be met, and the employer must
have “clearly controlled the environment in which [the third party acted] and [have] had the
ability to alter those conditions to a substantial degree.” See Crist, 122 F.3d at 1111-12.
As to Ms. Stoner’s hostile work environment claim against the ADC, it is unclear
whether Ms. Stoner bases her claim solely on Mr. Wellman’s alleged conduct or whether she
claims that Warden Maples added to the hostile work environment. The Supreme Court, in
National Railroad Passenger Corp. v. Morgan, held that a “hostile work environment claim is
composed of a series of separate acts that collectively constitute one ‘unlawful employment
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practice.’ . . . A court’s task is to determine whether the acts about which an employee
complains are part of the same actionable hostile work environment practice.” 536 U.S. 101,
117, 120 (2002). Acts “so similar in nature, frequency, and severity . . . must be considered to
be part and parcel of the hostile work environment that constituted the unlawful employment
practice that gave rise to th[e] action.” Jenkins v. Mabus, 646 F.3d 1023, 1027 (8th Cir. 2011)
(alterations in original) (quoting Wilkie v. Dep’t of Health and Human Servs., 638 F.3d 944, 951
(8th Cir. 2011) (quoting Rowe v. Hussman Corp., 381 F.3d 775, 779 (8th Cir. 2004))). The
Court finds that any alleged harassment by Warden Maples is not part of the same employment
practice as the alleged harassment by Mr. Wellman and that the claims should be considered
separately. Here, the alleged conduct was committed by different actors—Mr. Wellman and
Warden Maples—and the alleged harassment seems to have been motivated by different animus.
See Noviello v. City of Boston, 398 F.3d 76, 87 (1st Cir. 2005) (“[A] claimant must show at a
bare minimum a series of discriminatory acts that emanate from the same discriminatory
animus.”); Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 790-91 (6th Cir. 2000);
Bergbauer v. Mabus, 934 F. Supp. 2d 55, 69-70 (D.D.C. 2013). Specifically, Mr. Wellman’s
alleged harassment was based on sex, while Warden Maples’s alleged harassment was based on
retaliation. Gender discrimination and retaliation are made unlawful employment practices in
separate sections of Title VII and appear to be distinct unlawful practices despite both being
actionable as hostile work environment claims.

See 42 U.S.C. §§ 200e-2(a) (gender

discrimination), 2000e-3(a) (retaliation).
For these reasons, the Court first analyzes Ms. Stoner’s claim against the ADC based on
Mr. Wellman’s conduct under the non-supervisory standard and then her claim based on Warden
Maples’s conduct under the supervisor standard. Further, Ms. Stoner does not allege that CMS’s

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own conduct created a hostile work environment but instead argues that CMS should be held
liable for the conduct of Mr. Wellman and Warden Maples. Because both Mr. Wellman and
Warden Maples are third parties as to CMS, the Court analyzes Ms. Stoner’s claim against CMS
under the third party standard.
The ADC does not dispute that Ms. Stoner has shown the first three factors: she is a
member of a protected group, the harassment was unwelcome, and there is a causal nexus
between the harassment and her membership in the protected group. Instead, the ADC focuses
on the fourth and the fifth factors.
Regarding the fourth factor, “[h]arassment affects a term, condition, or privilege of
employment if it is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive work environment.’” Ottman v. City of Independence, 341
F.3d 751, 760 (8th Cir. 2003) (citing Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.
1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (2003))). “To be actionable,
harassment must be both objectively and subjectively offensive, such that a reasonable person
would consider it to be hostile or abusive, and courts make this determination by looking at all
the circumstances, including the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.” Breeding v. Arthur J. Gallagher
& Co., 164 F.3d 1151, 1158 (8th Cir. 1999) (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)) (internal quotation marks omitted). “[C]onduct must be extreme to amount to a
change in the terms and conditions of employment.”

Ottman, 341 F.3d at 760 (quoting

Faragher, 524 U.S. at 788). To prove a hostile work environment that violates Title VII, “[t]he
plaintiff must show a practice or pattern of harassment against her or him; a single incident or

16

isolated incidents generally will not be sufficient. The plaintiff must generally show that the
harassment is sustained and nontrivial.” Moylan v. Maries Cnty., 792 F.2d 746, 749-50 (8th Cir.
1986). The “objective severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal quotation marks omitted); see
Harris, 510 U.S. at 21; Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 962 n.3 (8th Cir.
1993). Accordingly, once there is evidence of improper conduct and subjective offense, the
determination of “[w]hether that conduct rose to the level of sexual harassment is usually a
factual determination for the jury.” Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 456 (8th Cir.
2001); see Howard, 149 F.3d at 840.
As to Ms. Stoner’s hostile work environment claim based on Mr. Wellman’s conduct,
Ms. Stoner alleges that, over a two-month period, the following events occurred: in March of
2009, Mr. Wellman told Ms. Stoner that “I got something for you,” and “I need to come by and
visit you at home”; Mr. Wellman put his hands under Ms. Stoner’s shirt at her waist and said
“you know you like it Ms. Stoner”; and Mr. Wellman called Ms. Stoner’s cell phone twice,
though she did not answer, and stopped by her house once, leaving after he learned she was not
there; and Mr. Wellman rubbed Ms. Stoner’s shoulders in May of 2009. Warden Maples, Mr.
Pratt, and Ms. Tiner all considered Mr. Wellman’s conduct to be sexual harassment appropriate
for Ms. Stoner to complain about.
The Court determines a reasonable juror could find that the frequency and severity of Mr.
Wellman’s conduct over a two-month period directed toward Ms. Stoner creates a hostile work
environment. See Phillips v. Taco Bell Corp., 156 F.3d 884, 888-89 (8th Cir. 1998) (finding a
genuine issue of material fact regarding a hostile work environment where only five instances of

17

sexual harassment occurred in a period of several months); Reedy v. Quebecor Printing Eagle,
Inc., 333 F.3d 906, 908-10 (8th Cir. 2003) (finding ten instances of racial harassment in seven
months sufficient to create hostile work environment). Moreover, a reasonable juror could
conclude that Mr. Wellman’s conduct was physically threatening, as Ms. Stoner received
unwanted phone calls and house visits, and that his conduct interfered with Ms. Stoner’s work
performance, as she endured unwanted physical contact at her work station. See Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 68 (1986) (finding that voluntary submission to sexual conduct
does not mean the conduct was welcome); Bundy v. Jackson, 641 F.2d 934, 946 (D.C. Cir. 1981)
(“It may even be pointless to require the employee to prove that she ‘resisted’ the harassment at
all. . . . She neither accepts nor rejects the advances; she simply endures them.”) For these
reasons, the Court determines that the question of whether Mr. Wellman’s conduct rose to the
level of sexual harassment is a factual determination that should be left for the jury. See Moring,
243 F.3d at 456.
To state a prima facie claim for hostile work environment harassment by a nonsupervisory co-worker such as Mr. Wellman, Ms. Stoner also must establish that her employer
knew or should have known of the harassment and failed to take prompt and effective remedial
action. The Court concludes that, as to this fifth factor, Ms. Stoner’s prima facie claim based on
Mr. Wellman’s alleged conduct also fails. “If an employer responds to harassment with prompt
remedial action calculated to end it, then the employer is not liable for the harassment.” Alvarez
v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 421 (8th Cir. 2010). “Factors in assessing the
reasonableness of remedial measures may include the amount of time that elapsed between the
notice and remedial action, the options available to the employer, . . . and whether or not the
measures ended the harassment.” Carter, 173 F.3d at 702 (citations omitted).

18

The ADC contends it cannot be held liable because there is no evidence that it failed to
take prompt and effective remedial action after learning of the allegations; instead, the ADC
argues that the undisputed facts show that, as soon as it learned of the allegations, it conducted
an investigation, placed Mr. Wellman on leave, and subsequently terminated him. Ms. Stoner
counters that the ADC failed to take prompt and effective remedial action because, before
eventually dealing with Mr. Wellman, the ADC subjected her to further harassment by Warden
Maples, who then barred her from the Newport Complex, effectively terminating her
employment. However, as discussed above, Warden Maples and Mr. Wellman’s conduct are not
part of the same actionable hostile work environment practice and must be considered separately.
Although the parties disagree as to the relevancy of Warden Maples’s conduct, the parties
do not dispute that, when Ms. Tiner heard Ms. Stoner’s comments initially, she inquired of Ms.
Stoner, reported the alleged harassment to Mr. Pratt, who in turn reported it to Major Dixon of
the ADC. The ADC then suspended Mr. Wellman pending the outcome of the investigation and
eventually terminated his employment due to his conduct.

These acts by the ADC were

“reasonably calculated to stop the harassment.” Id. For these reasons, the Court grants the ADC
summary judgment on Ms. Stoner’s hostile work environment claim based on Mr. Wellman’s
alleged conduct.

Because the Court concludes the ADC cannot be held liable for hostile

environment sexual harassment based on Mr. Wellman’s alleged conduct, the Court also
concludes that CMS cannot be held liable as a third-party for such alleged conduct and grants
CMS summary judgment on this claim.
Considering Ms. Stoner’s claim that Warden Maples created a hostile work environment,
the Court determines Ms. Stoner does not satisfy the fourth factor. Ms. Stoner argues that
Warden Maples barred her from the facility after hearing her allegations, effectively firing her;

19

spent most of his time criticizing her for not immediately reporting the misconduct; and told her
that she was going to cost one of his correctional officers his job and that she probably was
saying this because she liked women better than men. On the record before it and given
controlling case law, the Court declines to find that these allegations involving Warden Maples,
even if true, suffice as a matter of law to establish a prima facie claim of hostile environment
sexual harassment. See Moylan, 792 F.2d at 749-50 (“The plaintiff must show a practice or
pattern of harassment,” not “a single incident or isolated incidents.”).

Because the Court

concludes the ADC cannot be held liable for hostile environment sexual harassment based on
Warden Maples’s alleged conduct, the Court also concludes that CMS cannot be held liable as a
third-party for such alleged conduct and grants CMS summary judgment on this claim.
B.

Disparate Treatment Claims Against The ADC, Warden Maples, And
CMS

Ms. Stoner brings a claim for gender discrimination based on disparate treatment against
the ADC and CMS under Title VII, against Warden Maples under 42 U.S.C. § 1983, and against
Warden Maples and CMS under the ACRA.

Section 1983 disparate treatment claims are

analyzed under the same framework as Title VII disparate treatment claims. See Richmond v.
Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992) (applying the same analysis
to discrimination claims under Title VII, § 1981, § 1983; and the Age Discrimination in
Employment Act); Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986) (confining
discussion of plaintiff’s claims to Title VII after finding that “[t]he inquiry into intentional
discrimination is essentially the same for individual actions brought under §§ 1981 and 1983”);
Craik v. Minn. State Univ. Bd., 731 F.2d 465, 468 n.5 (8th Cir. 1984) (“The issue of
discriminatory intent is common to analyses under the Fourteenth Amendment, § 1983, and Title

20

VII.”). Likewise, disparate treatment claims under the ACRA are analyzed in the same manner
as those brought under Title VII and § 1983. See McCullough, 559 F.3d at 860.
To begin, the ADC and Warden Maples argue that Ms. Stoner’s disparate treatment claim
should be dismissed because she asserts it for the first time in her response to the ADC and
Warden Maples’s motion for summary judgment.

Ms. Stoner’s complaint states that

“[d]efendants [ADC] and CMS have violated Title VII of federal law by virtue of gender
discrimination and retaliation for complaining of gender discrimination in the form of creating a
hostile work environment, suspending her, and firing her” and “[d]efendant Maples has violated
Plaintiff’s rights to equal protection of the laws by virtue of his gender discrimination and
retaliation for complaining of it” (Dkt. No. 1, at 3). In the complaint’s factual allegations, Ms.
Stoner sets forth a history of sexual harassment by Mr. Wellman, her complaints, and the
conduct of Warden Maples that eventually led to her termination. The Court finds that these
allegations sufficiently state a claim of gender discrimination based on disparate treatment and
that such a claim is not being asserted for the first time here. Therefore, the Court will examine
the claims.
Ms. Stoner can establish a prima facie claim of gender discrimination either by providing
direct evidence of discrimination or by creating an inference of unlawful discrimination under
the three-step analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973). Bone, 686 F.3d at 953. Direct evidence is evidence “showing a specific link between
the alleged discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated” the adverse employment
action. Torgerson, 643 F.3d at 1043-44 (quoting Griffith v. City of Des Moines, 387 F.3d 733,
736 (8th Cir. 2004)). “Thus, ‘direct’ refers to the causal strength of the proof, not whether it is

21

‘circumstantial’ evidence. A plaintiff with strong direct evidence that illegal discrimination
motivated the employer’s adverse action does not need the three-part McDonnell Douglas
analysis to get to the jury, irrespective of whether her strong evidence is circumstantial.” Id. at
1044. However, “if the plaintiff lacks evidence that clearly points to the presence of an illegal
motive, [s]he must avoid summary judgment by creating the requisite inference of unlawful
discrimination through the McDonnell Douglas analysis, including sufficient evidence of
pretext.” Id.
1.

Direct Evidence Analysis

“To be entitled to direct evidence analysis, the plaintiff must present evidence of conduct
or statements by persons involved in the decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that
attitude was more likely than not a motivating factor in the employer’s decision.” Rivers-Frison
v. Se. Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998) (internal quotation marks
omitted).

“[N]ot every prejudiced remark made at work supports an inference of illegal

employment discrimination.” Id. Rather, “[d]irect evidence of employment discrimination must
have some connection to the employment relationship.” Id. Direct evidence of discrimination is
not established by mere “stray remarks in the workplace, statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process.” Id. (quoting Beshears v.
Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)).
Ms. Stoner offers two statements allegedly made by Warden Maples as direct evidence of
the ADC and Warden Maples’s gender discrimination. First, Warden Maples allegedly told Ms.
Stoner that, by complaining of sexual harassment, she was interfering with Mr. Wellman’s
livelihood. Second, Warden Maples allegedly said that Ms. Stoner was probably complaining

22

only because she liked women better than men. The ADC and Warden Maples argue that, even
if said, Warden Maples’s alleged statements only observe the impact of Ms. Stoner’s accusations
and question her motivation; they do not provide direct evidence that Warden Maples was biased
against her gender. However, Ms. Stoner contends that Warden Maples admits that, if he made
these comments, such conduct would evidence sexism (Dkt. No. 43, at 24).
This Court concludes that a reasonable juror could find the first statement, if made,
reflects Warden Maples’s alleged discriminatory attitude regarding women. See Rivers-Frison,
133 F.3d at 619. Specifically, Warden Maples’s alleged focus on Mr. Wellman’s livelihood
could reflect a discriminatory attitude that stopping harassment of women is less important than a
male correctional officer’s livelihood. Warden Maples was a person involved in the decision
making process and made the alleged statement in connection with the ADC and Ms. Stoner’s
employment relationship. See id. Accordingly, the Court determines that Warden Maples’s first
statement constitutes direct evidence, allowing Ms. Stoner’s disparate treatment claim against the
ADC and Warden Maples to survive summary judgment under a direct evidence analysis.
The Court is less convinced that Warden Maples’s other alleged statement regarding Ms.
Stoner’s motivation could reflect a discriminatory attitude regarding women, although it might
demonstrate an attitude that straight women would welcome Mr. Wellman’s conduct. Moreover,
in support of her claim, Ms. Stoner also asserts as direct evidence Warden Maples’s suspension
of Ms. Stoner, his analysis of the surveillance footage, and his treatment of alleged comparators.
None of this shows a specific link between the alleged discriminatory animus and the challenged
decision and, thus, is more appropriately considered in a McDonnell Douglas analysis.
Ms. Stoner has offered no direct evidence of CMS’s gender discrimination.

23

2.

McDonnell Douglas Analysis

Under the McDonnell Douglas framework, “the plaintiff bears the burden of establishing
a prima facie case of discrimination.” McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir.
2007). To make out a prima facie case of gender discrimination, a plaintiff must show that she:
“(1) is a member of a protected class; (2) was qualified for her job; (3) suffered an adverse
employment action; and (4) alleged facts that give rise to an inference of gender discrimination.”
Norman v. Union Pac. R.R. Co., 606 F.3d 455, 460-61 (8th Cir. 2010) (citing McGinnis, 496
F.3d at 874). If a plaintiff makes out a prima facie case, she “creates a presumption of unlawful
discrimination, rebuttable through the showing of a legitimate nondiscriminatory reason for the
action.” Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 990 (8th Cir. 2011). Lastly, a plaintiff
“may still demonstrate the employer’s proffered reason was pretextual and unlawful
discrimination was a motivating factor in the adverse employment decision.” Id.
Ms. Stoner has shown the first three factors, as she is a member of a protected class, was
qualified for her job, and suffered an adverse employment action. “[A] plaintiff can satisfy the
fourth part of the prima facie case in a variety of ways, such as by showing more-favorable
treatment of similarly-situated employees who are not in the protected class, or biased comments
by a decisionmaker.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011) (citing Lewis v.
Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039-40 (8th Cir. 2010)). The Eighth Circuit “has
two lines of cases on the standard to determine whether employees are ‘similarly situated’ at the
prima facie stage of the McDonnell Douglas test.” Id. at 1019 (quoting Wimbley v. Cashion, 588
F.3d 959, 962 (8th Cir. 2009)). The first line of cases “sets a low threshold, requiring only that
the employees are involved in or accused of the same or similar conduct and are disciplined in
different ways.” Id. at 1019 (internal quotation marks omitted). The other line of cases “more

24

rigorously requires that the employees be similarly situated in all respects.”

Id. (internal

quotation marks omitted).
Ms. Stoner has made a prima facie case against the ADC and Warden Maples for gender
discrimination under either line of cases. Ms. Stoner—who complained of sexual harassment
and then was barred from the facility by Warden Maples, allegedly because of her dishonesty—
offers seven comparators (Dkt. No. 43, at 12-13). Of the seven offered, at least two are similarly
situated employees who are not in the protected class but allegedly received more favorable
treatment than Ms. Stoner. Those two are male ADC employees who sexually harassed a
woman and then lied about it, yet only received an oral reprimand. Ms. Stoner claims that their
files reveal no justification for the lies that would merit not being fired, and ADC and Warden
Maples offer no evidence to refute her claim. Considering as comparators only the two men who
received an oral reprimand for lying, along with Warden Maples’s allegedly biased comments
discussed above under the direct evidence analysis, the Court concludes that Ms. Stoner has
made a prima facie case of gender discrimination against the ADC and Warden Maples.
Because Ms. Stoner has established a prima facie case of discrimination against the ADC
and Warden Maples, the burden shifts to the ADC and Warden Maples to show that there was a
legitimate, nondiscriminatory reason for their adverse actions. “This burden is not onerous.”
Bone, 686 F.3d at 954. Courts do not “sit as super-personnel departments reviewing the wisdom
or fairness of the business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.” Id. at 955 (internal quotation marks omitted).
Defendants need only proffer a good-faith reason for their action. Id. The ADC and Warden
Maples offer Ms. Stoner’s dishonesty as a legitimate, nondiscriminatory reason for barring her
from the Newport Complex.

25

Because the ADC and Warden Maples have articulated what appears to be a legitimate,
nondiscriminatory reason to terminate Ms. Stoner, “the presumption of discrimination
disappears,” and the burden of persuasion shifts back to Ms. Stoner “to prove that the proffered
justification is merely a pretext for discrimination.” Id. (quoting Pope v. ESA Servs., Inc., 406
F.3d 1001, 1007 (8th Cir. 2005)). The Eighth Circuit has explained that “[t]here are at least two
ways a plaintiff may demonstrate a material question of fact regarding pretext.” Torgerson, 643
F.3d at 1047. First, “[a] plaintiff may show that the employer’s explanation is unworthy of
credence . . . because it has no basis in fact. Alternatively, a plaintiff may show pretext by
persuading the court that a [prohibited] reason more likely motivated the employer.”

Id.

(alteration in original) (citations omitted) (internal quotation marks omitted).
Like a prima facie case, pretext can be shown where a plaintiff is treated worse than a
similarly situated person not in the protected class. See Wilmington v. J.I. Case Co., 793 F.2d
909, 916 (8th Cir. 1986). However, the Eighth Circuit has held that, “[a]t the pretext stage, the
test for determining whether employees are similarly situated to a plaintiff is a rigorous one.”
Bone, 686 F.3d at 956 (internal quotation marks omitted). A plaintiff “must show that she and
the employees outside of her protected group were similarly situated in all relevant respects.” Id.
(internal quotation marks omitted). The potential comparators “must have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same conduct without
any mitigating or distinguishing circumstances.” Id. (quoting Clark v. Runyon, 218 F.3d 915,
918 (8th Cir. 2000)). Further, “[t]o be probative evidence of pretext, the misconduct of more
leniently disciplined employees must be of comparable seriousness.” Id. (alteration in original)
(internal quotation marks omitted).

26

The two male ADC employees who sexually harassed a woman and then lied about it, yet
only received an oral reprimand, are still similarly situated to Ms. Stoner under the pretext stage
standard. All distinguishing circumstances are irrelevant, and the ADC and Warden Maples do
not provide mitigating circumstances. One distinguishing circumstance is that the two men were
accused of lying about their sexual harassment, while Ms. Stoner was accused of lying about her
complaints of alleged sexual harassment. However, the two men’s actions are either as serious
as Ms. Stoner’s alleged actions—merely lying—or are more serious—sexually harassing a coworker and then lying—but they received more lenient treatment.

Another distinguishing

circumstance is that the two men were ADC employees under Warden Maples’s direct control,
whereas Ms. Stoner was a CMS employee who Warden Maples could only discipline by barring
her from the Newport Complex. But barring Ms. Stoner effectively terminated her employment
with CMS, and Warden Maples likely would have foresaw that result. In sum, Ms. Stoner and
the two men are similarly situated because they: dealt with the same supervisor, Warden Maples;
were subject to the same standards, ADC policies against dishonesty; and engaged in the same
conduct, lying about sexual harassment, which, if anything, could be viewed as more serious on
the part of the two men who were more leniently treated.
For these reasons, the Court determines that a reasonable juror could conclude, based on
a review of the record evidence in the light most favorable to Ms. Stoner, that the ADC and
Warden Maples’s legitimate, nondiscriminatory reason of Ms. Stoner’s dishonesty is merely a
pretext for disparate treatment. These issues are for the jury to resolve. Ms. Stoner’s claim of
gender discrimination based on disparate treatment will continue to trial as against the ADC and
Warden Maples.

27

The Court concludes, however, that Ms. Stoner has not made a prima facie case of
CMS’s gender discrimination. Ms. Stoner has not alleged that CMS treated male nurses more
favorably or alleged that CMS or CMS’s decision makers made biased comments. In fact, Ms.
Stoner admitted in her deposition that CMS did not discriminate against her based on gender
(Dkt. No. 37, at 11-12), and the parties agree that Mr. Pratt and Ms. Tiner immediately reported
Ms. Stoner’s complaints of sexual harassment to ADC employees and expressed disagreement to
Warden Maples regarding his decision to bar Ms. Stoner. Even so, Ms. Stoner argues that CMS
should have elevated its disagreement to the “head of ADC, and to the governor.” However, Ms.
Stoner provides no evidence that such an appeal procedure existed or that Warden Maples’s
decision could have been overturned; in fact, if it had existed or could have been overturned, Ms.
Stoner likely would have made such an effort herself, but provides no evidence that she did so.
Lastly, Ms. Stoner relies on her argument that CMS should be held liable for the ADC and
Warden Maples’s discriminatory conduct. For the reasons explained above, the Court rejects
that argument. Under the record evidence presented here, the Court grants CMS summary
judgment as to Ms. Stoner’s disparate treatment gender discrimination claim.
IV.

Retaliation Claims
A.

Title VII Retaliation Claim Against The ADC

“To establish a prima facie case of retaliation [under Title VII], an employee has the
initial burden of establishing retaliation by showing that (1) she engaged in protected conduct;
(2) she suffered a materially adverse employment action; and (3) the adverse action was causally
linked to the protected conduct.” Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728 F.3d
800, 804 (8th Cir. 2013) (citing Pye, 641 F.3d at 1021). Unlike First Amendment retaliation
claims, which require retaliation merely to be a substantial or motivating factor, “Title VII

28

retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged
employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2521 (2013).
“Title VII retaliation claims must be proved according to traditional principles of but-for
causation . . . . This requires proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Id. at 2533.
While unclear what framework should be applied to Title VII retaliation claims following
the Supreme Court’s decision in Nassar that “but-for” is the correct causation standard, this
Court notes that at least two circuit courts have continued to apply the McDonnell Douglas
framework to retaliation claims. See Bishop v. Ohio Dep’t of Rehab. & Corr., 2013 WL
3388481, *7-12 (6th Cir. July 9, 2013) (unpublished); Nicholson v. City of Clarksville, 2013 WL
3746098, *11-13 (6th Cir. July 17, 2013) (unpublished); Coleman v. Jason Pharm., 2013 WL
5203559, *1-2 (5th Cir. Sept. 17, 2013) (unpublished). The Eighth Circuit has not yet ruled on
the matter. Regardless, the Court finds that Ms. Stoner has established a “but-for” causal link
with or without the McDonnell Douglas framework.
Ms. Stoner claims that, during the June 8 meeting, Warden Maples told her in an
intimidating manner that she was interfering with the livelihood of one of his officers and asked
her if she was sure this is what she wanted to do. Ms. Stoner maintains that Warden Maples was
angry based on tone, volume, and facial expression. Ms. Stoner also alleges that Warden Maples
claimed that Ms. Stoner filed the charge because her sexual preference was women. Mr. Pratt
agreed that, during the meeting, Warden Maples talked more about Ms. Stoner and her reporting
obligations than Mr. Wellman’s conduct and that Warden Maples told Ms. Stoner that she was
putting people’s livelihoods at stake, particularly Mr. Wellman’s. After the June 8 meeting,
Warden Maples barred Ms. Stoner from the Newport Complex immediately, without having

29

reviewed the surveillance footage first. After viewing the footage, on June 12, 2009, Warden
Maples issued a memo permanently barring Ms. Stoner from the Newport Complex. Mr. Pratt
and Ms. Tiner disagreed with Warden Maples’s decision, and Ms. Tiner with his reasoning, and
both expressed their disagreement to Warden Maples. Viewing the record evidence in the light
most favorable to Ms. Stoner, a reasonable juror could conclude that Warden Maples’s desire to
retaliate against Ms. Stoner for her complaint was the “but-for” cause of his decision to bar her
from the Newport Complex.
Warden Maples offers two legitimate, nondiscriminatory reasons for barring Ms. Stoner.
First, Warden Maples claims that, at the June 8 meeting, he only temporarily barred Ms. Stoner
to facilitate a fair investigation. However, a reasonable juror could conclude that this reason is
pretext, as there is no evidence Warden Maples temporarily bars all employees who make a
complaint or that it is ADC policy to do so, the record does not indicate a pronouncement by
Warden Maples at the time that his act was “temporary,” and, even if temporary, Ms. Stoner
could have been withheld pay if CMS had decided to do so based on Warden Maples’s decision.
See Torgerson, 643 F.3d at 1047 (holding than plaintiff can prove pretext by showing that
“employer’s explanation is unworthy of credence . . . because it has no basis in fact” (alteration
in original) (internal quotation marks omitted)). Further, Ms. Stoner contends that alleged failure
to report is not an offense that would lead to being barred from the Newport Complex, and that
Warden Maples admits this.
Second, Warden Maples contends that he permanently barred Ms. Stoner on June 12
because, after viewing the May 30 surveillance footage, he concluded that Ms. Stoner had
falsified her statement complaining of Mr. Wellman’s conduct. Based on evidence in the record,
viewed in the light most favorable to Ms. Stoner, a reasonable juror could reject Warden

30

Maples’s purportedly belated justification for barring Ms. Stoner from the Newport Complex as
pretext. See id. Ms. Tiner did not agree with Warden Maples’s conclusion as to Ms. Stoner’s
truthfulness. Warden Maples’s conclusion regarding Ms. Stoner’s alleged dishonesty based on
his review of the surveillance footage differed from the conclusions drawn by others who viewed
the footage. Additionally, based on the timing of events, a reasonable juror could find that
Warden Maples drew his conclusion of Ms. Stoner’s alleged dishonesty from the surveillance
footage in an effort to justify his prior decision to bar Ms. Stoner.
Based on the record before the Court, viewed in the light most favorable to Ms. Stoner,
the Court determines that Ms. Stoner has raised a disputed issue of material fact as to whether
retaliation was a “but-for” cause of the adverse employment action against her. Accordingly, the
ADC’s motion for summary judgment is denied as to Ms. Stoner’s Title VII retaliation claim.
B.

First Amendment And ACRA Retaliation Claims Against Warden
Maples

To establish a prima facie case of retaliation under the First Amendment, a plaintiff must
show that her conduct was constitutionally protected and the protected conduct was a substantial
or motivating factor in the defendant’s adverse action. McCullough, 559 F.3d at 865 (citing
Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007); Cox v. Dardanelle Pub. Sch.
Dist., 790 F.2d 668, 672-76 (8th Cir. 1986)); see Mooney v. Lafayette Cnty. Sch. Dist., 2013 WL
4018662, at *4 n.4 (5th Cir. Aug. 8, 2013) (unpublished) (“The holding in Nassar . . . does not
apply to the First Amendment causation standard, which requires only that protected speech be a
“substantial” or “motivating” factor in the adverse employment action suffered by plaintiff.”). If
plaintiff makes out a prima facie case, the burden shifts to defendant to show that it would have
taken the same action regardless of plaintiff’s protected speech. McCullough, 559 F.3d at 865
(citing Altonen, 487 F.3d at 559); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
31

274, 287 (1977). ACRA claims undergo the same analysis because the free speech protections
of the Arkansas Constitution are no more generous than those of the First Amendment. See
McCullough, 559 F.3d at 865.
Because complaining about conduct that one reasonably believes to constitute harassment
is protected activity, see Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 n.3 (8th Cir.
2005) (quoting Peterson v. Scott Cnty., 406 F.3d 515, 525 n.3 (8th Cir. 2005)), Ms. Stoner need
only show that her complaints of sexual harassment were a substantial or motivating factor in her
termination. “A substantial or motivating factor can be proven through either direct or indirect
evidence.” Wagner v. Jones, 664 F.3d 259, 271 (8th Cir. 2011) (citing Davison v. City of
Minneapolis, 490 F.3d 648, 655 n.5 (8th Cir. 2007)). “A plaintiff need only prove that the
employer’s discriminatory motive played a part in the adverse employment action.” Id. (citing
Davison, 490 F.3d at 657). Ms. Stoner’s claims survive summary judgment under either a direct
evidence or McDonell Douglas analysis.
As direct evidence of retaliation, Ms. Stoner again offers the two statements made by
Warden Maples—first, that Ms. Stoner’s complaint would cost one of his male employees his
livelihood and, second, that she probably complained because she preferred women over men.
The first statement is direct evidence of retaliation, as it reflects a discriminatory attitude on the
part of Warden Maples that stopping sexual harassment is less important than his male
employee’s job. A reasonable juror could infer that this discriminatory attitude was more likely
than not a motivating factor in Warden Maples’s decision to bar Ms. Stoner from the Newport
Complex. See Rivers-Frison, 133 F.3d at 619 (“To be entitled to direct evidence analysis, the
plaintiff must present evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude

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sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating
factor in the employer’s decision.”). The Court is less convinced that Warden Maples’s second
alleged statement regarding Ms. Stoner’s motivation reflects a discriminatory attitude regarding
women, although the statement, if made, may be offensive for other reasons.
Turning to a McDonnell Douglas analysis, Ms. Stoner has established a temporal
connection between her protected activity and the adverse action. After complaining about
sexual harassment, Ms. Stoner alleges that she was immediately subjected to negative, sexist
comments and barred from the Newport Complex.

Defendants maintain Ms. Stoner was

temporarily barred from the Newport Complex and then permanently barred eight days later.
While this time interval is sufficient to establish an inference of causation, Smith v. Allen Health
Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (holding two-week interval to be sufficient), more
than a temporal connection is generally required to present a genuine issue of material fact on a
retaliation issue, see, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999),
cert. denied, 528 U.S. 818 (1999). Here, in addition to the temporal connection Ms. Stoner has
provided the alleged statements of Warden Maples and the comparators. As discussed above,
two of the comparators she identifies are male employees who were accused of lying about their
sexual harassment but were not barred from the ADC complex or terminated. This evidence is
sufficient to get to the jury on her claim of retaliation because Ms. Stoner, also accused of
dishonesty but in the context of reporting sexual harassment not purportedly committing it, was
barred from the Newport Complex and effectively terminated. The Court finds that, based on
this evidence, Ms. Stoner has established a prima facie case that her protected conduct, making a
sexual harassment complaint, was a substantial or motivating factor in the Warden Maples’s
adverse action.

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Because Ms. Stoner has established a prima facie case of retaliation against Warden
Maples, the burden shifts to Warden Maples to show that there was a legitimate,
nondiscriminatory reason for his adverse actions. Again, Warden Maples offers Ms. Stoner’s
alleged dishonesty as a legitimate, non-discriminatory reason to bar her from the complex. In
response, Ms. Stoner cites three cases allegedly holding that summary judgment for an employer
is inappropriate where an employer’s legitimate, non-discriminatory reason for discharging an
employee is related to the employee’s protected activity. See Gilooly v. Mo. Dep’t of Health and
Senior Servs., 421 F.3d 734 (8th Cir. 2005); Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980);
Pye, 641 F.3d 1011. In Gilooly, the case most on point, the employee investigating allegations
of sexual harassment determined based on witness interviews that plaintiff had lied, and this was
the reason given for plaintiff’s termination. 421 F.3d at 740. The evidence showed that rather
than being caught in a clear, unequivocal lie, the investigator merely found plaintiff to be less
credible than the other witnesses. Id. The Eighth Circuit held that the investigator’s belief that
plaintiff had lied could not be a basis for summary judgment, as the legitimacy of the
investigator’s belief was for a jury to decide. Id. The court further explained that:
The reasons for the firing must be sufficiently independent from the filing of the
complaint to constitute legitimate and nonretaliatory reasons for discharge.
[Womack, 619 F.2d at 1297.] Further, questions related to the very substance of
the investigation are not sufficiently independent and therefore, within the scope
of the protected activity. Id. Specifically, an investigator’s independent
determination of truth or falsity of [the plaintiff’s] allegation . . . [can] not legally
be grounds for discharge. Id. at 1298. However, if false statements are not part of
the protected activity, then they can be legitimate reasons for termination.
Gilooly, 421 F.3d at 740 (alterations in original) (internal quotation marks omitted).

An

investigator’s belief in dishonesty can only be a legitimate, non-discriminatory reason where
the belief is not genuinely disputed because it is confirmed by “independently verifiable

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evidence” creating a “clearer record of deception” that was detailed as the basis for the belief.
Id. at 740-41.
Warden Maples argues that Gilooly is distinguishable here because there is
“independently verifiable evidence” creating a “clearer record of deception” (Dkt. No. 52, at 11).
Presumably, Warden Maples means the surveillance footage. Warden Maples claims that the
surveillance footage shows Ms. Stoner acting “very non-chalant[ly]” for over two minutes after
taking Mr. Wellman’s blood pressure, “just laid back, just talking,” and appearing very relaxed
in his presence. Further, although Ms. Stoner reported that she “tried to hurry up and get back
around into medical” and that Mr. Wellman “followed [her] behind the desk,” according to
Warden Maples, the footage showed that Ms. Stoner first went down the corridor to visit with
another corrections officer and that Mr. Wellman walked behind the desk first. Lastly, Warden
Maples points to Richey v. City of Independence and EEOC v. Total System Services, Inc., to
argue that “an employer’s belief that the employee committed misconduct is a legitimate, nondiscriminatory reason for adverse action.” Richey, 540 F.3d 779, 784 (8th Cir. 2008); see EEOC
v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000) (“[W]e cannot agree that an
employer must be forced to prove—presumably in a court of law—more than its good faith
belief that a false statement was knowingly made.” An employer is “entitled to rely on its good
faith belief about falsity, concealment, and so forth.”).
The Court determines that the surveillance footage has not created a clear record of
deception and no independently verifiable evidence confirms Warden Maples’s purportedly good
faith belief that Ms. Stoner was dishonest. Ms. Tiner did not think the footage indicated Ms.
Stoner welcomed the conduct. Warden Maples, Mr. Pratt, and Ms. Tiner acknowledged that
people have different reactions to harassment that may not include a strong verbal or physical

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opposition to the alleged harassment. In fact, Warden Maples admitted he could not say if Ms.
Stoner welcomed Mr. Wellman’s conduct. Further, a person might reasonably forget the exact
order in which she went from room to room, especially when recounting events months later;
failing to remember does not make Ms. Stoner dishonest. Lastly, in Richey, the Eighth Circuit
went on to explain that an employer’s belief of misconduct is only a legitimate, nondiscriminatory reason for adverse action where the belief is in good faith. 540 F.3d at 784.
Richey and Total System Services, Inc., do not apply here because the good faith of Warden
Maples’s belief is genuinely disputed; under such circumstances, Gilooly controls. For these
reasons, the legitimacy of Warden Maples’s belief that Ms. Stoner was dishonest is a question
for the jury.
Lastly, Warden Maples seems to argue that he would have taken the same action
regardless of Ms. Stoner’s protected conduct.

See Mt. Healthy City School Dist. Bd. of

Education, 429 U.S. at 287. Specifically, Warden Maples argues that he has not retaliated
against five other employees who complained of sexual harassment both before and after Ms.
Stoner was barred from the Newport Complex and filed litigation, and that falsification is an
extremely serious, first-time terminable offense under ADC policy. However, there are disputed
issues of fact surrounding both arguments that preclude the Court from granting summary
judgment on this basis. First, in his meeting with Ms. Stoner, Warden Maples emphasized that
Mr. Wellman had a family and that her complaint would jeopardize his livelihood. There is no
evidence that any of the employees who made complaints and were not retaliated against had
complained of harassers who had families. Further, three of the five examples occurred after Ms.
Stoner was barred from the Newport Complex and filed litigation against the ADC and Warden
Maples. Though not irrelevant, post-litigation conduct has little probative value since it is

36

necessarily taken with the litigation in mind. Craik, 731 F.2d at 477-78. Warden Maples’s
argument that falsification is a first-time terminable offense, and thus he would have taken the
same action regardless of Ms. Stoner’s protected conduct, is also unconvincing because Ms.
Stoner has provided evidence of comparators who were accused of dishonesty but were not
barred or terminated, as discussed above.
For these reasons, the Court denies Warden Maples’s motion for summary judgment
regarding Ms. Stoner’s First Amendment and ACRA retaliation claims against him. Those
claims will proceed to trial.
C.

Title VII And ACRA Retaliation Claims Against CMS

The Court concludes that Ms. Stoner has not established a prima facie case of CMS’s
retaliation under Title VII’s “but-for” or the ACRA’s “substantial or motivating factor” analyses.
Again, Ms. Stoner does not provide any evidence of CMS’s retaliation but instead relies on her
argument that CMS should be held liable for the ADC and Warden Maples’s retaliation—an
argument that the Court rejects, as discussed above. It is undisputed that Warden Maples barred
Ms. Stoner from the Newport Complex and that Ms. Stoner could not perform her job duties
without access to the facility in which she worked. Moreover, it is undisputed that CMS
terminated Ms. Stoner because she was barred from the Newport Complex and could not
perform her job duties, not to retaliate against her for her claims against Mr. Wellman (Dkt. No.
53, at 11). Accordingly, the Court grants CMS summary judgment as to Ms. Stoner’s Title VII
and ACRA retaliation claims.
V.

Qualified Immunity

A government official sued in his individual capacity may raise the defense of qualified
immunity. The doctrine of qualified immunity “protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
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constitutional rights of which a reasonable person would have known.” Stepnes v. Ritschel, 663
F.3d 952, 960 (8th Cir. 2011) (internal quotation marks omitted). To determine if a qualified
immunity defense applies, the Court must conduct a two-prong inquiry by examining: “(1)
whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right and
(2) whether the constitutional right violated was clearly established at the time of defendant’s
alleged misconduct.” Id. (alteration in original) (quoting Pearson v. Callahan, 555 U.S. 223,
232 (2009)) (internal quotation marks omitted). “Unless the answer to both of these questions is
yes, the defendants are entitled to qualified immunity.” Krout v. Goemmer, 583 F.3d 557, 564
(8th Cir. 2009).
First, as discussed above, the facts alleged, when taken as true and viewed in the light
most favorable to Ms. Stoner, show that Warden Maples violated her Fourteenth Amendment
right to be from gender discrimination based on disparate treatment and her First Amendment
right to be free from retaliation. Second, “[t]he right to be free of gender discrimination is
clearly established,” Wright v. Rolette Cnty., 417 F.3d 879, 886 (8th Cir. 2005) (quoting
Peterson, 406 F.3d at 524, as well as the “right to exercise First Amendment freedoms ‘without
facing retaliation from government officials,’” Baribeau v. City of Minneapolis, 596 F.3d 465,
481 (8th Cir. 2010) (quoting Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007)). Because the
answer to both prongs of the qualified immunity analysis is yes, Warden Maples is not entitled to
qualified immunity. See Krout, 583 F.3d at 564.
VI.

Statutory Immunity

Warden Maples argues that he has statutory immunity from liability in his individual
capacity pursuant to Ark. Code Ann. § 19-10-305(a). That section provides: “[o]fficers and
employees of the State of Arkansas are immune from liability and from suit, except to the extent

38

that they may be covered by liability insurance, for damages for acts or omissions, other than
malicious acts or omissions, occurring within the course and scope of their employment.” Ark.
Code Ann. 19-10-305(a). It appears that ADC employees are not covered by liability insurance,
so the question is whether Warden Maples’s acts toward Ms. Stoner were malicious.
The Arkansas Supreme Court has recognized that the immunity provided by § 19-10-305
is similar to that provided by the Supreme Court for federal civil-rights claims. Smith v. Brt, 211
S.W.3d 485 (Ark. 2005); Fegars v. Norris, 89 S.W.3d 919 (2002). More rigorously, however, §
19-10-305(a) only provides state employees with statutory immunity for non-malicious acts. In
defining malice, the Arkansas Supreme Court has stated:
It is true that in law malice is not necessarily personal hate. It is rather an intent
and disposition to do a wrongful act greatly injurious to another. Malice is also
defined as the intentional doing of a wrongful act without just cause or excuse,
with an intent to inflict an injury or under circumstances that the law will imply
an evil intent. . . . A conscious violation of the law . . . which operates to the
prejudice of another person. A condition of the mind showing a heart . . . fatally
bent on mischief.
Simons v. Marshall, 255 S.W.3d 838, 842–43 (Ark. 2007) (alterations in original) (internal
citations and quotation marks omitted). Further, a plaintiff attempting to demonstrate malice
must allege more than “willful and wanton conduct.” Id.
Viewing the facts in the light most favorable to Ms. Stoner, the Court finds that she has
created a disputed issue of fact as to whether Warden Maples acted maliciously. Ms. Stoner
argues that Warden Maples has admitted sexual harassment violates the law and ADC policy,
that it would be reasonable for Ms. Stoner to expect not to be retaliated against for giving a
statement regarding sexual harassment, and that it would be wrong to retaliate against her for
doing so. Further, Ms. Stoner argues that, although Warden Maples claims to have had a good

39

faith belief that Ms. Stoner engaged in some wrongdoing, there is evidence otherwise indicating
retaliatory and discriminatory intent, as discussed above.
* * *
In summary, Ms. Stoner’s claims of the ADC and Warden Maples’s gender
discrimination based on disparate treatment and retaliation will proceed to trial. Summary
judgment is granted as to Ms. Stoner’s hostile work environment claims against the ADC and
Warden Maples, and all claims against CMS. Those claims are hereby dismissed.

__________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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