Jones v. Kelly et al

Filing 42

MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on December 23, 2014. (jn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

TERESA JONES

PLAINTIFF

V.

CASE NO. 12-CV-4101

TRUMAN ARNOLD COMPANIES

DEFENDANT

MEMORANDUM OPINION
Before the Court is a Motion for Summary Judgment (ECF No. 34) filed by Defendant
Truman Arnold Companies. Plaintiff Teresa Jones has filed a response. ECF No. 39. Defendant
has filed a reply. ECF No. 40. The matter is ripe for the Court’s consideration.
I. BACKGROUND
The Court states the facts in the light most favorable to Plaintiff Teresa Jones. Jones was
employed by Truman Arnold Company (“TAC”) at its Road Runner convenience store “No. 2” in
Texarkana, Arkansas, from February 2011 until the end of January 2012. Jones alleges that her store
manager, John Kelly, sexually assaulted her on or about May 24, 2011, in the car wash of the Road
Runner. Prior to that time, Jones alleges that Kelly harassed her through a pattern of uninvited and
unwelcome sexual propositions, lewd text messages, and unwanted touching. Jones also alleges that
Kelly threatened to fire her if she told anyone of his behavior.
On July 23, 2011, Jones claims that she suffered an epileptic seizure at work and blacked out.
Later that day, TAC personnel determined that Jones’s cash register was short $715.82. Jones asserts
that she found $300 of the missing money on July 26, 2011. On that same day, Jones met with Kelly
and a female supervisor, Elsie Washington. At the meeting, Jones provided a doctor’s note stating

that she had a seizure on July 23, 2011. Plaintiff states that she does not recall the events that
happened on the day of the seizure, but she does not dispute that her cash register was short. Kelly
and Washington told Jones that she could not return to work for a period of two weeks because of
the seizure, the black out, and the loss of the money. They further told her that she could no longer
handle cash or work at a register, and Jones agreed to being taken off cash register duties. Jones was
informed that, before she could return to work, she must obtain a doctor’s note stating that she
“could work the hours or [she] would not have [any] more blackouts at the store.” ECF No. 39-2,
p. 14.
According to Jones, a few days prior to the July 23, 2011 cash register incident, she had
contacted the TAC human resources representative, Denny Peterson, to complain of the alleged
sexual harassment by Kelly. Jones met with Peterson on July 26, 2011, after her meeting with Kelly
and Ms. Washington. During the meeting with Peterson, Jones provided a written statement to
Peterson about the alleged assault in the car wash that occurred in May 2011, and Jones showed
Peterson saved text messages on her cell phone that were purportedly from Kelly. Peterson
consulted with Kelly’s supervisor and TAC’s general counsel, and Kelly’s employment was
terminated on July 27, 2011. Jones, however, remained employed with TAC until TAC sold its
convenient stores at the end of January 2012.
TAC maintained a written sexual harassment policy that all employees were provided upon
employment.

The TAC anti-harassment policy states, in the section entitled “Employee

Responsibility,” that an employee who believes that they have been subjected to harassment of any
type is to report the incident “immediately to your direct supervisor or to the human resources
representative at 903-794-3835.” ECF No. 35-1, p. 7. The policy also identifies two other persons
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(the company president and a company vice-president) who could be contacted for the reporting of
harassment. ECF No. 35-1, p. 7. The policy declares that each allegation will be investigated. ECF
No. 35-1, p. 8. The policy further expresses that, under no circumstances, will any employee who
reports an alleged incident of harassment be subjected to reprisal or retaliation of any kind. ECF No.
35-1, p. 8.
At the beginning of her employment with TAC in February of 2011, Jones received a copy
of the policy, acknowledged receipt of the policy, and admitted that she understood what constituted
sexual harassment and that any incident of sexual harassment was to be immediately reported. Jones
also acknowledged the posting of the policy at the store in which she worked. In fact, Jones used
the posted information within her store to make her initial phone call reporting the alleged
harassment by Kelly.
After receiving a right to sue letter, Jones filed the present suit on August 29, 2012. In her
First Amended Complaint (ECF No. 23), Jones makes the following claims against TAC: sexual
harassment and retaliation; outrage; battery; defamation; and negligent hiring, supervision, and
retention.1 TAC asserts that it is entitled to summary judgment on all of these claims.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) states that summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Under this standard, the inquiry is not whether the evidence favors one side or the other, but

1

Jones has abandoned her claims for outrage, battery, and defamation. ECF No. 39-1, p. 2. Thus, TAC is entitled to
summary judgment on these claims.

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“whether a fair minded jury could return a verdict for the plaintiff on the evidence presented.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). When considering a summary judgment
motion, the Court “must view the evidence ‘in the light most favorable to the nonmoving party.’”
Sappington v. Skyjack, Inc., 512 F.3d 440, 445 (8th Cir. 2008) (quoting F.D.I.C. v. Bell, 106 F.3d
258, 263 (8th Cir. 1997)). To defeat a motion for summary judgment, however, the non-moving
party must “make a showing sufficient to establish the existence of an element essential to that
party’s case and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The “nonmovant must present more than a scintilla of evidence and must
advance specific facts to create a genuine issue of material fact for trial.” Bell, 106 F.3d at 263 (8th
Cir. 1997). “In order to survive a motion for summary judgment, the non-moving party must be able
to show sufficient probative evidence that would permit a finding in his favor on more than mere
speculation, conjecture, or fantasy.” Binkley v. Entergy Operations, Inc., 602 F.3d 928, 931 (8th Cir.
2010).
III. DISCUSSION
Jones makes two federal claims against TAC: a Title VII hostile work environment claim and
a Title VII retaliation claim. Jones also makes corresponding state law claims pursuant to the
Arkansas Civil Rights Act.2

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The Arkansas Civil Rights Act “expressly instructs [courts] to look to federal civil-rights law when interpreting the
Act.” Island v. Buena Vista Resort, 103 S.W.3d 671, 675 (Ark. 2003); Ark. Code Ann. § 16-123-105. Accordingly,
while TAC moved for summary judgment as to Plaintiff’s claims pursuant to both Title VII and the Arkansas Civil Right
Act, the Court’s analysis for both will be conducted using the federal standards as encouraged by Ark. Code Ann. § 16123-105.

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A. Hostile Work Environment Claim
Jones alleges that TAC subjected her to sexual harassment in violation of Title VII of the
Civil Rights Act of 1964 and the Arkansas Civil Rights Act. TAC, however, maintains that
summary judgment should be granted in its favor because it is entitled to its Ellerth-Faragher
affirmative defense for supervisor harassment. Plaintiff argues that TAC is not entitled to this
affirmative defense and that material fact questions preclude summary judgment.
Title VII prohibits employers from discriminating against “any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of such individual’s
. . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). “Sexual harassment may violate Title VII where it is
sufficiently ‘severe or pervasive’ so as to create an ‘objectively hostile or abusive work
environment.’” Crawford v. BNSF Ry. Co., 665 F.3d 978, 983 (8th Cir. 2012) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 20, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). An employer is
vicariously liable for a supervisor’s actionable sexual harassment of employees unless the employer
can establish that it is entitled to the Ellerth-Faragher affirmative defense. Id. (citing Gordon v.
Shafer Contracting Co., Inc., 469 F.3d 1191, 1195 (8th Cir. 2006)). “An employer may only assert
the affirmative defense when it has taken no tangible employment action against the allegedly
harassed employee.” Id.
To establish the Ellerth-Faragher affirmative defense, an employer must show the following:
(a) that it exercised “reasonable care to prevent and correct promptly any sexually harassing
behavior”; and (b) that the employee “unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City
of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).
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Jones does not specifically argue that she suffered a tangible employment action as it relates
to TAC’s Ellerth-Faragher affirmative defense. However, in other sections of her brief, Jones refers
to her time off following her seizure as a “suspension.” ECF No. 39, p. 13. “A tangible employment
action is ‘a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant change
in benefits.’”Brenneman v. Famous Dave’s of America, Inc., 507 F.3d 1139, 1144 (8th Cir. 2007)
(citing Ellerth, 524 U.S. at 761, 118 S. Ct. 2257). Even if a suspension did occur that put her
employment at a material disadvantage, Jones cannot prove a causal connection between her sexual
harassment claims and her suspension. See Crockett v. Mission Hosp., Inc., 717 F.3d 348, 355-56
(4th Cir. 2013) (A female employee who was allegedly sexually harassed by her supervisor did not
experience a tangible employment action imputable to her employer where she had not yet reported
the harassment at the time she was suspended for actions unrelated to the harassment, her supervisor
did not make the decision to suspend her, and she did not demonstrate an actual pecuniary loss due
to the suspension).
Throughout her Statement of Genuine Issues of Material Facts and her deposition testimony,
Plaintiff consistently attributes her “suspension” of July 26, 2011, to her epileptic seizure, her blackout, and the resulting cash shortage and not to her claims of sexual harassment.3 ECF Nos. 35-2, p.
35; 39, p. 6; 39-1, p. 3. Thus, Jones cannot show that her purported suspension on July 26, 2011,
is connected to her harassment claim. Moreover, Jones has presented no evidence to suggest that

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In her Statement of Genuine Issues of Material Facts, Jones states that “she was suspended from work for an alleged
cash shortage and told she could not return until she received a doctor’s note that said she would no longer black out.”
ECF No. 39-1, p. 3.

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she suffered any pecuniary loss because of her suspension.4 Accordingly, the Court finds that Jones
did not suffer a tangible employment action that would give rise to TAC’s liability regarding her
hostile work environment claim. Accordingly, the Ellerth-Faragher affirmative defense is available
to TAC.
The Court will now discuss the elements of this affirmative defense as they relate to the
present case. First, the employer must show that it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior. This element has two prongs: prevention and correction.
Brenneman, 507 F.3d at 1145. “Under the prevention prong, the employer must have exercised
reasonable care to prevent sexual harassment.” Id. “Under the correction prong, the employer must
have promptly corrected any sexual harassment that occurred.” Id.
Here, TAC has demonstrated that it exercised reasonable care to prevent sexual harassment.
TAC has a facially valid anti-harassment policy, and it distributes a copy of this policy to all
employees. Its employees must acknowledge receipt of the policy. The policy has a non-retaliation
provision and lists four individuals who may be contacted in the case of harassment. Although
having an anti-harassment policy is not in itself enough to show that TAC exercised reasonable care,
the distribution of a valid policy provides compelling proof of preventing sexual harassment. Id.
Jones acknowledged receipt of the anti-harassment policy, understood what behaviors constituted
sexual harassment, and understood that she was to immediately report any incidents of sexual
harassment. The policy was visibly posted with contact information at TAC’s Road Runner store

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Half of Jones’s days off work during the two-week “suspension” can be attributed to her requests to be off work. She
had already requested to be off work from July 24, 2011, through July 26, 2011 and from August 3-8, 2011. Jones
returned to work on August 6, 2011. Also, Jones was a part-time employee and had already worked over 100 hours for
the month of July. In March 2011, Jones worked a total of 97.5 hours. In April 2011, Jones worked a total of 81 hours.
In May 2011, Jones worked a total of 118 hours, and she worked a total of 89 hours in June 2011.

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No. 2 and, in fact, Jones utilized one of the contact numbers found on the posting to initiate her
reporting.
The Court finds that TAC has also met the correction prong. According to Jones, upon
dialing the phone number provided on TAC’s posting, she spoke to a TAC representative and
reported the harassment. Jones’s initial report, made approximately a few days prior to July 23,
2011, led to a meeting with Denny Peterson, the TAC human resources representative, where Jones
showed Peterson the inappropriate text messages allegedly from Kelly. Jones’s initial telephone
report also led to a more extensive written report on July 26, 2011. As a direct result of Plaintiff’s
reporting, TAC fired Kelly the next day on July 27, 2011. Id. Thus, it appears that Plaintiff’s
utilization of TAC’s anti-harassment policy worked. Accordingly, the Court finds that TAC acted
promptly to correct the sexually harassing behavior which formed the basis of Jones’s allegations.
Jones asserts that TAC was aware that, prior to her employment with TAC, other employees
had claimed that Kelly harassed them and that TAC did not enforce its anti-harassment policy
regarding these other allegations. Plaintiff further asserts that TAC failed to take corrective measures
against Kelly regarding these other allegations.
This same argument has been addressed and rejected by the Eighth Circuit in Crawford v.
BNSF Ry. Co. 665 F.3d 978 (2012). In Crawford, appellants argued that BNSF’s policy was not
actually enforced and that BNSF only took minimal action, such as counseling, after learning of
other employees’ complaints about a certain supervisor. Id. at 983. The Eighth Circuit found that,
in each of the assertions, “BNSF investigated these incidents and took action in response,” which
included “meeting with [the supervisor and] counseling him on appropriate work behavior[.]” Id.
at 984. The Eighth Circuit went on to state that it “afford[s] an appropriate degree of deference to
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business judgment where the records show that the employer conducted a reasonable investigation
in good faith.” Id. (internal quotations omitted). Finally, the Eighth Circuit stated that the “fact that
appellants would have desired harsher responses does not make BNSF’s otherwise valid policy
ineffective.” Id.
Here, the record reveals that three other sexual harassment complaints had been lodged
against Kelly prior to Jones’s complaint. In particular, one employee alleged that Kelly sexually
harassed her in April 2004, seven years before Jones was employed by TAC. Denny Peterson
immediately investigated the complaint and compiled an investigative file amounting to at least
eleven pages. Further, Peterson questioned Kelly about the allegation, he denied the allegation, and
she counseled Kelly that he was to conduct himself professionally and that he was not to retaliate
against any employee or witness. The record also shows that Peterson reported the matter to higher
management, and Kelly was required to undergo additional training. The investigative file also
contains additional notations wherein the complaining employee later expressed that everything was
fine between her and Kelly and that she had even invited Kelly to her wedding. In sum, the record
shows that an investigation occurred, Kelly denied the allegation, and he was counseled regarding
the allegation. Kelly received additional training, the harassment stopped, and the employee
expressed no further issues.
In September of 2010, prior to Plaintiff’s employment, two TAC employees accused Kelly
of sexual harassment, and Peterson conducted a multi-day, multi-party investigation. When Peterson
interviewed five other employees, all of them said nothing inappropriate had ever occurred to them.
In addition, one employee called one of the complainants a “poor employee.” An employee who had
been identified as someone who could corroborate the allegation actually denied seeing an
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inappropriate picture allegedly texted from Kelly. Kelly was summoned to TAC’s offices, the
allegations were explained to him, he denied the allegations, and he was told to take three days off.
When he returned to work, he apparently resigned. Again, the record shows that TAC’s policy was
in place, the employees utilized the policy, TAC conducted a prompt investigation, Kelly was
counseled, TAC took action, and the alleged harassment stopped.
It appears that TAC rehired Kelly on or around October 22, 2010. Certain conditions were
placed upon him for continued employment. These conditions included ongoing supervisory
training, monitoring, and a requirement that another manager or supervisor be present when future
counseling occurred. Crawford, 665 at 984.
Jones asserts that TAC “turn[ed] a blind eye on Kelly” which resulted in Kelly’s alleged
sexual assault against her. There is no evidence, however, that supports this assertion. The Court
is required to “afford an appropriate degree of deference to [the] business judgment” contained in
TAC’s records showing in each instance: (1) an investigation; (2) a confrontation and/or counseling
with Kelly; and (3) action taken ending the alleged harassment. See id. Jones may disagree with the
outcome of each of the prior investigations, but the fact that she would have desired harsher
responses to Kelly’s behavior does not make TAC’s otherwise valid policy ineffective. See id.
Accordingly, the Court cannot find that TAC failed to enforce its anti-harassment policy.
The Court now considers the second prong of the Ellerth-Faragher affirmative defense,
which is whether the employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid harm otherwise. Here, Jones waited
two months before she reported the alleged sexual assault to TAC. She asserts, however, that a “jury
should decide [whether this delay] was reasonable in light of Kelly’s actual threats of retaliation,
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Jones’ fragile condition, and the overall ineffectiveness of TAC’s policy.” ECF No. 39, p. 16.
The Eighth Circuit has recognized the “great psychological burden it places on one who is
already the victim of harassment” to be required to report and determined the balance to be in favor
of requiring reporting if the “employee wants to impose vicarious liability on the employer and
collect damages[.]”

Weger v. City of Ladue, 500 F.3d 710, 724-25 (8th Cir. 2007) (internal

citations and quotations omitted). Subjective fears of confrontation, unpleasantness, or retaliation
“do not alleviate the employee’s duty . . . to alert the employer of the allegedly hostile environment.”
Id. at 725 (internal citations and quotations omitted). A plaintiff must demonstrate a “truly credible
threat of retaliation.” Id. Here, Jones asserts that she did not report Kelly’s alleged sexual assault
because her “job was threatened.” ECF No. 40-1, p. 3. Jones makes the general assertion that she
feared retaliation; however, there is no evidence of a truly credible threat of retaliation.
Two months had passed between the alleged assault and Jones’s actual reporting, and Jones
makes no mention of any specific threats of retaliation that occurred during this time. Further,
TAC’s anti-harassment policy contained an anti-retaliation provision, and there is no evidence that
any TAC employee has ever been terminated for reporting a sexual assault or sexual harassment.
See Crawford, 665 F.3d at 985 (stating that the “record is devoid of any evidence of prior retaliation
or threats of retaliation by [the employer] for reporting harassment.”). Moreover, there is no
evidence that Jones was even aware of any of the prior allegations of harassment against Kelly.
Accordingly, the Court finds that Jones “unreasonably failed to take advantage of any preventative
or corrective opportunities” provided by TAC or “to avoid harm otherwise.” See Crawford, 665 F.3d
at 985. Having found that TAC satisfies each element of the Ellerth-Faragher affirmative defense,

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the Court grants TAC’s Motion for Summary Judgment as to Jones’s hostile work environment
claim pursuant to Title VII and the Arkansas Civil Rights Act.
B. Retaliation Claim
Title VII prohibits retaliation against employees who have acted to vindicate their statutorily
protected rights by reporting harassment in the workplace. Gibson v. Am. Greetings Corp., 670 F.3d
844, 856 (8th Cir. 2012). To establish a prima facie case for retaliation, a plaintiff must show: (1)
that she engaged in protected conduct; (2) that she suffered a materially adverse action that would
deter a reasonable employee from making a charge of employment discrimination; and (3) that there
is a causal connection between the protected activity and the adverse action. Id. If the plaintiff
establishes prima facie case, the employer may rebut the resulting presumption of discrimination by
articulating a legitimate, non-retaliatory reason for the adverse employment action. Id. at 857.
Finally, if the employer proffers a legitimate non-retaliatory reason, the plaintiff may attempt to
refute the asserted reason as mere pretext. Id.
Jones claims that she was suspended for two weeks beginning on July 26, 2011, because she
reported Kelly’s alleged sexual assault and harassment by telephone some time prior to July 23.
Jones, however, has consistently attributed the suspension to her seizures and the cash shortage at
her register. See ECF No. 39-1, p. 3; ECF No. 39, p. 6; ECF No. 35-2, p. 35. The Court has already
found that Jones cannot prove a causal connection between her sexual harassment claim and her
suspension. Further, there is no evidence that Kelly even knew of the Jones’s reporting of sexual
harassment prior to July 23. Thus, Jones cannot show that there is a causal connection between the
protected activity (Jones’s reporting of sexual harassment) and the adverse action (two-week
suspension)
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Jones further claims that, after Kelly was fired, she continued to experience retaliation in the
form of her supervisor assigning her “demeaning jobs,” such as cleaning with bleach. ECF No. 39,
p. 6. Even if these actions were considered materially adverse employment actions, the undisputed
evidence links these cleaning assignments to her medical condition—not her reporting of sexual
harassment. Because of her seizures, Jones admits that she could not perform any of the normal
functions of a cashier or deli worker. Because she could not work as a cashier, TAC had to find
other jobs for her to do. Accordingly, Jones fails to show that there is a causal connection between
the protected activity (Jones’s reporting of sexual harassment) and the adverse action (job
assignment such as cleaning and working with bleach).
Jones also claims that co-employees stared at her, were up in her face, and threatened to beat
her up. However, these actions do not rise to the level of a materially adverse employment action.
Not everything that makes an employee unhappy is an actionable adverse employment action.
Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1245 (8th Cir. 1998). Instead, the action must
have had some materially adverse impact on a plaintiff’s employment terms or conditions to
constitute an adverse employment action. Id. Jones suffered no loss in pay or hours worked, and
she has not shown how these alleged actions by her co-employees effected a material change in the
terms or conditions of her employment.
The Court finds that Jones cannot make out a prima facie case of retaliation. Accordingly,
the Court grants TAC’s motion for summary judgment as to Plaintiff’s claims for retaliation pursuant
to Title VII and the Arkansas Civil Rights Act.

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IV. CONCLUSION
For the reasons stated above, the Court finds that TAC’s Motion for Summary Judgment
(ECF No. 34) should be and hereby is GRANTED as to Jones’s sexual harassment and retaliation
claims pursuant to Title VII and the Arkansas Civil Rights Act as well as her state law claims of
outrage, battery, and defamation.

Accordingly, these claims are DISMISSED WITH

PREJUDICE.
With the dismissal of the federal claims upon which subject matter jurisdiction is based, the
Court, exercising its discretion after a review of the relevant factors, is persuaded that the remaining
pendent state claims of negligent hiring and negligent supervision/retention should be and hereby
are DISMISSED WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c). Jones may pursue these
claims in the appropriate state court forum. The Court will issue a Judgment of even date consistent
with this Opinion.
IT IS SO ORDERED, this 23rd day of December, 2014.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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