Butler v. Crittenden Cnty.

• Decision Date: 10 April 2013
• Docket Number: No. 12–1993.,12–1993.
• Citation: 708 F.3d 1044
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Tabby BUTLER, Plaintiff–Appellant v. CRITTENDEN COUNTY, ARKANSAS; R.E. (Dick) Busby, Crittenden County Sheriff, Individually & in Official Capacity; W.A. Wren, Chief Enforcement Officer, Crittenden County Sheriff's Department, Individually & in Official Capacity; Rodney Strong, Supervisor, Crittenden County Sheriff's Department, Individually & in Official Capacity, Defendants–Appellees.

708 F.3d 1044

Tabby BUTLER, Plaintiff–Appellant

v.CRITTENDEN COUNTY, ARKANSAS; R.E. (Dick) Busby, Crittenden County Sheriff, Individually & in Official Capacity; W.A. Wren, Chief Enforcement Officer, Crittenden County Sheriff's Department, Individually & in Official Capacity; Rodney Strong, Supervisor, Crittenden County Sheriff's Department, Individually & in Official Capacity, Defendants–Appellees.

No. 12–1993.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 17, 2013.

Filed: March 5, 2013.

Rehearing and Rehearing En Banc Denied April 10, 2013.^*

Larry Joe Steele, argued, Walnut Ridge, AR, for appellant.

Jason E. Owens, argued, Michael R. Rainwater, Robert L. Beard, Jr., on the brief, Little Rock, AR, for appellee.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Tabby Butler is an African American woman who worked as a deputy jailer in the Crittenden County jail from 2000 until her employment was terminated in 2008. Following her termination Butler filed claims against the county and its officials alleging unlawful suspension and discharge, sex discrimination, retaliation, violation of her procedural and substantive due process rights, and civil conspiracy, citing 42 U.S.C. §§ 1981, 1983, and 1985 and the Civil Rights Act of 1991. She also brought state law claims. Summary judgment was granted to the county and its officials after the district court ¹ concluded that Butler had failed to show either race or sex discrimination or civil conspiracy. It declined to exercise supplemental jurisdiction over her state law claims. See28 U.S.C. § 1367(c)(3). Butler appeals, and we affirm.

I.

Butler was hired in December 2000 as a deputy jailer at the Crittenden County jail to guard both juvenile and adult inmates. Beginning in 2008 Butler received several disciplinary warnings. A March 2008 memorandum charged her with being tardy a total of nine times since February of that year and informed her that there would “be no future warnings concerning this tardy issue.”

Rodney Strong became Butler's supervisor in August 2008. According to Butler, Strong began harassing her by “asking [her] to go on dates,” “trying to give [her] money,” and “invit[ing] [her] to his house for dinner.” Butler estimated that Strong invited her out between thirty and forty times. On September 19, Butler was written up for being insubordinate to Strong; she refused to sign the disciplinary report. Later that month Strong and another officer visited a hospital where a juvenile inmate was being treated, and Butler documented the visit in the jail's log book. The next day chief jailer Theresa Bonner called Butler to her office to inform her that she was being suspended for insubordination, unsatisfactory behavior, and “writing statements that are detrimental about [her] supervisor in the ... log book.”

On October 7, Butler wrote a letter to Bonner and a jail administrator stating:

Rodney Strong has been making sexual advances toward me for approximately 3 months. He has asked me out on dates, offered money, questioned my personal/dating life, asked to touch my hair, offered to pay for my lunch, and invited me to his home for dinner. I have continually turned down these advances, because I am not interested in him. All of Strong's inappropriate and unwanted advances have made me uncomfortable in the work environment.

After meeting with Butler to discuss her complaint, Theresa Bonner and the jail administrator advised Strong to speak with Butler only regarding work matters and to stop complimenting her and offering to buy her lunch. Strong agreed with these restrictions but remained Butler's supervisor. Butler admits that Strong changed his conduct toward her after his meeting with Bonner and the jail administrator, but Butler nevertheless gave a copy of her October letter regarding Strong to Sheriff Busby on November 17. Thereafter Strong was relocated to another part of the jail so that he no longer supervised Butler.

In December Butler had an altercation with a coworker. When the chief jailer reprimanded Butler for her tendency to lash out with harsh words, Butler replied that she “doesn't fool with devilish people.” Butler also continued to be tardy for work. She was tardy more than sixty times in 2008, and by her own admission was written up for tardiness “a number of times.” Thereafter on December 26, she was suspended for two days for “chronic tardiness.”

In a disciplinary statement, Butler's supervisor wrote that on Christmas day Butler “was 30 min[utes] late and she did not call and she has been talked to over and over again about getting to work on time, I have been lenient over and over but could no longer due to the fact that [this] is an ongoing problem.” Butler was terminated on December 30. Chief jailer Bonner testified that Butler was terminated because she failed to respect the chain of command, was disrespectful to superiors, and accused others of being evil, claiming the jail was full of evil spirits.

Butler filed a claim with the EEOC for sexual harassment and retaliation. She received a right to sue letter on September 25, 2009 which permitted her to file a federal lawsuit against the county and its officials within 90 days of her receipt of the notice. More than nine months later, on July 22, 2010, Butler filed her complaint against Crittenden County, sheriff Busby, Strong, and Chief Enforcement Officer W.A. Wren. She alleged that they had violated 42 U.S.C. §§ 1981, 1983, and 1985, the Civil Rights Act of 1991, and the Arkansas Civil Rights Act of 1993. Butler stated in particular that the county and its officials had unlawfully suspended and terminated her based on her gender and her complaints about sexual harassment. She also alleged that they had conspired to deprive her of federally protected rights and state property rights.

The district court granted summary judgment to the county and its officials. It first noted that Butler's claims appeared to be time barred because she had not filed suit within 90 days of receiving her right to sue letter. It nonetheless proceeded to address her claims on the merits and concluded that Butler had failed to show race or gender discrimination under any of her theories. The district court also rejected Butler's civil conspiracy claims and declined to exercise jurisdiction over her state law claims.

Butler appeals, contending that the reasons given for her termination were pretextual and in retaliation for her complaints about Strong and her notation in the log book, that her termination was “evidence of ... sexual and racial discrimination,” that her “rights of freedom of speech and equal protection” under the First and Fourteenth Amendments had been denied, and that Strong's conduct amounted to quid pro quo sexual harassment.² The county and its officials contend that all of Butler's claims are time barred because she did not exhaust Title VII's requirements.

II.

We review de novo the district court's grant of summary judgment to the county and its officials, viewing the facts in the light most favorable to Butler and giving her the benefit of all reasonable inferences from the record. Minn. ex rel. N. Pac. Ctr., Inc. v. BNSF R.R. Co., 686 F.3d 567, 571 (8th Cir.2012). Summary judgment is appropriate only where there is no genuine dispute “as to any material fact and the movant is entitled to judgment as a matter of law.” Id.

We first address the district court's conclusion that Butler's claims may be time barred because she did not file suit within 90 days of receiving her right to sue letter. The district court relied on language in Tyler v. University of Arkansas Board of Trustees, 628 F.3d 980 (8th Cir.2011), to conclude that Title VII's exhaustion requirement applies equally to Butler's § 1983 discrimination claims.

We disagree that Butler's claims are time barred under Tyler. The plaintiff in Tyler had received a right to sue letter from the EEOC based on his allegations of retaliation and race discrimination, but in his complaint he raised a new claim for sex discrimination under § 1983 as well. Id. at 989. Although we spoke there about Tyler failing to preserve his § 1983 sex discrimination claim because “[a]s a Title VII plaintiff, [he] was required to exhaust his administrative remedies ... before bringing a formal action” under § 1983, id., we have since made clear that the exhaustion requirement applies only to Title VII plaintiffs like Tyler, while “an employment discrimination plaintiff asserting a violation of a constitutional right may bring suit under section 1983 alone, without having to plead concurrently a violation of Title VII and comply with the Act's procedural requirements,” Henley v. Brown, 686 F.3d 634, 642–43 (8th Cir.2012) (emphasis added). Since Butler's race and gender discrimination claims under § 1983 are based on alleged constitutional violations, she was not required to comply with Title VII's procedural requirements to maintain them.

Turning to Butler's substantive claims, she first contends that her suspension and termination amounted to quid pro quo harassment under § 1983. To prove quid pro quo harassment, Butler must present evidence demonstrating that “submission of unwelcome advances was an express or implied condition for receiving job benefits or [that] refusal to submit resulted in a tangible job detriment.” Newton v. Cadwell Labs., 156 F.3d 880, 882 (8th Cir.1998). The district court concluded that Butler had suffered tangible job detriments in the form of her suspension and termination, but it determined that Butler had failed to show that her rejection of Strong's advances caused that detriment. We agree. Butler was suspended before complaining about Strong's behavior, which indicates that her suspension was not caused by that complaint. There is no dispute that Strong stopped bothering Butler after October 6, and she was not terminated until December 30. In this case, “the interval...