Stoner v. Ark. Dep't of Corr.

• Decision Date: 18 November 2013
• Docket Number: Case No. 3:10–cv–00218 KGB.
• Citation: 983 F.Supp.2d 1074
• Parties: Tracy STONER, Plaintiff v. ARKANSAS DEPARTMENT OF CORRECTION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

983 F.Supp.2d 1074

Tracy STONER, Plaintiff

v.ARKANSAS DEPARTMENT OF CORRECTION, et al., Defendants.

Case No. 3:10–cv–00218 KGB.

United States District Court,

E.D. Arkansas,

Jonesboro Division.

Nov. 18, 2013.

James M. Scurlock, Lucien Ramseur Gillham, Luther O'Neal Sutter, Sutter & Gillham, PLLC, Benton, AR, for Plaintiff.

Lori Freno, Regina Haralson, Arkansas Attorney General's Office, Little Rock, AR, Edward E. Hollis, Baker & Daniels LLP, Indianapolis, IN, Jane Marie Yocum, Munson, Rowlett, Moore & Boone, P.A., Little Rock, AR, Robert D. Moreland, Shellie Lynn Goetz, Faegre Baker Daniels LLP, Fort Wayne, IN, for Defendants.

OPINION AND ORDER

KRISTINE G. BAKER, District Judge.

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 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 anti-retaliation 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.

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 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...