Sims v. Little Rock Plastic Surgery PA

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

RACHEL SIMS PLAINTIFF

V. NO. 4:19-cv-653

LITTLE ROCK PLASTIC SURGERY, P.A.;

MICHAEL L. SPANN, M.D.; AND KRISTY SPANN DEFENDANTS

ORDER

Pending is Defendants’ motion to dismiss Plaintiff’s second amended complaint for

failure to state a claim. (Doc. No. 20). Both a response and a reply have been filed, and the

motion is ripe for consideration. For the reasons stated below, the motion is granted in part and

denied in part.

Second Amended Complaint

The following factual allegations are taken from Plaintiff’s second amended complaint

(“SAC”) (Doc. No. 19). Plaintiff Rachel Sims, a registered nurse, began working for Defendant

Little Rock Plastic Surgery, P.A. (LRPS) on August 8, 2012. Defendant Dr. Michael Spann

owns LRPS, and Defendant Kristy Spann is the business manager of LRPS.

As part of her employment, Dr. Spann directed Plaintiff to create a Shutterfly photobook,

an ongoing project that he knew would require Plaintiff to “take the photos using her personal

phone and transmit them to her personal email, which enabled her to devote after-hours time to

work on the project while also utilizing higher quality graphics available on her phone.”

During her time at LRPS, LRPS failed to properly compensate her—she was paid in both

hourly wages and commissions—and failed to appreciate her or “her outstanding contribution to

the clinic.” LRSD withheld money from Plaintiff’s paycheck without her consent, reduced her

work schedule, and altered her commission scale. Furthermore, Plaintiff alleges that Dr. Spann

sexually harassed her by making inappropriate comments about her breasts and legs, asking her

and another female employee “who is better in bed,” and making comments like “I can’t say

what I want thanks to Matt Lauer.”

On June 27, 2019, Plaintiff told Dr. Spann that she was resigning effective July 19th. At

some point thereafter, Dr. Spann asked her to sign an “Exit Agreement” that would have required

Sims to be subject to liquidated damages. When Plaintiff refused to sign, her end-date was

moved up to July 15, 2019. Her last paycheck was about $1,000 less than it should have been.

Immediately after she left LRSD, Defendants began attempting to divert business from

Plaintiff and to destroy her professional reputation. First, on August 12, 2019, Dr. Spann and

LRPS filed a complaint against her with the Arkansas State Board of Nursing containing false

allegations that she had improperly accessed and downloaded private health information of

LRPS patients and contacted the patients and shared their information with third parties in

violation of HIPAA. That investigation is pending.

Second, on September 13, 2019, Dr. Spann wrote a letter to his patients and others, some

of whom had never been patients of Defendants, making these same allegations and more against

Plaintiff, knowing the allegations were false. She alleges that while he did not use her name in

the letter, “any patient reviewing it would almost certainly be able to identify [her]” given the

staff of only four full-time employees and the timing of her leaving LRPS; Plaintiff was

contacted by former patients, friends, colleagues, and family members who learned of the

statements, connected them to her, and contacted her. Among the false statements made in the

letter were the following: “(1) ‘at the conclusion’ of an investigation into Sim’s improper

actions, LRPS terminated her employment”; (2) after Sim’s employment separation, she had

access to patients’ confidential information in violation of the law; and (3) Sims obtained “the

Clinic’s log-in information for one of the vendor accounts.”

The day the letter was mailed, Kristy Spann sent a press release containing the false and

disparaging allegations against Plaintiff which was broadcast by KATV (and published on its

social media platforms) and about which Arkansas Money & Politics published an article on its

website.

Plaintiff further alleges that in the days before she left LRPS, Defendants accessed her

personal email account without her authorization and deleted emails after they were transmitted

but before she could read them. Then, months after her employment ended, Defendants took

control of her personal Instagram account without her authorization by changing her password

and removing all posts to her account. In doing this, they took possession of all Plaintiff’s

personal photographs as well as those of patients at the clinic where she now works. Defendants

thereby improperly accessed her messages after the messages were sent but before Plaintiff

reviewed them, preventing her from receiving new messages or assessing stored messages,

including those from new patients requesting appointments with her. Plaintiff alleges that all of

these actions by Defendants caused her to suffer business losses.

From these factual allegations, Plaintiff makes the following two claims based on federal

law: unlawful access to stored communications in violation of 18 U.S.C. §§ 2701 and 2707; and

interception and disclosure of electronic communications in violation of 18 U.S.C. §§ 2511 and

2520. Her remaining ten claims are based on state law: defamation, tortious interference with

contractual relations or business expectancy, outrage, intrusion upon seclusion, false light,

conversion, computer trespass, sexual harassment in violation of Ark. Code Ann. § 16-123-101,

et seq., failure to pay last paycheck, and failure to pay all commissions. All the parties are

residents of Arkansas; jurisdiction is predicted on the existence of a federal question and

supplemental jurisdiction over the state law claims.

Legal Standard

A complaint must contain “a short and plain statement of the claim that the pleader is

entitled to relief” to survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim

upon which relief can be granted. Fed. R. Civ. P. 8(a)(2). The complaint must give the

defendant fair notice of what the claim is and the grounds upon which it rests and must also

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do. Id. When considering a motion to dismiss for failure to state a claim, the

Court “assumes all facts in the complaint to be true and construes all reasonable inferences from

those facts most favorably to the complainant. Minnesota Majority v. Mansky, 708 F.3d 1051,

1055 (8th Cir. 2013).

Federal Claims

Stored Communications Act. First, the Court will address the two federal claims. In

Count VII of the SAC, Plaintiff alleges violations of the Stored Wire and Electronic

Communications and Transactional Records Access Act (the “Stored Communications Act,” or

“SCA”), 18 U.S.C. §§ 2701 and 2707. Pursuant to §2701, the Act is violated when someone

“intentionally accesses without authorization a facility through which an electronic

communication service is provided” or “intentionally exceeds an authorization to access that

facility” and, in either instance, “thereby obtains, alters, or prevents authorized access to a wire

or electronic communication while it is in electronic storage.” 18 U.S.C. §2701 (emphasis

added); Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 838 (8th Cir. 2015).

Section 2707 allows a civil action to be brought for a violation of §2701 when the violation was

knowing or intentional.

Electronic storage is defined by the SCA as “(A) any temporary, intermediate storage of a

wire or electronic communication incidental to the electronic transmission thereof; and (B) any

storage of such communication by an electronic communication service for purposes of backup

protection of such communication.” 18 U.S.C. § 2510(17)(A), (B). In Anzaldua, the Eighth

Circuit held that the unsent draft of an email did not qualify as a an electronic communication

under the SCA “because the email had not been sent, its storage on the Gmail server was not

“temporary, intermediate,” and “incidental to the electronic transmission thereof.” In so holding,

the court cited a case from the First Circuit and one from the Southern District of New York for

the proposition that an email that has been sent but not yet retrieved does qualify as an electronic

communication in temporary, intermediate storage:

United States v. Councilman, 418 F.3d 67, 81 (1st Cir.2005) (en banc) (“The first

category ... refers to temporary storage, such as when a message sits in an e-mail

user's mailbox after transmission but before the user has retrieved the message

from the mail server.”); In re DoubleClick Inc. Privacy Litig., 154 F.Supp.2d 497,

512 (S.D.N.Y.2001) (“[The SCA] only protects electronic communications stored

‘for a limited time’ in the ‘middle’ of a transmission, i.e. when an electronic

communication service temporarily stores a communication while waiting to

deliver it.”).

Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 840 (8th Cir. 2015).

Plaintiff alleges that Defendants accessed her Gmail account and altered or deleted emails

stored there and also “commandeered” and deleted large portions of her Instagram account. She

further alleges that Defendants “received, read, saw, or reviewed” the email and Instagram

messages “while they were stored in temporary, intermediate storage incidental to transmission”

and before she had read them, and that the communications were “stored for backup protection.”

For purposes of stating a claim pursuant to Rule 12(b)(6), Plaintiff’s allegation suffice, and the

motion to dismiss this claim is denied.

Federal Wiretap Act. The second federal claim, asserted in Count VIII of the SAC, is for

violations of 18 U.S.C. §§ 2511 and 2520 of the Federal Wiretap Act. Section 2511 forbids a

person from intentionally intercepting any electronic communications. Section 2520 provides a

civil action for anyone whose communications were obtained in violation of the Federal Wiretap

Act.

The term “intercept” is defined by the Federal Wiretap Act as the “aural or other

acquisition of the contents of any wire, electronic, or oral communication through the use of any

electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). The term “electronic

communication” includes “any transfer of signs, signals, writings, images, sounds, data, or

intelligence” that is transmitted by a “system that affects interstate or foreign commerce.” Id. §

2510(12). While the Eighth Circuit has not spoken to the issue, “[e]very circuit court to have

considered the matter has held that an ‘intercept’ under the Act must occur contemporaneously

with transmission.” Luis v. Zang, 833 F.3d 619, 627 (6th Cir. 2016) (quotation marks omitted).

See also Henson v. Howard Univ., No. CV 19-2734 (JEB), 2020 WL 619853, at *3 (D.D.C. Feb.

10, 2020).

In support of this claim, Plaintiff alleges that Defendants “commandeered her Instagram

account and intercepted and received electronic messages intended for her,” preventing her from

receiving or reviewing the messages. She further alleges that Defendants “intercepted, and then

received, read, saw, or reviewed both email messages and Instagram messages that were

intended for Plaintiff” and that she has not seen or received the messages. Plaintiff does not

allege that the interceptions were contemporaneous with the transmission of those messages.

Her allegations that Defendants “intercepted” and received the Gmail and Instagram messages

intended for her is not sufficient to state a claim under the Federal Wire Tap Act. Defendants

motion to dismiss this claim is granted.

State Law Claims

Defamation. To prove defamation in Arkansas requires a private individual to prove the

following: (1) the defendant made a defamatory statement of fact; (2) the identification of or

reference to plaintiff in the statement; (3) the statement was published by the defendant; (4) the

defendant was at fault for the publication; (5) the statement was false; and (6) the plaintiff

sustained damages as a result of the statement. Northport Health Servs., Inc. v. Owens, 158

S.W.3d 164 (Ark. 2004).

Plaintiff bases her defamation claim on three writings undertaken by Defendants. First is

the formal written complaint that Defendants made to the Arkansas State Nursing Board (“the

Nursing Board”). The second is the September 13, 2019 letter Defendants sent to patients and

“others.” The third writing is the press release also dated September 13, 2019.1

In her SAC, Plaintiff alleges that the following statements in the complaint made to the

Nursing Board are false: that she engaged in a “systematic process of improperly accessing,

copying and downloading” comprehensive PHI information of LRPS patients; that Plaintiff

impermissibly acquired information “in excess of 5,000 patients”; and that she had been sharing

the PHI with unauthorized third parties. The letter written by Dr. Spann and sent to over 6,000

1 In support of their motion to dismiss, Defendants attach as exhibits copies of the letter and the

press release. (Doc. No. 21-1 and 21-2). Plaintiff asks the Court not to consider these documents

until both parties “have the opportunity to offer evidence supporting their respective positions.”

As these documents are clearly embraced by the SAC and her claims rest upon them, they are

proper for the Court to consider in this motion to dismiss. Neubauer v. FedEx Corp., 849 F.3d

400 (8th Cir. 2017).

individuals contains the following statements that Plaintiff challenges as false: that LRPS

discovered that “reports, images and other information” containing Protected Health Information

(PHI) of “several” patients had been downloaded by one of LRPS’s nurses to her personal email

without the knowledge or consent of LRPS; after the PHI breach was discovered and

investigated, the nurse was terminated; and that the nurse also had “obtained the Clinic’s log-in

information for one of the vendor accounts” which gave her access to further PHI. The press

release contained these same statements.

The first argument Defendants assert in support of their motion to dismiss the defamation

claim is, that to the extent that any statement they made was defamatory, the statements were

covered by qualified privilege. Under Arkansas law, when a statement is covered by qualified

immunity when it “is made in good faith upon any subject-matter in which the person making the

communication has an interest or in reference to which he has a duty, and to a person having a

corresponding interest or duty, although it contains matters which, without such privilege, would

be actionable.” Wal-Mart Stores, Inc. v. Lee, 74 S.W.3d 634, 653 (Ark. 2002). The Court in

Wal-Mart went on to explain that the qualified privilege “must be exercised in a reasonable

manner and for a proper purpose and that the immunity does not extend to irrelevant defamatory

statements that have no relation to the interest entitled to protection” and that it is lost “if it is

abused by excessive publication; if the statement is made with malice; or if the statement is made

with a lack of grounds for belief in its truthfulness.” Id. at 654.

Whether a qualified privilege covers a statement challenged as defamatory is a fact

question. Id. As it is an affirmative defense, it is not the Plaintiff’s burden to prove or defend at

this stage of the litigation. Furthermore, Defendants assume facts that are not alleged in the

SAC, such as that the information contained on her phone contained “protected health

information” that “would solely be for the purpose of patient treatment or by Dr. Spann” and

that the HIPPA breach affected 500 or more individuals (and may have affected more than 1,000

individuals). The SAC only alleges that Dr. Spann directed Plaintiff to create a Shutterfly

photobook for which she took photos on her personal phone---there is no description of what is

in the photos or how many patients, if any, were included in the photobook. In addition, the

SAC alleges that the claimed defamatory statements were sent to over 6,000 recipients, some of

whom were not currently and had never been patients of Defendants; the September 13, 2019

letter only states that the PHI of “several” patients had been downloaded. The motion to dismiss

the defamation claim based on the defense of qualified immunity is denied.

Defendants also move for dismissal of the defamation claim for failure to allege each of

the requisite elements. Defendants argue that Plaintiff has not sufficiently pleaded three of these

elements. First, Defendants argue that Plaintiff fails to sufficiently alleged that they were at fault

in the publication. This argument is based on the defense that Defendant’s had qualified

immunity for the statements that they made. As stated above, this theory rests upon facts that are

not alleged and are not properly before the Court.

Second, Defendants assert that Plaintiff has not sufficiently alleged that the statements

were defamatory or disparaging since, they argue, the content they published was required under

federal law. Whether the challenged statements were required by law does not address Plaintiff’s

burden to state her claim for defamation, but rather goes to proof of Defendants’ affirmative

defense. The allegations in the SAC are sufficient to show that the challenged statements were

defamatory or disparaging in that LRSD accused her of breaking the law and illegally accessing

PHI and sharing it with third parties.

Third, Defendants argue that Plaintiff’s allegations as to her damages are insufficient.

The Arkansas Supreme Court has stated that “a plaintiff must establish actual damage to his

reputation, but the necessary showing of harm is slight. Calvary Christian Sch., Inc. v.

Huffstuttler, 238 S.W.3d 58, 69 (Ark. 2006) (citing Ellis v. Price, 990 S.W.2d 543 (Ark. 1999).

A plaintiff can satisfy their burden of proof burden by establishing that the defamatory

statements were communicated to other individuals and were detrimental to plaintiff’s

relationships with those individuals; proof is not required of actual out-of-pocket expenses. Id. at

69. Here, Plaintiff has alleged that Defendants’ actions, including making the allegedly

defamatory statements, have resulted in “a sharp decline in business in her new position with

Franks Dermatology.” (Doc. No. 9, ¶ 47). This allegation is more than conclusory and is

sufficient to show damage.

Finally, Defendants mention in their motion to dismiss Plaintiff’s defamation claim that

she was not identified by name in the letter or the press release. The SAC contains allegations

that the challenged statements were clearly in reference to her, as evidenced by the number of

people who contacted her after the statements were released.2 Plaintiff has sufficiently alleged

each of the elements necessary to state a claim for defamation.

Tortious Interference with Contractual or Business Expectancy. A claim for tortious

interference with a business expectancy under Arkansas law requires proof of these elements: (1)

that the plaintiff had a business expectancy with a third party; (2) the defendant knew of the

2 See Tholen v. Assist Am., Inc., No. 19-1290, 2020 WL 4375034 (8th Cir. July 31, 2020)

(analyzing a defamation claim under Minnesota law with an identification element similar to

Arkansas’s that the “allegedly defamatory statement “must refer to some ascertained or

ascertainable person and that person must be the plaintiff.”) and 114 Am. Jur. Proof of Facts 3d

513 (Originally published in 2010) (citing Restatement (Second) of Torts § 564, cmt. d.) (“It is

not necessary that the plaintiff be specifically named in the communication to be defamatory, but

it must be clear to those who know and are acquainted with the plaintiff that the defamatory

statement was directed to him or her.”).

expectancy; (3) the defendant intentionally and improperly interfered and caused a breach or

termination of the expectancy; (4) the plaintiff sustained damages as a result. Baptist Health v.

Murphy, 373 S.W.3d 269, 281–82 (Ark. 2010).

Defendants argue that their actions were not improper on the basis that they were

required by federal and state law to report to patients the risk to their PHI. As discussed above in

connection with the defamation claim, neither the allegations in the SAC nor the exhibits

attached to the motion to dismiss establish that the statements publicized by Defendants were

legally required to be sent to either 6,000 individuals or published in a press release. Plaintiff

has alleged that after she left employment with Defendants, she used her personal Instagram

account for business purposes, including scheduling appointments with new and existing

patients. She further alleged that when Defendants took over her Instagram account and changed

her password, she lost requests for appointments that were intercepted by Defendants. Plaintiff

has sufficiently pleaded that Defendants’ acted improperly and interfered with her business

expectancy.

Defendants also argue that Plaintiff’s failure to state that she had a business expectancy

with any specific patient is fatal to her claim of tortious interference. Plaintiff will eventually

have to provide proof of specific clients or appointments that she lost as a result of Defendants’

actions. Apprentice Info. Sys., Inc. v. DataScout, LLC, 544 S.W.3d 39, 43–44 (Ark. 2018). She

alleges that both new and old patients had sent her scheduling requests via Instagram that she

never received because Defendants’ intercepted them and changed her password, which the

Court recognizes may be difficult to prove. However, the SAC contains allegations sufficient to

establish that Plaintiff had a business expectancy with third parties that Defendants were aware

of and improperly interfered with.

Outrage. A plaintiff must prove four elements to establish a claim for outrage, or

intentional infliction of emotional distress under Arkansas law: (1) the defendant intended to

inflict emotional distress or should have known that emotional distress was the likely result of its

conduct; (2) the defendant's conduct was extreme and outrageous, beyond all possible bounds of

decency, and utterly intolerable in a civilized community; (3) the defendant's conduct caused the

plaintiff emotional distress; and (4) the plaintiff's emotional distress was so severe that no

reasonable person could be expected to endure it. Crockett v. Essex, 341 Ark. 558, 563-64

(2000). The Arkansas Court of Appeals has described this tort as a “disfavored claim” and an

“extremely narrow tort, rarely recognized in Arkansas caselaw.” Sawada v. Walmart Stores, Inc.,

473 S.W.3d 60, 69 (Ark. App. 2015); Silverman v. Vill., No. 5:17CV00329 JLH, 2019 WL

2881586, at *8 (E.D. Ark. July 3, 2019) (quoting McAdams v. Curnayn, 239 S.W.3d 17, 22 (Ark.

App. 2006)).

The following are cases that refused to find the tort of outrage under Arkansas law:

Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991) (an

employer threatening his employee, hitting the employee, and then firing the

employee for “provoking a fight”); Ross v. Patterson, 307 Ark. 68, 817 S.W.2d

418 (1991) (a doctor who developed a substance abuse problem with drugs and

alcohol treating a pregnant patient while suffering from addiction, then being

unavailable at the time of the child's birth as a result of the substance abuse

problem); Kelley v. Ga.–Pac. Corp., 300 F.3d 910 (8th Cir. 2002) (a supervisor

providing an employee's 19–year–old daughter with narcotics, taking her to a strip

club, and watching her dance topless); and Crockett v. Essex, 341 Ark. 558, 19

S.W.3d 585 (2000) (a funeral director engaged in the following behavior: urging

participants in the funeral to hurry and to shorten the funeral service at the funeral

home; driving the hearse to the grave site in excess of sixty-five miles per hour,

thereby leaving mourners who otherwise would have attended the burial service

behind; acting annoyed during the burial service and hurrying the burial service

along; putting a disabled family member in another family member's car and

driving that car over graves and gravestones; and the funeral director talking on

his cell phone for an extended period of time during the funeral service).

Cannady v. St. Vincent Infirmary Med. Ctr., 537 S.W.3d 259, 267 (Ark. 2018) (fn. 1 of dissent).

Assuming the truth of the allegations of the SAC, these facts fall far short of conduct that was

extreme and outrageous, beyond all possible bounds of decency. Counsel should carefully

consider the context of existing law before filing suit on the basis of this exceptionally narrow

and disfavored tort. The claim for outrage is dismissed.

False Light. In support of her claim for false light, Plaintiff alleges that Defendants’

letter to former patients “and others” as well as the press release they submitted were “replete

with false and disparaging statements about Sims” which placed her in a false light before the

public. The claim of false light, “has two essential elements: the complaining party must show

(1) that the false light in which he was placed by the publicity would be highly offensive to a

reasonable person, and (2) that the defendant had knowledge of or acted in reckless disregard as

to the falsity of the publicized matter and the false light in which the plaintiff would be placed.”

Sawada v. Walmart Stores, Inc., 473 S.W.3d 60, 68–69 (Ark. App. 2015) (citing Dodrill v. Ark.

Dem. Co., 590 S.W.2d 840, 845 (Ark. 1979). The second element requires proof of actual

malice; “[t]here must be sufficient evidence to permit the conclusion that the Defendant, in fact,

entertained serious doubts as to the truth of his publication.” Dodrill at 845; Dodson v. Dicker,

812 S.W.2d 97, 99 (Ark. 1991). In addition to these two elements, Plaintiff must prove that she

suffered damages that were proximately caused by Defendants’ actions. Ark. Model Jury Instr.,

Civil AMI 423. Damages can include recovery for humiliation, embarrassment, and mental

anguish, regardless of the presence of any physical injury. Arkansas Law Of Damages § 33:11

(citing AAA T.V. & Stereo Rentals, Inc. v. Crawley, 679 S.W.2d 190 (Ark. 1984) and Olan Mills,

Inc. of Tex. v. Dodd, 353 S.W.2d 22 (Ark. 1962)).

Defendants argue that Plaintiff has not alleged any damages and also that the publicized

matter does not identify Plaintiff. Defendants also state that they believed the statements they

made and that they had a duty to report what they did. However, as previously stated, the

complaint sufficiently alleges that Defendants gave publicity to a matter concerning Plaintiff

from which she was readily identified by numerous people even though she was not identified by

name. Plaintiff also alleges that as a result of the statements, she experienced a sharp decline in

her business. Furthermore, the SAC alleges that and was contacted by many family members

and former patients after they leaned of the statements, which allows the reasonable inference

that Plaintiff suffered some embarrassment. The motion to dismiss the false light claim is

denied.

Conversion. To prove a claim for conversion, Plaintiff must establish that Defendants

“wrongfully committed a distinct act of dominion” over her property in a manner that was a

denial of or is inconsistent with her rights. Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73,

75 (Ark. 2016). Arkansas allows conversion claims based on “intangible property, such as

electronic data, if the actions of the defendant are in denial of or inconsistent with the rights of

the owner or person entitled to possession.” Integrated Direct Mktg., LLC v. May, 495 S.W.3d

73, 76 (Ark. 2016). Plaintiff has sufficiently alleged her claim of conversion.

Computer Trespass. Plaintiff alleges that Defendants committed computer trespass

pursuant to Ark. Code ann. §§ 5-41-104(a).3 This statute makes it a crime if a person

“intentionally and without authorization accesses, alters, deletes, damages, destroys, or disrupts

any computer, computer system, computer network, computer program, or data.” In two

sentences Defendants argue that “Plaintiff failed to specify what email, data, or computer

Defendants are alleged to have accessed,” failed to allege the contents of the email, and failed to

3 Ark. Code Ann. § 5-4-106 permits a civil action for a violation of this statute.

show how she was injured. Defendants propose too high a burden of proof at this stage of the

litigation. Plaintiff alleged that Defendants intentionally and without authorization accessed both

her personal email account and her Instagram account; that Defendants deleted emails,

intercepted Instagram messages, and changed the password on her Instagram account so she

could no longer access it; and that she suffered a “sharp decline” in business at her new job.

These allegations are sufficient to state a claim for computer trespass. See Jenkins v. APS Ins.,

LLC, 431 S.W.3d 356, 362 (Ark. 2013).

Sexual Harassment. Plaintiff’s claim for sexual harassment in the form of a hostile work

environment is brought pursuant to the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-

123-101, et seq. Courts look to cases interpreting Title VII when analyzing Arkansas sexual-

harassment claims. Island v. Buena Vista Resort, 103 S.W.3d 671, 675–76 (Ark. 2003).

Plaintiff must prove the following to prevail on this claim: (1) that she is a member of a protected

group; (2) that she was the subject of unwelcome sexual harassment; (3) that a causal nexus

existed between the harassment and protected group status; (4) that harassment affected a term,

condition, or privilege of employment; and (5) that her employer knew or should have known of

the harassment and failed to take prompt and effective remedial action. Hales v. Casey's Mktg.

Co., 886 F.3d 730, 735 (8th Cir. 2018). Regarding the fourth element, “the conduct must be

sufficiently severe or pervasive to create an environment that a reasonable person would find

hostile or abusive and that actually altered the conditions of the victim’s employment.” Hales v.

Casey's Mktg. Co., 886 F.3d 730, 735 (8th Cir. 2018) (citing Crist v. Focus Homes, Inc., 122

F.3d 1107, 1111 (8th Cir. 1997)).

The standards for establishing a hostile-work environment claim are demanding, and the

Supreme Court has tasked district and appellate courts to filter out complaints that do not rise to

the level of actionable harassment. See Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th

Cir. 2005) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788. (1998). “In determining

whether the conduct is sufficiently severe or pervasive, we look to the totality of 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.’” Duncan v. Gen. Motors Corp., 300 F.3d 928,

934 (8th Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Plaintiff alleges that sexually suggestive comments made to her by Dr. Spann during her

time at LRSD created a hostile work environment. The SAC attributes the following comments

to Dr. Spann: Plaintiff’s “boobs look good in that shirt” and other comments about her breasts;

Plaintiff was “making [him] think inappropriate things”; asking Plaintiff and her female

colleague “who is better in bed”; and “now, don’t go Matt Lauer on me,” or “I can’t say what I

want thanks to Matt Lauer.” (Doc. No. 19, ¶ 15.) She says Dr. Spann knew “this treatment” was

unwelcome—without alleging any facts to suggest this knowledge—and that was “unrelenting.”

(Id. at ¶ 16).

These comments do not rise to the level of actionable harassment as it has been analyzed

by the Eighth Circuit, which has recognized that not all conduct that is “well beyond the bounds

of respectful or appropriate is nonetheless insufficient to violate Title VII.” Paskert v. Kemna-

ASA Auto Plaza, Inc., 950 F.3d 535, 538 (8th Cir. 2020). The court in Paskert referenced two

other cases, as summarized by McMiller v. Metro, 738 F.3d 185, 188 (8th Cir. 2013), where

inappropriate conduct did not establish actionable conduct. In Duncan v. General Motors Corp.,

300 F.3d 928, 931-35 (8th Cir. 2002), a supervisor sexually propositioned [the employee],

repeatedly touched her hand, requested that she draw an image of a phallic object to demonstrate

her qualification for a position, displayed a poster portraying the plaintiff as the ‘president and

CEO of the Man Hater’s Club of America,’ and asked her to type a copy of a ‘He-Men Women

Hater’s Club’ manifesto. These actions facts were held not sufficiently severe or pervasive

enough to state a hostile work environment. Likewise, the court in LeGrand v. Area Resources

for Community and Human Services, found that “even more outrageous conduct, including

graphic sexual propositions and even incidental unwelcome sexual contact, did not establish

severe or pervasive conduct sufficient to be actionable. McMiller at 189 (citing LeGrand, 394

F.3d 1098, 1100–03 (8th Cir. 2005)).

Plaintiff cites to two district court cases in which the court denied the defendant’s motion

to dismiss claims of sexual harassment: Sharbine v. Boone Expl., Inc., No. 09-CV-1025, 2010

WL 892117 (W.D. Ark. Mar. 9, 2010) and Driver v. Big Daddy's on the Landing, LLC, No. 4:13-

CV-76 CEJ, 2013 WL 1720965, at *1 (E.D. Mo. Apr. 22, 2013). Plaintiff argues that the

allegations she makes are more egregious than the allegations that survived motions to dismiss in

those cases. The Court disagrees. In Sharbine, the plaintiff alleges that “her male co-workers

used crude and profane language around her and in reference to her” including “remarks about

[the plaintiff’s] genitals and what they would like to do to her in a sexual manner; also that a

male co-worker exposed himself to her. Sharbine at *1. The plaintiff also alleged that she

complained about this behavior to her supervisor but no action was taken. In Driver, the plaintiff

alleged that a coworker “touched her breasts and buttocks, rubbed his body against her, and

made explicit sexual comments and demands for sexual favors.” Driver at *1. She further

alleges that when she complained to two managers about the behavior, she was told to “deal with

it” and that she “should not come to work looking so sexy.” Id.

The statements Plaintiff attributes to Dr. Spann in her SAC are not as egregious as those

found in Sharbine and Driver. Also, unlike the plaintiffs in those cases, Plaintiff does not allege

that she complained about the comments Dr. Spann is alleged to have unrelentingly made.

Finally, Plaintiff does not allege that these statements unreasonably interfered with her work

performance, which is fatal to her claim. The motion to dismiss the sexual harassment claim is

granted.

Failure to Pay Last Paycheck. Plaintiff seeks an award of statutory penalties in the

amount of double her wages owed but not paid pursuant to Ark. Code Ann. § 11-4-405. This

statute requires an employer that discharges an employee to pay all the employees wages due by

the next regular payday or the employer shall be liable to the employee for double the wages due.

In support of this claim, Plaintiff alleges that LRPS made unlawful deductions from Plaintiff’s

final paycheck and that the final paycheck did not include all of the commission and hourly

wages she was owed. She further alleges that in spite of her formal demand, LRPS has failed to

pay her the rest of she is owed. In support of their motion to dismiss this claim, Defendants

simply argue against the allegations, stating that “[a]ll of [Plaintiff’s] wages and commission due

were on the final paycheck.” Defendant’s motion to dismiss the claim for statutory damages for

failure to pay her all her wages due is denied.4

Failure to Pay Commissions. Plaintiff concedes in her response that she is not entitled to

statutory damages pursuant to Ark. Code Ann. § 4-70-306 for Defendant’s failure to pay her the

commissions she alleges she is owed. Defendants’ motion to dismiss this claim is granted.

4 The Court considered dismissing this cause of action on the basis of Plaintiff’s allegation that

she voluntarily resigned rather than that she was discharged. See Krippendorf v. Mitchell, No.

4:05CV00888 JLH, 2006 WL 8445171, at *3 (E.D. Ark. Mar. 1, 2006) (“Arkansas law is clear

that an employee who quits his job is not entitled to the statutory penalty.”). However, Plaintiff

alleges that her voluntary departure date was unilaterally moved up when she refused to sign an

exit agreement and the September 13, 2019 letter and press release, which the Court is

considering, state that the nurse was terminated.

Conclusion

THEREFORE, the motion to dismiss (Doc. No. 20) is GRANTED in part and DENIED

in part. The motion to dismiss is granted as to the claims for violations of the Federal Wiretap

Act, outrage, sexual harassment, and for violations of Ark. Code. Ann § 4-70-306. The motion

to dismiss is denied as to the remaining claims, leaving Plaintiff’s claims for violations of the

Stored Communications Act, defamation, tortious interference with a business expectancy,

conversion, computer trespass, violation of § 11-4-405, and intrusion upon seclusion.»

IT IS SO ORDERED this 5" day of August, 2020.

UNITED \ ATES +. JUDGE

> Dismissal of this claim was not argued in Defendants’ motion to dismiss.

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