Armstrong v. University of Arkansas at Little Rock

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

ANGELA BRASWELL ARMSTRONG PLAINTIFF

v. CASE NO. 4:21-CV-1082-BSM

BOARD OF TRUSTEES OF

UNIVERSITY OF ARKANSAS DEFENDANT

ORDER

The Board of Trustees of the University of Arkansas’s (“UALR”) motion for

summary judgment [Doc. No. 15] is granted and Angela Armstrong’s sexual harassment and

retaliation claims are dismissed with prejudice.

I. BACKGROUND

Armstrong worked as a community health coordinator for twenty hours per week from

2016 to 2018 for the University District Development Corporation (the “UDDC”), a non-

profit that partners with UALR. Deposition of Armstrong at 56, 64-65, Doc. No. 18

(“Armstrong Dep. 1”); Aff. of Lee ¶ 2, Doc. No. 15-2. In 2018, she was hired by UALR’s

University District to work thirty hours per week. Aff. of Lee ¶ 4; Armstrong Dep. 1 at 75,

89. She was supervised by Barrett Allen during the five years she worked at the UDDC and

the University District. Aff. of Lee ¶ 9; Armstrong Dep. 1 at 56; Pl.’s Br. in Opp’n to Def.’s

Mot. for Summ. J. 4, Doc. No. 24. Armstrong is suing UALR claiming that Allen sexually

harassed her during the time she worked for the UDDC and the University District. Id. The

UDDC is an independent corporation and has not been made a party. Consequently,

Armstrong’s allegations against Allen while she was employed by the UDDC are not at issue

and are not considered.

In support of her sexual harassment claim against the University District, Armstrong

states that, between 2018 and 2020, Allen frequently invaded her personal space by standing

close to her, walking closely behind her, and coming into her office. Armstrong Dep. 1 at

111-13; Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. 16-17. On these occasions,

Armstrong would ask Allen to step back and he would do so. Armstrong Dep. 1 at 113. On

another occasion, Allen walked towards her so that he could hug her, but when Armstrong

raised her hands and said several times that she did not want a hug, Allen stopped and did

not touch her. Id. at 138-39.

On two occasions, Allen made unwanted remarks about Armstrong’s physical

appearance. Once, he said she had “gotten thick over the holidays,” id. at 134-35, and

another time, when she was wearing high heels, he said: “Oh, you got your heels on today.

You’re going to show your man what you’re working with.” Id. at 133. On both occasions,

Armstrong replied “Excuse me?” and Allen did not respond or make further comments. Id.

at 133-35.

On one occasion, Allen called Armstrong into his office to tell her that she would have

to take off for the remainder of the fiscal year because she had reached the maximum number

of hours allotted to her position. When Armstrong asked if she could return in July 2020,

Allen said “it depends.” Id. at 143-44. Allen neither explained this comment nor did he make

any suggestive comments or attempt to touch her. Id.

On another occasion, during the COVID pandemic, Allen participated in a video call

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with Armstrong while “loung[ing]” on his bed fully clothed. Id. at 147-49. Allen neither

explained why he was on his bed nor did he make any suggestive comments. Id.

On three occasions, Allen touched Armstrong. On the first occasion, he collided with

her in the hallway and his hand briefly touched her waist. Id. at 118-21. Armstrong admits

that this could have been inadvertent. Id. at 120. On another occasion, when the two were

alone after a social event, Allen asked for a hug and walked closer for a full frontal hug.

Armstrong, however, turned sideways and Allen touched her shoulder with one hand while

Armstrong patted Allen on the back. This contact lasted about two seconds. Id. at 129-31.

On the third occasion, while Allen and Armstrong were in close quarters in the office

kitchen, Allen placed his hand on Armstrong’s waist. This prompted Armstrong to

immediately spin away and chastise Allen. Id. at 114, 123-25. This incident lasted a couple

of seconds. Id. at 125.

Based on these events, Armstrong filed a Title IX complaint against Allen with UALR

on July 14, 2020. Aff. of Williams, ¶ 5; Doc. No. 15-6. The complaint was resolved by

informal resolution and UALR’s Title IX office concluded the case on August 25, 2020.

Deposition of Armstrong at 179, Doc. No. 19 (“Armstrong Dep. 2”); Aff. of Williams, ¶ 5;

Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. 8.

In support of her retaliation claim, Armstrong alleges that she was treated adversely

on a number of occasions after filing the Title IX complaint. First, when Armstrong called

in sick on September 8, 2020, Allen emailed her instructions for calling in sick. Armstrong

Dep. 2 at 183-86. Second, on September 10, 2020, Allen notified Armstrong that she had

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to return to a partially in-person work schedule, and then on October 2, he told her that she

had to fully return to an in-person work schedule. Id. at 189. Third, Allen assigned

responsibilities to Armstrong that she believed were not aligned with her position. EEOC

Charge at 2, Doc. No. 15-12; Armstrong Dep. 2 at 214-18. Fourth, Allen became agitated

and angry with Armstrong in meetings that took place on October 1, 2020 and November 10,

2020. Armstrong Dep. 2 at 205-08, 221-22. Fifth, on October 8, 2020, Allen requested that

Armstrong leave her office door open when she was alone in the building and afterward

frequently entered her office, which made her uncomfortable. Id. at 198-99; EEOC Charge

at 2. Sixth, Allen repeatedly directed Armstrong in October 2020, to revise her work on a

garden report without providing substantive feedback, which caused her to miss a deadline

on another project. Armstrong Dep. 2 at 201-02, 204. Seventh, UALR’s Vice Chancellor

for University Affairs, Joni Lee, notified Armstrong on November 19, 2020, that her work

hours would be reduced from thirty hours to twenty hours per week starting January 1, 2021.

This notice was in response to Armstrong’s concerns about being required to perform certain

duties. Aff. of Lee, ¶ 9; Armstrong Dep. 2 at 214, 216, 219. Eighth, Armstrong was notified

on November 19, 2020, that her position was being eliminated on June 30, 2021 due to

UALR’s budgetary constraints. Aff. of Lee ¶ 9.

On April 5, 2021, Armstrong filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”), marking the boxes for retaliation and sex

discrimination. EEOC Charge. The charge alleges that UALR took the actions described

in the preceding paragraph against Armstrong in retaliation for reporting Allen for sexual

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harassment. Id. After receiving a right-to-sue letter from the EEOC on August 16, 2021,

Armstrong filed this suit against UALR alleging sexual harassment and retaliation. UALR

moves for summary judgment on both claims.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50 (1986). Once the moving party

demonstrates that there is no genuine dispute of material fact, the non-moving party may not

rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,

340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence

demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must

be drawn in a light most favorable to the nonmoving party. Holland v. Sam’s Club, 487 F.3d

641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility determinations are

made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008). “[S]ummary judgment is not

disfavored and is designed for ‘every action’ . . . including [those] alleging discrimination

. . . .” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)(quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

III. DISCUSSION

UALR’s motion for summary judgment is granted because Armstrong’s sexual

harassment claim is time-barred because it was not administratively exhausted, and because

she has not shown that she was subjected to retaliation for engaging in protected conduct.

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A. Sexual Harassment

Armstrong alleges that Allen sexually harassed her by creating a hostile work

environment. UALR is moving for summary judgment because Armstrong failed to

administratively exhaust this claim and because it is time-barred.

1. Limitations Period

Summary judgment is granted on Armstrong’s sexual harassment claim because it is

time-barred. This is true because a charge of discrimination must be filed within 180 days

of the discriminatory acts at issue in the charge. 42 U.S.C. § 2000e-5(e)(1). Armstrong’s

April 5, 2021, EEOC charge is based on the same conduct that was the subject of her July

14, 2020, Title IX complaint. Consequently, it was filed approximately 265 days after the

alleged sexual harassment.

2. Exhaustion of Administrative Remedies

UALR also argues that the charge Armstrong filed alleges a sex discrimination claim

but not a sexual harassment claim. Def.'s Br. in Supp. of Mot. for Summ. J. 13, Doc. No. 16.

In response, Armstrong argues that her charge was sufficient to place UALR on notice that

she intended to assert a sexual harassment claim. Pl.’s Br. in Opp. to Mot. for Summ. J.

15-16. Armstrong’s hostile work environment claim was not exhausted because her EEOC

charge did not provide notice of her hostile work environment claim.

In the charge, Armstrong checked two boxes indicating that she was reporting

discrimination based on sex and retaliation. EEOC Charge at 1. Although sexual harassment

is a form of sex discrimination, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64

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(1986), Armstrong’s charge describes her sexual harassment as occurring before July 15,

2020, when she filed the Title IX complaint. The charge then alleges that a number of

adverse employment actions were taken against her in retaliation for filing that complaint.

EEOC Charge at 2 ("After the [Title IX] complaint was closed, the retaliation started.").

Indeed, the charge discusses sexual harassment only as the reason that she filed the Title IX

complaint, and it lacks any description of harassing acts or indication that the harassment

continued after she filed the Title IX complaint. EEOC Charge.

Armstrong’s charge is not sufficient to exhaust her sexual harassment claim because

its mere reference to the Title IX complaint was “not enough to exhaust, for Title VII

purposes,” the claims in the Title IX complaint. See Williams v. Little Rock Mun. Water

Works, 21 F.3d 218, 222-23 (8th Cir. 1994). Merely mentioning sexual harassment in

reference to her Title IX complaint does not exhaust her hostile work environment claim.

Although Armstrong argues that her hostile work environment claim is exhausted

because the EEOC charge alleges that Allen made her uncomfortable by entering her office,

Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. 16, this argument is not supported by the

record. This is true because the record clearly shows Armstrong’s allegations regarding

Allen entering her office were made in support of her retaliation claim and not as part of her

hostile work environment claim. Armstrong identified Allen’s entering her office as an act

of retaliation in both her EEOC charge and her deposition. See Def.’s Reply Br. in Supp. of

Mot. for Summ. J. 3; Armstrong Dep. 1 at 100. Armstrong’s complaint and deposition

testimony clearly place her retaliation claim after her hostile work environment claim. See

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Am. Compl. ¶¶ 41-45, Doc. No. 7; Armstrong Dep. 1 at 98. And in her deposition,

Armstrong confirmed that she had described “every instance” of sexual harassment, having

failed to identify Allen entering her office as sexual harassment at any point. Armstrong

Dep. 2 at 234. There is no genuine dispute of material fact that the EEOC charge does not

allege any facts providing notice of a sexual harassment claim.

B. Retaliation

Armstrong alleges that UALR retaliated against her after she filed the Title IX sexual

harassment complaint against Allen. To establish a prima facie case of retaliation,

Armstrong must show that: (1) she engaged in protected conduct; (2) she suffered a

materially adverse employment action; and (3) retaliation for the protected conduct is the

“but for” cause of the adverse employment action. See Jackman v. Fifth Jud. Dist. Dep’t of

Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013). The parties do not dispute that the filing of

a Title IX sexual harassment complaint is protected conduct. UALR moves for summary

judgment arguing that some of the adverse employment actions cited by Armstrong are time-

barred, and that the others either do not qualify as materially adverse employment actions or

were not taken in retaliation for Armstrong’s protected conduct.

1. Limitations Period

UALR first argues that some of the acts cited by Armstrong in support of her

retaliation claim are time-barred under 42 U.S.C. § 2000e-5(e)(1)’s 180-day limitation

period. Unlike Armstrong’s hostile work environment claim, “each retaliatory adverse

employment decision constitutes a separate actionable ‘unlawful employment practice.’”

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Liles v. C.S. McCrossan, Inc., 851 F.3d 810, 821 (8th Cir. 2017)(quoting Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)). Armstrong filed her EEOC charge

on April 5, 2021. The following acts are time-barred because they occurred before October

7, 2020: (1) Allen emailing Armstrong a process for calling in sick; (2) Allen informing

Armstrong that she would need to resume in-person work; (3) Allen assigning Armstrong

responsibilities that she believed were not aligned with her position; and (4) Allen becoming

agitated and angry with Armstrong about the garden report.

2. Materially Adverse Employment Actions

Summary judgment is granted on Armstrong’s claims that Allen (1) regularly entered

her office; (2) was overly critical of her work; and (3) was agitated and angry with her when

she refused to train students on a particular task, because these actions were not materially

adverse to Armstrong’s employment. While these actions might have been unpleasant, they

did not cause a materially significant disadvantage to Armstrong and appear to be the sort

of “petty slights or minor annoyances that often take place at work.” Burlington N. & Santa

Fe Ry. v. White, 548 U.S. 53, 68 (2006). “[N]ot everything that makes an employee unhappy

is an actionable adverse action.” Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 632 (8th

Cir. 2016)(citation omitted). Moreover, “minor changes in duties or working conditions,

even unpalatable or unwelcome ones, which cause no materially significant disadvantage,

do not rise to the level of an adverse employment action.” Jackman, 728 F.3d at 804.

Finally, these actions are not the type of actions that “might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Lisdahl v. Mayo Found. 633

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F.3d 712, 720 (8th Cir. 2011)(quoting Burlington, 548 U.S. at 68).

3. Causal link between Title IX complaint and retaliatory acts

Summary judgment is granted on Armstrong’s claims that her hours were reduced

from thirty to twenty hours per week and that she was ultimately laid off. Although these are

clearly materially adverse employment actions, the record does not show that they were taken

in response to the Title IX complaint. The Title IX complaint was filed on July 14, 2020,

while notice of the reduction of Armstrong’s hours and the elimination of her position was

given on November 19, 2020. Aff. of Lee ¶ 8; Armstrong Dep. 2 at 226.

Armstrong argues that there is a genuine dispute of material fact on her retaliation

claim because an inference of retaliation can be drawn from the proximity between the filing

of the Title IX complaint and these adverse acts. Armstrong’s argument is understandable,

but without any other evidence from which to infer retaliation, it is not sufficient to overcome

UALR’s motion for summary judgment because four months elapsed between the time that

Armstrong filed her Title IX complaint and the time she was notified that her hours were

being reduced and that her position was being eliminated. See Peterson v. Scott Cnty., 406

F.3d 515 (8th Cir. 2005)(“[M]ore than a temporal connection between the protected conduct

and the adverse employment action is required to present a genuine factual issue on

retaliation.”); E.E.O.C. v. Kohler Co., 335 F.3d 766, 774 (8th Cir. 2003)(“The further in

proximity the decision to terminate is from the protected activity, the less suspect the

decision to terminate becomes.”). “The inference [of retaliation] vanishes altogether when

the time gap between the protected activity and the adverse employment action is measured

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in months.” Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011). Indeed, it

has been held that a two-month gap between protected activity and the alleged retaliation so

dilutes “any inference of causation that .. . as a matter of law [] the temporal connection

could not justify a finding in [the plaintiffs] favor on the matter of causal link.” Kipp v. Mo.

Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002).

IV. CONCLUSION

For the foregoing reasons, UALR’s motion for summary judgment [Doc. No. 15] is

granted.

IT IS SO ORDERED this 29th day of August, 2023.

X no IVa

UNITED STATES DISTRICT JUDGE

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