King v. Baxter County, Arkansas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

TABATHA L. KING PLAINTIFF

VS. Civil No. 3:21-CV-03086-MEF

BAXTER COUNTY, ARKANSAS;

JOHN MONTGOMERY, Sheriff;

SERGEANT STEVEN GOODE; and DOES 1-10 DEFENDANTS

MEMORANDUM OPINION AND ORDER

Plaintiff, Tabitha King (“King”), worked as a jailer/matron of the Sheriff’s Department of

Baxter County, Arkansas (“Baxter County”) from February 2018 until she was terminated by

Sheriff John Montgomery (“Sheriff Montgomery”) on April 23, 2021. She brings this action

against her former employer, Baxter County; against Sheriff Montgomery, in his individual and

official capacity; against Steven Goode (“Goode”), a former sergeant for the Sheriff’s Department,

in his individual and official capacity; and against Does 1–10, in their individual and official

capacities.

King alleges that she was the victim of sexual harassment and retaliation in violation of

Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1983; the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution; and the Arkansas Civil Rights Act (“ACRA”), Ark.

Code Ann. § 16-123-101, et seq. She also asserts state-law claims against Goode and Baxter

County for the tort of outrage and as the alleged victim of a criminal act, pursuant to Ark. Code

Ann. § 16-118-107, and against Baxter County and Sheriff Montgomery for negligent entrustment.

Finally, King seeks a judgment declaring that the statutory cap on damages under the ACRA and

the immunity provided by Ark. Code Ann. § 21-9-301 violate the Arkansas Constitution.

Defendant Goode, in his individual capacity, filed a Motion for Summary Judgment on

October 30, 2023.1 (ECF Nos. 75-77). Baxter County, Sheriff Montgomery, and Goode, in his

official capacity (the “Separate Defendants”), also filed their Motion for Summary Judgment on

that date. (ECF Nos. 78-80). King filed her Response in opposition to both motions for summary

judgment on November 22, 2023. (ECF Nos. 92-94). With leave of Court, the Separate

Defendants filed a Supplement in Support of Motion for Summary Judgment on December 8,

2023. (ECF No. 99). Defendant Goode, in his individual capacity, and the Separate Defendants

filed Replies on December 8, 2023. (ECF Nos. 100, 101). The motions for summary judgment

are ripe for decision. For the reasons given below, the motions for summary judgment are

GRANTED IN PART and DENIED IN PART.

I. PLAINTIFF’S VOLUNTARY DISMISSAL REQUESTS

As an initial matter, the Court addresses King’s requests for dismissal of certain of her

claims. In her summary judgment response, King requests dismissal of Defendants Does 1–10,

and she seeks dismissal without prejudice of her claims brought against Baxter County and Sheriff

Montgomery for the tort of outrage and civil action by a crime victim. Defendants do not oppose

either request, but Baxter County and Sheriff Montgomery seek a dismissal with prejudice for the

claims of outrage and civil action by a crime victim brought against them.

Rule 41(a)(2) dismissals, which apply once an answer or motion for summary judgment

has been served, are contested dismissals that require a district court’s approval and a court order.

1 Defendant Goode is represented by separate counsel on the claims brought against him in his

individual capacity.

Adams v. USAA Cas. Ins. Co., 863 F.3d 1069, 1079 (8th Cir. 2017); Fed. R. Civ. P. 41(a)(2). “Rule

41(a)(2)’s purpose ‘is primarily to prevent voluntary dismissals which unfairly affect the other

side.’” Id. (quoting Paulucci v. Duluth, 826 F.2d 780, 782 (8th Cir. 1987)). If the plaintiff either

moves for dismissal without prejudice or fails to specify whether the request is for dismissal with

or without prejudice, the matter is left to the discretion of the court. Beavers v. Bretherick, 227 F.

App’x 518, 520 (8th Cir. 2007). Under some circumstances, the trial court may order that a Rule

41(a) dismissal be granted with prejudice. See, e.g., Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.

1998) (refusal to dismiss without prejudice not an abuse of discretion when defendant had

expended considerable time and money defending suit, plaintiff had not been diligent, plaintiff's

claims were precluded by law, and defendant had moved for summary judgment); Metro. Fed.

Bank of Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d 1257, 1263 (8th Cir. 1993) (observing that if

a defendant demonstrated a valid defense to a plaintiff’s claims, a district court would abuse its

discretion by granting a plaintiff's motion to voluntarily dismiss without prejudice).

In exercising its discretion to determine whether to grant a motion to voluntarily dismiss

without prejudice under Fed. R. Civ. P. 41(a)(2), a district court should consider the following four

factors: (1) the defendant’s effort and the expense involved in preparing for trial; (2) excessive

delay and lack of diligence on the part of the plaintiff in prosecuting the action; (3) insufficient

explanation of the need to take a dismissal; and (4) the fact that a motion for summary judgment

has been filed by the defendant. Paulucci, 826 F.2d at 783; Adams, 863 F.3d at 1080 (noting that

in determining a contested motion for voluntary dismissal under Rule 41(a)(2), a district court

should consider factors such as whether the party has presented a proper explanation for its desire

to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a

dismissal will prejudice the defendants).

Here, the Defendants have expended effort and expense in preparing for trial, King has not

offered any explanation of the need to take a dismissal, and the Defendants have filed motions for

summary judgment. Considering these factors, King’s request to dismiss the Defendant Does 1–

10 is GRANTED, but with prejudice. King never identified and moved to substitute anyone in

place of a Defendant Doe in this matter. King’s request to dismiss the state-law claims for the tort

of outrage and civil action by a crime victim brought against Baxter County and Sheriff

Montgomery is also GRANTED, but these claims will also be dismissed with prejudice.

In light of the foregoing rulings, the claims that remain for this Court’s consideration are

as follows: the Title VII and ACRA claims of sexual harassment and retaliation against Baxter

County; the § 1983 claims for sexual harassment against Sheriff Montgomery and Goode; the

state-law negligent entrustment claim against Baxter County and Sheriff Montgomery; the state-

law claims against Goode for the tort of outrage and civil action by a crime victim; and the claims

for declaratory judgment on the statutory cap on damages under the ACRA and the immunity

provided by Ark. Code Ann. § 21-9-301.

II. FACTUAL BACKGROUND

The following facts are undisputed and taken from Defendants’ statements of undisputed

facts (ECF Nos. 77, 80), and King’s responses to Defendants’ statements of undisputed facts (ECF

No. 93), unless otherwise specified by citation.

King began working as a jailer/matron at the Baxter County Sheriff’s Department

(“BCSD”) in 2018. She also worked as a volunteer reserve deputy sheriff, which allowed her to

carry a badge and firearm. Upon beginning her employment, King received a copy of Baxter

County’s general orders and its policies and procedures manual. The manual contains a section

prohibiting sexual harassment, which informs employees about the BCSD’s anti-harassment

policy, prohibited activities, employees’ responsibilities, and how to complain about harassment

in the workplace. (ECF No. 75-3 at 3, 6-7). It further contains a disciplinary policy that provides

a graduated discipline system for improper conduct, and it provides that misconduct or gross

misconduct may warrant higher levels of discipline in the discretion of the Sheriff or Chief Deputy.

(ECF No. 75-1 at 18, 20). Misconduct includes making a false report or giving untruthful or

incomplete answers to questions or inquiries made by a supervisor, and failing to properly care for

and use Sheriff’s Office equipment.

The Alleged Sexual Assault

When King was hired, Goode had been working at the BCSD since 2017. He started part-

time as a jailer but went full-time in 2018, and at some point, he attained the rank of corporal, and

then sergeant. (ECF No. 93-4 at 3). King alleges that in spring 2019, she was assisting Goode,

then a corporal, with moving inmate mats to a storage room above the jail. She said once they

were inside the room Goode pushed her to the ground onto her knees and forced his penis into her

mouth; she pushed him off, and he told her she better keep her mouth shut or he would find a way

to have her fired and said that no one would believe her. She said this all happened in a few

seconds, that she did not yell for help, and she did report that she had been sexually assaulted.

King says she did not report this event “because of fear” and because she felt no one would believe

her.

Goode testified in discovery that sometime after he had begun working full time, he and

King had a “romantic or physical relationship.” (ECF No. 93-4 at 3). He also said it was not a

sexual relationship, that he had not engaged in any sexual contact with her, and that she had never

performed oral sex upon him. (Id. at 4). He said they flirted and had open and trusting

conversations. He did not recall if they had engaged in “sexting.” (Id.). He said many times when

they were leaving the tower, King would grab him in the stairwell and want to kiss, but he never

initiated it. (Id. at 8, 10). He admitted that they kissed in the storage room above the jail where

the inmate mats were kept. (Id. at 8).

Goode acknowledged that there had been a sexual encounter in the storage room above the

jail, but he said it occurred in the fall of 2019, and that King initiated it. (ECF No. 93-4 at 8-9).

As Goode described it, he asked King to assist him with storing inmate mats while other employees

were occupied, and, when he and King entered the storage room, she implied that she was not there

to help store the mats, said “you know what I want,” went toward Goode, and “temptation took

over[.]” (Id. at 9). Goode said they began kissing, touching, and that King unfastened his belt and

pants, grabbed his penis, and asked him to “take her on the mats[,]” but they were interrupted when

Goode heard the voice of another jailer asking if they needed any help. (Id.).

Texting and Rumors About Inappropriate Photographs

Sometime between August and December 2019, Goode and King texted each other

frequently, and their texts included photographs. King said there were “a lot” of photos, but she

saved only three. One of the photos depicts Goode’s penis and is followed by the question, “U

want,” to which King responded, “Why” and “Stop it.” Goode then replied, “Darn.” (ECF No.

No. 75-5 at 9). Two other photographs texted to King depict Goode in his underwear, and one

includes responses from King saying, “Why” and “Just why.” When Goode asked, “What,” King

responded, “Makes me mad.” (Id. at 10).

At some point, King also sent Goode a photograph depicting her with her blouse

unbuttoned. (ECF No. 77 at 5). Goode also sent King a text message about “how much fun we

could have if we all got together,” to which King responded, “Did you just say three some !!!”

(ECF No. 77 at 4).

According to King, she went to another employee, Ethan Raymond, and asked if there was

a way to block photos without blocking text messages from the sender. She says rumors about

photographs then began to circulate, and eventually Dawn Dunford approached her about them

and, after that, got the photographs from King by text and said that she would report them to the

Division Commander, Lieutenant Brad Lewis. (ECF No.75-2 at 19-20). The summary judgment

record reflects that Ethan Raymond indicated that in 2019 he learned of rumors involving

inappropriate photographs or text messages sent by Steven Goode to Tabitha King. (ECF No. 75-

15 at 39). Raymond said that Dawn Dunford showed him the photographs at some point in 2020,

and the photographs were on Dunford’s phone. Raymond described his and Dunford’s demeanor

as “disgusted.” (Id.).

In her investigatory interview on May 7, 2021, Dunford reported that King had shown her

the photographs 10 to 12 months earlier and implied that she had received them unsolicited.

Dunford stated that she was shocked and told King she needed to file a complaint. Dunford

subsequently received the photographs from King by text. (Id. at 13). The summary judgment

record reflects that Lieutenant Lewis learned of the photographs from Dawn Dunford at about the

same time. (Id. at 2).

King Asks Captain Jeff Lewis About How to Handle Employee Harassment

King also visited Captain Jeff Lewis sometime between the end of 2019 and early 2020,

and she asked—as “Tabby to Jeff” and not as “captain-and-jailer”—what to do if another employee

at the BCSD was harassing her.2 According to both King and Captain Lewis, during this meeting

Captain Lewis told King that BCSD has written policies in place that prohibit harassment in the

workplace; and if it was taking place, she had to report it so that it could be investigated. (ECF

2 Captain Jeff Lewis and Lieutenant Brad Lewis are brothers.

No. 101-1 at 6-7; ECF No. 75-2 at 19-20). Captain Lewis says he told her she was required to

report it and asked if she wanted to make a complaint; King answered “no.” (ECF No. 101-1 at

6). At her grievance hearing before the Baxter County Quorum Court, King testified that she told

Captain Lewis that “someone was sending [her] inappropriate pictures of their penis and their

face,” and that she told the person, “Please stop. This is making me mad. Why are you doing

this?” King testified in her deposition that she did not identify anyone as a harasser to Captain

Lewis in this meeting. (ECF No. 75-2 at 19-20).

Sheriff Montgomery’s Response to Rumors About the Photographs

Sheriff Montgomery became aware of the rumors that King and Goode had sent

inappropriate photos “back and forth” in late December 2019 or early January 2020. (ECF No.

80-1 at 7). He addressed the issue with Goode, advising him that if it was true, it needed to stop

immediately. The Sheriff provided an affidavit in which he states that, within the same week,

Lieutenant Lewis also advised him that Goode had sent photographs to King. The Sheriff told

Lieutenant Lewis that he had already addressed the issue with Goode. (ECF No. 80 at 7). After

this point, King received no further photographs from Goode. She does claim that he continued

to harass her. (ECF No. 93-1 at 2).

Personnel Matters From 2019 to 2021 that King Claims Were Retaliatory

On December 18, 2019, King verbally asked Corporal Ethan Raymond and Lieutenant

Brad Lewis for placement on a different rotation or shift. King did not formally request a shift

change in writing, and Lieutenant Lewis denied the request, saying “[w]e put you where we need

you.” (ECF No. 77 at 5).

King alleges that in October of 2020, Goode denied her request to leave work to go to the

hospital “due to an urgent issue with a pending pregnancy.” The summary judgment record reflects

that King was diagnosed with having a painful, irregular menstrual cycle, and she was discharged

that night with instructions to follow up with her primary care provider. (ECF No. 77 at 7).

In March 2021, Goode wrote a performance evaluation of King, noting that she was

“proficient in performing her job in the jail,” but he “would like [her] to listen to supervisors when

instructed to do an assignment without arguing.”3 Goode also noted that “if there is an issue about

getting to work on time[,] let supervisors know as soon as possible.” (ECF No. 77 at 7-8). King’s

annual performance evaluation the following month graded her at “below expectations” for

reporting to work on time and noted that she had multiple instances of arguing with supervisors,

but she was ultimately evaluated as “meeting expectations” and was recommended for a merit pay

increase. (Id. at 8). King approached Captain Lewis about the negative aspects of the evaluation,

and she was permitted to write a response to the evaluation on the form, and did so, disputing that

she ever argued with supervisors. (Id.).

Sometime in 2021, King notified the nurse at the BCSD that she was taking anti-anxiety

medication. As a result, her gun and badge privileges as a volunteer reserve deputy were

suspended, pending receipt of a doctor’s note stating that it was safe for her to carry a gun while

on the medication. King provided a note from her doctor the following day, and her privileges

were restored without any loss in pay. (ECF No. 77 at 8).

King’s Misuse of County Property, Dishonesty About It, and Termination

On April 14, 2021, King was in “D Pod” of the jail when another jailer, Dawn Laurie,

entered the pod behind King and lightly pushed her from behind. King turned around and lightly

3 King previously had received verbal coaching from Sergeant Tony Beck for initially refusing to

perform work assigned to her by Corporal Raymond, and then yelling at Corporal Raymond that

she “want[ed] off [his] fucking shift.” (ECF No. 77 at 5). Corporal Raymond had noted in an

annual performance evaluation that King “is, at times, insubordinate to her supervisors and has

been written up on such in the past.” (Id.).

pushed Laurie back, began to walk away, and then turned back and re-entered the pod. King then

grabbed the electronic device Laurie was holding (known by BCSD staff as a “Guardian”) and she

tossed it across the room onto the floor, where it broke apart. King picked up the parts of the

Guardian and reassembled it. She then took a pen from Laurie’s shirt pocket and threw it to the

ground. Laurie later reported the incident, and she and King subsequently gave written statements

about it. (ECF No. 77 at 8-9).

On April 19, 2021, Laurie submitted a statement that she entered “D Pod,” approached

King from behind, and said “boo,” at which point King turned around, took the Guardian from her,

and threw it across the pod, where it came apart. Laurie also reported that King told her she would

regret it if she told anyone what happened. (ECF No. 77 at 9-10). King submitted a statement,

saying Laurie snuck up behind her, squeezed her ribs, and yelled to scare her. King stated that she

reacted by jumping, hitting Laurie’s hand in the process, and knocking the Guardian device to the

ground. (Id. at 10). Video footage of the Guardian incident was reviewed by Sheriff Montgomery

and Division Commander, Lieutenant Brad Lewis. After determining that King’s written statement

was not consistent with what the video showed about the incident, Sheriff Montgomery decided to

terminate King’s employment pursuant to his no-tolerance policy against employees lying during

investigations. (Id.).

King’s Reports of Harassment and Sexual Assault

Sheriff Montgomery terminated King on April 23, 2021. Later that day, she met with

Sheriff Montgomery and indicated, for the first time, that she had been sexually harassed while

employed at BCSD. (ECF No. 77 at 10). The next day, King went to Sergeant Jackie Stinnett,

with the Criminal Investigations Division of the Arkansas State Police, and she reported that Goode

had sent her nude photographs in 2019. King showed Sergeant Stinnett screenshots of the

photographs on her cell phone, but she refused to let him download a copy of the photographs and

other text messages between her and Goode. King did not report that Goode (or anyone else) had

sexually assaulted her. (Id. at 10-11). Two weeks later, King returned to Sgt. Stinnett’s office to

again discuss the photographs. Sgt. Stinnett informed King that ASP was not investigating the

complaint as a criminal matter, and he told her she could report it to the prosecuting attorney. A

month later, King’s attorney called Sergeant Stinnett and stated that Goode had raped King. (Id.

at 11).

King filed a grievance regarding her termination. (ECF No. 77 at 11). She explained that

the discrepancies in her written report of the “Guardian incident” were excusable because she

prefaced the report with “I don’t recall,” and she claimed she was on medication due to the stress

of working with a superior who had been sexually harassing her. Her written grievance made no

mention of rape or sexual assault, and she did not name the superior she claimed was sexually

harassing her. (Id. at 11-12). Baxter County opened an investigation into the report of sexual

harassment and retaliation, interviewing 70 employees. Of those employees interviewed, 14

indicated firsthand knowledge of King’s receipt of inappropriate photographs. (Id. at 12).

The Baxter County Quorum Court held a hearing on King’s grievance and heard from

Sheriff Montgomery, Dawn Laurie, and King. (ECF No. 77 at 13). During her testimony, King

maintained her version of the incident, stating that she reacted, hit Laurie’s hand, and the device

“went flying.” King also testified that when she met with Sheriff Montgomery on the day of her

termination, she told him she had reported sexual harassment and retaliation two weeks prior. She

did not testify that she had been sexually assaulted by a Baxter County employee. And when asked

if she had ever had sexual contact with Goode, she testified “no.” The quorum court upheld King’s

termination. (Id.).

King filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on June 28, 2021, and on September 2, 2021, the EEOC issued its

Dismissal and Notice of Rights. (ECF No. 2 at 13-17; ECF No. 77 at 14). King then filed her

initial Complaint in this matter on December 15, 2021. (ECF No. 2).

III. LEGAL STANDARD

The standard for summary judgment is well established. “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact, and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Krenik v. County of

LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This is a “threshold inquiry of ... whether there is a

need for trial—whether, in other words, there are genuine factual issues that properly can be

resolved only by a finder of fact because they reasonably may be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is “material” only when its

resolution affects the outcome of the case. Id. at 248. A dispute is “genuine” if the evidence is

such that it could cause a reasonable jury to return a verdict for either party. Id. at 252. The Court

must consider all the evidence, and all reasonable inferences that arise from the evidence, in a light

most favorable to the non-moving party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d

841, 845 (8th Cir. 2006). “In considering a motion for summary judgment the court does not weigh

the evidence, make credibility determinations, or attempt to discern the truth of any factual issue.”

Great Plains Real Estate Dev., L.L.C. v. Union Cent. Life Ins. Co., 536 F.3d 939, 943-44 (8th Cir.

2008).

IV. DISCUSSION

A. Title VII and ACRA Gender Discrimination and Retaliation Claims

Title VII “provides remedies to employees for injuries related to discriminatory conduct

and associated wrongs by employers.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342,

(2013). Sexual harassment in the workplace is a form of discriminatory conduct that is prohibited

not only by Title VII, Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72-73 (1986), but also by the

Arkansas Civil Rights Act (“ACRA”), Island v. Buena Vista Resort, 352 Ark. 548, 556-59 (2003).

King’s sexual harassment claims under both Title VII and the ACRA are identical, and she does

not contend that state law provides her any rights that she does not have under Title VII. Further,

the Arkansas Supreme Court looks to interpretations of Title VII as persuasive authority for

interpreting the ACRA. See Island, 352 Ark. at 556–57; see also Ark. Code § 16–123–105(c);

Crone v. United Parcel Service, Inc., 301 F.3d 942, 945 (8th Cir. 2002). For these reasons, the

Court considers King’s Title VII and ACRA claims together.

As an initial matter, the Court notes that the Separate Defendants, Baxter County, Sheriff

Montgomery, in his individual and official capacities, and Goode, in his official capacity, assert

that King’s Title VII claims are untimely because she failed to file her EEOC charge of

discrimination within 180 days from the date of the discriminatory acts that she complains of, and

because she failed to file this lawsuit within 90 days after receipt of the electronic notice from the

EEOC dismissing her charge of discrimination. The Defendants also assert that King’s ACRA

claims are time barred.4 On December 29, 2023, this Court ruled that the Separate Defendants

would not be granted leave to amend their answer to belatedly assert the statute of limitations as

4 In his individual capacity, Goode also asserts that King’s ACRA claim, to the extent she asserts

such a claim against him in his individual capacity, is time barred. As the Court has noted, infra,

King has expressly stated that she does not bring such a claim against Goode.

an affirmative defense because they had not demonstrated the requisite diligence. (ECF No. 105).

The Court noted that the facts underpinning the Separate Defendants’ assertions of the defense

were available at the outset of the case, and they failed to adequately explain why they did not seek

leave to amend their answer to assert the affirmative defense by the scheduled amendment deadline

of August 24, 2022. (Id. at 5–8). For the reasons stated in that Order, the Court will not consider

the Separate Defendants’ affirmative defense of untimeliness asserted in their summary judgment

motion. Defendant Goode, in his individual capacity, also failed to plead the statute of limitations

as an affirmative defense, and the Court will likewise not consider it as to King’s claims against

him.

To survive a motion for summary judgment on a Title VII claim, a plaintiff must either

offer direct evidence of discrimination or create an inference of discrimination under the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Lors v.

Dean, 746 F.3d 857, 865 (8th Cir. 2014); Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th

Cir. 2004). King has provided no direct evidence of discrimination on any of her claims, so she

must create an inference of discrimination under the McDonnell Douglas burden-shifting

framework. To create an inference of discrimination under McDonnell Douglas, King must first

make a prima facie case of discrimination. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332

(8th Cir. 1996).

1. Hostile Environment Sexual Harassment

There are two types of sexual harassment claims under Title VII: (1) quid pro quo

harassment, “where an employee’s submission to or rejection of a supervisor’s unwelcome sexual

advances is used as the basis for employment decisions”; and (2) “hostile work environment

harassment, where ‘the workplace is permeated with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’” Tenge v. Phillips Modern Ag Co., 446 F.3d 903, 908

(8th Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “Sexual harassment

is quid pro quo if a tangible employment action follows the employee’s refusals to submit to a

supervisor’s sexual demands.” Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1026-

27 (8th Cir. 2004) (citing Burlington Industries v. Ellerth, 524 U.S. 742, 752 (1998)). In this case,

King does not bring a quid pro quo sexual harassment claim because she does not show that she

rejected any sexual advances made by Goode and suffered a tangible employment action as a

result. The physical incident with Goode in the storage room above the jail allegedly occurred in

spring 2019, and the texting of inappropriate photographs was in fall 2019, more than a year before

King’s termination in April 2021. Further, she was not terminated by Goode, but by Sheriff

Montgomery following an unrelated incident. Therefore, her sexual harassment claim must be

analyzed as a hostile work environment claim.

To establish a prima facie claim for hostile work environment harassment by non-

supervisory coworkers, a plaintiff must establish: (1) membership in a protected group; (2) the

occurrence of unwelcome harassment; (3) a causal nexus between the harassment and her

membership in the protected group; (4) that the harassment affected a term, condition, or privilege

of employment; and (5) that the employer knew or should have known of the harassment and failed

to take prompt and effective remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th

Cir. 1999). To state a claim of hostile work environment harassment involving a supervisor, the

plaintiff must establish only the first four factors. See Anderson v. Family Dollar Stores of Ark.,

579 F.3d 858, 862 (8th Cir. 2009). Baxter County does not dispute that King has demonstrated the

first and third factors, i.e., that she is a member of a protected group and there is a causal nexus

between the alleged harassment and her membership in the protected group, but Baxter County

argues that Goode cannot establish the second and fourth elements of her claim. (ECF No. 79 at

9-13).

a. Unwelcome Conduct

Regarding the second element—whether King was subjected to unwelcome harassment by

Goode—Baxer County asserts that King “has not presented evidence that the actions of Goode

were unwelcome.” (ECF No. 79 at 9-10). Baxter County points to the following undisputed facts:

King did not contemporaneously complain of the harassing conduct; she sent Goode a photograph

in which she is depicted with her blouse unbuttoned; and she replied to one of Goode’s suggestive

texts in an equally suggestive manner, exclaiming “Did you just say threesome!!!” Baxter County

also suggests that the substantial increase in text messages that King and Goode exchanged in the

fall of 2019 (over 1,100 from October through December 2019, none of which have been produced

by either party) is further evidence that King welcomed Goode’s conduct. While these facts are

relevant to the issue of whether Goode’s conduct was “unwelcome” to King, they are not

dispositive here on summary judgment. “[W]hether particular conduct was indeed unwelcome

presents difficult problems of proof and turns largely on credibility determinations committed to

the trier of fact[.]” Meritor, 477 U.S. at 68. Even “voluntary sexual activity may ... be unwelcome

harassment[.]” Crutcher-Sanchez v. County of Dakota, 687 F.3d 979, 985 (8th Cir. 2012); see also

Meritor, 477 U.S. at 68–69 (sex-related conduct that is voluntary, “in the sense that the

complainant was not forced to participate against her will,” may nevertheless be unwelcome).

There is evidence in the summary judgment record to support King’s assertion of

unwelcome harassment. It is undisputed that Goode sent photographs to King in the fall of 2019,

one of which depicts Goode’s penis, followed by the question “U want,” to which King responded

“Why” and “Stop it.” (ECF No. 94-3 at 10). Two other photographs texted to King depict Goode

in his underwear, and one includes responses from King saying, “Why” and “Just why.” When

Goode asked, “What,” King responded, “Makes me mad.” (Id. at 10). According to Dawn

Dunford, when she obtained screenshots of these photographs from King in 2020, King implied to

Dunford that the photographs were unsolicited. (ECF No. 75-15 at 13). Conduct is “unwelcome”

when the employee neither solicited it nor invited it and regarded it as undesirable or offensive.

Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1108 (8th Cir. 1998); Moylan v. Maries Cnty., 792

F.2d 746, 749 (8th Cir. 1986) (noting conduct is “unwelcome” where it is “uninvited and

offensive”).

King further alleges that in spring 2019, while she was assisting Goode in a storage room

above the jail, Goode pushed her to “her knees and forced his penis into her mouth” until she

“pushed him” away. (ECF No. 28 at 2). King elaborated on this encounter in more detail in her

deposition testimony, asserting that Goode used a pressure point to make her fall to her knees,

forcefully opened her jaw, placed his penis in her mouth, and started pulling her hair back and

forth. According to King’s testimony, after she pulled away, coughing and spitting, Goode started

threatening her. (ECF No. 75-2 at 13-14). In deciding a motion for summary judgment, the Court

must consider all the evidence and all reasonable inferences that arise from the evidence in a light

most favorable to the non-moving party. Nitsche, 446 F.3d at 845. In that light, the Court cannot

say that Baxter County carried its burden on the issue of unwelcome conduct. See Celotex Corp

v. Catrett, 477 U.S. 317, 323 (1986) (“It is the movant’s initial burden on summary judgment to

demonstrate the absence of a genuine issue of material fact based on the pleadings, depositions,

answers to interrogatories, admissions on file, and affidavits, if any.”)

b. Severe or Pervasive Harassment

For the fourth element—whether Goode’s conduct affected a term, condition, or privilege

of King’s employment—there must be a showing that the harassment was “sufficiently severe or

pervasive to alter the conditions of [her] employment and create an abusive working environment.”

See Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003) (citing Meritor, 477 U.S. at 67 (citation

and quotation omitted)). To be actionable, the “harassment must have been both objectively and

subjectively offensive[.]” Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981, 985 (8th Cir. 2016).

“‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work

environment—an environment that a reasonable person would find hostile or abusive—is beyond

Title VII's purview.’” Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether alleged harassment

is objectively offensive, courts consider all 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.” Id. (quoting Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1158 (8th Cir.

1999), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir.

2011) (en banc)).

Baxter County asserts that King “has not presented evidence that the alleged actions were

severe or pervasive.” (ECF No. 79 at 10-13). Considering the alleged sexual assault separately

from the inappropriate photographs, Baxter County first contends that the 2019 assault is not

substantiated by any evidence in the record other than King’s allegations and testimony. Baxter

County then contends that the photographs are isolated incidents that are insufficient to

demonstrate the requisite severity or pervasiveness. As an initial matter, we do not disaggregate

the incidents of sexual harassment when considering the severity or pervasiveness prong. A

“hostile work environment claim is composed of a series of separate acts that collectively

constitute one ‘unlawful employment practice’” for purposes of Title VII. Nat’l Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The objective severity of harassment is to

be judged from the perspective of a reasonable person in the plaintiff’s position, considering all

the circumstances. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Burns v.

McGregor Elec. Indus., Inc., 989 F.2d 959, 962 n. 3 (8th Cir.1993). Accordingly, once there is

evidence of improper conduct and subjective offense, the determination of “[w]hether that conduct

rose to the level of sexual harassment is usually a factual determination for the jury.” Moring v.

Ark. Dep't of Corr., 243 F.3d 452, 456 (8th Cir. 2001); see also Howard v. Burns Bros., 149 F.3d

835, 840 (8th Cir. 1998) (noting judgment as a matter of law is appropriate only when there is a

complete absence of probative facts).

As a starting point then, King’s testimony of the sexual encounter above the jail in 2019

must be accepted as true, even if the summary judgment record evinces questions about her

credibility. Even considering this encounter in isolation from the photographs and the other

instances of touching and kissing that King and Goode both acknowledge occurred in stairwells

and other blind spots in the jail, the fact that a sexual encounter occurred above the jail in 2019 is

substantiated by Goode’s admission that he and King had a sexual encounter in the storage room

above the jail in 2019. Details about whether the encounter was an assault, who initiated the

encounter, whether it occurred in spring or fall, and the precise details of the alleged sexual act are

disputed by the parties, but those are questions that go to the weight and credibility of the evidence,

which this Court may not decide on summary judgment. See Great Plains Real Estate Dev., L.L.C.

v. Union Cent. Life Ins. Co., 536 F.3d 939, 944 (8th Cir. 2008) (“In considering a motion for

summary judgment the court does not weigh the evidence, make credibility determinations, or

attempt to discern the truth of any factual issue.”).

Moreover, the Court is not persuaded by Baxter County’s argument that Eighth Circuit

precedent permits the Court to disregard King’s deposition testimony about the alleged encounter

because that testimony directly conflicts with her prior grievance-hearing testimony that she never

had any sexual contact with Goode. Frevert v. Ford Motor Co., 614 F.3d 466, 474 (8th Cir. 2010)

does not stand for the proposition that a court is free to disregard a plaintiff’s allegations and

testimony simply because they are contradicted by other prior testimony given by the plaintiff. In

Frevert, the district court granted Ford Motor Company’s summary judgment motion, disregarding

Frevert’s affidavit filed in opposition to the motion. It disregarded the affidavit not because it was

inconsistent with previous testimony, but because the affidavit attempted to save a legally and

factually deficient claim by adding critical facts that were not in the complaint or discovery. The

absence of those facts from the complaint and discovery was the premise of Ford’s summary

judgment motion. In contrast, King presented allegations concerning the alleged encounter above

the jail in her First Amended Complaint. Her inconsistencies, and ultimately her credibility, are

matters for the trier of fact.

The Court further notes that sexual assault “is inarguably a severe form of sexual

harassment[.]” Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 743 (10th Cir. 2014). Even

a single incident of harassment, if sufficiently severe, may be actionable. Moring v. Arkansas

Dep’t of Correction, 243 F.3d 452, 456-57 (8th Cir. 2001). Combined with King’s additional

testimony about touchings, and the undisputed facts concerning the photographs and King’s

responses to them, a reasonable person could conclude that Goode’s conduct was not merely

unpleasant or rude, but was also objectively and subjectively offensive, extreme, and severe.

King has presented evidence sufficient to create a genuine dispute of material fact as to

whether Goode’s conduct created a hostile working environment due to sexual harassment.

Summary judgment is not designed to weed out dubious claims, but only to eliminate those claims

with no basis in material fact. Wilson v. Myers, 823 F.2d 253, 256 (8th Cir. 1987).

c. Vicarious Liability

Having found that King has established a prima facie case of sexual harassment, the Court

must address Baxter County’s assertion that it is not vicariously liable for Goode’s conduct because

he was not King’s “supervisor” for purposes of Title VII and the County was not negligent. As

previously noted, if Goode was not King’s “supervisor” in this sense, then King must show that

Baxter County knew or should have known of the harassment and failed to take proper action. See

Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194-95 (8th Cir. 2006). If, on the other hand,

Goode was King’s “supervisor” and the harassment resulted in a tangible employment action,

Baxter County will be vicariously liable for the harassment if the trier of fact finds in favor of

King. See Vance v. Ball State University, 570 U.S. 421, 428-29 (2013) (stating the general rule).

If Goode was King’s “supervisor,” but the harassment did not result in a tangible employment

action, then Baxter County will be vicariously liable for the harassment if it cannot satisfy the

affirmative defense described in Ellerth, 524 U.S. 742 at 765 and Faragher v. City of Boca Raton,

524 U.S. 775, 807-08 (1998). Vance, 570 U.S. at 428-29.

Baxter County asserts that it is “undisputed” that Goode was not King’s supervisor for

purposes of vicarious liability because Goode did not have the authority to take tangible

employment action against her. (ECF No. 101 at 7). As support for this assertion, Baxter County

refers only to its Statement of Undisputed Material Facts, wherein the County states that “Goode

did not have the authority to hire, fire, promote, or reassign Plaintiff to significantly different

duties.” (ECF No. 80, ¶ 2). The Statement of Undisputed Material Facts, in turn, refers to Sheriff

Montgomery’s Affidavit, which supports Baxter County’s proposed statement of undisputed fact;

but King appears to have disputed this fact. In her Response to County Defendants’ Statements,

she states, “Denied that Goode did not have control over the Plaintiff as her Supervisor when she

worked under his supervision and on his shift.” King’s response refers to her declaration, in which

she simply notes that Goode was her supervisor (ECF No. 93-1 at 2), and to Sheriff Montgomery’s

deposition testimony in which he stated, “I don’t know that I would call Steven Goode [King’s]

‘boss.’ He may have been her supervisor, but I certainly wouldn’t call him her boss.” Sheriff

Montgomery added that Goode, as a sergeant, had “limited supervisory ... authority[,]” that he

could “change schedules, ... recommend discipline to a higher authority, but there’s ... very little,

they can’t affect their pay, they can’t affect anything like that, so I don’t know that I would call

that her boss.” (ECF No. 93-2 at 5). The parties cite to no other materials in the summary judgment

record to resolve the issue of whether Goode was King’s supervisor for purposes of Title VII, and

the record is insufficiently developed for the Court to conclude that the County met its summary

judgment burden on this point.

A “supervisor” under Title VII is an employee whom “the employer has empowered ... to

take tangible employment actions against the victim, i.e., to effect 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.’” Vance, 570 U.S.

at 431 (quoting Ellerth, 524 U.S. at 761). An employee need not be empowered to take such

tangible employment actions directly to qualify as a supervisor. A manager who works closely

with his or her subordinates and who has the power to recommend or otherwise substantially

influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies

as a “supervisor” under Title VII. Vance, 570 U.S. at 446-47 (discussing management structure in

which the decisionmaker relies on recommendations of other workers who interact with the

affected employee).

An employer who “concentrates all decision[-]making authority in a few individuals, ...

likely will not isolate itself from heightened liability under Faragher and Ellerth.” Vance, 570

U.S. at 446–47. This is so, the Court said, because when the individuals vested with actual

decision-making power do not interact regularly with the employee, they will “have a limited

ability to exercise independent discretion when making decisions and will likely rely on other

workers who regularly interact with the affected employee. Under those circumstances, the

employer may be held to have effectively delegated the power to take tangible employment actions

to the employees on whose recommendations it relies.” Id.

The deposition testimony of Sheriff Montgomery to which Baxter County directs the Court

is less than clear about Goode’s actual authority as King’s immediate superior. He testified that

Goode had the power to recommend discipline of his subordinates, and the record further reflects

that Goode submitted a performance review of King that was considered by higher supervisors as

part of her annual evaluation and determination about whether she merited a pay raise. (ECF No.

80 at 4-5). Further, the County’s disciplinary policy states that “the level and particular type of

disciplinary action imposed will be within the discretion of the Sheriff or Chief Deputy, after

consultation with the Division Commander or immediate supervisor of the employee in question.”

(ECF No. 93 at 37, ¶ 13) (emphasis supplied). Goode was indisputably King’s immediate

supervisor, but the level of his influence over disciplinary and economic outcomes is unclear and

is relevant to the issue of liability. See Vance, 570 U.S. at 439-40.

The Court concludes that the summary judgment record is insufficiently developed on this

issue, and it exercises its discretion to deny summary judgment so that the record can be more fully

developed at trial. See Roberts v. Browning, 610 F.2d 528, 536 (8th Cir. 1979) (“However, even

if a district judge feels that summary judgment in a given case is technically proper, sound judicial

policy and the proper exercise of judicial discretion may prompt him to deny the motion and permit

the case to be developed fully at trial. The ultimate legal rights of the movant can always be

protected in the course of or even after trial.”); Andrew v. Clark, 561 F.3d 261, 271 (4th Cir.2009);

10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure:

Civil 3d § 2728 (4th Ed.) (collecting cases).

2. Retaliation

King alleges that her employment was terminated in retaliation for engaging in protected

activity. More specifically, she alleges that “she filed reports about being assaulted, reported the

disparate treatment received thereafter, and was terminated within 8 days of filing yet another

report in 2021.” (ECF No. 28, ¶ 31).

To survive a motion for summary judgment on a retaliation claim, a plaintiff must offer

direct evidence of retaliation or create an inference of retaliation under the McDonnell Douglas

burden-shifting framework. Hutton v. Maynard, 812 F.3d 679, 683 (8th Cir. 2016). Direct

evidence in this context is not the converse of circumstantial evidence; rather, it refers to the causal

strength of the proof. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). The

plaintiff’s ultimate burden in a Title VII retaliation case is to prove that an impermissible “desire

to retaliate was the but-for cause of the adverse employment action.” Nassar, 570 U.S. at 352

(rejecting the more lenient “motivating factor” standard that applies to Title VII discrimination

claims); see also Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739–40 (8th Cir. 2017). The

McDonnell Douglas burden-shifting analysis applies even when the applicable standard of proof

requires a showing of but-for causation. Id. at 740 (citing Shirrell v. St. Francis Med. Ctr., 793

F.3d 881, 888 (8th Cir. 2015)).

Under the McDonnell Douglas framework, a plaintiff bears the initial burden of

establishing a prima facie case. Donathan, 861 F.3d at 740. She must demonstrate that she

participated in protected conduct and suffered an adverse employment action. Id. (citing Musolf

v. J.C. Penney Co., 773 F.3d 916, 918 (8th Cir. 2014)). She must also demonstrate a causal

connection between the protected conduct and the adverse employment action. Donathan, 861

F.3d at 740. A plaintiff’s burden at this stage is not difficult. Id.; Gibson v. Geithner, 776 F.3d

536, 540 (8th Cir. 2015); Musolf, 773 F.3d at 919.

If King makes the requisite showing, the burden shifts to Baxter County, requiring it to

articulate a legitimate, non-retaliatory reason for King’s termination. Torgerson, 643 F.3d at 1046.

If Baxter County articulates a legitimate reason for the adverse employment action, King may

create a triable question as to retaliation by showing that Baxter County’s articulated reason is “not

the true reason” for the adverse action. Donathan, 861 F.3d at 740. On a fully developed summary

judgment record, this final step of the burden-shifting analysis merges with the ultimate burden of

proof which always remains on the plaintiff. Id. (citing Torgerson, 643 F.3d at 1046).

Baxter County does not dispute that King’s termination constituted a material adverse

action, and the Court finds this is the only material adverse action supported by the summary

judgment record. Jackman v. Fifth Jud. Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804-05 (8th Cir.

2013) (noting an adverse employment action is defined as a tangible change in working conditions

that produces a material employment disadvantage, including termination, cuts in pay or benefits,

and changes that affect an employee’s future career prospects). The summary judgment record

shows that none of Goode’s other alleged retaliatory actions—that Goode would not let King

change shifts, that he refused to let her leave work to go to the hospital for what she thought was

a medical emergency, that he wrote negative things about her attitude in a performance evaluation,

and that her badge and gun privileges were temporarily suspended—materially and adversely

affected the terms and conditions of King’s employment.

Baxter County contends that King cannot make a prima facie showing for two reasons.

First, the County asserts that the summary judgment record shows that King did not engage in

protected activity because she only discussed harassing photographs with a co-worker, Dawn

Dunford, in 2019. Noting King’s inconsistent testimony about reporting harassment, the County

does not address her alleged reports of sexual harassment and assault to Captain Lewis in 2021,

nor the effect, if any, of Sheriff Montgomery’s awareness of rumors about the exchange of

photographs in the fall of 2019. The Court will assume, for purposes of summary judgment only,

that King has met the minimal burden at this stage of the analysis. Geithner, 776 F.3d at 540

(“[T]he threshold of proof necessary to establish a prima facie case is minimal.”).

Baxter County also asserts that King has not shown a causal connection between the

adverse action and any protected activity. In her response, King asserts that she was terminated a

week after she reported harassment to Captain Lewis. By this assertion, King suggests that the

temporal proximity of her alleged report to Captain Lewis and her termination by Sheriff

Montgomery satisfies her minimal burden at this stage. See Geithner, 776 F.3d at 541 (“Proximity

alone can be enough to establish causation for a prima facie case.”). The Court finds that King

has done so, and the burden has shifted to the County to demonstrate a legitimate, non-retaliatory

reason for King’s termination. The Court also finds that the County has articulated a legitimate

reason for terminating King’s employment—specifically, dishonesty and deliberately abusing

county property, as outlined in Sheriff Montgomery’s Affidavit and King’s Notice of Termination

of Employment, and this is further supported by the surveillance video of the incident. (ECF No.

80-1 at 5-6; ECF No. 80-2 at 1).

The remaining issue is whether King has established a genuine dispute of material fact

about whether the reasons for her termination were pretextual. There are at least two ways a

plaintiff may demonstrate a material question of fact about pretext: indirectly, by showing the

proffered explanation has no basis in fact; or directly, by persuading the court that a prohibited

reason more likely motivated the employer. Geithner, 776 F.3d at 540. Either showing requires

more substantial evidence than it takes to make a prima facie case. Yearns v. Koss Constr. Co.,

964 F.3d 671, 675 (8th Cir. 2020). On the summary judgment record before it, the Court concludes

that King has not made the requisite showing that Baxter County was motivated by retaliation or

that her termination had no basis in fact. Although she notes that her termination occurred within

eight days of her alleged report to Captain Lewis, timing alone is not enough to establish pretext,

even if it can create an inference of retaliation for a plaintiff’s prima facie case. Id. Further, King’s

declaration that she is “convinced” that Sheriff Montgomery knew of her alleged report of

harassment and assault to Captain Lewis on April 15, 2021, is insufficient to create a genuine

dispute of material fact on retaliatory motive. The non-moving party “must do more than simply

show that there is some metaphysical doubt as to the material facts.” Matsushita Electrical

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). King “must show there is

sufficient evidence to support a jury verdict in [her] favor.” Nat’l. Bank, 165 F.3d at 607. “A case

founded on speculation or suspicion is insufficient to survive a motion for summary

judgment.” Id. Here, King has not presented sufficient evidence of pretext to raise a genuine

doubt about the legitimacy of the County’s reason for terminating her.

Accordingly, summary judgment will be granted on King’s claim of retaliation.

B. Negligent Entrustment

Separate Defendants Baxter County and Sheriff Montgomery argue that King has failed to

support her claim of negligent entrustment with sufficient facts to withstand summary judgment,

and that they are entitled to tort immunity pursuant to Ark. Code Ann. § 21-9-301(a) in any event.

(ECF No. 79 at 32). King focuses on the issue of immunity in his response and does not directly

address the argument that he has offered insufficient facts to demonstrate a genuine issue of

material fact. She simply argues that “[t]he facts as alleged by the Plaintiff clearly establish

questions of fact as to the County’s and Sheriff Montgomery’s negligent entrustment of Goode.”

(ECF No. 92 at 20). But King’s First Amended Complaint contains only conclusory allegations

that Defendants were negligent in hiring, retaining, or training their management staff and could

reasonably foresee harm, and King points to no specific facts in the summary judgment record to

support those allegations. Defendants properly pointed out the absence of facts to support King’s

claims, and it was incumbent on King to show that there were genuine issues of material fact to

withstand summary judgment. See Anderson, 477 U.S. at 256 (a party opposing a properly

supported motion for summary judgment may not rest upon mere allegation or denials but must

set forth specific facts showing that there is a genuine issue for trial). Unsupported, conclusory

allegations from the complaint or otherwise are insufficient to avoid summary judgment. Weger

v. City of Ladue, 500 F.3d 710, 728 (8th Cir. 2007) (“Without some guidance, we will not mine a

summary judgment record searching for nuggets of factual disputes to gild a party’s arguments.”);

Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006) (noting it is not the district

court’s responsibility to sift through the record to see if, perhaps, there is an issue of fact). King

has not demonstrated the existence of a genuine issue of material fact regarding negligent

entrustment, and summary judgment will be granted on this claim.

C. Claims Against Individual Defendants

1. Section 1983 Claim Against Sheriff Montgomery

Pursuant to 42 U.S.C. § 1983, King proceeds against Sheriff Montgomery in his individual

capacity, alleging that he violated her rights to equal protection under the United States

Constitution. King’s claim is premised on the same allegations of sexual harassment that comprise

her Title VII and ACRA claims, but King expressly states she does not bring a retaliatory discharge

claim under § 1983.5 (ECF No. 92 at 17, n. 2).

The Court of Appeals for the Eighth Circuit has stated that “[s]exual harassment by state

actors violates the Fourteenth Amendment and establishes a section 1983 action.” Crutcher-

Sanchez v. Cnty. of Dakota, 687 F.3d 979, 985 (8th Cir. 2012). Because King’s Title VII and

Section 1983 claims “parallel, substantially identical, legal theories of recovery,” the Court applies

the same analysis to each claim. Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688,

692, n.3 (8th Cir. 2009) (addressing Title VII and Section 1983 claims together and applying same

standards).

In Count III of her First Amended Complaint, King alleges that Goode subjected her to

discriminatory conduct—unwelcome sexual advances, assault, and harassment—that were based

on sex and affected a term, condition, or privilege of employment. (ECF No. 28 at 5-6). She

further alleges that she was subjected to this behavior while working for Goode and Sheriff

5 “The right to be free from retaliation is clearly established as a first amendment right and as a

statutory right under Title VII; but no clearly established right exists under the equal protection

clause to be free from retaliation.” Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1237 (8th Cir

2013) (reversing denial of qualified immunity on basis of retaliatory discharge claim premised on

equal protection guarantee).

Montgomery, who were acting under the color of state law. (Id.). Sheriff Montgomery asserts

that he is entitled to judgment as a matter of law on this claim because King has failed to

demonstrate that he engaged in the unconstitutional conduct she alleges, namely, hostile

environment sexual harassment. Sheriff Montgomery refers to King’s First Amended Complaint,

noting that it alleges that the actions of Sheriff Montgomery “through [his] agents are in violation

of Plaintiff’s right to equal protection as provided by the U.S. Constitution.” (Id., ¶ 35) (emphasis

added). Given those allegations, Sheriff Montgomery asserts that his potential liability is

foreclosed because state actors cannot be held liable under a theory of respondeat superior under

Section 1983. (ECF No. 79 at 24).

In response, King reiterates that Goode subjected her to “unwanted photographs ..., sexual

advances, and sexual assault,” and states that she “was terminated by Sheriff Montgomery as the

final adverse action nail in the coffin.” (ECF No. 92 at 16). She concludes that Sheriff

Montgomery, “as the supervisor making the determination to terminate her pretextually [is]

individually liable to the Plaintiff under Sec. 1983.” (Id.). This is simply a reiteration of King’s

claim of retaliatory discharge, and the Court has already ruled that King failed to chin the summary

judgment bar on her claim that Sheriff Montgomery acted with discriminatory animus when he

terminated her. Moreover, King has expressly waived a retaliatory discharge claim under Section

1983. (ECF No. 92 at 17, n. 2).

To the extent King also argues that Sheriff Montgomery is vicariously liable for Goode’s

harassing conduct because he was Goode’s supervisor, the Court agrees with Sheriff Montgomery

that such respondeat superior liability is foreclosed. Assuming King’s allegations of harassment

by Goode are true, the allegations present nothing more than an attempt to improperly impose

respondeat superior liability on Sheriff Montgomery, who has not been shown to have had a direct

role in the alleged sexually harassing conduct. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694 n.58 (1978) (finding that Section 1983 liability may not be based on respondeat superior, but

only on the supervisor’s own wrongful acts or omissions). Supervisory liability must be based on

more than the right to control employees. White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see

also Whitson v. Stone Cnty Jail, 602 F.3d 920, 928 (8th Cir. 2010). “Liability under section 1983

requires a causal link to, and direct responsibility for, the deprivation of rights. To establish

personal liability of the supervisory defendants, [Plaintiff] must allege specific facts of personal

involvement in, or direct responsibility for, a deprivation of his constitutional rights.” Clemmons

v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442 F.3d 1128,

1132 (8th Cir. 2006)). That Sheriff Montgomery learned of rumors concerning the exchange of

inappropriate photographs between Goode and King in 2019, and addressed the matter with

Goode—thus, ending the exchanges—does not demonstrate a basis for Sheriff Montgomery’s

liability as Goode’s supervisor. “[S]imple awareness of employees’ misconduct does not lead to

supervisory liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003). As a matter of law,

King is not entitled to Section 1983 relief under a respondeat superior theory of liability, and

Sheriff Montgomery’s motion for summary judgment is granted on this claim.

2. Section 1983 Claim Against Goode

King also proceeds against Goode in his individual capacity, pursuant to 42 U.S.C. § 1983,

alleging that Goode violated her right to equal protection under the United States Constitution.

(ECF No. 28 at 5-6).

To establish a violation of § 1983, a plaintiff must show the deprivation of (1) a right

secured by the Constitution and laws of the United States, that was (2) caused by a person or

persons acting under the color of state law. Tipler v. Douglas Cnty., Neb., 482 F.3d 1023, 1027

(8th Cir. 2007). Jail and prison authorities are clearly persons acting under the color of state law.

Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994).

King’s claim is premised on the same allegations of sexual harassment that comprise her

Title VII and ACRA claims, but again, King expressly states she does not bring a retaliatory

discharge claim under § 1983. (ECF No. 92 at 17, n. 2). As previously noted, the analysis for this

claim is like the analysis for King’s Title VII claim, and Goode’s motion for summary judgment

proceeds along the same lines as Baxter County’s.

Goode says he is entitled to summary judgment because King cannot demonstrate prongs

two through four of a hostile-environment claim: that she was subjected to unwelcome harassment;

that the harassment was based on sex; and that it affected a term, condition, or privilege of her

employment. Duncan v. Gen’l Motors Corp., 300 F.3d 928, 933 (8th Cir. 2002). Goode argues

that King cannot demonstrate that his conduct was unwelcome because she did not

contemporaneously complain about the alleged harassment; that her claim of assault is supported

only by her self-serving and unsubstantiated allegations and testimony; and that the exchange of

text messages and photographs were isolated incidents that do not demonstrate a level of severity

or pervasiveness to alter the conditions of employment. For the reasons discussed in the analysis

of King’s Title VII claim, supra, Goode cannot demonstrate the absence of a genuine dispute of

material fact as to the second prong, “unwelcome conduct,” or the fourth prong, “severe or

pervasive harassment.” Concerning the third prong, “[w]ithout question, when a supervisor

sexually harasses a subordinate because of the subordinate’s sex, that supervisor discriminates on

the basis of sex.” Meritor, 477 U.S. at 64. Goode’s argument in support of summary judgment,

like Baxter County’s, largely concerns the weight and credibility of the evidence, which this Court

may not decide on summary judgment. See Great Plains Real Estate Dev., L.L.C., 536 F.3d at 944

(“In considering a motion for summary judgment the court does not weigh the evidence, make

credibility determinations, or attempt to discern, or attempt to discern the truth of any factual

issue.”). Accordingly, Goode’s motion for summary judgment on this claim must be denied.

3. Tort of Outrage; Civil Action by Crime Victim Against Goode

Goode asserts that King’s claim for the tort of outrage fails as a matter of law because the

evidence does not demonstrate that Goode’s conduct was sufficiently severe to be considered

“extreme and outrageous,” which is a question of law. Doe v. Wright, 82 F.3d 265, 269 (8th Cir.

1996). In Arkansas, a claim of outrage requires proof of four elements:

(1) the actor intended to inflict emotional distress or knew or should have

known that emotional distress was the likely result of his conduct; (2) the

conduct was extreme, outrageous, and utterly intolerable in a civil community;

(3) the actions of the defendant were the cause of the plaintiff’s anguish or

distress; and, (4) the emotional distress suffered by the plaintiff was so severe

that no reasonable person should be expected to endure it.

See Rorie v. United Parcel Service, Inc., 151 F.3d 757, 762 (8th Cir.1998). Goode notes that

Arkansas courts take “a narrow view” of claims for outrage, especially in the employment context.

(ECF No. 76 at 23) (citing Doe, 82 F.3d at 269). He asserts that King has produced 10 text

messages, only three of which contain sexual content, and the employment related actions he is

alleged to have taken were legitimate, non-retaliatory matters which do not amount to outrageous

conduct. Finally, he asserts that the allegations of sexual assault should be disregarded because

there is no corroborating evidence for it other than King’s deposition testimony, which he contends

is self-serving. (ECF No. 76 at 23-25).

The Court, however, is not free to simply disregard King’s allegations and testimony,

despite their inconsistency. King has presented evidence of unwanted touching, kissing, texts, and

photographs, as well as allegations of sexual assault, all of which “fall far short of what is

acceptable in a civilized society.” Adcock v. St. Jean Indus., Inc., No. 4:21-CV-669-DPM, 2022

WL 758300, at *4 (E.D. Ark. Mar. 11, 2022). “Arkansas law makes it difficult to prevail on an

outrage claim in the employment context, but [King] has provide a sufficient record for the claim

to go forward.” Id. (deeming evidence of supervisor’s threats of termination, daily unwanted

touching, kissing, threatening sexual assault in the manufacturing oven, and refusing to give

plaintiff a raise because of her hair style sufficient for claim of outrage to withstand summary

judgment).

Goode asserts that the same reasons also support summary judgment on King’s claim under

Ark. Code Ann. § 16-118-107. The statute provides a civil cause of action to a person who has

been injured by another person’s felonious conduct. King has alleged Goode’s conduct violated

criminal statutes for the felonious crimes of sexual assault in the second degree or rape. (ECF No.

28 at 7-8). Goode asserts King cannot present credible, competent, admissible testimony regarding

any sexual assault. Under both State and federal law, an alleged victim’s testimony alone, if

believed, may be sufficient to sustain even a criminal conviction. See Gibbs v. Kemna, 192 F.3d

1173, 1176 (8th Cir.1999) (the testimony of any one of the eyewitnesses, if believed by the jury,

would be sufficient to support a verdict of guilt); Bryant v. State, 2010 Ark. 7, 8, 377 S.W.3d 152,

158 (2010) (victim’s testimony need not be corroborated to demonstrate sufficient evidence of

sexual abuse); Brown v. State, 374 Ark. 341, 343, 288 S.W.3d 226, 228 (2008) (a rape victim’s

testimony may constitute substantial evidence to sustain a conviction of rape). Issues concerning

the credibility of King’s testimony and the weight of the evidence are matters for the trier of fact.

The Court, therefore, denies summary judgment on King’s claims against Goode, in his individual

capacity, for the tort of outrage and as a victim of felonious conduct.

D. Declaratory Judgment

Baxter County seeks summary judgment on King’s claims for declaratory relief. (ECF No.

79 at 33-35). King seeks declarations that (1) Arkansas’s statutory tort immunity for

municipalities, codified in Ark. Code Ann. § 21-9-301, and (2) Arkansas’s statutory limits on

damages recoverable under the ACRA, Ark. Code Ann. § 16-123-107(c)(2), contravene Article 2,

§ 136, and Article 5, § 327 of the Arkansas Constitution.

As an initial matter, the Court notes that it cannot grant the requested declaratory relief

because King has not provided notice to the Arkansas Attorney General as required by Rule 5.1 of

the Federal Rules of Civil Procedure. Under this rule, a party who files a pleading questioning the

constitutionality of a state statute must promptly file a notice of constitutional question stating the

question and identifying the paper that raises it and must serve the notice and paper on the state

attorney general either by certified or registered mail or by sending it to an electronic address

designated by the attorney general for this purpose. Fed. R. Civ. P. 5.1(a)(1)(B)(2). The purpose

of the filing-and-service requirement is to trigger the certification process and provide the attorney

6 Article 2, § 13 of the Arkansas Constitution provides as follows:

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he

may receive in his person, property or character; he ought to obtain justice freely,

and without purchase, completely, and without denial, promptly, and without delay,

conformably to the laws.

7 Article 5, § 32 of the Arkansas Constitution, as modified by Amendment 26, provides:

The General Assembly shall have power to enact laws prescribing the amount of

compensation to be paid by employers for injuries to or death of employees, and to

whom said payment shall be made. It shall have power to provide the means,

methods, and forum for adjudicating claims arising under said laws, and for

securing payment of same. Provided, that otherwise no law shall be enacted

limiting the amount to be recovered for injuries resulting in death or for injuries to

persons or property; and in case of death from such injuries the right of action shall

survive, and the General Assembly shall prescribe for whose benefit such action

shall be prosecuted.

general with an opportunity to intervene within 60 days and defend the challenged statute. See

Fed. R. Civ. P. 5.1(c).

Because this matter is set for trial in less than 60 days, there is insufficient time for King

to cure her noncompliance absent a stay of the proceedings. The Court will not delay the

proceedings for that purpose, however, because it concludes that King’s statutory challenges must

be denied. The 2006 Advisory Committee Notes to Rule 5.1 provide that “[t]he court may reject

a constitutional challenge to a statute at any time. But the court may not enter a final judgment

holding a statute unconstitutional before the attorney general has responded or the [60-day]

intervention period has expired without response.” Fed. R. Civ. P. 5.1, Advisory Committee’s Note

to 2006 amendment.

Regarding King’s challenge to Ark. Code Ann. § 21-9-301, the Arkansas Supreme Court

has held that the statute is consistent with the same Arkansas constitutional provisions to which

King points. See White v. City of Newport, 326 Ark. 667, 672, 933 S.W.3d 800, 803 (1996)

(holding that § 21-9-301 is a “reasonable means of achieving a permissible public-policy

objective” and “[t]herefore, … does not violated Article 2, § 13, or Article 5, § 32, of the Arkansas

Constitution[ ]”). See also Benton Sch. Dist. v. Greer, 2023 Ark. 160 (holding that “section 21-9-

301 immunity, subject to the insurance exception, applies to claims arising under the Arkansas

Civil Rights Act[ ]”). Citing Bd. of Trustees of Univ. of Ark. v. Andrews, 2018 Ark. 12, 535 S.W.3d

616 (2018), King asks this Court to declare that White was incorrectly decided. She points to dicta

in Andrews to the effect that the Arkansas General Assembly does not have the power to override

a constitutional provision. Andrews, 2018 Ark. 12, at 11, 535 S.W.3d at 622.

The Eighth Circuit Court of Appeals recently considered the same argument in Doe v.

Dardanelle Sch. Dist., 928 F.3d 722, 727-28 (8th Cir. 2019) and rejected it. Doe brought an action

against the school district under Title IX and 42 U.S.C. § 1983, alleging that she had been sexually

assaulted by a fellow student and the district’s deliberate indifference caused discrimination under

Title IX. The district court denied Doe’s motion to amend her petition to add a claim that,

considering Andrews, White was wrongly decided, and § 21-9-301 violates the Arkansas

Constitution. The district court denied Doe’s motion, finding that raising the claim would be futile,

and the Court of Appeals affirmed. The Eighth Circuit distinguished Andrews, noting that it

involved sovereign immunity, not tort immunity for counties under § 21-9-301, and the Court saw

“no reason why [Andrews’s] dicta affects the holding in White.” 928 F.3d at 728. Applying Doe,

the Court concludes that King has not demonstrated that § 21-9-301 is unconstitutional, and

summary judgment will be granted on this claim for declaratory relief.

For similar reasons, the Court rejects King’s challenge to the limits on damages in Ark.

Code Ann. § 16-123-107(c)(2). A presumption of validity attends every consideration of a statute’s

constitutionality. Bayer v. CropScience LP v. Schafer, 2011 Ark. 518, at 9, 385 S.W.3d 822, 829.

Before an act may be held unconstitutional, the incompatibility between it and the constitution

must be clear. Id. Any doubt as to the constitutionality of a statute must be resolved in favor of

its constitutionality, and the heavy burden of demonstrating the unconstitutionality is upon the one

attacking it. Id.

As Baxter County notes, the plain language of Article 5, § 32 provides the Arkansas

General Assembly with the power to enact laws prescribing the amount of compensation to be paid

by employers for injuries to or death of employees. The Arkansas Supreme Court has repeatedly

noted this authority extends to limitations on the amount of recovery available where there is an

employer-employee relationship. See Stapleton v. M.D. Limbaugh Const. Co., 333 Ark. 381, 391-

92, 969 S.W.2d 648, 652-53 (1998) (discussing cases). King provides no authority or argument

demonstrating why § 16-123-107(c)(2) contravenes the plain language of Article 5, § 32 of the

Arkansas Constitution. She simply notes that Arkansas courts have not yet considered the specific

question of whether the statute does so. Absent any convincing rationale for why the statute should

be deemed to contravene the Arkansas constitution, the Court concludes that King has not

overcome the presumption of constitutionality that attends the statute under state law. See Roberts

v. State, 324 Ark. 68, 71, 919 S.W.2d 192, 194 (1996) (presumption of constitutionality applied

absent litigant’s explanation of how alleged omission in statutory enactment offended due process

or how statutory classification offended equal protection guarantee). Moreover, the Court cannot

grant declaratory relief for the challenge to Ark. Code Ann. § 16-123-107(c)(2) for the additional

reason that it is premature. See Southern Farm Bureau Cas. Ins. Co. v. Easter, 374 Ark. 238, 242

n. 2, 287 S.W.3d 537, 540 n. 2 (2008) (affirming dismissal without prejudice of claim for

declaratory relief, as premature, where insurer sought declaration regarding duty to pay punitive

damages while litigation was pending). Summary judgment will be granted on this claim for

declaratory relief.

V. CONCLUSION

For the reasons and upon the authorities discussed above, Defendant Goode’s Motion for

Summary Judgment (ECF No. 75) and the Separate Defendants’ Motion for Summary Judgment

(ECF No. 78) are DENIED in PART and GRANTED in PART as follows:

Summary judgment is DENIED on the following claims, and they will proceed to trial:

(1) King’s Title VII and ACRA claims against Baxter County for gender discrimination

based on a hostile work environment.

(2) King’s Section 1983 claim against Goode, in his individual capacity, for gender

discrimination based on a hostile work environment.

(3) King’s state-law claim against Goode, in his individual capacity, for the tort of

outrage.

(4) King’s state-law claim against Goode, in his individual capacity, for commission of

a criminal act.

Summary judgment is GRANTED on the following claims, and they will be DISMISSED

WITH PREJUDICE:

(1) King’s Title VII and ACRA claims against Baxter County for retaliation.

(2) King’s state-law claims against Baxter County and Sheriff Montgomery for

negligent entrustment.

(3) King’s Section 1983 claim against Sheriff Montgomery for gender discrimination

based on a hostile work environment.

(4) King’s claims for declaratory relief on the constitutionality of Ark. Code Ann. §§

21-9-301 and 16-123-107(c)(2).

King has expressly waived the following claims, and they will be DISMISSED WITH

PREJUDICE:

(1) King’s state-law claims against Baxter County and Sheriff Montgomery for the tort

of outrage.

(2) King’s state-law claim against Baxter County and Sheriff Montgomery for

commission of a criminal act.

(3) King’s Title VII and ACRA claims of retaliation against Sheriff Montgomery and

Goode, in their individual capacities.

(4) King’s Section 1983 claims of retaliation against Sheriff Montgomery and Goode.

Finally, on King’s request, Does 1-10 are dismissed from the case.

IT IS SO ORDERED on this 12th day of February 2024.

/s/ Mark E. Ford

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE