Text Of Judge's Opinion In Paula Jones' Lawsuit Against Clinton
By The Associated Press
Text of U.S. District Judge Susan Webber Wright's opinion
dismissing Paula Jones' sexual harassment lawsuit:
Note : Ellipses are used where citations of court documents or
footnotes appear in the original; text is otherwise complete
The plaintiff in this lawsuit, Paula Corbin Jones, seeks civil
damages from William Jefferson Clinton, president of the United
States, and Danny Ferguson, a former Arkansas state police officer,
for alleged actions beginning with an incident in a hotel suite in
Little Rock, Arkansas. This case was previously before the Supreme
Court of the United States to resolve the issue of presidential
immunity but was remanded to this court following the Supreme
Court's determination that there is no constitutional impediment to
allowing plaintiff's case to proceed while the president is in
office. ... Following remand, the president filed a motion for
judgment on the pleadings and dismissal of the complaint pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. Ferguson
joined in the president's motion. By Memorandum Opinion and Order
dated August 22, 1997, this court granted in part and denied in
part the president's motion. ... The court dismissed plaintiff's
defamation claim against the president, dismissed her due process
claim for deprivation of a property interest in her state
employment, and dismissed her due process claims for deprivation of
a liberty interest based on false imprisonment and injury to
reputation, but concluded that the remaining claims in plaintiff's
complaint stated viable causes of action. ... Plaintiff
subsequently obtained new counsel and filed a motion for leave to
file a first amended complaint, which the court granted, albeit
with several qualifications. ... The matter is now before the court
on motion of both the president and Ferguson for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff has responded in opposition to these motions, and the
president and Ferguson have each filed a reply to plaintiff's
response to their motions. For the reasons that follow, the court
finds that the president's and Ferguson's motions for summary
judgment should both be and hereby are granted.
I. This lawsuit is based on an incident that is said to have
taken place on the afternoon of May 8, 1991, in a suite at the
Excelsior Hotel in Little Rock, Arkansas. President Clinton was
governor of the state of Arkansas at the time, and plaintiff was a
state employee with the Arkansas Industrial Development Commission
(AIDC), having begun her state employment on March 11, 1991.
Ferguson was an Arkansas state police officer assigned to the
governor's security detail.
According to the record, then-Governor Clinton was at the
Excelsior Hotel on the day in question delivering a speech at an
official conference being sponsored by the AIDC. ... Plaintiff
states that she and another AIDC employee, Pamela Blackard, were
working at a registration desk for the AIDC when a man approached
the desk and informed her and Blackard that he was Trooper Danny
Ferguson, the governor's bodyguard. ... She states that Ferguson
made small talk with her and Blackard and that they asked him if he
had a gun as he was in street clothes and they "wanted to know."
... Ferguson acknowledged that he did and, after being asked to
show the gun to them, left the registration desk to return to the
governor. ... The conversation between plaintiff, Blackard, and
Ferguson lasted approximately five minutes and consisted of light,
friendly banter; there was nothing intimidating, threatening, or
coercive about it. ...
Upon leaving the registration desk, Ferguson apparently had a
conversation with the governor about the possibility of meeting
with plaintiff, during which Ferguson states the governor remarked
that plaintiff had "that come-hither look," i.e. "a sort of
(sexually) suggestive appearance from the look or dress." ... He
states that "some time later" the governor asked him to "get him
a room, that he was expecting a call from the White House and ...
had several phone calls that he needed to make," and asked him to
go to the car and get his briefcase containing the phone messages.
Ferguson states that upon obtaining the room, the governor told him
that if plaintiff wanted to meet him, she could come up."
Plaintiff states that Ferguson later reappeared at the
registration desk, delivered a piece of paper to her with a
four-digit number written on it, and said that the governor would
like to meet with her in this suite number. ... She states that
she, Blackard, and Ferguson talked about what the governor could
want and that Ferguson stated, among other things, "We do this all
the time." ... Thinking that it was an honor to be asked to meet
the governor and that it might lead to an enhanced employment
opportunity, plaintiff states that she agreed to the meeting and
that Ferguson escorted her to the floor of the hotel upon which the
governor's suite was located.
Plaintiff states that upon arriving at the suite and announcing
herself, the governor shook her hand, invited her in, and closed
the door. ... She states that a few minutes of small talk ensued,
which included the governor asking her about her job and him
mentioning that Dave Harrington, plaintiff's ultimate superior
within the AIDC and a Clinton appointee, was his "good friend."
... Plaintiff states that the governor then "unexpectedly reached
over to (her), took her hand, and pulled her toward him, so that
their bodies were close to each other." ... She states she removed
her hand from his and retreated several feet, but that the governor
approached her again and, while saying, "I love the way your hair
flows down your back" and "I love your curves," put his hand on
her leg, started sliding it toward her pelvic area, and bent down
to attempt to kiss her on the neck, all without her consent. ...
Plaintiff states that she exclaimed, "What are you doing?" told
the governor that she was "not that kind of girl," and
"escaped" from the governor's reach "by walking away from him."
... She states she was extremely upset and confused and, not
knowing what to do, attempted to distract the governor by chatting
about his wife. ..
Plaintiff states that she sat down at the end of the sofa
nearest the door, but that the governor approached the sofa where
she had taken a seat and, as he sat down, "lowered his trousers
and underwear, exposed his penis (which was erect) and told (her)
to 'kiss it."' ... She states that she was "horrified" by this
and that she "jumped up from the couch" and told the governor
that she had to go, saying something to the effect that she had to
get back to the registration desk. ... Plaintiff states that the
governor, "while fondling his penis," said, "Well, I don't want
to make you do anything you don't want to do," and then pulled up
his pants and said, "If you get in trouble for leaving work, have
Dave call me immediately and I'll take care of it." ... She states
that as she left the room (the door of which was not locked), the
governor "detained" her momentarily, "looked sternly" at her,
and said, "You are smart. Let's keep this between ourselves."
Plaintiff states that the governor's advances to her were
unwelcome, that she never said or did anything to suggest to the
governor that she was willing to have sex with him, and that during
the time they were together in the hotel suite, she resisted his
advances although she was "stunned by them and intimidated by who
he was." ... She states that when the governor referred to Dave
Harrington, she "understood that he was telling her that he had
control over Mr. Harrington and over her job, and that he was
willing to use that power." ... She states that from that point
on, she was "very fearful" that her refusal to submit to the
governor's advances could damage her career and even jeopardize her
employment. ...
Plaintiff states that when she left the hotel suite, she was in
shock and upset but tried to maintain her composure. ... She states
she saw Ferguson waiting outside the suite but that he did not
escort her back to the registration desk and nothing was said
between them. ... Ferguson states that five or ten minutes after
plaintiff exited the suite he joined the governor for their return
to the governor's mansion and that the governor, who was working on
some papers that he had spread out on the desk, said, "She came up
here, and nothing happened."
Plaintiff states she returned to the registration desk and told
Blackard some of what had happened. ... Blackard states that
plaintiff was shaking and embarrassed. ... Following the
conference, plaintiff states she went to the workplace of a friend,
Debra Ballentine, and told her of the incident as well. ...
Ballentine states that plaintiff was upset and crying. ... Later
that same day, plaintiff states she told her sister, Charlotte
Corbin Brown, what had happened and, within the next two days, also
told her other sister, Lydia Corbin Cathey, of the incident. ...
Brown's observations of plaintiff's demeanor apparently are not
included in the record. Cathey, however, states that plaintiff was
"bawling" and "squalling," and that she appeared scared,
embarrassed and ashamed. ...
Ballentine states that she encouraged plaintiff to report the
incident to her boss or to the police, but that plaintiff declined,
pointing out that her boss was friends with the governor and that
the police were the ones who took her to the hotel suite. ...
Ballentine further states that plaintiff stated she did not want
her fiance to know of the incident and that she "just want(ed)
this thing to go away." ... Plaintiff states that what the
governor and Ferguson had said and done made her "afraid" to file
charges. ...
Plaintiff continued to work at AIDC following the alleged
incident in the hotel suite. ... One of her duties was to deliver
documents to and from the office of the governor, as well as other
offices around the Arkansas state capitol. ... She states that in
June 1991, while performing these duties for the AIDC, she
encountered Ferguson who told her that Mrs. Clinton was out of town
often and that the governor wanted her phone number and wanted to
see her. ... Plaintiff states she refused to provide her phone
number to Ferguson. ... She states that Ferguson also asked her how
her fiance, Steve, was doing, even though she had never told
Ferguson or the governor his name, and that this "frightened"
her. ... Plaintiff states that she again encountered Ferguson
following her return to work from maternity leave and that he said
he had "told Bill how good looking you are since you've had the
baby." ... She also states that she was "accosted" by the
governor in the rotunda of the Arkansas state capitol when he
"draped his arm over her, pulled her close to him and held her
tightly to his body," and said to his bodyguard, "Don't we make a
beautiful couple: Beauty and the Beast?" ... Plaintiff
additionally states that on an unspecified date, she was waiting in
the governor's outer office on a delivery run when the governor
entered the office, patted her on the shoulder, and in a "friendly
fashion" said, "How are you doing, Paula?" ...
Plaintiff states that she continued to work at AIDC "even
though she was in constant fear that (the governor) would retaliate
against her because she had refused to have sex with him." ... She
states this fear prevented her from enjoying her job. ... Plaintiff
states that she was treated "very rudely" by certain superiors in
AIDC, including her direct supervisor, Clydine Pennington, and that
this "rude treatment" had not happened prior to her encounter
with the governor. ... She states that after her maternity leave,
she was transferred to a position which had much less
responsibility and that much of the time she had nothing to do. ...
Plaintiff states that she was not learning anything, that her work
could not be fairly evaluated, and that as a result, she could not
be fairly considered for advancement and other opportunities. ...
She states that Pennington told her the reason for the transfer was
that her prior position had been eliminated, but that she later
learned this was untrue, as her former position was being occupied
by another employee. ... Plaintiff states that she repeatedly
expressed to Pennington an interest in transferring to particular
positions at a higher "grade" which involved more challenging
duties, more potential for advancement, and more compensation, but
that Pennington always discouraged her from doing so and told her
she should not bother to apply for those positions. ... She goes on
to state that her superiors exhibited hostility toward her by
moving her work location, refusing to give her meaningful work,
watching her constantly, and failing to give her flowers on
Secretary's Day in 1992, even though all the other women in the
office received flowers. ...
Plaintiff voluntarily terminated her employment with AIDC on
February 20, 1993, in order to move to California with her husband,
who had been transferred. ... She states that in January 1994,
while visiting family and friends in Arkansas, she was informed of
an article in The American Spectator magazine that she claims
referred to her alleged encounter with the governor at the
Excelsior Hotel and incorrectly suggested that she had engaged in
sexual relations with the governor. ... Plaintiff states that she
also encountered Ferguson in a restaurant during this same time and
that he indicated he was the source for the article and that he
knew she had refused the governor's alleged advances because, he
said, "Clinton told me you wouldn't do anything anyway, Paula."
On February 11, 1994, at an event attended by the media,
plaintiff states that she publicly asked President Clinton to
acknowledge the incident mentioned in the article in The American
Spectator, to state that she had rejected his advances, and to
apologize to her, but that the president responded to her request
for an apology by having his press spokespersons deliver a
statement on his behalf that the incident never happened and that
he never met plaintiff. ... Thereafter, on May 6, 1994, plaintiff
filed this lawsuit.
Plaintiff's amended complaint contains several claims, three of
which remain at issue. ... The first is a claim under 42 U.S.C.
Section 1983 in which plaintiff alleges that Governor Clinton,
acting under color of state law, deprived her of her constitutional
right to equal protection of the laws under the Fourteenth
Amendment to the United States Constitution by sexually harassing
her. The second is a claim under 42 U.S.C. Section 1985(3) in which
plaintiff alleges that Governor Clinton and Ferguson conspired to
deprive her of her rights to equal protection of the laws and of
equal privileges and immunities under the laws. The third is a
state law claim in which plaintiff asserts a claim of intentional
infliction of emotional distress or outrage against Governor
Clinton, based primarily on the alleged incident at the hotel but
also encompassing subsequent alleged acts.
II. The president moves for summary judgment on the following
grounds: (1) plaintiff cannot show either quid pro quo or hostile
work environment sexual harassment under Section 1983 because (a)
the record plainly demonstrates that plaintiff did not suffer any
tangible job detriment for purposes of establishing a quid pro quo
claim, let alone one caused by her purported rejection of Mr.
Clinton's alleged sexual advances, and (b) the alleged actions as
described by plaintiff, even resolving all inferences and factual
disputes in her favor, do not constitute severe or pervasive
abusive conduct for purposes of establishing a hostile work
environment claim; (2) if plaintiff's Section 1983 claim fails, so
too does her Section 1985 conspiracy claim because (a) plaintiff
has failed to show that any such conspiracy actually resulted in a
deprivation of her constitutional rights, and (b) the undisputed
facts do not show any agreement between Governor Clinton and
Trooper Ferguson to deprive plaintiff of her constitutional rights;
and (3) plaintiff's claim of intentional infliction of emotional
distress or outrage fails because (a) by plaintiff's own testimony,
the conduct at issue does not constitute intentional infliction of
emotional distress or outrage under Arkansas law, and (b) plaintiff
did not as a result of the alleged conduct suffer emotional
distress so severe that no reasonable person could endure it.
Ferguson, in turn, moves for summary judgment on grounds that (1)
even if everything plaintiff has alleged were true, she does not
have evidence to show either quid pro quo or hostile work
environment sexual harassment, and (2) there was no conspiracy
between the president and Ferguson to violate plaintiff's
constitutional rights by sexually harassing her. The president and
Ferguson both argue that there are no genuine issues of material
fact with respect to any of these issues and that they are entitled
to summary judgment as a matter of law.
A. Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." ... As a prerequisite to
summary judgment, a moving party must demonstrate "an absence of
evidence to support the non-moving party's case." ... Once the
moving party has properly supported its motion for summary
judgment, the nonmoving party must "do more than simply show there
is some metaphysical doubt as to the material facts." ... The
nonmoving party may not rest on mere allegations or denials of his
pleading, but must "come forward with 'specific facts showing that
there is a genuine issue for trial."' ... The inferences to be
drawn from the underlying facts must be viewed in the light most
favorable to the party opposing the motion. ... However, "(w)here
the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no 'genuine issue for
trial."' ...
B. As a preliminary matter, the Court rejects plaintiff's
contention that this case involves equal protection claims based
not only on sexual harassment, but also on sexual assault and
offensive conduct in violation of laws other than Title VII, 42
U.S.C. Sections 2000e et seq. ... In its August 22 Memorandum
Opinion and Order, this court recognized that a sexual assault can
be a constitutional violation under Section 1983, but concluded
that plaintiff's allegations, even if true, were insufficient to
state such a claim. Notwithstanding the unequivocal ruling of this
Court, plaintiff ... now contends that she has an actionable claim
of criminal sexual assault based on the governor's alleged actions
in the Excelsior Hotel and cites as authority for this proposition
an Arkansas criminal statute proscribing sexual abuse in the first
degree, Ark. Code Ann. Section 5-14-108. ...
The Court finds plaintiff's attempt to restate her sexual
assault claim in the guise of an equal protection claim to be no
more meritorious now than when it was raised in the context of a
due process claim. Although the governor's alleged conduct, if
true, may certainly be characterized as boorish and offensive, even
a most charitable reading of the record in this case fails to
reveal a basis for a claim of criminal sexual assault as there is
no alleged conduct that could be characterized as "forcible
compulsion" or "sexual contact" for purposes of establishing a
claim under the provision cited by plaintiff.
See Ark. Code Ann. Section 5-14-101 (2), (8) (defining
"forcible compulsion" as "physical force or a threat, express or
implied, of death or physical injury to or kidnapping of any
person," and defining "sexual contact" as "any act of sexual
gratification involving the touching, directly or through clothing,
of the sex organs, or buttocks, or anus of a person or the breast
of a female"). There being no actionable claim of criminal sexual
assault under the facts of this case, the court will proceed to a
determination of the issues relevant to plaintiff's claim of sexual
harassment.
1. The Equal Protection Clause of the Fourteenth Amendment
confers a right to be free from gender discrimination that is not
substantially related to important governmental objectives. ...
Applying this precept, courts have found that intentional sexual
harassment of employees by persons acting under color of state law
violates the Fourteenth Amendment and is actionable under Section
1983. ... A plaintiff wishing to sustain an equal protection claim
of sexual harassment under the Fourteenth Amendment must show both
"sexual harassment" and an "intent" to harass based upon that
plaintiff's membership in a particular class of citizens -- i.e.,
male or female. An individual plaintiff may pursue a sexual
harassment claim under the Fourteenth Amendment based solely upon
acts of harassment directed towards her, but such a claim must show
an intent to harass because of her status as a female and not
because of characteristics of her gender which are personal to her.
Although the president contends that plaintiff cannot establish
that he acted under color of state law with the intent to
discriminate against her on the basis of her gender, he states that
he reserves those issues for trial, if necessary, and seeks summary
judgment solely on the grounds of plaintiff's failure to prove that
she was subjected to conduct that corresponds to sexual harassment
under Title VII. Before discussing that issue, however, the Court
must address plaintiff's argument that the essential elements of a
sexual harassment claim under Section 1983 do not correspond to
those under Title VII (although she acknowledges there is some
overlap) and that her burden of proof is something less than that
required under Title VII. The Court rejects this argument.
Throughout the pendency of this lawsuit, this court and the
parties have been operating under the assumption, based on the
clear weight of authority, that a Section 1983 sexual harassment
claim should be analyzed under the standards developed in similar
Title VII litigation. See, e.g., Trautvetter, ... (noting that a
claim of sexual harassment under Section 1983 must generally
satisfy the contours of a sexual harassment claim under Title VII);
Southard, ... (applying Title VII standards to a Section 1983
claim): Cross v. State of Alabama, ... (noting that when Section
1983 is used as a parallel remedy for violations of Title VII, the
elements of the two causes of action are the same); Beardsley, ...
(noting that courts may apply the standards developed in Title VII
litigation to similar litigation under Section 1983); Boutros v.
Canton Reg'l Transit Auth., ... (noting that Section 1983 and Title
VII are largely parallel remedies in employment discrimination
suits and applying the same elements of prima facie proof for
racially hostile work environment to both Title VII and Section
1983 claim. Indeed, in her memorandum in opposition to the
president's motion for judgment on the pleadings (filed July 29,
1997), plaintiff stated that "(a) sexual harassment claim brought
pursuant to Section 1983 is similar to a Title VII sexual
harassment claim" and cited King v. Board of Regents of the Univ.
of Wis. ..., for the proposition that a Section 1983 sexual
harassment claim generally follows the contours of a Title VII
claim. ... In this regard, plaintiff recognized that courts have
separated sexual harassment claims into two categories -- quid pro
quo cases and hostile work environment cases -- and represented to
this court that her allegations, as analyzed under Title VII, were
sufficient to state claims under both categories. Specifically,
plaintiff stated with respect to her quid pro quo claim that sexual
harassment occurs when, among other things, "rejection of such
conduct by an individual is used as the basis for employment
decisions," citing as support for this claim Title VII cases and
guidelines promulgated by the Equal Employment Opportunity
Commission (EEOC) ... and stated with respect to her hostile
environment claim, again citing Title VII cases and EEOC
guidelines, that "(u)nder section 1983, as under Title VII, it is
unlawful to create a sexually hostile or abusive work
environment." ... Several of this Court's discovery rulings in
favor of plaintiff were premised on this court's understanding and
plaintiff's representations (in her complaint and elsewhere) that
she was asserting workplace harassment as understood in reference
to Title VII standards, i.e., that she suffered tangible job
detriments for her refusal to submit to Governor Clinton's alleged
advances. Based on plaintiff's prior representations and the clear
weight of authority, the court will look to Title VII in addressing
plaintiff's quid pro quo and hostile work envir onment sexual
harassment claims.
a. To make a prima facie case of quid pro quo sexual harassment,
this plaintiff must show, among other things, that her refusal to
submit to unwelcome sexual advances or requests for sexual favors
resulted in a tangible job detriment. Cram v. Lamson & Sessions Co.
... (noting that to withstand summary judgment on quid pro quo
claims, plaintiffs were required to produce evidence showing that
the harassment complained of affected tangible aspects of their
compensation, terms, conditions, or privileges of employment).
"(A) supervisor's mere threat or promise of job-related harm or
benefits in exchange for sexual favors does not constitute quid pro
quo harassment. ..." Gary v. Long, ...
i. Apparently recognizing the infirm ground upon which her
assertion of tangible job detriments rest (which will be discussed
infra), plaintiff first argues that a showing of a tangible job
detriment is not an essential element of an action for quid pro quo
sexual harassment under Title VII.
The Court rejects this argument as it conflicts with the Eighth
Circuit's requirement that a refusal to submit to unwelcome sexual
advances or requests for sexual favors resulted in a tangible job
detriment ... and conflicts with the majority of the other circuits
on this point as well, including the recent decisions cited
previously from the Fifth Circuit in Sanders, ... and the District
of Columbia Circuit in Gary, ... See also Chamberlin v. 101 Realty,
... (concluding that it is the essence of quid pro quo harassment
when an employee is subjected to unwelcome sexual advances by a
supervisor and her reaction to these advances affects tangible
aspects of her compensation, terms, conditions, or privileges of
employment); Spencer v. General Electric Co. ... (quid pro quo
claim requires that the employee's reaction to the harassment
affected tangible aspects of the employee's compensation, terms,
conditions, or privileges of employment); Carrero v. New York City
Housing Authority ... (noting that the gravamen of a quid pro quo
claim is that a tangible job benefit or privilege is conditioned on
an employee's submission to sexual blackmail and that adverse
consequences follow from the employee's refusal); Hicks v. Gates
Rubber Co. ... (quid pro quo sexual harassment exists when adverse
job consequences result from employee's refusal to submit to sexual
advances); Sparks v. Pilot Freight Carriers, Inc. ... (quid pro quo
claim requires that the employee's reaction to the harassment
affected tangible aspects of the employee's compensation, terms,
conditions, or privileges of employment); Highlander v. K.F.C Natl.
Management Co. ... (no cause of action for quid pro quo sexual
harassment where "the record (is) totally devoid of any evidence
tending to demonstrate that plaintiff was denied a job benefit or
suffered a job detriment as a result of her failure to engage in
the activity suggested by (defendant)").
Even without benefit of the settled authority requiring a
showing of a tangible job detriment in quid pro quo cases, the
three cases upon which plaintiff relies in support of her argument,
Nichols v. Frank, ... Karibian v. Columbia University, ... and
Jansen v. Packaging Corp. of America ... do not obviate the need
for a showing of a tangible job detriment under the facts of this
case. First, Nichols and Karibian were "submission" cases in
which the victims of sexual harassment submitted to the unwelcome
sexual advances. Plaintiff, by contrast, alleges that she resisted
Governor Clinton's alleged advances and thereby suffered reprisals
in her workplace. The court in Karibian recognized the distinction
between so-called "submission" and "refusal" cases, noting that
"(i)n the nature of things, evidence of economic harm will not be
available to support the claim of the employee who submits to the
supervisor's demands." ... Both Nichols and Karibian were
addressing the narrow situations before them in which the victim
submitted to the demands for sexual favors and do not stand for the
proposition that a showing of a tangible job detriment is
unnecessary in a quid pro quo sexual harassment case where, as
here, it is claimed that the alleged advances were resisted.
While it is true that the Seventh Circuit in Jansen concluded
that a "clear and unambiguous" quid pro quo threat that "clearly
conditions concrete job benefits or detriments on compliance with
sexual demands" can constitute an actionable claim "even if the
threat remains unfulfilled," ... plaintiff acknowledges that no
one, including Governor Clinton, ever told her that if she refused
to submit to his alleged advances it would have a negative effect
on her job, that she had to submit to his alleged advances in order
to receive job benefits, or that the governor would use his
relationship with AIDC Director Dave Harrington to penalize her in
her job. ... She merely states that "read(ing) between the
lines," she "knew what (the Governor) meant" when he allegedly
indicated in the hotel suite that Harrington was his good friend.
... Be that as it may, the governor's alleged statements do not in
any way constitute a clear threat that clearly conditions concrete
job benefits or detriments on compliance with sexual demands.
Plaintiff's claim therefore would not survive a Jansen analysis,
her "read(ing) between the lines" notwithstanding. ...
Based on the foregoing, the Court finds that a showing of a
tangible job detriment is an essential element of plaintiff's quid
pro quo sexual harassment claim. It is that issue to which the
Court now turns.
ii. As evidence of tangible job detriments (or adverse
employment action), plaintiff claims the following occurred after
she resisted Governor Clinton's alleged advances on May 8, 1991:
(1) she was discouraged from applying for more attractive jobs and
seeking reclassification at a higher pay grade within the AIDC; (2)
her job was changed to one with fewer responsibilities, less
attractive duties and less potential for advancement -- and the
reason given for the change proved to be untrue; (3) she was
effectively denied access to grievance procedures that would
otherwise have been available to victims of sexual harassment; and
(4) she was mistreated in ways having tangible manifestations, such
as isolating her physically, making her sit in a location from
which she was constantly watched, making her sit at her workstation
with no work to do, and singling her out as the only female
employee not to be given flowers on Secretary's Day. The Court has
carefully reviewed the record in this case and finds nothing in
plaintiff's employment records, her own testimony, or the testimony
of her supervisors showing that plaintiff's reaction to Governor
Clinton's alleged advances affected tangible aspects of her
compensation, terms, conditions, or privileges of employment.
1. Plaintiff's claim that she was discouraged from applying for
more attractive jobs and seeking reclassification at a higher pay
grade within the AIDC does not demonstrate any "tangible" job
detriment as she has not identified a single specific job which she
desired or applied for at AIDC but which she had been discouraged
from seeking. ... When asked for such specific information,
plaintiff merely testified that the unidentified jobs she sought
were "a grade higher" but that her supervisor "would always
discourage me and make me believe that I could grow within the
administrative services, which in fact I didn't. I got degrade --
downgraded." ... She further states that those "few" times that
she would talk to her supervisor and receive discouragement, she
"would go ahead and fill out an application maybe or something."
... There is no record of plaintiff ever applying for another job
within AIDC, however, and the record shows that not only was
plaintiff never downgraded, her position was reclassified upward
from a Grade 9 classification to a Grade 11 classification, thereby
increasing her annual salary. ... Indeed, it is undisputed that
plaintiff received every merit increase and cost-of-living
allowance for which she was eligible during her nearly two-year
tenure with the AIDC and consistently received satisfactory job
evaluations. ...
Specifically, on July 1, 1991, less than two months after the
alleged incident that is the subject of this lawsuit, plaintiff
received a cost-of-living increase and her position was
reclassified from Grade 9 to Grade 11; on August 28, 1991,
plaintiff received a satisfactory job evaluation from her
supervisor, Clydine Pennington; on March 11, 1992, the one-year
anniversary of her hire date with AIDC, plaintiff received another
satisfactory evaluation from Pennington and Cherry Duckett, deputy
director of AIDC, which entitled her to a merit raise. ... In
addition, plaintiff was given a satisfactory job review in an
evaluation covering the period of March 1992 until her voluntary
departure from the AIDC in February 1993. ... Plaintiff signed this
review on February 16, 1993, ... and would have received another
merit increase one month later in accordance with this review had
she elected to continue her employment at AIDC. ...
It is plaintiff's burden to come forward with "specific facts"
showing that there is a genuine issue for trial, ... and the Court
finds that her testimony on this point, being of a most general and
non-specific nature (and in some cases contradictory to the
record), simply does not suffice to create a genuine issue of fact
regarding any tangible job detriment as a result of her having
allegedly been discouraged from seeking more attractive jobs and
reclassification. Compare Splunge v. Shoney's, Inc. ... (where
plaintiff claimed that she never specifically requested a promotion
or raise because it would have been futile as she had not
surrendered to supervisor's harassment, court held this was
insufficient to create a genuine issue of material fact regarding
denial of economic benefits as it was mere inference based on
speculation and conjecture").
2. Equally without merit is plaintiff's assertion that following
her return from maternity leave in September 1992, she suffered a
tangible job detriment when her job was changed to one with fewer
responsibilities, less attractive duties and less potential for
advancement. ... These matters do not constitute a tangible job
detriment as it is undisputed that there was no diminution in
plaintiff's salary or change in her job classification following
her return from maternity leave and, further, that her last review
at AIDC following her return was positive and would have entitled
her to another merit increase had she not resigned her position in
order to move to California with her husband. Changes in duties or
working conditions that cause no materially significant
disadvantage, such as diminution in title, salary, or benefits, are
insufficient to establish the adverse conduct required to make a
prima facie case. ...
Although plaintiff states that her job title upon returning from
maternity leave was no longer that of purchasing assistant and that
this change in title impaired her potential for promotion, her job
duties prior to taking maternity leave and her job duties upon
returning to work both involved data input; the difference being
that instead of responsibility for data entry of AIDC purchase
orders and driving records, she was assigned data entry
responsibilities for employment applications. ... That being so,
plaintiff cannot establish a tangible job detriment. A transfer
that does not involve a demotion in form or substance and involves
only minor changes in working conditions, with no reduction in pay
or benefits, will not constitute an adverse employment action,
"(o)therwise every trivial personnel action that an irritable ...
employee did not like would form the basis of a discrimination
suit." ... Whether or not the reasons given for the change were
untrue, plaintiff's allegations describe nothing "more disruptive
than a mere inconvenience or an alteration of job
responsibilities." ...
3. The Court also rejects plaintiff's claim that she was
effectively denied access to grievance procedures that would
otherwise have been available to victims of sexual harassment.
Plaintiff merely states that from her "perspective," it
"appeared very unlikely that any good would come from pursuing a
grievance," and that "it was natural for her to conclude that
invoking the grievance procedure would be futile and perhaps
worse." ... As the Court has previously noted, however, plaintiff
acknowledges that she was never threatened with adverse employment
action if she did not submit to the governor's alleged advances,
but that she was only "read(ing) between the lines." ... Such
subjective perceptions and beliefs regarding the efficacy of
invoking any grievance procedures are nothing more than
"speculation and conjecture" and do not constitute a tangible job
detriment. ... See also Cram, ... (plaintiff's subjective belief
that defendant had threatened job retaliation did not state a claim
of quid pro guo sexual harassment).
4. Finally, the Court rejects plaintiff's claim that she was
subjected to hostile treatment having tangible effects when she was
isolated physically, made to sit in a location from which she was
constantly watched, made to sit at her workstation with no work to
do, and singled out as the only female employee not to be given
flowers on Secretary's Day. Plaintiff may well have perceived
hostility and animus on the part of her supervisors, ... but these
perceptions are merely conclusory in nature and do not, without
more, constitute a tangible job detriment. Absent evidence of some
more tangible change in duties or working conditions that
constitute a material employment disadvantage, of which the Court
has already determined does not exist, general allegations of
hostility and personal animus are not sufficient to demonstrate any
adverse employment action that constitutes the sort of ultimate
decision intended to be actionable under Title VII. Manning v.
Metropolitan Life Insurance Co. ...
Similarly, plaintiff's allegations regarding her work station
being moved so that she had to sit directly outside Pennington's
office and, at times, not having work to do ... describe nothing
more than minor or de minimis personnel matters which, again
without more, are insufficient to constitute a tangible job
detriment or adverse employment action. Compare Hicks v. Brown ...
(case in which this Court found no adverse employment action,
notwithstanding allegations of a pattern of negative or adverse
actions taken against the plaintiff -- including a critical e-mail
from plaintiff's supervisor, verbal counseling of plaintiff by her
supervisor, and a low rating on plaintiff's proficiency report --
where no financial harm, termination, or suspension had occurred).
Although it is not clear why plaintiff failed to receive flowers
on Secretary's Day in 1992, such an omission does not give rise to
a federal cause of action in the absence of evidence of some more
tangible change in duties or working conditions that constitute a
material employment disadvantage. ...
iii. In sum, the court finds that a showing of a tangible job
detriment or adverse employment action is an essential element of
plaintiff's Section 1983 quid pro quo sexual harassment claim and
that plaintiff has not demonstrated any tangible job detriment or
adverse employment action for her refusal to submit to the
governor's alleged advances. The president is therefore entitled to
summary judgment on plaintiff's claim of quid pro quo sexual
harassment.
b. The Court now turns to plaintiff's hostile work environment
claim. Unlike quid pro quo sexual harassment, hostile work
environment harassment arises when "sexual conduct has the purpose
or effect of unreasonably interfering with an individual's work
performance or creating an intimidating, hostile or offensive
working environment." ... To prevail on a hostile work environment
cause of action, a plaintiff must establish, among other things,
that she was subjected to unwelcome sexual harassment based upon
her sex that affected a term, condition, or privilege of
employment. ... The behavior creating the hostile working
environment need not be overtly sexual in nature, but it must be
"'unwelcome' in the sense that the employee did not solicit or
invite it, and the employee regarded the conduct as undesirable or
offensive." Cram, ... The harassment must also be sufficiently
severe or pervasive "to alter the conditions of employment and
create an abusive working environment." ...
The president essentially argues that aside from the alleged
incident at the Excelsior Hotel, plaintiff alleges only two other
contacts with him, alleges only a few additional contacts with
Ferguson, and contains conclusory claims that plaintiff's
supervisors were rude. He argues that taken individually or as a
whole, these contacts do not in any way constitute the kind of
pervasive, intimidating, abusive conduct that courts require to
establish a hostile work environment claim. The Court agrees.
In assessing the hostility of an environment, a court must look
to the totality of the circumstances. Stacks v. Southwestern Bell
Yellow Pages ... Circumstances to be considered include "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." ... No single factor is
determinative ... and the court "should not carve the work
environment into a series of discrete incidents and then measure
the harm occurring in each episode." Burns v. McGregor Elec.
Indus., Inc. ...
First, the Court finds plaintiff's reliance on her assertions of
tangible job detriment as establishing a hostile work environment
... to be misplaced. In its August 22 Memorandum Opinion and Order,
the Court noted that although the president's argument for outright
dismissal of plaintiff's hostile work environment claim had "some
force," further development of the record was nevertheless
necessary. ... The court based this conclusion in large part on
plaintiff's representations that her rejection of the president's
alleged advances caused her to suffer adverse employment actions,
including being transferred to a position that had no responsible
duties for which she could be adequately evaluated to earn
advancement and failing to receive raises and merit increases. ...
In this regard, the court determined that the "totality" of the
allegations alleged in this case were such that they could be said
to have altered the conditions of plaintiff's employment and
created an abusive work environment. ... However, development of
the record has now established that plaintiff's allegations of
adverse employment actions are without merit .. with her claim of
failing to receive cost of living increases apparently having even
been abandoned. ... Plaintiff received every merit increase and
cost-of-living allowance for which she was eligible during her
nearly two-year tenure with the AIDC, her job was upgraded from
Grade 9 to Grade 11 (thereby increasing her salary), she
consistently received satisfactory job evaluations, and her job
responsibilities upon her return from maternity leave were not
significantly different from prior to her taking leave and did not
cause her any materially significant disadvantage. These facts are
clearly established by the record and dispel the notion that she
was subjected to a hostile work environment.
Plaintiff certainly has not shown under the totality of the
circumstances that the alleged incident in the hotel and her
additional encounters with Ferguson and the governor were so severe
or pervasive that it created an abusive working environment. ...
She admits that she never missed a day of work following the
alleged incident in the hotel, she continued to work at AIDC
another nineteen months (leaving only because of her husband's job
transfer), she continued to go on a daily basis to the governor's
office to deliver items and never asked to be relieved of that
duty, she never filed a formal complaint or told her supervisors of
the incident while at AIDC, and she never consulted a psychiatrist,
psychologist, or incurred medical bills as a result of the alleged
incident. ... In addition, plaintiff has not shown how Ferguson's
alleged comments, whether considered alone or in conjunction with
the other alleged conduct in this case, interfered with her work,
and she acknowledges that the governor's statement about him and
her looking like "beauty and the beast" was made "in a light
vein" and that his patting her on the shoulder and asking her how
she was doing was done in a "friendly fashion."
While the alleged incident in the hotel, if true, was certainly
boorish and offensive, the court has already found that the
governor's alleged conduct does not constitute sexual assault. ...
This is thus not one of those exceptional cases in which a single
incident of sexual harassment, such as an assault, was deemed
sufficient to state a claim of hostile work environment sexual
harassment. Compare Crisonino v. New York City Housing Authority
... (supervisor called plaintiff a "dumb bitch" and "shoved her
so hard that she fell backward and hit the floor, sustaining
injuries from which she has yet to fully recover.")
Considering the totality of the circumstances, it simply cannot
be said that the conduct to which plaintiff was allegedly subjected
was frequent, severe, or physically threatening, and the court
finds that defendants' actions as shown by the record do not
constitute the kind of sustained and nontrivial conduct necessary
for a claim of hostile work environment. Compare Lam v. Curators of
the University of Missouri ... (noting that single exposure to
offensive videotape was not severe or pervasive enough to create
hostile environment); Montandon ... (exposure to offensive behavior
by supervisor on one instance does not satisfy "severe or
pervasive" requirement under Title VII); Sprague v. Thorn
Americas, Inc. ... (five sexually-oriented incidents spread out
over the course of 16 months not sufficiently severe or pervasive
enough to create hostile work environment); Saxton v. American Tel.
& Tel. Co. ... ("relatively limited" instances of unwanted sexual
advances, which included the supervisor placing his hand on
plaintiff's leg above the knee several times, rubbing his hand
along her upper thigh, kissing her several seconds, and
"lurch(ing) at her from behind some bushes," did not create an
objectively hostile work environment.)
In sum, the court finds that the record does not demonstrate
conduct that was so severe or pervasive that it can be said to have
altered the conditions of plaintiff's employment and created an
abusive working environment. Accordingly, the president is entitled
to summary judgment on plaintiff's claim of hostile work
environment sexual harassment.
2. The Court now turns to plaintiff's Section 1985(3) conspiracy
claim. In order to prove the existence of a civil rights conspiracy
under Section 1985(3), a plaintiff must prove, among other things,
that another person was injured in his person or property or
deprived of having and exercising any right or privilege of a
citizen in the United States. ... "Section 1985(3) provides no
substantive rights itself; it merely provides a remedy for
violation of the rights it designates." (Great American Federal
Savings & Loan Assn. v. Novotny). ...
Plaintiff does not have a viable Section 1985(3) claim in this
case as the court has determined that her Section 1983 quid pro quo
and hostile work environment sexual harassment claims are without
merit and warrant a grant of summary judgment. Absent an underlying
violation of federal law, there can be no actionable claim alleging
a conspiracy to achieve that end. See Larson (noting that where
there was no evidence from which a jury could conclude that any
injury to or deprivation of the plaintiff's constitutional rights
actually occurred, there was no Section 1985(3) conspiracy claim);
Wiggins v. Hitchens ... (noting that "(t)here can be no recovery
under section 1985(3) absent a violation of a substantive federal
right"); Escamilla v. City of Santa Ana, .. (noting that "(t)here
can be no action for conspiracy under 42 U.S.C. Section 1985 or for
failure to prevent a conspiracy under 42 U.S.C. Section 1986 when
no civil rights violation has occurred") ...; Gamson v. Burke ...
(where there was no underlying deprivation of equal protection,
plaintiff was precluded from establishing Section 1985(3) claim as
there was no showing of injury to person or property.)
3. Finally, the court addresses plaintiff's state law claim of
intentional infliction of emotional distress or outrage. ...
Arkansas recognizes a claim of intentional infliction of emotional
distress based on sexual harassment. Davis v. Tri-State Mack
Distribs., Inc. ... To establish a claim of intentional infliction
of emotional distress, a plaintiff must prove that: (1) the
defendant 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 and outrageous and utterly
intolerable in a civilized community; (3) the defendant's conduct
was the cause of the plaintiff's distress; and (4) the plaintiff's
emotional distress was so severe in nature that no reasonable
person could be expected to endure it. Milam v. Bank of Cabot...;
Hollomon v. Keadle...; Cherepski v. Walker...; Croom v. Younts. ...
The president argues that the alleged conduct of which plaintiff
complains was brief and isolated; did not result in any physical
harm or objective symptoms of the requisite severe distress; did
not result in distress so severe that no reasonable person could be
expected to endure it; and he had no knowledge of any special
condition of plaintiff that would render her particularly
susceptible to distress. He argues that plaintiff has failed to
identify the kind of clear cut proof that Arkansas courts require
for a claim of outrage and that he is therefore entitled to summary
judgment. The Court agrees.
One is subject to liability for the tort of outrage or
intentional infliction of emotional distress if he or she willfully
or wantonly causes severe emotional distress to another by extreme
and outrageous conduct. Sterling Drug Inc. v. Oxford ... See also
Ingram v. Pirelli Cable Corp. ... In M.B.M. Co. v. Counce ... the
Arkansas Supreme Court stated that "(b)y extreme and outrageous
conduct, we mean conduct that is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in
civilized society." Whether conduct is "extreme and outrageous"
is determined by looking at "the conduct at issue; the period of
time over which the conduct took place; the relation between
plaintiff and defendant; and defendant's knowledge that plaintiff
is particularly susceptible to emotional distress by reason of some
physical or mental peculiarity." Doe v. Wright. ... The tort is
clearly not intended to provide legal redress for every slight
insult or indignity that one must endure. ... The Arkansas courts
take a strict approach and give a narrow view to claims of outrage
... and merely describing conduct as outrageous does not make it
so. ... Plaintiff seems to base her claim of outrage on her erroneous
belief that the allegations she has presented are sufficient to
constitute criminal sexual assault. She states that "Mr. Clinton's
outrageous conduct includes offensive language, an offensive
proposition, offensive touching (constituting sexual assault under
both federal and state definitions), and actual exposure of an
intimate private body part," and that "(t)here are few more
outrageous acts than a criminal sexual assault followed by unwanted
exposure, coupled with a demand for oral sex by the most powerful
man in the state against a very young, low-level employee." ...
While the Court will certainly agree that plaintiff's
allegations describe offensive conduct, the court, as previously
noted, has found that the governor's alleged conduct does not
constitute sexual assault. Rather, the conduct as alleged by
plaintiff describes a mere sexual proposition or encounter, albeit
an odious one, that was relatively brief in duration, did not
involve any coercion or threats of reprisal, and was abandoned as
soon as plaintiff made clear that the advance was not welcome. The
court is not aware of any authority holding that such a sexual
encounter or proposition of the type alleged in this case, without
more, gives rise to a claim of outrage. Compare Croom ... (use of
wine and medication by a vastly older relative to foist sex on a
minor cousin went "beyond a mere sexual encounter" and offended
all sense of decency).
Moreover, notwithstanding the offensive nature of the governor's
alleged conduct, plaintiff admits that she never missed a day of
work following the alleged incident, she continued to work at AIDC
another nineteen months (leaving only because of her husband's job
transfer), she continued to go on a daily basis to the governor's
office to deliver items and never asked to be relieved of that
duty, she never filed a formal complaint or told her supervisors of
the incident while at AIDC, she never consulted a psychiatrist,
psychologist, or incurred medical bills as a result of the alleged
incident, and she acknowledges that her two subsequent contacts
with the governor involved comments made "in a light vein" and
nonsexual contact that was done in a "friendly fashion." Further,
despite earlier claiming that she suffered marital discord and
humiliation, plaintiff stated in her deposition that she was not
claiming damages to her marriage as a result of the governor's
alleged conduct, ... and she acknowledged the request to drop her
claim of injury to reputation by stating, "I didn't really care if
it was dropped or not personally." ... Plaintiff's actions and
statements in this case do not portray someone who experienced
emotional distress so severe in nature that no reasonable person
could be expected to endure it. Cf. Homaker ... (no claim of
outrage where plaintiff, who had a speech impediment and an I.Q. of
between 75 and 100, was "red-faced and angry," had an "increased
heart rate and blood pressure," and had trouble sleeping four days
after incident involving "rather nasty" practical joke.)
Nevertheless, plaintiff submits a declaration from a purported
expert with a Ph.D in education and counseling, Patrick J. Carnes,
who, after a 3.5 hour meeting with plaintiff and her husband a mere
four days prior to the filing of President Clinton's motion for
summary judgment, opines that her alleged encounter with Governor
Clinton in 1991, "and the ensuing events," have caused plaintiff
to suffer severe emotional distress and "consequent sexual
aversion." The Court does not credit this declaration.
In Angle v. Alexander, ... the Arkansas Supreme Court noted that
absent physical harm, courts look for more in the way of extreme
outrage as an assurance that the mental disturbance claimed is not
fictitious. ... In that case, the plaintiffs offered their own
testimony that they had experienced emotional distress, thoughts of
death, fear, anger and worry, but little else. ... In concluding
that there was no evidence of extreme emotional distress required
to prevail on an outrage claim, the court found it significant that
none had seen a physician or mental health professional for these
concerns. ... The court did not allow the fact that one plaintiff
"on the advice of her attorney, spoke to a psychologist," to
overcome her failure of proof on this point.
Aside from other deficiencies with the Carnes' declaration
(including the fact that the substance of this declaration
apparently was not disclosed in accordance with rules governing
pretrial discovery), the opinions stated therein are vague and
conclusory and, as in Angle, do not suffice to overcome plaintiff's
failure of proof on her claim of outrage. Compare Crenshaw v.
Georgia-Pacific Corp. ... (affidavit prepared after opposing motion
for summary judgment filed detailing symptoms of weight loss, lack
of sleep, headache, worry, and nausea, failed to present sufficient
evidence of emotional distress.)
In sum, plaintiff's allegations fall far short of the rigorous
standards for establishing a claim of outrage under Arkansas law
and the Court therefore grants the president's motion for summary
judgment on this claim.
III. One final matter concerns alleged suppression of pattern
and practice evidence. Whatever relevance such evidence may have to
prove other elements of plaintiff's case, it does not have anything
to do with the issues presented by the president's and Ferguson's
motions for summary judgment, i.e., whether plaintiff herself was
the victim of alleged quid pro quo or hostile work environment
sexual harassment, whether the president and Ferguson conspired to
deprive her of her civil rights, or whether she suffered emotional
distress so severe in nature that no reasonable person could be
expected to endure it. Whether other women may have been subjected
to workplace harassment, and whether such evidence has allegedly
been suppressed, does not change the fact that plaintiff has failed
to demonstrate that she has a case worthy of submitting to a jury.
Reduced to its essence, the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party and the
court therefore finds that there are no genuine issues for trial in
this case.
IV. For the foregoing reasons, the court finds that the
president's and Ferguson's motions for summary judgment should both
be and hereby are granted. There being no remaining issues, the
Court will enter judgment dismissing this case.
It is so ordered this 1st day of April 1998.
Susan Webber Wright, United States District Judge
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Introduction