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Harness v. Anderson County

United States District Court, E.D. Tennessee, Knoxville

October 17, 2019

GAIL HARNESS, Plaintiff,



         Before the Court is Defendant Anderson County, Tennessee's motion for summary judgment on all of Plaintiff Gail Harness's claims in this employment discrimination case. (Doc. 33.) Plaintiff responded in opposition (Doc. 38), and Defendant replied (Doc. 40). The Court will DENY Defendant's motion for summary judgment (Doc. 33).

         I. BACKGROUND

         William T. Jones was elected as the Clerk of the Anderson County Circuit Court Clerk's Office on September 2, 2014, and took office shortly after that. (Doc. 38-1 at 1, 3 [Jones Decl. ¶¶ 2, 12].) He did not receive any training about work-place harassment when he took office. (Id. at 3 [Jones Decl. ¶ 12].) Jones had final authority over personnel decisions for the Clerk's Office, including hiring, firing, and establishing job duties. (Id. at 2 [Jones Decl. ¶ 5].) Employees of the Clerk's Office were, nevertheless, employees of Defendant. (Id. [Jones Decl. ¶ 6].)

         Defendant included harassment policies in its employee handbooks dated May 1, 2011, and March 20, 2017. (Doc. 40-1 at 1 [Kim Jeffers-Whitaker[1] Aff. ¶¶ 3, 4]; Doc. 40-2 at 17-18 [2011 Handbook at 16-17]; Doc. 40-3 at 17-22 [2017 Handbook at 16-21].) Defendant was responsible for training Clerk's Office employees on personnel policies. (Doc. 38-1 at 3 [Jones Decl. ¶ 9].)

         A. Previous Complaints to Defendant About Jones

         In November 2014, Clerk's Office employee Nichole Lucas made a written and oral complaint to Defendant's Human Resources (“HR”) Director, Cathy Best, about Jones. (Doc. 38-2 at 3 [Letter from Lucas to Jeffers-Whitaker (Mar. 5, 2018)].[2]) Lucas alleged Jones made sexually explicit comments and jokes in the office; asked Lucas whether she had campaigned for, dated, performed favors for, or had sex with Jones's predecessor; told her to smile because he wanted his ladies to look beautiful for the camera; threatened her with losing her job; and repeatedly stood behind her chair in her cubicle with his hands on her shoulders, watching her work. (Id. at 1-2.) HR Director Best did not make Jones aware of Lucas's complaint or of any investigation at the time. (Doc. 38-1 at 3 [Jones Decl. ¶ 13].) Instead, Best told Lucas there would be an opening in HR shortly. (Doc. 38-2 at 3 [Lucas Letter at 3].) Lucas applied for the job and was hired. (Id.) Lucas received other complaints about Jones during her time with HR. (Id. at 4.) Lucas, who no longer works in HR, has now been told her original complaint is not in her personnel file. (Id.)

         In May 2015, Angela Brown made a written complaint about Jones to Russell Bearden, who had succeeded Best as Defendant's HR Director. (Doc. 38-3 at 1 [Email from Brown to Bearden (May 5, 2015)].) Brown had been employed at the Clerk's Office for a few days in March 2015. (Doc. 38-4 at 1 [Bearden Aff.].[3]) Brown complained that Jones asked inappropriate questions during her interview, including her age, her religion, whether she had a boyfriend, and, indirectly, whether she was pregnant. (Doc. 38-3 at 1 [Brown Email].) She wrote that he told her to smile because she looked prettier when she smiled. (Id.) She also wrote that after she started the job, and after she told Jones she did not think the job was right for her, he told her to come into his office and eat her lunch, which happened to be yogurt. (Id.) Jones watched her eat, and he told her he had a fetish for women eating yogurt. (Id.) Brown wrote that she quit by text message because she was too uncomfortable to go into the office to quit in person. (Id.)

         HR Director Bearden talked to Jones about Brown's complaint and asked Jones to respond in writing, which Jones did. (Doc. 38-4 at 1 [Bearden Aff.].) When Bearden counseled Jones about the seriousness of Brown's complaint, Jones laughed, saying he did not report to anyone, and that “I could sit in my office butt naked with the door open and masturbate and there's nothing you can do about it.” (Id.) Bearden told Anderson County Mayor Terry Frank about Brown's complaint and Jones's response. (Id.) Mayor Frank said Jones was new and might need some training, but she could not force him to do it because he was an elected official. (Id.) Bearden arranged sexual harassment training for Jones with a law firm, but Jones told Bearden he had completed an on-line course and gave Bearden a certificate. (Id.) When Bearden discussed the situation further with Mayor Franks, she said she could not do anything about it, because “that's just the way it is in Local Government.” (Id. at 2.) Bearden closed the investigation because he was not able to reach Brown to discuss the discrepancies between her complaint and Jones's response. (Id.)

         Jones's recollection of the investigation of Brown's complaint differs, in that he claims Bearden told him he could make Brown's complaint “go away” if Jones would go to anti-harassment training. (Doc. 38-1 at 3-4 [Jones Decl. ¶ 15].) Jones refused to go to the expensive training Bearden had arranged, but enrolled instead in a class by the University of Tennessee's County Technical Assistance Service. (Id.) Jones recalls that there was no additional training for him or for Clerk's Office staff after the Brown complaint. (Id. at 4 [Jones Decl. ¶ 16].)

         Bearden heard “many rumors around the Courthouse” for the next two years, but he took no action because no one with first-hand knowledge approached him until Plaintiff did so in 2017. (Doc. 38-4 at 2 [Bearden Aff.].)

         B. Plaintiff's Employment

         Plaintiff was hired as a part-time file clerk in the Clerk's Office in February 2016, following a brief internship for her college coursework. (Doc. 38-5 at 1 [Pl. Aff. ¶ 2].) Plaintiff was not given a copy of Defendant's employee handbook, nor did she ever see any information from Defendant about sexual harassment or how to report it. (Id. at 4 [Pl. Aff. ¶ 22].) In 2016, Defendant approved an anti-harassment and anti-retaliation policy, but Jones refused to implement the policies in the Clerk's Office. (Id. at 2 [Pl. Aff. ¶ 7].) Plaintiff believed that she had to submit to Jones's behavior, as described below, to keep her job. (Id. at 2, 4 [Pl. Aff. ¶¶ 8, 22].)

         Throughout Plaintiff's employment, Jones insisted that Plaintiff and other female employees call him “Daddy.” (Id. at 1 [Pl. Aff. ¶ 3].) He referred to certain female employees of the Clerk's Office as “Daddy's Bitch, ” or “Daddy's Prissy Bitch.” (Id.) He told Plaintiff he did not have a boss. (Doc. 33-2 at 1 [Pl. Sworn Statement at 7].[4]) Beginning when she was an intern, he would corner Plaintiff in a file room and “make suggestive comments about [her] appearance, encourage [her] to wear more provocative clothing, and compliment [her] on [her] breasts and . . . ‘cleavage.'” (Doc. 38-5 at 1-2 [Pl. Aff. ¶¶ 4, 9].) He continued making comments of a sexual nature throughout her employment. (Id. at 2 [Pl. Aff. ¶ 10].) He also made such comments to Plaintiff using the instant-messaging app Snapchat, which automatically deletes messages unless they are saved. (Id. at 2-3 [Pl. Aff. ¶¶ 11, 12].)

         Jones touched Plaintiff in a sexual manner throughout her employment. (Id. at 2 [Pl. Aff. ¶ 10].) He would approach Plaintiff from behind while she was making copies and place his hands on her hips. (Id.) He would rub her back while she was working. (Id.) He would sit on her desk and make her work around him. (Id.) He would pull a chair next to her, rest his head on her shoulder, and sometimes stare down her shirt. (Id.)

         In April or May 2016, a full-time position became available in the Clerk's Office. (Id. at 3 [Pl. Aff. ¶ 12].) Plaintiff told Jones she was interested in the position, as she was nearing her college graduation and needed full-time work. (Id.) Jones's Snapchat messages then turned sexually explicit. (Id. [Pl. Aff. ¶ 13].) Plaintiff asked Jones to stop because they were both married. (Id. [Pl. Aff. ¶ 14].)

         Sometime in March, April, or May 2016, Jones asked Plaintiff to send him a picture of her breasts, and Plaintiff did so. (Doc. 33-1 at 15 [Pl. Dep. at 54].) Jones sent a message in response, of which Plaintiff does not remember the exact wording. (Id.) It did not include any pictures of Jones, nor did Jones ever send Plaintiff pictures of his body. (Id. at 25 [Pl. Dep. at 93].)

         In June 2016, Jones told Plaintiff his wife had found out about his Snapchat messages. (Doc. 38-5 at 3 [Pl. Aff. ¶ 15].) He accused Plaintiff of telling his wife, and he said Plaintiff could forget about the full-time position and she was “going to pay for it.” (Id.) He stopped sending Plaintiff Snapchat messages, but he continued his sexually harassing conduct in the office. (Id. at 4 [Pl. Aff. ¶ 19].)

         In late July 2016, Plaintiff's then-husband called Mayor Frank and told her Jones was discriminating against Plaintiff by refusing to hire her for the full-time position. (Id. at 3 [Pl. Aff. ¶ 16].) Plaintiff is not aware of any corrective action or investigation, but Jones hired her for the full-time position in August 2016. (Id. at 4 [Pl. Aff. ¶ 18].)

         Jones avers he was not informed about Plaintiff's husband's complaint until after this lawsuit was filed. (Doc. 38-1 at 4 [Jones Decl. ¶ 18].) Plaintiff avers, however, that in the fall of 2016, Jones told Plaintiff that her husband had almost gotten her fired by calling Mayor Frank. (Doc. 38-5 at 4 [Pl. Aff. ¶ 20].)

         Jones issued Plaintiff disciplinary warnings on February 9, 2017, and March 30, 2017. (Id.) The first was for insubordination, for arguing with Jones about office procedures. (Doc. 33-1 at 19 [Pl. Dep. at 72].) Plaintiff admits she had a conversation with Jones, but denies they had an argument. (Id.) The second was for failing to write a receipt for a customer and for her drawer being over by six dollars. (Id. at 20 [Pl. Dep. at 73-74].) This warning was signed by Jessica Williams, not Jones, but Williams told Plaintiff that Jones was behind it. (Id.) Plaintiff alleges these warnings were “bogus” and were meant to intimidate her. (Doc. 38-5 at 4 [Pl. Aff. ¶ 20].) During the summer of 2017, Jones began threatening to transfer Plaintiff to the Oak Ridge office, which is referred to as the “clerk's graveyard.” (Id. [Pl. Aff. ¶ 21].)

         In August 2017, Plaintiff asked a friend's advice about her situation, and eventually received HR Director Bearden's name and telephone number. (Id. at 5 [Pl. Aff. ¶ 23].) That was the first time Plaintiff knew who the HR Director was. (Id.) Plaintiff told Bearden about Jones's harassment on or about August 9, 2017.[5] (Id. [Pl. Aff. ¶ 24].)

         On August 14, 2017, Jones transferred Plaintiff to the Oak Ridge office. (Id. [Pl. Aff. ¶ 25].) Jones visited Plaintiff at the Oak Ridge office, asking her if she was trying to find a new job and bragging about his close relationship with Defendant's Law Director. (Id. [Pl. Aff. ¶ 26].)

         On September 14, 2017, Bearden asked Plaintiff to sit for a sworn statement. (Doc. 33-2 [Sworn Statement].) The statement was recorded by a court reporter and consisted of questions by a representative of the HR Department[6] and answers by Plaintiff. (Id.) After she gave the statement, Bearden told Plaintiff to go home and call in sick for a few days. (Doc. 38-5 at 5 [Pl. Aff. ¶ 27].) Bearden placed Plaintiff on leave under the Family and Medical Leave Act (“FMLA”) the next week. (Id. [Pl. Aff. ¶ 27].) Plaintiff remained on FMLA leave until on or around March 18, 2018, when Defendant placed her in a position at the Anderson County Senior Center. (Id. [Pl. Aff. ¶ 28].) Plaintiff had no further contact with Jones after she was placed on leave. (Doc. 33-1 at 24 [Pl. Dep. at 91].)

         On February 20, 2018, Defendant's Board of Commissioners adopted a “Resolution to Admonish and Censure William T. Jones.” (Doc. 40-1 at 1 [Jeffers-Whitaker Aff. ¶ 6]; Doc. 40-5 [Resolution].) The Resolution asserted there had been multiple reports of Jones's inappropriate workplace conduct, namely

unwelcome sexual advances; solicitation of sex; lewd and vulgar text messages of a sexual nature; unwanted touching in a provocative manner; unprofessional remarks to employees . . .; threatening behavior; retaliatory discharge and punishment for those employees that refuse to participate; unlawful employment interview questions; all having the combined cumulative effect of creating a hostile work environment for County employees.

(Doc. 40-5 [Resolution] (footnotes omitted[7]).) The Resolution stated that, “[i]f true, these allegations may constitute an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964 and the Anderson County Comprehensive Personnel Policy.” (Id. (footnote omitted).) It recited that HR had been forced to relocate at least one employee for her protection, and that Jones had refused to implement training. (Id.) The Resolution concluded by “Admonish[ing] and Censur[ing] the alleged deplorable and dishonorable conduct of” Jones and “respectfully request[ing] that Mr. Jones immediately cease this disgraceful conduct, resign his office of public trust, and publicly apologize to these women and men and to all citizens of our County.” (Id.)

         Plaintiff continued to be employed by Defendant until September 1, 2018, when Defendant alleges she left County employment for the private sector (Doc. 34 at 5), and when Plaintiff alleges she was fired by the Clerk who defeated Jones in the 2018 primary (Doc. 38 at 12; Doc. 38-5 at 6 [Pl. Aff. ¶ 29]). Plaintiff's termination is the subject of a separate lawsuit and is not at issue here. (See Harness v. Anderson Cty., No. 3:19-cv-340.)

         Plaintiff filed her complaint in this action on March 13, 2018, approximately five days before her transfer to the Senior Center. (Doc. 1.) She asserts three causes of action against Defendant: for hostile work environment under 42 U.S.C. § 1983 in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, for hostile work environment in violation of the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101 et seq. (the “THRA”), and for retaliation in violation of the THRA by transferring Plaintiff to Oak Ridge.[8] Plaintiff served Defendant with process the next day. (Doc. 8.)

         Defendant filed its motion for summary judgment on June 24, 2019. (Doc. 33.) Plaintiff responded on July 22, 2019 (Doc. 38), and ...

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