United States District Court, D. Arizona
NEIL V. WAKE, District Judge.
Before the Court are Defendant Arizona Department of Corrections' Motion for Summary Judgment (Doc. 41), Plaintiff's Response in Opposition (Doc. 47), and Defendant's Reply (Doc. 49). For the following reasons, Defendant's Motion will be granted.
Plaintiff Danielle Powers formerly served as a corrections officer for Defendant Arizona Department of Corrections. At all relevant times, Powers worked at the Department's Eyman complex in Florence, Arizona. The Eyman complex comprises five separate units. In March 2011, Powers rotated into the Meadows Unit. Corrections officer Deonte Carter also worked in the Meadows Unit. Doc. 42 at 2-3.
On August 21, 2011, the Department's EEO liaison emailed the complex's warden after overhearing Powers and a coworker discuss Carter's sexually inappropriate behavior. Doc. 48 at 28. The next day, the warden transferred Carter to the Cook Unit and instructed him not to work the Meadows Unit to prevent contact with Powers pending review. Subsequently, the Department ordered a fact-finding investigation to substantiate the liaison's email. Id.; Doc. 42 at 4. On October 28, 2011, the Department suspended Carter for 40 hours leave without pay. The Department provided its reasons by letter:
Two female staff members reported independently that in 2011, on several occasions, you had encroached on their personal space and touched them.
On one occasion you sat in very close proximity to a female staff member when you reached out and touched her hand with your hand. On another occasion, it was reported by the same staff member that while she was trying to pass an inmate ID card through the center fence, you reached through the fence gap and stroked her arm with both your hands from the elbow to her hand.
Another female officer reported that while engaged in a conversation with her you reached over and rubbed her knee and she told you to stop. This same officer reports that you then attempted to rub her shoulders and again was told to stop. You replied something to the effect "are you afraid you might like it?" It was also reported that while assigned at Mt. Vista hospital, you approached this same female staff member and suddenly embraced her. Once again, you were told to stop. This was witnessed by another staff member as well. You also engaged in persistent unwanted/unsolicited conversations with this female staff member regarding personal and sexual topics. You also sent unsolicited te[x]t messages to this female staff member.
Your behavior constitutes insubordination, violation of standards of conduct for State employees.
Doc. 42-1 at 88-89. This letter was subsequently rescinded and replaced with a December 12, 2011 letter reducing Carter's suspension to 24 hours leave without pay and including the following justification for the discipline:
On August 21, 2011 a complaint was filed that you had conducted yourself unprofessionally with female staff. You admitted that while assigned at Mt. Vista hospital, you approached a female staff member and suddenly embraced her. You were told to stop. This was witnessed by another staff member as well. You also engaged in persistent unwanted/unsolicited conversations with this female staff member regarding personal and sexual topics. You also sent unsolicited text messages to this female staff member. Your behavior constitutes insubordination, conduct unbecoming an employee of the Department not described elsewhere in the Department Order, rule or statute.
Id. at 91.
Although the parties dispute his motives, they agree Carter's objectionable behavior stopped. Compare Doc. 42 at 5 with Doc. 48 at 8. Carter remained stationed in the Cook Unit, but he occasionally worked the Meadows Unit for overtime and cross-level shifts. Doc. 42 at 6. An employee serves "cross-level" duty when he alleviates an officer shortage in another unit. Id. at 6 n.1. Carter and Powers never worked the same shift at the Meadows Unit. Nonetheless, their paths sometimes crossed during a 15-minute overlap between shift changes. Powers testified she saw Carter at the Meadows Unit between three and five times following the investigation. Doc. 42-1 at 52-53. She testified Carter never made any attempt to contact her at work. Id. at 53. Indeed, Powers concedes the two never had any contact after August 21, 2011. Compare Doc. 42 at 6 with Doc. 48 at 8.
Powers proffers a declaration in which she elaborates on the schedule changes. Although she acknowledges estimating in her deposition testimony that she saw Carter "three or four times from November 2011 to May 2012, " she subsequently reviewed her time sheets and Carter's calendar. From this, she determined Carter "worked in the Meadows Unit, either on overtime graveyard shift or cross-level, more than 25 times from December 2011 through May 2012, and that of those 25 times, his shift overlapped with mine 13 times, including one time he was scheduled to relieve me of duty on the next shift." Doc. 48-1 at 11. Powers states she "avoided [Carter] on those shifts." Doc. 48 at 8. She did not indicate whether they saw each other, but it is undisputed they had no contact.
Powers perceived changes in her coworkers' attitudes toward her after the investigation. She testified that in particular African American officers-like Carter- treated her differently. When asked to provide an example, Powers responded that coworkers avoided working with her: "In briefing one day, when post assignments were called, they switched posts, so I would presume that's why." Doc. 42-1 at 54. When pressed to described other officers' behavior, she stated "mainly it's either the avoidance or switching posts, or if you're going to a transport run with someone, you would get-they can switch you out saying they can't go that day or rather go with someone else or whatever excuses come up." Id. at 55.
Additionally, Powers learned someone described her as "being a prude, being a snob, being stuck up, " id. at 56, as well as "playing hard to get, a tease, a tight ass." Doc. 48-1 at 5. She proffers several declarations of coworkers, who acknowledge hearing these statements from third-parties. Although Powers never heard Carter make these comments, she presumed they began with him: "My perception, my belief is that Carter started it because it never happened before, so that's my belief." Doc. 42-1 at 56.
Powers also perceived changes among the inmates. She testified, the African American inmates would give me a harder time. What I mean by that is if I asked them to do something, they would blatantly disregard what they were asked to do. They would congregate outside of the building I was assigned to versus before I never noticed that the same way.... They were obviously, when I say obvious, meaning blatantly more, ...