Donis M. Parker Plaintiff- Appellant
Arkansas Department of Correction, An Agency of the State of Arkansas Defendant-Appellee
Submitted: December 12, 2017
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
Parker sued her former employer, the Arkansas Department of
Correction (ADC), alleging race, gender, and age
discrimination. The district court dismissed Parker's age
discrimination claim, and a jury found for ADC on the race
and gender claims. Parker appeals, asserting an evidentiary
an African-American woman, worked for ADC for more than 17
years. In 2014, Parker was a lieutenant at ADC's Ouachita
River Unit. As a lieutenant, Parker was a middle manager with
supervisory responsibility for a shift of corrections staff.
During any given shift, only the shift supervisor-usually a
captain-was more senior than Parker.
of its compliance with the federal Prison Rape Elimination
Act of 2003 (PREA), 34 U.S.C. §§ 30301-30309, ADC
adopted procedures for responding to reports of sexual
contact between prisoners. One such procedure, memorialized
in an administrative directive to all ADC employees, was an
investigatory checklist that staff were to follow when
informed of a sexual incident between inmates. This so-called
"PREA checklist" required staff to investigate the
incident, separate the involved inmates, collect evidence,
and report their findings to superiors. The PREA checklist
listed procedures for both "rapes" and
"consensual sexual acts."
February 15, 2014, an inmate observed two other inmates
engaged in a sexual encounter in a prison kitchen. Terry
Douglas, a white male security officer on duty in the
kitchen, was made aware of the incident but took no action.
Jason Richard, a white male food service preparer, was also
aware of the incident but took no contemporaneous
action. Rumors of the incident spread. Two white
male security officers, Corporals Asumus and McDorman, heard
the rumors and told their superior, Sergeant Rodney Petty.
Petty, a white man, informed Parker, who was the shift
lieutenant. Parker and Petty then told the shift captain,
Gicelia Swopes (an African-American woman), about the
incident. Swopes responded that the report was "just
hearsay." Petty wrote an incident report but never
submitted it through official channels. Neither Parker nor
Swopes submitted an incident report or followed the steps in
the PREA checklist for either a rape or a consensual sexual
Ouachita River Unit officials learned of the February 15
incident and ordered an internal investigation. The
investigator found that Douglas, Parker, and Swopes had
failed to adequately report and investigate the incident as
set out in the PREA checklist. The investigator also found
that Petty had informed his superiors (Parker and Swopes) of
the incident, but had failed to go "above his shift
commander's rank to ensure policy was followed."
Using something called computerized voice stress analysis
(CVSA), the investigator concluded that Douglas, Parker, and
Swopes were being deceptive about the incident. Petty was
also subjected to CVSA examination, but the procedure found
he was not being deceptive. The two officers who had reported
the rumors to Petty-Asumus and McDorman-were not subjected to
CVSA. Nor was Richard, the food service worker. Following the
investigation, Warden Dale Reed fired Douglas, Parker, and
Swopes for violating ADC's policy on responding to inmate
sexual misconduct. No one else was fired.
sued ADC under Title VII of the Civil Rights Act, claiming
that her termination was the result of race, gender, and age
discrimination. The district court dismissed the age
discrimination count at summary judgment, and set the race
and gender claims for trial. ADC moved to exclude its
internal investigation report as inadmissible hearsay.
See Fed.R.Evid. 802. The district court ruled that
Parker could use the report to impeach ADC witnesses, and
reserved judgment on whether to receive the document as an
exhibit. At trial, Parker examined Warden Reed on his reasons
for firing her. Reed testified that, as the shift lieutenant,
Parker was responsible for completing the PREA checklist even
if her immediate supervisor (Swopes) was not concerned about
the incident. Reed opined that, as a long-time ADC employee,
Parker should have known better than to allow a PREA incident
to go uninvestigated and unreported. Reed also testified that
there was no need to subject Richard, Asumus, or McDorman to
CVSA because their reports were not contradicted by other
sources. Reed's testimony recounted large portions of the
internal investigation report, including the report's
conclusions as to which ADC personnel were being deceptive.
close of evidence, ADC renewed its motion to exclude the
internal investigation report as inadmissible hearsay.
Following argument from both parties, the district court
granted the motion and refused to give the jury access to the
report during deliberations. The jury returned verdicts for
appeal, Parker contends the district court erred by not
admitting the internal investigation report as an exhibit.
She argues that the report should have been admitted under
the business records exception to the hearsay rule. That
exception applies to "record[s] of an act, event,
condition, opinion, or diagnosis" that a custodian can
testify are contemporaneous, routinely made and "kept in
the course of a regularly conducted activity of a[n] . . .
organization, " and that are not shown to lack
trustworthiness. Fed.R.Evid. 803(6). "[E]videntiary
rulings are reversed only for 'a clear and prejudicial
abuse of discretion.'" Davis v. White, 858
F.3d 1155, 1159 (8th Cir. 2017) (quoting Quigley v.
Winter, 598 F.3d 938, 946 (8th Cir.
no clear and prejudicial abuse of discretion. As an initial
matter, we question whether Parker has established that the
report, as a whole,  met the requirements of Rule 803(6); and
she fails to cite evidence in the record to support her
assertion that it does. In any event, even if the report
qualified as a business record and was admissible as an
exception to the hearsay rule, we do not see how the district
court's ruling prejudiced Parker. While the district
court ultimately decided not to admit the internal
investigation report as a documentary exhibit, it permitted
Parker to elicit the content of the report while questioning
Reed. Parker contends that the jurors needed to read the
report-which Reed relied on in deciding to terminate
her-because it showed that ADC treated her differently than
other employees with respect to the February 15 incident. But
the internal investigation report does little more than
suggest that ADC fired Douglas (a white man), Parker (an
African-American woman), and Swopes (an African-American
woman) because they failed to follow the PREA checklist and
were not ...