The opinion of the court was delivered by: Garnett Thomas Eisele United States District Court
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Before the Court is Defendant's Motion for Summary Judgment and Plaintiff's response thereto. For the reasons stated below, the Court finds that Defendant is entitled to judgment as a matter of law as to Plaintiff's Title VII claims and state law claims. The Court reserves ruling, however, on Plaintiff's First Amendment claims, solely to permit Plaintiff to show cause why such claim should not also be dismissed.
FACTS WITHOUT MATERIAL CONTROVERSY
The Defendant Correctional Medical Services ("CMS") provides healthcare services and medical staffing to jails and prisons throughout the United States. Pursuant to a contract with the Arkansas Department of Corrections, CMS provides its services to many of the jails and prisons in Arkansas.
Plaintiff Jeffrey Mickens is an African-American male. Plaintiff claims that he submitted an application to the Pine Bluff Diagnostic Unit in June 2003, applying for a position as a Licensed Practical Nurse (LPN) or Health Services Administrator with CMS. CMS has no record of receiving an application from Mickens in June of 2003, but at some point in June of 2003, Mickens was informed that CMS had no available Health Services Administrator positions.
On August 20, 2003, Plaintiff submitted another application for employment with CMS, indicating his interest in an LPN position.*fn1 On that application, Plaintiff represented that he had never been convicted of a crime. In fact, Plaintiff had four prior convictions, including: (1) a 1981 conviction for terroristic threatening, arising from planting a fake bomb at McDonald's, Plaintiff's former employer; (2) a December 1989 conviction for violating the Controlled Substance Act for possession of crack cocaine; (3) a 1989 conviction for theft by receiving; and (4) a 1992 conviction for aggravated assault. In 2000, Arkansas Governor Mike Huckabee granted Plaintiff a pardon for his prior convictions.
After interviewing Plaintiff for the LPN position, CMS hired Plaintiff to work as an LPN on a PRN or "as needed" basis. Employees who are hired by CMS to work PRN are assigned to a home unit, but may work at other units if there is a need for assistance in those units. Plaintiff begin working with CMS on August 28, 2003. At that time, Plaintiff signed a "PRN Working Agreement." The Agreement states in pertinent part:
2. CMS agrees to employ in the above capacity as the need arises for temporary services. My employment status with CMS is defined as Irregular/Temporary. I understand that I am not eligible for benefits with the exception of retirement benefits.
3. Nothing in this agreement shall be construed as a guarantee or promise of any minimum hours to be worked by the employee or offered by CMS.
8. Given the unique nature of my employment relationship with CMS, I understand and agree that the utilization or discontinuance of my services will be at the sole discretion of the CMS manager, and not subject to the CMS Corrective Action policy.
(CMS 85, attached as part of Exhibit 2 (Mickens' Deposition) to CMS' motion)(emphasis added). Plaintiff signed this one-page document and dated it August 28, 2003.
Plaintiff also signed an acknowledgment that he had received a copy of CMS's employee handbook - the CMS Employee Success Guide - upon beginning work, but he now claims that he never received a copy of this handbook. (CMS 77, Exhibit 2 to CMS' motion).
Pursuant to CMS policy as set forth in the employee handbook, all CMS employees are required to serve a three-month probationary period and are not eligible for promotion or transfer until this probationary period is completed.
Plaintiff was a probationary employee from August 28, 2003, his date of hire, until November 5, 2003, after which CMS no longer used the Plaintiff's services. Plaintiff claims that he was not formally terminated and was told in November of 2003 only that he would not be scheduled for work.
The decision not to use Plaintiff's LPN services on a PRN basis was made by CMS Regional Manager George Wilson. Mr. Wilson made this decision after learning of Plaintiff's criminal history following a routine background check.*fn2
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there is no genuine issue of material fact and the dispute may be decided solely on legal grounds. Fed. R. Civ. P. 56. The Eighth Circuit Court of Appeals has cautioned that summary judgment should be invoked carefully so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied, 444 U.S. 991 (1979). The initial inquiry is whether there are genuine factual issues that can be properly resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The burden is on the moving party to show that the record does not disclose a genuine dispute on a material fact. Counts v. MK-Ferguson Co., 862 F.2d 1338 (8th Cir. 1988). To survive a motion for summary judgment, the nonmoving party must "substantiate his ...