The opinion of the court was delivered by: J. Leon Holmes United States District Judge
This is an employment discrimination case. Plaintiff Bobby Joe Hicks brought claims for retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; disability discrimination pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; violation of his First Amendment right to petition for redress of grievances pursuant to 42 U.S.C. § 1983; and violation of his right to petition the government under the Arkansas Constitution pursuant to the Arkansas Civil Rights Act ("ACRA"), title 16, section 16-23-108 of the Arkansas Code. Hicks brings his Title VII and ADA claims against the Arkansas Department of Health and Human Services ("DHHS") and John Selig, Roy Kindle, Rosemary White, and Treda Rice Vance, all of whom are DHHS employees, in their official capacities. Hicks brings his § 1983 and ACRA claims against Kurt Knickrehm, Roy Kindle, Rosemary White, and Lekita Lee, all of whom are current or former DHHS employees, in their individual capacities.*fn1 The defendants have moved for summary judgment. For the reasons stated below, this motion is granted in part and denied in part.
A court should grant summary judgment 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." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1985) (quoting FED. R. CIV. P. 56(e)). The non-moving party sustains this burden by showing that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir. 2001) (citing Rabuska v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996) (citing Anderson, 477 U.S. at 248).
The Eighth Circuit has said that summary judgment should seldom be granted in discrimination cases where inferences are often the basis of the claim. Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999)); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). But see Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 762 (8th Cir. 2004) (Arnold, J. dissenting).
A. Hicks's Previous Litigation with DHHS
Hicks began working for DHHS in 1979 as a Family Service Specialist for the Division of Children and Family Services ("DCFS"). He was terminated from this position in 1982 and filed a lawsuit against DHHS in federal court. The court found that Hicks's termination was the result of unlawful discrimination, and Hicks was subsequently reinstated.*fn2
In 1986, Hicks was promoted to Columbia County Supervisor, a position involving significant contact with DHHS clients, including abused children. Hicks was terminated from this position in 1989. He thus filed a second lawsuit in 1991 alleging that he was terminated in retaliation for the 1982 lawsuit. This second lawsuit was resolved through a Consent Decree under which Hicks was reinstated. The Consent Decree prohibited "retaliation against Hicks for his prior legal activity" and stated that Hicks would be treated "fairly and equally with respect to the terms, conditions, and privileges of his employment, including compensation, annual evaluations, promotions and transfers." Hicks v. Ark. Dep't of Human Servs./Div. of Children and Family Servs., No. LR-C-91-135, slip op. at 4 (E.D. Ark. Feb. 5, 1992).
In June 1995, Hicks was arrested for solicitation of a prostitute. After his arrest, Hicks received a memorandum from his Area Manager, Ester Burton, informing him that he should not have direct contact with any DHHS clients and that an investigation regarding his violation of DHHS conduct standards would ensue. Hicks then filed a grievance with DHHS, alleging that Burton issued the "no client contact" order in retaliation for Hicks's previous lawsuits and in violation of the Consent Decree. The record does not contain a response to this grievance. Hicks was convicted of patronizing a prostitute about a month later, and his conviction was subsequently upheld on appeal.
In August 1996, Rosemary White, who was then Acting Area Manager, sent Hicks a letter informing him that, because of his conviction, he was found to be in violation of DHHS employee conduct standards. Because of this violation, he was transferred to the position of Area Training Coordinator, a job that did not involve direct client service, effective September 9, 1996. Hicks admits that he was placed in a position without client contact because of the nature of his criminal conviction and DHHS's duties to its clients, some of whom are sexually abused children.
In the August 1996 letter, White also informed Hicks that he was being suspended without pay for five days as disciplinary action for an instance of misconduct that had occurred over a year before. In that instance, Hicks told Burton at a staff meeting that she had given him a "bullshit assignment" and that he would take her to federal court and "eat her like a hog eats slop."
Hicks appealed his job reassignment to the State Employee Grievance Appeal Panel, which upheld his reassignment. That decision was upheld by Tom Dalton, who was then the Director of DHHS, in February 1997.
Over two years later, in December 1999, Hicks filed a petition for contempt alleging that DHHS had violated the Consent Decree. Hicks maintained that DHHS's actions in prohibiting him from client contact and reassigning him to the Area Training Coordinator position were taken in retaliation for his previous lawsuits. The court held, however, that Hicks had not established a causal connection between his prior lawsuits and his reassignment and that DHHS had proffered a legitimate, nondiscriminatory reason for Hicks's reassignment. Hicks v. Ark. Dep't of Human Servs., No. 4:91CV00135, slip op. at 7-9 (E.D. Ark. Feb. 27, 2001). The court concluded that DHHS's actions were not motivated or affected by Hicks's prior lawsuits and therefore denied his petition for contempt. Id.
B. Hicks's 2004 Termination
Hicks continued his employment as Area Training Coordinator until 2004. Hicks testified in his deposition that his job duties in this position were "to schedule meetings five or six days a year, notify people to come to the meeting, and make copies for them." The rest of the time, he "just sat there and looked at the wall" or "[r]ead books." He testified, however, that he was never disciplined for poor work performance in this position and never received any unfavorable evaluations from his supervisors. Lekita Lee, who was Hicks's immediate supervisor, contemplated giving Hicks a new project that involved foster-care planning because he needed more work. This project was not fully developed, however, and no start date for the project had been established.
In November 2004, DCFS experienced a staffing shortage and the Director of DCFS, Roy Kindle, requested that all Area Managers conduct an employee audit to identify all staff by position and responsibilities. Kindle testified in his deposition that he did not know that Lee was considering assigning Hicks to a foster-care project and that he selected Hicks for DHHS's Targeted Case Management Project in the Little Rock Central Office based on the information that he gathered from Lee during the employee audit. Kindle also took into consideration the fact that Hicks lived in Little Rock and that a transfer to the Little Rock Central Office would shorten Hicks's daily commute to work. Kindle and White both testified that the Targeted Case Management Project was important to DHHS because it affected funding for the department.
Hicks denies that Kindle and White considered the project valuable. He testified in his affidavit that the job would have involved no judgment calls or exercise of discretion, as he was told that he "would be doing data entry into the computer," which "was merely a clerical duty." Kindle admitted that an employee would need only a high school diploma to perform the job. Hicks also denies that Kindle selected him for this assignment, asserting that it was White's choice. Kindle testified that he selected Hicks for the assignment; White testified that Hicks's selection occurred in a meeting between Kindle, Cecile Blucker, who was in charge of the project, and herself, but that she did not recall whether she or Kindle suggested Hicks for the position.
On November 16, 2004, Lee informed Hicks of his new assignment with the Targeted Case Management Project. Hicks contacted Blucker regarding the assignment and was informed that he would be assisting DHHS and would receive valuable training and job skills. He was instructed to report to Blucker for work on Monday, November 22, 2004.
Hicks did not report to work for his new assignment that day. Instead, Hicks wrote a letter addressed to the Director of DHHS. In this letter, Hicks stated:
I do not want this position.
There is no logic in assigning me to this position other than retaliation. . . .
I am presently recovering from open heart surgery and I have not slept two days straight since I was informed of this change. I believe sitting there feeding data into a computer eight hour a day would kill me. I already suffer from postsurgery*fn3 depression and I am not strong enough to take this.
In case you are going to let them do this, I want your personal guarantee that I will not be fired for filing for a contempt hearing in federal district court. You agreed in an out-of-court settlement that I would have this right. The consent decree guarantees that I have the right to expect equal treatment in the terms of my employment.
Mr. Director, have I not paid enough? . . .
[A] few days ago one of the defendants got a job in my line of supervision and my world is torn all apart again. For the last four years I have tried to make the best of what little you gave me. Please don't take any more. I could never survive it.
The letter reflected that it was copied to "G. Thomas Eisely, [sic] U.S. District Judge." Judge Eisele presided over Hicks's previous lawsuits against DHHS. Kurt Knickrehm, who was then the Director of DHHS, forwarded this letter to Kindle.
Hicks's statement that "one of the defendants got a job in my line of supervision" presumably refers to White, who had been a defendant in Hicks's previous contempt proceedings. White supervised Hicks from 1992 to 1994 and from 1996 to 1999. She was promoted to the position of Assistant Director of Community Services of DCFS in August 2004. In his affidavit, Hicks stated: "Defendant Rosemary White was not in my chain of command until August, 2004, shortly before I left for heart surgery. Prior to her coming back into my chain of command, I had always received exceeding standards in evaluation, no conduct violations."
That same day, November 22, 2004, Hicks saw his physician, Dr. Edwin Barron. Dr. Barron's notes from that day show Hicks's "Problem/Diagnosis" as "post op," "problems with job," "death in family," and "stress." Part of Dr. Barron's handwritten notes are illegible. Some of the legible portions state "honestly feels like he will kill," "really feels like he will kill Rosemary White," and "[p]eople have a vendetta against him." Dr. Barron referred Hicks to Dr. Thomas Stinnett, a psychiatrist.
That evening Hicks was admitted into Bridgeway Hospital, a residential psychiatric facility. Some of the notes written by Bridgeway staff state that Hicks was depressed, homicidal, and obsessed about "wanting to kill these people on his job." According to the notes, Hicks reported feeling that people at his job were "out to get him" and that he could not go around some of his co-workers because "he would probably kill them." Nevertheless, Hicks was released to the care of a family member the next day. Dr. Stinnett testified in his deposition that he did not believe that Hicks was a danger to others and that he would not have released Hicks otherwise. Hicks's discharge papers showed his final diagnosis as major depression and adjustment disorder.
Sometime that week, Hicks told Brazil that he spent the night in a psychiatric facility to avoid harming someone in the Little Rock Office. Brazil did not transmit this information to Kindle at that time. Brazil testified that she informed Lee of the conversation, but the record is unclear whether Brazil or Lee told anyone else at that time.
On December 1, 2004, Hicks contacted Brazil again to request 40 hours of sick leave. In support of this request, he faxed a certificate stating that he had been under Dr. Barron's care from November 22, 2004, until "indefinite." This document was entitled "Certificate to Return to Work/School," but it did not state that Hicks was able to return to work. None of the documents that Hicks submitted that day indicated what type of medical condition or illness was the basis for his sick-leave request. Hicks was given credit, however, for leave under the Family Medical Leave Act ("FMLA") for the week of November 22, 2004, through November 29, 2004.
On December 3, 2004, Kindle wrote to Hicks in response to Hicks's November 22, 2004, letter. Kindle informed Hicks that an administrative decision had been made to place Hicks on temporary reassignment and that Hicks was to report to Blucker's office on Monday, December 6. The letter stated that failure to report could result in disciplinary action. Hicks did not report to Blucker on December 6.
On December 9, 2004, Hicks called Brazil. During that conversation, Hicks expressed dissatisfaction with his reassignment and Kindle's response to his letter. According to Brazil, Hicks stated that he would "kill" Kindle if he initiated disciplinary action against him. Brazil reported this alleged threat to Lee, her supervisor. Lee in turn reported it to White, who then reported it to Kindle. White, Kindle, and Brazil all testified that Kindle then called Brazil to confirm that Hicks had said he would kill Kindle. White and Kindle testified that they took the alleged threat seriously.
On December 10, Brazil sent an email addressed to Kindle and copied to White and Lee that stated:
The following information is provided as you requested.
On or about November 19, 2004, Bobby Hicks came to our office to deliver some training and panel review files. Bobby stated he had been reassigned to begin working in the Little Rock DCFS office, beginning November 22, 2004, but did not know why and was unclear as to what he would be required to do.
Bobby stated he believed the sudden reassignment was a plot involving Rosemary White to further humiliate him because she had testified against him in court in the past when he was forced to file a lawsuit against DHS.*fn4
The week of November 21, 2004, Bobby contacted this office to inform that he had spent the night in a psychiatric facility. The reason was in order to avoid harming someone in the Little Rock Office. Bobby stated he contacted Cecile Blucker ...