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Veazey v. Arkansas Dep't of Correction

September 28, 2006

GEORGE VEAZEY PLAINTIFF
v.
ARKANSAS DEPARTMENT OF CORRECTION; LARRY NORRIS, GRANT HARRIS AND LARRY HICKS, INDIVIDUALLY AND AS SUPERVISING OFFICERS OF THE ARKANSAS DEPARTMENT OF CORRECTION DEFENDANTS



The opinion of the court was delivered by: J. Leon Holmes United States District Judge

OPINION AND ORDER

George Veazey brought claims for wrongful discharge, breach of contract, and violation of his rights under the Fourteenth Amendment to the United States Constitution, 42 U.S.C. §§ 1981 and 1983, and the Arkansas Civil Rights Act*fn1 after his employment with the Arkansas Department of Correction ("ADC") was terminated. The defendants have moved for summary judgment. For the reasons explained below, this motion is granted.

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).

I.

A. Veazey's Alcohol-Related Disciplinary Actions

Veazey, a white male, began working for the ADC as a correctional officer in 1983. On May 22, 1998, Veazey tested positive for alcohol while on duty at Jefferson County Jail and Correctional Facility, which is operated by the ADC. Veazey was charged with violating the ADC's policy against reporting for work under the influence of alcohol and consequently suspended without pay for 30 days, placed on probation for 18 months, and referred to the Employee Assistance Program.

At a security meeting on July 14, 2000, Major Tommy Hurst of the ADC advised a group of employees that they should not have alcoholic beverages in ice chests inside or outside of their vehicles while on state property and that there would be "zero tolerance" for employees found in possession of alcohol on state property. Veazey was present at this meeting. Veazey's immediate supervisor, Captain Larry Hicks, testified in his deposition that the warden of the Jefferson County Jail, Grant Harris, consistently applied this policy to all employees from that time forward and that some ADC employees were terminated for violating it.

At the end of Veazey's shift on August 9, 2000, Veazey approached an ADC lieutenant in the parking lot of the Jefferson County Jail and asked him if he wanted a beer. The defendants assert that Veazey also drank a beer in the parking lot that afternoon while still in uniform. Veazey now denies drinking a beer while still in the parking lot. In his deposition, Veazey testified, "I can't remember when I specifically opened it. I don't think I did it in the parking lot, though." Veazey admits, however, that he offered a beer to the lieutenant. He testified in his deposition that he had gotten the beer out of his ice chest, that he possessed the beer on state property, and that he was aware at the time that this was against ADC policy.

Veazey was disciplined for bringing contraband onto state property in violation of ADC policy. Veazey was originally given a 30-day suspension and a 12-month probation period, but he appealed this decision to ADC Director Larry Norris, who modified the discipline to a written reprimand and a 6-month probation period.

One year later, in August 2001, Veazey was again found to have violated ADC policy, which provides that "employees shall not consume intoxicating beverages while on duty" or "appear for duty or be on duty while under the influence of intoxicants." For this violation, Veazey was suspended for 30 days, placed on probation for 12 months, and referred to the Employee Assistance Program. In a memorandum from Harris to Veazey, Harris informed Veazey of this disciplinary action. Harris further wrote, "Understand also Sergeant Veazey that I am giving you a direct order never to possess alcoholic beverages while on state property in your vehicle, on you[r] person, or consume alcoholic beverages while on state property. Failure to abide by this order will result in your immediate termination."

On December 11, 2003, the ADC conducted a search of all vehicles coming to the Jefferson County Jail, including employee vehicles. The purpose of this search was to prevent any contraband, including alcohol, from entering ADC property. ADC personnel searched Veazey's truck that day and found two beers iced down in an ice chest and a half-gallon of whiskey in the cab. The parties disagree, however, as to whether Veazey's truck had entered ADC property at the time. The defendants contend that Veazey was on state property, while Veazey maintains that the search occurred on the street leading to the parking lot. Thus, Veazey contends, he did not actually bring the alcohol onto ADC property that day. Veazey testified in his deposition, however, that he was on his way to work and that he would have continued onto state property with the alcohol in his possession had he not been stopped for the "shakedown."

B. Veazey's Termination

Hicks recommended that an Employee Review Committee ("ERC") be held on Veazey for this incident. In the memorandum recommending this proceeding, Hicks stated that Veazey was in violation of Administrative Directive ("AD") 00-10 Section 1(e) Possession of Contraband and Section 10(b) Possession, use, sale or distribution of alcoholic beverages while on duty. Veazey was informed of the time and date of the ERC and of the two policies that Hicks had charged him with violating.

On December 23, 2003, the chairman of the ERC sent a memorandum to Veazey regarding the ERC's meeting. This memo stated that Veazey told the committee that he had forgotten that he had alcohol in his vehicle. The memo also referred to Veazey's previous alcohol-related disciplinary actions and Harris's August 20, 2001, letter ordering Veazey to "never possess alcoholic beverages while on state property" in his vehicle or on his person. The ERC found Veazey guilty of violation of AD 00-10 Section 1(e) Possession of Contraband, but not guilty of violation of Section 10(b) Possession, use, sale or distribution of alcoholic beverages while on duty. The committee included an additional violation, however, Section 17(b) Deliberate refusal to carry out reasonable work requests and/or instructions. Harris terminated Veazey's employment on January 8, 2004.

Veazey grieved Harris's termination decision to Norris according to ADC policy on January 14. Norris elected to use an Internal Review Committee ("IRC") to hear the grievance. The IRC conducted a hearing on Veazey's grievance and upheld his termination. Norris wrote Veazey on February 12 to inform Veazey that he had decided to uphold Harris's termination decision based upon the recommendation of the IRC and the documentation concerning Veazey's termination. Norris cited as evidence Veazey's previous alcohol-related disciplinary actions and his admission that he had alcohol in his vehicle on the day of the "shakedown" after Harris's direct order prohibiting the possession of alcohol on state property.

Veazey appealed Norris's decision and requested a hearing before the State Employee Grievance Appeal Panel. The panel heard Veazey's grievance appeal on March 24. Veazey was present on his own behalf, and Harris was present on behalf of the ADC. After hearing testimony, the panel unanimously affirmed the decision to terminate Veazey in an order issued on March 31.

Harris's January 8 termination letter, Norris's February 12 letter upholding the termination, and the panel's March 31 order all cited Veazey's violations of AD 00-10 Section 1(e) Possession of Contraband and Section 17(b) Deliberate refusal to carry out reasonable work requests and/or instructions. None referred to AD 00-10 ...


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