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Fair v. Arkansas Public Employees Retirement System

November 6, 2006

GENEVIEVE FAIR PLAINTIFF
v.
ARKANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

Pending before the Court are defendant's Motions for Summary Judgment and plaintiff's responses. For the reasons stated below, the motions are granted.

Plaintiff, an African American, filed Case No. LR-C-87-675 against the Arkansas Public Employees Retirement System ("APERS") and other state agencies on October 2, 1987 which resulted in a settlement of all claims ("Fair I").

Plaintiff filed a second lawsuit, Case No. LR C-99-00042, against APERS and others on January 15, 1999 in which she alleged race discrimination and retaliation for filing Fair I based upon her not being promoted to the position of investment specialist or investment supervisor ("Fair II"). On June 2, 2003 following a five-day jury trial, the jury returned a verdict in favor of APERS.*fn1

On April 7, 2004 plaintiff filed Case No. 4:04CV00359 ("Fair III") contending that (1) she had been assigned the duties of a grade 19 Retirement Specialist while she remained in a grade 18 Accountant position; (2) she was given lesser duties than associated with her position title; (3) defendant had paid her insufficient wages; (4) defendant had breached a 1987 settlement agreement in Case No. LR-C-87-6675 ("Fair I"); and (5) failed to promote her because she filed Case No. LR-C-99-042 ("Fair II"). Plaintiff contends that defendant's alleged actions were based upon race and retaliation in violation of 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Equal Pay Act.

On October 15, 2006, the Court dismissed (1) plaintiff's breach of settlement agreement and retaliation for filing Fair I claims based upon res judicata and (2) plaintiff's Equal Pay Act claim because plaintiff had failed to allege any pay disparity based upon her gender. After assuming all the facts set forth in the complaint in Fair III to be true, the Court declined to dismiss plaintiff's allegation that defendant retaliated against her for filing Fair II.

Plaintiff brought Case No. 4:06CV00248 ("Fair IV") on February 17, 2006, reiterating the same claims raised in Fair III and contending that defendant denied her opportunity to interview for the position of Accountant grade 19 in retaliation for her filing Fair III.*fn2

Defendant contends that plaintiff has failed to offer sufficient evidence to support her Title VII race and retaliation discrimination claims, and that she is barred from advancing her race discrimination and retaliation claims based upon work assignments, office location, the erroneous attribution of an audit log error to her, and inadequate training because she failed to filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on these claims.

Plaintiff concedes that (1) the defendant as an agency of the State of Arkansas is immune from suit for actions brought pursuant to 42 U.S.C. § 1981; (2) she has failed to state a claim under the Equal Pay Act and that her Equal Pay Act is barred by res judicata because it has already been ruled upon by the Court in Fairs III; and (3) that the claim in Fairs IV that defendant violated the 1987 settlement agreement is barred by res judicata and, if interpreted as a supplemental state claim for a breach of contract, defendant has Eleventh Amendment immunity from suit. These claims are dismissed.

The claims remaining before the Court are plaintiff's Title VII claims based upon her race and retaliation for her bringing the complaints in Fair II and III.

I. Facts

Defendant is responsible for the administration and management of over 5.5 billion dollars of retirement funds for the Arkansas Public Employees Retirement System, the Arkansas State Police Retirement System, the Arkansas Judicial Retirement System, and the Arkansas District Judge Retirement System.

Plaintiff was hired by defendant in November of 1984 as a Bookkeeper III Accounting Assistant, grade 11. The State Office of Personnel Management subsequently renamed this position statewide as Tech. I, and upgraded it to a grade 12.

In 1989, as a result of a settlement in Fair I, plaintiff was promoted to grade 17 Accountant position with defendant's Reporting Unit. This position was subsequently upgraded statewide by the State's Office of Personnel Management ("OPM") to a grade 18 Accountant I.

In 2001, APERS transferred plaintiff's grade 18 Accountant I position from the Reporting Unit to its Benefit Accounting Unit. Shortly after this transfer, plaintiff took approximately six ...


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