The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are three Motions for Summary Judgment, one filed by each Defendant in this case. Also pending is a Motion for Relief to Certify a question to the Arkansas Supreme Court filed by Plaintiff William E. Jones ("Jones").
For the reasons stated below, the Court concludes that Defendants Randy Wilson ("Wilson") and Bob Satkowski ("Satkowski") are entitled to judgment as a matter of law on all of Plaintiff's claims against them. Defendant Jim Reeder is entitled to judgment as a matter of law on all of Plaintiff's federal claims against him except for the First Amendment retaliatory discharge claim. The Court retains that claim for trial. Plaintiff may also pursue at trial the Plaintiff's claim that his termination violated the Arkansas Civil Rights Act ("ACRA").*fn1 The Court declines to exercise jurisdiction over Plaintiff's claim that Reeder violated the ACRA when he distributed the NCIC Report.*fn2
SUMMARY JUDGMENT STANDARD
Summary judgment should be entered if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A genuine issue of material fact exists only if there is sufficient evidence from which a jury can return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.
FACTS WITHOUT MATERIAL CONTROVERSY
Plaintiff has sued the following Defendants:
(1) Jim Reeder, as the Sheriff of Perry County, Arkansas;
(2) Randy Wilson, Chief of Police for the City of Perryville, Arkansas;
(3) Bob Satkowski, Deputy Director for the Arkansas Law Enforcement Training Academy.
All Defendants are sued in both their individual and official capacities.
Plaintiff Jones served for a period of five years as the former chief deputy for the Perry County Sheriff's Department ("PCSD"). It appears that at all times relevant to this case, Plaintiff served under Sheriff Ray Byrd. In 2003, Sheriff Byrd decided to retire and not to run for re-election in 2004.
Plaintiff Jones, Separate Defendant Jim Reeder ("Reeder") and Joey Cannnon were all candidates in the 2004 democratic primary for Sheriff of Perry County, Arkansas. Reeder won the primary and faced no republican opponent in the November general election. Byrd ran against Reeder as a write-in candidate, but Reeder won the general election. Consequently, Reeder was the sheriff-elect from November 2004 through the end of 2004.
Plaintiff claims that following the election, he ran into Reeder at a local gas station. Reeder is alleged to have told Plaintiff that he was disgusted with Plaintiff and that Plaintiff would not be allowed to retain the position as chief deputy. Later, Plaintiff agreed to allow Byrd to lay him off prior to Reeder actually assuming office. Viewing the facts in a light most favorable to Plaintiff, the Court accepts for purposes of this motion that Plaintiff believed that he would not be retained in the Chief Deputy position based on Reeder's comments at the gas station and that his job was "no longer there."*fn3
In December of 2004, following his "resignation" from the chief deputy position, Plaintiff applied for a school resource officer position. In June of 2005, Plaintiff applied for a position with the UALR Police Department. He did not get either job. Plaintiff contends that an NCIC record contained in his PCSD personnel record kept him from being considered for both positions. Plaintiff contends that the NCIC record is false because it can be read to indicate that Plaintiff was been convicted and served jail time for grand larceny, a felony, when in fact, he was only arrested for the crime.
Although the record supports Plaintiff's contention that he was not interviewed for the school resource officer position because of the NCIC record, it does not support the contention that he was not interviewed for the position with the UALR Police Department because of the NCIC record.
What the parties refer to generically as the "NCIC record" throughout the summary judgment submissions is actually an FBI Identification Record. The record reads in pertinent part:
NAME FBI NO. DATE REQUESTED JONES, WILLIAM ERVIN . . . .
FINGERPRINT CLASS PATTERN CLASS . . .
. . . 1-ARRESTED OR RECEVIED 1966/06/01
AGENCY - SHERIFF'S OFFICE CONWAY (AR0230000)
RECORD UPDATED 2001/11/01 (NCIC Report or FBI Identification Record, Exh. H to Satkowski's brief, docket 25).
It is undisputed that in 1966, when Plaintiff Jones was 17 years old, he was arrested and charged with grand larceny for stealing four tires off a car. Although Plaintiff was taken to jail following his arrest, he was never convicted.*fn4
The FBI Identification Record indicates that the information was requested on April 17, 2001, but does not indicate who requested it. The record does not indicate how or why this record came to be placed in Mr. Jones' personnel file. There is no evidence to suggest, and there has been no allegation, that any of the Defendants in this case caused the FBI Identification Record to be placed in Plaintiff's personnel file.
Plaintiff Jones learned about the NCIC record in question in 2003, while attending an instructor development course at Black River Technical College in Pocahontas. After learning about the record, Plaintiff asked then Sheriff Byrd to investigate. Byrd contacted officials in Faulkner County, the county of origin for the charges on the NCIC record -- and these officials informed Byrd they had no record of the charge. The Faulkner County officials confirmed that there was no record of Jones' conviction by letter. This letter was also placed in the Reed's personnel file.
Byrd ordered George Cossey, a criminal investigator with the Perry County Sheriff Department ("PCSD") who had discovered the record, to remove the NCIC record from Plaintiff Jones' PCSD personnel file. However, Cossey failed to follow Byrd's orders, and the FBI record remained in Jones' personnel file. Jones believed the issue had been resolved, but there is no evidence that he took any action to ensure that the FBI record had been removed from his file.
On or prior to December 10, 2004, Jones applied for the position of school resource officer*fn5 with the City of Perryville. Jones applied for this position through Separate Defendant Randy Wilson, Perryville's Chief of Police. In his application, Plaintiff signed an "Employee Statement." The Employee Statement specifically authorized Plaintiff's former employers "to release to the City of Perryville, AR or its authorized representative any and all employment records and other information it may have about my employment." Plaintiff also acknowledged that such information "would be used for the purpose of evaluating" [Plaintiff's] application for employment with the City."*fn6
In December of 2004, as part of the process of evaluating Plaintiff's application for the school resource officer position, Defendant Wilson obtained a copy of Plaintiff's PCSD personnel file. While reviewing the file, Wilson noticed the document reflecting the grand larceny charge and he interpreted it to mean that Plaintiff had served jail time.*fn7 In response, Wilson contacted Plaintiff and met with him concerning the arrest report in his personnel record, advising Plaintiff it might be problematic for his application. During the meeting, Plaintiff admitted to Wilson that he had "stole some tires" and that was why he was arrested for Grand Larceny. Wilson gave Plaintiff the opportunity to withdraw his employment application. Plaintiff declined because he believed that the matter had been cleared up. Plaintiff then advised Wilson of his belief that Sheriff Byrd had cleared the matter with "Standards."
Chief Wilson then contacted "Standards" seeking information on whether the FBI Identification Record disqualified Plaintiff from the position. "Standards" refers to the Arkansas Office of Law Enforcement Standards ("AOLES"). AOELS (or Standards) is the Arkansas agency tasked with training and maintaining standards on individuals employed in, or seeking employment in, law enforcement in the State of Arkansas. Defendant Bob Satkowski is sued in his official capacity as an employee of AOLES.*fn8
Wilson claims he contacted Standards to determine whether Plaintiff was qualified to serve as a law enforcement officer. Plaintiff claims Wilson's real purpose was "to destroy Plaintiff's ability to work as a law enforcement officer." Plaintiff supports his claim of bad motive solely with the fact that Wilson did not advise Standards of a letter in his file from Faulkner County dated August 23, 2001, which advised that it had not been able to locate any criminal history on the Plaintiff. The letter, addressed to then Sheriff Ray Byrd in apparent response to Byrd's inquiry, states in pertinent part:
After a complete and exhaustive search of all records available to Faulkner County, our department is unable to locate any convictions or criminal history on the above referenced individual. (Ex. B to Pl.'s stmt of facts, docket 42).
In response to Wilson's telephone inquiry about the record, Standards employee Brian Marshall directed Wilson to fax the FBI Record to Standards.*fn9 Mr. Wilson complied and the FBI Identification Record then became part of Plaintiff's file maintained by Standards. Standards has not removed the FBI Record from its file. Although Plaintiff has made no formal request to have the FBI Identification Record removed from his file at Standards, Plaintiff contends that the inclusion of this record in his officer file violates his constitutional rights.
Plaintiff testified that the FBI Identification record was deleted in January of 2005, when Elizabeth Wise, a lawyer in Perry County, contacted the appropriate authorities on his behalf. The FBI Identification Record in question was then deleted and any new requests for NCIC information on Plaintiff would not have turned up the FBI Identification Record. ...