The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
Before the Court is defendants' motion for summary judgment. Plaintiffs responded to the motion and defendants filed a reply to the response. After careful consideration of the motion, response, reply, briefs, statements of fact, and exhibits, the Court finds the motion should be granted.
The Arkansas State Hospital ("ASH") is a state-owned and operated acute psychiatric care hospital. It is operated by the Division of Behavioral Health Services ("DBHS"), which is under the Department of Health and Human Services, a department of the executive branch of the State of Arkansas. Charles Smith is the administrator of the ASH. Glenn Sago is the former administrator of the hospital, and is now an assistant director with DBHS. Larry Jordan was the chief of the Office of Public Safety at the ASH until 2004. He left the employ of the hospital in 2005.
Plaintiffs are a group of two current and two former African-American employees of the ASH. James Butler and Cleotis Johnson were terminated from the hospital in 2004 and 2005, respectively. Willie Moore and Kenneth Lowe are still employed by the hospital. Each plaintiff filed at least one Charge of Discrimination with the EEOC, and each has received his notice of dismissal and Right to Sue letter. Plaintiffs filed a complaint in federal court on May 25, 2005, and an amended complaint on October 28, 2005. They name the ASH; Glenn Sago in his official and individual capacities; Larry Jordan in his individual capacity only; and Charles Smith in his official and individual capacities.
Plaintiffs' claims are brought pursuant to some or all of the following federal and state laws: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. §§ 1981 and 1983; the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101 et seq.; and wrongful discharge. Plaintiffs seek injunctive relief as well as compensatory and punitive damages.
In their motion for summary judgment, the ASH, Sago, and Smith argue plaintiffs' claims against them in their official capacities should be dismissed based upon sovereign immunity. Defendants Smith, Sago, and Jordan assert they are not subject to suit in their individual capacities and that they are protected by qualified and statutory immunity. They further argue plaintiffs base their claims on actions that do not qualify as adverse employment actions and some of their claims are time-barred. Defendants also contend they offered lawful, legitimate and non-discriminatory reasons for the employment decisions made and plaintiffs have no evidence to establish those reasons are pretextual.
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 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 for 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 any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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 Corp., 475 U.S. 574, 587 (1986)(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. The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Further, summary judgment is particularly appropriate where an unresolved issue is primarily legal rather than factual. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
Individual employees, including supervisors, may not be held personally liable under Title VII. See Roark v. City of Hazen, 189 F.3d 758 (8th Cir. 1999) (supervisors cannot be held individually liable as an employer); Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d 1254 (8th Cir. 1994) (Title VII liability can only attach to employers); Lenhardt v. Basic Inst. of Technology, 55 F.3d 377, 381 (8th Cir.1995) (Title VII liability for unlawful discrimination in the workplace imposed only on the employing entity). Plaintiffs agree their Title VII claims against defendants Sago, Jordan, and Smith in their individual capacities should be dismissed.
The Eighth Circuit holds that a § 1981 race discrimination claim may not be brought directly against a state actor but must be brought under § 1983. Artis v. Francis Howell North Band Booster Ass'n, 161 F.3d 1178, 1181 (8th Cir.1998). Therefore, plaintiffs' § 1981 claims for discrimination will be construed as claims for violations of the equal protection clause and § 1981 brought under § 1983. Lockridge v. Bd. of Tr. of the Univ. of Ark., 315 F.3d 1005, 1007 (8th Cir. 2003).
A § 1983 damages claim against a state officer in his official capacity is the same as a suit against the state itself. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment bars such suits against a state unless the state has waived that immunity or Congress has abrogated it under § 5 of the Fourteenth Amendment. Id. at 66. The State of Arkansas has not waived its immunity, and Congress has not abrogated Arkansas' Eleventh Amendment immunity under 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Plaintiffs agree that their § 1983 claims for monetary damages against the ASH, and Smith and Sago in their official capacities, should be dismissed.
Plaintiffs claim defendants violated Title VII by discriminating against them on the basis of race and/or sex and retaliating against them for engaging in protected activity. They also bring claims of discrimination and retaliation in violation of the 14th Amendment and § 1981, and allege violations of the Arkansas Civil Rights Act ("ACRA"). In addition, Johnson claims defendants violated his right to free speech under the First Amendment and wrongfully discharged him.
The McDonnell Douglas burden-shifting framework governs all of plaintiffs' discrimination claims. Lockridge, supra, 315 F.3d at 1013; Chambers v. Wynne Sch. Dist., 909 F.2d 1214 (8th Cir. 1990)(McDonnell Douglas test has been used to evaluate a plaintiff's prima facie showing of discrimination for both § 1981 and § 1983 claims); Davis v. KARK-TV, Inc., 421 F.3d 699 (8th Cir. 2005) (Title VII disparate treatment claims, § 1981 claims, and ACRA claims analyzed in the same manner).
Under McDonnell Douglas, the plaintiffs must first establish a prima facie case of discrimination. The burden of production then shifts to defendants to present a legitimate reason for the allegedly discriminatory action. McDonnell Douglas, 411 U.S. at 802. If defendants do so, the burden shifts back to plaintiffs to establish that the asserted legitimate reasons were merely a pretext for a discriminatory action. Id. at 804.
To establish a prima facie case of discrimination, a plaintiff must show (1) he is a member of a protected class, (2) he was qualified for his position, and (3) he suffered an adverse employment action under circumstances permitting an inference that the action was the result of unlawful discrimination. Johnson v. Ready Mix Concrete Co., 424 F.3d 806 (8th Cir. 2005). The elements of a retaliation claim under § 1981 and Title VII are (1) protected activity, (2) subsequent adverse ...