By order filed last March 28th, the Court denied defendants' motion to strike Dorothy Bollen's affidavit, permitted defendants to take Bollen's deposition, and granted them 20 days after the completion of that deposition to supplement their reply and response to plaintiff's Local Rule 56.1 statement. Nothing has been filed since that order. Thus, the Court now rules on defendants' motion for summary judgment.
Plaintiff, who brings suit pursuant to Title VII, and 42 U.S.C. §§1981 and 1983, alleges that Sherry Anderson, who was hired in 2001 as Director of the Division of Volunteerism ("DOV") where plaintiff worked as a Volunteer Program Developer, soon thereafter began to subject plaintiff and other black employees to discriminatory conduct; the black employees made complaints to their immediate supervisor, Selena Ellis, then Deputy Director R. T. Williams and to Anderson; and their complaints resulted in Anderson firing two employees and retaliation against plaintiff. She continues that Anderson loaned plaintiff to the Transitional Employment Board ("TEA") on April 3, 2003 without discussion, agreement and across departmental lines which she believes to be in violation of policy; that plaintiff was informed on July 29, 2003, that a complaint had been made against her by a faith-based entity and she was sent home for 30 days pending a review; on August 29, 2003, she was informed that she would receive a ten day suspension without pay and six disciplinary points; however, she was successful in grieving the disciplinary action and having it reversed with all negative information removed from her personnel file; these actions were discriminatory and retaliatory as Anderson failed to outline the exact complaints lodged against her and failed to appear at the August 27, 2003 meeting of the parties, has afforded Caucasians the full scope of the formal hearing process, and Anderson and Ellis could have done a better job of investigating the allegations to have ended it at the investigatory stage. Plaintiff also asserts that she was loaned while she was suspended to the Office of Appeals and Hearings ("OAH") as an Administrative Law Judge for which she is not legally trained nor has the experience so it is an attempt to set her up for failure thereby causing her termination and that the loaning of her to TEA and OAH prior to her performance evaluation caused her to be ineligible to receive her CLIP bonus.
Defendants have moved for summary judgment supported by brief, exhibits, and a separate statement of undisputed facts. They state that plaintiff raises one claim of disparate treatment based upon race -- the discipline imposed in August of 2003 -- and that she cannot present a prima facie case of race discrimination as she cannot show that similarly situated employees outside her protected class were treated differently, that she did not raise any other claims to the EEOC including any claims of retaliation, that she cannot rebut the DOV's legitimate non-discriminatory reason for disciplining her from the complaints and investigation stemming from her work at Promise Land Church ("PLC"), that the individual defendants are not employers for purposes of Title VII, and that governmental agencies are exempt from judgments for punitive damages. Defendants continue that plaintiff's §1983 claims against DHS and the individual defendants in their official capacities are barred by the Eleventh Amendment as she does not seek prospective injunctive relief in her complaint and the claims brought against them in their individual capacities should be analyzed using the Title VII standards and denied.
They contend that plaintiff's §1983 race claim involving her August 2003 discipline fails as she cannot present evidence of a similarly situated white person receiving dissimilar treatment under similar circumstances and that she cannot rebut the legitimate, non-discriminatory reason for imposing discipline upon her. Regarding the TEA loan and her §1983 claim of denial of equal protection, defendants argue that plaintiff cannot show that she suffered an adverse job employment action as she received the same pay and benefits at DOV, she admitted that two supervisors could swap or move an employee across departmental or agency lines as she confirmed her previous loan in the early 1990s for a project that lasted nearly a year, a white employee was treated exactly as plaintiff was when Linda Hollaway was loaned from TEA to DOV by her supervisor, and plaintiff cannot rebut the reason that plaintiff was loaned was because Sandra Winston needed an employee with strong networking skills. Turning to the OAH loan, defendants state that the same analysis applies that plaintiff cannot show an adverse job action or dissimilar treatment to establish a prima facie case and cannot rebut that plaintiff was loaned to OAH because Toni White needed a hearing officer for child maltreatment cases and plaintiff had worked in that arena in the past.
Defendants next address the claim that plaintiff did not receive a CLIP bonus in April of 2004. They state that plaintiff did not receive a yearly CLIP bonus in 2001, 2002 or 2003 even though a different supervisor reviewed her for each time period; that she was loaned to OAH in September of 2003 and David Mackey at OAH completed her performance review where plaintiff marked the box indicating that she had reviewed its contents with her supervisor and agreed with it; that she did not suffer an adverse employment action because of her satisfactory "3" rating; that she cannot present evidence of a similarly situated white person receiving dissimilar treatment under similar circumstances; and that plaintiff cannot rebut that her performance was not high enough to warrant the bonus just as her performance had not been high enough for the bonus in 2002 or 2003.
Regarding plaintiff's §1983 retaliation claim, defendants rely on plaintiff's deposition testimony that she did not think her loan to OAH was retaliation but just continued racism; that plaintiff was loaned on September 2, 2003 before she informed anyone at DOV on September 7th that she planned to grieve her discipline so there is no causal connection and no adverse action and plaintiff cannot rebut that White needed an employee to work as a child maltreatment hearing officer.
Briefly, defendants argue that the grievance procedure did not create a protected property interest and plaintiff admits that the grievance officer did everything correctly; that they are entitled to qualified immunity as there is no evidence that any of the individual defendants discriminated against plaintiff; and that §1983 is the exclusive remedy for §1981 violations.
Supported by brief, exhibits, and controverting statement and supplemental statement, plaintiff has responded that this case is really about a racially motivated management style. She states that there is a practice within DHS and other state and federal agencies of loaning employees, but the policy and practice is not written and the criteria for these loans are purely subjective. Plaintiff asserts that not one single Caucasian person has ever been loaned to another agency in the entire history of DOV while she has been loaned out three times -- the first in the early 1900's by a supervisor who was not using the procedure to cloak racial animus where she was consulted and took part in planning for the specific position, the second time was being sent with one working day of warning to TEA where she was given no job description nor any clear ideas of her duties and immediately transferred back to DOV as she was set up to fail when she was disciplined as a result of a complaint from a faith-based group for actions taken while she was at TEA, and the third time was to the OAH while she was grieving the discipline and placed in a position for which she had no background in apparent retaliation for seeking a hearing. She challenges the materials regarding her assignment at PLC arguing that hearsay and double hearsay are used to support that proposition which was not considered competent by DHS's own internal grievance hearing officer. Plaintiff continues that while defendants bemoan that they lacked subpoena power to get PLC officials to the hearing, they could have produced those individuals here or sought statements from them.
Plaintiff asserts that she has direct evidence of racial animus that Anderson treated African Americans with contempt and allowed her immediate subordinate to do so in granting leeway to those of the Caucasian race not being required to attend "mandatory" staff meetings, being allowed to utilize state owned property for personal use while on the job, and being allowed to work from their homes; Anderson -- within six months -- eliminated every single African American female VPD from her staff and has taken retaliatory action against a white friend and supporter of plaintiff after she confronted Anderson on several occasions regarding Anderson's racial animus toward plaintiff.
She next turns to the indirect framework for a prima facie case of racial discrimination -- that she is an African American; she had never suffered disciplinary action; she suffered an adverse action in being transferred twice, suffered a loss in pay where she was not made fully whole due to the tax consequences of the discipline, and she was denied her "CLIP" raise for two years due to lack of time in the position.
Plaintiff does not dispute that the individual employers are not liable under Title VII but do have liability under the other theories pled. She also agrees that only the discipline imposed in August 2003 is before the Court under a Title VII analysis. She continues that the evidence from the Harden deposition is that African Americans were disciplined more swiftly and reliably for violations of policy and that plaintiff herself points to one of the things leading to her transfer was her arrival late for a group where she was suppose to speak and Linda Jocelyn was late to another event and not taken to task. Plaintiff states that other employees were warned against associating with plaintiff as she was trouble. She asserts that the individual defendants have liability including punitive damages by their animus in the treatment of Bollen as a supporter of plaintiff and threatened to transfer Bollen to the TEA as an adverse action.
Turning to the §1983 claims, plaintiff states that she has asked for injunctive relief which is permitted under the 11th Amendment. She contends that defendants cannot avail themselves of qualified immunity as the law on intentional discrimination has been well established since 1964. Plaintiff also argues that the 1991 amendments overruled Jett as to whether §1981 is applicable.
Defendants filed a reply supported by deposition excerpts and supplemental affidavits. They counter that while plaintiff asserts that no Caucasian has ever been loaned to another agency, Anderson has indicated that Caucasians were loaned to other agencies; that plaintiff was loaned only twice under Anderson's tenure and the first loan did not occur until three years after that tenure began; plaintiff has submitted no proof as to what was routinely done in loaning especially as she had been loaned once ten years before Anderson's arrival and contradicts her claim that no Caucasian was loaned; plaintiff's contention that Winston would not give a job description despite plaintiff's plea is not supported by Winston, an African American female; plaintiff's loan agreement to TEA began April 7th and was extended -- as was Hollaway's -- in early June for six more months until Winston cancelled the loan in mid-July due to complaints from PLC; plaintiff did not receive a CLIP bonus in 2001 when her supervisor was Les Brunson, in 2002 when her supervisor was Selena Ellis and 2003 when her supervisor was Toni White although she received a CLIP bonus for 2004 under the supervision of White demonstrating that she was able to handle her new hearing position and received her first merit bonus in four years; there is no evidence that PLC refused to participate in the grievance hearing; the documents relied upon by defendants are not inadmissible hearsay and may be used to explain the employer's conduct to show state of mind and are part of the personnel file too; plaintiff stated in her deposition that she did not believe that her loan to OAH was based on retaliation but race; plaintiff, not defendants, should have taken the depositions of the third-party witnesses to rebut that PLC did not complain or that Ellis, Anderson and Winston lied about their investigation; and Ellis and Frank conducted the investigation and Ellis disciplined plaintiff based on that investigation.
Defendants continue that plaintiff has not submitted proof of direct evidence of racial animus and her reference to testimony of herself, Harden, Bollen, Rhodes and Thomas was without citation to any page, no quote or no explanation and plaintiff herself said those four individuals knew nothing about the case as none of them were involved. They assert that there is no proof to support that more leeway was given to Caucasians or that Anderson eliminated every single African American female VPD from her staff within six months of her arrival. Defendants note that there was no finding by the grievance officer that the discipline imposed was "improper or unfounded" as he stated that the recall of plaintiff from the assignment was "appropriate and reasonable action;" there is no proof that Harden was disciplined more swiftly than whites as Harden was disciplined by her African American supervisor Sweeney after Harden threatened an employee at her work place at the State library; plaintiff has failed to indicate that a similarly situated white employee was disciplined differently than she was as the Linda Fitts issue was not involved in plaintiff's discipline here and it is conclusory that Linda Jocelyn is similarly situated.
Defendants point out that plaintiff does not contend that punitive damages are awardable under Title VII against the state and that qualified immunity protects Anderson and Ellis for the §1983 claims. They argue that prospective injunctive relief through official capacity defendants is also unavailable as plaintiff has not alleged or presented any evidence of a specific policy or custom that led to the deprivation of her constitutional rights; plaintiff has failed to provide evidence of a similarly situated employee on any issue raised under §1983 or rebut their legitimate, non-discriminatory reasons for their actions; and she has not supplied any rejoinder to the qualified immunity analysis; the 1991 amendments to §1981 apply to non-governmental discrimination and cites no authority that §1983 is the exclusive remedy for rights guaranteed by §1981 when the claim is against a state actor.
Turning to the McDonnell Douglas analysis, defendants contend that plaintiff has failed to make out a prima facie case in failing the name another similarly situated white employee and has failed to respond -- let alone rebut -- the legitimate, non-discriminatory reason given by defendants for her discipline.
Summary judgment can properly be entered when there are no genuine material facts that can be resolved by a finder of fact; that is, there are no facts which could reasonably be resolved in favor of either party. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2512 (1986). The non-moving party may not just rest upon his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986); Civil Procedure Rule 56. In Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988), the Eighth Circuit explained:
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e., "[to] point[ ] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted. (citations omitted) (brackets in original). "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
Defendants are correct in their argument that §1981 does not provide an independent cause of action for damages against state actors. In Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1998), the appellate court said:
A federal action to enforce rights under §1981 against a state actor may only be brought pursuant to §1983. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) ( Section 1983 "provides the exclusive federal damages remedy for the violation of the ...