The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Defendant's Motion to Dismiss*fn1 No response was filed.
This is a wrongful termination action brought under the Age Discrimination in Employment Act*fn2 ("ADEA") and Title VII of the Civil Rights Act of 1964.*fn3 Defendant, University of Arkansas for Medical Services ("UAMS"), argues that it is not a legal entity and cannot be sued, and that any action brought against the state under the ADEA is barred by the Eleventh Amendment.
Plaintiff fileda pro se Complaint,*fn4 alleging that she was fired on February 2, 2006 because of age and gender. The EEOC's "Notice of Right to Sue"*fn5 was issued on July 19, 2006, and Plaintiff filed this lawsuit timely.
Plaintiff's Motion to Appoint Counsel*fn6 was granted,*fn7 but the appointed lawyer withdrew. After this, five lawyers were appointed and also withdrew.*fn8 On June 6, 2007, a sixth lawyer was appointed. This lawyer did not withdraw, but, he did not attempt to amend the complaint, and did not file a response to Defendant's motion, despite being ordered to do so.*fn9
Defendant correctly points out that Plaintiff sued the wrong party. The named Defendant, UAMS, is not a legal entity but an extension of the University of Arkansas,*fn10 which is a state agency controlled by a private corporation -- the Board of Trustees of the University of Arkansas.*fn11 This District,*fn12 and the Arkansas Supreme Court*fn13 have held that UAMS cannot being sued. Plaintiff should have sued the University of Arkansas or the Board of Trustees, or both.
Because Plaintiff's complaint is fatally flawed, an appropriate action would be to dismiss it without prejudice. However, the Eighth Circuit Court of Appeals has held that, under Title VII, a dismissal without prejudice operates to leave Plaintiff as if no action had been filed.*fn14
If this occurred, Plaintiff's claim would be barred by the 90-day statute of limitations applicable to Title VII and ADEA actions. Therefore, any dismissal of this case would be a dismissal with prejudice.
"Dismissal with prejudice is a harsh sanction which should be imposed only after balancing the policy of giving the plaintiff her day in court against policies of preventing undue delay, avoiding court congestion, and preserving respect for court procedures."*fn15 Generally, conduct that justifies this sanction is intentional delay or other egregious conduct.*fn16 Although Plaintiff's appointed counsel failed to act appropriately, she did nothing intentionally wrong.
In view of this, Plaintiff's appointed counsel is removed for failing to comply with my orders. In his place, Denise Hoggard,*fn17 is appointed as Plaintiff's counsel.
Because Ms. Hoggard will be starting from square one, she has 90-days*fn18 to file an Amended Complaint, which is due no later than ...