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Bollen v. Arkansas Dep't of Human Services

October 31, 2007


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


Pending is the Defendants' Motion for Summary Judgment. Plaintiff has responded and the Defendants have replied. Although the Court is troubled by the contemptuous tone of the Defendants' briefs, the Motion is GRANTED.

I. Facts

The Department of Volunteerism ("DOV") is one of 10 programmatic divisions within the Arkansas Department of Human Services ("DHS"). The mission of the DOV is to promote and support service and volunteering in Arkansas. Plaintiff, a 57 year old white female, was an employee of the DHS/DOV. Her role in DOV was a Program Development Assistance and Training Coordinator for the Arkansas Service Commission, which is a level 23 program administration position. Plaintiff had served in this position since 1999.

Defendant Albert Schneider serves as the Executive Director of the Arkansas Service Commission in the DHS/DOV. Mr. Schneider is a 64-year old white male. Defendant Sherry Anderson serves as the Director of the DHS/DOV. Anderson is a 50-year old white female. She is Schneider's direct supervisor.

In March 2005, Schneider scheduled a time to meet with Plaintiff to perform a job evaluation pursuant to the DHS Career Ladder Incentive Program ("CLIP"). Each CLIP rating period began on April 1st of one calendar year and ended on March 31st of the following year. Schneider set the meeting for Thursday, March 31st. All other DOV employees received their performance reviews at or near the same time, but none after April 1st. Plaintiff sent numerous e-mail messages to Schneider and Anderson protesting that the time of her evaluation was not good because of a training event due to begin days later. Plaintiff contends that her evaluation could have been scheduled at an earlier time but for the discriminatory animus of those running the department.

Plaintiff sent an e-mail to Anderson and Schneider stating that she did not feel it was in her best interest to meet with her supervisor and stated that she would consult an attorney. (Bollen Email, Ex. 5). Anderson responded to the e-mail and advised Plaintiff that her meeting would take place as scheduled and expressed disappointment that the scheduling of this meeting was causing so much trouble. (Anderson Email, Ex. 5). Plaintiff continued with additional complaints regarding her evaluation in an e-mail in which she stated that she was being harassed and treated with hostility and intimidation. (Bollen Email, Ex. 6). Anderson responded that Plaintiff should stop wasting time complaining about the meeting. She stated that the scheduling of the meeting was not a "personal issue" and she should get back to work. (Anderson Email, Ex. 6).

On March 31st, Plaintiff sent another e-mail to Anderson. Plaintiff copied Anderson's supervisor, Janie Huddleston, and Schneider on the e-mail. In this e-mail, Plaintiff stated that she did not feel comfortable meeting with Schneider and a third-party representative during her evaluation. She reiterated that she felt she was not treated fairly and asked to be transferred to another division of DHS. (Bollen Email, Ex. 7). Anderson responded stating that Plaintiff had misconstrued certain comments and reiterated that Plaintiff's evaluation would take place as scheduled with Schneider and Melissa Sweeney as a third party representative. (Anderson Email, Ex. 8). Again, Plaintiff responded to Anderson and stated that her complaints had nothing to do with her evaluation. Instead, Plaintiff stated that she had been treated unfairly and gave examples of other times she was expected to attend meetings when she had a large workload. She copied Anderson's supervisor and Schneider on this e-mail also. (Bollen Email, Ex. 8).

Plaintiff's evaluation began at 10:00 a.m. on March 31st and ended at 10:13 a.m. Plaintiff received an overall rating of 4, down approximately .65 points from the baseline and midterm rating, corresponding to an overall rating of "exceeds standards." During the meeting, Schneider informed Plaintiff that her conduct in sending numerous e-mail messages after being told not to had brought the consequence of disciplinary action. Plaintiff had been disciplined on August 24, 2004 for sending other alleged inappropriate e-mail messages outside DHS. Further, Plaintiff failed to receive a CLIP bonus for the rating period because she failed to complete a CLIP plan.

Plaintiff responded in writing to the evaluation session in which she had received a written warning. She stated that she felt that Schneider had been "vicious, cold hearted and [had the] character of someone with a self-centered personality" with respect to her pet's death. (Bollen memo, Ex. 15). At a meeting on Friday, April 1, 2005, Schneider presented Plaintiff with the disciplinary statement. It stated that Plaintiff had violated DHS policy 1085, standards 11 and 25 which related to insubordination and interruption of the flow of work.

Bollen filed a grievance over her performance review and the disciplinary action despite being told that she was ineligible to grieve any matter because DHS policy at that time did not allow persons in Grade 23 positions to grieve. Plaintiff alleges that Schneider told her she had no avenue of appeal whatsoever. Schneider denies this allegation.

On April 10, 2005, Plaintiff submitted her monthly report for March. Monthly reports are due from all DHS/DOV and Arkansas Service Commission employees to provide supervisors with important information on progress in each employee's duty areas. In her March report, Plaintiff included information on a training event that was held in April instead of March, the time covered by the report. In addition, she used the report as a vehicle to complain about the timing of her evaluation, the low ratings she had received, the discipline administered in the days before, her working conditions, the performance of other DOV employees and similar matters. (Monthly Report, Ex. 13). Schneider felt that Plaintiff had abused the monthly report form by making it a vehicle for conveying complaints rather than providing information such as number of attendees and evaluation ratings by those who received training. Therefore, Schneider issued Plaintiff another disciplinary statement.

The cause for the disciplinary action was listed as follows: "In a continuation of behavior noted in the disciplinary action statement of Apr.1, you submitted on Apr.10, 2005 a DOV monthly report that was insubordinate in tone and content, covering a training event outside the time frame in order to pursue your personal agenda, thus disrupting the work flow of managers." (Disc. Susp., Ex. 13). The disciplinary statement noted that there had been a previous warning on April 1, 2005 with a total of three discipline points.

The consequence of the April 19th disciplinary action was suspension without pay for five days. By DHS Policy, the minimum suspension for non-exempt employees was five days. The employee conduct expected in the future was described as follows: "In the future you will be expected to communicate factually and respectfully, verbally and in writing in the context of the workplace." (Disc. Susp., Ex. 13). She was also informed in writing and verbally that the consequence of another breach of DHS conduct standards would result in demotion or discharge. With this disciplinary step, Plaintiff received another six points for a total of nine during the performance period.

On or about April 21, 2005, Plaintiff submitted an affidavit in support of a former co-worker's Title VII lawsuit against the Defendants. Chrystal Gray alleged that Defendant Anderson discriminated against Gray and other African American females by terminating them or transferring them from ...

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