Memorandum Opinion and Order
Plaintiff Shirley Walker ("Walker") sues Defendants Arkansas Department of Corrections ("ADC") and Sherri Flynn ("Flynn"), Walker's immediate supervisor, for race discrimination and retaliation under Title VII of the Civil Rights Act and for violations of 42 U.S.C. §§ 1981 and 1983 (doc. #36). The Defendants have moved for summary judgment. Because, after viewing the facts in a light most favorable to the non-movant, Walker cannot bring a § 1981 or § 1983 claim against either Defendant or a Title VII claim against Defendant Flynn but has met her burden to demonstrate a prima facie case of discrimination and retaliation, the Court GRANTS IN PART and DENIES IN PART the Defendants' motion.
In December 2000, ADC hired Walker, an African-American female, as a Sex Offender Screening and Risk Assessment Program ("SOSRA") parole officer. Her job title was changed to corrections counselor with no change in duties. SOSRA is responsible for evaluating sex offenders required to register in Arkansas. Walker's job duties included gathering information on sex offenders and compiling a file of that information so SOSRA could assign a risk level to offenders. Flynn, a white female, is the SOSRA Administrator and was Walker's immediate supervisor. Flynn was Walker's supervisor for all times relevant to this case, including hiring and termination.
Early in her employment, Walker performed her work well. In August 2002, a Correctional Counseling Program Leader position opened, and Walker applied. Although the hiring panel interviewed Walker, she was not chosen. According to ADC, Flynn began noticing some deficiencies in Walker's work later in 2002, including information gathering and file composition.
On January 14, 2003, Walker filed her first Equal Employment Opportunity Commission ("EEOC") charge of race discrimination. In it, she complained of not receiving the Program Leader position in favor of a younger, white female, who was less experienced and given greater job duties. She also claimed this discrimination was a continuing action, but Walker had not made any prior EEOC claims or indicated any other activity to support continuing discrimination. On January 23, 2003, she received a right to sue letter from the EEOC.
According to Walker, she began receiving reprimands after she filed her EEOC charge. She claims white employees made mistakes similar to those she was accused of but received "second chances." Mistakes the white employees allegedly made included putting duplicate documents and information in files, making improper filings, and failing to adequately provide information on offenders. These are the same types of mistakes Walker was accused of making.
ADC claims Walker's work deficiencies continued to worsen in 2004. On June 3, 2004, Flynn gave Walker a written reprimand. Walker filed a grievance, claiming the written reprimand should have been a verbal reprimand under the ADC progressive disciplinary policy. Walker's grievance was considered, and the written reprimand was changed to a verbal reprimand.
Later that June, Walker allegedly attached a document regarding one sex-offender's case to the file of another sex offender. According to ADC, this is a major concern because it could result in an offender being given a lesser offender rating or an undeserved greater offender rating. Flynn issued a counseling statement to Walker rather than taking disciplinary action against her in an attempt to remedy this issue. Walker signed this counseling statement. Walker received a second counseling statement that same day for failing to provide sufficient information for offender files. In this incident, Walker failed to include an offender's criminal judgment in the file. Flynn warned that continued performance issues would result in a written warning under the disciplinary policy. Walker did not sign this statement.
In November 2004, Flynn conducted a performance evaluation of Walker. Walker received a "fair" evaluation, which meant her performance was "less than satisfactory and requires that steps must be taken to improve performance." (Doc. #59, exh. 49). Walker appealed the evaluation, but ADC upheld it. Because the evaluation was less than a "satisfactory" rating, Walker was ineligible to receive a promotion through the Career Ladder Incentive Program ("CLIP"). By contrast, two of Walker's white co-workers received CLIP promotions to Program Leader positions.
In December 2004, Flynn addressed another issue concerning an offender file with Walker. Walker allegedly failed to provide any offense details regarding a rape charge. Flynn issued Walker a written reprimand under the ADC disciplinary policy. Flynn warned Walker she would continue to discipline Walker if Walker's performance did not improve. Walker did not sign the reprimand.
On January 6, 2005, Walker filed a second EEOC charge, claiming race discrimination and retaliation. Walker complained of the August 2002 Program Leader position she did not receive, the June 2004 written reprimand and grievance, the November 2004 "fair" evaluation that prevented any possibility of promotion, and the December 2004 written warning. Walker did not disclose on the charge whether she was being submitted to continuing discriminatory action. The EEOC mailed her a right to sue letter on June 30, 2005.
ADC claims Walker's performance problems continued in 2005. In June, ADC placed Walker on administrative leave. In August, ADC suspended Walker for including duplicate documents in a file.
In late September 2005, Walker sued ADC and Flynn. On October 21, Flynn filed a third EEOC charge. Although no copy of this EEOC charge has been provided to the Court, according to Walker's brief she complained of "discrimination she was enduring on the jobsite prior to her termination." (Doc. #64, at 4). In November, ADC placed Walker on administrative leave and then terminated her employment. Walker did not appeal the termination with ADC, but she amended her October 2005 EEOC charge to include discriminatory and retaliatory termination. The Court is unsure of when Walker received a right ...