The opinion of the court was delivered by: Kristine G. Baker United States District Judge
Plaintiff Richard Burton brings this action under 42 U.S.C. § 2000e (Title VII of the Civil Rights Act of 1964, as amended), 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution against his former employer, the Arkansas Secretary of State, in his official capacity, and the Chief of the Arkansas State Capitol Police, Darrell Hedden, in his individual and official capacity. Mr. Burton alleges race discrimination and retaliation. Mr. Burton also brings this action under 28 U.S.C. § 2201 for declaratory judgment to declare the rights and other legal relations between the parties. Defendants seek summary judgment on Mr. Burton's discrimination and retaliation claims, as well as his claim for punitive damages (Dkt. No. 11). For the reasons that follow, defendants' motion is granted in part and denied in part.
The following facts are undisputed unless stated otherwise.*fn1
Mr. Burton was employed by the Arkansas Secretary of State as
a certified law enforcement officer with the State Capitol Police from
June 9, 2009 until he was terminated on April 12, 2010. Prior to his
employment with the State Capitol Police, Mr. Burton was employed by the Pine
Bluff Police Department, where he served as a certified law
enforcement officer for nearly four years.
During a meeting with Chief Hedden and Sergeant David Huggs regarding the position with the State Capitol Police, Chief Hedden informed Mr. Burton that he would be working the 3:00 p.m. to 11:00 p.m. shift with Norman Gomillion, Assistant Chief Theo Pierce, and Danny Winters, all Caucasians. Chief Hedden warned that, if hired for the position, Mr. Burton might experience things he would consider to be racially offensive because the 3:00 p.m. to 11:00 p.m. shift was "full of rednecks." Chief Hedden told Mr. Burton to come see him if there were any problems.
Cathy Bradshaw is the Deputy Secretary of State and is Chief Hedden's immediate supervisor. Ms. Bradshaw has responsibility over housekeeping, police, and dispatch for the Secretary of State. Robin Lang alleges that, when she was being interviewed by Ms. Bradshaw for a housekeeping position with the Secretary of State's Office, Ms. Bradshaw asked Ms. Lang in a low voice, "Do you have a problem working with blacks?"
Each person hired by the State Capitol Police is issued a State Capitol Police Policy and Procedures Manual and a Secretary of State Personnel Manual and is instructed to read both. The manuals contain, among other things, policies addressing complaint and appeal procedures and standards of conduct rules. Mr. Burton acknowledged receipt of both manuals on June 5, 2009. Per Secretary of State Policy, Mr. Burton was subject to a six-month probationary period. Mr. Burton was advised by Chief Hedden at the time of hire that his initial salary would be $37,500.00 per year and that, after successfully completing the six-month probationary period, he would receive a raise of $2,500.00.
On December 7, 2009, Chief Hedden made a request to Ms. Bradshaw that Mr. Burton receive a raise. The written request acknowledged that Mr. Burton had successfully completed his six-month probationary period.
On December 8, 2009, Mr. Burton called Chief Hedden to report that Officer Gomillion had made racially offensive comments. Mr. Burton told Chief Hedden that Officer Gomillion had referred to Mr. Burton and Randy Hitch, a housekeeper, as "n----rs" while speaking with Ms. Lang. Mr. Burton alleges that Officer Gomillion would often use racial epithets when he was around Ms. Lang, letting it be known that he did not like African-Americans and that he felt whites were superior to blacks. Ms. Lang and Mr. Burton worked the same shift and discussed these allegations. When Officer Gomillion saw Ms. Lang with two African American males, Ms. Lang claims he asked her whether she did "that n----- thing?" When Ms. Lang asked Officer Gomillion what he meant, she claims he said, "you don't do that n----- thing, you don't date n-----s, do you?" Mr. Burton and Ms. Lang also claim Officer Gomillion referred to President Obama as "the n----- in the office, who is going to bring the United States down." Ms. Lang maintains she often considered reporting Officer Gomillion, but she felt like she would be wasting her time.*fn2
When Mr. Burton complained to Chief Hedden about Officer Gomillion, Chief Hedden told Mr. Burton to prepare a written complaint regarding Officer Gomillion's behavior. On December 9, 2009, Mr. Burton submitted a handwritten complaint outlining the racially offensive comments made by Officer Gomillion, along with the statements of Ms. Lang, Mr. Hitch, and another employee, Misty Lane. Chief Hedden told Mr. Burton at that time that Mr. Burton needed to type his complaint and resubmit it. Mr. Burton did so.
Chief Hedden read Mr. Burton's complaint and the witness statements and met with Officer Gomillion. The record evidence does not indicate Chief Hedden took any other steps to investigate. Officer Gomillion denied that he had made racially offensive comments and offered to take a polygraph test. Chief Hedden issued Officer Gomillion a formal letter of counseling that racial comments would not be tolerated in any way and that termination was possible for any such future allegation that was substantiated.
Mr. Burton inquired about the status of his complaint against Officer Gomillion by email on January 22, 2010. Chief Hedden claims he did not receive the email. Chief Hedden inquired about the status of his request that Mr. Burton receive a raise on January 25, 2010. The Secretary of State granted the raise requested by Chief Hedden on February 9, 2010.
On February 16, 2010, Mr. Burton informed Chief Hedden that Officer Gomillion had thrown a set of keys at Mr. Burton and another officer. Mr. Burton submitted a statement regarding the incident to Sergeant Huggs on February 17, 2010. Later, during a meeting with Assistant Chief Larry Robinson, Sergeant Huggs, and Officer Charlie Brice, who is also an African American, Mr. Burton was given a copy of the State Capitol Police at-will employment policy, was informed that anyone can be terminated at any time, and was told to read it, despite making clear he knew what the policy stated. Assistant Chief Robinson then pointed to a purportedly new policy regarding bickering amongst the staff. Mr. Burton asked Assistant Chief Robinson if he was referring to Officer Gomillion and again inquired about the status of his complaint. According to Mr. Burton, Assistant Chief Robinson stated that "if ya'll would just leave [Officer Gomillion] alone and stop aggravating him, none of this stuff would be happening."
Mr. Burton worked a traffic accident on March 26, 2010. Capitol Police Policy #2004-68 requires an officer to complete a traffic accident report before the end of the officer's shift. Mr. Burton did not complete a traffic accident report before the end of his shift that day. Mr. Burton claims he told Chief Hedden that Sergeant Huggs told him to hold off on preparing the report until Sergeant Huggs could show him how to input the report into the new computer system. The individuals involved in the accident called several times over the next few days requesting copies of the accident report. State law requires that all traffic accident reports be provided to the Arkansas State Police within five days.
Mr. Burton requested to work part-time, performing security for Lisenne Rockefeller, during the month of March 2010. Chief Hedden approved Mr. Burton's request but cautioned Mr. Burton not to let his part-time work interfere with his full-time job. Mr. Burton overslept on March 30, 2010 after having worked until 7 a.m. the night before for Lisenne Rockefeller. Mr. Burton failed to inform the department in advance so that arrangements could be made for proper shift coverage, in violation of State Capitol Police Policy #2004-65. In addition, Mr. Burton was found to be in violation of State Capitol Police Policy #2004-55 as a result of working off-duty all night. Mr. Burton agrees that he should have been disciplined for reporting to work late.
Chief Hedden issued Mr. Burton a formal letter of reprimand on March 31, 2010. In the letter of reprimand, Chief Hedden requested that Mr. Burton prepare a written memorandum within five days explaining his reasons for failing to complete the accident report in a timely manner and his reasons for failing to report to work as scheduled on March 30, 2010. The letter advised Mr. Burton that any future violations of department policies or procedures could result in additional disciplinary actions, including termination of employment. Mr. Burton did not provide the memorandum within five days as requested.
On April 7, 2010, Chief Hedden contacted Harmony Daniels by email to discuss whether Mr. Burton should be subjected to additional disciplinary action for failure to provide the memorandum. Ms. Daniels informed Chief Hedden that Mr. Burton's failure to provide the memorandum within five days was a violation. She advised Chief Hedden to remind Mr. Burton to submit the memorandum. Chief Hedden claims he reminded Mr. Burton to submit the memorandum in an email and text message, but Mr. Burton disputes receiving either of those communications.
On April 9, 2010, Chief Hedden reported Mr. Burton's failure to provide the memorandum to Ms. Bradshaw and recommended that Mr. Burton's employment be terminated. The reasons for Chief Hedden's recommendation are set forth in an April 9, 2010 memorandum to Ms. Bradshaw:
Because of Officer Burton's failure to follow policy and procedures that has led this department to issue an Official Letter of Reprimand, and because Officer Burton has willfully failed to follow the instruction and orders issued by supervisory personnel, he has failed to satisfactorily perform the duties of a police officer as required by this department. With this type of action it is apparent to this department that Officer Burton has chosen and will not be able to complete the 12-month probationary period*fn3 satisfactorily.
Mr. Burton was terminated on April 12, 2010 for "fail[ing] to meet Commission 12 month probationary standards." He did not appeal his termination to the Secretary of State. Mr. Burton filed a charge of discrimination with the Equal Employment Opportunity Commission on April 14, 2010.
Chief Hedden became the chief of police in March 2003. During Chief Hedden's tenure as chief and prior to Mr. Burton's termination, the only other officer who was terminated was another African American by the name of Sean Olive. Mr. Olive was terminated because his landlord had a warrant issued for his arrest when he failed to vacate his apartment. Mr. Burton contends that another officer by the name of Brett Stephens, a Caucasian, was given the option of resigning in lieu of termination when he was caught stealing from his part time job during Chief Hedden's tenure.
Mr. Burton points to Officer Gomillion as a potential comparator. He identifies Robert Barham as a Caucasian employee who was treated differently for violating company policy regarding reporting to work on time. Officer Barham reported to work nearly five hours late on November 6, 2008 after he overslept. As a result of the incident, Officer Barham was issued a Letter of Counseling. Officer Barham received a letter of reprimand for reporting to work one hour late on March 22, 2010, one and a half hours late on April 1, 2010, and 18 minutes late on April 14, 2010. Officer Barham was late for work four additional times from August 2012 to October 2012. With the exception of the November 6, 2008 incident, Officer Barham was never asked to provide a memorandum explaining his conduct, and the record evidence does not indicate he was terminated for his conduct.
Mr. Burton also points to James Wiley as a potential comparator. The record indicates that Officer Wiley was involved in a verbal altercation with Chief Hedden and that he violated a direct order from Chief Hedden to leave the room. The ...