United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
J. LEON HOLMES, District Judge.
Darren Smith brings this employment-discrimination action against the Arkansas Highway Police, Chief Ron Burks, Major Paul Claunch, Captain Jeff Holmes, and Lieutenant James Moore. Smith alleges that he was the victim of racial discrimination and retaliation by the Arkansas Highway Police, in violation of Title VII of the Civil Rights Act of 1964,  and by the individual defendants in their official and individual capacities, in violation of 42 U.S.C. §§ 1981 and 1983. The defendants have filed a motion for summary judgment, a motion to strike three affidavits submitted by Smith, and three motions in limine. Smith has also filed a motion in limine. For the reasons explained below, the motion for summary judgment is granted in part and denied in part; the motion to strike is denied; Smith's motion in limine and the defendants' first, second, and third motions in limine are granted in part and denied in part.
The Arkansas Highway Police is a division of the Arkansas Highway & Transportation Department. The Arkansas Highway Police hired Smith in May 2001 and discharged him, allegedly for dishonesty, in July 2012. In the intervening eleven years, numerous complaints were lodged by and against Smith. Some but not all of that history will be recounted here.
In May 2002, Smith's direct supervisor was a Caucasian, James Moore. Moore used a racial slur in the presence of Smith, who is African-American, and two Caucasian officers. See Pl. Ex. 2 at 3. No immediate disciplinary action was taken. Id. Some time later, disciplinary proceedings were initiated against Sergeant Harold Huey, also a Caucasian, who had made a racial comment regarding four African-American Arkansas Highway Police officers. Id. at 4. Huey objected to the discipline, arguing that Moore had not been disciplined for his use of a racial slur. Id. Huey and Moore were both subsequently disciplined. See, e.g., Def. Ex. 18.
In August 2002, Smith contacted human resources officer Crystal Cole, alleging various incidents of race discrimination. See Def. Ex. 29. Cole's report found no evidence to support Smith's allegations of race discrimination, but it did recommend a district-wide meeting with the chief of the human resources office to discuss, among several other items, "[r]acist remarks (black faces, crackers, etc...)." Id. at 6.
In 2004, Captain Joe Black, an African-American, sat on a panel with Burks to interview a number of officers for a several promotions to the rank of corporal. Pl. Ex. 2 at 3. A number of African-American officers scored very well on the promotion exam. In Black's presence, Burks expressed disbelief that the African-American candidates, as a group, were capable of performing to that level, and he stated that cheating must have been involved. Id.
Smith filed a grievance in 2004, claiming various incidents of racial discrimination involving then-First Lieutenants Moore and Holmes, among others. Def. Ex. 19. Furthermore, Smith filed a federal lawsuit alleging claims of racial discrimination and retaliation against the Arkansas Highway Police, Director Dan Flowers, and Burks. Smith v. Flowers, et al., No. 4:04CV1256 SWW (E.D. Ark. October 26, 2004). Smith and the defendants in that action reached a settlement agreement under which the defendants acknowledged no wrongdoing but Smith received, among other things, a promotion to the rank of corporal in return for releasing his legal claims. Def. Ex. 21.
In July 2007, Smith made a telephone call to Cole and stated that he did not want to file a complaint but that he wanted to make her aware that Burks was subjecting him to disparate treatment and that the issues might be coming to a head. Def. Ex. 32. Smith informed Cole that Black and First Lieutenant James Speer could inform her about Burks's actions and attitudes toward him. Id. The report stated that both Black and Speer believed that Burks subjected Smith to much closer scrutiny than other officers in various ways. Id. A subsequent human resources grievance report recommended that "Burks should be advised that Black, Speer, and Smith believe Burks is more focused on Smith and his activities than other officers, although no evidence has been found to indicate that this perception is accurate." Id.
In May 2009, Smith filed a grievance alleging that he did not receive a promotion to either of two sergeant positions due to racial discrimination. Def. Ex. 25. One Caucasian and one African-American officer were promoted instead of Smith. The grievance stated that Smith's objective points put him ahead of one of the two officers who received the promotion. Id. Smith challenged the subjective portion of the evaluation process, arguing that the interview panel included persons who could not fairly evaluate him. The panel included Cole, Burks, and Claunch, who was Burks's subordinate. Id. Burks offered to meet with Smith to discuss the process, but Smith declined. See Def. Ex. 26. A grievance panel reviewed Smith's grievance and found that Smith's claim of racial discrimination was not supported by the evidence. See Def. Ex. 38 & 39.
In January 2011, a man named Coyelle Williams called the Arkansas Highway Police to complain that Smith had been in a bedroom with a woman named Keisha Poney in Hughes, Arkansas. Def. Ex. 42. Smith strongly denied the allegations. Id. Speer investigated the complaint by questioning Smith and several other individuals about a possible relationship between Smith and Poney. Id. Smith filed a grievance regarding the Arkansas Highway Police's investigation procedures, alleging further racial discrimination and disparate treatment against African-American officers. See Def. Ex. 40 & 41. The grievance panel found that every citizen complaint, including the one against Smith, should be investigated, but it also recommended that the Arkansas Highway Police develop procedures regarding how verbal and written complaints were to be handled in the future. Def. Ex. 43 & 45. When the Arkansas Highway Police concluded its internal investigation, Burks sent a letter to Woods stating that an inquiry had determined that there was insufficient information to prove or disprove the allegations against Smith. Pl. Ex. 6.
In June 2011, Smith filed other grievances, alleging that Moore discriminated against him by not recommending him for a merit raise. Def. Ex. 44. Moore had recommended two of Smith's subordinates for raises. Id. Smith alleged that race discrimination and the ongoing internal investigation against him played a role in Moore's decision not to recommend Smith for a merit raise. Id. Smith also alleged that Burks and Holmes were undermining his supervisory authority by overturning his decision to discipline a subordinate and by inviting one of his subordinates to attend a public meeting without even informing Smith that the meeting was taking place. See Def. Ex. 48. The Arkansas Highway & Transportation Department Equal Employment Opportunity section conducted an investigation regarding Smith's allegations. Id. The section determined that Holmes should have informed Smith of the public meeting, but otherwise the section's report found no evidence of discrimination or retaliation against Smith. Id. The report stated that Smith was not recommended for a merit raise because of the appearance of his uniform, his failure to maintain his vehicle, and his failing to turn in his paperwork to the courts on time. Id.
On November 8, 2011, Smith received via email a letter advising that he would be promoted from sergeant to the rank of motor carrier safety inspector effective November 17, 2011 and reassigned to northwest Arkansas. Def. Ex. 69. The letter stated that Smith should contact Claunch for information regarding Smith's specific reporting date to northwest Arkansas. Def. Ex. 69. At that time Smith lived in Jonesboro, a city in the northeastern part of the state. The promotion letter informed Smith that he was required to establish a permanent domicile in northwestern Arkansas within 90 days of his reporting time. Id. The letter also stated that moving expenses would be reimbursed only with prior approval from the director. Id. Smith was under the impression that he would not have to report to northwest Arkansas until his court calendar in northeast Arkansas had cleared. Def. Ex. 71, 72. Smith attempted to contact Claunch, but he was on leave and unavailable. On November 15, 2011, Smith's immediate supervisor, Lieutenant Ross Batson, met with Smith and advised that his reporting date to northwest Arkansas would be November 18. Def. Ex. 71. Batson told Smith that the Arkansas Highway Police would reimburse him for a hotel stay of up to two weeks while he sought a temporary residence in northwest Arkansas. Id.
Shortly after his meeting with Batson, Smith decided to take a week of annual leave to facilitate his move. Id. Batson approved the leave. Id. Smith enlisted three of his brothers to help him move his family to northwest Arkansas, and he agreed to pay them $300.00 each. At that time Smith was aware that a fellow Arkansas Highway Police officer, Territha Reed, had requested and received reimbursement for a sum that included an amount paid to three moving helpers, some of whom were her family members.
Smith was identified to the Arkansas Highway Police and Burks as a witness for Ricky Smith, the plaintiff in an employment-discrimination lawsuit against them. On November 10, 2011, Smith provided deposition testimony favorable to Ricky Smith. Smith, the plaintiff here, testified that Burks had engaged in racially-discriminatory actions against minorities. Def. Br. In Support of S.J. at 50.
On January 19, 2012, Smith sought reimbursement for travel expenses in the amount of $900.00. Def. Ex. 70. Smith listed his three brothers as moving helpers on his reimbursement request. Id. Smith's request for reimbursement was denied because he had not received preapproval, and on February 9, 2012, he filed a grievance, claiming that he had insufficient time to obtain preapproval. Def. Ex. 71.
After Smith's request was denied, Claunch called Reed in to sign a notarized affidavit regarding the amounts she had paid to her moving helpers. Def. Ex. 76; see Def. Ex. 83 at 21. Smith pursued his grievance to a hearing before a grievance panel. Pam Hickman, Assistant Division Head of Human Resources, was the facilitator of the grievance hearing. Def. Ex. 130. After hearing Smith's testimony, Hickman approached Burks and related her impression that Smith had stated during the grievance hearing that the Arkansas Highway Police made him move to northwest Arkansas and then immediately sent him back to train with a federal trainer in northeast Arkansas. Id. at ¶ 3. Hickman provided Burks with a copy of the grievance hearing testimony, and Burks began an investigation of Smith's testimony.
Meanwhile, on March 13, 2012, the court hearing Ricky Smith's employment-discrimination case granted summary judgment in favor of the Arkansas Highway Police and Burks. Smith v. Arkansas Highway Police, No. 4:10-CV-01557-SWW, 2012 WL 846441, at *9 (E.D. Ark. Mar. 13, 2012).
Smith's reimbursement grievance hearing was held on May 14, 2012. See Def. Ex. 72. On May 15, 2012, the grievance panel issued a memorandum to Scott Bennett, Director of the Arkansas Highway & Transportation Department, in which it recommended that Smith not be reimbursed. Def. Ex. 74. The memorandum stated that Smith failed to obtain prior approval of the expenses in accordance with Arkansas Highway Police policy. It also stated that there was no need for Smith to move within 48 hours as he had claimed and that Smith had adequate time to find temporary or permanent residence. Id. Furthermore, the memorandum stated that the panel members believed that the chances of fraud or abuse are too great to approve the paying of family members as a moving expense. Id.
In a letter dated June 19, 2012, Burks informed Smith that disciplinary action was being considered for what the letter described as his allegedly misleading and false statements during the grievance hearing. Def. Ex. 73. The letter stated that Smith had dishonestly stated that for over six months he has been working with Tony Evans, a Federal Motor Carrier Safety Administrator who lived in northeastern Arkansas; that he had not once conducted a motor carrier compliance review in northwest Arkansas in the preceding six months; that Batson had notarized an affidavit of a coworker, Territha Reed, and that she was reimbursed for $1, 600 or $1, 700 in moving expenses; that Batson had approved and signed his reimbursement request and that the request had been approved at a supervisory level; and that he only had 48 hours to move and did not have time to find suitable housing because he was working every day until five or six o'clock p.m. Id.
On June 21, 2012, Smith filed a grievance and a charge of discrimination with the Equal Employment Opportunity Commission, alleging discrimination on the basis of race and retaliation for a previously-filed charge of discrimination and other complaints, in violation of Title VII. Def. Ex. 86. Smith stated that over the course of the previous year he had been subjected to unequal terms and conditions of employment and that he was also being improperly subjected to a disciplinary hearing. Id.
On June 29, 2012, Burks and Claunch conducted an administrative hearing regarding Smith's statements. See Def. Ex. 78. Smith took the opportunity to explain his statements to them. Id. In a memorandum to Burks dated July 2, 2012, Claunch stated that based on the grievance hearing testimony, Burks's letter to Smith, and Smith's testimony during the administrative hearing, he recommended that Smith's employment be terminated. Def. Ex. 79. In a memorandum dated July 3, 2012, Burks also recommended Smith's termination based on the same statements that were detailed in his June 19 letter. See Def. Ex. 80; Def. Ex. 73. The memorandum stated that it had been alleged that these statements were in violation of the Arkansas Highway & Transportation Department's Conduct of Employees policy, section E.19; the Arkansas Highway Police's General Instructions policy; and the Arkansas Highway Police's Code of Ethics-policies concerning honesty and truthfulness. Burks's memorandum stated that "[a]t the conclusion of the administrative hearing it was determined Smith failed to provide any reasonable justification for his untruthful statements and he was found to be in violation of the aforementioned policies." Def. Ex. 80. On July 9, Bennett approved Smith's termination after reviewing parts of the hearing transcript. In a letter to Smith dated July 9, 2012, Burks outlined the allegations against him and informed him that his employment was terminated effective immediately. Def. Ex. 1.
On August 6, 2012, Smith filed a grievance regarding his termination. Def. Ex. 82. In a memorandum Smith requested a thorough review of the full transcript of the reimbursement grievance hearing, stating that his statements were accurate when not stripped of their context. Id. A termination grievance hearing was held, in which Smith presented his case that he was truthful during the reimbursement grievance hearing and that his termination was wrongful. See Def. Ex. 83. On October 2, 2012, the termination grievance panel recommended that the decision to terminate Smith should stand, finding that the documentation showed that Smith had given false and misleading information to the reimbursement grievance panel and that his termination was justified. Def. Ex. 84. In a letter dated October 3, 2012, Bennett informed Smith of the panel's decision and stated that no further action would be taken concerning his grievance. Def. Ex. 85.
On August 17, 2012, Smith amended his previous EEOC charge to include a claims of disparate treatment, racially-motivated employment decision, and retaliation for his involvement in protected activity and for opposing discriminatory practices. Def. Ex. 86.
On February 12, 2013, Smith filed another charge of discrimination. Id. Smith's complaint alleged that in January 2013 he had submitted two applications for employment with the Arkansas Department of Corrections. After interviewing, receiving an offer of employment, and completing the initial requirements for a Lieutenant position at Brickeys, Arkansas, Smith was informed that he would not be hired due to a negative reference from the Arkansas Highway Police. Id. Smith then received notice that he would be scheduled for an interview for a Captain position at Newport, Arkansas. But subsequently Smith was told not to come for that interview because the same officials who had withdrawn his offer of employment for the Lieutenant position would be making the decision regarding his eligibility for the Captain position. Id. The EEOC issued Smith right-to-sue letters. Document #1 at 28-29. On May 20, 2013, Smith brought this action.
Smith asserts Title VII discrimination and retaliation claims against the Arkansas Highway Police and section 1981 claims against Burks, Claunch, Holmes, and Moore in ...