United States District Court, E.D. Arkansas, Pine Bluff Division
OPINION AND ORDER
KRISTINE G. BAKER, District Judge.
Plaintiff Letsie Bass brings this action against defendants the University of Arkansas at Pine Bluff ("UAPB"); the University of Arkansas System ("UA System"); Donald Bobbitt, President of the UA System; Carl Johnson (originally named as Calvin Johnson), UAPB Chancellor; and Elbert Bennett, Director of Student Affairs at UAPB. Ms. Bass asserts multiple causes of action arising out of alleged employment discrimination on the basis of race, age, and gender.
Before the Court is defendants' motion for judgment on the pleadings (Dkt. No. 28). Defendants' motion for judgment on the pleadings is addressed to Ms. Bass's original complaint and is denied as moot in view of Ms. Bass's filing of a first amended complaint (Dkt. No. 31).
Also before the Court is defendants' motion to dismiss Ms. Bass's first amended complaint (Dkt. No. 32). Ms. Bass has responded to the motion (Dkt. No. 36), and defendants have replied (Dkt. No. 38). For the reasons below, the Court grants in part and denies in part defendants' motion to dismiss Ms. Bass's first amended complaint.
Ms. Bass alleges that the UA System and UAPB engaged in "systematic, systemwide, policies, practices and procedures of employment discrimination against blacks, females and aged employees" (Dkt. No. 31, ¶ 5). Ms. Bass alleges that she was subjected, on the basis of her gender, race, and age, to: "(a) disparate treatment in hiring, promotion and advancement; (b) disparate pay; (c) differential treatment and general conditions of employment; (d) hostile work environment; (e) retaliation, and dismissal for her resistance to such disparate treatment, " which she claims is in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights of 1991 and the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e et seq. ("Title VII"); the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; the Equal Pay Act ("EPA"), 29 U.S.C. § 206; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and 42 U.S.C. §§ 1981, 1983, and 1985 ( Id., ¶ 6). She further asserts due process and equal protection claims on the basis that she "was subjected to arbitrary and capricious state actions" ( Id. ). Ms. Bass also alleges state law claims for gender, age, and race discrimination under the Arkansas Civil Rights Act of 1993 ("ACRA"), § 16-23-101 et seq.; a claim of "arbitrary and capricious State action detrimental to Plaintiff in violation of State Administrative Procedures Act"; and common law claims for breach of contract, defamation, outrage, and wrongful discharge ( Id. ).
According to her first amended complaint, Ms. Bass was employed as the Director of Student Health Services at UAPB from her hiring in August 1996 until her discharge in April 2013. She claims that she performed her duties satisfactorily until her discharge and that she worked without incident until 2006, when Mr. Bennett became the Coordinator of Student Affairs at UAPB and Ms. Bass's immediate supervisor (Dkt. No. 31, ¶13).
Ms. Bass asserts that, under the supervision of Mr. Bennett, defendants denied her "equal pay, benefits and administrative support equal to that of similarly situated Directors of Student Health Services within the University of Arkansas System who are not minority employees" and denied her participation in savings, annuity and retirement programs made available to "similarly situated non-protected class employees of the University of Arkansas System." (Dkt. No. 31, ¶ 14). She alleges that she was hired at a pay rate less than the pay rate authorized for her position within the UA System; that she did not receive a raise or bonus prior to 2009, despite regular requests; and that Mr. Bennett refused to raise her pay or recommend a pay raise to make Ms. Bass's pay equal to that of other student health services directors in the UA System and other directors in the UAPB student affairs department ( Id., ¶ 14(b)). She further claims that the Chancellor, Dr. Johnson, was slow, or failed, to address or act on Ms. Bass's complaints regarding pay inequity ( Id., ¶ 14(c)).
Ms. Bass also claims that she worked under conditions in which her area was severely understaffed as compared to the areas of similar directors and that, as a result, she was unable, or not allowed by Mr. Bennett, to take time off. She asserts that she lost hundreds of hours of accumulated personal leave, holiday leave, and accrued overtime as a result (Dkt. No. 31, ¶ 14(b)). In addition, she claims that Mr. Bennett harassed her after she took four days of leave in May 2009 while her assistant was also out of the office, which resulted in the health center being closed for several days. Ms. Bass alleges that she complained to the Chancellor about Mr. Bennett's behavior but that the Chancellor did not respond. She asserts that she did not file a formal grievance due to the Chancellor's inaction and the increase in hostility from Mr. Bennett "on the earlier grievance" ( Id., ¶ 14(d)).
Ms. Bass alleges that Mr. Bennett, "with the approval or acquiescence of his supervisors, including all Defendants named herein, undertook and carried out a pattern and practice of conduct in violation of established Federal and State Constitutions and Laws, and of University regulations and policy" (Dkt. No. 31, ¶ 15). She claims that Mr. Bennett "undermined, usurped and, assigned" her authority and function as the Director of Health Services to a younger employee and subordinate; harassed and belittled Ms. Bass alone and in the presence of others; countermanded Ms. Bass's directions on matters that should have been under Ms. Bass's authority; and overrode Ms. Bass's customary role in selecting subordinate medical staff by selecting unqualified, younger employees, all of which Ms. Bass claims hindered the performance of her duties ( Id. ).
Ms. Bass further alleges that, within months of his hiring, Mr. Bennett made comments in a staff meeting expressing concern that the deans and directors of his departments were over the age of 50 and "old" (Dkt. No. 31, ¶ 15(b)). Ms. Bass claims that the deans and directors who were at this meeting who were over the age of 50 have all been terminated or replaced by younger workers and the females replaced by males. Ms. Bass claims that Mr. Bennett harassed, ridiculed, and bullied her on multiple occasions between 2006 and 2013 ( Id., ¶ 15(c)). She raises various other alleged instances of hostility from Mr. Bennett, although she does not specifically mention any improper motivations for these actions ( Id., ¶ 15(d) - (g)). She claims that she wrote the UAPB Chancellor, Dr. Johnson, following the "many confrontational actions" by Mr. Bennett ( Id., ¶ 16).
Ms. Bass alleges that Mr. Bennett effectively usurped her position as Director of Student Health Services and effectively demoted her (Dkt. No. 31, ¶ 17). She bases this on various allegations regarding a nurse, Ms. Holmes, whom Mr. Bennett allegedly hired in September 2011 over Ms. Bass's objections and outside of proper hiring procedure. Ms. Bass claims that Mr. Bennett made Ms. Holmes Ms. Bass's permanent assistant in December 2011. She alleges that Ms. Holmes engaged in insubordination and hostility that Mr. Bennett openly encouraged. Ms. Bass states that she filed a grievance in December 2011 that Dr. Johnson refused to address meaningfully ( Id., ¶ 17(a)-(d)).
Ms. Bass claims that, while she was on Family and Medical Leave in March 2012, Mr. Bennett and Ms. Homes made major changes in the Student Services Operating Procedures without Ms. Bass's input or knowledge. Ms. Bass claims these changes essentially assigned her authority to Ms. Holmes (Dkt. No. 31, ¶ 17(e)). Ms. Bass further alleges that Mr. Bennett and unnamed others encouraged Ms. Holmes in late 2012 and early 2013 to initiate her own grievance alleging harassment against Ms. Bass. Ms. Bass maintains that, unlike when addressing her December 2011 grievance, Dr. Johnson promptly scheduled Ms. Holmes's grievance for a hearing. Ms. Bass claims that Ms. Holmes's grievance hearing was conducted in a manner that was designed to favor Ms. Holmes and that, as a result, the panel determined that Ms. Bass had harassed Ms. Holmes and imposed certain restrictions ( Id., ¶ 17(f)-(i)).
Ms. Bass alleges that she was required to evaluate Ms. Holmes in December 2012 and that, after giving Ms. Holmes demerits, Mr. Bennett badgered Ms. Bass and insisted she give Ms. Holmes a more favorable evaluation. Ms. Bass alleges that, from January 2013 until her termination, she complained of Ms. Holmes's insubordination and disruption of Ms. Bass's duties. She maintains that, in response, Mr. Bennett directed her "to come to work but be on vacation' i.e. stay out of Holmes' way." (Dkt. No. 31, ¶ 18).
Ms. Bass states that she was terminated on April 19, 2013, without discussion, and told to leave campus immediately. She states that she was terminated "supposedly for violations of the corrective actions, but without explanation of the circumstances of the purported violation." ( Id., ¶ 19). Ms. Bass does not specify the "corrective actions" to which she refers. She does not provide any other details regarding her termination.
Ms. Bass alleges that she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 26, 2012. Her Form 5 EEOC charge and intake questionnaire are attached to her original complaint (Dkt. No. 1) and are discussed in more detail below.
II. Legal Standard
Defendants move to dismiss Ms. Bass's first amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6), a complaint must satisfy the pleading requirement of Rule 8(a)(2), which requires that a complaint present "a short and plain statement of the claim that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); see Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). "Specific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). However, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a sheer possibility.'" Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678).
Defendants first move to dismiss Ms. Bass's claims against UAPB arguing that it is not a legal entity capable of being sued. UAPB is a campus of the University of Arkansas and is under the management and control of the University of Arkansas's Board of Trustees. Ark. Code Ann. § 6-64-303. Because UAPB is merely a campus of the University of Arkansas, it is not a legal entity capable of being sued. See McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855, 860 n.2 (8th Cir. 2009) ("UAMS lacks the capacity to sue or be sued, because it is a campus of the University of Arkansas and not a separate institution or corporate body."); Greenwood v. Ross, 778 F.2d 448, 449 n.1 (8th Cir. 1985) (The University of Arkansas at Little Rock "is a component of the University of Arkansas. Arkansas state law designates the Board of Trustees of the University of Arkansas as the entity capable of being sued."); Assaad-Faltas v. Univ. of Ark. for Med. Sciences, 708 F.Supp. 1026, 1029 (E.D. Ark. 1989) ("UAMS is not a separate institution or a corporate body which has the capacity to sue or be sued. Therefore, all allegations directed at UAMS are dismissed for failure to state a claim upon which relief can be granted."), aff'd, 902 F.2d 1572 (8th Cir. 1990). The Court grants defendants' motion to dismiss UAPB as a defendant.
Ms. Bass states that, if the Court accepts defendants' argument, all claims pleaded against UAPB should be treated as if pleaded against the UA System. Defendants reply that the UA System is not a proper party and that the proper party would be the Board of Trustees for the University of Arkansas. The Court agrees with defendants' position, but issues persist. In her original complaint, in the body of the original complaint, Ms. Bass named as a party defendant the "University of Arkansas System, through [its] Board of Trustees" (Dkt. No. 1, at 2, ¶ 3). However, she did not identify the Board of Trustees in the style of her original complaint, the docket sheet does not mention the Board of Trustees, and it does not appear to the Court that the Board of Trustees was ever properly made a party to this suit. Although Ms. Bass's first amended complaint lists the "the UA System" as a party, it does not refer to the Board of Trustees (Dkt. No. 31, ¶ 8). The Board of Trustees is not mentioned anywhere in her first amended complaint. Ms. Bass did not list among her reasons for requesting leave to amend that she wanted to alter the parties sued, but she makes no argument as to whether she intended to make the Board of Trustees a defendant in the first place and whether naming as a defendant the University of Arkansas System was sufficient to include the Board of Trustees.
Because Ms. Bass properly named the University of Arkansas System, through its Board of Trustees, as a defendant in her original complaint (Dkt. No. 1) and persisted in naming the University of Arkansas System as a defendant in all amended complaints, this Court will permit Ms. Bass's claims against the University of Arkansas System, through its Board of Trustees, to proceed. See Martin v. Univ. of Arkansas for Med. Sciences, No. 4:08CV03617 JMM, 2008 WL 5231115, at *1 (E.D. Ark. 14, 2008) ("The Defendant is correct that UAMS is not an entity capable of being sued. Rather, Plaintiff should have named the University of Arkansas or the Board of Trustees of the University of Arkansas as the defendant in this case." (citation omitted)). The Court denies defendants' motion to dismiss the University of Arkansas System as a defendant in this case and construes Ms. Bass's first amended complaint as naming the University of Arkansas System through its Board of Trustees as a defendant in this matter.
Defendants also move to dismiss all claims against Dr. Johnson, asking the Court to take judicial notice of the fact that Dr. Johnson served as UAPB's Interim Chancellor until June 30, 2013, and is no longer in any position with the UAPB or any position in which he can provide injunctive relief (Dkt. No. 33, at 17). Ms. Bass's complaint does not state a clear intention to plead individual capacity claims and thus names the individual defendants in their official capacities only. See Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). Moreover, Ms. Bass named Dr. Johnson as "Carl [sic] Johnson (or his predecessor in office)" (Dkt. No. 31, ¶ 9). Ms. Bass claims in her response to defendants' motion to dismiss that any official-capacity liability, if present, would lie with Dr. Johnson's successor. However, she asserts that individual liability remains with Dr. Johnson and states that she will move to amend her pleadings to state claims against all defendants in their individual capacities. To date, she has not made such a request to amend through a formal motion, and defendants indicated in their reply that they oppose such an amendment. The Court recognizes official capacity claims against those currently holding the positions of Chancellor of the University of Arkansas - Pine Bluff and the Coordinator of Student Affairs of the University of Arkansas - Pine Bluff. The Court finds that Ms. Bass has not pleaded individual capacity claims against any named defendant.
Rule 25(d) of the Federal Rules of Civil Procedure provides that, when a public officer who is a party to an action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer's successor is automatically substituted as a party. The Court may order substitution at any time, but the absence of such an order does not affect the substitution. Id. The Court takes judicial notice that Dr. Laurence B. Alexander is UAPB's current Chancellor. Dr. Alexander is automatically substituted for Dr. Johnson pursuant to Rule 25(d). Because Ms. Bass has not pleaded any individual capacity claims against Dr. Johnson, Dr. Johnson is no longer a party to this action. Accordingly, defendants' motion to dismiss as to Dr. Johnson is granted consistent with this Order.
The advisory committee's notes to Rule 25 provide in part:
Where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to seek voluntary dismissal of the action, or as defendant to seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment or decree.
Fed. R. Civ. P. 25 advisory committee's note to 1961 amendments. See also Tara Enters. v. Humble, 622 F.2d 400, 401-02 (8th Cir. 1980). Defendants do not address Rule 25(d) or whether Ms. Bass may seek to assert against Dr. Alexander claims based on Dr. Johnson's alleged conduct. The parties may address this issue by separate motion.
IV. Federal Claims.
A. 42 U.S.C. §§ 1981 ...