United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
KRISTINE G. BAKER, District Judge.
Plaintiff Robert Wilson alleges claims of race discrimination and retaliation for having opposed unlawful discriminatory practices against defendants, the Arkansas State Highway and Transportation Department ("HTD"); Scott Bennett, individually and officially as the Director of the Arkansas State Highway and Transportation Department; the Arkansas State Highway Commission; and R. Madison Murphy, John Ed Regenold, John Burkhalter, Tom Schueck, and Dick Trammel, individually and officially as members of the Arkansas State Highway Commission ("Commission"). Mr. Wilson brings his claims pursuant to 42 U.S.C. § 2000e et seq. ("Title VII"), the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983. He also asserts a claim for declaratory judgment pursuant to 28 U.S.C. § 2201 and a supplemental state law claim for breach of contract. Before the Court is defendants' motion for summary judgment (Dkt. No. 25), to which Mr. Wilson has responded (Dkt. No. 35). Defendants have replied to Mr. Wilson's response (Dkt. No. 42).
For the following reasons, the Court grants defendants' motion for summary judgment (Dkt. No. 25) over Mr. Wilson's claims of race discrimination and retaliation. The Court dismisses without prejudice Mr. Wilson's supplemental state law claim for breach of contract.
I. Factual Background
Mr. Wilson received his license to practice law in the state of Arkansas in 1977. HTD hired Mr. Wilson in its Legal Division on July 1, 1977, and appointed Mr. Wilson Chief Legal Counsel in 1988. As Chief Legal Counsel, Mr. Wilson supervised a staff of 20 to 25 employees. Mr. Wilson's job description provided that he was responsible for the "administration and advisement of legal procedures to the Division, Commissioners, and all others needs [sic] of management with the Department to assure effective compliance with Department policy, procedure, and with federal and state laws, in the overall operations of the Department" (Dkt. No. 36, ¶ 4).
Defendants state that "[a]ccording to Plaintiff Wilson he was the Chief Counsel for the Arkansas Highway Commission" (Dkt. No. 36, ¶ 5). Mr. Wilson denies this. Mr. Wilson states that his role was to give legal advice to the Commission, as well as HTD, but that there were times when he and his department were ignored. Mr. Wilson contends that people would bypass the Legal Division and that, "[a]lthough [he] theoretically was responsible for the legal matters of HTD, there were a number of people who worked around the legal department" ( Id. ).
Mr. Wilson contends that there were many documents that should have gone through the Legal Division for an opinion but did not. He also maintains that there were instances where the engineers pretended to be lawyers by going to commission meetings and giving legal opinions. Mr. Wilson states that, although the Equal Employment Opportunity ("EEO") Division had been transferred to the Legal Division, there were instances when Ralph Hall, the Assistant to the Director, and Crystal Woods, the Division Head of Human Resources, interfered with the decisions being made by the Legal Division. Mr. Wilson contends that Mr. Hall and Ms. Woods changed the recommendations of the Legal Division about certain EEO matters involving complaints made by African Americans.
Defendants also state that "according to Plaintiff Wilson, if the Commission received erroneous legal advice it was [his] neck on the line'" ( Id., ¶ 6). Mr. Wilson denies this, contending that HTD ignored his advice on various legal issues. Mr. Wilson states that former Director of HTD Dan Flowers criticized Mr. Wilson when he advised that a number of cases should be taken to trial or when he disagreed on the settlement amount for a case. Mr. Wilson states that he recommended that HTD settle race discrimination claims filed by two African American employees, "much to the chagrin of the administration, particularly Ralph Hall" ( Id. ).
Sometime during the 1990's, Mr. Wilson considered three different models of allowing employees of the Legal Division to take time off and eventually settled on a plan that allowed employees to take every third Friday off with pay. Mr. Wilson states that he was advised by Director Flowers and Jane Wilson, the then Division Head for Human Services at HTD, to "stop counting minutes" of the employee lawyers who worked under Mr. Wilson (Dkt. No. 36, ¶ 7). Some of these employees complained that Mr. Wilson was too harsh on them about coming in a few minutes late for work. Mr. Wilson states that Director Flowers and Ms. Wilson met with Mr. Wilson and advised him to come up with a plan to allow his employees to take time off. Following this meeting, Mr. Wilson states that he implemented a plan to allow his employees to take off half a day, every other Friday. Mr. Wilson divided his employees into three groups. Mr. Wilson contends that "[t]his plan was given the blessing of Dan Flowers and Ms. Wilson" ( Id. ). Mr. Wilson states that once he implemented the plan, he noticed that employee morale improved and productivity picked up.
Defendants assert that, since at least as early as 1993, in addition to the time off allowed on the rotating Friday afternoons, employees of the Legal Division had been allowed to take up to two hours off with pay to go to doctor appointments or to run personal errands without designating the time as leave time. Mr. Wilson denies this, stating that although employees in the Legal Division were allowed to take time off for up to two hours to take care of personal errands, the employees typically would wait until their third Friday afternoon to take off and to take care of personal errands ( Id., ¶ 8). Mr. Wilson also states that he did not implement this two hour window but that his predecessor had implemented it.
Sometime in June or July 2010, Larry Dickerson, HTD's Chief Financial Officer and Division Head of Fiscal Services, reported to Mr. Hall specific information that he had discovered regarding the time-keeping practices of the Legal Division. Defendants state that Mr. Dickerson began researching the Legal Division's leave practices and was aware of the "rumors" that the Legal Division allowed employees to take time off in a fashion not authorized by HTD's policies. Mr. Wilson denies this (Dkt. No. 36, ¶ 10). Mr. Wilson states that the leave practices he implemented were known throughout HTD and that several management officials knew about his leave practices. Mr. Wilson contends that Director Scott Bennett was aware of the leave practices as early as 2000. Prior to becoming the Acting Director and eventual Director of HTD after the retirement of Director Flowers, Director Bennett served HTD as the Assistant Chief Engineer Planning (Dkt. No. 25-10, ¶¶ 3-5). Director Bennett has worked for HTD since 1989.
Defendants state that Mr. Dickerson made inquiries of other support staff of HTD regarding Mr. Wilson's legal assistant Kimberly Jewell. Defendants assert that Mr. Dickerson made inquiries about the days Ms. Jewell was absent and began comparing her time records with the days she was off. Mr. Dickerson observed a pattern that Ms. Jewell was off every third Friday and noted that her time records indicated she was at work on the afternoons in which she was off. Mr. Wilson denies this, stating that he instructed Ms. Jewell to record the leave as "administrative leave" (Dkt. No. 36, ¶ 11). Mr. Wilson asserts that "[t]he evidence revealed that a Caucasian employee by the name of Ms. Woods, who is the Division Head for Human Resources, allowed employees to take time off that was unearned, based on a trivia game, if they corrected the correct answer [sic]" ( Id. ). Mr. Wilson alleges that defendants defended Ms. Woods's practice by contending that Ms. Woods coded the unearned leave as "admin leave" ( Id. ).
Mr. Wilson states that defendants stopped this practice once he was terminated. He also claims that defendants "take the position that although the leave may be unearned, as long as the leave is recorded as administrative leave, ' this somehow makes it proper to allow an employee to take off, with pay, despite not having earned the leave" (Dkt. No. 36, ¶ 11). Mr. Wilson contends that Judy Robertson, the Chief Auditor of HTD, initially took the position that if the leave is coded as "administrative leave, " this would somehow make unearned leave permissible from a management standpoint, but that Ms. Robertson changed her position by later stating that no matter how it is coded, if the leave is not earned, and the employee is granted leave with pay, it is improper ( Id. ).
Defendants contend that Mr. Dickerson made Mr. Hall, Ms. Woods, and Director Flowers aware of his findings. Mr. Wilson disputes this, claiming that Director Flowers was well aware of the fact that Mr. Wilson allowed his employees to take time off and that Frank Vozel, the Chief Engineer, Deputy Director, and second-in-command at HTD, also was aware of this practice long before 2010 ( Id., ¶ 12). Mr. Wilson states that most of the employees who worked in the administrative offices of HTD were aware of the practice and that defendants' response to Mr. Wilson's interrogatories and requests for production of documents indicated that Mr. Hall was one of several management officials who knew about Mr. Wilson's leave practice as early as 2007.
Defendants also assert that sometime during August 2010, Mr. Dickerson and Mr. Hall made Ms. Robertson aware of their findings. Mr. Wilson disputes this, stating that Mr. Hall called the "Fraud Hotline" and made a report to Ms. Robertson that Mr. Wilson was allowing his employees to take a half day off every other Friday. Director Flowers requested that Ms. Robertson review the compensatory time practices throughout the Legal Division and in other divisions of HTD. On or about November 10, 2010, Ms. Robertson completed and presented her review of the compensatory time practices of the Legal Division to Director Flowers and Mr. Vozel.
Defendants state that Ms. Robertson's review of timesheets in the Legal Division revealed that the Friday half-day off given to the employees was reported on timesheets as time worked. Defendants also state that HTD Form 419-138 timesheets read, "I hereby certify that the total worked for the date is true and correct, and a knowledge [sic] that providing false information may be grounds for immediate dismissal" (Dkt. No. 36, ¶ 15). Defendants provide Ms. Robertson's internal audit report as an exhibit. This report states that "Internal Audit was informed that the Certification Statement was deleted from AHTD Form 10-138 at Chief Counsel Robert Wilson's direction at the time when support personnel were classified as non exempt and began completing timesheets in June of 2007" (Dkt. No. 25-6, at 3). Ms. Robertson's report also states that certain timesheets "had the Employee Certification Statement covered with white out" ( Id. ). Defendants also attach the results of the Williams & Anderson investigation, which states that Kimberly Jewell, an Office Administrative Assistant in the Legal Division, informed the investigation that Mr. Wilson "directed Ms. Jewell to delete the certification statement from the time sheets" and that certain certification statements "had been whited out'" (Dkt. No. 25-9, at 11). Williams & Anderson's report also included a May 23, 2006, email from Ms. Jewell to certain employees in the Legal Division notifying these employees of Mr. Wilson's directive to delete the certification statement ( Id., at 11, 108).
Mr. Wilson disputes these contentions (Dkt. No. 36, ¶15). Mr. Wilson states that Ms. Robertson has been the Chief Auditor of HTD since November 30, 2009, and that she started her work at HTD in 1995. Mr. Wilson contends that the Audit Division conducts an audit of all divisions, including the Legal Division, at least once every two years. When conducting audits, the Audit Division looks at Code of Ethics Policy Reaffirmation, expenditures, payroll, minor fixed assets, and major fixed assets. The Audit Division also looks at timesheets and time records.
Mr. Wilson states that the last two audits of the Legal Division were conducted in 2008 and 2009 and that audit reports indicate that the Audit Division reviewed timesheets from August 2008 until August 2009. Mr. Wilson contends that, in conducting the audits and in looking at the timesheets, the Audit Division makes sure that the timesheets are filled out in compliance with the policies and procedures of HTD. The Audit Division also checks to ensure that the timesheets are signed by the employee and that the timesheets contain a statement by the employee that the information contained therein is true and accurate. Ms. Robertson testified that she is familiar with the fact that HTD's timesheets should have a verification on them. The Audit Reports of the Legal Division for 2008 and 2009 indicated that there were "no reportable findings" (Dkt. Nos. 36, ¶ 15; 36-2, at 24). Ms. Robertson testified in a deposition that the 2008 and 2009 audits included only "verbal findings, " which she affirmed were only "minor things that need to be taken care of" (Dkt. No. 36-2, at 26). Ms. Robertson also testified that there were no findings and recommendations included in the 2008 and 2009 audit reports and that the leave activity was properly recorded and approved ( Id. at 30).
Mr. Wilson states that his plan of allowing his employees to take time off every third Friday was completed at the direction of Director Flowers and Ms. Wilson as early as 1992 or 1993. Mr. Wilson states that, despite the fact that this policy had been in place that early and despite the fact that the Audit Division conducts audits at least once every two years, there was never an audit report that found certifications had been removed from timesheets or time records. Mr. Wilson states that he neither directed that the certifications be removed from the timesheets nor directed that the certifications be whited out. Mr. Wilson contends that he directed that the time off be coded as "admin leave" (Dkt. No. 36, ¶ 15).
Defendants state that, although Director Flowers, Mr. Hall, and Ms. Woods had varying degrees of knowledge of the Legal Division's irregular leave practices, none of these individuals had knowledge that the time off was being recorded as time worked. Defendants also assert that none of them had knowledge that the certification statement had been deleted from timesheets. Mr. Wilson denies this, stating that Director Flowers was the one who directed him to develop a plan to allow the legal staff time off and that Director Flowers testified that what Mr. Wilson was doing was consistent with what he had been instructed to do in the early 1990s ( Id., ¶ 16; Dkt. No. 36-2, at 60-61).
On or about April 9, 2011, HTD engaged the law firm of Williams & Anderson, PLC to conduct an independent review of the investigation of HTD's internal Audit Division regarding certain leave and timekeeper practices of HTD's Legal Division. Defendants state that the Commission requested, directly of Mr. Wilson and also through Mr. Wilson's counsel, that Mr. Wilson interview with and provide information to attorneys from William & Anderson who were conducting the investigation. Defendants contend that Mr. Wilson agreed to speak with those attorneys on several occasions only to renege on his commitment and refuse to talk to them. Mr. Wilson disputes this, claiming that he agreed to meet with Phil Kaplan, an attorney with Williams & Anderson, but that during the meeting, Mr. Kaplan became belligerent, accusatory, and abusive (Dkt. No. 36, ¶18). Mr. Wilson alleges that he asked Mr. Kaplan if the investigation involved something that could cause Mr. Wilson to go to jail and that Mr. Kaplan responded "yes" ( Id. ). Mr. Wilson also states that during that meeting he requested his Garrity Warnings, but that Mr. Kaplan was not familiar with Garrity Warnings. Mr. Wilson states that at that point he decided to employ legal counsel.
On September 9, 2011, the Commission and HTD were summoned to appear before the Legislative Joint Auditing Committee at the Arkansas General Assembly. Defendants state that Commission Chairman and defendant Madison Murphy directed Mr. Wilson to meet with Commissioner Murphy and Director Bennett on the afternoon of September 7, 2011, at the HTD offices in order to prepare for testimony before the Joint Legislative Auditing Committee on September 9, 2011. Mr. Wilson denies that he was ever "directed" to meet with Commissioner Murphy and Director Bennett. Mr. Wilson states that "there was no need to meet with Mr. Murphy or Mr. Bennett, because they would not have listened to Mr. Wilson's advice anyway" ( Id. at ¶ 19). Mr. Wilson testified before the Legislative Joint Auditing Committee. Defendants state that Mr. Wilson left the HTD offices without meeting with Commissioner Murphy and Director Bennett and that Mr. Wilson explained to Commissioner Murphy that he forgot about the meeting.
Defendants contend that Mr. Wilson failed to cooperate with the Commission and the HTD Director in preparation for the September 9, 2011, meeting before the Legislative Joint Auditing Committee at the Arkansas State Legislature. Mr. Wilson disputes this, stating that he cooperated with the investigation (Dkt. No. 36, ¶ 21). Mr. Wilson asserts that during the internal audit conducted by Ms. Robertson's team, he met with and spoke to the auditors. Mr. Wilson states that, in response to the internal audit conducted during 2010, he wrote a memorandum to Director Flowers, explaining his position in reference to the internal audit. Mr. Wilson states that he was interviewed by members of the internal audit team and that he gave his response to the internal audit report. Mr. Wilson also claims that he tried to explain his position before the Legislative Joint Auditing Committee, "which was a political lynching for the plaintiff" ( Id. ). Mr. Wilson contends that there was really nothing else for him to tell Mr. Kaplan, especially after Mr. Wilson was advised that he could go to jail. Mr. Wilson also states that the Legislative Joint Audit Report indicated that the information was being turned over to the prosecuting attorney for possible charges to be filed against him.
Defendants contend that, during the September 9, 2011, Legislative Joint Auditing Committee meeting, Mr. Wilson agreed to speak with lawyers from Williams & Anderson for that firm's investigation but later that day, during an executive session of the Commission, Mr. Wilson again refused to meet with investigators from Williams & Anderson. Mr. Wilson disputes this, claiming that, since he was not provided his Garrity Warnings, he stopped talking ( Id., ¶ 22).
Defendants state that the report from Williams & Anderson confirmed many of the allegations of the Legislative Joint Auditing Committee and contained statements by employees within the Legal Division alleging that Mr. Wilson had authorized and/or personally directed the falsification of time records of Legal Division employees. Mr. Wilson states that there was no evidence that he directed anyone to falsify any documents and that he was instructed by Mr. Flowers and Ms. Wilson to implement the plan allowing Legal Division employees to take time off.
Defendants also assert that the Commission voted to place Mr. Wilson on administrative leave with pay on September 9, 2011, due to his failure to cooperate in preparation for the Legislative Joint Auditing Committee meeting and for his continued refusal to cooperate with the investigation into the time keeping practices in the Legal Division by refusing to speak with the investigators from Williams & Anderson. Mr. Wilson disputes this, claiming that he was placed on administrative leave and ultimately terminated due to his race and due to having opposed discriminatory treatment. Mr. Wilson states that he was the only African American Division head within the HTD, besides Emmanual Banks.
Mr. Wilson states that the evidence reveals that there are Caucasian division heads who also allowed their employees to take time off that had not been earned. Mr. Wilson claims that Ms. Woods, who has been the Division Head of Human Resources since 2004, played a trivia game with her employees and if they answered a question right, employees were rewarded with two to four hours off of work. Mr. Wilson states that Ms. Woods is responsible for the personnel manual; the reviewing of hiring, firing, and demotion decisions; and has approximately 30 employees on her staff. Ms. Woods and the Assistant Head of Human Resources, Pam Hickman, are Caucasian. Ms. Woods testified in her deposition that on the day before some holidays she allowed employees to take time off for guessing answers to trivia questions and that this practice began under her predecessor, Melba Shepard, who left in 2000 (Dkt. No. 36-3, at 19-20). After Ms. Shepard left, Calvin Gibson was the division head for a few months before Ms. Woods was in charge of the Human Resources Division. Ms. Woods was not given the title of "division head" until 2004.
Mr. Wilson states that Ms. Woods said she also allowed a few employees to leave early the day before a holiday, which was not based on a game, and that a "few employees" could mean as many as 12 employees leaving early (Dkt. No. 36, ¶ 24). Ms. Woods stated that when she "became aware of what all was going on and how concerned the auditors were, " she had "a conversation and [she] said that [her division] won't be playing the game anymore" (Dkt. No. 36-3, at 21). Ms. Woods stated that she did not know if an auditor or if Mr. Hall expressed concern over her practices. Mr. Wilson states that Ms. Woods discussed her leave practices with Mr. Hall during the summer of 2010, when the internal audit about Mr. Wilson's practices was released (Dkt. No. 36, ¶ 24). Mr. Wilson states that, although Mr. Hall informed Ms. Robertson about Mr. Wilson's practice of allowing employees to take time off that had not been earned, Mr. Hall did not tell Ms. Robertson about Ms. Woods's ...