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Cummins v. Arkansas State Highway & Transportation Department

United States District Court, E.D. Arkansas, Western Division

September 7, 2016

KAREN R. CUMMINS, Plaintiff,



         Plaintiff Karen R. Cummins (“Cummins”) brings this employment discrimination action against her former employer, the Arkansas State Highway and Transportation Department (“AHTD”). Plaintiff Cummins charges that the AHTD discriminated against her on the basis of gender in violation of 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. Now before the Court is the AHTD's motion for summary judgment, Cummins's response in opposition, and the AHTD's reply. After careful consideration, and for the reasons that follow, the Court finds the AHTD's motion should be granted.


         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As a prerequisite to summary judgment, a moving party must demonstrate “an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         The non-moving party may not rest on mere allegations or denials of his peading but must “come forward with ‘specific facts showing a genuine issue for trial.'” Id. at 587 (quoting Fed.R.Civ.P. 56(e)). “[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party.” RSBA Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).


         The following facts are undisputed.[1] Plaintiff Cummins began working for the AHTD on September 20, 2001. On May 16, 2003, Cummins received a five-day leave without pay for failure to report to job site as shown on payroll, falsifying department records, dereliction of duty, and non-compliance with policy. According to AHTD exhibits, on January 7, 2009, Cummins received a two-day leave without pay for using unauthorized leave without pay, habitual tardiness, misuse of AHTD time and equipment.[2] On October 10, 2011, Cummins received a written warning discipline for lack of regard for and continued non-compliance with policy, misuse of AHTD time and equipment, not following the proper procedure for travel approval, and not reporting accurate information on a travel log form. She was informed then that failure to comply with policy, procedure or directives would result in further disciplinary action, up to and including termination.

         During the relevant time period, Cummins was working as a Realty Appraiser III in the Appraisal Section of the Right of Way Division. At the time of her termination, Cummins reported directly to Section Head of Appraisals Steven Means (“Means”) who reported to Assistant Division Head of Right of Way James Braden (”Braden”) who reported to Division Head of Right of Way Perry Johnston (“Johnston”). Johnston reported to Assistant Chief Engineer Mike Fugett (“Fugett”). On April 10, 2014, Braden and Means interviewed Cummins for vacant Reviewing Appraiser positions. They scored interviewees based on points awarded for answers during interviews to pre-prepared questions. They awarded Cummins points for purportedly possessing an active appraisal licensing with the Arkansas Appraiser Licensing and Certification Board (“AALCB”), for being a member of the International Right of Way Association (“IRWA”), a professional appraiser society, and for being approximately 20 hours away from obtaining a college degree with a double major. After completing the interviews, Braden and Means sought to confirm whether the applicants were in fact members of a professional society or had an active appraisal licensing. Mr. Braden looked on the IRWA website showing a list of active members and did not find Cummins' name. He contacted the local chapter education chairman who confirmed that there was no record of Cummins in the local records or on the website.

         Mr. Means checked with the AALCB to confirm that all candidates who claimed they held any active appraisal licensing did, in fact, have appraisal licensing. He emailed the AALCB, asking whether Cummins was registered with the AALCB at any level, stating he had been unable to find her on the appraiser roster. The AALCB confirmed that Cummins' registration had expired on December 31, 2013. In a memo dated April 25, 2014, Braden and Means analyzed the various applicants and explained why the successful applicants were chosen. Plaintiff Cummins was the lowest ranked candidate, and she was not selected for either of the two positions. She agrees that the two most qualified applicants were chosen.

         On May 7, 2014, the education chairman of the IRWA e-mailed Braden informing him that the IRWA headquarters had advised him that Cummins was a non-member and had “never actually joined the association.” Mr. Braden provided this information to Hickman and Johnston by email. On May 7, 2014, Johnston, Braden, Means, and Hickman met with Cummins regarding her interview responses. Ms. Hickman says Cummins would not give a yes or no answer to their question of whether she had a state registration with the AALCB. Instead, according to Hickman, Cummins said she thought she was registered and told a story about how she received a notice of renewal from the AALCB, recited the renewal process, and the expiration date of December 31, 2013, for her registration. Plaintiff Cummins denied she ever said her registration card had an expiration date of December 31, 2013. Ms. Hickman also asked Cummins about her membership in the IRWA. Because Cummins had not paid any membership dues, Hickman did not accept that Cummins was an IRWA member. Plaintiff Cummins says she explained that there are organizations in which one can be a member without paying dues.

         Plaintiff Cummins was given until May 8, 2014, to produce any information that would substantiate her assertions that she had an AALCB registration, was a member of the IRWA, and was about 20 hours away from completing a college degree at Arkansas Tech with a double major in business administration and marketing. She was asked to provide any documentation pertaining to her registration with the AALCB and IRWA membership as well as her college transcript.

         On May 8, Cummins submitted a college transcript which indicated she had completed 76 hours of college credit, which was 50 hours short of the number of hours needed to complete a college degree. She presented a copy of a letter from AALCB dated June 27, 2013. The letter indicated that a peel-off plastic membership card had been attached to the original letter, and the copy of the letter showed a membership card that had a blank in the space above the words “Expiration Date.” In the body of the letter, the AALCB stated the card had June 14, 2014, expiration date.

         Messrs. Means and Braden attempted to verify the document Cummins provided on May 8, 2014, relating to the AALCB. Mr. Braden emailed the AALCB, attached the June 27, 2013 letter and the card that had a blank where the expiration date should have been listed which had been provided by Cummins to the AHTD. On May 9, 2014, Means emailed the AALCB and forwarded Braden's unanswered e-mail. Mr. Means noted that Cummins provided a copy of the card, not the original. He asked whether there was any reason why the card would not have had an expiration date on it and whether there was anything on the documents that the AALCB could not explain.

         On May 9, 2014, the AALCB provided to Means a copy of the documents it says it sent to Cummins. One was a formal letter dated June 27, 2013, which stated that Cummins met the requirements for state registration, that the registration was valid through her expiration date of December 31, 2013, and that an identifying pocket card was enclosed.[3] The other was a document entitled “Licensed and Certified Appraiser Renewal Receipt & Identification Card” dated June 27, 2013. In the body of the document it says: “Attached is a new identification card with a June 30, 2014 expiration date.” At the bottom of the document is an identification card that shows an expiration date of December 31, 2013. The AALCB acknowledged in a ...

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