United States District Court, E.D. Arkansas, Western Division
KAREN R. CUMMINS, Plaintiff,
ARKANSAS STATE HIGHWAY & TRANSPORTATION DEPARTMENT, Defendant.
OPINION AND ORDER
WEBBER WRIGHT UNITED STATES DISTRICT JUDGE.
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.
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).
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.
following facts are undisputed. 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. 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.
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.
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.
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
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.
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.
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.
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. 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 ...