United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
Williams-Raynor commenced this action against the Arkansas
Department of Health and Abby Holt, Lynda Lehing, and Susan
Wiley, in their individual and official capacities, alleging
employment discrimination and retaliation. She seeks relief
under Title VII, 42 U.S.C. § 1981, 42 U.S.C. §
1983, and the Equal Protection Clause of the Fourteenth
Amendment. Williams-Raynor alleges that she was discriminated
against because of her race and that she was discharged for
complaining of disparate treatment. She seeks injunctive
relief, in addition to money damages. The defendants have
filed a motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6). For the following reasons, the
motion to dismiss is granted in part and denied in part.
following facts are taken from the amended complaint.
Document #12. Williams-Raynor worked at the University of
Arkansas for Medical Sciences from 1988 through 2016,
starting as a records clerk and after various promotions,
finishing as the Cancer Registry Supervisor/Director. She
began working for the Health Department in the Health
Statistics Division on January 31, 2016. Her amended
complaint does not identify her position at the Health
Department, but the EEOC charge, which is attached to the
amended complaint, says that she was “a Health Program
Specialist III/Cancer Registry Supervisor.” Document
#12 at 16. Sometime in April of that year, Branch Chief Lynda
Lehing asked Williams-Raynor to evaluate an employee under
William-Raynor’s direct supervision who had been placed
on probation due to a poor performance review. This employee
was black. Lehing explained that the employee was a problem
and needed to go.
evaluated the employee’s progress pursuant to a
Performance Improvement Plan and found that the employee had
improved. But when she told Lehing and Abby
Holt-Section Chief-Director-the results of the
evaluation, they were dissatisfied. They sought a second
opinion from Quality Assurance Specialist John Guire. He
conducted another review of the employee on May 13 and found
that she had made no improvement. Lehing and Holt did not
meet with Williams-Raynor and Guire to discuss the opposing
evaluations. The employee was ultimately discharged on June
24. In the meantime, Williams-Raynor met with Lehing and
Holt. She voiced certain concerns: (1) Guire was supervising
a white employee who was supposed to be under
Williams-Raynor’s supervision; (2) The white employee
was treated differently from the black employees who remained
under Williams-Raynor’s supervision; and (3) Guire
should not have been directed to re-evaluate the black
after the meeting, Susan Wiley-Associate Director of
Management and Operation-stated to Williams-Raynor: “I
am making this short and sweet, you are not working out and
you are still on probation, therefore, we are terminating
your employment.” Document #12 at 10, ¶ 25. The
defendants did not provide reasons for the termination and
failed to follow the Health Department’s policy, which
requires the provision of a counseling statement to the
employee prior to termination. Williams-Raynor did not find
out until after her termination that three counseling
statements had been placed in her employee file.
Rule of Civil Procedure 12(b)(1) allows a party to move for
dismissal based upon a lack of subject matter jurisdiction.
To prevail on a motion to dismiss for lack of subject matter
jurisdiction, the challenging party must successfully attack
the complaint, either on its face or on the factual
truthfulness of its averments. Titus v. Sullivan, 4
F.3d 590, 593 (8th Cir. 1993); Osborn v. United
States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990).
“In a facial challenge to jurisdiction, all of the
factual allegations, as contained in the non-moving
party’s pleadings, which concern the jurisdictional
issue, are presumed to be true and, therefore, the non-moving
party receives the same protections that it would receive if
it were defending against a Motion to Dismiss under Rule
12(b)(6), Federal Rules of Civil Procedure.”
Hoeffner v. Univ. of Minnesota, 948 F. Supp. 1380,
1384 (D. Minn. 1996). If a plaintiff fails to allege an
element necessary for a finding of subject matter
jurisdiction, the complaint should be dismissed.
Titus, 4 F.3d at 593.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167
L. Ed. 2d 929 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.
Ed. 2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S. Ct. at 1965.
Swierkiewicz v. Sorema N.A., the Supreme Court held
that, in the employment discrimination context, a
plaintiff’s complaint does not need to allege specific
facts establishing a prima facie case of discrimination under
the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973) because a prima facie case under that
framework is an evidentiary standard. 534 U.S. 506, 508, 122
S. Ct. 992, 995, 2 L. Ed. 2d');">152 L. Ed. 2d 1 (2002). Instead, the Court
recited Rule 8(a), which provides that a complaint must
contain only a short and plain statement showing that the
pleader is entitled to relief. Id. (citing Fed. R.
Civ. P. 8(a)(2)). When Swierkiewicz was decided, the
Conley v. Gibson interpretation of Rule 8(a),
establishing a notice-pleading standard was good law.
Id. at 512, 122 S. Ct. at 998. The Court explained
that “this simplified notice pleading standard relies
on liberal discovery rules and summary judgment motions to
define disputed facts and issues and to dispose of
unmeritorious claims.” Id.
Twombly and Iqbal refined the Supreme
Court’s interpretation of Rule 8(a) and held that
plausibility is the pleading standard, whether
Swierkiewicz is still good law has been a matter of
debate. See Charles A. Sullivan, Plausibly
Pleading Emp’t. Discrimination, 52 Wm. & Mary
L. Rev. 1613, 1619-21 (2011). See also McCleary-Evans v.
Maryland Dept. of Transp., 780 F.3d 582, 587 (4th Cir.
2015) (“Swierkiewicz in any event applied a
more lenient pleading standard than the plausible-claim
standard now required by Twombly and
Iqbal.”); Littlejohn v. City of New
York, 795 F.3d 297, 309 (2nd Cir. 2015) (contemplating
whether the Iqbal requirements apply to Title VII
complaints); Tamayo v. Blagojevich, 526 F.3d 1074,
1084 (7th Cir. 2008) (holding that plaintiff’s
complaint included enough facts in support of a claim of
employment discrimination, stating that a plaintiff
“need only aver that the employer instituted a
(specified) adverse employment action against the plaintiff
on the basis of her sex[, race, etc.].”). Neither in
Twombly nor Iqbal did the Supreme Court
expressly overrule Swierkiewicz.
Eighth Circuit has relied on Swierkiewicz insofar as
it held that a plaintiff does not have to plead specific
facts establishing a prima facie case of discrimination under
the McDonnel Douglas burden-shifting framework.
See Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir.
2016) (applying the plausibility standard but acknowledging
that in Swierkiewicz “the Supreme Court
negated any need to plead a prima facie case in the
discrimination context.”). A recent Eighth Circuit
opinion suggests that a more lenient pleading standard
applies in the employment discrimination context. See
LaKeysia Wilson v. Ark. Dept. of Human Servs. 2017 WL
780869 at *3, __ F.3d (8th Cir. March 1, 2017). The court
explained that “[u]nder the ‘simplified notice
pleading standard’ that governs McDonnell
Douglas retaliation claims, summary judgment motions-not
motions to dismiss-should dispose of most unmeritorious
claims.” Id. The Eighth Circuit quoted
Johnson v. City of Shelby, a case in which the
Supreme Court cited Swierkiewicz approvingly, in
support of this proposition: “The provisions for
discovery are so flexible and the provisions for pretrial
procedure and summary judgment so effective, that attempted
surprise in federal practice is aborted very easily,
synthetic issues detected, and the gravamen of the dispute
brought frankly into the open for the inspection of the
court.” 135 S. Ct. 346, 347, 190 L. Ed. 2d 309 (2014)
defendants argue: (1) the Court does not have jurisdiction
over the section 1981 and 1983 official capacity claims
because they are barred by sovereign immunity; (2)
Williams-Raynor failed to file a charge of discrimination
alleging retaliation with the Equal Employment Opportunity
Commission; and (3) the complaint fails to allege a claim
upon which relief may be granted for race discrimination or
Eleventh Amendment states that “[t]he Judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. It has been interpreted to bar suits brought
against a State in federal courts by her own citizens, as
well as those of another State. Edelman v. Jordan,
415 U.S. 651, 662-63, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662
(1974). The Eleventh Amendment generally bars any suit
brought in federal court against a state, state agency, or
state officials acting in their official capacities. See
Seminole Tribe v. Florida, 517 U.S. 44, 74, 116 S. Ct.
1114, 1132, 134 L. Ed. 2d 252 (1996); Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.
Ct. 900, 908, 79 L. Ed. 2d 67 (1984); Edleman, 415
U.S. at 663, 94 S. Ct. at 1355. Suits against a state, state
agency, or state officials may be allowed under three
circumstances: (1) Congress may abrogate the States’
immunity; (2) a state may waive its immunity; or (3) under
the Ex parte Young doctrine, a plaintiff may file
suit against state officials acting in their official
capacities seeking prospective injunctive relief for ongoing
violations of federal law. Seminole Tribe, 517 U.S.
at 74, 116 S. Ct. at 1132.
does not contend that the State has consented to suit in
federal court or waived its immunity; rather, she contends
that the Ex parte Young exception ...