United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BOOKS UNITED STATES DISTRICT JUDGE
pending before the Court are a Motion to Dismiss (Doc. 18)
and Brief in Support (Doc. 19), and Amended Motion to Dismiss
(Doc. 22), all filed by Defendant Arkansas State University
("ASU"), as well as a Motion to Dismiss Party (Doc.
21), filed by separate Defendant Lynda Nash, who is an
employee of ASU. Plaintiff Kelly Jenkins, representing
herself pro se, did not file a written response to
any of the Motions. In addition, Ms. Jenkins failed to
participate in the Joint Rule 26(f) Conference with opposing
counsel, and also failed to attend the Rule 16 Case
Management Hearing held on May 15, 2017. Accordingly, and for
the reasons explained herein, the Court finds alternate bases
for dismissing this case. First, the Motion to Dismiss (Doc.
18) and Amended Motion to Dismiss (Doc. 22), both filed by
ASU, should be GRANTED; and the Motion to Dismiss Party (Doc.
21) should also be GRANTED. In the alternative, the case
should be DISMISSED under Federal Rule of Civil Procedure
41(b)(2), due to Plaintiffs failure to prosecute this case
and to comply with the rules and orders of the Court.
all relevant time periods in this case, Ms. Jenkins was an
employee of ASU, which is located in Jonesboro, Arkansas. In
early 2014, Ms. Jenkins and her supervisor, Defendant Lynda
Nash, whom Ms. Jenkins describes in the Complaint as
Director/Program Manager of the Beck PRIDE Center, were both
interviewed by a reporter for the local newspaper, the
Jonesboro Sun. That interview resulted in an article
that was featured in a special section of the paper called
"Women Who Lead, " published on March 2, 2014. The
story about Ms. Jenkins was called "Well-rounded
McCoy"" Serves Student Veterans." The
Complaint is very short on facts and does not say much about
the article, nor does it attach the article as an exhibit.
The Court is able to glean, however, that the crux of the
Complaint is that Ms. Nash violated Ms. Jenkins' privacy
rights when she revealed to the newspaper reporter-in what
otherwise appears to be an article praising Ms. Jenkins'
job performance-that Ms. Jenkins has "severe
ADHD"-or Attention Deficit Hyperactivity Disorder. (Doc.
1, p. 4). Ms. Jenkins contends that ADHD is a disability, and
that fact should not have been disclosed by Ms. Nash, nor
should her condition have been described as
"severe." Id. In addition, Ms. Jenkins
maintains-without providing many supporting facts-that
sometime after the newspaper article was published, she was
subjected to unlawful discrimination, harassment, and
retaliation by her employer due to her alleged disability.
ultimately filed charges of disability discrimination,
harassment, and retaliation under the Americans with
Disabilities Act ("ADA") with the Equal Employment
Opportunity Commission ("EEOC") on September 22,
2016 (Doc. 1-1). She admits that ASU had previously informed
herby letter that her position would be ending effective June
30, 2016, "due to funding." Id. at 4.
However, she states in her EEOC charges that the last act of
alleged discrimination/retaliation she experienced on the job
occurred on October 22, 2015. Id. The Complaint does
not specify whether she voluntarily resigned or was
terminated on or after October 22, 2015. In any event, the
EEOC charging documents make clear that she filed her
administrative claim approximately eleven months after the
last act of discrimination/retaliation occurred.
EEOC denied her disability-based claims due to untimely
filing. Id. at 1. She then filed this lawsuit on
December 21, 2016, and was granted leave to proceed in
forma pauperis. On December 22, 2016, the Honorable Erin
L. Wiedemann,  United States Magistrate Judge for
the Western District of Arkansas, directed that service of
process be effected on the sole Defendant, ASU. A summons was
issued, and the United States Marshal proceeded to serve ASU;
however, just before the summons and Complaint were served,
Ms. Nash filed an Amended Complaint (Doc. 6) on January 4,
2017. The Amended Complaint was identical to the original
Complaint, except that it identified two new Defendants: Ms.
Nash and Dr. Susan Hanrahan, who is described in the Amended
Complaint as Dean of the College of Nursing & Health
January 9, 2017, ASU was served with the original Complaint.
See Doc. 7. At this point, the Court had not yet
ordered the Marshal to serve the Amended Complaint, as the
Court had not conducted its initial screening pursuant to the
in forma pauperis statute at 28 U.S.C. §
1915(e)(2). On January 30, 2017, ASU filed a Motion to
Dismiss the original Complaint (Doc. 9), and on February 13,
2017, the Court issued its Order regarding service of the
Amended Complaint, see Doc. 13, explaining that the
only proper Defendants were ASU and Ms. Nash, and that Dr.
Hanrahan would be dismissed. As for the claims against ASU
and Ms. Nash, the Court read the Amended Complaint liberally
and construed claims against ASU for violations of the ADA
and the Arkansas Civil Rights Act ("ACRA"),
state-law claims for defamation and invasion of privacy
against Ms. Nash, in her individual capacity. Id.
The Court directed the Marshal to serve the Amended Complaint
to those two Defendants only, and found as moot ASU's
Motion to Dismiss the original Complaint. See
text-only Order of March 14, 2017.
March 14, 2017, ASU filed a Motion to Dismiss the Amended
Complaint (Doc. 18) and Brief in Support (Doc. 19). Ms.
Jenkins did not file a response. Then, on May 2, 2017, Ms.
Nash filed a Motion to Dismiss (Doc. 21), and ASU filed an
Amendment (Doc. 22) to its Motion to Dismiss. Again, Ms.
Jenkins did not file a response. Going back a bit, in early
April of 2017, Ms. Jenkins had failed to cooperate with
ASU's counsel and participate in a Joint Rule 26(f)
conference and submit a Joint Rule 26(f) Report to the Court,
though she had been ordered to do so. See Unilateral
Report submitted by ASU (Doc. 20, p. 1); Amended Initial
Scheduling Order (Doc. 15, pp. 2-3) (directing the parties to
jointly conduct a Rule 26(f) Conference and prepare and file
a joint report). Finally, as previously noted, Ms. Jenkins
failed to appear for the Court's Case Management Hearing,
which had been set since February 17, 2017.
to the substance of ASU's Motion to Dismiss (Doc. 19),
ASU makes two arguments regarding Ms. Jenkins' ADA
claims. The first argument is that she waited too long to
file her charges of disability-based discrimination and
retaliation with the EEOC, and never provided any reason to
the Court why the 180-day filing deadline should be tolled.
ASU's second argument is that the doctrine of sovereign
immunity, made pursuant to the Eleventh Amendment of the
United States Constitution, bars Ms. Jenkins' ADA claims
in their entirety. With respect to the ACRA claims, ASU
believes it is entitled to immunity under the Arkansas
Constitution, and further, that the claims are barred under
the statute's one-year limitations period. Finally, ASU
contends that the case against it should be dismissed because
venue is more properly laid in the Eastern District of
Arkansas. The ADA provides that venue is proper in the
judicial district where the alleged unlawful employment
practice was committed, where the employment records were
maintained and administered, or where the aggrieved person
would have worked, but for the alleged unlawful employment
practice. 42 U.S.C. § 2000e-5(f)(3). ASU argues that the
Eastern District of Arkansas, Jonesboro Division, where ASU
is located, is the only place where Ms. Jenkins' claims
may be brought.
Ms. Nash's Motion to Dismiss (Doc. 21), she asserts the
same venue argument as appears in ASU's Motion. She also
maintains that there is a one-year statute of limitations for
both defamation and invasion of privacy claims, so both of
these claims are time-barred. Lastly, she argues that there
are insufficient facts in the Amended Complaint to state
plausible claims for defamation and invasion of privacy. In
particular, Ms. Nash states that she is not sure what
statement she made to the press that is defamatory in nature
and/or invaded Ms. Jenkins' privacy.
survive a motion to dismiss, a pleading 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).
The purpose of this requirement Is to "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)). The Court must
accept all of a complaint's factual allegations as true,
and construe them In the light most favorable to the
plaintiff, drawing all reasonable Inferences In the
plaintiffs favor. See Ashley Cnty., Ark. V. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
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 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. "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. In other words,
while "the pleading standard that Rule 8 announces does
not require 'detailed factual allegations, ' ... it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.