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Sampson v. City of Fort Smith

United States District Court, W.D. Arkansas, Fort Smith Division

June 8, 2017

WENDALL N. SAMPSON, JR. PLAINTIFF
v.
CITY OF FORT SMITH, ARKANSAS; CARL GEFFKEN; KEVIN LINDSEY; JARRARD COPELAND; LEVI RISLEY; MARK HALLUM; DEAN PITTS; ANTHONY BOWERS; DOUG BROOKS; DANIEL GRUBBS; AUSTIN COLLINS; and DAWN SPRAYBERRY DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE.

         Before the Court is Defendants' motion for summary judgment (Doc. 49), Plaintiff Wendall N. Sampson, Jr.'s response (Doc. 54), Defendants' reply (Doc. 56), and the parties' supporting documents. For the reasons set forth herein, Defendants' motion for summary judgment will be granted.

         I. Background[1]

         Officer Sampson is an African-American officer who has been employed by the Fort Smith Police Department since 1995. His career in the department consists of working first for four years in the patrol division; then in narcotics for several months, the criminal investigations division for eight years, and the community relations division for two years; then as an airport liaison for two years and an assistant communications center supervisor[2] for four years; and currently as the information desk officer. He holds the rank of corporal, which is an automatic promotion after an officer attains ten years of experience. (Doc. 54, p. 2).

         In his second amended complaint (Doc. 26), Officer Sampson asserts that each Defendant violated Title VII of the Civil Rights Act of 1964 by discriminating against him on the basis of his race and by retaliating against him for engaging in protected activity. In particular, Officer Sampson asserts that Defendants discriminated against him by investigating and disciplining him when white officers were not investigated for the same conduct, and by failing to promote him but promoting similarly- or less-qualified white officers. Officer Sampson also asserts that the investigations into him were retaliation for his general complaints about racial discrimination and harassment, and that he was subjected generally to harassment, suspension, and transfer on the basis of his general complaints and for filing an April 2013 internal grievance and an October 2013 discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Officer Sampson filed an EEOC charge on the basis of racial discrimination and retaliation in April 2015. In addition to his Title VII claims, Officer Sampson asserts claims under 42 U.S.C. § 1983 for Defendants' deprivation of Officer Sampson's 42 U.S.C. § 1981 rights[3] and for retaliation against him for his speech protected by the First Amendment. Finally, Officer Sampson brings a discrimination claim under the Arkansas Civil Rights Act (“ACRA”), Ark. Code § 16-123-101 et seq., based on the same damage to his employment and reputation.

         In 2015, the year Officer Sampson filed this lawsuit, the Fort Smith Police Department had 165 total officers. See http://www.fortsmithpd.org/Assets/2015AnnualReport.pdf, last accessed May 8, 2017. At that time and for approximately seven years prior, Officer Sampson was the sole African-American officer in the entire department. Officer Sampson alleges that he was only the tenth African-American officer hired by the department in its entire history, and that no African-American officer has been promoted since 1988. On the basis of 2012 and 2013 examination scores, he applied for promotion but was not chosen.[4]

         In April 2013, Officer Sampson filed a formal complaint against Sergeant Dawn Sprayberry with then-Chief Kevin Lindsey. In the formal complaint, Officer Sampson accused Sergeant Sprayberry of “harassment/creating a hostile work environment” and “vengeful retaliatory bullying” against Officer Sampson, CALEA Communications Accreditation Manager Rhonda Harper, and “other members of the department.” (Doc. 49-11, p. 15). The formal complaint listed a wide range of grievances against Sergeant Sprayberry stemming from the way in which she treated individuals in the department. It recalled Officer Sampson's previous duties as an assigned recruiter for minority officers and an incident in which an African-American applicant, Tiffany Johnson, who Officer Sampson stated was “#1 on our hire list before failing her final interview.” (Id. p. 18). Officer Sampson claimed Sergeant Sprayberry docked Ms. Johnson points because Ms. Johnson had expressed interest in joining the United States Marshal's Service. (Id.). The formal complaint also alleged that Sergeant Sprayberry “could possibly have manipulated the results” of Officer Sampson's oral presentation score as part of his 2012 promotional testing. (Id.). At no point did Officer Sampson's formal complaint mention race as a basis for Sergeant Sprayberry's objectionable actions, or ascribe them any basis other than her general disdain for others.

         On April 16, 2015, [5] Officer Sampson filed a charge of discrimination with the EEOC alleging racial discrimination or harassment. This charge was amended on May 28, 2015, after meeting with the EEOC investigator. On August 27, 2015, the EEOC issued a right to sue letter. Following the filing of the April 2013 formal complaint against Sergeant Sprayberry and the October 2013 EEOC discrimination charge, Officer Sampson claims that Defendants retaliated against him by unjustly making him the target of a number of internal investigations when, prior to the filing of his formal complaint against Sergeant Sprayberry in April of 2013, he had been the subject of only one sustained complaint during eighteen-plus years of employment by the department. Officer Sampson primarily bases his discrimination and retaliation claims on the internal investigations opened against him subsequently to his April 2013 formal complaint and October 2013 EEOC charge, and on Defendants' failure to promote him based on his 2012 and 2013 examination scores. Officer Sampson also alleges that he did not receive an increase in pay for his tenure as Assistant Communications Center Supervisor, even though one was allowed. (Id., ¶ 32).[6]

         As part of his failure to promote claim, Officer Sampson contends that he is qualified for a promotion and applied for a promotion to Sergeant based on his 2012 and 2013 examination scores, but that the department instead hired or promoted individuals who were not members of a protected group who were similarly qualified to or less qualified than Officer Sampson. The Fort Smith Police Department employs both an objective and subjective component to its promotional testing. Officers must take an objective multiple choice exam.[7] They then undergo an oral examination before five panelists, with both the top and the bottom scores given being discarded. The objective and subjective component scores are then combined, and each officer is ranked according to his or her overall performance. Under the “Rule of Three, ” when a position is open, the Chief of Police can select any of the three top-scoring candidates. In 2012, Officer Sampson ranked fourth out of twelve, with just 0.17 of one point separating him from the third-ranked scorer. In 2013, Officer Sampson also ranked fourth out of twelve, with one point separating him from the third-ranked scorer.

         Officer Sampson's § 1983 and ACRA claims allege that he was deprived of his reputation and employment without due process or equal protection as required by the Fourteenth Amendment, and that Defendants retaliated against him for making antidiscrimination complaints, violating his First Amendment rights.

         The Court previously dismissed without prejudice Officer Sampson's illegal exactions claim, declining to exercise supplemental jurisdiction over the unrelated state law claim. (Doc. 39). The claims against Separate Defendants Colby Roe and Wyman Wade were dismissed by the same order (Id.), and individual capacity claims against former City Administrator Ray Gosack were subsequently dismissed after no motion to substitute was filed within 90 days of the filing suggesting his death. (Doc. 47).

         Defendants filed the instant motion for summary judgment, arguing that each of Officer Sampson's claims fail under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). They argue that Officer Sampson has not made out a prima facie case for any of his claims, and that even if he had done so, the Defendants have provided legitimate reasons for each of their actions that Officer Sampson cannot prove as pretext. Defendants additionally argue that they are entitled to judgment based on qualified immunity, claim preclusion, statute of limitations grounds, and because Officer Sampson has not shown a custom or policy as part of his § 1983 claims.

         II. Legal Standard

         When a party moves for summary judgment, it must establish both the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). In order for there to be a genuine issue of material fact, the nonmoving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8thCir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Only facts “that might affect the outcome of the suit under the governing law” need be considered. Anderson, 477 U.S. at 248. “[T]he non-movant must make a sufficient showing on every essential element of its claim on which it bears the burden of proof.” Sch. Dist. of Kan. City, Mo., 265 F.3d at 658 (quotation omitted). Facts asserted by the nonmoving party “must be properly supported by the record, ” in which case those “facts and the inferences to be drawn from them [are viewed] in the light most favorable to the nonmoving party.” Id. at 656-57. These specific facts showing a genuine issue for trial are to be established by “citing to particular parts of materials in the record… or showing that the materials cited do not establish the absence or presence of a genuine dispute[.]” Fed.R.Civ.P. 56(c). “[A] lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate nor district courts are obliged in our adversary system to scour the record looking for factual disputes…” Greer v. Bd. of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001) (citation and internal quotations omitted). Ultimately, “[w]hile employment discrimination cases are often fact intensive and dependent on nuance in the workplace, they are not immune from summary judgment, and there is no separate summary judgment standard for employment discrimination cases.” Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010) (rejecting prior assertions that summary judgment should rarely be granted in employment discrimination cases).

         III. Discussion

         A. Applicable Law

         With the exception of his § 1983 First Amendment retaliation claim, [8] all of Officer Sampson's discrimination and retaliation claims will be analyzed under the burden-shifting McDonnell Douglas framework. See Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012) (applying McDonnell Douglas to a Title VII retaliation claim); Richmond v. Bd. of Regents of Univ. of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992) (applying McDonnell Douglas for discrimination claims under §§ 1981 and 1983); Greenlee v. J.B. Hunt Transp. Servs., 342 S.W.3d 274, 277-79 (Ark. 2009) (applying McDonnell Douglas to discrimination claims brought under the ACRA); Brodie v. City of Jonesboro, 2012 WL 90016, *2 (Ark. Jan. 12, 2012) (unreported) (“This court has previously applied the McDonnell Douglas framework in reviewing the grant of a summary-judgment motion in an employment-discrimination case, . . . and Brodie fails to provide convincing argument that would cause us to reconsider our use of the framework.” (citation omitted)).

         B. Disparate Treatment

         A plaintiff in an employment discrimination case survives a motion for summary judgment “either by providing direct evidence of discrimination or by creating an inference of unlawful discrimination” using circumstantial evidence. Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012). When, as is the case here, a plaintiff presents no direct evidence to support a claim of discrimination, the claim is analyzed under the burden shifting framework set out in McDonnell Douglas. Under this framework, the plaintiff must first present a prima facie case of employment discrimination. Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir. 2007). Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id.; McDonnell Douglas Corp., 411 U.S. at 802. If the defendant can do so, the plaintiff must then demonstrate that the defendant's proffered reason is pretext for unlawful discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507- 08 (1993); Miners v. Cargill Comms., Inc., 113 F.3d 820, 823 (8th Cir. 1997). To meet this burden, the plaintiff must offer sufficient evidence for a reasonable trier of fact to infer discrimination was the more likely reason for the adverse employment decision. Lors v. Dean, 595 F.3d 831, 834 (8th Cir. 2010). “[T]he evidence produced to show a prima facie case and the ‘inferences drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual.'” Miners, 113 F.3d at 823 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 10 (1981). Although the burden of production shifts between the parties, the burden of persuasion remains on the plaintiff at all times. Fatemi v. White, 775 F.3d 1022, 1041 (8th Cir. 2015).

         To establish a prima facie case of unlawful race discrimination under Title VII, a plaintiff must show that: “(1) he is a member of a protected class, (2) he was meeting his employer's legitimate job expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated differently.” Carpenter v. Con-Wa y Cent. Express, Inc., 481 F.3d 611, 616 (8th Cir. 2007) (citations and quotations omitted). Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir. 2007); McDonnell Douglas Corp., 411 U.S. at 802. The plaintiff must then demonstrate that the defendant's proffered reason is a pretext for unlawful discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); Miners v. Cargill Comms., Inc., 113 F. 3 d 820, 823 (8th Cir. 1997). To do this, “a plaintiff may show that the employer's explanation is “unworthy of credence... because it has no basis in fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011). Alternatively, a plaintiff may show pretext “by persuading the court that a [prohibited] reason more likely motivated the employer.” Id. Either route amounts to showing that a prohibited reason, rather than the employer's stated reason, actually motivated the employer's action. Id.

         1. Prima Facie Case

         Officer Sampson has pointed to four adverse employment decisions: (1) the actions outlined in the formal complaint he filed against Sergeant Sprayberry; (2) Defendants' investigations and discipline of Officer Sampson; (3) Defendants' decision not to promote Officer Sampson on multiple occasions; and (4) Defendants' decision not to increase Officer Sampson's pay when he served as the Assistant Communications Center Supervisor.

         a. Allegations in the Complaint Against Sergeant Sprayberry

         As an initial matter, the Court will address Officer Sampson's discrimination claims based on his April 2013 formal complaint filed with Chief Lindsey against Sergeant Sprayberry. Even if a case based on the matters set out in that formal complaint were not time-barred, it would fail because it does not make out a prima facie case of unlawful discrimination. Officer Sampson's complaint describes the April 2013 formal complaint as stating “that he and certain other third-party applicants to the FSPD were being harassed and/or discriminated against on the basis of race.” (Doc. 26, ¶ 94). Having reviewed the formal complaint, the Court concludes that Officer Sampson's formal complaint is not evidence of racial discrimination or harassment because it is completely devoid of any allegation of discrimination or harassment on the basis of race. (Doc. 49-11, pp. 15-19). Officer Sampson's formal complaint primarily lists grievances against Sergeant Sprayberry for the rude manner in which she treated a wide range of employees, but “[i]t is well-settled in this circuit that ostracism and rudeness by supervisors and co-workers do not rise to the level of an adverse employment action.” Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir. 2002). Further, discussion about Ms. Johnson, the minority applicant who was docked points for having an interest in joining the U.S. Marshals Service, is the only part of the grievance that might even imply racial discrimination, but that disparate treatment would have been targeted at Ms. Johnson and not Officer Sampson. The April 2013 formal complaint does not reveal any adverse employment action for which similarly situated employees outside the protected class were treated differently than Officer Sampson. As a result, the formal complaint against Sergeant Sprayberry does not establish a prima facie case premised on the actions then complained of.

         b. Investigations and Discipline

         In their motion for summary judgment, with respect to disparate treatment claims premised on investigation and discipline, Defendants primarily take issue with the fourth factor of the prima facie case analysis, claiming that Officer Sampson cannot find a “similarly situated” employee who was treated differently. This test is “rigorous and requires that the other employees be similarly situated in all relevant aspects before the plaintiff can introduce evidence comparing herself to the other employees.” Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008). To the extent he relies on differently-treated comparators, Officer Sampson “bears the burden to demonstrate by a preponderance of the evidence that there were individuals similarly situated.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003) (citing Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)). A comparator typically “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. However, “[t]he similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone.” Doucette v. Morrison Cty., Minn., 763 F.3d 978, 984 (8th Cir. 2014) (citing Ridout v. JBS USA, LLC, 716 F.3d 1079, 1085 (8th Cir. 2013)) (quotations omitted).

         Defendants argue that Officer Sampson has only offered one comparator-Officer Dayton Leavitt[9]-and only for one of the alleged adverse employment decisions-the decision to investigate a citizen complaint against Officer Sampson. Defendants argue that Officer Leavitt was not similarly situated to Officer Sampson because Officer Leavitt did not engage in the same conduct without any mitigating or distinguishing circumstances. Officer Sampson contends that one citizen was unhappy on two separate occasions with police reports written by Officer Leavitt and Officer Sampson, respectively, but that an investigation was only opened against Officer Sampson and not against Officer Leavitt. Defendants respond that the circumstances were different because the citizen had not claimed that Officer Leavitt intentionally falsified his report and did not seek to file a complaint against him, but that the inverse was true with Officer Sampson-the citizen claimed Officer Sampson intentionally falsified his report and did seek to file a complaint against Officer Sampson. Defendants argue that the department was required to investigate all formal complaints lodged by members of the public.

         Officer Sampson does not directly respond to the arguments regarding Officer Leavitt, and the Court must therefore agree with Defendants that Officer Leavitt is not sufficiently similarly situated for purposes of Officer Sampson's prima facie case. Officer Sampson instead contends that because he was the only African-American officer in the department, “there is inherently a racial component to any action taken against Plaintiff, and the mere fact that white officers may have experienced a similar result does not remove the taint of racism that undergirds any action where Plaintiff was treated differently…” (Doc. 54, p. 6). Citing Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Cir. 1980), Officer Sampson correctly asserts that a sufficient racial disparity can, in extreme cases, constitute sufficient evidence of racial bias to give rise to an inference of unlawful discrimination and establish a prima facie case. See also Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307 (1977) (“[S]tatistics can be an important source of proof in employment discrimination cases… Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”).

         The Court agrees that the Fort Smith Police Department's long record of failing to hire, promote, or retain African-American officers is probative of discrimination. The Fort Smith Police Department only employed one black officer out of approximately 165 total officers for the eight years preceding this lawsuit, and Officer Sampson was only the tenth African-American officer in the department's entire existence. A casual review of the demographics of this community leaves the Court with the impression that African-American representation in the Fort Smith Police Department is disproportionately low. With the exception of automatic “seniority” promotions, no African-American had been promoted in almost two decades prior to Officer Sampson's lawsuit. This, too, is probative of racial discrimination.

         Still, without a comparator, in order to meet his prima facie burden Officer Sampson must do more than simply point out that he is the only black officer in the department and no black officers have been promoted. See Clayborne v. Omaha Pub. Power Dist., 211 F.R.D. 573, 592 (D. Neb. 2002) (quoting Wagner v. Taylor, 836 F.2d 578, 593 (D.C. Cir. 1987)) (“Statistics laying bare a racially unbalanced workforce do not make out a prima facie case of disparate treatment absent further evidence drawing comparisons with the relevant labor market. Much less do they show a policy of discrimination manifested in the employer's promotional practices.”). Officer Sampson's general statistical argument does not carry his burden because it only lays bare a racially unbalanced workforce inside the Fort Smith Police Department and does not demonstrate that the unbalance is tied to discrimination.

         When relying on an unbalanced racial composition to establish a prima facie case of workplace discrimination, a plaintiff must typically compare the racial composition of employees in the workplace with that of the qualified population in the relevant market. Id. at 308. The “probative worth of statistical evidence depends on all of the surrounding facts and circumstances.” Inmates of Nebraska Penal & Corr. Complex v. Greenholtz, 567 F.2d 1368, 1375 (8th Cir. 1977) (citation omitted). “To be legally sufficient, [Officer Sampson's] statistical evidence must show a disparity of treatment, eliminate the most common nondiscriminatory explanations of the disparity, and thus permit the inference that, absent other explanation, the disparity more likely than not resulted from illegal discrimination.” Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 463-64 (8th Cir. 2004); see also Hazelwood Sch. Dist., 433 U.S. At 299 (“What the [employment] figures prove obviously depends upon the figures to which they are compared.”). Officer Sampson bears the burden of producing admissible evidence that gives rise to an inference of unlawful discrimination. Because he does not rely on any materials in the record other than an inadequate comparator (for only one of the adverse employment decisions) and general statistics describing the racial composition of the Fort Smith Police Department, Officer Sampson has not met his burden of proof on summary judgment and cannot establish a prima facie case under the McDonnell Douglas shifting framework.

         c. Failure to Promote

         In his Title VII claim of racial discrimination arising out of the Fort Smith Police Department's failure to promote him, Officer Sampson alleges that he applied for a promotion to Sergeant based on his 2012 and 2013 examination scores, but that the department instead hired or promoted individuals who were not members of a protected group or with similar qualifications. “To establish a prima facie case of discriminatory failure to promote, a Title VII plaintiff must demonstrate that: (1) he is a member of a protected group; (2) he was qualified and applied for a promotion to an available position; (3) he was rejected; and (4) a similarly qualified employee, not part of a protected group, was promoted instead.” Brown v. Missouri State Highway Patrol, 56 F. App'x 282, 284 (8th Cir. 2003). Officer Sampson is a member of a protected group, he was rejected promotion on all three attempts, and in each instance employees who were not part of a protected group were instead promoted. As for the fourth factor, the Court notes that numerous white officers also were not promoted, which to some extent undermines the ...


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