ARKANSAS STATE MEDICAL BOARD AND PEGGY CRYER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY APPELLANTS
KRISTI BYERS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-14-4638]
HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
Rutledge, Att'y Gen., by: C. Joseph Cordi, Jr., Sr.
Ass't Att'y Gen., and Delena C. Hurst, Ass't
Att'y Gen., for appellant.
& Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien
Gillham, for appellee.
DAN KEMP, Chief Justice.
Arkansas State Medical Board ("Board") and Peggy
Cryer, individually and in her official capacity as Executive
Secretary of the Board, appeal from the circuit court's
order denying their motion for summary judgment based on
sovereign and statutory immunities. We affirm in part and
reverse in part and remand with instructions.
Kristi Byers, an African American female, was employed by the
Board as the Administrative Services Manager
("ASM"). As the ASM, she was responsible for the
Board's financial and human-resources operations. Byers
started work on October 7, 2013, as an ASM classified as
extra help. Appellants alleged that, after Byers became the
sole ASM in 2014, she began violating leave polices.
Specifically, appellants alleged that from January through
July 2014, Byers took 232 hours of undocumented paid
leave. Cryer terminated Byers on July 25, 2014,
for allegedly not using leave time on days that she did not
come to work.
filed suit on December 15, 2014, for wrongful termination,
alleging race discrimination and retaliation under the
Arkansas Civil Rights Act ("ACRA"), Ark. Code Ann.
§§ 16-123-101 to -108 (Repl. 2016), and 42 U.S.C.
§§ 1981 and 1983, and seeking damages and
injunctive relief. She alleged that she was fired because she
had complained about illegal employment practices and
purported race discrimination. Appellants filed a motion for
summary judgment denying Byers's allegations and arguing,
among other things, that the circuit court should dismiss
Byers's complaint on immunity grounds. Specifically,
appellants asserted that sovereign immunity barred
Byers's ACRA claims against the Board and Cryer, in her
official capacity. They also asserted that Byers's ACRA
claims and federal civil-rights claims against Cryer, in her
individual capacity, were barred by statutory immunity. The
circuit court denied appellants' motion for summary
judgment, concluding that the Board and Cryer were not
entitled to sovereign immunity and that Cryer was not
entitled to statutory immunity. Appellants now bring this
interlocutory appeal of the circuit court's order
pursuant to Arkansas Rule of Appellate Procedure-Civil
contend that the doctrine of sovereign immunity bars
Byers's ACRA claims against the Board and against Cryer
in her official capacity. Sovereign immunity for the State of
Arkansas arises from express constitutional declaration.
Article 5, section 20 of the Arkansas Constitution provides,
"The State of Arkansas shall never be made a defendant
in any of her courts." We have extended the doctrine of
sovereign immunity to include state agencies, see,
e.g., Ark. Dep't of Cmty. Corr. v. City of Pine
Bluff, 2013 Ark. 36, 425 S.W.3d 731, and we have
recognized that a suit against a public official in his or
her official capacity is essentially a suit against that
official's agency, e.g., Ark. Dep't of
Human Servs. v. Ft. Smith Sch. Dist., 2015 Ark. 81, 455
S.W.3d 294. Generally, a suit against the State is barred by
the sovereign-immunity doctrine if a judgment for the
plaintiff will operate to control the action of the State or
subject the State to liability. See Ark. Dep't of
Envtl. Qual. v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654
(2008). There are, however, exceptions to that rule. For
example, we have recognized that a claim of sovereign
immunity may be surmounted when the State is the moving party
seeking relief or when an act of the legislature has created
a specific waiver of sovereign immunity. See Simons v.
Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007). We have
held that a suit against the agency or officer is not
prohibited if the state agency is acting illegally or if an
agency officer refuses to perform a purely ministerial act
required by statute. See Clowers v. Lassiter, 363
Ark. 241, 213 S.W.3d 6 (2005). Moreover, this court has long
recognized that a state agency or officer may be enjoined
from proposed action that is ultra vires. See, e.g.,
Fitzgiven v. Dorey, 2013 Ark. 346, 429 S.W.3d 234;
Solomon v. Valco, Inc., 288 Ark. 106, 702 S.W.2d 6
(1986); Ark. Game & Fish Comm'n v. Eubank,
256 Ark. 930, 512 S.W.2d 540 (1974). In addition, we have held
that a state agency or officer may be enjoined from acting
arbitrarily, capriciously, in bad faith, or in a wantonly
injurious manner. See Ark. Dep't of Envtl. Qual. v.
Oil Producers of Ark., 2009 Ark 297, 318 S.W.3d 570.
issue in this case is whether either the "ultra
vires" exception or the "bad faith" exception
applies. As she argued below, Byers contends that article 5,
section 20 "does not bar suit over the official-capacity
ACRA claims because the courts have jurisdiction to enjoin
officers of state agencies who engage in acts which are ultra
vires, in bad faith, or arbitrary, which is the case
here." (Emphasis added.) She then cites boilerplate
law for these exceptions, but she makes no effort to apply
the law to the facts of this case, nor did she attempt to do
so below. Because Byers did not develop her claim at the
circuit-court level, the record does not demonstrate that the
ultra vires exception or the bad faith exception to sovereign
immunity applies. See Grine v. Bd. of Trs., 338 Ark.
791, 798-99, 2 S.W.3d 54, 59 (1999).
a judgment for Byers would operate to control the action of
the State or subject it to liability, her ACRA claims against
the Board and against Cryer in her official capacity are
barred by article 5, section 20 of the Arkansas Constitution.
Accordingly, we reverse the circuit court's denial of
summary judgment on sovereign immunity and remand with
instructions for the circuit court to enter an order
dismissing the ACRA claims against the Board and against
Cryer in her official capacity.
contend that statutory immunity bars Byers's ACRA claims
and federal civil-rights claims against Cryer in her
individual capacity. When determining whether officers and
employees of the State are entitled to statutory immunity, we
have traditionally been guided by the standard used for
qualified-immunity claims in federal civil-rights actions.
See, e.g., Fegans v. Norris, 351 Ark. 200,
89 S.W.3d 919 (2002) (per curiam). Generally, an official is
immune from suit if his or her actions did not violate
clearly established principles of law of which a reasonable
person would have knowledge. Id., 89 S.W.3d 919
(citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
To stave off summary judgment on qualified immunity, a
civil-rights plaintiff must assert a constitutional
violation, demonstrate that the constitutional right is
clearly established, and raise a genuine issue of fact as to
whether the official would have known that the conduct
violated that clearly established right. See Baldridge v.
Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002).
employees and officers of the State are afforded statutory
immunity from civil liability and from suit for nonmalicious
acts occurring within the course of their employment. See
Grine, 338 Ark. 791, 2 S.W.3d 54; Ark. Code Ann. §
19-10-305(a) (Repl. 2016) ("Officers and employees of
the State of Arkansas are immune from liability and from
suit, except to the extent that they may be covered by
liability insurance, for damages for acts or omissions, other
than malicious acts or omissions, ...