United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOMES UNITED STATES DISTRICT JUDGE
Heaggans commenced this employment discrimination action
against the Arkansas State Highway and Transportation
Department alleging race discrimination claims under Title
VII and 42 U.S.C. § 1983. Heaggans works in the
Environmental division of the Department and says that he was
passed over for six different promotions because he is black.
The Department has filed a motion for summary judgment.
Document #16. For the following reasons, the motion is
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
following facts are undisputed. The Department is the state
agency responsible for the maintenance, repair, and safety of
Arkansas highways. It is divided into several divisions.
Heaggans works in the Environmental division, which is
responsible for compliance with environmental laws,
regulations, and policies throughout the planning,
construction, and operation of roadways and other
infrastructure. The Environmental division is further divided
into six sections: Assessments, Cultural Resources,
Geographic Information Systems, National Pollutant Discharge
Elimination System (NPDES), Public Involvement, and Special
Studies. These sections evaluate potential impacts on, among
other things, endangered species, hazardous waste, water
quality, and wetlands. Heaggans has worked at the Department
since 2005, starting in the Human Resources division. He
worked part-time or seasonally from 2005 through 2010.
Heaggans graduated from the University of Central Arkansas in
May 2010 with a bachelors degree in environmental science. In
February 2011, Heaggans became a full-time employee in the
Environmental division and was shortly thereafter promoted to
Environmental Field Technician II upon the recommendation of
his then-direct supervisor and now-Environmental division
head, John Fleming.
asked Heaggans if he wanted to be placed on the “job
list” to gain experience performing the duties of an
environmental analyst, and Heaggans said that he did. Each
section of the Environmental division has environmental
analysts. The job list organizes the duties associated with
upcoming construction projects and to whom those duties are
assigned. Duties assigned to Heaggans pursuant to the job
list included securing wetlands permits and visiting job
sites. At the same time, Heaggans performed his
field tech duties. A field tech's official duties include
assisting the division with the collection of information for
environmental and mitigation documents.Heaggans also
attended a week-long training session about wetlands, for
which he received a certification. He performed his duties
adequately and received positive feedback from Fleming, as
recently as May 2014. Document #16-1 at 20.
his promotion in February 2011, Heaggans has sought and has
been denied six other promotions to positions in three
different sections within the Environmental division: (1)
Environmental Analyst 1 (Special Studies), February 2012; (2)
Environmental Analyst 1 (NPDES), March 2012; (3)
Beautification Coordinator 1, July 2012; (4) Environmental
Analyst 1 (NPDES), September 2012; (5) Environmental Analyst
1 (Special Studies), December 2013; and (6) Environmental
Analyst 1 (Special Studies), July 2014. The Department hired
white individuals to fill each position.
Title VII, before filing a lawsuit in federal court,
aggrieved individuals must “(1) timely file a charge of
discrimination with the EEOC setting forth the facts and
nature of the charge and (2) receive notice of the right to
sue.” Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 222 (8th Cir. 1994) (citing 42
U.S.C. § 2000e-5(b), (c), (e)). A claim for employment
discrimination is barred if the plaintiff fails to file such
a charge. See Kline v. City of Kansas City, Fire
Dept., 175 F.3d 660, 664 (8th Cir. 1999). Thus, to
assert a claim for failure to promote in violation of Title
VII, a plaintiff must first exhaust his administrative
remedies. Williams, 21 F.3d at 222.
“Exhaustion of administrative remedies is central to
Title VII's statutory scheme because it provides the EEOC
the first opportunity to investigate discriminatory practices
and enables it to perform its roles of obtaining voluntary
compliance and promoting conciliatory efforts.”
filed a charge of discrimination with the EEOC on September
17, 2014. Document #1 at 12. He checked the box for
discrimination based on race and explained that in February
2014,  he applied for an environmental analyst
position, was interviewed, and was not selected. Id.
Then, in June 2014, he applied for an environmental analyst
position and did not even receive an interview. Id.
Heaggans stated: “I believe I was not promoted because
of my race, black, in violation of Title VII of the Civil
Rights Act of 1964, as amended.” Id. He also
stated that the discrimination took place at the earliest on
February 1, 2014 and at the latest on June 9, 2014.
Id. Heaggans only identified two failures to
promote; he did not identify as a basis for his charge the
failures that he now alleges occurred in February, March,
July, and September 2012. Therefore, any claims based on
those occasions are barred because Heaggans failed to exhaust
his administrative remedies. See Robinson v. Am. Red
Cross, 753 F.3d 749, 757 (8th Cir. 2014); Ross v.
City of Independence, Mo., 76 F. App'x 108, 109 (8th
Cir. 2003) (“Each decision not to promote [plaintiff]
was a discrete event.”) (citing Dorsey v. Pinnacle
Auto. Co., 278 F.3d 830, 838 (8th Cir. 2002)).
VII's enforcement provisions also require that a charge
be filed with the EEOC within 180 days after the alleged
unlawful employment action occurred. 42 U.S.C. §
2000e-5(e)(1). “[E]ach [discrete discriminatory act]
starts a new clock for purposes of filing charges related to
that act, and an employee must file charges within 180 or 300
days (whichever is applicable) of a discrete discriminatory
action.” Tademe v. Saint Cloud State Univ.,
328 F.3d 982, 987-88 (8th Cir. 2003). Again, Heaggans alleges
that in February 2014, he applied for an environmental
analyst position and was not selected because of his race.
Document #1 at 12. The Department actually filled the
position in December 2013. Document #16-5 at 22. But either
way, more than 180 days passed between the alleged unlawful
employment action and the charge. Because Heaggans failed to
file a charge with the EEOC within 180 days after he was
passed over for the 2013 promotion, any claim based on that
action is time-barred. In fact, each of the claims that
Heaggans failed to properly exhaust also fall outside the
180-day window. The only failure to promote actionable under
Title VII is the July 2014 selection of Benjamin Thesing to
fill the position of Environmental Analyst 1 (Special
Studies) instead of Heaggans.
42 U.S.C. 1983 provides a federal cause of action, this Court
looks to Arkansas law to determine the applicable statute of
limitations. Wallace v. Kato, 549 U.S. 384, 387, 127
S.Ct. 1091, 1094, 166 L.Ed.2d 973 (2007).
The statute of limitations for personal injury actions
applies, which is three years. Miller v. Norris, 247
F.3d 736, 739 (8th Cir. 2001) (citing Ark. Code Ann. §
16-56-105(3)). Heaggans commenced this action on July 1,
2015. Document #1. Therefore, any claim based on a failure to
promote prior to July 1, 2012 is time-barred. The failures
Heaggans alleges occurred in February 2012 and March 2012 are
not actionable. The failures to promote actionable under
section 1983 are the July 2012 selection of Sam Sawyer to
fill the position of Beautification Coordinator 1, the
September 2012 selection of Lindsay Zweifel to fill the
position of Environmental Analyst 1 ...