United States District Court, E.D. Arkansas, Pine Bluff Division
M. MOODY JR. UNITED STATES DISTRICT JUDGE
is the Defendants' Motion to Dismiss. In her response,
“Plaintiff Gayle Zimmerman, respectfully requests that
Defendants' Motion to Dismiss be denied to the extent
that her reinstatement claim, and her individual capacity
action claims be permitted to proceed.” (ECF No. 13 at
p. 7). Because this statement is vague, the Court will
consider all of the claims made by the Plaintiff.
has made the following claims against the Arkansas Department
of Finance and Administration (“DFA”) and Betty
Judkins: gender and race discrimination and retaliation under
Title VII and the Arkansas Civil Rights Act, gender
discrimination in violation of the Equal Protection Act via
42 U.S.C. § 1983; age discrimination under ADEA, a
retaliation claim under 42 U.S.C. §1981, and state laws
claims of wrongful discharge, tort of outrage and intentional
infliction of emotional distress.
to the Complaint, Plaintiff's employment as an Attorney
Specialist with DFA was terminated in February 2013.
Plaintiff alleges that in July 2011 she was directed to
perpetrate a “fraud” upon a court and when she
refused, her relationship with the managing attorney
“began to deteriorate.” Id. In 2012,
Plaintiff claims that she had a difference of opinion with
Judkins regarding her ethical responsibility to her client,
DFA. As a result of the disagreement, Plaintiff's
relationship with Judkins began to deteriorate.
alleges that she was denied training and copies of the
Arkansas Criminal Code and the Rules of Criminal Procedure by
DFA and Betty Judkins because Plaintiff chose to hire an
over-50 year old African American female as her legal
assistant instead of the 22 year old Caucasian female
candidate. Plaintiff alleges that she was unable to timely
complete her tasks because Judkins denied training to
Plaintiff in retaliation for hiring the older African
American legal assistant. Plaintiff claims that a male
attorney was given “a criminal code and rules or [sic]
procedure along with the periodic updates.” (ECF No. 1
at p. 5). She contends that although she continued to have
difficulties doing her job because of her inadequately
trained clerical help, her requests to the Defendants for
training were denied. In March 2012, Plaintiff took her
complaints to Dan McDonald, an administrator in the Office of
Child Support Enforcement central office. She again received
“no relief for her concerns.” Id. at 11.
In late 2012, Plaintiff complained directly to then Governor
Mike Bebee. Plaintiff alleges that the Defendants were
unhappy with Plaintiff's complaints and terminated her.
Standard of Review
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic
Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d
929 (2007) (citing Swierkiewicz v. Sorema N. A., 534
U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002);
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989) (“Rule 12(b)(6) does not
countenance . . . dismissals based on a judge's disbelief
of a complaint's factual allegations”); Scheuer
v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974) (a well-pleaded complaint may proceed even if it
appears “that a recovery is very remote and
unlikely”)). “So, when the allegations in a
complaint, however true, could not raise a claim of
entitlement to relief, this basic deficiency should . . . be
exposed at the point of minimum expenditure of time and money
by the parties and the court.” Bell Atlantic,
127 S.Ct. at 1966 (internal citations omitted).
also true that “a plaintiff must assert facts that
affirmatively and plausibly suggest that the pleader has the
right he claims . ., rather than facts that are merely
consistent with such a right. While a plaintiff need not set
forth detailed factual allegations or specific facts that
describe the evidence to be presented, the complaint must
include sufficient factual allegations to provide the grounds
on which the claim rests. A district court, therefore, is not
required to divine the litigant's intent and create
claims that are not clearly raised, and it need not conjure
up unpled allegations to save a complaint.” Blomker
v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (quoting
Gregory v. Dillard's, Inc., 565 F.3d 464, 473
(8th Cir. 2009) (en banc) (quotations and citations
§§ 1981 and 1983
Court considers Ms. Zimmerman's claims under 42 U.S.C.
§§ 1981 and 1983 together because a federal action
to enforce rights under § 1981 against a state actor may
only be brought pursuant to § 1983. Artis v. Francis
Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178,
1181 (8th Cir.1998).
§ 1981 and § 1983 claims against the DFA and all
damages claims against Judkins in her official capacity are
barred by Eleventh Amendment Immunity. The Supreme Court has
held that the Eleventh Amendment extends to preclude suits
against a state, state agency, entity or institution by its
own citizens as well as citizens of another state or citizens
of any foreign state. Edelman v. Jordan, 415 U.S.
651 (1974), Alabama v. Pugh, 438 U.S. 781 (1978).
Additionally, the Eleventh Amendment prohibits federal court
lawsuits seeking monetary damages from individual state
officers in their official capacities because such lawsuits
are essentially for the recovery of money from the state.
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir.1999) (citing Kentucky v. Graham, 473 U.S.
159, 165 (1985)). Moreover, the Supreme Court has held that
“neither a State nor its officials acting in their
official capacities are ‘persons' ...