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Zimmerman v. Arkansas Department of Finance and Administration

United States District Court, E.D. Arkansas, Pine Bluff Division

February 2, 2018

GAYLE ZIMMERMAN PLAINTIFF
v.
THE ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION, and BETTY JUDKINS, In her individual and official capacity DEFENDANTS

          ORDER

          JAMES M. MOODY JR. UNITED STATES DISTRICT JUDGE

         Pending 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.

         Plaintiff has made the following claims against the Arkansas Department of Finance and Administration (“DFA”) and Betty Judkins: gender and race[1] 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.

         I. Factual Allegations

         According 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.

         Plaintiff 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.

         II. Standard of Review

         “While 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).

         It is 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 omitted)).

         III. Analysis

         A. §§ 1981 and 1983

         1. Immunity

         The 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).

         Plaintiff's § 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' ...


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