United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
Kristine G. Baker, United States District Judge.
Issac McBride brings this action against defendant Arkansas
Department of Human Services (“ADHS”) under Title
VII of the Civil Rights Act of 1964, as amended (“Title
VII”), 42 U.S.C. § 2000e et seq., 42
U.S.C. § 1983, the Fourteenth Amendment of the United
States Constitution, and 28 U.S.C. § 2201 (Dkt. No. 1).
Mr. McBride seeks damages as well as declaratory, equitable,
and injunctive relief (Id.). Before the Court is
ADHS's motion for summary judgment on all claims (Dkt.
No. 13). Mr. McBride responded in opposition (Dkt. No. 21),
and ADHS replied (Dkt. No. 24). For the reasons that follow,
the Court grants in part and denies in part ADHS's motion
for summary judgment (Dkt. No. 13).
Factual And Procedural Background
otherwise noted, the following facts are taken from
ADHS's statement of undisputed material facts (Dkt. No.
14) and Mr. McBride's response to ADHS's statement of
undisputed facts (Dkt. No. 22).
McBride filed a complaint pursuant to Title VII and the
Fourteenth Amendment to the United States Constitution
against defendant ADHS (Dkt. No. 22, ¶ 1). In the
complaint, Mr. McBride alleges that he was terminated by
ADHS, Department of Youth Services (“DYS”), on
the basis of his race (Id., ¶ 2). Mr. McBride
was employed with DYS as a quality assurance coordinator for
approximately 18 years (Id., ¶ 3). On August 4,
2016, Henry Thompson, assistant director of Residential
Service, was Mr. McBride's supervisor, and Carmen
Mosley-Sims, assistant director of Community Service, was Mr.
Thompson's supervisor (Id., ¶ 4). DYS
Quality Assurance Unit is responsible for conducting all
compliance monitoring of DYS contracts and is the custodian
of all records relating to contractual compliance
(Id., ¶ 5). Quality assurance coordinators
monitor the juvenile facilities by looking at the different
situations for the standards of that facility (Id.).
They are responsible for making sure that the juveniles'
therapists and caseworkers are working with the juveniles in
a timely manner, looking at the physical plan, and checking
to assure the safety and security of the juveniles
(Id.). They perform audits of the facilities and do
reports on their findings (Id.). Generally, they are
responsible for assuring the safety of the children
parties disagree about events that occurred on Thursday,
August 4, 2016. ADHS contends that, at noon on Thursday,
August 4, 2016,  Ms. Mosley-Sims asked members of the
quality assurance team to assist in pulling records pursuant
to a grand jury subpoena (Dkt. No. 14, ¶ 6). ADHS
submits that Mr. McBride was at his desk in the unit when he
volunteered to pull the records (Id., ¶ 8). Mr.
McBride contends that, on Thursday, August 4, 2016, he was
sitting at his cubicle when Ms. Mosley-Sims came to his work
area and stated that she needed some records pulled for two
of the providers (Dkt. No. 22, ¶ 6). Mr. McBride asserts
that, at the time that Ms. Mosley-Sims made the request, he
was the only quality assurance coordinator in the area, so he
got up and started pulling the records (Id.). Mr.
McBride maintains that, because he was the only person in the
area, he interpreted the request as being directed to him
(Id., ¶ 8).
parties agree that the requested records were related to
contract compliance monitoring of South Arkansas Youth
Services (“SAYS”), which is a provider for DYS
(Dkt. No. 22, ¶ 7). Mr. McBride adds that the two
providers he was asked to pull records on were SAYS and Youth
Bridge (Id., ¶ 6). According to Mr. McBride,
pulling records on providers is routinely done, and the
records he was asked to pull were prior audits that had been
done in previous years (Id.). Mr. McBride asserts
that he was asked to pull prior audits from 2013 to 2016
(Id.). He claims that Ms. Mosley-Sims never told him
why she needed the records and that he put the requested
records in Ms. Mosley-Sims's office the next morning
(Id.). Mr. McBride submits that pulling records is
something that the quality assurance coordinators are asked
to do all the time and that “it is pretty
routine” and “nothing out of the ordinary”
(Id.). Mr. McBride maintains that he was not aware
that there was a Federal Bureau of Investigation
(“FBI”) investigation regarding SAYS at the time
that he was pulling the records (Id.).
parties disagree about the storage location of the requested
records. ADHS contends that Mr. McBride went to the file
cabinets on the far side of the office to pull manually the
records despite the fact that the records were available on
the computer shared drive (Dkt. No. 14, ¶ 9). ADHS
maintains that it was not necessary for Mr. McBride to pull
hard copy files. Mr. McBride argues that Ms. Mosley-Sims
requested records from 2013 to 2016 and that the older
records from 2013 had not been scanned into the computer
“U-drive, ” which meant that they had to be
pulled manually (Dkt. No. 22, ¶ 9). Mr. McBride asserts
that he spent most of the afternoon of Thursday, August 4,
2016, pulling the older records, which were in file cabinets
(Id.). He claims that, on Friday morning, August 5,
2016, he pulled the newer records off the computer system and
then placed the records on Ms. Mosley-Sims's chair
contends that Mr. McBride and Ms. Mosley-Sims discussed the
records request at least one time on August 4, 2016, to
clarify the scope of the request (Dkt. No. 14, ¶ 10).
ADHS asserts that, by the end of the day, Mr. McBride had not
produced the records and left the office for the day without
speaking to Ms. Mosley-Sims again (Id.). Mr. McBride
argues that Ms. Mosley-Sims did not give much detail about
pulling the records and that all she said was that she needed
records pulled for two providers - SAYS and Youth Bridge -
and that she needed records covering the time period of 2013
to 2016 (Dkt. No. 22, ¶ 10). Mr. McBride submits that
Ms. Mosley-Sims never gave him a date or time certain that
she needed the records (Id.).
parties also disagree about events that occurred on Friday,
August 5, 2016. ADHS asserts that Ms. Mosley-Sims began
looking for Mr. McBride at the beginning of the day to advise
him that she needed the records no later than noon that day
(Dkt. No. 14, ¶ 11). ADHS contends that Mr.
McBride's computer activity and his co-workers indicated
that he was at work, but Ms. Mosley-Sims could not find Mr.
McBride in the office (Id.). As a result, Tommy
Branch, another quality assurance coordinator, looked for Mr.
McBride but could not find him either (Id.). ADHS
claims that Ms. Mosley-Sims emailed Mr. McBride and his
supervisor, asking about Mr. McBride's location, but when
she did not get a response, she asked Mr. Branch to pull the
records (Id., ¶ 12). ADHS represents that,
before noon that day, Mr. McBride and Mr. Branch gave the
requested records to Ms. Mosley-Sims and that Mr. McBride
responded to Ms. Mosley-Sims by email, stating that he had
been on the other side of the building when Ms. Mosley-Sims
was looking for him (Id., ¶ 13).
McBride contends that he normally arrives at work at 7:30
a.m. each morning and that when he arrived at work on Friday,
August 5, 2016, he did not see Ms. Mosley-Sims because she
had not yet arrived for work (Dkt. No. 22, ¶ 11). Mr.
McBride asserts that, when he arrived at work that day, he
went back to pulling physically the records for SAYS and
Youth Bridge, and because pulling records is a matter of
routine, Mr. McBride did not feel the need to let anyone know
where he was (Id.). Mr. McBride claims that he
placed the documents in Ms. Mosley-Sims's office during
the morning of August 5, 2016 (Id., ¶ 13). Mr.
McBride agrees that he received an email from Ms. Mosley-Sims
on the morning of Friday, August 5, 2016, but contends that
the email thanked him for a job well done (Id.,
¶ 12). He asserts that he did not receive any emails
that morning other than the one from Ms. Mosley-Sims thanking
him for pulling the files as requested (Id.).
alleges that, during the afternoon of Friday, August 5, 2016,
Mr. Branch informed Ms. Mosley-Sims that he had received a
call from Mr. Walsh, executive director of SAYS, and that Mr.
Walsh had left a message indicating that he was trying to
reach Mr. Branch (Dkt. No. 14, ¶ 14). According to ADHS,
Mr. Walsh called Mr. Branch a second time that day but did
not leave a message (Id.). Mr. McBride maintains
that Mr. Branch mentioned that Mr. Walsh had called him but
that Mr. Branch did not know why Mr. Walsh was calling (Dkt.
No. 22, ¶ 14).
parties agree that Mr. Branch did not return Mr. Walsh's
call and that Mr. Branch instead called Mr. McBride at the
direction of Mr. Thompson, asking Mr. McBride about the call
from Mr. Walsh and whether he had talked to Mr. Walsh that
day (Id., ¶ 15). ADHS asserts that Mr. Branch
said that Mr. McBride avoided and hesitated to answer the
question and that Mr. McBride seemed anxious and flustered at
first (Dkt. No. 14, ¶ 16). ADHS claims that, when Mr.
Branch asked Mr. McBride about the call again, Mr. McBride
then stated that he called Mr. Walsh to check on Mr.
Walsh's wife who was in the hospital (Id.).
McBride denies ADHS's allegations and instead submits
that Mr. Walsh stated that, during the time period of August
4 and 5, 2016, his wife was gravely ill with pneumonia (Dkt.
No. 22, ¶ 16). According to Mr. McBride, he contacted
Mr. Walsh on Friday, August 5, 2016, to check on Mr.
Walsh's wife (Dkt. No. 22, ¶ 7). Mr. McBride submits
that he had heard Mr. Walsh's wife was in the hospital
and that he wanted to check on her (Id.). He submits
that Mr. Walsh received several calls from people all over
the state checking on his wife (Id.). Mr. McBride
maintains that he did not speak with Mr. Walsh about
SAYS's request for proposal or contract with ADHS because
Mr. McBride did not know anything to tell Mr. Walsh about the
contract (Id.). Further, record evidence from Mr.
Walsh in the form of deposition testimony corroborates that
Mr. McBride did not speak to Mr. Walsh about the contract on
August 5, 2016 (Dkt. No. 22-2, at 18).
McBride submits that Mr. Walsh stated that, after posting
pictures of himself, along with his granddaughter and wife,
on social media on August 5, 2016, Mr. Walsh received calls
from several people, including Mr. McBride, inquiring about
the condition of his wife (Dkt. No. 22, ¶ 16). Mr.
McBride points to Mr. Walsh's statement that he spoke
briefly with Mr. McBride and gave a report about her
McBride further submits that, at 11:21 a.m. on August 8,
2016, Mr. Branch sent an email to Ms. Mosley-Sims about his
contact with Mr. McBride (Id.). Mr. McBride reports
that, in this email, Mr. Branch stated that he had received a
call presumably from Mr. Walsh on August 5, 2016, but that he
missed the call (Id.). Mr. McBride asserts that Mr.
Branch stated that he called Mr. McBride to see why Mr. Walsh
would be calling Mr. Branch, and that, according to Mr.
Branch, Mr. McBride stated that he had called Mr. Walsh to
check on Mr. Walsh's wife, who was in the hospital
(Id.). Mr. McBride argues that, in the email, Mr.
Branch never mentions that Mr. McBride seemed “anxious
and flustered” as he is now claiming (Id.).
Mr. McBride alleges that, according to Mr. Walsh, Mr. Branch
is an opportunist and the type of person who would take
advantage of a situation (Id.). Mr. McBride also
claims that Mr. Branch had contacted Mr. Walsh on July 5,
2016, leaving a text message and wanting Mr. Walsh to assist
Mr. Branch in getting rid of an assistant director because
Mr. Branch wanted the position (Id.). Mr. McBride
further submits that Mary Mitchell-Davis, who worked for DYS
from 1996 to 2015, and who worked under the supervision of
Ms. Mosley-Sims, the assistant director at that time, stated
that Mr. Branch was the type of person who would do anything
to get ahead (Id.). ADHS contends that Ms.
Mosley-Sims and Mr. Thompson directed Mr. Branch not to
respond to any more calls from Mr. Walsh (Dkt. No. 14, ¶
17). Mr. McBride denies this allegation (Dkt. No. 22, ¶
parties disagree about the nature and extent of Mr.
McBride's relationship with Mr. Walsh. ADHS asserts that
Mr. McBride and Mr. Walsh knew each other for approximately
20 years and that they were professional associates as well
as close friends even before Mr. McBride worked for DYS (Dkt.
No. 14, ¶ 18). ADHS asserts that Mr. McBride and Mr.
Walsh would talk to each other on a regular basis and that
Cindi Snider, an assistant to Mr. Walsh, would hear their
conversations on the speaker phone (Id.). Mr.
McBride admits that he has known Mr. Walsh for 20 years but
contends that they knew each other through Mr. McBride's
work at DYS (Dkt. No. 22, ¶ 18). Mr. McBride contends
that he first met Mr. Walsh while Mr. McBride worked at
Alexander Youth Home (Id.). Mr. McBride admits that
he is a friend to Mr. Walsh and his family; however, he
maintains that Mr. Walsh has never gone to Mr. McBride's
home and that they have only had meals together during the
annual conferences held by DYS (Id.). Mr. McBride
submits that Mr. Walsh rarely saw Mr. McBride when Mr.
McBride and his team came to audit SAYS (Id.).
states that Mr. McBride was a coach of the AAU Arkansas Wings
basketball team and that, while Mr. McBride was employed with
DYS, Mr. Walsh offered to donate money to the Arkansas Wings
(Dkt. No. 14, ¶ 19). ADHS contends that Mr. McBride
accepted Mr. Walsh's offer of donations and that Mr.
Walsh and SAYS have made multiple donations to Mr. McBride
and the Arkansas Wings (Id.). Mr. McBride denies
these allegations (Dkt. No. 22, ¶ 19). Instead, he
submits the following statements:
The Arkansas Wings Basketball Program is a program that is
headed by Ron Crawford. The [program] consists of several
teams for the following age groups: [13, 14, 15, 16, and 17].
The Arkansas Wings has its own website and has a mechanism
in place where people can donate through its official
Mr. McBride volunteer[s] his time with the Arkansas Wings
program in an after-school program. Mr. McBride works with
one of the Arkansas Wings team[s] - [the] Arkansas Warriors
[-] which is all part of the AAU [b]asketball summer program.
The Arkansas AAU program stands for Arkansas Amateur Union.
[Mr.] Crawford is still involved in AAU [b]asketball. Again,
the Arkansas Wings has a mission of trying to reach inner
city kids, trying to direct them in a positive manner, and
also [hopefully] to  get them into colleges. Some of the
players who have gone through the Arkansas Wings [p]rogram
have been Bobby Portis, Corliss Williamson, and Joe Johnson.
These players played for the Arkansas Razorback [b]asketball
program and later went on to play in the National
Basketball Association (“NBA”). Mr. McBride
started with the AAU program about  years ago.
In dealing with the AAU [b]asketball [p]rogram, the teams do
have certain expenses. Jerry Walsh has been a supporter of
the AAU [b]asketball [p]rogram. Again, the Arkansas Wings has
a mechanism set up on its official website whereby
individuals and corporations can make financial
contributions. The money comes into [Mr.] Crawford, who is
the [e]xecutive director of the Arkansas Wings [p]rogram, and
Mr. Crawford distributes the money to the various teams. Mr.
McBride was not the head coach but an assistant coach. Mr.
McBride never see[s] the money directly, but he does see the
budget, and he also sees how much goes to each team. Again,
[Mr.] Crawford handles the money, and he distributes money to
the teams. Mr. Crawford also pays the expenses for the teams.
When the teams go on trips, Mr. Crawford takes care of the
Jerry Walsh has supported AAU [b]asketball programs for the
past 25 [to] 30 years. Mr. Walsh typically provide[s]
financial support to teams in South Arkansas. Mr. Walsh lives
in Magnolia, Arkansas. Mr. Walsh gives money to the Arkansas
Boys and Girls Club and Southern Arkansas University
(“SAU”). Mr. Walsh made a donation of $2, 500.00
to [the] SAU track team. Mr. Walsh typically support[s]
minority youth and kids from single parent homes who do
not have the financial support to compete in AAU [b]asketball
programs. Over the years, Mr. Walsh believes that he has made
no more than [five] donations to the Arkansas Wings.
Typically, his support is in the $100.00 range. Again, Mr.
Walsh personally may have made [two] donations in the same
$100.00 range. Mr. Walsh has a passion for helping kids
because he grew up poor. Mr. Walsh ended up going to juvenile
and veteran schools while [he was] a kid. Mr. Walsh got
involved in sports, and it helped him a great deal. Mr. Walsh
chaired the Juvenile Advisory Board, which is an appointment
by the governor.
Whenever people like Jerry Walsh make contributions to the
Arkansas Wings program, Mr. McBride does not get the money.
The money is given to the Arkansas Wings, and [Mr.] Crawford,
as the [e]xecutive [d]irector[, ] distributes the money to
the various teams which are part of the Arkansas Wings
organization. Mr. McBride has never gone to pick up a check
from [Mr. Walsh].
(Id.) (citations omitted). The parties agree that
the donations for the basketball team are directed to the AAU
director and then to the coaches (Id., ¶ 20).
The parties also agree that Mr. Walsh would mail a check for
the donations to Mr. McBride (Id.).
contends that the donations to Mr. McBride and the Arkansas
Wings were for the purpose of paying for uniforms, meals,
hotel expenses, and other expenses, and that, as a coach, Mr.
McBride personally benefited from the payment of the expenses
(Dkt. No. 14, ¶ 21). Mr. McBride counters that there
were never any donations made to Mr. McBride. According to
Mr. McBride, when donations are made to the Arkansas Wings,
that money is turned over or sent directly to the
organization, and Mr. Crawford then distributes the money to
the various teams (Dkt. No. 22, ¶ 21). Mr. McBride
submits that, when Mr. Walsh made donations, he made the
check payable to the “Arkansas Wings”
also alleges that Mr. McBride would ask DYS providers for
money for his basketball team (Dkt. No. 14, ¶ 22). ADHS
contends that Mr. McBride told Mr. Branch that he was going
to pick up a check from certain providers for his team, and
that Mr. McBride would talk openly about going to pick up a
check (Id.). Mr. McBride denies these allegations
and maintains that he has never told anyone at DHS that he
needed to go and pick up a check (Dkt. No. 22, ¶ 22).
asserts that Mr. McBride called Mr. Walsh on Thursday, August
4, 2016, or Friday, August 5, 2016, and told Mr. Walsh they
were pulling SAYS records (Dkt. No. 14, ¶ 23). Mr.
McBride denies that he spoke with Mr. Walsh on Thursday,
August 4, 2016 (Dkt. No. 22, ¶ 23). He argues that he
contacted Mr. Walsh on Friday, August 5, 2016, to check on
Mr. Walsh's wife (Id.). Mr. McBride maintains
that he had heard that Mr. Walsh's wife was in the
hospital and that he wanted to check on her (Id.).
Mr. McBride submits that Mr. Walsh received several calls
from people all over the state checking on his wife and that
Mr. Walsh stated that he spoke with several DYS people while
his wife was in the hospital because they, like Mr. McBride,
were all concerned about his wife's wellbeing
(Id.). Mr. McBride points to Mr. Walsh's
deposition testimony and states that Mr. Walsh is certain
that he spoke with Mr. McBride on Friday, August 5, 2016,
when Mr. McBride was simply calling to check on Mr.
Walsh's wife (Id.).
McBride also argues that he did not speak with Mr. Walsh
about the contract because Mr. McBride did not know anything
to tell him about the contract (Id.). According to
Mr. McBride, if there were any problem with contract issues,
Mr. Walsh would speak to Marq Golden, who is the assistant
director and leader of the contract evaluation team at DYS
(Id.). Mr. McBride further states that SAYS
submitted its contract proposal to DYS in April 2016 and
that, whenever SAYS submits its contract to DYS, SAYS goes
into a “blackout” period, which means that no one
from the office is supposed to talk to DYS officials about
the contract (Id.). However, Mr. McBride asserts
that one of the SAYS staff members, Cindi Snider, was
surreptitiously communicating to Mr. Golden about SAYS by
making allegations against Mr. Walsh and others at SAYS
(Id.). Mr. McBride also submits that Ms. Snider had
mentioned to the SAYS board that SAYS was not getting the
contract, which she found out three days before the
announcement was supposed to have been made (Id.).
Mr. McBride maintains that Mr. Walsh stated in his deposition
testimony that he already knew in early June 2016 based on
what Ms. Snider said that SAYS was not getting the contract
maintains that, if SAYS had been awarded the contract for
2016, the contract would have been for $70 million (Dkt. No.
14, ¶ 24). Mr. McBride instead asserts that the initial
contract was for $35 million. However, when the contract was
offered to an out-of-state firm from Indiana called Indiana
Opportunities, the amount was increased to $70 million (Dkt.
No. 22, ¶ 24). Mr. McBride contends that, when the
contract went to the Legislative Oversight Committee, the
committee was obviously upset that DHS and DYS officials had
increased the contract from $35 million to $70 million, and
the contract was “killed” (Id.). Mr.
McBride states that the Legislative Oversight Committee
refused to give DHS and DYS the approval for the contract,
and therefore, the programs are now being operated by DYS
to ADHS, Mr. Thompson made the determination to pull
immediately Mr. McBride off any monitoring assignments, and
Ms. Mosley-Sims decided to place Mr. McBride on
administrative leave pending a review of the matter (Dkt. No.
14, ¶¶ 25, 26). Mr. McBride argues that Ms.
Mosley-Sims initiated an administrative review into the
activities of Mr. McBride (Dkt. No. 22, ¶ 25). Mr.
McBride submits that, according to Ms. Mosley-Sims's
testimony at the Administrative Review Hearing, Mr. Thompson
was out on medical leave on August 5, 2016, and that she
conducted an administrative review into what was going on
(Id.). Mr. McBride maintains that, after Ms.
Mosley-Sims told Mr. Thompson what was going on, she directed
Mr. Thompson to take Mr. McBride off any pending assignments,
and Ms. Mosley-Sims then placed Mr. McBride on administrative
leave on Monday, August 8, 2016 (Id.). Mr. McBride
admits that Ms. Mosley-Sims decided to place him on
administrative leave pending a review of the matter
(Id., ¶ 26).
parties agree that, at a meeting on Monday, August 8, 2016,
Mr. Thompson and Ms. Mosley-Sims informed Mr. McBride about
the administrative review (Dkt. No. 22, ¶ 27). Ms.
Mosley-Sims specifically instructed Mr. McBride not to
discuss the administrative review with anyone within or
outside ADHS (Id.). In addition, he was told not to