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McBride v. Arkansas Department of Human Services

United States District Court, E.D. Arkansas, Western Division

January 7, 2019

ISSAC MCBRIDE PLAINTIFF
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES DEFENDANT

          OPINION AND ORDER

          Kristine G. Baker, United States District Judge.

         Plaintiff 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).

         I. Factual And Procedural Background

         Unless 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).

         Mr. 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 (Id.).

         The parties disagree about events that occurred on Thursday, August 4, 2016. ADHS contends that, at noon on Thursday, August 4, 2016, [1] 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).

         The 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.).

         The 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 (Id.).

         ADHS 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.).

         The 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).

         Mr. 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.).

         ADHS 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).

         The 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.).

         Mr. 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).

         Mr. 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 condition (Id.).

         Mr. 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, ¶ 17).

         The 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.).

         ADHS 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 website.
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 [10] 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 expenses.
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].[2]

(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.).

         ADHS 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” (Id.).

         ADHS 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).

         ADHS 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.).

         Mr. 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 (Id.).

         ADHS 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 (Id.).

         According 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).

         The 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 ...


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