United States District Court, E.D. Arkansas, Pine Bluff Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
11, 2016, Sharon Silverman, an African American woman, was
terminated from her position as administrator of assisted
living at Trinity Village, a Pine Bluff senior living
community. Silverman has sued Trinity Village as well as her
former supervisor, Donna Stone, in her individual capacity
and in her capacity as the Trinity Village executive
director. Although not divided into counts stating
separate claims for relief, her complaint mentions
discrimination on the basis of race, age, and sex in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 1981, 42 U.S.C. § 1983, the equal
protection clause, and the Arkansas Civil Rights Act.
See Document #1. It also mentions retaliation,
wrongful discharge, breach of contract, and intentional
infliction of emotional distress. See Id. at 1-2, 6.
The heart of her complaint seems to be that she was subjected
to a hostile work environment and eventually was discharged
because of her race and in retaliation for complaining to the
defendants filed an early motion for partial summary judgment
on all claims under section 1983; all claims under the equal
protection clause; any age and sex discrimination claims
brought under section 1981; and the sex and age
discrimination claims under Title VII and the ACRA. Document
#8. The Court granted the motion. It dismissed
Silverman's claims under section 1983, section 1981, and
the equal protection clause, and her claims for sex and age
discrimination under Title VII and the ACRA. Document #24 at
2. The Court stated that Silverman's “race
discrimination claims under Title VII and the Arkansas Civil
Rights Act remain.” Id.
defendants now “move for summary judgment as to
Plaintiff's remaining claims under Title VII and
ACRA.” Document #28 at 2. After reviewing the
parties' briefs and its previous order, the Court
explained that it mistakenly dismissed Silverman's
section 1981 race discrimination claim and it directed the
defendants to brief the merits of that claim. Document #50.
They have done so. With her response to the defendants'
motion for summary judgment, Silverman filed a sworn
declaration in which she adds to her deposition testimony.
The defendants have moved to strike portions of the
declaration which, they say, directly contradict
Silverman's testimony during her deposition. In addition,
the defendants argued in their reply brief that
Silverman's complaint failed to state a claim upon which
relief can be granted for intentional infliction of emotional
distress and breach of contract or wrongful discharge. The
Court notified the parties that it would treat that argument
as a motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) and gave Silverman the opportunity
to respond, which she has done. For reasons that will be
explained, the motion to strike is denied. The motion for
summary judgment is granted in part and denied in part. The
motion for judgment on the pleadings is granted as to the
claim of intentional infliction of emotional distress but
denied as to the claim for wrongful discharge.
court 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
Motion To Strike Silverman's Declaration
well established that a nonmoving party cannot avoid summary
judgment by responding to the motion with an affidavit or
declaration contradicting that party's earlier deposition
testimony. Camfield Tires, Inc. v. Michelin Tire
Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983). In these
situations, however, only “where the conflicts between
the deposition and affidavit raise only sham issues should
summary judgment be granted” despite the conflicts.
Id. at 1366.
the defendants say that certain paragraphs in Silverman's
declaration contradict her prior deposition testimony.
Document #46 at 4. None of the paragraphs, however, fall into
the Camfield Tires category. Silverman testified in
her deposition that she complained to the EEOC on June 23,
2016, only about an incident on June 22, 2016. Paragraphs
12-20 and 26 of her recent declaration do not contradict this
testimony because in them Silverman simply relates
allegations that occurred before June 22 - she does not state
that she reported those events to the EEOC on June 23.
See Document #41. Paragraph 38 adds to but does not
contradict her previous deposition testimony. Document #38-1
at 42. Paragraph 39 likewise adds to but does not contradict
her previous deposition testimony because it explains that
her subsequent conversations with the EEOC - after
June 23 - addressed more than the June 22 incident. Document
#41 at 39; Document #38-1 at 57. Similarly, paragraph 21 of
Silverman's declaration, which explains that she believed
someone's body language was racist, does not contradict
but supplements her prior deposition testimony regarding the
interaction. See Document #38-1 at 42; see Fast
v. Southern Union Co., Inc., 149 F.3d 885, 892 n.7 (8th
Cir. 1998) (declining to find a late affidavit was a sham; it
did not contradict deposition testimony under Camfield
Tires but supplemented it). Finally, Silverman's
recent declaration evidence that Donna Stone discriminated
against her does not contradict her deposition testimony
because in her deposition she was equivocal on this point.
See Document #38-1 at 32-35; Wilson v.
Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir.
1988) (“Ambiguities and even conflicts in a
deponent's testimony are generally matters for the jury
to sort out.”). The motion to strike is therefore
Claims Against Donna Stone Individually
sued Stone in her individual capacity and in her official
capacity as executive director of Trinity Village. Individual
employees cannot be personally liable under Title VII.
McCullough v. Univ. of Ark. for Med. Sciences, 559
F.3 855, 860 n.2 (8th Cir. 2001). Silverman's Title VII
claims against Donna Stone in her individual capacity
therefore must be dismissed. Individual employees may,
however, be liable under section 1981 if they intentionally
cause an employer to infringe on a plaintiff's section
1981 rights. Jones v. Forrest City Gro., Inc., 564
F.Supp.2d 863, 869 (E.D. Ark. 2008).
Claim That She Was Terminated Because Of Her Race
asserts race discrimination in violation of Title VII,
section 1981, and the ACRA. Section 1981 guarantees to all
persons the same right to contract “as is enjoyed by
white persons.” 42 U.S.C. § 1981. Race
discrimination claims under Title VII, section 1981, and the
ACRA are all analyzed under the McDonnell Douglas
burden-shifting framework when, as here, there is no direct
evidence of race discrimination. Evance v. Trumann Health
Servs., LLC, 719 F.3d 673, 677 (8th Cir. 2013);
Bennett v. Nucor Corp., 656 F.3d 802, 818 (8th Cir.
2011); Roark v. City of Hazen, Ark., 189 F.3d 758,
761 (8th Cir. 1999). Silverman therefore must first make a
prima facie showing of intentional discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). That
is, she must show that she is a member of a protected class,
that she was qualified for the position, and that she
suffered an adverse employment action under circumstances
that would permit the court to infer that unlawful
discrimination was involved. See id.; Sallis v.
Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005). If
Silverman establishes a prima facie case, the burden
then shifts to Trinity Village to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.
See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct.
at 1824-25. If this burden is met, Silverman must show that
the proffered reason is actually a pretext for unlawful
discrimination. Id. at 804, 93 S.Ct. at 1825.
Silverman at all times bears the ultimate burden “of
proof and persuasion” that she was the victim of
unlawful discrimination. See Torgerson, 643 F.3d at
has not met her burden of establishing a prima facie
case of racial discrimination because the circumstances do
not permit the court to infer that she was terminated because
of her race. She points to various circumstantial evidence
from the course of her employment that, she says, shows an
intent to discriminate. Her evidence comes up short, however.
undisputed that Silverman was replaced by an African American
woman. While not determinative, this fact is relevant and
tends to undercut Silverman's claim that she was
terminated because of her race. Routen v. Suggs, __
Fed.Appx. __, 2019 WL 2587606 at *2 (8th Cir. June 24, 2019),
citing Walker v. St. Anthony's Med. Ctr., 881
F.2d 554, 558 (8th Cir. 1989).
points to an instance nearly two years before her termination
in which a coworker declared to executive director Stone, in
Silverman's presence, that she would not work for a
“n*****” and then immediately handed Stone her
resignation. In some instances racial slurs or other insults
are highly probative that a subsequent adverse employment
action was motivated by race. See Bryant v. Jeffrey Sand
Co., 919 F.3d 520, 526 (8th Cir. 2019) (noting that
manager's use of racial slurs evidenced a clear intent to
discriminate against the plaintiff); Stacks v. Sw. Bell
Yellow Pages, Inc., 27 F.3d 1316, 1324 (8th Cir. 1994)
(holding that a decisionmaker's comment that “women
were the worst thing” that happened to the company was
direct evidence of sex discrimination). But a single remark
made by a non-decisionmaker in the process of resigning,
“untethered as [it was] from the adverse employment
action at issue” nearly two years later, does not raise
any inference of intentional race discrimination by Stone or
Trinity Village. Hutton v. Maynard, 812 F.3d 679,
686 (8th Cir. 2016); see also Ward v. Int'l Paper
Co., 2006 WL 1061951, at *3 (E.D. Ark. Apr. 20, 2006)
(manager's comment that it would be an excellent time for
the plaintiff to retire, six months before he was terminated,
did not support an inference of age discrimination in the
decision to terminate him).
declaration states that when she first took the job she was
initially paid less than the prior Caucasian administrator of
assisted living. Silverman has not provided any facts to show
that she and the prior administrator had similar experience
and qualifications, so the evidence does not allow the
inference that the pay difference was racially motivated. And
it is undisputed that Silverman received substantial raises
in the course of her employment at Trinity
Village. In short, Silverman has wholly failed to
connect her initial pay for her first six months at Trinity
Village with her termination nearly two years later.
next notes that only she and her staff were initially
required to clock in and out at Trinity Village while no
other salaried employees had to do so. Approximately a year
before she was terminated Silverman raised the issue with
Stone, who ended the requirement. Silverman's evidence
does not connect her race with the requirement that she and
her staff had to clock in. Moreover, nothing connects the
circumstances surrounding that requirement - which ended a
year before Silverman's termination - with her
insists that a Caucasian coworker, April Bogy, treated her
poorly on the basis of race and that Stone did nothing about
it. Silverman says that Bogy openly disrespected her, created
needless disputes with her, refused to attend meetings she
conducted, fabricated errors in her time sheets, and
confronted her in a hostile manner, among other things.
Silverman believes all these things were done on the basis of
race. She says that “Bogy was always doing something to
be racially insensitive and/or offensive.” Document #41
at 8. In relation to one specific incident with Bogy,
Silverman says that Bogy's “body language, tone,
and gestured shaking and pointing her finger in [her]
face” made it “clear” to her that
Bogy's behavior was motivated by racial bigotry.
Id.; Document #38-1 at 51. Regardless, however much
Silverman believes that race played a part in Bogy's
behavior, “[Silverman's] beliefs have no effect and
do not create a genuine issue of material fact that would
preclude summary judgment.” Marler v. Missouri
State Bd. of Optometry, 102 F.3d 1453, 1457 (8th Cir.
1996). Silverman testified that Bogy never used any racial
slurs. Document #28-1 at 3; Document #55-1 at 32-33. It is
clear that the two women did not get along, but that fact