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Carter v. Military Department of Arkansas

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

September 27, 2019

KAREN CARTER PLAINTIFF
v.
MILITARY DEPARTMENT OF ARKANSAS, et al. DEFENDANTS

          ORDER

          Kristine G. Baker United States District Judge

         Before the Court are defendants’ motions to dismiss (Dkt. Nos. 5, 15). Plaintiff Karen Carter filed suit in this matter asserting claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-3 and 2000e-5(g) (“Title VII”) (Dkt. No. 1). Ms. Carter responded to both motions to dismiss (Dkt. Nos. 9, 17). Further, defendants filed a motion to substitute party (Dkt. No. 22), to which no response has been filed. For the following reasons, the Court grants in part and denies in part defendants’ motions to dismiss (Dkt. Nos. 5, 15), and the Court denies as moot defendants’ motion to substitute party (Dkt. No. 22).

         I. Overview

         A. Pending Motions

         Defendants Arkansas Military Department (“AMD”) employees Jodi Porterfield and Stanley Crisp, in their individual and official capacities, and the Arkansas Department of Emergency Management (“ADEM”) employee Tina Owens, in her individual and official capacity, now move to dismiss Ms. Carter’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants maintain that Ms. Carter fails to state a claim for retaliation on which relief can be granted, that defendants in their individual capacity are not subject to liability under Title VII, and that Ms. Carter’s remaining claims should be dismissed under Rule 12(b)(6) (Dkt. No. 5, at 1-2). In addition, AMD and AMD defendant General Mark H. Berry, in his individual and official capacity, also move to dismiss Ms. Carter’s claims pursuant to Rule 12(b)(6), claiming that Ms. Carter fails to state a claim for retaliation upon which relief can be granted, that General Berry in his individual capacity is not subject to liability under Title VII, that official capacity claims against AMD defendants should be dismissed as redundant to Ms. Carter’s claims against AMD, and that all of Ms. Carter’s remaining claims should be dismissed under Rule 12(b)(6) (Dkt. No. 15, at 1-2).

         B. Allegations From Complaint

         In her complaint, Ms. Carter purports to bring Title VII claims against the AMD and General Berry, Ms. Porterfield, Mr. Crisp, and Ms. Owens in their individual and official capacities (Dkt. No. 1). Ms. Carter contends that General Berry is the Adjutant General of the Military and responsible for supervision of all employees, including Ms. Carter (Id., ¶ 3). Ms. Carter contends that Ms. Porterfield is the Chief Military Fiscal Officer and directly responsible to General Berry (Id.). She alleges that Mr. Crisp is the Director of Public Safety, a division of the Military (Id.), and that Ms. Owens is the Deputy Director of the ADEM, a division of the Military directly responsible to General Berry (Id.).

         Ms. Carter alleges that “[d]efendants have continually discriminated against Plaintiff by retaliating against her for her actions to protect her civil rights by complaining about employment discrimination from March 30, 2015, through January 11, 2018” (Id., ¶ 4). Ms. Carter claims she filed a charge with the Equal Employment Opportunity Commission (“EEOC”) “charging Defendants with actions of discrimination stated herein following an Administrative Order of reinstatement to employment dated October 4, 2017, and her re-employment with the Military on October 18, 2016, and the retaliatory treatment by the Defendants thereafter” (Id., ¶ 5). On April 6, 2018, the EEOC issued a notice of right to sue (Id., ¶ 7), and Ms. Carter filed her complaint on July 5, 2018 (Dkt. No. 1).

         As it relates to her claim, Ms. Carter alleges that, on April 6, 2015, she filed “a grievance alleging disparate treatment, discrimination, harassment and hostile work environment.” (Id., ¶ 8). She alleges that, four days later, she was placed on suspension for 10 days for allegedly violating “Agency policies.” (Id.). On April 28, 2015, Ms. Carter filed another grievance as a result of the 10 days of suspension on April 10, 2015. Also on April 28, 2015, Ms. Carter was given a six month performance improvement plan (Id., ¶ 9).

         On June 8, 2015, Ms. Carter received a termination letter that was dated May 21, 2015, which she maintains was given for, “among other things, . . . non-compliance with the Performance Improvement Plan.” (Id., ¶ 10). She filed a third grievance regarding her termination.

         Ms. Carter alleges that the Military “combined the three grievances and adjudicated all at one hearing” and upheld her termination (Id., ¶ 11). She appealed to General Berry, who upheld her termination (Id.).

         Ms. Carter asserts that, on appeal to the State Employee Grievance Appeal Panel (“SEGAP”), under the State Department of Finance and Administration (“DF&A”), the Military’s termination decision was reversed (Id., ¶ 12). Ms. Carter claims the reversal was “based on the Military’s retaliation against Plaintiff.” (Id.). The Military then appealed the SEGAP decision to DF&A’s Chief Fiscal Officer who affirmed the SEGAP decision (Id., ¶ 13). Ms. Carter maintains that DF&A’s Order “directed reinstatement of Plaintiff in a comparable position she held at the time of termination, backpay, benefits and to be paid an earned special merit bonus.” (Id.). She also alleges that her “negative work history placed in her personnel file as a result of the grievances” was to be “removed within one week of the Order, ” that proof was to be given to Ms. Carter that the information was removed, and that the Military was to give to Ms. Carter a neutral job reference (Id.). Ms. Carter claims that the “negative information included that produced within the Military and that disseminated elsewhere.” (Id.)

         Ms. Carter alleges that, on October 18, 2016, the Military issued a “Memorandum reassigning her from the directorate State Resources to the Department of Public Safety (‘DPS’)” (Id., ¶ 14). She maintains that the job she was assigned “had no duties, ” that she “did not even have a computer to work with, ” and that she had “no job to perform.” (Id.). She also alleges that Mr. Crisp told her that he did not really want her there and had no work for her to do (Id.).

         Then, Ms. Carter alleges she was sent to Camp Robinson Airfield with firefighters, sat there, and did nothing (Id., ¶ 15). She alleges that the “lack of any job assignment was in retaliation” for her “protected activity in filing grievances” (Id.).

         On January 31, 2017, Ms. Porterfield emailed Ms. Carter, told her she had an “offer” for her and asked to meet with her (Id., ¶ 16). Ms. Carter maintains that, at that meeting, Ms. Porterfield “did not have an offer, but a directive to move to a different job with the Deputy Chief of Staff Personnel, to a position titled Human Resources Program Representative.” (Id., ΒΆ 17). According to Ms. Carter, Ms. Porterfield told her ...


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