United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge
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).
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).
Allegations From Complaint
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.).
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).
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).
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.
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
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.”
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.).
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.).
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.,
¶ 17). According to Ms. Carter, Ms. Porterfield told her