Baxter et al v. Independence County et al

Filing 63

ORDER denying 32 summary judgment on Susan Baxter's Fair Labor Standards Act and Arkansas Minimum Wage Act claims against defendants in their official capacities, and granting Tye Baxter's claims; and granting 31 summary judgment on all of Susan Baxter's remaining claims. Signed by Judge Brian S. Miller on 9/30/2021. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION
SUSAN BAXTER and TYE BAXTER,
on behalf of themselves and all
others similarly situated
v.

PLAINTIFFS

CASE NO. 1:19-CV-00069-BSM

INDEPENDENCE COUNTY, et al.

DEFENDANTS
ORDER

Summary judgment is denied on Susan Baxter’s Fair Labor Standards Act (FLSA) and
Arkansas Minimum Wage Act (AMWA) claims against defendants in their official capacities,
and granted on Tye Baxter’s claims [Doc. No. 32]. Summary judgment is granted on all of
Susan Baxter’s remaining claims [Doc. No. 31].
I. BACKGROUND
Susan and her son, Tye Baxter, are suing Independence County, Sheriff Shawn
Stephens, and Deneschia Wilson under the FLSA and AMWA for failing to accurately award
compensatory time-off. Ms. Baxter is also suing Independence County under the Age
Discrimination in Employment Act (ADEA), Arkansas Whistle-blower Act, and the Arkansas
Civil Rights Act (ACRA) claiming that defendants discriminated against her and retaliated
against her. The undisputed facts are as follows.
The Baxters were jailers at the Independence County Detention Center. Resp. Defs.’
FLSA F. ¶ 1, Doc. No. 51. They worked twelve hour shifts. As a sergeant, Ms. Baxter also
worked “on call” time, which was not recorded on her time sheets. Id. ¶ 16. The Baxters

admit that they were compensated for all of the time recorded on their time sheets, but dispute
that the time sheets were complete. Id. ¶¶ 4, 8.
During her employment, Ms. Baxter complained to her direct supervisor, Lynn Croslin,
about conditions in the jail. Resp. Defs.’ F. ¶ 6, Doc. No. 53. Croslin reported the complaints
to Wilson, a jail administrator, who did not communicate the complaints to Sheriff Stephens.
Id. ¶ 8. Ms. Baxter subsequently applied for a street patrol position. Although her application
was selected for board review, she was not chosen to fill one of the three positions. Id. ¶¶
12–13. Mr. Baxter, however, was selected. Id. ¶ 23. Ms. Baxter resigned her position. Id.
¶ 27.
Ms. Baxter alleges that defendants failed to accurately award compensatory time off,
forced her to forfeit compensatory time off, and did not pay her in compliance with the FLSA
and AMWA. She also alleges that she was denied a street patrol position and was
constructively discharged as a result of her complaints about jail conditions. Mr. Baxter
alleges that defendants failed to accurately award compensatory time off, forced him to forfeit
compensatory time off, and did not pay him in compliance with the FLSA and AMWA.
Defendants move for summary judgment.
II. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute as to any material
fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50 (1986). Once the moving party

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demonstrates that there is no genuine dispute of material fact, the non-moving party may not
rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,
340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence
demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must
be drawn in a light most favorable to the nonmoving party. Holland v. Sam’s Club, 487 F.3d
641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility determinations are
made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).
III. DISCUSSION
A.

FLSA and AWMA Claims

Summary judgment is denied on Ms. Baxter’s FLSA and AWMA claims because the
parties dispute whether time sheets accurately reflect all of the hours she worked. Summary
judgment is granted on Mr. Baxter’s FLSA and AWMA claims because no similar disputes
of material fact exist.
FLSA and AWMA claims are analyzed similarly because both impose the same
overtime requirements. See Arkansas Dep’t of Veterans Affairs v. Okeke, 466 S.W.3d 399,
403 (Ark. 2015). Law enforcement officers must be given compensatory time-off or overtime
pay at a rate of 1.5 times their regular pay rate when they work more than 86 hours within a
fourteen-day period. 29 U.S.C. § 207(a), (k); 29 C.F.R. § 553.230(c). An employer must
allow employees to use compensatory time off within a reasonable time of their request, when
doing so does not “unduly disrupt” the agency’s operations. 29 U.S.C. § 207(o). When an

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employer fails to maintain proper records, an employee is required to show the extent of
uncompensated work as a matter of just and reasonable inference. Carmody v. Kansas City
Bd. Of Police Com’rs, 713 F.3d 401, 406 (8th Cir. 2013). The burden then shifts to the
employer to dispute the inference. Id.
1. Susan Baxter
Whether Ms. Baxter’s time-sheets accurately reflect the number of hours she worked
is an issue that must be decided at trial because it is in dispute. Defendants admit that there
is a dispute of fact concerning Ms. Baxter’s FLSA claim for on-call time, and do not seek
summary judgment on that claim. Defs.’ Br. at 9, Doc. No. 34. They argue, however, that
summary judgment is appropriate on her remaining FLSA claims because she recorded her
time, confirmed that her time sheets were correct by signature and during her deposition, and
received compensatory time off for the recorded time. Id. at 7. Ms. Baxter admits that she
worked the hours recorded on her time sheets but states that the time sheets were not
complete, and that she worked approximately five to six hours a week that were not recorded
on the time sheets. S. Baxter Dep. at 163:13-164:12; 235–238, 240:2, Doc. No. 32-1. To
support her claim that she was required to forfeit compensatory time-off, Ms. Baxter asserts
that Wilson told her there was a “use it or lose it” policy that required her to either take all of
her comp time by the end of the year or it would be “go off the books.” Id. at 165:21– 166:13. This is further supported by Croslin’s testimony that Wilson would give out unrecorded
“ghost hours” to employees that did not use all of their compensatory time off by the end of

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the year. Croslin Dep. 148:11–25, Doc. No. 49-1.
2. Tye Baxter
Summary judgment is granted on Mr. Baxter’s claims because there are no material
issues of fact in dispute. Although Mr. Baxter alleges that defendants failed to give him
compensatory time off when requested, Pls.’ Resp. Br. at 3–4, Doc No. 50, in his deposition
he could point to no instance when defendants failed to properly compensate him or when he
was denied compensatory time off for a reason other than issues of under-staffing. T. Baxter
Dep. at 73–75; 99:18–22, Doc. No. 32-2. Bare allegations are not sufficient to overcome
summary judgment. Holaway v. Stratasys, Inc., 771 F.3d 1057, 1059 (8th Cir. 2014).
3. Individual capacity claims
Summary judgment is granted on Ms. Baxter’s individual capacity claims against
Wilson because nothing in the record indicates that Wilson was involved in the jail’s timekeeping and compensation policies. S. Baxter Dep. at 207:3–6, 208:5–12; Wilson Decl. ¶ 3,
Doc. No. 32-3; See Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013) (quoting Riordan v.
Kempiners, 831 F.2d 690, 694 (7th Cir. 1987)) (“individual employee must be “responsible
in whole or part for the alleged violation” to incur individual liability”). Ms. Baxter’s motion
to dismiss her claims against Sheriff Stephens, in his individual capacity, is granted. Pls.’
Resp. Br at 7.

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B.

Remaining Claims
1. The Arkansas Whistle-blower Act

Summary Judgment is granted on Ms. Baxter’s retaliation claim under the Arkansas
Whistle-blower Act because she has not shown that her complaints have a causal relationship
to an adverse employment action. See Ark. Code. Ann. § 21-1-604.
The Arkansas Whistle-Blower Act prohibits a public employer from taking adverse
action against an employee for a good faith report of a violation of a law, rule, or regulation.
Id. § 21-1-603. Independence County argues that Ms. Baxter’s complaints of overcrowding,
under staffing, insufficient mats for inmates, and jailers passing medication were not reports
under the Arkansas Whistle-blower Act because they were known issues that are common in
correctional settings. Defs.’ Br. Mot. Part. Summ. J. at 8–11, Doc. No. 33.

It is not

necessary to decide whether her complaints were reports under the statute because she has
failed to show that she faced an adverse action as a result of her complaints.
Ms. Baxter alleges that she faced threats, intimidation, failure to promote, and
constructive discharge as a result of her complaints. Compl. ¶¶ 22–23, Doc. No. 1. In her
deposition, however, she could not point to any specific threats made against her. S. Baxter
Dep. at 150:22-151:9, Doc. No. 32-1. She also cannot show a link between her complaints
and her failure to be selected for a street patrol position because the interview panel did not
have access to the candidates’ prior disciplinary history or work performance. Resp. F. ¶ 16,
Doc. No. 53. Although Aaron Moody sat on the interview board, and Baxter had previously

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complained to him about passing medication, he did not discuss anything about the candidates
with the board prior to the interviews. Moody Decl. ¶ 10.
Finally, Ms. Baxter argues that she was constructively discharged as a result of her
complaints to jail administrators about overcrowding, under staffing, and the administration
of medication by jailers, because nothing was done to improve the jail conditions, she
received an unmerited write-up, and she was denied a promotion. Compl. ¶ 23; Resp. Mot.
Part. Summ. J. at 15, Doc. No. 52. Nothing in the record, however, shows that Independence
County forced her resignation or that her resignation was reasonably foreseeable given the
working conditions. Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000)
(“loss of supervisory responsibilities, feeling of being unfairly criticized, dissatisfaction with
work assignments, and loss of pay are insufficient to constitute a constructive discharge”).
2. Age Discrimination
Summary judgment is granted on Ms. Baxter’s age discrimination claim because she
has not shown direct evidence of discrimination or satisfied the requirements of the
McDonnell Douglas burden-shifting framework.
Under the Age Discrimination in Employment Act (ADEA), a plaintiff can survive
summary judgment either by providing proof of direct evidence of discrimination or by
meeting the requirements of the McDonnell Douglas burden-shifting framework. Perry v.
Kunz, 878 F.2d 1056, 1058 (8th Cir. 1989). Direct evidence is that which shows “a specific
link between the alleged discriminatory animus and the challenged decision, sufficient to

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support a finding by a reasonable fact finder that illegitimate criterion actually motived” the
adverse employment action. Griffith v. City of Des Mines, 387 F.3d 733, 736 (8th Cir. 2004)
(quoting Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997)). When there
is no direct evidence of discrimination, a claim brought under the ADEA is evaluated using
the McDonnell Douglas framework. Regel v. K-Mart Corp., 190 F.3d 876, 879 (8th Cir.
1999). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of
discrimination and then the burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for the adverse employment action. 411 U.S. 792, 802 (1973). If
the employer articulates a nondiscriminatory reason, the plaintiff must show that the stated
reason for the employer’s conduct was pretext. Id. at 804. To establish a prima facie case of
race discrimination, a plaintiff must show (1) membership in a protected class; (2) that the
plaintiff was meeting her employer’s legitimate job expectations; (3) that the plaintiff suffered
an adverse employment action; and (4) that similarly situated employees outside the protected
class were treated differently. Gibson v. American Greetings Corp., 670 F.3d 884, 853 (8th
Cir. 2012).
a.

Direct Evidence

As direct evidence of discrimination, Ms. Baxter argues that a member of the interview
board, Bret Ward, told her that he “felt the Sheriff and Moody technically wanted younger
people and not old blood.” S. Baxter Dep. at 112:18–20. Independence County points out
that this is not direct evidence of age discrimination because Ms. Baxter admitted in her

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deposition that this comment related to the applicants’ training and not their age. Def.’s Br.
Mot. Part. Summ. J. at 19–20; Defs.’ Reply at 3–4, Doc. No. 56; S. Baxter Dep. at 112:12 to
113:24. The County also argues that even if Ward made those comments, they were made in
reference to Andy Rogers, who received the position. Def.’s Reply at 4.
Although a hiring decision motivated by the applicants’ training does not in itself
constitute age discrimination, it cannot be said that the hiring decision was “wholly motivated
by factors other than age.” Hilde v. City of Eveleth, 777 F.3d 998, 1005 (8th Cir. 2015)
(quoting Hazen Paper Co. v. Biggins, 113 U.S. 604 (1993)). The problem is that the record
is devoid of any evidence of the ages of the people hired. While Ms. Baxter asserts that the
individuals hired were younger than her, she does not provide their ages. Without some
evidence of the ages of the new hires, Ward’s statement does not establish the “specific link”
necessary to constitute direct evidence of age discrimination.
b.

McDonnell Douglas

Independence County further argues that Ms. Baxter has failed to establish a prima
facie case of discrimination because she admitted that the County wanted to hire someone
young because it wanted to train someone in a different way. S. Baxter Dep. at 112:12 to
113:24. See Gross v. FBL Financial Services, Inc. 557 U.S. 167, 176-77 (2009) (mixedmotive claims not authorized under the ADEA). Without knowing the ages of the people
actually hired, it is difficult to decide whether Baxter has established a prima facie case
Even if Baxter has made out a prima facie case of age discrimination, she cannot show

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that the County’s reasons for its hiring decision–the candidates’ interview performance–is
pretext. This is true because the board received no information about the candidates other
than their application, the board recommended the two highest scoring candidates based on
the standard scoring sheet, and Sheriff Stephens, the ultimate decision maker, hired the
candidates recommended by the board. Moody Decl. ¶ 25, 27; Green Decl. ¶ 19–20, Doc. No.
31-6; Rawlins Decl. ¶ 21; Ward Decl. ¶ 18, 21, 24; Stephens Decl. ¶ 28, 34, 41. Doc. No. 312.
Ms. Baxter’s second pretext argument is based on the fact that she was not interviewed
for another position that opened approximately two months later. Pls.’ Resp. Br. at 13. It is
undisputed, however, that the Sheriff already had her interview score from the first interview.
See S. Baxter Dep. 90:10; Stephens Decl. ¶ 27. The December 20, 2018 recommendation
letter sent to Sheriff Stephens included the interview scores of the candidates. Letter to
Stephens, Doc. No. 31-2, Ex. A. Out of a possible 420 points, Andy Rogers scored 384, Tye
Baxter scored 324, unidentified applicant scored 236, Susan Baxter scored 224, and a second
unidentified applicant scored 197. Id. Ms. Baxter testified that on February 4, 2019, after
Andy Rogers and Tye Baxter were hired, Moody told her that her application was still on file
and that “he felt like [she] was in the top three.” S. Baxter Dep. at 119-120. Based on that
conversation, Ms. Baxter argues that she should have been hired, or at least interviewed by
the new board, when the next position became available. See Pls.’ Resp. Br. at 10, 13. After
the board sends a recommendation, Sheriff Stephens reviews each candidate’s application and

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interview score. Stephen’s Decl. ¶ 19. Even if Ms. Baxter was the third highest-scoring
candidate from her round of interviews, her score was not particularly high, and she was not
one of the two candidates recommenced by the board. Stephen’s Decl. ¶ 23 (“I do not recall
any time I have rejected the board’s recommendation of a candidate.”). The fact that Sheriff
Stephens held another round of interviews after both recommended candidates were hired
does not suggest discrimination. Additionally, there was no need for Ms. Baxter to interview
again when her previous interview score, from only two months prior, was on file. The facts,
taken in the light most favorable to Ms. Baxter, do not show an illegal animus based on age,
that tainted the board’s interview process.
3. Arkansas Civil Rights Act and Section 1983
Summary judgment on Ms. Baxter’s retaliation claims under the Arkansas Civil Rights
Act and 42 U.S.C. section 1983 is denied as moot because those claims were previously
dismissed. Doc. Nos. 22, 24.
IV. CONCLUSION
For the foregoing reasons, summary judgment is denied on Susan Baxter’s FLSA and
AMWA claims, and granted on all other claims.
IT IS SO ORDERED, this 30th day of September, 2021.

________________________________
UNITED STATES DISTRICT JUDGE

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