Winston v. Arkansas State Police Department

Filing 29

ORDER granting 17 Motion for Summary Judgment. Plaintiff's claims are dismissed with prejudice. Signed by Judge D. P. Marshall Jr. on 6/7/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
DARRELL L. WINSTON
v.

PLAINTIFF
No. 2:10-cv-172-DPM

DEPARTMENT OF ARKANSAS STATE POLICE

DEFENDANT

ORDER

Darrell Winston faced a hard choice-resign as an Arkansas· State
Police Corporal or be fired and lose his retirement. He was involved in
returning a driver's license to a young man who had been cited for driving
under the influence. Winston is black. Did race motivate the State Police in
these circumstances? Would Winston have faced the same hard choice had
he been white? If this case were tried, those would be the questions for the
jury. The State Police have moved for summary judgment on Winston's §
1983 and Title VII claims. Most of the material facts are undisputed. The
Court takes those genuinely disputed material facts in the light more
favorable to Winston. Lynn v. Deaconess Medical Center-West Campus, 160
F.3d 484, 486 (8th Cir. 1998).

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1. Facts. In April 2010, trooper Dwight Griffith arrested Matthew

Logan Jones, a minor, for driving while intoxicated. Griffith seized Jones's
driver's license as state law required. Jones told Griffith that "Mr. Darrell"
would "squash" the ticket. N2 23 at 20. Griffith handed off the license and
DWI paperwork to Darrell Winston at Winston's request.
The following week, Griffith encountered Jones again at a sobriety
checkpoint. To Griffith's surprise, Jones produced the same driver's license
Griffith had seized from him.

Griffith immediately approached Winston,

who was also at the checkpoint.

Griffith showed him the license and

Winston "kind of got the deer in the headlights look for a second, a
surprised look[.]" N2 17-3 at 6. Winston said that he might have dropped
the license while he was inspecting the papers at the Phillips County
Sheriff Department. NQ 17-4 at 3.
The State Police launched an investigation. NQ 17-4 at 6. Winston
eventually admitted to an internal affairs investigator that he had given the
license and paperwork to a Phillips County official at that person's request,
knowing from previous experience that the official fixed tickets. NQ 17-9 at
16.

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2. Section 1983. Winston sued the Department of Arkansas State

Police under Title VII and§ 1983. He did not sue any natural person. As
Winston concedes, NQ 24, at 12-13, this is fatal for his§ 1983 claims. Monroe
v. Arkansas State University, 495 F.3d 591, 594 (8th Cir. 2007). Those claims

are dismissed with prejudice.
3. Title VII. Congress has abrogated the State's sovereign immunity

for actions under Title VII. Winbush v. Iowa, 66 F.3d 1471 (8th Cir. 1995). So
Winston might still recover on his wrongful-termination claim if race was a
motivating factor in the State Police's decision and Winston would not
have been discharged regardless of his race. Richardson v. Sugg, 448 F.3d
1046, 1057 (8th Cir. 2006). Without direct evidence (which the parties do
not cite and the Court does not see), Winston can raise an inference of
discrimination by making a prima facie case under the familiar McDonnell
Douglas framework.

Lake v. Yellow Transportation, Inc., 596 F.3d 871, 873

(8th Cir. 2010). To make that case he must prove four elements: (1) that he
is a member of a protected class; (2) he met the State Police's legitimate
expectations; (3) he suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination. Lake, 596 F.3d at
874. The dispute is about the last two.
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4. Termination. If Winston cannot raise a fact issue about suffering
an adverse employment action, his claim fails at the outset. He admits that
during his internal affairs interview he said several times that he knew he
was going to be fired.

N2 23 at 5.

Winston also admits that he. had

prepared a signed letter of retirement/ resignation before he left for his
May 2010 interview in Little Rock. N2 23 at 5.
Winston said in his deposition that State Police Lt. Tim K'Nuckles
called him into his office after that interview and told him, nDarrell, I'm
disappointed in you ... You will be terminated, lose your retirement, and it
will be hard for you to get another job in law enforcement with a
termination on your [r]esume."

NQ 17-20 at 45 (transcript pagination).

Winston assumed then that the investigation was over, he says, and he
gave K'Nuckles his prepared retirement letter. N2 17-13. A few days later
Winston sent a letter purporting to walk back his retirement and resign
instead. NQ 17-16.
The issue is constructive discharge.

Winston contends that

K'Nuckles uknew that [his alleged statement that Winston would lose his
retirement] would put a tremendous amount of pressure and stress on
[him], and would force him to take a resignation[.]" N2 24 at 26. The Eighth

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Circuit has held that u an employee's being told that he or she will be fired
for cause does not, in and of itself, constitute constructive discharge."

Summit v. S-B Power Tool (Skil Corp.), 121 F.3d 416, 421 (8th Cir. 1997). The
Court of Appeals also noted, though, that being put to the choice between
resignation with retirement benefits and termination without them may
create a fact issue here. Ibid., citing Downey v. Southern Natural Gas Co., 649
F.2d 302,305 (5th Cir. 1981). Other courts have agreed. EEOC v. University

of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002); Spulak v. K Mart Corp., 894
F.2d 1150 (lOth Cir. 1990). This Court assumes, therefore, that the law is as
Winston argues it to be: a nuclear threat to an employee's retirement
security could be as coercive as the changes in working conditions that
typify constructive discharge. On this assumption, Winston has made out
the adverse-employment-action element of his prima facie case.
5. Disparate treatment. The circumstances of Winston's discharge

would raise an inference of discrimination if similarly situated employees
outside the protected class were treated differently. Lake, 596 F.3d at 874.
Winston says that white troopers who were guilty of comparable
misconduct were not told they would be terminated. E.g., NQ 24 at 16.

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There may or may not be two lines of Eighth Circuit authority on
how similarly situated a plaintiff must be with his comparators to make a

prima facie case. Compare Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir.
2012) with Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 858 (8th Cir. 2005)
(Colloton,

J.,

concurring). But the cases agree that at the pretext stage the

plaintiff must show that he and his comparators were "similarly situated in
all relevant respects- a rigorous standard at the pretext stage." Torgerson v.

City of Rochester, 643 F.3d 1031, 1052 (8th Cir. 2011) (en bane) (quotation
omitted).

And in light of that standard, it is unnecessary to linger on

Winston's prima facie case. Assuming he has made one, his claim fails on
pretext.
6. Pretext. The State Police must produce a nondiscriminatory reason

for the action it took. It has done so. The State Police have met their
burden- maintaining all the while that no one coerced Winston's
resignation and that the State Police did not terminate him at all. Has
Winston produced enough evidence to create a genuine issue of material
fact on the ultimate question of discrimination? Torgerson, 643 F.3d at 1052.
No. The record from the internal affairs investigation shows that
Winston's fellow troopers, his superiors, and Winston himself considered
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his offense to be grave from the moment it was discovered.

Trooper

Griffith said he believed Winston and a Phillips County official "took care
of [his] DWI behind [his] back." NQ 17-3 at 7; see also NQ 17-4 at 5. Winston
admitted that the official had fixed "10-20-30" of his speeding tickets, as
well as DWis issued by other troopers.

NQ 17-9 at 17, 26.

And the

questioning by the Internal Affairs official who interviewed Winston
showed a serious concern that Winston had succumbed to official
corruption. NQ 17-9 at 13, 27.
Winston responds with a list of white troopers who were guilty of
misconduct but not forced to resign. NQ 24 at 16. At the pretext stage, "the
individuals used for comparison must have dealt with the same supervisor,
have been subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances."

Wiennan v.

Casey's General Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quotation omitted).
Some of the white troopers were guilty of serious misconduct. Some were,
like Winston, dishonest during investigations into that misconduct. NQ 23

at 12-15.

But none was "similarly situated in all relevant respects."

Chappell, 675 F.3d at 1118 (quotation omitted).

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The closest to a comparator is Dale Wood, a white officer who
refused to arrest a federal officer for DWI, charging public intoxication and
careless driving instead.

NQ 23, at 15.

Wood was suspended for five

days- but a black trooper also participated in the arrest and received the
same discipline. Ibid. Winston identifies no other trooper who admitted
knowingly cooperating in an attempt to fix a ticket.
The Court has considered Winston's other evidence, including
statistics (presented without expert analysis) that suggest black troopers
are terminated more often than white troopers. NQ 24 at 16. Winston says
that 57% of troopers terminated between 2007 and 2011 are black, though
black troopers are only 15% of the force.

Only seven troopers were

terminated during that period. NQ 24-2 at 18-23. (One white trooper was
terminated twice and reinstated twice.) The Court gives those numbers all
the weight they can bear. Compare Harper v. Trans World Airlines, Inc., 525
F.2d 409, 412 (8th Cir. 1975). It remains undisputed that Winston engaged
in serious misconduct that directly conflicted with his obligations as a law
officer. Winston has pointed to no similarly situated and similarly culpable
white officer who kept his or her job. No reasonable jury could say on this
record that racial discrimination prompted Winston's discharge.
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***
Motion for summary judgment, NQ 17, granted. Winston's claims are
dismissed with prejudice.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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