Austin v. Long

Filing 15

ORDER granting in part and denying in part 3 Motion to Dismiss for Failure to State a Claim. Signed by Judge D. P. Marshall Jr. on 3/14/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

PLAINTIFF

GARY V. AUSTIN

v.

No. 2:12-cv-76-DPM

FLETCHER LONG, in his individual
and official capacity as Prosecuting AHorney
for the First Judicial District for the State of Arkansas

DEFENDANT

ORDER
Fletcher Long is the elected Prosecuting Attorney of the First Judicial
District of Arkansas. Gary Austin worked for Long as a deputy prosecuting
attorney from February 2006 to August 2011.

Austin alleges that the

unfavorable terms and conditions of his five-year employment as a deputy
prosecutor, and his eventual termination from that job, were rooted in racial
discrimination. He brings claims under Title VII and§ 1983. Long has moved
to dismiss the suit. Document No. 3. He says that Title VII does not protect
employees situated like Austin. Long also says that sovereign immunity bars
Austin's official-capacity claims, which really target the State of Arkansas.
Kentucky v. Graham,473 U.S. 159,165-66 (1985). And he contends that Austin

has stated no claim against him, in any capacity, that is plausible. Does any
part of Austin's suit survive?
1.

Title VII.

Title VII broadly prohibits racial discrimination in

employment. But it excludes from protection as an u employee" any person
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Chosen by [an elected officer from a State or its subdivision] to be on such

officer's personal staff[.]" 42 U.S.C. § 2000e(f). So the Title VII question is
whether Austin was on Long's personal staff.
The parties agree that no Eighth Circuit case is directly in point. Closest
is the Court's 1984 opinion in Goodwin v. Circuit Court of St. Louis County, 729
F.2d 541. The Court of Appeals affirmed a bench ruling that a juvenile-court
hearing officer could bring a Title VII claim against the circuit judge who
ordered her transfer. The Court rejected the judge's argument that the
hearing officer fell within the u immediate advisor" exception also found in 42
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U.S.C. § 2000e(f): The hearing-officer job itself required Goodwin to assert
her independent judgment free from any direction from others, including [the
judge.] While it can be said that [the hearing officer] offered 'advice' to [the
judge] ... this 'advice' was of a formal, detached nature, from one judicial
officer to another." 729 F.2d at 548.

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The relationship between a prosecutor and deputy prosecutor in
Arkansas is different. A deputy has the authority to file charges in the name
of the prosecutor who appoints him. ARK. CODE ANN.§ 16-21-113(c)(l). In
the words of an older case, the deputy is "generally clothed with all the
powers and privileges of the prosecuting attorney," and he speaks in court
papers in his principal's name. Johnson v. State, 199 Ark. 196,203,133 S.W. 2d
15,18 (1939). The deputy is the prosecutor's voice and hands. He serves at
the pleasure of the prosecutor; the deputy "may be removed at any time by
the prosecuting attorney appointing him." ARK. CODE ANN.§ 16-21-113(£).
This unrestricted removal power weighs heavily for applying the personalstaff exception. Americanos v. Carter, 74 F.3d 138, 143-44 (7th Cir. 1996)
(deputy state attorney general);Ramirezv. San Mateo County,639 F.2d509,513
(9th Cir. 1981) (deputy district attorney); see also, E.E.O.C. v. Reno, 758 F.2d
581, 584 (11th Cir. 1985) (assistant state attorney within the analogous
"personal staff" exception to ADEA). Considering the applicable law about
the deputy prosecutor/prosecutor relationship, and the facts as alleged by
Austin, the personal-staff exception applies. Austin's Title VII claims are
therefore dismissed.

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2. Other claims. Austin doesn't respond to Long's argument that
sovereign immunity bars relief on the official-capacity§ 1983 claim. Long
mostly prevails on the point. To the extent that Austin seeks money damages
from the state, the Eleventh Amendment bars his claim. Murphy v. State of
Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). But his official-capacity claim for

reinstatement, which fits the Ex Parte Young exception to sovereign immunity,
is not barred. Ibid. Neither does Will v. Michigan Department of State Police,
491 U.S. 58 (1989), defeat the claim. A State is not a "person" under§ 1983,
but "official-capacity actions for prospective relief are not treated as actions
against the State." 491 U.S. at71 n.10 (quotations omitted). The reinstatement
claim, and Austin's individual-capacity claims, will proceed.
True, Austin has not yet identified a similarly situated employee of
another race who was terminated. But he has pleaded specific facts about
how his working conditions compared unfavorably with those of a white
deputy prosecutor. And Austin alleges that termination arose from his
inability to continue forwarding office-support payments to that deputy. His
claim is plausible. Discovery may or may not bear it out. Austin need not,
however, prove a comparator at the pleading stage.

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* * *
Motion to dismiss, Document No.3, granted in part and denied in part.
Austin's Title VII claims, and his official-capacity claim for damages, are
dismissed with prejudice. Austin's individual-capacity claim for damages,
and his official-capacity claim for reinstatement, will go forward.
So Ordered.

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