Henry v. Hobbs et al

Filing 31

SUBSTITUTED 30 OPINION AND ORDER granting 18 Motion for Summary Judgment and dismissing with prejudice Henry's equal protection and 42 U.S.C. § 1981 claims against Mr. Burl, Mr. Payne, and Mr. Andrews in their individual capacities. Signed by Judge Kristine G. Baker on 1/30/2014. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
HELENA DIVISION
JERRY HENRY
v.

PLAINTIFF
Case No. 2:13-cv-00044-KGB

RAY HOBBS, Director,
Arkansas Department of Correction,
DANNY BURL, DEXTER PAYNE, and
JEREMY ANDREWS, Individually and
as Agency Representatives

DEFENDANTS

SUBSTITUTED OPINION AND ORDER1
Plaintiff Jerry Henry, a former employee of the Arkansas Department of Correction
(“ADC”), brings this action under 42 U.S.C. § 1983 alleging that he was wrongfully terminated
on the basis of his race in violation of the Fourteenth Amendment and 42 U.S.C. § 1981. By
prior Opinion and Order, the Court granted in part and denied in part defendants’ motion to
dismiss and dismissed Mr. Henry’s official-capacity claims, due process claims, and remaining
claims against defendant Ray Hobbs in his individual capacity (Dkt. No. 13). This case then
proceeded on Mr. Henry’s equal protection and § 1981 claims against defendants Danny Burl,
Dexter Payne, and Jeremy Andrews in their individual capacities.
Before the Court is defendants’ motion for summary judgment (Dkt. No. 18). Mr. Henry
has responded (Dkt. No. 23), and defendants have replied (Dkt. No. 24). For the reasons set
forth below, the Court grants defendants’ motion for summary judgment.

1

The Court enters this Substituted Opinion and Order solely to replace citations and
references to Mr. Henry’s first amended complaint, which the Court previously struck from the
record (Dkt. Nos. 9, 11), with citations to Mr. Henry’s original complaint (Dkt. No. 1).

I.

Factual Background

The following facts are taken largely from defendants’ statement of undisputed facts,
attached exhibits, and record evidence (Dkt. No. 20).

Mr. Henry did not file a response

admitting or denying specifically the facts in defendants’ statement of undisputed facts, but he
includes in his memorandum response a “statement of the facts” section with some citations to
record evidence (Dkt. No. 23, at 1-3). Mr. Henry has not complied with Local Rule 56.1(b),
which requires that the non-moving party opposing summary judgment file “in addition to any
response and brief, a separate, short and concise statement of the material facts as to which it
contends a genuine dispute exists to be tried.” Local Rule 56.1(b) (emphasis added). For these
reasons, the Court accepts defendants’ statement of undisputed facts, where supported by the
record or not specifically contested by Mr. Henry, as true to resolve this motion. See Robinson v.
American Red Cross, 753 F.3d 749, 754-55 (8th Cir. 2014) (considering facts in movant's
statement of uncontested facts to be undisputed where non-movant failed to submit responses to
movant’s statement, through a “separate, short and concise statement of the material facts as to
which it contends a genuine dispute exists to be tried,” as required by this Court’s Local Rule
56.1).
A.

Mr. Henry’s Employment Background

Until June 2011, Mr. Henry was employed by the ADC as a correctional officer at the
ADC’s East Arkansas Regional Unit (“EARU”). Mr. Henry held the position of sergeant at the
time of his allegedly unlawful termination in June 2011. Mr. Burl has been the warden at the
EARU since May 2010. In April, May, and June of 2011, Mr. Payne was the deputy warden at
the EARU, and Mr. Andrews was a field major at the EARU. Mr. Henry, Mr. Burl, and Mr.
Payne are African American. Mr. Andrews is Caucasian. Mr. Burl terminated Mr. Henry’s

2

employment following an investigation into allegations that Mr. Henry was providing tobacco to
an inmate.
B.

Mr. Andrews’s Investigation

In March 2011, during an investigation into the introduction of contraband into the
EARU through staff, a confidential informant told Mr. Andrews that inmate David Morgan was
receiving tobacco from a staff member and selling and distributing tobacco throughout the unit.
On March 30, 2011, a search team discovered tobacco and a lighter in the possession of inmate
Isaac Evans. Mr. Andrews subsequently interviewed Mr. Evans. Mr. Evans stated that the
tobacco belonged to Mr. Morgan and that Mr. Morgan had approached Mr. Evans about moving
tobacco throughout the EARU. Mr. Evans also claimed that Mr. Morgan was receiving the
tobacco from Mr. Henry; Mr. Henry had passed tobacco to Mr. Evans in the “count room” on
March 25, 2011, and other occasions; Mr. Evans witnessed Mr. Morgan give Mr. Henry $500.00
on March 27, 2011; and Mr. Henry was scheduled to bring in another bundle of tobacco on
March 30 or 31, 2011 (Dkt. No. 20-1, at 4-5). In addition, Mr. Evans advised that there was
more tobacco hidden elsewhere in the barracks, and a second search produced tobacco, money,
and a tattoo gun in the specific locations identified by Mr. Evans.
According to the record, Mr. Andrews reviewed camera footage to confirm the allegation
that Mr. Morgan and Mr. Henry entered the “count room” on March 25, 2011. The count room
is a computer area in which the prison monitors prisoner movement.

Mr. Andrews’s

investigation report states that Mr. Morgan would have been considered out of place, and out of
assignment, if found to be in the count room and that Mr. Morgan should not have been called by
the staff for anything concerning the count room or its operations. According to Mr. Andrews’s

3

report and deposition testimony, the prison had put out directives not to use Mr. Morgan in the
count room area or as a “clerk” (Dkt. No. 20-1, at 3; Dkt. No. 20-3, at 14).
Mr. Andrews and others conducted a search of Mr. Henry when he reported to work on
the evening of March 30, 2011. The search did not yield any contraband. Mr. Andrews
questioned Mr. Henry, and Mr. Henry denied bringing any type of contraband into the unit for
any inmate or receiving any money from any inmate. Mr. Henry did not deny having Mr.
Morgan in the count room and stated that he had requested Mr. Morgan’s assistance with a shift
dismissal form on the computer, although Mr. Henry said he knew that he was not to have Mr.
Morgan assisting as a clerk in the count room (Dkt. No. 20-1, at 6).
Mr. Andrews also questioned Mr. Morgan about being in the count room, and Mr.
Morgan said he went in the count room twice with Mr. Henry to assist with a form. According
to Mr. Andrews’s report, he purposely did not question Mr. Morgan about the contraband in
order to determine if Mr. Morgan would later speak to another individual regarding the
shakedown or his involvement in the contraband.
On April 1, 2011, Mr. Andrews submitted to Mr. Burl his report and a request for an
Internal Affairs investigation. Mr. Andrews listed in his report several questions raised by his
investigation that he felt corroborated Mr. Evans’s statements implicating Mr. Henry and Mr.
Morgan (Dkt. No. 20-1, at 7). Mr. Andrews specifically requested that Mr. Evans be given a
computerized voice stress analysis (“CVSA”) test and that, if necessary, all parties be tested to
determine if any disciplinary action should be administered (Dkt. No. 20-1, at 8). Mr. Burl
subsequently forwarded that request to the ADC Internal Affairs (Dkt. No. 20-1, at 9).

4

C.

Internal Affairs Investigation And Voice Stress Test

ADC Internal Affairs assigned the matter to an investigator, Margaret Rogers, who
interviewed Mr. Evans on April 29, 2011, and Mr. Morgan and Mr. Henry on May 2, 2011.
Another individual, Ruth Clark, conducted CVSA tests in connection with those interviews.
During the CVSA tests, Mr. Evans responded “yes” when asked if Mr. Morgan told him that Mr.
Henry was bringing the tobacco into the unit and if Mr. Evans saw Mr. Morgan give the $500.00
to Mr. Henry. No deception was indicated for either answer. Mr. Morgan denied that Mr. Henry
ever brought him any type of tobacco product or that he had given Mr. Henry money to pay for
tobacco; deception was indicated for both responses. Mr. Henry denied bringing in any type of
tobacco product to Mr. Morgan or accepting money from Mr. Morgan; deception was indicated
for both responses (Dkt. 20-1, at 13-15).
D.

Mr. Henry’s Termination

Mr. Burl terminated Mr. Henry on June 30, 2011. In his termination memorandum to Mr.
Henry, Mr. Burl recites that ADC Internal Affairs found that Mr. Henry had been deceptive in
his CVSA test and that Mr. Henry admitted that he had called Mr. Morgan into the count room
and asked him to help work on the computer. Mr. Burl terminated Mr. Henry for committing
three offenses prohibited by the ADC Employee Conduct standards:
AD 10-19. Sec. 17(a) Failure to perform or carry out work related
instructions, when such instructions are reasonable and within the
employee’s ability to perform and would not pose a safety or welfare
hazard to the employee.
17(b) Deliberate refusal to carry out reasonable work requests and or
instructions will be construed as insubordination.
18(b) Falsification of written/verbal/statements/information.

5

(Dkt. No. 20-1, at 2, 16-17). According to excerpts of the ADC Employee Conduct Standards
submitted in the record by Mr. Henry, all three of these are terminable offenses (Dkt. No. 23-6,
at 9).
Mr. Henry appealed his termination to the Arkansas State Employee Grievance Appeal
Panel. The panel held a hearing and upheld the decision to terminate Mr. Henry, finding that the
ADC followed its procedures and that Mr. Henry’s conduct was terminable under the employee
conduct standards as to section 18(b) where deception was indicated on the CVSA test. The
panel did not find that Mr. Henry violated standards 17(a) or (b), but the panel stated that a
violation of 18(b) on its own is a terminable offense (Dkt. No. 20-1, at 18-19).
E.

Comparators

In his complaint, Mr. Henry alleges that he was treated differently on the basis of his race
and claims that, between 2010 and 2012, other Caucasian employees have received lesser
discipline or no discipline for failing voice stress analysis tests and for falsifying documents
(Dkt. No. 1, ¶ 31).
According to defendants and the declaration of Raja Rogers, the Human Resource
Coordinator at the EARU, no Caucasian employee of the EARU took or failed a CVSA test
during 2010, 2011, or 2012 (Dkt. No. 20, ¶¶ 1-2). The Court considers these facts undisputed. It
is also undisputed that, in March 2014, after Mr. Henry’s termination, Mr. Burl terminated a
Caucasian employee whom Mr. Burl determined had violated the ADC rule prohibiting
falsification of verbal statements. That employee was asked to answer questions during a CVSA
test in an investigation into an inmate’s allegation that the employee had assisted with the
distribution of contraband at the EARU, and his answers were reported as deceptive (Dkt. No.
20, ¶¶ 3-4).

6

The only specific comparator identified in Mr. Henry’s summary judgment papers is Lt.
Tyner, a Caucasian employee. Mr. Henry claims that, after his termination, several boxes of
contraband cigarettes were found on the bus that was assigned to Lt. Tyner but that Lt. Tyner
was not required to submit to a voice stress analysis test or terminated. Mr. Burl testified that the
bus was a regional maintenance bus and that all three of his employees working regional
maintenance—Lt. Tyner and two African American employees—were under investigation. Mr.
Burl said that the investigation did not reveal the source of the contraband and that none of these
three employees were terminated. It is not clear from the record exactly when Lt. Tyner’s
investigation occurred except that Mr. Burl stated in his deposition that this occurred after 2011
(Dkt. No. 23-9, at 4). Mr. Burl could not recall whether any of these three employees were
required to submit to a CVSA test (Dkt. No. 23-9). In his deposition, Mr. Henry testified that he
briefly spoke with Lt. Tyner in September 2014 but said he did not know whether Lt. Tyner ever
took a voice stress analysis test in regard to contraband found in Lt. Tyner’s work area (Dkt. No.
20-5, at 38-39).
II.

Summary Judgment Standard

Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact and that the defendant
is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable
jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008).
“The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather,
the dispute must be outcome determinative under the prevailing law.” Hollway v. Pigman, 884
F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not

7

rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th
Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving
party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v.
Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
III.

Discussion

Mr. Henry alleges an equal protection claim and alleges that he was treated differently on
the basis of his race. See Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1014 (8th Cir. 2013)
(determining that the Equal Protection Clause “requires that the government treat such similarly
situated persons alike.”) (internal quotation marks omitted). Mr. Henry also alleges a related
claim of discrimination under 42 U.S.C. §1981, which provides that all persons within the
jurisdiction of the United States shall have “the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The Court considers Mr. Henry’s equal
protection claim and § 1981 claim together, as both are brought under § 1983 and are subject to
the same discrimination analysis as Title VII disparate-treatment claims. Briggs v. Anderson,
796 F.2d 1009, 1021 (8th Cir. 1986).
Absent direct evidence of discrimination, courts apply the McDonnell Douglas burdenshifting analysis to claims of employment discrimination under the Equal Protection Clause.
Hager, 735 F.3d at 1014; see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Direct
evidence is evidence “showing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate

8

criterion actually motivated” the adverse employment action. Torgerson v. City of Rochester,
643 F.3d 1031, 1044 (8th Cir. 2011) (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736
(8th Cir. 2004)). The Court sees no direct evidence of discrimination on the record before it.
Further, Mr. Henry identifies no direct evidence of unlawful discrimination and instead argues
his case under McDonnell Douglas. For these reasons, the Court will proceed with a McDonnell
Douglas analysis.
Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie
case of discrimination. McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir. 2007). The
establishment of a prima facie case creates a presumption of unlawful discrimination, which in
turn requires a defendant to come forward with evidence of a legitimate, nondiscriminatory
reason for the defendant’s actions. Id. If the defendant articulates such a reason, the burden
returns to the plaintiff to show the defendant’s proffered reason is a pretext for discrimination.
Id. Mr. Henry, as the plaintiff, has the burden of persuasion at all times. Bone, 686 F.3d at 955.
Mr. Henry’s burden to show a genuine issue of material fact regarding pretext “merges with the
ultimate burden of persuading the court that [he was] the victim of intentional discrimination.”
Id. (quoting Torgerson, 643 F.3d at 1046). “Proof of pretext, coupled with a strong prima facie
case, may suffice to create a triable question of fact.” Torgerson, 643 F.3d at 1046.
A.

Prima Facie Case And Legitimate, Nondiscriminatory Reason

To establish a prima facie case, Mr. Henry must show that: (1) he was a member of the
protected group; (2) he was qualified to perform the job; (3) he suffered an adverse employment
action; and (4) circumstances permit an inference of discrimination. Lewis v. Heartland Inns of
Am., L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010). “The required prima facie showing is a
‘flexible evidentiary standard,’” and Mr. Henry can satisfy the fourth part of the prima facie case

9

in a variety of ways, such as by showing more favorable treatment of similarly situated
employees who are not in the protected class, or biased comments by a decisionmaker. Id. at
1039-40 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)); see Pye v. Nu Aire,
Inc., 641 F.3d 1011, 1019 (8th Cir. 2011).
Defendants do not dispute the first three elements of Mr. Henry’s prima facie case but,
without addressing any particular stage of the McDonnell Douglas framework, contend that Mr.
Henry cannot show more favorable treatment of similarly situated employees. To establish his
prima facie case, Mr. Henry argues more favorable treatment of similarly situated employees and
raises various other arguments that this Court will address at the pretext stage. Assuming
without deciding that Mr. Henry has established a prima facie case, the Court finds that
defendants have articulated a legitimate, nondiscriminatory reason for terminating Mr. Henry’s
employment.

Defendants’ burden to show a legitimate, nondiscriminatory reason for the

challenged action “is not onerous.” Bone, 686 F.3d at 954. Defendants’ stated reasons for
terminating Mr. Henry—the determination that Mr. Henry violated certain standards of
employee conduct by falsifying verbal statements during the CVSA test and allowing Mr.
Morgan into the count room—satisfy this standard. Accordingly, the burden shifts to Mr. Henry
to show pretext.
B.

Pretext

To demonstrate pretext, Mr. Henry must both discredit the employer’s asserted reason
and show that the circumstances permit drawing the reasonable inference that the real reason was
race. Johnson v. AT & T Corp., 422 F.3d 756, 763 (8th Cir. 2005). “There are at least two ways
a plaintiff may demonstrate a material question of fact regarding pretext.” Torgerson, 643 F.3d
at 1047. First, “[a] plaintiff may show that the employer’s explanation is unworthy of credence .

10

. . because it has no basis in fact. Alternatively, a plaintiff may show pretext by persuading the
court that a [prohibited] reason more likely motivated the employer.” Id. (alterations in original)
(citations omitted) (quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir.
2006)) (internal quotation marks omitted). “A plaintiff may show pretext, among other ways, by
showing that an employer (1) failed to follow its own policies, (2) treated similarly-situated
employees in a disparate manner, or (3) shifted its explanation of the employment decision.”
Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). In addressing Mr. Henry’s
arguments, the Court notes that the Eighth Circuit has stressed that “the employmentdiscrimination laws have not vested in the federal courts the authority to sit as super-personnel
departments reviewing the wisdom or fairness of the business judgments made by employers,
except to the extent that those judgments involve intentional discrimination.”

Hutson v.

McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995).
1.

Comparators

Mr. Henry attempts to show pretext through comparator evidence. “At the pretext stage,
‘the test for determining whether employees are similarly situated to a plaintiff is a rigorous
one.’” Bone, 686 F.3d at 956 (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir.
2005), abrogated on other grounds by Torgerson, 643 F.3d 1031); see Johnson v. Securitas Sec.
Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir. 2014) (en banc) (citing same). To succeed at the
pretext stage, Mr. Henry must show that he and the potential comparators he identifies were
“similarly situated in all relevant respects.” Id. (quoting Rodgers, 417 F.3d at 853). The
employees “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

11

circumstances.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting
Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004)).
The only comparator Mr. Henry identifies is Lt. Tyner. Lt. Tyner is not similarly situated
to Mr. Henry. As an initial matter, Mr. Henry’s allegations regarding Lt. Tyner are somewhat
different than his allegation that Caucasian employees received lesser discipline or no discipline
for failing voice stress analysis tests and for falsifying information (Dkt. No. 1, ¶ 31). Here,
there is no record evidence that Lt. Tyner failed a voice stress analysis test or was found to have
falsified documents, and Mr. Henry does not argue otherwise. Accordingly, Lt. Tyner cannot be
said to have received more favorable treatment as an employee who failed a voice stress test and
was found to falsify information. Moreover, even assuming arguendo that Lt. Tyner took and
failed a CVSA test, he and Mr. Henry are not similarly situated insofar as Mr. Burl determined
that Mr. Henry also violated certain rules by having Mr. Morgan in the count room with access
to a computer.
Mr. Henry attempts to argue a different theory of disparate treatment in his summary
judgment papers. He argues that Ms. Rogers’s declaration establishes that Lt. Tyner was not
required to submit to a stress test and that he therefore received more favorable treatment.
Defendants contend that this constitutes an impermissible attempt to amend Mr. Henry’s
complaint in response to defendants’ motion for summary judgment, citing Morgan Distribution
v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989). The Court disagrees. Mr. Henry’s
complaint alleges a claim of disparate treatment. That his specific allegations regarding the more
preferential treatment afforded Lt. Tyner may have evolved from his original allegations of
disparate treatment does not make this a wholly new claim for relief.

12

Defendants also dispute whether Ms. Rogers’s declaration establishes that Lt. Tyner was
not required to submit to a CVSA test, stating that her declaration does not cover 2013. The
Court does not see anything in the record establishing the exact year the investigation of Lt.
Tyner occurred, except that Mr. Burl stated in his deposition that this occurred after 2011 (Dkt.
No. 23-9, at 4). Regardless, even if Lt. Tyner was not required to submit to a stress test, the
Court still finds that Lt. Tyner is not similarly situated to Mr. Henry and rejects Mr. Henry’s
attempt to use a disparate treatment theory to make him so. Here, Mr. Henry was investigated
and subjected to a CVSA test after Mr. Evans made specific allegations that Mr. Henry was
passing contraband to Mr. Morgan in return for money and after a search confirmed Mr. Evans’s
other allegations as to where contraband was hidden. In contrast, Mr. Burl testified that Lt.
Tyner and others were investigated because they worked in regional maintenance and contraband
was found on the regional maintenance bus, its origin unknown. There is no evidence, and Mr.
Henry does not argue, that any inmate or other individual made any allegations specifically
implicating Lt. Tyner.
In his summary judgment papers, Mr. Henry also appears to suggest that Mr. Evans, the
inmate in whose possession the contraband was discovered in 2011 and who implicated Mr.
Henry and Mr. Morgan, is a comparator, asserting that neither Mr. Andrews nor Mr. Burl
recommended that Mr. Evans be disciplined. Mr. Evans, an inmate, is not a similarly situated
employee. Lastly, although Mr. Henry does not specifically argue dissimilar treatment on this
basis, the Court notes that Mr. Henry testified in his deposition that he could not think of any
Caucasian employees who were reported to defendants for allowing Mr. Morgan to assist with
the computer and whom defendants did not investigate or discipline (Dkt. No. 20-5, at 31-32).

13

2.

Shifting Explanations

Mr. Henry also attempts to show pretext based on shifting explanations. This argument is
not well developed in Mr. Henry’s summary judgment papers, but he alleges in his complaint
that Mr. Burl changed the reason for terminating Mr. Henry “from smuggling contraband to
violating ADC policy by allowing an inmate to utilize a computer and to have falsified company
documents by failing the voice stress analysis test” (Dkt. No. 1, ¶ 23). Mr. Henry has not
presented any record evidence that Mr. Burl changed his reason for Mr. Henry’s termination.
Mr. Burl listed as the reason for Mr. Henry’s termination his determination that Mr. Henry
falsified statements by failing the CVSA test and for admitting that he called Mr. Morgan into
the count room to use the computer with the knowledge that Mr. Morgan was not allowed to be
on the computer, which Mr. Burl determined to be violations of three ADC employee conduct
standards.

Defendants have submitted Mr. Burl’s declaration and deposition testimony in

support of their argument that his reason for terminating Mr. Henry’s employment never
changed. Mr. Henry offers no argument or record evidence that Mr. Burl changed his reason for
terminating Mr. Henry’s employment.
Although Mr. Henry does not make this argument explicitly, he suggests that the reason
for his termination shifted in that the Arkansas State Employee Grievance Appeal Panel did not
find that Mr. Henry violated employee conduct standards 17(a) and (b) but upheld his
termination based only on section 18(b) for the failed CVSA test. That the panel apparently did
not agree with Mr. Burl’s determination as to standards 17(a) and (b) does not show that Mr.
Burl changed his reasons for terminating Mr. Henry. Mr. Henry has not demonstrated a shifting
explanation for his termination so as to establish or raise a genuine issue of material fact
regarding pretext.

14

3.

Other Arguments

Mr. Henry raises various other arguments to discredit the decision to terminate his
employment. First, he contends that a failed stress test is not sufficient grounds for terminating
an employee. In support, he cites Mr. Payne’s testimony that he understood that failing a CVSA
test was sufficient grounds for termination as long “[a]s there is another piece of evidence to go
along with it. One piece of corroborating evidence.” (Dkt. No. 23-7, at 3). Mr. Burl likewise
testified that it was his understanding that a failed CVSA test was not grounds for termination in
and of itself; Mr. Burl said that “any corroborating evidence” is needed (Dkt. No. 24-1, at 3).
Even if the standard for termination requires corroborating evidence, defendants maintain it was
met in that there was ample corroborating evidence to support Mr. Henry’s termination.
Defendants cite as corroborating evidence that Mr. Evans passed his CVSA test and that the
information he provided to Mr. Andrews proved to be accurate when the second search
discovered contraband in the locations described by Mr. Evans. In his deposition, Mr. Burl
specifically cited the CVSA tests of Mr. Evans, Mr. Morgan, and Mr. Henry as evidence
connecting Mr. Henry to the money Mr. Morgan allegedly passed to Mr. Henry (Dkt. No. 23-9,
at 3).
Mr. Henry also argues that defendants relied upon a CVSA test that they knew to be
inaccurate. Specifically, Mr. Henry claims that defendants were aware that Mr. Evans did not
witness the alleged exchange of money yet the CVSA test did not indicate deception when Mr.
Evans responded that he did witness the exchange of money. Mr. Henry cites in support Mr.
Andrews’s deposition testimony, but that testimony appears to refer to the exchange of tobacco,
not the exchange of money (Dkt. No. 23-3, at 10). Further, according to the ADC Internal
Affairs Final Report, Mr. Evans clarified during his interview that he never actually saw Mr.

15

Henry bring a package into the barracks for Mr. Morgan but instead said that Mr. Morgan
confided in Mr. Evans that he received tobacco from Mr. Henry in the count room (Dkt. No. 201, at 12, 14). Mr. Evans did state, however, that he saw Mr. Morgan give Mr. Henry $500.00.
This is consistent with Mr. Evans’s CVSA test results.
The Court makes several other observations. In his deposition, Mr. Henry testified that
the reason for his belief that Mr. Andrews discriminated against him on the basis of his race is
that Mr. Andrews’s “key witness,” Mr. Evans, is Caucasian (Dkt. No. 20-5, at 8-9). Defendants
argue that this alone is not indicative of discrimination, and Mr. Henry makes no attempt to
respond to this argument or address this testimony. The Court agrees that, standing alone, Mr.
Evans’s race is not indicative of pretext or discrimination. The Court also notes that Mr. Henry
alleges in his complaint, and previously argued in his response to defendants’ motion to dismiss,
that defendants deviated from normal practice by having Major Kelley write Mr. Henry’s
disciplinary letter rather than the initial investigator, Mr. Andrews (Dkt. No. 1, ¶ 24; Dkt. No. 7,
at 2). Pursuant to Local Rule 56.1, the Court accepts as undisputed that Mr. Burl forwarded the
ADC Internal Affairs Final Report to Major Kelley to take corrective action because Mr. Henry
reported to Major Kelley (Dkt. No. 20, ¶¶ 20-22). Mr. Henry makes no attempt to support his
allegation that this was a deviation from normal procedure. Lastly, the Court notes that Mr.
Henry testified that he does not believe that either Mr. Burl or Mr. Payne discriminated against
him because he is African American (Dkt. No. 20-5, at 12).
Based on the record before the Court, viewing the facts in the light most favorable to Mr.
Henry, the Court finds that Mr. Henry has not raised a disputed issue of material fact to
demonstrate that defendants’ legitimate, nondiscriminatory reason for Mr. Henry’s termination
was a pretext for discrimination. Accordingly, the Court determines that there is no genuine

16

issue of material fact in dispute and that defendants are entitled to summary judgment on Mr.
Henry’s discrimination claim.
C.

Conspiracy Claim

Mr. Henry’s allegations against Mr. Burl and Mr. Payne largely rest on a conspiracy
claim that Mr. Burl, Mr. Payne, and Mr. Andrews participated in a scheme to terminate Mr.
Henry. A constitutional conspiracy requires a showing that two or more persons conspired to
deprive another of a constitutional right and that an act was done in furtherance of the conspiracy
which caused an injury or deprivation. Mueller v. Tinkham, 162 F.3d 999, 1004 (8th Cir. 1998);
Marti v. City of Maplewood, Mo., 57 F.3d 680, 685 (8th Cir. 1995).
Defendants have moved for summary judgment on Mr. Henry’s conspiracy claim. Mr.
Henry does not specifically address his conspiracy claim in his response to defendants’ motion
for summary judgment, and defendants argue that Mr. Henry has abandoned that claim. Even if
Mr. Henry has not abandoned this claim, the Court finds that summary judgment in favor of
defendants is appropriate, as the Court has determined that there is no genuine issue of material
fact in dispute on Mr. Henry’s underlying discrimination claim.
D.

Qualified Immunity

Defendants also move for summary judgment on the issue of qualified immunity. A
government official sued in his individual capacity may raise the defense of qualified immunity
to § 1983 claims filed. The doctrine of qualified immunity “protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Stepnes v. Ritschel, 663
F.3d 952, 960 (8th Cir. 2011) (citation omitted) (internal quotation marks omitted).

To

determine if a qualified immunity defense applies, the Court must conduct a two-prong inquiry

17

by examining: “(1) whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right and (2) whether the constitutional right violated was clearly established at the
time of defendant's alleged misconduct.”

Id. (alteration in original) (quoting Pearson v.

Callahan, 555 U.S. 223, 232 (2009)) (internal quotation marks omitted). “Unless the answer to
both of these questions is yes, the defendants are entitled to qualified immunity.” Krout v.
Goemmer, 583 F.3d 557, 564 (8th Cir. 2009).
Because the Court finds that Mr. Henry has not established a genuine issue of material
fact on his underlying discrimination claims, the Court finds that defendants are entitled to
qualified immunity.
***
For the reasons stated above, the Court grants defendants’ motion for summary judgment
in its entirety (Dkt. No. 18) and dismisses with prejudice Mr. Henry’s equal protection and 42
U.S.C. § 1981 claims against Mr. Burl, Mr. Payne, and Mr. Andrews in their individual
capacities. Judgment will be entered accordingly.
SO ORDERED this 30th day of January, 2015.

____________________________________
Kristine G. Baker
United States District Judge

18