Green v. Hughes Arkansas, City of et al

Filing 37

OPINION AND ORDER granting the defendants' 20 motion for summary judgment. This action is dismissed with prejudice. Signed by Judge J. Leon Holmes on 5/17/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
KRISTY GREEN
v.

PLAINTIFF
No. 2:16CV00058 JLH

CITY OF HUGHES, ARKANSAS;
GRADY COLLUM, Mayor, in his official and
individual capacity; THOMAS CAMPBELL, in his
official capacity as City Council Member;
IRENE COMBS, in her official capacity as City
Council Member; MALCOLM CURNE, in his
official capacity as City Council Member;
RUDOLPH ROBINSON, in his official capacity as
City Council Member; JON TATE, in his official
capacity as City Council Member; and
JESSE WHITE, in his official capacity as
City Council Member

DEFENDANTS

OPINION AND ORDER
Kristy Green, a black female, was the Chief of Police for the City of Hughes, Arkansas.
Grady Collum, a white male, was the mayor. Collum demoted, then terminated1 Green. Thomas
Campbell, Irene Combs, Malcolm Curne, Rudolph Robinson, Jon Tate, and Jesse White served on
the city council at the time. Green alleges that Collum and the city council members discriminated
against her due to her race and sex. Based on those allegations, she has asserted claims for a
violation of equal protection pursuant to 42 U.S.C. § 1983 and a violation of 42 U.S.C. § 1981.2 The

1

The defendants maintain that Green voluntarily resigned, but for the purpose of summary
judgment consider her to have been terminated.
2

Green alleged but abandoned claims for violation of due process and defamation by failing
to respond to the arguments raised by the defendants in their motion for summary judgment. See
Moore-El v. Luebbers, 446 F.3d 890, 899 n. 2 (8th Cir. 2006); United States v. Zavala, 427 F.3d 562,
565, n. 1 (8th Cir. 2005). Because Green has abandoned her claim for violation of due process based
on a property right in her continued employment, she has in turn abandoned her § 1982 claim. A
plaintiff must show an interference with the rights or benefits connected with the ownership of
property to succeed on a § 1982 claim. See Daniels v. Dillard’s, Inc., 373 F.3d 885, 887 (8th Cir.

defendants have filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure
56. For the following reasons, the motion is granted.
I.
A court should grant summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a
genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.
Ed. 2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward
with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute
of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict
in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986). The Court must view the evidence in the light most favorable
to the nonmoving party and must give that party the benefit of all reasonable inferences that can be
drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence sufficient to establish an essential element
of a claim on which that party bears the burden of proof, then the moving party is entitled to
judgment as a matter of law. Id.

2004). Green does not maintain in her response to the defendants’ motion for summary judgment
that she had a constitutionally-protected property interest in continued employment with the City.
2

II.
The following facts are undisputed. Green started working for the Hughes Police Department
as a part-time patrol officer in February 2013. She was working full-time as a patrol officer by May
2013. Green was promoted to assistant police chief on November 26. She accepted the position of
interim police chief on June 2, 2014. Green graduated from the police academy on December 2 and
became the police chief on December 17. The parties agree that Green’s responsibilities as chief
included patrolling the streets of Hughes, writing reports and citations, appearing in court, making
arrests, supervising officers, scheduling and covering shifts as needed, handling employee and citizen
complaints, performing disciplinary actions, maintaining personnel files, helping the mayor make
personnel decisions, familiarizing herself with the court, and developing a relationship with the
county sheriff’s department.
Collum was elected mayor and took office on January 1, 2015. Collum is a medical doctor.
Prior to his becoming mayor, the only direct interaction Collum had with Green was in the patientdoctor context. Once Collum became mayor, he met with Green on occasion to give her certain
directives about the scheduling of shifts, the care of equipment, the hiring of certified personnel, the
importance of being courteous and reasonable when dealing with citizens, and the avoidance of
situations requiring the use of firearms. In early 2016, Collum ran an advertisement in two local
publications, advertising that Hughes was accepting applications for police chief through
February 20. On February 25, Collum wrote Green a letter to inform her that the Hughes Police
Department was to be disbanded, effectively eliminating the position of police chief. Green
continued working and the county sheriff provided her a schedule, which changed her work hours.

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Green was terminated3 March 9. Green asked Collum to involve the city council in an attempt to
appeal her termination, but Green remained terminated.
III.
Courts have held that the Equal Protection Clause of the Fourteenth Amendment confers on
an individual a right to be free of race and sex discrimination in public employment. Henley v.
Brown, 686 F.3d 634, 642 (8th Cir. 2012); Tipler v. Douglas Cnty. Neb., 482 F.3d 1023, 1027 (8th
Cir. 2007). Such a claim may be asserted under 42 U.S.C. § 1983. Brown, 686 F.3d at 642-43. The
Eighth Circuit “has held that a § 1983 claim based on alleged violation of equal protection in the
employment context is analyzed in the same way as a Title VII claim of sex, race, or religious
discrimination.” Mummelthie v. City of Mason City, Ia., 873 F. Supp. 1293, 1333 (N.D. Iowa 1995)
aff’d 78 F.3d 589 (8th Cir. 1996). Likewise, the elements of a Title VII employment discrimination
claim and a section 1981 claim in the employment context are identical inasmuch as section 1981
prohibits discrimination in the making and enforcement of private contracts. See Gregory v.
Dillard’s, Inc., 565 F.3d 464, 469 (8th Cir. 2009); Kim v. Nash Finch Co., 123 F.3d 1046, 1056,
1060 (8th Cir.1997). Therefore, to avoid summary judgment on her employment discrimination
claims, Green must either produce direct evidence of discrimination or generate a genuine dispute
of material fact for trial under the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Floyd-Gimon v.
Univ. of Ark. for Med. Sci., 716 F.3d 1141, 1149 (8th Cir. 2013).

3

Again, the defendants do not admit that Green was terminated. Rather, they insist that even
if she was terminated, they are still entitled to summary judgment.
4

A.

Direct Evidence
Green argues that she has submitted direct evidence of race and sex discrimination. “Direct

evidence is evidence that establishes ‘a specific link between the discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated the employer’s decision.’” Twymon v. Wells Fargo & Co., 462 F.3d 925,
933 (8th Cir. 2006) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003)).
“‘[D]irect’ refers to the casual strength of the proof, not whether it is ‘circumstantial’ evidence.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011). Direct evidence may include
remarks by a decisionmaker, but does not include “stray remarks in the workplace, statements by
nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.”
Doucette v. Morrison Cnty., Minn., 763 F.3d 978, 986 (8th Cir. 2014).
As direct evidence, Green first cites two comments4 made by Collum, which she argues
indicate his intent to discriminate against her based on race: (1) he stated that a black police officer
should “go back to the fields”5 and (2) in a public board meeting he stated to audience members
asking questions that “you people are interrupting my meeting.”6 Document #30 at 12. Collum

4

Green also points to several executive decisions Collum made as direct evidence of race and
sex discrimination: (1) attempting to appoint his white, male friend—Vaughn McCollum—as
recorder-treasurer; (2) replacing the black city attorney with a white city attorney; and (3) replacing
Green with a less-qualified white male. None of these decisions amount to direct evidence because
there is no strong causal connection between these decisions and Green’s termination. Rather, the
decisions are actions that typically factor into the McDonnell-Douglas burden-shifting framework.
5

Green testified in her deposition that Collum made this comment directly to her either in
his office or at a gas station. Document #30-1 at 40.
6

Defendants Combs and Robinson were at the meeting and testified in their depositions that
Collum made the comment in response to audience members who had questions. Document #20-56
at 19; Document #20-58 at 13.
5

denies making the comments, but the Court must view the evidence in a light most favorable to
Green and avoid making credibility determinations, which are reserved for the jury. Assuming
Collum made the comments, they do not “clearly point[ ] to the presence of an illegal motive” behind
Green’s termination. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).
The “go back to the fields” comment is not race-neutral. Greens says Collum made the
comment to her in the spring of 2015 during a conversation the two were having about sending an
officer named Robert Thomas to the police academy. Collum directed Green to do what she wanted
in regards to his continued employment but stated that Thomas was not going to the academy.
Document #30-1 at 40. “Not all comments that may reflect a discriminatory attitude are sufficiently
related to the adverse employment action in question” to permit the fact finder to infer that the
discriminatory attitude was more likely than not a motivating factor in the employer’s decision.
Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999). See also Saulsberry v. St.
Mary’s Univ. of Minn., 318 F.3d 862, 867-68 (8th Cir. 2003) (stating that an “isolated, stray
comment unrelated to the decisional process” is not direct evidence of discrimination, even if the
comment is made by a decisionmaker). Collum’s comment about Thomas is not connected to
Green’s termination; it is a stray comment, despite the fact that it was made by a decisionmaker.
Twymon, 462 F.3d at 934.
The “you people are interrupting my meeting” comment is race-neutral on its face, as well
as in its context. See Twymon, 462 F.3d at 934 (“Facially race-neutral statements, without more, do
not demonstrate racial animus on the part of the speaker.”). In Doucette v. Morrison Cnty. Minn.,
the employee’s supervisor commented in a staff meeting that older people should not be in law
enforcement. 763 F.3d at 986. The supervisor’s audience was composed solely of older women.

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Id. The Eighth Circuit held that the comment was gender-neutral, but that even if it was not, the
employee failed to demonstrate that the remark, “while made by a decision-maker, was connected
to the decisional process itself.” Id. Collum made the comment during a meeting about the closure
of Hughes High School, which is unrelated to Green’s termination. Document #20-56 at 19.
As direct evidence, Green next cites two comments made by Collum and two courses of
conduct, which she argues indicate his intent to discriminate against her based on sex: (1) when
Collum took office in January 2015, he remarked to former officers Michael Bedford and Floyd
Billups that he did not think that a woman should run the police department; (2) Collum said that
he did not trust the women working for the City;7 (3) rather than referring to Green as “Chief Green,”
he referred to her as “sweetheart” or “darling”; and (4) Collum kept notes to record his meetings with
Green but did not keep notes during meetings with other department heads. Document #30 at 9
(citing Document #32-1 at 20, 26; Document #32-7 at 2, ¶5; Document #32-8 at 5, ¶5). Referring
to Green as “sweetheart” and “darling,” and otherwise treating her differently from other employees
does not show that Collum terminated Green’s employment because she was a woman. Neither is
Collum’s isolated statement that he did not trust the women working for the City direct evidence of
discrimination: “[A] single comment that merely references gender is not sufficient to create a
genuine issue of material fact of sex discrimination.” Hervey v. Cnty. of Koochiching, 527 F.3d 711,
720 (8th Cir. 2008).
The first comment made by Collum is much closer because stating that a woman should not
be in charge of the police department is clear evidence of a discriminatory attitude. According to

7

Collum denies making these comments, but again, the Court views the evidence in the light
most favorable to Green because she is the non-moving party.
7

Eighth Circuit precedent, however, the comment is not direct evidence because of the lapse in time
between Collum’s comments to Bedford and Billups in January 2015, and Green’s termination in
March 2016. See Ramlet v. E.F. Johnson Co., 507 F.3d 1142, 1152-53 (8th Cir. 2007) (explaining
that a four-month lapse between comments reflective of prejudice and the plaintiff employee’s
termination undercut a finding of direct evidence of discrimination); Barkhoff v. Bossard N.
America, 684 F. Supp. 2d 1096, 1106 (N.D. Iowa 2010) (same but with a six-month lapse).
In Twymon v. Wells Fargo & Co., the plaintiff employee’s supervisor referred to her as a
“good black” and indicated that she should act like an “Uncle Tom.” 462 F.3d at 931. The Eighth
Circuit agreed with the employee that the statements were “racially offensive and misguided,” but
concluded that they were not “made during the decisional process accompanying [the employer’s]
termination of [the employee.” Id. at 934. The court held that “they were stray comments, despite
the fact that they were made by decisionmakers.” Id. See also Radabaugh v. Zip Feed Mills, Inc.,
997 F.2d 444, 449 (8th Cir. 1993) (stating that the employee must put on “evidence of conduct or
statements by persons involved in the decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that
attitude was more likely than not a motivating factor in the employer’s decision.”).
In contrast, in Morrow v. Zale Corp., the Eighth Circuit held that a genuine issue of material
fact existed as to whether a supervisor had earlier told an employee that she should step down
because she was “a female” and “a single mom,” that it was a “man’s world,” and that she needed
to “man up.” 816 F.3d 1025, 1024 (8th Cir. 2016). The court explained: “Because we construe such
comments, if made by a decision maker, as direct evidence of a discriminatory animus, we further
conclude that under a mixed-motive analysis, [the employee] may be entitled to [some relief].” Id.

8

Evidence before the court showed that some of the comments were made during a meeting that took
place one month before the employee was terminated. Brief for Appellant, Morrow v. Zale Corp.,
816 F.3d 1025 (8th Cir. 2016) (No. 15-2321), 2015 WL 5020687 at *8-9. The meeting was part of
an investigation into the employee’s on-the-job conduct. Id. Similarly, in Simmons v. New Public
School Dist. No. Eight, the school district voted not to renew an administrator’s contract after the
district board’s president stated to her fellow voting board members shortly before the vote that a
woman could not handle the job of administrator. 251 F.3d 1210, 1215 (8th Cir. 2001) (abrogated
on other grounds by Torgerson, 643 F.3d at 1058).
Here, Collum made his discriminatory remarks more than one year before he made the
decision to terminate Green. Former Hughes police officers Bedford and Billups swore under oath
that shortly after he took office in January 2015, Collum confided in them in separate one-on-one
conversations at the gas pump outside the police station that he did not feel that it was a woman’s
place to run the police department. Document #32-7 at 2, ¶5; Document #32-8 at 5, ¶5. After
making those remarks, Green worked under Collum as the police chief for more than a year. Green
has failed to tie the remarks to the decision to terminate her employment. See Arraleh v. Cnty. of
Ramsey, 461 F.3d 967, 976 (8th Cir. 2006) (finding that plaintiff failed to show link between
decisionmaker’s comment that black employees should “leave their blackness behind” and his not
being hired). Had Collum made the remarks closer in time to Green’s termination and in connection
with his review of Green’s performance, the remarks might show that Collum’s discriminatory
attitude was a motivating factor in his decision to terminate Green’s employment and therefore might
constitute direct evidence; but because the remarks are separated in time and in context from the
adverse employment action at issue, according to Eighth Circuit precedent, they do not constitute

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direct evidence of unlawful discrimination. Rather, they are what the Eighth Circuit has dubbed
“statements by decisionmakers unrelated to the decisional process.” See Rivers-Frison v. Se. Mo.
Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998).
B.

Indirect Evidence
Under McDonnell Douglas Corp. v. Green, Green must first present a prima facie case of

intentional discrimination. 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).
The burden then shifts to the defendants to proffer a legitimate, nondiscriminatory reason for the
action they took. Id. If the defendants meet that burden, which is “minimal,” the burden shifts back
to Green to show that the proffered nondiscriminatory reason is merely pretext for unlawful
discrimination. Id. See also Cody v. Prairie Ethanol, LLC, 763 F.3d 992, 996 (8th Cir. 2014)
(applying McDonnell Douglas burden-shifting framework).
To establish a prima facie case of race and sex discrimination based on alleged discriminatory
discharge Green must show that (1) she is a member of a protected class; (2) that she met her
employer’s legitimate expectations; (3) that she suffered an adverse employment action, and (4) that
the circumstances give rise to an inference of discrimination. Lake v. Yellow Transp., Inc., 596 F.3d
871, 874 (8th Cir. 2010). The defendants have conceded that Green is a member of a protected class
and that she suffered an adverse employment action. Document #22 at 5. The issue is whether
Green can show that she met her employer’s legitimate expectations.
Green argues that an employee may either show that she met her employer’s legitimate
expectations or that she was otherwise qualified for the position. Document #30 at 10. Green says
she was “otherwise qualified,” but does not address whether she was meeting her employer’s
legitimate expectations. Id. “McDonnell Douglas makes plain that the facts in Title VII cases will

10

vary, and that the prima facie proof required is ‘not necessarily applicable in every respect to
differing factual situations.’” Miller v. Citizens Sec. Grp., Inc., 116 F.3d 343, 346 (8th Cir. 1997)
(citing 411 U.S. at 802 n. 13, 93 S. Ct. at 1824 n. 13). Whether an employee is qualified is the
proper question in Title VII discrimination cases arising from a failure to promote or failure to hire,
but in every termination case the plaintiff already had been hired and thus, presumably, was qualified
for the job. Therefore, in a termination case, “[t]o establish a prima facie case that she was
suspended or terminated because of her race [or sex], [a plaintiff] must show that she met her
employer’s legitimate expectations.” Robinson v. Am. Red Cross, 753 F.3d 749, 755 (8th Cir. 2014);
see also Jones v. City of St. Louis, Mo., 825 F.3d 476, 480 (8th Cir. 2016); Cherry v. Ritenour Sch.
Dist., 253 F. Supp. 2d 1085, 1094 (E.D. Mo. 2003) (recognizing a split in Eighth Circuit cases but
applying the more stringent “legitimate expectations” standard in cases alleging wrongful
termination).
“The standard for assessing performance ‘is not that of the ideal employee, but rather what
the employer could legitimately expect.’” Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 729
(8th Cir. 2012) (quoting Keathley v. Ameritech Corp., 187 F.3d 915, 920 (8th Cir. 1999)). See also
Miner v. Bi-State Dev. Agency, 943 F.2d 912, 913-14 (8th Cir. 1991). Green must do more than
insist that she was a good employee, or that others thought she was a good employee. See Cherry,
253 F. Supp. 2d at 1095 (collecting cases). She “must show by independent evidence in the
summary judgment record that she ‘was actually performing’ her job at the level specified by
Defendant.” Id. (quoting Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000)).
In Whitley v. Peer Review Sys. Inc., the employer produced specific evidence of the
employee’s deficiencies. 221 F.3d at 1055 (abrogated on other grounds by Torgerson, 643 F.3d at

11

1059). In response, the employee directed the court “to broad, conclusory statements by herself and
others that she was doing her job adequately.” Id. The court held that such statements were
insufficient to refute her employer’s “specific evidence of her poor performance.” Id.
Here, there is specific evidence in the record that Green was not meeting the City’s legitimate
expectations.8 The defendants submitted a litany of complaints citizens made about the police
department and about Green, most of which relate to the failure to respond to citizens who were the
victims of burglaries. Green says that Collum told her that she was doing a good job and either
denies the complaints or says that she did not know about them. Document #20-1 at 26; Document
#29. This is not enough to overcome the defendants’ specific evidence.
The record includes the affidavits of citizens who describe their own experiences with the
police department and with Green.9 Rule 56(c) provides: “An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that would be admissible in

8

The Court did not consider Collum’s personal notes, which Green argued were inadmissible
hearsay. See Document #20-17.
9

See Document #20-18 (affidavit from representative of Helena Chemical Company, who
complained that the company eventually stopped calling the Hughes police and starting calling the
county police); Documents #20-19, 20, 21, 22, 30, 31, 32, 33, and 35 (affidavits from citizens, who
complained that their property was stolen but was never recovered and to their knowledge, the
robberies were not investigated nor were any arrests made); Document #20-26 (affidavit from
citizen, who complained that it took her six weeks to obtain the police report from an accident in
which her daughter’s car was hit by another driver, who left the scene of the accident but later
provided his information to police and was not ticketed); Document #20-28 (affidavit from local
business owner, who complained that he called the police when his car-wash was vandalized, but
got no response, so he had to go to the station where he was told to fill out a report on a blank sheet
of paper; the police department did not follow-up, so the business owner went to the county to get
what he needed to file a claim with his insurance company); Document #20-29 (affidavit from local
farmer, who complained that after one of his storage facilities was burglarized, Green promised a
copy of the police report the next day; when the farmer went to the station to obtain the report,
nobody answered the door even though the lights were on and Green’s car was in the parking lot.
The farmer did not get a copy of the report until twenty-five days after the burglary).
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evidence, and show that the affiant or declarant is competent to testify on the matters stated.” “When
an affidavit contains an out-of-court statement offered to prove the truth of the statement that is
inadmissible hearsay, the statement may not be used to support or defeat a motion for summary
judgment.” Brooks v. Tri-Sys., Inc., 425 F.3d 1109, 1112 (8th Cir. 2005). These affidavits present
specific facts based on the affiants’ personal experiences with the police department during the time
Green was chief. It is not the defendants’ burden to show that Green did not meet legitimate job
expectations. Rather, it is Green’s burden to show that she did. Green has failed to discharge that
burden. While it is not the defendants’ burden, they have presented evidence that Green was not
meeting the City’s legitimate expectations of police chief. Green has not met proof with proof.
Because Green was not doing her job as police chief, a reasonable jury could not find that
Green was terminated because of her race or sex in the face of this evidence. Cf. Rothmeier v. Invest.
Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir. 1996) (the law “allows a trial judge to decide on a
motion for summary judgment that the evidence is insufficient to infer discrimination”). Green’s
claims for employment discrimination based on race and sex fail as a matter of law.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is GRANTED.
Document #20. This action is dismissed with prejudice.
IT IS SO ORDERED this 17th day of May, 2017.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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