Burton v. Martin et al
ORDER granting in part and denying in part 11 Motion for Summary Judgment. Signed by Judge Kristine G. Baker on 2/16/13. (jlp)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RICHARD A. BURTON
No. 4:11-cv-710 KGB
ARKANSAS SECRETARY OF STATE,
MARK MARTIN, In his Official Capacity as
ARKANSAS SECRETARY OF STATE,
DARRELL S. HEDDEN, In his Individual
and Official Capacity as Chief of Police for
STATE CAPITOL POLICE
OPINION AND ORDER
Plaintiff Richard Burton brings this action under 42 U.S.C. § 2000e (Title VII of the Civil
Rights Act of 1964, as amended), 42 U.S.C. § 1983, and the Fourteenth Amendment to the
United States Constitution against his former employer, the Arkansas Secretary of State, in his
official capacity, and the Chief of the Arkansas State Capitol Police, Darrell Hedden, in his
individual and official capacity. Mr. Burton alleges race discrimination and retaliation. Mr.
Burton also brings this action under 28 U.S.C. § 2201 for declaratory judgment to declare the
rights and other legal relations between the parties. Defendants seek summary judgment on Mr.
Burton’s discrimination and retaliation claims, as well as his claim for punitive damages (Dkt.
No. 11). For the reasons that follow, defendants’ motion is granted in part and denied in part.
The following facts are undisputed unless stated otherwise.1 Mr. Burton was employed
by the Arkansas Secretary of State as a certified law enforcement officer with the State Capitol
Police from June 9, 2009 until he was terminated on April 12, 2010. Prior to his employment
The undisputed facts are taken from defendants’ statement of undisputed material facts
(Dkt. No. 13) and Mr. Burton’s response to defendants’ statement of undisputed material facts
(Dkt. No. 17), unless otherwise noted by specific citation.
with the State Capitol Police, Mr. Burton was employed by the Pine Bluff Police Department,
where he served as a certified law enforcement officer for nearly four years.
During a meeting with Chief Hedden and Sergeant David Huggs regarding the position
with the State Capitol Police, Chief Hedden informed Mr. Burton that he would be working the
3:00 p.m. to 11:00 p.m. shift with Norman Gomillion, Assistant Chief Theo Pierce, and Danny
Winters, all Caucasians. Chief Hedden warned that, if hired for the position, Mr. Burton might
experience things he would consider to be racially offensive because the 3:00 p.m. to 11:00 p.m.
shift was “full of rednecks.” Chief Hedden told Mr. Burton to come see him if there were any
Cathy Bradshaw is the Deputy Secretary of State and is Chief Hedden’s immediate
supervisor. Ms. Bradshaw has responsibility over housekeeping, police, and dispatch for the
Secretary of State. Robin Lang alleges that, when she was being interviewed by Ms. Bradshaw
for a housekeeping position with the Secretary of State’s Office, Ms. Bradshaw asked Ms. Lang
in a low voice, “Do you have a problem working with blacks?”
Each person hired by the State Capitol Police is issued a State Capitol Police Policy and
Procedures Manual and a Secretary of State Personnel Manual and is instructed to read both.
The manuals contain, among other things, policies addressing complaint and appeal procedures
and standards of conduct rules. Mr. Burton acknowledged receipt of both manuals on June 5,
2009. Per Secretary of State Policy, Mr. Burton was subject to a six-month probationary period.
Mr. Burton was advised by Chief Hedden at the time of hire that his initial salary would be
$37,500.00 per year and that, after successfully completing the six-month probationary period,
he would receive a raise of $2,500.00.
On December 7, 2009, Chief Hedden made a request to Ms. Bradshaw that Mr. Burton
receive a raise. The written request acknowledged that Mr. Burton had successfully completed
his six-month probationary period.
On December 8, 2009, Mr. Burton called Chief Hedden to report that Officer Gomillion
had made racially offensive comments. Mr. Burton told Chief Hedden that Officer Gomillion
had referred to Mr. Burton and Randy Hitch, a housekeeper, as “n----rs” while speaking with Ms.
Lang. Mr. Burton alleges that Officer Gomillion would often use racial epithets when he was
around Ms. Lang, letting it be known that he did not like African-Americans and that he felt
whites were superior to blacks. Ms. Lang and Mr. Burton worked the same shift and discussed
these allegations. When Officer Gomillion saw Ms. Lang with two African American males,
Ms. Lang claims he asked her whether she did “that n----- thing?” When Ms. Lang asked Officer
Gomillion what he meant, she claims he said, “you don’t do that n----- thing, you don’t date n----s, do you?” Mr. Burton and Ms. Lang also claim Officer Gomillion referred to President
Obama as “the n----- in the office, who is going to bring the United States down.” Ms. Lang
maintains she often considered reporting Officer Gomillion, but she felt like she would be
wasting her time.2
When Mr. Burton complained to Chief Hedden about Officer Gomillion, Chief Hedden
told Mr. Burton to prepare a written complaint regarding Officer Gomillion’s behavior. On
December 9, 2009, Mr. Burton submitted a handwritten complaint outlining the racially
offensive comments made by Officer Gomillion, along with the statements of Ms. Lang, Mr.
Hitch, and another employee, Misty Lane. Chief Hedden told Mr. Burton at that time that Mr.
Burton needed to type his complaint and resubmit it. Mr. Burton did so.
The record evidence indicates Ms. Lang was terminated from her position with the
Secretary of State sometime after her statement was submitted by Mr. Burton in support of his
complaint against Officer Gomillion.
Chief Hedden read Mr. Burton’s complaint and the witness statements and met with
Officer Gomillion. The record evidence does not indicate Chief Hedden took any other steps to
investigate. Officer Gomillion denied that he had made racially offensive comments and offered
to take a polygraph test. Chief Hedden issued Officer Gomillion a formal letter of counseling
that racial comments would not be tolerated in any way and that termination was possible for any
such future allegation that was substantiated.
Mr. Burton inquired about the status of his complaint against Officer Gomillion by email
on January 22, 2010. Chief Hedden claims he did not receive the email. Chief Hedden inquired
about the status of his request that Mr. Burton receive a raise on January 25, 2010. The
Secretary of State granted the raise requested by Chief Hedden on February 9, 2010.
On February 16, 2010, Mr. Burton informed Chief Hedden that Officer Gomillion had
thrown a set of keys at Mr. Burton and another officer. Mr. Burton submitted a statement
regarding the incident to Sergeant Huggs on February 17, 2010. Later, during a meeting with
Assistant Chief Larry Robinson, Sergeant Huggs, and Officer Charlie Brice, who is also an
African American, Mr. Burton was given a copy of the State Capitol Police at-will employment
policy, was informed that anyone can be terminated at any time, and was told to read it, despite
making clear he knew what the policy stated. Assistant Chief Robinson then pointed to a
purportedly new policy regarding bickering amongst the staff. Mr. Burton asked Assistant Chief
Robinson if he was referring to Officer Gomillion and again inquired about the status of his
complaint. According to Mr. Burton, Assistant Chief Robinson stated that “if ya’ll would just
leave [Officer Gomillion] alone and stop aggravating him, none of this stuff would be
Mr. Burton worked a traffic accident on March 26, 2010. Capitol Police Policy #2004-68
requires an officer to complete a traffic accident report before the end of the officer’s shift. Mr.
Burton did not complete a traffic accident report before the end of his shift that day. Mr. Burton
claims he told Chief Hedden that Sergeant Huggs told him to hold off on preparing the report
until Sergeant Huggs could show him how to input the report into the new computer system.
The individuals involved in the accident called several times over the next few days requesting
copies of the accident report. State law requires that all traffic accident reports be provided to
the Arkansas State Police within five days.
Mr. Burton requested to work part-time, performing security for Lisenne Rockefeller,
during the month of March 2010. Chief Hedden approved Mr. Burton’s request but cautioned
Mr. Burton not to let his part-time work interfere with his full-time job. Mr. Burton overslept on
March 30, 2010 after having worked until 7 a.m. the night before for Lisenne Rockefeller. Mr.
Burton failed to inform the department in advance so that arrangements could be made for proper
shift coverage, in violation of State Capitol Police Policy #2004-65. In addition, Mr. Burton was
found to be in violation of State Capitol Police Policy #2004-55 as a result of working off-duty
all night. Mr. Burton agrees that he should have been disciplined for reporting to work late.
Chief Hedden issued Mr. Burton a formal letter of reprimand on March 31, 2010. In the
letter of reprimand, Chief Hedden requested that Mr. Burton prepare a written memorandum
within five days explaining his reasons for failing to complete the accident report in a timely
manner and his reasons for failing to report to work as scheduled on March 30, 2010. The letter
advised Mr. Burton that any future violations of department policies or procedures could result in
additional disciplinary actions, including termination of employment.
provide the memorandum within five days as requested.
Mr. Burton did not
On April 7, 2010, Chief Hedden contacted Harmony Daniels by email to discuss
whether Mr. Burton should be subjected to additional disciplinary action for failure to provide
the memorandum. Ms. Daniels informed Chief Hedden that Mr. Burton’s failure to provide the
memorandum within five days was a violation. She advised Chief Hedden to remind Mr. Burton
to submit the memorandum. Chief Hedden claims he reminded Mr. Burton to submit the
memorandum in an email and text message, but Mr. Burton disputes receiving either of those
On April 9, 2010, Chief Hedden reported Mr. Burton’s failure to provide the
memorandum to Ms. Bradshaw and recommended that Mr. Burton’s employment be terminated.
The reasons for Chief Hedden’s recommendation are set forth in an April 9, 2010 memorandum
to Ms. Bradshaw:
Because of Officer Burton’s failure to follow policy and procedures that has led
this department to issue an Official Letter of Reprimand, and because Officer
Burton has willfully failed to follow the instruction and orders issued by
supervisory personnel, he has failed to satisfactorily perform the duties of a police
officer as required by this department. With this type of action it is apparent to
this department that Officer Burton has chosen and will not be able to complete
the 12-month probationary period3 satisfactorily.
Mr. Burton was terminated on April 12, 2010 for “fail[ing] to meet Commission 12 month
probationary standards.” He did not appeal his termination to the Secretary of State. Mr. Burton
filed a charge of discrimination with the Equal Employment Opportunity Commission on April
Chief Hedden became the chief of police in March 2003. During Chief Hedden’s tenure
as chief and prior to Mr. Burton’s termination, the only other officer who was terminated was
The Arkansas Commission on Law Enforcement Standards requires all certified law
enforcement officers to complete a 12-month probationary period. Mr. Burton maintains that he
completed this 12-month period while working at the Pine Bluff Police Department, while
defendants maintain he was required to complete a 12-month probationary period with the State
Capitol Police, as well.
another African American by the name of Sean Olive. Mr. Olive was terminated because his
landlord had a warrant issued for his arrest when he failed to vacate his apartment. Mr. Burton
contends that another officer by the name of Brett Stephens, a Caucasian, was given the option of
resigning in lieu of termination when he was caught stealing from his part time job during Chief
Mr. Burton points to Officer Gomillion as a potential comparator. He identifies Robert
Barham as a Caucasian employee who was treated differently for violating company policy
regarding reporting to work on time. Officer Barham reported to work nearly five hours late on
November 6, 2008 after he overslept. As a result of the incident, Officer Barham was issued a
Letter of Counseling. Officer Barham received a letter of reprimand for reporting to work one
hour late on March 22, 2010, one and a half hours late on April 1, 2010, and 18 minutes late on
April 14, 2010. Officer Barham was late for work four additional times from August 2012 to
October 2012. With the exception of the November 6, 2008 incident, Officer Barham was never
asked to provide a memorandum explaining his conduct, and the record evidence does not
indicate he was terminated for his conduct.
Mr. Burton also points to James Wiley as a potential comparator. The record indicates
that Officer Wiley was involved in a verbal altercation with Chief Hedden and that he violated a
direct order from Chief Hedden to leave the room. The record evidence does not indicate he was
terminated for his conduct.
Summary Judgment Standard
Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The initial burden is on the moving party to demonstrate the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the non-moving party to
establish by “specific facts” that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). An issue of fact is material only if it could
affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
“There is no ‘discrimination case exception’ to the application of summary judgment,
which is a useful pretrial tool to determine whether any case, including one alleging
discrimination, merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011) (en banc). “Because summary judgment is not disfavored and is designed for ‘every
action,’ panel statements to the contrary are unauthorized and should not be followed.” Id.
Claims Against Specific Defendants
Defendants raise several arguments regarding the propriety of Mr. Burton’s claims as
asserted against specific defendants. The Court notes that the Court of Appeals for the Eighth
Circuit holds, in the employment discrimination context, that the elements of Title VII claims, §
1983 equal protection claims, and § 1981 claims are the same. See, e.g., Humphries v. Pulaski
County Special Sch. Dist., 580 F.3d 688, 692 n.3 (8th Cir. 2009) (addressing Title VII, § 1983,
and § 1981 claims together and applying same standards). The Court also notes that a Title VII
claim of discrimination and a constitutional equal protection claim pursuant to § 1983 may both
be asserted when the plaintiff alleges that separate rights—statutory on the one hand and
constitutional on the other—have been violated. Mercer v. City of Cedar Rapids, Iowa, 79 F.
Supp. 2d 1055, 1062 (N.D. Iowa 1999). Against this backdrop, the Court examines defendants’
Defendants contend that Mr. Burton’s § 1983 claims are barred by the Eleventh
Amendment. The Eighth Circuit has “consistently held that Congress validly abrogated the
Eleventh Amendment with the enactment of Title VII.” Warren v. Prejean, 301 F.3d 893, 899
(8th Cir. 2002). However, Congress did not express a clear intention to abrogate state sovereign
immunity with the enactment of 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332 (1979).
Accordingly, Mr. Burton’s § 1983 claims against the Arkansas Secretary of State are barred by
the Eleventh Amendment. See Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). Mr.
Burton’s § 1983 claims for monetary damages against Mark Martin and Chief Hedden in their
official capacities are likewise barred, either under the Eleventh Amendment or because in these
capacities they are not “persons” within the meaning of the statute. Id. Mr. Burton’s official
capacity claims for prospective injunctive relief and his claims for prospective injunctive relief
and monetary damages against Chief Hedden in his individual capacity are not barred by the
§ 1981 Claims
Defendants correctly contend that to the extent Mr. Burton asserts claims under 42 U.S.C.
§ 1981, those claims should be dismissed. In Singletary v. Missouri Department of Corrections,
423 F.3d 886 (8th Cir. 2005), the Eighth Circuit held that a state is absolutely immune from suit
under § 1981. In Artis v. Francis Howell North Band Booster Associates, 161 F.3d 1178 (8th
Cir. 1998), the Eighth Circuit recognized that a § 1981 claim against a state actor must be
asserted through § 1983. Therefore, defendants are entitled to summary judgment to the extent
Mr. Burton asserts a claim under § 1981.
Claims Against Chief Hedden
Defendants argue that Chief Hedden is not liable under Title VII because he does not
meet the definition of employer. They also contend that Mr. Burton’s claims for damages
against Chief Hedden in his individual capacity are barred by qualified immunity.
Liability under Title VII
Title VII defines an employer as “a person engaged in an industry affecting commerce
who has fifteen or more employees . . . and any agent of such person . . . .” 42 U.S.C. §
2000e(b). An individual qualifies as an “employer” under Title VII if he serves in a supervisory
position and exercises significant control over the plaintiff’s hiring, firing, or conditions of
employment. See, e.g., Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994);
Paronline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989). Defendants contend that Chief Hedden
does not meet this definition because the Secretary of State is the decision-maker regarding
hiring, firing, and discipline of Secretary of State employees. On this record, the Court finds that
there is a genuine factual dispute as to whether Chief Hedden exercised sufficient control to
qualify as an agent of an employer under Title VII. Defendants’ motion for summary judgment
on this basis is denied.
The doctrine of qualified immunity “protects a government official ‘from liability for
civil damages insofar as the official’s 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). “In a qualified immunity inquiry, the first question is: Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Wimbley v. Cashion, 588 F.3d 959, 961 (8th Cir. 2009).
The second question is whether the right was clearly established. Id. at 963
“There is no question that [Mr. Burton’s] right to be free from racial . . . discrimination
was well-established at the time of [his] termination.” See id. “‘The constitutional right to be
free from [racial or gender] discrimination is so well established and so essential to the
preservation of our constitutional order that all public officials must be charged with knowledge
of it.’” Id. (quoting Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541, 546 (8th
Cir.1984)). For the reasons that follow, the Court determines that Mr. Burton’s discrimination
claims survive summary judgment.
Therefore, Chief Hedden is not entitled to qualified
Race Discrimination and Retaliation Claims
Mr. Burton claims he was discriminated against on the basis of his race on numerous
occasions while employed with the State Capitol Police. He also claims he was terminated for
reporting Officer Gomillion to Chief Hedden.
This Court analyzes Mr. Burton’s race discrimination and retaliation claims under the
burden-shifting framework of McDonnell Douglas. See Clegg v. Arkansas Dept. of Correction,
496 F.3d 922 (8th Cir. 2007).
“Under this framework, the plaintiff bears the burden of
establishing a prima facie case of discrimination.” McGinnis v. Union Pac. R.R. Co., 496 F.3d
868, 873 (8th Cir. 2007). If a plaintiff makes out a prima facie case, he creates a presumption of
unlawful discrimination, and the burden shifts to the defendant to come forward with evidence of
a legitimate nondiscriminatory reason for its actions. Id. “If the defendant articulates such a
reason, the burden returns to the plaintiff to show the defendant’s proffered reason is pretextual.”
To make out a prima facie case of race discrimination, a plaintiff must show that: (1) he
was a member of a protected class; (2) he was meeting the employer’s legitimate job
expectations; (3) he suffered an adverse employment action; and (4) the circumstances give rise
to an inference of discrimination. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011).
Defendants contend that Mr. Burton cannot satisfy the second, third and fourth elements of his
prima facie case. The Court will analyze each of these elements in turn.
As for the second element, defendants argue that Mr. Burton cannot prove that he was
meeting the Secretary of State’s legitimate job expectations. According to defendants, Mr.
Burton admitted that his failure to report to work as scheduled on March 30, 2010, and his failure
to prepare timely an accident report were violations of company policy. They view Mr. Burton’s
failure to prepare the requested memorandum as an act of insubordination. See Miner v. Bi-State
Development Agency, 943 F.2d 912 (8th Cir. 1991).
The Court finds that Mr. Burton has presented sufficient evidence to survive summary
judgment on this element of his prima facie case. Mr. Burton testified that a supervisor told him
to hold off on preparing the accident report. As for defendants’ claim of insubordination, Mr.
Burton points out that the letter of reprimand merely “requested” that he prepare a memorandum
and points to other employees he claims were not required to prepare a memorandum or
disciplined for failing to do so. While Mr. Burton admits violating State Capitol Police policy by
reporting to work late on March 30, 2010, material in the record indicates other State Capitol
Police reported to work late and were not terminated for the offense. The record, when viewed
in a light most favorable to Mr. Burton, does not entitle defendants to summary judgment on this
Defendants argue that many of Mr. Burton’s allegations of discrimination do not
constitute adverse employment actions. Mr. Burton’s termination satisfies the third element of
Mr. Burton’s prima facie case.
“A plaintiff can satisfy the fourth part of the prima facie case 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.” Pye, 641 F.3d at 1019 (citing Lewis v.
Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039-40 (8th Cir. 2010)). The Eighth Circuit “has
two lines of cases on the standard to determine whether employees are ‘similarly situated’ at the
prima facie stage of the McDonnell Douglas test.” Id. (quoting Wimbley v. Cashion, 588 F.3d
959, 962 (8th Cir. 2009)). The first line of cases “sets a low threshold, requiring only that the
employees are involved in or accused of the same or similar conduct and are disciplined in
different ways.” Id. (quotation omitted). The other line of cases “more rigorously requires that
the employees be similarly situated in all respects.” Id. (quotation omitted).
The Court has reviewed the record evidence relating to potential comparators Robert
Barham and Norman Gomillion, both of whom are Caucasian. The record establishes that
Officer Barham was reprimanded numerous times for reporting to work late and for abusing sick
leave but was requested to provide a written memorandum explaining his conduct only once.
Mr. Burton also relies on James Wiley as a potential comparator; Officer Wiley is Caucasian.
The record indicates that Officer Wiley was involved in a verbal altercation with Chief Hedden
and that he violated a direct order from Chief Hedden to leave the room but was not terminated
for his conduct.
The Court finds that Mr. Burton has demonstrated that Officer Barham and Officer Wiley
were involved in or accused of the same or similar conduct and were disciplined in different
ways. He has presented evidence sufficient to create a genuine dispute of material fact as to
whether the facts alleged give rise to an inference of discrimination thereby establishing his
prima facie case.
Because Mr. Burton has made out a prima facie case of discrimination, the burden shifts
to defendants to show that there was a legitimate, nondiscriminatory reason for firing him. “This
burden is not onerous.” Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 954 (8th Cir. 2012).
Courts do not “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.” Id. at 955 (quotation omitted). Defendants need only proffer a
good-faith reason for their action. Id.
Defendants have submitted evidence that Mr. Burton failed, among other things, (1) to
report to work as scheduled on March 30, 2010; (2) to inform his employer of his absence so that
arrangements could be made for proper shift coverage; (3) to complete a traffic accident report
before the end of his shift; and (4) to submit a written memorandum as requested by Chief
These alleged violations of company policy constitute evidence of a legitimate,
nondiscriminatory basis for Mr. Burton’s termination. See Putnam v. Unity Health Sys., 348
F.3d 732, 736 (8th Cir. 2003) (“Our cases have repeatedly held that insubordination and
violation of company policy are legitimate reasons for termination.”).
nondiscriminatory reasons to terminate Mr. Burton, “the presumption of discrimination
disappears,” and the burden returns to Mr. Burton “to prove that the proffered justification is
merely a pretext for discrimination.”
“There are at least two ways a plaintiff may
demonstrate a material question of fact regarding pretext.” Torgerson v. City of Rochester, 643
F.3d 1031, 1047 (8th Cir. 2011) (en banc). First, “[a] plaintiff may show that the employer’s
explanation is unworthy of credence 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. In this sense, Mr. Burton’s burden to of establishing pretext “merges with the
ultimate burden of persuading the court that [he was] the victim of intentional discrimination.”
Id. at 1046. As the Eighth Circuit has explained, “[p]roof of pretext, coupled with a strong prima
facie case, may suffice to create a triable question of fact.” Id.
Mr. Burton relies on the same potential comparators to establish pretext. “In determining
whether a plaintiff has met his burden with respect to pretext in a summary judgment motion, a
district court is prohibited from making a credibility judgment or a factual finding from
conflicting evidence.” Yates v. Rexton, Inc., 267 F.3d 793, 800 (8th Cir. 2001).
The Eighth Circuit has held that, “[a]t 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
(quotation omitted). A plaintiff “must show that she and the employees outside of her protected
group were similarly situated in all relevant respects.” Id. The potential comparators “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.” Id. Finally, “[t]o be probative
evidence of pretext, the misconduct of more leniently disciplined employees must be of
comparable seriousness.” Id.
At the pretext stage, it is Mr. Burton’s burden of persuasion to demonstrate that the
comparators identified are similarly situated in all relevant respects. Twiggs v. Selig, 679 F.3d
990, 993-94 (8th Cir. 2012). The evidence, when viewed in the light most favorable to Mr.
Burton, demonstrates that there is a genuine issue of material fact. Mr. Burton has identified
Officer Barham as a Caucasian employee who repeatedly reported to work late. While the
November 6, 2008 incident involving Officer Barham is outside the relevant time period, Officer
Barham reported to work late on three occasions during March and April 2010. Officer Barham
received a letter of reprimand, but unlike Mr. Burton, he was never asked by Chief Hedden to
prepare a memorandum explaining his conduct.
Mr. Burton also points to James Wiley as a potential comparator. The record indicates
that Officer Wiley was involved in a verbal altercation with Chief Hedden and that he violated a
direct order from Chief Hedden to leave the room. Officer Wiley who is Caucasian was not
disciplined for his actions, while Mr. Burton was accused of insubordination for failing to
prepare a memorandum as requested.
The comparator evidence, taken together with other record evidence and the evidence
establishing Mr. Burton’s prima facie case, demonstrates that there is a genuine issue of material
fact as to whether there is an inference of discrimination. The role of the Court is to determine
whether the non-moving party has produced evidence from which a jury could reasonably find in
that party’s favor. Viewing the evidence in the light most favorable to Mr. Burton, a jury could
reasonably find that defendants’ asserted reasons for terminating Mr. Burton were a pretext for
race discrimination. This Court concludes defendants are not entitled to summary judgment on
Mr. Burton’s race discrimination claim.
Mr. Burton claims he was terminated in retaliation for reporting Officer Gomillion’s
alleged racially offensive statements to Chief Hedden.
“Title VII’s anti-retaliation provision prevents employers from retaliating against
employees who have acted to vindicate their statutorily protected rights by reporting harassment
or discrimination in the workplace.” Gibson v. American Greeting Corp., 670 F.3d 844, 856 (8th
Cir. 2012). To make out a prima facie case of retaliation, a plaintiff must show that: (1) he is
engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3)
there was a causal connection between the adverse employment action and the protected activity.
Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998).
Defendants argue that there is no evidence of a causal connection between Mr. Burton’s
actions and his termination. Defendants note that Mr. Burton was terminated four months after
he reported Officer Gomillion to Chief Hedden. Generally, more than temporal connection is
required to establish a causal connection. Tyler v. University of Arkansas Bd. of Trustees, 628
F.3d 980, 985 (8th Cir. 2011). “As more time passes between the protected conduct and the
retaliatory act, the inference of retaliation becomes weaker and requires stronger alternate
evidence of causation . . . .” Id. “The inference vanishes altogether when the time gap between
the protected activity and the adverse employment action is measured in months.” Id.; see, e.g.,
Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641 (8th Cir. 2009) (holding that gap of seven
months was not sufficiently contemporaneous to indicate a causal connection); Recio v.
Creighton Univ., 521 F.3d 934 (8th Cir. 2008) (holding that six month gap did not establish
causal connection). The Eighth Circuit has determined that a gap as short as two months did not
establish a causal connection. Lewis v. St. Cloud State Univ., 467 F.3d 1133 (8th Cir. 2006).
Mr. Burton submitted his written complaint on December 9, 2009. He was terminated on
April 12, 2010. While the inference of retaliation is weakened by this gap in time, there is other
evidence from which a jury could find a causal connection. Mr. Burton inquired about the status
of his complaint on January 22, 2010. Chief Hedden claims he did not receive the email, but he
inquired about the status of Mr. Burton’s raise just three days later. On February 16, 2010, Mr.
Burton informed Chief Hedden that Officer Gomillion had thrown a set of keys at Mr. Burton
and another officer. Mr. Burton submitted a statement regarding the incident to Sergeant Huggs
on February 17, 2010. Later, during a meeting with Assistant Chief Larry Robinson and others,
Mr. Burton again inquired about the status of his complaint against Officer Gomillion. During
the meeting, Assistant Chief Robinson gave Mr. Burton a copy of the policy regarding at-will
employees, told him anyone can be terminated at any time, and told him to read it, despite Mr.
Burton’s making clear he knew what the policy stated. Assistant Chief Robinson then pointed to
a purportedly new policy regarding bickering amongst the staff. Mr. Burton asked Assistant
Chief Robinson if he was referring to Officer Gomillion and again inquired about the status of
his complaint. According to Mr. Burton, Assistant Chief Robinson stated that “if ya’ll would
just leave [Officer Gomillion] alone and stop aggravating him, none of this stuff would be
happening.” Mr. Burton was terminated a few weeks later.
Mr. Burton has presented evidence sufficient to create a genuine dispute of material fact
as to whether the facts alleged give rise to retaliatory discharge. A jury could reasonably find in
favor of Mr. Burton on this claim. Defendants’ request for summary judgment on the retaliation
claim is denied.
Defendants argue that to the extent Mr. Burton alleges he was subjected to a hostile work
environment or suffered a deprivation of a protected property or liberty interest, defendants are
entitled to summary judgment on such claims.
Mr. Burton does not respond directly to
defendants’ arguments relating to these claims. In regard to the procedural due process claim,
Mr. Burton does not contest defendants’ arguments that Mr. Burton was an at-will employee not
entitled to notice or an opportunity to be heard and that Mr. Burton failed to exhaust his post-
termination administrative remedies under state law by not appealing his termination. Allen v.
City of Pocahontas, 340 F.3d 551 (8th Cir. 2003) (holding that at-will employee did not have a
protected property interest in continued employment under Arkansas law); Keating v. Nebraska
Pub. Power Dist., 562 F.3d 923, 929 (8th Cir. 2009) (“Under federal law, a litigant asserting a
deprivation of procedural due process must exhaust state remedies before such an allegation
states a claim under § 1983.”).
In regard to the hostile work environment claim, Mr. Burton does not contest defendants’
arguments that he cannot show he was subjected to unwelcome harassment and that the Secretary
of State took prompt remedial action to address Mr. Burton’s complaint. Pye v. Nu Aire, Inc.,
641 F.3d 1011, 1018 (8th Cir. 2011) (stating elements of prima facie case of hostile work
environment); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (stating elements of
remedial action defense).
Mr. Burton has not established the existence of genuine issues of material fact sufficient
to survive summary judgment on these claims.
Mitigation of Damages
Defendants contend that Mr. Burton cannot recover damages because he did not appeal
his termination to the Secretary of State. Defendants cite no controlling authority on this issue,
and the Court is not aware of any. Moreover, defendants acknowledge that Mr. Burton’s failure
to avail himself of Secretary of State’s appeal process does not present a jurisdictional issue. For
these reasons, they are not entitled to summary judgment on this issue.
Finally, defendants contend that Mr. Burton is not entitled to an award of punitive
The standard for an award of punitive damages under Title VII is set forth in Dominic v.
DeVilbiss Air Power Co., 493 F.3d 968 (8th Cir. 2007):
Punitive damages are appropriate for victims of Title VII if the plaintiff has
shown that the employer engaged in intentional discrimination and acted with
malice or with reckless indifference to the plaintiff’s federally protected rights.
Malice and reckless indifference can be shown by demonstrating that an employer
discriminated in the face of a perceived risk that its actions will violate federal
law. This standard refers to the employer’s state of mind regarding its knowledge
that it may be acting in violation of federal law, not its awareness that it is
engaging in discrimination. Even if the plaintiff can show that individuals in the
company demonstrated the requisite intent, punitive damages are only appropriate
if such intent can be imputed to the employer. When an employer promptly and
conscientiously responds to complaints of harassment or discrimination with good
faith efforts, punitive damages are not warranted.
On this record, the Court cannot say that no reasonable jury could find that defendants
acted with malice or with reckless indifference to plaintiff’s federally protected rights.
Accordingly, defendants are not entitled to summary judgment on this basis.
For these reasons, defendants’ motion for summary judgment is granted in part and
denied in part. Defendants’ motion is denied as to Mr. Burton’s race and retaliation claims. Mr.
Burton may pursue his Title VII claims against all defendants. Mr. Burton’s § 1983 claims
against the Arkansas Secretary of State are barred by the Eleventh Amendment, and his § 1983
claims for monetary damages against Mark Martin and Chief Hedden in their official capacities
are likewise barred. Mr. Burton may pursue his § 1983 claims for prospective injunctive relief
and his § 1983 claims for monetary damages against Chief Hedden in his individual capacity.
Chief Hedden is not entitled to qualified immunity. Defendants are not entitled to summary
judgment as to mitigation of damages or as to punitive damages. Defendants’ motion for
summary judgment is granted as to Mr. Burton’s § 1981 claims, hostile work environment claim,
and as to Mr. Burton’s claim that he suffered a deprivation of a protected property or liberty
SO ORDERED this 16th day of February, 2013.
Kristine G. Baker
United States District Judge
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