DePriest v. Milligan

Filing 75

ORDER granting in part and denying in part 51 Motion for Summary Judgment; granting 59 Motion to Stay; denying 26 Motion to Compel and Contempt; denying 29 Motion to Quash; denying 30 Motion to Quash; denying 33 Motion for Protect ive Order. The parties shall have 90 days from the conclusion of any additional EEOC proceedings or any final action by the EEOC to request this Court lift the stay or otherwise seek relief. Signed by Judge Kristine G. Baker on 9/30/13. (kpr) (Docket text modified on 10/1/2013 to correct the description of the document filed). (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RONDA DEPRIEST
v.

PLAINTIFF
No. 4:12-cv-00235 KGB

DENNIS MILLIGAN

DEFENDANT
OPINION AND ORDER

Defendant Dennis Milligan, individually and in his official capacity, filed a motion for
summary judgment (Dkt. No. 51), to which plaintiff Ronda DePriest has responded (Dkt. No.
64). Mr. Milligan has replied (Dkt. No. 70). Ms. DePriest has filed a motion to stay and motion
to remand (Dkt. No. 59), to which Mr. Milligan has responded (Dkt. No. 70). For the following
reasons, the Court grants in part and denies in part Mr. Milligan’s and Ms. DePriest’s motions.
I.

Factual Background

Dennis Milligan, a Republican, ran for Saline County Circuit Clerk in 2010 and won. He
opposed the long-time incumbent clerk, Doug Kidd, a Democrat. Ms. DePriest, an at-will
employee, was employed as chief deputy under Mr. Kidd’s administration. Mr. Milligan did not
know Ms. DePriest when he was elected. Prior to assuming office on January 1, 2011, Mr.
Milligan notified Ms. DePriest that she would not be retained as chief deputy. Although Ms.
DePriest does not dispute this, she contends that she would have stepped down to a lower
position to remain an employee and not lose her seniority, sick leave, and vacation leave. She
alleges in her complaint that she was not retained because she refused to support Mr. Milligan in
the campaign (Dkt. No. 20, ¶7). She contends in response to the motion for summary judgment
that Mr. Milligan told her on Facebook that he fired her because of comments she had made on
Facebook (Dkt. No. 59-1, ¶6). Mr. Milligan disputes this.

Mr. Milligan hired a person of his choosing, Jim Harris, to be his chief-of-staff. Ms.
DePriest claims that Mr. Harris had no prior experience in running the Saline County Circuit
Clerk’s office. Mr. Milligan claimed in his deposition that he hired the individual he felt would
be best to help him fulfill the promises that he made to the citizens of Saline County. Mr.
Milligan claims he chose not to reappoint Ms. DePriest as the chief deputy because he viewed
the position as one that requires political loyalty. Ms. DePriest disputes that the chief deputy
position requires political loyalty (Dkt. No. 59-1, ¶9).
Ms. DePriest contends that Mr. Milligan did not hire her because she is female and
supported Mr. Kidd. She also claims that, at present, Mr. Milligan refuses to consider her for
employment because she has filed a lawsuit, even if she is the best qualified candidate (Dkt. No.
59-1, ¶8). She claims that Mr. Milligan refuses to hire her, despite knowing nothing about her.
Ms. DePriest testified in her deposition that she never called Mr. Milligan and asked him
if he would hire her back in some other position. She claims that to do so would have been futile
because she had filed a lawsuit (Dkt. No. 59-1, ¶12). To Mr. Harris’s knowledge, Ms. DePriest
has not applied for any other job at the circuit clerk’s office since Mr. Milligan was elected.
Although she admits this, Ms. DePriest maintains that applying would have been futile because
Mr. Milligan would not have hired her (Dkt. No. 50-1, ¶13). Ms. DePriest contends that, at the
time she was terminated, she was not interviewed or allowed to apply for any other positions in
the Saline County Circuit Clerk’s office. She maintains that, had she been allowed to do so, she
would have continued working there. She also claims that the job given to Gary Underwood was
not posted, and she had previously performed all aspects of that job.
According to Mr. Milligan, anytime he hires a full-time employee, he advises Christy
Peterson in the County’s human resources department that a position is open, and they “let the

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system run its course” before he decides who to hire. Part-time positions may or may not be
posted. Mr. Milligan explained that he tells Ms. Peterson what the job is and follows her
recommendation regarding whether to advertise or not. Ms. DePriest disputes that Mr. Milligan
goes to Ms. Peterson with every hiring decision; she claims Mr. Milligan alone made the
decision to terminate her and continues to refuse to hire her (Dkt. No. 59-1, ¶15).
At the end of 2010, all of the employees in the Saline County Circuit Clerk’s office were
women. Mr. Milligan maintains that he does not consider race or gender in his hiring decisions;
Ms. DePriest disputes this (Dkt. No. 59-1, ¶18).
Ms. DePriest contends that Mr. Harris does not perform the same duties she performed,
but is “completely different” from the job she performed (Dkt. No. 59-1, ¶29). Ms. DePriest
cites the supervision of all records and checking their accuracy as examples of duties she once
performed that are now performed by other deputy clerks (Dkt. No. 59-1, ¶29). Mr. Harris’s
duties, on the other hand, include helping Mr. Milligan write speeches that Mr. Milligan has to
deliver and acting as Mr. Milligan’s “overall ambassador” in the community. When Mr. Harris
is off the clock, he attends political events for Mr. Milligan and promotes changes that Mr.
Milligan has made in the Circuit Clerk’s Office. Mr. Milligan consults with Mr. Harris regarding
political matters and values Mr. Harris’s political insight and counsel, based on Mr. Harris’s
experience in the political arena. Mr. Harris also advises Mr. Milligan on hiring, firing, and
disciplining employees. Mr. Harris interviews potential staff members during the hiring process.
Mr. Milligan has designated Mr. Harris as his representative to attend meetings on his behalf
sponsored by the Arkansas Association of Counties, the Arkansas Circuit Clerk’s Association,
and the Administrative Office of the Courts. Mr. Harris is Mr. Milligan’s primary contact with
other constitutional offices in the state, including the Governor’s Office, the State Auditor, the

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State Treasurer, the State Land Commissioner, and all state agencies that interact with the Circuit
Clerk’s Office. Mr. Milligan has also appointed Mr. Harris as his liaison with the press, and Mr.
Harris, at Mr. Milligan’s direction, prepares press releases regarding Mr. Milligan’s
accomplishments of his campaign pledges and of changes, developments, and improvements
within the Circuit Clerk’s Office. Mr. Harris also handles any special projects Mr. Milligan
wants him to put together. Mr. Harris’s everyday responsibilities include dealing with any
customer complaints, managing the office staff, and generally overseeing the Circuit Clerk’s
office. Mr. Harris claims he is totally responsible for the day-to-day operations of the office.
Mr. Harris continues to perform other daily tasks that Ms. DePriest performed when she was
chief deputy such as making deposits, handling payroll, managing personnel records, and dealing
with employee leave. Mr. Milligan claims he expects Mr. Harris to do whatever he demands or
needs from him, 24 hours a day.
Mr. Milligan contends he appointed Mr. Harris because he knew Mr. Harris personally
and wanted someone he could trust to act on his behalf in his absence. Ms. DePriest denies that
the position she held was a position of “trust” (Dkt. No. 59-1, ¶31).
Ms. DePriest filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) prior to filing this lawsuit. The right-to-sue letter Ms. DePriest received from the
EEOC states: “The EEOC issues the following determination: Based upon its investigation, the
EEOC is unable to conclude that the information obtained establishes violations of the statutes.
This does not certify that the respondent is in compliance with the statutes. No finding is made
as to any other issues that might be construed as having been raised by this charge.” (Dkt. No.
52-5).

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II.

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.” Holloway v. Pigman, 884
F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not
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.

Analysis

As a general matter, at-will public employees have no property right in their jobs, nor are
constitutional rights affected by their firing without cause, except in certain circumstances. Here,
although Ms. DePriest concedes she was an at-will public employee, she contends her firing
without cause violated her First Amendment and Fourteenth Amendment Equal Protection rights.

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A.

First Amendment Claim

Ms. DePriest alleges a claim for retaliatory discharge in violation of 42 U.S.C. § 1983.
To establish a prima facie case of retaliation under the First Amendment, a plaintiff must show
that her conduct was constitutionally protected and that the protected conduct was a substantial
or motivating factor in the defendant’s adverse action. McCullough v. Univ. of Ark. for Med.
Scis., 559 F.3d 855, 865 (8th Cir. 2009) (citing Altonen v. City of Minneapolis, 487 F.3d 554,
559 (8th Cir. 2007); Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672-76 (8th Cir. 1986)). If
plaintiff makes out a prima facie case, the burden shifts to defendant to show that it would have
taken the same action regardless of plaintiff’s protected speech. Id. (citing Altonen, 487 F.3d at
559); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
Here, Ms. DePriest asserts she was terminated for engaging in constitutionally protected
speech or for refusing to speak. For a public employee to make out a claim for retaliatory
discharge based on protected speech, she must demonstrate that the speech involved a matter of
public concern, that the interest of the employee as a citizen in commenting upon matters of
public concern outweighs the employer’s interest in promoting the efficiency of the public
services it performs through its employee. Connick v. Myers, 461 U.S. 138, 142 (1983) (quoting
Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568
(1968).
“Whether an employee’s speech addresses a matter of public concern must be determined
by the content, form and context of a given statement, as revealed by the whole record.”
Connick, 461 U.S. at 147–48. If the speech at issue relates to a matter of public concern, the
court must next employ the balancing test outlined in Pickering v. Board of Education to

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determine if plaintiff’s speech interests outweigh the efficiency interests of her government
employer.
However, the Supreme Court’s decision in Elrod v. Burns, 427 U.S. 347 (1976), as
modified in Branti v. Finkel, 445 U.S. 507 (1980), created an exception to the Pickering rule.
The First Amendment issue in this case arises from that exception. In those cases, the Supreme
Court concluded that political patronage dismissals impinge upon a public employee’s First
Amendment rights of speech and association and held that a dismissal solely on account of an
employee’s political affiliation violates the First Amendment unless “the hiring authority can
demonstrate that party affiliation is an appropriate requirement for the effective performance of
the public office involved.” Branti, 445 U.S. at 518. More recently, the Supreme Court has
summarized Elrod and Branti as standing for the proposition that “[g]overnment officials may
not discharge public employees for refusing to support a political party or its candidates, unless
political affiliation is a reasonably appropriate requirement for the job in question.” O’Hare
Truck Service Inc. v. City of Northlake, 518 U.S. 712, 714 (1996).

In other words, a

“government’s interest in securing employees who will loyally implement its policies can be
adequately served by choosing or dismissing certain high-level employees on the basis of their
political views.” Rutan v. Republican Party of Illinois, 497 U.S. 62, 74 (1990).
“The question whether party affiliation or political loyalty is an appropriate requirement
often turns on the extent to which the position involves policy-making or a confidential
relationship with an elected official.” Langley v. Hot Spring County, Arkansas, 393 F.3d 814,
817 (8th Cir. 2005).

The Eighth Circuit has found personal loyalty to be an appropriate

requirement where the individual reports directly to the chief executive and his duties include
public relations and long-range planning. See Johnson v. City of West Memphis, 113 F.3d 842,

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844 (8th Cir. 1997).

The nature of an employee’s responsibilities is a critical factor in

categorizing that employee. An employee with responsibilities that are not well-defined or are of
broad scope or one who acts as an advisor or formulates plans for implementing broad goals is
more likely to function as a policy maker. Elrod, 427 U.S. at 367. If an employee has influence
on important policy decisions made by the elected official, it is beyond serious question that the
position is a policy-making position and that political loyalty to the elected official is necessary.
Langley, 393 F.3d at 818.
Here, the parties agree that the position Ms. DePriest held changed when Mr. Milligan
took office.

When Ms. DePriest was chief deputy, she claims she had no political

responsibilities. Mr. Milligan acknowledges that she “oversaw the real estate office and had
other non-political responsibilities” (Dkt. No. 53, at 7).

When Mr. Milligan took office,

however, he claims he envisioned the position of chief deputy as more of a chief of staff and
political advisor position—“a position of trust rather than one clerical in nature” (Dkt. No. 53, at
7). Ms. DePriest agrees that Mr. Harris does not perform the same duties she performed (Dkt.
No. 59-1, ¶29). She contends that his job is “completely different” from the job she performed
(Dkt. No. 59-1, ¶29). Ms. DePriest also denies that the position she held was a position of
“trust” (Dkt. No. 59-1, ¶31).
This Court concludes, based on the record as a whole, that the chief deputy position was
a position of trust and that, under Mr. Milligan, it became a policy-making position. The Court
concludes the Elrod-Branti exception to the Pickering rule applies. Mr. Milligan’s termination
of Ms. DePriest because she failed to support his candidacy did not violate her First Amendment
rights.

The Court acknowledges Ms. DePriest’s insistence that Mr. Milligan told her on

Facebook that he fired her because of comments she purportedly made on Facebook. Ms.

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DePriest, however, never identifies the posts or statements Mr. Milligan allegedly attributed to
her and upon which she claims he fired her. The only post by Ms. DePriest referred to in the
record is a post made after her termination by Mr. Milligan. These allegations do not alter this
Court’s analysis of Ms. DePriest’s First Amendment claim. Mr. Milligan is entitled to summary
judgment in his favor on Ms. DePriest’s First Amendment claim.
B.

Gender Discrimination Claim

Ms. DePriest also alleges a gender discrimination claim. She contends that Mr. Milligan
terminated her, replaced her by a lesser qualified male, and did not permit her to reapply for open
positions because of her gender in violation of the Equal Protection Clause made applicable
through 42 U.S.C. § 1983; Title VII, 42 U.S.C. § 2000e et seq.; and the Arkansas Civil Rights
Act (the “ACRA”), Ark. Code Ann. § 16-123-101 et seq. She also alleges a violation of the
Government Employee Rights Act of 1991 (the “GERA”), 42 U.S.C. §§ 2000e(f), 2000e-16c.
The GERA is an alternate remedy to Title VII provided by Congress for employees in
positions of trust. The GERA provides that all personnel actions affecting qualified employees
shall be made free from any discrimination based on the basis of race, color, religion, sex,
national origin, age, or disability. 42 U.S.C. § 2000e-16c. The GERA further provides that the
rights, protections, and remedies provided under the GERA apply with respect to employment of
any individual chosen or appointed by a person elected to public office in any state or political
subdivision of the state by the qualified voters thereof to serve the elected official on the policymaking level. Id. Claims under the GERA first must be reviewed by the EEOC before they can
be judicially reviewed. Id. Having determined that Ms. DePriest held a position of trust on the
Saline County Circuit Clerk’s staff, this Court determines that it must stay the action with no

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further consideration of Ms. DePriest’s gender discrimination claims at this time, pending further
action by the EEOC consistent with the GERA.
Because Ms. DePriest was a member of the Saline County Circuit Clerk’s personal staff,
she was not an “employee” under Title VII. See 42 U.S.C. § 2000e(f). Instead, Ms. DePriest
must pursue remedies under the GERA and its administrative and judicial process. See Crain v.
Butler, 419 F.Supp. 2d 785, 788 (E.D.N.C. 2005) (examining factors to determine whether an
employee is covered by Title VII or the GERA). The Court acknowledges that Ms. DePriest
presented a notice of right to sue issued by the EEOC before filing the current action. That
notice with the language it includes, however, is not sufficient under the GERA. See Stitz v. City
of Eureka Springs, Arkansas, 9 F.Supp.2d 1046, 1056 (W.D. Ark. 1998). As one court has
explained:
Under the GERA, the administrative procedures are quite different than those
delineated under Title VII. Under the GERA, once a proper complaint has been
filed with the EEOC, the Commission must determine whether a violation has
occurred and issue a final order in accordance with the procedures set forth in the
Administrative Procedure Act, 5 U.S.C. §§ 554-57. 2 U.S.C. § 1220(b)(1). At
that point, “any party aggrieved by a final order” can obtain judicial review
pursuant to 28 U.S.C. § 158. 2 U.S.C. § 1220(c). Consequently, the charging
party must “await a determination by [the EEOC] prior to initiating legal action.”
McNulty v. New York City Dep’t of Finance, 941 F.Supp. 452, 457 (S.D.N.Y.
1996). Although plaintiffs may seek review in the federal district court once the
EEOC has made a determination, de novo review is unavailable. Id.
Guy v. State of Illinois, 958 F.Supp. 1300, 1306 (N.D. Ill. 1997). Like the court in Guy,
however, this Court declines to order the EEOC to hear again or conduct further proceedings in
the present case. Id. at 1306–07. Ms. DePriest’s argument that the EEOC should take further
action with regard to Ms. DePriest’s GERA claim is more properly addressed to the EEOC itself.
Therefore, the Court stays this matter to allow Ms. DePriest to refile her EEOC complaint to
allege a GERA violation and to obtain the proper administrative relief under the GERA. Further,

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the Court notes that, because Ms. DePriest properly invoked the EEOC’s jurisdiction in a timely
fashion and that the EEOC failed to determine that the charge should have been resolved in
accord with the GERA, principles of equity apply to toll the running of the statute of limitations
on this GERA claim. See Dyer v. Radcliffe, 169 F.Supp. 2d 770, 775–76 (S.D. Ohio 2001).
The Court acknowledges that Ms. DePriest brings gender discrimination claims under the
Equal Protection Clause as made applicable by 42 U.S.C. § 1983 and under the ACRA. Courts
do not agree on the interplay between § 1983 and the GERA. Compare Dyer, 169 F.Supp. 2d at
777 (determining that the GERA is the exclusive remedy and that employees covered by the
GERA have no independent § 1983 right), with Stubblefield v. City of Jackson, Mississippi, 871
F.Supp. 903, 911 (S.D. Miss. 1994) (determining that the GERA does not provide an exclusive
remedy and examining race discrimination claims under § 1983). The parties in the instant case
did not brief this issue. At this time, the Court declines to reach the issue. The Court construes
Ms. DePriest’s request for a stay as a request for this Court to stay consideration of all her gender
discrimination claims at this time. The Court grants that request. If the parties desire this Court
to proceed in evaluating her gender discrimination claims under § 1983 or the ACRA, the parties
may file a motion requesting the Court do so.
C.

Right to Remonstrate Claim

Ms. DePriest also contends that her termination violates the Arkansas Constitution by
infringing on her right to remonstrate. Ark. Const. art. II, §4 (“The right of the people peaceably
to assemble, to consult for the common good; and to petition, by address or remonstrance, the
government, or any department thereof, shall never be abridged.”).
Ms. DePriest contends that the Arkansas Constitution creates a specific “right to
remonstrate” and that this right is something different from the right to free speech and the right

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to petition the government for redress of grievances because both the terms “remonstrate” and
“petition” are found in the Arkansas Constitution and, therefore, “petition” must mean something
different than “remonstrate.” See, e.g., Sykes v. Williams, 283 S.W.3d 209, 215 (2008) (“This
court construes statutes so that no word is left void, superfluous, or insignificant.”).

Ms.

DePriest argues that the “remonstrate” language in the Arkansas Constitution confers a right on
each citizen to object to, to protest, or to oppose an officer’s course of action, and to bring a
lawsuit if the officer attempts to retaliate against a citizen for exercising this right.
Mr. Milligan contends the word “remonstrance” is synonymous with the term “petition”
and confers no additional rights beyond those protected by the First Amendment to the United
States Constitution. Mr. Milligan argues that “remonstrate” denotes a meaning of “petition”
because the phrase “by address or remonstrance” modifies the phrase “to petition” in the
Arkansas Constitution. See Ark. Const. art. II, §4.
The Court will not resolve this dispute. The “right to remonstrate” as Ms. DePriest
understands it was not clearly established in late 2010 or early 2011 when the acts she complains
of allegedly occurred and is not clearly established now, so Mr. Milligan is entitled to qualified
immunity on this claim. Simons v. Marshall, 255 S.W.3d 838, 842 (Ark. 2007); Fegans v.
Norris, 89 S.W.3d 919, 924 (Ark. 2002).

Therefore, Mr. Milligan’s motion for summary

judgment on Ms. DePriest’s right to remonstrate claim is granted.
***
For these reasons, the Court grants Mr. Milligan’s motion for summary judgment as to
Ms. DePriest’s First Amendment and right to remonstrate claims, dismissing with prejudice
those claims, and denies his motion without prejudice as to Ms. DePriest’s gender discrimination
claims for the reasons specifically stated in this Order (Dkt. No. 51). The Court grants Ms.

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DePriest’s motion to stay this matter for further proceedings consistent with the GERA (Dkt. No.
59).
The Court notes that there are several outstanding discovery motions pending in this
matter. Given that this matter is hereby stayed and remanded, the Court denies without prejudice
at this time all outstanding, pending discovery motions (Dkt. Nos. 26, 29, 30, 33). The parties
may refile these discovery motions, if appropriate, when the stay is lifted in this matter.
The parties shall have 90 days from the conclusion of any additional EEOC proceedings
or any final action by the EEOC to request this Court lift the stay or otherwise seek relief.
SO ORDERED this 30th day of September, 2013.

____________________________________
Kristine G. Baker
United States District Judge

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