Moody v. Vozel et al
OPINION AND ORDER that defts' motions to dismiss most of pltf's claims 5 9 are granted as stated herein; pltf's partial motion for summary judgment 35 is denied; defts have not moved to dismiss pltf's race and sex discrimination claims against AHTD under Title VII, so those claims survive. Signed by Judge J. Leon Holmes on 4/4/13. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ETHAN O’DELL MOODY
No. 4:12CV00312 JLH
ARKANSAS STATE HIGHWAY &
FRANK VOZEL, Deputy Director and Chief Engineer,
in his official and individual capacities; and
DAN FLOWERS, Director of the Highway &
Transportation Department, in his
official and individual capacities
OPINION AND ORDER
Ethan O’Dell Moody brings this action against his former employer, the Arkansas State
Highway and Transportation Department, and two of its directors, Frank Vozel and Dan Flowers,
in their official and individual capacities. Pursuant to Title VII and 42 U.S.C. § 1983, Moody alleges
claims of sex and race discrimination, retaliation, equal protection and due process violations, and
civil conspiracy. All of these claims stem from Moody’s discharge. The defendants have now moved
to dismiss most of the claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Moody
has responded and has requested the Court to convert the proceedings into a summary judgment
analysis. For the following reasons, the defendants’ motions to dismiss are granted.
The pleading standards, and the correlative standards for ruling on a motion to dismiss under
Rule 12(b)(6), are well known. A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8(a)(2) does not
require a complaint to contain detailed factual allegations, it does require a plaintiff to state the
grounds of his entitlement to relief, which requires more than labels and conclusions. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007). In ruling on
a motion to dismiss, the Court must accept as true all factual allegations in the complaint and review
the complaint to determine whether its allegations show that the pleader is entitled to relief. Schaaf
v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). All reasonable inferences from the
complaint must be drawn in favor of the nonmoving party. Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 590 (8th Cir. 2004). The Court need not, however, accept as true legal
conclusions, even those stated as though they are factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009).
The following facts are taken from the complaint. For more than 26 years, Moody was
employed by AHTD, which is an agency of the State of Arkansas. During that time, Moody received
annual and merit raises, and he never received an oral warning, written reprimand, demotion, or time
off without pay. In July 2008, Moody was promoted to crew leader. At some point prior to April
2010, Moody applied for a supervisor’s position in Jackson County, Arkansas.
In 2008 or 2009, Moody reported to his superior that he had observed a female AHTD
employee, Wanda Aldrich, holding a knife to the neck of a black employee, Ernest Russell. Both
Aldrich and Russell denied that the incident occurred, although Aldrich told Moody on October 26,
2010, that “[s]omeone is going to pay for telling on me for pulling a knife on Ernest’s throat.” On
July 14, 2010, Moody reported that AHTD employees Belinda Rogers—Aldrich’s cousin—and
Rebecca Bohannon were swimming while they were on the clock. On August 9, 2010, Moody
encountered Bohannon while she was wearing cut-offs and washing herself off with a herbicide hose;
he told her to put her work clothes back on or sign out. More recently, Moody enforced AHTD’s
no cell phone policy.
Between April 2010 and October 2010, five false allegations of sexual harassment were made
against Moody. In one instance, Rogers falsely accused Moody of “putting a stop and slow sign
between her legs.” In addition, Bohannon falsely accused Moody of patting her on her backside,
stating to her that “her milk would sour in those things,” and pulling on her jeans pocket. These
allegations were all made because Aldrich, Rogers, and Bohannon wanted to get Moody fired instead
of him being promoted to the supervisor position for which he had applied. Moody was discharged
on November 1, 2010, and was notified of this termination on November 10.
On May 24, 2011, Moody filed a charge of discrimination with the Equal Employment
Opportunity Commission against AHTD alleging race and sex discrimination and retaliation under
Title VII, section 1983, and the Arkansas Civil Rights Act. In the charge, Moody recounted the
above facts concerning Aldrich, Rogers, and Bohannon; he did not, however, mention Vozel or
Flowers.1 On February 29, 2012, the EEOC notified Moody that it declined to pursue the action.
On May 25, 2012, Moody filed his complaint in this Court against Vozel, Flowers, and AHTD. In
it, in addition to the aforementioned facts, Moody alleges that the discharge was the culmination of
a conspiracy involving the false sexual allegations and that it was “in retaliation for his testimony in
a racial incident, for enforcing the rule about no cell phones, and [for] reprimands he gave for
workplace violations.” Moody also alleges that the discharge occurred “prior to any good faith
investigation” and that there was a “sham investigation with a foregone conclusion.”
At the time of Moody’s discharge, Vozel was AHTD’s deputy director and chief engineer,
and Flowers was the AHTD director. Flowers has since retired.
III. TITLE VII CLAIMS
Under Title VII, Moody brings claims of sex discrimination, race discrimination, and
retaliation against all the defendants. The defendants have moved to dismiss all of these claims,
except the claims against AHTD for race and sex discrimination, pursuant to Rule 12(b)(6). The
Court will address these arguments in turn.
Vozel and Flowers move to dismiss the Title VII claims against them in their individual
capacities. In response, Moody admits that Vozel and Flowers cannot be held personally liable under
Title VII. Therefore, all Title VII claims against Vozel and Flowers in their individual capacities will
be dismissed with prejudice. See Clegg v. Ark. Dep’t of Corrs., 496 F.3d 922, 931 (8th Cir. 2007);
Schoffstall v. Henderson, 223 F.3d 818, 821 n.2 (8th Cir. 2000).
Vozel and Flowers move to dismiss the official capacity Title VII claims against them because
they were not named in the original charge of discrimination submitted by Moody to the EEOC. See
Document #36-4, at 2. It is generally true that a plaintiff must file a charge against a particular party
with the EEOC before a lawsuit against that party is allowed under Title VII. See Lewis v. Asplundh
Tree Expert Co., 402 F. App’x 454, 456 (11th Cir. 2010) (citing Virgo v. Riviera Beach Assocs.,
Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994). This general rule does not apply, however, if the party
named before the EEOC and the party sued later are completely identical, see Duffy v. Se. Pa.
Transp. Co., No. CIV. A. 94-4260, 1995 WL 299032, at *2 (E.D. Pa. May 12, 1995) (citing
Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 461 (4th Cir. 1988)), or if there
is a sufficient identity of interest between them to provide notice of the charges to the latter party.
See Winbush v. State of Iowa, by Glenwood State Hosp., 66 F.3d 1471, 1478 n.9 (8th Cir. 1995)
(citing Greenwood v. Ross, 778 F.2d 448, 451 (8th Cir. 1985)).
In asserting official-capacity claims against Vozel and Flowers, Moody is essentially asserting
claims against AHTD itself. See Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (“A suit
against state employees in their official capacities is the functional equivalent of a suit against the
State.”). Thus, there is a complete identity of interest between AHTD and Vozel and Flowers in their
official capacities, and it is irrelevant whether the latter were specifically named in the EEOC charge.
See Duffy, 1995 WL 299032, at *2 (citing Alvarado, 848 F.2d at 461). For the same reason,
however, the official capacity claims against Vozel and Flowers are redundant of the claim against
AHTD and therefore should be dismissed without prejudice. See Veatch v. Bartels Lutheran Home,
627 F.3d 1254, 1257 (8th Cir. 2010).
AHTD moves to dismiss any claim against it for punitive damages under Title VII because
Title VII does not allow for punitive damages against a state agency. Moody does not directly
dispute this argument. Moody’s claims for punitive damages under Title VII will therefore be
dismissed with prejudice.2 See 42 U.S.C. § 1981a(b)(1) (“A complaining party may recover punitive
damages under this section against a respondent (other than a government, government agency or
political subdivision) . . . .”); Robinson v. Runyon, 149 F.3d 507, 517 (6th Cir. 1998) (“It is therefore
clear that the Postal Service is a government agency for purposes of Title VII and accordingly we
In response, Moody asserts that punitive damages are allowed under the Arkansas Civil
Rights Act (ACRA), which should be read in conjunction with Moody’s other claims. See Document
#16, at 8. Moody did not, however, bring any claims under ACRA or even mention it in his
complaint, even though he mentioned it in his EEOC charge.
follow the Seventh Circuit in finding that as such the Postal Service is exempt from punitive
In 2002, the Supreme Court held that, in the employment discrimination context, a plaintiff’s
complaint does not necessarily need to “contain specific facts establishing a prima facie case of
discrimination under the framework set forth by this Court in McDonnell Douglas Corp. v Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508, 122 S. Ct. 992, 995, 152 L. Ed. 2d 1 (2002). Rather, the complaint “must contain only ‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’” Id. (citing Fed.
R. Civ. P. 8(a)(2)). The Supreme Court so held in large part because the notion of a “prima facie
case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.” Id. at
510, 122 S. Ct. at 997. Some of the circuits have held that Swierkiewicz is still good law. See, e.g.,
Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (“The Supreme Court’s subsequent
decisions in Twombly and Iqbal did not alter its holding in Swierkiewicz.”); Swanson v. Citibank,
N.A., 614 F.3d 400, 404-05 (7th Cir. 2010).3 Even so, the McDonnell Douglas framework may still
assist the Court in determining whether a complaint contains, in light of Twombly and Iqbal, a basic
statement of the claim showing that the plaintiff deserves relief. See Fed. R Civ. P. 8(a)(2); Khalik
Whether Twombly and Iqbal overturned or significantly altered Swierkiewicz appears to be
a somewhat open question in the Eighth Circuit and at least two other circuits. See Hedges v. Town
of Madison, 456 F. App’x 22, 23 (2d Cir. 2012) (“We need not resolve these conflicts here, however,
for Hedges’s claims fail any conceivable standard of pleading.”); In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300, 319 n.17 (3d Cir. 2010) (“Although Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
Cir. 2009), stated that Twombly and Iqbal had ‘repudiated’ the Supreme Court’s earlier decision in
Swierkiewicz . . . we are not so sure. . . . In any event, Fowler’s reference to Swierkiewicz appears
to be dicta, as Fowler found the complaint before it to be adequate.”).
v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (“While the 12(b)(6) standard does not
require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause
of action help to determine whether Plaintiff has set forth a plausible claim. . . . Thus, we start by
discussing the elements a plaintiff must prove to establish a claim for discrimination and retaliation
under Title VII . . . .”). This approach is especially appropriate here, where both parties have briefed
the Court within the McDonnell Douglas framework, seemingly assuming it would control the
outcome. See Document #41, at 5 (Defendants: “[Moody’s] claims under Title VII . . . must be
analyzed under the three-stage burden-shifting test as set forth in McDonnell Douglas.”); Document
#17, at 10 (Plaintiff: “[Moody] suffered a material adverse employment action, discharge, and there
is a causal connection between the protected activity and the adverse action.”).
Under McDonnell Douglas, a prima facie retaliation case contains three elements. Gibson
v. American Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012). At the summary judgment stage,
a plaintiff must provide evidence that “he engaged in protected activity; he suffered a materially
adverse action that would deter a reasonable employee from making a charge of employment
discrimination; and there is a causal connection between the protected activity and the adverse
action.” Id. (citation omitted).
The defendants primarily argue that Moody has failed to allege sufficiently that he engaged
in protected activity. To engage in protected activity, an employee must either oppose an “unlawful
employment practice” as defined by Title VII or oppose what the employee objectively, reasonably,
and in good faith believes to be an unlawful employment practice, even if this belief is incorrect. See
Pye v. Nu Aire, Inc., 641 F.3d 1011, 1020 (8th Cir. 2011); Bonn v. City of Omaha, 623 F.3d 587,
591 (8th Cir. 2010); Evans v. Kan. City, Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995). As defined
by Title VII, an “‘unlawful employment practice’ is discrimination on account of ‘race, color, religion,
sex, or national origin.’” Smith v. Int’l Paper Co., 523 F.3d 845, 849 (8th Cir. 2008) (quoting 42
U.S.C. § 2000e-2(a)).
Here, Moody contends that he engaged in protected activity by reporting to his superiors that
a female AHTD employee held a knife to a male employee’s neck. Moody’s factual allegations on
this point are as follows:
Three to four years ago, Plaintiff reported observing a female employee,
Wanda Aldrich, holding a knife to Ernest Russell’s neck; Ernest Russell (“Russell”),
another AHTD employee is black; both Aldrich and Russell denied the incident.
On October 26, 2010, Wanda Aldrich stated to Plaintiff, “Someone is going
to pay for telling on me for pulling a knife on Ernest’s throat.”
Document #1, at 3. Reporting an incident of racial or sexual harassment is protected activity under
Title VII. See Green v. Franklin Nat’l Bank of Minn., 459 F.3d 903, 914 (8th Cir. 2006). Moody’s
allegations are so sparse, however, that it cannot be determined whether the incident that he reported
was an instance of racial or sexual harassment. He does not allege Aldrich’s race; and, although he
alleges that she is a female, he alleges nothing to show that the incident involved harassment based
on Russell’s status as a male. Nor does he allege facts to show that he reasonably believed that the
incident was racial or sexual harassment.
Furthermore, Moody has failed to allege any facts that would plausibly indicate that Vozel
and Flowers terminated him for making the report. Moody’s allegation that he was discharged “in
retaliation for his testimony in a racial incident” is conclusory and thus need not be accepted as true.
See Document #1, at 5; Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949-50. Aside from this conclusory
statement, the factual allegations in the complaint simply do not support Moody’s claim that Vozel
and Flowers terminated his employment in retaliation for reporting this fracas. Rather, they support
the conclusion that Aldrich, Rogers, and Bohannon conspired to make false accusations of sexual
harassment against Moody in order to induce his discharge, and that Vozel, Flowers, and others
discharged him on the basis of these allegations. See, e.g., Document #1, at 5 (“Rogers and
Bohannon’s slanderous and libelous allegations of sexual misconduct described herein constitutes a
conspiracy with Aldrich which culminated with the removal of Plaintiff from his employment with
Defendant AHTD.”).4 If, as the complaint seems to allege, Vozel and Flowers honestly believed the
charges made against Moody by his co-workers, Moody’s claim of retaliation fails, even if the charges
In McCullough v. University of Arkansas for Medical Sciences, 559 F.3d 855 (8th Cir. 2009),
the Eighth Circuit affirmed summary judgment on facts similar to those alleged here. The plaintiff
there was a male employee who had been discharged after female employees accused him of sexual
The plaintiff denied the allegations and contended they were pretexts for sex
discrimination. The Eighth Circuit explained:
The critical inquiry in discrimination cases like this one is not whether the employee
actually engaged in the conduct for which he was terminated, but whether the
employer in good faith believed that the employee was guilty of the conduct justifying
Moody does not exactly back away from this conclusion in his briefs. See, e.g., Document
#17, at 7 (“Frank Vozel and Dan Flowers are co-conspirators by implication of their position and acts
of discharging Plaintiff on the word of Aldrich, Rogers, and Bohannon.” (emphasis added)); id. at
9 (“Vozel and Flowers relied on statements from employees with a short questionable history with
In paragraph 46 of his complaint, describing the basis for his due process claim, Moody
alleges, “[t]his occurred in several particulars but is not limited thereto, viz, a sham investigation with
a foregone conclusion, discharge, pretextually, based on the conspiratorial accusations of Defendants
Aldrich, Rogers and Bohannon.” Document #1, at 6-7. Aldrich, Rogers, and Bohannon are not
defendants. Assuming that Moody intends to allege that the claims of sexual harassment were merely
pretextual in Vozel’s and Flowers’ minds, the allegation is purely conclusory. He has alleged no facts
to make such an allegation plausible.
discharge. A plaintiff seeking to survive an employer’s motion for summary judgment
must therefore show a genuine issue for trial about whether the employer acted based
on an intent to discriminate rather than on a good-faith belief that the employee
committed misconduct justifying termination.
Id. at 861-62 (citations omitted). In McCullough, the court held that the plaintiff had not presented
sufficient evidence to create an issue for trial on the question of whether the persons who made the
decision to discharge him genuinely believed that he had engaged in the conduct of which he had been
accused. Id. at 862; see also Walker v. Ark. Dept. of Community Correction, 436 F. App’x 729 (8th
Cir. 2011) (“Proffered legitimate, non-discriminatory reason for termination need not be correct if
employer honestly believed asserted grounds at time of termination.” (citing Twymon v. Wells Fargo
& Co., 462 F.3d 925, 935 (8th Cir. 2006)). Here, Moody alleges no facts that, if proven, would tend
to show that the decisionmakers acted on an intent to discriminate against him rather than on a goodfaith belief that he committed the misconduct of which he was accused.6
There is yet another reason that Moody’s complaint fails to allege facts that, if true, would
plausibly suggest that he was terminated for reporting the knife incident. Moody alleges that he
reported the knife incident “[t]hree to four years ago,” which would place it at some point in 2008
or 2009. Document #1, at 3; see also id. at 1 (complaint filed on May 25, 2012).7 Moody was not
terminated until early in November of 2010, one or two years after the incident, id. at 4, which is far
beyond what the Eighth Circuit has said would satisfy a finding of a prima facie causal connection
Moody alleges that the conduct of the female employees who made the false accusations is
imputed to AHTD, but, as McCullough shows, the case law is clear that the relevant inquiry relates
to the intent of the decisionmakers, not the co-workers who made allegations of misconduct against
He made the same statement in his EEOC charge, which was filed on May 23, 2011. Three
or four years prior to the date of his EEOC charge would push the incident into 2007 or 2008.
based on timing alone. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011)
(“The inference [of causal connection] vanishes altogether when the time gap between the protected
activity and the adverse employment action is measured in months.”); Smith v. Allen Health Sys., Inc.,
302 F.3d 827, 833 (8th Cir. 2002) (noting that two months between a protected activity and adverse
employment action could not justify a finding of causation). Moody does assert in his briefs that there
was a close temporal connection between Aldrich’s remark that someone “is going to pay for telling
on me” and the subsequent sexual misconduct allegations. That assertion, however, would tend to
show that Moody was terminated because of the reports of sexual misconduct, which occurred
shortly before the termination, rather than because he reported the knife incident, which occurred
more than a year earlier. Accepting Moody’s factual allegations and even this assertion from his brief
as true, they do not plausibly suggest that he was discharged because of his report of the knife
“Affirmative efforts to punish a complaining employee are at the heart of any retaliation
claim.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 721 (2nd Cir. 2010). While
Moody is not required to plead facts that would definitively establish each element of a prima facie
retaliation case under the McDonnell Douglas framework, he is required to allege facts sufficient to
show the ground of his entitlement to relief, which in context means that he is required to allege facts
that would render it plausible that he was discharged in retaliation for engaging in activity that is
protected under Title VII. He has failed to do so. Therefore, his Title VII retaliation claims will be
dismissed without prejudice.
IV. 42 U.S.C. § 1983 CLAIMS
Pursuant to 42 U.S.C. § 1983, Moody brings due process, equal protection, and civil
conspiracy claims. The defendants have moved to dismiss all of these claims. The Court will address
these arguments in turn.
It is undisputed that all of Moody’s section 1983 claims against AHTD must be dismissed
because AHTD is a state agency, not a person, and only persons can be sued under section 1983.8
See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40 (1988) (“[U]nder
§ 1983, a plaintiff . . . must show that the alleged deprivation was committed by a person . . . .”).
Similarly, Moody’s section 1983 claims against Vozel and Flowers in their official capacities must
be dismissed to the extent that they request anything other than injunctive relief. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 70-71 & n.10, 109 S. Ct. 2304, 2312 & n.10, 105 L. Ed. 2d 45
(1989) (state officials acting in their official capacities are not persons under section 1983 unless they
are sued for injunctive relief). These claims will be dismissed with prejudice.
Vozel and Flowers argue that they are entitled to qualified immunity on the section 1983
claims brought against them in their individual capacities. At the Rule 12(b)(6) stage, qualified
immunity is determined from the face of the complaint. See Schatz Family ex rel. Schatz v. Gierer,
346 F.3d 1157, 1159 (8th Cir. 2003) (citing Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)).
Thus, Vozel and Flowers are entitled to qualified immunity unless (1) the complaint alleges facts that,
if true, would establish “a violation of a constitutional or statutory right, and (2) the right was clearly
Thus, Moody’s allegation that AHTD is responsible to him for the conduct of Aldrich,
Rogers, and Bohannon fails even apart from the fact that liability under section 1983 cannot be based
on the doctrine of respondeat superior. See Royster v. Nichols, 698 F.3d 681, 692 (8th Cir. 2012)
(respondeat superior is inapplicable to claims under section 1983).
established at the time of the violation, such that a reasonable officer would have known that his
actions were unlawful.” Bernini v. City of St. Paul, 665 F.3d 997, 1002 (8th Cir. 2012) (citing
Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815-16, 172 L. Ed. 2d 565 (2009)). Here,
Moody alleges that his rights to due process and equal protection were violated. The initial question
is whether the facts alleged in the complaint, if accepted as true, establish a violation of these rights.
The Equal Protection Clause is “implicated when the government makes class-based decisions
in the employment context, treating distinct groups of individuals differently.” Engquist v. Or. Dep’t
of Agric., 553 U.S. 591, 605, 128 S. Ct. 2146, 2155, 170 L. Ed. 2d 975 (2008) (citations omitted).
Moody makes no allegation that he was the victim of a class-based decision. Nor does he allege that
he was treated differently from some similarly situated person of a different race, sex, or religion. He
alleges nothing to indicate that he has a plausible equal protection claim. Flowers and Vozel are
therefore entitled to qualified immunity on this claim. See McDonald v. City of St. Paul, 679 F.3d
698, 705-06 (8th Cir. 2012).
To prevail on a procedural due process claim, Moody must have had a protected property
interest in his employment. See Cleve. Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct.
1487, 1491, 84 L. Ed. 2d 494 (1985). The Court must look to state law to determine whether
Moody had such an interest. Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 601 (8th Cir.
2003). In Arkansas, “when an employee’s contract of employment is for an indefinite term, either
party may terminate the relationship without cause or at will.” Tripcony v. Ark. Sch. for Deaf, --S.W.3d ----, 2012 Ark. 188, at *9 (2012) (citations omitted); see also Ga.-Pac. Consumer Prods.
LP v. Myers Supply, Inc., 621 F.3d 771, 779 (8th Cir. 2010) (“The agreement . . . was for an
indefinite term and thus was an at-will contract.” (citing Griffin v. Erickson, 277 Ark. 433, 642
S.W.2d 308, 310 (1982)). If a person is employed at-will, he does not have a protected property
interest in his employment. See Eddings, 323 F.3d at 601. It is only when the employment is for a
definite period or where “an employee handbook contains an express provision against termination
except for cause” that an employee will not be considered at-will and will be considered to have a
protected property interest. Id. (internal marks omitted).
Moody’s complaint alleges no facts to show that he was not an at-will employee, and in his
briefs, Moody essentially admits that he was an at-will employee. See Document #24, at 6-8. He
contends, nonetheless, that under the Eighth Circuit’s decision in Turner v. Arkansas Insurance
Department an at-will employee can sue when it is clear that “a reasonable public official would have
known that the conduct complained of was unlawful.” 297 F.3d 751, 755 (8th Cir. 2002). Turner
is not on point, however, as the Eighth Circuit there was addressing a section 1981 claim, not a
section 1983 claim, and it was addressing the second qualified immunity element, not the first. See
id. (affirming that “it was ‘clearly established’ on September 23, 1999, that 42 U.S.C. § 1981
conferred upon an at-will employee the right to be free from discharge based on racial discrimination
or in retaliation for exercising his rights.”); see also Skinner v. Maritz, Inc., 253 F.3d 337 (8th Cir.
2001) (similar holding in regard to Missouri law). Because Moody has not alleged facts that would
establish that he had a protected property interest in his employment, he has failed to state a claim for
violation of his rights to procedural due process.
To prevail on a substantive due process claim, Moody must show that a government official
violated one or more of his fundamental constitutional rights, and that this was done in a manner that
“was shocking to the ‘contemporary conscience.’” White v. Smith, 696 F.3d 740, 754 (8th Cir. 2012)
(citation omitted). Moody has not alleged facts sufficient to meet either of these hurdles. As already
explained, Moody has not alleged facts that, if proven, would show that the defendants violated any
of his constitutional rights. And nothing in the complaint describes conduct by the defendants that
was so egregious, outrageous, brutal, or inhumane as to shock the conscience and trigger substantive
due process concerns. See id. at 757-58. Moody’s substantive and procedural due process claims
will be dismissed without prejudice.
For the above reasons, Vozel and Flowers, in their individual capacities, are entitled to
qualified immunity on the section 1983 claims, so these claims will be dismissed without prejudice.
This holding moots the issue of whether punitive damages are available under section 1983.
Likewise, the conclusions reached above dispose of Moody’s section 1983 claims against Flowers
and Vozel in their official capacities for injunctive relief, so those claims also will be dismissed
As noted above, Moody alleges that five false accusations of sexual harassment were made
against him between April of 2010 and October of 2010, in a conspiracy by certain female AHTD
employees to have him fired. Document #1, at 4-7. In the absence of a constitutional violation,
however, there can be no actionable civil conspiracy claim under section 1983. See Dossett v. First
State Bank, 399 F.3d 940, 950 (8th Cir. 2005); Cook v. Tadros, 312 F.3d 386, 388-89 (8th Cir. 2002)
(collecting cases). Here, the Court has already dismissed Moody’s equal protection and due process
claims, so Moody’s civil conspiracy claims cannot survive.
Even if Moody had stated a claim for a constitutional violation, his conspiracy claims would
still fail. “A civil conspiracy is an agreement between two or more people to commit a wrong against
another person.” Doe v. Baxter Healthcare Corp., 380 F.3d 399, 410 (8th Cir. 2004). To state a
conspiracy claim under section 1983, Moody would have to allege, among other things, the existence
of a mutual understanding or a meeting of the minds involving the defendants. See Dossett, 399 F.3d
at 951 (“Under § 1983, a plaintiff must establish . . . that the private actor willfully participated with
state officials and reached a mutual understanding concerning the unlawful objective of a
conspiracy.”); White v. Walsh, 649 F.2d 560, 561-62 (8th Cir. 1981) (similar).
Moody’s complaint never states that the AHTD personnel who made the decision to fire him
were part of a mutual understanding or had a meeting of the minds with the employees who conspired
to make false accusations in order to precipitate his discharge. Rather, as explained earlier, Moody
alleges that Aldrich, Rogers, and Bohannon conspired to make false accusations against him, and that
Vozel, Flowers, and others fired him based on these accusations. See, e.g., Document #1, at 5
(“Rogers and Bohannon’s slanderous and libelous allegations of sexual misconduct described herein
constitutes a conspiracy with Aldrich which culminated with the removal of Plaintiff from his
employment with Defendant AHTD.”). Nowhere does Moody allege that Vozel and Flowers were
members of the conspiracy; to the contrary, he seems to claim that they were duped by the
conspiracy.9 Moody has failed to state a conspiracy claim against Vozel and Flowers, so that claim
will be dismissed without prejudice. See Ladd v. St. Louis Bd. of Police Comm’rs, No. 4:05-CV-916,
2006 WL 2862165, at *6 (E.D. Mo. Oct. 4, 2006) (“[U]nlike the very specific facts alleged in [White
In one brief, Moody asserts that Vozel and Flowers were part of the conspiracy based on
the assumption that Vozel and Flowers can be considered “co-conspirators by implication of their
position and acts of discharging Plaintiff on the word of Aldrich, Rogers, and Bohannon.” Document
#17, at 7. In a section 1983 case, however, an official is only liable for his own misconduct and is
not liable for the misconduct of his agents on a respondeat superior theory. Whitson v. Stone Cnty.
Jail, 602 F.3d 920, 928 (8th Cir. 2010). Notably, in another brief, Moody indicates that Vozel and
Flowers were not part of the conspiracy. See, e.g., Document #24, at 4-5, 9 (naming only Aldrich,
Rogers, and Bohannon, John Jones, Elvis Garrett, and Bruce Street as conspirators).
v. Walsh], the facts alleged here simply do not suggest a mutual understanding of the alleged
conspiracy or a meeting of the minds. The conspiracy purportedly involves Pickering and the BPC,
but the Amended Complaint is utterly devoid of any facts suggesting that Pickering and the BPC
reached an agreement to ‘cover up’ the alleged deprivation of Ladd’s constitutional rights. In fact,
the Amended Complaint makes little mention of the BPC at all . . . .”); Rucker v. Gloe, 432 F. App’x
631, 633 (7th Cir. 2011) (similar); Stewart v. Victoria’s Secret Stores, LLC, 851 F. Supp. 2d 442,
445 (E.D.N.Y. 2012) (similar).
VI. SUMMARY JUDGMENT
In responding to the defendants’ motion to dismiss, Moody has submitted materials that, if
taken into account, would require the Court to convert the motion to a motion for summary
judgment. See Brooks v. Midwest Heart Grp., 655 F.3d 796 (8th Cir. 2011). No discovery has
apparently been conducted, nor have any depositions been taken, so the Court will not convert the
present motion to a motion for summary judgment. See Casazza v. Kiser, 313 F.3d 414, 417 (8th
Cir. 2002) (“Rule 12(b)(6) motions are not automatically converted into motions for summary
judgment simply because one party submits additional matters in support of or [in] opposition to the
motion.”) (citation omitted).
For the foregoing reasons, the defendants’ motions to dismiss are GRANTED. Document
#5; Document #9. Moody’s partial motion for summary judgment is DENIED. Document #35. The
Court dismisses the following claims with prejudice:
• all Title VII claims against Vozel and Flowers in their individual capacities;
• all punitive damages claims under Title VII;
• all section 1983 claims against AHTD; and
• all section 1983 claims against Vozel and Flowers in their official capacities for
anything other than injunctive relief.
The Court dismisses the following claims without prejudice:
• all Title VII claims against Vozel and Flowers in their official capacities;
• all Title VII retaliation claims;
• all section 1983 due process and equal protection claims against Vozel and Flowers,
both in their individual and official capacities; and
• all section 1983 conspiracy claims against Vozel and Flowers.
The defendants have not moved to dismiss Moody’s race and sex discrimination claims against AHTD
under Title VII, so those claims survive.
IT IS SO ORDERED this 4th day of April, 2013.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?