Beard v. Arkansas Department of Correction

Filing 36

ORDER granting defendant's 22 MOTION for Summary Judgment and dismissing the case with prejudice. All other motions in this case are denied as moot. Signed by Judge Kristine G. Baker on 10/22/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ANTHONY BEARD

PLAINTIFF

v.

No. 4:12-cv-00483 KGB

ARKANSAS DEPARTMENT OF
CORRECTION

DEFENDANT

OPINION AND ORDER
Plaintiff Anthony Beard brings this action under 42 U.S.C. § 2000e, Title VII of the Civil
Rights Act of 1964, as amended (“Title VII”) and Ark. Code Ann. § 16-123-101, the Arkansas
Civil Rights Act (“the ACRA”). Mr. Beard alleges race discrimination. Defendant Arkansas
Department of Correction (“ADC”) filed its motion for summary judgment on Mr. Beard’s race
discrimination and retaliation claims (Dkt. No. 22). Mr. Beard filed his response in opposition to
the ADC’s motion for summary judgment (Dkt. No. 27). The ADC replied to Mr. Beard’s
response (Dkt. No. 30). For the reasons that follow, the ADC’s motion for summary judgment is
granted.
I.

Factual Background

Mr. Beard was hired by the ADC as a correctional officer in 2004. In 2011, at Mr.
Beard’s request, the ADC transferred him to Work Release as a Community Employed
Transportation Officer.
The ADC publishes “Post Orders”, which Mr. Beard signed, laying out ADC policies for
transit officers (Dkt. No. 24, ¶ 3). The ADC maintains that Post Orders prohibit, among other
things, a Transportation Officer leaving a vehicle unattended with inmates inside the vehicle and
that Mr. Beard received additional instruction and training from the ADC that prohibited, among

other things, personal use of ADC vehicles as well as leaving inmates unattended (Dkt. No. 24,
¶¶ 4, 5). Mr. Beard disputes this.
Mr. Beard acknowledges that Number IV of a Post Order in effect January 19, 2012,
titled “Vehicle Trouble” provides rules in the event of ADC vehicle malfunction, including the
requirement that officers never leave the vehicle unattended with inmates inside (Dkt. No. 28, ¶¶
1, 3).
Mr. Beard also describes an ADC staff briefing meeting conducted pursuant to the
posting of Briefing Notes for the Benton Unit dated July 28, 2010. At that staff meeting
regarding the briefing note on personal shopping, Mr. Beard contends he asked Major Robert
Plant what the briefing note meant by “no stopping to do personal shopping” and specifically
asked whether that meant no stopping to get something to eat (Dkt. No. 28, ¶ 30). Mr. Beard
contends that, at that time, Major Plant advised officers that they could stop to get something to
eat but could not stop to do personal shopping, giving examples of prohibited conduct (Id.).
Mr. Beard further claims that, before and after the staff meeting, he saw other transport
officers purchase gas for an ADC vehicle with the ADC credit card at a gas station near the ADC
Benton Unit and then leave the ADC vehicle to enter the gas station that also housed a
McDonald’s to purchase food. Mr. Beard claims he saw inmates on the ADC buses or vans
while transport officers purchased food at the McDonald’s (Dkt. No. 28, ¶¶ 32–34).
On January 19, 2012, Mr. Beard was scheduled to pick up work release inmates at
Oakley Trucking Company (“Oakley”). Mr. Beard arrived at Oakley with 27 other inmates in
the ADC bus he was driving whom he had picked up from other work release sites. When Mr.
Beard arrived at Oakley, according to Mr. Beard, the work release inmates at Oakley were not
ready to be picked up. Mr. Beard then drove the van, with the inmates inside, to a Church’s

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Chicken on Broadway, a main thoroughfare in North Little Rock, Arkansas, approximately onehalf mile from Oakley, to get something to eat. Mr. Beard parked the ADC bus containing the
27 inmates in a parking lot adjacent to Church’s Chicken and went inside the Church’s Chicken
to order his food. Mr. Beard alleges he was away from the bus, which was in sight the whole
time, for a few minutes (Dkt. No. 28, ¶ 8). He contends there were no other customers ahead of
him, and he was able to secure his order within a few minutes (Id.). He also contends that he
parked the bus containing the inmates in a position where he was able to observe the inmates on
the bus and the front door of the bus (Id.). The exit door in the back of the bus is bolted and
locked and cannot be opened, according to Mr. Beard (Id.).
At the time Mr. Beard left the bus, the bus he was driving was not having any kind of
vehicle trouble as per the Security Post Order (Dkt. No. 28, ¶ 9). Mr. Beard claims that, based
on the information he received from Major Plant at the staff meeting, he had a good faith belief
that it was appropriate and did not violate any ADC policy or rules for him to stop to get
something to eat during the course of his day transporting inmates (Dkt. No. 28, ¶ 31).
While inside the Church’s Chicken, Mr. Beard received a phone call from Mr. Wayne
Hicks informing him the work release inmates were ready for pickup. Mr. Hicks is a former
work release inmate who was at the time of these events an employee of Oakley (Dkt. No. 28, ¶
10). Mr. Beard alleges he received another phone call from Mr. Hicks while Mr. Beard was on
his way back to Oakley to pick up the work release inmates telling him “he needed to get out of
Church’s Chicken and come and pick up the inmates” (Dkt. No. 28, ¶11).
Upon arriving at Oakley, Mr. Beard went inside the facility to speak with someone about
Mr. Hicks’s calls. Mr. Beard requested the supervisor, and Jeff Kumpe identified himself. Mr.
Beard and Mr. Kumpe exchanged words. Mr. Beard contends that he told Mr. Kumpe that he

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was trying to see if there was a problem and to report that Mr. Hicks had called him on at least
two occasions prior to his arriving for the pickup of the inmates (Dkt. No. 28, ¶ 12). The ADC
characterizes this exchange as a confrontation (Dkt. No. 24, ¶¶ 16–21, 23). It is unclear from the
record the content or nature of the exchange, whether Mr. Beard threatened or intimidated Mr.
Kumpe, and whether Mr. Kumpe asked Mr. Beard to leave the premises, as the ADC contends.
Mr. Beard denies the ADC’s contentions and maintains he did not raise his voice, did not
threaten Mr. Kumpe, maintained a clam demeanor and respect for Mr. Kumpe throughout the
exchange, and was not in any way the aggressor (Dkt. No. 28, ¶¶ 18, 19).
That day Mr. Beard also completed an 005 Incident Report form. He contends he spoke
with Royce Tittle, the person responsible for scheduling the pickup and delivery of work release
inmates. He claims Mr. Tittle advised him to complete an 005 Incident Report form and said
that, because of the ongoing issues around the altering of the pickup schedule for work release
inmates, Mr. Tittle would contact Oakley (Dkt. No. 28, ¶¶ 24, 25). The ADC contends that, on
that form, Mr. Beard “admitted to having left the Oakley jobsite, driven to Church’s Chicken,
left an ADC bus with 27 inmates on it unattended while he entered the restaurant to purchase a
meal for himself” (Dkt. No. 31, at 6).
Mr. Beard admits that, on January 31, 2012, Mr. Toby Bishop, a shop supervisor at
Oakley, signed a statement in which he acknowledged that he requested that Mr. Beard “not be
allowed to return to Oakley property after his incident with one of our employees (Jeff Kumpe)”
(Dkt. No. 28, ¶ 28). Mr. Beard also admits that Mr. Kumpe completed a statement in which he
admits he requested on January 20, 2012, “not to have Mr. Beard back on Oakley property” (Id.).
Mr. Beard contends that there was no mention of the ADC contract with Oakley (Id.). The ADC
alleges that, based on the incident, Mr. Bishop informed the ADC that Oakley would cancel its

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contract with the ADC due to workplace safety concerns if Mr. Beard were allowed to continue
transporting inmates to Oakley (Dkt. No. 24, ¶ 23). In support of this contention, the ADC cites
the findings of fact from the State Employee Grievance Appeal taken by Mr. Beard, which, in
turn, rely upon Mr. Bishop’s testimony at the Internal Review Hearing and his statement (Dkt.
No. 24-1, at 4 n.23).
On January 20, 2012, Mr. Richard Vinyard, Work Release Supervisor, sent Mr. Beard
home and began an investigation into the events that occurred with Mr. Beard and at Oakley. At
the conclusion of Mr. Beard’s employee review hearing subsequent to the investigation, Mr.
Beard was terminated for violating several of the ADC’s employee conduct standards (Dkt. No.
24, ¶36). Specifically, Mr. Beard was terminated for violating: (1) AD 10-19, Section 1,
subsection N: conduct unbecoming a public employee, (2) AD 10-19, Section 1, subsection P:
violation of published policies, (3) AD 10-19, Section 6, subsection A: unsatisfactory work
performance, (4) AD 10-19, Section 12, subsection A: discourteous treatment of others, (5) AD
10-19, Section 12, subsection B: insolence to supervisor or persons of higher rank /
presumptuous and insulting manner of speech / rude and disrespectful, (6) AD 10-19, Section 17,
subsection A: failure to perform or carry out work related instructions when such instructions are
reasonable and within the employee's ability to perform and would not pose a safety or welfare
hazard to the employee, and (7) AD 10-19, Section 17, subsection B: deliberate refusal to carry
out reasonable work requests and/or instructions will be construed as insubordination.
On February 15, 2012, Mr. Beard completed a Step 1 Grievance Form, grieving that his
termination was due to his race. A Grievance Hearing was held on March 1, 2012, wherein the
committee voted unanimously to uphold Mr. Beard’s termination. At the hearing, Mr. Beard was
present and testified on his own behalf (Dkt. No. 24, ¶¶ 46, 47). Oakley employees, including

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Mr. Bishop, also testified at the hearing (Dkt. No. 24, ¶ 51). The committee found Mr. Beard
guilty of several of the same—but fewer—employee conduct standards as cited in support of the
initial decision to terminate his employment. At his grievance hearing, Mr. Beard was found
guilty of violating the policies identified in : (1) AD 10-19, Section 1, subsection N: conduct
unbecoming a public employee, (2) AD 10-19, Section 1, subsection P: violation of published
policies, (4) AD 10-19, Section 12, subsection A: discourteous treatment of others, (6) AD 1019, Section 17, subsection A: failure to perform or carry out work related instructions when such
instructions are reasonable and within the employee's ability to perform and would not pose a
safety or welfare hazard to the employee, and (7) AD 10-19, Section 17, subsection B: deliberate
refusal to carry out reasonable work requests and/or instructions will be construed as
insubordination. After the grievance hearing, Mr. Beard was found not guilty of violating the
policy identified in (5) AD 10-19, Section 12, subsection B: insolence to supervisor or persons of
higher rank / presumptuous and insulting manner of speech / rude and disrespectful. The appeal
decision made no mention of the policy identified in (3) AD 10-19, Section 6, subsection A:
unsatisfactory work performance.
The Committee’s recommendations were referred to Director Ray Hobbs for a final
decision on March 7, 2012.

On March 12, 2012, Director Hobbs upheld the decision to

terminate Mr. Beard. On March 19, 2012, Mr. Beard rejected Director Hobbs’s decision and
requested his grievance be referred to the State Employee Grievance Appeal Panel. Before the
appeal, on April 22, 2012, Mr. Beard filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging race discrimination. On May 8, 2012,
the EEOC issued Mr. Beard a Right-to-Sue letter.

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On August 6, 2012, Mr. Beard filed his complaint in this Court. On August 7, 2012, Mr.
Beard’s State Employee Grievance Appeal Panel hearing was held. Mr. Beard argued that the
ADC treated a Caucasian officer, Daniel Golden, more favorably than Mr. Beard in a similar
incident. The Panel found Mr. Beard did not meet his burden of proof to show his termination
resulted from race discrimination rather than some other valid reason and affirmed the ADC’s
termination of Mr. Beard.
Specifically, in regard to the contention that Officer Golden was treated more favorably
than Mr. Beard, the State Employee Grievance Appeal Panel in its decision determined:
While facially similar at first glance, the facts of the 2011 incident differ from the current
matter in four significant ways. First, Officer’s Golden’s infractions did not stem from
his performance of personal errands or shopping while on duty. At all times, Officer
Golden was in the scope of his employment. Second, Officer Golden never abandoned
his vehicle with inmates inside. When Officer Golden arrived at Rineco, one inmate got
on the van. Later, Officer Golden and the inmate got out of the van, and went to the side
door of Rineco where he directed the remaining inmates to get inside of the van. Third,
while it is apparent that both officers argued with their respective Work Release sponsors,
Officer Golden’s argument did not result in him being asked to leave the premises
entirely. Officer Golden was instructed to leave a secure area, and return to his van.
Lastly, Officer Golden did not threaten his Work Release sponsor such that the sponsor
felt it necessary to cancel the Work Release Program if Officer Golden continued
transporting inmates.
(Dkt. No. 24-1, at 7).
During discovery, Mr. Beard identified five ADC employees who he claims violated the
same or similar policies but were not disciplined as adversely as he was. He identified Officer
Golden, Jason Pilkington, Josh Teel, Woodrow Turner, and Justin Corley (Dkt. No. 24, ¶ 89).
The ADC maintains that none of these individuals are proper comparators to Mr. Beard (Dkt.
No. 24, ¶¶ 90–100). In his response to the ADC’s motion for summary judgment, Mr. Beard
also identifies John Broadway, a Caucasian male, as a potential comparator (Dkt. No. 28, ¶ 50).
II.

Standard of Review

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Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact and that the defendant
is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable
jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008).
“The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather,
the dispute must be outcome determinative under the prevailing law.” Hollway v. Pigman, 884
F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not
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).
“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) (citing Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)
(quoting Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)) (citing Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1118 (8th Cir. 2006))). “Because summary judgment is not
disfavored and is designed for ‘every action,’ panel statements to the contrary are unauthorized

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and should not be followed.” Id. Accordingly, this Court applies the same summary judgment
standard to discrimination cases as it does to all others.
III.

Retaliation Claim

The ADC moves for summary judgment on Mr. Beard’s retaliation claim. Mr. Beard
alleged retaliation in his original complaint (Dkt. No. 2) but did not reassert that claim in his
amended complaint (Dkt. No. 7). For this reason, Mr. Beard’s retaliation claim is not before this
Court. The Court thus denies as moot the ADC’s motion for summary judgment on Mr. Beard’s
retaliation claim.
IV.

Arkansas Civil Rights Act Claims

Mr. Beard’s claims against the ADC under the ACRA are barred by the doctrine of
sovereign immunity. The Eleventh Amendment bars any suit against a state in federal court
unless the state has consented to suit or Congress has unambiguously abrogated the states’
Eleventh Amendment immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54–56
(1996). The ADC is a state agency that is “the sole creation of the state,” has “no separate
identity” from the state, and cannot be stripped of its official character. See Glick v. Henderson,
855 F.2d 536, 540 (8th Cir.1988). The ACRA specifically reads “[n]othing in this subchapter
shall be construed to waive the sovereign immunity of the State of Arkansas.” Ark. Code Ann. §
16-123-104. It is clear that the Arkansas legislature did not intend to waive sovereign immunity
by enacting the ACRA, and the ADC did not consent to suit. Mr. Beard concedes this argument
in his response (Dkt. No. 27, ¶ 3). Therefore, all ACRA claims Mr. Beard alleges against the
ADC are barred by sovereign immunity. The ADC’s motion for summary judgment on these
claims is granted.

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V.

Title VII Claims

Mr. Beard can establish a prima facie claim of race discrimination either by providing
direct evidence of discrimination or by creating an inference of unlawful discrimination under
the three-step analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973). Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012). Direct evidence is
evidence “showing a specific link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated” the adverse employment action. Torgerson, 643 F.3d at 1043–44 (quoting
Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). Therefore, “direct” refers to
the causal strength of the proof, not whether it is “circumstantial” evidence. Id. A plaintiff with
strong direct evidence that illegal discrimination motivated the employer’s adverse action does
not need the three-part McDonnell Douglas analysis to get to the jury, irrespective of whether his
strong evidence is circumstantial. Id. However, “if the plaintiff lacks evidence that clearly
points to the presence of an illegal motive, he must avoid summary judgment by creating the
requisite inference of unlawful discrimination through the McDonnell Douglas analysis,
including sufficient evidence of pretext.” Id. (quoting Griffith, 387 F.3d at 736).
A.

Direct Evidence Analysis

“To be entitled to direct evidence analysis, the plaintiff must present evidence of conduct
or statements by persons involved in the decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude sufficient to permit the fact finder to infer that that
attitude was more likely than not a motivating factor in the employer’s decision.” Rivers-Frison
v. Se. Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998) (internal quotation marks

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omitted). Mr. Beard has presented no direct evidence of discrimination. Accordingly, the Court
will proceed through the McDonnell Douglas analysis for Mr. Beard’s claims.
B.

McDonnell Douglas Analysis

Under the McDonnell Douglas analysis, “the plaintiff bears the burden of establishing a
prima facie case of discrimination.” McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir.
2007). 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.”
Id.
To make out a prima facie case of race discrimination, plaintiff must show: (1) he is a
member of a protected class; (2) he was meeting his employer’s legitimate job expectations; (3)
he suffered an adverse employment action; and (4) similarly situated employees outside the
protected class were treated differently. Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d
611, 616 (8th Cir. 2007). The ADC does not dispute that Mr. Beard can satisfy the first three
prongs of the test to make out his prima facie case. The ADC claims that Mr. Beard will be
unable to present sufficient evidence to show that a similarly situated employee outside the
protected class was treated differently. The ADC also contends that, even if Mr. Beard can
establish a prima facie case, he cannot demonstrate pretext. In support of the fourth element of
his prima facie case and in support of his claim of pretext, Mr. Beard alleges that similarly
situated Caucasian officers within the ADC were not disciplined as harshly for engaging in the
same or similar conduct for which he was terminated.

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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.” Pye
v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011) (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).
Even if Mr. Beard can establish a prima facie case of discrimination, the Court
determines he cannot survive summary judgment on the issue of pretext.

The ADC has

articulated legitimate, non-discriminatory reasons for firing Mr. Beard. See Twymon v. Wells
Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006) (shifting the burden to defendant to provide a
legitimate, non-discriminatory reason for plaintiff’s termination where plaintiff makes out a
prima facie case of discrimination).

The ADC cited both Mr. Beard’s leaving inmates

unattended while he went into Church’s Chicken and his exchange with Mr. Kumpe as reasons
for his termination (Dkt. No. 24-7, at 4).

Since the ADC provided a legitimate, non-

discriminatory reason for the termination, the burden returns to Mr. Beard to present evidence
that the reasons offered by the ADC are a pretext for discrimination. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To prove pretext, Mr. Beard must both discredit
the employer’s asserted reason for termination and show the circumstances permit drawing the
reasonable inference that the real reason for terminating him was his race. Johnson v. AT&T
Corp., 422 F.3d 756, 763 (8th Cir. 2005).

The proffered non-discriminatory reasons for

termination need not be factually correct so long as the employer honestly believed the asserted
grounds at the time of the termination. Id. at 762.

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Mr. Beard attempts to establish a reasonable inference of discrimination by comparing
his situation to potential comparators. “At the pretext stage, ‘the test for determining whether
employees are similarly situated to a plaintiff is a rigorous one.’” Bone, 686 F.3d at 956 (quoting
Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005), abrogated on other grounds by
Torgerson, 643 F.3d 1031). To succeed at the pretext stage, Mr. Beard must show that he and
the potential comparators he identifies were “similarly situated in all relevant respects.” Id.
(quoting Rodgers, 417 F.3d at 853). That is, the employees “used for comparison must have
dealt with the same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances.” Wierman v. Casey’s Gen.
Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474,
479 (8th Cir. 2004)).
The Court has reviewed the record evidence relating to potential comparator Officer
Golden, who is Caucasian. The Court finds, viewing the facts in the light most favorable to Mr.
Beard, that Mr. Beard and Officer Golden were neither “similarly situated in all respects,” nor
were they “involved in or accused of the same or similar conduct.”
Viewing the facts in the light most favorable to Mr. Beard, the record indicates that on
December 11, 2011, Officer Golden violated security at a work release site to pick up work
release inmates and left three or four inmates unattended on the van he drove. Officer Golden
was told to leave the site by a superintendent at the work release site and argued with the
superintendent for a minute or two before leaving the building. When Officer Golden returned to
the vehicle, he accelerated without all inmates properly seated according to Post Orders, causing
Inmate Dismuke to fall out of the van. Inmate Dismuke reported the incident to an Officer
Ramsey and a Sergeant Porterfield. Officer Golden’s sole punishment was a “verbal counseling”

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by Sergeant Porterfield until Mr. Beard reported the incident again on January 19, 2012. The
facts indicate that a formal investigation occurred only after Mr. Beard reported the incident to
Deputy Warden Taylor. After this investigation, Officer Golden was suspended without pay for
six days and placed on probation for a year.
The ADC contends that Mr. Beard’s and Officer Golden’s situations differed in at least
four ways (Dkt. No. 23, at 12–13). The ADC maintains that (1) Officer Golden’s infractions did
not stem from his performance of personal errands or shopping while on duty; (2) Officer
Golden did not abandon his vehicle with inmates inside; (3) while both officers argued with their
respective work release supervisors, Officer Golden’s argument did not result in him being asked
to leave the premises entirely but only his being asked to leave a secure area and return to his
van, which he did; and (4) Officer Golden did not threaten his work release sponsor such that the
sponsor felt it necessary to cancel the Work Release Program if Officer Golden continued to
transport inmates to the sponsor’s facility. The Court acknowledges that there is some evidence
in the record before it indicating a staff meeting was held wherein Mr. Beard asked Major Plant
whether officers could stop to get something to eat and Major Plant allegedly told officers they
could stop to get something to eat but not to do other kinds of shopping or personal errands. The
Court also acknowledges that, based on this, Mr. Beard contends he honestly believed he was not
violating ADC policy by stopping at Church’s Chicken.
Even with that and viewing the facts in the light most favorable to Mr. Beard, this Court
concludes Mr. Beard and Officer Golden are not sufficiently similarly situated to be proper
comparators. There is no indication that the sponsor with whom Officer Golden spoke alleged
that he felt threatened by Officer Golden or that Officer Golden gave the impression that he was
“wanting to fight” which is the impression Mr. Kumpe alleges he had after his exchange with

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Mr. Beard (Dkt. No. 24-5). Further, there is no indication that the sponsor who dealt with
Officer Golden reported to the ADC that Officer Golden was no longer allowed on the sponsor’s
property and that, if he returned to the sponsor’s property, the sponsor might cancel the contract
with the ADC’s Benton Unit Work Release program, which is the report the ADC received about
the sponsor with whom Mr. Beard dealt (Dkt. No. 24-4, at 3, ¶ 9). The Court acknowledges that
Mr. Beard disputes Oakley’s version of these events, but the ADC was entitled to find Oakley’s
version of these events credible. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th
Cir. 1995) (determining that courts may not sit in judgment of employers 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”). The factors above
distinguish Officer Golden from Mr. Beard.
As for the other potential comparators Mr. Beard identified in discovery responses, the
ADC in its statement of undisputed facts identifies several reasons why these individuals are not
proper comparators to Mr. Beard (Dkt. No. 24, ¶¶ 90–100). Mr. Beard does not refute these
reasons in his response to the ADC’s motion for summary judgment. Therefore, the Court
concludes these individuals are not proper comparators.
As to some of the individuals Mr. Beard identified in discovery as potential comparators,
he generally alleges that he as well as other employees, some of whom are Caucasian, have all
purchased food at a McDonald’s connected to a gas station with inmates waiting in the ADC
vehicle. The Court concludes that these general allegations do not suffice to meet Mr. Beard’s
burden at the pretext stage..

Even if true, these allegations do not make the potential

comparators similarly situated to Mr. Beard in all relevant respects. None of these potential
comparators engaged in an exchange with a work release sponsor that purportedly escalated to

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the level Mr. Beard’s exchange with Mr. Kumpe did.

Moreover, none of these incidents

identified by Mr. Beard appear to have been reported to the ADC, and no employee, including
Mr. Beard, was reprimanded for these actions. For these reasons, the Court finds these alleged
unreported incidents are not valid comparators for the McDonnell Douglas analysis.

See

Mianegaz v. Hyatt Corp., 319 F. Supp. 2d 13, 22 (D.D.C. 2004) (“plaintiff undercuts his
argument by suggesting that there is no evidence that the [alleged incidents of proposed
comparators] reached the attention of management”); Young v. Daughters of Jacob Nursing
Home, 2011 WL 2714208, *6 (S.D.N.Y. July 12, 2011), aff’d sub nom. Young v. Daughter of
Jacob Nursing Home, (D.O.J.), 491 F. App’x 263 (2d Cir. 2012) (stating that, were the Court to
consider plaintiff’s proposed comparators, plaintiff’s proffer would fail in part because at least
some of the events on which plaintiff relied were not reported to defendant).
In his response to the ADC’s motion for summary judgment, Mr. Beard identifies Mr.
Broadway as a potential comparator. He also attempts to rely on allegations made by James
Langley, who claims that on one occasion during the Fall 2012, almost one year after Mr.
Beard’s termination, Mr. Langley and Mr. Vinyard stopped at a restaurant in Benton for food
(Dkt. No. 28-14). There is no indication that Mr. Broadway, Mr. Langley, or Mr. Vinyard had
an exchange with a work release sponsor like Mr. Beard’s exchange with Mr. Kumpe. Further,
when examining Mr. Beard’s affidavit and statement of material facts in dispute, it is clear that
Mr. Beard does not contend Mr. Broadway left inmates in a van or on a bus while shopping in
the Fred’s Store. Instead, he specifically states: “In May 2011, Plaintiff witnessed a colleague,
Mr. John Broadway (a white male), in the early afternoon in the month of May 2011, alight from
an ADC van. Mr. Broadway, also on occasion, transported work release inmates.” (Dkt. No. 28,
¶ 50). Mr. Beard does not state these two alleged events occurred on the same day at the same

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time—leaving the ADC van and transporting work release inmates. These same allegations are
missing from Mr. Langley’s affidavit; he does not state that inmates were left unattended in an
ADC vehicle during the alleged incident. For all of these reasons, the Court concludes there is
insufficient evidence in the record to identify Mr. Broadway as a proper comparator or to rely on
Mr. Langley’s affidavit at the pretext stage.
Thus, even if Mr. Beard could meet his burden of making out a prima facie case of race
discrimination, he cannot meet his burden at the pretext stage, and the ADC is entitled to
summary judgment on his Title VII race discrimination claims.
* * *
For these reasons, the Arkansas Department of Correction’s motion for summary
judgment as to Mr. Beard’s Arkansas Civil Rights Act and Title VII claims is granted. Mr.
Beard’s race discrimination claims are hereby dismissed with prejudice. All other motions in
this case are hereby denied as moot.
SO ORDERED this 22nd day of October, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE 

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