Baggett v. Barnett et al

Filing 41

OPINION AND ORDER granting 21 defendants' motion for summary judgment. Signed by Judge J. Leon Holmes on 1/7/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PAM BAGGETT
v.

PLAINTIFF
No. 4:12CV00526 JLH

BRIAN BARNETT, individually and in his
official capacity; UNIVERSITY OF ARKANSAS
FOR MEDICAL SCIENCES by and through the
BOARD OF TRUSTEES OF THE UNIVERSITY
OF ARKANSAS; and JOHN ED ANTHONY,
CARL JOHNSON, JANE ROGERS, SAM HILBURN,
MIKE AKIN, JIM VON GREMP, JOHN TYSON,
BEN HYNEMAN, DAVID PRYOR, and
MARK WALDRIP, in their official capacities as
members of the Board of Trustees of the University
of Arkansas

DEFENDANTS

OPINION AND ORDER
Pam Baggett brings this action against Brian Barnett, individually and in his official capacity
as the administrator of the Department of Internal Medicine at the University of Arkansas for Medical
Sciences, and against the University of Arkansas for Medical Sciences by and through individual
members of the Board of Trustees of the University of Arkansas in their official capacities. The
defendants have filed a motion for summary judgment. For the reasons stated below, the motion is
granted.
I.
The Department of Internal Medicine encompasses nine academic divisions and one
administrative division. Baggett became employed as a bookkeeper for the administrative division
in November 1981. Over the years Baggett took on greater responsibilities. By 2003, Baggett held
the position of associate administrator for accounting, one of three department-level associate
administrator positions. Baggett reported directly to the administrator of the Department of Internal

Medicine, and in turn, had two employees who reported to her—Judy Whaley, a grants administrator,
and Joyce Hummel, a clinical trials accountant. The Department of Internal Medicine operated at a
deficit every year that Baggett was employed there. The continual charge from Debra Fiser, Dean
of the College of Medicine, to Dr. James Marsh, the chairman of the Department of Internal
Medicine, was to decrease the deficit by allowing certain positions that come open to go unfilled, to
cut unnecessary faculty travel, to improve billing processes, and to increase income. Document #21-1
at dep. p. 53; Document #38 at 8.
In July 2003, Brent McKay was the administrator of the Department of Internal Medicine. At
that time, Baggett asked McKay to place her on an 80%-time work schedule to allow her to deal with
certain medical issues. Document #21-1 at 34; id. at dep. p. 29. McKay granted Baggett’s request
to go to a part-time work schedule as of August 1, 2003. Document #21-3 at 27. McKay reduced
Baggett’s yearly salary by 20% to $40,394.00. Document #21-1 at 35. However, McKay chose to
keep Baggett listed in the payroll and benefits system as a full-time employee. Baggett asked McKay
to change her full-time listing to an 80%-time listing several times, and McKay always refused.
Document #21-1 at dep. p. 30. McKay told Baggett not to worry about it and that if it ever became
an issue, he would take care of it. McKay also told her that, as far as he was concerned, she was
working from home one day a week. Id. Baggett had home access to every system she used at work,
and she told McKay that she was working at home one day a week and would continue to do so as
long as McKay had her listed in the system at 100% time. Document #21-1 at dep. p. 30.
Baggett’s department-level administrative responsibilities included, in part, notifying divisionlevel administrators of errors in requisitions that they submitted. At McKay’s direction, Baggett’s
communications with division-level administrators was at times ungracious, to-the-point, and

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impossible to misunderstand. Document #37 at 23 ¶ 55 resp. Baggett was known for her abrasive
and demanding personality by those who worked with her. See, e.g., Documents #21-4 at 1 ¶ 2; #215 at 1 ¶ 2; #21-6 at 1 ¶¶ 2, 3; #21-7 at 1 ¶ 2. Most division-level administrators did not care to hear
from Baggett because it meant either that they or their staff would likely have more work to do as
a result of their error or failure to meet a deadline. Document #37 at 23 ¶ 55 resp. McKay instructed
Baggett to remove erroneous requisitions from the accounting office’s waiting queue until divisionlevel administrators corrected their mistakes and resubmitted the requisitions. Id. at 25 ¶ 58 resp.
For a while, McKay instructed Baggett to remove the requisitions from the queue and send them back
to the division-level administrators without explanation, in hope that they would discover their errors
on their own. Id. at 26 ¶ 58 resp. This policy was met with resistance from division-level
administrators, so McKay instructed Baggett to return to removing the requisitions from the queue
and pointing out errors for correction. Id.
McKay became ill, and he died in April 2010. Baggett told Susan Leon, an employee of the
Dean’s office, of her work arrangement under McKay and asked her for advice regarding what needed
to be done. Accruing full-time leave and benefits while working part-time was contrary to UAMS
policy. See Document #21-3 at 11-17. Baggett stated that even though she had been working full
time she would be glad to pay back the value of 20% of the full-time benefits she had enjoyed for the
previous seven years in order to clear her good name. Document #21-1 at dep. p. 32. Brian Barnett
was hired as McKay’s replacement in September 2010. On November 3, 2010, Barnett became aware
that Baggett had been driving into work only four days a week while receiving full time leave and
benefits for the previous seven years. Document #21-3 at 6. Barnett discussed the situation with
Steve Wood, the director of human resources for the College of Medicine, and they came up with two

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options: either Baggett could take a 20% decrease in the payroll system and a 20% reduction in both
salary and benefits to continue her work arrangement under McKay or she could immediately return
to driving into work five days a week. Document # 21-3 at 7. Baggett chose to return to driving into
work five days a week.
Barnett advised Baggett that the department would not be able to increase her salary
immediately and that she would need to come up with a job description for her position to be
reclassified at a higher salary. Document #21-3 at 7. On November 4, 2010, Baggett provided
Barnett with an job description, which Barnett found acceptable. Id. On November 18, 2010, Barnett
met with Baggett again. During that meeting they discussed Baggett’s need to understand and assist
in the analysis and interpretation of financial reports, her need to adopt an improved demeanor and a
customer-service attitude, and her need to get along well with Suzanne Holland, the department-level
associate administrator of human resources. Id. Barnett told Baggett that he envisioned her serving
as the chief financial officer for the department and taking on certain duties that had traditionally been
the responsibility of the department administrator. Document #21-1 at dep. p. 38. Baggett stated that
she would be glad to learn any new skills that were necessary to fulfill the responsibilities of the
position.
Barnett later received news that only four days after this conversation, Baggett had offended
a programmer who was working to get her access to the new reports. Document # 23-1 at 7. Around
this time, Barnett expressed concern about Baggett’s ability to perform her assigned duties to Audrey
Bradley, the Campus Employee Relations Manager. Document #21-3 at 1. Someone showed Baggett
how to complete the reports that Barnett requested and where to obtain the necessary information.
Id. at 7. Baggett took initiative in working on the reports, which she completed for Barnett’s review.

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Id. The reports were well done, and Barnett and Baggett discussed when the reports should be
completed in the ordinary course of business. Id.
On December 2, 2010, Baggett completed her assigned reports without realizing that they
needed to include two sources of revenue that had not yet posted. Later that day, Barnett called
Baggett into his office, sharply reprimanded her, and gave her a verbal warning for her error, which
he said fell short of “demonstrat[ing] the ability to review, analyze, and interpret the reports as written
and expected in her job description.” Id. at 7-8. Barnett informed Baggett that he “felt the magnitude
and type of error demonstrated in the completion of an inaccurate report was enough of a concern in
her ability to complete her job duties as agreed upon that [he] would proceed to a written warning
with the next occurrence.” Id. at 8.
On December 10, 2010, Baggett sent an email to Barnett to ask what was being done to
restore her full-time salary. Barnett responded with the following message:
Pam,
We discussed that we would need an accurate job description to be able to address
this, which you have now completed. We have agreed that the job description you
provided is a reasonable expectation and is what is being performed. Currently the
only mechanism that I am aware of for a pay raise is an out of cycle request based on
a position reclassification. After reviewing the job description and comparing it to
your current position as a project program manager I do not see that we have sufficient
rationale to request an increase in position level and therefore any additional salary
amount.
This is my assessment, however if you wish you may request a review from HR as
well. Let me know how you wish to proceed.
Id. at 10. Baggett responded with an email that stated, in pertinent part: “This is not acceptable. You
can’t expect me to work full-time for my part-time salary.” Id. at 9. Baggett stated that she had
written Dr. Marsh and that if nothing were done she would meet with Steve Wood, the human

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resources manager for the College of Medicine. Baggett stated, “If the Dean’s office can’t fix this,
then I will go to Personnel and let whatever happens, happen.” Id. Barnett interpreted Baggett’s
response as a request to appeal his assessment, and he forwarded their email exchange to Wood,
Bradley, Dr. Marsh, and Holland. Id. On December 28, 2010, Barnett advised Norman Sward, the
director of human resources, that his expertise would be required to determine what benefits expenses
Baggett may owe to the department. Id. at 27. Baggett spoke to Bradley, Wood, and Dr. Marsh
about the salary issue. She also spoke to Dr. Marsh about her concern that Barnett was not teaching
her the necessary skills to succeed in her position. Document #21-1 at dep. pp. 43-47.
On February 17, 2011, Baggett sent an email to Barnett stating that her new duties as chief
financial officer of the department “should be included in any position review that was presented” to
human resources. Document #36-5. Barnett responded that Baggett had “only been asked to
completed [sic] one new report per month,” and that she had “been included in the requests for . . .
HR to review [her] salary.” Id.
Barnett made various personnel changes during the spring of 2011. First, Barnett did not hire
a replacement for an Advance Practice Nurse position in the cardiology division that had come open
in or about September 2010. This position was eventually eliminated. Barnett also identified an
administrative assistant position in the rheumatology division whose primary duties involved medical
transcription. This position was transferred out of the Department of Internal Medicine into the
hospital. Finally, sometime in March 2011, Barnett hired Michael Legate as an administrator for the
cardiology division at a salary of $64,000.00 per year.
On March 18, 2011, Baggett sent an email to Burnett, to which she attached a document that
she created showing associate administrator salaries for the years 1998 through 2012. Document

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#21-3 at 32. Baggett’s email stated that her salary was not equitable in light of the salaries of other
department-level associate administrators, and she stated that this situation should be corrected by any
means necessary. Id. Baggett claimed that her full-time salary should be paid at $66.995.00 per year,
but she was only receiving $53,548.00 per year. Documents #21-1 at dep. pp. 50-51 and #36-6.
Barnett, Bradley, and Holland met to discuss the issues raised by Baggett’s email. Document #21-3
at 32. They “discussed if there was actually a need for [Baggett’s] position.” Id. at 33. They also
discussed that Baggett was “argumentative and not able to run reports and does not respect Brian as
the boss.” Id. Barnett decided to terminate Baggett and to reassign her responsibilities to other
positions. Id. On April 1, 2011, Bradley sent via email to Barnett a formal termination letter that was
addressed, but not sent, to Baggett, dated March 31, 2011. Id. at 35. The letter had been approved
by the UAMS Office of General Counsel that day. Id. Barnett discussed his decision to eliminate
Baggett’s position with Dr. Marsh and the Executive Committee, which consisted of the vice chair of
research, the vice chair of education, and the chief of medical services at the hospital. Document #212 at dep. p. 62.
On April 6, 2011, Baggett spoke to Norman Sward and gave him a letter in which she stated
that she would file a charge with the Equal Employment Opportunity Commission if her salary was
not corrected. Document #21-1 at dep. pp. 47-49. According to Baggett, Sward told her, “This is
an EEOC lawsuit waiting to happen, and I wouldn’t blame you one bit if you filed a lawsuit. And I
will take care of this. And it will be fixed and you will get your back pay.”1 Document #21-1 at dep.
1

On April 10, 2011, Sward sent an email to Baggett that he copied to Barnett, Dr. Marsh,
Bradley, Holland, Backus, and Mark Hagemeier, in which he stated his disappointment with an email
Baggett had sent to Barnett and Dr. Marsh describing his April 6, 2011 meeting with her. Sward
stated, in pertinent part:
[Y]our statements on our conversation last Wednesday are rather embellished: while
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p. 47. On April 8, 2011, Barnett and Wendy Backus (a Dean’s office employee) met with Baggett.
Id. at dep. p. 69. Barnett informed Baggett that she would receive back pay to November 1, 2010,
and that they were going to reduce her position to an 80% work schedule. Id. at dep. pp. 69-70. The
new duties Barnett had given to her to fulfill her role as chief financial officer of the department were
cancelled. Baggett was not asked to pay back the value of any leave or benefits that she had received
for the previous seven years. Id. at dep. p. 32. Baggett was happy with this arrangement. Id. at 36;
id. at dep. p. 70.
On April 27, 2011, Baggett received a check containing her back pay for the previous five
months. Document #38 at 13. The next day, Barnett called Baggett into his office to meet with him
and Backus. In that meeting Barnett gave Baggett a letter dated April 28, 2010, which stated that her
“employment in the Department of Internal Medicine will be terminated as of June 3, 2011 due to the
consolidation of duties in response to continued financial difficulty and budget reductions.” Document
#21-1 at 37. Other than the termination date, this letter was identical to the letter dated March 31,
2010, which had been approved by the UAMS Office of General Counsel on April 1, 2010. Compare
Documents #21-1 at 37 and #21-3 at 36. Later that day Baggett met with Sward. Sward’s meeting
notes indicate that he “tried to ‘open her parachutes,’” and they discussed her options, including filing
a grievance, filing an EEOC charge “as a woman and over 40,” seeing an attorney, negotiating for
eight more months of employment in return for resigning without incident, and leveraging her nearly
30 years of employment and knowledge of UAMS accounting structures and systems to find other

I agreed that the documents you showed me were supportive of your argument (80%
salary and effort but 100% in SAP), I would have appreciated a more balanced
version on the meeting that said a) we had met, b) I saw some merit in your
assertions, and b) [sic] I agreed to talk with Brian about them.
Document #36-10.
8

projects to work on for eight months. Document #36-9. Barnett did not hire a replacement for
Baggett, and the position she held as associate administrator of accounting was eliminated altogether.
Document #21-1 at dep. p. 73.
On July 13, 2011, Baggett filed a charge of discrimination with the EEOC, claiming sex
discrimination and retaliation. Document #21-1 at 38. The EEOC issued her a right-to-sue letter, and
she subsequently filed this action, alleging claims for sex discrimination and retaliation under 42 U.S.C.
§ 1983; sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.; and a violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1).
II.
A court should enter summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.
2505, 2511, 91 L. Ed. 2d 202 (1986).

The moving party bears the initial responsibility of

demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden, the
nonmoving party must respond by coming forward with specific facts establishing a genuine dispute
for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). In deciding
a motion for summary judgment, a court views the evidence in the light most favorable to the
nonmoving party and draws all reasonable inferences in that party’s favor. PHL Variable Ins. Co. v.
Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if the
evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S.
at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make a showing sufficient to establish

9

a necessary element of the case on which that party bears the burden of proof, the moving party is
entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552.
III.
As an initial matter, the parties agree that section 1983 official-capacity claims for money
damages are barred by the State of Arkansas’s Eleventh Amendment sovereign immunity. Baggett
responds that her section 1983 official-capacity claims are only for injunctive relief and that she does
not seek money damages or equitable front pay.
“[A] suit against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official’s office.” Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989). “As such, it is no different from a suit against
the State itself.” Id. To prevail on her official capacity claims for equitable relief, Baggett must show
that she was deprived of a federal right and that UAMS was the “moving force” behind that
deprivation. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 89 L. Ed. 2d 114
(1985). Baggett cannot show that she was deprived of a federal right, so the issue of whether UAMS
was the “moving force” does not arise.
A.

Sex-Discrimination Claims
Baggett has alleged claims under Title VII, section 1983, and the Equal Pay Act, arguing that

the unequal wages she received and the elimination of her position constituted discrimination on the
basis of sex. For her section 1983 claim, Baggett does not specify which constitutional right she
claims the defendants violated, but this Court will infer that Baggett intended to claim a violation of
her rights under the Equal Protection Clause. Tipler v. Douglas Cnty., Neb., 482 F.3d 1023, 1027
(8th Cir. 2007) (stating that the “right to be free from gender discrimination is secured by the [E]qual

10

[P]rotection [C]lause of the Fourteenth Amendment.”). Because the analysis is essentially the same
for Title VII and § 1983 sex-based employment-discrimination claims brought under the Equal
Protection Clause, the analysis will proceed under the Title VII framework. Id.; see St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506 n.1, 113 S. Ct. 2742, 2747 n.1, 125 L. Ed. 2d 407 (1993) (assuming
that the McDonnell Douglas framework is fully applicable to section 1983 employment discrimination
claims); Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986) (“The inquiry into intentional
discrimination is essentially the same for individual actions brought under §§ 1981 and 1983, and we
will therefore confine the discussion to Title VII.”); Craik v. Minn. State Univ. Bd., 731 F.2d 465, 468
n.5 (8th Cir. 1984) (“The issue of discriminatory intent is common to analyses under the Fourteenth
Amendment, § 1983, and Title VII.”). Baggett’s Title VII claims may survive the defendants’ motion
for summary judgment if she produces direct evidence of discrimination or shows that there is a
genuine dispute for trial under the McDonnell Douglas burden-shifting framework. Floyd-Gimon v.
Univ. of Ark. for Med. Sciences ex rel. Bd. of Trs. of Univ. of Ark., 716 F.3d 1141, 1149 (8th Cir.
2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973)).
Baggett argues that she has direct evidence of sex discrimination. She contends that Sward,
the head of human resources, told her during their April 28, 2011 meeting that she should sue and that
Sward’s statement is recounted in his meeting notes. Sward’s meeting notes do not indicate that
Sward told her that she should sue. Rather, those notes indicate that Sward “tried to ‘open her
parachutes’” and that they discussed her options, including filing a grievance, filing an EEOC charge
“as a woman and over 40,” seeing an attorney, negotiating for eight more months of employment in
return for resigning without incident, and leveraging her nearly 30 years of employment and

11

knowledge of UAMS accounting structures and systems to find other projects to work on for eight
months. Document #36-9. Assuming that Sward told Baggett that she should sue, however, that
statement is not direct evidence of sex discrimination. 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.” Russell v. City of Kansas City, Mo., 414 F.3d 863, 866 (8th Cir. 2005)
(quotation and citation omitted). Sward was not a decisionmaker in Baggett’s case, and direct
evidence does not include statements by nondecisionmakers. Floyd-Gimon, 716 F.3d at 1149.
Absent direct evidence of discrimination, the Court must analyze Title VII sex discrimination
claims under the McDonnell Douglas burden-shifting framework. Norman v. Union Pac. R.R. Co.,
606 F.3d 455, 459 (8th Cir. 2010) (citing McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S. Ct.
at 1824-26). Under that framework, Baggett must first establish a prima facie case that she: (1) is a
member of a protected class; (2) was qualified for her job; (3) suffered an adverse employment action
that affected a term or condition of her employment; and (4) alleged facts that give rise to an inference
of sex discrimination. Id. at 460-61. Baggett “can satisfy the fourth part of the prima facie case in a
variety of ways, such as by showing more-favorable treatment of similarly-situated employees who are
not in the protected class, or biased comments by a decisionmaker.” Guimaraes v. SuperValu, Inc.,
674 F.3d 962, 974 (8th Cir. 2012) (quotation and citation omitted). If Baggett establishes a prima
facie case, then the burden shifts to the defendants to articulate a nondiscriminatory reason for the
adverse action. See Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 792 (8th Cir. 2011).
And if the defendants meet this burden, Baggett must show that the defendants’ proffered reason is
merely a pretext for discrimination. See id.

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The parties do not dispute the first three elements of Baggett’s prima facie case for her sex
discrimination claims. In particular, the parties do not discuss the third element of Baggett’s wagediscrimination claim, and so they do not characterize the precise nature of the adverse employment
action that Baggett suffered. But how that adverse employment action is characterized is relevant to
the success or failure of Baggett’s ability to establish the fourth element of her prima facie case for her
wage-discrimination claim. Although the briefs are not clear on this point, Baggett may be contending
that Barnett’s requiring her to return to driving into work five days a week without raising her salary
was an adverse employment action motivated by sex discrimination. She certainly does contend that
termination of her employment was an act of sex discrimination. In addition, Baggett contends that
she was paid less than similarly-situated male employees.
Assuming that Baggett contends that Barnett’s requiring her to return to work five days per
week with no increase in salary was unlawful sex discrimination, her claim on that point fails. Barnett
was in a position to require Baggett to return to driving into work five days a week only because of
Baggett’s peculiar work arrangement under McKay. In 2003, McKay accommodated Baggett’s
request to go to an 80% schedule, and he allowed her to work from home one day each week. McKay
lowered her salary by 20% but kept her listed in the payroll and benefits system at 100% time. Thus,
in 2003 Baggett essentially took a 20% salary cut in order to work from home one day a week.
Beginning in November 2010, Barnett required Baggett to drive in to work five days a week without
a salary increase. Baggett’s work situation continued in this manner until April 27, 2011, when
Baggett received back pay for the previous five months. The Court will assume, without deciding,
that this circumstance was an adverse employment action.

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To meet the fourth element of the prima facie case for her sex-discrimination claims, Baggett
points to what she argues is more favorable treatment of a similarly-situated male employee. A
comparator must be “similarly situated in all relevant respects,” and “the relevant respects are the
conduct of the employees and any disparity in their discipline.” Chappell v. Bilco Co., 675 F.3d 1110,
1118-19 (8th Cir. 2012). Legate, a man, was hired as a division-level administrator in the cardiology
division in March 2011.2 Baggett maintains that Legate was similarly situated to her, that he had no
relevant experience when he was hired, and that his salary was significantly higher than hers.
The defendants argue that Legate is not similarly situated to Baggett. The defendants offer
Baggett’s deposition testimony, in which she acknowledged that the division of cardiology, into which
Legate was hired as a division-level administrator, is one of the largest divisions in the Department of
Internal Medicine. Baggett acknowledged that Legate was “responsible for over 30 physicians” and
that he reported to a faculty supervisor. Document #21-1 at dep. pp. 51-52. The defendants argue
that Baggett, on the other hand, was a department-level associate administrator of accounting who
was responsible for only two administrative employees and reported to the administrator of the
department. The defendants also offer the affidavit of Holland, the department-level associate
administrator of human resources, which states, in pertinent part,
there are no other employees in the Department of Internal Medicine with an
equivalent position to Mrs. Baggett. There is one similar position classified in the
accounting system that has the same functional title as Mrs. Baggett-Bettye Bryles, the
billing department manager. However, she has 8 direct reports and Mrs. Baggett only
had 2. Mrs. Bryles is also a woman . . . .

2

Baggett also identified Brian Carpenter, the administrator of the division of general medicine
and an individual with the name of Martin as men who had received more favorable treatment than
she had. See Document #21-1 at 18 dep. pp. 66-67; id. at 40. However, Baggett’s brief does not
argue that these individuals are similarly situated for purposes of her sex-discrimination claims.
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Document #21-4 at 2 ¶ 9. Finally, the defendants offer the affidavit of Connie Marendt, the
administrator for the division of hematology/oncology. Marendt’s affidavit states, in pertinent part,
The work that Pam [Baggett] did was not equal to the academic administrators. Our
responsibilities were much greater than hers. We are responsible for academic practice
management. We supervise faculty, fellows, and staff. We are responsible for
recruiting faculty members, overseeing research compliance and managing clinical
trials. The biggest responsibility we have is planning and staying within budgetary
guidelines. Pam was not responsible for any of this. She was not responsible for any
division in the Department of Internal Medicine. She was [an] accountant.
Document #21-7 at 1-2 ¶ 6. Baggett testified that she did not supervise and faculty or fellows, was
not involved in recruiting faculty members, overseeing research compliance or managing clinical trials.
Document #21-1 at dep. pp. 20, 22-23. She testified that she served primarily a bookkeeping function,
id. at dep. p. 24, and the extensive description of her job duties in her brief corroborates that she
served primarily as an accountant. See Document #38 at 2-6.
The facts do not support a finding that Baggett was similarly situated to Legate. Legate did
not have a prior arrangement to work from home one day a week. Consequently, Baggett’s attempt
to contrast her position with Legate’s is an apples-to-oranges comparison. Legate’s hiring and salary
are not circumstances that show a disparity in treatment giving rise to an inference that the defendants’
actions toward Baggett were a result of sex discrimination.
Even if Baggett could show a prima facie case, she cannot establish that the defendants’
proffered nondiscriminatory reasons for the adverse employment actions are mere pretexts for sex
discrimination. First, Baggett’s work arrangement under McKay violated UAMS policies, as Baggett
implicitly recognized by stating that she would be glad to pay back the value of 20% of the full-time
benefits she had enjoyed for the previous seven years in order to clear her good name. Document #211 at dep. p. 32. Because of UAMS’s complex and differentiated structure, Barnett did not have the

15

necessary knowledge to determine the value of the benefits Baggett had received over those seven
years or how much Baggett might owe to the Department of Internal Medicine. Nor did Barnett have
the power to increase Baggett’s salary. On December 10, 2010, Barnett advised Baggett that the only
mechanism he knew of for increasing her salary was an out-of-cycle request based on a position
reclassification but that he believed that Baggett’s responsibilities could not justify an increase in
position level. When Baggett protested, Barnett treated her response as an appeal, and he involved
the human resources department in the matter. Uncertainty remained regarding how much Baggett
might need to pay back, as indicated by Barnett’s advising Sward on December 28, 2010 that his
expertise would be required to determine what benefits expenses Baggett owed to the department.
While it is not clear what efforts the defendants made to resolve these issues between December 28,
2010, and Baggett’s meeting with Sward on April 6, 2011, Baggett has not met her burden of showing
that the defendants’ reasons for the lack of an increase in her salary were a mere pretext for sex
discrimination under Title VII or section 1983.
Eliminating Baggett’s position certainly was an adverse employment action. The defendants
argue that Baggett’s position was eliminated to improve efficiency and eliminate duplication of effort.
The defendants maintain that Baggett’s position, which involved supervising only two employees,
created unnecessary administrative overhead expense. The defendants point to the affidavits of
Whaley and Hummel, the two employees Baggett supervised. Whaley’s affidavit states, in pertinent
part,
3.
Most administrators preferred to work around [Baggett] and go to
either me or Joyce Hummel, not only because of the way [Baggett] treated them, but
also because she was not at work very often. She was only scheduled to work 4 days
a week, but [she] often came in less than that.

16

4.
Even before her position was eliminated, she had already assigned most
of her responsibilities away to Joyce. She delegated herself out of a job. The
remaining duties were either taken on by her supervisor, Brian Barnett, or were
absorbed by the divisions. I believe the change has improved efficiency and eliminated
work that was already being done by the academic administrators. Honestly, now that
Pam is gone, I’m not real sure I can tell you what she was actually doing in her
position other than supervising us on a part-time basis.
Document #21-6 at 1. Hummel’s affidavit contains substantially similar statements. See Document
#21-5 at 1-2. In particular, Hummel states that Baggett “delegated so much of her job out that she
wasn’t really needed anymore. I was not surprised when her position was eliminated.” Id. at 1 ¶ 3.
Baggett stated in her deposition testimony that Whaley and Hummel were honest people, that they
would have no reason to fabricate facts about her position, and that they would be able to give great
insight as to whether the elimination of her position improved efficiency or eliminated duplication of
functions. Document #21-1 at 21 dep. p. 79.
Although Baggett disagrees with the testimony of these witnesses, she has not come forward
with competent evidence to rebut it. Consequently, Baggett has not meet her burden of showing that
the defendants’ reasons for eliminating her position were a mere pretext for sex discrimination under
Title VII or section 1983. Moreover, regarding Baggett’s official-capacity section 1983 sexdiscrimination claims, Baggett has failed to make the required showing that any of the defendants took
action pursuant to an unconstitutional governmental policy or custom or used authority in an
unconstitutional manner. See Nix, 879 F.2d at 433.
Title VII wage discrimination claims may also be established using the Equal Pay Act
framework. See Horn v. Univ. of Minn., 362 F.3d 1042, 1045 (8th Cir. 2004); Tenkku v. Normandy
Bank, 348 F.3d 737, 741 (8th Cir. 2003); Orahood v. Bd. of Trustees of Univ. of Ark., 645 F.2d 651,
654 n.3 (8th Cir. 1981). The Equal Pay Act is a strict liability statute that prohibits discrimination in

17

wages on the basis of sex even where there is no showing of discriminatory intent. Bauer v. Curators
of Univ. of Mo., 680 F.3d 1043, 1045 (8th Cir. 2012); 29 U.S.C. § 206(d).
A plaintiff must first establish a prima facie case that women were paid less than men
in the same establishment for equal work requiring equal skill, effort, and responsibility
and performed under similar working conditions. Hutchins v. Int’l Bhd. of Teamsters,
177 F.3d 1076, 1080 (8th Cir. 1999). If a plaintiff establishes a prima facie case, the
burden then shifts to the defendant to prove one of four statutory affirmative defenses.
Id. at 1081. Those defenses require an employer to prove that any wage differential
is explained by “(i) a seniority system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a differential based on any other
factor other than sex.” 29 U.S.C. § 206(d)(1). In an EPA case, “a defendant cannot
escape liability merely by articulating a legitimate non-discriminatory reason for the
employment action . . . . [it] must prove that the pay differential was based on a factor
other than sex.” Taylor [v. White], 321 F.3d [710,] 716 [(8th Cir. 2003)].
Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011) (first and second alterations in
Price).
Whether two jobs entail equal skill, equal effort, or equal responsibility requires a
practical judgment on the basis of all the facts and circumstances of a particular case.
Skill includes such considerations as experience, training, education, and ability. Effort
refers to the physical or mental exertion necessary to the performance of a job.
Responsibility concerns the degree of accountability required in performing a job.
Application of the Equal Pay Act depends not on job titles or classifications but on the
actual requirements and performance of the job. In all cases, therefore, a court must
compare the jobs in question in light of the full factual situation and the broad remedial
purpose of the statute.
Simpson v. Merchants & Planters Bank, 441 F.3d 572, 578 (8th Cir. 2006) (quoting EEOC v.
Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981)). Jobs need not be identical
to be considered “equal” under the EPA; they need only be substantially equal. Id. at 578 (quotation
and citation omitted).
Baggett argues that Legate’s job was substantially equal to hers. She contends that both
positions are office jobs in the Department of Internal Medicine that involve dealing with a number

18

of budgeting issues and handling considerable paperwork and personal interaction with a number of
different people.
This case is similar to Orahood, 645 F.2d 651. In that case, the plaintiff, Orahood, was hired
in 1963 as a secretary by the University of Arkansas at Little Rock. Id. at 653. Orahood held various
positions over the years, including Assistant to the Registrar, Research Associate, and finally, Research
Project Analyst—the “number two” position in the Office of Institutional Studies. Id. The Director
of Administrative Services twice indicated that Orahood was the informal acting director of the Office
of Institutional Studies while the top position was vacant, and in 1977, he approved Orahood’s use
of the unofficial working title of “Assistant Director of Institutional Studies.” Id. In 1978, “Orahood
requested a change in the status of her job position and an increase in salary. A job status
‘reclassification’ was necessary for a salary increase because Orahood was earning the maximum salary
for someone with her job title.” Id. The Director of the Office of Institutional Studies “recommended
a change in job status and increase in salary,” and the Director of Administrative Services concurred.
Id. However, the Chancellor did not approve a change in status and salary at that time. Id. Orahood
filed a grievance with the Faculty-Staff Appeals Committee, which recommended that her salary be
increased, that she receive a new job title, and that she receive back pay for the five-month period from
November 1977 to April 1978, during which time she served as acting director of the Office of
Institutional Studies. Id. at 654. In response, the Chancellor “requested that the Arkansas Department
of Higher Education conduct a ‘job audit’ of Orahood’s employment position. This state agency’s
response was that the position was properly classified. There was no reclassification of Orahood’s
position.” Id. Orahood filed suit, alleging discrimination on the basis of sex in violation of the Equal
Pay Act and Title VII. Id. at 653.

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In support of her equal pay claim, Orahood compare[d] her wages and job to
that of a male employee, Ed Kremers, whose job title [was] Assistant Controller in the
Controller’s Office at UALR. There [was] no dispute that Kremers and Orahood . . .
received substantially different salaries over the relevant period. During 1979-80,
Kremers was classified at a Grade 20 with a salary of $20,462, while Orahood was
classified at a Grade 18 with a salary of $14,404.
Id. at 654.
The district court first observed the similarities between the positions of
Orahood and Kremers:
(1) both the Office of Institutional Studies and the Controller’s Office
are administrative, rather than academic, offices of UALR: (2) both the
plaintiff and Kremers hold the number two positions in their
departments; (3) both employees coordinate, supervise and review the
work of lower level employees; (4) both assist in the development of
policies and procedures in the departments; (5) both coordinate
department needs with computer systems; (6) both are responsible for
preparing reports; and (7) both deal with other university and
governmental agencies in behalf of their departments.
Orahood v. Board of Trustees, No. LR C 78 457, slip op. at 5 (E.D. Ark. April 16,
1980).
The district court then examined the content of the jobs and found that they
could not be equated. It found the Controller’s Office to be much larger than the
Office of Institutional Studies, and that Kremers had many more employees to
supervise than did Orahood. The district court determined Kremers’ position required
knowledge and work in financial and accounting matters, while Orahood’s position
dealt with statistics and supplying these materials to university and government
agencies as requested. It noted that Kremers’ position required a bachelor’s degree
in accounting or a related field and four years experience, while Orahood’s position
required a baccalaureate degree in statistics or a related field and two years experience.
Kremers had been given the authority to hire and fire, while Orahood had only input
into these decisions.
Id. at 654-55. The Eighth Circuit affirmed, stating that even though the district court “had before it
substantial . . . evidence that the jobs were substantially equal,” there was substantial evidence “that
the jobs were not substantially equivalent” and that “the differences in the jobs [were] more than
inconsequential.” Id. at 655. See also Horn, 362 F.3d at 1045-46 (8th Cir. 2004) (holding that
20

university assistant coaching positions with identical contracts and job descriptions were not
substantially equivalent for purposes of the Equal Pay Act and Title VII even though the coaches
expended equal amounts of time and effort in fulfilling their duties, where the day-to-day
responsibilities of one position involved recruiting and public-relations skills and experience but the
other involved more “behind the scenes” work).
Here, viewing the evidence in the light most favorable to Baggett, and accepting Baggett’s
argument that her and Legate’s positions were both office jobs in the Department of Internal Medicine
that involved dealing with a number of budgeting issues, handling considerable paperwork, and
personally interacting with a number of different people, the jobs are not substantially equivalent.
Baggett acknowledged in deposition testimony that Legate was “responsible for over 30 physicians”
and that he reported to a faculty supervisor. Document #21-1 at dep. pp. 51-52. Baggett, on the
other hand, was a department-level associate administrator of accounting who was responsible for only
two administrative employees and reported to the administrator of the department. Furthermore, the
undisputed evidence indicates that division-level administrators’ responsibilities include supervising
faculty and fellows, recruiting faculty members, overseeing research compliance, managing clinical
trials, and planning division expenditures within budgetary guidelines. Documents #21-1 at dep. pp.
20, 22-23, #21-7 at 1-2 ¶ 6. Baggett’s position did not place these responsibilities on her shoulders.
Rather, Baggett served primarily a bookkeeping function. These differences in Baggett’s and Legate’s
positions are “more than inconsequential.” See Orahood, 645 F.2d at 655.
The other department-level associate administrators in the Department of Internal Medicine
received salaries that were roughly similar to the $66.995.00 per year that Baggett claims she should
have received. Baggett submitted a document showing fiscal year 2010-2011 salaries. That document

21

shows Bryles, the associate administrator for billing, with a salary of $64,966.00 per year and Holland,
the associate administrator for human resources, with a salary of $68,113.00.3 Document #36-6. Like
Baggett, Holland and Bryles had been employed by the Department of Internal Medicine for many
years. Baggett also argues that another woman, Phyllis Milne, was newly hired as an associate
administrator of clinical trials with a salary of $66,000.00. Document #37 at 14 ¶ 40 resp. Even if
these department-level associate administrators’ positions were substantially equal to Baggett’s
position, that would not support her Equal Pay Act claim because these positions were all held by
women. Consequently, Baggett has failed to establish a “prima facie case that women were paid less
than men in the same establishment for equal work.” Price, 664 F.3d at 1191.4
In sum, Baggett has failed to meet her burdens of establishing a claim of sex discrimination
under Title VII, section 1983, or the Equal Pay Act.
B.

Retaliation Claims
Baggett has alleged claims for retaliation under Title VII and section 1983. For her section

1983 claim, Baggett again does not specify which constitutional right she claims the defendants
violated. There is not a clearly established right to be free from retaliation under the Equal Protection
Clause. Burton v. Ark. Sec’y of State, No. 13-1427, 2013 WL 6596923, at *13 (8th Cir. Dec. 17,
2013) (slip opinion). Furthermore, the Eighth Circuit has stated,
We have previously recognized that “section 704(a) of Title VII ‘may not be the basis
for a retaliatory discharge claim in a § 1983 action.’” Tyler [v. Univ. of Ark. Bd. of
Trs.], 628 F.3d [980], 986 [(8th Cir. 2011)] (quoting Greenwood v. Ross, 778 F.2d
448, 455 (8th Cir. 1985)). However, Ҥ 1983 provides a vehicle for redressing claims

3

Baggett’s brief states that Holland’s salary was $66,000.00. Documents #37 at 14 ¶ 40
resp., #38 at 10.
4

The defendants do not attempt to argue any of the four statutory affirmative defenses under
the Equal Pay Act. See 29 U.S.C. § 206(d)(1).
22

of retaliation on the basis of the First Amendment.” Id. (emphasis added) (citing
Lewis v. Jacks, 486 F.3d 1025, 1028-29 (8th Cir. 2007)).
Id. at *12. Consequently, this Court will infer that Baggett intended her section 1983 retaliation claim
to allege a violation of her First Amendment rights.
“First Amendment retaliation claims are analyzed under the same framework as claims of
retaliation under Title VII.” Okruhlik v. Univ. of Ark., 395 F.3d 872, 878 (8th Cir. 2005). Again, the
McDonnell Douglas burden-shifting framework applies. “To state a retaliation claim, consisting of
the same elements under Title VII and the First Amendment, a plaintiff must prove that: (1) she
engaged in a protected activity; (2) that the employer took an adverse employment action against her,
and (3) that the two situations are causally connected.” Id. (citing Kipp v. Mo. Highway & Transp.
Comm’n., 280 F.3d 893, 896 (8th Cir. 2002) (Title VII); Duffy v. McPhillips, 276 F.3d 988, 991 (8th
Cir. 2002) (First Amendment)). The defendants concede the second element, that the elimination of
Baggett’s position was an adverse employment action. But they argue that Baggett’s complaints
about being paid a part-time salary for full-time work and her threat to file a charge of discrimination
with the EEOC do not constitute protected activities. Baggett complained to Bradley, Wood,
Dr. Marsh, and Sward about her salary. These complaints included a March 18, 2011 email in which
she stated that her salary was not equitable in light of the salaries of other department-level associate
administrators and stated that this situation should be corrected by any means necessary. Ultimately,
Baggett gave Sward a letter in which she stated that she would file a charge with the Equal
Employment Opportunity Commission if her salary was not corrected. Baggett also spoke to
Dr. Marsh about her concern that Barnett was not teaching her the necessary skills to succeed in her
position.

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“In the First Amendment context, when deciding whether a public employee’s speech is
protected, the threshold question is whether the employee’s speech may be fairly characterized as
constituting speech on a matter of public concern.” Hylla v. Transp. Commc’ns Int’l Union, 536 F.3d
911, 917 (8th Cir. 2008) (quotations, citations, and alterations omitted). “To decide whether speech
addressed a matter of public concern, we examine the speech’s content, form, and context.”
Bausworth v. Hazelwood Sch. Dist., 986 F.2d 1197, 1198 (8th Cir. 1993). “[W]e consider whether
the employee attempted to communicate the speech to the public at large and the employee’s
motivation in speaking.” Id. at 1198. “Unless the employee is speaking as a concerned citizen, and
not just as an employee, the speech does not fall under the protection of the First Amendment.”
Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999). “When a public employee’s speech is purely
job-related, that speech will not be deemed a matter of public concern.” Id. at 548; see Connick v.
Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983) (holding that “a federal
court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a
public agency allegedly in reaction to the employee’s behavior.”).
Here, the content of Baggett’s speech concerned her salary and her feeling that Barnett was
not teaching her the necessary skills to succeed in her position. That speech took the form of emails
and letters to her coworkers as well as personal conversations with them. It came in the context of
her efforts to have her salary increased. As such, Baggett’s speech was “purely job-related.” Buazard,
172 F.3d at 548. She did not speak “as a concerned citizen, but just as an employee.” Id.
Consequently, her speech did not bear on a matter of public concern and was not protected activity
under the First Amendment. Thus, Baggett has failed to meet her burden of showing a prima facie
case on her section 1983 retaliation claim. Moreover, regarding Baggett’s official-capacity section

24

1983 retaliation claims, Baggett has failed to make the required showing that any of the defendants
took action pursuant to an unconstitutional governmental policy or custom or used authority in an
unconstitutional manner. See Nix, 879 F.2d at 433.
To allege that she has engaged in protected activity under Title VII, Baggett must allege that
she has “opposed any practice made an unlawful employment practice by [Title VII], or . . . has made
a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under [Title VII].” 42 U.S.C. § 2000e-3(a). Baggett does not allege that she was retaliated against
for participating in an investigation, proceeding, or hearing. Rather, she claims that on April 6, 2011,
she spoke with Sward and gave him a letter stating that she would file a charge with the Equal
Employment Opportunity Commission if her salary was not corrected. There is no evidence to
indicate that Baggett opposed or even complained of sex discrimination in violation of Title VII. To
the contrary, the defendants point to affidavits from Bradley, Hummel, Whaley, Marendt, and
Holland—five women who worked with both Barnett and Baggett—which state that Baggett never
complained that she was discriminated against, unfairly treated, or paid less because she was a woman.
See Documents #21-3 at 2 ¶¶ 5, 8; #21-4 at 2 ¶¶ 5, 6, 8; #21-5 at 2 ¶ 6; #21-6 at 2 ¶ 7; and #21-7 at
2 ¶ 8. Consequently, Baggett has not shown that she engaged in protected activity under Title VII.
Even if Baggett’s April 6, 2011 letter were to be construed as protected activity, she cannot
show a causal connection between that letter and the elimination of her position. Establishing
causation requires showing that “the desire to retaliate was the but for cause of her termination.”
Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013) (quotation and citation omitted).
Baggett would have to show that “the protected conduct was a ‘determinative—not merely a
motivating—factor’ in the employer’s adverse employment decision.” Id. at 738 (quoting Carrington

25

v. City of Des Moines, Iowa, 481 F.3d 1046, 1053 (8th Cir. 2007)). The evidence shows that, other
than the termination date, the termination letter Baggett received on April 28, 2011, was identical to
the March 31, 2010 letter that had been approved by the UAMS Office of General Counsel on April 1,
2010. The fact that the termination letter was drafted and approved by legal counsel five days before
Baggett gave her letter to Sward is sufficient to show that Baggett’s threat to go to the EEOC was
not a “but for” or “determinative cause” of her termination. See Kobrin v. Univ. of Minn., 34 F.3d
698, 704 (8th Cir. 1994) (“Because the termination date of June 1990 was established before she filed
her discrimination claim, Kobrin cannot show the causal connection element of the prima facie case
as to the termination of her position.”).
Finally, even if Baggett could show a prima facie case of retaliation, she could not show that
the defendants’ legitimate, nondiscriminatory reason for eliminating her position is a mere pretext for
retaliation for the same reasons as were discussed in the analysis of Baggett’s sex-discrimination claim
in section III.A, supra.
C.

Qualified Immunity
The defendants argue that Baggett’s individual-capacity section 1983 claims against Barnett

are barred by qualified immunity.
In a § 1983 action, qualified immunity shields a government official from liability
“unless his conduct violates ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Loch v. City of Litchfield, 689 F.3d
961, 965 (8th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 73 L. Ed. 2d 396 (1982)). “When a defendant asserts qualified immunity at the
summary judgment stage, the plaintiff must produce evidence sufficient to create a
genuine issue of fact regarding whether the defendant violated a clearly established
right.” Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013).
Coker v. Ark. State Police, 734 F.3d 838, 841-42 (8th Cir. 2013). As discussed supra, Baggett has
not produced evidence sufficient to create a genuine issue whether Barnett violated a clearly
26

established right. A fortiori, Barnett did not violate a clearly established right of which a reasonable
person would have known. Consequently, Baggett’s individual-capacity section 1983 claims against
Barnett are also barred by qualified immunity.
CONCLUSION
Pam Baggett makes a case for the proposition that she was treated unfairly (though UAMS
certainly presents evidence to the contrary). Baggett does not, however, present evidence to show
that she suffered an adverse employment action because of her sex, or that she was paid less than men
with comparable duties. Nor does she present evidence sufficient to show that she was terminated in
retaliation for exercising her constitutional rights or her rights under Title VII. The defendants’
motion for summary judgment is granted. Document #21.
IT IS SO ORDERED this 7th day of January, 2014.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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