Smith v. Arkansas Military Department et al
ORDER granting 18 Defendants' Motion for Summary Judgment; denying Smith's 23 request to amend his complaint; and denying his request for a hearing. Signed by Judge D. P. Marshall Jr. on 06/24/2014. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ARKANSAS MILITARY DEPARTMENT;
RAY MOIX, Individually and in his official
capacity as Director of the Arkansas Military
Department; DEPARTMENT OF STATE
RESOURCES; and JUDY BRAGG, Individually
and in her official capacity as Personnel
Manager for the Arkansas Military Department
Why didn't the Camp Robinson gym promote Gene Smith and hire him
as its new Program Coordinator? Smith says it was either because he was
Native American, or because he filed an EEOC complaint against the gym a
few years ago. The Defendants- the state agencies that run the gym, and two
agency managers-say it was because Smith had neither the necessary
experience nor education for the job.
Smith raises retaliation and
discrimination claims under Title VII, the Arkansas Civil Rights Act, and 28
U.S.C. § 1983. All Defendants move for summary judgment on all claims.
Background. Taking the disputed facts, and all reasonable inferences,
in Smith's favor, Wierman v. Casey's General Stores, 638 F.3d 984, 992-93 (8th
Cir. 2011), here's what happened. Smith was a Recreational Activity Leader
II at Camp Robinson's gym.
The gym was taking applications for a
management position that required, among other things, a bachelor's degree
in public administration, or its equivalent, and three years of relevant
experience. Smith applied. He has an associate's degree in criminal justice,
a law degree, and diverse work experience, including six years working in a
gym. He was asked to interview.
But, despite Smith being tied for first place on the gym's applicantscoring system with George Woolford, the gym didn't hire him or Woolford.
It hired John Davis, who had the third highest score.
Davis had more
experience and interviewed better than both Woolford and Smith; and Davis
had more relevant education than Woolford. Both Woolford and Smith
pulled ahead on the scorecard because of their military service. NQ 18-1 at 22.
Moix, the Military Department director, sought clarification from the local
Office of Personnel Management on Smith's, but no one else's, qualifications
and experience. NQ 18-3 at 4. Don Lukas was functioning as a one-person
OPM Qualifications Review Committee. After reviewing Smith's credentials,
OPM (speaking through Lukas) said that Smith was unqualified for the
position because he didn't satisfy the minimum education or experience
requirements. Then the gym hired Davis.
Discrimination. Smith's burden to establish a prima facie case isn't
heavy, and he's carried it. Amini v. City of Minneapolis, 643 F.3d 1068,1074-75
(8th Cir. 2011). He's a Native American-his siblings identify themselves as
American Indians, and his mother's death certificate confirms her ancestry.
NQ 18-1 at 7-8. Smith's lack of formal tribal membership is not dispositive at
this point in the case.
Setting OPM' s challenged view aside, Smith is
otherwise qualified for the job. He worked in a fitness center for six years and
his legal education is somewhat related- some of the Program Director's
needed skills are "[k]nowledge of state and federal laws and regulations[,]"
ability to" apply state and federal laws and regulations[,]" and grant writing.
NQ 18-2 at 1. Smith didn't get the position and Davis, who isn't Native
American, did. That's sufficient at this stage. Arraleh v. County of Ramsey, 461
F.3d 967, 975 (8th Cir. 2006).
The gym, in response, offers legitimate reasons for choosing Davis. He
had seventeen years of experience, twelve of those in gym management.
Davis also had a degree in physical education and recreation. Plus, he
outperformed Smith in the interview. NQ 18-1 at 22. Defendants pointoutthat
the veterans-preference points should only serve as a tiebreaker when two
applicants are otherwise equally qualified- a situation they say didn't exist
here. Defendants also refer to OPM' s rejection of Smith's qualifications, but
that explanation doesn't hold up: the gym sent only Smith's file to OPM.
Davis also lacked the required degree in public administration or general
business- OPM might have rejected Davis's application too if it had had the
chance. The gym otherwise scored Smith and Davis equally on relevant
Smith hasn't shown, though, that the gym's reasons for not hiring him
were pretext for discrimination. He hasn't shown that Davis was a lessqualified applicant. Compare Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 793 (8th Cir. 2011). He hasn't shown that the gym has changed its
reasons for not hiring Smith. 656 F.3d at 793-94. With one exception, nothing
indicates that people in similar circumstances were treated differently. 656
F.3d at 796-97. No evidence indicates that some racially motivated reason
was behind Davis's, and not Smith's, hire.
Any pretext argument teeters, then, on the veterans-points issue. The
deep question is whether a jury could reasonably conclude that the gym's
take on how the veterans points were applied was a cover up for
discrimination. By law, veterans points apply only when two applicants have
"substantially equal qualifications[.]" ARK. CODE ANN. § 21-3-302(c). No
reasonable fact finder could conclude that Smith and Davis had substantially
equal qualifications. The comparison between the candidates' education was
essentially a draw. But Davis had almost three times the gym experience
Smith did- some as a Program Coordinator, the position both were vying for.
Smith hasn't come forward with enough proof of racial motivation to rebut
this strong evidence supporting Davis's hiring. Smith's discrimination claims
fail as a matter of law.
Retaliation. Smith's 2010 EEOC charge is stale. But this two-year old
allegation weighed in the gym's decision to send Smith's materials to OPM.
Moix says he was worried that Smith might sue when he wasn't hired. So
Moix says he sought a disinterested opinion. NQ 18-3 at 4. Perhaps Moix was
just being prudent, but a reasonable juror might see it differently and infer a
retaliatory motive in these circumstances. To succeed on his retaliation
claims, Smith must demonstrate that his old EEOC complaint wasn't just a
motivating factor, but the determining one, in the gym's decision to hire
someone else. Wright v. St. Vincent Health System, 730 F.3d 732, 737-38 (8th
Cir. 2013). Without the EEOC complaint, would the gym have hired Smith?
Davis was qualified and more experienced than Smith. And Davis wowed
the interviewers. NQ 18-1 at 22. There are a number of reasons the gym might
have chosen Davis over Smith. None of these reasons, however, supports the
conclusion that the 2012 decision was in retaliation for Smith's 2010 EEOC
charge. Smith's proof of an alleged pay back is just too thin. The retaliation
claims also fail as a matter of law.
Defendants' motion for summary judgment, NQ 18, is granted. Smith's
embedded request to amend his complaint, Ng 23 at 3, is denied- the deadline
for amendments has passed, NQ 11 at 1, and he gives no particulars about how
his claims could be salvaged by an amendment. His request for a hearing is
denied. The Court favors hearings, but is unable to schedule one before the
imminent trial date and the case is clear on the papers.
D.P. Marshall Jr.
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?