Downing v. Department of Finance and Administration et al

Filing 24

ORDER granting in part and denying in part 18 Motion. Downing's ACRA claim is dismissed without prejudice. The case goes forward on the other claims listed in the chart on page two. Signed by Judge D. P. Marshall Jr. on 4/27/2016. (jak)

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

PLAINTIFF

WILLIAM R. DOWNING, JR.

v.

No. 4:15-cv-570-DPM

DEPARTMENT OF FINANCE AND
ADMINISTRATION, an Agency of the
State of Arkansas; BOB HAUGEN, Individual
and Official Capacity; and DAVID JUSTICE,
Individual and Official Capacity

DEFENDANTS

ORDER
1. William Downing worked for the Arkansas Department of Finance
and Administration as a surplus agent. His job involved storing, moving,
lifting, and selling heavy items. Downing had hip problems. For a while the
Department accommodated them. It eventually gave Downing FMLA leave
for a hip replacement. But Downing says two supervisors, Bob Haugen and

David Justice, wouldn't let him return to his old job unless he was 100%
better- meaning no accommodations. Downing says he couldn't do it. The
Department fired him. He claims all this violated several federal statutes and
the Arkansas Civil Rights Act. Has Downing pleaded plausible claims?

2. Claims. Downing helpfully outlined his claims in response to
defendants' motion to dismiss. NQ 21 at 7-8. Here they are, by statute:

Statute

Defendant

Rehab Act Department

Capacity

Relief

Official

Lost Wages; Compensatory
Relief; Injunctive Relief; Fees and
Costs

Official

Injunctive Relief; Fees and Costs

ADA

Haugen;
Justice

FMLA

Haugen;
Justice

Official & Back Pay; Benefits; Liquidated
Individual Damages; Injunctive Relief; Fees
and Costs (relief tailored to
capacities)

ACRA

Haugen;
Justice

Individual Lost Wages; Compensatory
Damages; Punitive Damages;
Fees and Costs

3. Immunities. Downing' s clarification tracks the law on sovereign
immunity. He seeks only prospective injunctive relief on his official capacity
claims under the ADA and FMLA. And Downing alleges enough about
Haugen's and Justice's leave-related actions and FMLA training to forestall
qualified immunity on the pleadings. NQ 12 at iii! 10-11, 14, 31; Darby v. Bratch,
287 F.3d 673, 681 (8th Cir. 2002). Haugen and Justice are statutorily immune,
though, from Downing' s ACRA claim. There's no allegation of malice or
liability insurance -just a bare allegation of willfulness. Langford v. Norris, 614
-2-

F.3d 445, 465 (8th Cir. 2010); compare Barton v. Taber, No. 14-3280, slip op. at 11
(8th Cir. 27 April 2016) (complaint sufficient against qualified immunity and
statutory immunity defenses). Downing's ACRA claim therefore fails. The
related request for punitive damages drops out too.
4. Adequacy of Pleadings. Downing pleaded enough facts to make his

other claims plausible: He had hip problems but could work with a
reasonable accommodation; he took leave to get treatment; he wasn't allowed
to return to his former job. Ng 12 at 2-4; Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). He explained how various parts of this story violated the law. Ng 12 at
4-8. Downing didn't have to plead how he may navigate through McDonnell

Douglas down the road. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002).
He just had to show, in short and plain terms, entitlement to relief.

FED.

R.

Crv. P. 8(a). He's done that.
5. Amendment. Downing seeks leave to amend as a hedge against

dismissal. NQ 20 at 2. But amending to allege malice would be futile. Downing
has already amended once. And the facts in his fuller amended complaint
don't indicate maliciousness. So a new allegation of malice would be
conclusory, like the existing allegation of willfulness. His request to amend

-3-

is therefore denied. Wisdom v. First Midwest Bank, 167 F.3d 402, 409 (8th
Cir. 1999).

*

*

*

Motion, NQ 18, granted in part and denied in part. Downing's ACRA
claim is dismissed without prejudice. The case goes forward on the other
claims listed in the chart on page two.
So Ordered.

D.P. Marshall Jr.'/
United States District Judge

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