Liang v. Rahn et al

Filing 31

ORDER granting in part and denying in part 24 Defendants second motion to dismiss; and denying as moot 16 their first motion to dismiss. Liang's claims for money damages against the Board of Trustees and the individual defendants in their official capacities under section 1983, section 1981, and Arkansas state law are dismissed with prejudice. Liang's claim for punitive damages against the Board of Trustees under Title VII is also dismissed with prejudice. Defendants' motion to dismiss is denied in all other respects. Signed by Chief Judge Brian S. Miller on 7/27/2017. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CHIUNG-FANG LIANG
v.

PLAINTIFF
CASE NO. 4:17-CV-00135 BSM

DAN RAHN, et al.

DEFENDANTS
ORDER

Defendants’ second motion to dismiss [Doc. No. 24] is granted in part and denied in
part, and their first motion to dismiss [Doc. No. 16] is denied as moot.
I.

BACKGROUND

Plaintiff Chiung-Fang Liang began working for the University of Arkansas for
Medical Sciences (“UAMS”) as a nurse in January 2014. In November 2016, Liang’s
supervisor gave her a choice: face termination or resign. This threat, Liang alleges, was
another link in a chain of discriminatory treatment she faced because of her race, sex, and
national origin.
UAMS hired Liang to work weekdays in UAMS’s neuroscience unit. Am. Compl.
¶¶ 4–5, Doc. No. 23. Soon after beginning work, however, she was required to work
weekends, eventually working every weekend for two consecutive months in 2014. After
voicing concerns about her schedule, Liang’s immediate supervisor cautioned Liang that she
could lose her job. Id. ¶ 5. In fear of losing her job, Liang accepted the schedule.
To escape the work schedule, Liang applied to work in UAMS’s stem cell transplant
unit. She began working in the unit but later complained to supervisors about discrimination.

For example, Liang was assigned to discharge (a time consuming and tedious task) more
patients than other nurses. Because of this, her peers gave her the nickname “discharge
queen.” During this time, she was also marked as someone “difficult to work with” because
she refused to administer medications in violation of UAMS procedures.
Liang was also mocked and bullied by employees in front of supervisors. On one
occasion in July 2016, Richard Alcala, another UAMS employee, told Liang that “if she
couldn’t speak English that she should go back to where she came from” and to “tell [him]
the numbers in English.” Id. ¶ 8. These comments were broadcast over an intercom system
and Liang’s supervisors, Susan Heath and Judy Osborn, could overhear the conversation.
Heath and Osborn pushed Liang to file a complaint against Alcala. After filing a
complaint, Liang never received documentation or notification of an investigation. Within
two days, however, Liang began feeling retaliated against by those loyal to Alcala. For
example, Megan Thomas reneged on promises that resulted in Liang spending more time
completing tasks, and Christina Ketchum reported Liang for poor time management. Id. ¶¶
10–11. Finally, approximately three months after filing the complaint, Liang was accused
of having another employee clock in for her, which Liang alleges is false, misleading, and
another example of the hostile environment she faced. Id. ¶ 12.
Although her complaint does not deny that someone else clocked in for her, Liang
states that it was not another employee, but her minor daughter, who clocked in for her.
Liang’s daughter was a visiting scholar in the UAMS bio-statistics department and on the day

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in question, she carried several of Liang’s bags into the building from Liang’s car. At one
point, when Liang briefly returned to her car, her daughter was ushered into an elevator. Her
daughter arrived at Liang’s floor and, in following the example of everyone else on the
elevator, apparently swiped Liang’s employee badge that was in one of the bags. After Liang
arrived on another elevator, she was unable to clock into the system. Id. ¶ 12. Liang
prepared a statement to Heath regarding the time clock issue, and Heath followed up by
notifying Liang that she had to resign or would be fired.
UAMS’s administrative guide provides progressive discipline procedures for time
clock violations and immediate dismissal is warranted for gross misconduct. The guide’s
definition of gross misconduct does not explicitly include the actions taken by Liang and her
daughter. Liang, however, received no oral or written warning and, apparently, this one
instance was enough to constitute termination, as Heath told Liang that she would never have
a good nursing job if fired from UAMS. When faced with the demand that she either quit
or be fired, Liang signed a letter of resignation. Id. ¶ 13. Even though Liang resigned,
Alcala, Ketchum, and Walker told other employees that Liang had been fired because
Liang’s nursing skills were subpar.
It is notable that Alcala had also been the subject of discipline at UAMS, though he
received much less severe treatment than Liang. For example, on July 26, 2016, Alacala
received a “written warning” after eight unexcused absences, which followed a “verbal
warning” for six unapproved absences just the month prior. Id. ¶ 21; Doc. No. 23-1 at 9–10.

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Ironically, on that same day in July 2016, UAMS pressured Liang to resign for a single
instance of a time discrepancy that resulted from Liang’s minor daughter swiping an
employee badge without Liang’s knowledge.
Liang brought suit against Dan Rahn (official capacity), Jeff Risinger (official
capacity), Audrey Bradley (official capacity), Richard Alcala (official and personal capacity),
Christina Kethcum (official and personal capacity), Tamekia Walker (official and personal
capacity), and the Board of Trustees for the University of Arkansas. She alleges First
Amendment, Equal Protection, Due Process, section 1981 and 1983 claims, and state law
defamation against all defendants. She brings Title VII claims for discrimination based on
gender, race, and national origin; a Title VII retaliation claim; and claims for the same under
the Arkansas Civil Rights Act against the Board of Trustees. Id. ¶ 22.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when the plaintiff fails to
state a claim upon which relief may be granted. To meet the 12(b)(6) standard, a complaint
must allege sufficient facts to entitle the plaintiff to the relief sought. See Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). Although detailed factual allegations are not required, threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, are
insufficient. Id. In ruling on a 12(b)(6) motion to dismiss, materials embraced by the
pleadings, as well as exhibits attached to the pleadings and matters of public record, may all
be considered. Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010).

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III.
A.

DISCUSSION

Sovereign Immunity

Defendants’ motion with respect to sovereign immunity is granted in part and denied
in part. The claims brought against the Board of Trustees and individual defendants in their
official capacities for section 1983 violations and state law claims are dismissed because of
sovereign immunity.
Sovereign immunity bars private citizens from suing states for damages in federal
court. See Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 751–52 (2002). This
immunity also shields “arms of the State” from suit, which includes state universities such
as the University of Arkansas. N. Ins. Co. of N.Y. v. Chatham Cnty., Ga., 547 U.S. 189, 193
(2006); Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8th Cir. 2001); Humenansky v. Regents
of the Univ. of. Minn., 152 F.3d 822, 823–24 (8th Cir. 1998). This immunity remains in
place unless Congress abrogates it or a state waives it. See Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Doe v. Nebraska, 345 F.3d
593, 598 (8th Cir. 2003); Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8th Cir. 2001).
Liang’s suit triggers sovereign immunity for two reasons. First, Liang’s suit is
properly brought against the Board of Trustees because Arkansas state law designates the
board as the entity capable of being sued. See Greenwood v. Ross, 778 F.2d 448, 449 n.1
(8th Cir. 1985) (“Arkansas state law designates the Board of Trustees of the University of
Arkansas as the entity capable of being sued.”). The Board of Trustees (i.e., the University

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of Arkansas) is an instrumentality of the state of Arkansas, and thus enjoys the state’s
sovereign immunity. See, e.g., Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8th Cir. 2001)
(“The University of Arkansas has been recognized to have Eleventh Amendment
immunity.”). Similarly, Liang’s suit against individual UAMS employees in their official
capacities is another way of asserting a claim against UAMS, and thus another way of
asserting a claim against the state itself. See Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017)
(“In an official-capacity claim, the relief sought is only nominally against the official and in
fact is against the official’s office and thus the sovereign itself . . . The real party in interest
is the government entity, not the named official.”) (citations omitted). Therefore, Liang’s
claims against the Board of Trustees and the individual defendants in their official capacities
are subject to sovereign immunity scrutiny.
Congress has not abrogated and the state of Arkansas has not waived immunity from
section 1983 claims. See Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997) (“[I]t
is well settled that the Eleventh Amendment bars [plaintiff’s] § 1983 claims against the State
of Arkansas and its [agenies.]”); Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997)
(“individual defendants acting in their official capacities are likewise barred, either by the
Eleventh Amendment or because in these capacities they are not ‘persons’ for 1983
purposes.”). The bar on section 1983 claims also affects Liang’s section 1981 claim because
section 1981 claims against state defendants are brought under section 1983. Lockridge v.
Bd. of Trs. Univ. of Ark., 315 F.3d 1005, 1007 (8th Cir. 2003) (en banc).

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Liang’s state law claims meet a similar fate, though her Title VII claim survives.
Sovereign immunity bars state claims against the Board of Trustees and individual
defendants in their official capacities. See, e.g., Harrison v. Univ. of Ark., Case No. 4:06CV-00904 WRW, 2008 U.S. Dist. LEXIS 50342, at *12 (E.D. Ark. July 1, 2008) (dismissing
ACRA and tort of outrage claims).
This bar does not affect Liang’s Title VII claims because “Title VII validly abrogated
the States’ Eleventh Amendment immunity.” Maitland v. Univ. of Minn., 260 F.3d 959, 964
(8th Cir. 2001). Moreover, this bar does not affect claims for injunctive relief. “[S]tate
officials may be sued in their official capacities for prospective injunctive relief without
violating the Eleventh Amendment[.]” Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th
Cir. 2007).
Although defendants argue that some of the individual defendants cannot provide the
relief Liang seeks, this information is outside the complaint. See Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (“When considering . . . a motion to dismiss
under Fed. R. Civ. P. 12(b)(6) . . . the court generally must ignore materials outside the
pleadings[.]”) (quotation omitted). The complaint alleges the individual defendants are
employees. See, e.g., Am. Compl. ¶ 9. Accepting those allegations as true, those individuals
can provide the relief Liang requests.
Accordingly, Liang’s claims for damages under sections 1981 and 1983, the ACRA,
and for defamation against the Board of Directors and the individual defendants in the

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official capacities are dismissed with prejudice. The motion to dismiss, however, is denied
as to Liang’s official capacity claims for injunctive relief.
B.

Discrimination and Retaliation

The motion to dismiss Liang’s discrimination claim based on sex, race, and national
origin, and to dismiss her retaliation claim is denied.
Defendants dispute Liang’s claims and justify Liang’s separation from UAMS. This
is the wrong standard for a motion to dismiss. Liang is not required to prove her case or
establish a prima facie case at the motion to dismiss stage. She need only allege facts that
make her claims facially plausible. See Blazek v. United States Cellular Corp., 937 F. Supp.
2d 1003, 1013 (N.D. Iowa 2011) (“District courts in this circuit agree that this pleading
standard does not require an employment discrimination plaintiff to make out or plead facts
related to each element of a prima facie case of discrimination in his or her complaint, but
the claim must be facially plausible and the complaint must give fair notice to the defendant
of the basis for the claim.”); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)
(“This court has never indicated that the requirements for establishing a prima facie case
under McDonnel Douglas also apply to the pleading standard that plaintiffs must satisfy in
order to survive a motion to dismiss.”); Jones v. City of St. Louis, 555 Fed. Appx. 641, 641
(8th Cir. 2014) (citing Swierkiewicz for the proposition that “prima facie model is evidentiary
standard, not pleading requirement”); Wilson v. Ark. Dep’t of Human Srvs., 850 F.3d 368,
372 (8th Cir. 2017) (“Under the ‘simplified notice pleading standard] that governs McDonell

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Douglas [discrimination and] retaliation claims, summary judgment motions – not motions
to dismiss – should dispose of most unmeritorious claims.”).
An employment discrimination claim requires allegations that (1) Liang is a member
of a protected class; (2) she was qualified for the position held; (3) she suffered an adverse
employment action; and (4) the adverse employment action occurred under circumstances
giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Liang’s discrimination charges under other statutes are analyzed in
a similar manner. See Moody v. Vozel, 771 F.3d 1093, 1097 (8th Cir. 2014) (involving Title
VII and § 1983 claims); Schaffhauser v. UPS, 794 F.3d 899, 902 (8th Cir. 2015) (Title VII
and ACRA claims).
Defendants’ motion to dismiss the discrimination claim is denied because Liang has
alleged employment discrimination. Taking her complaint and exhibits as a whole, Liang
alleges she is an Asian woman of Taiwanese descent, and race, sex, and national origin are
all protected classes. 42 U.S.C. § 2000e-2(a). Defendants assume Liang was qualified for
her job. Br. Supp. 5. Liang suffered adverse action when she was given the choice to resign
or face termination. See, e.g., Kelley v. City of Albuquerque, 375 F. Supp. 2d 1183, 1226
(D.N.M. 2004) (finding dispute of material fact on summary judgment when employee was
forced to resign when faced with threat of termination). This choice was in close proximity
to the treatment from others in her office directed toward her race, sex, and national origin,
which her supervisors were aware of but apparently did nothing about. Finally, even though

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Liang resigned, employees were apparently permitted to spread information that Liang had
been fired for subpar performance, which certainly suggests Alcala’s discriminatory
statements about Liang’s skills were actually considered during the termination meeting.
Taken together, this is sufficient to state a claim of discrimination.
Liang also alleged a retaliation claim. A retaliation claim under Title VII involves (1)
engaging in statutorily protected conduct; (2) suffering an adverse employment action; and
(3) a causal connection between the two. Wilson v. Ark. Dep’t of Human Servs., 850 F.3d
368, 372 (8th Cir. 2017). Similarly, First Amendment retaliation requires constitutionally
protected conduct and that protected conduct serving as a substantial or motivating factor in
the defendant’s adverse action. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855,
865 (8th Cir. 2009); DePriest v. Milligan, 823 F.3d 1179, 1187 (8th Cir. 2016) (“We analyze
First Amendment and ARA retaliation claims under the same framework as claims of
retaliation under Title VII.”). Liang filed multiple complaints about how others treated her,
and she was forced to resign. The proximity of Liang’s complaints against Alcala, Liang’s
forced resignation, and the fact that Liang’s complaint apparently fell on deaf ears is
sufficient to state a retaliation claim.
C.

Due Process

Defendants’ motion to dismiss Liang’s due process claim is denied because Liang has
sufficiently alleged that she had an expectation in the continuation of her employment.
A due process property interest arose when defendants deprived Liang of a “property

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right in continued employment” without due process. Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 2.0, 538 (1985). State law and employment contracts affect the extent of this
interest. Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994).
If Liang had a protected interest, she is entitled to an opportunity to be heard at “at a
meaningful time and in a meaningful manner,” which is a flexible standard depending on the
particular circumstances. Id. at 899–900.
Defendants are correct that Arkansas is an at-will employment state, Lynn v. Wal-Mart
Stores, Inc., 280 S.W.3d 574, 579 (Ark. 2008), but Arkansas also recognizes an exception
when employment manuals and agreements provide employment expectations, Hice v. City
of Fort Smith, 58 S.W.3d 870, 872 (Ark. 2001). Liang alleged that UAMS’s employee
handbook established protocols for termination and that UAMS did not follow them. Am.
Compl. ¶¶ 19–20. The cases addressing whether UAMS’s handbook modified the at-will
nature of employment had the benefit of reviewing the handbook at the summary judgment
stage. See, e.g., Drye v. Univ. of Ark. for Med. Scis., Case No. 4:09-CV-00922 JLH, 2011
U.S. Dist. LEXIS 109247, at *13–14 (E.D. Ark. Sep. 23, 2011); Floyd-Gaimon v. Univ. of
Ark. for Med. Scis. ex rel. Bd. of Trs., Case No. 4:10-CV-00655 JMM, 2012 U.S. Dist.
LEXIS 35540, at *17–19 (E.D. Ark. Mar. 16, 2012). At this point in the litigation, however,
Liang has alleged UAMS created an expectation for employment, and that her interest in
employment was impermissibly severed.
D.

Defamation

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Defendants’ motion to dismiss the defamation claim is denied because Liang pleaded
a plausible claim.
“A viable action for defamation turns on whether the communication or publication
tends or is reasonably calculated to cause harm to another’s reputation.” Faulkner v. Ark.
Children’s Hosp., 69 S.W.3d 393, 402 (Ark. 2002). Liang must allege that (1) the
defamatory nature of a statement of fact; (2) the statement’s identification of or reference to
her; (3) publication of that statement by the defendant; (4) defendant’s fault in publication;
(5) the statement was false; and (6) damages. Id. Notably, Liang must allege she suffered
actual damage, as Arkansas no longer recognizes defamation per se’s presumed damages.
Dodson v. Allstate Ins. Co., 47 S.W.3d 866, 875 (Ark. 2001).
Liang alleged that Alcala, Ketchum, and Walker made statements that Liang was (1)
fired and (2) fired because of Liang’s subpar skills. Am. Compl. ¶ 21. Accepting Liang’s
allegations as true, these statements directly referenced Liang, they were published to others,
and they are false because Liang resigned (not fired) because of allegations of misusing the
time clock (not because of Liang’s skills). See Faulkner v. Ark. Children’s Hosp., 69 S.W.3d
393, 402 (Ark. 2002). Finally, Laing alleged damages when she lost wages as a result of
being unable unable to secure employment and continue in her career. Am. Compl. ¶¶ 37-39.
F.

Statutory Immunity

Defendants argument that the state law claims against the individual defendants are
barred by Arkansas’s statutory immunity is denied.

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Liang alleged state law defamation against Alcala, Ketchum, and Walker in their
individual capacities. Arkansas’s statutory immunity protects state employees from civil
liability for non-malicious acts occurring within the course of their employment. Ark. Code
Ann. § 19-10-305(a); Early v. Crockett, 436 S.W.3d 141, 150 (Ark. 2014). Liang escapes
this immunity bar, however, because she alleged the defendants “maliciously acted to ruin
[Liang’s] reputation.” Am. Compl. ¶ 29 (emphasis added). She substantiated these
allegation by describing how UAMS employees spread false information about her
separation from UAMS, which suggests the employees meant to do her harm, especially in
light of their similar conduct in retaliating against her and making comments about her
background. Taken together, this suggests defendants had “an intent and disposition to do
a wrongful act [that is] greatly injurious to [Liang]” to justify malice. See Fuqua v. Flowers,
20 S.W.3d 388, 391 (Ark. 2000).
G.

Punitive Damages

Liang appears to request punitive damages for all claims. Defendants’ motion to
dismiss claims for punitive damages is granted in part and denied in part. The motion is
granted with respect to the Title VII claim against the BOT because states are exempt from
punitive damages. See 42 U.S.C. § 1981a(b)(1) (“A complaining party may recover punitive
damages under this section against a respondent (other than a government, government
agency or political subdivision) . . . .”). The motion is denied with respect to the section
1983 claims against the individual defendants, however, because punitive damages are

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available in such claims. Schaub v. VonWald, 638 F.3d 905, 923 (8th Cir. 2011). Punitive
damages are intended to punish against “outrageous, intentional, or malicious conduct, and
deter similar extreme conduct in the future.” Id. Liang alleged the individual defendants
acted intentionally, and when viewed in light of their persistent discriminatory treatment,
certainly creates an inference of an “evil motive or intent.” Id.
IV. CONCLUSION
For the reasons set forth above, defendants’ second motion to dismiss [Doc. No. 24]
is granted in part and denied in part, and their first motion to dismiss [Doc. No. 16] is denied
as moot. Liang’s claims for money damages against the Board of Trustees and the individual
defendants in their official capacities under section 1983, section 1981, and Arkansas state
law are dismissed with prejudice. Liang’s claim for punitive damages against the Board of
Trustees under Title VII is also dismissed with prejudice. Defendants’ motion to dismiss is
denied in all other respects.
IT IS SO ORDERED this 27th of July 2017.

_______________________________
UNITED STATES DISTRICT JUDGE

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