Mullen v. Arkansas Game & Fish Commission

Filing 35

OPINION AND ORDER granting in part and denying in part AGFC's motion to dismiss or to quash; and granting Crow's motion to dismiss. This action will proceed solely on Mullen's Title VII gender discrimination claim against the AGFC. Signed by Judge Susan Webber Wright on 11/7/2017. (cmn)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
KIMBERLY MULLEN, an
individual,

*
*
*
Plaintiff,
*
vs.
*
*
*
ARKANSAS GAME AND FISH
*
COMMISSION, an agency of the
*
State of Arkansas, and JEFF CROW, *
an individual,
*
*
Defendants.
*

No. 4:17-cv-00416-SWW

OPINION AND ORDER
Kimberly Mullen brings this action against the Arkansas Game and
Fish Commission (AGFC), an agency of the State of Arkansas, and Jeff
Crow, Director of the AGFC, alleging gender discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42
U.S.C. § 1981, and the Arkansas Civil Rights Act of 1993 (ACRA), Ark.
Code Ann. § 16-123-101 et seq. Mullen claims the defendants violated these
statutes when she was demoted on April 4, 2017, from her AGFC position as
Chief of the Educational Division to the position of East Arkansas Regional

Education Coordinator.
Before the Court are the following motions: (1) motion of the AGFC to
dismiss the amended complaint, or in the alternative, motion to quash
[doc.#11]; and (2) motion of Crow to dismiss the amended complaint
[doc.#27]. Mullen has responded in opposition to the AGFC’s motion to
dismiss or to quash and the AGFC has filed a reply to Mullen’s response.
Mullen has not responded to Crow’s motion to dismiss and the time for doing
so has passed. For the reasons that follow, the Court grants in part and denies
in part the AGFC’s motion to dismiss or to quash and grants Crow’s motion
to dismiss.
I. AGFC’s Motion to Dismiss or to Quash
A.
The AGFC first argues that this action should be dismissed because it
was not properly served. It appears that this issue has since been resolved so
the Court denies the AGFC’s motion to dismiss for lack of proper service.
B.
The AGFC next argues that Mullen’s ACRA claim must be dismissed
because of sovereign immunity. The Court agrees. See Ark. Code Ann. §
2

16-123-104 (“Nothing in this subchapter shall be construed to waive the
sovereign immunity of the State of Arkansas.”). See also Brooks v. Gillespie,
No. 4:16cv00473 SWW, 2017 WL 4295195, at *2 (E.D. Ark. Sept. 27, 2017)
(citing Ark. Code Ann. § 16-123-104 in granting summary judgment, based
on sovereign immunity, on plaintiff’s ACRA claim brought against Director
of the Arkansas Department of Human Services sued in her official capacity).
Accordingly, the Court dismisses Mullen’s ACRA claim against the AGFC.
C.
The AGFC next argues that Mullen’s 42 U.S.C. § 1981 claim must be
dismissed on the ground, inter alia, that § 1981 does not provide a cause of
action for gender discrimination. The Court agrees. See Lake v. Honeywell,
Inc., No. 4-96-944, 1997 WL 458463, at *5 (May 27, 1997) (noting that it is
well settled that claims for gender discrimination are not viable claims under
§ 1981 and collecting cases). Accordingly, the Court dismisses Mullen’s
gender discrimination claim under § 1981.
D.
Finally, the AGFC argues that Mullen’s request for liquated or special
damages must be dismissed because Title VII does not provide for the
3

availability of such damages. Mullen does not dispute the AGFC’s argument
on this point so the Court dismisses Mullen’s request for liquidated or special
damages. See, e.g., Baker v. John Morrell & Co., 263 F.Supp.2d 1161, 1183
(N.D. Iowa 2003) (“Title VII, of course, does not contain a liquidated
damages provision.”); Celli v. Wynne, No. 1:06cv1DAK, 2006 WL 2708359,
at *5 (D. Utah, Northern Div., Sept. 19, 2006) (noting that “‘special
damages’ are not authorized by Title VII.”) (citing 42 U.S.C. § 1981a(b)).
II. Crow’s Motion to Dismiss
A.
Crow first argues that Mullen’s Title VII claim against him in his
individual capacity must be dismissed because Title VII does not provide for
individual liability. The Court agrees. Title VII liability only attaches to an
“employer.” See, e.g., Bonomolo-Hagen v. Clay Central-Everly Community
Sch. Dist., 121 F.3d 446 (8th Cir. 1997) (per curiam); Bales v. Wal-Mart
Stores, Inc., 143 F.3d 1103, 1111 (8th Cir. 1998). Accordingly, the Court
dismisses Mullen’s Title VII claim against Crow in his individual capacity.
B.
Crow next argues that Mullen’s ACRA claim against him in his
4

individual capacity must be dismissed because supervisors do not meet the
definition of an “employer” as defined in Ark. Code Ann. § 16-123-102(5)
(“‘Employer’ means a person who employs nine (9) or more employees in
the State of Arkansas in each of twenty (20) or more calendar weeks in the
current or preceding calendar year”). The Court agrees. See, e.g., Morrow v.
City of Jacksonville, 941 F.Supp. 816, 820 (E.D. Ark. 1996) (finding that
supervisors do not meet the definition of an “employer” found at Ark. Code
Ann. § 16-123-102(5)); see also Richardson v. City of Pine Bluff, AR, No.
5:05cv00179 SWW, 2006 WL 3388341, at *1 (E.D. Ark. Nov. 21, 2006)
(dismissing a plaintiff's Title VII and ACRA claims against separate
defendant supervisor in his individual capacity). Accordingly, the Court
dismisses Mullen’s ACRA claim against Crow in his individual capacity.
C.
Finally, Crow argues that any §1981 claim Mullen may be making
against him must be dismissed as § 1981 does not provide a cause of action
for gender discrimination. Again, the Court agrees. See Honeywell, 1997
WL 458463, at *5. Accordingly, any such claim Mullen is making against
Crow is dismissed.
5

III.
For the foregoing reasons, the Court grants in part and denies in part
the AGFC’s motion to dismiss or to quash and grants Crow’s motion to
dismiss. This action will proceed solely on Mullen’s Title VII gender
discrimination claim against the AGFC.
IT IS SO ORDERED this 7th day of November 2017.

/s/ Susan Webber Wright
UNITED STATES DISTRICT JUDGE

6