Hill v. Pine Bluff Arkansas, City of
ORDER granting 22 MOTION for Summary Judgment filed by defendants and DISMISSING CASE with prejudice, judgment to be entered accordingly. Signed by Judge James M. Moody on 8/4/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CASE NO. 5:09cv00281 JMM
ROBERT TUCKER, CARL REDUS, AND
CITY OF PINE BLUFF, ET AL.
Pending before the Court is Defendants’ Motion for Summary Judgment on Plaintiff’s
claims of violations of 42 U.S.C. § 1983, Arkansas Code Annotated § 11-4-601 ( “Arkansas’
Equal Pay Act”) and the Arkansas Civil Rights Act of 1993 (“ACRA”). For the reasons stated
below, the motion is granted (#22).
Plaintiff contends that Defendant Mayor Carl Redus in his individual and official
capacities violated Arkansas’ Equal Pay Act, ACRA, and § 1983 when he denied her equal pay
or promotions based upon her gender and race, and that Defendant Robert Tucker in his
individual and official capacities retaliated against her for filing this lawsuit in violation of
ACRA and federal law.
Defendants contend that (1) Plaintiff has failed to establish prima facie cases for her salary
discrimination, race discrimination, or retaliation claims; (2) Defendant Tucker has come forward
with a legitimate nondiscriminatory reason for his actions; (3) Defendants Tucker and Redus are
entitled to qualified immunity in their individual capacities on all claims; (4) Plaintiff has failed to
establish that the City of Pine Bluff has a policy, practice or custom of unequal payment for women
or for retaliating against individuals for filing lawsuits; (5) because Plaintiff’s federal claim fails, the
Court should decline to accept jurisdiction over Plaintiff’s state claims; and (6) that the Defendants
are entitled to Qualified Immunity.
Defendant Redus has been the Mayor of the City of Pine Bluff since January of
2005 following his election in November of 2004. Plaintiff, an African American female, began
working with the City of Pine Bluff on January 20, 2005, as a secretary in the Inspection and
Zoning Department (“the department”) with a starting salary of $20,530.00. Prior to working as
secretary in the department, the Plaintiff obtained a bachelor’s degree in business administration,
worked with Brown Law Firm as a legal secretary and worked for the City of Dermott as a permit
In addition to her secretarial duties, Plaintiff trained with other zoning inspectors, and
completed an International Code Council for Zoning course. Plaintiff was responsible for
entering permits, assisting zoning inspectors, filing inspections when completed, typing and
printing notices for zoning inspectors, and preparing files and bid sheets for bid openings.
Plaintiff received her zoning inspector certification on July 8, 2006.
Bill Glover was the zoning administrator for the department which included two zoning
official positions held by Danny Birdsong, a white male,1 and Greg Garner. Birdsong and Garner
had worked for the department since 1979 as zoning inspectors. Birdsong and Garner had
vocational education and degrees in mechanical drafting and architectural drafting. Birdsong
See Pl. Brief in Opposition (#32), Ex. A. Plaintiff testified that she was discriminated
against because she was a black female she was not paid the same amount as the white male she
retired in July of 2006.
On November 15, 2006, Glover requested approval to hire Plaintiff for the open zoning
official position at a salary of $28,205.30 which was consistent with Section 203.0 D of the 1996
City’s Personnel Manual. Defendant Redus approved the Plaintiff for the position at that salary
on November 20, 2006. At the time Plaintiff was hired, Garner was paid $35,422 and Birdsong
had been paid $41,000.00. Birdsong trained Plaintiff in anticipation of her being hired as a
zoning inspector and Glover was responsible for training Plaintiff after she was hired in that
position. After Birdsong retired, Garner managed the zoning side of the department.
On February 12, 2009, Tucker gave Plaintiff a verbal warning in which he stated that he
spoke with Plaintiff about the time spent away from her desk, her resentment that Tucker had
asked to review her planning commission minutes, her resentment that Tucker had instructed her
to submit her written permits for review, and her refusal to carry her departmental cell phone
with her when she left the office.
On March 6, 2009, the Plaintiff requested “correct compensation” from the City by
writing a letter to the Administration Committee stating that “the City had a policy of paying the
incoming employee the rate of pay that the position was currently budgeted.” The basis for
Plaintiff’s belief that such a policy existed is a memo written to Ken Ferguson, former Human
Resources Director, from Joe Childers, Assistant City Director, in December of 2004. That
memo followed the December council meeting in which the council voted to “terminate the use
of the 1996 salary survey.”
In that December 2004 meeting, Alderman Jack Foster “made a motion to
discontinue use of the 1996 Salary Survey and those salaries of all new hires would be reviewed
by the Human Resource Department and the Administration Committee.” Following the
council’s decision to discontinue use of the ‘96 salary survey, the council passed Ordinance No.
6163 “Directing the Mayor to Undertake, Complete and Submit to the City Council a
Comprehensive Salary Survey for All City Positions.” Def. Ex. L.
In that ordinance, the council stated that “a scheme should be developed for the
classification of city positions by a grade system and the implementation of a ‘step’ process to
reward experience and tenure in employment.” Id. The council further ordained that “ Based
upon the information developed from the said salary survey, the responsibilities and other
qualifications requirement for the positions, and other relevant factors, the Mayor shall develop a
grade grouping system for all city positions and establish the appropriate salary range for each
position in the grade.” Id.
Defendant Redus contracted with the Johanson Group Management
Consulting Services to conduct a comprehensive compensation market analysis (“salary
survey”). In October of 2006, the Johanson Group completed and delivered the new salary
survey to the City. Within the salary survey, the Johanson Group compared the salaries for
positions in Little Rock, North Little Rock, Jefferson County, Texarkana, etc., to the current
salaries in Pine Bluff. Based on their findings, the Johanson Group created a “Policy Pay Range”
for each position within the City and established a minimum, mid, and maximum point within
that “Policy Pay Range.” Def. Ex. I.
On April 20, 2009, Plaintiff wrote to the Administration Committee requesting that she
be paid what Birdsong was making at the time of his retirement, $41,000, retroactive to her start
date in November of 2006. At the May 5, 2006 Administration Committee meeting, the
members of that committee formally discussed the Plaintiff’s request. The Administration
Committee voted to recommend to the City Council an increase in the Plaintiff’s pay from
$28,205.30 to $35,145, the midpoint of the salary survey. The council approved that request on
May 19, 2009. This pay raise resulted in Plaintiff’s rate of pay being equal to Garner’s 2006 rate
On September 3, 2009, Plaintiff filed this lawsuit. On January 27, 2010, Tucker issued
Plaintiff a written warning concerning her comments to the Planning Commission on January 26,
2010, and asked her to refrain from making comments regarding development proposals in Pine
Bluff. He stated in the written warning that Plaintiff became defensive, antagonistic, loud, and
agitated in a manner that was not appropriate for the workplace. In that same conversation,
Tucker told Plaintiff he felt her lawsuit against the City was personally offensive, asked her if she
was playing a race, age, or gender card, and said he did not know how to deal with a girl like her.
The Plaintiff filed a written rebuttal to the HR Director the day following her written warning
In March of 2009, an Emergency Management Position opened with the City. A panel,
created by Fire Chief Don Horton, recommended Plaintiff for the position. However, Defendant
Redus rejected the recommendation and hired Lieutenant Earnest Jones, a black male,2 to fill the
Emergency Management position. Lieutenant Jones was firefighter with the City and had
recently graduated from Arkansas Tech University with a degree in Emergency Management.
See Second Amended and Supplemental Complaint filed on July 7, 2010, which states
that a black male was appointed to the position.
Plaintiff amended her complaint to include additional claims on March 3 and July 7,
Summary judgment is appropriate when there is no genuine issue of material fact and the
dispute may be decided solely on legal grounds. Seymour v. City of Des Moines, 519 F.3d 790,
796 (8th Cir. 2008); Fed. R. Civ. P. 56. The initial inquiry is whether there are genuine factual
issues that can be properly resolved only by a finder of fact because they may reasonably be
resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Where a motion for summary judgment is properly made and supported an opposing party must
set forth specific facts showing a genuine issue for trial. See Fed.R.Civ.P. 56(e)(2).
A. 42 U.S.C. § 1983 Claim - Unequal Pay and Race Discrimination
To establish a prima facie case of gender discrimination based on disparate pay,
[the Plaintiff] must establish she occupied an employment position similar to that
of higher-paid males. Once a prima facie case is established, the defendant must
articulate a legitimate, nondiscriminatory reason for the pay disparity. “This
burden is ‘exceedingly light’; the defendant must merely proffer non-gender based
reasons, not prove them.”. . . “Once the defendant advances such a justification,
the plaintiff must show that the defendant, regardless of the proffered reasons,
intentionally discriminated against her.” . . . “[T]he plaintiff must show that ‘a
discriminatory reason more likely than not motivated [the employer] to pay her
Ottman v. City of Independence, Mo., 341 F.3d 751 (8th Cir. 2003) (citations omitted) (§ 1983
Plaintiff has failed to establish a prima facie case under § 1983 because she has failed to
establish that she occupied an employment position similar to that of Birdsong or Garner.
Plaintiff admits that Birdsong trained her in anticipation of her becoming a zoning inspector and
that Garner was made responsible for her training both before and after her assuming the position
of zoning inspector. There is no evidence that Plaintiff was ever given a supervisory position
when she became a zoning inspector. In addition, Glover testified that Garner took over the
zoning side of the department because of his experience and knowledge. There is no evidence
that Plaintiff’s position encompassed that same responsibility.
Even if Plaintiff had established a prima facie case, Defendants have come forward with
sufficient evidence to prove that the decision to pay Plaintiff less that Birdsong and Garner was
based upon a seniority system. It is undisputed that Birdsong and Garner, each, had
approximately 25 years of experience as zoning inspectors and that Plaintiff had worked for the
department as a secretary for approximately two years before being hired as a zoning inspector.
For these same reasons, Plaintiff’s § 1983 race discrimination claim fails. See Briggs v.
Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986) (inquiry into Title VII, § 1983, and § 1981
disparate treatment cases the same). To establish a prima facie case of racial discrimination,
Plaintiff “must show the following: (1) that she is a member of a protected class; (2) that she was
meeting her employer's legitimate job expectations; (3) that she suffered an adverse employment
action; and (4) that similarly situated employees outside the protected class were treated
differently.” Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008) (Title VII case
claiming unequal pay based on race). Here, for the reasons stated above, Plaintiff has failed to
establish that Birdsong and Garner were similarly situated employees.
Likewise, Plaintiff’s failure to hire claim is without merit. Assuming without deciding
that Plaintiff established a prima facie case that she was discriminated against based upon her
gender when she was denied the Emergency Management position, Defendants have come
forward with a legitimate nondiscriminatory reason for hiring Earnest Jones, e.g., he had more
experience and was better qualified.
Moreover, the proposition that Redus’s discriminates against women in his hiring
practices has recently been rejected. See Johnson v. City of Pine Bluff, et al., Case NO.
5:10CV00037 (E.D. Ark. July 25, 2011) (Court rejects attempt to show pretext by asserting other
women have been discriminated against by Mayor Redus).
Based upon the above the § 1983 claims against Defendant Redus in his individual
capacity are dismissed.
To establish municipal liability under § 1983, a plaintiff must show that a constitutional
violation was committed pursuant to an official custom, policy, or practice of the governmental
entity. Monell v. N.Y. Dep't of Soc. Servs., 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). Because the Court has found that Plaintiff has failed to establish a constitutional
violation, the claims against the City of Pine Bluff are also dismissed. Even if Plaintiff had
established a constitutional violation, the evidence presented by Plaintiff does not establish that
the City of Pine Bluff has an official custom, policy, or practice of paying, promoting, or failing
to hire employees in a discriminatory manner based upon gender or race. To the extent that the
City Counsel and Defendant Redus were inconsistent in application of salary policies, there is
insufficient evidence to establish that these inconsistencies were based upon gender or race.
Plaintiff contends that Tucker gave her verbal and written warnings that she was rude and
antagonistic toward him because she filed this lawsuit.
Plaintiff’s claim based upon the verbal warning fails as it occurred before Plaintiff filed
To successfully establish a First Amendment retaliation claim, Plaintiff must plausibly
plead and present evidence that she “engaged in protected activity and that defendants, to
retaliate for the protected activity, took adverse action” against her “that would chill a person of
ordinary firmness from engaging in that activity.” Naucke v. City of Park Hills, 284 F.3d 923,
928 (8th Cir. 2002).
Assuming that Plaintiff’s action of filing this lawsuit is protected activity, see Borough of
Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488, 2493, 2500-2501 (2011) (elements of protected
activity for public employee), her claim is still without merit as she has failed to establish with
any evidence that the alleged retaliatory action was sufficient to deter a person of ordinary
firmness from exercising his or her constitutional rights.
Initially it should be noted that Plaintiff did not suffer any adverse employment actions
which would have a chilling effect. There is no evidence that Plaintiff suffered a loss of pay,
reduced hours, or responsibilities. To the extent that Plaintiff alleged and presented evidence that
she was embarrassed, humiliated or emotionally distressed by the written warning, the Court
finds that such embarrassment, humiliation, or emotional distress was not sufficient to deter a
person of ordinary firmness from continuing to speak out. See Naucke v. City of Park Hills, 284
F.3d at 928.
While the test is an objective one, not subjective, how Plaintiff reacted to the written
warning might be evidence of what a reasonable person would have done. See Garcia v. City of
Trenton, 348 F.3d 726, 729 (8th Cir. 2003). Here, there is undisputed evidence that Plaintiff
filed a formal grievance the day following the written warning. Moreover, Plaintiff amended her
complaint to include additional claims on March 3 and July 7, 2010, after Tucker had issued the
Finally, there is no evidence that the City of Pine Bluff had a custom, policy, or practice
of retaliating against its employees for filing lawsuits against it. Plaintiff testified that no one,
other than Tucker, had retaliated against her.
The claims against Tucker in his individual and official capacities are dismissed.
II. Plaintiff’s State Law Claims
ACRA provides a cause of action for damages for “the deprivation of any rights ...
secured by the Arkansas Constitution” by any person acting under color of state law. Ark.Code
Ann. § 16–123–105(a). The statute provides that, in construing ACRA, “a court may look for
guidance to state and federal decisions interpreting ... 42 U.S.C. § 1983.” Ark.Code Ann. §
Because the Court has found that Plaintiff’s § 1983 claims against these Defendants in
their individual and official capacities are without merit, it will make the same findings on
Plaintiff’s ACRA claims.
Plaintiff’s remaining claim is her Arkansas Equal Pay claim against Defendant Redus in
his official and individual capacities. Arkansas Equal Pay Act states that employees shall be
paid equal compensation for equal services. See Ark. Code Ann. § 11-4-601. Here as stated
above, Defendants have presented sufficient undisputed evidence that Plaintiff, and Birdsong and
Garner’s duties were not equal and that the pay scale for Plaintiff, Birdsong, and Garner was
based upon seniority. Compare 29 U.S.C. § 206(d)((1) (Under Equal Pay Act employer cannot
discriminate between employees on the basis of sex “except where such payment is made
pursuant to (i) a seniority...”).
For these reasons and those stated above, Plaintiff’s Arkansas Equal Pay Act claims are
Because the Court has found that Plaintiff’s constitutional rights have not been violated,
there is no need to address the qualified immunity issues. Plaintiff’s complaint is dismissed with
prejudice and judgment will be entered accordingly.
IT IS SO ORDERED THIS
August , 2011.
James M. Moody
United States District Judge
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