Bass v. University of Arkansas at Pine Bluff et al

Filing 40

OPINION AND ORDER denying as moot 28 defendants' motion for judgment on the pleadings; granting in part and denying in part 32 defendants' motion to dismiss first amended complaint; dismissing defendant UAPB; and substituting Dr. Lau rence B. Alexander for Defendant Calvin Johnson. The Court construes Ms. Bass's first amended complaint as naming the University of Arkansas System through the Board of Trustees as a defendant. This case will proceed on Ms. Bass's claims u nder 42 U.S.C. §§ 1981 and 1983 against Mr. Bennett in his official capacity for prospective injunctive relief only and on Ms. Bass's Title VII sex discrimination, retaliation, and hostile work environment claims. Signed by Judge Kristine G. Baker on 09/16/2014. (rhm) (Docket text modified on 9/16/2014 (thd).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LETSIE BASS
v.

PLAINTIFF
Case No. 5:12-cv-00286-KGB

UNIVERSITY OF ARKANSAS
AT PINE BLUFF, ET AL.

DEFENDANTS
OPINION AND ORDER

Plaintiff Letsie Bass brings this action against defendants the University of Arkansas at
Pine Bluff (“UAPB”); the University of Arkansas System (“UA System”); Donald Bobbitt,
President of the UA System; Carl Johnson (originally named as Calvin Johnson), UAPB
Chancellor; and Elbert Bennett, Director of Student Affairs at UAPB. Ms. Bass asserts multiple
causes of action arising out of alleged employment discrimination on the basis of race, age, and
gender.
Before the Court is defendants’ motion for judgment on the pleadings (Dkt. No. 28).
Defendants’ motion for judgment on the pleadings is addressed to Ms. Bass’s original complaint
and is denied as moot in view of Ms. Bass’s filing of a first amended complaint (Dkt. No. 31).
Also before the Court is defendants’ motion to dismiss Ms. Bass’s first amended
complaint (Dkt. No. 32). Ms. Bass has responded to the motion (Dkt. No. 36), and defendants
have replied (Dkt. No. 38). For the reasons below, the Court grants in part and denies in part
defendants’ motion to dismiss Ms. Bass’s first amended complaint.
I.

Background

Ms. Bass alleges that the UA System and UAPB engaged in “systematic, systemwide,
policies, practices and procedures of employment discrimination against blacks, females and
aged employees” (Dkt. No. 31, ¶ 5). Ms. Bass alleges that she was subjected, on the basis of her

gender, race, and age, to: “(a) disparate treatment in hiring, promotion and advancement; (b)
disparate pay; (c) differential treatment and general conditions of employment; (d) hostile work
environment; (e) retaliation, and dismissal for her resistance to such disparate treatment,” which
she claims is in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights of 1991 and the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e et seq. (“Title
VII”); the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; the Equal Pay
Act (“EPA”), 29 U.S.C. § 206; the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq.; and 42 U.S.C. §§ 1981, 1983, and 1985 (Id., ¶ 6). She further asserts due
process and equal protection claims on the basis that she “was subjected to arbitrary and
capricious state actions” (Id.). Ms. Bass also alleges state law claims for gender, age, and race
discrimination under the Arkansas Civil Rights Act of 1993 (“ACRA”), § 16-23-101 et seq.; a
claim of “arbitrary and capricious State action detrimental to Plaintiff in violation of State
Administrative Procedures Act”; and common law claims for breach of contract, defamation,
outrage, and wrongful discharge (Id.).
According to her first amended complaint, Ms. Bass was employed as the Director of
Student Health Services at UAPB from her hiring in August 1996 until her discharge in April
2013. She claims that she performed her duties satisfactorily until her discharge and that she
worked without incident until 2006, when Mr. Bennett became the Coordinator of Student
Affairs at UAPB and Ms. Bass’s immediate supervisor (Dkt. No. 31, ¶13).
Ms. Bass asserts that, under the supervision of Mr. Bennett, defendants denied her “equal
pay, benefits and administrative support equal to that of similarly situated Directors of Student
Health Services within the University of Arkansas System who are not minority employees” and
denied her participation in savings, annuity and retirement programs made available to “similarly

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situated non-protected class employees of the University of Arkansas System.” (Dkt. No. 31, ¶
14). She alleges that she was hired at a pay rate less than the pay rate authorized for her position
within the UA System; that she did not receive a raise or bonus prior to 2009, despite regular
requests; and that Mr. Bennett refused to raise her pay or recommend a pay raise to make Ms.
Bass’s pay equal to that of other student health services directors in the UA System and other
directors in the UAPB student affairs department (Id., ¶ 14(b)). She further claims that the
Chancellor, Dr. Johnson, was slow, or failed, to address or act on Ms. Bass’s complaints
regarding pay inequity (Id., ¶ 14(c)).
Ms. Bass also claims that she worked under conditions in which her area was severely
understaffed as compared to the areas of similar directors and that, as a result, she was unable, or
not allowed by Mr. Bennett, to take time off. She asserts that she lost hundreds of hours of
accumulated personal leave, holiday leave, and accrued overtime as a result (Dkt. No. 31, ¶
14(b)). In addition, she claims that Mr. Bennett harassed her after she took four days of leave in
May 2009 while her assistant was also out of the office, which resulted in the health center being
closed for several days. Ms. Bass alleges that she complained to the Chancellor about Mr.
Bennett’s behavior but that the Chancellor did not respond. She asserts that she did not file a
formal grievance due to the Chancellor’s inaction and the increase in hostility from Mr. Bennett
“on the earlier grievance” (Id., ¶ 14(d)).
Ms. Bass alleges that Mr. Bennett, “with the approval or acquiescence of his supervisors,
including all Defendants named herein, undertook and carried out a pattern and practice of
conduct in violation of established Federal and State Constitutions and Laws, and of University
regulations and policy” (Dkt. No. 31, ¶ 15). She claims that Mr. Bennett “undermined, usurped
and, assigned” her authority and function as the Director of Health Services to a younger

3

employee and subordinate; harassed and belittled Ms. Bass alone and in the presence of others;
countermanded Ms. Bass’s directions on matters that should have been under Ms. Bass’s
authority; and overrode Ms. Bass’s customary role in selecting subordinate medical staff by
selecting unqualified, younger employees, all of which Ms. Bass claims hindered the
performance of her duties (Id.).
Ms. Bass further alleges that, within months of his hiring, Mr. Bennett made comments in
a staff meeting expressing concern that the deans and directors of his departments were over the
age of 50 and “old” (Dkt. No. 31, ¶ 15(b)). Ms. Bass claims that the deans and directors who
were at this meeting who were over the age of 50 have all been terminated or replaced by
younger workers and the females replaced by males. Ms. Bass claims that Mr. Bennett harassed,
ridiculed, and bullied her on multiple occasions between 2006 and 2013 (Id., ¶ 15(c)). She raises
various other alleged instances of hostility from Mr. Bennett, although she does not specifically
mention any improper motivations for these actions (Id., ¶ 15(d) – (g)). She claims that she
wrote the UAPB Chancellor, Dr. Johnson, following the “many confrontational actions” by Mr.
Bennett (Id., ¶ 16).
Ms. Bass alleges that Mr. Bennett effectively usurped her position as Director of Student
Health Services and effectively demoted her (Dkt. No. 31, ¶ 17). She bases this on various
allegations regarding a nurse, Ms. Holmes, whom Mr. Bennett allegedly hired in September
2011 over Ms. Bass’s objections and outside of proper hiring procedure. Ms. Bass claims that
Mr. Bennett made Ms. Holmes Ms. Bass’s permanent assistant in December 2011. She alleges
that Ms. Holmes engaged in insubordination and hostility that Mr. Bennett openly encouraged.
Ms. Bass states that she filed a grievance in December 2011 that Dr. Johnson refused to address
meaningfully (Id., ¶ 17(a)-(d)).

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Ms. Bass claims that, while she was on Family and Medical Leave in March 2012, Mr.
Bennett and Ms. Homes made major changes in the Student Services Operating Procedures
without Ms. Bass’s input or knowledge. Ms. Bass claims these changes essentially assigned her
authority to Ms. Holmes (Dkt. No. 31, ¶ 17(e)). Ms. Bass further alleges that Mr. Bennett and
unnamed others encouraged Ms. Holmes in late 2012 and early 2013 to initiate her own
grievance alleging harassment against Ms. Bass.

Ms. Bass maintains that, unlike when

addressing her December 2011 grievance, Dr. Johnson promptly scheduled Ms. Holmes’s
grievance for a hearing. Ms. Bass claims that Ms. Holmes’s grievance hearing was conducted in
a manner that was designed to favor Ms. Holmes and that, as a result, the panel determined that
Ms. Bass had harassed Ms. Holmes and imposed certain restrictions (Id., ¶ 17(f)-(i)).
Ms. Bass alleges that she was required to evaluate Ms. Holmes in December 2012 and
that, after giving Ms. Holmes demerits, Mr. Bennett badgered Ms. Bass and insisted she give Ms.
Holmes a more favorable evaluation.

Ms. Bass alleges that, from January 2013 until her

termination, she complained of Ms. Holmes’s insubordination and disruption of Ms. Bass’s
duties. She maintains that, in response, Mr. Bennett directed her “to come to work but ‘be on
vacation’ i.e. stay out of Holmes’ way.” (Dkt. No. 31, ¶ 18).
Ms. Bass states that she was terminated on April 19, 2013, without discussion, and told to
leave campus immediately. She states that she was terminated “supposedly for violations of the
corrective actions, but without explanation of the circumstances of the purported violation.” (Id.,
¶ 19). Ms. Bass does not specify the “corrective actions” to which she refers. She does not
provide any other details regarding her termination.
Ms. Bass alleges that she filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on April 26, 2012. Her Form 5 EEOC charge and intake

5

questionnaire are attached to her original complaint (Dkt. No. 1) and are discussed in more detail
below.
II.

Legal Standard

Defendants move to dismiss Ms. Bass’s first amended complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule
12(b)(6), a complaint must satisfy the pleading requirement of Rule 8(a)(2), which requires that a
complaint present “a short and plain statement of the claim that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2); see Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
“Specific facts are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks
omitted). However, the complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citations
omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “The plausibility standard requires a plaintiff to show at the pleading stage that success on
the merits is more than a ‘sheer possibility.’” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S.
at 678).

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III.

Parties

Defendants first move to dismiss Ms. Bass’s claims against UAPB arguing that it is not a
legal entity capable of being sued. UAPB is a campus of the University of Arkansas and is under
the management and control of the University of Arkansas’s Board of Trustees. Ark. Code Ann.
§ 6-64-303. Because UAPB is merely a campus of the University of Arkansas, it is not a legal
entity capable of being sued. See McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855,
860 n.2 (8th Cir. 2009) (“UAMS lacks the capacity to sue or be sued, because it is a campus of
the University of Arkansas and not a separate institution or corporate body.”); Greenwood v.
Ross, 778 F.2d 448, 449 n.1 (8th Cir. 1985) (The University of Arkansas at Little Rock “is a
component of the University of Arkansas. Arkansas state law designates the Board of Trustees
of the University of Arkansas as the entity capable of being sued.”); Assaad-Faltas v. Univ. of
Ark. for Med. Sciences, 708 F. Supp. 1026, 1029 (E.D. Ark. 1989) (“UAMS is not a separate
institution or a corporate body which has the capacity to sue or be sued.

Therefore, all

allegations directed at UAMS are dismissed for failure to state a claim upon which relief can be
granted.”), aff’d, 902 F.2d 1572 (8th Cir. 1990). The Court grants defendants’ motion to dismiss
UAPB as a defendant.
Ms. Bass states that, if the Court accepts defendants’ argument, all claims pleaded against
UAPB should be treated as if pleaded against the UA System. Defendants reply that the UA
System is not a proper party and that the proper party would be the Board of Trustees for the
University of Arkansas. The Court agrees with defendants’ position, but issues persist. In her
original complaint, in the body of the original complaint, Ms. Bass named as a party defendant
the “University of Arkansas System, through [its] Board of Trustees” (Dkt. No. 1, at 2, ¶ 3).
However, she did not identify the Board of Trustees in the style of her original complaint, the

7

docket sheet does not mention the Board of Trustees, and it does not appear to the Court that the
Board of Trustees was ever properly made a party to this suit. Although Ms. Bass’s first
amended complaint lists the “the UA System” as a party, it does not refer to the Board of
Trustees (Dkt. No. 31, ¶ 8). The Board of Trustees is not mentioned anywhere in her first
amended complaint. Ms. Bass did not list among her reasons for requesting leave to amend that
she wanted to alter the parties sued, but she makes no argument as to whether she intended to
make the Board of Trustees a defendant in the first place and whether naming as a defendant the
University of Arkansas System was sufficient to include the Board of Trustees.
Because Ms. Bass properly named the University of Arkansas System, through its Board
of Trustees, as a defendant in her original complaint (Dkt. No. 1) and persisted in naming the
University of Arkansas System as a defendant in all amended complaints, this Court will permit
Ms. Bass’s claims against the University of Arkansas System, through its Board of Trustees, to
proceed. See Martin v. Univ. of Arkansas for Med. Sciences, No. 4:08CV03617 JMM, 2008 WL
5231115, at *1 (E.D. Ark. 14, 2008) (“The Defendant is correct that UAMS is not an entity
capable of being sued. Rather, Plaintiff should have named the University of Arkansas or the
Board of Trustees of the University of Arkansas as the defendant in this case.” (citation
omitted)). The Court denies defendants’ motion to dismiss the University of Arkansas System as
a defendant in this case and construes Ms. Bass’s first amended complaint as naming the
University of Arkansas System through its Board of Trustees as a defendant in this matter.
Defendants also move to dismiss all claims against Dr. Johnson, asking the Court to take
judicial notice of the fact that Dr. Johnson served as UAPB’s Interim Chancellor until June 30,
2013, and is no longer in any position with the UAPB or any position in which he can provide
injunctive relief (Dkt. No. 33, at 17). Ms. Bass’s complaint does not state a clear intention to

8

plead individual capacity claims and thus names the individual defendants in their official
capacities only. See Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). Moreover, Ms.
Bass named Dr. Johnson as “Carl [sic] Johnson (or his predecessor in office)” (Dkt. No. 31, ¶ 9).
Ms. Bass claims in her response to defendants’ motion to dismiss that any official-capacity
liability, if present, would lie with Dr. Johnson’s successor. However, she asserts that individual
liability remains with Dr. Johnson and states that she will move to amend her pleadings to state
claims against all defendants in their individual capacities. To date, she has not made such a
request to amend through a formal motion, and defendants indicated in their reply that they
oppose such an amendment. The Court recognizes official capacity claims against those
currently holding the positions of Chancellor of the University of Arkansas – Pine Bluff and the
Coordinator of Student Affairs of the University of Arkansas – Pine Bluff.1 The Court finds that
Ms. Bass has not pleaded individual capacity claims against any named defendant.
Rule 25(d) of the Federal Rules of Civil Procedure provides that, when a public officer
who is a party to an action in an official capacity dies, resigns, or otherwise ceases to hold office
while the action is pending, the officer’s successor is automatically substituted as a party. The
Court may order substitution at any time, but the absence of such an order does not affect the
substitution. Id. The Court takes judicial notice that Dr. Laurence B. Alexander is UAPB’s
current Chancellor. Dr. Alexander is automatically substituted for Dr. Johnson pursuant to Rule
25(d). Because Ms. Bass has not pleaded any individual capacity claims against Dr. Johnson,

1

In her original complaint, Ms. Bass also named as a defendant Donald Bobbitt,
President of the UA System. In her first amended complaint, however, Ms. Bass does not list as
a defendant, or otherwise mention, Dr. Bobbitt or the President of the UA System. Nonetheless,
the parties proceed as if Dr. Bobbitt, in his official capacity, is still a party to this suit, and
defendants refer to Dr. Bobbitt in their filings as a named defendant.
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Dr. Johnson is no longer a party to this action. Accordingly, defendants’ motion to dismiss as to
Dr. Johnson is granted consistent with this Order.
The advisory committee’s notes to Rule 25 provide in part:
Where the successor does not intend to pursue the policy of his predecessor which
gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to
seek voluntary dismissal of the action, or as defendant to seek to have the action
dismissed as moot or to take other appropriate steps to avert a judgment or decree.
Fed. R. Civ. P. 25 advisory committee’s note to 1961 amendments. See also Tara Enters. v.
Humble, 622 F.2d 400, 401-02 (8th Cir. 1980). Defendants do not address Rule 25(d) or whether
Ms. Bass may seek to assert against Dr. Alexander claims based on Dr. Johnson’s alleged
conduct. The parties may address this issue by separate motion.
IV.

Federal Claims.
A.

42 U.S.C. §§ 1981 And 1983

The Court considers together Ms. Bass’s claims under 42 U.S.C. §§ 1981 and 1983
because a federal action to enforce rights under § 1981 against a state actor may only be brought
pursuant to § 1983. Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1181
(8th Cir. 1998).
Defendants move to dismiss Ms. Bass’s § 1983 claims as barred by the Eleventh
Amendment.

The sovereign immunity enjoyed by states and recognized in the Eleventh

Amendment bars private parties from bringing actions for damages against unconsenting states
in federal courts. Thomas v. St. Louis Bd. of Police Comm’rs, 447 F.3d 1082, 1084 (8th Cir.
2006). “The State of Arkansas did not waive its immunity, nor did Congress abrogate that
immunity when it enacted § 1983.” McCoy v. Carter-Jones Timber Co., 352 F. App’x 119, 121
(8th Cir. 2009) (citing Hadley v. N. Ark. Cmty. Tech. Coll., 76 F.3d 1437, 1438 (8th Cir. 1996)).
The Eleventh Amendment bars suit against the UA System for any kind of relief. Monroe v. Ark.

10

State Univ., 495 F.3d 591, 594 (8th Cir. 2007). Sovereign immunity also applies to a suit against
state employees in their official capacities, which is the functional equivalent of a suit against the
State. Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (citations omitted). However,
under the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), state officials may be sued
in their official capacities for prospective, injunctive relief to remedy ongoing violations of
federal law. Monroe, 495 F.3d at 594.
The Court grants defendants’ motion to dismiss Ms. Bass’s § 1983 claims against the UA
System, through its Board of Trustees, and her § 1983 claims for money damages against the
individual defendants in their official capacities; these claims are barred by the Eleventh
Amendment and dismissed with prejudice. Because Ms. Bass’s complaint alleges no individual
capacity claims, her only remaining § 1983 claims are her claims for prospective injunctive relief
against the individual defendants in their official capacities.
Defendants also move to dismiss as time-barred any § 1983 claim based on conduct
occurring prior to July 26, 2009. Ms. Bass’s § 1983 claims are governed by Arkansas’s general
personal-injury statute of limitations, which is three years. Ketchum v. City of W. Memphis, Ark.,
974 F.2d 81, 82 (8th Cir. 1992). The Court grants defendants’ motion to dismiss based on the
statute of limitations as to any § 1983 claims based on conduct occurring prior to July 26, 2009,
and these claims are dismissed with prejudice.
Defendants also move to dismiss Ms. Bass’s § 1983 claims against the UA System, Dr.
Bobbitt, and Dr. Johnson, arguing that Ms. Bass’s § 1983 claims are based on the alleged actions
of Mr. Bennett and a theory of respondeat superior. Because the UA System is immune to Ms.
Bass’s § 1983 claims, the Court need only consider this argument as to Dr. Bobbitt and Dr.
Johnson, to the extent that the parties have not addressed the liability of Dr. Johnson’s successor.

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The doctrine of respondeat superior does not apply to § 1983 cases. Iqbal, 556 U.S. at
676; Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014). “Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at
676. Nonetheless, “a supervisor may still be liable under § 1983 if either his direct action or his
‘failure to properly supervise and train the offending employee’ caused the constitutional
violation at issue.” Jackson, 747 F.3d at 543 (quoting Tlamka v. Serrell, 244 F.3d 628, 635 (8th
Cir. 2011) and citing Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989)). “Even if a supervisor is
not involved in day-to-day operations, his personal involvement may be found if he is involved
in ‘creating, applying, or interpreting a policy’ that gives rise to unconstitutional conditions.” Id.
(quoting Bonner v. Outlaw, 552 F.3d 673, 679 (8th Cir. 2009)). “In requiring a plaintiff to allege
that each defendant was personally involved in the deprivation of his constitutional rights, we
assess each defendant relative to his authority over the claimed constitutional violation.” Id.
The majority of Ms. Bass’s allegations are directed at Mr. Bennett. To the extent Ms.
Bass makes a conclusory allegation that Mr. Bennett acted “with the approval or acquiescence of
his supervisors, including all Defendants,” Ms. Bass seeks to impose liability on Dr. Bobbitt and
Dr. Johnson, or his successor, on a theory of respondeat superior (Dkt. No. 31, ¶15). Beyond
this, Ms. Bass does not allege any actions on the part of Dr. Bobbitt; in fact, her complaint never
specifically mentions Dr. Bobbitt. Accordingly, Ms. Bass has failed to state a plausible claim
under § 1983 against Dr. Bobbitt, Dr. Johnson, or Dr. Johnson’s successor. Therefore, the Court
dismisses Ms. Bass’s § 1983 claim against Dr. Bobbitt and Dr. Johnson, or his successor.
Defendants do not raise any other arguments as to Ms. Bass’s § 1983 claims or challenge
whether she sufficiently pleaded a claim under § 1983 against Mr. Bennett. Accordingly, this

12

case will proceed on Ms. Bass’s § 1983 claim against Mr. Bennett in his official capacity, for
prospective injunctive relief only. However, Ms. Bass cannot proceed on her retaliation claim
under § 1983. A plaintiff may not bring a retaliation claim for complaining of discrimination
under the guise of equal protection pursuant to § 1983. Burton v. Ark.s Sec’y of State, 737 F.3d
1219, 1236-37 (8th Cir. 2013).
B.

42 U.S.C. § 1985

Defendants move to dismiss Ms. Bass’s § 1985 claims as barred by sovereign immunity.
Sovereign immunity and the Eleventh Amendment bar Ms. Bass’s claims under 42 U.S.C. §
1985. Gleghorn v. Melton, No. CIV 04-6060, 2007 WL 1321838, at *3 (W.D. Ark. May 4,
2007), aff’d, 283 F. App’x 421 (8th Cir. 2008); Cohen v. Neb. Dep’t of Admin. Servs., Div. of
Cent. Data Processing, 83 F. Supp. 2d 1042, 1046 (D. Neb. 2000). The Court grants defendants’
motion to dismiss with prejudice as to Ms. Bass’s § 1985 claims against the UA System, through
its Board of Trustees, and her § 1985 claims for money damages against the individual
defendants in their official capacities.
Defendants also move to dismiss any claims under § 1985 that are barred by the statute of
limitations. Like her § 1983 claims, Ms. Bass’s § 1985 claims are governed by Arkansas’s
general three-year statute of limitations. Roach v. Owen, 689 F.2d 146, 146-47 (8th Cir. 1982).
Accordingly, claims based on alleged violations that occurred prior to July 26, 2009, are timebarred and, therefore, dismissed with prejudice.
As to any remaining claims under § 1985, defendants argue that Ms. Bass does not plead
sufficiently a claim under § 1985. To state a civil rights conspiracy claim under § 1985(3), Ms.
Bass must allege (1) that the defendants did “conspire,” (2) “for the purpose of depriving, either
directly or indirectly, any person or class of persons of equal protection of the laws, or equal

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privileges and immunities under the laws,” (3) that one or more of the conspirators did, or caused
to be done, “any act in furtherance of the object of the conspiracy,” and (4) that another person
was “injured in his person or property or deprived of having and exercising any right or privilege
of a citizen of the United States.” 42 U.S.C. § 1985(3); see Davis v. Jefferson Hosp. Ass’n, 685
F.3d 675, 684 (8th Cir. 2012). “The ‘purpose’ element of the conspiracy requires that the
plaintiff prove a class-based ‘invidiously discriminatory animus.’”

City of Omaha Emps.

Betterment Ass’n v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 & n.10 (1971)). Ms. Bass “must allege with particularity and
specifically demonstrate with material facts that the defendants reached an agreement.” Id. To
satisfy this burden, Ms. Bass must point to at least some facts which would suggest that
defendants reached an understanding to violate her rights. Id.
Ms. Bass’s only allegation directed at establishing a conspiracy is her claim that Mr.
Bennett acted “with the approval and acquiescence of his supervisors, including all Defendants
named herein,” in allegedly undermining Ms. Bass’s authority and verbally abusing and
belittling her (Dkt. No. 31, ¶ 15). First, although defendants do not raise the issue, the Court
notes that these allegations in paragraph 15 appear to be directed toward a claim of age
discrimination, and the weight of authority suggests that the ADEA is the exclusive remedy for
age discrimination. See Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1056-57 (9th Cir.
2009) (collecting cases and noting that “every other circuit to consider the question” has held
that “the ADEA is the exclusive remedy for age discrimination in employment claims[.]”); see
also Bradley v. Little Rock Wastewater Util., No. 4:10-CV-2019-DPM, 2012 WL 174382, at *1
(E.D. Ark. Jan. 20, 2012) (citing Ahlmeyer, holding that plaintiff could not pursue an ADEA
claim through § 1983), aff’d, 517 F. App’x 530 (8th Cir. 2013); Adair v. eStem Pub. Charter

14

Sch., No. 4:11-CV-541-DPM, 2012 WL 474019, at *2 (E.D. Ark. Feb. 14, 2012) (same as to §
1983 and § 1985 claims).
Regardless of whether Ms. Bass intends to assert a violation of a right protected by §
1985, the Court finds that Ms. Bass has pleaded only conclusory facts that are not sufficient to
suggest plausibly that defendants reached an agreement to violate her rights. Accordingly,
defendants’ motion to dismiss is granted as to Ms. Bass’s § 1985 claim, and the Court dismisses
that claim without prejudice.
C.

ADEA

Defendants move to dismiss Ms. Bass’s ADEA claims on the basis of the Eleventh
Amendment. The ADEA does not abrogate Eleventh Amendment immunity. Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 91 (2000) (holding that Congress did not validly abrogate the
States’ sovereign immunity to suits by private individuals, in enacting the ADEA).
The Court recognizes that Ms. Bass could have a viable claim under the ADEA for
prospective injunctive relief against the individual defendants in their official capacities. “Courts
in this circuit, including our own, have found prospective injunctive relief available to plaintiffs
who brought ADEA claims against state officials in their official capacities.” Drye v. Univ. of
Ark. for Med. Sciences ex rel. Univ. of Ark. Bd. of Trs., No. 4:09CV00922 JLH, 2011 WL
288564, at *1 (E.D. Ark. Jan. 27, 2011) (citing Hasty v. Neb. Dep’t of Educ., No. 4:09CV3196,
2010 WL 1552855, at *5 (D.Neb. Apr. 15, 2010); Fikse v. Iowa Third Judicial Dist. Dep’t of
Corr. Servs., 633 F. Supp. 2d 682, 692 (N.D. Iowa 2009); Jackson v. Univ. of Ark. for Med.
Sciences, No. 4:08CV04234-WRW, 2009 WL 890518, at *1-2 (E.D. Ark. Mar. 31, 2009)).
However, defendants argue that Ms. Bass’s claim for prospective injunctive relief under
the ADEA is moot because she is no longer employed by the UA System and because she failed

15

to file an EEOC charge for discriminatory or retaliatory discharge.

The Court considers

defendants’ exhaustion arguments below, which defendants raise with regard to both Title VII
and the ADEA. For the reasons stated below, the Court agrees with defendants that Ms. Bass
failed to exhaust her administrative remedies under Title VII and the ADEA as to any
discriminatory or retaliatory discharge claim. Therefore, Ms. Bass does not have a viable ADEA
claim based on her discharge for which she can seek prospective injunctive relief in the form of
reinstatement. For this reason, and because she alleges no individual capacity claims, her claims
under the ADEA are dismissed.
D.

Title VII And ADEA Exhaustion

Defendants move to dismiss for failure to exhaust administrative remedies Ms. Bass’s
sex, race, hostile work environment, discharge, and retaliation claims under Title VII, and her
discharge and retaliation claims under the ADEA. The Court will consider together exhaustion
under Title VII and the ADEA, although the Court is mindful that the EEOC enforcement
mechanisms for Title VII and the ADEA differ in some respects. See Fed. Exp. Corp. v.
Holowecki, 552 U.S. 389, 393 (2008).
In order to assert a Title VII or ADEA claim, Ms. Bass must have first exhausted her
administrative remedies by filing a charge of discrimination with the EEOC within 180 days
after the alleged unlawful employment practice occurred. 42 U.S.C § 2000e–5(e)(1); 29 U.S.C.
§ 626(d)(1)(B); see Hutson v. Wells Dairy, Inc., 578 F.3d 823, 825-26 (8th Cir. 2009) (discussing
together Title VII and ADEA charge filing requirements); Shelton v. Boeing Co., 399 F.3d 909,
912 (8th Cir. 2005) (discussing ADEA charge filing requirements). Exhaustion of administrative
remedies is required under Title VII and the ADEA because it provides the EEOC the first
opportunity to investigate discriminatory practices and enables it to perform its roles of obtaining

16

voluntary compliance and promoting conciliatory efforts. Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 222 (8th Cir. 1994) (Title VII); Shelton, 399 F.3d at 912 (ADEA).
“Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge
would circumscribe the EEOC’s investigatory and conciliatory role, as well as deprive the
charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC
charge.” Williams, 21 F.3d at 223 (quoting Babrocky v. Jewel Food Co. & Retail Meatcutters,
773 F.2d 857, 863 (7th Cir. 1985)).
Failure to exhaust administrative remedies under Title VII is an affirmative defense that a
defendant must prove. Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir.
2007) (per curiam). Further, “[a] claim may not be dismissed under Rule 12(b)(6) or Rule 56
where questions of material fact exist as to the timeliness of the complainant’s efforts to exhaust
it.” Brooks v. Midwest Heart Grp., 655 F.3d 796, 800 (8th Cir. 2011). At the pleading stage, if
there is a doubt as to whether a claim is timely exhausted due to differences in the alleged dates
of discrimination between the EEOC charge and the complaint, the court should liberally
construe the complaint in the plaintiff’s favor. Williams v. Target Stores, 479 F. App’x 26, 28
(8th Cir. 2012).
Defendants argue that Ms. Bass alleged only age discrimination in her charge of
discrimination filed with the EEOC in April 2012 and that she failed to check boxes at that time
indicating alleged discrimination on the basis of race or sex or alleged retaliation. Defendants
further argue that the particulars described in her charge mention nothing about race, sex,
retaliation, hostile work environment, or pattern and practice discrimination. In response, Ms.
Bass argues that her intake questionnaire alleges sex discrimination and acts constituting a
hostile work environment. Defendants contend in their reply that this questionnaire cannot be

17

considered because it is unsigned, undated, and carries no indicia of being received by the EEOC
or forming the basis for any investigation that the EEOC conducted. Lastly, defendants argue
that Ms. Bass failed to amend her April 2012 charge or to file a new charge to assert any Title
VII or ADEA claim based on her termination in April 2013. Ms. Bass does not address this
argument.
At this stage of the proceedings, the Court will consider Ms. Bass’s intake questionnaire.
The lack of a verification or date is not necessarily fatal to considering the intake questionnaire
to be a part of her charge. First, the ADEA does not require that a charge be verified. See 29
U.S.C. § 626; Shempert v. Harwick Chem. Corp., 151 F.3d 793, 797 (8th Cir. 1998). In contrast,
Title VII requires that administrative charges “be in writing under oath or affirmation,” 42
U.S.C. § 2000e-5(b), and the Eighth Circuit has consistently held that intake questionnaires
which are neither signed under oath nor verified do not satisfy the statutory requirement for an
administrative charge under Title VII, Shempert, 151 F.3d at 796 (refusing to allow verified
charge to relate back to filing date of unverified intake questionnaire). However, the Supreme
Court’s decision in Edelman v. Lynchburg College, 535 U.S. 106 (2002), appears to have
overruled Shempert and related cases to the extent that the Supreme Court validated the EEOC
regulation, 29 C.F.R. § 1601.12(b), permitting a charge to be amended to “cure technical defects
or omissions, including failure to verify the charge, or to clarify and amplify allegations made
therein.” See Brooks, 655 F.3d at 801 (construing the holding of Edelman); Sifferman v. Bd. of
Regents, Se. Mo. State Univ., 250 F. Supp. 2d 1139, 1143 (E.D. Mo. 2003) (recognizing
Edelman’s apparent overruling of Shempert, 151 F.3d 793).
Although Ms. Bass’s intake questionnaire is undated, she indicated in the intake
questionnaire that she had not previously filed a charge with the EEOC and checked the box

18

indicating her intent to file a charge, both of which suggest that her verified and dated charge
was filed after the intake questionnaire was submitted (Dkt. No. 1, at 9). Construing these facts
in the light most favorable to Ms. Bass at this stage of the proceeding and determining for
purposes of resolving this motion only that Ms. Bass filed her charge after her intake
questionnaire was submitted, under the reasoning of Edelman, the failure to sign her intake form
is not fatal to considering it as a part of her charge if she later perfected it by filing her Form 5
charge. Sifferman, 250 F. Supp. 2d at 1143.
Turning to Ms. Bass’s Form 5 charge and intake questionnaire attached to her original
complaint, in her Form 5 charge, Ms. Bass refers to conflicts she encountered after an employee
was appointed as a Registered Nurse (“RN”) in Ms. Bass’s department while Ms. Bass was on
vacation in June 2011, claiming that she was not allowed to perform her duties as director over
the RN and stating that she believed this was because of her age, in violation of the ADEA. On
her Form 5 charge, she only checked age discrimination; she did not check race, sex, or
retaliation (Dkt. No. 1, at 11). On her intake questionnaire, Ms. Bass checked sex and age
discrimination; she did not check race or retaliation (Dkt. No. 1, at 7).

On her intake

questionnaire, she states she began encountering problems when Mr. Bennett was hired as her
supervisor in 2006, specifically referring to, and elaborating on, the conflicts that allegedly
occurred after Mr. Bennett hired the RN in June 2011 while Ms. Bass was on vacation. She uses
the term “hostile work environment” in reference to these claims, and she attributes the
discrimination to age and sex, stating that “age is a major factor” and that “females seem to be
displaced more than males; younger employees are replacing older workers” (Dkt. No. 1, at 7,
10).

19

Based on the above, the Court concludes at this stage of the proceeding that this Court
will not dismiss for failure to exhaust her administrative remedies Ms. Bass’s sex and age
discrimination and hostile work environment claims under Title VII and the ADEA, except as to
certain discrete acts as discussed below. The Court notes that, as discovery progresses, the
parties may inquire into facts regarding these matters, including without limitation facts such as
whether the EEOC actually received Ms. Bass’s intake questionnaire and whether the intake
questionnaire formed the basis for any EEOC investigation. If appropriate based on discovery,
the parties may raise by motion for summary judgment the issue of exhaustion as to her sex
discrimination and hostile work environment claims.
The Court finds that Ms. Bass failed to exhaust her administrative remedies as to her Title
VII race discrimination claim. Her Form 5 charge and intake questionnaire do not mention race
discrimination. Ms. Bass does not contend otherwise. In her response to defendants’ motion to
dismiss, she only argues that she “checked sex and age as grounds for her claim” on her intake
questionnaire (Dkt. No. 36, at 15). She does not make an argument as to race discrimination.
The Court grants defendants’ motion to dismiss as to Ms. Bass’s Title VII race discrimination
claims.
As to retaliation, Ms. Bass did not check retaliation on either her Form 5 charge or her
intake questionnaire. However, Ms. Bass argues that her intake questionnaire alleges numerous
instances of retaliation.

Defendants fail to address specifically this argument or whether

retaliation is sufficiently raised in the factual allegations listed on the intake questionnaire. The
Court denies without prejudice defendants’ motion to dismiss as to Ms. Bass’s retaliation claims
purportedly raised in her EEOC charge.

20

However, the Court agrees with defendants that Ms. Bass failed to exhaust her
administrative remedies as any Title VII or ADEA discrimination or retaliation claim specifically
based on her termination on April 13, 2013. As stated above, Title VII and the ADEA require
Ms. Bass to file a charge of discrimination with the EEOC within 180 days after the alleged
unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626 (d)(1)(A).
Ms. Bass filed her Form 5 charge in April 2012 and apparently filed her intake charge around
that time. Ms. Bass does not allege or argue that she filed a subsequent EEOC charge after her
termination a year later in April 2013. Accordingly, defendants argue that Ms. Bass’s Title VII
and ADEA claims of discrimination and retaliation based on her termination in April 2013 are
beyond the scope of her EEOC charge and are time-barred.
In response, Ms. Bass apparently seeks to invoke the continuing violation theory,
referring to her EEOC charge as “a continuation complaint” (Dkt. No. 36, at 15). At one time,
the Eighth Circuit, like other circuit courts, permitted a finding that a subsequent retaliation
claim growing out of an EEOC discrimination complaint was sufficiently related to be within the
scope of the lawsuit. See Wedow v. City of Kansas City, Mo., 442 F.3d 661, 672 (8th Cir. 2006)
(discussing Wentz v. Maryland Casualty Co., 869 F.2d 1153 (8th Cir. 1989) (ADEA context)).
However, the Supreme Court has since explained that the continuing violation theory does not
encompass discrete acts of discriminatory or retaliatory conduct. See Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 110-15 (2002) (Title VII context). “[D]iscrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at
113. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire
are easy to identify. Each incident of discrimination and each retaliatory adverse employment

21

decision constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114. “Each
discrete act is a different unlawful employment practice for which a separate charge is required.”
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012) (citing Morgan, 536 U.S.
at 114). See also Hutson v. Wells Dairy, Inc., 578 F.3d 823, 826 (8th Cir. 2009) (applying
Morgan to Title VII and ADEA claims and stating that “[a] termination is a discrete act, not a
continuing violation.”); Betz v. Chertoff, 578 F.3d 929, 937-38 (8th Cir. 2009) (also applying
Morgan in the ADEA context).
For the same reason, defendants argue that any acts occurring prior to 180-days before
the EEOC charge was filed are time-barred. The Court agrees to the extent that prior and
subsequent discrete acts are not actionable. Morgan, 536 U.S. at 115 (“All prior discrete
discriminatory acts are untimely filed and no longer actionable.”); Richter, 686 F.3d at 852-53
(finding Morgan’s holdings as to discrete acts equally applicable to incidents occurring after the
filing of plaintiff’s EEOC charge).
The Court notes that there are different standards for exhausting hostile work
environment claims.

The Supreme Court in Morgan went on to explain that “[h]ostile

environment claims are different in kind from discrete acts. Their very nature involves repeated
conduct.” 536 U.S. at 115. “The ‘unlawful employment practice’ therefore cannot be said to
occur on any particular day. It occurs over a series of days or perhaps years and, in direct
contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id.
Because “incidents constituting a hostile work environment are part of one unlawful employment
practice, the employer may be liable for all acts that are part of this single claim.” Id. at 118. In
order for the charge to be timely, Ms. Bass need only file a charge within 180 days of any act
that is part of the hostile work environment. Id. See also Betz, 578 F.3d at 937-38 (in Title VII

22

and ADEA context, stating that “[t]he Supreme Court has held that the continuing violation
doctrine applies in hostile work environment claims, where, although one incident may not
support a claim, the claim may be supported by a series of incidents that occur over a period of
time” (citing Morgan 536 U.S. at 122)).
Accordingly, because the Court concludes at this stage of the proceedings that Ms. Bass’s
hostile work environment claims under Title VII and the ADEA survive defendants’ motion to
dismiss, her entire hostile work environment claim is timely. This does not, however, salvage
Ms. Bass’s Title VII and ADEA claims based on her termination in April 2013, as termination is
an easily identifiable discrete act to which the continuing violation doctrine does not apply and
for which a separate charge is required. Morgan, 536 U.S. at 113-14; Richter, 686 F.3d at 851.
The Court notes that Ms. Bass named Mr. Bennett and Dr. Johnson as her supervisors.
Supervisors may not be held individually liable under Title VII. Clegg v. Ark. Dep’t of Corr.,
496 F.3d 922, 931 (8th Cir. 2007). However, public officials may be named as defendants in
their official capacities under Title VII and are viewed as agents of the employer; the employer
remains liable for the alleged Title VII violation committed by its agents. Walpole v. Univ. of
AR, No. 4:07CV00164-WRW, 2007 WL 4365533, at *1 (E.D. Ark. Dec. 10, 2007) (citing
Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990); In re Montgomery County, 215 F.3d 367,
372-373 (3rd Cir. 2000)). Because Ms. Bass sues the individual defendants in their official
capacities only, her claims against the individual defendants are legally sufficient under Title VII
to the extent the individual defendants are viewed as agents of the UA System and its Board of
Trustees.

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E.

Equal Pay Act

Ms. Bass asserts a claim of wage discrimination under the EPA. Defendants move to
dismiss, arguing that Ms. Bass has not sufficiently alleged a claim under the EPA.
Generally speaking, the EPA prohibits wage discrimination on the basis of sex. 29
U.S.C. § 206(d)(1); Tenkku v. Normandy Bank, 348 F.3d 737, 740 (8th Cir. 2003). A prima facie
case under the EPA requires a showing that plaintiff’s employer discriminated on the basis of sex
by paying different wages to employees of the opposite sexes “for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions.” 29 U.S.C. § 206(d)(1); Price v. N. States Power Co., 664
F.3d 1186, 1192-93 (8th Cir. 2011). “Equal pay for equal work is what the [statute] requires, and
those elements are the focus of the prima facie case.” Price, 664 F.3d at 1192-93. “Application
of the Equal Pay Act depends not on job titles or classifications but on the actual requirements
and performance of the job.” Simpson v. Merchants & Planters Bank, 441 F.3d 572, 578 (8th
Cir. 2006) (quoting EEOC v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir.
1981)).
Defendants argue that Ms. Bass has not alleged any facts that she was paid less than male
workers for equal work because of her sex. Defendants note that the only specifics Ms. Bass
offers on her equal pay claim appear to be race-based, in that she alleges in paragraph 14 of her
first amended complaint that “Defendants denied Plaintiff equal pay, benefits and administrative
support equal to that of similarly situated Directors of Student Health Services within the
University of Arkansas System who are not minority employees . . . .” (Dkt. No. 31, ¶ 14)
(emphasis added). Ms. Bass’s only other references to equal pay are her conclusory statements

24

in paragraph 17 of her first amended complaint that she was denied equal pay, without any
elaboration as to why she believes this occurred.
In her response to defendants’ motion to dismiss, Ms. Bass quotes the statutory text of 29
U.S.C. § 206(d)(1) and states that she has pleaded “that she was paid at a lower rate, and
received fewer raises and bonuses than were male Directors of similarly situated [Directors of]
Student Health Services with similar seniority.” (Dkt. No. 36, at 18). Ms. Bass does not cite any
potion of her first amended complaint in which these allegations appear. Ms. Bass never alleges
in her first amended complaint that she was paid at a lower rate than male directors; as the only
specific allegation she makes of pay disparity appears to be race-based, claiming that she was
paid less than other directors “who are not minority employees.” (Dkt. No. 31, ¶ 14). Ms. Bass
may not amend her complaint in her response to defendants’ motion to dismiss. Morgan Distrib.
Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989). Because Ms. Bass does not allege
pay disparity between males and females, she fails to state a claim under the EPA. The Court
grants defendants’ motion to dismiss as to Ms. Bass’s claims under the EPA.
F.

FMLA

Defendants raise three grounds for dismissal of Ms. Bass’s FMLA claim: sovereign
immunity, the claimed insufficiency of her pleadings, and the statute of limitations.
The Court finds that Ms. Bass’s FMLA claims are too unclear for the Court to determine
whether the claims are barred by the Eleventh Amendment. Defendants are correct that States
are entitled to Eleventh Amendment immunity against suits for alleged violations of the FMLA
self-care provision, 29 U.S.C. § 2612(a)(1)(D). Coleman v. Court of Appeals of Md., 132 S. Ct.
1327, 1332, 1338 (2012) (“[S]uits against States under this provision are barred by the States’
immunity as sovereigns in our federal system” because Congress did not validly abrogate States’

25

sovereign immunity from suits for money damages in enacting the FMLA’s self-care provision).
However, States are not immune from suit for alleged violations of the FMLA’s family-care
provision, 29 U.S.C. § 2612(a)(1)(C). See Nev. Dep’t of Human Resources v. Hibbs, 538 U.S.
721, 730-32, 740 (2003) (holding that Congress validly abrogated State sovereign immunity for
violations of the family-care provision, § 2612(a)(1)(C), which was enacted in response to
gender discrimination in family-leave policies).
Here, it is not clear under what provision of the FMLA Ms. Bass seeks to recover
damages. Her complaints are silent as to the reason she allegedly took or attempted to take leave
under the FMLA. To the extent Ms. Bass asserts a claim based on the FMLA’s self-care
provision, defendants’ motion to dismiss on the basis of the Eleventh Amendment is granted.
Her claim based on the FMLA’s self-care provision, if any, is dismissed as to the UA System,
through its Board of Trustees, and to the extent she seeks money damages from the individual
defendants in their official capacities.
To the extent Ms. Bass alleges claims based on the FMLA’s family-care provisions or
otherwise viable FMLA claims, the Court determines that Ms. Bass has not pleaded sufficiently a
claim under the FMLA. The FMLA entitles a qualifying employee to 12 workweeks of leave
during any 12-month period if the employee meets certain statutory requirements. 29 U.S.C. §
2612(a)(1). Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012).
The Eighth Circuit has recognized three types of claims arising under two subsections of the
FMLA dealing with prohibited acts: (1) “entitlement” claims, or “interference” claims, arising
under § 2615(a)(1), which occurs when an employer takes action to avoid responsibilities under
the FMLA such as refusing to authorize leave; (2) “retaliation” claims, arising under §
2615(a)(2), which occurs when an employer takes an adverse action against an employee for

26

opposing any practice made unlawful under the FMLA; and (3) “discrimination” claims, arising
under § 2615(a)(1), which occurs when an employer takes adverse action against an employee
because the employee exercises rights to which he is entitled under the FMLA. Brown v. City of
Jacksonville, 711 F.3d 883, 890-91 (8th Cir. 2013) (citing Pulczinski, 691 F.3d at 1005-06;
Lovland v. Emp’rs Mut. Cas. Co., 674 F.3d 806, 811 (8th Cir. 2012)).
“A claim under the FMLA cannot succeed unless the plaintiff can show that he gave his
employer adequate and timely notice of his need for leave . . . .” Rynders v. Williams, 650 F.3d
1188, 1196 (8th Cir. 2011) (quoting Woods v. DaimlerChrysler Corp., 409 F.3d 984, 991 (8th
Cir. 2005)). “An employee seeking FMLA leave must give the employer notice of the need for
leave and indicate when she anticipates returning to work.” Hager v. Ark. Dep’t of Health, 735
F.3d 1009, 1015-16 (8th Cir. 2013) (citing Scobey v. Nucor Steel–Ark., 580 F.3d 781, 789-90
(8th Cir. 2009)). When the leave is foreseeable, the employee must give at least 30 days’ notice.
29 C.F.R. § 825.302(a). When the leave is not foreseeable, “an employee must provide notice to
the employer as soon as practicable under the facts and circumstances of the particular case.” 29
C.F.R. § 825.303(a).
The only specific reference to the FMLA in Ms. Bass’s first amended complaint is her
allegation in paragraph 17 that she was on FMLA leave in March 2012 when Mr. Bennett and
Ms. Holmes made major changes in the Student Services Operating Procedures without Ms.
Bass’s input or knowledge, which she claims essentially assigned to Ms. Holmes much of Ms.
Bass’s authority as Director of Student Health Services (Dkt. No. 31, ¶ 17(e)). These allegations
do not provide fair notice of the nature and basis of Ms. Bass’s claim, and they are insufficient to
state a claim under the FMLA upon which relief can be granted. Ms. Bass does not allege she
was denied leave or that defendants interfered with her FMLA rights. To the extent she refers to

27

actions taken while she was on leave, she does not allege any facts suggesting that those actions
were taken because of Ms. Bass’s leave. See Brown, 711 F.3d at 891 (stating that discrimination
and retaliation claims require proof of the employer’s discriminatory intent). Beyond stating that
she was “on FMLA leave,” Ms. Bass’s allegations are silent as to whether she provided timely
and adequate notice of her need for leave under the FMLA. See Hager, 735 F.3d at 1016
(reversing district court’s denial of a motion to dismiss as to plaintiff’s FMLA claims and
holding that plaintiff failed to state an FMLA entitlement or discrimination claim where
plaintiff’s pleadings “at best suggest [defendant] was aware of her leave request immediately
prior to the appointment. [Plaintiff’s pleadings] do not assert that she provided notice within
thirty days or ‘as soon as practicable under the circumstances.’ Nor do they assert that she
indicated when she would return.”).
The only other allegation in Ms. Bass’s first amended complaint possibly pertaining to
FMLA is Ms. Bass’s allegation in paragraph 14(d) referring to actions Mr. Bennett took after
Ms. Bass requested and took four days of leave in May 2009. If Ms. Bass intended to raise an
FMLA claim based on these allegations, that claim is time-barred even if the Court applies the
three-year statute of limitations for alleged willful violations as Ms. Bass advocates. See 29
U.S.C. § 2617(c)(1), (2).
In her response to defendants’ motion to dismiss, Ms. Bass attempts to raise FMLA
claims that are not stated in her first amended complaint. First, she asserts that she has alleged
that she was forced to return early from FMLA leave (Dkt. No. 36, at 13, 18). Ms. Bass does not
make such an allegation in her first amended complaint. Ms. Bass also alleges in her response
that, after she returned from leave, Mr. Bennett discourage any future exercise of FMLA rights
by telling Ms. Bass “you stay in your office and act like you are on vacation” (Id. at 13). Her

28

first amended complaint alleges that Mr. Bennett made such a statement, but her first amended
complaint does not allege that this was in any way connected to the FMLA leave Ms. Bass
allegedly took in March 2012 or to the FMLA in general. Rather, Ms. Bass’s first amended
complaint alleges that this occurred in January 2013 in response to her complaints regarding her
subordinate (Dkt. No. 31, ¶ 19). Ms. Bass may not amend the allegations of her first amended
complaint in her response to defendants’ motion to dismiss. Morgan, 868 F.2d at 995.
For these reasons, the Court grants defendants’ motion to dismiss as to Ms. Bass’s FMLA
claims, and her FMLA claims are dismissed.
V.

State Law Claims

Defendants also move to dismiss Ms. Bass’s state-law claims on the basis of the Eleventh
Amendment. The Eleventh Amendment “applies with equal force to pendent state law claims.”
Cooper v. St. Cloud State Univ., 226 F.3d 964, 968 (8th Cir. 2000) (citing Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 120-21 (1984)). Further, the Ex Parte Young exception to
Eleventh Amendment immunity does not apply to alleged violations of state law. Halderman,
465 U.S. at 106.
“The test for determining whether a State has waived its immunity from federal court
jurisdiction is a stringent one.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). A
State “is deemed to have waived its immunity only where stated by the most express language or
by such overwhelming implication from the text as will leave no room for any other reasonable
construction.” Id. at 239-40. “The interests of Federalism require that such a waiver be clear
and unequivocal.” Burk v. Beene, 948 F.2d 489, 493 (8th Cir. 1991); Cooper, 226 F.3d at 969.
Ms. Bass points to no authority for finding that Arkansas has waived its immunity from
suit on her state law claims. The weight of authority is to the contrary. See Ark. Code Ann. §

29

16-123-104 (“Nothing in [the Arkansas Civil Rights Act of 1993] shall be construed to waive the
sovereign immunity of the State of Arkansas.”); Dover Elevator Co. v. Ark. State Univ., 64 F.3d
442, 447 (8th Cir. 1995) (finding university and its trustees, in their official capacity, immune
from plaintiff’s state law breach of contract action); Weatherford v. Ark. State Univ., No.
3:09CV00071JMM, 2009 WL 4610400, at *2 (E.D. Ark. Dec. 2, 2009) (holding that claim based
on defamation of character was barred by sovereign immunity); Davenport v. Bd. of Trs. Univ.
of Ark., No. 5:05CV00213 JLH, 2007 WL 1444278, at *2 (E.D. Ark. May 15, 2007) (dismissing
official capacity claims of outrage as barred by the Eleventh Amendment); Bd. of Trs. of Univ. of
Ark. v. Burcham, 2014 Ark. 61, at 1 (holding that complaint for wrongful termination was barred
by sovereign immunity).
Ms. Bass’s state-law claims against the UA System, through its Board of Trustees, and
defendants in their official-capacities are barred by sovereign immunity. Because she alleged no
individual capacity claims, her state law claims are dismissed. The Court need not address
defendants’ claims for state statutory immunity or other arguments for dismissal of the state law
claims.
*

*

*

The Court denies as moot defendants’ motion for judgment on the pleadings (Dkt. No.
28). For the reasons stated above, the Court grants in part and denies in part defendants’ motion
to dismiss Ms. Bass’s first amended complaint (Dkt. No. 32). The Court rules as follows:
1.

The Court grants defendants’ motion to dismiss UAPB as a defendant.

2.

The Court denies defendants’ motion to dismiss the UA System as a defendant in

this case and construes Ms. Bass’s first amended complaint as naming the University of
Arkansas System through its Board of Trustees as a defendant in this matter.

30

3.

The Court recognizes official capacity claims against those currently holding the

positions of Chancellor of the University of Arkansas – Pine Bluff and the Coordinator of
Student Affairs of the University of Arkansas – Pine Bluff. Dr. Laurence B. Alexander,
the current UAPB Chancellor, is automatically substituted for defendant Dr. Calvin
Johnson. Consistent with this Order, the Court grants defendants’ motion to dismiss Dr.
Johnson as a defendant.
4.

The Court grants defendants’ motion to dismiss as to Ms. Bass’s claims under 42

U.S.C. §§ 1981 and 1983. The Court dismisses with prejudice Ms. Bass’s §§ 1981 and
1983 claims against the UA System and for money damages against the individual
defendants in their official capacities, as well as any §§ 1981 and 1983 claims based on
conduct occurring prior to July 26, 2009. Ms. Bass’s remaining §§ 1981 and 1983 claims
against Dr. Bobbitt and Dr. Johnson, or his successor, in their official capacities are
dismissed without prejudice. Ms. Bass’s §§ 1981 and 1983 claims against Mr. Bennett in
his official capacity, for prospective injunctive relief, will proceed.
5.

The Court grants defendants’ motion to dismiss as to Ms. Bass’s claims under 42

U.S.C. § 1985 and dismisses with prejudice Ms. Bass’s § 1985 claims against the UA
System, § 1985 claims against the individual defendants for money damages, and § 1985
claims based on conduct occurring prior to July 26, 2009. The Court dismisses without
prejudice all other § 1985 claims.
6.

The Court grants defendants’ motion to dismiss as to Ms. Bass’s ADEA claims

and dismisses with prejudice Ms. Bass’s ADEA claims.
7.

The Court grants defendants’ motion to dismiss as to Ms. Bass’s Title VII claims

for race discrimination, as well as any claims based on Ms. Bass’s termination in April

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2013. The Court denies the motion as to sex discrimination, retaliation, and hostile work
environment claims that are within the scope of Ms. Bass’s April 2012 EEOC charge.
8.

The Court grants defendants’ motion to dismiss as to Ms. Bass’s EPA claims and

dismisses those claims without prejudice.
9.

The Court grants defendants’ motion to dismiss as to Ms. Bass’s FMLA claims.

The Court dismisses with prejudice Ms. Bass’s FMLA claims based on conduct occurring
prior to July 27, 2009, and any claims based on the FMLA’s self-care provision. The
Court dismisses without prejudice any remaining claims based on the FMLA’s familycare provisions.
10.

The Court grants defendants’ motion to dismiss with prejudice as to Ms. Bass’s

state law claims against the UA System, through its Board of Trustees, and defendants in
their official capacities.
This case will proceed on Ms. Bass’s claims under 42 U.S.C. §§ 1981 and 1983 against
Mr. Bennett in his official capacity, for prospective injunctive relief only, and on Ms. Bass’s
Title VII sex discrimination, retaliation, and hostile work environment claims that are within the
scope of her April 2012 EEOC charge.
SO ORDERED this the 16th day of September, 2014.

________________________________
Kristine G. Baker
United States District Judge

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