Van Horn v. Martin et al
ORDER granting in part and denying in part 4 Motion to Dismiss; granting 9 Motion to Amend/Correct complaint, as modified. Van Horn must file an amended complaint by August 30, 2013. She must revise her proposed amended complaint to conform to the rulings in this Order. Signed by Judge D. P. Marshall Jr. on 8/20/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
YEVONNE VAN HORN
MARK MARTIN, in his official capacity
as Arkansas Secretary of State; and
DARRELL S. HEDDEN, in his individual
and official capacity as Chief of Police for
the State Capitol Police
Arkansas Secretary of State Mark Martin and State Capitol Police Chief
Darrell Hedden move to dismiss Yevonne Van Horn's employment
discrimination claims for many reasons. Ng 4. Van Horn was an officer with
the State Capitol Police for more than twelve years. She fell asleep on the job
and was fired. She says the sleeping was caused by prescribed medication,
which her supervisors knew about. And she alleges that her race, her gender,
and retaliation for prior discrimination claims prompted her firing in June
2012. Ng 1. Secretary Martin and Chief Hedden say that all Van Horn's
claims fail for some reason.
Van Horn disputes all the arguments for
dismissal and asks for leave to file a somewhat curative amended complaint.
NQ 7 & 9. The motion to dismiss, NQ 4, is granted in part and denied in part.
Leave to amend is granted. FED. R. CIV. P. 15(a). Van Horn must file an
amended complaint by 30 August 2013. She must revise her proposed
amended complaint to conform to the rulings in this Order.
1. Immunities. The sovereign immunity embodied in the Eleventh
Amendment bars many claims in federal court against state officers in their
official capacities. But the bar does not reach Title VII and certain FMLA
claims. Okruhlik v. Univ. of Arkansas, 255 F.3d 615, 627-28 (8th Cir. 2001);
Nevada Dep't of Human Resources v. Hibbs,538 U.S. 721,724-25 (2003). And the
possibility of some prospective relief, injunctive or declaratory, remains on
the table. Edelman v. Jordan, 415 U.S. 651,663-69 (1974). Van Horn's claims for
damages under the Arkansas Civil Rights Act and§ 1983, however, are barred
as to Secretary Martin and Chief Hedden in their official capacities as a matter
Qualified immunity protects Chief Hedden against Van Horn's claims
if his conduct did "not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Monroe v. Ark. State
Univ., 495 F.3d 591,594 (8th Cir. 2007) (quotation omitted). In June 2011, Van
Horn alleges that Hedden expressed displeasure about her taking FMLA
leave and told others that he wanted to fire her for it. NQ 1 at ,-r10. She also
alleges that Hedden imposed more severe punishment on her than on male
co-workers because she was a woman and ultimately recommended her
termination. NQ 1 at 3-4. In particular, she says that a male officer was
promoted, not disciplined, after he fell asleep on the job, while she was fired
for falling asleep. NQ 1 at 4-5. The Court must accept all these allegations as
truth at this point. And they establish a violation of Van Horn's clearly
established rights under Title VII, § 1983, and the FMLA.
Arkansas law also provides Chief Hedden individually with immunity
from liability and from suit if the state-law claims are neither covered by
liability insurance nor malicious. ARK. CODE ANN.§ 19-10-305. Van Horn has
not pleaded the liability-insurance exception. She has pleaded malice and
reckless indifference, though only in a conclusory and general way. NQ 1 at
11; NQ 9 at 12. Her ACRA claims against Hedden in his individual capacity
are therefore dismissed without prejudice.
2. Adequacy of Pleadings. The Court accepts the pleaded facts as true
and views them in the light most favorable to Van Horn. Great Rivers Habitat
Alliance v. Federal Emergency Management Agency, 615 F.3d 985, 988 (8th Cir.
2010). Has Van Horn pleaded facts that nudge her complaint over the line of
possible to plausible? Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). She has.
Van Horn says that white male officers who engaged in the same or similar
conduct were treated more favorably. NQ 1 at 3-8. Chief Hedden, she has
pleaded, said he wanted to fire her for taking FMLA leave. NQ 1 at 3. The
timing of her termination relative to her FMLA leave seems like a stretch,
though the precise dates are a bit murky. NQ 1 at 3 & 10. But a direct
statement like Hedden's is rare and powerful.
Van Horn's claims are
plausible against the backdrop of her allegations about racial bias and antiFMLA sentiment within the Department. NQ 1 at 3-8.
3. Title VII- Failure to Exhaust. Exhaustion is usually resolved on the
face of the complaint and the EEOC charge, but this case is unusual. There
were, it seems, two charges. Only the second is attached to the complaint. NQ
1 at 13. It was made against the" AR Secretary of State Police," not Secretary
Martin. But Van Horn says, in opposing the motion to dismiss, that officials
from the Secretary of State's office responded to the EEOC charges and
participated in conciliation meetings with the EEOC about one or both
charges. NQ 8 at 3-4. In these circumstances, holding that a failure to exhaust
occurred based on the misnomer appears contrary to the principles that
inform exhaustion doctrine. Shempert v. Harwick Chemical Corp., 151 F.3d 793,
797-98 (8th Cir. 1998). Secretary Martin may well have a good limitations
defense against any claim arising from the first firing. Van Horn, though,
appears only to assert retaliation for filing charge number one in the second
firing. That claim is timely. Here again, clearer pleading and some discovery
should clear up the record.
4. Title VII- Employer. Van Horn's proposed amended complaint, NQ
7-1, adds some facts supporting the Title VII claim against Secretary Martin,
in his official capacity only, as an employer. But Chief Hedden, individually,
is not an employer under this statute. McCullough v. University ofArkansas for
Medical Sciences, 559 F.3d 855,860 n.2 (8th Cir. 2009); Bales v. Wal-Mart Stores,
Inc., 143 F.3d 1103, 1111 (8th Cir. 1998).
These claims will go forward against the parties indicated. A blank box
indicates that a claim has failed and is dismissed.
1) Disparate treatment on
the basis of race and
4) Gender and Race
Discrimination (13th &
Motion to dismiss, NQ 4, granted in part and denied in part. Motion to
amend, NQ 9, granted as modified. It would also be exceedingly helpful if Van
Horn would plead the months and years when important things happened- when
she took FMLA leave, was fired originally, and was reinstated. Conforming
amended complaint due by 30 August 2013.
D.P. Marshall Jr.
United States District Judge
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