Voss v. Housing Authority of the City of Magnolia, AR et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 16 ; granting and denying in parts 7 Motion to Dismiss (see order for specifics). Signed by Honorable Susan O. Hickey on March 23, 2016. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
PAUL VOSS
V.

PLAINTIFF
Case No. 15-cv-1001

HOUSING AUTHORITY OF THE CITY
OF MAGNOLIA, AR, et al.

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed November 5, 2015, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 16. Judge Bryant recommends that Defendants’ Motion to Dismiss (ECF No. 7) be
granted in part and denied in part. Defendants have responded with timely objections. ECF No.
17. Plaintiff has filed a response to Defendants’ objections. ECF No. 18. The Court finds the
matter ripe for consideration.
I. BACKGROUND
Plaintiff is a resident of Magnolia, Arkansas, and was employed by Defendant Housing
Authority, a municipal agency, as a maintenance supervisor for approximately fourteen years.
Defendant Richard Wyse is the Executive Director of the Housing Authority, and Plaintiff
alleges that Defendant Wyse was the director when a substantial part of the events, acts, and
omissions giving rise to this lawsuit occurred. Plaintiff sues Defendant Wyse in his individual
and official capacities. 1

1

Under 42 U.S.C. §1983, all claims against Defendant Wyse in his official capacity are construed as claims against
the Housing Authority. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (Naming a government
official in his or her official capacity is the equivalent of naming the government entity that employs the official.)

Plaintiff alleges that he told Defendant Wyse about discriminatory practices at the
Housing Authority. 2

Plaintiff claims that, in response to that discussion, Defendant Wyse

verbally reprimanded Plaintiff, intimidated him, and persistently denigrated him.

On

approximately March 13, 2014, Plaintiff was suspended from his position without pay so that the
Housing Authority could investigate a positive prescription drug screen result. On May 14,
2014, Plaintiff returned to work and allegedly informed Defendant Wyse of some health issues.
As a result, Plaintiff claims that the Housing Authority severely restricted his job duties.
Plaintiff filed suit against Defendants alleging the following causes of action:

(1)

disability discrimination pursuant to the Americans with Disabilities Act (“ADA”); (2) disability
discrimination pursuant to the Arkansas Civil Rights Act (“ACRA”); (3) violation of procedural
due process, presumably brought pursuant to 42 U.S.C. § 1983; (4) violation of the Fourteenth
Amendment’s Equal Protection Clause of the United States Constitution; (5) and Title VII
retaliation. Defendants filed a Motion to Dismiss all of Plaintiff’s claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). ECF No. 7. The Court referred the motion to the magistrate
judge for the purpose of making a Report and Recommendation.
The magistrate judge recommended that the following claims should be dismissed:
Plaintiff’s ADA and ACRA claims against Defendant Wyse in his individual capacity; Plaintiff’s
ACRA claim against Defendant Housing Authority of the City of Magnolia, Arkansas (“Housing
Authority”); and Plaintiff’s equal protection claim. The magistrate judge further recommended
that Plaintiff’s ADA claim, Plaintiff’s retaliation claim against the Housing Authority, and
Plaintiff’s due process claim should not be dismissed.

The magistrate judge inferred that

Plaintiff had stated a First Amendment retaliation claim and found that Defendant Wyse is not
entitled to qualified immunity. Defendants have filed objections to the following findings and
2

It is not clear from Plaintiff’s complaint when this discussion took place.

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recommendations:

Plaintiff’s due process claims should not be dismissed; Plaintiff has

sufficiently stated a First Amendment retaliation claim; and Defendant Wyse is not entitled to
qualified immunity.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief” so that Defendant will have “fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal quotations and citations omitted). “[W]hile a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation
to provide the grounds of his entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotations
and citations omitted). The complaint must set forth sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009).

“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,” but in contrast, “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant's liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556–67). “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. at 664.
III. DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1), the Court will conduct a de novo review of all issues
related to Defendants’ specific objections. Defendants points out in their objections that the

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Report and Recommendation does not address whether Plaintiff has sufficiently pled that he was
deprived of a constitutionally protected liberty interest or whether Plaintiff’s Title VII retaliation
claim against Defendant Wyse in his individual capacity should be dismissed. These issues have
been briefed by the parties, and the Court will address them in this Order, along with
Defendants’ objections to the issues that were addressed in the Report and Recommendation.
A. Due Process
The magistrate judge recommended that Plaintiff’s due process claim should not be
dismissed. Defendants, however, argue that Plaintiff’s due process claim should be dismissed
because the complaint does not allege a sufficient property interest. Although Plaintiff’s claim is
not artfully pled, the Court agrees with the magistrate judge that Plaintiff’s due process claim
based on a protected property interest should not be dismissed.
The Due Process Clause of the Fourteenth Amendment provides that, “[n]o State
shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Plaintiff alleges that Defendants “violated the Plaintiff’s due process
rights by arbitrarily placing him on leave and for delaying his pay during that leave.” ECF No.
1, p. 9. Plaintiff further alleges that “Defendants’ wrongful constructive termination of the
Plaintiff and diminishing his job capacity violated the due process rights of the Plaintiff.” ECF
No. 1, p. 9.
The Court agrees with the magistrate judge that it appears that Plaintiff is alleging a
procedural due process claim.

“A government employee is entitled to procedural due process

only when he has been deprived of a constitutionally protected property or liberty interest.”
Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994). A person must
have a legitimate claim of entitlement to his employment to have a property interest in it.” Id.

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“Whether an employee’s interest in [his] job rises to the level of a constitutionally protected
property right is a question of state law.” Allen v. City of Pocahontas, 340 F.3d 551, 555 (8th
Cir. 2003). Typically a property interest arises from contractual or statutory limitations on the
employer’s ability to terminate an employee. Winegar, 20 F.3d at 899. “A property interest in
employment can also be created by implied contract, arising out of customs, practices, and de
facto policies.” Id.
Here, Plaintiff’s complaint makes no reference to an express contract provision or an
Arkansas statute that would give rise to a protected property interest in his continued
employment. Plaintiff’s complaint, however, generally references “policies and procedures” of
the Housing Authority that allegedly deprived him of his constitutional rights. It appears that
Plaintiff is claiming a property interest based upon the existence of an implied contract
extrapolated from policies and procedures of the Housing Authority. Accordingly, the Court
finds that Plaintiff’s procedural due process claim based on the alleged deprivation of a
constitutionally protected property interest is sufficiently pled.
The magistrate judge’s Report and Recommendation (ECF No. 16) does not address
whether Plaintiff has sufficiently pled a procedural due process claim in connection with a
protected liberty interest. Defendants argue that any such claim should be dismissed. To set
forth a procedural due process claim, a plaintiff must first establish that his protected liberty
interest is at stake. Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 817 (8th Cir. 2011). “An
employee’s liberty interests are implicated where the employer levels accusations at the
employee that are so damaging as to make it difficult or impossible for the employee to escape
the stigma of those charges.” Winegar, 442 F.3d at 1110.

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In the present case, Plaintiff’s complaint states that “the actions of Defendant Wyse were
objectively unreasonable and constituted an unreasonable deprivation of liberty and property
interests of the Plaintiff without due process of law in violation of the Fourteenth Amendment.”
ECF No. 1, p. 9. Plaintiff does not identify the liberty interest of which he was allegedly
deprived, and he makes no allegations regarding actions or conduct by Defendants that deprived
him of such interest. Plaintiff’s only hint at a liberty interest is through the conclusory allegation
that Plaintiff was deprived of one. Absent from the complaint is any allegation of Defendants
leveling any type of damaging accusations at Plaintiff. The complaint contains no factual
allegations regarding damage to Plaintiff’s reputation. Thus, the Court finds that Plaintiff’s claim
that he was deprived of a constitutionally protected liberty interest is not sufficiently pled.
B. Retaliation
Defendants object to the magistrate judge’s finding that Plaintiff has set forth a cause of
action for retaliation in connection with the First Amendment. According to Defendants, they
did not move to dismiss any First Amendment retaliation claim because they did not discern any
such claim in Plaintiff’s complaint. The magistrate judge noted that Plaintiff’s complaint “does
not specifically state a violation of his First Amendment rights.” ECF No. 16. The magistrate
judge, however, stated that he would “infer at this stage” a claim that Defendants retaliated
against Plaintiff for exercising his free speech rights under the First Amendment.
To establish a free speech retaliation claim, a plaintiff must prove that he engaged in
protected activity and that this activity was a substantial or motivating factor in his employer’s
decision to terminate him. McCullough v. Univ. of Ark. for Medical Sciences, 559 F.3d 855, 855
(8th Cir. 2009). Plaintiff does not allege that he engaged in any activity that was protected by the
First Amendment. In fact, Plaintiff does not mention the First Amendment anywhere in his

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complaint. It appears that Plaintiff’s retaliation claim, which is set forth in the complaint under
“Count III – Retaliation,” is premised on alleged retaliation pursuant to “Title VII . . . for
reporting of discriminatory conduct.” ECF No. 1, p. 10. Plaintiff states that “[t]he acts and
failures to act of Defendant, by and through its supervisory agents and employees, constitute
unlawful conduct proscribed by 42 U.S.C. § 2000e et seq.” ECF No. 1, p. 11. In the retaliation
section of his complaint, Plaintiff alleges a Title VII retaliation claim for reporting
discriminatory conduct, which is conduct that is statutorily protected. Nowhere in the complaint
does Plaintiff allege that his retaliation claim is based on a violation of his First Amendment
Rights. Accordingly, the Court finds that Plaintiff has not sufficiently pled a First Amendment
retaliation claim, and the Court declines to adopt the sections of the Report and Recommendation
that infer such a claim.
C. Individual Liability Under Title VII
In Defendants’ brief in support of their Motion to Dismiss, they argue that Plaintiff’s
Title VII retaliation claim against Defendant Wyse in his individual capacity must be dismissed
because individual employees cannot be personally liable under Title VII. ECF No. 8, p. 16.
The Report and Recommendation, however, does not address this argument raised by
Defendants. Title VII claims, such as the claims Plaintiff asserts in this case, are applicable to
employers, not to individuals. See Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1147 (8th
Cir.2008) (noting that Title VII provides for actions against employers and not supervisors);
Powell v. Yellow Book USA, 445 F.3d 1074, 1079 (8th Cir.2006) (“Title VII addresses the
conduct of employers only and does not impose liability on coworkers [.]”). Plaintiff has
brought claims against Defendant Wyse individually and in his official capacity. However,

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Plaintiff’s Title VII retaliation claims against Defendant Wyse in his individual capacity must be
dismissed because there is no individual liability under Title VII.
D. Qualified Immunity
The doctrine of qualified immunity protects government actors from personal liability
under a Section 1983 claim “insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Two
questions are considered in determining whether officials are protected by qualified immunity:
(1) whether the facts alleged, viewed in the plaintiff's favor, support a finding that the conduct of
the defendants violated a constitutional right; and (2) whether that constitutional right was
“clearly established” at the time of the incident such that a reasonable officer would have known
that his or her actions were unlawful. Id., 555 U.S. at 232.
In the present case, the magistrate judge recommends that the Court deny qualified
immunity as to Defendant Wyse because (1) Plaintiff has alleged a Title VII retaliation claim; 3
and, (2) a cause of action for First Amendment retaliation is inferred at this stage of the
litigation. ECF No. 19, p. 7 and 9. The Court, however, has determined that the Title VII
retaliation claim against Defendant Wyse in his individual capacity should be dismissed, and the
Court also finds that Plaintiff’s First Amendment retaliation claim should be dismissed. Thus,
there is no need for the Court to consider whether Defendant Wyse is entitled to qualified

3

The Court notes that qualified immunity protects government actors from personal liability under a Section 1983
claim. Thus, whether Plaintiff has alleged a Title VII retaliation claim is not relevant to the qualified immunity
issue.

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immunity as to these two claims. Accordingly, the Court declines to adopt the magistrate
judge’s recommendation that Defendant Wyse is not entitled to qualified immunity. 4
IV. CONCLUSION
For the reasons stated above, the Court adopts the Report and Recommendation (ECF
No. 16) with the exception of any recommendations or findings regarding a First Amendment
retaliation claim and the issue of qualified immunity. Defendants’ Motion to Dismiss (ECF No.
7) as to the following claims is DENIED: Plaintiff’s ADA claim against the Housing Authority;
all of Plaintiff’s procedural due process claims based on the alleged deprivation of a
constitutionally protected property interest, and Plaintiff’s Title VII Retaliation claim against the
Housing Authority. Defendants’ Motion to Dismiss (ECF No. 7) as to the following claims is
GRANTED: Plaintiff’s ADA claim and Title VII retaliation claim against Defendant Wyse
individually; all of Plaintiff’s ACRA claims, all of Plaintiff’s equal protection claims; all of
Plaintiff’s procedural due process claims based on the alleged deprivation of a constitutionally
protected liberty interest; and all of Plaintiff’s First Amendment retaliation claims.
IT IS SO ORDERED, this 23rd day of March, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

4

The Report and Recommendation did not address whether Defendant Wyse is entitled to qualified immunity
regarding Plaintiff’s procedural due process claim. Defendant Wyse is allowed to assert at a later time,
circumstances permitting, that he is entitled to qualified immunity regarding Plaintiff’s procedural due process
claim.

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