Sampson v. Fort Smith, Arkansas, City of et al

Filing 64

OPINION AND ORDER granting 49 Motion for Summary Judgment. Judgment will be entered accordingly. Signed by Honorable P. K. Holmes, III on June 8, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
WENDALL N. SAMPSON, JR.
v.

PLAINTIFF
No. 2:15-CV-02251

CITY OF FORT SMITH, ARKANSAS; CARL
GEFFKEN; KEVIN LINDSEY; JARRARD COPELAND;
LEVI RISLEY; MARK HALLUM; DEAN PITTS;
ANTHONY BOWERS; DOUG BROOKS; DANIEL
GRUBBS; AUSTIN COLLINS; and DAWN
SPRAYBERRY

DEFENDANTS

OPINION AND ORDER
Before the Court is Defendants’ motion for summary judgment (Doc. 49), Plaintiff
Wendall N. Sampson, Jr.’s response (Doc. 54), Defendants’ reply (Doc. 56), and the parties’
supporting documents.

For the reasons set forth herein, Defendants’ motion for summary

judgment will be granted.
I.

Background 1
Officer Sampson is an African-American officer who has been employed by the Fort Smith

Police Department since 1995. His career in the department consists of working first for four years
in the patrol division; then in narcotics for several months, the criminal investigations division for

1

Defendants’ motion for summary judgment includes approximately 850 pages of
evidence as support, and their statement of facts contains 111 paragraphs. In response, Officer
Sampson has included two affidavits totaling five pages that primarily seek to call into question
the credibility of certain Defendants. His response to Defendants’ statement of facts relies upon
these two affidavits and arguments raised in his responsive brief in summarily concluding that
these documents adequately controvert the vast majority of Defendants’ factual submissions. To
the extent that Officer Sampson has relied on speculation, denials, or allegations, without a proper
basis in fact or clear citation to facts already in the record, the Court will view such facts as
undisputed. Fed. R. Civ. P. 56(e)(2). To the extent they are relevant, facts not specifically
controverted by Officer Sampson will be deemed to have been admitted. Local Rule 56.1. Where
Officer Sampson has complied with Rule 56(c)(1)(A) and supported his argument with citation to
materials in the record, the Court has made all inferences in his favor.
1

eight years, and the community relations division for two years; then as an airport liaison for two
years and an assistant communications center supervisor 2 for four years; and currently as the
information desk officer. He holds the rank of corporal, which is an automatic promotion after an
officer attains ten years of experience. (Doc. 54, p. 2).
In his second amended complaint (Doc. 26), Officer Sampson asserts that each Defendant
violated Title VII of the Civil Rights Act of 1964 by discriminating against him on the basis of his
race and by retaliating against him for engaging in protected activity. In particular, Officer
Sampson asserts that Defendants discriminated against him by investigating and disciplining him
when white officers were not investigated for the same conduct, and by failing to promote him but
promoting similarly- or less-qualified white officers. Officer Sampson also asserts that the
investigations into him were retaliation for his general complaints about racial discrimination and
harassment, and that he was subjected generally to harassment, suspension, and transfer on the
basis of his general complaints and for filing an April 2013 internal grievance and an October 2013
discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Officer
Sampson filed an EEOC charge on the basis of racial discrimination and retaliation in April 2015.
In addition to his Title VII claims, Officer Sampson asserts claims under 42 U.S.C. § 1983 for
Defendants’ deprivation of Officer Sampson’s 42 U.S.C. § 1981 rights 3 and for retaliation against

2

The position appears to properly be titled “Assistant Communications Center
Supervisor,” but the parties’ filings have also referred to it as “Assistant Radio Room Supervisor.”
3
To the extent Officer Sampson has attempted to assert a separate § 1981 claim, that claim
fails. A claim under 42 U.S.C. § 1983 is the sole remedial provision for an action “brought against
state actors alleging violation of the rights declared in § 1981.” Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 731 (1989). Furthermore, no claim could be had against any of the Defendants in
his or her individual capacity because none but the City was Officer Sampson’s employer, and
only his employer could have deprived him of both reputation and an employment interest. Accord
Jones v. McNeese, 746 F.3d 887, 898 (8th Cir. 2014) (explaining that in the analogous § 1983
context, injury to reputation is insufficient to state a claim unless it is coupled to a more tangible
interest like employment).
2

him for his speech protected by the First Amendment.

Finally, Officer Sampson brings a

discrimination claim under the Arkansas Civil Rights Act (“ACRA”), Ark. Code § 16-123-101 et
seq., based on the same damage to his employment and reputation.
In 2015, the year Officer Sampson filed this lawsuit, the Fort Smith Police Department had
165 total officers. See http://www.fortsmithpd.org/Assets/2015AnnualReport.pdf, last accessed
May 8, 2017. At that time and for approximately seven years prior, Officer Sampson was the sole
African-American officer in the entire department. Officer Sampson alleges that he was only the
tenth African-American officer hired by the department in its entire history, and that no AfricanAmerican officer has been promoted since 1988. On the basis of 2012 and 2013 examination
scores, he applied for promotion but was not chosen. 4
In April 2013, Officer Sampson filed a formal complaint against Sergeant Dawn
Sprayberry with then-Chief Kevin Lindsey. In the formal complaint, Officer Sampson accused
Sergeant Sprayberry of “harassment/creating a hostile work environment” and “vengeful
retaliatory bullying” against Officer Sampson, CALEA Communications Accreditation Manager
Rhonda Harper, and “other members of the department.” (Doc. 49-11, p. 15). The formal
complaint listed a wide range of grievances against Sergeant Sprayberry stemming from the way
in which she treated individuals in the department. It recalled Officer Sampson’s previous duties
as an assigned recruiter for minority officers and an incident in which an African-American
applicant, Tiffany Johnson, who Officer Sampson stated was “#1 on our hire list before failing her
final interview.” (Id. p. 18). Officer Sampson claimed Sergeant Sprayberry docked Ms. Johnson
points because Ms. Johnson had expressed interest in joining the United States Marshal’s Service.

4

Officer Sampson also applied for promotion in 2015 and was not chosen, but he has not
argued that the failure to promote based on the 2015 scores supports a claim of discrimination.
3

(Id.).

The formal complaint also alleged that Sergeant Sprayberry “could possibly have

manipulated the results” of Officer Sampson’s oral presentation score as part of his 2012
promotional testing. (Id.). At no point did Officer Sampson’s formal complaint mention race as a
basis for Sergeant Sprayberry’s objectionable actions, or ascribe them any basis other than her
general disdain for others.
On April 16, 2015, 5 Officer Sampson filed a charge of discrimination with the EEOC
alleging racial discrimination or harassment. This charge was amended on May 28, 2015, after
meeting with the EEOC investigator. On August 27, 2015, the EEOC issued a right to sue letter.
Following the filing of the April 2013 formal complaint against Sergeant Sprayberry and the
October 2013 EEOC discrimination charge, Officer Sampson claims that Defendants retaliated
against him by unjustly making him the target of a number of internal investigations when, prior
to the filing of his formal complaint against Sergeant Sprayberry in April of 2013, he had been the
subject of only one sustained complaint during eighteen-plus years of employment by the
department. Officer Sampson primarily bases his discrimination and retaliation claims on the
internal investigations opened against him subsequently to his April 2013 formal complaint and
October 2013 EEOC charge, and on Defendants’ failure to promote him based on his 2012 and
2013 examination scores. Officer Sampson also alleges that he did not receive an increase in pay

5

Defendants accept this date for the purposes of the instant motion. Though the EEOC
charge presumably was produced during discovery, neither party has filed a copy of the EEOC
charge with the Court. Had either party done so, the Court would be in a better position to evaluate
Defendants’ argument that Officer Sampson is time-barred for recovering on acts of discrimination
or retaliation occurring more than 180 days before the charge. Though it is almost certainly the
case that many of the allegedly unlawful actions are time-barred, because the charge may have
alleged a continuing course of conduct (and at any rate because incidents from before the statute
of limitations can still be probative of whether timely claims were premised on discriminatory
acts), on this motion the Court will address Officer Sampson’s claims on the merits and will not
analyze Defendants’ statute of limitations argument any further.
4

for his tenure as Assistant Communications Center Supervisor, even though one was allowed. (Id.,
¶ 32). 6
As part of his failure to promote claim, Officer Sampson contends that he is qualified for a
promotion and applied for a promotion to Sergeant based on his 2012 and 2013 examination scores,
but that the department instead hired or promoted individuals who were not members of a protected
group who were similarly qualified to or less qualified than Officer Sampson. The Fort Smith
Police Department employs both an objective and subjective component to its promotional testing.
Officers must take an objective multiple choice exam. 7 They then undergo an oral examination
before five panelists, with both the top and the bottom scores given being discarded. The objective

6

As additional evidence of racial discrimination and harassment, Officer Sampson’s
second amended complaint points to: (1) Chief Lindsey allegedly sustaining the complaint against
Sergeant Sprayberry but “order[ing] the records of the complaint and discipline destroyed”
(Doc. 26, ¶ 33); (2) Chief Lindsey asking Officer Sampson to leave a sworn officers’ meeting
because he was “a plaintiff in a lawsuit,” even though there was no discussion of the lawsuit after
Officer Sampson left (Id., ¶ 52); (3) City Administrator Ray Gosack finding Chief Lindsey’s
aforementioned actions to be appropriate after Officer Sampson filed a grievance against the Chief
(Id., ¶ 53); (4) Officer Austin Collins commenting on Facebook in a profane and threatening nature
about a pending disciplinary action against Officer Sampson (Id., ¶ 42); (5) Captain Jarrard
Copeland determining that Officer’s Collins’ post was protected free speech and closing the
investigation into the matter after Officer Sampson filed a complaint (Id.); (6) a Facebook profile
under the name “Bennie Taddler” that Officer Sampson claims made disparaging comments about
him and contained information that “could only have come from the FSPD Office of Professional
Standards,” and based on which no one was disciplined (Id., ¶¶ 61-63); (7) Captain Copeland
taking screenshots of Officer Sampson’s Facebook page even though there was no open
investigation (Id., ¶ 45); (8) Captain Copeland and Detective Gregory Smithson questioning
Officer Sampson about his attorney’s knowledge of FIOA requests and then about his Facebook
postings (Id., ¶ 54); and (9) Major Mark Hallum refusing to reschedule a pre-determination
hearing by one day after Officer Sampson requested such so that his attorney could attend even
though it could have been rescheduled and they were routinely rescheduled for white officers upon
request (Id., ¶¶ 38-41). However, because Officer Sampson has not produced any evidence
supporting these additional allegations, the Court will disregard them for purposes of ruling on the
motion for summary judgment. See P.H. v. Sch. Dist. of Kan. City, Mo., 265 F.3d 653, 657 (8th
Cir. 2001) (“The facts asserted… must be properly supported by the record.”) (citation omitted).
7
The affidavit of Sergeant Wayne Barnett suggests that the objective examination is
subject to manipulation, with higher-ranking officers providing the answers ahead of time to some,
but not all, white corporals so that they are more likely to be promoted. (Doc. 54-2, ¶ 4).
5

and subjective component scores are then combined, and each officer is ranked according to his or
her overall performance. Under the “Rule of Three,” when a position is open, the Chief of Police
can select any of the three top-scoring candidates. In 2012, Officer Sampson ranked fourth out of
twelve, with just 0.17 of one point separating him from the third-ranked scorer. In 2013, Officer
Sampson also ranked fourth out of twelve, with one point separating him from the third-ranked
scorer.
Officer Sampson’s § 1983 and ACRA claims allege that he was deprived of his reputation
and employment without due process or equal protection as required by the Fourteenth
Amendment, and that Defendants retaliated against him for making antidiscrimination complaints,
violating his First Amendment rights.
The Court previously dismissed without prejudice Officer Sampson’s illegal exactions
claim, declining to exercise supplemental jurisdiction over the unrelated state law claim. (Doc.
39). The claims against Separate Defendants Colby Roe and Wyman Wade were dismissed by the
same order (Id.), and individual capacity claims against former City Administrator Ray Gosack
were subsequently dismissed after no motion to substitute was filed within 90 days of the filing
suggesting his death. (Doc. 47).
Defendants filed the instant motion for summary judgment, arguing that each of Officer
Sampson’s claims fail under the burden-shifting framework outlined in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). They argue that Officer Sampson has not made out a prima facie
case for any of his claims, and that even if he had done so, the Defendants have provided legitimate
reasons for each of their actions that Officer Sampson cannot prove as pretext. Defendants
additionally argue that they are entitled to judgment based on qualified immunity, claim

6

preclusion, statute of limitations grounds, and because Officer Sampson has not shown a custom
or policy as part of his § 1983 claims.
II.

Legal Standard
When a party moves for summary judgment, it must establish both the absence of a genuine

dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Nat’l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). In order for
there to be a genuine issue of material fact, the nonmoving party must produce evidence “such that
a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 66–67 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Only facts “that might affect the outcome of the suit under the governing law” need be
considered. Anderson, 477 U.S. at 248. “[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the burden of proof.” Sch. Dist. of Kan. City,
Mo., 265 F.3d at 658 (quotation omitted). Facts asserted by the nonmoving party “must be properly
supported by the record,” in which case those “facts and the inferences to be drawn from them [are
viewed] in the light most favorable to the nonmoving party.” Id. at 656–57. These specific facts
showing a genuine issue for trial are to be established by “citing to particular parts of materials in
the record… or showing that the materials cited do not establish the absence or presence of a
genuine dispute[.]” Fed. R. Civ. P. 56(c). “[A] lawsuit is not a game of hunt the peanut.
Employment discrimination cases are extremely fact-intensive, and neither appellate nor district
courts are obliged in our adversary system to scour the record looking for factual disputes…”
Greer v. Bd. of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001) (citation and internal
quotations omitted). Ultimately, “[w]hile employment discrimination cases are often fact intensive

7

and dependent on nuance in the workplace, they are not immune from summary judgment, and
there is no separate summary judgment standard for employment discrimination cases.” Fercello
v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010) (rejecting prior assertions that summary
judgment should rarely be granted in employment discrimination cases).
III.

Discussion
A.

Applicable Law

With the exception of his § 1983 First Amendment retaliation claim, 8 all of Officer
Sampson’s discrimination and retaliation claims will be analyzed under the burden-shifting
McDonnell Douglas framework. See Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir.
2012) (applying McDonnell Douglas to a Title VII retaliation claim); Richmond v. Bd. of Regents
of Univ. of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992) (applying McDonnell Douglas for
discrimination claims under §§ 1981 and 1983); Greenlee v. J.B. Hunt Transp. Servs., 342 S.W.3d
274, 277–79 (Ark. 2009) (applying McDonnell Douglas to discrimination claims brought under
the ACRA); Brodie v. City of Jonesboro, 2012 WL 90016, *2 (Ark. Jan. 12, 2012) (unreported)
(“This court has previously applied the McDonnell Douglas framework in reviewing the grant of
a summary-judgment motion in an employment-discrimination case, . . . and Brodie fails to
provide convincing argument that would cause us to reconsider our use of the framework.”
(citation omitted)).

8

Because he was a public employee, Officer Sampson’s First Amendment retaliation claim
will be analyzed using the framework set out by the Supreme Court for such claims. See Garcetti
v. Ceballos, 547 U.S. 410 (2006); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of
Educ., 391 U.S. 563 (1968).
8

B.

Disparate Treatment

A plaintiff in an employment discrimination case survives a motion for summary judgment
“either by providing direct evidence of discrimination or by creating an inference of unlawful
discrimination” using circumstantial evidence. Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953
(8th Cir. 2012). When, as is the case here, a plaintiff presents no direct evidence to support a claim
of discrimination, the claim is analyzed under the burden shifting framework set out in McDonnell
Douglas. Under this framework, the plaintiff must first present a prima facie case of employment
discrimination. Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir. 2007). Once the
plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its actions. Id.; McDonnell Douglas Corp., 411 U.S. at
802. If the defendant can do so, the plaintiff must then demonstrate that the defendant’s proffered
reason is pretext for unlawful discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–
08 (1993); Miners v. Cargill Comms., Inc., 113 F.3d 820, 823 (8th Cir. 1997). To meet this burden,
the plaintiff must offer sufficient evidence for a reasonable trier of fact to infer discrimination was
the more likely reason for the adverse employment decision. Lors v. Dean, 595 F.3d 831, 834 (8th
Cir. 2010). “[T]he evidence produced to show a prima facie case and the ‘inferences drawn
therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation
is pretextual.’” Miners, 113 F.3d at 823 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 255 n. 10 (1981). Although the burden of production shifts between the parties, the burden
of persuasion remains on the plaintiff at all times. Fatemi v. White, 775 F.3d 1022, 1041 (8th Cir.
2015).
To establish a prima facie case of unlawful race discrimination under Title VII, a plaintiff
must show that: “(1) he is a member of a protected class, (2) he was meeting his employer’s

9

legitimate job expectations, (3) he suffered an adverse employment action, and (4) similarly
situated employees outside the protected class were treated differently.” Carpenter v. Con-Way
Cent. Express, Inc., 481 F.3d 611, 616 (8th Cir. 2007) (citations and quotations omitted). Once the
plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its actions. Ramlet v. E.F. Johnson Co., 507 F.3d 1149,
1153 (8th Cir. 2007); McDonnell Douglas Corp., 411 U.S. at 802. The plaintiff must then
demonstrate that the defendant’s proffered reason is a pretext for unlawful discrimination.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993); Miners v. Cargill Comms., Inc., 113
F.3d 820, 823 (8th Cir. 1997). To do this, “a plaintiff may show that the employer’s explanation is
“unworthy of credence... because it has no basis in fact.” Torgerson v. City of Rochester, 643 F.3d
1031, 1047 (8th Cir. 2011). Alternatively, a plaintiff may show pretext “by persuading the court
that a [prohibited] reason more likely motivated the employer.” Id. Either route amounts to
showing that a prohibited reason, rather than the employer’s stated reason, actually motivated the
employer’s action. Id.
1.

Prima Facie Case

Officer Sampson has pointed to four adverse employment decisions: (1) the actions
outlined in the formal complaint he filed against Sergeant Sprayberry; (2) Defendants’
investigations and discipline of Officer Sampson; (3) Defendants’ decision not to promote Officer
Sampson on multiple occasions; and (4) Defendants’ decision not to increase Officer Sampson’s
pay when he served as the Assistant Communications Center Supervisor.
a.

Allegations in the Complaint Against Sergeant Sprayberry

As an initial matter, the Court will address Officer Sampson’s discrimination claims based
on his April 2013 formal complaint filed with Chief Lindsey against Sergeant Sprayberry. Even if

10

a case based on the matters set out in that formal complaint were not time-barred, it would fail
because it does not make out a prima facie case of unlawful discrimination. Officer Sampson’s
complaint describes the April 2013 formal complaint as stating “that he and certain other thirdparty applicants to the FSPD were being harassed and/or discriminated against on the basis of
race.” (Doc. 26, ¶ 94). Having reviewed the formal complaint, the Court concludes that Officer
Sampson’s formal complaint is not evidence of racial discrimination or harassment because it is
completely devoid of any allegation of discrimination or harassment on the basis of race.
(Doc. 49-11, pp. 15-19). Officer Sampson’s formal complaint primarily lists grievances against
Sergeant Sprayberry for the rude manner in which she treated a wide range of employees, but “[i]t
is well-settled in this circuit that ostracism and rudeness by supervisors and co-workers do not rise
to the level of an adverse employment action.” Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th
Cir. 2002). Further, discussion about Ms. Johnson, the minority applicant who was docked points
for having an interest in joining the U.S. Marshals Service, is the only part of the grievance that
might even imply racial discrimination, but that disparate treatment would have been targeted at
Ms. Johnson and not Officer Sampson. The April 2013 formal complaint does not reveal any
adverse employment action for which similarly situated employees outside the protected class
were treated differently than Officer Sampson. As a result, the formal complaint against Sergeant
Sprayberry does not establish a prima facie case premised on the actions then complained of.
b.

Investigations and Discipline

In their motion for summary judgment, with respect to disparate treatment claims premised
on investigation and discipline, Defendants primarily take issue with the fourth factor of the prima
facie case analysis, claiming that Officer Sampson cannot find a “similarly situated” employee
who was treated differently. This test is “rigorous and requires that the other employees be

11

similarly situated in all relevant aspects before the plaintiff can introduce evidence comparing
herself to the other employees.” Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008).
To the extent he relies on differently-treated comparators, Officer Sampson “bears the burden to
demonstrate by a preponderance of the evidence that there were individuals similarly situated.”
Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003) (citing Clark v. Runyon, 218 F.3d 915, 918
(8th Cir. 2000)). A comparator typically “must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances.” Id. However, “[t]he similarly situated co-worker inquiry is a
search for a substantially similar employee, not for a clone.” Doucette v. Morrison Cty., Minn.,
763 F.3d 978, 984 (8th Cir. 2014) (citing Ridout v. JBS USA, LLC, 716 F.3d 1079, 1085 (8th Cir.
2013)) (quotations omitted).
Defendants argue that Officer Sampson has only offered one comparator—Officer Dayton
Leavitt 9—and only for one of the alleged adverse employment decisions—the decision to
investigate a citizen complaint against Officer Sampson. Defendants argue that Officer Leavitt
was not similarly situated to Officer Sampson because Officer Leavitt did not engage in the same
conduct without any mitigating or distinguishing circumstances. Officer Sampson contends that
one citizen was unhappy on two separate occasions with police reports written by Officer Leavitt
and Officer Sampson, respectively, but that an investigation was only opened against Officer
Sampson and not against Officer Leavitt. Defendants respond that the circumstances were
different because the citizen had not claimed that Officer Leavitt intentionally falsified his report

9

The Court notes that Officer Sampson has not explicitly offered anyone as a comparator,
but agrees with Defendants that Officer Leavitt appears to be the likeliest candidate. Officer
Sampson’s second amended complaint includes a number of allegations from which additional
comparators could potentially be found, but in the absence of any evidence supporting these
allegations, the Court will not consider them at the summary judgment stage.
12

and did not seek to file a complaint against him, but that the inverse was true with Officer
Sampson—the citizen claimed Officer Sampson intentionally falsified his report and did seek to
file a complaint against Officer Sampson. Defendants argue that the department was required to
investigate all formal complaints lodged by members of the public.
Officer Sampson does not directly respond to the arguments regarding Officer Leavitt, and
the Court must therefore agree with Defendants that Officer Leavitt is not sufficiently similarly
situated for purposes of Officer Sampson’s prima facie case. Officer Sampson instead contends
that because he was the only African-American officer in the department, “there is inherently a
racial component to any action taken against Plaintiff, and the mere fact that white officers may
have experienced a similar result does not remove the taint of racism that undergirds any action
where Plaintiff was treated differently…” (Doc. 54, p. 6). Citing Kirby v. Colony Furniture Co.,
613 F.2d 696 (8th Cir. 1980), Officer Sampson correctly asserts that a sufficient racial disparity
can, in extreme cases, constitute sufficient evidence of racial bias to give rise to an inference of
unlawful discrimination and establish a prima facie case. See also Hazelwood Sch. Dist. v. United
States, 433 U.S. 299, 307 (1977) (“[S]tatistics can be an important source of proof in employment
discrimination cases… Where gross statistical disparities can be shown, they alone may in a proper
case constitute prima facie proof of a pattern or practice of discrimination.”).
The Court agrees that the Fort Smith Police Department’s long record of failing to hire,
promote, or retain African-American officers is probative of discrimination. The Fort Smith Police
Department only employed one black officer out of approximately 165 total officers for the eight
years preceding this lawsuit, and Officer Sampson was only the tenth African-American officer in
the department’s entire existence. A casual review of the demographics of this community leaves
the Court with the impression that African-American representation in the Fort Smith Police

13

Department is disproportionately low. With the exception of automatic “seniority” promotions, no
African-American had been promoted in almost two decades prior to Officer Sampson’s lawsuit.
This, too, is probative of racial discrimination.
Still, without a comparator, in order to meet his prima facie burden Officer Sampson must
do more than simply point out that he is the only black officer in the department and no black
officers have been promoted. See Clayborne v. Omaha Pub. Power Dist., 211 F.R.D. 573, 592 (D.
Neb. 2002) (quoting Wagner v. Taylor, 836 F.2d 578, 593 (D.C. Cir. 1987)) (“Statistics laying bare
a racially unbalanced workforce do not make out a prima facie case of disparate treatment absent
further evidence drawing comparisons with the relevant labor market. Much less do they show a
policy of discrimination manifested in the employer’s promotional practices.”). Officer Sampson’s
general statistical argument does not carry his burden because it only lays bare a racially
unbalanced workforce inside the Fort Smith Police Department and does not demonstrate that the
unbalance is tied to discrimination.
When relying on an unbalanced racial composition to establish a prima facie case of
workplace discrimination, a plaintiff must typically compare the racial composition of employees
in the workplace with that of the qualified population in the relevant market. Id. at 308. The
“probative worth of statistical evidence depends on all of the surrounding facts and
circumstances.” Inmates of Nebraska Penal & Corr. Complex v. Greenholtz, 567 F.2d 1368, 1375
(8th Cir. 1977) (citation omitted). “To be legally sufficient, [Officer Sampson’s] statistical
evidence must show a disparity of treatment, eliminate the most common nondiscriminatory
explanations of the disparity, and thus permit the inference that, absent other explanation, the
disparity more likely than not resulted from illegal discrimination.” Morgan v. United Parcel Serv.
of Am., Inc., 380 F.3d 459, 463–64 (8th Cir. 2004); see also Hazelwood Sch. Dist., 433 U.S. at 299

14

(“What the [employment] figures prove obviously depends upon the figures to which they are
compared.”). Officer Sampson bears the burden of producing admissible evidence that gives rise
to an inference of unlawful discrimination. Because he does not rely on any materials in the record
other than an inadequate comparator (for only one of the adverse employment decisions) and
general statistics describing the racial composition of the Fort Smith Police Department, Officer
Sampson has not met his burden of proof on summary judgment and cannot establish a prima facie
case under the McDonnell Douglas shifting framework.
c.

Failure to Promote

In his Title VII claim of racial discrimination arising out of the Fort Smith Police
Department’s failure to promote him, Officer Sampson alleges that he applied for a promotion to
Sergeant based on his 2012 and 2013 examination scores, but that the department instead hired or
promoted individuals who were not members of a protected group or with similar qualifications.
“To establish a prima facie case of discriminatory failure to promote, a Title VII plaintiff must
demonstrate that: (1) he is a member of a protected group; (2) he was qualified and applied for a
promotion to an available position; (3) he was rejected; and (4) a similarly qualified employee, not
part of a protected group, was promoted instead.” Brown v. Missouri State Highway Patrol, 56 F.
App’x 282, 284 (8th Cir. 2003). Officer Sampson is a member of a protected group, he was
rejected promotion on all three attempts, and in each instance employees who were not part of a
protected group were instead promoted. As for the fourth factor, the Court notes that numerous
white officers also were not promoted, which to some extent undermines the strength of any
inference of discrimination resulting from the similarly-situated comparator analysis.
Nevertheless, the Court concludes that Officer Sampson has demonstrated that he was “similarly
qualified” to the individuals promoted on the basis of both 2012 and 2013 examination scores.

15

In both years, Officer Sampson finished fourth out of twelve applicants. Under the “Rule
of Three,” Chief Lindsey could promote any of the top three scoring candidates when a position
became open. For both 2012 and 2013 examinations, after the first promotion was made Officer
Sampson technically moved into the top three scorers and thus could have been promoted to any
subsequently-opened position. Yet, in each year, other individuals in the top three of available
scorers were promoted instead. This is sufficient to show that Officer Sampson was “similarly
qualified” to individuals who were not part of a protected group and were instead promoted. The
burden shifts to Defendants to articulate a legitimate, nondiscriminatory reason for not promoting
Officer Sampson.
d.

Failure to Increase Pay

Officer Sampson argues that during his tenure as Assistant Communications Center
Supervisor he was entitled to an increase in pay but was not given one. He alleges that Fort Smith
Police Department policy specifically allows for officers who hold the position to be given an
increase in pay, and that “white officers who are in specialized positions such as this one routinely
receive this higher rate of pay.” (Doc. 26, ¶ 32). Officer Sampson has provided no evidence to
support either the allegation that policy allows for an increase in pay or that white officers in
similar positions routinely receive a higher rate of pay. Officer Sampson cannot establish a prima
facie case of discrimination.
2.

Legitimate, Nondiscriminatory Reasons

Assuming, arguendo, that Officer Sampson could rely exclusively on his status as the only
black officer in the department in meeting his burden of establishing a prima facie case of
discrimination based on investigations and discipline, the department has presented legitimate,
nondiscriminatory reasons for each instance. The department has also articulated a legitimate,

16

nondiscriminatory reason for Officer Sampson’s failure to promote claim. Finally, assuming he
could establish a prima facie case based on failure to increase his pay, the department has
articulated a legitimate nondiscriminatory reason for this decision, as well. The Court will address
each in turn.
a.

Investigations and Discipline

A total of 16 internal investigations have been opened with Officer Sampson as a subject
since the filing of his formal complaint against Sergeant Sprayberry in April of 2013. “[A]n
employer’s selective investigation of an employee in a protected group can support a claim of
discriminatory intent.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 997 (8th Cir. 2011); see
also Smith v. Monsanto Chemical Co., 770 F.2d 719, 724 (8th Cir. 1985) (noting in dicta that
evidence that white employees were not scrutinized the same as plaintiff would be probative on
the issue of discriminatory treatment). Although Officer Sampson identified a similarly-situated
white employee for only some of these investigations, a short narrative analysis of each reveals
that Defendants can articulate a legitimate, nondiscriminatory reason for the investigation.
i.

Internal Complaint 2013-005

This investigation began when Communications Operator Angela McCabe alleged that she
suffered harassment and was discriminated against by former Sergeant Don Paul Bales and Officer
Sampson. (Doc. 49-17). Ms. McCabe had been accused of starting a rumor about another
dispatcher and generally being a difficult employee to get along with in the communications center.
Sergeant Bales and Officer Sampson, two of her supervisors, disciplined her on this basis. During
the investigation, a “hugging incident” between Officer Sampson and Ms. McCabe that both
parties described as “awkward” came to light, but this was found to not rise to the level of sexual
harassment. (Id., p. 46). “Rather, it seemed to be an unfortunate and unnecessary act that Corporal

17

Sampson should be cautioned, counseled and/or trained to prevent any such incidents in the
future.” (Id.). Officer Sampson claimed that Ms. McCabe had numerous job performance issues,
but he had limited documentation that backed up this allegation. Ultimately, the “investigation
revealed that [Officer Sampson’s] actions in dealing with a subordinate employee amounted to a
dereliction of duty by failing to properly document the employee’s prior transgressions and
counseling.” (Doc. 49-11, p. 28). As a result of the investigation, Officer Sampson received a
written reprimand and documented training. (Id.). Defendants have articulated a legitimate,
nondiscriminatory reason for this investigation and its results.
ii.

Internal Complaint 2013-011

This investigation began when Separate Defendant Austin Collins accused Officer
Sampson of spreading rumors and making derogatory statements about Officer Collins and his
wife, as well as threatening Officer Collins. (Doc. 49-20, p. 4). Officer Collins acknowledged
that his complaint was based on hearsay. (Id.). Officer Sampson responded that he personally told
Officer Collins that he perceived that Officer Collins and his wife “hung around with people that
did drugs.” (Id., p. 5). Officer Sampson also “admit[ted] to saying much worse things to [Officer
Collins’] face than what was listed here” but “[h]e did not elaborate as to what that was.” (Id., p.
6). These allegations were “not sustained” and the complaint was closed. (Id., pp. 1, 23-26).
Defendants have articulated a legitimate, nondiscriminatory reason for this investigation and its
results.
iii.

Administrative Determination 2013-006

This investigation began when, during the investigation of Internal Complaint 2013-005,
investigators discovered that Officer Sampson and Sergeant Bales had organized a “team building
exercise” for employees of the Communications Unit, and overtime was paid out to those who

18

attended. (Id., ¶ 6). This administrative inquiry was opened, with the purpose of looking into the
potential misuse of public funds. Those subject to the investigation were Officer Sampson,
Sergeant Bales, Separate Defendant Dean Pitts, and Captain Larry Rannels, who were all
supervisors within the Communications Unit. Major Pitts and Sergeant Bales were disciplined
with documented oral counseling for the unauthorized expenditure of funds, but Captain Ranells
and Officer Sampson were not subject to discipline and the allegations against them were
determined to be unfounded.

(Id., ¶ 7).

Defendants have articulated a legitimate,

nondiscriminatory reason for this investigation and its results.
iv.

Internal Complaint 2014-001

This investigation began when Ms. McCabe complained that Officer Sampson continually
sang a song insinuating that her work product was inadequate, said negative things to her about
her husband, told her that he “no longer had any respect for the persons on his [predetermination
hearing] board” and that the department was “very prejudice[d],” and accused her of starting a
rumor about another officer seeking to get “a vote of no confidence” in Chief Lindsey. (Doc. 4919, p. 2). When Detective Smithson received the complaint, he and Captain Copeland “provide[d]
Ms. McCabe with a portable digital recorder and the direction to record future contacts with
Corporal Sampson to try and obtain digital evidence of the alleged comments.” (Id., p. 2). Ms.
McCabe’s allegations were “not sustained” and the investigation was closed. (Id., pp. 1, 34-37).
Defendants have articulated a legitimate, nondiscriminatory reason for this investigation and its
results.
v.

Internal Complaint 2014-008

This investigation began when Officer Sampson’s attorney (also counsel in the instant
case) published the identity of an undercover officer. Officer Sampson was investigated to

19

determine whether he released confidential information without authorization. The investigation
“[d]id not produce any evidence or testimony that led to a suspect” and was closed as “not
sustained.” (Doc. 49-21, p. 1). Defendants have articulated a legitimate, nondiscriminatory reason
for this investigation and its results.
vi.

Administrative Determination 2014-011

This investigation began when allegations were made that Officer Sampson posted
numerous comments on Facebook that were highly critical of the department and its members.
Officer Sampson was investigated to determine whether he had violated a number of rules aimed
primarily at requiring officers to refrain from publicly criticizing the department and to treat
coworkers with respect. (Doc. 49-22, pp. 2). Some of the postings were nothing more than links
to articles from local publications or were written by Officer Sampson’s attorney. Other posts
referred to “tax sucking criminal officers” or “liars, criminals and immoral hypocrites,” and
accused the department of “corruption and shameless abuse of public trust.” (Id., pp. 24, 28, 30).
Based on Officer Sampson’s social media posts, Chief Lindsey suspended Officer Sampson for 80
hours without pay, but Officer Sampson filed an appeal and the discipline imposed was ultimately
reduced to oral counseling. 10 (Doc. 49-11, ¶ 10). Defendants have articulated a legitimate,
nondiscriminatory reason for this investigation and its results.

10

Sergeant Bales was also disciplined as part of this investigation, with a suspension of 40
hours without pay. He also appealed his suspension to the Civil Service Commission, who first
heard his case and determined that all department members deserved training regarding the Fort
Smith Police Department’s social media policy. In light of this decision, the Civil Service
Commission reduced Bales’ suspension to oral counseling. Chief Lindsey agreed to reduce Officer
Sampson’s suspension to oral counseling based on the same reasoning, and Officer Sampson
dropped his appeal. (Doc. 49-11, ¶ 10).
20

vii.

Internal Complaint 2014-016

This investigation began when Officer Andrew Adams complained that he had recently
reported to Officer Sampson that Officer Adams and others on his shift were concerned that
Dispatcher Janie Lasiter was creating an unsafe working environment for officers because she
could not keep up with the officers’ locations and information. (Doc. 49-23, p. 2). In response,
Officer Sampson—a Communications Unit supervisor—allegedly stated that “there was nothing
he could do because of all the stuff that was going on involving him and Sergeant Bales.” (Id.).
Presumably, Officer Sampson’s alleged comments were in reference to ongoing state litigation at
that time. Officer Sampson had no recollection of such a conversation with Officer Adams. (Id.,
p. 4). Because of the conflicting stories between the two officers directly involved in the alleged
conversations, there was not enough evidence to substantiate or refute either party’s story and the
matter was closed as “not sustained.” (Id., p. 5). Defendants have articulated a legitimate,
nondiscriminatory reason for this investigation and its results.
viii.

Administrative Determination 2015-003 and Citizen
Complaint 2015-009

These related investigations began when a citizen made a complaint against Officer
Sampson. 11 By this point, Officer Sampson had transitioned to the role of Information Desk
Officer. The complaining citizen was fulfilling a sentence of community service by cleaning the
men’s bathroom at the Fort Smith Convention Center. She called the information desk and advised
that a male supervisor had exposed himself to her, and the caller stated that she did not want to
continue serving with this individual. (Doc. 49-24, p. 1). The following day, the citizen came to
the Fort Smith Police Department and complained that Officer Sampson refused to send an officer

11

These investigations are the ones that involve the sole comparator described in the prima
facie case section, above.
21

to the convention center after she specifically requested one, and also that Officer Sampson had
told her she could pick up the police report the next day but that it was not ready when she had
arrived. (Id., p. 9). She complained that Officer Sampson made unprofessional comments to her.
(Id.). Once Officer Sampson completed the report, the citizen claimed that it was not accurate.
The citizen stated that she had no complaints against anyone but Officer Sampson. 12 In response,
Officer Sampson said that there had been some miscommunication during the call, but he had told
the citizen the report would require 48 hours and also offered to send an officer out to the
convention center but the citizen only wanted to have her community service changed. (Id., p. 12).
During the investigation, Captain Copeland became concerned that Officer Sampson was not being
truthful and reported to Chief Lindsey on discrepancies between the recorded telephone call to the
Information Desk and what Officer Sampson had told investigators. (Doc. 49-7, p. 6). An
administrative inquiry was thereafter opened. (Id.). Chief Lindsey ultimately concluded that
Officer Sampson’s “handling of the citizen’s request for services was woefully inadequate,” but
that the “circumstances under which [Officer Sampson] received information from coworkers and
ultimately from the complainant became so convoluted” that no discipline would be imposed and
the investigations were closed as “not sustained.” (Doc. 49-24, p. 66). Defendants have articulated
a legitimate, nondiscriminatory reason for these investigations and their results.
ix.

Administrative Determination 2015-013

This investigation began when an officer was not made aware of a subpoena until the date
of the hearing the officer was compelled to attend. (Doc. 49-25, p. 1). Officer Sampson signed

12

Two weeks prior, the same citizen also believed that a report completed by Officer
Leavitt was inaccurate, but she did not seek to file a complaint against him nor did she believe he
falsified the report on purpose. (Doc. 49-7, ¶ 13). The matter was apparently resolved at that time
to the citizen’s satisfaction by allowing her to write a witness statement that was included in the
report. (Id.).
22

for service of the subpoena seven days beforehand. (Id.). Officer Sampson placed the document
in the “Patrol box” on the back counter of the Information Desk, from which it was not removed
until the day before the hearing. (Id., p. 2). Officer Sampson was not disciplined, and the
investigation was administratively closed with the determination that an operational memo or some
type of training would be given to clarify procedures and prevent the situation from happening
again. Defendants have articulated a legitimate, nondiscriminatory reason for this investigation
and its results.
x.

Citizen Complaint 2015-024

This investigation began when a citizen complained that Officer Sampson was
unprofessional when speaking with the citizen over the phone. After listening to the phone
conversation, the investigator “did not find Sampson saying anything excessively rude or
inappropriate” and the matter was closed as unfounded. (Doc. 49-26, p. 3). Defendants have
articulated a legitimate, nondiscriminatory reason for this investigation and its results.
xi.

Administrative Actions 2015-078 and 2015-095

These similar investigations began after two citizens reported individuals as missing.
Department protocol required that a “Missing Person” report be filed in response, but Officer
Sampson instead sent out a “Be On the Lookout” notice on each occasion. (Docs. 49-27, 49-28).
Officer Sampson received oral counseling on the policy and each matter was closed. Defendants
have articulated a legitimate, nondiscriminatory reason for these investigations and their results.
xii.

Administrative Determination 2016-018

This investigation began as a result of Officer Sampson’s interaction with several citizens
at the Information Desk. (Doc. 49-29, p. 1). Apparently, an exchange involving Officer Sampson
“got heated” with parties “yelling back and forth at each other.” (Id.). The citizens contended that

23

Officer Sampson told them “[h]e didn’t care if [another individual] came over and burned the
house down.” (Id.). Officer Sampson could not remember verbatim what he had said, but he
“admitted the situation was frustrating.” (Id., p. 2). Because there was no audio or video to review
of the incident, the complaint was cleared as “not sustained. (Id., pp. 4-5). Defendants have
articulated a legitimate, nondiscriminatory reason for this investigation and its results.
xiii.

Citizen Complaint 2016-024

This investigation began when a citizen filed a complaint against Officer Sampson based
on comments the citizen believed were unprofessional. He alleged that Officer Sampson told him
“this is my house” and intimidated him. (Doc. 49-30, p. 1). This complaint was cleared as “not
sustained” and no discipline was imposed.

Defendants have articulated a legitimate,

nondiscriminatory reason for this investigation and its results.
b.

Failure to Promote

Defendants have articulated a legitimate, nondiscriminatory reason for passing over Officer
Sampson when promoting officers in 2012 and 2013. The Fort Smith Police Department employs
both an objective and subjective component to its promotional testing. Officers who score
sufficiently high on the objective portion proceed to a subjective portion. On the subjective
portion, both the top and bottom scores are dropped from consideration. In 2012, Officer Sampson
finished sixth out of twelve applicants on the objective multiple-choice portion of the testing and
second out of twelve on the subjective oral examination. This resulted in him finishing fourth
overall. Two promotions to Sergeant were made that year, both on the same day, and the officers
selected were those who had the top two scores on the exam. The two officers who were promoted
had total scores of 164.33 and 159.00. The next highest-scoring officer had a total score of 157.17,
and was not promoted in 2012. Officer Sampson’s total score that year was 157.00. One of the

24

two officers selected for promotion scored 5 points higher than Officer Sampson on the objective
portion of the test and 3 points lower on the subjective portion, and the other officer scored 1 point
lower than Officer Sampson on the objective portion but 8.33 points higher on the subjective
portion. (Doc. 49-36). While Officer Sampson was only 0.17 points below the third-ranked scorer,
and under department policy the Chief of Police could technically have made the first promotion
from the three top-scoring candidates and then selected Officer Sampson (who would at that point
have had the third-highest score) to fill the second position, he instead chose to promote the officers
with the highest overall scores.
In 2013, Officer Sampson scored fourth overall on the exam. He scored second out of
twelve applicants on the objective portion of the exam and tied for fourth on the subjective portion.
Three promotions to Sergeant occurred at separate points in 2014 on the basis of these 2013 exam
scores, and again the officers selected were those who had the top overall scores on the exam.
Officer Sampson’s objective score was 1 point higher and his subjective score 8 points lower than
the top-scoring officer. His objective score was 4 points higher and his subjective score 6.3 points
lower than the second-highest-scoring officer. His objective score was 2 points lower and his
subjective score was 1 point higher than the third-highest-scoring officer, who was also the thirdhighest-scoring officer on the 2012 exam. While the Chief of Police could have selected Officer
Sampson for promotion for either of the later two promotions that were available in 2014, he again
chose to promote those officers with the highest overall scores.
Defendants have articulated a legitimate, nondiscriminatory reason for promoting other
officers than Officer Sampson—Chief Lindsey’s consistent policy of selecting the available
candidate with the highest overall score for promotion.

25

c.

Failure to Increase Pay

Assuming that Officer Sampson could have established a prima facie case of discrimination
based on Defendants’ decision not to increase his pay when he became Assistant Communications
Center Supervisor, Defendants have articulated a legitimate nondiscriminatory reason for the
decision. Department Policy & Procedure 1101.24(III)(A)(3) states in relevant part that:
At times, it becomes necessary to assign a sworn officer who does not hold a
supervisory rank to [Assistant Communications Center Supervisor]. When the
Assistant Communications Center Supervisor holds a rank below that of sergeant,
this position shall be considered a specialized assignment. Regardless of rank, the
Assistant Communications Center Supervisor shall have the full authority and
responsibility of a supervisor holding the rank of sergeant while performing these
duties.
(Doc. 54-1, ¶ 12) (emphasis added). This policy does not provide for an increase in pay;
rather, it simply allows an officer who has not yet attained the rank of Sergeant to have an increase
in “authority and responsibility.” Defendants have articulated a legitimate, nondiscriminatory
reason for their decision not to increase Officer Sampson’s pay.
3.

Pretext for Unlawful Discrimination
a.

Investigations and Discipline

Again assuming Officer Sampson had established a prima facie case, because Defendants
have satisfied the second prong of the McDonnell Douglas framework, Officer Sampson must
show that their offered reasons are pretext for discrimination. “To succeed in showing pretext [ ]
the employee ‘must provide some evidence that other employees were not subject to the same level
of investigation for similar conduct.’” Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782,
798 (8th Cir. 2011) (quoting Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 997–98 (8th Cir.
2011)); see also Stone v. McGraw Hill Fin., Inc., 2017 WL 2041962, at *5 (8th Cir. May 15, 2017).
Officer Sampson has not provided any evidence of other officers not being subject to the same

26

type level of investigation for the same type of conduct as him. To the contrary, he notes that
several of the officers involved in Officer Sampson’s investigations “have ongoing investigations
regarding their own dishonesty…” (Doc. 54, p. 3). A number of the investigations in which
Officer Sampson was a subject included additional officers. While the number of investigations
in which Officer Sampson was involved is substantial, the reasoning for each of them was certainly
justified. Officer Sampson’s transition to the Information Desk also appears to have made him
more susceptible to investigations, as that position involves constant interaction with citizens as
one of the most readily-available members of the department.
Officer Sampson attempts to establish pretext for each of his claims by calling into question
the credibility of Chief Lindsey, Captain Copeland, Major Pitts, Major Hallum, Sergeant
Sprayberry, Sergeant Bowers, and former Major Chris Boyd. He points out that Chief Lindsey
resigned from the department after commenting in the presence of an African-American city
employee about how he would make undisclosed individuals happier if he were in “blackface.”
(Docs. 54-1, 56-2). For Captain Copeland, Plaintiff argues that he is dishonest and notes that an
investigation was opened to determine Captain Copeland’s truthfulness. According to the current
Chief of Police, “there was no veracity to the allegations that Captain Copeland was untruthful,”
the investigation was concluded, and the matter was deemed “unfounded.” (Doc. 56-1, ¶ 5). Major
Pitts allegedly made a racist joke in the presence of Sergeant Bales. (Doc. 54-1, ¶ 7). Major
Hallum allegedly contacted a member of the Civil Service Commission to have a black applicant
for the police force disqualified from hiring. (Id., ¶ 11). Also according to Sergeant Bales,
Sergeant Sprayberry spoke to Officer Sampson in a demeaning and inappropriate manner but
would not do the same to white officers. (Id., ¶ 10). Officer Sampson also alleges that Sergeant

27

Bowers has a confederate flag tattoo and Major Boyd had pictures of confederate Civil War
officers in his office.
There is no place in a civilized society for some of the racially charged comments alleged.
Yet, “isolated comments that are remote in time and not related to the employment decision are
insufficient to establish pretext for discrimination.” Erenberg v. Methodist Hosp., 240 F. Supp.
2d 1022, 1033 (D. Minn. 2003), aff’d, 357 F.3d 787 (8th Cir. 2004). Officer Sampson has not
produced any evidence that establishes a question of fact with respect to the legitimacy of any of
the aforementioned investigations or the discipline handed out in the few instances that it was. He
relies upon a handful of comments unrelated to his insufficient prima facie case of discrimination
to argue that pretext has been shown. The majority of investigations into Officer Sampson were
the result of complaints from citizens or individuals within the department who are not involved
in this lawsuit. While the specific officers upon whom he relies in making his argument for pretext
certainly played a part in the investigations that followed, the only discipline that was ultimately
imposed on Officer Sampson as a result of those investigations amounted to oral counseling, a
written reprimand, and documented training. Officer Sampson has not shown pretext for unlawful
discrimination, and his claim of discrimination based on investigations and discipline fails.
b.

Failure to Promote

Because Defendants have articulated a legitimate, nondiscriminatory reason for the
decision not to promote Officer Sampson after the 2012 and 2013 examinations, the burden shifts
to him to put forth sufficient evidence from which a jury could find that Defendants’ articulated
reason was pretext and the true reason for the decision not to promote Officer Sampson was
unlawful discrimination. Officer Sampson attempts to meet this burden by relying on the affidavit
of Sergeant Barnett, who states that the promotional tests have been “manipulated for years,

28

whereby higher-ranking officers would give the questions and answers to certain white corporals
ahead of time in an effort to ensure that favored corporals were promoted.” (Doc. 54-2, ¶ 4). The
Court finds that no reasonable juror could conclude such testimony is sufficient to establish that
the articulated reason is pretext for unlawful discrimination. 13 See Anderson v. Durham D & M,
LLC, 606 F.3d 513, 522 (8th Cir. 2010) (“Although an employer’s violation of its own policies
may be indicative of pretext, that is not always so.”); see also McCullough v. Univ. of Ark. for
Med. Scis., 559 F.3d 855, 863 (8th Cir. 2009) (“An employer can certainly choose how to run its
business, including not to follow its own personnel policies… as long as it does not unlawfully
discriminate in doing so.”). However, considering this affidavit in the light most favorable to
Plaintiff, all it might reasonably establish is that answers were given ahead of time so that “favored
corporals were promoted.” This does not show that Officer Sampson was passed over due to racial
discrimination; rather, it simply implies that he was not a “favored corporal.” The vast majority—
if not all—of the other applicants for promotion were not members of a protected class. As Officer
Sampson acknowledges, a number of white officers also were passed over for promotion in both
2012 and 2013. (Doc. 54, p. 7). Sergeant Barnett’s affidavit does not state that all white corporals
applying for promotion received the answers ahead of time. Instead, it states only that the
“favored” officers received the answers, regardless of their race. This is insufficient to prove
pretext for racial discrimination. See Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000)
(“[B]ecause Title VII is premised on eliminating discrimination, inappropriate conduct that is

13

The Court notes that in 2013, Officer Sampson finished second on the written portion of
the test. If the objective portion of the test were being manipulated to exclude nonwhite officers
from promotion, then more white officers presumably should have scored higher than Officer
Sampson.
29

inflicted on both sexes, or is inflicted regardless of sex, is outside the statute’s ambit.” (emphasis
in original)).
“[T]o support a finding of pretext, [Officer Sampson] must show that [Defendants] hired
a less qualified applicant.” Kincaid v. City of Omaha, 378 F.3d 799, 805 (8th Cir. 2004)
(citing Duffy v. Wolle, 123 F.3d 1026, 1037 (8th Cir. 1997)) (emphasis in original). Based on its
promotional testing, the Fort Smith Police Department hired the most qualified applicant—
individuals who were thus more qualified than Officer Sampson—each time there was an
opportunity to promote someone to Sergeant in both 2012 and 2013. Therefore, Officer Sampson
cannot establish that the reason offered for promoting others is pretext for racial discrimination,
and Defendants are entitled to judgment on his failure to promote claim.
c.

Failure to Increase Pay

Officer Sampson cannot meet his burden to show Defendants’ articulated reason for not
increasing his pay when he was Assistant Communications Center Supervisor was pretext for
unlawful discrimination. The affidavit of Sergeant Bales makes the conclusory declaration that a
pay increase is authorized by policy for Assistant Communications Center Supervisor. (Doc. 541, pp. 2–3).

The actual policy identified by Defendants in articulating their legitimate

nondiscriminatory reason does not support Sergeant Bales’s conclusion. Officer Sampson does
not otherwise offer evidence that white officers who received effective promotions for special
assignments were given an increase in pay, and he cannot show that Defendants’ articulated reason
was pretext for unlawful discrimination. Judgment against him is proper on this basis.
C.

Retaliation

Officer Sampson claims that Defendants retaliated against him for both filing a complaint
with the EEOC and opposing harassment or discrimination by filing the formal complaint against

30

Sergeant Sprayberry. As a result of engaging in these protected activities, Officer Sampson
specifically alleges that Defendants retaliated against him through the aforementioned
investigations. (Doc. 26, ¶ 89, 97).
To establish a prima facie case of retaliatory discrimination under Title VII, a plaintiff must
show (1) that he engaged in protected activity; (2) that the defendant took an adverse employment
action against him; and (3) that but for his protected activity, the defendant would not have taken
the action against him. Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d 624, 632 (8th Cir. 2005); see
also Wright v. St. Vincent Health Sys., 730 F.3d 732, 737-38 (8th Cir. 2013) (explaining a plaintiff
must show that retaliatory animus was the determinative “but for” cause of the adverse action,
rather than merely a motivating factor). The plaintiff need make only a minimal showing to
establish a prima facie case before the burden of production shifts to the employer. Smith v. Allen
Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002). Officer Sampson likely engaged in two
courses of protected activity, and, as previously mentioned, a factfinder could determine that the
subsequent investigations in which Officer Sampson was a subject were adverse employment
actions. However, Officer Sampson fails to meet his prima facie burden because he cannot meet
the “but for” causation element. See Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016) (“It
is not enough that retaliation was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.”
(quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90–91 (2d Cir. 2015))).
Sixteen investigations in which Officer Sampson was a subject were opened during the
relevant time period. Out of those, seven of the eight most recent investigations started as a result
of citizen complaints and direct communications with those citizens while serving at the
Information Desk. As previously noted, the department has a duty of investigating every citizen
complaint. Of the remaining nine, Officer Sampson was the lone subject in just three of them.

31

Additionally, Officer Sampson was only disciplined after two of the remaining nine
investigations—with a written reprimand and oral counseling. White officers were disciplined as
a result of three of those nine remaining investigations, with Officer Sampson not receiving
discipline in two of those three cases. Officer Sampson has not cited any specific materials from
which a reasonable factfinder could conclude that retaliation was the “but for” cause in these
investigations being opened and the disciplined imposed by them.
Even if Officer Sampson had met his burden of showing a prima facie case, Defendants
have come forward with a legitimate, nondiscriminatory reason for each of the sixteen
investigations. As stated above, Officer Sampson cannot show that the articulated reasons are
pretextual. Temporal “proximity alone is insufficient to establish pretext.” Gibson v. Geithner,
776 F.3d 536, 542 (8th Cir. 2015). “[T]o prove pretext in a retaliation case, the plaintiff ‘must both
discredit [the] asserted reason for the [adverse action] and show the circumstances permit drawing
a reasonable inference that the real reason for [the adverse action] was retaliation.’” Pedersen v.
Bio–Med. Applications of Minn., 775 F.3d 1049, 1055 (8th Cir. 2015) (quoting Gilbert v. Des
Moines Area Cmty. Coll., 495 F.3d 906, 918 (8th Cir. 2007)). Officer Sampson cannot accomplish
either of these requirements, and he has not pointed to any materials in the record from which
pretext for retaliation could reasonably be inferred. Judgment for Defendants is appropriate on
Officer Sampson’s Title VII retaliation claims.
D.

Section 1983 and ACRA claims

In his § 1983 and ACRA claims, Officer Sampson alleges that his reputation and
employment were deprived without due process or equal protection as required by the Fourteenth
Amendment, and that his First Amendment rights were similarly violated because his antidiscrimination complaints were motivating factors in the retaliatory actions taken against him. The

32

§ 1983 property claims and the ACRA claims are analyzed under the same McDonnell Douglas
analytical framework as the Title VII discrimination and retaliation claims. Richmond, 957 F.2d
at 598; Greenlee, 342 S.W.3d at 277–79; Brodie, 2012 WL 90016 at *2. They fail for the same
reasons. Officer Sampson has not provided any evidence of a prima facie case for unconstitutional
deprivation of his reputation and employment without due process.
To succeed on his First Amendment retaliation claim, Officer Sampson must show first
that he spoke as a citizen on a matter of public concern, rather than as an employee. Garcetti, 547
U.S. at 418. If he can make this showing, then he must show that Defendants had no adequate
justification for treating him differently from any other member of the general public. Id. “[W]hen
public employees make statements pursuant to their official duties, the employees are not speaking
as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Id. at 421. Officer Sampson’s internal complaints
appear to have been personal in nature and made as an employee rather than as a citizen. It is not
clear that he could show he was speaking as a citizen on a matter of public concern. Even if he
could, the various bases for each of Defendants’ investigations into Officer Sampson and any
resulting disciplinary actions demonstrate that Defendants had an adequate justification for treating
Officer Sampson differently from any other member of the general public—the investigations
stemmed from potential violations of workplace policies. Officer Sampson has not adequately
supported his First Amendment retaliation claims with citation to materials in the record, and
judgment against him is proper.
IV.

Conclusion
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (Doc. 49)

is GRANTED. Plaintiff Wendell N. Sampson, Jr.’s claims are DISMISSED WITH PREJUDICE.

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Judgment will be entered accordingly.
IT IS SO ORDERED this 8th day of June, 2017.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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