Hamilton v. Springdale, City of, Arkansas et al

Filing 25

ORDER granting in part and denying in part 11 Motion for Summary Judgment. Signed by Honorable Jimm Larry Hendren on June 29, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KAREN HAMILTON

PLAINTIFF

v.

Civil No. 10-5061

CITY OF SPRINGDALE, ARKANSAS;
SPRINGDALE CITY COUNCIL;
JERRE M. VANHOOSE, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
MAYOR; SAM GOADE, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
PUBLIC WORKS DIRECTOR; LINDSEY
DROSTE, INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS ANIMAL
SERVICES MANAGER; and AMANDA
COOPER, ANIMAL CARETAKER

DEFENDANTS

O R D E R
Now

on

this

29th

day

of

June,

2011,

comes

on

for

consideration Defendants' Motion For Summary Judgment (document
#11), and from said motion, the supporting documentation, and the
response thereto, the Court finds and orders as follows:
1.

Plaintiff Karen Hamilton ("Hamilton") alleges that

defendants:
*

deprived her of due process of law in connection with

her termination, in violation of the Fourteenth Amendment;
*

discriminated against her because of her age;

*

conspired to violate her rights under the Constitution;

*

subjected her to retaliation, in violation of the First

Amendment

to

the

U.S.

Constitution

Protection Act of 2007; and

and

the

Whistleblower

*

violated her rights under the Family and Medical Leave

Act.
In addition, Hamilton alleges violations of the Arkansas
Civil Rights Act; intentional infliction of emotional distress
under Arkansas law; defamation under Arkansas law; interference
with the right to contract under Arkansas law; and violation of
the

Arkansas

Whistleblower

Act.

She

seeks

declaratory

and

injunctive relief, compensatory and punitive damages, costs and
attorney fees.
Defendants answered and denied the material allegations of
the Complaint, and now move for summary judgment on all of
Hamilton's federal claims.

They further suggest that if summary

judgment is granted as to all the federal claims, the Court should
decline to hear the pendant state law claims.

The motion is fully

briefed and ripe for decision.
2. The standard governing evaluation of a motion for summary
judgment has recently been summarized as follows:
[S]ummary judgment is proper if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to
judgment as a matter of law.
The movant bears the
initial responsibility of informing the district court
of the basis for its motion, and must identify those
portions of [the record] . . . which it believes
demonstrate the absence of a genuine issue of material
fact. If the movant does so, the nonmovant must respond
by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for
trial. . . . The nonmovant must do more than simply show
that there is some metaphysical doubt as to the material
-2-

facts, and must come forward with specific facts showing
that there is a genuine issue for trial.
Where the
record as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no
genuine issue for trial.
Torgerson v. City of Rochester, --- F.3d ---, 2011 WL 2135636 (8th
Cir. 2011) (internal citations and quotation marks omitted).
Where there are genuine factual disputes, the Court is
required to view the evidence and draw reasonable inferences in
the light most favorable to the party opposing summary judgment.
Scott v. Harris, 550 U.S. 372, 378 (2007).
Pursuant to Local Rule 56.1, the parties have filed

3.

statements of facts which they contend are not in dispute. From
those statements1, the following significant undisputed facts are
made to appear:
*
Arkansas

Hamilton became an employee of the City of Springdale,
("Springdale" or "the City") in 1993.2

She worked as an

Animal Technician in the City's Animal Services Shelter ("the
Shelter").
*

At all times relevant to this case, defendant Sam Goade

("Goade") was the Public Works Director for the City.
*

Defendant Lindsey Droste ("Droste") was hired by the

1

The process of sifting through this material was significantly hampered by the
tendency of both sides to argue their cases in their statements of fact; the Court
believes, however, that what has emerged is a statement of facts that neither side truly
disputes.
2
While defendants say Hamilton had worked for the City since 1986, it appears that
she actually, as of that year, helped originate and manage an organization known as
Adopt-a-Pet, which was "absorbed" by the City in 1993.

-3-

City in 2006 as Animal Services Supervisor.3
Services Manager in the Summer of 2007.

Droste became Animal

From that point forward,

Droste was Hamilton's supervisor; Goade was Droste's supervisor.
*

Upon becoming Shelter Manager, Droste instituted changes

in the procedures for animal euthanasia.

Over a period of some

six months, employees were provided training on the new procedure
by Mitzi O'Dell ("O'Dell").
*

Shortly after becoming Manager at the Shelter, Droste

heard about an incident in which Hamilton referred to two coworkers as "snitches and bitches" and stated that they "better
watch their backs."

Droste reported this incident to Goade, and

Goade issued Hamilton a First Written Warning of Violation.

He

cited Section 3.5 A.13 of the Springdale Personnel and Procedures
Manual (the "Personnel Manual") and stated that "[s]tatements of
this

nature

in

the

presence

of

fellow

employees

is

[sic]

considered conduct unbecoming of an employee of the City and
adversely affects [sic] the morale of the other employees and the
department in general."

Hamilton was directed to conduct herself

"in a manner consistent with the City's personnel policy," and
warned that failure to do so would "result in further disciplinary
action including suspension from duty without pay for five (5)

3
In Droste's deposition, she testified that starting in about March, 2006, she
worked for the City for a year and a half as an "animal welfare officer or animal
control officer," which appears to have involved tasks outside the Shelter. As near as
the Court can determine, Droste was not employed within the Shelter until she became
Animal Services Manager.

-4-

working days."
*

On October 16, 2007, both Droste and Hamilton contacted

Goade, wanting to speak with him.

These requests were occasioned

by a verbal altercation between the two women over a parking
space, during which Hamilton told Droste that Droste's policies
were "bullshit." Hamilton was not disciplined over this incident,
but it was noted in her personnel file.
*

Also in October, 2007, Hamilton and Droste were involved

in an incident over a cat head that was to be tested for rabies,
which resulted in Hamilton complaining to Goade about Droste not
following

state

law.

Droste

was

not

disciplined

over

this

incident.
*

O'Dell informed Droste that Hamilton wanted to continue

performing euthanasia using the former procedure, rather than the
new one instituted by Droste.

In December, 2007, O'Dell wrote

Droste a memo stating that Hamilton should not "be in the rotation
of performing euthanasia."
*

On February 12, 2008, Hamilton was suspended for alleged

inhumane treatment of a dog during euthanasia.
*

Hamilton appealed her suspension to defendant Jerre Van

Hoose ("Van Hoose"), Mayor of Springdale. Van Hoose, relying only
on

information

supplied

by

Goade,

and

without

interviewing

Hamilton, determined that Hamilton's actions were "cruel and
deplorable" and were in violation of the Personnel Manual.

-5-

Van

Hoose further determined that five days' suspension

was too

lenient, and terminated Hamilton.
*

Hamilton appealed her termination to the City Council,

which upheld her suspension but overturned her termination.
*

Hamilton did not return to work after the City Council

overturned her termination, taking medical leave instead.

She

attempted to return to work on May 19, 2008, but Droste told her
she would have to have a doctor's release.

Hamilton's doctor did

not release her, giving her instead a note stating that she should
remain off work.
*

On June 10, 2008, the City sent Hamilton a certified

letter stating that because she had failed to call in or report to
work in violation of the Personnel Manual, she was considered to
have voluntarily resigned.

This letter was, however, returned as

undeliverable.
*

The

City

established

June

30,

2008,

as

Hamilton's

termination date, and sent her two letters detailing her options
under COBRA and asking for the return of her uniforms.

Hamilton

did not respond to these letters.
*

On July 21, 2008, Hamilton wrote a letter to the City,

stating that she had learned of her termination when she watched
a City Council meeting, and that she had not resigned.
*

On August 13, 2008, Van Hoose wrote Hamilton, notifying

her that she had been terminated for "voluntary resignation/job

-6-

abandonment."
*

Hamilton appealed this second termination, but did not

appear at the appeal hearing.

The City Council upheld the

termination decision.
4.

The Court first considers whether summary judgment is

appropriate on Hamilton's claim that she was deprived of due
process of law in connection with her termination4, in violation
of the Fourteenth Amendment.

This claim arises under 42 U.S.C. §

1983, which provides that
{e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . , subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law . . . .
The Due Process Clause of the Fourteenth Amendment provides
that no State shall "deprive any person of life, liberty, or
property, without due process of law."
Defendants argue that Hamilton cannot prevail on this claim
because it depends on her having a property interest in her job,
which she did not have because she was an employee at will.

While

not conceding that she was an employee at will, Hamilton offers no
evidence that she had a continuing expectation of employment with
the City, relying instead on the proposition that she had a

4
Hamilton was actually terminated twice, first in March, 2008, and again in June,
2008. The Court understands the due process claim to relate to the first termination,
and has so analyzed it.

-7-

protected liberty interest that was infringed.
The Eighth Circuit has explained the way in which a protected
liberty interest arises as follows:
To establish protected liberty interests, plaintiffs
[are] required to establish that a [government]
official, in connection with discharging plaintiffs,
publicly made allegedly untrue charges against them
that would stigmatize them so as to seriously damage
their standings and associations in their community, or
foreclose their freedom to take advantage of other
employment opportunities.
*

*

*

In reviewing whether allegedly defamatory statements
are sufficient to warrant a right to a name clearing
hearing, [t]he requisite stigma has generally been
found when an employer has accused an employee of
dishonesty, immorality, criminality, racism, and the
like.
Stodghill v. Wellston School District, 512 F.3d 472, 476 (8th Cir.
2008) (internal citations and quotation marks omitted).
5.

The relevant evidence on this issue is as follows:

*

Hamilton had been employed at the Shelter since 1993,

and had been involved with its predecessor organization, Adopt-APet, since 1986.

She had been performing euthanasia during all

that time.
*

Goade's Disciplinary Notice suspending Hamilton over the

euthanasia incident stated his finding that Hamilton "did not
perform a humane euthanasia on the golden mix in question.

My

finding

of

is

that

employee

Karen

Hamilton

had

the

option

administering a pre-mixed Ketamine/Xylaxine tranquilizer to this

-8-

dog that would have made the euthanasia process more humane.
However, Miss Hamilton neglected to administer this tranquilizer
intramuscularly and in turn the dog did not pass away quickly or
humanely."
*

Hamilton appealed her suspension to Van Hoose.

Van

Hoose reviewed the documentation presented to him (which had been
selected by Goade and Droste), and talked with Goade and Droste,
but refused to hear Hamilton's side of the story.
*

Hamilton testified that much of Cooper's written version

of the euthanasia incident was inaccurate, and that she asked Van
Hoose if she could talk to him about the matter, or if he would
talk to other employees.

When he refused, she wrote him a letter

in which she set out her version of the euthanasia incident.
*

Hamilton's co-worker Karen Jobe ("Jobe") averred that

Hamilton

was

suspended

animal,"

and

that

believed

such

an

for

"[n]o

being

one

who

allegation."

"cruel
knew
When

and

inhumane

[Hamilton]
Hamilton

to

could

appealed

an

have
the

suspension, Jobe planned to speak to Van Hoose on her behalf, but
averred that Droste found out about her plans and warned her not
to follow through.

Jobe took this as a threat, and did not speak

with Van Hoose.
*

Van Hoose resolved the appeal by terminating Hamilton.

In his letter of termination, he stated that in his opinion,
Hamilton's actions were "cruel and deplorable," and that her

-9-

"behavior, conduct, and attitude in this matter are far more
reprehensible than that warranting a suspension."
*

Hamilton

appealed

Van

Hoose's

termination.

The

Personnel Committee of the City Council conducted a hearing in
connection with this appeal, at which Droste testified that
"euthanasia at the shelter was inhumane in the past," and that the
method used was "inhumane" and "very barbaric."
*

Hamilton had an opportunity at the hearing to speak on

her own behalf, and her sister was allowed to speak on her behalf
as well.
*

The City overturned Hamilton's termination but not the

discipline imposed by Goade.
6.

The foregoing evidence will not, in the Court's view,

support a due process claim arising from a protected liberty
interest.
for

the

Assuming, without deciding, that Van Hoose's reasons
termination

were

sufficiently

stigmatizing

under

Stodghill, there is no evidence that any City employee made those
reasons public before the Personnel Committee hearing, which was
held at Hamilton's request.
Moreover, any deprivation of a liberty interest only arises
when the affected employee is not given an opportunity to clear
her name.

Rush v. Perryman, 579 F.3d 908, 912 (8th Cir. 2009).

Hamilton had such an opportunity at the hearing conducted by the
Personnel Committee.

-10-

For these reasons, the Court finds that summary judgment is
appropriate on Hamilton's due process claim.
7.

Defendants next contend that Hamilton cannot establish

the elements of her age discrimination claim, because she cannot
show that she was performing her job as reasonably expected, nor
that age discrimination was the cause of any adverse employment
action.
In

order

to

make

out

a

prima

facie

case

of

age

discrimination, Hamilton must prove the following:
(a)

that she was over 40 years of age;

(b)

that she was meeting the legitimate expectations of her

employer;
(c)

that she was subjected to an adverse employment action;

(d)

that there are facts giving rise to an inference that

and

age discrimination was the reason for the adverse employment
action.
If Hamilton presents a prima facie case, the City then must
articulate a legitimate, nondiscriminatory reason for the adverse
employment action, following which Hamilton must show that the
proffered reason is merely a pretext for unlawful discrimination.
Zhuang v. Datacard Corp., 414 F.3d 849, 854 (8th Cir. 2005).
8.

The Court finds that Hamilton can present a prima facie

case of age discrimination.

-11-

(a)

There is no dispute that Hamilton was over 40 years of

age when the events in suit occurred.
(b)

There is evidence from which a jury could find that

Hamilton was meeting the legitimate expectations of the City up to
the point that Droste became her supervisor.

Hamilton had worked

for the City for many years, received positive evaluations, and
had only minor job-related problems until that time.

Indeed,

Droste herself evaluated Hamilton on July 31, 2007, shortly after
becoming Manager.

Droste rated Hamilton above average in 10 out

of 14 categories, and gave her an overall satisfactory evaluation.
This was just two days before Droste stated in an e-mail to O'Dell
that she "would really like for my other employees to finish their
training so that I can drop the bombshell and ask [Hamilton] to
back away from the euth for a while."
(c)

There is evidence from which a jury could find that

Hamilton suffered an adverse employment action.

The Court has

reference not to Hamilton's March, 2008, termination, but to the
discipline meted out by Goade on February 12, 2008.

(Because the

initial termination was set aside by the City on appeal, it will
not support Hamilton's age discrimination claim.)
An adverse employment action is defined as "a material
employment disadvantage, such as a change in salary, benefits, or
responsibilities," and may include actions that "disadvantage or
interfere with an employee's ability to do his or her job."

-12-

Tademe v. Saint Cloud State University, 328 F.3d 982, 992 (8th
Cir.

2003)

(internal

discrimination case).

citations

and

quotations

omitted)(race

A transfer which "results in a significant

change in working conditions" amounts to an adverse employment
Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th

decision.

Cir. 2000) (age discrimination case).
Goade's discipline was a five-day suspension without pay and
indefinite suspension from the euthanasia rotation and access to
the controlled drug safe.

The evidence before the Court includes

a job description for Hamilton's position of Animal Technician.
One of the ten duties therein listed is "[e]uthanize animals that
are not adoptable or are too sick to save."
records

of

drugs

used

and

order

when

Another is "[k]eep

needed."

Another

"[a]dminister drugs and take care of hurt or sick animals."

is
The

evidence suggests that Goade's discipline directly affected three
of the ten specific responsibilities of Hamilton's job.
affected her pay, since the suspension was without pay.

It also
Given

these aspects of the discipline, a jury could conclude that it was
an adverse employment action.
(d)

There is evidence from which a jury could conclude that

age discrimination was the reason for Goade's action:
*

Droste testified that the major change she instituted

when she became Manager was to change the euthanasia procedure,
from cardiac injections to intravenous injections.
-13-

*

Hamilton -- one of two employees who had been doing

euthanasia

when

Droste

took

over

--

testified

that

Droste

"referred to my old ways continually, and I don't know why.

They

weren't my old ways, they was the way the City ran."
*

An e-mail from Droste to O'Dell on August 2, 2007,

stated that Droste "would really like for my other employees to
finish their training so that I can drop the bombshell and ask
[Hamilton] to back away from the euth for awhile."
*

Hamilton testified that when the "cat head" incident

arose in October, 2007, Droste called her into the office and said
"I think you're too old to change.

Don't you think you need to

seek a new profession?"
*

On

December

13,

2007,

Droste

e-mailed

O'Dell,

the

euthanasia trainer, asking her to put in writing her opinions of
Hamilton, and stating "I will be passing this on to my supervisor.
I am worried that her lack of compassion will never change and I
would

like

your

thoughts

in

writing

as

to

what

you

have

experienced with her as far as resistance, etc. goes."
*

O'Dell responded with a memo which included her opinion

that "I have a concern about one of your employees that shows no
compassion or feeling while in the euthanasia room.

This is Karen

Hamilton, I know she has been at the shelter for along [sic] time
but she is one person that I do not believe will ever change the
way she thinks about euthanasia. . . . You know the old saying

-14-

'you can't teach an old dog new tricks' I never believe that
because I am an old dog and I am always willing to learn something
new everyday I do this job. . . . But if you are trying to teach
someone something and they already think they know all there is to
know and are not willing to be open minded enough to try new ways
of doing things then we are wasting our time. . . ."
A jury could conclude from the foregoing that the Droste was
motivated

by

age

discrimination

to

take

steps

to

cut

back

Hamilton's job responsibilities and reduce her pay.
9.

The

next

step

in

the

burden-shifting

analysis

--

articulation by the City of a legitimate, nondiscriminatory reason
for the adverse employment action -- is not onerous and need not
even be made by a preponderance of the evidence.

Stallings v.

Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006).

The City

satisfied this step by citing Section 3.5 A.13 of the Personnel
Manual, "conduct unbecoming an employee of the City." Such conduct
is defined as conduct that adversely affects morale, operation or
efficiency of the City, or has a tendency to adversely affect,
lower or destroy public respect and confidence, or conduct which
brings disrepute or discredit upon the employee, department or
City.

The conduct recited in the Notice was "did not perform a

humane euthanasia" on a particular dog.
10.

Finally, the Court finds that a jury could conclude that

the articulated reason for Goade's discipline was a mere pretext

-15-

for age discrimination.

The following evidence is relevant to

this portion of the age discrimination inquiry:
*

The method by which Hamilton carried out the euthanasia

in question was the new method Droste had implemented, intravenous
injection.
*

Cooper did not report any problems with the euthanasia

in question for two weeks after it happened.
*

The problem Hamilton encountered was a "blown vein," and

not just one, but multiple blown veins, which complicated the
euthanasia.
and

that

Droste testified that blown veins are not uncommon,

she

had

encountered

them

herself

when

performing

euthanasia.
*

Droste testified before the Personnel Committee that at

the time of the incident there were no formal procedures in place
about when a tranquilizer was to be used in the euthanasia
process, and no policy that an employee could be disciplined for
mistakes during euthanasia.
*

When Droste had presented O'Dell's "can't teach an old

dog new tricks" memo to Goade, he told her they could not take any
action based on it, and that Droste would need to have "some kind
of policy violation."
*

In formulating discipline for the euthanasia incident,

Goade relied entirely on Droste for information about the accepted
policy and practice for euthanasia.

-16-

Goade and Droste jointly

drafted the Disciplinary Notice which identified the applicable
policy as Section 3.5 A.13 of the Personnel Manual.

This was the

same section identified in the Disciplinary Notice issued to
Hamilton about the "snitches and bitches" incident.
A jury could conclude from this evidence that there really
was

not

anything

particularly

untoward

about

the

euthanasia

incident in question, and that it was blown out of proportion by
Droste to get Hamilton fired. A jury could also conclude that
Droste knew there was no violation of any euthanasia policy -because there was none -- and cited a violation of the Section 3.5
A.13 of the Personnel Policy not because it fit the facts, but
because

it

coincided

Disciplinary Notice.
violation

of

the

with

the

citation

in

the

July,

2007,

That Notice warned Hamilton that a second
section

would

be

grounds

for

"further

disciplinary action including suspension from duty without pay for
five (5) working days."
If a jury did draw these conclusions, and did determine that
the reason given by Goade for Hamilton's discipline was not the
real reason, that fact, combined with the other facts relevant to
her age discrimination claim, could support a finding of age
discrimination.

See Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 147 (2000):
Proof that the defendant's explanation is unworthy of
credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it
may be quite persuasive. . . . In appropriate
-17-

circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer
is dissembling to cover up a discriminatory purpose.
Such an inference is consistent with the general
principle of evidence law that the factfinder is
entitled to consider a party's dishonesty about a
material fact as affirmative evidence of guilt.
Moreover, once the employer's justification has been
eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer
is in the best position to put forth the actual reason
for its decision. . . . Thus, a plaintiff's prima facie
case, combined with sufficient evidence to find that
the employer's asserted justification is false, may
permit the trier of fact to conclude that the employer
unlawfully discriminated.
(Internal citations and quotation marks omitted.)
11.

For all the foregoing reasons, the Court concludes that

the City is not entitled to summary judgment on Hamilton's age
discrimination claim.

The Court will, however, grant summary

judgment on this claim in favor of the individual defendants in
their individual capacities, on the basis of their argument that
there is no basis for individual supervisor liability on the age
discrimination claim.

Defendants cite Drye v. University of

Arkansas for Medical Sciences, 2011 WL 30097 (E.D. Ark. 2011),
which in turn relies on Stults v. Conoco, Inc., 76 F.3d 651, 655
(5th Cir. 1996).

While there is no controlling precedent in this

Circuit, Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d
377, 380 (8th Cir. 1995), cites a number of other Circuits that
have so held, reflecting what it calls "a clear consensus on the
issue," and the Court finds these cases persuasive.

-18-

For that

reason, Hamilton's age discrimination claim will be deemed to lie
only against the City, her employer, for the actions of its
supervisory personnel.
12.

Defendants contend that Hamilton cannot show that they

violated her rights under the First Amendment or the Whistleblower
Protection Act of 2007.

Alternatively, if the Court finds that

Hamilton can go forward on her retaliation claim, the individual
defendants in their individual capacities claim the protection of
qualified immunity, and the City and the individual defendants in
their official capacities claim that they are entitled to summary
judgment because there is no showing that any official policy or
custom was involved.
14.

The prima facie elements of a retaliation claim are:

*

that the plaintiff engaged in protected conduct;

*

that she suffered an adverse employment action; and

*

that there was a causal connection between the protected

conduct and the adverse employment action.
Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.
1999).
Hamilton's retaliation claim, as the Court understands it, is
that she was subjected to retaliation in the form of a five-day
suspension without pay and loss of her job duties involving
euthanasia because she complained that Droste violated state law
by

failing

to

transport

for

testing
-19-

the

head

of

an

animal

suspected to have rabies and known to have bitten a person.
13.

The Court believes there is evidence from which a jury

could find that Hamilton engaged in protected conduct: speech. A
governmental employer may place restrictions on the speech of an
employee,

but

restrictions

that

must

be

employee
limited

remains
to

a

their

citizen,
purpose.

and
The

such
First

Amendment protects speech made at work -- even speech related to
the speaker's job -- unless the speech is made pursuant to the
employee's job duties.
(2006).

Garcetti v. Ceballos, 547 U.S. 410, 421

Speech is protected if it is "made as a citizen on a

matter of public concern," i.e., "it relates to a matter of
political, social, or other community concern."

Dahl v. Rice

County, Minn., 621 F.3d 740, 744 (8th Cir. 2010).
(a)

The

favorable

available

evidence,

to

Hamilton,

could

viewed

support

a

in

the

jury

light

most

finding

that

Hamilton's speech regarding the cat head was not a part of her job
duties.

Nothing about rabies testing is listed in the description

of the job duties of an Animal Technician.

In a written statement

regarding the meeting with Goade and Droste in October, 2007,
about the cat head, Hamilton wrote that Goade asked her "why I
couldn't just let it go, and let Lindsey get herself in trouble."
This means of handling the matter would, of course, not have been
an option to one whose job duty it was to speak up about the cat
head, or to insure that rabies testing was carried out as required
-20-

by regulations.
(b)

The evidence could also support a jury finding that

Hamilton's speech related to a matter of "community concern."
There is evidence that rabies is almost invariably fatal, and that
the cat head in question was designated for rabies testing because
the cat had bitten a person.
Also in the record are the Arkansas State Board of Health
Rules

and

Regulations

("Regulations"),

which

Pertaining

authorize

health

to
or

Rabies
law

Control

enforcement

authorities to order a ten-day period of confinement, quarantine,
and observation of any dog or cat that has bitten a human.

The

Regulations further provide that "[i]f the dog or cat dies or is
killed during the 10-day observation period, intentionally or
unintentionally, the head shall be shipped immediately to the
Public Health Laboratory as outlined in Section I.J."

Section

I.J. contains technical details about how to make such shipment,
and notes that "[b]ecause a human life may be endangered, and
because early

diagnosis of rabies is highly advantageous in

selecting treatment for the victim, the fastest and most direct
transportation is encouraged."
Hamilton testified that the cat head sat in the freezer for
several weeks, then co-worker Pamela Sen ("Sen") came to her and
said Droste had told her to "[j]ust throw it away.
in the Dumpster."

Just throw it

Hamilton went to Droste and said "we cannot

-21-

throw that away.

It's against Health Department regulations.

have to take that down to the health department."

We

Droste replied

"I don't appreciate you telling me what to do," and "rushed out
the back gate" with the bucket containing the head.

At that

point, according to Hamilton, she felt she had to call Goade.

She

testified that she told Goade what was happening, and asked to
come talk to him, but he refused to talk to her without Droste
being present.
14.

Hamilton must also show that she suffered an adverse

employment action.

As with age discrimination claims, an adverse

employment action is a material employment disadvantage, such as
a change in salary, benefits, or responsibilities.
Starke, 420 F.3d 738, 744 (8th Cir. 2005).

Meyers v.

The Court has already

analyzed whether Hamilton sustained an adverse employment action,
and has found that a jury could so conclude.

It need not repeat

that analysis.
15.

Finally, the Court believes the evidence could support

a finding of causal relationship between Hamilton's speech and her
suspension.

The cat head incident took place in the middle of

October, 2007, culminating in the meeting between Droste, Goade,
and Hamilton on October 17, 2007.

Sen averred that afterwards,

Droste's attitude and behavior toward Hamilton "changed to the
worse."

On February 12, 2008, Hamilton was suspended over the

euthanasia incident.

-22-

For these reasons, summary judgment on Hamilton's First
Amendment retaliation claim is not appropriate.
16.

Defendants contend that Hamilton cannot make out a claim

of retaliation under the Whistleblower Protection Act of 2007,
because it only protects federal employees. Hamilton did not cite
any statute number for this Act in her Complaint, and the Court
has been unable to locate such a statute.

It has, however, found

a reference to "the Whistleblower Enhancement Protection Act of
2007 (H.R. 985)" in an unpublished case, Yates v. John Marshall
Law School, 2008 WL 4358313 (N.D. Ill. 2008).
found in a footnote,

That reference,

is to the effect that "this bill has not yet

been signed into law."

The same footnote states that "the

Whistleblower Protection Act of 1989 (which may ultimately be
amended

by

H.R.

985)

'protects

the

employees

of

federal

agencies'," thus echoing and supporting defendants' argument on
this issue.
Given Hamilton's failure to cite a specific statute, and the
indications that the statute she has cited by its reference name
has not been enacted into law, the Court finds that summary
judgment on this claim is appropriate.
17.

Defendants

also

contend

that

they

have

qualified

immunity for Hamilton's First Amendment retaliation claim.

They

contend that, even if a First Amendment violation occurred, a
reasonable officer would not have known that the right was clearly
-23-

established at the time of the violation.
Qualified immunity "shields a public official from liability
for civil damages when his conduct does not violate clearly
established
reasonable

statutory
person

or

would

constitutional

have

known."

A

rights
public

of

which

official

a
is

entitled to qualified immunity
unless (1) the evidence, viewed in the light most
favorable to [plaintiff], establishes a violation of a
constitutional or statutory right, and (2) the right
was clearly established at the time of the violation,
such that a reasonable official would have known that
his actions were unlawful.
Gardner v. Board of Police Commisioners For Kansas City, Missouri,
--- F.3d ---, 2011 WL 2226490 (8th Cir. 2011) (internal quotation
marks omitted).
The Court has already determined that Hamilton can proceed to
a jury on the basis of her evidence that her First Amendment
rights were violated, thus satisfying the first aspect of the
qualified immunity analysis.

It turns now to a consideration of

whether a public employee's right to protected speech was clearly
established in 2007 and 2008, when the events in suit took place.
In Pickering v. Board of Education, 391 U.S. 563, 574 (1968),
the Supreme Court held that a public employee's "right to speak on
issues of public importance may not furnish the basis for his
dismissal from public employment." In Givhan v. Western Line
Consolidated School District, 439 U.S. 410 (1979), the Supreme

-24-

Court recognized that the First Amendment protects speech made
privately to a public employee's employer, to the same extent such
speech would be protected if it were made publicly.
In Connick v. Myers, 461 U.S. 138, 147 (1983), the Court
refined its earlier public employee free speech holdings, saying
that "when a public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon matters of
personal

interest,

absent

the

most

unusual

circumstances,

a

federal court is not the appropriate forum in which to review the
wisdom of a personnel decision taken by a public agency allegedly
in reaction to the employee's behavior."
From these cases, it can be seen that at least since 1983,
the constitutional underpinnings for Hamilton's First Amendment
claim have been clearly established law.

Moreover, the City

followed these principles in its Whistleblower Policy, set out at
Section

3.5

of

the

Personnel

Manual,

which

provides

that

"employees are encouraged to bring to the attention of the City
any improper actions of City officials and employees.
will

not

retaliate

against

any

employee

who

makes

The City
such

a

disclosure in good faith and in accordance with the procedures set
forth in this Policy."
Given the Supreme Court cases cited herein, and the City's
own Whistleblower Policy, the Court finds that defendants are not
entitled to qualified immunity on Hamilton's First Amendment

-25-

retaliation claim.
18.

The

City,

and

the

individual

defendants

in

their

official capacities, contend that they are entitled to summary
judgment on the retaliation claim because there is no evidence
that any official policy or custom led to retaliation.
A suit against a public official in his or her official
capacity is simply an action against the entity of which the
individual is an agent, and some policy or custom of the entity
"must have played a part in the violation of federal law" for
liability to attach.
(1985).

Defendants

Kentucky v. Graham, 473 U.S. 159, 166
contend

that

Hamilton

cannot

show

the

existence of any such policy or custom.
Hamilton responds that she "is not alleging an actual, formal
policy of the City" but rather "that the City and its officials
undertook an informal practice or custom of not training its
officials as to City policies and of failing to discipline its
officials when they refused to adhere to those policies," thus
"creating the very atmosphere" which allowed the circumstances
alleged

in

her

Complaint

to

occur.

She

points

to

Goade's

testimony that he was not given any training in administration or
the enforcement of City rules and regulations, and evidence that
Goade

and

Van

Hoose

were

unfamiliar

with

City

regulations

regarding the handling of rabies specimens.
Hamilton has failed to offer sufficient evidence in support

-26-

of her "failure to train" theory.

As explained in Connick v.

Thompson, 131 S.Ct. 1350, 1359 (2011):
In limited circumstances, a local government's decision
not to train certain employees about their legal duty
to avoid violating citizens' rights may rise to the
level of an official government policy for purposes of
§ 1983. A municipality's culpability for a deprivation
of rights is at its most tenuous where a claim turns on
a failure to train. . . . To satisfy the statute, a
municipality's failure to train its employees in a
relevant respect must amount to deliberate indifference
to the rights of persons with whom the [untrained
employees] come into contact.
Only then can such a
shortcoming be properly thought of as a city policy or
custom that is actionable under § 1983.
[D]eliberate indifference is a stringent standard of
fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his
action. Thus, when city policymakers are on actual or
constructive notice that a particular omission in their
training program causes city employees to violate
citizens' constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to
retain that program.
(Internal citations and quotation marks omitted.)
Hamilton has presented nothing that would rise to the level
of proof required by Connick.

There is no evidence that City

policymakers were on notice that any lack of training might cause
a First Amendment violation.

Nor is there any evidence that the

City, knowing of some misdeed by one of its employees in this
matter, failed to discipline him or her.

Summary judgment will,

therefore, be granted to the City, and to all defendants in their
official capacities, on Hamilton's retaliation claim.
19.

Defendants argue that Hamilton cannot present a prima
-27-

facie case of conspiracy to violate her rights under 42 U.S.C. §
1985, because such a claim would require her to show a conspiracy
motivated by discriminatory animus arising out of her race, color,
religion,

sex

or

national

origin,

whereas

she

alleges

discrimination because of her age.
The statute in question provides as follows:
If two or more persons in any State . . . conspire . .
. for the purpose of depriving, either directly or
indirectly, any person . . . of the equal protection of
the laws, or of equal privileges and immunities under
the laws . . . ; in any case of conspiracy set forth in
this section, if one or more persons engaged therein
do, or cause to be done, any act in furtherance of the
object of such conspiracy, whereby another is injured
in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may
have an action for the recovery of damages occasioned
by such injury or deprivation, against any one or more
of the conspirators.
42 U.S.C. § 1985(3).
In the absence of cases deciding whether § 1985 can be used
to assert an age discrimination claim, the Court has looked to
cases that have considered whether an age discrimination claim can
be asserted under 42 U.S.C. § 1983. These cases are instructive
because § 1985, like § 1983, does not create rights, it merely
provides

a

vehicle

to

vindicate

rights

conferred

by

the

Constitution or laws of the United States. Great American Federal
Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979);

Gatlin

ex rel. Estate of Gatlin v. Green, 362 F.3d 1089, 1093 (8th Cir.

-28-

2004).
Most cases that have considered the issue hold that the ADEA
is the exclusive remedy for age discrimination.

See, e.g.,

Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051, 1060
(9th Cir. 2009); Lafleur v. Texas Department of Health, 126 F.3d
758 (5th Cir. 1997); Zombro v. Baltimore City Police Department,
868 F.2d 1364, 1369 (4th Cir. 1989).
There is one case in the Eighth Circuit to the contrary,
Mummelthie v. City of Mason City, Iowa, 873 F.Supp. 1293 (N.D.
Iowa 1995), aff'd, 78 F.3d 589 (8th Cir. 1996), but the Court
declines to follow it.

The analysis of the District Court has not

been

other

adopted

by

any

court,

and

the

Eighth

Circuit's

affirmance was based not on that analysis, but on the fact that
Mummelthie presented no evidence of age discrimination.
The Court is persuaded by the cases finding that the ADEA is
the exclusive remedy for age discrimination, which is dispositive
of Hamilton's § 1985 claim.

One of the essential elements of a

claim under § 1985(3) is injury to the person or property of the
plaintiff or deprivation of a right or privilege of citizenship.
Larson by Larson v. Miller, 76 F.3d 1446 (8th Cir. 1996).
Hamilton claims injury caused by a conspiracy to discriminate
against her because of her age, which is simply another way of
seeking relief for age discrimination.

Since the ADEA is her

exclusive remedy, the Court concludes that Hamilton's § 1985 claim
-29-

-- to the extent it relies on age discrimination -- should be
dismissed.
20.

Hamilton contends, however, that her conspiracy claim is

related to her First Amendment retaliation claim, and that she has
presented evidence that Droste and O'Dell conspired to violate her
First Amendment rights.

The Court has found evidence from which

a jury could conclude that Droste enlisted O'Dell to help her
develop a case to present to Goade, in connection with Hamilton's
age discrimination claim.

Hamilton points to no evidence that

would link O'Dell to any animus based on the First Amendment,
however.

In the absence of any such evidence, the Court finds

that summary judgment is appropriate as to all defendants on
Hamilton's conspiracy claim.
21.

Defendants contend that they are entitled to summary

judgment on Hamilton's claim under the Family and Medical Leave
Act ("FMLA"), because Hamilton received the 12 weeks of protected
leave she was entitled to under the Act -- and more -- and failed
to return to work at the conclusion of this leave.
The FMLA provides for a period of twelve weeks' leave in any
twelve-month

period

for

an

employee

with

a

"serious

health

condition that makes the employee unable to perform the functions
of the position of such employee."

29 U.S.C. § 2612(a)(1).

At

the end of this leave, the employee is entitled to be restored to
her original position, or an equivalent one.
-30-

29 U.S.C. § 2614.

This job protection is not indefinite, however.

Many courts

have found that if an employee fails to return to work after the
twelve week period ends, she is not entitled to job restoration.
See, e.g., Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757,
763 (5th Cir. 2001); Hicks v. Leroy's Jewelers, Inc., 225 F.3d 659
(6th Cir. 2000) (unpublished); and Beckendorf v. Schwegmann Giant
Super Markets, Inc., 134 F.3d 369 (5th Cir. 1997) (unpublished).
The evidence on this issue is as follows:
*

David Tritt ("Tritt"), Human Resources Director for the

City, testified that after her termination was overturned by the
City Council, Hamilton was allowed "administrative leave" until
March 17, 2008.

Hamilton did not return on March 17, submitting

instead a note from Dr. Cooper that took her off work.
*

*

Tritt sent Hamilton a certified letter on June 10, 2008,

notifying her that since she had failed to call in sick or report
for work since June 4, 2008 -- when she was scheduled to see Dr.
Cooper -- she was "considered to have voluntarily resigned . . .
by

reason

of

abandonment

of

position."

This

letter

went

unclaimed.
*

On July 21, 2008, Hamilton sent Goade a letter stating

that she had seen a June 24 City Council meeting on television,
and learned that she was considered to have resigned.

She stated

that "at no time have I ever resigned my position as Animal
Technician or my employment with the City of Springdale," and that
-31-

she was "doing all that I can to get well, and . . . I look
forward to returning to my position. . . ."
*

Tritt sent Hamilton a letter on July 24, 2008, informing

her that her "termination date was established as June 30, 2008 by
reason of voluntary resignation/job abandonment."
This

evidence,

which

is

uncontroverted,

indicates

that

Hamilton was on leave as an employee from March 18, 2008, until
June 30, 2008, a period of more than twelve weeks.

That being the

case, there is no merit to her FMLA claim, and summary judgment as
to that claim will be granted.
22.

Defendants suggest that Hamilton's state law claims

should be dismissed, but their suggestion is predicated entirely
on their expectation that all of her federal claims would be
dismissed.

That has not occurred.

Defendants also suggest that if the Court should retain
jurisdiction over the state law claims, summary judgment should be
granted on them for "all the reasons stated above" in connection
with the federal claims.

This, of course, cannot be done.

Each

claim must be analyzed on the basis of its own elements, which
often differ even between very similar state and federal claims.
The state claims will not, therefore, be dismissed.
IT IS THEREFORE ORDERED that Defendants' Motion For Summary
Judgment (document #11) is granted in part and denied in part.
The motion is denied insofar as it seeks summary judgment on

-32-

Hamilton's claim that she was subjected to discrimination because
of her age; her claim that she was subjected to retaliation in
violation of the First Amendment; and her state law claims.
The motion is granted in all other respects.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE SEY

-33-