Holland v. Washington County, Arkansas et al

Filing 22

MEMORANDUM OPINION AND ORDER. Signed by Honorable Timothy L. Brooks on April 14, 2016. (src)

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

PLAINTIFF

BRANDON HOLLAND
v.

CASE NO. 5:15-CV-05088

WASHINGTON COUNTY, ARKANSAS;
MARILYN EDWARDS, individually
and in her official capacity;
DAN SHORT, individually
and in his official capacity;
SHAWN SHRUM, individually
and in his official capacity; and
DONNIE COLEMAN, individually
and in his official capacity

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Presently before the Court are Defendants Washington County's, Marilyn
Edwards', Dan Short's, Shawn Shrum's, and Donnie Coleman 's Motion for Summary
Judgment (Doc. 11 ), and Plaintiff Brandon Holland's Response in Opposition (Doc. 17).
The Motion is now ripe for decision. For the reasons stated herein, Defendants' Motion
for Summary Judgment is GRANTED .

I.

BACKGROUND

The Court recites the following facts in the light most favorable to Holland . See

Canada v. Union Elec. Co. , 135 F.3d 1211 , 1212-13 (8th Cir. 1997). At all times relevant
to this case , Holland was employed as a Heavy Equipment Operator ("HEO") for the
Washington County Road Department (the "Road Department" or the "Department") in
Washington County, Arkansas. The Defendants , aside from the County itself, were all
officials and employees of the County: Marilyn Edwards was the County Judge-a
position that is not judicial in nature , but is more akin to being the CEO for the County;
1

Dan Short was Edwards' Chief of Staff; Donnie Coleman was the Superintendent of the
Road Department; and Shawn Shrum was the Assistant Superintendent of the Road
Department (collectively, "Individual Defendants").
One morning during the late-summer or early-fall months of 2013, Jeff Williams,
a then-candidate for County Judge of Washington County, stopped by the Road
Department's shop with some doughnuts for Department employees. As a group of
employees indulged in those treats, Williams spoke to them about certain changes in
Department policies that he would enact if elected. Holland liked Williams' ideas, and
decided at that time to support his candidacy for County Judge. A couple of weeks later,
Holland began discussing his support for Williams in the Department shop's break
room- a place where matters of politics were casually discussed along with other social
happenings in the mornings before employees were dispatched to various worksites
along the County's roads . He also discussed his support for Williams at the job site from
time to time .
During October of that year, Holland saw Shawn Shrum at a local football game
in Praire Grove , Arkansas . Shrum struck up a conversation with Holland about Williams,
wherein Holland expressed suppo rt for his candidacy. What by all accounts was a
cordial discussion ensued , with Shrum taking a position in support of the incumbent
Judge, Marilyn Edwards.
Approximately two weeks later, on November 4, 2013 , a Department employee
named Justin Tyree abruptly resigned his position to take a higher-paying job
elsewhere. Tyree's main job responsibility was to operate a backhoe on the
Department's tile crew. Department Superintendent Donnie Coleman made the decision

2

to transfer Holland to the tile crew to replace Tyree , at least temporarily. Holland was
previously assigned to operate a bulldozer on the new construction crew, a job which he
preferred .
After spending approximately two weeks on the tile crew, Holland had a meeting
with Shrum , Coleman , and another supervisor named Rusty Smith. At the meeting ,
Holland expressed his preference for returning to the new construction crew to operate
a bulldozer. Shrum and Coleman declined to grant his request. About a week later,
Holland 's access to the County truck that he had previously used to commute to and
from work was taken away. Also around that time , rumors began to swirl around the
Department that Holland had been transferred to the tile crew because of his support for
Williams. This led to a parking-lot confrontation between Holland and Shrum . In short,
Shrum accused Holland of spreading the rumor, and Holland denied the accusation.
Either Shrum or Holland suggested that they have a meeting the next day to resolve the
matter.
The next day, a meeting wa s indeed held in Coleman's office between Holland ,
Coleman , Shrum , Smith , and another supervisor named Jeff Crowder. The meeting
became heated , and both Holland and Shrum raised their voices at each other. At one
point, Shrum went to go shut the door to Coleman's office , and Holland obstructed his
ability to do so , stating that he had nothing to hide and wanted everyone to hear the
conversation. Also during the meeting , Holland called Shrum "a lying piece of shit. "
(Doc. 19-1 , p. 41 ). Towards the conclusion of the meeting , Shrum stated that Holland
would not be allowed to operate a backhoe that day, for fear that he was too angry and
would endanger his co-workers or ruin the equipment. Instead , Holland was assigned to

3

help remove dirt and snow that had accumulated in peoples' lawns as a result of
plowing the County's roads . On that particular day the tile crew was working with
inmates on a work-release assignment to complete that task.
Holland refused the assignment. After confirming that Holland was in fact
refusing , Coleman called Dan Short to inform him of what had happened . Short
discussed the matter with Edwards , and they agreed that the proper course of action
was to fire Holland . Short arrived at Coleman 's office shortly thereafter, confirmed that
Holland was refusing his assignment, and told him that his employment with the
Department was terminated .
Holland filed his Complaint (Doc. 1) on April 17, 2015 , alleging that he was
transferred and terminated because of his support for Williams, in violation of the First
Amendment, the Arkansas Civil Rights Act ("ACRA"), and Arkansas common law.
Defendants filed an Answer (Doc. 4) on July 7, 2015 , generally denying Holland 's
allegations, and then moved for summary judgment on January 22 , 2016 . Defendants'
Motion for Summary Judgment (Doc. 11) argues: (i) that Holland cannot make out a
prima facie First Amendment violation because he cannot prove causation and because
his transfer was not an adverse employment action ; (ii) that even if he has made out a
prima facie case , Defendants have shown a neutral justification for Holland 's discharge ;
(iii) that even if Holland has proved a First Amendment violation , his rights were not
clearly established , so the Individual Defendants are entitled to qualified immunity; (iv)
that Holland has failed to prove County or official capacity liability; (v) that Holland has
failed to prove a First Amendment prior restraint claim ; and (vi) that Holland has failed to
prove the Arkansas state tort of outrage. After reciting the legal standard for summary

4

judgment, the Court discusses Defendants' Motion below, and finds that it should be
granted .
11.

SUMMARY JUDGMENT LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed . R. Civ. P. 56(a) . The Court must view the facts in the light most
favorable to the non-moving party, and give the non-moving party the benefit of any
logical inferences that can be drawn from the facts . Union Elec. Co., 135 F.3d at 121213. The moving party bears the burden of proving the absence of any material factual
disputes. Fed . R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S . 574, 586-87 (1986); Nat'/ Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co.,
165 F.3d 602 (8th Cir. 1999). If the moving party meets this burden , then the nonmoving party must "come forward with 'specific facts showing that there is a genuine
issue for trial. "' Matsushita , 475 U.S . at 587 (quoting Fed. R. Civ. P. 56(c)). These facts
must be "such that a reasonable jury could return a verdict for the nonmoving party."
Allison v. Flexway Trucking, Inc., 28 F .3d 64, 66 (8th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 , 248 (1986)) . "The nonmoving party must do more
than rely on allegations or denials in the pleadings, and the court should grant summary
judgment if any essential element of the prima facie case is not supported by specific
facts sufficient to raise a genuine issue for trial. " Register v. Honeywell Fed. Mfg. &
Techs. , LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp v. Catrett, 477
U.S. 317, 324 (1986)).

5

Ill.
A.

DISCUSSION

Holland's First Amendment and ACRA Claims

The parties agree that to "establish a prima facie case of retaliation , a plaintiff
must allege and prove that: (1) [he] engaged in activity protected by the First
Amendment; (2) the defendant took an adverse employment action against [him] ; and
(3) the protected conduct was a substantial or motivating factor in the defendant's
decision to take the adverse employment action." Davison v. City of Minneapolis, Minn .,
490 F.3d 648 , 654-55 (8th Cir. 2007) (citing Mt. Healthy City Sch . Dist. v. Doyle , 429
U.S . 274, 287 (1977)).1 If a plaintiff meets this burden , "the burden shifts to the
defendant to demonstrate that the same employment action would have been taken in
the absence of the protected activity." Id. at 655 (citing Mt. Healthy, 429 U.S. at 287). "If
the employer meets this burden , the burden shifts back to the employee to show that
the employer's actions were a pretext for illegal retaliation ." Morris v. City of Chillicothe ,
512 F.3d 1013, 1019 (8th Cir. 2008) . 'This third step of showing that a defendant's
justification for firing is unworthy of credence is harder to overcome than the prima facie
case because evidence of pretext is viewed in the light of the employer's justification."
Id. Finally, "ACRA claims undergo the same analysis because the free speech
protections of the Arkansas Constitution are no more generous than those of the First
Amendment. " Stoner v. Ark. Dep 't of Corr., 983 F. Supp . 2d 1074, 1099 (E.D. Ark. 2013)
(citing McCullough v. Univ. of Ark. for Med. Scis. , 559 F.3d 855, 865 (8th Cir. 2009)).
1

The parties do disagree , however, about whether the Title VII case University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) , replaces the
"substantial or motivating factor" standard announced in Mt. Healthy with a "but for"
causation test. For reasons which will become obvious, the Court need not settle this
dispute, and will assume for the purposes of this Opinion that the Mt. Healthy standard
still applies to the First Amendment.
6

1.

Holland's Prima Facie Case

The Court finds that Holland can establish a prima facie First Amendment
violation by the narrowest of margins. As a preliminary matter, in reaching this
conclusion, the Court assumes that Holland engaged in activity protected by the First
Amendment , a point not contested by Defendants. It also assumes that Holland's
transfer to the tile crew was an adverse employment action , an assumption which in any
event has some merit given that the transfer resulted in his loss of access to a County
truck. See Pessoa Const. Co. v. N.L.R.B. , 507 F. App'x 304, 307-08 (4th Cir. 2013)
(unpublished) (finding that a change in vehicle-use policy that prohibited plaintiff from
commuting in his company vehicle was an adverse employment action); Murry v.
Entergy Ark. , Inc. , 2012 WL 2450812, at *9 (E .D. Ark. June 27 , 2012) (concluding that a

job transfer resulting in a plaintiff's loss of access to his company vehicle used for
commuting was an adverse employment action) .
Focusing now on the third prong of the prima facie test, Holland argues that both
his termination and his transfer to the tile crew were adverse employment actions
motivated by his protected activity.
Addressing his termination first , the record is clear that Short and Edwards made
the decision to terminate Holland .2 The record is equally clear that Edwards and Short

See Doc. 13-2, ~ 5 (Edwards Aff.) ("After a brief conversation , Mr. Short and I agreed
that termination was the appropriate response in light of Mr. Holland's actions that
morning ."); Doc. 13-3, ~ 5 (Short Aff.) ("After speaking with Shrum , I met briefly with the
County Judge, Marilyn Edwards, and we agreed that termination was the appropriate
response in light of Mr. Holland 's actions that morning ."); Doc. 13-5, ~ 5 (Coleman Aff.)
("I was not involved in the formulation of the decision to terminate Mr. Holland .... ");
Doc. 13-6, ~ 5 (Shrum Aff.) ("I was not involved in the decision to terminate Mr. Holland
. .. .").
2

7

had no knowledge of Holland 's support for Williams' candidacy or opposition to
Edwards'. 3 Because Holland cannot show that the defendants who made the decision
4

to terminate him even knew of his protected activity, it would be impossible for a
reasonable jury to conclude that his protected activity was a substantial or motivating
factor in their decision to do so. Cf. Wolff v. Berkley Inc. , 938 F.2d 100, 103 (8th Cir.
1991) ("[A] causal link does not exist if the employer is not aware of the employee's
statutorily protected activity. "). Accordingly, Holland's termination cannot be used to
establish his prima facie claim. 5
I

Holland's transfer to the tile crew is a closer call. It is undisputed that it was
Coleman's decision to transfer Holland. 6 Coleman , like Short and Edwards , asserts that

See Doc. 13-2, ~ 6 (Edwards Aff.) ("I did not learn of Mr. Holland's purported support
of Jeff Williams (and/or opposition to me) in the County Judge's race , or of his
conversation with Shawn Shrum at a football game regarding the same, until well after
Mr. Holland's termination. "); Doc. 13-3 ~ 6 (Short Aff.) (also denying such knowledge).
3

4

At several points in his Response Brief (Doc. 18) Holland concludes that Shrum made
the decision to fire him. This conclusion is simply not supported by the record citations
he offers for the proposition . For example, Holland declares that it was "Shrum's
decision to terminate Plaintiff, and he had the authority to do it." (Doc. 18, p. 8). He then
cites to an excerpt from Shrum's deposition testimony that may lend support to the latter
claim (that Shrum had the authority to terminate Holland) but does nothing to support
the former (that Shrum did terminate Holland). (Doc. 19-7, p. 103). Showing that Shrum
had the authority to terminate Holland is far from tantamount to showing that he in fact
did .
5

Even if Holland's term ination could be used to establish his prima facie claim , the
Court would find that Defendants have offered a neutral justification for his
termination-namely, his actions during the meeting in Coleman 's office . Nothing that
Holland has offered in response , moreover, indicates that this justification is pretextual.
6

See Doc. 19-7, p. 132 (Shrum Dep .) ("Q: Okay. And I can 't remember, you may have
answered this, but whose decision was it to move Mr. Holland to the tile crew? A:
Donnie's."); Doc. 19-9, p. 201 (Coleman Dep.) ("Q : Okay. Mr. Holland was transferred to
the tile crew? A: I - I did that because I - whenever I hired Mr. Holland he owned his
own backhoe and dump truck."); Doc. 13-5, ~ 2 (Coleman Aff.) ("In early November,

8

he was completely unaware of Holland's support for Williams at the time he made the
decision . The evidence supporting this assertion is substantial .7
The evidence to the contrary offered by Holland is thin , and consists in significant ·
part of conjecture and speculation . For example , Holland insinuates that Coleman must
have known about his support for Williams due to Coleman 's office 's proximity to the
break room-where Holland frequently discussed politics-and because Coleman had
office spies who reported the content of political conversations back to him. For
example, a former Department employee, Michael McCoy, stated that "Donnie
Coleman 's office was close to the breakroom , and he could hear conversations that
occurred in the breakroom. Also , it was well known that certain employees reported the
political conversations back to Donnie Coleman. " (Doc. 19-5,

ir

2). Another former

employee, Fred Davis, opined that he was "98-percent" sure, but "could be wrong" that
three mechanics were "snitches" who would spread what they heard in the break-room
around the office . (Doc. 19-2, pp. 16-17). Even when viewed in the light most favorable
to Holland , the Court cannot say that any of this indicates that Coleman knew of
Holland 's support for Williams. Unsubstantiated speculation about workplace snitches
will not help Holland carry his burden at summary judgment. See Bloom v. Metro Heart

2013, I made the decision to move Brandon Holland from the new construction crew to
the tile crew." ); id. at ir 3 ("I made the decision to move Mr. Holland . .. on my own . . .
.").
7

See Doc. 13-5, if 3 ("At the time that I moved Mr. Holland to the tile crew in November,
2013, I had not heard of Mr. Holland 's purported support of Jeff Williams and/or
opposition to Judge Edwards' candidacy in the County Judge's race and had not heard
of his conversation with Shawn Shrum at a football game regarding the same. "); Doc.
19-9, p. 212 (Coleman Dep.) (Q : "Did you have any idea that [Holland] was supporting
Jeff Williams? A: No.") ; Doc. 13-6, ir 2 (Shrum Aft.) (declaring that he did not tell anyone
except his wife about the football-game conversation with Holland because "it was such
a normal conversation" and he "thought very little of it").

9

Grp. of St. Louis, Inc., 440 F.3d 1025, 1028 (8th Cir. 2006) (declaring that "speculation

and conjecture are insufficient to defeat summary judgment").
Holland also argues that Coleman must have known about his support for
Williams because he informed Coleman of his political preference himself. Holland
declared in his affidavit that, "Donnie Coleman knew that I supported Jeff Williams. I told
him about the conversation with Shawn Shrum at the football game, and I told him that I
supported Jeff Williams." (Doc. 19-4, ~ 4 ). The first clause of this statement is
conclusory, and thus is not entitled to any weight at summary judgment. E.g., Armour &
Co. v. Inver Grove Heights , 2 F.3d 276 , 279 (8th Cir. 1993) ("Conclusory affidavits do

not provide a basis upon which to der:iy motions for summary judgment. "). The second
two clauses do not support Holland 's prima facie case either. 8 These clauses do not at
all indicate when Holland informed Coleman of his support for Williams-it may have
been well after his transfer. That conclusion is consistent with the sheer lack of any
deposition response indicating that Holland told Coleman of his conversation with
Shrum or his support for Williams, facts which would seem obvious to have mentioned
at several points.9 It is also consistent with Holland 's framing of the timing in his

8

As an aside , while at first glance these two clauses appear to be hearsay, the Court
finds that they may be admissible . Neither statement necessarily needs to be admitted
for the truth of the matter asserted-that the conversation with Shrum actually
happened or that Holland actually supported Williams, respectively- to evince
Coleman 's knowledge of Holland's support for Williams. The fact of the conversation
alone is evidence.
9

E.g. Doc. 19-1 , p. 9 ("Had you made it known in any way prior to your termination from
the county that you were supporting Jeff Williams?") ; id. at p. 13 ("Other than
conversations in the break room did you share your support for Jeff Williams in the
election in any other way prior to your termination?").

10

Response Brief and Statement of Material Facts in Dispute.

10

Accordingly, inferring that

Holland told Coleman of his support for Williams before Coleman 's decision to transfer
him would be unreasonable, and cannot form the basis of Holland 's prima facie case.
See Scott v. Harris , 550 U.S. 372 , 378 (2007) ("Courts are required to view the facts
and draw reasonable inferences in the light most favorable to the party opposing the
summary judgment motion.") (quotation and alteration omitted) (emphasis added) .
Discounting the conjecture about workplace informants and Holland 's above
declaration leaves only two comments by Holland's immediate supervisors-to the
effect that Holland's transfer was politically motivated . First, the new construction crew
supervisor, Rusty Smith , supposedly told Holland that he would be moved in retaliation
for supporting Williams . See Doc. 19-1 , p. 32 (Holland Dep .). Second , Holland states
that Smith told the tile crew supervisor, Jeff Crowder, and then Crowder told him , that
he was transferred in retaliation . See id. at 66 ; Doc. 19-13, p. 2. As a threshold matter,
the Court must determine whether Holland's self-serving recollection of his supervisors'
statements are inadmissible hearsay or vicarious admissions against the County
Defendants. The latter can be used as evidence in opposition to summary judgment,
whereas the former cannot. 11 The distinction here is a close call , but the Court finds

1

°

Compare Doc. 18, p. 5 ("Plaintiff told Coleman about the conversation with Shrum at
the football game , and Shrum 's displeasure of Plaintiff's political positions. Coleman
responded by telling Plaintiff to stop engaging in political speech because 'stirring up
shit on the job wasn 't good for the County."') (quoting Doc. 19, ~ 11 ), with Doc. 19, ~ 11
("Approximately two weeks after Plaintiff's move to the Tile Crew, Plaintiff requested a
meeting . . . . At this meeting , Coleman became upset and told Plaintiff that 'stirring up
shit on the job wasn 't good for the County. "') (emphasis added).
11

Generally speaking , hearsay is an out of court statement offered in court to prove the
truth of the matter asserted in the statement. See Fed . R. Evid . 801 (c) . Subject to
several exceptions , hearsay is inadmissible at trial. See Fed. R. Evid. 802 . A district
11

these statements to be vicarious admissions under Federal Rule of Evidence
801 (d)(2)(D).
A statement offered against an opposing party is not hearsay. The same is true
for statements "made by [a party opponent's] agent or employee on a matter within the
scope of that relationship and while it existed. " Fed. R. Evid. 801 (d)(2)(D). The crux of
the issue here is whether the alleged statements were made within the supervisors'
scope of employment. See Ahlberg v. Chrysler Corp., 481 F.3d 630 , 636 (8th Cir. 2007)
("[T]o gain admission of a statement, the proffering party must show that the statement
was within the declarant's scope of employment."). Crowder and Smith are supervisors
of the crews that Holland was transferred to and from , respectively. While it was
Coleman 's decision alone to transfer Holland from the new construction crew to the tile
crew, that fact does not preclude a finding that the matter was also within the scope of
employment of more immediate supervisors. Accord Wilson v. Budco, 762 F. Supp. 2d
1047, 1061 (E.D . Mich . 2011) ("Whether something is within an employee's scope of
employment extends beyond matters involving direct decision makers ."). Thus, for
purposes of this motion , the Court finds that matters pertaining to Holland 's transfer
from one crew to the other were within the scope of Smith's and Crowder's employment,

court adjudicating a motion for summary judgment "must base its determination
regarding the presence or absence of a material issue of factual dispute on evidence
that will be admissible at trial. " Firemen's Fund Ins. Co. v. Thien , 8 F.3d 1307, 1310 (8th
Cir. 1993). Accordingly, "[i]nadmissible hearsay evidence alone may not defeat a
summary judgment motion ." Id.
12

and therefore the statements Holland attributes to them will be treated as vicarious
admissions in opposition to summary judgment.

12

Viewing the import of the statements in Holland 's favor, it can be argued that
Coleman both knew about Holland 's support for Williams and used that support as a
substantial or motivating factor in transferring him to the tile crew. The statements ,
therefore , support and complete Holland's prima facie First Amendment case.

2.

Burden Shifting

Since Holland has made out a prima facie First Amendment case , the burden
shifts to Defendants "to demonstrate that the same employment action would have been
taken in the absence of the protected activity." Davison , 490 F.3d at 655 (citing Mt.

Healthy, 429 U.S. at 287). The Court finds that Defendants have met this burden.
Shortly before Coleman transferred Holland to the tile crew, one of the two backhoe
operators on the tile crew, Justin Tyree , quit abruptly. (Doc. 19-9, pp. 201-203). Before
working for the County, Holland owned and operated his own backhoe service for four
years. (Doc. 19-1 , pp . 33-34 ). This made him an experienced backhoe operator by any
measure. Coleman was aware of Holland 's backhoe experience, and transferred him to
the tile crew to replace Tyree because of it. (Doc. 19-9, pp. 201-02). Tyree's abrupt
resignation , coupled with Holland's experience operating a backhoe, shows that the

12

Even in reaching this conclusion , the Court remains somewhat skeptical about the
reliability of the statements in question . No deposition or affidavit from Smith- the
source of these bits of information- appears on the record . And , there is hearsay
evidence that Smith denied having ever made the statements in question. See Doc 197, pp. 136-37. Both the uncertainty about whether Smith made the purported statements
and the lack of information about his basis of knowledge for them would be factors the
Court would have considered at trial before deciding admissibility. See Fed . R. Evid .
104(a) and 403 . Nonetheless, at this summary judgment stage , the Court will consider
the statements.
13

same employment action would have been taken in the absence of Holland's support
for Williams . See e.g., Altonen v. City of Minneapolis , 487 F.3d 554, 561 (8th Cir. 2007)
(evidence that plaintiff's "reassignment followed the resignation of the administrative
services director which caused a shift in positions throughout the department" helped
defeat her argument that her protected speech was a motivating factor in her
reassignment) .
Since Defendants have demonstrated that Coleman would have transferred
Holland regardless of his support for Williams , "the burden shifts back to [Holland] to
show that [his] employer's actions were a pretext for illegal retaliation. " Morris v. City of
Chillicothe , 512 F.3d 1013, 1019 (8th Cir. 2008) . "This third step of showing that a

defendant's justification for [an adverse employment action] is unworthy of credence is
harder to overcome than the prima facie case because evidence of pretext is viewed in
the light of the employer's justification. " Id.
Holland offers several facts purporting to demonstrate that Coleman's justification
for transferring him is pretext. For example , he asserts that the tile crew only operated
one backhoe the entire time that he was there; that the crew already had an
experienced backhoe operator; and that the backhoe operator, Shannon Hilcher, was
moved from operating a backhoe to performing other tasks when Holland was
transferred . He also notes that the backhoe to which he was assigned had a completely
different control system than his personal backhoe .
Viewed in the light of Coleman 's justification , none of the evidence offered by
Holland shows that the justification is pretextual. Justin Tyree , one of the two backhoe
operators on the tile crew, abruptly quit his job. Coleman had Holland , an experienced

14

backhoe operator, operating a bulldozer on the new construction crew. Meanwhile , four
other members of the new construction crew could operate a bulldozer. (Doc. 19-9, p.
204 ). The confluence of Holland's experience operating a backhoe , the limited number
of workers on the tile crew who could operate a backhoe ,13 and the substantial number
of workers on the new construction crew who could operate a bulldozer made it
perfectly logical for Coleman to transfer Holland to the tile crew. None of the facts
offered by Holland undermine this obvious justification .
In sum , although Holland narrowly established a prima facie First Amendment
case , his claim nevertheless fails as a matter of law because he cannot show that
Defendants'

"legitimate ,

nondiscriminatory"

justification

for

transferring

him

is

prextextual. Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756 , 760 (8th Cir. 2004).
Coleman would have made the decision to transfer Holland irrespective of Holland's
support for Jeff Williams. For these reasons , Holland's First Amendment 14 and ACRA
claims cannot survive summary judgment.

13

Holland erroneously states that "every member of the Tile Crew had as much
experience operating a backhoe" as he did "which Coleman admitted in his deposition ."
(Doc. 18, p. 7) . Coleman admitted no such thing. While he does admit some members
of the current tile crew have experience operating a backhoe, Doc. 19-9, p. 208
("[W]ho 's presently on the tile crew?") (emphasis added), he stated that at the time he
transferred Holland only one person on the tile crew could operate a backhoe . Id. at
208 ; see a/so id. at 209 ("Q : Okay. Were there other people in the tile crew who could
run a backhoe? A: Not back then .").
14

In addition to his First Amendment retaliation claim , Holland also alleged a First
Amendment prior restraint claim. The Court finds that the reasoning discussed herein
applies with equal force to the prior restraint claim , which also cannot survive summary
judgment. See a/so Braswell v. Washington Cnty., 2016 WL 1178795, *8 (W.D . Ark.
March 23 , 2016) (discussing the similarities between retaliation and prior restraint in the
employment context) .
15

B.

Holland's Outrage Claim

In Braswell v. Washington County, which is somewhat of a sister case to the
instant one , the Court reviewed in some detail the high bar to establishing the tort of
outrage in Arkansas. 2016 WL 1178795, *10-11 (W.D . Ark. March 23, 2016). In that
case , the Court explained that the "indignities and harms incurred by Braswell" were "in
line with the Arkansas Supreme Court cases rejecting an employee's outrage claim ." Id.
at *11. The Court believes that statement to be even more applicable in the instant
case . Accordingly, for the same reasons it granted summary judgment on the outrage
claim in Braswell, the Court now grants summary judgment in favor of Defendants on
the same issue.
C.

A Few Words About Braswell

A casual observer comparing the outcome of the First Amendment and ACRA
claims in Braswell with the outcome of this case may be puzzled. The Court allowed
Braswell's claims against the County and a group of individually named defendants to
go forward. It has now held that Holland's seemingly similar claims cannot. However, a
closer juxtaposition of the two cases reveals that they are quite different. For instance,
much of Braswell's protected activity revolved around statements he made about the
construction of two bridges, and other safety-related matters. There was no question
that all of the Braswell defendants were aware of these statements, and there was a
substantial amount of additional causation-related evidence offered by Braswell. Had
Braswell relied solely upon his support for Williams as his protected activity-as Holland
did- the outcome of that case may have been significantly different. Moreover, whereas
Defendants in the instant case suggested credible neutral justifications for the adverse

16

employment actions, the defendants in Braswell offered no comparable justifications.
Lastly, the focus of the issues at summary judgment was much different in Braswell.
There , the primary issue was whether Braswell had incurred an adverse employment
action. In the instant case , the primary issue was whether Holland could establish
causation , and then pretext. Thus, while the parties and the causes of action in the two
cases are similar, the cases themselves are quite distinguishable.

IV.

CONCLUSION

For the reasons stated herein , Defendants' Motion for Summary Judgment
(Doc. 11) is GRANTED . The Court will effect this Order by entry of a separate
Judgment to be issued on this same date.-/j
IT IS SO ORDERED on

this ~ day of April,

17