Capone v. University of Arkansas et al

Filing 25

MEMORANDUM OPINION AND ORDER denying as moot 6 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 19 Motion for Leave to File. Plaintiff may file her amended complaint by no later than June 23, 2016. Signed by Honorable Timothy L. Brooks on June 20, 2016. (src)

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

STERLING CAPONE

v.

PLAINTIFF
CASE NO. 5:15-CV-5219

UNIVERSITY OF ARKANSAS, and the
Board of Trustees of the University of
Arkansas as a Public Body Corporate;
UNIVERSITY OF ARKANSAS, a Political
Subdivision of the State of Arkansas;
UNIVERSITY OF ARKANSAS, Operating
and D/B/A/ RAZORBACK TRANSIT; and
JANE DOE & JOHN DOE

DEFENDANTS

MEMORANDUM OPINION AND ORDER

Currently before the Court are Plaintiff Sterling Capone's Motion for Leave to File
Amended Complaint (Doc. 19) and Memorandum in Support (Doc. 20) , as well as
Defendants University of Arkansas and the Board of Trustees' (collectively, "the
University") Objection (Doc. 23) and Brief in Support (Doc. 24) . Also before the Court
are the University's Motion to Dismiss (Doc. 6) and Brief in Support (Doc. 7) , Ms.
Capone's Response (Doc. 10), the University's Reply (Doc. 11 ), Ms. Capone's
Supplemental Response (Doc. 15), the University's Response to her Supplemental
Response (Doc. 16), and a final Response (Doc. 21) submitted by Ms. Capone after her
attorney entered his appearance. For the reasons given below, Ms. Capone's Motion is
GRANTED IN PART AND DENIED IN PART, and the University's Motion is MOOT.

I. BACKGROUND
Ms. Capone alleges that she was employed by the University as a bus driver
from around March 2014 until around November 22 , 2014 , and that during her
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employment she was subjected to sexual harassment and discrimination by various
supervisors.

She further alleges that on numerous occasions she informed her

supervisors of workplace practices that she believed to be unsafe or unlawful , and that
her supervisors ignored and sometimes explicitly overrode her requests that such
practices be stopped or corrected . Ms. Capone asserts that she complained to the
University's human resources department of these and other related matters on
November 21 , 2014 , and that she was fired in retaliation the very next day.
Around May 8, 2015 , Ms. Capone submitted an intake questionnaire to the Equal
Employment Opportunity Commission ("EEOC"), in order to initiate the process of filing
formal charges with that agency against the University under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII "). Around June 18, 2015 , the EEOC
concluded its investigation into Ms. Capone's claims and mailed her a letter informing
her that it was unable to conclude that a violation of Title VII had occurred , and that she
had ninety days within which to file a lawsuit under that statute in federal court, if she
wished to do so . Ninety days later, Ms. Capone initiated this lawsuit pro se , filing her
original Complaint (Doc. 1) in this Court and asserting three counts against the
University: retaliation in violation of Title VII , sex discrimination in violation of Title VII ,
and retaliation in violation of the Arkansas Whistleblower Act, Ark. Code Ann . § 21-1 603 ("AWA").
On December 8, 2015, the University filed its Motion , arguing that Ms. Capone's
Complaint should be dismissed under Fed . R. Civ. P. 12(b)(1) for lack of subject-matter
jurisdiction and under Fed . R. Civ. P. 12(b)(6) for failure to state a claim upon which
relief can be granted . The parties filed various dueling briefs regarding th is Motion

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before counsel for Ms. Capone entered his appearance on March 15, 2016 . Then, on
April 6, 2016, Ms. Capone's attorney filed a supplemental Response in opposition to the
University's Motion , along with a Motion for Leave to file an amended complaint which
would assert two counts under Title VII, one count under Title IX of the Education
Amendments of 1972 ("Title IX"), one count under the AWA, one count under the
Arkansas Civil Rights Act ("ACRA"), and one count of negligence under Arkansas
common law. A couple of weeks later, the University filed its Response in opposition to
Ms. Capone's Motion , arguing that amendment of Ms. Capone's Complaint would be
futile. Both motions are now fully briefed and ripe for decision .

II. LEGAL STANDARD
When a defendant opposes granting leave to file an amended complaint on the
grounds that amendment would be futile , the Court must determine whether the
proposed amended complaint would survive a Rule 12(b)(6) motion to dismiss for failure
to state a claim . See Zutz v. Nelson , 601 F.3d 842 , 850 (8th Cir. 2010) . To survive
such a motion , the proposed amended complaint must provide "a short and plain
statement of the claim that [Plaintiffs are] entitled to relief." Fed . R. Civ. P. 8(a)(2). The
purpose of this requirement is to "give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests. " Erickson v. Pardus , 551 U.S. 89 , 93 (2007)
(quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court must accept
all of the proposed amended complaint's factual allegations as true, and construe them
in the light most favorable to Ms. Capone , drawing all reasonable inferences in her
favor. See Ashley Cty. , Ark. v. Pfizer, Inc. , 552 F.3d 659 , 665 (8th Cir. 2009) .

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However, the proposed amended complaint "must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face ."' Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570) . "A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged ." Id. "A
pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action will not do.'

Nor does a complaint suffice if it tenders 'naked

assertion[s]' devoid of 'further factual enhancement. "' Id.

In other words, while "the

pleading standard that Rule 8 announces does not require 'detailed factual allegations,'
. . . it demands more than an unadorned , the defendant-unlawfully-harmed-me
accusation ." Id.
Generally, Rule 12(b)(6) motions must be decided on the face of the pleadings.
Rule 12(d) states that if the Court considers "matters outside the pleadings" when ruling
on a Rule 12(b)(6) motion , then "the motion must be treated as one for summary
judgment" and "[a]ll parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion ." However, the Court "may consider . . . matters
of public and administrative record referenced in the complaint" without converting a
Rule 12(b)(6) motion into a motion for summary judgment. Great Plains Trust Co. v.
Union Pac. R.R. Co., 492 F.3d 986 , 990 (8th Cir. 2007) . Although the parties have

referenced various public and administrative filings with the EEOC , the Court has no
need to consult such materials in order to resolve the instant issues, though the
preceding "background " section of this Order contains some information gleaned
therefrom, solely to provide some context for readers .

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As for Rule 12(b)(1) motions , "the question may be resolved either on the face of
the pleadings or upon factual determinations made in consideration of matters outside
of the pleadings ." Bhd. of Maint. of Way Emps. Div. of Intern. Bhd. of Teamsters v.
Union Pac. R.R. Co., 475 F. Supp . 2d 819 , 834-35 (N .D. Iowa 2007) (citing Titus v.
Sullivan , 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918 F.2d 724 , 729 &
n.6 (8th Cir. 1990)).

The Court will resolve the instant question of subject-matter

jurisdiction on the face of the pleadings , and therefore for purposes of this issue accepts
all factual allegations in Ms. Capone's proposed amended complaint as true, and draws
all reasonable inferences in Ms. Capone's favor. Id.
Ill. DISCUSSION
The Court begins by considering Ms. Capone's Motion for Leave to Fi le
Amended Complaint, which the University opposes on grounds of futility. Below, the
Court addresses in turn the University's arguments as to Ms. Capone's proposed claims
under Title VII , Title IX, and Arkansas law, respectively.
A. Ms. Capone's proposed Title VII claims
The University contends that Ms. Capone failed to file a timely charge of
discrimination with the EEOC , and that this fact deprives the Court of subject-matter
jurisdiction over her Title VII claims. However, "filing a timely charge of discrimination
with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject to waiver, estoppel , and
equitable tolling ." Coons v. Mineta , 410 F.3d 1036, 1040 (8th Cir. 2005) (quoting Zipes
v. Trans World Airlines, Inc. , 455 U.S. 385 , 393 (1982)) . Ms. Capone's Title VII claims
may be subject to dismissal for failure to meet an administrative deadline, "but it is not

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because jurisdiction is lacking ." Id. This Court clearly has subject-matter jurisdiction
over Ms. Capone's Title VII claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §
2000e-5(f)(3) .
It is equally clear that to the extent Ms. Capone's Title VII claims depend on her
having filed timely charges of discrimination with the EEOC , her proposed amended
complaint does not fail to state such claims-indeed , it quite literally alleges: "Plaintiff
timely filed charges of Employment Discrimination before the US EEOC. " (Doc. 20-1,

iT 57) .

The University disputes this allegation , of course , but at this stage of

proceedings the Court is required to accept the allegations in Ms. Capone's proposed
amended complaint as true. See Brooks v. Midwest Heart Grp. , 655 F.3d 796 , 801 (8th
Cir. 2011 ). Furthermore, Ms. Capone argues that the particular facts of her case make
her eligible for the equitable tolling of her administrative filing deadline; and under
Eighth Circuit precedent, she must be permitted the opportunity to develop those facts
through discovery.

See id.

Ms. Capone may or may not ultimately prevail on these

arguments at some later stage in this case , but the pleading stage is not the appropriate
time to address them . The Court will permit Ms. Capone to file her proposed amended
Title VII claims.

8 . Ms. Capone's proposed Title IX claim
Title IX prohibits sex discrimination by educational programs that receive federal
funds. See 20 U.S.C. § 1681 . However, as the University correctly observes, Title IX
does not provide any explicit private right of action for employees of such institutions
against their employers . The University argues further that the Court should not find
any such implicit right of action , since such employees' rights are already well-protected

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by the provisions of Title VII (which does provide a private right of action, under which
Ms. Capone has already brought claims of sex discrimination, see Sections I & Ill.A,

supra) .
The Supreme Court has never directly addressed this issue, and only a few
circuit courts of appeals have; the Eighth Circuit does not appear to be among them . In

Great American Federal Savings & Loan Association v. Novotny, the Supreme Court
held that a violation of Title Vll's prohibition of sex-based employment discrimination
could not give rise to a separate cause of action under 42 U.S.C. § 1985(3), which
provides a right of action for persons who are injured by conspiracies to deprive them
"of the equal protection of the laws, or of equal privileges and immunities under the
laws. " 442 U.S. 366 , 378 (1979) . Of central importance to the Supreme Court's holding
in Novotny were the facts that "[u]nder Title VII , cases of alleged employment
discrimination are subject to a detailed administrative and judicial process designed to
provide an opportunity for nonjudicial and nonadversary resolution of claims," id. at
372-73 , and that a claim brought under § 1985(3) "could completely bypass the
admin istrative process, which plays such a crucial role in the scheme established by
Congress in Title VII ," id. at 376 .
In Lakoski v. James , the Fifth Circuit found Novotny's reasoning to apply with
equal force to Title IX, holding that it was "not persuaded that Congress offered Title IX
to employees of federally funded educational institutions so as to provide a bypass to
Title Vll's administrative procedures." 66 F.3d 751 , 758 (5th Cir. 1995). In reaching this
conclusion , the Lakoski Court observed that "Congress enacted Title IX only months
after extending Title VII to state and local governmental employees ," and remarked

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"[t]hat Congress intended to create a bypass of Title Vll's administrative procedures so
soon after its extension to state and local government employees is an extraordinary
proposition ." Id. at 756 . This Court agrees with the Fifth Circuit's reasoning in Lakoski,
and rules that Ms. Capone may not assert a private right of action under Title IX for sexbased employment discrimination that falls within the ambit of Title VII.
In so ruling, this Court acknowledges that the Fourth Circuit appears to have
reached a different conclusion in Preston v. Commonwealth of Virginia ex rel. New
River Community College, 31 F.3d 203 , 205-06 (4th Cir. 1994). The Preston Court is
obviously correct that in Cannon v. University of Chicago , 441 U.S. 677 (1979) , the
Supreme Court recognized an implied private right of action for enforcement of Title IX,
but Cannon only dealt with a prospective student's right of action against an educational
institution . Title VII , of course , does not offer students the same protections against
discrimination that it offers employees, so Cannon need not be read as calling into
doubt Novotny's solicitousness for the integrity of Title Vll 's administrative procedures.
This Court respectfully disagrees with the Preston Court's characterization of North
Haven Board of Education v. Bell, 456 U.S. 512 (1982) , as extending the Cannon
private right of action "to employment discrimination on the basis of gender by
educational institutions receiving federal funds. " 31 F.3d at 206. Bell simply recognizes
that sex-based employment discrimination violates Title IX, see 456 U.S. at 535-36 ,
and that Title IX authorizes the Department of Education to promulgate regulations
stripping federal funding from education programs that engage in such discriminatory
employment practices, see id. at 540 . This is a wholly separate question from whether
Title IX implies a private right of action for victims of employment discrimination; indeed ,

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the phrases "private right" or "right of action" do not appear anywhere in the Bell
opinion .
C. Ms. Capone's proposed Arkansas-law claims
Finally, the Court turns to Ms. Capone's claims brought under Arkansas law. The
University argues that the Eleventh Amendment to the United States Constitution bars
this Court from adjudicating these claims 1 , and this Court agrees .

The Eleventh

Amendment states that "[t]he Judicial Power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State ," and the Eighth Circuit acknowledges that
"[t]he University of Arkansas has been recognized to have Eleventh Amendment
immunity. " Okruhlik v. Univ. of Ark. ex rel. May, 255 F.3d 615 , 622 (8th Cir. 2001) . For
a state to waive Eleventh Amendment immunity and thereby subject itself to federal
court jurisdiction , it "must make a clear, unequivocal statement that it wishes to do so. "
Faibisch v. Univ. of Minn., 304 F.3d 797 , 800 (8th Cir. 2002) .

With regard to negligence and the ACRA, not only has the state of Arkansas not
made a statement that it wishes to do so-it has made clear, unequivocal statements
that it does not wish to do so. See Ark. Code Ann. § 21-9-301 (a) ("It is declared to be
the public policy of the State of Arkansas that all .. . political subdivisions of the state . .
. shall be immune from [tort] liability and from suit for damages except to the extent that
they may be covered by liability insurance."); id. at§ 16-23-104 ("Nothing in [the ACRA]

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The University only makes this argument specifically with regard to Ms. Capone's
AWA and ACRA claims, and appears not to have noticed that Ms. Capone also seeks to
add a claim of negligence under state law. See, e.g., Doc. 23 , ~ 3 ("Plaintiff also seeks
to add two new claims .. . ." (emphasis added)). However, the University's Eleventh
Amendment argument applies with equal force to the proposed negligence claim .
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shall be construed to waive the sovereign immunity of the State of Arkansas ."). As for
the AWA, the only venue where it specifically authorizes suit to be brought against the
state of Arkansas is "in the circuit court for the county where the alleged violation
occurred, for the county where the complainant resides , or in the Pulaski County Circuit
Court if the complaint is filed against an agency, department, or institution of state
government." Id. at§ 21-1-604(b) ; cf Smith v. Daniel, 2014 Ark. 519 , at *6 n.4, 452
S.W .3d 575 (2014) ("Obviously, in the case before us, a suit against Smith in his official
capacity under the [AWA] in state court was not barred by the Eleventh Amendment ..
. . Furthermore , it is obvious that the federal district court recognized , as do we , that
[defendants] in their official capacities would have been proper defendants as public
employers [in federal court] but for the state's immunity under the Eleventh
Amendment." (emphasis in original)) . Accordingly, the Eleventh Amendment bars Ms.
Capone from asserting her proposed state-law claims in this Court.

IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff Sterling Capone's Motion for Leave

to File Amended Complaint (Doc. 19) is GRANTED IN PART AND DENIED IN PART
as follows : Ms. Capone may file her amended complaint by no later than June 23,
2016 , asserting her proposed causes of action under Title VII ; however, the amended

complaint may not include any of her non-Title VII proposed causes of action .
IT IS FURTHER ORDERED, that the University of Arkansas and the Board of

Trustees' Motion to Dismiss (Doc. 6) is DENIED as MOOT, because Ms. Capone's
amended complaint will supersede her original Complaint in this matter.

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~
1,,~
IT IS SO ORDERED on this £ _ day of June,

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