Reed v. Ouachita Technical College
MEMORANDUM OPINION AND ORDER granting 13 Motion for Partial Summary Judgment filed by College of the Ouachitas. Plaintiffs claims brought pursuant to 42 U.S.C. § 1981 are DISMISSED WITH PREJUDICE, Plaintiffs claims brought pursuant to 42 U.S. C. § 1983 are DISMISSED WITH PREJUDICE. Plaintiffs claims brought pursuant to ACRA are DISMISSED WITH PREJUDICE. Plaintiffs claims brought pursuant to Title V of the ADA are DISMISSED WITH PREJUDICE. This matter remains set for a jury trial on Plaintiffs claims brought pursuant to Title VII of the Civil Rights Act to begin on Monday, May 21, 2012, in Hot Springs. Signed by Honorable Robert T. Dawson on April 23, 2012. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Case No. 6:11-CV-6020
COLLEGE OF THE OUACHITAS
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant’s Motion for Partial Summary
Judgment (doc. 13), Brief in Support (doc. 14), and Statement of
Undisputed Material Facts (doc. 15).
For the reasons set out
below, Defendant’s Motion for Partial Summary Judgment (doc. 13)
I. Procedural Background
Complaint (doc. 1) against her former employer Defendant College
of the Ouachitas (formerly known as Ouachita Technical College)
alleging she was discriminated against on the basis of her race
and in retaliation for protected activities.
her action under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000(e) et seq.; Title V of the Americans with Disabilities
Act, 42 U.S.C. 12201 et seq.; 42 U.S.C. §§ 1981 and 1983, the
U.S. Constitution; and the Arkansas Civil Rights Act, Ark. Code
Ann. § 16-123-101 et seq.
On May 6, 2011, Defendant filed its Answer (doc. 5) and on
Page 1 of 13
denying the allegations of wrongdoing.
On February 21, 2012,
Defendant filed its Motion for Partial Summary Judgment (doc.
13) and supporting materials (docs. 14 & 15).
for summary judgment on all claims except Plaintiff’s claims
brought under Title VII of the Civil Rights Act contending they
are barred by Eleventh Amendment sovereign immunity.
also argues that it is not a “person” subject to suit under
should also be dismissed for that reason.
On March 6, 2012, Plaintiff filed a motion for extension of
time to file her Response (doc. 16).
On March 12, 2012, the
Court entered a text only order granting Plaintiff’s motion and
extended the response deadline to March 16, 2012.
from the Plaintiff to Defendant’s Motion for Partial Summary
Judgment has been received by the Court, and no further motions
to extend the response deadline has been received.1
II. Standard of Review
In determining whether summary judgment is appropriate, the
absence of a genuine issue of material fact and that it is
entitled to judgment as a matter of law.
See Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
Local Rule 56.1(c) provides that “[a]ll material facts set forth in the
statement filed by the moving party pursuant to paragraph (a) shall be deemed
admitted unless controverted by the statement filed by the non-moving party
under paragraph (b).” (emphasis added).
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Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).
The Court must review the facts in a light most favorable to the
party opposing a motion for summary judgment and give that party
the benefit of any inferences that logically can be drawn from
Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13
(8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846
(8th Cir. 1983)).
Once the moving party demonstrates that the record does not
disclose a genuine dispute on a material fact, the non-moving
party may not rest upon the mere allegations or denials of his
provided in Rule 56, must set forth specific facts showing that
there is a genuine issue for trial.
Ghane v. West, 148 F.3d
979, 981 (8th Cir. 1998) (citing Burst v. Adolph Coors Co., 650
F.2d 930, 932 (8th Cir. 1981)).
In order for there to be a
produce evidence “such that a reasonable jury could return a
verdict for the nonmoving party.”
Allison v. Flexway Trucking,
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“[w]here the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate.”
v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th
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Cir. 1996) (quoting Crain v. Bd. of Police Comm’rs, 920 F.2d
1402, 1405-06 (8th Cir. 1990)).
III. Uncontroverted Facts
The following facts are deemed uncontroverted.2
courses at Defendant College of the Ouachitas.
Uncontroverted Fact #1)
Plaintiff reported directly to P.S.3, a white male, who
served as the math department chair and as the general education
P.S. reported to the Vice-President of Instruction,
Dr. S.K., a white female, until Dr. S.K. left the College and
was replaced by Dr. M.E.
(Defendant’s Uncontroverted Fact #3)
Dr. M.E. reported directly to the President of the
College, Dr. B.B., a white male.
Plaintiff alleges that from at least 2008 onward, she
discriminatory employment practices at College of the Ouachitas.
(Defendant’s Uncontroverted Fact #5)
Defendant’s Statement of Undisputed Material Facts (doc. 15) submitted in
support of its Motion for Summary Judgment sets forth twenty-nine
uncontroverted material facts.
Because Plaintiff failed to respond to
Defendant’s motion, those facts are deemed admitted. (See Local Rule 56.1(c)
of the Local Rules for the Western District of Arkansas.)
Initials are used in place of the individual’s name.
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routinely made inquiries with Dr. S.K. or P.S. as to why the
College did not hire more minorities for open positions, and she
claims that she also aired this concern in division faculty
meetings. (Defendant’s Uncontroverted Fact #6)
Plaintiff testified that she questioned P.S. and Dr.
S.K. when the school hired a white employee to fill the same
vacancy on two occasions rather than promoting M.J., a black
(Defendant’s Uncontroverted Fact #7)
Plaintiff alleges that she complained about P.S. to
Dr. S.K. and Dr. B.B., alleging that P.S. had made raciallyderogatory statements.
(Defendant’s Uncontroverted Fact #8)
Plaintiff alleges that she complained to Dr. S.K. that
Ouachitas students and employees.
Plaintiff alleges that she “frequently advocated for
students with disabilities, alleging that accommodations were
not being made for the students.”
As an example of her disability advocacy, Plaintiff
testified in her deposition that she attempted to help three
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facilities to allow access or to utilize modifications to the
(Defendant’s Uncontroverted Fact #11)
Plaintiff testified that her advocacy required her to
make complaints to Dr. S.K. about P.S.’s alleged resistance to
(Defendant’s Uncontroverted Fact #12)
“letter of counsel” from Dr. M.E. about Plaintiff’s relationship
public altercation between Plaintiff’s estranged husband and the
Uncontroverted Fact #13)
The student referred to in Dr. M.E.’s October 2009
letter is black.
(Defendant’s Uncontroverted Fact #14)
Plaintiff received a written “letter of counsel” from
P.S., dated October 21, 2009, in which P.S. cited Plaintiff for
Uncontroverted Fact #15)
Plaintiff received a written “letter of counsel” from
P.S., dated January 7, 2010, citing Plaintiff for allegedly text
(Defendant’s Uncontroverted Fact #16)
Plaintiff received a “letter of counsel” from P.S.,
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student a grade of “B” in two sections of a math lab course for
Uncontroverted Fact #17)
In a letter dated April 2, 2010, Dr. M.E. notified
Plaintiff that her teaching contract would not be renewed for
the coming school year.
(Defendant’s Uncontroverted Fact #18)
In Dr. M.E.’s April 2, 2010 letter, he cited the four
Statement of Undisputed Material Facts as grounds for the nonrenewal.
(Defendant’s Uncontroverted Fact #19)
Plaintiff appealed the non-renewal decision, which led
(Defendant’s Uncontroverted Fact #20)
College of the Ouachitas’ then-president Dr. B.B. that he should
remove one of the bases for the non-renewal decision, but it did
Uncontroverted Fact #21)
Dr. B.B. issued an April 14, 2010 letter to Plaintiff,
renewal of Plaintiff’s contract but eliminating the citation to
Plaintiff’s relationship with a student as a basis for nonrenewal.
(Defendant’s Uncontroverted Fact #22)
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Plaintiff alleges that after Dr. S.K. left the College, “[P.S.]
retaliation for her prior protected activity – opposing racially
discriminatory employment practices, [P.S.’s] sexually hostile
Plaintiff alleges that “[o]ther math instructors who
had not engaged in protected activity or who did not have a
similar grade concessions on behalf of students but were not
subjected to any reprimand or non-renewal of their contracts.”
(Defendant’s Uncontroverted Fact #24)
relationship with a black person and or her protected activity
opposing various race, sex, and disability discrimination, she
would never have been recommended for non-renewal based on” the
relationship with a student.
(Defendant’s Uncontroverted Fact
(Defendant’s Uncontroverted Fact #26)
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Plaintiff filed a charge of discrimination with the
EEOC on or about July 29, 2010, and she filed this lawsuit
(Defendant’s Uncontroverted Fact #27)
College of the Ouachitas is a member of the “Arkansas
Technical and Community College System.”
See Ark. Code Ann.
System.”). (Defendant’s Uncontroverted Fact #28)
College of the Ouachitas does not receive any funding
from a millage and has not received any such funding during the
Uncontroverted Fact #29)
The Eleventh Amendment provides States and their agencies
with immunity from suits brought by its citizens and by citizens
of other states.
Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir.
2003) (citing Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d
1437, 1438 (8th Cir. 1996)).
colleges almost always enjoy Eleventh Amendment immunity, such
immunity is not so apparent for community colleges due to local
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Griner v. Southeast Comm. College, 95 F.Supp.2d 1054, 1057 (D.
Neb. 2000) (quoting Hadley at 1438 (8th Cir. 1996)) (internal
To determine whether sovereign immunity
applies, the Eighth Circuit Court of Appeals instructs district
courts to “examine the particular entity in question and its
powers and characteristics as created by state law to determine
whether the suit is in reality a suit against the state.
typically look at the degree of local autonomy and control and
most importantly whether the funds to pay any award will be
Defendant argues the
statutes demonstrate that
community and technical college system that is coordinated and
funded by the State and therefor a judgment against Defendant in
this case would be indistinguishable from a judgment against the
Specifically, Defendant contends it is a member
of the “Arkansas Technical and Community College System” and
designated as the coordinating body of the System.
Board’s role entails presenting a single budget report to the
separate appropriations to each institution within the system.
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“Ouachita Technical College Fund” on the books of the State
improvement of the Ouachita Technical College”.
Ark. Code. Ann.
treats state-supported institutions of higher learning as state
expenditures of cash funds.
Ark. Code. Ann. § 19-4-801 to 802.
Defendant also argues that while under Arkansas law technical
operations funding through a locally imposed millage, Ark. Code
Ann. § 6-61-602, Defendant does not receive any funding from
Finally, Defendant argues that the Coordinating Board
is also tasked with recommending and reviewing proposals for the
establishment of curricula and for major changes in curricula
within the system.
Ark. Code Ann. § 6-53-203.
community college is entitled to Eleventh Amendment sovereign
immunity tends to be difficult and very fact specific.
Hadley at 1438-39.
However, the uncontroverted material facts
autonomy and control, and funding demonstrate that Plaintiff’s
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University of Missouri, 16 F.3d 860, 863 (8th Cir. 1994)).
conclusion and has failed to respond to the specific facts set
uncontroverted facts set forth in its summary judgment motion
deposition testimony and the declaration of Dr. Roger Croom,
Vice President for Finance and Administration at the College of
The Court therefore finds that Defendant, an
agency of the State enjoys Eleventh Amendment immunity and no
waiver or abrogation of the State’s immunity applies here.
Kentucky v. Graham, 473 U.S. 159, 169 (1985); Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-100; Burk v. Beene,
948 F.2d 489, 492-94 (8th Cir. 1991).
Defendant are dismissed with prejudice.
Singletary v. Missouri
Dep’t of Corrs., 423 F.3d 886, 890 (8th Cir. 2005); Burk v.
Beene, 948 F.2d 489, 493 (8th Cir. 1991); see also Arkansas Tech
University v. Link, 341 Ark. 495 (2000) (Only “persons” can be
sued under § 1983 and ACRA, and a state or its agencies are not
(“Nothing in this subchapter shall be construed to waive the
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sovereign immunity of the State of Arkansas.”).
claims under Title V of the ADA are dismissed with prejudice.
See Demshki v. Monteith, 255 F.3d 986, 988-89 (9th Cir. 2001)
immunity from claims brought pursuant to Title V of the ADA.).
Plaintiff’s claims brought pursuant to
DISMISSED WITH PREJUDICE.
Plaintiff’s claims brought pursuant
This matter remains set for a jury trial on Plaintiff’s
claims brought pursuant to Title VII of the Civil Rights Act to
disclosure sheets are due 30 days before trial and Proposed Jury
Instructions shall be submitted 14 days before trial, as set out
in the Final Scheduling Order.
IT IS SO ORDERED this 23rd day of April, 2012.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
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