Reed v. Ouachita Technical College
Filing
18
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
CHERYL REED
PLAINTIFF
v.
Case No. 6:11-CV-6020
COLLEGE OF THE OUACHITAS
DEFENDANT
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)
is GRANTED.
I. Procedural Background
On
March
23,
2011,
Plaintiff
Cheryl
Reed
filed
her
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.
Plaintiff brings
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
May
27,
2011,
Defendant
filed
its
Page 1 of 13
Amended
Answer
(doc.
7)
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).
Defendant moves
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.
Defendant
also argues that it is not a “person” subject to suit under
Section
1983
and
that
Section
1981
and
Section
1983
claims
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.
No response
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
burden
is
placed
on
the
moving
party
to
establish
both
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.,
1
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).
Page 2 of 13
475
U.S.
574,
586-87
(1986);
Nat’l.
Bank
of
Commerce
of
El
Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).
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
those facts.
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
pleadings,
but
his
response,
by
affidavits
or
as
otherwise
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)).
genuine
issue
of
material
fact,
In order for there to be a
the
non-moving
party
must
produce evidence “such that a reasonable jury could return a
verdict for the nonmoving party.”
Allison v. Flexway Trucking,
Inc.,
1994)
28
F.3d
64,
66
(8th
Cir.
(quoting
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Anderson
v.
Furthermore,
“[w]here the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate.”
Aucutt
v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th
Page 3 of 13
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
1.
Plaintiff
Cheryl
Reed,
a
white
female,
courses at Defendant College of the Ouachitas.
taught
math
(Defendant’s
Uncontroverted Fact #1)
2.
Plaintiff reported directly to P.S.3, a white male, who
served as the math department chair and as the general education
division
chair
for
the
College.
(Defendant’s
Uncontroverted
Fact #2)
3.
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.
4.
(Defendant’s Uncontroverted Fact #3)
Dr. M.E. reported directly to the President of the
College, Dr. B.B., a white male.
(Defendant’s Uncontroverted
Fact #4)
5.
voiced
Plaintiff alleges that from at least 2008 onward, she
objections
to
what
she
perceived
as
racially-
discriminatory employment practices at College of the Ouachitas.
(Defendant’s Uncontroverted Fact #5)
2
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.)
3
Initials are used in place of the individual’s name.
Page 4 of 13
6.
Among
her
complaints,
Plaintiff
claims
that
she
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)
7.
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
employee
and
applicant
for
promotion,
into
that
position.
(Defendant’s Uncontroverted Fact #7)
8.
Plaintiff alleges that she complained about P.S. to
Dr. S.K. and Dr. B.B., alleging that P.S. had made raciallyderogatory statements.
9.
P.S.
(Defendant’s Uncontroverted Fact #8)
Plaintiff alleges that she complained to Dr. S.K. that
had
made
sexually-harassing
Ouachitas students and employees.
comments
to
College
of
the
(Defendant’s Uncontroverted
Fact #9)
10.
Plaintiff alleges that she “frequently advocated for
students with disabilities, alleging that accommodations were
not being made for the students.”
(Defendant’s Uncontroverted
Fact #10)
11.
As an example of her disability advocacy, Plaintiff
testified in her deposition that she attempted to help three
particular
students
either
to
acquire
Page 5 of 13
modifications
to
facilities to allow access or to utilize modifications to the
testing
procedures
to
accommodate
a
learning
disability.
(Defendant’s Uncontroverted Fact #11)
12.
Plaintiff testified that her advocacy required her to
make complaints to Dr. S.K. about P.S.’s alleged resistance to
providing modifications.
13.
In
October
(Defendant’s Uncontroverted Fact #12)
of
2009,
Plaintiff
received
a
written
“letter of counsel” from Dr. M.E. about Plaintiff’s relationship
with
a
College
of
the
Ouachitas
student
that
resulted
in
a
public altercation between Plaintiff’s estranged husband and the
student
at
a
gas
station
near
campus.
(Defendant’s
Uncontroverted Fact #13)
14.
The student referred to in Dr. M.E.’s October 2009
letter is black.
15.
(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
alleged
tardiness
on
multiple
occasions.
(Defendant’s
Uncontroverted Fact #15)
16.
Plaintiff received a written “letter of counsel” from
P.S., dated January 7, 2010, citing Plaintiff for allegedly text
messaging
and
talking
on
her
cell
phone
during
class.
(Defendant’s Uncontroverted Fact #16)
17.
dated
Plaintiff received a “letter of counsel” from P.S.,
February
1,
2010,
in
which
P.S.
Page 6 of 13
cited
Plaintiff
for
deviating
from
departmental
grading
policy
and
assigning
a
student a grade of “B” in two sections of a math lab course for
lessons
the
student
had
not
attempted.
(Defendant’s
Uncontroverted Fact #17)
18.
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.
19.
letters
(Defendant’s Uncontroverted Fact #18)
In Dr. M.E.’s April 2, 2010 letter, he cited the four
of
counsel
identified
in
paragraphs
13-18
of
this
Statement of Undisputed Material Facts as grounds for the nonrenewal.
20.
to
a
(Defendant’s Uncontroverted Fact #19)
Plaintiff appealed the non-renewal decision, which led
hearing
Committee.”
21.
before
the
College’s
“Professional
Standards
(Defendant’s Uncontroverted Fact #20)
The
Professional
Standards
Committee
recommended
to
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
not
recommend
overturning
the
decision.
(Defendant’s
Uncontroverted Fact #21)
22.
accepting
Dr. B.B. issued an April 14, 2010 letter to Plaintiff,
the
Committee’s
recommendation
to
uphold
the
non-
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)
Page 7 of 13
23.
With
respect
to
the
written
“letters
of
counsel,”
Plaintiff alleges that after Dr. S.K. left the College, “[P.S.]
began
building
a
record
of
complaints
against
[her]
in
retaliation for her prior protected activity – opposing racially
discriminatory employment practices, [P.S.’s] sexually hostile
environment,
disabled
and
[P.S.’s]
students
and
inappropriate
faculty.”
comments
(Defendant’s
referencing
Uncontroverted
Fact #23)
24.
Plaintiff alleges that “[o]ther math instructors who
had not engaged in protected activity or who did not have a
close
relationship
with
a
member
of
another
race
have
made
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)
25.
Plaintiff
claims
that
“[b]ut
for
[her]
open
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
matters
cited
in
her
non-renewal
relationship with a student.
notice
other
than
her
(Defendant’s Uncontroverted Fact
#25)
26.
against
College
Plaintiff
of
or
the
Ouachitas
discriminated
denies
against
(Defendant’s Uncontroverted Fact #26)
Page 8 of 13
that
her
it
in
retaliated
any
way.
27.
Plaintiff filed a charge of discrimination with the
EEOC on or about July 29, 2010, and she filed this lawsuit
within
90
days
of
receiving
her
“right
to
sue”
letter.
(Defendant’s Uncontroverted Fact #27)
28.
College of the Ouachitas is a member of the “Arkansas
Technical and Community College System.”
§ 6-53-201
programs
(“All
within
Education
two-year
the
jurisdiction
Coordinating
administered
as
the
institutions
and
their
courses
of
the
Arkansas
shall
be
identified
Technical
and
Board
Arkansas
See Ark. Code Ann.
Community
and
Higher
and
College
System.”). (Defendant’s Uncontroverted Fact #28)
29.
College of the Ouachitas does not receive any funding
from a millage and has not received any such funding during the
time
period
relevant
to
this
lawsuit.
(Defendant’s
Uncontroverted Fact #29)
IV. Discussion
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)).
“While state
universities
and
colleges almost always enjoy Eleventh Amendment immunity, such
immunity is not so apparent for community colleges due to local
political
and
financial
involvement
Page 9 of 13
in
community
colleges.”
Griner v. Southeast Comm. College, 95 F.Supp.2d 1054, 1057 (D.
Neb. 2000) (quoting Hadley at 1438 (8th Cir. 1996)) (internal
quotations omitted).
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.
Courts
typically look at the degree of local autonomy and control and
most importantly whether the funds to pay any award will be
derived
from
the
state
treasury.”
Id.
at
1439
(citations
omitted).
Defendant argues the
the
College
of
the
governing
Ouachitas
is
statutes demonstrate that
a
part
of
a
comprehensive
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
state itself.
Specifically, Defendant contends it is a member
of the “Arkansas Technical and Community College System” and
that
the
Arkansas
Higher
Education
Coordinating
designated as the coordinating body of the System.
Ann.
§
6-53-201.
Defendant
maintains
that
the
Board
was
Ark. Code.
Coordinating
Board’s role entails presenting a single budget report to the
General
Assembly
and
Governor,
including
recommendations
for
separate appropriations to each institution within the system.
Page 10 of 13
Defendant
contends
that
the
legislature
created
the
“Ouachita Technical College Fund” on the books of the State
Treasurer,
Officer
the
“to
State
be
Auditor,
used
for
and
the
the
State’s
maintenance,
improvement of the Ouachita Technical College”.
§
19-5-311(e).
Defendant
argues
the
Chief
Fiscal
operation,
and
Ark. Code. Ann.
legislature
expressly
treats state-supported institutions of higher learning as state
agencies
for
purposes
of
expenditures of cash funds.
budgeting
and
regulating
the
Ark. Code. Ann. § 19-4-801 to 802.
Defendant also argues that while under Arkansas law technical
and
community
colleges
are
permitted
to
seek
additional
operations funding through a locally imposed millage, Ark. Code
Ann. § 6-61-602, Defendant does not receive any funding from
millage.
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.
The
Court
is
Ark. Code Ann. § 6-53-203.
cognizant
that
the
question
whether
a
community college is entitled to Eleventh Amendment sovereign
immunity tends to be difficult and very fact specific.
Hadley at 1438-39.
relating
to
See
However, the uncontroverted material facts
Defendant’s
powers
and
characteristics,
local
autonomy and control, and funding demonstrate that Plaintiff’s
claim
against
Defendant
“is
in
reality
Page 11 of 13
a
suit
against
the
state.”
Hadley
at
1440
(citing
Sherman
v.
Curators
University of Missouri, 16 F.3d 860, 863 (8th Cir. 1994)).
Plaintiff
has
offered
no
evidence
to
support
a
of
The
different
conclusion and has failed to respond to the specific facts set
forth
in
Defendant’s
Summary
Judgment
Motion.
Defendant’s
uncontroverted facts set forth in its summary judgment motion
are
supported
through
specific
citations
to
Plaintiff’s
deposition testimony and the declaration of Dr. Roger Croom,
Vice President for Finance and Administration at the College of
the Ouachitas.
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.
Id.
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).
Plaintiff’s
42
U.S.C.
§§
1981
and
Defendant are dismissed with prejudice.
1983
claims
against
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
“persons”).
dismissed
with
Plaintiff’s
ACRA
prejudice.
See
claims
Ark.
against
Code
Defendant
Ann.
are
§ 16-123-104
(“Nothing in this subchapter shall be construed to waive the
Page 12 of 13
sovereign immunity of the State of Arkansas.”).
Plaintiff’s
claims under Title V of the ADA are dismissed with prejudice.
See Demshki v. Monteith, 255 F.3d 986, 988-89 (9th Cir. 2001)
(holding
Supreme
Congress
may
Court
not
precedent
abrogate
the
supported
a
states’
conclusion
Eleventh
that
Amendment
immunity from claims brought pursuant to Title V of the ADA.).
V. Conclusion
Accordingly,
Judgment
(doc.
pursuant
to
Defendant’s
13)
42
is
U.S.C.
Motion
GRANTED.
§
1981
for
Plaintiff’s
are
DISMISSED
Plaintiff’s claims brought pursuant to
DISMISSED WITH PREJUDICE.
to
ACRA
brought
are
DISMISSED
pursuant
to
Partial
Summary
claims
WITH
42 U.S.C.
brought
PREJUDICE,
§ 1983
are
Plaintiff’s claims brought pursuant
WITH
Title
V
PREJUDICE.
of
the
ADA
Plaintiff’s
are
claims
DISMISSED
WITH
PREJUDICE.
This matter remains set for a jury trial on Plaintiff’s
claims brought pursuant to Title VII of the Civil Rights Act to
begin
on
Monday,
May
21,
2012,
in
Hot
Springs.
Pretrial
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
Page 13 of 13
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