Sterling v. Board of Trustees of University of Arkansas

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

REBECCA STERLING PLAINTIFF

v. Case No. 4:19-cv-00025 KGB

THE BOARD OF TRUSTEES OF

THE UNIVERSITY OF ARKANSAS, et al. DEFENDANTS

OPINION AND ORDER

Plaintiff Rebecca Sterling applied for a position at the University of Arkansas - Pulaski

Technical College (“UAPTC”). Ms. Sterling alleges in her amended complaint that she was denied

this position because of her age, association with a person with a disability, and use of leave under

the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, et seq. (Dkt. No. 2, ¶¶ 29–37). She

brings this suit against the Board of Trustees of the University of Arkansas (“Board of Trustees”),

the members of the Board of Trustees in their official capacities, Dr. Bentley Wallace in his

individual and official capacities, and UAPTC, alleging violations of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; the Rehabilitation Act, 29 U.S.C. § 701, et

seq.; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; and the

FMLA (Dkt. No. 2, ¶¶ 2–3). Before the Court is defendants’ motion for summary judgment (Dkt.

No. 8). Ms. Sterling filed a response (Dkt. No. 14), and defendants replied (Dkt. No. 15). For the

reasons discussed below, the Court grants in part and denies in part defendants’ motion for

summary judgment (Dkt. No. 8).

I. Factual Background

Unless otherwise noted, the following facts are taken from defendants’ statement of

material facts not in dispute and Ms. Sterling’s response to defendants’ statement of material facts

not in dispute (Dkt. No. 10; Dkt. No. 14-2).

Ms. Sterling is 59 years old and is a full-time faculty instructor in the Business Department

at UAPTC (Dkt. No. 10, ¶ 1). UAPTC became a part of the University of Arkansas system on

February 1, 2017, at which point the Board of Trustees of the University of Arkansas assumed

control over UAPTC (Id., ¶ 46). Ms. Sterling was hired originally by UAPTC as a keyboarding

instructor in the Business Department in August 2012 (Id., ¶ 2). Beginning in 2014, Ms. Sterling

and a co-worker were selected by a committee to cochair the Business Department (Id., ¶ 3). She

later assumed temporary duties as Interim Dean of the Department after the Provost left in late

2016 (Id., ¶ 4). In January 2018, UAPTC underwent a reorganization of its academic departments

and reduced five dean positions to three (Id., ¶ 5). Ms. Sterling was notified that her dean position

would be eliminated effective June 30, 2018 (Id.). Ms. Sterling was invited to apply for one of the

new dean positions but felt she would not be qualified (Id., ¶ 6). She was also informed that she

could return to a faculty teaching position (Id.). Ms. Sterling has no unfavorable evaluations or

disciplinaries in her personnel file (Id., ¶ 47).

In April 2018, Ms. Sterling learned of a job announcement for a nonacademic staff

position—the Coordinator of Community Education (“Coordinator”)—which was open to both

internal and external applicants (Id., ¶ 7). Ms. Sterling was interested in the position in part

because it would pay $48,000 for a twelve-month appointment instead of $40,450 for a nine-month

appointment in her faculty position, which had been renewed for the 2019–20 term (Id., ¶¶ 14–

16).

Dr. Wallace was the hiring official for the Coordinator position (Id., ¶ 8). At the time of

the job posting, Dr. Wallace was Vice Chancellor responsible for the non-credit instructional

operations of the college, which included all workforce and non-credit education, non-credit

community education, and management of the business and industry center, where the Coordinator

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position is housed (Id., ¶ 9). The position description was developed by Dr. Wallace and listed

essential criteria and preferred qualifications (Id., ¶ 10). This was the third time he had hired for

this position (Id., ¶ 25). The essential job functions and preferred qualifications listed in the job

announcement had evolved over time to reflect Dr. Wallace’s expectations and vision of the

position (Id., ¶ 26). Dr. Wallace was then selected to fill a new dean position as Dean of the School

of Professional and Technical studies in July 2018 (Id., ¶ 11). He continued supervising the

Coordinator position until the Director of Workforce Development was hired the following

October (Id.).

Ms. Sterling submitted a transfer form and her application materials, along with over 40

other applicants (Id., ¶ 17). Human Resources then screened the applications for minimum

qualifications and that field was narrowed to six individuals for interviews, which included Ms.

Sterling (Id., ¶ 18). Dr. Wallace selected the persons to interview and initially did not include Ms.

Sterling (Dkt. No. 14-2, ¶ 18). Another hiring committee member, Elizabeth Reves, added Ms.

Sterling to the list to be interviewed (Id.) Also serving on the hiring committee were Somerly

Mustin, Verkeytia Long, and a representative from Human Resources, Reba Treece (now Reba

Melton) (Dkt. No. 10, ¶ 19).

The interviews were held over two days, May 8–9, 2018 (Id., ¶ 21). On May 2, 2018, Ms.

Sterling emailed Dr. Wallace asking if she could reschedule her interview spot from May 8, stating

that she would be attending a “cancer doctor’s appointment” with her mother (Id.). Dr. Wallace

expressed his sympathy and agreed to interview her another time (Id., ¶ 22). Ms. Sterling later

responded that she could make the original interview time, so her interview remained scheduled

for May 8, 2018 (Id.).

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Ms. Sterling took FMLA leave during the time period of May 8, 2018, which had been

approved by her supervisor, Marla Strecker (Id., ¶ 23). Defendants claim that the only person on

the interview committee with knowledge of Ms. Sterling’s FMLA leave was the HR representative,

Ms. Melton, who had filed the FMLA paperwork (Id., ¶ 24). Ms. Sterling claims that Dr. Wallace

knew that Ms. Sterling had at least planned to take leave for an FMLA qualifying condition and

therefore had engaged in a protected activity (Dkt. No. 14-2, ¶ 21).

Each member of the interviewing committee was provided with copies of the application

materials for each candidate along with a scoring rubric, as per university practice (Dkt. No. 10, ¶

25). Dr. Wallace had determined the questions that were included on the rubric (Id., ¶ 26).

Interviewers scored each candidate from 0–50 for a total possible score of 250 (Id., ¶ 29). Dr.

Wallace scored Ms. Sterling lower than the other interviewees with a score of 34 and scored Kristin

Howell, a 36-year-old who was ultimately selected for the position, highest with a score of 46 (Id.).

Ms. Melton scored the candidates almost the opposite of Dr. Wallace, giving Ms. Sterling a perfect

score of 50 and Ms. Howell a 37 (Id., ¶ 30). The three remaining members of the interview

committee all scored Ms. Sterling higher than Ms. Howell (Dkt. No. 14-2, ¶¶ 62–64). The final

composite scores were Ms. Sterling at 224 and Ms. Howell at 215 (Dkt. No. 10, ¶ 28). Defendants

contend that hiring is based on a consideration of everything received during the hiring process

and that there is no policy at UAPTC that mandates that the highest scoring applicant be hired to

the position (Id., ¶¶ 31–32). Ms. Sterling disputes this contention, arguing that there was a policy

stating a preference for hiring from within, that the procedure was to hire the top scoring

candidates, and that Dr. Wallace violated policy by acting subjectively and ignoring the committee

(Dkt. No. 14-2, ¶¶ 31–32). Ms. Sterling notes that even Dr. Wallace testified that “we don’t have

singular people making decisions typically.” (Id., ¶ 32).

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The parties are not in agreement as to what happened following the interviews. Defendants

claim that the hiring committee did not arrive at a decision on whom to hire and agreed that Dr.

Wallace could take the evening of May 9, 2018, to review the top two applicants (Id., ¶¶ 33–34).

According to defendants, Mr. Wallace has stated consistently that, based on all the materials

presented as well as the interviews and hiring references, Ms. Howell’s prior experience aligned

most closely with the essential duties and preferred qualifications (Id., ¶ 51). Ms. Howell’s

previous positions included a combined five years of fundraising, event management, and

community outreach, as well as budget planning, staff hiring, and creation of promotional

materials at the Arthritis Foundation and the Hilary Rodham Clinton Children’s Library (Id., ¶ 56).

Defendants claim that Ms. Sterling has admitted that she does not have outreach and community

involvement in the Pulaski County area (Id., ¶ 58).

However, Ms. Sterling denies that the group did not arrive at a decision on the hire after

discussion (Dkt. No. 14-2, ¶ 33). Rather, Ms. Sterling asserts that the hiring committee came to a

consensus on the basis of the highest scorer from the rubric after five to ten minutes of discussion

(Id.). Ms. Sterling maintains that members of the committee were not given time to discuss and

come to a consensus, nor was there any effort to do that (Id.). Instead, Ms. Sterling asserts that

Dr. Wallace decided to take the night to make a decision in violation of policy, procedure, and

practice (Id., ¶ 34). Ms. Sterling contends that, whether Dr. Wallace reviewed the materials or not,

it was apparent from the scoring and how he conducted the interview and decision process that he

was angling for his preferred candidate (Id., ¶ 35). Ms. Sterling denies that Ms. Howell was the

best candidate because Ms. Sterling had more experience in more fields, a proven track record of

good performance, and a bachelor’s and master’s degree in educational fields (Id., ¶¶ 35–36).

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The next morning, May 10, 2018, Dr. Wallace sent an email to the committee stating that

he had determined that Ms. Howell would be the “best fit” and that her experience was “directly

aligned with many of the key elements of the position, both in the essential duties and preferred

qualifications” (Dkt. No. 10, ¶¶ 35-36). Ms. Sterling admits that Dr. Wallace chose Ms. Howell

and sent an email to the committee but denies that Ms. Howell was the best candidate (Dkt. No.

14-2, ¶¶ 35–36). Ms. Sterling testified at her deposition that she did not want the current

Coordinator removed from the job and, when asked if there were any other positions that she would

like to assume at UAPTC, she knew of none (Id., ¶ 48).

Following the decision, Ms. Melton felt that Ms. Howell’s selection violated school policy

and told HR Director Sherry Young that Ms. Sterling had received a higher score (Dkt. No. 10, ¶

39). To address Ms. Melton’s concerns, the Chancellor, Margaret Ellibee, asked Dr. Wallace, Ms.

Young, and Ms. Young’s supervisor, Tara Smith, to meet the next day (Id., ¶ 40). The content of

the meeting is disputed by the parties. Defendants argue that the meeting did not affect the final

hiring result (Id., ¶ 44), and Ms. Sterling argues that the meeting could not have impacted the

decision (Dkt. No. 14-2, ¶¶ 40, 43). UAPTC has policies and practices, some included in writing

in the employee handbook (Id., ¶¶ 68–71). The parties dispute the force and significance of those

policies and practices.

Ms. Sterling filed a claim with the Equal Employment Opportunity Commission (“EEOC”)

on June 25, 2018, alleging that she was not hired for the position on the basis of age and

associational disability discrimination (Dkt. No. 10, ¶ 45). The EEOC subsequently issued a

Notice of Right to Sue to Ms. Sterling on October 22, 2018 (Id.). This lawsuit followed.

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II. Standard of Review

Summary judgment is proper if the evidence, when viewed in the light most favorable to

the nonmoving party, shows that there is no genuine issue of material fact in dispute and that the

defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a

reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th

Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary judgment;

rather, the dispute must be outcome determinative under prevailing law.” Holloway v. Pigman,

884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may

not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447

(8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine

issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving

party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v.

Hinkel, 121 F.3d 364, 366 (8th Cir. 1997). “The evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

III. Analysis

A. Overview Of Pending Claims

Defendants make three arguments which dispose of Ms. Sterling’s claims against UAPTC,

against all defendants under the Rehabilitation Act, and against Dr. Wallace in his individual

capacity under the ADA and ADEA. Ms. Sterling concedes these three arguments.

As an initial matter, defendants argue that UAPTC should be dismissed from the case

because it is not a legal entity capable of being sued (Dkt. No. 8, at 2). Instead, UAPTC is a

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campus of the University of Arkansas System (Dkt. No. 9, at 8). See Assaad-Faltas v. Univ. of

Ark. for Med. Scis., 708 F. Supp. 1026, 1029 (W.D. Ark. 1989), aff’d, 902 F.2d 1572 (8th Cir.

1990) (recognizing that campus of university is not a separate entity which can be sued). Ms.

Sterling agrees that UAPTC is not an entity that can be sued (Dkt. No. 14, at 1). The Court

therefore dismisses without prejudice Ms. Sterling’s claims against UAPTC.

Defendants also argue that Ms. Sterling has failed to state a claim for which relief can be

granted under the Rehabilitation Act (Dkt. No. 9, at 28–29). Ms. Sterling clarifies in her response

to defendants’ motion for summary judgment that she “drops the Rehab Act claims” (Dkt. No. 14,

at 2). It is therefore not necessary for the Court to determine whether Ms. Sterling fails to state a

claim under the Rehabilitation Act. The Court dismisses Ms. Sterling’s claims under the

Rehabilitation Act.

Defendants further argue that Dr. Wallace in his individual capacity is entitled to summary

judgment on Ms. Sterling’s claims under the ADA and ADEA (Dkt. No. 8, at 2). Defendants

contend that agency supervisory employees may not be held individually liable under the ADA or

ADEA (Dkt. No. 9, at 10–11, 31). Ms. Sterling clarifies in her response to defendants’ motion for

summary judgment that she “does not bring individual capacity claims against Wallace under the

ADEA [or] ADA” (Dkt. No. 14, at 2). This statement is consistent with Ms. Sterling’s amended

complaint in which she claimed only that “the board members in their official capacity are sued

under the ADA and ADEA” (Dkt. No. 2, ¶ 2). The Court therefore need not address whether Dr.

Wallace can be sued in his individual capacity under the ADA and ADEA or whether he is entitled

to qualified immunity under those statutes because Ms. Sterling has not sued Dr. Wallace under

those statutes.

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Ms. Sterling’s remaining claims are: (1) under the ADA against the members of the Board

of Trustees in their official capacities for injunctive relief; (2) under the ADEA against the

members of the Board of Trustees in their official capacities for injunctive relief; and (3) under the

FMLA against all defendants for injunctive and monetary relief (Dkt. No. 14, at 1–2; Dkt. No. 2,

¶ 2). Ms. Sterling seeks relief in the form of cleaning of her personnel file, a directive not to

retaliate, awarding the next three available promotions to her, promotion to the position at issue,

training, declaratory relief, an apology, posting of this lawsuit and verdict, a trial by jury, and

reasonable fees and costs on all claims (Dkt. No. 2, at 5). Additionally, she seeks recovery of lost

wages and benefits, front pay or reinstatement, and liquidated damages on her FMLA claims (Id.).

Defendants also argue that all defendants in their official capacities are entitled to sovereign

immunity on all claims for monetary and injunctive relief (Dkt. No 8, at 2). Defendants maintain

that Dr. Wallace in his individual capacity is entitled to qualified immunity on Ms. Sterling’s

FMLA claims because, according to defendants, he did not violate any clearly established law and

acted reasonably under the circumstances (Id., at 3). Finally, defendants argue that Ms. Sterling’s

ADA, ADEA, and FMLA claims all fail on the merits either because she cannot establish prima

facie cases under the relevant statutes or because she cannot establish that defendants’ reason for

not hiring Ms. Sterling was pretextual (Id., at 2–3). The Court addresses each of these arguments.

B. Defense Of Sovereign Immunity

1. Monetary Relief

Defendants argue that the Eleventh Amendment bars Ms. Sterling’s claims to the extent

that she seeks monetary relief under the ADA and ADEA against the members of the Board of

Trustees and Dr. Wallace in their official capacities (Dkt. No. 9, at 11, 31). Defendants also argue

that they are entitled to summary judgment because official capacity claims for monetary relief

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under the FMLA are barred by the Eleventh Amendment (Dkt. No. 8, at 2). Ms. Sterling responds

that she can obtain monetary relief from the Board of Trustees under the FMLA because her leave

was not for her own health condition (Dkt. No. 14, at 1).

The Eleventh Amendment protects states from suits brought by citizens. U.S. Const.

amend. XI. This protection extends to suits against a state’s departments and agencies. Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State officials acting in their official

capacities are entitled to sovereign immunity when plaintiffs seek retroactive monetary relief

which would be “paid from public funds in the state treasury[.]” Edelman v. Jordan, 415 U.S.

651, 663 (1974). However, state officials may be subject to suits for prospective injunctive relief

to prevent ongoing violations of federal law. Ex parte Young, 209 U.S. 123, 159–60 (1908).

The members of the Board of Trustees and Dr. Wallace in their official capacities are

entitled to sovereign immunity to the extent that Ms. Sterling seeks monetary relief under the ADA

and ADEA. Arkansas is immune from suits under the ADA and ADEA and has not waived its

immunity under either statute. See Bunch v. Univ. of Ark. Bd. of Trustees, 863 F.3d 1062, 1067–

68 (8th Cir. 2017) (recognizing Arkansas’ immunity under ADA); Whitten v. Ark. Dep’t of Human

Servs., 2 Fed. Appx. 595, 597 (8th Cir. 2001) (recognizing Arkansas’ immunity under ADEA).

Further, sovereign immunity bars suits against state officials in their official capacity for

retroactive monetary relief. Edelman, 415 U.S. at 663. Therefore, to the extent that Ms. Sterling

seeks monetary relief under the ADA and ADEA, sovereign immunity bars her claims.

However, Ms. Sterling’s claims against defendants in their official capacities for monetary

relief under the FMLA are not barred by sovereign immunity because Congress validly abrogated

state sovereign immunity for claims under the FMLA’s care-of-others provision. Congress may

abrogate state sovereign immunity when enacting legislation pursuant to its powers under the

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Fourteenth Amendment. The Fourteenth Amendment provides that no state shall “deprive any

person of life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section Five

empowers Congress “to enforce, by appropriate legislation, the provisions of this article.” Id. § 5.

The Fourteenth Amendment “embod[ies] significant limitations on state authority” and thus allows

Congress to “provide for private suits against States or state officials which are constitutionally

impermissible in other contexts.” Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Under the

FMLA, states are immune from suit when an employee sues under the FMLA’s self-care provision.

Coleman v. Court of Appeals of Md., 566 U.S. 30, 33 (2012); 29 U.S.C. § 2612(a)(1)(D). However,

the Supreme Court has held that Congress validly abrogated state sovereign immunity under the

FMLA’s care-of-others provision, which Congress passed pursuant to its powers under Section

Five of the Fourteenth Amendment to remedy unconstitutional gender discrimination. Nev. Dep’t

of Human Res. v. Hibbs, 538 U.S. 721, 730 (2003); 29 U.S.C. § 2612(a)(1)(C).

Ms. Sterling’s leave was covered under the FMLA’s care-of-others provision, based on the

undisputed record evidence before the Court. Under the FMLA, eligible employees are entitled to

leave to care for a family member with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). A

serious health condition is “an illness, injury, impairment, or physical or mental condition that

involves . . . continuing treatment by a health care provider.” Id. § 2611(11)(B). Cancer is a

serious health condition. S. Rep. No. 103–3, at 29 (1993). Further, doctor’s appointments for the

treatment of serious health conditions are covered by the FMLA. Phillips v. Mathews, 547 F.3d

905, 910 (8th Cir. 2008). Here, it is undisputed that Ms. Sterling took FMLA leave during the

time period of May 8, 2018, that her leave was approved by her supervisor, and that Ms. Sterling

took leave to attend a “cancer doctor’s appointment” with her mother (Dkt. No. 10, ¶¶ 21–23).

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Based on this record evidence, Ms. Sterling can establish that her leave fell under FMLA’s care-

of-others provision. The members of the Board of Trustees and Dr. Wallace in their official

capacities are therefore not entitled to sovereign immunity on Ms. Sterling’s claims for monetary

relief under the FMLA.

The Court grants defendants’ motion for summary judgment on the issue of sovereign

immunity on Ms. Sterling’s claims for monetary relief under the ADA and ADEA but denies the

motion on the issue of sovereign immunity on Ms. Sterling’s claims for monetary relief under the

FMLA.

2. Injunctive Relief

Defendants are not entitled to sovereign immunity on Ms. Sterling’s claims for prospective

injunctive relief. Defendants argue that the exception to sovereign immunity under Ex parte Young

does not apply because Ms. Sterling has not alleged an ongoing violation of federal law and that

there is no relief which could be granted to Ms. Sterling even if she could successfully bring a

claim (Dkt. No. 9, at 31). Ms. Sterling responds that she can obtain prospective injunctive relief

because she is suing the individual members of the Board of Trustees in their official capacities

under Ex parte Young (Dkt. No. 14, at 1–2).

A plaintiff seeking injunctive relief against a state official under Ex parte Young must

demonstrate both that she seeks prospective injunctive relief and that there is a continuing violation

of federal law. Green v. Mansour, 474 U.S. 64, 68 (1985). A court considering whether the Ex

parte Young exception applies need only conduct “a straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.” 281 Care Committee v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011) (quoting Verizon

Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002)). The Eighth Circuit

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has recognized that the Ex parte Young exception applies to suits against state officials where the

plaintiff alleges that they were terminated in violation of federal law and seeks reinstatement. See

Mahn v. Jefferson Cty., 891 F.3d 1093, 1099 (8th Cir. 2018) (permitting suit under Ex parte Young

exception where plaintiff sought “declaratory relief that her employment was terminated in

violation of the First Amendment . . . and the remedy of reinstatement to her position”); see also

Singer v. Harris, CASE NO. 4:15CV00408 BSM, 2016 WL 10489850, at *5 (E.D. Ark. July 13,

2016) (permitting plaintiff’s claim for prospective injunctive relief under ADA to proceed to trial

where plaintiff’s complaint sought “Declaratory for reinstatement or front pay”). In Mahn, a case

involving First Amendment retaliation, the Eighth Circuit observed that reinstatement is an

appropriate remedy under Ex parte Young because “[t]he goal of reinstatement . . . is not

compensatory; rather, it is to compel the state official to cease her actions in violation of federal

law and to comply with constitutional requirements.” Mahn, 891 F.3d at 1099 (quoting Elliott v.

Hinds, 786 F.2d 298, 302 (7th Cir. 1986)).

The Court concludes that, on a straightforward inquiry into Ms. Sterling’s complaint, she

seeks prospective injunctive relief against state officials to remedy an alleged failure to hire in

violation of the ADA, ADEA, and FMLA. In her complaint, Ms. Sterling represents that she seeks

relief in the form of, among other things, cleaning her personnel file, a directive not to retaliate,

awarding the next three available promotions to her, promotion to the position at issue, and training

(Dkt. No. 2, at 5). She alleges that she was not promoted because of her association with a person

with a disability, because of her age, and because of her use of FMLA leave, all of which would

be violations of federal law (Id., at 4–5). As in a case for reinstatement, the relief Ms. Sterling

seeks would, if granted, “compel the state official[s] to cease [their] actions in violation of federal

law and to comply with . . . requirements” under federal law. Mahn, 891 F.3d at 1099 (quoting

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Elliott, 786 F.2d at 302). The Ex parte Young exception therefore applies, and defendants are not

entitled to sovereign immunity on Ms. Sterling’s claims for prospective injunctive relief.

Defendants’ arguments to the contrary are unavailing. Defendants argue that Ms. Sterling

does not seek prospective injunctive relief based on statements Ms. Sterling made at her deposition

(Dkt. No. 9, at 12–13). At her deposition, Ms. Sterling was asked, and answered, as follows:

Q. Okay. Are you asking to be placed in the coordinator position and Mrs. Howell --

Mrs. Howell removed from that position?

A. Well, if I was offered the position, that would be a different scenario. I don’t know

how to answer that one. I mean if we were today and we were doing the hiring and

I was offered the job, I would take the job. Does that answer that question?

Q. Right. But since that is not the situation we have --

A. Right, but is -- is --

Q. Would you want Ms. Howell -- are you asking that Ms. Howell be removed and

you placed in the position?

A. That’s -- I’m having a problem with the question.

Q. Well, its times --

A. Okay. I mean -- I mean I’m just saying this. This is -- yes.

Q. You would want the university to --

A. Well, I just don’t want --

Q. -- fire Mrs. Howell and hire you?

A. No, I don’t really want her to be fired is where I’m having the problem with; is --

the problem is that I felt like I was the most qualified for the position, okay, and I

should have gotten the position. Now, they hired her now. She’s been there a year

and a half. I don’t know what they should do with her. Okay. That’s --

Q. Well, that’s why I asked because I’m not sure what – what -- are you asking to be

placed in any other jobs?

A. Currently?

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Q. Yes. Uh-huh.

A. No.

Q. Are there any jobs that you are aware of in particular or at this time that you would

like to be placed in?

A. No, not that I -- I haven’t looked at the jobs.

(Dkt. No. 8-1, at 18–19).

Based on the record evidence before the Court construing all reasonable inferences in favor

of Ms. Sterling, Ms. Sterling seeks promotion to the position at issue, among other forms of

prospective injunctive relief. This satisfies the inquiry under Ex parte Young. See Mahn, 891 F.3d

at 1099 (“The Eleventh Amendment does not bar the relief of reinstatement.”).

Defendants further argue that they may not be sued for injunctive relief because “[w]ith

regard to the ADEA, the United States Supreme Court has never held that the Ex parte Young

doctrine may be used to circumvent the Eleventh Amendment” (Dkt. No. 9, at 12). However, suits

against state officials in their official capacity for prospective injunctive relief are permissible

under the ADEA notwithstanding the fact that the Supreme Court has not explicitly applied Ex

parte Young to the ADEA. Courts within the Eighth Circuit have allowed suits for prospective

injunctive relief against state officials under the ADEA. See, e.g., Jackson v. Univ. of Ark. for

Medical Scis., No. 4:08CV04234–WRW, 2009 WL 890518, at *2 (E.D. Ark. March 31, 2009);

see also Drye v. Univ. of Ark. for Medical Scis. ex rel. Univ. of Ark. Bd. of Trustees, No.

4:09CV00922 JLH, 2011 WL 288564, at *1 (E.D. Ark. Jan. 27, 2011) (collecting cases).

Defendants do not cite authority to the contrary. The Court therefore declines to find an exception

to Ex parte Young for claims under the ADEA.

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For these reasons, the Court denies defendants’ motion for summary judgment on the issue

of sovereign immunity on Ms. Sterling’s claims for injunctive relief under the ADA, ADEA, and

FMLA.

C. Defense Of Qualified Immunity

Defendants next contend that Dr. Wallace in his individual capacity is entitled to qualified

immunity on Ms. Sterling’s FMLA claim. Defendants argue that “a reasonable official would not

have known that his actions violated any of Sterling’s FMLA rights” (Dkt. No. 9, at 38). Ms.

Sterling contends that Dr. Wallace is not entitled to qualified immunity because retaliation and

discrimination are clearly established as illegal under the FMLA (Dkt. No. 14, at 1).

The Court concludes that Dr. Wallace is not entitled to qualified immunity because

qualified immunity is not available to defendants on an FMLA claim. Darby v. Bratch, 287 F.3d

673, 682 (8th Cir. 2002). The Eighth Circuit held in Darby that the FMLA “creates clearly

established statutory rights, including the right to be free of discrimination or retaliation on account

of one’s exercise of leave rights granted by the statute.” Id. Courts in this Circuit therefore

routinely reject defenses of qualified immunity under the FMLA. Fiedler v. Nebraska,

4:08CV3144, 2010 WL 11526885, at *4 (D. Neb. Oct. 15, 2010); Craig v. Wingfield, No.

4:05CV000791 JMM, 2007 WL 1219742, at *4 (E.D. Ark. Apr. 25, 2007); Lambert v. Potter, No.

Civ. 00–2580, 2004 WL 229080, at *11 (D. Minn. Feb. 2, 2004). Defendants cite no law to the

contrary.

The Court therefore denies defendants’ motion for summary judgment on the issue of

qualified immunity under the FMLA.

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D. Merits Of Claims

An employee asserting discrimination or retaliation claims under the ADA, ADEA, and

FMLA may demonstrate that their employer discriminated or retaliated against them through direct

or indirect evidence. In the absence of direct evidence of discrimination or retaliation, the Eighth

Circuit has adopted the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Cody v. Prairie Ethanol, LLC, 763 F.3d 992, 996 (8th Cir. 2014). The

McDonnell Douglas analysis has three parts. First, the employee must establish a prima facie case

of discrimination or retaliation under the relevant statute. In making out a prima facie case, the

“overarching philosophy of the McDonnell Douglas system of proof . . . requires only a minimal

showing before requiring the employer to explain its actions.” Smith v. Allen Health Sys., 302

F.3d 827, 833 (8th Cir. 2002). Second, the burden shifts to the employer, who must articulate a

legitimate, nondiscriminatory justification for its actions. Hite v. Vermeer Mfg. Co., 446 F.3d 858,

865 (8th Cir. 2006). Third, the burden shifts back to the employee to introduce evidence either

demonstrating that the employer’s proffered justification is pretextual or proving actual

discrimination. Chappel v. Bilco Co., 675 F.3d 1110, 1117 (8th Cir. 2012). On a motion for

summary judgment, the court’s role is to determine whether a genuine issue of material fact exists

as to any of these elements. Johnson v. Dollar General, 880 F. Supp. 2d 967, 995 (N.D. Iowa

2012).

Although the requirements for a prima facie case vary somewhat between the ADA,

ADEA, and FMLA, the parties’ arguments as to the latter two parts of the McDonnell Douglas

analysis are the same across all three statutes. The Court will therefore analyze whether Ms.

Sterling can establish a prima facie case under the ADA, ADEA, and FMLA; whether defendants

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can establish a legitimate, nondiscriminatory reason for choosing not to hire Ms. Sterling; and

whether Ms. Sterling can demonstrate that this reason is pretextual.

1. Whether Ms. Sterling Can Establish A Prima Facie Case

a. Under The ADA

Under the ADA, Ms. Sterling can establish a prima facie case by demonstrating that she

was qualified for the position, that she was subject to an adverse employment action, that she had

a known association with a person with a disability, and that the adverse employment action

occurred under circumstances raising a reasonable inference that her association with a person

with a disability was a determining factor in the adverse employment action. Myers v. Hog Slat,

Inc., 55 F. Supp. 3d 1145, 1157 (N.D. Iowa 2014).

First, defendants do not contest that Ms. Sterling was qualified for the Coordinator position.

It is undisputed that all applicants to the Coordinator position were screened for minimum

qualifications prior to being offered interviews (Dkt. No. 10, ¶ 18). This satisfies the “minimal

showing” required on this element of her prima facie case. Smith, 302 F.3d at 833.

Second, defendants do contest whether Ms. Sterling suffered an adverse employment

action and claim that she did not. Defendants argue that Ms. Sterling’s potential hire to the

Coordinator position “would not have afforded any greater benefits or material advantages”

because the Coordinator position paid less per month than an academic faculty position (Dkt. No.

9, at 33). The Eighth Circuit has described an adverse employment action as “a tangible change

in working conditions that produces a material employment disadvantage, including but not limited

to, termination, cuts in pay or benefits, and changes that affect an employee’s future career

prospects, as well as circumstances amounting to a constructive discharge.” Jackman v. Fifth

Judicial Dist. Dept. of Correctional Servs., 728 F.3d 800, 804 (8th Cir. 2013). The Eighth Circuit

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has also recognized that “[u]nquestionably, failure to promote can constitute an adverse

employment action that would support a plaintiff’s retaliation claim.” AuBuchon v. Geithner, 743

F.3d 638, 643 (8th Cir. 2014). The Coordinator position to which Ms. Sterling applied paid

$48,000 annually, and the faculty position which Ms. Sterling assumed after her position as interim

dean expired on June 30, 2018, paid $40,450 (Dkt. No. 10, ¶¶ 15–16). The Court has reviewed all

record evidence, including but not limited to Ms. Sterling’s deposition testimony (Dkt. No. 8-1, at

12–13, 22). On this record evidence, the Court declines to find as a matter of law that Ms. Sterling

did not suffer an adverse employment action when defendants failed to hire her for the Coordinator

position. There is sufficient record evidence to determine Ms. Sterling establishes this element of

her prima facie case.

Third, based on the record evidence before the Court, construing all reasonable inferences

in favor of Ms. Sterling, defendants are not entitled to judgment as a matter of law on whether

defendants knew that Ms. Sterling had an association with a person with a disability. Defendants

argue that Dr. Wallace was the only one with any knowledge of Ms. Sterling’s association and that

this knowledge was limited to an email asking to reschedule her interview in order to take her

mother for cancer treatment (Dkt. No. 9, at 33). It is undisputed that Ms. Sterling sent an email

less than a week before her scheduled interview to notify Dr. Wallace that she would be attending

a cancer doctor’s appointment with her mother on the day of her interview (Dkt. No. 10, ¶ 21). It

is also undisputed that Dr. Wallace expressed his sympathy to Ms. Sterling and agreed to

reschedule (Id., ¶ 22). This record evidence is sufficient to meet Ms. Sterling’s burden at the

summary judgment stage on this element of her prima facie case.

Fourth, defendants are not entitled to judgment as a matter of law in their favor on the

record evidence before the Court regarding whether Ms. Sterling can show an inference of

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discrimination (Dkt. No. 9, at 34). Close temporal proximity is sometimes sufficient to establish

the minimal showing of a causal connection between a protected activity and adverse employment

action under the McDonnell Douglas analysis, particularly when the exercise of statutory rights

and adverse employment action are less than two weeks apart. Smith, 302 F.3d at 833. It is

undisputed that Ms. Sterling notified Dr. Wallace of her mother’s health condition on May 2, 2018,

that Ms. Sterling interviewed for the Coordinator position on May 8, 2018, and that Dr. Wallace

made the decision to hire someone else on May 10, 2018 (Dkt. No. 10, ¶¶ 21, 35). This short

timeline, especially when coupled with the other disputed record evidence before the Court about

this hiring decision, raises a reasonable inference that Ms. Sterling’s association with a person with

a disability was a determining factor in hiring for the Coordinator position.

Based on the record evidence before the Court, construing all reasonable inferences in

favor of Ms. Sterling, the Court determines that the record evidence is sufficient for Ms. Sterling

to satisfy her prima facie case; defendants are not entitled to summary judgment in their favor

based on an assertion that Ms. Sterling fails to establish the four elements of a prima facie case

under the ADA.

b. Under The ADEA

Under the ADEA, Ms. Sterling can establish a prima facie case by demonstrating that she

was over 40, that she was qualified for the position, that she was not hired, and that a younger

person was hired to fill the position. Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1079

n.3 (8th Cir. 2008). Defendants assume for the purposes of their motion for summary judgment

that Ms. Sterling can establish her prima facie case under the ADEA (Dkt. No. 9, at 15). Here, it

is undisputed that Ms. Sterling was over 40, that she was not hired for the Coordinator position,

and that a younger person was hired to fill the position (Dkt. No. 10, ¶¶ 1, 20). Additionally, as

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explained above, Ms. Sterling met the minimum qualifications for the Coordinator position. Ms.

Sterling can therefore establish a prima facie case under the ADEA.

c. Under The FMLA

Under the FMLA, Ms. Sterling can establish a prima facie case by demonstrating an

exercise of statutory rights, an adverse employment action, and a causal connection between the

exercise of rights and the adverse action. Hite, 446 F.3d 865. Ms. Sterling satisfies the first two

elements of her prima facie case under the FMLA. First, it is undisputed that Ms. Sterling

exercised rights under the FMLA by taking leave (Dkt. No. 10, ¶ 21). Second, as described above,

on the record evidence before the Court, the Court determines that Ms. Sterling makes a

submissible case that she suffered an adverse employment action when not hired for the

Coordinator position.

Third, Ms. Sterling can establish a causal connection between her use of FMLA leave and

Dr. Wallace’s decision not to hire her for the Coordinator position. To prove a causal connection,

an employee must introduce evidence giving rise to an inference that an employer’s retaliatory

motive played a part in the adverse employment action. Kipp v. Mo. Hwy. & Transp. Comm’n,

280 F.3d 893, 896–97 (8th Cir. 2002). A causal connection may also be demonstrated by temporal

proximity between the protected activity and the adverse employment action, though such

proximity is rarely sufficient to establish the causal link on its own. Ebersole v. Novo Nordisk,

Inc., 758 F.3d 917, 924–25 (8th Cir. 2014).

Ms. Sterling argues that there was a causal connection between her FMLA leave and Dr.

Wallace’s not hiring her for the Coordinator position because Dr. Wallace knew that she had

planned to take leave for an FMLA-qualifying condition and because of the temporal proximity

between her FMLA leave and her non-hire (Dkt. No. 14-1, at 19, 20). Defendants contend that

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Dr. Wallace testified that he knew nothing of Ms. Sterling’s FMLA leave status and that even if

he had, it would not have had any bearing on his decision (Dkt. No. 9, at 35). It is undisputed,

however, that Ms. Sterling communicated to Dr. Wallace that she may need to reschedule her

interview for the Coordinator position because she would be attending a “cancer doctor’s

appointment” with her mother (Dkt. No. 10, ¶¶ 21–23). Dr. Wallace was therefore on notice that

Ms. Sterling intended to take leave for an FMLA-qualifying condition, even if Ms. Sterling did

not explicitly declare that she was taking FMLA leave. See Thorson v. Gemini, Inc., 205 F.3d 370,

381 (8th Cir. 2000) (“An employee need not invoke the FMLA by name in order to put an employer

on notice that the Act may have relevance to the employee’s absence from work.”). It is also

undisputed that Ms. Sterling sent this email on May 2, 2018, that she took FMLA leave on May 8,

2018, and that Dr. Wallace made the decision to hire someone else on May 10, 2018 (Dkt. No. 10,

¶¶ 21, 35). As discussed above, this timeline establishes close temporal proximity between Ms.

Sterling’s use of FMLA leave and her non-hire and supports an inference of discrimination,

especially when coupled with the other disputed record evidence before the Court about this hiring

decision. Drawing all justifiable inferences in favor of Ms. Sterling, the Court concludes that the

record evidence satisfies Ms. Sterling’s burden to establish a prima facie FMLA claim.

2. Whether Defendants Articulate A Legitimate Non-

Discriminatory Reason For The Hiring Decision

Defendants articulate a legitimate, nondiscriminatory reason for hiring someone other than

Ms. Sterling. Defendants argue that Dr. Wallace chose Ms. Howell over Ms. Sterling because Ms.

Howell “was the best qualified person for the job” whose “prior experience aligned most closely

with the essential duties and preferred qualifications” (Dkt. No. 9, at 16). “Prioritizing a certain

set of skills over others is a legitimate, nondiscriminatory reason for a hiring decision.” Farver v.

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McCarthy, 931 F.3d 808, 812 (8th Cir. 2019). Here, Dr. Wallace testified that he prioritized a

candidate who had “experience with special events management, community engagement and

diversity of constituency groups,” and that those qualities stood out to him as he compared the

qualifications of the applicants (Dkt. No. 8-2, at 23). Dr. Wallace emphasized that the chosen

candidate had “experience and direct alignment with the key functions of this position of creating

community education programs[ and] working with community organizations in central Arkansas”

(Id.). The Court acknowledges that Ms. Sterling argues, and other record evidence supports her

claim, that she was more qualified for the job than the chosen candidate (Dkt. No. 14-1, at 9–13).

Defendants have met their burden at this stage of the analysis, and the burden then shifts to Ms.

Sterling.

3. Whether Ms. Sterling Can Establish Pretext

Ms. Sterling has the burden to establish a genuine issue of material fact in dispute as to

whether defendants’ stated reason was merely pretext for intentional discrimination. The Eighth

Circuit has recognized that “[a]n employee’s attempt to prove pretext or actual discrimination

requires more substantial evidence than it takes to make a prima facie case, however, because

unlike evidence establishing the prima facie case, evidence of pretext and discrimination is viewed

in light of the employer’s justification.” Phillips v. Matthews, 547 F.3d 905, 912–13 (8th Cir.

2008) (quoting Smith, 302 F.3d at 834). Accordingly, “skeletal assertions are insufficient to prove

pretext.” Hutton v. Maynard, 812 F.3d 679, 685 (8th Cir. 2016). A plaintiff’s burden to establish

pretext requires showing that the prohibited reason more likely motivated the employer’s action

than the employer’s stated nondiscriminatory reason:

There are at least two ways a plaintiff may demonstrate a material question of fact

regarding pretext. A plaintiff may show that the employer’s explanation is

unworthy of credence because it has no basis in fact. Alternatively, a plaintiff may

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show pretext by persuading the court that a prohibited reason more likely motivated

the employer. Either route amounts to showing that a prohibited reason, rather than

the employer’s stated reason, actually motivated the employer’s action.

Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (internal citations and

quotations omitted). On a motion for summary judgment, a plaintiff must identify a genuine issue

of material fact as to whether the defendant’s stated reason was pretextual. Id. at 1050.

Ms. Sterling argues that defendants’ stated reason for choosing not to hire her is unworthy

of credence because it has no basis in fact. One way to establish pretext is to show indirectly that

the employer’s proffered explanation is unworthy of credence because it has no basis in fact.

Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001). It is possible for strong

evidence of a prima facie case to establish pretext as well. Id. at 726. As stated above, Dr. Wallace

testified that he preferred a candidate with “experience with special events management,

community engagement and diversity of constituency groups” (Dkt. No. 8-2, at 23). According to

Dr. Wallace, Ms. Howell had this sort of experience (Id.). However, Ms. Sterling argues that she

was more qualified than Ms. Howell for the Coordinator position because Ms. Sterling had worked

at UAPTC for several years, had contacts there, and had more relevant education and experience

(Dkt. No. 14-1, at 9–10). Ms. Sterling also argues that she had developed relationships with

community organizations, as detailed in the job description for the Coordinator position (Id., at

11). Indeed, Ms. Sterling testified in her deposition as to her experience with events management

and community engagement (Dkt. No. 8-1, at 24). Other record evidence supports Ms. Sterling’s

arguments (Dkt. No. 8-8, at 12–16). Given these factual disputes, on the record evidence before

it, the Court concludes that it is for the jury to decide whether defendants’ stated justification for

choosing not to hire Ms. Sterling is unworthy of credence.

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Additionally, there is evidence in the record to support either party’s arguments as to

whether or not a prohibited reason more likely motivated defendants’ actions. The parties do not

dispute that the hiring committee scored Ms. Sterling higher overall compared to Ms. Howell (Dkt.

No. 10, ¶ 28). However, the parties do dispute the extent to which the hiring committee and Dr.

Wallace deviated from UAPTC’s normal hiring practices in choosing a lower-scoring candidate.

Ms. Sterling argues that she should have been given preference as an internal employee, that Dr.

Wallace did not follow standard procedure in making the hiring decision, and that Dr. Wallace

falsely explained what happened during the hiring committee’s deliberations (Dkt. No. 14-1, at

20–21). Evidence in the record supports Ms. Sterling’s arguments that UAPTC had a policy of

hiring internal candidates (Dkt. Nos. 8-8, at 6; 8-9, at 3), that the hiring committee deliberations

were unusually brief (Dkt. Nos. 8-7, at 12, 14; 8-8, at 7), and that the hiring process did not follow

standard policy and practice, which lends support to assertions that false statements were made

(Dkt. Nos. 8-1, at 16–17; 8-8, at 7). Following this hiring decision, Ms. Melton felt that Ms.

Howell’s selection violated school policy and told HR Director Young that Ms. Sterling had

received a higher score (Dkt. No. 10, ¶ 39). To address Ms. Melton’s concerns, the Chancellor

Ellibee asked Dr. Wallace, Ms. Young, and Ms. Young’s supervisor, Ms. Smith, to meet the next

day (Id., ¶ 40). The content of the meeting is disputed by the parties. Defendants argue that Dr.

Wallace did not violate any hiring procedures and that he did not make any false statements (Dkt.

No. 15, at 2–5). Some evidence in the record supports defendants’ contentions that the hiring

process was not abnormal (Dkt. Nos. 8-2, at 6, 17, 20; 8-4, at 4; 8-10, at 2), and that there is no

policy directing that the highest-scoring candidate must be chosen (Dkt. Nos. 8-1, at 17; 8-2, at 7;

8-10, at 2).

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Further, with respect to Ms. Sterling’s ADA and FMLA claims, the record evidence

indicates temporal proximity. It is undisputed that Ms. Sterling notified Dr. Wallace of her

mother’s health condition on May 2, 2018, that Ms. Sterling interviewed for the Coordinator

position on May 8, 2018, and that Dr. Wallace made the decision to hire someone else on May 10,

2018 (Dkt. No. 10, 4/21, 35). This short timeline, especially when coupled with the other disputed

record evidence before the Court about this hiring decision, bolsters finding a genuine disputed

issue of material fact regarding pretext.

The Court concludes that genuine disputed issues of material fact exist as to whether

prohibited reasons actually motivated defendants’ actions. If Ms. Sterling’s evidence is believed,

then a reasonable jury could conclude that prohibited reasons more likely motivated defendants’

decision not to hire Ms. Sterling. If defendants’ evidence is believed, then a reasonable jury could

conclude that the stated justification was more likely legitimate. Genuine issues of material fact

are in dispute and should be resolved by the fact finder. Likewise, credibility determinations must

be left to the trier of fact at this stage. Accordingly, summary judgment in favor of defendants is

not appropriate.

The Court therefore denies defendants’ motion for summary judgment on the merits of Ms.

Sterling’s claims under the ADA, ADEA, and FMLA.

IV. Conclusion

For the foregoing reasons, the Court grants in part and denies in part defendants’ motion

for summary judgment (Dkt. No. 8).

It is so ordered this 23rd day of October, 2020. .

Kush J. Palin

Kristine G. Baker

United States District Judge

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