# Sterling v. Board of Trustees of University of Arkansas

> District Court, E.D. Arkansas · November 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10007216

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** November 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

REBECCA STERLING PLAINTIFF

v. Case No. 4:19-CV-00025-LPR

BOARD OF TRUSTEES OF THE
UNIVERSITY OF ARKANSAS, et al. DEFENDANTS

ORDER
This is an employment discrimination case. Plaintiff Rebecca Sterling alleges violations
of the Age Discrimination in Employment Act, the Rehabilitation Act, the Americans with
Disabilities Act, and the Family and Medical Leave Act. Defendants—the Board of Trustees of
the University of Arkansas, the members of the Board of Trustees, and Dr. Bentley Wallace—
deny engaging in any type of discrimination.1
This case was filed back in January of 2019. But it was only transferred to me in August
of 2022. The judge initially assigned to this case handled it through the summary-judgment stage.
She issued an Opinion and Order in October of 2020, granting in part and denying in part
Defendants’ Motion for Summary Judgment.2 For present purposes, the critical part of the October
2020 ruling held that “qualified immunity is not available to defendants on an FMLA claim.”3

1 The University of Arkansas-Pulaski Technical College was also a defendant in this action. But it has been dismissed
from the case. Both parties agree that it is not an entity that can be sued. See October 2020 Op. & Order (Doc. 19) at
7–8.
2 Except as directed by the Eighth Circuit or otherwise necessary from the parties’ subsequent concessions, I do not
intend to revisit the conclusions of the October 2020 Opinion and Order. Regardless of whether I would have come
to the same conclusions in the first instance, there is no good justification for disturbing them at this point. Of course,
the October 2020 Opinion and Order’s analysis is not binding on me at later stages of this litigation.
3 October 2020 Op. & Order (Doc. 19) at 16.
Based on that proposition, Dr. Wallace was denied qualified immunity with respect to Ms.
Sterling’s claim against him.4
Dr. Wallace took an interlocutory appeal on the qualified-immunity issue. The Eighth
Circuit remanded after determining that a more extensive qualified-immunity analysis was needed
at the district court level.5 Upon remand, and after transfer of the case to me,6 I held a summary-

judgment hearing focused on whether qualified immunity was appropriate in the specific
circumstances of this case—that is, “whether the violative nature of [Dr. Wallace’s] particular
conduct [was] clearly established.”7 I also invited the parties to simultaneously submit
supplemental briefs on the issue. They did so.8 For the reasons discussed below, Dr. Wallace is
entitled to qualified immunity on Ms. Sterling’s FMLA claim.
BACKGROUND
With very limited additions or exceptions, this Order adopts and relies on the facts set out
in the original summary-judgment decision and in the Eighth Circuit’s decision. The Court will
briefly summarize those facts to the extent they are relevant to the qualified-immunity analysis.

For the most part, they are not genuinely disputed.
Ms. Sterling has worked (in various roles) at the University of Arkansas-Pulaski Technical
College since 2012.9 By the end of 2016, she had become the Co-Chair and Interim Dean of the
College’s Business Division.10 In those two roles, Ms. Sterling made a total salary of $76,000

4 Id.
5 Sterling v. Bd. of Trs. of Univ. of Ark., 42 F.4th 901 (8th Cir. 2022).
6 The judge initially assigned to this case recused on July 29, 2022. See Order (Doc. 32). The case was reassigned to
me on August 2, 2022. Notice of Reassignment (Doc. 37).
7 Sterling, 42 F.4th at 905 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).
8 Pl.’s Suppl. Br. (Doc. 41); Defs.’ Suppl. Br. (Doc. 42).
9 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶¶ 2–4, 16.
10 Id.; Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 10:11–12:22.
($70,000 for being the Interim Dean; $6,000 for being the department Co-Chair).11 In January of
2018, the College announced that it was going to restructure.12 This restructuring meant that Ms.
Sterling’s Interim Dean position would be eliminated shortly after the end of the academic year.13
It also meant that department chair positions would be vacated.14
Ms. Sterling met with some of her supervisors to discuss her post-restructuring options at

the College. Ms. Sterling was told that there would be new dean positions for which she could
apply.15 But Ms. Sterling didn’t consider that a real option. She believed that she “wasn’t qualified
for” the new dean positions because she “didn’t have a doctorate.”16 Ms. Sterling was also
informed that she could consider returning to a teaching position.17 But it was not clear at that
time whether there would actually be a teaching position for Ms. Sterling.18 So, unless and until a
guaranteed teaching spot materialized, Ms. Sterling felt she was “basically . . . going to be out of
a job . . . .”19
While waiting to hear of a potential teaching spot, Ms. Sterling learned about an opening
for a “nonacademic, staff position”: the Coordinator of Community Education.20 Ms. Sterling

viewed this position as an opportunity to “be a little bit creative” while still allowing for the

11 Id. at 13:3–11.
12 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 5.
13 Id.
14 Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 14:2–15:7.
15 Id. at 14:18–22.
16 Id.
17 Id. at 14:2–17; Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 6.
18 Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 15:14–25.
19 Id. at 14:12–15:25; see also id. at 44:14–45:24.
20 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 7.
exploration of teaching positions.21 Additionally, the Coordinator position paid more than the
salary of a normal teaching role. The Coordinator position paid $48,000 for a twelve-month
appointment,22 whereas Ms. Sterling’s expected earnings for a teaching position at that time would
have been approximately $40,000 for a nine-month appointment.23 All of this prompted Ms.
Sterling to apply for the Coordinator position.24

Dr. Wallace was the hiring official for the Coordinator position.25 Although Dr. Wallace
had the final say of who would be hired, applicants were interviewed by a five-member
committee.26 The interview committee was composed of: (1) Dr. Wallace; (2) Elizabeth Reves;
(3) Somerly Mustin; (4) Verkeytia Long; and (5) Reba Melton.27
Over forty people, including Ms. Sterling, applied for the Coordinator position.28 Such a
large number of applicants could not efficiently be interviewed by the five-member committee.
So Dr. Wallace screened the applications in order to narrow the field.29 Dr. Wallace enlisted
committee member Elizabeth Reves to help him with this pre-interview screening process.30 Dr.
Wallace and Ms. Reves each reviewed every application, independently selected the candidates

21 Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 16:15–22.
22 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 15.
23 See Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 17:5–9; Ex. 15 (Faculty Position Description)
to Defs.’ Mot for Summ. J. (Doc. 8-9) at 1. When the Court cites page numbers of an exhibit, it is referring to the
page number of the exhibit itself, not the page numbers created by the ECF e-filing system.
24 Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 16:15–22.
25 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 8.
26 Id. ¶¶ 8–10, 18–19; see Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 60:4–61:3.
27 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶¶ 18–20. At the time the events in this case occurred, Ms.
Melton was known as Reba Treece. Id. ¶ 19; Ex. 12 (Melton Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-8) at 5:11–
13.
28 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 17.
29 Ex. 2 (Dr. Wallace Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-2) at 44:24–45:19; see Pl.’s Resp. to Defs.’ Statement
of Facts (Doc. 14-2) ¶ 18.
30 Ex. 2 (Dr. Wallace Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-2) at 45:12–19; Pl.’s Resp. to Defs.’ Statement of
Facts (Doc. 14-2) ¶ 18.
they thought should be interviewed, and then compared notes.31 Dr. Wallace did not place Ms.
Sterling on his list of candidates to interview.32 But Ms. Reves had chosen Ms. Sterling for her
list and asked Dr. Wallace to include Ms. Sterling in the round of interviews.33 Dr. Wallace agreed
to do so.34
On May 2, 2018, Dr. Wallace emailed Ms. Sterling to inform her that she would be

interviewed on May 8 at 1:30 pm.35 About an hour after receiving this email, Ms. Sterling
responded, “Bentley: I am sorry, is there another date than May 8? I will be in El Dorado with my
mother at her cancer doctor’s appointment on that day.”36 The next day, May 3, Dr. Wallace
replied, “Sorry to hear that your mom is going through that. Hope her treatments are bearable and
successful. I am checking with the interview committee to see if we can add you on Wednesday
the 9th at 12:30. Will report back later today once I’ve heard from the committee members.”37
The rescheduling never came to pass. That’s because about one minute after Dr. Wallace
sent his May 3 email, Ms. Sterling responded, “Bentley: Don’t change it yet, I am checking to see
if my sister can go with my mother on that date. I should know something today. THANKS!!”38
And the next day, May 4, Ms. Sterling told Dr. Wallace to “keep the [initial] time you scheduled.”39

31 Ex. 2 (Dr. Wallace Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-2) at 45:12–19.
32 Id. at 83:10–15.
33 Id. at 83:16–25.
34 Id.
35 Ex. 17 (Wallace-Sterling Emails) to Defs.’ Mot. for Summ. J. (Doc. 8-9) at 3.
36 Id. at 2.
37 Id.
38 Id. at 1.
39 Id.
Dr. Wallace responded, “Great. We’ll see you at 1:30 on Tuesday the 8th.”40 The interview took
place on May 8, as scheduled.41
The candidate interviews were conducted over two days (May 8 and May 9, 2018) by the
five-member committee.42 The committee jointly interviewed each candidate. During or right
after the interviews, every interviewer filled out a separate evaluation form (essentially a

scorecard) for every candidate.43 Once all the interviews were over, the interviewers discussed the
candidates’ strengths and weaknesses.44 Although no hiring decision was made at that time, it

40 Id.
41 In its Opinion, the Eighth Circuit stated that Ms. Sterling “also took FMLA leave that day.” Sterling, 42 F.4th at
903. The Eighth Circuit likely gleaned this from the summary judgment ruling made by the trial judge initially
assigned to this case. Her October 2020 Opinion and Order stated that it was “undisputed that Ms. Sterling . . . took
FMLA leave on May 8, 2018 . . . .” (Doc. 19) at 22. But, as both parties acknowledged at the post-remand hearing,
there is nothing in the record to suggest Ms. Sterling took leave on May 8, 2018. Aug. 12, 2022 Hr’g Tr. (Rough) at
13–14 (Dr. Wallace’s counsel stating that Ms. Wallace “never even took the leave”); id. at 25 (Ms. Sterling’s counsel
stating there is not “anything in the record that says either way”). The slight mischaracterization in the October 2020
Opinion and Order—and the corresponding slight mischaracterization in the Eighth Circuit’s Opinion—is the
completely understandable result of the parties’ ambiguously drafted statements of undisputed material facts.
Defendants’ Statement of Material Facts Not in Dispute provides that Ms. Sterling “took FMLA leave during that time
period.” (Doc. 10) ¶ 23. The ambiguous phrase, “during that time period,” comes directly after two paragraphs
discussing the events of May 2 through May 9, 2018. Id. ¶¶ 21–23. With that context in mind, it is easy to see how
one would read Defendants’ Statement of Material Facts Not in Dispute to say that Ms. Sterling took FMLA leave on
May 8, 2018. But that cannot be what Defendants were actually saying. Defendants cite page fifty of Ms. Sterling’s
deposition to support the “during that time period” statement. Id. ¶ 23. At that point in her deposition, Ms. Sterling
was testifying about the general process of obtaining FMLA certification and taking FMLA leave over the course of
an entire year. Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 49:23–51:6. So, when Defendants said
that Ms. Sterling “took FMLA leave during that time period,” they were saying that she took FMLA leave during the
“year period” between April 26, 2018, and April 26, 2019. Id. at 50:1–4. They were not saying anything about
whether she actually took leave on or around May 8, 2018.
42 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 21.
43 Id. ¶ 25; Ex. 2 (Dr. Wallace Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-2) at 19:11–21; Ex. 11 (Reves Dep.) to Defs.’
Mot. for Summ. J. (Doc. 8-7) at 8:6–8.
44 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 27. It is unclear what role the numerical scores played in this
discussion. Dr. Wallace said the members shared their scores “as assistance in getting to the point of having a
discussion. And the points are just one portion of that conversation.” Ex. 2 (Dr. Wallace Dep.) to Defs.’ Mot. for
Summ. J. (Doc. 8-2) at 21:5–7. But then he immediately contradicted that statement and said that he “asked for
opinion before [he] ask[ed] for numbers” because, when he is leading an interview committee, he “hold[s] the numbers
to the end” so that the scores don’t “influence the conversation.” Id. at 22:3–6. Ms. Long’s testimony was similarly
confused. She testified that the interviewers “went over . . . our scores and what we thought,” but then also testified
that the interviewers were not “told the other people’s scoring” and that the discussion was “just more [of a] general
conversation, not specifics like that.” Ex. 8 (Long Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-4) at 6:14–7:12. Ms.
Mustin testified that Dr. Wallace made a chart that logged each interviewer’s scores, and that she “believe[d]” that
Dr. Wallace made that chart “during,” not after, the discussion. Ex. 9 (Mustin Dep.) to Defs.’ Mot. for Summ. J. (Doc.
8-5) at 6:19–7:10. Ms. Reves didn’t really remember anything about the discussion at all. Ex. 11 (Reves Dep.) to
became clear that there were two leading candidates: Ms. Sterling and Kristin Howell.45 Dr.
Wallace decided to take the evening to think things over. The next morning, May 10, he informed
the committee that he had chosen Ms. Howell for the Coordinator position.46
Ms. Sterling felt that Dr. Wallace’s decision simply didn’t make sense. She requested and
received from human resources the interviewers’ scorecards.47 The scoring only added to Ms.

Sterling’s suspicions. Based on scoring, she had the edge over Ms. Howell.48 The final tally was
224 points for Ms. Sterling and 215 points for Ms. Howell.49 Moreover, Ms. Sterling’s “lead” was
despite a very low score from Dr. Wallace. While the other four interviewers each scored Ms.
Sterling at 45 or above out of 50, Dr. Wallace scored her a 34 out of 50.50 And the outlier nature
of the score cannot be explained simply by harder grading. With respect to Ms. Howell, Dr.
Wallace’s score was more in line with the rest of the committee. The other four interviewers had
given Ms. Howell scores of 37, 42, 43, and 47.51 Dr. Wallace scored Ms. Howell a 46 out of 50.52
What was the conclusion Ms. Sterling drew from all this? For some reason, Dr. Wallace had
intentionally deflated his personal score of Ms. Sterling in an attempt to knock her out of

Defs.’ Mot. for Summ. J. (Doc. 8-7) at 10:25–11:18. Ms. Melton said the discussion was “brief,” and that “[a]t the
end of the interviews, it was clear that [Ms. Sterling] had the highest points on the rubrics . . . .” Ex. 12 (Melton Dep.)
to Defs.’ Mot. for Summ. J. (Doc. 8-8) at 12:9–22.
45 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 27. Given that the record is unclear as to how the discussion
among the interviewers unfolded, it isn’t possible to say whether Ms. Sterling and Ms. Howell quickly became the
two leading candidates based on their scores, the interviewers’ comments to one another, or some combination of the
two. See supra note 44.
46 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 35.
47 Ex. 1 (Sterling Dep.) to Defs.’ Mot. for Summ. J. (Doc. 8-1) at 25:1–26:5.
48 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 14-2) ¶ 28.
49 Id.
50 Ex. 21 (Sterling Scorecards) to Defs.’ Mot. for Summ. J. (Doc. 8-11).
51 Ex. 22 (Howell Scorecards) to Defs.’ Mot. for Summ. J. (Doc. 8-11) at 3–10.
52 Id. at 1–2.
contention. And, when that didn’t achieve his desired result, he selected Ms. Howell despite Ms.
Sterling’s higher cumulative score.
Ms. Sterling also believes she knows the reason that Dr. Wallace acted as he did. She
alleges that Dr. Wallace unlawfully discriminated against her. More specifically, Ms. Sterling
claims that Dr. Wallace decided not to hire her because he thought that she might need to take

FMLA leave in the future to help care for her sick mother. To be clear, Ms. Sterling is not arguing
that Dr. Wallace’s decision was a punishment for Ms. Sterling’s initial plan to take FMLA leave
on May 8, 2018. Nor is Ms. Sterling arguing that Dr. Wallace’s decision was punishment for any
other FMLA leave that Ms. Sterling had actually taken in the past. Ms. Sterling’s sole argument
is that Dr. Wallace didn’t hire her because he didn’t want someone who might take FMLA leave
during her tenure in the Coordinator position.53
DISCUSSION
Two questions are raised when a government official invokes the defense of qualified
immunity at the summary-judgment stage. One question is simply the normal summary-judgment

analysis, i.e., whether a rational juror could conclude that the government official violated the
applicable law.54 The other question—unique to the qualified-immunity context—asks whether
the applicable law was so “clearly established” that the government official is either a complete
nincompoop or must have known that his or her conduct violated that law.55 If the answer to either

53 The October 2020 Opinion and Order never precisely explained Ms. Sterling’s theory of FMLA discrimination.
That’s quite understandable: The nub of Ms. Sterling’s FMLA claim lacked precision last time around. But, during
oral argument at the Eighth Circuit and again during the post-remand hearing in this Court, Ms. Sterling was
unambiguous as to her sole theory of FMLA discrimination. Eighth Cir. Oral Arg. Audio at 0:17:00–0:18:00 (“The
theory is that he didn’t want to hire somebody, or promote somebody, into that position that was going to be taking
time off to deal [with] cancer for her mother.”); Aug. 12, 2022 Hr’g Tr. (Rough) at 4 (clarifying that “the only claim”
is that Dr. Wallace “form[ed] the thought in his mind that she was going to [take FMLA leave] in the future and that
he was not hiring her ultimately because he was worried about the future”).
54 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014).
55 Mullenix, 577 U.S. at 11–12.
question is “no,” then qualified immunity is appropriate. A court may answer these questions in
whichever order it chooses.56 And, although Supreme Court and Eighth Circuit precedent don’t
require it, my inclination is to begin with the straightforward question about the existence of a
statutory violation. This avoids a vicious cycle where it never becomes “clearly established”
whether certain conduct violates the law.57

I. FMLA Discrimination
Ms. Sterling claims that Dr. Wallace refused to hire her because he thought she might take
FMLA leave in the future. In the Eighth Circuit, this would be considered an “FMLA
discrimination” claim.58 An FMLA discrimination claim is analyzed in the same manner as Title
VII discrimination claims.59

56 E.g., Tolan, 572 U.S. at 656.
57 E.g., Mullenix, 577 U.S. at 11–12 (“We address only the qualified immunity question, not whether there was a
Fourth Amendment violation in the first place . . . .”); Cent. Specialties, Inc. v. Large, 18 F.4th 989, 996 (8th Cir.
2021) (“[O]ur inquiry begins and ends with the clearly established prong.”).
58 The Eighth Circuit has recognized three different claims under the FMLA. First, there is an “entitlement” claim
under 29 U.S.C. § 2615(a)(1). Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012).
Section 2615(a)(1) makes it “unlawful for any employer to interfere with, restrain, or deny” an employee’s FMLA
rights. Everyone agrees that Ms. Sterling is not raising an entitlement claim in the case at bar. That makes sense: It
is undisputed that Ms. Sterling wasn’t denied any benefit to which she was entitled under the FMLA. See Brown v.
City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013) (entitlement claim requires proof that employer denied the
employee benefits under the FMLA). Second, there is a “retaliation” claim under 29 U.S.C. § 2615(a)(2). Pulczinski,
691 F.3d at 1005–06. Section 2615(a)(2) makes it “unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by” the FMLA. There’s no evidence in
this case of Ms. Sterling opposing any practice made unlawful by the FMLA. So everyone agrees that Ms. Sterling is
not raising a retaliation claim in the case at bar.
Third, and most importantly for our case, there is a “discrimination” claim. The Eighth Circuit candidly acknowledges
that the “textual basis for such a claim is not well developed . . . .” Pulczinski, 691 F.3d at 1006. It has suggested
that, perhaps, the claim can be grounded in “the rule of § 2615(a)(1) that an employer may not interfere with, restrain,
or deny the exercise of or the attempt to exercise rights defined by the FMLA.” Id. (quotation marks and citation
omitted). In any event, and regardless of where the rule comes from statutorily, the Eighth Circuit has said that FMLA
discrimination occurs “when an employer takes adverse action against an employee because the employee exercises
rights to which he [or she] is entitled under the FMLA.” Id. This precedent is binding on me.
Ms. Sterling’s claim is an FMLA discrimination claim. That’s how the parties present it. Aug. 12, 2022 Hr’g Tr.
(Rough) at 4. That’s how the judge initially assigned to this case analyzed it. October 2020 Op. & Order (Doc. 19)
at 21–26. And the Eighth Circuit did not suggest that framework was wrong.
59 Pulczinski, 691 F.3d at 1007.
Because Ms. Sterling has not provided direct evidence of discrimination, she must first
establish a prima facie case.60 At summary judgment, this means she must produce evidence from
which a rational juror could rule for her on each of the following three elements: (1) Ms. Sterling
“exercised rights afforded by” the FMLA; (2) Ms. Sterling “suffered an adverse employment
action”; and (3) “there was a causal connection between her exercise of rights and the adverse

employment action.”61 Once Ms. Sterling establishes a prima facie case, the burden shifts to Dr.
Wallace to “offer a legitimate, non-discriminatory reason for [his] actions.”62 If Dr. Wallace meets
his burden of production, Ms. Sterling must put forth evidence from which a rational juror could
conclude that Dr. Wallace’s “stated reason was mere pretext for FMLA discrimination.”63
Most of the burden-shifting analysis is easily performed without recreating the wheel. In
her summary judgment ruling, the initial judge assigned to this case concluded that “Ms. Sterling
makes a submissible case that she suffered an adverse employment action when not hired for the
Coordinator position.”64 Likewise, the judge found the causal-connection prong satisfied by the
combination of (1) the “close temporal proximity” between Dr. Wallace learning of Ms. Sterling’s

FMLA needs and the adverse employment action and (2) Dr. Wallace’s decision to essentially
ignore the fact that his partners on the interview committee had scored Ms. Sterling higher than
Ms. Howell.65 And, while acknowledging that Dr. Wallace “articulate[d] a legitimate,

60 See Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008).
61 Id. (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002)).
62 Brandt v. City of Cedar Falls, 37 F.4th 470, 480 (8th Cir. 2022).
63 Button v. Dakota, Minn. & E. R.R. Corp., 963 F.3d 824, 835 (8th Cir. 2020).
64 October 2020 Op. & Order (Doc. 19) at 21.
65 See id. at 21–22. The judge initially assigned to this case found the causal-connection prong satisfied because the
May 2, 2018 email from Ms. Sterling to Dr. Wallace was sufficient for a rational juror to conclude that Dr. Wallace
knew of Ms. Sterling’s FMLA leave on May 8, 2018 and punished her for it in his May 10 hiring decision. But, as
explained above, there was no such FMLA leave actually taken on May 8, 2018. See supra note 41. And that’s not
Ms. Sterling’s theory of FMLA discrimination. Ms. Sterling’s theory of FMLA discrimination is that the May 2 email
gave Dr. Wallace the knowledge that she might need to take FMLA leave in the future and thus led to Dr. Wallace’s
nondiscriminatory reason for hiring someone other than Ms. Sterling,”66 the judge found that Ms.
Sterling created a genuine issue of material fact as to whether Dr. Wallace’s justification was
pretext for FMLA discrimination.67
There is no reason for this Court to disturb those rulings at this time.68 But that still leaves
the first prong of the prima facie test—whether Ms. Sterling “exercised rights afforded by” the

FMLA.69 In her summary-judgment ruling, the initial judge assigned to this case found that Ms.
Sterling satisfied the exercise-of-rights prong of the prima facie case because it was “undisputed
that Ms. Sterling exercised rights under the FMLA” when “she took FMLA leave on May 8, 2018
. . . .”70 It has since become clear this finding was the result of the parties’ ambiguously drafted
statements of material fact.71 Ms. Sterling never actually took FMLA leave on May 8, 2018.72
Ms. Sterling is not even claiming that her initial plan to take FMLA leave that day was the
motivation for Dr. Wallace’s alleged discrimination. Instead, she claims that Dr. Wallace was
concerned that Ms. Sterling might take FMLA leave in the future. Reexamination of this first
prong is unavoidable because Ms. Sterling has clarified exactly what she is claiming to be the

May 10 decision. Even on this different theory, the Sterling-Wallace email chain referenced by the initial judge in
her summary judgment ruling is sufficient to create a genuine issue of material fact as to whether the email chain put
Dr. Wallace on notice that Ms. Sterling might need FMLA leave in the future. That notice, combined with the other
aspects of the initial judge’s causal-connection analysis, is sufficient to satisfy the causal-connection prong of the
prima facie case.
66 October 2020 Op. & Order (Doc. 19) at 22.
67 Id. at 23–26.
68 See supra note 2.
69 Phillips, 547 F.3d at 912.
70 October 2020 Op. & Order (Doc. 19) at 21–22.
71 See supra note 41.
72 See id.
FMLA violation.73 In light of this clarification, which significantly recasts the entire claim, I
cannot simply adopt the initial judge’s conclusions as to the first prong.
Can an employee’s potential (but unexpressed) need to exercise FMLA rights at some
undefined point in the future be considered an exercise of rights for purposes of this first prong?
The Eighth Circuit has not addressed this question yet. So far, every FMLA discrimination case

in the Eighth Circuit has involved (1) the employee’s prior exercise of FMLA rights, (2) the
employer’s certainty that the employee will take FMLA leave in the near future, or (3) both. No
Eighth Circuit case has involved an employer taking an adverse action against an employee solely
because the employer has inferred that the employee might take FMLA leave at some undefined
point in the future.
The closest the Eighth Circuit has come to answering this question is its 2012 decision in
Marez v. Saint-Gobain Containers, Inc.74 In Marez, the employee told her supervisor that “she
would require FMLA leave for her husband’s upcoming surgery.”75 The employee “did not know
the date of the surgery and thus did not know when she would require” FMLA leave.76 The

73 See supra note 53 and accompanying text.
74 688 F.3d 958 (8th Cir. 2012). Throughout Marez, the Eighth Circuit referred to the plaintiff’s claim as a “retaliation”
claim and cited 29 U.S.C. § 2615(a)(2). Id. at 963. Prior to Pulczinski (decided one month after Marez), the Eighth
Circuit did not use consistent terminology in regard to the various claims available under the FMLA. Pulczinski, 691
F.3d at 1005–06. “Entitlement” claims were also called “interference claims.” Id. at 1005. And “retaliation” was used
to refer to both a true FMLA retaliation claim under 26 U.S.C. § 2615(a)(2) as well as the judicially created
“discrimination” claim recognized by the Eighth Circuit and other courts of appeal. See Phillips, 547 F.3d at 913–14
(Colloton, J., concurring). It is also unclear, as noted by the Pulczinski Court, whether an FMLA “discrimination”
claim arises directly from the statutory text and, if so, in which specific provision it is based. Compare Pulczinski,
691 F.3d at 1006 (stating that an FMLA discrimination claim “likely arises under the rule of § 2615(a)(1)”), with
Marez, 688 F.3d at 963 (basing the claim in § 2615(a)(2)), and Phillips, 547 F.3d at 909 (same). Despite this
confusion, Pulczinski made clear that cases in which a plaintiff alleges that an employer took an adverse action against
the employee because of the employee’s FMLA leave are discrimination cases, regardless of whether the court used
the “retaliation” or “discrimination” moniker. 691 F.3d at 1006.
75 688 F.3d at 961.
76 Id.
employee simply told her supervisor that she would need FMLA leave “soon.”77 Two days after
this conversation, the employee was called into a meeting with her supervisor, the human resources
manager, and the operations manager.78 The employee was terminated in that meeting.79 The
employee brought suit alleging that she was discriminated against based on “her request for future”
FMLA leave.80 A jury found in the employee’s favor, and the Eighth Circuit upheld the verdict.81

In affirming the Marez jury’s verdict, the Eighth Circuit described the exercise-of-rights issue as
the employee’s burden “to show that she had notified [the employer] of her intention to take FMLA
leave . . . .”82 So, even though the employee never actually took leave (because she was fired
before she could), she still met her exercise-of-rights burden because the act of notifying an
employer of forthcoming FMLA leave is itself an exercise of rights under the FMLA.83
Ms. Sterling’s case is distinct from Marez in two important ways. First, Ms. Sterling never
expressly told Dr. Wallace that she would certainly be taking FMLA leave in the near future.
Indeed, Ms. Sterling’s theory is that Dr. Wallace independently inferred that Ms. Sterling might
take FMLA leave at some undefined point in the future—because Dr. Wallace knew from the May

2 email that Ms. Sterling’s mom had cancer and that Ms. Sterling at least once contemplated going
to the doctor with her mom during work hours. Second, Ms. Sterling does not argue that any past
exercise of her FMLA rights caused Dr. Wallace to discriminate against her. The exercise of
FMLA rights that Ms. Sterling now relies on (i.e., missing work, or even just asking to miss work,

77 Id.
78 Id.
79 Id.
80 Id. at 961 n.2.
81 Id. at 960.
82 Id. at 963.
83 Id.; see also Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1016 (8th Cir. 2013).
so that she could take her mother to a doctor’s appointment) had not yet occurred and was
essentially speculative when Dr. Wallace decided not to hire her.
Do these distinctions doom Ms. Sterling’s claim of a statutory violation? They do not. At
its core, an FMLA discrimination claim prohibits employers from “consider[ing] an employee’s
use of FMLA leave as a negative factor in an employment action.”84 Employers are therefore not

allowed to engage in “manipulation[s] . . . to avoid responsibilities under [the] FMLA.”85 From
this, it logically follows that the past exercise of FMLA rights is not a necessary ingredient for
FMLA discrimination claims. It is enough for the employer’s adverse action to have been
motivated by the employer’s perception that the employee might take FMLA leave in the future.
The Eighth Circuit has never held that an adverse employment action causally connected
to the potential exercise of FMLA rights in the future is, on its own, enough to support a prima
facie case of FMLA discrimination. But that doesn’t tell us that much. It has never faced a case
that presented this particular issue on the merits. It is clear, however, that the Eighth Circuit
generally treats an FMLA discrimination claim like employment discrimination claims available
under other statutes.86 And there’s no doubt that Dr. Wallace’s alleged misconduct would be

unlawful if this were a Title VII religious discrimination case. Consider the following example
from the Supreme Court:
[S]uppose that an employer thinks (though he does not know for certain) that a job
applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable
to work on Saturdays. If the applicant actually requires an accommodation of that

84 Jackson v. City of Hot Springs, 751 F.3d 855, 861 (8th Cir. 2014) (quotation marks and citations omitted).
85 Phillips, 547 F.3d at 911 (discussing an entitlement, or “interference,” claim under 29 U.S.C. § 2615(a)(1)); see
Pulczinski, 691 F.3d at 1006 (stating that an FMLA discrimination claim “likely arises under the rule of § 2615(a)(1)
that an employer may not interfere with . . . the exercise of or the attempt to exercise rights defined by the FMLA.”
(quotation marks omitted))
86 See, e.g., Scruggs v. Pulaski Cnty., 817 F.3d 1087, 1094 (8th Cir. 2016) (using same prima facie framework for
ADA and FMLA claims); Pulczinski, 691 F.3d at 1007 (“This court has considered FMLA discrimination claims
under the McDonnell Douglas burden-shifting framework that is applied in Title VII cases.”).
religious practice, and the employer's desire to avoid the prospective
accommodation is a motivating factor in his decision, the employer violates Title
VII.87
Likewise, Ms. Sterling’s theory of liability would work for a disability discrimination claim under
the Americans with Disabilities Act. The ADA prohibits an employer from discriminating against
a job applicant because the employer perceives the applicant as mentally or physically impaired.88
And the employer is liable regardless of whether his or her inference was accurate.89 So, under
both Title VII and the ADA, it is unlawful for an employer to reject a job applicant to avoid the
possibility that the applicant will exercise statutory rights in the future. There’s no logical reason
to reach a different result in this FMLA case, at least not in light of the governing Eighth Circuit
precedent on FMLA “discrimination” claims—precedent that pays less attention to the specific
words of the FMLA statute than may be warranted.
II. Qualified Immunity
Qualified immunity is a defense that “gives officials ‘breathing room to make reasonable
but mistaken judgments about open legal questions.’”90 It “shields officials from civil liability so
long as their conduct does not violate clearly established statutory or constitutional rights . . . .”91

The Supreme Court has routinely explained that qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.”92

87 EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773–74 (2015).
88 42 U.S.C. § 12102(1)(C), (3); see also Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1113 (8th Cir. 2016).
89 See Canning v. Creighton Univ., 995 F.3d 603, 615 (8th Cir. 2021) (“[A] person is regarded as disabled if her
employer mistakenly believes that she has a physical impairment . . . .”).
90 Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
91 Mullenix, 577 U.S. at 11 (quotation marks and citations omitted).
92 E.g., Malley v. Briggs, 475 U.S. 335, 341 (1986).
In short, Dr. Wallace “cannot be said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable official in [his] shoes would have
understood that he was violating it.”93 This requires that, at the time of Dr. Wallace’s decision not
to hire Ms. Sterling, there existed “either ‘controlling authority’ or a ‘robust consensus of cases of
persuasive authority’” that “placed the statutory . . . question confronted by [Dr. Wallace] beyond

debate.”94 Given the Court’s analysis in Discussion Section I, it should come as no surprise that
Dr. Wallace is entitled to qualified immunity. In May of 2018, it was not clearly established that
the FMLA prohibited his decision not to hire Ms. Sterling because he inferred that she might have
to take FMLA leave in the future.
Ms. Sterling’s claim is simply too novel to skirt qualified immunity. To be sure,
overcoming qualified immunity does not require Ms. Sterling to find a factually identical case.95
But any distinctions must be so immaterial that the “unlawfulness of [Dr. Wallace’s] conduct” was
still “apparent.”96 And the two differences that distinguished Ms. Sterling’s case from the Eighth
Circuit’s decision in Marez also materially differentiate her case from every other relevant FMLA
discrimination case.97 While those differences do not doom her statutory claim, they do make the

alleged manner of violation distinct from every previously recognized violation.
Only three circuit court cases, each from outside the Eighth Circuit, involve an employee
alleging that he or she was subjected to an adverse employment action due to FMLA leave that

93 Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014).
94 Id. at 779–80 (quotation marks and citations omitted).
95 Ziglar, 137 S. Ct. at 1866–67.
96 Id. at 1867.
97 “Relevant,” in this context, means cases decided before May 10, 2018. Plumhoff, 572 U.S. at 779–80 (stating that
cases decided after the defendant’s conduct “could not have given fair notice” to the defendant (quoting Brosseau v.
Haugen, 543 U.S. 194, 200 n.4 (2004) (per curiam))).
might occur.98 In Kelly v. University of Pennsylvania Health Systems, the employee, who had
recently returned “from three-month consecutive leave,” told her employer that “she may need
similar consecutive leave in the future.”99 In Bartels v. Southern Motors of Savannah, Inc., the
employee “indicated to the [employer] that he would need time off in the future to help his wife
through [a] complicated pregnancy,” but he “did not request any specific days off.”100 And in

Sarnowski v. Air Brooke Limousine, Inc., the employee was fired after he told his supervisor that
he “might need” FMLA leave for a heart surgery.101
These three cases don’t move the needle for Ms. Sterling. Kelly was premised on more
than just the employee’s potential future FMLA leave; she was also alleging that the discrimination
was based on her previous three-month stint of FMLA leave.102 In Bartels, the Eleventh Circuit
merely assumed that the employee had made out a prima facie case and then granted the
employer’s motion for summary judgment because the employee could not establish pretext.103

98 Ms. Sterling cites a compilation of district court cases, none of which is relevant to the qualified-immunity analysis
in this case. Pl.’s Suppl. Br. (Doc. 41) at 3–4. Two of the cases were decided well after May of 2018. And the rest
are plainly distinguishable from the facts of Ms. Sterling’s case. Davidson v. Evergreen Park Cmty. High Sch. Dist.
231, No. 15 C 0039, 2017 WL 2243096, at *9 (N.D. Ill. May 23, 2017) (“There is also no evidence that [employer’s]
termination of [employee] was preemptive retaliation for his potential future use of FMLA leave.”); Shreve v. N.J.
Motor Vehicle Comm’n, No. 15-7957, 2016 WL 5334661, at *5 (D.N.J. Sept. 22, 2016) (“Plaintiff has alleged that
she was entitled to FMLA leave . . . and as a result of taking this leave, [employer] . . . terminated her employment.”);
Karanja v. BKB Data Sys., LLC, No. DKC 14-0573, 2015 WL 993462, at *3 (D. Md. Mar. 4, 2015) (“Plaintiff alleges
that Defendant discriminated against her . . . by terminating her employment after she gave advanced notice of her
intent to take maternity leave in June 2013.”); Corral v. Hersha Hosp. Mgmt., Inc., No. 12-cv-02375, 2012 WL
4442666, at *6–7 (D.N.J. Sept. 24, 2012) (plaintiff alleged discrimination after “she notified her employer of her intent
to take leave approximately six months later”); Hopkins v. Grant Thornton Int’l, 851 F.Supp.2d 146, 152 (D.D.C.
2012) (plaintiff alleged that he “was terminated because he requested FMLA leave” (quoting Am. Compl. Count 1, ¶
32)); Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 626 (D.S.C. 2010) (“Plaintiff . . . requested leave and
. . . was terminated.”); Reynolds v. Inter-Indus. Conf. on Auto Collision Repair, 594 F.Supp.2d 925, 926–27 (N.D. Ill.
2009) (plaintiff had requested FMLA leave); Walker v. Elmore Cnty. Bd. of Educ., 223 F.Supp.2d 1255, 1256 (M.D.
Ala. 2002) (plaintiff had “orally requested maternity leave” shortly before being terminated).
99 708 F. App’x 60, 63 (3d Cir. 2017).
100 681 F. App’x 834, 836 (11th Cir. 2017).
101 510 F.3d 398, 400–01 (3d Cir. 2007).
102 708 F. App’x at 60.
103 681 F. App’x at 838.
Moreover, both Kelly and Bartels are unpublished opinions and therefore “provide[] little, if any,
support for imposing liability based on clearly established law . . . .”104 Sarnowski is an FMLA
entitlement case, not an FMLA discrimination case. And in all three cases the employee directly
and expressly notified the employer of the potential need for future FMLA leave—the employer
was not subjected to personal liability based on an inference drawn from an employee’s general

comments. Finally, even if each case were directly on point, three out-of-circuit cases don’t
amount to a “robust consensus of cases of persuasive authority.”105
It must be acknowledged that the Court is slicing things very thinly. After all, a rational
juror could find that Dr. Wallace discriminated against Ms. Sterling because he thought (based on
an inference) that Ms. Sterling might take FMLA leave in the future. And a case like Marez clearly
establishes that, in the Eighth Circuit, a defendant is prohibited from discriminating against a
plaintiff because the defendant knows (based on the plaintiff’s direct notification) that the plaintiff
will take FMLA leave in the future. Both situations involve a defendant trying to avoid dealing
with a plaintiff’s FMLA-protected absences. So the only differences are (1) the defendant’s degree

of certainty that an FMLA-protected absence will indeed occur and (2) the manner in which the
defendant arrived at that degree of certainty. But Supreme Court and Eighth Circuit qualified-
immunity precedents require such thin slicing. Under those precedents, the differences just
discussed matter for qualified immunity.
Resolving an FMLA discrimination claim is an inherently fact-intensive endeavor. The
burden-shifting framework utilized by courts is a tool designed to determine whether there are
sufficient facts to allow a rational juror to conclude that a defendant illegally discriminated against

104 Blazek v. City of Iowa City, 761 F.3d 920, 925 n.3 (8th Cir. 2014) (citing Hogan v. Carter, 85 F.3d 1113, 1118 (4th
Cir. 1996) (en banc)).
105 See Lane v. Nading, 927 F.3d 1018, 1023 (8th Cir. 2019).
a plaintiff.106 Among other things, that means that slight differences in the facts of each FMLA
discrimination case can result in different outcomes as to a defendant’s liability. And the
fundamental principle underlying the doctrine of qualified immunity is that government officials
are entitled to “fair notice” as to whether their conduct violates the law.107 In other words, qualified
immunity is meant to give government officials a reasonable ability to “anticipate when their

conduct may give rise to liability for damages.”108 So qualified immunity is often appropriate
where slight differences between the facts of each case tend to change the ultimate outcome—i.e.,
whether the applicable law was violated.109 (What, if anything, that means about the general
propriety of the qualified-immunity doctrine is a question way above my pay grade.)
Dr. Wallace was not on notice that—given the unique facts of this case—refusing to hire
Ms. Sterling could subject him to civil liability for money damages. The differences between prior
FMLA discrimination cases and this case are material enough that, in the fact-intensive context of
an FMLA discrimination claim, it was not entirely unreasonable that an “official in [Dr. Wallace’s]
shoes” would think his conduct was lawful.110 It is true the Court concluded above that, on the

merits, Ms. Sterling presented a submissible case of FMLA discrimination. But that conclusion
was based on an extension of Eighth Circuit precedent. And while that extension of Eighth Circuit
precedent is logical, warranted, and appropriate, it is not so obvious that Dr. Wallace had a duty to

106 Ring v. First Interstate Mortg., Inc., 984 F.2d 924, 926 (8th Cir. 1993).
107 Plumhoff, 572 U.S. at 779 (quoting Brosseau, 543 U.S. at 200 n.4).
108 Ziglar, 137 S. Ct. at 1867 (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).
109 Cf. id. at 1866 (“By its plain terms, the [Fourth] Amendment forbids unreasonable searches and seizures, yet it may
be difficult for an officer to know whether a search or seizure will be deemed reasonable given the precise situation
encountered.”); Lyons v. Vaught, 781 F.3d 958, 961 n.1 (8th Cir. 2015) (noting that the “fact-intensive balancing test”
applicable to public-employee-speech claims under the First Amendment “can rarely be considered ‘clearly
established’ for purposes of the . . . qualified immunity standard” (quoting Bartlett v. Fisher, 972 F.2d 911, 916–17
(8th Cir. 1992))).
110 Plumhoff, 572 U.S. at 779.
predict it in May of 2018.!!' Accordingly, Dr. Wallace is entitled to qualified immunity on Ms.
Sterling’s FMLA discrimination claim.
CONCLUSION
For the reasons provided above, the Court GRANTS in part Defendants’ Motion for
Summary Judgment. Defendant Bentley Wallace is entitled to qualified immunity on the FMLA
claim against him.
IT IS SO ORDERED this 28th day of November 2022.
keke
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE

111 See Ziglar, 137 8. Ct. at 1867; Wilson v. Layne, 526 U.S. 603, 617 (1999).
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10007216. Public record. Not legal advice.