Miller v. Arkansas State University Board of Trustees

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

JEROME MILLER PLAINTIFF

v. CASE NO. 2:22-CV-00115-BSM

ARKANSAS STATE UNIVERSITY

BOARD OF TRUSTEES, et al. DEFENDANTS

ORDER

Defendants’ motion for summary judgment [Doc. No. 40] is granted and Jerome

Miller’s claims are dismissed with prejudice.

I. BACKGROUND

Miller is a black man who is suing Arkansas State University and other defendants

(collectively “ASU”) for passing over him and hiring one of his former students to fill a full-

time position in its aviation maintenance technician (“AMT”) program, located at ASU’s

West Memphis campus. See Miller EEOC Charge, Doc. No. 40-1; Miller Dep. 36:13–17,

38:22–23, Doc. No. 40-2; Gray Dec. ¶ 3, Doc. No. 40-3. ASU offers vocational and

technical certificates, such as the one offered by the AMT program, through its Workforce

Education Department. Gray Dec. ¶ 4, Miller Dep. 36:13–22. The AMT program is

regulated by the Federal Aviation Administration (“FAA”) and prepares students to become

licensed aircraft mechanics. See 14 C.F.R. Part 147, Gray Dec. ¶ 8. The AMT program must

meet extensive FAA requirements to maintain its FAA certificate. Gray Dec. ¶¶ 9–10, Miller

Dep. 53:15–54:1, 14 C.F.R. § 147.13.

Jeff Gray and Dr. Callie Dunavin took over the day-to-day operations of the AMT

program in August 2018, and were charged with improving its standing with the FAA

because the program was in a perilous position Id. at ¶¶ 5–6, 18–19. Dunavin and Gray

were assisted by Sherri Reid. Id. at ¶ 24.

Miller first worked as an adjunct instructor in the AMT program on a per-semester

basis from January 2016 to May 2017. Adjunct Fac. Emp. Conts., Doc. No. 40-5; Gray Dec.

¶ 14. He filled a temporary position and had a dedicated start and end date each of these

three semesters. Miller Dep. 44:10–15.

Miller came back and filled another temporary position in the AMT program in the

spring semester of 2019. Id. at 46:9–47:11; Miller Intent to Hire Form, Doc. No. 40-6. Gray,

who was then the Interim Dean of Workforce Education, hired Miller as a “Temporary Full-

Time Instructor” to cover another professor’s classes while that professor took leave. Miller

Dep. 46:9–47:11, Gray Dec. ¶ 16. Gray interviewed both Miller and white man named

Charles Rye for this position. Gray Dec. ¶ 17. During his interview with Miller, Gray

specifically discussed the importance of recordkeeping and FAA compliance. Miller Dep.

56:16–57:13. Gray hired Miller, who accepted the position knowing that he would be

relieved when the professor who was on leave returned. Miller Dep. 46:9–47:11.

Reid, Gray, and Dunavin prepared a compliance report regarding the AMT program

in the spring 2019 semester. AMT Program Compliance Update, Doc. No. 40-12. The

report documented a number of problems with Miller and Allan Bardos, the other AMT

program instructor, primarily centered on lax enforcement of tardiness and absenteeism rules.

Id. Miller denies failing to enforce these rules. Pl.’s Resp. to Def.’s Statement of Facts ¶ 43,

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Doc. No. 46. The report noted that Reid had observed the full-time instructors’ supervision

of their students on March 14, 2019, and found that Bardos was with his students only 197

out of 480 minutes, while Miller was with his students only 116 out of 480 minutes. See

AMT Program Compliance Update 6.

ASU states that the report’s findings deterred it from considering Miller for future

full-time instructor positions. Gray Dec. ¶ 29. It states that the report did not impact Bardos

because he was already a full-time instructor who was already planning to retire the

following year. Id.; Haggard Dec. ¶ 4. Indeed, Bardos retired in 2020. Haggard Dec. ¶ 4.

ASU also claims that another incident deterred it from hiring Miller for a full-time

position. On April 15, 2019, a student in Miller’s class named Jason Williams broke his leg

when he jumped from the wing of a 727 airplane while unsupervised. The airplane’s

hydraulic system had caused its stairs to close, trapping Williams inside. Apr. 15, 2019

Accident Rep., Doc. No. 40-13. With no one to help him, Williams climbed out onto the

airplane’s wing and jumped. Id. Miller was held accountable for failing to properly

supervise his class, and JaNan Abernathy, who served on ASU’s Incident Review

Committee, believed Miller acted unprofessionally during the ASU’s efforts to review the

incident. Gray Dec. ¶ ¶ 31–32; Incident Rep. Notes, Doc. No. 40-14. This occurred only a

few weeks before Miller’s temporary employment concluded. Gray Dec. ¶ 33. Miller states

that the AMT program’s administrators never mentioned these concerns to him. Def.’s Resp.

to Pl.’s Statement of Facts ¶¶ 59–60.

In the spring 2020 semester, ASU hired Williams, Miller’s former student, to instruct

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a three-week class for students whose class schedules had been interrupted by the COVID

pandemic. Gray Dec. ¶ 35; Second Williams Intent to Hire Form, Doc. No. 40-21. Williams

was qualified to teach in the two areas in which he was certified. Gray Dec. ¶ 36. He was

also a 4.0 student with various accolades. Williams Application & Resume, Doc. No. 40-19.

Williams graduated from the AMT program with an excellent academic record, and

Gray received positive feedback about him from faculty, staff, and students. Gray Dec. ¶ 39.

Based on these qualifications, Gray offered Williams the full-time position created by

Bardos’s May 2020 retirement. Id.; see Williams Emp. Cont., Doc. No. 40-22. Despite

Miller’s repeated attempts to attain full-time employment, the AMT program’s administrators

did not consider Miller for the position. Gray Dec. ¶ 40; see June 11, 2019 Cover Letter,

Doc. No. 40-15; Oct. 25, 2019 Cover Letter, Doc. No. 40-16; Dec. 2, 2019 Phil. of Educ. E-

Mail, Doc. No. 40-17.

Miller filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on January 5, 2021. See Miller EEOC Charge. In his charge, Miller

claimed he was discriminated against on the basis of his race when a “less qualified, white-

male was selected” for the full-time aircraft maintenance instructor position in August 2020.

Id. The EEOC issued a right to sue letter, which Miller received on March 24, 2022. Right

to Sue Letter, Doc. No. 40-24. Miller filed this lawsuit 92 days later on June 24, 2022.

Compl., Doc. No. 1. Miller sues the defendants for race discrimination in violation of Title

VII and 42 United States Code sections 1981 and 1983. See Sec. Am. Compl., Doc. No. 23.

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II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). Once the moving party

demonstrates that there is no genuine dispute of material fact, the non-moving party may not

rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,

340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence

demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must

be drawn in the light most favorable to the non-moving party. Holland v. Sam’s Club, 487

F.3d 641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility

determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).

III. DISCUSSION

Defendants’ motion for summary judgment is granted.

A. Timely Filing

Defendants’ motion for summary judgment based on Miller’s failure to file suit within

ninety days of receiving his right to sue letter from the EEOC is denied. Miller filed suit 92

days after receiving the right to sue letter. Although plaintiffs have ninety days to file suit

after receiving the right to sue letter, courts often apply a “five-day presumption of mailing

time.” Frazier v. Vilsack, 419 F. App’x 686, 689 (8th Cir. 2011) (per curiam); see Rucker

v. Potter, 215 F. App’x 406, 408 (6th Cir. 2007). The EEOC sent the letter to Miller on

March 24, 2022, and he filed suit 92 days later on June 24, 2022. Consequently, Miller’s

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claims are addressed on the merits.

B. Title VII

Summary judgment is granted on Miller’s Title VII race discrimination claim because

he has failed to present direct or indirect evidence of discrimination. See Putman v. Unity

Health Sys., 348 F.3d 732, 734 (8th Cir. 2003).

Miller has provided no direct evidence of discrimination because he has pointed to no

“explicit and unambiguous” instances of discrimination. de la Cruz v. N.Y.C. Human Res.

Admin. Dep’t of Soc. Servs., 884 F. Supp. 112, 116 (S.D.N.Y. 1995), aff’d, 82 F.3d 16 (2d

Cir. 1996). Indeed, he has offered no “evidence of conduct or statements by persons

involved in the decisionmaking process that may be viewed as directly reflecting the alleged

discriminatory attitude.” Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.

1993) (quoting Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992)).

He has also failed to present indirect evidence of discrimination. To present indirect

evidence of discrimination, Miller must first establish a prima facie case of discrimination

by showing that (1) he belongs to a protected class, (2) he applied for and was qualified for

the job, (3) he was rejected, and (4) ASU sought applications from others. Gordon v. Shafer

Contracting Co., 469 F.3d 1191, 1196 (8th Cir. 2006) (citing Chambers v. Wynne Sch. Dist.,

909 F.2d 1214, 1216 (8th Cir. 1990)). If Miller establishes a prima facie case, ASU must

offer legitimate reasons for hiring Williams. See Wilking v. Cnty. of Ramsey, 153 F.3d 869,

872–73 (8th Cir. 1998). If ASU provides legitimate reasons for hiring Williams, Miller must

show that the reasons offered by ASU were merely pretext for discrimination. See Dixon v.

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Pulaski Cnty. Special Sch. Dist., 578 F.3d 862, 868 (8th Cir. 2009), abrogated on other

grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc).

Miller has established a prima facie case of race discrimination because (1) he is

black, (2) he applied for and was qualified for the full-time AMT instructor position, (3) he

was rejected, and (4) ASU sought applications from others, specifically Williams. In

response, ASU asserts that it did not hire Miller because of the supervision compliance issue,

the fact that one of his students suffered a broken leg when he failed to supervise him, and

because he failed to properly cooperate in the investigation that occurred after the student

was injured. Miller has not demonstrated that these reasons are merely pretext for race

discrimination.

ASU states that it relied on Reid’s internal compliance report, the accident report, and

Abernathy’s incident report notes in determining that Williams was a better candidate than

Miller for the full-time position. See Doc. Nos. 40-12, 40-13, 40-14. Miller disputes the

reports’ findings. Pl.’s Resp. to Def.’s Statement of Facts ¶ 81. At first blush, this would

appear to create a triable factual issue, but it does not because Miller’s dispute of the reports’

findings does not show that ASU improperly relied on those findings. See Main v. Ozark

Health, Inc., 959 F.3d 319, 325 (8th Cir. 2020) (pretext cannot be found simply by showing

that an employer’s “honest belief” was erroneous whether the employer’s explanation is

based on first-hand knowledge or third-party reports). To prove that ASU’s stated reasons

for hiring Williams over Miller are pretext, Miller must present evidence that ASU knew the

information contained in the reports was at least misleading. This would provide some

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indication that the reasons offered by ASU are dishonest. This is true because pretext cannot

be established by showing that an employer’s honest belief was “unwise, or even unfair.”

Main, 959 F.3d at 325. Although ASU may have been unwise for hiring Williams, nothing

in the record shows that ASU was dishonest in its determination that Williams was better

suited than Miller for the job. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781

(8th Cir. 1995) (judges are not HR directors with the right to second guess employers’ hiring

decisions).

C. Section 1981

Summary judgment is granted on Miller’s section 1981 claim for the same reasons

provided above. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct.

1009, 1019 (2020) (section 1981 race discrimination claim is analyzed almost identically to

Title VII claim, albeit with a higher “but for” causation standard).

D. Section 1983

Summary judgment is granted on Miller’s section 1983 claim for the same reasons

provided above. See Ottman v. City of Independence, Mo., 341 F.3d 751, 756–57 (8th Cir.

2003) (section 1983 race discrimination claim is analyzed under the same framework as Title

VII claim); see also Moss v. Texarkana Ark. Sch. Dist., 240 F. Supp. 3d 966, 982 (W.D. Ark.

2017) (same).

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IV. CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment 1s granted and

Miller’s claims are dismissed with prejudice.

IT IS SO ORDERED this 26th day of December, 2023.

UNITED STATES DISTRICT JUDGE