Thompson v. Ottman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

CHRISTOPHER THOMPSON PLAINTIFF

v. No. 2:20-CV-02167

THE UNIVERSITY OF ARKANSAS

BOARD OF TRUSTEES, et al. DEFENDANTS

OPINION AND ORDER

Before the Court is Defendants The University of Arkansas Board of Trustees (“BOT”)

and Raymond Ottman’s motion to dismiss (Doc. 20). Defendants filed a brief in support

(Doc. 21).1 Plaintiff Christopher Thompson filed a response (Doc. 24) in opposition, and

Defendants filed a reply (Doc. 27) with leave of Court. For the reasons set forth below, the motion

will be GRANTED in part and DENIED in part.

I. Background

Plaintiff Christopher Thompson joined the University of Arkansas at Fort Smith campus

police department (“UAPD”) as a patrolman in 2012. Defendant Ray Ottman was hired as the

chief of the UAPD in 2015. Plaintiff alleges that Ottman mistreated Plaintiff due to his race and

age after Ottman was hired. On August 28, 2017, Plaintiff reported his concerns about Ottman’s

behavior to Brad Sheriff—Vice Chancellor of the University of Arkansas at Fort Smith (“UAFS”)

at the time. Four days after Plaintiff’s meeting with Sheriff, Plaintiff was fired from his UAPD

position. The reason given by the UAPD for Plaintiff’s firing was the mishandling of a call that

occurred the previous week. Plaintiff argues this justification is pretext and his termination was

1 An earlier motion to dismiss (Doc. 8) is pending and will be terminated as moot because

Plaintiff filed an amended complaint. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th

Cir. 2000) (“It is well-established that an amended complaint supersedes an original complaint

and renders the original complaint without legal effect.”).

an act of discrimination and retaliation. Plaintiff timely filed a charge with the EEOC and received

his Right to Sue letter on July 31, 2018.

Plaintiff first filed suit in this Court on October 29, 2018. See Thompson v. Univ. of Ark.

at Fort Smith, Case No. 2:18-CV-02183 (“Thompson I”). In Thompson I, Plaintiff sued UAFS and

Raymond Ottman2 for violations of Title VII of the Civil Rights Act of 1964, the Age

Discrimination in Employment Act (“ADEA”), and the Arkansas Civil Rights Act (“ACRA”).

The Court granted Plaintiff’s motion to dismiss without prejudice on September 25, 2019, and

stated that if Plaintiff re-filed the suit in the future, he would bear the costs of any duplicative

discovery. Plaintiff filed the instant case on September 21, 2020. Plaintiff’s original complaint

sued UAFS for violations of Title VII, the ADEA, and the ACRA. On January 14, 2021, Plaintiff

filed an amended complaint that substituted BOT for UAFS and added Raymond Ottman as a

defendant. The amended complaint also asserted new claims for violations of Title 42 U.S.C. §

1981, Title 42 U.S.C. § 1983, and the Arkansas Age Discrimination Prohibition Act (“ADPA”).

Defendants filed the instant motion to dismiss arguing Plaintiff’s claims are time-barred.

II. Legal Standard

In ruling on a motion to dismiss, the Court must “accept as true all facts pleaded by the

non-moving party and grant all reasonable inferences from the pleadings in favor of the non-

moving party.” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quoting United

States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). “[A]

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

2 Plaintiff’s initial complaint in Thompson I, filed by the attorney representing Plaintiff

for the duration of Thompson I and for the original complaint in this case, incorrectly spelled

Defendant Ottman’s last name as “Ottoman” but the misspelling was corrected by an amended

complaint.

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. Those alleged

facts must be specific enough “to raise a right to relief above the speculative level.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain mere “labels and conclusions”

or “a formulaic recitation of the elements of the cause of action will not do.” Id. Where the facts

alleged, taken as true, “raise a reasonable expectation that discovery will reveal evidence of illegal

[activity],” the Court should deny a motion to dismiss. Id. at 556. However, “when it ‘appears

from the face of the complaint itself that the limitation period has run,’ a limitations defense may

properly be asserted through a 12(b)(6) motion to dismiss.” Wycoff v. Menke, 773 F.2d 983, 984–

85 (8th Cir. 1985) (quoting R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 821 (8th

Cir. 1983)).

III. Discussion

A. Title VII and ADEA Claims Against All Defendants

Defendants argue that Plaintiff’s Title VII and ADEA claims are barred by the statute of

limitations because these claims must be brought within 90 days after receiving notice of the right

to file suit, regardless of any state savings clause. Both parties agree that Plaintiff’s original lawsuit

in Thompson I was timely brought within 90 days and this suit was brought within one year of

dismissal of Thompson I. Plaintiff contends that his Title VII and ADEA claims are timely because

of the savings statute at ARK. CODE ANN. § 16-56-126, which allows a plaintiff to commence a

new action within one year of a nonsuit.

The law in the Eighth Circuit is clear that Title VII and ADEA claims are not preserved by

a state savings statute after a voluntary nonsuit. Garrison v. Int'l Paper Co., 714 F.2d 757, 759

(8th Cir. 1983) (citing Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946)) (“Because Title VII

actions are governed by a federal statute of limitations, the Arkansas saving clause is

inapplicable.”). “Dismissal without prejudice operates to leave the parties as if no action had been

brought at all.” Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1194 (8th Cir. 1976).

Because a dismissal without prejudice does not extend the 90-day deadline, Plaintiff’s Title VII

and ADEA claims are barred by the statute of limitations against Defendants.

B. Judicial Estoppel

Plaintiff argues Defendants should be estopped from asserting any statute of limitations

defense related to Plaintiff’s Title VII and ADEA claims because in Thompson I the Defendants

asked the Court for deposition costs and to preclude further discovery if Plaintiff refiled suit. “A

court invokes judicial estoppel when a party abuses the judicial forum or process by making a

knowing misrepresentation to the court or perpetrating a fraud on the court.” Stallings v.

Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir. 2006). Although the doctrine of judicial estoppel

cannot be reduced “to any general formulation of principle,” courts first look to see whether “a

party’s later position [is] ‘clearly inconsistent’ with its earlier position.” New Hampshire v. Maine,

532 U.S. 742, 750 (2001).

Plaintiff argues Defendants’ motion to dismiss is inconsistent with the position taken in

Thompson I because Defendants—by requesting deposition costs and precluding discovery—

implicitly acknowledged that any future suit would proceed to discovery and not be dismissed for

statute of limitations reasons. In Thompson I, Defendants asked the Court for reasonable limits on

discovery in subsequent lawsuit—a remedy specifically contemplated by Federal Rule of Civil

Procedure 41(d). Defendants’ instant motion is a motion to dismiss based on the statute of

limitations and has nothing to do with duplicative discovery costs. Defendants have not taken a

clearly inconsistent position and the Court will not judicially estop Defendants from asserting a

statute of limitations defense. Defendants’ request in Thompson I to be spared any costs of

duplicative discovery cannot be seen as a waiver of all arguments that would permit dismissal prior

to discovery.

C. 42 U.S.C. § 1981, 42 U.S.C. § 1983, ADPA, and ACRA Claims against BOT and

Ottman in Official Capacity

Plaintiff’s complaint also raises claims under Title 42 U.S.C. § 1981, Title 42 U.S.C.

§ 1983, the ACRA, and the ADPA against BOT and Defendant Ottman in both his official and

individual capacity. The Eighth Circuit has previously held that states are “immunized from any

claim . . . brought under § 1981.” Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 890 (8th Cir.

2005). “The University of Arkansas is an agency of the state and is immune from suit. The

governing bodies of state universities enjoy the same immunity from suit as the universities

themselves.” Buckley v. Univ. of Ark. Bd. of Trs., 780 F. Supp. 2d 827, 830 (E.D. Ark. 2011)

(internal citations omitted). The ACRA and ADPA also do not abrogate the state’s sovereign

immunity. See ARK. CODE ANN. § 16-123-104 (West 2021) (“Nothing in this subchapter shall be

construed to waive the sovereign immunity of the State of Arkansas.”); State v. Goss, 42 S.W.3d

440, 443 (Ark. 2001) (“Nothing in the ADPA subjects the State to liability for monetary damages

for violations of the Act's provisions.”). Therefore, Defendant BOT is immune from claims under

§ 1981, § 1983, the ADPA, and the ACRA, and these claims will be dismissed.

As to Defendant Ottman, § 1981, § 1983, ACRA, and ADPA claims for money damages

against Ottman in his official capacity will likewise be dismissed due to sovereign immunity. “[A]

suit against a state official in his or her official capacity is not a suit against the official but rather

is a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Plaintiff correctly notes that state officials are not entitled to sovereign immunity for claims for

prospective injunctive relief. Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001). However,

Plaintiff’s complaint does not allege any injuries that prospective injunctive relief by the Court

could remedy because Plaintiff alleges he was unlawfully fired in 2017. “Past exposure to illegal

conduct does not in itself show a present case or controversy regarding injunctive relief, however,

if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488,

495–96 (1974). Therefore, the § 1981, § 1983, ACRA, and ADPA claims against Ottman in his

official capacity will also be dismissed.

D. § 1983, ADPA, and ACRA claims against Ottman in Individual Capacity

As to the § 1983, ADPA, and ACRA claims against Ottman in his individual capacity,

Defendants contend that these claims are time barred because the latest date Plaintiff’s cause of

action could have accrued was August 24, 2017, the date of Plaintiff’s termination, and this lawsuit

was not filed until September 9, 2020.3 Plaintiff states this lawsuit was timely because it was filed

within one year of the voluntary nonsuit, and even if Defendant Ottman was not an original party

to this lawsuit, the amendment naming Ottman relates back to the date of the original complaint

according to Fed. R. Civ. P. 15(c).

Federal Rule of Civil Procedure 15(c)(1) provides that an amendment to a pleading will

relate back to the date of the original pleading when:

(C) the amendment changes the party or the naming of the party against whom a

claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided

3 Plaintiff does not dispute that his § 1983 claims, not arising under § 1981, have a three-

year statute of limitations and are outside the statute of limitations if the Arkansas savings statute

is not applied. See Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (“In

Arkansas, the general personal-injury statute of limitations is three years, and this period

therefore governs § 1983 actions brought in that state.”). Retaliation claims under the ACRA

also have a three-year statute of limitations in Arkansas. Smith v. ConAgra Foods, Inc., 431

S.W.3d 200, 204 (Ark. 2013). Employment-based discrimination claims brought pursuant to

ACRA have, at most, a two-year statute of limitations for back pay and a one-year state of

limitations for all other actions. ARK. CODE ANN. § 16-123-107 (West 2021).

by Rule 4(m) for serving the summons and complaint, the party to be brought in by

amendment:

(i) received such notice of the action that it will not be prejudiced in

defending on the merits; and

(ii) knew or should have known that the action would have been brought

against it, but for a mistake concerning the proper party's identity.

The original complaint and summons in this lawsuit were served on Terisa Riley, the Chancellor

of the UAFS, within the 4(m) deadline. (Doc. 6).

Assuming Ottman received actual notice of the action such that he would not be prejudiced

by defending this suit, Plaintiff cannot meet the requirement of demonstrating that Ottman “knew

or should have known that the action would have been brought against [him], but for a mistake

concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis added). A

mistake under Rule 15(c) is “an error, misconception, or misunderstanding; an erroneous belief.”

Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548-49 (2010) (“We agree that making a

deliberate choice to sue one party instead of another while fully understanding the factual and legal

differences between the two parties is the antithesis of making a mistake concerning the proper

party's identity.”).

In Thompson I, Plaintiff named Ottman and UAFS. However, in the instant suit, Plaintiff

chose only to sue UAFS.4 It is clear that Plaintiff was aware of Ottman and his relationship with

UAFS at the time of the suit, and his decision to not name Ottman is not a mistake under Rule 15.

This is not a situation where Plaintiff knew of multiple parties and misunderstood a party’s status

or role. Instead, Plaintiff’s knowledge of Ottman and his potential liability is evident from

Thompson I. More importantly, Ottman knew that Plaintiff was aware of Ottman’s relationship

4 The Court notes Plaintiff’s current counsel was not attorney of record in Thompson I or

at the beginning of this suit.

with UAFS and would have reasonably assumed that Plaintiff consciously chose to exclude him

from this lawsuit. Because Plaintiff cannot show that Ottman would have known he would be a

party to the instant action, but for mistake concerning his identity, the amended complaint will not

relate back. Therefore, Plaintiff’s § 1983, ADPA, and ACRA claims against Ottman in his

individual capacity were brought outside the one-year savings statute are barred by the statute of

limitations.

E. § 1981 Claims Against Ottman in Individual Capacity

Finally, Plaintiff asserts the § 1981 claims brought through § 1983 against Ottman in his

individual capacity are subject to a four-year statute of limitations for § 1981 actions rather than

the three-year statute of limitations for § 1983 actions in Arkansas. Defendants acknowledge in

their initial brief (Doc. 21, p. 15) that the applicable statute of limitations for § 1981 claims is four

years, but they assert that § 1981 actions brought through § 1983 only have a statute of limitations

of three years. (Doc. 27, p.3). The Eighth Circuit has not explicitly stated the appropriate statute

of limitations for § 1981 actions brought against state actors through § 1983, but because “[a]

federal action to enforce rights under § 1981 against a state actor may only be brought pursuant to

§ 1983,” the Court agrees with Plaintiff that the four-year statute of limitations applies. Artis v.

Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1998). Plaintiff’s

§ 1981 claims against Ottman in his individual capacity were brought within the four-year statute

of limitations and will not be dismissed on the basis of the statute of limitations.

IV. Conclusion

IT IS THEREFORE ORDERED that Defendants’ motion (Doc. 20) is GRANTED in part

and DENIED in part. Plaintiff’s claims against Defendant The University of Arkansas Board of

Trustees are DISMISSED WITH PREJUDICE. Plaintiff’s § 1981 claims against Defendant

Ottman in his individual capacity remain. Plaintiff’s other claims against Ottman are

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendants’ earlier motion (Doc. 8) is TERMINATED

AS MOOT.

IT IS SO ORDERED THIS 1st day of June, 2021.

/s/P. K. Holmes,

P.K. HOLMES, III

U.S. DISTRICT JUDGE