Bland-McCullough v. Tapley

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

LYDIA BLAND-MCCULLOUGH PLAINTIFF

v. Case No. 4:23-cv-00037-LPR

WILLIAM TAPLEY, Chief of Police,

in his Individual and Official Capacities;

and THE CITY OF CONWAY, ARKANSAS DEFENDANTS

ORDER

This case concerns alleged employment discrimination. Plaintiff Lydia Bland-McCullough

used to work in the Conway Police Department. She believes that the Department unlawfully

discriminated against her with respect to her pay because she is a woman and because she is

African-American. She brings three federal claims against the City of Conway: (1) an Equal Pay

Act claim; (2) a § 1983 claim for sex discrimination in violation of the Equal Protection Clause;

and (3) a § 1983 claim for race discrimination in violation of the Equal Protection Clause.1 She

also brings the latter two claims against William Tapley in his personal capacity.2 Tapley was

Chief of the Conway Police Department for the final portion of Ms. Bland-McCullough’s tenure.

Pending before the Court is Defendants’ Motion for Summary Judgment.3 Defendants seek

summary judgment on all claims.4 For the reasons discussed below, the Motion is GRANTED in

its entirety.5

1 See July 16, 2024 Hr’g Tr. (Final) at 3–5. Ms. Bland-McCullough also brings state-law claims that mirror each of

her federal claims. Id. at 4. She concedes that each state-law claim is subject to the same substantive analysis to

which its analog federal claim is subject. Id. at 4–5.

2 Id. at 44. Claims brought against Chief Tapley in his official capacity are considered claims against the City

of Conway. See Rogers v. City of Little Rock, 152 F.3d 790, 800 (8th Cir. 1998).

3 Doc. 20.

4 Id.

5 For the same merits-based reasons that this Order grants summary judgment to Defendants on all federal claims,

Defendants are entitled to summary judgment on each of the mirror-image state-law claims. The Court notes that

BACKGROUND

When evaluating a defendant’s motion for summary judgment, the Court must read the

record in a very particular way. If a fact is undisputed—or not genuinely disputed—the Court

adopts it.6 If a fact is genuinely disputed (and material), the Court adopts the most pro-plaintiff

version of that fact that a reasonable jury could find to have occurred.7 The Court must then draw

all reasonable inferences from the adopted “facts” in favor of the plaintiff.8 Essentially, the Court

constructs the most pro-plaintiff version of the record that a reasonable jury could possibly

countenance.9 Then, considering that version of the record, the Court analyzes whether the moving

party is entitled to judgment as a matter of law.10

To aid courts in determining whether a particular fact is genuinely disputed or not, Federal

Rule of Civil Procedure 56(c) requires a party asserting that a fact is genuinely disputed to support

that assertion with citations to the record.11 And, if such citations are not presented, Federal Rule

of Civil Procedure 56(e)(2) authorizes the Court to consider the fact undisputed. The Eastern

District of Arkansas’s Local Rule 56.1, together with the operative Scheduling Order in this case,

explains the procedure for presenting an asserted statement of undisputed material facts and any

opposition to such statement.12 Among other things, a non-moving party’s opposition must “state

Defendants made additional arguments with respect to some of the state-law and federal-law claims. For example,

Defendants make a statute-of-limitations argument with regard to some of Ms. Bland-McCullough’s state-law claims.

Br. in Supp. of Mot. to Dismiss (Doc. 21) at 19. Defendants also make a qualified-immunity argument and a custom-

policy-practice argument with regard to some of Ms. Bland-McCullough’s federal-law claims. Id. at 20–23. The

Court doesn’t need to, and thus does not, address these arguments.

6 See Smith v. Crittenden Cnty., No. 22-cv-00042, 2024 WL 2194847, at *3 (E.D. Ark. May 15, 2024).

7 See Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015).

8 See id.

9 See id.

10 See Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir. 2006).

11 Fed. R. Civ. P. 56(c)(1)(A).

12 See E.D. Ark. Local Rule 56.1(a)–(b); Am. Final Scheduling Order (Doc. 17) ¶ 8.

with particularity that portion of the allegation denied” and “cit[e] to any evidentiary support for

the denial.”13 “All material facts set forth” in a statement of undisputed material facts “shall be

deemed admitted unless controverted” as required.14

With the foregoing principles in mind, the Court will now relate the background facts for

purposes of deciding the instant Motion.

I. Ms. Bland-McCullough’s Tenure at the Conway Police Department

In March of 2008, Ms. Bland-McCullough was hired by the City of Conway as a Deputy

Clerk for the Conway District Court.15 In 2011, she transferred positions, becoming an Evidence

Technician with the Conway Police Department.16 An Evidence Technician is a non-uniformed

civilian position that maintains and secures evidence, property, and patrol unit video tapes, and

assists with acquisition and distribution of such materials and related equipment.17

When Ms. Bland-McCullough started as an Evidence Technician, her pay was roughly

$11.60 per hour.18 The record does not reveal what her predecessor’s pay rate was. And because

(it appears) she was the sole Evidence Technician during her time in that position, there are no

contemporaneous wage comparators from that period. In any event, Ms. Bland-McCullough’s

time as an Evidence Technician is not at direct issue in this case. That is because, in November of

13 Am. Final Scheduling Order (Doc. 17) ¶ 8.

14 E.D. Ark. Local Rule 56.1(c).

15 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 1.

16 Id. ¶ 2.

17 Id.; Ex. 7 (Job Description) to Defs.’ Statement of Undisputed Facts (Doc. 22-7) at 1–4. Although this document

contains the job description for the Lead Evidence Technician role, the document notes that the Lead Evidence

Technician “performs [the] same work as those supervised . . . most of the time.” Id. at 3. It is therefore reasonable

to infer that an Evidence Technician’s job duties mirror a Lead Evidence Technician’s job duties minus the supervisory

responsibilities.

18 Ex. 3 (12/19/2011 Personnel Change Authorization) to Defs.’ Statement of Undisputed Facts (Doc. 22-25).

2015, she was promoted to Lead Evidence Technician.19 She held this position from the end of

2015 to her retirement in 2021.20 And this is the time period on which Ms. Bland-McCullough

focuses her claims.

Similar to an Evidence Technician, a Lead Evidence Technician is a non-uniformed civilian

position.21 A Lead Evidence Technician is responsible for, inter alia: (1) maintaining and securing

all evidence, property, and patrol unit tapes; (2) assisting with the acquisition and distribution of

materials and equipment; and (3) supervising other employees in the Evidence department.22 For

her work in this role, Ms. Bland-McCullough was paid $15.26 per hour.23 Her pay did not change

during her nearly six-year tenure in this role.24 And that was a source of considerable frustration

for Ms. Bland-McCullough.

Each year between 2015 and 2021, Ms. Bland-McCullough sought a raise through her

chain of command at the Conway Police Department.25 (This occurred at least six times.)26

Although the ultimate decisionmakers with respect to pay are the City Council and Mayor, the

19 Ex. 4 (11/1/2015 Personnel Change Authorization) to Defs.’ Statement of Undisputed Facts (Doc. 22-26).

20 Ex. E (Defs.’ Resp. to Interrogs.) to Pl.’s Statement of Undisputed Facts (Doc. 33-1) at 5.

21 Ex. 9 (Dep. of William Tapley) to Defs.’ Statement of Undisputed Facts (Doc. 22-9) at 2–4 (referring to

Ms. Bland-McCullough, then employed as Lead Evidence Technician, as a “civilian non-uniformed employee[]”).

22 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 4.

23 Ex. 6 (6/11/2021 Personnel Change Authorization) to Defs.’ Statement of Undisputed Facts (Doc. 22-27).

24 See id.; see also Ex. 2 (Dep. of Lydia Bland-McCullough) to Defs.’ Statement of Undisputed Facts (Doc. 22-2)

at 13. To be clear, there is pretty strong evidence that Ms. Bland-McCullough’s starting salary for the position was

$14.31 per hour and that her ending salary was $15.26 per hour. See Ex. 4 (11/1/2015 Personnel Change

Authorization) to Defs.’ Statement of Undisputed Facts (Doc. 22-26) (showing her wage upon promotion to the

position was $14.31 per hour); Ex. 6 (6/11/2021 Personnel Change Authorization) to Defs.’ Statement of Undisputed

Facts (Doc. 22-27) (showing her wage upon retirement was $15.26 per hour). This would mean that she at least

received some raises—whether they were cost-of-living adjustments or otherwise—over the years. But, on this record,

that is a genuinely disputed (material) fact. Ms. Bland-McCullough testifies clearly that she was never given any type

of raise from 2015 through her retirement in 2021. See Ex. 2 (Dep. of Lydia Bland-McCullough) to Defs.’ Statement

of Undisputed Facts (Doc. 22-2) at 13. And, of course, whether Ms. Bland-McCullough was given a raise might bear

on the discrimination issues being pressed in this case.

25 Ex. 2 (Dep. of Lydia Bland-McCullough) to Defs.’ Statement of Undisputed Facts (Doc. 22-2) at 13.

26 See id.

senior command staff at the Police Department (including the Chief) can make recommendations

on pay to the ultimate decisionmakers (including by way of a proposed annual budget).27 With

respect to all raise requests prior to December of 2020, the record is silent as to whether the senior

command staff at the Police Department requested a raise for Ms. Bland-McCullough. If they ever

did, the City Council did not approve it.28

Chief Tapley did not become Chief until 2020.29 He was not involved in any of the raise

requests prior to becoming Chief.30 In December of 2020, Ms. Bland-McCullough and two other

female civilian Police Department employees met with Chief Tapley to discuss the possibility of a

pay raise for civilian Police Department employees.31 Chief Tapley explained to the three women

that he did not have the authority to give pay raises, that the authority rested with the City Council

and the Mayor, that he would take their request to the Mayor, and that raise requests needed to be

in the proposed annual budget.32 There is no evidence in the record to suggest that, prior to this

first meeting, Chief Tapley knew about Ms. Bland-McCullough’s previous pay-raise requests.

In February of 2021, there was a second meeting on raises for civilian employees attended

by Ms. Bland-McCullough, one of other civilian employees present at the first meeting, and

Chief Tapley.33 At this meeting, Chief Tapley said that he had not yet spoken to the Mayor about

27 Ex. 23 (Employee Handbook) to Defs.’ Statement of Undisputed Facts (Doc. 22-23) at 66; Pl.’s Resp. to Defs.’

Statement of Material Facts (Doc. 34) ¶ 10; Ex. 2 (Dep. of Lydia Bland-McCullough) to Defs.’ Statement of

Undisputed Facts (Doc. 22-2) at 4–5.

28 See Ex. 2 (Dep. of Lydia Bland-McCullough) to Defs.’ Statement of Undisputed Facts (Doc. 22-2) at 13.

29 Ex. 9 (Dep. of William Tapley) to Defs.’ Statement of Undisputed Facts (Doc. 22-9) at 13.

30 See Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 11. The Court deems this contention admitted

because the legal objection is meritless and there is no factual opposition.

31 Id. ¶ 8.

32 Id. ¶¶ 9–10.

33 Id. ¶ 12.

the raise request made by the three women at the December 2020 meeting.34 Long story short,

Ms. Bland-McCullough was led to believe there had been no movement on the raise request.

Subsequent to this second meeting, Ms. Bland-McCullough informed her immediate

supervisor, Lieutenant Aaron Lenderman, that she was retiring.35 She told Lieutenant Lenderman

that her retirement was motivated by the lack of a pay increase.36 A reasonable jury could infer

that Chief Tapley learned this information on or around February 4, 2021, when the Chief queried

Lieutenant Lenderman about the content of an email Lenderman had forwarded to the Chief from

Ms. Bland-McCullough. The Chief asked, “[i]s she saying she is retiring in June??”37 Although

the record does not reveal Lieutenant Lenderman’s response, it is reasonable to infer that

Lieutenant Lenderman provided the Chief all the information the Lieutenant knew (at that point)

concerning Ms. Bland-McCullough’s decision to retire. To be clear, it does not appear that

Ms. Bland-McCullough ever spoke directly to Chief Tapley about her choice to retire or her

reasons for it. But for purposes of summary judgment, the Court assumes that, by the end of the

first week of February 2021, Chief Tapley knew Ms. Bland-McCullough intended to retire

sometime in June of 2021 because of the failure to raise her pay.

A third meeting took place in mid-March of 2021.38 In attendance were Chief Tapley and

all Admin I and Admin II civilian employees (including Ms. Bland-McCullough).39 At this

34 Id. The Court deems this contention admitted because Ms. Bland-McCullough’s asserted dispute is not on-point.

35 Id. ¶ 19.

36 Ex. 2 (Dep. of Lydia Bland-McCullough) to Defs.’ Statement of Undisputed Facts (Doc. 22-2) at 19.

37 Ex. 11 (Email from William Tapley) to Defs.’ Statement of Undisputed Facts (Doc. 22-11).

38 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 15. We know the meeting took place on or before

March 18, 2021. That’s because, on March 18, Ms. Bland-McCullough sent Chief Tapley an email thanking him for

providing the information about not expecting pay raises in the foreseeable future. See id. ¶ 16. The Court deems this

contention admitted because Ms. Bland-McCullough’s objection is not well-taken.

39 Id. ¶ 15.

meeting, Chief Tapley told everyone that “he did not expect raises for civilian employees in the

foreseeable future based on the conversations he had with Mayor Castleberry.”40

Then, on March 23, 2021, Ms. Bland-McCullough notified HR that her last day would be

June 11, 2021.41 She also requested a retirement packet.42 And a few weeks later, on April 12,

Ms. Bland-McCullough wrote an official notice to Lieutenant Lenderman to (1) inform him that

she would retire on June 11, 2021 and (2) request that the Police Department hire a replacement

prior to that date so that she could train the new hire.43 There is no hard evidence that Chief Tapley

knew the specific day of her retirement. But a reasonable jury could infer that Lieutenant

Lenderman sent this official notification up the chain of command.

On May 10, 2021, the Police Department hired Mark Mushrush as

Ms. Bland-McCullough’s replacement.44 His starting pay was the same $15.26 per hour that

Ms. Bland-McCullough had been paid as Lead Evidence Technician.45 Ms. Bland-McCullough

trained Mr. Mushrush, and then she retired as planned on June 11, 2021.46

40 Id. Ms. Bland-McCullough denies that Chief Tapley’s statement was, in fact, “based on conversations he had with

Mayor Castleberry.” Id. But denying the truth of a statement is not the same as denying that the statement was made.

Ms. Bland-McCullough is thus deemed to have admitted that Chief Tapley told her and other employees that his

conclusions were based on conversations with Mayor Castleberry.

41 Id. ¶ 23.

42 Ex. 12 (Lydia Bland-McCullough Email to HR) to Defs.’ Statement of Undisputed Facts (Doc. 22-12).

43 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 24. It appears that, at this time, there was an

Evidence Technician named Ricky Whisenant working under the supervision of Ms. Bland-McCullough. Defs.’ Resp.

to Pl.’s Statement of Undisputed Facts (Doc. 39) ¶ 4. Mr. Whisenant had been hired as an Evidence Technician

sometime in 2020. Id. The record does not reveal whether Mr. Whisenant applied for promotion to the Lead Evidence

Technician position when Ms. Bland-McCullough retired. But, if he did, he was not selected for it.

44 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 25.

45 Id. ¶ 26.

46 Ex. 6 (6/11/2021 Personnel Change Authorization) to Defs.’ Statement of Undisputed Facts (Doc. 22-27); Defs.’

Resp. to Pl.’s Statement of Undisputed Facts (Doc. 39) ¶ 2. The parties dispute how much experience, skill, and

education Mr. Mushrush had relative to the experience, skill, and education Ms. Bland-McCullough had. See Defs.’

Resp. to Pl.’s Statement of Undisputed Facts (Doc. 39) ¶ 2. But, for purposes of this Motion and based on the specific

legal arguments pressed by the parties, the dispute is not material at this stage of the proceedings. So the Court will

not resolve it.

II. Pay Raises Subsequent to Ms. Bland-McCullough’s Retirement

Imagine Ms. Bland-McCullough’s surprise (and anger) when, less than two weeks after her

retirement, the following occurred: (1) the Mayor and the Salary Committee he had created

unveiled a proposal to raise the pay of certain City positions, including the pay of the Lead

Evidence Technician; and (2) based on the recommendation of the Mayor and his Committee, the

City Council passed an Ordinance that raised the pay of certain City positions, including the pay

of the Lead Evidence Technician.47 As a result, Ms. Bland-McCullough’s replacement—

Mr. Mushrush—received a pay raise less than a month after Ms. Bland-McCullough retired.48 His

new pay rate was $35,000 per year.49

This same process occurred again a year later (in June of 2022), and the Lead Evidence

Technician position received another pay increase.50 By that time, Mr. Mushrush had moved on,

and a man named Ricky Whisenant had been promoted to succeed him.51 (As discussed in footnote

43 supra, Mr. Whisenant had originally been hired into the basic Evidence Technician position in

2020.) So, as of the middle of 2022, Mr. Whisenant was being paid $42,000 per year for serving

47 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 27–44. Ms. Bland-McCullough denies or objects

to much of this, frequently at length. See id. But her objections are not well-taken and the facts laid out by Defendants

have extensive support in the record.

48 Ex. 20 (Conway Ordinance No. O-21-76) to Defs.’ Statement of Undisputed Facts (Doc. 22-20).

49 Id. at 3. By contrast, at the time of her retirement, Ms. Bland-McCullough had been making $31,740.80 per year as

the Lead Evidence Technician. Ex. 6 (6/11/2021 Personnel Change Authorization) to Defs.’ Statement of Material

Facts (Doc. 22-27) (annual salary calculated on a year’s worth of 40-hour workweeks at $15.26 per hour). It is also

worth noting that the same Ordinance raised the pay for the Evidence Technician position. Ex. 20 (Conway Ordinance

No. O-21-76) to Defs.’ Statement of Undisputed Facts (Doc. 22-20) at 3. So Mr. Whisenant (who, as discussed in

footnote 43 supra, was in the Evidence Technician role) received a pay raise to $33,000 per year. Id. That’s also more

than the $31,740.80 per year that Ms. Bland-McCullough was making as Lead Evidence Technician at the time of her

retirement. See Ex. 6 (6/11/2021 Personnel Change Authorization) to Defs.’ Statement of Material Facts (Doc. 22-27).

50 Ex. 22 (Conway Ordinance No. O-22-69) to Defs.’ Statement of Undisputed Facts (Doc. 22-22) at 3.

51 See Ex. B (Dep. of Lydia Bland-McCullough) to Resp. in Opp’n to Mot. for Summ. J. (Doc. 32-2) at 48. The parties

dispute how much experience, skill, and education Mr. Whisenant had relative to the experience, skill, and education

Ms. Bland-McCullough had. See Defs.’ Resp. to Pl.’s Statement of Undisputed Facts (Doc. 39) ¶ 4. But, for purposes

of this Motion and based on the specific legal arguments pressed by the parties, the dispute is not material at this stage

of the proceedings. So the Court will not resolve it.

as the Lead Evidence Technician.52 That’s over $10,000 more than Ms. Bland-McCullough had

made per year for serving in the same role.53

One can certainly understand Ms. Bland-McCullough’s reaction to all of this. Recall that

she had been unsuccessfully asking for raises since 2015.54 And to add insult to injury—at least

in Ms. Bland-McCullough’s mind—it appears that the Mayor and his Committee had been looking

into the pay-raise issue since about February of 2021.55 Why hadn’t Chief Tapley told her this?

Why had he let her retire over lack of a pay raise without even mentioning that a potential pay

raise was being considered? From Ms. Bland-McCullough’s perspective, the timing and

circumstances are hard to chalk up to coincidence. An African-American woman is consistently

refused pay raises, retires because she thinks she has been again denied a pay raise, is replaced by

a white man who gets an almost-immediate pay raise that has been secretly planned for months,

and then the white man’s successor (another white man) gets another pay raise. Not a good look.

Anyone hearing that chain of circumstances would be forgiven for speculating that

unlawful discrimination has occurred. But this Court can’t proceed on speculation. It needs to

look at facts. So, what does the record—read as it must be on summary judgment—show about

the pay raises that occurred after Ms. Bland-McCullough’s retirement?

Let’s start with Chief Tapley’s knowledge (or lack thereof) concerning the forthcoming pay

raises. The Mayor began exploring potential pay raises in December of 2020 when (after

completing the 2021 budgeting process) he noticed that several positions in the City had salaries

52 See Ex. 22 (Conway Ordinance No. O-22-69) to Defs.’ Statement of Undisputed Facts (Doc. 22-22) at 3.

53 See Ex. 6 (6/11/2021 Personnel Change Authorization) to Defs.’ Statement of Undisputed Facts (Doc. 22-27).

54 See supra p. 4.

55 See Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 30. This contention is deemed admitted because

Ms. Bland-McCullough’s asserted dispute is not on-point and is unsupported by the citations provided.

that were low in comparison to, and thus not competitive with, the same positions in comparable

cities in Arkansas.56 The Mayor formed a Salary Survey Committee to review the feasibility of

providing raises to the non-competitive positions.57 The Committee was comprised of the City of

Conway’s CFO, its HR Director, one City Council member, and one member from the

community.58 The Mayor testified that he did not inform Chief Tapley (or any of the City’s

department heads except for the City’s Finance Director) of the Committee’s existence or the

potential for forthcoming pay raises.59 And this testimony is consistent with Chief Tapley’s

testimony that he did not know about the Committee or the forthcoming pay raises until the

June 22, 2021 City Council meeting (which was after Ms. Bland-McCullough had retired).60

Ms. Bland-McCullough disputes the fact that Chief Tapley did not know of the forthcoming

pay raises prior to her retirement.61 But the dispute is not a genuine one. Ms. Bland-McCullough

points to no specific evidence that Chief Tapley knew of the Committee or the potential for pay

raises prior to her departure.62 Instead, she argues that a jury could reasonably infer such

knowledge because, at least from February 2021 through June 2021, “Tapley . . . claims to have

been advocating for raises for non-uniformed personnel . . . and spoke to the Mayor . . . several

times” about the issue.63 According to Ms. Bland-McCullough, “if [Chief Tapley] was having

56 See Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) at ¶ 27. The Court deems this admitted because

Ms. Bland-McCullough’s asserted dispute is not on-point and is unsupported by the citations provided.

57 Id. The Court deems this admitted because Ms. Bland-McCullough’s asserted dispute is not on-point and is

unsupported by the citations provided.

58 See id. at ¶ 29. The Court deems this admitted because Ms. Bland-McCullough’s asserted dispute is not on-point

and is unsupported by the citations provided.

59 See Ex. 14 (Dep. of Bart Castleberry) to Defs.’ Statement of Undisputed Facts (Doc. 22-14) at 5.

60 See Ex. D (Dep. of William Tapley) to Resp. in Opp’n to Mot. for Summ. J. (Doc. 32-4) at 20–21.

61 See Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 9.

62 See id.

63 Id.

repeated meetings [with the Mayor] where he was actually advocating for this, the logical inference

is that [Chief Tapley] would have been told about [the Committee or the potential pay raises] by

Mayor Castleberry.”64

There are two problems with this line of disputation. One problem is that

Ms. Bland-McCullough elsewhere asserts that “Chief Tapley [n]ever spoke to the Mayor regarding

pay raises for Plaintiff or other non-uniformed employees . . . .”65 If that is true, then the premise

of Ms. Bland-McCullough’s logical chain evaporates and there is nothing to even theoretically

suggest Chief Tapley would have known of the Committee or the potentially forthcoming pay

raises. In any event, even if we assume Chief Tapley was advocating for pay raises with the Mayor

in the February–June 2021 timeframe, Ms. Bland-McCullough still faces a problem. The mere

fact that a subordinate like Chief Tapley is advocating to his boss (the Mayor) for pay raises does

not necessitate or even counsel the boss revealing the existence or work of a committee studying

the feasibility of raises. There are plenty of reasons for a boss (the Mayor) not to reveal such

information until a pay raise plan is finalized. In short, there is nothing but rank speculation to

suggest that the Chief and Mayor were lying (or incorrectly recalling) when they both testified that

the Mayor did not reveal the existence of the Committee or the potential pay raise plan to

Chief Tapley prior to Ms. Bland-McCullough’s retirement. A reasonable jury cannot, and does

not, engage in speculation.66 Accordingly, the record undisputably shows that Chief Tapley did

not know about the potential pay raises at any time before the June 22, 2021 City Council meeting.

64 Id.

65 Id.

66 It is also worth noting that there is no evidence to suggest that the Mayor or anyone on the Committee knew that

Ms. Bland-McCullough was planning to retire in June because of the lack of a pay raise.

This means that Chief Tapley did not know about the potential pay raises at any time before

Ms. Bland-McCullough’s retirement on June 11, 2021.

Moving on to the reason for the changes in pay subsequent to Ms. Bland-McCullough’s

retirement, the record reveals a lot about the process that took place. The Committee’s first

meeting was on or around February 10, 2021.67 At this meeting, the Mayor explained that he

wanted the Committee to investigate the possibility of providing raises to the positions that fell

below the average salary for comparable positions as shown in the 2021 Arkansas Municipal

League Salary Survey.68 The AML Salary Survey showed the average 2021 salaries for various

positions in Arkansas cities with a population of 10,000 or more.69

Subsequent to the first meeting, one member of the Committee (the City’s CFO) created

Excel spreadsheets that contained a list of all the City’s positions, the pay for each position, and

where that pay ranked in the AML survey.70 The Committee identified five positions for which

the City’s pay was in the bottom 20% of pay compared to that of the same positions in the other

cities surveyed.71 The Committee decided to recommend that all of the positions in this bottom

20% category receive raises.72 The Lead Evidence Technician and the Evidence Technician

67 See Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 30. The Court deems this admitted because Ms.

Bland-McCullough’s objection is not well-taken and her asserted dispute is not on-point and is unsupported by the

citations provided.

68 Id. ¶ 31. Ms. Bland-McCullough initially objected to this asserted fact as hearsay. See id. But, at the summary

judgment hearing, she conceded (or at least withdrew) all of the hearsay objections she made in her Response to

Defendants’ Statement of Undisputed Facts. See July 16, 2024 Hr’g Tr. (Final) at 45–48. In light of her concession

(or withdrawal) of her hearsay objections, this asserted fact is deemed admitted because Ms. Bland-McCullough’s

other objections are not well-taken and her asserted dispute is not on-point and not supported by the citations provided.

69 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 32. This fact is deemed admitted for the same

reasons as set out in footnote 68 supra.

70 Id. ¶ 33. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

71 Id. ¶ 34. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

72 Id. ¶ 36. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

positions were two of the jobs in this category,73 and so the Committee recommended raises for

them along with the other three jobs in this category.74

The Committee also identified a number of other positions where the pay was in the bottom

50% of cities surveyed.75 For the positions where the pay was not in the bottom 20% but was in

the bottom 50%, a second member of the Committee devised a ranking system based on factors

like (1) the difficulty of filling the position or retaining an employee in the position, (2) the need

for specialized training to work in the position, and (3) how critical the position was to the City’s

functions.76 The CFO and a third Committee member scored the positions, and any position

receiving more points than a specified cut-off would get a pay raise.77 Ultimately, this process led

to pay raise recommendations for ten more City positions.78 The City Council adopted the plan as

proposed by the Committee.79

This same basic process unfolded in 2022, using the 2022 AML Salary Survey.80 During

that process, the Lead Evidence Technician position was again identified as being in the bottom

73 See Ex. 17 (Grimes Decl.) to Defs.’ Statement of Undisputed Facts (Doc. 22-17) at 154. The Lead Evidence

Technician pay ranked 15 out of 15 (i.e., dead last) compared to the other cities surveyed. Id.

74 Id.; Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 36. This fact is deemed admitted for the same

reasons as set out in footnote 68 supra.

75 See Ex. 17 (Grimes Decl.) to Defs.’ Statement of Undisputed Facts (Doc. 22-17) at 154; see also Pl.’s Resp. to Defs.’

Statement of Undisputed Facts (Doc. 34) ¶ 35.

76 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 37. This fact is deemed admitted for the same

reasons as set out in footnote 68 supra.

77 Id. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

78 Id. ¶ 38. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

79 Id. ¶ 44.

80 Id. ¶ 48. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

20%.81 So the Committee recommended a pay raise and the City Council acted on the plan.82

Twenty-two other positions were given raises at the same time.83

DISCUSSION

The Court has already laid out the essentials of the summary judgment standard.84 To sum

it up: Summary judgment for the Defendants is appropriate if (but only if) no reasonable jury

could find for Ms. Bland-McCullough on the read of the record that is most favorable to her.85 The

propriety of summary judgment is claim-specific. So, the Court now turns to the individual legal

claims Ms. Bland-McCullough has brought.

I. Equal Pay Act86

The Court begins with the Equal Pay Act claim, which is a claim brought only against the

City of Conway. The Court begins here because Ms. Bland-McCullough believes this claim to be

her strongest claim. Indeed, at oral argument, Ms. Bland-McCullough took the position that if

summary judgment is granted on the Equal Pay Act claim, then her other claims must fail as well.87

In the Eighth Circuit, to establish a prima facie case under the Equal Pay Act, “a plaintiff

must show by a preponderance of the evidence that (1) she was paid less than a male employed in

the same establishment, (2) for equal work on jobs requiring equal skill, effort, and responsibility,

81 See Ex. 16 (Mabry-Williams Decl.) to Defs.’ Statement of Undisputed Facts (Doc. 22-16) at 314.

82 Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (Doc. 34) ¶ 49. This fact is deemed admitted for the same

reasons as set out in footnote 68 supra.

83 Id. This fact is deemed admitted for the same reasons as set out in footnote 68 supra.

84 See supra pp. 2–3.

85 See id.

86 As stated in footnote 5 supra, Ms. Bland-McCullough’s federal-law and state-law wage discrimination claims are

subject to the same analysis and rise or fall together. This section thus addresses both claims.

87 July 16, 2024 Hr’g Tr. (Final) at 29 (“Your Honor, I guess one thing I would say is that if you boil this case down

to its bare essentials, it is going to be the Equal Pay Act claims. If you find against me on the Equal Pay Act claims,

the 1983 claims and 105 claims are gone. You know, the easiest place for me to meet my burden of proof is in those

Equal Pay Act claims because we have met a prima facie case at various points. . . .”).

(3) which were performed under similar working conditions.”88 Once a prima facie case has been

established, “the burden then shifts to the defendant to prove one of four statutory affirmative

defenses.”89 Those four statutory affirmative defenses involve situations in which the existence of

a wage disparity is attributable to “[1] a seniority system; [2] a merit system; [3] a system which

measures earnings by quantity or quality of production; or [4] a differential based on any other

factor other than sex . . . .”90

Here, the City concedes that Ms. Bland-McCullough has made out a prima facie claim

under the Equal Pay Act.91 So the issue before the Court is whether the City is entitled to summary

judgment on the strength of its affirmative defense. And the crux of that affirmative defense is

that the differential between what Ms. Bland-McCullough was paid and what her male successors

were paid was based on a factor other than sex—that factor being the revisions to the pay scale

spurred on by the City Council’s review of the salary surveys.92 After due consideration, the Court

concludes that, even on the most pro-Plaintiff read of the record possible, any reasonable jury

would find for the City on that affirmative defense. Here’s why.

First, the only relevant comparators for purposes of the Equal Pay Act analysis are

Ms. Bland-McCullough’s successors in the Lead Evidence Technician position—Mr. Mushrush

and Mr. Whisenant. Ms. Bland-McCullough admits this, noting that she would not have an Equal

Pay Act claim “[i]f they had not given a raise to [Mr.] Mushrush . . . .”93

88 Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002).

89 Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011).

90 29 U.S.C. § 206(d)(1).

91 July 16, 2024 Hr’g Tr. (Final) at 7.

92 Br. in Supp. of Mot. for Summ. J. (Doc. 21) at 6–7.

93 July 16, 2024 Hr’g Tr. (Final) at 36.

Second, Mr. Mushrush was hired as Lead Evidence Technician at the same pay that

Ms. Bland-McCullough was making at the time of her retirement.94 And Mr. Whisenant, who was

in the (basic) Evidence Technician position, was making less money than Ms. Bland-McCullough

at the time of her retirement.95 This is all as expected and does not suggest any pay discrepancy.

Third, the subsequent pay increases received by Mr. Mushrush and Mr. Whisenant were

the obvious consequence of the Lead Evidence Technician position getting an overall pay bump—

rather than a consequence of the sexes of those two employees. The record ineluctably shows that

the decision to raise the pay for the Lead Evidence Technician role was the result of a complex

process based on the objective, nondiscriminatory criteria developed by the Salary Survey

Committee based on the data from the salary surveys.96 And nothing in the record suggests there

was any sex-discriminatory element to the process of commissioning the surveys, conducting the

surveys, presenting the surveys, or composing or passing the ordinances that were informed by

these surveys.

In fact, the record shows the exact opposite. It shows that the City of Conway was engaging

in a general evaluation of public employee salaries based on objective, nondiscriminatory criteria.

It shows that the initiation of this evaluation process had nothing to do with

Ms. Bland-McCullough. It shows that the general evaluation revealed that Lead Evidence

Technician was one of several positions determined to be non-competitive with similar positions

in other municipalities. And it shows that the City Council decided to increase the pay of the Lead

Evidence Technician, along with the pay of several other positions, based on the results of this

evaluation process. In short, Ms. Bland-McCullough’s suggestion that the City Council finally

94 See supra p. 7.

95 See Ex. 15 (Winningham Decl.) to Defs.’ Statement of Undisputed Facts (Doc. 22-15) at 154.

96 See supra pp. 12–14.

decided to increase the pay for the Lead Evidence Technician position (and then did so again the

following year) because that position was suddenly occupied by a man is rank speculation. And a

jury can’t rely on speculation for its verdict.

Ms. Bland-McCullough attempts to jujitsu the salary survey into supporting evidence. She

claims that it shows that certain “employees, which included [her], were underpaid . . . .”97 But

that begs the question: underpaid compared to whom? A violation of the Equal Pay Act requires

more than mere poor pay or even underpayment compared to some general market rate. The

underpayment must have been in relation to “a male employed in the same establishment” who

performed “equal work . . . .”98 In this case, there are no contemporaneous comparators, which

means that anything to do with Ms. Bland-McCullough’s pay—including the contention that she

was generally underpaid—is only relevant to the Equal Pay Act analysis insofar as it compares her

pay to that of her male successors. And, as the Court has just explained, the City has a rock-solid

affirmative defense that the differential between her pay and her successors’ pay was due to a factor

other than sex. No reasonable jury could conclude otherwise.

Accordingly, the City is entitled to summary judgment on all of Ms. Bland-McCullough’s

Equal Pay Act claims.

II. 42 U.S.C. § 1983

The Court next addresses the racial and sex discrimination claims brought under

42 U.S.C. § 1983. These claims are stated against both the City of Conway and Chief Tapley in

97 Br. in Supp. of Resp. in Opp’n to Mot. for Summ. J. (Doc. 35) at 7.

98 Hunt, 282 F.3d at 1029.

his personal capacity.99 Ms. Bland-McCullough accuses both the City and Chief Tapley of

violating the Equal Protection Clause of the United States Constitution.

A threshold question when evaluating claims of this nature is whether the

McDonnell Douglas burden-shifting framework is the appropriate test to use.100 The Court

believes it is. To the extent Ms. Bland-McCullough is suggesting that she has proffered direct

evidence of intentional racial or sex discrimination, she is wrong. There is no evidence here that

“clearly points to the presence of an illegal motive.”101 What Ms. Bland-McCullough characterizes

as direct evidence is, at best, the type of indirect evidence that should be examined under the

McDonnell Douglas framework.102 To wit, Ms. Bland-McCullough’s so-called “direct evidence”

is essentially that she repeatedly asked for a raise and did not receive one, that Chief Tapley never

advocated for her to receive a pay raise after telling her that he would do so, and that her white

male successors as Lead Evidence Technician (Mr. Mushrush and Mr. Whisenant) received raises.

This screams out for application of the McDonnell Douglas test.

Under that framework, a plaintiff must first establish a prima facie case of

discrimination.103 To establish a prima facie case, Ms. Bland-McCullough must show that

“(1) [she] is a member of a protected class, (2) [she] met [her] employer’s legitimate expectations,

(3) [she] suffered an adverse employment action, and (4) the circumstances give rise to an

99 As discussed in footnote 2 supra, the official-capacity claims against Chief Tapley are treated as claims against the

City of Conway.

100 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

101 Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).

102 See Lake v. Yellow Transp., Inc., 596 F.3d 871, 873 (8th Cir. 2010)

103 Id.

inference of discrimination . . . .”104 Although the amount of evidence required to meet “the

threshold of proof necessary to establish a prima facie case is minimal[,]” it is not nothing.105

If a prima facie case is established, “a rebuttable presumption of discrimination arises, and

the burden shifts to the defendant to . . . articulat[e] a legitimate, nondiscriminatory reason for the

adverse employment action.”106 Once such a reason is provided, “the presumption disappears and

the plaintiff bears the burden of demonstrating that the employer’s proffered reason is merely a

pretext for intentional discrimination.”107 Pretext may be demonstrated either by showing that the

employer’s explanation “has no basis in fact” or “by persuading the court that a prohibited reason

more likely motivated the employer.”108

Ms. Bland-McCullough does not make it past the prima-facie-case requirement on any of

her § 1983 claims. True, Defendants don’t contest the first two elements. Ms. Bland-McCullough

is obviously a member of a protected class (both as a woman and as an African-American). And

there is no suggestion in the record or by Defendants that she was not meeting her employer’s

legitimate expectations. But that still leaves the other elements. As explained below, these

elements present insurmountable obstacles for Ms. Bland-McCullough on all her § 1983 claims.

Let’s start with the personal-capacity claims against Chief Tapley—both the racial and sex

discrimination claims. Ms. Bland-McCullough cannot show that Chief Tapley was responsible for

an adverse employment action against her. That is because the only possible adverse action at play

in this case is the failure to give Ms. Bland-McCullough the pay raises that she desired. And the

104 Id. at 874.

105 Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998).

106 Id. at 1021.

107 Id.

108 Cox v. First Nat. Bank, 792 F.3d 936, 939 (8th Cir. 2015) (quoting Torgerson v. City of Rochester, 643 F.3d 1031,

1047 (8th Cir. 2011)).

record shows that Chief Tapley did not control her rate of pay and did not have the power to give

raises.109 That is, Chief Tapley cannot have caused Ms. Bland-McCullough “some injury

respecting her employment terms or conditions” because he had no control over the terms or

conditions of her employment at issue in the instant case—specifically, her pay.110

Ms. Bland-McCullough suggests a different adverse action with respect to Chief Tapley:

constructive discharge. She says that the continued low pay combined with the failure to give her

a raise caused intolerable working conditions that were designed to force her to quit. After all, she

speculates that Chief Tapley knew—but did not reveal to her—that that a raise was coming soon

after she was scheduled to resign. This is an incredibly weak argument. First, Chief Tapley did

not control her rate of pay or have the power to give raises, so he couldn’t be the person who

constructively discharged her. Second, Chief Tapley did not know of the coming structural pay

raises being considered by the City, so Ms. Bland-McCullough can’t credibly contend that he was

withholding that information to get her to resign. Third, and most importantly, the failure to raise

Ms. Bland-McCullough’s pay from roughly $32,000 a year is nowhere close to the type of

objectively intolerable conditions that the Eighth Circuit requires to find constructive discharge.111

109 See supra p. 4–5.

110 Muldrow v. City of St. Louis, 601 U.S. 346, 359 (2024). There is some evidence that Chief Tapley did not “go to

bat” for Ms. Bland-McCullough by transmitting her request and advocating for it. But that is not, in and of itself, an

adverse action. See Cole v. Grp. Health Plan, Inc., 105 F.4th 1110, 1114 (8th Cir. 2024). (“An adverse employment

action is a disadvantageous change to the compensation, terms, conditions, or privileges of employment.”).

111 Cf. West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir. 1995) (“[F]rustration and embarrassment at not

being promoted do not make work conditions sufficiently intolerable to constitute constructive discharge.”). The low

pay Ms. Bland-McCullough endured during her tenure as Lead Evidence Technician is not enough, either; in general,

the type of working conditions the Eighth Circuit has found intolerable look nothing like what Ms. Bland-McCullough

experienced. See, e.g., Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 858 (8th Cir. 1998) (finding evidence of intolerable

working conditions sufficient to support a jury verdict where pregnant plaintiff’s boss constantly pressured her to have

an abortion and made her perform work that plaintiff believed could harm her pregnancy); Kimzey v. Wal-Mart Stores,

Inc., 107 F.3d 568, 574–75 (8th Cir. 1997) (holding a reasonable jury could find intolerable working conditions where

plaintiff was subjected to constant sex-based harassment from her coworkers); Hukkanen v. Int’l Union of Operating

Eng’rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 285 (8th Cir. 1993) (finding intolerable working conditions

where a female employee was subjected to repeated sexual harassment from her boss, including his brandishing a gun

and threatening to rape her). And the Eighth Circuit has declined to find intolerable working conditions in arguably

worse situations than the one Ms. Bland-McCullough was in while working for the Conway Police Department. See,

Bottom line: to whatever extent Ms. Bland-McCullough suffered an adverse employment

action, it’s simply not attributable to Chief Tapley. No reasonable jury could conclude otherwise.

So, Ms. Bland-McCullough can’t make the required adverse-action showing to state a prima facie

case of either sex-based or race-based discrimination against Chief Tapley in his personal capacity.

Chief Tapley is therefore entitled to summary judgment on all personal-capacity § 1983 claims

brought against him.

But what of the claims against the City of Conway, which is the entity that set pay rates

and had the power to give raises? Even here, there is still a potential adverse-action problem for

Ms. Bland-McCullough. Ms. Bland-McCullough does not allege that the original setting of the

pay rate for the Lead Evidence Technician position was discriminatory. Instead, she is alleging

that the failure to raise her pay over the course of her six-year tenure was discriminatory.112 Even

accommodating for the Supreme Court’s recent decision in Muldrow, it is uncertain that keeping

an employee’s salary static amounts to an adverse action.113

The Court need not resolve that thorny question. Assuming arguendo that keeping an

employee’s salary static constitutes an adverse action, no reasonable jury could conclude that “the

surrounding circumstances give rise to an inference of discrimination” as a reason for this action.114

It is true that the 2021 AML Salary Survey shows that Ms. Bland-McCullough was paid less than

her counterparts in the other cities surveyed (all of which were Arkansas cities with populations

e.g., Duncan v. Gen. Motors Corp., 300 F.3d 928, 933–36 (8th Cir. 2002) (finding that, even in the light most favorable

to plaintiff, working conditions were not intolerable despite plaintiff being subjected to “offensive and disrespectful”

sex-based harassment).

112 Ms. Bland-McCullough is also alleging, as the Court has noted, constructive discharge. But that theory does not

get her anywhere for the reasons the Court already explained above. See supra pp. 20, 20 n.111. Indeed, she all but

conceded this at oral argument. See July 16, 2024 Hr’g Tr. (Final) at 40.

113 See Cole, 105 F.4th at 1114.

114 See Lake, 596 F.3d at 874.

above 10,000).115 But the record does not reveal the race or sex of her counterparts in the other

cities surveyed. Nor does it reveal when those counterparts’ pay rates were set. Without this

information, the mere fact that Ms. Bland-McCullough’s salary was the lowest among her

counterparts is not enough, on its own, to give rise to an inference of racial or sex discrimination.

It is also true that Ms. Bland-McCullough’s successors (both white men) ended up getting

paid significantly more than Ms. Bland-McCullough was paid for the same work. At first blush,

and devoid of context, this type of disparity could raise a sufficient discriminatory inference to

mount a prima facie case. But, for the reasons explained above, the pay disparity between

Ms. Bland-McCullough and her successors does not raise such an inference on this record.116 The

Court will not repeat that analysis here, but will repeat its conclusion: No reasonable jury could

find that the pay disparity was based on the race or sex of the employees at issue (including

Ms. Bland-McCullough). To the contrary, any reasonable jury would find that the pay disparity

was the result of an objective, non-discriminatory, and across-the-board process to provide salaries

which were more comparable to those paid by other cities. The pay disparity thus does not create

an inference of discrimination in the circumstances of this case.

Accordingly, and because no other evidence gives rise to an inference of discrimination,

Ms. Bland-McCullough cannot make out a prima facie case of either race or sex discrimination

against the City. The City of Conway is therefore entitled to summary judgment on all § 1983

claims.

115 Ex. 15 (Winningham Decl.) to Defs.’ Statement of Undisputed Facts (Doc. 22-15) at 154.

116 See supra pp. 15–17.

CONCLUSION

For the reasons stated above, the Court GRANTS the Motion for Summary Judgment

(Doc. 20) in its entirety. Judgment will be entered for Defendants on all claims, and this case will

be CLOSED.

IT IS SO ORDERED this 20th day of March 2025.

LEE P.

UNITED STATES DISTRICT JUDGE

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