Opinion

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

ELIZABETH MILLER PLAINTIFF

v. Case No. 4:24-cv-00335-KGB

DEPARTMENT OF HUMAN SERVICES DEFENDANT

OPINION AND ORDER

Plaintiff Elizabeth Miller sues defendant Arkansas Department of Human Services

(“DHS”), asserting employment discrimination claims pursuant to Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. § 1981; 42 U.S.C. §

1983; and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 (Dkt. No. 1).

Before the Court is DHS’s motion for summary judgment (Dkt. No. 16). Miller responded in

opposition to the motion for summary judgment (Dkt. No. 23). For the following reasons, the

Court grants DHS’s motion for summary judgment (Dkt. No. 16).

I. Factual Background

The following factual statements are taken from DHS’s statement of undisputed material

fact (Dkt. No. 18). 1

1 Local Rule 56.1(b) of the Local Rules of the United States District Court for the Eastern

and Western Districts of Arkansas requires that Miller file a “separate, short and concise statement

of the material facts as to which [she] contends a genuine dispute exists to be tried.” Pursuant to

Local Rule 56.1(c), “[a]ll material facts set forth in the statement filed by the moving party. . . shall

be deemed admitted unless controverted by the statement filed by the non-moving party. . . .”

Further, Miller must support her denials with relevant, admissible evidence in the record

before the Court as required by Federal Rule of Civil Procedure 56(c). See Fed. R. Civ. P. 56(e)(2)

(“If a party fails to [support] properly an assertion of fact or fails to [address] properly another

party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed

for purposes of the motion”). If Miller relies on documents that have been previously filed in the

record, she must specifically refer to those documents by docket number and page. See Crossley

v. Georgia-Pacific Corp., 355 F.3d 1112, 1113–14 (8th Cir. 2004) (affirming the grant of summary

Miller is a former employee of DHS and was employed by DHS for approximately 40 years

from 1983 to 2023 (Id., ¶ 1). Starting in 2015, Miller was employed as an assistant personnel

manager in the Office of Human Resources (“HR”) (Id., ¶ 2). Miller was terminated from her

employment with DHS on May 26, 2023, after she violated DHS Policy 1084 on honesty and

integrity (Id., ¶ 3). Miller’s termination did not in any way relate to the disciplinary she received

in June 2020 (Id., ¶ 4).

Whitney Haynie became Miller’s supervisor in or around July 2020 after Miller had been

issued a disciplinary from her previous supervisor, Donna Little, in June 2020 (Id., ¶ 5). When

Haynie became Miller’s supervisor, she met with Damian Hicks, the Chief of HR at DHS, to

discuss the employees she would be supervising (Id.). During that meeting, Hicks informed

Haynie that Miller had received a disciplinary in or around June 2020 from her previous supervisor

for passing off work to employees in other divisions (Id.). Haynie was not involved in issuing

Miller’s June 2020 disciplinary (Id., ¶ 6). For reasons unknown to Haynie, however, the June 2020

disciplinary was not placed in Miller’s personnel file at the time of its issuance (Id., ¶ 6).

judgment because a plaintiff failed to refer properly to specific pages of the record that supported

his position).

Here, Miller did not respond to DHS’s statements of undisputed fact by admitting or

denying each fact alleged by DHS. Miller also did not file a statement of material facts to which

she contends there is a genuine dispute to be tried. Instead, Miller filed a statement of undisputed

facts in support of her response to DHS’s motion for summary judgment (Dkt. No. 23-2). Miller’s

statement of undisputed fact indirectly denies that there was an “improper disclosure” but

otherwise does not directly address or deny DHS’s statement of undisputed fact (Compare Dkt.

No. 18, ¶¶ 19, 21, 24, 27, 28 with 23-2, ¶ 8).

Any fact asserted by DHS not denied by Miller is deemed admitted by the Court pursuant

to Local Rule 56.1 and Federal Rule of Civil Procedure 56. While noncompliant with Local Rule

56.1, the Court will consider the statements made by Miller in her statement of material undisputed

facts in ruling on the pending motion (Dkt. No. 23-2).

After learning that the June 2020 disciplinary was not in Miller’s personnel file, Haynie

went to Hicks, informed him that it was not in Miller’s file, and asked if he had a copy (Id., ¶ 7).

Hicks then produced a copy of the disciplinary for Haynie to place in Miller’s personnel file (Id.).

When Haynie discovered the June 2020 disciplinary was not in Miller’s personnel file in May

2023, Haynie took affirmative steps to place the disciplinary in Miller’s file directly (Id., ¶ 8). In

May 2023, multiple HR employees had access to the email inbox where employee disciplinaries

were sent, so Haynie hand-carried the June 2020 disciplinary to the personnel file management

division within HR (Id.).

Haynie approached Tonya Watson, an HR employee responsible for processing personnel

actions and placing items in employees’ personnel files, and asked Watson to add the June 2020

disciplinary to Miller’s personnel file, including her initials and the date it was placed in Miller’s

personnel file (Id., ¶ 9). Watson previously worked under Haynie’s supervision, and Haynie

trusted Watson’s ability to protect employee confidentiality and her discretion in handling the

direct placement of documents in personnel files, as it was a task Watson previously handled for

Haynie (Id., ¶ 10). On or around May 3, 2023, Watson and Hicks were the only two employees

Haynie directly informed that Miller’s June 2020 disciplinary was missing from her personnel file

and that Haynie was adding it to Miller’s file (Id., ¶ 11).

Haynie then met with Miller to discuss the June 2020 disciplinary, the new concerns as of

May 2023 about passing off work to Division of Provider Services and Quality Assurance

(“DPSQA”) employees, and her functional job duties (Id., ¶ 13). Miller signed the description of

her functional job duties and seemed to understand that she could not pass off work to other

employees (Id.) Haynie did not issue Miller a disciplinary in May 2023 for passing off work (Id.).

Haynie considered her conversation with Miller to be a productive informal verbal counseling

session resolving the issue (Id.).

Haynie and Miller had a good working relationship (Id., ¶ 14). After Haynie hand-carried

the June 2020 disciplinary to Watson to be placed in Miller’s file, Watson and Miller had a phone

conversation in which Watson divulged to Miller that Haynie brought the disciplinary over to

Watson (Id., ¶ 15).2 After Miller’s phone call with Watson in which Watson divulged personnel

information, Miller mentioned the phone call to the DPSQA Deputy Director, Sarah Schmidt (Id.).

On or around May 11, 2023, Miller and Schmidt had a conversation in which Miller told

Schmidt that somebody in HR called her and told her that Haynie hand-carried a previous

disciplinary to HR to be placed in Miller’s personnel file (Id., ¶ 16). In her deposition, Miller

testified that she said to Schmidt, “Do you know anything about—I heard something about

Whitney had walked one of my write-ups that Jerry did?” Id. (quoting Dkt. No. 16-1, 63:7–17).

When Miller shared this information with Schmidt, Schmidt became concerned because the

handling of personnel files is an extremely private matter, and Schmidt felt it was problematic for

HR employees to discuss the contents with other employees without going through the proper

protocol to attain that information (Id., ¶ 17).

Schmidt contacted Haynie to share the concern that HR employees may be sharing private

information (Id.). Having no reason to believe Schmidt was being dishonest, Haynie felt it was

her duty to report this breach of protocol to Hicks, the Chief of HR (Id., ¶ 18). Haynie suspected

that Watson was the processing employee that Miller was referring to in her conversation with

2 Miller’s statement of material undisputed facts questions whether it was improper for

Watson to disclose information in the file and suggests that there is no policy provided that

demonstrates Watson’s actions were improper (Dkt. No. 23-2, ¶¶ 8–9). Whether Watson’s conduct

was improper or whether Miller had a right to know what was in her personnel file is immaterial

to Miller’s claims of race or age discrimination.

Schmidt because Watson was the only individual, aside from a brief conversation with Hicks, with

whom Haynie spoke about placing the June 2020 disciplinary in Miller’s personnel file (Id.).

Hicks informed Haynie that he would reach out to Miller to ask her who disclosed that the

June 2020 disciplinary was placed in her personnel file, as he shared Haynie’s concerns that HR

employees may be improperly disclosing private personnel information (Id., ¶ 19). On or around

May 22, 2023, Hicks reached out to Miller for the first time through email, but Miller did not

provide Hicks with the name of the individual in HR who disclosed to her that the June 2020

disciplinary was placed in her file (Id., ¶ 20). Hicks followed up on his first email and rephrased

the question in the hopes of obtaining the name of the disclosing employee from Miller (Id., ¶ 21).

Hicks grew concerned that Miller was not disclosing the truth about the improper disclosure of

confidential personnel information, and because of this concern, he felt that an in-person meeting

with Haynie and Miller would provide a forum for Miller to disclose openly and honestly who

shared the personnel information with her (Id.).

After assessing the evidence available to her, Haynie was convinced that Miller was being

dishonest to Hicks because it was clear to her that Watson was the only individual who could have

told Miller about the June 2020 disciplinary being added to her file, and Haynie communicated

this to Hicks (Id., ¶ 22).

On or around May 23, 2023, both Hicks and Haynie met with Miller and asked who

disclosed the information to her, but Miller continued to deny for a third time that anyone did (Id.,

¶ 23). Haynie expressed that she knew that an improper disclosure occurred, that both Hicks and

Haynie simply wanted Miller to tell them the truth, and that she was not in trouble at that time, but

Miller denied for a fourth time that the conversation between her and Watson had occurred (Id., ¶

24). At that point, Schmidt was called into the meeting to detail the conversation she had with

Miller where Schmidt learned that someone in HR told Miller about the placement of the

disciplinary in her file (Id., ¶ 25). During this meeting, Schmidt was asked by Hicks and Haynie

to explain how she found out that someone in HR was asked to place an old disciplinary in Miller’s

file (Id.). On or around May 25, 2023, Schmidt provided this same explanation in writing to

Haynie by email (Id.). During the May 23, 2023, meeting, Schmidt explained that Miller came to

her and told her that someone in HR had contacted her to tell her that Haynie hand-carried an old

disciplinary to HR to be placed in Miller’s personnel file (Id., ¶ 26).

Miller denied that what Schmidt said was true and stated it did not happen (Id., ¶ 27).

Schmidt explained that she only knew about the disciplinary being added to her file because Miller

told her directly (Id.). For a fifth time, Miller denied that an improper disclosure occurred and

denied that the conversation with Schmidt ever happened (Id.).

Following the meeting, Hicks and Haynie felt that the next appropriate step would be to

initiate a letter of investigation because they were still concerned about the improper disclosure,

and they were faced with new concerns of Miller lying to them on multiple occasions (Id., ¶ 28).

On or around May 25, 2023, Haynie wrote a letter of investigation to Miller informing her that she

was under investigation for violating DHS’s requirement against deceptive behavior, which is

found in DHS Policy 1084(II)(D) (Id., ¶ 29). On or around that same day, Haynie and Shared

Services HR Liaison George Bryant met with Miller to issue the letter of investigation, to which

Miller was given until the end of the day to respond (Id.). In her response, Miller again denied for

a sixth time that anyone told her about the disciplinary being placed in her personnel file (Id., ¶

30).

On or around May 26, 2023, Watson disclosed by email that she did in fact have a

conversation with Miller in which Watson informed Miller that Haynie hand-carried the June 2020

disciplinary to Watson to place in Miller’s personnel file (Id., ¶ 32). Haynie was not Watson’s

supervisor at that time, but she became aware that Watson, who is also an African American

individual, was disciplined for the improper disclosure, but because she had been truthful, she was

not terminated from her employment with DHS (Id., ¶ 33).

When Schmidt originally informed Haynie of her conversation with Miller about the

improper disclosure, it was not Haynie’s intention to terminate Miller (Id., ¶ 34). Haynie felt she

had no choice, however, but to move forward with termination because Miller was dishonest on

numerous occasions where she was provided with the opportunity to be truthful (Id.).

On or about May 26, 2023, Bryant and Haynie called Miller and informed her that she was

terminated for violating the DHS policy regarding honesty and integrity, that her access to the

building would be cut off, that her personal belongings in her office would be inventoried and left

at the front security desk for her to pick up the following Tuesday (since the following Monday

was Memorial Day), and that she should bring her badge and keys to leave with security when she

came to retrieve her belongings (Id., ¶ 35).

Miller testified in her deposition that neither Haynie nor Hicks ever said anything to her

that she perceived as unprofessional (Id., ¶ 39; see Dkt. No. 16-1, 92:9–93:10). Miller also testified

that neither Haynie nor Hicks ever said or did anything toward Miller that she perceived as

discriminatory on the basis of race or age (Dkt. No. 18, ¶ 39). Miller also testified that no one

employed by DHS ever said anything directly to her during the last five years of her employment

that she perceived as racist or discriminatory on the basis of age (Id.).

Miller does not dispute that she violated DHS’s policy on honesty and integrity (Id., ¶ 40).

When asked to explain in her own words how she believes she was racially discriminated

against, Miller testified that she felt that what happened to her would not have happened to a white

person, “that the level of discipline would not have been this level of discipline.” Id., ¶ 41. When

asked whether she has any evidence to support her belief that racial discrimination or age

discrimination was a motivation for her termination, Miller testified that she does not (Id., ¶ 42).

On or about June 5, 2023, Miller admitted for the first time that she had been dishonest

about the improper disclosure when she filed a grievance regarding her involuntary termination

(Id., ¶ 43). Miller did not tell the truth regarding the improper disclosure at any time before she

was terminated on or around May 26, 2023, and she never disclosed the truth to Haynie directly

(Id., ¶ 44). Miller testified during her deposition that she has no desire to get her job back at DHS

(Id., ¶ 45).

When asked to identify any and all persons employed by DHS during the time of Miller’s

employment whom she alleges were situated similarly to her and received more favorable

treatment by DHS than what she received, Miller identified only one person—Deborah Dees (Id.,

¶ 46). Deborah Dees was at one time employed by DHS (Id., ¶ 47). Dees was never supervised

by Haynie (Id.). Haynie never worked with Dees directly, was never responsible for disciplining

Dees, and has no personal knowledge regarding any investigation that may have occurred prior to

Dees ending her employment with DHS (Id.).

II. Summary Judgment Legal Standard

Summary judgment is appropriate if there is no genuine issue of material fact for trial.

UnitedHealth Grp. Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017) (citing

Fed. R. Civ. P. 56). Summary judgment is proper if the evidence, when viewed in the light most

favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the

movant is entitled to entry of judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). “The party requesting summary judgment is ‘entitled to judgment as a matter of

law,’ Fed. R. Civ. P. 56(c), if the non-movant fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Vaughn v. Wallace, 496 F.3d 908, 910–11 (8th Cir. 2007) (internal quotations

omitted).

“In ruling on a motion for summary judgment [t]he district court must base the

determination regarding the presence or absence of a material issue of factual dispute on evidence

that will be admissible at trial.” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 923–24 (8th Cir.

2004) (internal quotations omitted). “‘Where the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no genuine issue for trial.’” Johnson Reg’l

Med. Ctr. v. Halterman, 867 F.3d 1013, 1016 (8th Cir. 2017) (quoting Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A factual dispute is genuine if the evidence

could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d

854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar

summary judgment; rather, the dispute must be outcome determinative under the prevailing law.”

Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).

Parties opposing a summary judgment motion may not rest merely upon the allegations in

their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on

the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp.,

477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine

issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008),

cert. denied, 522 U.S. 1048 (1998). “The evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

III. Race Discrimination Claims

A. Race Discrimination Legal Standard

Under Title VII an employer may not discriminate against an employee with respect to

compensation or the terms, conditions, or privileges of employment because of the employee’s

race. 42 U.S.C. § 2000e et seq. Likewise, under 42 U.S.C. § 1981, an employer cannot

discriminate on the basis of race.

The legal standard for summary judgment on a race discrimination claim is the same as

any other summary judgment motion. Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th

Cir. 2011) (“There is no ‘discrimination case exception’ to the application of summary judgment”).

“To survive a motion for summary judgment on the race discrimination claim, [Miller] must either

present admissible evidence directly indicating unlawful discrimination, or alternatively, [Miller]

could create an inference of unlawful discrimination under the burden-shifting framework

established in McDonnell Douglas . . . .” Young v. Builders Steel Co., 754 F.3d 573, 577 (8th Cir.

2014); see Collins v. Union Pacific Railroad Company, 108 F.4th 1049, 1053 (8th Cir. 2024). The

Court’s framework at the outset is the same under § 1981 and Title VII. Collins v. Union Pacific

Railroad Co., 108 F.4th 1049, 1052–53 (8th Cir. 2024). 3

“To prove intentional discrimination through direct proof, a plaintiff must establish a

specific link between the alleged discriminatory animus and the challenged decision, sufficient to

support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the

3 At the pretext stage, Title VII differs from § 1981. Under § 1981, “a plaintiff bears the

burden of showing that race was a but-for cause of its injury.” Comcast Corp. v. Nat. Ass’n of

African Am.-Owned Media, 589 U.S. 327, 333 (2020). This standard is more rigorous than Title

VII’s “motivating factor” causation test. Id., at 336–41. However, because the Court does not

reach the pretext stage under McDonnell Douglas, this difference is not material.

employer's decision.” Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012) (internal

quotations omitted). Under McDonnell Douglas, “[t]o establish a prima facie case

for race discrimination, ‘[Miller] must show (1) [s]he is a member of a protected class, (2) [s]he

met h[er] employer’s legitimate expectations, (3) [s]he suffered an adverse employment action,

and (4) the circumstances give rise to an inference of discrimination (for example, similarly

situated employees outside the protected class were treated differently).’” Young, 754 F.3d at 577

(quoting Gibson, 670 F.3d at 853). If any essential element of Miller’s prima facie case is not

supported by specific facts sufficient to raise a genuine issue for trial, summary judgment in favor

of DHS is proper. See Grant v. City of Blytheville, Arkansas, 841 F.3d 767, 773 (8th Cir. 2016)

(explaining plaintiff must meet all elements of prima facie case under McDonnell Douglas). The

threshold of proof necessary to make a prima facie case is minimal. . . .” Johnson v. Arkansas

State Police, 10 F.3d 547, 551 (8th Cir. 1993). “While ‘[t]he burden of establishing

a prima facie case of disparate treatment is not onerous,’ the plaintiff must be able to produce some

evidence of similarity between her and her comparator.” Rebouche v. Deere & Co., 786 F.3d

1083, 1087–88 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1047).

If Miller establishes the prima facie case for discrimination, then “the burden shifts to

[DHS] to provide a nondiscriminatory reason for the discharge.” Walker v. First Care

Management Group, LLC, 27 F.4th 600, 605 (8th Cir. 2022) (citing Edwards v. Hiland Roberts

Dairy, Co., 860 F.3d 1121, 1125 (8th Cir. 2017)). “If [DHS] meets its burden, [Miller] must

demonstrate [DHS’s] proffered nondiscriminatory reason was pretext for intentional

discrimination.” Walker, 27 F.4th at 605.

B. Analysis

DHS argues that Miller fails to establish direct evidence of discrimination and fails to meet

her burden under McDonnell Douglas, entitling DHS to judgment as a matter of law on Miller’s

Title VII claims (Dkt. No. 17, at 10). Miller argues that she was discriminated against on the basis

of her race because she was treated differently than a white employee was treated after an

investigation (Dkt. No. 23-1, at 5). Miller does not meaningfully engage with whether she met her

employer’s legitimate expectations (Id.).4 The Court finds, construing all record evidence and

reasonable inferences from that evidence in favor of the nonmoving party, that Miller has not met

her burden under McDonnell Douglas and that DHS is entitled to judgment as a matter of law.

Miller does not argue that there is direct evidence of discrimination. It is uncontested that

Miller provided no direct evidence of racial discrimination (Dkt. No. 18, ¶ 39). Accordingly,

McDonnell Douglas applies.

1. Prima Facie Case

DHS concedes that Miller is a member of a protected class because she is African American

(Dkt. No. 17, at 13). DHS also concedes that Miller suffered an adverse employment action when

she was terminated from her position at DHS (Id., at 14). The Court agrees that the first and third

elements of the prima facie case under McDonnell Douglas are met.

However, the Court finds that DHS is entitled to summary judgment because Miller fails

to provide specific facts sufficient to raise a genuine issue for trial on two essential elements of her

prima facie claim. First, Miller fails to provide specific facts sufficient to raise a genuine issue for

4 Miller argues that the Court should consider whether Miller “was qualified to perform

the job” and does not mention her employer’s legitimate expectation (Dkt. No. 23-1, at 3 (citing

Twymon v. Wells Fargo & Co., 462 F.3d 925, 934)). However, Twymon, does not support Miller’s

argument. Twymon never mentions qualifications. Regardless, the test under McDonnell Douglas

is whether Miller met DHS’s legitimate employment expectations.

trial on whether Miller was meeting DHS’s legitimate expectations. Second Miller has failed to

make a showing sufficient to establish that Dees was a sufficiently similarly situated employee to

serve as a comparator at the prima facie case stage.

First, there is no genuine dispute of material fact as to whether Miller met her employer’s

legitimate expectation. She did not. It is undisputed that Miller was dishonest on six occasions

prior to her termination. It is also undisputed that Miller’s behavior violated DHS’s policy on

honesty and integrity (Dkt. Nos. 16-10, at 2; 18, ¶ 29). Miller does not contest DHS’s argument

that a pattern of dishonesty “fell well below the standard for someone occupying her position.”

(Dkt. No. 17, at 13). Miller also does not contest that DHS expected Miller “to tell the truth.” Id.

Based upon the undisputed factual record of dishonesty to her employer and DHS’s articulated

policy and expectation of honesty and integrity, the Court finds that Miller fails to meet her burden

under McDonnell Douglas and that DHS is entitled to judgment as a matter of law.

Even if Miller had met her employer’s legitimate expectations, on the limited record before

it, the Court finds that Miller still would be unable to establish her prima facie case and DHS

would still be entitled to summary judgment because there is no record evidence of circumstances

giving rise to an inference of discrimination. Miller contends that she was treated differently than

Dees (Dkt. No. 23-1, at 4–5). DHS argues that Miller is not similarly situated to Dees for Dees to

serve as a comparator because Dees never worked with Haynie and was never disciplined by

Haynie (Dkt. No. 17, at 15). Miller argues that Dees is a sufficiently similarly situated comparator

(Dkt. No. 23-1, at 5). The Court finds that Miller does not meet her burden on the record evidence

before the Court even at the prima facie case stage.

2. Reasons For Termination

Assuming without deciding that Miller could establish a prima facie case, DHS sufficiently

proffers a nondiscriminatory reason, dishonesty, as the reason for Miller’s termination. Therefore,

the burden shifts to Miller to establish pretext.

3. Pretext

Even if Miller had met her prima facie burden, Miller has presented no record evidence to

create a genuine dispute of material fact as to whether DHS’s proffered nondiscriminatory reason,

dishonesty, was pretext for intentional discrimination based on race.

To satisfy the prima facie requirement of demonstrating circumstances that give rise to an

inference of racial discrimination by reference to similarly situated persons who were treated more

favorably than she was treated, Miller “must show the employees were ‘similarly situated in all

relevant respects.’” Young, 754 F.3d at 578 (quoting Chappell v. Bilco Co., 675 F.3d 1110, 1119

(8th Cir. 2012)). The pretext analysis applies a “rigorous” review of the similarly situated

individuals. Nelson v. Lake Elmo Bank, 75 F.4th 932, 939 (8th Cir. 2023). However, the

comparator need not be a “clone.” Ridout v. JBS USA, LLC, 716 F.3d 1079, 1085 (8th Cir. 2013).

Some factors to consider include whether the comparator dealt with the same supervisors, was

subject to the same standards, or engaged in the same conduct without any mitigating or

distinguishing circumstances. E.E.O.C. v. Kohler Co., 335 F.3d 766, 776 (8th Cir. 2003). Miller

must establish a sufficient factual showing of similarity. Vaughn, 496 F.3d at 910–11.

Miller does not make a sufficient showing to establish that Dees is similarly situated for

the pretext analysis. Miller’s statement of material undisputed facts does not provide a sufficient

basis for the Court to find that there is a dispute of material fact as to whether Dees is substantially

similar to Miller (Dkt. No. 23-2. ¶ 12). Under Local Rule 56.1 and Federal Rule of Civil Procedure

Rule 56(c), Miller must provide record citations for all factual statements.

On the record before the Court, Miller has provided the Court with few facts and no record

citations for the statements she makes about Dees. The Court has no record evidence regarding

Dee’s employment history, including discipline and investigations. The extent of Miller’s record

evidence as to Dees is what Hicks’s affidavit does not say (Dkt. No. 23-2, ¶ 13). On the other

hand, there is undisputed record before the Court that establishes that Haynie did not supervise

Dees, did not discipline Dees, and made no determinations regarding an investigation into Dees.

Further, there is undisputed record evidence that Haynie supervised Miller starting in July 2020

until Miller’s termination and that Haynie made the decision to terminate Miller (Dkt. No. 18, ¶¶

5, 34–35). On the limited record before the Court, Miller has failed to meet her burden to show

that Dees is similarly situated in all relevant respects, while at the same time, DHS has pointed to

a substantial dissimilarity between the two employees. The Court accordingly finds that no

reasonable factfinder could find that Miller and Dees are similarly situated in all relevant respects

to establish pretext.

For all of these reasons, DHS is entitled to judgment as a matter of law on Miller’s race

discrimination claim.

IV. ADEA Discrimination

DHS argues that it is entitled to sovereign immunity under the Eleventh Amendment (Dkt.

No. 17, at 18). Miller argues that Eleventh Amendment sovereign immunity is overcome because

“Defendant has acted unconstitutionally by acting in bad faith, arbitrarily, capriciously, and in a

wantonly injurious manner in terminating [Miller] . . . .” (Dkt. No. 23-1, at 6). The Court agrees

with DHS that Miller’s claims are barred by sovereign immunity.

“The Eleventh Amendment immunizes an unconsenting State from damage actions

brought in federal court, except when Congress has abrogated that immunity for a particular federal

cause of action.” Becker v. University of Nebraska at Omaha, 191 F.3d 904, 908. The Eleventh

Amendment applies when the state is named as a defendant and in certain actions against state

instrumentalities. Regents of University of California v. Doe, 519 U.S. 425, 429–30 (1997). “A

state agency or official may invoke the State’s Eleventh Amendment immunity if immunity will

protect the state treasury from liability that would have had essentially the same practical

consequences as a judgment against the State itself.” Becker, 191 F.3d at 908 (internal quotations

omitted).

The Supreme Court has ruled that the ADEA contained an unconstitutional abrogation of

state sovereign immunity and has determined that abrogation invalid. Kimel v. Florida Board of

Regents, 528 U.S. 62, 78 (2000). Thus, any relief for money damages under the ADEA is barred

by the Eleventh Amendment. To the extent that Miller seeks monetary relief under the ADEA,

her claim is barred by the Eleventh Amendment.5

Second, it is unclear whether Miller seeks injunctive relief on her ADEA claim, which is

sometimes permitted under the Eleventh Amendment. Compare Dkt. No. 1, ¶ 17(b) (seeking

reinstatement) with Dkt. No. 18, ¶ 45 (stating Miller has no desire to get her job back). However,

regardless of whether Miller presently seeks injunctive relief, DHS is entitled to judgment as a

matter of law on sovereign immunity grounds.

5 Miller’s citations to Kelley v. Johnson, 496 S.W.3d 346, 354 (Ark. 2019), and Arkansas

State Police Retirement System v. Sligh, 516 S.W.3d 241, 246 (Ark. 2017), are inapposite. Neither

Arkansas Supreme Court decision grapples with the Eleventh Amendment or Congress’s

purported—but unconstitutional—abrogation of sovereign immunity in the ADEA.

“[U]nder the doctrine set forth in Ex Parte Young, 209 U.S. 123, [] (1908), state officials

may be sued in their official capacities for prospective injunctive relief without violating the

Eleventh Amendment[; however], the same doctrine does not extend to states or state agencies.”

Monroe v. Arkansas State University, 495 F.3d 591, 594 (8th Cir. 2007). Here, Miller names as a

defendant only DHS, an agency of the state of Arkansas. Because an agency does not fall under

the Ex parte Young framework, the State’s Eleventh Amendment sovereign immunity applies.

Miller’s ADEA claim for injunctive relief, to the extent she seeks it, is barred.

The Court finds that DHS is entitled to sovereign immunity under the Eleventh Amendment

on all of Miller’s ADEA claims.

V. Fourteenth Amendment Claim

Miller also brings a claim for violations of the Fourteenth Amendment under 42 U.S.C. §

1983 (Dkt. No. 1, ¶ 13). In DHS’s answer to the complaint, DHS asserts that Millers claims are

barred by sovereign immunity (Dkt. No. 11, ¶ 28). The Court finds that Miller’s Fourteenth

Amendment claims are also barred by sovereign immunity.

“The Eleventh Amendment immunizes an unconsenting State from damage actions

brought in federal court, except when Congress has abrogated that immunity for a particular federal

cause of action.” Becker, 191 F.3d at 908. The Eleventh Amendment applies when the state is

named as a defendant and in certain actions against state instrumentalities. Regents of University

of California, 519 U.S. at429–30. “A state agency or official may invoke the State’s Eleventh

Amendment immunity if immunity will protect the state treasury from liability that would have

had essentially the same practical consequences as a judgment against the State itself.” Becker,

191 F.3d at 908 (internal quotations omitted).

First, to the extent that Miller seeks monetary relief under § 1983, that claim is barred by

sovereign immunity. The State of Arkansas has not consented to be sued in the federal courts, so

Miller’s § 1983 claim for money damages can only proceed if Congress properly abrogated state

sovereign immunity (see Dkt. No. 11, ¶ 28). However, “Congress did not abrogate the states’

sovereign immunity when it enacted 42 U.S.C. § 1983.” Smith v. Beebe, 123 Fed.Appx. 261, 262

(8th Cir. 2005); see Roe v. Nebraska, 861 F.3d 785, 789 (8th Cir. 2017); Burk v. Beene, 948 F.2d

489, 492–93 (8th Cir. 1991). Accordingly, Miller’s money damages § 1983 claim is barred.

Second, it is unclear whether Miller seeks injunctive relief on her Fourteenth Amendment

claim, which is sometimes permitted under the Eleventh Amendment. Compare Dkt. No. 1, ¶

17(b) (seeking reinstatement) with Dkt. No. 18, ¶ 45 (stating Miller has no desire to get her job

back). However, regardless of whether Miller presently seeks injunctive relief, DHS is entitled to

judgment as a matter of law on sovereign immunity grounds.

“[U]nder the doctrine set forth in Ex Parte Young, 209 U.S. 123, [] (1908), state officials

may be sued in their official capacities for prospective injunctive relief without violating the

Eleventh Amendment[; however], the same doctrine does not extend to states or state agencies.”

Monroe, 495 F.3d at 594. Here, Miller names as a defendant only DHS, an agency of the state of

Arkansas. Because an agency does not fall under the Ex parte Young framework, the State’s

Eleventh Amendment sovereign immunity applies. Miller’s § 1983 claim for injunctive relief, to

the extent she seeks it, is barred.

VI. Conclusion

For the foregoing reasons, the Court grants DHS’s motion for summary judgment (Dkt.

No. 16). The Court dismisses with prejudice Miller’s Title VII and § 1981 race discrimination

claims, her Fourteenth Amendment § 1983 claim, and her ADEA age discrimination claims.

There are no claims left to be tried.

It is ordered this 31st day of March, 2026. .

Kristine G. Baker

Chief United States District Judge

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