Brown

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IN THE UNITED STATES DISTRICT COURT EONS

EASTERN DISTRICT OF ARKANSAS ~—UN 17 20286

CENTRAL DIVISION □□□

By:

OZR C

BARBARA A. BROWN AINTIFF □

V. No. 4:24-cv-377-DPM

BUREAU OF LEGISLATIVE RESEARCH DEFENDANT

ORDER

Barbara Brown, a black woman, has a long history of service as a

state employee. Over the years at the Arkansas Bureau of Legislative

Research, she watched her non-black colleagues get promoted and earn

raises at a faster rate than she did. Brown has sued under Title VII,

alleging that she has been passed over for promotions and raises

because of her race. She also claims retaliation: she was reprimanded

after she filed a discrimination complaint. 42 U.S.C. § 2000e et seq.

The Bureau moves for summary judgment. Brown wants a trial.

Where there is a dispute about the material facts, the Court takes the

record in the light most favorable to Brown. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

*

The Court must address the statute of limitations. Brown filed a

charge with the Equal Employment Opportunity Commission in early

June 2023. Doc. 27-3. She says that the discriminatory actions that took

place from 1 January 2021 to 7 June 2023 were a “continuing action.”

Doc. 27-3 at 1. But many of the issues she brings up, such as failures to

get promotions and pay raises, were discrete incidents. Burkett v.

Glickman, 327 F.3d 658, 660 (8th Cir. 2003). The Court is not persuaded

by Brown’s progression argument. “These discrete discriminatory acts

are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Ibid. (quotations omitted). Any claim

about a discrete discriminatory action that happened before

11 December 2022—180 days before she filed her charge —is therefore

barred by the statute of limitations. 42 U.S.C. § 2000e-5(e)(1); Doc.

27-3 at 1.

The timeline is a bit murky. Two discrete actions about pay —

Brown’s 2022 raise and her 2023 raise— appear to be embraced by her

EEOC charge. Doc. 27-1 at 16 & Doc. 27-3 at 1. The Bureau doesn’t

contend otherwise. Doc. 29 at 19-20. Taking the record in the light most

favorable to Brown, the Court concludes that these raises fall within the

covered period. The alleged retaliation does, too.

The first issue is disparate treatment. Because Brown hasn't

offered direct evidence of race discrimination, the Court applies the

McDonnell Douglas burden-shifting framework. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-05 (1973); Gibson v. American Greetings

Corp., 670 F.3d 844, 853-56 (8th Cir. 2012). Brown’s burden to make a

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prima facie case is not heavy; looking at the whole record, the Court

assumes she’s carried it. Torgerson, 643 F.3d at 1047.

The deep issue is her pay raises. In 2022, Brown got a 5% merit

raise. Doc. 27-1 at 10. Three of her co-workers received higher merit

raises. All those co-workers are white. Ibid. In 2023, Brown, and almost

all of her co-workers, got a 2.5% merit raise. Doc. 27-1 at 11.

One co-worker, a white man, received a merit raise of 3.5%. Ibid.

The Bureau offers a legitimate, non-discriminatory reason for

these disparities. Torgerson, 643 F.3d at 1046. In her affidavit, Bureau

director Marty Garrity says these raises were based on performance,

not race. Doc. 27-1 at 9. The burden therefore shifts back to Brown to

show that this reason is pretextual. Torgerson, 643 F.3d at 1046.

She must point to a similarly situated employee who was treated

differently than she was—a rigorous standard at the pretext phase.

Johnson v. Securitas Security Services USA, Inc., 769 F.3d 605, 613 (8th Cir.

2014). Brown must show that the Bureau “paid different wages to

employees of different races for equal work on jobs the performance of

which requires equal skill, effort, and responsibility, and which are

performed under similar working conditions.” Fair v. Norris, 480 F.3d

865, 870 (8th Cir. 2007).

Brown offers seven proposed comparators. Doc. 37 at 8. In 2022,

two of them got a higher raise than she did: Adrienne Beck and William

Parrish. Doc. 27-1 at 10. In 2023, Parrish was the only one who got a

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higher raise than Brown did. Doc. 27-1 at 11. Brown testified

unequivocally, however, that she doesn’t have the same job duties as

either Beck or Parrish. Doc. 27-4 at 167-68. Neither is a solid

comparator. Ingram v. Arkansas Department of Correction, 91 F.4th 924,

928 (8th Cir. 2024). Her disparate treatment claim therefore fails as a

matter of law.

*

The second issue is retaliation. Brown claims she was retaliated

against because of the complaints she filed with the Bureau. Doc.

34-1 at 35. She made the most recent one because of what happened

when she was asked to help an injured co-worker pull a heavy cart.

Doc. 27-4 at 85. Brown told management that she couldn’t help because

she was also injured. Doc. 27-4 at 86. She was later called into a hostile

meeting, where she was scolded for not taking on the extra work. Ibid.

After Brown filed a complaint about the incident, the Bureau

investigated it, and the investigation ended in Brown getting a written

reprimand. Doc. 34-1 at 35. The reprimand concluded that she didn’t

cooperate with the investigation, made baseless allegations, and

engaged in bullying, harassing, and insubordinate behavior toward her

supervisor. Doc. 27-1 at 20-23. The consequences: Brown lost the

privilege of working from home for one year; plus she was moved toa

different section of the Fiscal Division. Doc. 27-1 at 22. Neither her job

title nor her pay changed. Ibid.

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Brown has made a prima facie case here. Blackwell v. Alliant

Techsystems, Inc., 822 F.3d 431, 436 (8th Cir. 2016). She engaged in

protected activity when she filed the complaint. Doc. 34-1 at 35.

The Bureau then banned Brown from working from home for one year.

Doc. 27-1 at 22. That’s an adverse employment action. Muldrow v. City

of St. Louis, 601 U.S. 346, 355 (2024). Looking at the material facts in her

favor, an inference of retaliation arises.

But, considering the whole record, Brown hasn't offered sufficient

evidence for a jury to conclude that the Bureau’s reasons for

reprimanding her were pretexts for a retaliatory decision. Blackwell,

822 F.3d at 436. She knew, when the Bureau investigated her

2023 complaint about not helping her co-worker with the heavy cart,

that she was required to follow the Bureau’s manual. Doc. 27-4 at 131.

It requires cooperation with investigations. Doc. 27-2 at 20. Brown,

though, refused to answer the investigator’s questions. Doc. 27-4 at

109-10. In her complaint, she accused the Bureau of violating the

Family and Medical Leave Act and Occupational Safety and Health

Administration standards. But she wasn’t sure her accusations were

true. Doc. 27-4 at 120-22. Brown’s relationship with her supervisor was

acrimonious. The independent investigator, and, in turn, the Bureau

concluded that Brown was the source of the problems. This conclusion

may have been mistaken, but an employer's factual mistake doesn’t

show pretext. Main v. Ozark Health, Inc., 959 F.3d 319, 325 (8th Cir.

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2020). All material things considered, Brown’s retaliation claim

fails, too.

Brown’s Title VII claims fall short. Her amended complaint and

brief mention, in passing, claims under § 1983 and for a declaratory

judgment. Doc. 14 at 1 & Doc. 37 at 1. These underdeveloped claims

were either abandoned or fail with her Title VII claims. The Bureau's

motion for summary judgment, Doc. 27, is granted.

So Ordered.

WRrtastell p-

D.P. Marshall Jr.

United States District Judge

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