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SUPREME COURT OF ARKANSAS
No. CV-14-10
CHARLES SMITH, BETTY MAINS, Opinion Delivered December 11, 2014
JAMES SCOGGINS, BRYAN HALL,
Each Individually and in their Official APPEAL FROM THE PULASKI
Capacity, as employees of the COUNTY CIRCUIT COURT
DEPARTMENT OF HUMAN [NO. 60CV2011-0402-6]
SERVICES,
DEPARTMENT OF BEHAVIORAL HONORABLE TIMOTHY DAVIS
SCIENCES serving the Arkansas State FOX, JUDGE
Hospital
APPELLANTS AFFIRMED IN PART; REVERSED
AND DISMISSED IN PART; AND
V. REMANDED.
GLORIA DANIEL
APPELLEE
JOSEPHINE LINKER HART, Associate Justice
This interlocutory appeal arises from a lawsuit filed pursuant to the Arkansas Whistle-
Blower Act and state and federal civil rights claims. Charles Smith, in his official capacity
as the Administrator of the Arkansas State Hospital (State Hospital) and Betty Mains in her
individual capacity appeal from the denial of their motion for summary judgment. The
circuit court found that Gloria Daniel’s claim for retaliation was not barred by sovereign
immunity and that the remaining defendants in the lawsuit are not entitled to qualified
immunity. On appeal, appellants argue: (1) the Circuit Court erred in denying the
appellants’ motion for summary judgment based on sovereign immunity; and (2) the Circuit
Court erred in denying the appellants’ motion for summary judgment based on
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qualified/statutory immunity grounds. We affirm in part; reverse in part; and remand.
Daniel was fired from her position as a registered nurse at the State Hospital thirteen
months after she reported to Charles Smith, the Director of Behavioral Health Services and
others that a patient’s death was attributable to abuse or neglect and the failure of the hospital
to have present basic life-saving equipment. The purported reason for terminating Daniel
was that she violated the seclusion/restraint policies for a patient and for making
“unprofessional” comments.
Daniel filed suit, asserting claims under the Arkansas Whistle-Blower Act, the
Arkansas Civil Rights Act, 42 U.S.C. § 1983, and 42 U.S.C. § 1981.1 In the body of her
third amended complaint, in the paragraph styled “PARTIES AND JURISDICTION,”
Daniel recited the following:
Plaintiff is a black female resident and citizen of the State of Arkansas, who formerly
worked for the Department of Human Services AND DEPARTMENT OF
BEHAVIORAL SCIENCES at the Arkansas State Hospital, an instrumentality of the
State of Arkansas. Charles Smith is the Administrator of the Arkansas State Hospital,
who is sued in his official capacity only under the Whistleblower’s Act [sic]. Charles
Smith, James Scoggins, Bryan Hall, and Betty Mains were employees who
participated in the decision to terminate the Plaintiff because she is black and female,
and each is sued in their individual capacity. This is an action also brought for
termination in violation of the ACRA and the Arkansas Whistleblower’s Act. But
this action brought under the ACRA, 42 USC 1983 and 42USC 1981 only against
the individual Defendants. Accordingly, this Court has subject matter jurisdiction.
Venue is proper. To the extent not otherwise dismissed by the Court, the previous
Complaints are incorporated by reference.
Appellants’ summary judgment motion recited that it was seeking relief for “Charles
1
The section 1981 claim was dismissed in the order appealed from and Daniel did not
file a cross-appeal.
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Smith, in his official capacity, and Betty Mains, in her official and individual capacities.2”
It alleged the following:
1. The Third Amended Complaint fails to state sufficient facts as required by the
Arkansas Rules of Civil Procedure to allow the lawsuit to continue.
2. The Whistle-Blower Act does not provide for the claim against Smith or Mains
in any capacity.
3. Any Whistle-Blower Act claim against Mains is time-barred
4. There are no pending individual claims against Smith.
5. The official capacity Arkansas Civil Rights Act claims are barred by sovereign
immunity.
6. ACRA does not provide for discrimination claims against state actors.
7. The ACRA retaliation claims are barred by statutory immunity.
8. There was no causal connection between Daniel’s “report” to Smith and her
termination.
9. Defendants are protected by sovereign and statutory immunity from Daniel’s
discrimination and retaliation claims.
In its December 31, 2013 order, the circuit court dismissed the Whistle-Blower claim against
Maims and all individual-capacity claims against Smith. It denied summary judgment for
the the Whistle-Blower claim against Smith in his official capacity, denied qualified
immunity to any defendant, and, after acknowledging that it had considered all of the other
arguments submitted by the Defendants denied summary judgment as to each argument.
On appeal, appellants first argue that the circuit court erred in denying the appellants’
2
Smith was the Administrator of the Arkansas State Hospital; Mains was the Assistant
Administrator.
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motion for summary judgment based on sovereign immunity. They acknowledge that a suit
against a state official in his or her official capacity is “not a suit against that person, but
rather is a suit against that official’s office.” Appellants further note that the Arkansas
Whistle-Blower Act contemplates suits only against a “public employer,” not an individual.3
While appellants concede that the Arkansas Whistle-Blower Act “implies a waiver of
immunity as to ‘an agency, department, or institution of state government,’” it nonetheless
asserts that it does not waive immunity in this case because “public employer” does not
3
The Arkansas Whistle-Blower Act in pertinent part defines “public employer” as:
(A) An agency, department, board, commission, division, office, bureau, council,
authority, or other instrumentality of the State of Arkansas, including the offices of the
various Arkansas elected constitutional officers and the General Assembly and its
agencies, bureaus, and divisions;
(B) A state-supported college, university, technical college, community college, or
other institution of higher education or department, division, or agency of a state
institution of higher education;
(C) The Supreme Court, the Court of Appeals, the Administrative Office of the
Courts, the circuit courts, and prosecuting attorneys' offices;
(D) An office, department, commission, council, agency, board, bureau, committee,
corporation, or other instrumentality of a county government or a municipality or a
district court, a county subordinate service district, a municipally owned utility, or a
regional or joint governing body of one (1) or more counties or municipalities; or
(E) A public school district, school, or an office or department of a public school district
in Arkansas;
Ark. Code Ann. § 21-1-602(5) (Repl. 2004).
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include individuals.
In an interlocutory appeal from a denial of summary judgment based on sovereign
immunity, two standards of review can apply. Ark. Lottery Comm'n v. Alpha Mktg., 2013
Ark. 232, 428 S.W.3d 415. Where the circuit court makes no “substantive interpretations
of law,” but instead makes its decision based on whether the pleadings state “sufficient facts
for [an] exception to sovereign immunity,” we apply the abuse-of-discretion standard of
review. Id. In those instances, we treat the facts alleged in the complaint as true and view
them in the light most favorable to the party who filed the complaint. Id. However, where
the issue is whether a statute provides a waiver of sovereign immunity, our review is de
novo, giving no deference to the circuit court’s interpretation of the statute. Weiss v.
McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007). The case before us implicates both
standards of review.
The defense of sovereign immunity originates from the Arkansas Constitution, which
provides that “[t]he State of Arkansas shall never be made defendant in any of her courts.”
Ark. Const. art. V, § 20. We have recognized three ways in which a claim of sovereign
immunity may be waived: (1) where the State is the moving party seeking specific relief; (2)
where an act of the legislature has created a specific waiver of sovereign immunity; and (3)
where the state agency is acting illegally or if a state agency officer refuses to do a purely
ministerial action required by statute. Ark. Dept. of Cmty. Corr. v. City of Pine Bluff, 2013
Ark. 36, 425 S.W.3d 731. A statutory waiver of sovereign immunity may be express or
implied. Id.
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We agree with appellants that when the legislature authorized a cause of action
against a “public employer” in the Arkansas Whistle-Blower Act, it expressly waived
sovereign immunity. We likewise agree that a suit against a public official in his or her
official capacity is essentially a suit against that official’s agency. See, e.g., Simons v. Marshall,
369 Ark. 447, 255 S.W.3d 838 (2007); Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919
(2002). We have held that official-capacity suits generally represent a way of pleading a
cause of action against the entity of which the officer is an agent. Simons, supra. While it
is true that the Arkansas Whistle Blower Act does not directly state that a suit against a
director of a state entity is a suit against the public employer, in interpreting a statue, we
presume that the legislature is familiar with our decisions. Books-A-Million, Inc. v. Ark.
Painting & Specialties Co., 340 Ark. 467, 10 S.W.3d 857 (2000). Accordingly, we hold that
the suit against Smith in his official capacity as chief executive officer of the Arkansas State
Hospital was in effect a suit against a public employer.4 We note as well that in the style of
4
The dissent cites a federal district court case, Crosby v. Pulaski Technical College Bd. of
Trustees, No. 4:06cv 01003SWW, 2007 WL 2750672 (E.D. Ark. Sept. 18, 2007) as authority
for its contention that a suit against a “public employer” under the Arkansas Whistle Blower
Act is not proper where suit is brought against a department head in his or her official
capacity. However, the dissent’s reliance on Crosby is misplaced. There Crosby filed an
employment discrimination suit against the Board of Trustees (the Board) of Pulaski Technical
College (PTC); Dan Bakke, the President of PTC in his official and individual capacities; and
Robert Blackiston, the Chief of Police of PTC in his official and individual capacities. The
institution itself was not made a defendant. The complaint alleged that the Board, Blackiston,
and Bakke retaliated against him in violation of Title VII and the Arkansas Whistle Blower
Act and “deprived him of rights secured by the Constitution and laws of the United States of
America, in violation of 42 U.S.C. § 1983. In disposing of Crosby’s claims under the
Arkansas Whistle Blower Act, the district court stated:
Defendants do not assert that Crosby's claims against the PTC under the Arkansas
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her complaint, Daniel did name “the Department of Behavioral Sciences serving the
Arkansas State Hospital.” Moreover, in full compliance with Rule 9 of the Arkansas Rules
of Civil Procedure, Daniel fully pleaded her employment relationship with a public
employer—the “Department of Human Services AND DEPARTMENT OF
BEHAVIORAL SCIENCES at the Arkansas State Hospital, an instrumentality of the State
Whistle-Blower Act are barred under the Eleventh Amendment. However, the Court
finds it necessary to address this important jurisdictional issue sua sponte.
Although the Arkansas Whistle-Blower Act provides for citizen suits in state court
against a “public employer,” see Ark. Code Ann. § 21-1-604, the State’s general
waiver of sovereign immunity is insufficient to waive Eleventh Amendment immunity.
A state must specify an intent to subject itself to federal court jurisdiction in order to
waive Eleventh Amendment immunity, see Faibisch v. University of Minnesota, 304 F.3d
797, 800 (8th Cir. 2002), and after careful review, the Court finds no such provision
with respect to the Arkansas Whistle-Blower Act.
Furthermore, the Court agrees with Defendants that Blackiston and Bakke are not
proper defendants under the Whistle-Blower Act. The Act defines “public employer”
as “[a]n agency, department, board, commission, division, office,
bureau, counsel, authority, or other instrumentality of the State of Arkansas ...” Ark.
Code Ann. § 21-1-602(5)(A). The definition of “public employer” does not include
individuals. In sum, the Court finds that Crosby fails to state a claim for relief under
the Arkansas Whistle-Blower Act and that this claim must be dismissed without
prejudice.
Accordingly, the federal district court found that under the Arkansas Whistle Blower Act suits
against the public employer—brought by naming PTC’s Board, President, and Chief of
Police—were barred under the Eleventh Amendment, and suits under the Act against those
persons in their individual capacities was not authorized by the statute. Obviously, in the case
before us, a suit against Smith in his official capacity under the Arkansas Whistle Blower Act
in state court was not barred by the Eleventh Amendment prohibition against a state being sued
in federal court. Furthermore, it is obvious that the federal district court recognized, as do
we, that PTC’s Board, President, and Chief of Police in their official capacities would have been
proper defendants as public employers but for the state’s immunity under the Eleventh
Amendment.
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of Arkansas,” as well as Smith in his official capacity. Appellants make no argument why the
circuit court, or this court on appeal, should not consider those entities as named plaintiffs
and, as such, Daniel’s public employer. We affirm the circuit court on this point.
We are mindful that appellants’ summary-judgment motion asserted that “the official
capacity Arkansas Civil Rights Act claims are barred by sovereign immunity” and that
“Defendants are protected by sovereign and statutory immunity from Daniel’s discrimination
and retaliation claims.” We are also mindful that the circuit court makes no specific finding
with regard to these assertions. However, we believe that it was appropriate for the circuit
court to summarily dispose of these assertions as the “other arguments,” for without an
express ruling on an a legitimate issue of sovereign immunity, the State would be precluded
from bringing this appeal. Arkansas Lottery Com'n v. Alpha Marketing, 2012 Ark. 23, 386
S.W.3d 400. As we noted previously, the third amended complaint asserted no official
capacity claims against any of the defendants under the Arkansas Civil Rights Act.
Although, on appeal, appellants correctly note that the State has not waived sovereign
immunity for claims brought under the Arkansas Civil Rights Act,5 this statement is of no
moment because, again, it is obvious from the previously quoted PARTIES AND
JURISDICTION paragraph in the third amended complaint that the only official capacity
claim was asserted under the Arkansas Whistle-Blower Act. The other defendants were sued
5
§ 16-123-104. Sovereign immunity not waived
Nothing in this subchapter shall be construed to waive the sovereign immunity of the
State of Arkansas.
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only in their individual capacity.6
For their second point, appellants argue that the circuit court erred in denying their
motion for summary judgment based on qualified/statutory immunity grounds. They
contend that they “acted in good faith in performing their duties;” consequently, they are
immune from this lawsuit because they are protected by statutory immunity pursuant to
Arkansas Code Annotated section 19-10-305. Appellants further assert that Daniel has not
alleged “any specific act “by Smith or Mains7” that constitutes malice.
Daniel argues that the circuit court properly denied the appellants’ summary-
judgment motion because there are material issues of fact with regard to whether the
individuals named in her complaint were entitled to qualified immunity. She notes that
there is a spoliation issue associated with a video tape that she believes would exonerate her.
6
We are not saying that every part of Daniel’s complaint is likewise a model of clarity.
We are aware that the complaint states the following under COUNT II where she asserts a
cause of action for retaliation under the Arkansas Civil Rights Act, Arkansas Code Annotated
section 16-123-108(a) and under the Arkansas Whistle-Blower Act, Arkansas Code Annotated
section 21-1-603. Sandwiched between paragraph 35 where Daniel asserts that “Smith and
the individual Defendants are sued individually” for the civil rights claims, and paragraph 38
where Daniel makes her Whistle-Blower claim is the somewhat enigmatic paragraph 37.
That paragraph states:
Plaintiff sues all Defendants both in their official capacities [sic] for injunctive relief.
Plaintiff reported the abuse and neglect. Plaintiff was fired, designated non-rehirable
and denied the grievance process, because of her report and because she was black.
Where there is some ambiguity in a pleading, it is not proper to construe it in such a way as
to create a barrier for a litigant to try the case, particularly where the litigant has demonstrated
elsewhere in the pleading a clear understanding of the capacity in which the the defendants
are being sued.
7
Individual claims against Smith were dismissed by the circuit court in the order that
the appellants appeal from. There is no cross-appeal. We will therefore not consider the
arguments that the appellants make specifically with regard to qualified immunity for Smith.
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Further, she notes that she denied the conduct of which she was accused. Furthermore, she
contends that she raised an issue of material fact regarding whether her discharge was
pretextual. In support of the latter, she alleges a long history of racial discrimination at the
State Hospital. She specifically pointed to the fact that non-African Americans were not
terminated after an independent report found them to be responsible for the death of a
patient, the incident that gave rise to her cause of action under the Arkansas Whistle-Blower
Act. She likewise alleged disparate treatment with regard to similarly situated employees of
a different gender. She again specifically cited an independent report concerning a restraint
situation in which male nurses engaged in conduct that was more egregious than the
conduct that resulted in her termination, i.e., simply closing the door of an agitated patient’s
room to allow the patient to sleep.
Summary judgment is appropriate when it is clear that there are no genuine issues of
material fact to be litigated, and the party is entitled to judgment as a matter of law. Smith
v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005). On appellate review, we determine if
summary judgment was appropriate based on whether the evidentiary items presented by
the moving party in support of the motion leave a material fact unanswered. Id. We view
the evidence in a light most favorable to the party against whom the motion was filed,
resolving all doubts and inferences against the moving party. Id. Our review focuses not
only on the pleadings, but also on the affidavits and other documents filed by the parties.
Id.
In the case before us, all of the factual allegations made by Daniel suggests that racial
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and gender animus may exist at the Arkansas State Hospital. However, the Arkansas Civil
Rights Act claims against Mains are directed against her in her individual capacity. Nowhere
can we find in Daniel’s complaint specific factual allegations against Mains that assert that she
personally acted with malice. Likewise, we can find no proof in the materials that she
submitted to oppose the appellants’ summary judgment motion that indicate that she
personally acted with malice. Accordingly, we hold that the circuit court erred when it
denied the appellant’s summary-judgment motion to dismiss the individual-capacity claims.
Affirmed in part; reversed and dismissed in part; and remanded.
HANNAH, C.J., and DANIELSON, J., concur in the disposition of the claim under the
Arkansas Whistle-Blower Act and dissent from the balance of the opinion.
CORBIN, J., concurs in part and dissents in part.
BAKER, GOODSON, and HOOFMAN, JJ., concur in part and dissent in part.
DONALD L. CORBIN , Justice, concurring in part and dissenting in part. I
concur with the majority’s disposition of the claim under the Arkansas Whistle-blower Act,
but I respectfully dissent as to the remaining points on appeal. Appellants chose to bring
forth an abbreviated record of the circuit court proceedings, and I simply cannot ascertain
from that record whether Appellants’ remaining arguments have merit.
KAREN R. BAKER, Justice, concurring in part and dissenting in part. By
misinterpreting the General Assembly’s acts, the majority has judicially created a waiver of
any and all sovereign immunity for the State under the Arkansas Whistle-Blower Act
(AWBA). The majority also errs by failing to address an entire substantive claim on appeal,
the denial of Smith’s motion for summary judgment based on sovereign immunity on the
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Arkansas Civil Rights Act (ACRA) claims. Finally, the majority’s analysis blurs the standard
adopted by this court for the review of claims of qualified or statutory immunity. I concur
in part and dissent in part.
First, the majority errs in affirming the circuit court’s denial of Smith’s motion for
summary judgment based on sovereign immunity as to the AWBA claim. The majority
erroneously concludes that the AWBA creates a blanket broad-sweeping waiver of sovereign
immunity for all claims made pursuant to the Act. Specifically, the majority holds that
because suing a state employee in his official capacity means that you have in effect sued the
State, it also means that by suing a state employee in his official capacity you have sued a
“public employer” under the AWBA. The majority holds:
We agree with appellants that when the legislature authorized a cause of action
against a “public employer” in the Arkansas Whistle-Blower Act, it expressly waived
sovereign immunity. We likewise agree that a suit against a public official in his or
her official capacity is essentially a suit against that official’s agency. See, e.g., Simons
v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007); Fegans v. Norris, 351 Ark. 200, 89
S.W.3d 919 (2002). We have held that official-capacity suits generally represent a
way of pleading a cause of action against the entity of which the officer is an agent.
Simons, supra. While it is true that the Arkansas Whistle Blower Act does not
directly state that a suit against a director of a state entity is a suit against the public
employer, in interpreting a statue, we presume that the legislature is familiar with our
decisions. Books-A-Million, Inc. v. Ark. Painting & Specialties Co., 340 Ark. 467, 10
S.W.3d 857 (2000). Accordingly, we hold that the suit against Smith in his official
capacity as chief executive officer of the Arkansas State Hospital was in effect a suit
against a public employer.
Based on this analysis, the majority has judicially created an express waiver of
immunity for the State under the AWBA for any and all actions brought under the Act.
Further, the majority supports this interpretation by stating, “We note as well that in the
style of her complaint, Daniel did name “the Department of Behavioral Sciences serving the
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Arkansas State Hospital.” This statement is incorrect. The style of Daniel’s third amended
complaint is as follows:
IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
GLORIA DANIEL PLAINTIFF
VS. NO. CASE NO. 60CV2011-0402-6
CHARLES SMITH, BETTY MAINS,
JAMES SCOGGINS, BRYAN HALL, Each individually
and in their official capacity, as employee of the
DEPARTMENT OF HUMAN SERVICES,
DEPARTMENT OF BEHAVIORAL SCIENCES,
serving the Arkansas State Hospital DEFENDANTS
Daniel clearly did not name the“public employer,” the State, or its agencies; rather she
named only individual employees in their official capacities.
Rather than affirm, I would reverse and remand the case based on the following
analysis. Public employers are traditionally entitled to sovereign immunity from suit. In
limited circumstances, the Arkansas General Assembly has created a statutory exception to
sovereign immunity. Ark. Code Ann. § 21-1-604 (Repl. 2004), “Civil action for
violation,” provides a limited waiver of immunity and allows for suit against a public
employer under this statute, which provides in pertinent part: “A public employee who
alleges a violation of this subchapter may bring a civil action for appropriate injunctive relief
or actual damages, or both.” Accordingly, pursuant to the AWBA, immunity is waived and
suit against a “public employer” is available.
The definition of “public employer” in the AWBA, is found in Ark. Code Ann. §
21-1-602 (Supp. 2013). However, in order to properly review Ark. Code Ann. § 21-1-602,
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the court must look to the surrounding applicable statutes under the AWBA.
Daniel asserts that Smith, in his official capacity as the director of ASH, retaliated
against her in violation of Ark. Code Ann. § 21-1-603 (Repl. 2004), under the AWBA,
“Retaliation prohibited,” which provides in pertinent part:
(a)(1) A public employer shall not take adverse action against a public employee because
the public employee or a person authorized to act on behalf of the public employee
communicates in good faith to an appropriate authority:
(A) The existence of waste of public funds, property, or manpower, including
federal funds, property, or manpower administered or controlled by a public
employer; or
(B) A violation or suspected violation of a law, rule, or regulation adopted
under the law of this state or a political subdivision of the state.
Id. (emphasis added).
Therefore, the narrow issue before us is whether Smith is a “public employer”
pursuant to the AWBA. Ark. Code Ann. § 21-1-602, “Definitions,” provides in pertinent
part:
(5) “Public employer” means any of the following:
(A) An agency, department, board, commission, division, office, bureau,
council, authority, or other instrumentality of the State of Arkansas, including
the offices of the various Arkansas elected constitutional officers and the
General Assembly and its agencies, bureaus, and divisions;
(B) A state-supported college, university, technical college, community
college, or other institution of higher education or department, division, or
agency of a state institution of higher education;
(C) The Supreme Court, the Court of Appeals, the Administrative Office of
the Courts, the circuit courts, and prosecuting attorneys’ offices;
(D) An office, department, commission, council, agency, board, bureau,
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committee, corporation, or other instrumentality of a county government or
a municipality or a district court, a county subordinate service district, a
municipally owned utility, or a regional or joint governing body of one (1)
or more counties or municipalities; or
(E) A public school district, school, or an office or department of a public
school district in Arkansas.
The plain reading of Ark. Code Ann. § 21-1-602(5)(A)–(E) in its entirety does not
include individuals. In fact, the statutory definition does not contain any language referring
to a person or an individual. Therefore, a plain reading of this statute demonstrates that a
“public employer” does not contemplate an individual. When a statute is clear, it is given
its plain meaning, and this court will not search for legislative intent; rather, that intent must
be gathered from the plain meaning of the language used. Lambert v. LQ Mgmt., L.L.C.,
2013 Ark. 114, 426 S.W.3d 437. Thus, an unambiguous statute presents no occasion to
resort to other means of interpretation as “[i]t is not allowable to interpret what has no need
of interpretation.” City of Little Rock v. Ark. Corp. Comm’n, 209 Ark. 18, 21, 189 S.W.2d
382, 384 (1945). Here, the language employed by the General Assembly is so plain and
unambiguous that judicial construction is limited to what was said. Based on the plain
language of Ark. Code Ann. § 21-1-602(5)(A), the waiver of immunity from suit against
a “public employer” under the AWBA is limited to a “public employer” and does not
include a waiver of immunity for individuals. “Generally, the rules of statutory
construction do not permit this court to read into a statute words that are not there.
McMillan v. Live Nation Entm’t, Inc., 2012 Ark. 166, at 6, 401 S.W.3d 473, 476–77.”
Clinical Study Ctrs., Inc. v. Boellner, 2012 Ark. 266, at 8, 411 S.W.3d 695, 700.
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Additionally, while this court has not had the occasion to interpret the term “public
employer” under Ark. Code Ann. § 21-1-602(5)(A), the Federal District Court for the
Eastern District of Arkansas has in Crosby v. Pulaski Technical College Board of Trustees, No.
4:06CV01003SWW, 2007 WL 2750672 (E.D. Ark. Sept. 18, 2007). In Crosby, Crosby
sued the Pulaski Technical College Board of Trustees (“PTC”) and Dan Bakke, the
President of PTC in his official and individual capacities; and Robert Blackiston, the Chief
of Police of PTC in his official and individual capacities, asserting among other things a
violation of the AWBA. The federal district court held as follows
[T]he Court agrees with Defendants that Blackiston and Bakke are not proper
defendants under the Whistle-Blower Act. The Act defines “public employer” as
“[a]n agency, department, board, commission, division, office, bureau, counsel,
authority, or other instrumentality of the State of Arkansas. . . .” Ark. Code Ann.
§ 21-1-602(5)(A). The definition of “public employer” does not include individuals.
In sum, the Court finds that Crosby fails to state a claim for relief under the Arkansas
Whistle-Blower Act and that this claim must be dismissed without prejudice.
Id. at *5; see Greer v. City of Warren, Civ. No. 1:10-CV-01065, 2012 WL 1014658 at *3
(W.D. Ark. March 23, 2012).1
Further, in reviewing the entire subchapter, this interpretation is supported by Ark.
Code Ann. § 21-1-604, “Civil Liability,” subsection (e)(1) provides in pertinent part: “A
public employer shall have an affirmative defense to a civil action brought by a public
employee under this subchapter.” Also, Ark. Code Ann. § 21-1-605 (Repl. 2004),
1
The majority is correct that the whistle-blower claims in Crosby were disposed of on
Eleventh Amendment grounds. Nonetheless, the district court’s interpretation that our
statutory definition of “public employer” does not include an individual supports my position.
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“Remedies,” subsection (5) provides, “The payment by the public employer of reasonable
court costs and attorney’s fees.” Both statutes specifically identify the defendant to the civil
action as the “public employer” and do not reference an individual.
Thus, the majority bypasses the General Assembly’s unambiguous language and
judicially creates a waiver of immunity that is simply not expressed or implied in the
AWBA. Because this court does not have the authority to expand the waiver of immunity
set out in the AWBA, I would hold that the circuit court erred when it denied Smith’s
claim of entitlement to sovereign immunity on the AWBA claim.
Next, the majority fails to specifically address Smith’s claim on appeal asserting that
the circuit court erred in denying Smith’s motion for summary judgment on the ACRA
claims against Smith and Mains in their official capacities based on sovereign immunity.
The majority states that the ACRA official-capacity claims are not before this court when
it states:
As we noted previously, the third amended complaint asserted no official capacity
claims against any of the defendants under the Arkansas Civil Rights Act. Although,
on appeal, appellants correctly note that the State has not waived sovereign
immunity for claims brought under the Arkansas Civil Rights Act, this statement is
of no moment because, again, it is obvious from the previously quoted PARTIES
AND JURISDICTION paragraph in the third amended complaint that the only
official capacity claim was asserted under the Arkansas Whistle-Blower Act. The
other defendants were sued only in their individual capacity.
To make matters worse, immediately after stating that the claims were not made, the
majority states the opposite, that the ACRA claims were made, by stating:
We are not saying that every part of Daniel’s complaint is likewise a model of clarity.
We are aware that the complaint states the following under COUNT II where she
asserts a cause of action for retaliation under the Arkansas Civil Rights Act, Arkansas
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Code Annotated section 16-123-108(a) and under the Arkansas Whistle-Blower Act,
Arkansas Code Annotated section 21-1-603. Sandwiched between paragraph 35
where Daniel asserts that “Smith and the individual Defendants are sued
individually” for the civil rights claims, and paragraph 38 where Daniel makes her
Whistle-Blower claim is the somewhat enigmatic paragraph 37. That paragraph
states:
Plaintiff sues all Defendants both in their official capacities [sic] for injunctive
relief. Plaintiff reported the abuse and neglect. Plaintiff was fired, designated
non-rehirable and denied the grievance process, because of her report and
because she was black.
Where there is some ambiguity in a pleading, it is not proper to construe it
in such a way as to create a barrier for a litigant to try the case, particularly where the
litigant has demonstrated elsewhere in the pleading a clear understanding of the
capacity in which the defendants are being sued.
(Emphasis added).
Ironically, the majority recognizes that (1) the ACRA official capacity claims were
made, “sandwiched between paragraphs 35 and 38, in the enigmatic paragraph 37”, (2)
recognizes that this court should not create a barrier for litigants2 but then, (3) precludes the
litigant here from making his claim on appeal. Stated differently, the majority states that the
claims were not made, but then states the claims were actually made, and the majority goes
on to preclude Smith from litigating his claim after it stated that this court should not
construe the pleadings to create a barrier for a litigant. Such an analysis is nonsensical.
2
Arkansas Rule of Civil Procedure 8(a) provides that a pleading “shall contain (1) a
statement in ordinary and concise language of facts showing that the court has jurisdiction of
the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand
for the relief to which the pleader considers himself entitled.” See also Allied Chem. Corp. v.
Van Buren Sch. Dist., 264 Ark. 810, 575 S.W.2d 445 (1979) (“Pleadings are to be liberally
construed and are sufficient if they advise a defendant of his obligations and allege a breach
of them.).
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Further, the “PARTIES AND JURISDICTION” section simply does not provide
that “the only official capacity claim . . . asserted [was] under the Arkansas Whistle-Blower
Act. The other defendants were sued only in their individual capacity,” as the majority
contends. This is wrong. The majority fails to recognize that the PARTIES AND
JURISDICTION section states in its entirety:
Plaintiff is a black female resident and citizen of the State of Arkansas, who,
formerly worked for the Department of Human Services AND DEPARTMENT
OF BEHAVIORAL SCIENCES at the Arkansas State Hospital, an instrumentality
of the State of Arkansas. Charles Smith is the Administrator of the Arkansas State
Hospital, who is sued in his official capacity only under the Whistleblower’s Act.
Charles Smith . . . [and] Betty Mains were employees who participated in the
decision to terminate the Plaintiff because she is black and female, and each is sued
in their individual capacity. This is an action also brought for termination in
violation of the ACRA and the Arkansas Whistleblower’s Act. But this action is
brought under the ACRA, 42 USC 1983 and 42 USC 1981 only against the
individual Defendants. Accordingly, this court has subject matter jurisdiction.
Venue is proper. To the extent not otherwise dismissed by the Court, the previous
Complaints are incorporated by reference.
As the majority recognizes, I agree that this language is not a “model of clarity,” but
the language asserts both individual and official capacity claims. The style of the complaint,
the PARTIES AND JURISDICTION section and the complaint itself all state that
defendants are sued in their official capacities.
In sum, the majority’s analysis is fatally flawed. We cannot recognize that the
official-capacity ACRA claims were made but then hold that that “is of no moment.”
Simply put, the record does not support the majority’s analysis on these claims. Rather, a
careful review of the entire record demonstrates otherwise. The following supports that the
ACRA official-capacity claims are before this court and must be addressed: (1) Daniel’s
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third amended complaint, (2) Smith’s motion for summary judgment and brief in support,
(3) the circuit court’s hearing and written order, (4) Smith’s brief before this court on
appeal, and (5) Daniel’s brief before this court on appeal.
First, in Daniel’s third amended complaint, in the style of her complaint she has sued:
CHARLES SMITH, BETTY MAINS, JAMES SCOGGINS, BRYAN HALL,
Each individually and in their official capacity, as employee of the DEPARTMENT
OF HUMAN SERVICES, DEPARTMENT OF BEHAVIORAL SCIENCES,
serving the Arkansas State Hospital.
Additionally, in paragraph 31 of her complaint, Daniel asserted:
Each Defendant has deprived [Daniel] of a federally protected property right
without due process in violation of the 5th and 14th Amendments and the ACRA,
as well as discriminated against her on the basis of her race and gender and denied
her Equal Protection by terminating her under circumstances similarly situated
whites or males were not.
Further, as discussed above, in paragraph 37 of her complaint she asserted:
[Daniel] sues all Defendants both in their official capacities for injunctive relief.
[Daniel] reported the abuse and neglect. Plaintiff was fired, designated non-
rehireable and denied the grievance process, because of her report and because she
was black.
Second, the ACRA official-capacity claims were presented in Smith’s motion for
summary judgment and brief in support. In paragraph 5 of Smith’s motion, he states “The
official capacity Arkansas Civil Rights Act claims are barred by sovereign immunity.” Also,
in his brief in support of his motion for summary judgment, in “IX. Defendants Are
Immune From Plaintiff’s Claims,” Smith asserted:
If allowed to proceed, Daniels[’] Third Amended Complaint ostensibly
purports to raise race and gender discrimination claims under both state and federal
theories. Defendants are immune from the claims. Defendants are immune in their
official capacities under Article 5, § 20 of the Arkansas Constitution.
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Further, subsection (A) of Smith’s brief in support entitled, “Official Capacity Claims –
Article 5, Section 20,” specifically addresses the ACRA official-capacity claims on pages
27–28.
Third, the record from the circuit court’s December 23, 2013 hearing on the motion
for summary judgment demonstrates that the ACRA official-capacity claims were
presented, summary judgment was denied, and the claims remain in the case. In granting
in part and denying in part Smith’s motion for summary judgment, the following colloquy
occurred:
CIRCUIT COURT: All right . . . And then everything else, [Attorney
General] - - and if you want to put in there the
arguments with respect to sovereign immunity, . . . I’m
denying all the rest of it, okay? All right. And I need
you to get me an order so that we’ll have that
memorialized.
....
ATTORNEY GENERAL: Since you’re denying our motion for summary
judgment on qualified immunity statutory immunity
grounds, I intend to take an interlocutory appeal.
CIRCUIT COURT: That’s why I told you that you could put it in the
order, since you’ve raised those things - - you all have
the right to make your record.
Now, I’m just telling you, I’m not ruling on any - -
that doesn’t require me to rule on that. But you get me
whatever it is that you want. I’m not so certain that
that creates an automatic stay.
....
PLAINTIFF’S COUNSEL: If it does, what I’m going to do - - . . . if this thing is
stayed, then I’m going to dismiss the individual claims,
whatever the basis for an interlocutory appeal is because
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I want to go to trial and get this case over.
ATTORNEY GENERAL: May I - - point of clarification.
....
CIRCUIT COURT: I’m denying the motion in all other respects.
....
ATTORNEY GENERAL: So that I’m clear, the only things you granted are there
are no individual claims against Charles Smith.
CIRCUIT COURT: There was no service [on the individual claims] and so
that’s dismissed with prejudice.
ATTORNEY GENERAL: And no “whistle blower” claim against Betty Ma[i]nes?
CIRCUIT COURT: That is correct.
ATTORNEY GENERAL: Okay.
CIRCUIT COURT: It was time barred.
Accordingly, the circuit court ruled that the ACRA claims survived Smith’s motion
for summary judgment and remained in the case. The circuit court denied “all the rest” of
the grounds and the ACRA official-capacity claims remained. This same ruling is
memorialized in the circuit court’s written order, which the majority quotes in its opinion,
“[T]he court has considered all of the other arguments for summary judgment submitted
by the Defendants and finds that summary judgment should be denied as to each
argument.”
Fourth, Smith’s brief on appeal demonstrates that the ACRA official-capacity claims
were presented, denied summary judgment on, and remain in the case. Smith has clearly
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raised the ACRA official-capacity claims on appeal. In his brief on pages 2–3, Smith
presents the ACRA official-capacity claims on appeal:
Daniel’s claims against Smith and Mains in their official capacities are barred by
express constitutional declaration. Article 5, section 20, of the Arkansas Constitution
provides: “The State of Arkansas shall never be made a defendant in any of her
courts.”
....
[T]he Arkansas Civil Rights Act (“ACRA”) specifically states that it does not waive
the immunity of the state of Arkansas. Ark. Code Ann. § 16-123-104. . . . Thus,
Daniel’s claims of retaliation, race, and gender discrimination against Defendants in
their official capacities under ACRA are claims against the State of Arkansas, and the
State of Arkansas has not consented to suit. As a result, the claims are barred.
Additionally, on page 16, Smith states as follows:
The ACRA official capacity claims are barred by sovereign immunity.
Fifth and finally, in her response brief to Smith, Daniel generally responds to Smith’s
argument on sovereign immunity and does not assert that the ACRA official-capacity claims
are not before the court.
Accordingly, based on the record before the court discussed above, I would address
this claim based on the following analysis.
Ark. Code Ann. § 16-123-104, “Sovereign immunity not waived,” of the ACRA
provides: “Nothing in this subchapter shall be construed to waive the sovereign immunity
of the State of Arkansas.” In Simons, 369 Ark. 447, 450–51, 255 S.W.3d 838, 840–41, we
addressed sovereign immunity and its application to public employees in their official
capacities and the ACRA. In that case, Simons, an Arkansas State Trooper, was sued in his
official capacity, including an ACRA claim. Simons responded with a motion to dismiss,
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asserting that he was entitled to sovereign immunity. The circuit court denied his motion
to dismiss; we reversed and remanded and held that Simons was entitled to immunity. In
our discussion of the doctrine of sovereign immunity we explained:
Sovereign immunity is jurisdictional immunity from suit. This defense arises
from Article 5, Section 20 of the Arkansas Constitution, which provides: “The State
of Arkansas shall never be made a defendant in any of her courts.” This court has
consistently interpreted this constitutional provision as a general prohibition against
awards of money damages in lawsuits against the state and its institutions. The
doctrine of sovereign immunity is rigid and may only be waived in limited
circumstances.
With regard to actions under the Arkansas Civil Rights Act, the General Assembly
specifically reserved the state’s right to immunity from suit. Section 16-123-104,
provides that “[n]othing in this subchapter shall be construed to waive the sovereign
immunity of the State of Arkansas.” As a result, this court has previously rejected
arguments that there was an intent to waive the state’s sovereign immunity within
the confines of the civil rights act.
We agree with Simons that Marshall’s action against him in his official capacity as an
Arkansas State Trooper is tantamount to a suit against the state. This court has held
that “[a] suit against a state official in his or her official capacity is not a suit against
that person, but rather is a suit against that official’s office.” We have further
elaborated that official-capacity suits generally represent but another way of pleading
an action against the entity of which the officer is an agent.
Id. at 450-451, 255 S.W.3d at 840–41 (internal citations omitted) (quoting State v. Goss, 344
Ark. 523, 526, 42 S.W.3d 440, 442–43 (2001)).
Here, Smith and Mains, like Simons, have been sued in their official capacities for
claims under the ACRA and are also entitled to sovereign immunity. As we explained in
Simons above, the doctrine of sovereign immunity is rigid and can be waived only in limited
circumstances. “This court has recognized three ways in which a claim of sovereign
immunity may be surmounted: (1) where the State is the moving party seeking specific
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relief; (2) where an act of the legislature has created a specific waiver of sovereign immunity;
and (3) where the state agency is acting illegally or if a state agency officer refuses to do a
purely ministerial action required by statute.” Ark. Game & Fish Comm’n v. Eddings, 2011
Ark. 47, at 6, 378 S.W.3d 694, 698 (internal citations omitted). These exceptions to
immunity are not applicable to the case before us.
Based on the record before the court, art. 5, section 20, of the Arkansas Constitution,
and Simons, Smith and Mains are entitled to sovereign immunity. Pursuant to our standard
of review, I would hold that the circuit court erred in denying Smith’s motion for summary
judgment on the ACRA official-capacity claims based on sovereign immunity.
Next, I concur in the majority’s result on Smith’s final argument that the circuit
court erred when it denied Smith’s motion for summary judgment regarding the ACRA
claim against Mains in her personal capacity. However, I write separately because the
majority fails to apply the correct analysis adopted and applied in cases such as these by this
court. Rather, the majority applies the traditional summary-judgment standard which is not
the standard to be applied in cases such as Smith’s. The majority holds that
[Daniel] notes that there is a spoliation issue associated with a video tape that she
believes would exonerate her. Further, she notes that she denied the conduct of
which she was accused. Furthermore, she contends that she raised an issue of material
fact regarding whether her discharge was pretextual. In support of the latter, she
alleges a long history of racial discrimination at the State Hospital. She specifically
pointed to the fact that non-African Americans were not terminated after an
independent report found them to be responsible for the death of a patient, the
incident that gave rise to her cause of action under the Arkansas Whistle-Blower Act.
She likewise alleged disparate treatment with regard to similarly situated employees
of a different gender. She again specifically cited an independent report concerning
a restraint situation in which male nurses engaged in conduct that was more
egregious than the conduct that resulted in her termination, i.e., simply closing the
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door of an agitated patient's room to allow the patient to sleep.
Summary judgment is appropriate when it is clear that there are no genuine issues of
material fact to be litigated, and the party is entitled to judgment as a matter of law.
Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005). On appellate review, we
determine if summary judgment was appropriate based on whether the evidentiary
items presented by the moving party in support of the motion leave a material fact
unanswered. Id. We view the evidence in a light most favorable to the party against
whom the motion was filed, resolving all doubts and inferences against the moving
party. Id. Our review focuses not only on the pleadings, but also on the affidavits and
other documents filed by the parties. Id.
This analysis is incorrect. Although the parties both cite to the correct standard, the
majority fails to apply that standard, but instead applies the traditional summary judgment
standard and disposes of the claim. This is simply wrong. Rather, this court must look to
the specific allegations made against Mains that entitle Daniel to relief, but the majority has
blurred the standard for summary judgment required to be applied to these cases. See Smith
v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005); Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919
(2002).
In deciding whether Mains is entitled to statutory or qualified immunity, this court
must first determine what statutory or constitutional violations Daniel has alleged. In her
third amended complaint, Daniel claimed that Mains violated her rights under the ACRA
by terminating Daniel without cause and further alleged that she was discriminated against
based on race and gender. Specifically, Daniel sued “[Mains] individually for First
Amendment retaliation, harassment, coercion, and violation of Plaintiff’s right to
remonstrate under the Arkansas Civil Rights Act as allowed by Ark. Code Ann. § 16-123-
105 and Ark. Code Ann. § 16-123-108(a) and (b).”
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Under Ark. Code Ann. § 21-9-301 (Repl. 2004), the State and its agencies enjoy
immunity from suit except to the extent it may be covered by liability insurance, or acts as
a self-insured for certain amounts as provided by statute. Smith, 363 Ark. 126, 211 S.W.3d
485. “Despite this grant of statutory immunity, a state officer or employee may still be liable
in a personal capacity. This court stated that suits against officers and employees alleged to
be malicious are suits against the officers or employees personally, and they are liable to the
extent anyone would be liable under tort law.” Sullivan v. Coney, 2013 Ark. 222, at 6, 427
S.W.3d 682, 685. In Smith, we explained our analysis for qualified or statutory immunity:
In interpreting section 19-10-305, we have traditionally been guided by the
analysis adopted by the Supreme Court for qualified-immunity claims in federal
civil-rights actions. Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002); Rainey v.
Hartness, [339 Ark. 293, 5 S.W.3d 410 (1999)]. Under that analysis, a motion for
summary judgment based upon qualified immunity is precluded only when the
plaintiff has asserted a constitutional violation, demonstrated the constitutional right
is clearly established and raised a genuine issue of fact as to whether the official would
have known that the conduct violated that clearly established right. Fegans v. Norris,
supra (citing Baldridge v. Cordes, 350 Ark. 114, 120–21, 85 S.W.3d 511, 514–15
(2002)). An official is immune from suit if his or her actions did not violate clearly
established principles of law of which a reasonable person would have knowledge.
Id. (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)). The objective
reasonable-person standard utilized in qualified-immunity analysis is a legal inquiry.
Baldridge v. Cordes, supra.
The inquiry outlined above is a restatement of the standard used by this court to
evaluate motions for summary judgment on the ground of qualified immunity. See
Baldridge v. Cordes, supra (citing Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir.
2000)). The Eighth Circuit Court of Appeals has emphasized, however, that such a
restatement of the standard is incomplete: “Courts deciding questions of qualified
immunity must also recognize that ‘whether summary judgment on grounds of
qualified immunity is appropriate from a particular set of facts is a question of law’.”
Pace v. City of Des Moines, 201 F.3d at 1056 (citing Lambert v. City of Dumas, 187
F.3d 931, 935 (1999)).
Smith, 363 Ark. at 130–31, 211 S.W.3d at 488–89.
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Therefore, “[a]n official is immune from suit if his or her actions did not violate
clearly established principles of law of which a reasonable person would have knowledge.
We have noted that this objective reasonable-person standard is a legal inquiry and that
whether summary judgment on grounds of qualified immunity is appropriate from a
particular set of facts is a question of law.” Sullivan, 2013 Ark. 222, at 6, 427 S.W.3d at 685
(internal citations omitted).
In applying the analysis adopted by this court to this case, Daniel has alleged that her
protected activity, the report to Smith in 2009, her First Amendment rights and her race
and gender, were the bases for her termination in violation of the ACRA. However, Daniel
has failed to raise a genuine issue of fact as to whether Mains would have known that her
termination of Daniel violated her rights. In addition, Daniel does not allege any facts
connecting Mains to an ACRA violation. The record demonstrates that Mains terminated
Daniel thirteen months after the report, over a year after an alleged violation of the protected
right had occurred. Instead, Daniel asserts only the conclusory allegations: “Defendants
acted with malice, were willful, and wanton. Accordingly, [Daniel] seeks punitive damages
against [Mains], in [her] individual capacity.” Daniel also makes only conclusory allegations
that she was terminated because of her race and gender: “Each defendant . . . discriminated
against her on the basis of her race and gender . . . by terminating her under circumstances
similarly situated whites or males were not. [Daniel] was terminated because she is black and
a female.” These conclusory allegations are not sufficient to create a question of fact that
will survive a motion for summary judgment based on qualified or statutory immunity. See
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Sullivan, supra; see also City of Fayetteville, supra.
In sum, Daniel has failed to demonstrate, and the record fails to demonstrate that
Mains could have reasonably known that her termination of Daniel’s employment would
violate Daniel’s rights. Accordingly, the circuit court erred in denying immunity to Mains.
Because Smith and Mains are entitled to immunity on the AWBA and ACRA claims,
I would hold that the circuit court erred in denying Smith’s motion for summary judgment.
Therefore, I respectfully concur only as to the result reached by the majority
concerning the ACRA claims against Mains in her individual capacity and respectfully
dissent from the remainder of the majority opinion.
GOODSON, J. and HOOFMAN, J., join.
Dustin McDaniel, Att’y Gen., by: Gary L. Sullivan, Ass’t Att’y Gen., for appellants.
Sutter & Graham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellee.
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