filed - arkansas times · arkansas highway police, ... and the statutory and common law of the...

IN THE UNITED STATES DISTRICT COURT

FILED U.S DIS 11{11' ! t:O\J!n

EASTtRN Dl511~K: 1 AH!<.ANSAS

MAY'2 0 2013

EASTERN DISTRICT OF ARKANSAS JAMES W. McCOHMACK. CLERK WESTERN DIVISION By· '$iZVo K

DARREN SMITH

v. No. 4·.\3w30\ J~~

ARKANSAS HIGHWAY POLICE, a Division of the Arkansas State Highway and Transportation Department, a Public Body Corporate; RON BURKS, Individually

' CEP CL.Ii'.lt

PLAINTIFF

and as Chief of the Arkansas Highway Police; SCOTT BENNETT, Individually and as Director of the This case assigned to District Judge \-\si\rO.) Arkansas State Highway and Transportation Departme~d to Magistrate Judge · U(;?e(C.,.. MAJOR PAUL CLAUNCH; CAPTAIN JEFF HOLMES; and .. LIEUTENANT JAMES "BOOBIE" MOORE DEFENDANTS

COMPLAINT

Comes Plaintiff, Darren Smith, and for his Complaint against the D~fendants states:

1. This is an action pursuant to and authorized by 42 U.S.C. §§ 1981, 1983, and

2000(e); 28 U.S.C. § 1343; and the statutory and common law of the State of Arkansas.

THE PARTIES

2. Plaintiff Darren Smith is an African-American citizen of the United States who

resides in Crawford County, Arkansas. He was an employee of Defendant Arkansas

Highway Police prior to the termination of his employment on July 9, 2012.

3. Defendant Arkansas Highway Police ("AHP") is a division of the Arkansas

State Highway and Transportation Department ("AHTD"). Its principal office or place of

business is located in Little Rock, Pulaski County, Arkansas.

4. AHP is an "employer" generally and was the Plaintiffs "employer" under

Title VII of the 1964 Civil Rights Act and all other applicable laws.

Case 4:13-cv-00301-JLH Document 1 Filed 05/20/13 of 29

5. At all relevant times, Defendant Ron Burks was the chief of the Arkansas

Highway Police. He is liable for his actions taken in his capacity as chief of the Arkansas

Highway Police and in his individual capacity for actions taken in the course and scope of

his employment as chief of the Arkansas Highway Police.

6. At all relevant times, Defendant Scott Bennett was the director of the

Arkansas State Highway and Transportation Department. In that capacity, the Arkansas

Highway Police operated under his supervision and he was the supervisor of Defendant

Ron Burks.

7. At all relevant times, Defendant Paul Claunch held the rank of major in the

AHP. He is liable for his actions taken in his capacity as a supervisor and/or officer of

superior rank of the Arkansas Highway Police and in his individual capacity for actions

taken in the course and scope of his employment with the Arkansas Highway Police.

8. At all relevant times, Defendant Jeff Holmes held the rank of captain in the

AHP. He is liable for his actions taken in his capacity as a supervisor and/or officer of

superior rank of the Arkansas Highway Police and in his individual capacity for actions

taken in the course and scope of his employment with the Arkansas Highway Police.

9. At all relevant times, Defendant James "Boobie" Moore held the rank of

lieutenant in the AHP. He is liable for his actions taken in his capacity as a supervisor

and/ or officer of superior rank of the Arkansas Highway Police and in his individual

capacity for actions taken in the course and scope of his employment with the Arkansas

Highway Police. The nickname "Boobie" Moore is used to distinguish Defendant from

another employee of AHTD who also is named James Moore.

Page2 of 26


ADMINISTRATIVE PREREQUISITES

10. Plaintiff filed timely complaints or charges of employment discrimination

based upon race and retaliation against Defendants with the United States Equal

Employment Opportunity Commission (EEOC) following the termination of his

employment with AHP. The allegations and adverse employment actions which were the

subject of those charges are the subject of this action. This action is filed within 90 days of

the date on which the Plaintiff received the earliest notice of right to sue from the EEOC.

Copies of the right-to-sue letters are attached as Exhibit A to this Complaint.

FACTS

Initial Hiring and Promotions

11. Plaintiff was hired by the AHP in May 2001 and was commissioned as a state

law enforcement officer.

12. Plaintiff graduated the training academy in October 2001 and was assigned

to Crittenden County area way stations in West Memphis and Marion, Arkansas.

13. Plaintiff was promoted to private first class upon completion of one year of

service in June 2002.

14. Plaintiff was given merit raises for service above and beyond the call of duty

and exceptional performance on numerous occasions between 2003 and 2006. These

merit raises demonstrate that his job performance was more than satisfactory.

Discrimination Involving Promotion to Sergeant and Necessity of Filing Grievance to Obtain Promotion

15. Plaintiff applied for promotion to a sergeant's position in Defendant Burks'

Page3of 26


office in April 2009. He was denied the promotion. The promotion was given to a white

male officer with equal rank, less education, fewer law enforcement certificates, and who

was promoted by an all-white panel which included Defendant Burks.

16. After being denied the promotion to sergeant as described above, Plaintiff

filed a grievance in accord with AHP employment procedures and received another

interview for another sergeant's position.

17. As a result of the grievance, Plaintiff was promoted to sergeant in November

2009.

18. In addition, as a result of the grievance, the interview process was changed in

two important respects thereafter. First, Chief Burks was removed or removed himself

from the interview process. Second, the interviews occurring since Plaintiffs grievance are

recorded. Prior to that time, the interviews were not recorded and the panel reviewing

candidates for promotions had a much greater opportunity to promote individuals, or to

decline to promote individuals, for illegal and discriminatory reasons without meaningful

oversight or review.

19. Plaintiff was promoted to Motor Vehicle Safety Inspector in November 2011.

Plaintiffs Testimony in Race Discrimination Case Against AHP Filed by a Fellow Officer

20. Ricky Smith, another African-American employee of AHP, filed a race-

discrimination case against AHP.

21. On November 10, 2011, Plaintiff gave deposition testimony in the Ricky

Smith matter. Plaintiffs testimony included statements concerning the attitude of Chief

Burks toward minority officers in the AHP. Plaintiffs testimony was or could be perceived

Page4of 26


as being unfavorable or negative concerning Chief Burks, specifically insofar as Burks'

attitude toward African-Americans generally and African-American employees of AHP

specifically are concerned.

2 2. As a result of the deposition testimony of Plaintiff, Chief Burks had increased

animus against Plaintiff, which was amplified by virtue of the fact that Plaintiff was an

African-American testifying about Chief Burks' racial animus in a discrimination complaint

brought by another African-American.

Plaintiffs January 2011 Grievance, Defendant Burks' Decision Against Plaintiff. and Grievance Panel's Overruling Burks

23. In January 2011, Plaintiff filed a grievance with AHTD/AHP referencing the

absence of a citizens' complaint policy within the entire department. Defendant Burks

disagreed with Plaintiff, stating that there was no need for development of such a policy.

24. Plaintiff appealed Defendant Burks' decision to the next level, which is a

grievance panel. That same month, the grievance panel decided the matter in favor of

Plaintiff and AHTD I AHP had to initiate a department-wide change and develop a complaint

policy.

25. The prior policy was essentially under the complete discretion of Defendant

Burks, including the option of doing nothing at all about a complaint. The new policy is that

all complaints will be investigated. One impact of the change in policy was that Defendant

Burks lost the ability to have virtually unfettered discretion over how citizen complaints

are handled.

PageS of 26


Defendant Burks' Overruling Plaintiffs Reprimand of Subordinate Employee

26. In May 2011, Plaintiff counseled a Caucasian AHP officer by giving him a

written reprimand for violating an order given him by Plaintiff. This action by Plaintiff was

within the scope of authority of his rank at that time, which was sergreant. ·

27. Subsequently, Chief Burks, a Caucasian, overturned that disciplinary action

without informing Plaintiff that he did so, even though Plaintiff, as sergeant, was that other

officer's supervisor.

28. While this action is not a direct adverse employment act against Plaintiff

resulting in a demotion, denied promotion, or loss of earnings, it was nevertheless an

adverse employment action because Chief Burks undermined Plaintiffs authority over

subordinate officers.

Merit Raises Grievance, Initial Decision in Favor of Plaintiffs Position, Subsequent Overruling of Decision

29. Subsequently, Plaintiff filed two employee grievances under AHTD I AHP

procedures concerning merit raises and a discrimination complaint in June 2011. The first

grievance concerned Plaintiffs not receiving a merit raise. The second centered on the lack

of standards for determining merit raises.

30. After reviewing the first grievance, the division head of human resources,

Crystal Woods, determined the grievance to be a matter alleging retaliation discrimination.

31. Director Bennett ordered an investigation by the internal EEO section on the

grievance and complaint. James Moore, who was EEO section head of the AHTD and who is

not the same person as Defendant James "Boobie" Moore, investigated the matter and

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Case 4:13-cv-00301-JLH Document 1 Filed 05/20/13 Page 6 of 29

reached and reported conclusions which were favorable to Plaintiff, and then retired.

32. After Mr. Moore retired, another employee was instructed by the director of

AHTD to redo the findings so that they were unfavorable to Plaintiff.

Plaintiffs Promotion to Motor Carrier Safety Inspector. Paving the Way for Eventual Promotion to Captain: Discrimination in Promotion to Lieutenant and Captain

33. On November 17,2011, Plaintiff was promoted to Motor Carrier Safety

Inspector.

34. Upon his promotion to Motor Carrier Safety Inspector, Plaintiff was

immediately eligible for promotion to the ranks of second lieutenant and first lieutenant.

35. This promotion also opened the way for Plaintiff to be promoted to captain.

The rank of captain is considered to be an upper management position within AHP.

36. Under Defendant Burks' tenure only Caucasians were promoted into the

ranks of second lieutenant and first lieutenant.

Defendants' Discrimination Shown by the Fact that the Only Black Officer to Reach the Rank of Captain Had to File a Discrimination Action in Order to be Eligible For It

37. Prior to the time Plaintiff was terminated, only one black employee had held

the rank of captain in AHP.

38. That individual, Joe Black, had been discriminatorily denied promotion prior

to his becoming captain and had filed a lawsuit against AHP. As part of that individual's

settlement of his lawsuit with AHP, he was given the rank of first lieutenant, which made

him eligible for the rank of captain. But for his lawsuit which ultimately placed him in the

position of first lieutenant, he never would have been eligible for being elevated to the rank

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of captain.

39. No African American other than Joe Black, whose advancement would have

been blocked by AHP's discriminatory conduct had it remained unchallenged through legal

proceedings, has held the rank of captain or higher in the more than 80 years of AHP's

existence.

The February 2012 Grievance and the Termination of Plaintiffs Employment

40. In February 2012, Plaintiff filed a grievance concerning reimbursement of

certain expenses.

41. A hearing was held on Plaintiffs grievance in February 2012. His grievance

was denied.

42. After the grievance hearing, while Defendant Burks was still being

investigated by the AHTD EEO section for alleged employment discrimination and

retaliation, Defendant Burks placed Plaintiff under internal investigation concerning the

hearing with the apparent goal of terminating Plaintiffs employment.

43. The AHTD I AHP grievance panel was comprised entirely of Caucasian

members.

44. After the grievance concerning moving expenses was denied, Plaintiff

continued to perform his job duties for several months without knowledge of the fact that

Defendant Burks had placed him under internal investigation, with the apparent goal of

terminating Plaintiffs employment.

45. Chief Burks recommended termination of Plaintiffs employment on the

ground that he lied in the grievance hearing.

Page8of 26


46. Based on the recommendation of Chief Burks, the director of AHTD

terminated Plaintiff's employment. The purported reason was Plaintiff's dishonesty in the

form of making untrue or misleading statements in the grievance hearing.

4 7. Plaintiff did not make any untrue statements in the grievance hearing.

48. The issues concerned his compliance with a residency requirement and

reimbursement of certain moving expenses.

49. In the course of the grievance evidence was produced showing that another

employee received reimbursement for the same type of expenses which had been denied to

Plaintiff.

50. This issue concerned paying relatives of the employee for assistance in

moving when a new position with the AHP required relocation. Plaintiff was seeking

reimbursement for moving expenses paid to some family members to assist by providing

physical labor. The other employee who had received reimbursement for the same kind of

expenses also had made the claim for the services of family members. Chief Burks knew

this but did not disclose it to the grievance panel. To the contrary, he made statements

designed to hide this fact from the grievance panel. He therefore was guilty of the same

conduct which he used as justification for terminating Plaintiffs employment, even if

Plaintiff had in fact made untrue statements.

51. While untruthfulness before the grievance panel was the reason given for the

termination of Plaintiff's employment, Chief Burks has not suffered any discipline

whatsoever as a result of his own misleading statements to the grievance panel.

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CLAIMS AND CAUSES OF ACTION

COUNT I: VIOLATION OF PROHIBITION AGAINST DISCRIMINATION IN EMPLOYMENT BASED ON RACE

This Count Seeks Relief From Defendants for Various Acts of Discrimination During Plaintiffs Employment With AHP Which

Were Motivated Wholly or in Part by Racial Animus Based on the Fact that Plaintiff is an African-American

52. Plaintiff incorporates by reference all allegations made previously.

53. As an African-American, Plaintiff was a member of a class protected under

Title VII and other applicable federal and state laws against racially-based discrimination

by his employer or by its supervisory personnel.

54. Because AHP is a governmental entity, the acts of discrimination against

Plaintiff violate the provisions of Title VII of the Civil Rights Act of 1964, as amended,

including but not limited to 42 U.S.C. §§ 2000e et seq., 1981, and 1983.

55. Defendants engaged in unlawful employment practices against Plaintiff by

discriminating against him in his employment based, in whole or in part, upon his race, as

detailed in the preceding paragraphs and as may further be developed in this action.

Examples of Other Acts of Discrimination

Promotion of Officer Exhibiting Racially Discriminatory Attitudes and Placing Him in a Supervisory Position Over Plaintiff

56. Defendants discriminated against Plaintiff by promoting Defendant First

Lieutenant James "Boobie" Moore, a Caucasian whom Defendants knew or should have

known had used racial slurs against one or more African Americans and exhibited

discriminatory attitudes and practices towards African Americans in the past and, further,

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in placing Moore in a position in which he was Plaintiffs supervisor.

57. Moore received official discipline in the form of counseling over the incident.

This occurred as a result of information provided by Plaintiff.

58. Subsequently, Lt. Moore exercised his discretion to deny Plaintiff merit

raises.

Disparate Treatment in Discipline Exemplified by Subjecting White Officers Who Engaged in Conduct Which Violated AHP Rules and Was Similar to or Worse Than That Which Plaintiff Was Accused of Committing to Lesser Sanctions Than Termination

59. Defendants engaged in prohibited racial discrimination by terminating

Plaintiffs employment for alleged reasons for which it did not terminate the employment

of Caucasian employees who committed the same or similar violations of AHP policies.

60. For reasons relating to personal privacy of those involved, in this pleading

certain officers or employees of AHP are referred to by letter designations rather than by

their full names. It may be necessary in further proceedings to disclose the names of each

of these employees.

Example: Officer A

61. Defendants discriminated against Plaintiff by termination of his employment

for an alleged offense for which another AHP officer, a Caucasian referred to herein as

Officer A, was punished less severely even though he committed the same or more

egregious violations of policy. Officer A violated internal AHTD/AHP rules and/or

applicable laws by engaging in a sexual relationship with a subordinate employee, at least

some of which acts occurred during his working hours on state property.

62. Officer A was demoted and received a suspension for his action, rather than

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termination as suffered by Plaintiff. The disciplinary decision concerning Officer A was

made by Defendant Burks.

63. In addition, Officer A was given several merit raises and eventually promoted

back to the supervisory position from which he had been demoted.

64. After receiving this promotion, Officer A was demoted once again for

violation of the AHTD I AHP code of conduct or agency rules and/ or for insubordination.

Shortly after being demoted a second time, Officer A was involved in another incident

involving violation of AHTD I AHP rules which resulted in damage to a vehicle owned by the

state of Arkansas.

65. Unlike Plaintiff, Officer A was allowed to resign, which preserved his ability

to be employed by other law enforcement agencies. Plaintiff was not given this option.

66. As a result of his decision to resign, Officer A faced no further disciplinary

action which would be reflected on his employment record.

67. Defendants also allowed Officer A to be listed as being eligible for rehire by

the department. Defendant AHP, presumably at the direction of or with the knowledge of

Defendant Burks, has told at least one prospective employer that Plaintiff is not eligible for

rehire even though the alleged conduct for which he was terminated is less egregious or at

least no more egregious than that of Caucasian Officer A

Examples: Officers B. C. D. and E

68. Defendants discriminated against Plaintiff by terminating his employment

for an offense for which other officers, referred to herein by letter designations B, C, D, and

E, were punished less severely for the same or more egregious violation of policy. Each of

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these officers violated the AHTD I AHP code of conduct by dishonesty about the location of

his residence and not complying with AHP's domicile policy.

69. AHP initiated an internal investigations into the issue of these officers'

residences. Each was dishonest with his commanding officer in the course of this

investigation. Each admitted that he was violating the residency policy and that he had

been dishonest only after being confronted with evidence against him by his commanding

officer.

70. Officer B's discipline for this dishonesty in violation of AHP policy was to

receive a suspension. Defendant Burks made the decision concerning this discipline.

71. Officer C's discipline for this dishonesty in violation of AHP policy was to

receive a suspension and transfer. Defendant Burks made the decision concerning this

discipline.

72. Officer D's discipline for this dishonesty in violation of AHP policy was to

receive a suspension, demotion, and transfer. Defendant Burks made the decision

concerning this discipline.

73. Officer E's discipline for this dishonesty in violation of AHP policy was to

receive a suspension, demotion, and transfer. Defendant Burks made the decision

concerning this discipline.

7 4. None of these officers was terminated for lying to AHP. All are Caucasian.

Example: Officer F

75. Officer F, a Caucasian, cheated during oral examinations and interviews for

possible promotion.

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76. Officer F's discipline for this dishonesty in violation of AHP policy was to be

allowed to voluntarily resign. This voluntary resignation kept open Officer F's ability to be

hired by another law enforcement agency, while termination for dishonesty would have

foreclosed that option. Defendant Burks made the decision concerning this discipline.

Example: Officer G

77. Officer G, a Caucasian, lied to supervisors about monitoring a vehicle with a

GPS device.

78. Officer G's discipline was to be allowed to voluntarily resign. This voluntary

resignation kept open Officer G's ability to be hired by another law enforcement agency,

while termination for dishonesty would have foreclosed that option. Defendant Burks

made the decision concerning this discipline.

Examples: Officers H, L I. and K

79. Officers H, I, J, and K, all of whom are Caucasian, violated the AHP code of

conduct and/or other laws and regulations by falsely claiming reimbursements which each

knew he was not entitled to receive because he had not actually spent the money for which

the reimbursement was claimed.

80. Not only was each such act an act of fraud and for dishonesty but also

involved the improper and/or illegal receipt of public funds.

81. Chief Burks decided to impose no disciplinary sanctions against any of the

individuals.

Examples: Employees Land M

82. Employees Land M, both of whom are Caucasian, sexually harassed

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subordinate employees and each lied during the investigation into their acts.

83. M engaged in acts of retaliation against the employee who reported his

harassing conduct.

84. L received a ten-day suspension. M received no disciplinary sanction

because he was allowed to voluntarily retire with no disciplinary sanction on his record.

Conclusion: Defendants Engaged in Disparate Treatment Racial Discrimination Against Plaintiff

85. At all relevant times, Defendants knew that the discriminatory conduct

complained of herein against Plaintiff was without cause because Plaintiff consistently

satisfied and/or exceeded all of the requirements of his position.

86. At all relevant times, Defendants knew that the discriminatory conduct

complained of herein against Plaintiff was without cause because termination was not a

sanction which typically was issued against employees committing the same or similar or

worse offenses than that which was the proffered reason for termination of Plaintiffs

employment.

87. Defendants' proffered reason for terminating Plaintiffs employment was a

pretext for the actual reason of discrimination based on race.

88. As a result of Defendants' employment policies, procedures, and practices,

Plaintiff was intentionally, unjustly and discriminatorily deprived of equal employment

opportunities because of his race.

89. The actions of Defendants were done with malice and/or under

circumstances from which malice can be inferred.

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COUNT II: RETALIATION

This Count Seeks Relief for Retaliatory Actions Actions Interfering With Plaintiffs Prospective Employment

With a New Employer Following the Illegal and Wrongful Termination of His Employment With AHP


91. Following the termination of his employment with AHP, Plaintiff applied for

positions with the Arkansas Department of Correction ("ADC").

92. Following an interview of Plaintiff, a human resources representative of ADC

offered Plaintiff a position of employment with ADC. Plaintiff completed all necessary

paperwork, was told when he was scheduled to begin training class, and was administered

and passed a drug test. For all intents and purposes, Plaintiff had been awarded the job

withADC.

93. On or about February 5, 2013, ADC informed Plaintiff that the offer of

employment had been rescinded because of a response to a request for a reference from

the Arkansas State Highway and Transportation Department andjor AHP. The response

from AHP indicated that Plaintiff had been terminated for "misconduct." According to ADC,

no details or information concerning the "misconduct" which was allegedly the basis for

termination of Plaintiffs employment with AHP was given.

94. The negative response from AHP was the sole reason that Plaintiff was

denied employment with ADC.

95. The actions of Defendants in making representations to ADC which

Defendants and/ or any of them knew would cost Plaintiff the opportunity for employment

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(and thus to mitigate his damages) was made in retaliation for his actions, including but not

limited to the legally-protected activities of providing testimony in a legal matter when

called to do so and in filing grievances in accord with procedures put in place precisely so

an employee with a complaint could have a procedure for having his grievance heard and

reviewed. Defendants' actions concerning the employment reference were made, in whole

or part, based on racial discrimination against Plaintiff. Defendants' acts were intentional,

motivated by spite, ill will or malice, and are otherwise wrongful under the law.

COUNT III: INTERFERENCE WITH PROSPECTIVE CONTRACTUAL ADVANTAGE OR BUSINESS EXPECTANCY

This Count Seeks Relief for Intentional Conduct Designed to Interfere With and Prevent Plaintiffs

Obtaining Other Employment Following the Illegal and Wrongful Termination of His Employment With AHP


97. Following the termination of his employment with AHP, Plaintiff applied for

positions with the Arkansas Department of Correction ("ADC").

98. Following an interview, a human resources representative of ADC offered

Plaintiff a position of employment with ADC. Plaintiff completed all necessary paperwork,

was told when he was scheduled to begin training class, and was administered and passed

a drug test. For all intents and purposes, Plaintiff had been awarded the job with ADC.

99. On or about February 5, 2013, ADC informed Plaintiff that the offer of

employment had been rescinded because of a response to a request for a reference from

the Arkansas State Highway and Transportation Department andjor AHP. The response

from AHP indicated that Plaintiff had been terminated for misconduct. According to ADC,

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no details or information concerning the "misconduct" which was allegedly the basis for

termination of Plaintiffs employment with AHP was given.

100. The negative response from AHP was the sole reason that Plaintiff was

denied employment with ADC.

101. The actions of Defendants in making representations to ADC which

Defendants and/ or any of them knew would cost Plaintiff the opportunity for employment

(and thus to mitigate his damages) was intentional, motivated by spite, ill will or malice,

and is otherwise wrongful under the law and constituted the tort of interference with a

contractual or business expectancy.

COUNT IV: CLAIMS AGAINST DEFENDANT BURKS INDIVIDUALLY AND IN HIS CAPACITY AS PLAINTIFF'S SUPERVISOR


103. The acts of Defendant Burks complained ofherein were motivated, in whole

or in part, by racial animus against Plaintiff.

104. As chief of the AHP, Chief Burks was Plaintiffs supervisor for all relevant

purposes.

10 5. Chief Burks directly or indirectly caused or had a role in causing each of the

discriminatory acts complained of in this action.

106. The rights of Plaintiff which Chief Burks violated were clearly established

constitutional and/or statutory rights which a reasonable person in his position would

have known.

107. Chief Burks acted with malice toward Plaintiff.

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108. Because he was chief of the Arkansas Highway Police, the acts of Chief Burks

are imputed to AHP. Accordingly, AHP is liable for his conduct.

109. Chief Burks is also liable as an individual for his own discriminatory conduct

giving rise to the various claims and causes of action set forth herein.

COUNT V: CLAIMS AGAINST DEFENDANT BENNETT INDIVIDUALLY AND IN HIS CAPACITY AS PLAINTIFF'S SUPERVISOR AND DIRECTOR

OF THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT

Moore.

This Claim Includes Establishing Individual Liability of Defendant Bennett Based on the

"Cat's Paw" Theory of Liability


111. Mr. Bennett was a supervisor of Defendants Burks, Claunch, Holmes, and

112. Mr. Bennett was a supervisor of Plaintiff.

113. Because he was the Director of the Arkansas State Highway and

Transportation Department, the acts of Defendant Bennett are imputed to AHP andjor

AHTD. Accordingly, AHP andjor AHTD are liable for his conduct.

114. Defendant Bennett is also liable as an individual for his own conduct

resulting in the termination of Plaintiffs employment.

115. Defendant Bennett made the decision to terminate Plaintiffs employment.

116. In making that decision, Defendant Bennett received information from

subordinates including Chief Burks and Maj. Paul Claunch. Defendant Bennett did not

conduct any independent investigation into the allegations contained in the information

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given to him by his subordinate employees.

117. The information and/ or recommendations provided to Defendant Bennett by

non-decision-makers who were motivated by a discriminatory bias was intended to cause

and did cause an adverse employment action against Plaintiff.

118. In fact, Defendant Bennett did make his decision to terminate Plaintiffs

employment based on information from one or more biased employees.

119. Assuming for this pleading that Defendant Bennett had no personal

animosity against Plaintiff, he is individually liable for his acts based on the actions of

others who were discriminatorily biased against Plaintiff and on whose acts and/ or

information he relied.

120. Defendant Bennett knew or should have known of the bias against Plaintiff

and/or other African-American employees of the department when he made his decision to

rely on the information given to him by racially-biased employees in making his decision to

terminate Plaintiffs employment.

121. The rights of Plaintiff which are at issue were clearly established

constitutional and/or statutory rights which a reasonable person in Defendant Bennett's

position would have known.

COUNT VI: CLAIMS AGAINST DEFENDANT CLAUNCH INDIVIDUALLY AND IN HIS CAPACITY AS PLAINTIFF'S SUPERVISOR


123. The acts of Defendant Claunch complained of herein were motivated, in

whole or in part, by racial animus against Plaintiff.

Page20of 26


124. As an officer of the AHP, Maj. Claunch was Plaintiff's supervisor for all

relevant purposes.

125. Defendant Claunch engaged in various acts of race-based discrimination

against Plaintiff. For example, when Plaintiff was promoted to Motor Carrier Safety

Inspector, Defendant Claunch required Plaintiff to work from an AHP office and prohibited

Plaintiff from officing out of his home, as his predecessors in that position had been

allowed to do. All the predecessors who had been allowed to office from home were

Caucasian.

126. Defendant Claunch prevented Plaintiff from training AHP employees and

trucking companies. This action cost Plaintiff "points" toward future promotion, which is

an adverse employment action.

127. Defendant Claunch did not prevent the other Motor Carrier Safety Inspector

from training AHP employees or trucking companies. That other Motor Carrier Safety

Inspector was Caucasian.

128. Defendant Claunch was involved in denying Plaintiff's promotion to sergeant.

129. The rights of Plaintiff which Maj. Claunch violated were clearly established


have known.

130. Maj. Claunch acted with malice toward Plaintiff.

131. Because he was an officer of the Arkansas Highway Police, the acts of Maj.

Claunch are imputed to AHP. Accordingly, AHP is liable for his conduct.

132. Maj. Claunch is also liable as an individual for his own discriminatory

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conduct giving rise to the various claims and causes of action set forth herein.

COUNT VII: CLAIMS AGAINST DEFENDANT HOLMES INDIVIDUALLY AND IN HIS CAPACITY AS PLAINTIFF'S SUPERVISOR


134. The acts of Defendant Holmes complained of herein were motivated, in

whole or in part, by racial animus against Plaintiff.

135. As an officer ofthe AHP, Captain Holmes was Plaintiffs supervisor for all

relevant purposes.

136. Defendant Holmes discriminated against Plaintiff by lowering Plaintiffs

score on administrative points, which was an adverse employment action because it had an

impact on promotions. There was no valid reason for Capt. Holmes to do this.

137. Defendant Holmes advised Plaintiff that an investigation over an unfounded

complaint made by a convicted felon named Coyelle Woods on January 11,2011, was

concluded. After being contacted by Defendant Burks, Capt. Holmes re-opened the

investigation into the Coyelle Woods matter. The open investigation was an adverse

employment action against Plaintiff.

138. The investigation remained open for almost ten months even though the

investigator had turned in his final report finding the accusation against Plaintiff to be

unfounded on January 20, 2011.

139. During the time the investigation remained open, Plaintiff was ineligible for,

and therefore did not receive, a merit raise. This also barred Plaintiff from receiving a raise

for the following year because those raises were not to be given to employees who had an

Page22 of 26


open investigation. This was an adverse employment action.

140. Defendant Holmes was guilty of other acts of racially-motivated

discrimination, including but not limited to excluding Plaintiff from certain meetings by not

notifying him of the meeting even though Caucasian employees who were subordinate to

Plaintiff were allowed to attend.

141. The rights of Plaintiff which Capt. Holmes violated were clearly established


have known.

142. Capt. Holmes acted with malice toward Plaintiff.

143. Because he was an officer of the Arkansas Highway Police, the acts of Capt.

Holmes are imputed to AHP. Accordingly, AHP is liable for his conduct.

144. Capt. Holmes is also liable as an individual for his own discriminatory

conduct giving rise to the various claims and causes of action set forth herein.

COUNT VIII: CLAIMS AGAINST DEFENDANT MOORE INDIVIDUALLY AND IN HIS CAPACITY AS PLAINTIFF'S SUPERVISOR


146. The acts of Defendant James "Boobie" Moore complained of herein were

motivated, in whole or in part, by racial animus against Plaintiff.

147. As an officer of the AHP, Lt. Moore was Plaintiffs supervisor for all relevant

purposes.

148. Defendant Moore exhibited racial animus. For example, Defendant Moore, at

a time when he was Plaintiffs direct supervisor, used an offensive racial epithet in front of

Page23 of 26


Plaintiff while other Caucasian AHP officers were present.

149. Defendant Moore was involved in denying Plaintiff merit raises after he

became Plaintiffs supervisor. Plaintiff had received merit raises from Moore's

predecessors.

150. The rights of Plaintiff which Lt. Moore violated were clearly established


have known.

151. Lt. Moore acted with malice toward Plaintiff.

152. Because he was an officer of the Arkansas Highway Police, the acts of Lt.

Moore are imputed to AHP. Accordingly, AHP is liable for his conduct.

153. Lt. Moore is also liable as an individual for his own discriminatory conduct

giving rise to the various claims and causes of action set forth herein.

COUNT IX: VIOLATIONS OF ARKANSAS CIVIL RIGHTS ACT

This Count Seeks Damages Against All Defendants for the Acts of Discrimination Set Forth Previously


155. The acts set forth above also constitute violations of the Arkansas Civil Rights

Act and entitle Plaintiff to monetary and injunctive relief.

DAMAGES AND RELIEF REQUESTED


157. Compensatory Damages. The conduct of Defendants as set forth herein in

violating Plaintiffs rights under Title VII, 42 U.S.C. §§ 2000e, 1981, and 1983; the Arkansas

Page24of 26


Civil Rights Act, Arkansas common law, and other applicable laws caused injuries, damages,

and harm to Plaintiff including but not limited to past and future lost wages and other

economic loss, extreme emotional distress, loss of reputation, shame, humiliation, pain and

suffering, inconvenience, mental anguish, impairment of future earning capacity, and other

consequential losses.

158. Punitive Damages. Because the acts of Defendants were committed with

malice or under circumstances from which malice may be inferred, Defendants are liable to

Plaintiff for punitive damages in the maximum amounts allowed by law.

159. Reinstatement. Plaintiff should be reinstated to his previous position of

employment with AHP. Further, Defendants should be enjoined from discriminating

against Plaintiff in all future decisions concerning pay, promotions, job assignment, or any

other aspect of his employment following reinstatement.

160. Injunction and Oversight by Court. Because the acts of Defendants herein

reflect continuing and systemic issues within AHP affecting all African-American employees

of AHP, African-American citizens who might become employees of AHP, and for African

American citizens who would choose to refrain from becoming employees or remaining

employees of AHP because of the discriminatory animus and practices as set forth herein,

this Court should enter appropriate injunctive relief, including but not limited to continuing

oversight by the Court, to assure the absence of racial discrimination in employment

decisions by AHP in the future.

161. The discriminatory or otherwise illegal acts specified in this pleading are not

intended to be an exclusive list of acts by Defendants or others employed by AHTD and/ or

AHP which create liability to Plaintiff.

of 26


PLAINTIFF DEMANDS TRIAL BY JURY.

WHEREFORE, Plaintiff prays for the following relief against Defendants:

A. Compensatory damages as allowed by law.

B. Equitable and/or injunctive relief afforded by Title VII and other applicable

federal statutes, including but not limited to (1) reinstatement of Plaintiffs employment

and (2) continuing oversight of the hiring, promotion, and employment practices generally

of the Arkansas Highway Police and/or the Arkansas State Highway and Transportation

Department under appropriate terms to be set by the Court to assure an absence of racial

discrimination in employment decisions by AHP in the future.

C. Injunctive relief prohibiting Defendants from further acts of retaliation

and/ or discrimination against Plaintiff individually during the course of future employment

with the AHP.

D. Punitive damages in the maximum amounts allowed by law.

E. Reasonable attorney's fees and costs as authorized by applicable law.

DAILY & WOODS, P.L.L.C. P.O. Box 1446 Fort Smith, AR 72902 (479) 782-0361

ByS':>~"M· e.__ Doug as M. Carson Ark. Bar No. 83037 Email [email protected]

Attorneys for Plaintiff

Page26 of 26


)

Exhibit "A"


ENT OPPORTUNITY COMMISSION

AND NOTICE OF RIGHTS

Oarren D. Smith 1524 B North 24th St Van Bt~ren, AR 72956

D On behalf of person(s) aggrieved whose identity is CONFIDENTIAL (29 CFR §1601. 7(a))

From: Little Rock Area Office 820 Louisiana Suite 200 Little Rock, AR 72201

EEOC Charge No. EEOC Representative Telephone No.

Respondent employs less than the required number of employees or is not otherwise covered by me

0 Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged discrimination to file your charge

W The EEOC issues the following determination: Based upon. its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

0 The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.

0 Other (briefly state)

. - NOTICE OF SUIT RIGHTS -(See the additional information attached to this form.)

Title VII, the Americans with Disabilities Act, the Genetic Information. Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit f!1USt be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge. will be lost<:{!he?til11~lirnit for fHingi suit b?~et;£ 011 .<3 claim under state law may be differenD . , ·

':::::,. ':.c:;:;~ .. ;.;::.>.: >:.: .. ::y< ":), ..•.••. ·• , · · · ·· · c;;p.,;.:;;:;"'m '*""}:< ::~.-~ .. , .. /t· Equal Pay Act {~P~): .. EPAsli.itS:~t.. .. . .. . ... · · ~{€eo Z'iears (3 Years tor willful violations) of the alleged EPA underpayment This means backpay due for any violations that occurred more than 2 years (3 years) before you file suit may not be collectible.

Enclosures(s)

cc: . Wanda Ashley EEO Coordinator ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPT . P 0 Box 2261 Little Rock, AR 72209

. ___ , .................. ----

----- FEB 21 2013 (Date Mailed)

_____ .......... ·--........ -----··-·~


I I l i J

1 \ i

l 1 ·l

l 1 l I I l l

EEOC Form 161 (11/09) U.I.4QUAL EMPLOYMENT OPPORTUNITY CO.SSION

DISMISSAL AND NOTICE OF RIGHTS

To: Darren D. Smith From: Little Rock Area Office 820 Louisiana Suite200

1524 B North 24th St. Van Buren, AR 72956

D On behalf of person(s) aggrieved whose identity is CONFIDENTIAL (29 CFR §1601.7(a))

Little Rock, AR 72201

EEOC Charge No. EEOC Representative Telephone No.

Tyrone Y. Blanks, 493-2012-01324 Investigator (501) 324-5083

THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:

D D D D

D D

The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC.

Your allegations did not involve a disability as defined by the Americans With Disabilities Act.

The Respondent employs less than the required number of employees or is not otherwise covered by the statutes.

Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged discrimination to file your charge

The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.

Other (briefly state)

- NOTICE OF SUIT RIGHTS -(See the additional information attached to this form.)

Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent{s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.)

Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years {3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years) before you file suit may not be collectible.

Enclosures(s)

cc: Wanda Ashley EEO Coordinator AR HIGHWAY & TRANSPORTATION DEPT PO BOX 2261 Little Rock, AR 72209

Darren D.Smith vs. AR State Hwy and Transp. 493-2013-00569

Douglas M. Carson, Esq. Daily & Woods, PLLC P.O. Box 1446 Fort Smith, AR 72901

(Date Mailed)

215


JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided bv local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS Darren Smith

(b) County of Residence of First Listed Plaintiff Crawford County (EXCEPT IN U.S. PLAINTIFF CASES)

(C) Attorneys (Firm Name, Acldress, and Telephone Number)

Douglas M. Carson, Daily & Woods, PLLC PO Box 1446, Fort Smith, AR 72902 479-782-0361

II. BASIS OF JURISDICTION (Place an "X" inOneBoxOnly)

Ll I U.S. Government Jlt3 Federal Question Plaintiff (U.S. Govemment Not a Party)

Ll2 U.S. Government Ll4 Diversity Defendant (Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT(Placean "X"inOneBoxOnly)

DEFENDANTS Arkansas Highway Police, Ron Burks, Scott Bennett, Paul Claunch, Jeff Holmes, and James "Boobie" Moore

County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in one Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant)

PfF DEF PfF DEF Citizen of This State Ll I L1 I Incorporated or Principal Place Ll 4 Ll 4'

Citizen of Another State

Citizen or Subject of a Foreim Countty

ofBnsiness In This State

Ll 2 Ll 2 lnc01porated and Principal Place Ll 5 Ll s of Business In Another State

L1 3 Ll 3 Foreign Nation Ll6 Ll6

Ll 110 Insurance PERSONAL INJURY PERSONAL INJURY Ll 625 Drug Related Seizure Ll 422 Appeal 28 USC 158 Ll 375 False Claims Act Ll 120 Marine Ll 310 Airplane Ll 365 Personal Injwy • of Property 21 USC 881 Ll 423 Withdrawal Ll 400 State Reapportionment LII30MillerAct LI315AirplaneProduct ProductLiability Ll6900ther 28USC 157 Ll 410Antitrnst

L1 140 Negotiable Instrument Liability Ll 367 Health Carel ~~~·-.····· Ll 430 Banks and Banking Ll ISO Recovery of Overpayment Ll 320 Assault, Libel & Phannaceutical F! Ll 450 Commerce & Enforcement of Judgment Slander Personal Injwy Ll 820 Copyrights Ll 460 Deportation

Ll 151 Medicare Act Ll 330 Federal Employers' Product Liability Ll 830 Patent Ll 470 Racketeer Influenced and Ll 152 Recovery ofDefaulted Liability Ll 368 Asbestos Personal Ll 840 Trademark Corrupt Organizations

Stodent Loans Ll 340 Marine lnjwy Product Ll 480 Consumer Credit

(Excludes Veterans) Ll 345 Marine Product Liability ············~~~~~~~~~-~~· Ll 490 Cable/Sat TV Lll53Recoveryof0verpayment Liability PERSONAL PROPERTY LI710FairLaborStandards Ll861 HIA(1395ff) Ll 850Securities/Commodities/ ofVeteran's Benefits Ll 350 Motor Vehicle L1 370 Other Fraud Act L1 862 Black Lung (923) Exchange

Ll 160 Stockholders' Suits Ll 355 Motor Vehicle Ll 371 Truth in Lending Ll 720 Labor/Management Ll 863 DIWCIOIWW (405(g)) Ll 890 Other Statotory Actions Ll 190 Other Contract Product Liability Ll 380 Other Personal Relations Ll 864 SSID Title XVI Ll 891 Agricultoral Acts Ll 195 Contract Product Liability Ll 360 Other Personal Property Damage Ll 740 Rsilway Labor Act Ll 865 RSI ( 405(g)) Ll 893 Environmental Matters Ll 196 Franchise Injwy Ll 385 Property Damage Ll 751 Family and Medical Ll 895 Freedom of Information

Ll 362 Personal lnjwy - Product Liability Leave Act Act

.,1!11~~~.-~~~~~~~~--~~~-M-edil'cal~~l ~-~~~~ttice~~~~~~~~~~~~~~~~~~~~-LI 790 Other Labor Litigation Ll 896 Arbitration ~ Ll 791 Employee Retirement .IJIIJIIIIIIIIIIIII~· Ll 899 Administrative Procedure Ll 210 Land Condemnation Ll 440 Other Civil Rights Habeas Corpus: Income Security Act Ll 870 Taxes (U.S. Plaintiff Act/Review or Appeal of Ll 220 Foreclosure Ll 441 Voting Ll 463 Alien Detainee or Defendant) Agency Decision Ll 230 Rent Lease & Ejectment 1!111 442 Employment L1 510 Motions to Vacate L1 871 IRS-Third Party Ll 950 Constitutionality of Ll 240 Torts to Land Ll 443 Honsing/ Sentence 26 USC 7609 State Statotes Ll 245 Tort Product Liability Accommodations Ll 530 General Ll 290 All Other Real Property Ll 445 Amer. w/Oisabilities- Ll 535 Death Penalty

Employment Other: Ll 446 Amer. w/Disabilities - Ll 540 Mandamns & Other

Ll 462 Naturalization Application Ll 465 Other Immigration

Actions Other Ll 550 Civil Rights Ll 448 Education Ll 555 Prison Condition

V. ORIGIN (Place an "X" in One Box Only)

)!( I Original 0 2 Removed from Proceeding State Court

0 3

Ll 560 Civil Detainee -Conditions of Confinement

Remanded from Appellate Court

0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict Reopened Another District Litigation

(specify)

Cite the U.~.L-Civil Statute under which _y~~ . .a[.e filiflg (Do not.filejfi!Ysdktional stututes unless diversity):

VI. CAUSEOFACTIONr-4~2~U~S~C~~~~-1-9~81~·-1~98~3.,a~n~d~2-0~oo~,l~'e1~,;2~8~U~.-S~.C-.~~134~3-----------------------------------Brief description of cause:

VII. REQUESTED IN COMPLAINT:

VIII. RELATED CASE(S) IF ANY

DATE ....,..,, '1 £\013 FOR OFFICE USE ONLY

Employment discrimination based on race 0 CHECK IF THIS IS A CLASS ACTION DEMANDS unspecified CHECK YES only if demanded in complaint:

UNDERRULE23,F.R.Cv.P. money damages JURYDEMAND: )!:1 Yes ONo

(See instructions): JUDGE DOCKET NUMBER

SIGNATURE OF ATTORNEY OF Ri@!iliO

RECEIPT# AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 4:13-cv-00301-JLH Document 1-1 Filed 05/20/13 Page 1 of 1

filed - arkansas times · arkansas highway police, ... and the statutory and common law of the...

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