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Burton v. Arkansas Secretary of State

United States Court of Appeals, Eighth Circuit

December 17, 2013

Richard A. BURTON, Plaintiff-Appellee
ARKANSAS SECRETARY OF STATE; Mark Martin, In his Official Capacity as Arkansas Secretary of State; Darrell S. Hedden, In his Individual and Official Capacity as Chief of Police for State Capitol Police, Defendants-Appellants.

Submitted: Sept. 25, 2013.

Rehearing and Rehearing En Banc Denied Jan. 30, 2014.[*]

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Denise Reid Hoggard, argued, Jason W. Earley, on the brief, Little Rock, AR, for Plaintiff-Appellee.

Austin Porter, Jr., argued, Little Rock, AR, for Defendants-Appellants.

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Richard A. Burton sued his former employer, Arkansas Secretary of State Mark Martin (" Secretary of State" ), in his official capacity, and the Chief of the Arkansas State Capitol Police, Darrell Hedden, in his individual and official capacity, (collectively, " state defendants" ) for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ; 42 U.S.C. § 1983; and the Equal Protection Clause of the Fourteenth Amendment. Thereafter, the state defendants moved for summary judgment. The district court denied the state defendants' motion for summary judgment on Burton's race discrimination and retaliation claims. The court concluded that Burton could pursue his Title VII claims against all defendants but that the Eleventh Amendment barred his § 1983 claims against the Secretary of State and his claims for monetary damages against the Secretary of State and Chief Hedden in their official capacities. The district court also denied Chief Hedden qualified immunity, concluding that Burton could pursue his § 1983 claims for prospective injunctive relief and monetary damages against Chief Hedden in his individual capacity. Additionally, the district court denied summary judgment to the state defendants as to mitigation of damages and punitive damages. But the court granted summary judgment to the state defendants on Burton's 42 U.S.C. § 1981 claims, hostile-work environment claim, and claim of deprivation of a protected property or liberty interest.

The state defendants appeal the district court's denial of qualified immunity to Chief Hedden on Burton's § 1983 claims for race discrimination and retaliation. They also ask this court to review the district court's denial of summary judgment to them on Burton's Title VII claims, contending that these claims are inextricably intertwined with resolution of the qualified-immunity issue. For the following reasons, we affirm the district court's decision in all respects, except we reverse its denial of qualified immunity to Chief Hedden on Burton's § 1983 equal-protection retaliation claim because no clearly established right exists under the Equal Protection Clause to be free from retaliation. We remand for further proceedings consistent with this opinion.

I. Background

" We recite the facts in the light most favorable to [Burton] because [he] was the non-moving party."

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Brown v. City of Jacksonville, 711 F.3d 883, 885 n. 3 (8th Cir.2013) (citation omitted).

From June 9, 2009, until his termination on April 12, 2010, Burton, an African American, was employed as a certified law enforcement officer with the State Capitol Police by the Secretary of State. Before joining the State Capitol Police, Burton worked as a certified law enforcement officer with the Pine Bluff Police Department for nearly four years.

Chief Hedden offered Burton the officer position in a meeting with Sergeant David Huggs. During the meeting, Chief Hedden advised Burton that he would be working the 3:00 p.m. to 11:00 p.m. shift with Officer Norman Gomillion, Assistant Chief Theo Pierce, and Officer Danny Winters, all white males. According to Burton, Chief Hedden told Burton that this " shift was full of rednecks" and " from time to time they may say some things that may be offensive" to Burton. Chief Hedden instructed Burton to come see him " if they did anything that bothered [Burton]." Chief Hedden also informed Burton that his salary would be $37,500 per year. Once Burton successfully completed the six-month probationary period, Burton would receive " [a]nother $2,500." Burton successfully completed the six-month probationary period. On December 7, 2009, six months after Burton's hire, Chief Hedden made written request to his immediate supervisor, Cathy Bradshaw, Deputy Secretary of State, to give Burton a raise.

Each person hired by the State Capitol Police receives a State Capitol Police Policy and Procedures Manual and a Secretary of State Personnel Manual and is instructed to read both. Among other things, the manuals contain policies regarding complaints, appeals procedures, and standards of conduct. Burton acknowledged receipt of both manuals on June 5, 2009.

On December 8, 2009, Burton contacted Chief Hedden and informed him that Officer Gomillion had made offensive remarks about Burton and Randy Hitch, another African-American employee, to Robin Lang, a white, female member of the housekeeping staff. Officer Gomillion referred to Burton and Hitch as " n* * * *rs." Burton alleges that Officer Gomillion often used racial epithets in Lang's presence, expressing his dislike for African Americans and his view that whites were superior to blacks. Lang and Burton worked the same shift and discussed Officer Gomillion's comments. When Officer Gomillion saw Lang with two African-American males, Lang claims that Officer Gomillion said, " [Y]ou don't do that n* * * *r thing, do you[?]" When Lang asked Officer Gomillion what he meant, he replied, " [Y]ou don't do that n* * * *r thing, you don't date n* * * *rs, do you?" Lang also claims that Officer Gomillion " referred to [President] Obama at that time as being the n* * * *r in the office that was going to bring the United State[s] down." According to Lang, she often considered reporting Officer Gomillion but felt like she would be wasting her time.

Chief Hedden instructed Burton to prepare a written complaint regarding Officer Gomillion's behavior. On December 9, 2009, Burton submitted a handwritten complaint setting forth Officer Gomillion's racially offensive comments, as well as the statements of Lang, Hitch, and Misty Lane, another employee. Chief Hedden told Burton that he needed to type his complaint and resubmit it, which Burton did.

After receiving Burton's complaint, Chief Hedden read it and the witness statements and met with Officer Gomillion. As the district court noted, " [t]he record evidence does not indicate Chief Hedden took any other steps to investigate."

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Burton v. Martin, No. 4:11-cv-710 KGB, 2013 WL 598123, at *2 (E.D.Ark. Feb. 16, 2013). Officer Gomillion denied making the racially offensive comments and offered to take a polygraph test. On December 14, 2009, Chief Hedden issued Officer Gomillion a " Letter of Counseling." In the letter, Chief Hedden advised Gomillion of the written complaint lodged against him; " remind[ed] [him] that any derogatory or racially motivated remarks can be considered harassment and will not be tolerated" ; and " cautioned that any future complaints regarding inappropriate, offensive, and/or derogatory statements made toward African-Americans will be considered a violation of Secretary of State Policy and Procedure and may result in corrective action against [him]."

On January 22, 2010, Burton inquired via email about the status of his complaint against Officer Gomillion. Chief Hedden denies receiving this email. On January 25, 2010, Chief Hedden emailed Bradshaw to inquire about the status of his raise request for Burton. The Secretary of State granted Chief Hedden's request to increase Burton's pay on February 9, 2010.

On February 16, 2010, Burton alleges that Officer Gomillion threw a set of keys at Burton and Hitch. Burton notified Chief Hedden of the incident that evening. The next day, Burton submitted a written statement regarding the incident to Sergeant Huggs. Thereafter, Assistant Chief Larry Robinson, Sergeant Huggs, and Officer Charlie Brice, who is also African American, met with Burton. Assistant Chief Robinson showed Burton the at-will employment policy, which Burton understood as providing " that anybody can be fired for any reason at any time." Assistant Chief Robinson insisted that Burton read the policy, even though Burton had already made clear that he knew what the policy stated. Assistant Chief Robinson then showed Burton a " new shift rule [ ], saying that there is no bickering amongst employees." Burton asked Assistant Chief Robinson if he was referring to Officer Gomillion and inquired about the status of his complaint. Burton claims that Assistant Chief Robinson replied that " if y'all stop aggravating [Officer Gomillion], this stuff wouldn't happen."

On March 26, 2010, Burton worked a traffic accident. Although State Capitol Police Policy # 2004-68 requires an officer to complete a traffic accident report prior to the end of that officer's shift, Burton did not complete the report before the end of his shift that day. According to Burton, when he attempted to complete the report, Sergeant Huggs told him not to complete the report until Sergeant Huggs could show Burton how to enter it into the computer system. Over the next few days, the individuals involved in the accident called requesting copies of the accident report. State law requires that the Arkansas State Police receive all traffic accident reports within five days.

In March 2010, Burton requested to work part-time for a private party providing security. Chief Hedden approved this request but warned Burton not to let his part-time work interfere with his full-time job. On March 30, 2010, Burton was scheduled to work beginning at 3 p.m., but he overslept after having worked at his other job on the night of March 29, 2010, until 7 a.m. on March 30, 2010. Burton called in at approximately 5:30 or 6 p.m. and spoke with Sergeant Huggs, who told Burton not to come in and to report the following day.

The next day, Burton reported to work, and Chief Hedden showed Burton how to enter the accident report into the system. That same day, Burton was issued an " Official Letter of Reprimand" based on his failure to report to work as scheduled on

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March 30, 2010, and failure to complete the accident report in a timely manner. With regard to absence on March 30, 2010, the letter stated:

On Tuesday March 30, 2010, you failed to report for duty as scheduled and also failed to contact this department in adequate time so arrangements could be made with other personnel for proper shift coverage. You made contact with the department at approximately 6:00pm on March 30, 2010, three hours after the start of your shift, and stated you had over slept [sic]. Sergeant Huggs ...

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