Depriest v. Milligan
| Decision Date | 12 January 2015 |
| Docket Number | Case No. 4:14-cv-00037 KGB,Case No. 4:12-cv-00235 KGB |
| Parties | RONDA DEPRIEST PLAINTIFF v. DENNIS MILLIGAN DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Before the Court is defendant Dennis Milligan's second motion for summary judgment (Dkt. No. 85).1 Plaintiff Ronda DePriest has responded to the motion (Dkt. No. 93), and Mr. Milligan has replied (Dkt. No. 100). Mr. Milligan also filed a motion for extension of time to file remaining pre-trial documents (Dkt. No. 99), to which Ms. DePriest responded in opposition (Dkt. No. 101).
For the following reasons, the Court grants Mr. Milligan's second motion for summary judgment (Dkt. No. 85) as to Ms. DePriest's claims of gender discrimination under 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1963 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Government Employee Rights Act of 1991 ("GERA"), 42 U.S.C. §§ 2000e(f), 2000e-16c; and the Arkansas Civil Rights Act ("ACRA"), Ark. Code Ann. § 16-123-101 et seq., based on Ms. DePriest's non-retention as chief deputy. The Court also grants Mr. Milligan's motion for summary judgment as to any discrimination or retaliation claim premised on the allegation that Ms. DePriest should have been allowed the opportunity to take another position for which she did not apply. The Court denies Mr. Milligan's motion for summary judgment as to Ms. DePriest's claims alleging a violation of her right to remonstrate under the Arkansas Constitution(Dkt. No. 85); nevertheless, the Court declines to exercise supplemental jurisdiction over and, therefore, dismisses without prejudice those claims. The Court grants Mr. Milligan's motion for summary judgment as to Ms. DePriest's claims of retaliation under the First Amendment and § 1983, Title VII, and the ACRA for failing to hire her for the electronic filing coordinator and real estate clerk positions. The Court denies as moot Mr. Milligan's motion for extension of time to file remaining pre-trial documents (Dkt. No. 99).
This action involves two consolidated lawsuits that Ms. DePriest has filed against Mr. Milligan. Ms. DePriest filed her original complaint against Mr. Milligan in Saline County, Arkansas, Circuit Court in April 2012. Mr. Milligan removed the action to this Court, Case No. 4:12-cv-00235 KGB ("Lawsuit I"). In her first lawsuit, Ms. DePriest claimed that Mr. Milligan discriminated against her in violation of § 1983, Title VII, the GERA, and the ACRA when he decided not to retain her as his chief deputy, when she was not allowed the opportunity to take another position, and when a position was filled with another candidate in June 2011. Ms. DePriest also alleged in her first lawsuit that Mr. Milligan retaliated against her in violation of the First Amendment of the United States Constitution and in violation of her right to remonstrate under the Arkansas Constitution. On September 30, 2013, this Court granted Mr. Milligan's first motion for summary judgment as to Ms. DePriest's First Amendment claims (Dkt. No. 75). The Court also granted Mr. Milligan's motion for summary judgment as to Ms. DePriest's right to remonstrate claim against Mr. Milligan in his individual capacity. The Court denied without prejudice Mr. Milligan's motion for summary judgment as to Ms. DePriest's gender discrimination claims and granted Ms. DePriest's motion to stay the action for further proceedings consistent with the GERA.
While her first lawsuit remained pending, Ms. DePriest filed a second action against Mr. Milligan, Case No. 4:14-cv-00037 KGB ("Lawsuit II"), which this Court consolidated with her first action by Order dated July 17, 2014 (Dkt. No. 81). In her second lawsuit, Ms. DePriest alleged separate violations of the First Amendment, Title VII, § 1983, and the ACRA. Before analyzing her claims, the Court will review the factual background of each of Ms. DePriest's actions.
Dennis Milligan, a Republican, ran for Saline County Circuit Clerk in 2010 and won. He opposed the long-time incumbent clerk, Doug Kidd, a Democrat. Ms. DePriest was an at-will employee serving as chief deputy under Mr. Kidd's administration. Mr. Milligan states that he did not know Ms. DePriest when he was elected. Ms. DePriest admits that she had not met Mr. Milligan before he was elected but denies that Mr. Milligan did not know who she was (Dkt. No. 94-1, ¶ 5). Prior to assuming office on January 1, 2011, Mr. Milligan notified Ms. DePriest that she would not be retained as chief deputy in his administration. Although Ms. DePriest does not dispute this, she contends that she would have stepped down to a lower position to remain an employee and not to lose her seniority, sick leave, and vacation leave. She alleges that she was not retained because she supported Mr. Milligan's opponent in the campaign and because she is a woman (Dkt. No. 94-1, ¶ 10). She contends that Mr. Milligan fired her because of comments she had made on Facebook (Id.). Mr. Milligan disputes this.
After being elected, Mr. Milligan hired a person of his choosing, Jim Harris, to be his chief-of-staff. Ms. DePriest claims that Mr. Harris had no prior experience in running the Saline County Circuit Clerk's office. Mr. Milligan claims he hired the individual he felt would best help him fulfill the promises that he made to the citizens of Saline County. Mr. Milligan claimsthat he chose not to reappoint Ms. DePriest as the chief deputy because he viewed the position as one that requires political loyalty. Ms. DePriest disputes that the chief deputy position requires political loyalty (Dkt. No. 94-1, ¶ 10).
Ms. DePriest contends that Mr. Milligan did not hire her because she is female and supported Mr. Kidd. During discovery in her first lawsuit, Ms. DePriest testified in her deposition that she never called Mr. Milligan and asked him if he would hire her back in some other position. To Mr. Harris's knowledge, Ms. DePriest had not applied for any other job at the Saline County Circuit Clerk's office between December 2010 and June 2013. Although she admitted this, Ms. DePriest previously argued that applying would have been futile because Mr. Milligan would not have hired her (Dkt. No. 50-1, ¶13). Ms. DePriest contends that, at the time she was terminated, she was not interviewed or allowed to apply for any other positions in the Saline County Circuit Clerk's office. She maintains that, had she been allowed to do so, she would have continued working there.
In 2011, the Saline County Circuit Clerk's office had open the position of electronic records manager. Mr. Milligan states that this opening "was posted from June 30, 2011 through July 7, 2011" (Dkt. No. 87, at 5). In support of this contention, Mr. Milligan attaches an affidavit from Christy Peterson, the county personnel manager (Dkt. No. 86-5). Ms. Peterson states that the position was posted on those dates. Ms. Peterson's affidavit also includes several exhibits, including a notice of job opening and a job description for the electronic records manager position, a list of people who applied for the position, and the application of Gary Underwood, who ultimately was hired for the position (Id.). Mr. Milligan contends that Ms. Peterson's affidavit "establishes the position was posted from June 30, 2011 to July 7, 2011, that nine people applied, that Underwood was one of the nine applicants, that DePriest did not apply,and that Underwood was hired following the application period" (Dkt. No. 100, at 2). Ms. DePriest admits that she did not apply for this position but disputes that the position was posted. Ms. DePriest states that "she watched for a posting on the internet of that position, and it was not posted" (Dkt. No. 94-1, ¶ 12). She contends that she had previously performed all aspects of that job.
According to Mr. Milligan, when a full-time position is open, Ms. Peterson posts the position, collects applications, and forwards the applications to the hiring authority to review and schedule interviews with the candidates. Ms. DePriest admits that this is the usual process but denies that the office followed this process for the electronic records manager position. Mr. Milligan states that part-time positions may or may not be posted. Mr. Milligan explained that he tells Ms. Peterson what the job is and follows her recommendation regarding whether to advertise or not. Ms. DePriest disputes this, claiming that "[d]uring her 19 years in the Chief Deputy position, part time positions were posted" (Dkt. No. 94-1, ¶ 16).
At the end of 2010, all of the employees in the Saline County Circuit Clerk's office were women. Mr. Milligan maintains that he does not consider race or gender in his hiring decisions; Ms. DePriest disputes this (Dkt. No. 94-1, ¶18).
Mr. Milligan states that Mr. Harris's duties include helping Mr. Milligan write speeches that Mr. Milligan has to deliver and acting as Mr. Milligan's "overall ambassador" in the community. When Mr. Harris is off the clock, he attends political events for Mr. Milligan and promotes changes that Mr. Milligan has made in the Saline County Circuit Clerk's office. Mr. Milligan consults with Mr. Harris regarding political matters and values Mr. Harris's political insight and counsel, based on Mr. Harris's experience in the political arena. Mr. Harris also advises Mr. Milligan on hiring, firing, and disciplining employees. Mr. Harris interviewspotential staff members during the hiring process. Mr. Milligan has designated Mr. Harris as his representative to attend meetings on his behalf sponsored by the Arkansas Association of Counties, the Arkansas Circuit Clerk's Association, and the Administrative Office of the Courts. Mr. Harris is Mr. Milligan's primary contact with other constitutional offices in the state, including the Governor's Office, the State Auditor, the State Treasurer, the State Land Commissioner, and all state agencies that interact...
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