Sterling v. Bd. of Trs. of Univ. of Ark.

642 F.Supp.3d 787

Rebecca STERLING, Plaintiff v. BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS, et al., Defendants

Case No. 4:19-CV-00025-LPR

United States District Court, E.D. Arkansas, Central Division

Signed November 28, 2022

Lucien R. Gillham, Sutter & Gillham, PLLC, Little Rock, AR, for Plaintiff.

Sarah Lewis James, University of Arkansas - Office of the General Counsel, Little Rock, AR, for Defendants.

ORDER

LEE P. RUDOFSKY, UNITED STATES DISTRICT JUDGE

This is an employment discrimination case. Plaintiff Rebecca Sterling alleges violations of the Age Discrimination in Employment Act, the Rehabilitation Act, the Americans with Disabilities Act, and the Family and Medical Leave Act. Defendants—the Board of Trustees of the University of Arkansas, the members of the Board of Trustees, and Dr. Bentley Wallace—deny engaging in any type of discrimination.¹

This case was filed back in January of 2019. But it was only transferred to me in August of 2022. The judge initially assigned to this case handled it through the summary-judgment stage. She issued an Opinion and Order in October of 2020, granting in part and denying in part Defendants' Motion for Summary Judgment.² For present purposes, the critical part of the October 2020 ruling held that "qualified immunity is not available to defendants on an FMLA claim."³ Based on that proposition, Dr. Wallace was denied qualified immunity with respect to Ms. Sterling's claim against him.⁴

Dr. Wallace took an interlocutory appeal on the qualified-immunity issue. The Eighth Circuit remanded after determining that a more extensive qualified-immunity analysis was needed at the district court level.⁵ Upon remand, and after transfer of the case to me,⁶ I held a summary-judgment hearing focused on whether qualified immunity was appropriate in the specific circumstances of this case—that is, "whether the violative nature of [Dr. Wallace's] particular conduct [was] clearly established."⁷ I also invited the parties to simultaneously submit supplemental briefs on the issue. They did so.⁸ For the reasons discussed below, Dr. Wallace is entitled to qualified immunity on Ms. Sterling's FMLA claim.

BACKGROUND

With very limited additions or exceptions, this Order adopts and relies on the facts set out in the original summary-judgment decision and in the Eighth Circuit's decision. The Court will briefly summarize those facts to the extent they are relevant to the qualified-immunity analysis. For the most part, they are not genuinely disputed.

Ms. Sterling has worked (in various roles) at the University of Arkansas-Pulaski Technical College since 2012.⁹ By the end of 2016, she had become the Co-Chair and Interim Dean of the College's Business Division.¹⁰ In those two roles, Ms. Sterling made a total salary of $76,000 ($70,000 for being the Interim Dean; $6,000 for being the department Co-Chair).¹¹ In January of 2018, the College announced that it was going to restructure.¹² This restructuring meant that Ms. Sterling's Interim Dean position would be eliminated shortly after the end of the academic year.¹³ It also meant that department chair positions would be vacated.¹⁴

Ms. Sterling met with some of her supervisors to discuss her post-restructuring options at the College. Ms. Sterling was told that there would be new dean positions for which she could apply.¹⁵ But Ms. Sterling didn't consider that a real option. She believed that she "wasn't qualified for" the new dean positions because she "didn't have a doctorate."¹⁶ Ms. Sterling was also informed that she could consider returning to a teaching position.¹⁷ But it was not clear at that time whether there would actually be a teaching position for Ms. Sterling.¹⁸ So, unless and until a guaranteed teaching spot materialized, Ms. Sterling felt she was "basically . . . going to be out of a job . . . ."¹⁹

While waiting to hear of a potential teaching spot, Ms. Sterling learned about an opening for a "nonacademic, staff position": the Coordinator of Community Education.²⁰ Ms. Sterling viewed this position as an opportunity to "be a little bit creative" while still allowing for the exploration of teaching positions.²¹ Additionally, the Coordinator position paid more than the salary of a normal teaching role. The Coordinator position paid $48,000 for a twelve-month appointment,²² whereas Ms. Sterling's expected earnings for a teaching position at that time would have been approximately $40,000 for a nine-month appointment.²³ All of this prompted Ms. Sterling to apply for the Coordinator position.²⁴

Dr. Wallace was the hiring official for the Coordinator position.²⁵ Although Dr. Wallace had the final say of who would be hired, applicants were interviewed by a five-member committee.²⁶ The interview committee was composed of: (1) Dr. Wallace; (2) Elizabeth Reves; (3) Somerly Mustin; (4) Verkeytia Long; and (5) Reba Melton.²⁷

Over forty people, including Ms. Sterling, applied for the Coordinator position.²⁸ Such a large number of applicants could not efficiently be interviewed by the five-member committee. So Dr. Wallace screened the applications in order to narrow the field.²⁹ Dr. Wallace enlisted committee member Elizabeth Reves to help him with this pre-interview screening process.³⁰ Dr. Wallace and Ms. Reves each reviewed every application, independently selected the candidates they thought should be interviewed, and then compared notes.³¹ Dr. Wallace did not place Ms. Sterling on his list of candidates to interview.³² But Ms. Reves had chosen Ms. Sterling for her list and asked Dr. Wallace to include Ms. Sterling in the round of interviews.³³ Dr. Wallace agreed to do so.³⁴

On May 2, 2018, Dr. Wallace emailed Ms. Sterling to inform her that she would be interviewed on May 8 at 1:30 pm.³⁵ About an hour after receiving this email, Ms. Sterling responded, "Bentley: I am sorry, is there another date than May 8? I will be in El Dorado with my mother at her cancer doctor's appointment on that day."³⁶ The next day, May 3, Dr. Wallace replied, "Sorry to hear that your mom is going through that. Hope her treatments are bearable and successful. I am checking with the interview committee to see if we can add you on Wednesday the 9^th at 12:30. Will report back later today once I've heard from the committee members."³⁷

The rescheduling never came to pass. That's because about one minute after Dr. Wallace sent his May 3 email, Ms. Sterling responded, "Bentley: Don't change it yet, I am checking to see if my sister can go with my mother on that date. I should know something today. THANKS!!"³⁸ And the next day, May 4, Ms. Sterling told Dr. Wallace to "keep the [initial] time you scheduled."³⁹ Dr. Wallace responded, "Great. We'll see you at 1:30 on Tuesday the 8^th."⁴⁰ The interview took place on May 8, as scheduled.⁴¹

The candidate interviews were conducted over two days (May 8 and May 9, 2018) by the five-member committee.⁴² The committee jointly interviewed each candidate. During or right after the interviews, every interviewer filled out a separate evaluation form (essentially a scorecard) for every candidate.⁴³ Once all the interviews were over, the interviewers discussed the candidates' strengths and weaknesses.⁴⁴ Although no hiring decision was made at that time, it became clear that there were two leading candidates: Ms. Sterling and Kristin Howell.⁴⁵ Dr. Wallace decided to take the evening to think things over. The next morning, May 10, he informed the committee that he had chosen Ms. Howell for the Coordinator position.⁴⁶

Ms. Sterling felt that Dr. Wallace's decision simply didn't make sense. She requested and received from human resources the interviewers' scorecards.⁴⁷ The scoring only added to Ms. Sterling's suspicions. Based on scoring, she had the edge over Ms. Howell.⁴⁸ The final tally was 224 points for Ms. Sterling and 215 points for Ms. Howell.⁴⁹ Moreover, Ms. Sterling's "lead" was despite a very low score from Dr. Wallace. While the other four interviewers each scored Ms. Sterling at 45 or above out of 50, Dr. Wallace scored her a 34 out of 50.⁵⁰ And the outlier nature of the score cannot be explained simply by harder grading. With respect to Ms. Howell, Dr. Wallace's score was more in line with the rest of the committee. The other four interviewers had given Ms. Howell scores of 37, 42, 43, and 47.⁵¹ Dr. Wallace scored Ms. Howell a 46 out of 50.⁵² What was the conclusion Ms. Sterling drew from all this? For some reason, Dr. Wallace had intentionally deflated his personal score of Ms. Sterling in an attempt to knock her out of contention. And, when that didn't achieve his desired result, he selected Ms. Howell despite Ms. Sterling's higher cumulative score.

Ms. Sterling also believes she knows the reason that Dr. Wallace acted as he did. She alleges that Dr. Wallace unlawfully discriminated against her. More specifically, Ms. Sterling claims that Dr. Wallace decided not to hire her because he thought that she might need to take FMLA leave in the future to help care for her sick mother. To be clear, Ms. Sterling is not arguing that Dr. Wallace's decision was a punishment for Ms. Sterling's initial plan to take FMLA leave on May 8, 2018. Nor is Ms. Sterling arguing that Dr. Wallace's decision was punishment for any other FMLA leave that Ms. Sterling had actually taken in the past. Ms. Sterling's sole argument is that Dr. Wallace didn't hire her because he didn't want someone who might take FMLA leave during her tenure in the Coordinator position.⁵³

DISCUSSION

Two questions are raised when a government official invokes the defense of qualified immunity at the summary-judgment stage. One question is simply the normal summary-judgment analysis, i.e., whether a rational juror could conclude that the government official violated the applicable law.⁵⁴ The other question—unique to the qualified-immunity context—asks whether the applicable law was so "clearly established" that the government official is either a complete nincompoop or must have known...