Case 4:19-cv-00025-KGB Document 19 Filed 10/23/20 Page 1 of 26
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` IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF ARKANSAS
`CENTRAL DIVISION
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`
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`PLAINTIFF
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` Case No. 4:19-cv-00025 KGB
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`REBECCA STERLING
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`v.
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`THE BOARD OF TRUSTEES OF
`THE UNIVERSITY OF ARKANSAS, et al.
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`
`OPINION AND ORDER
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`DEFENDANTS
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`
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`Plaintiff Rebecca Sterling applied for a position at the University of Arkansas - Pulaski
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`Technical College (“UAPTC”). Ms. Sterling alleges in her amended complaint that she was denied
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`this position because of her age, association with a person with a disability, and use of leave under
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`the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, et seq. (Dkt. No. 2, ¶¶ 29–37). She
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`brings this suit against the Board of Trustees of the University of Arkansas (“Board of Trustees”),
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`the members of the Board of Trustees in their official capacities, Dr. Bentley Wallace in his
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`individual and official capacities, and UAPTC, alleging violations of the Americans with
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`Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; the Rehabilitation Act, 29 U.S.C. § 701, et
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`seq.; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; and the
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`FMLA (Dkt. No. 2, ¶¶ 2–3). Before the Court is defendants’ motion for summary judgment (Dkt.
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`No. 8). Ms. Sterling filed a response (Dkt. No. 14), and defendants replied (Dkt. No. 15). For the
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`reasons discussed below, the Court grants in part and denies in part defendants’ motion for
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`summary judgment (Dkt. No. 8).
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`I.
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`Factual Background
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`Unless otherwise noted, the following facts are taken from defendants’ statement of
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`material facts not in dispute and Ms. Sterling’s response to defendants’ statement of material facts
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`not in dispute (Dkt. No. 10; Dkt. No. 14-2).
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`Case 4:19-cv-00025-KGB Document 19 Filed 10/23/20 Page 2 of 26
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`Ms. Sterling is 59 years old and is a full-time faculty instructor in the Business Department
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`at UAPTC (Dkt. No. 10, ¶ 1). UAPTC became a part of the University of Arkansas system on
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`February 1, 2017, at which point the Board of Trustees of the University of Arkansas assumed
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`control over UAPTC (Id., ¶ 46). Ms. Sterling was hired originally by UAPTC as a keyboarding
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`instructor in the Business Department in August 2012 (Id., ¶ 2). Beginning in 2014, Ms. Sterling
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`and a co-worker were selected by a committee to cochair the Business Department (Id., ¶ 3). She
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`later assumed temporary duties as Interim Dean of the Department after the Provost left in late
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`2016 (Id., ¶ 4). In January 2018, UAPTC underwent a reorganization of its academic departments
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`and reduced five dean positions to three (Id., ¶ 5). Ms. Sterling was notified that her dean position
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`would be eliminated effective June 30, 2018 (Id.). Ms. Sterling was invited to apply for one of the
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`new dean positions but felt she would not be qualified (Id., ¶ 6). She was also informed that she
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`could return to a faculty teaching position (Id.). Ms. Sterling has no unfavorable evaluations or
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`disciplinaries in her personnel file (Id., ¶ 47).
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`In April 2018, Ms. Sterling learned of a job announcement for a nonacademic staff
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`position—the Coordinator of Community Education (“Coordinator”)—which was open to both
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`internal and external applicants (Id., ¶ 7). Ms. Sterling was interested in the position in part
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`because it would pay $48,000 for a twelve-month appointment instead of $40,450 for a nine-month
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`appointment in her faculty position, which had been renewed for the 2019–20 term (Id., ¶¶ 14–
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`16).
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`Dr. Wallace was the hiring official for the Coordinator position (Id., ¶ 8). At the time of
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`the job posting, Dr. Wallace was Vice Chancellor responsible for the non-credit instructional
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`operations of the college, which included all workforce and non-credit education, non-credit
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`community education, and management of the business and industry center, where the Coordinator
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`Case 4:19-cv-00025-KGB Document 19 Filed 10/23/20 Page 3 of 26
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`position is housed (Id., ¶ 9). The position description was developed by Dr. Wallace and listed
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`essential criteria and preferred qualifications (Id., ¶ 10). This was the third time he had hired for
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`this position (Id., ¶ 25). The essential job functions and preferred qualifications listed in the job
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`announcement had evolved over time to reflect Dr. Wallace’s expectations and vision of the
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`position (Id., ¶ 26). Dr. Wallace was then selected to fill a new dean position as Dean of the School
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`of Professional and Technical studies in July 2018 (Id., ¶ 11). He continued supervising the
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`Coordinator position until the Director of Workforce Development was hired the following
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`October (Id.).
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`Ms. Sterling submitted a transfer form and her application materials, along with over 40
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`other applicants (Id., ¶ 17). Human Resources then screened the applications for minimum
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`qualifications and that field was narrowed to six individuals for interviews, which included Ms.
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`Sterling (Id., ¶ 18). Dr. Wallace selected the persons to interview and initially did not include Ms.
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`Sterling (Dkt. No. 14-2, ¶ 18). Another hiring committee member, Elizabeth Reves, added Ms.
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`Sterling to the list to be interviewed (Id.) Also serving on the hiring committee were Somerly
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`Mustin, Verkeytia Long, and a representative from Human Resources, Reba Treece (now Reba
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`Melton) (Dkt. No. 10, ¶ 19).
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`The interviews were held over two days, May 8–9, 2018 (Id., ¶ 21). On May 2, 2018, Ms.
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`Sterling emailed Dr. Wallace asking if she could reschedule her interview spot from May 8, stating
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`that she would be attending a “cancer doctor’s appointment” with her mother (Id.). Dr. Wallace
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`expressed his sympathy and agreed to interview her another time (Id., ¶ 22). Ms. Sterling later
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`responded that she could make the original interview time, so her interview remained scheduled
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`for May 8, 2018 (Id.).
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`Ms. Sterling took FMLA leave during the time period of May 8, 2018, which had been
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`approved by her supervisor, Marla Strecker (Id., ¶ 23). Defendants claim that the only person on
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`the interview committee with knowledge of Ms. Sterling’s FMLA leave was the HR representative,
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`Ms. Melton, who had filed the FMLA paperwork (Id., ¶ 24). Ms. Sterling claims that Dr. Wallace
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`knew that Ms. Sterling had at least planned to take leave for an FMLA qualifying condition and
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`therefore had engaged in a protected activity (Dkt. No. 14-2, ¶ 21).
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`Each member of the interviewing committee was provided with copies of the application
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`materials for each candidate along with a scoring rubric, as per university practice (Dkt. No. 10, ¶
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`25). Dr. Wallace had determined the questions that were included on the rubric (Id., ¶ 26).
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`Interviewers scored each candidate from 0–50 for a total possible score of 250 (Id., ¶ 29). Dr.
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`Wallace scored Ms. Sterling lower than the other interviewees with a score of 34 and scored Kristin
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`Howell, a 36-year-old who was ultimately selected for the position, highest with a score of 46 (Id.).
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`Ms. Melton scored the candidates almost the opposite of Dr. Wallace, giving Ms. Sterling a perfect
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`score of 50 and Ms. Howell a 37 (Id., ¶ 30). The three remaining members of the interview
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`committee all scored Ms. Sterling higher than Ms. Howell (Dkt. No. 14-2, ¶¶ 62–64). The final
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`composite scores were Ms. Sterling at 224 and Ms. Howell at 215 (Dkt. No. 10, ¶ 28). Defendants
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`contend that hiring is based on a consideration of everything received during the hiring process
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`and that there is no policy at UAPTC that mandates that the highest scoring applicant be hired to
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`the position (Id., ¶¶ 31–32). Ms. Sterling disputes this contention, arguing that there was a policy
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`stating a preference for hiring from within, that the procedure was to hire the top scoring
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`candidates, and that Dr. Wallace violated policy by acting subjectively and ignoring the committee
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`(Dkt. No. 14-2, ¶¶ 31–32). Ms. Sterling notes that even Dr. Wallace testified that “we don’t have
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`singular people making decisions typically.” (Id., ¶ 32).
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`The parties are not in agreement as to what happened following the interviews. Defendants
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`claim that the hiring committee did not arrive at a decision on whom to hire and agreed that Dr.
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`Wallace could take the evening of May 9, 2018, to review the top two applicants (Id., ¶¶ 33–34).
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`According to defendants, Mr. Wallace has stated consistently that, based on all the materials
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`presented as well as the interviews and hiring references, Ms. Howell’s prior experience aligned
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`most closely with the essential duties and preferred qualifications (Id., ¶ 51). Ms. Howell’s
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`previous positions included a combined five years of fundraising, event management, and
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`community outreach, as well as budget planning, staff hiring, and creation of promotional
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`materials at the Arthritis Foundation and the Hilary Rodham Clinton Children’s Library (Id., ¶ 56).
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`Defendants claim that Ms. Sterling has admitted that she does not have outreach and community
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`involvement in the Pulaski County area (Id., ¶ 58).
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`However, Ms. Sterling denies that the group did not arrive at a decision on the hire after
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`discussion (Dkt. No. 14-2, ¶ 33). Rather, Ms. Sterling asserts that the hiring committee came to a
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`consensus on the basis of the highest scorer from the rubric after five to ten minutes of discussion
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`(Id.). Ms. Sterling maintains that members of the committee were not given time to discuss and
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`come to a consensus, nor was there any effort to do that (Id.). Instead, Ms. Sterling asserts that
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`Dr. Wallace decided to take the night to make a decision in violation of policy, procedure, and
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`practice (Id., ¶ 34). Ms. Sterling contends that, whether Dr. Wallace reviewed the materials or not,
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`it was apparent from the scoring and how he conducted the interview and decision process that he
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`was angling for his preferred candidate (Id., ¶ 35). Ms. Sterling denies that Ms. Howell was the
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`best candidate because Ms. Sterling had more experience in more fields, a proven track record of
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`good performance, and a bachelor’s and master’s degree in educational fields (Id., ¶¶ 35–36).
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`The next morning, May 10, 2018, Dr. Wallace sent an email to the committee stating that
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`he had determined that Ms. Howell would be the “best fit” and that her experience was “directly
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`aligned with many of the key elements of the position, both in the essential duties and preferred
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`qualifications” (Dkt. No. 10, ¶¶ 35-36). Ms. Sterling admits that Dr. Wallace chose Ms. Howell
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`and sent an email to the committee but denies that Ms. Howell was the best candidate (Dkt. No.
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`14-2, ¶¶ 35–36). Ms. Sterling testified at her deposition that she did not want the current
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`Coordinator removed from the job and, when asked if there were any other positions that she would
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`like to assume at UAPTC, she knew of none (Id., ¶ 48).
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`Following the decision, Ms. Melton felt that Ms. Howell’s selection violated school policy
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`and told HR Director Sherry Young that Ms. Sterling had received a higher score (Dkt. No. 10, ¶
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`39). To address Ms. Melton’s concerns, the Chancellor, Margaret Ellibee, asked Dr. Wallace, Ms.
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`Young, and Ms. Young’s supervisor, Tara Smith, to meet the next day (Id., ¶ 40). The content of
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`the meeting is disputed by the parties. Defendants argue that the meeting did not affect the final
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`hiring result (Id., ¶ 44), and Ms. Sterling argues that the meeting could not have impacted the
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`decision (Dkt. No. 14-2, ¶¶ 40, 43). UAPTC has policies and practices, some included in writing
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`in the employee handbook (Id., ¶¶ 68–71). The parties dispute the force and significance of those
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`policies and practices.
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`Ms. Sterling filed a claim with the Equal Employment Opportunity Commission (“EEOC”)
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`on June 25, 2018, alleging that she was not hired for the position on the basis of age and
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`associational disability discrimination (Dkt. No. 10, ¶ 45). The EEOC subsequently issued a
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`Notice of Right to Sue to Ms. Sterling on October 22, 2018 (Id.). This lawsuit followed.
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`II.
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`Standard of Review
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`Summary judgment is proper if the evidence, when viewed in the light most favorable to
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`the nonmoving party, shows that there is no genuine issue of material fact in dispute and that the
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`defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.
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`Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a
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`reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th
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`Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary judgment;
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`rather, the dispute must be outcome determinative under prevailing law.” Holloway v. Pigman,
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`884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may
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`not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447
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`(8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine
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`issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving
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`party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v.
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`Hinkel, 121 F.3d 364, 366 (8th Cir. 1997). “The evidence of the non-movant is to be believed,
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`and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
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`U.S. 242, 255 (1986).
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`III. Analysis
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`A.
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`Overview Of Pending Claims
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`Defendants make three arguments which dispose of Ms. Sterling’s claims against UAPTC,
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`against all defendants under the Rehabilitation Act, and against Dr. Wallace in his individual
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`capacity under the ADA and ADEA. Ms. Sterling concedes these three arguments.
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`As an initial matter, defendants argue that UAPTC should be dismissed from the case
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`because it is not a legal entity capable of being sued (Dkt. No. 8, at 2). Instead, UAPTC is a
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`campus of the University of Arkansas System (Dkt. No. 9, at 8). See Assaad-Faltas v. Univ. of
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`Ark. for Med. Scis., 708 F. Supp. 1026, 1029 (W.D. Ark. 1989), aff’d, 902 F.2d 1572 (8th Cir.
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`1990) (recognizing that campus of university is not a separate entity which can be sued). Ms.
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`Sterling agrees that UAPTC is not an entity that can be sued (Dkt. No. 14, at 1). The Court
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`therefore dismisses without prejudice Ms. Sterling’s claims against UAPTC.
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`Defendants also argue that Ms. Sterling has failed to state a claim for which relief can be
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`granted under the Rehabilitation Act (Dkt. No. 9, at 28–29). Ms. Sterling clarifies in her response
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`to defendants’ motion for summary judgment that she “drops the Rehab Act claims” (Dkt. No. 14,
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`at 2). It is therefore not necessary for the Court to determine whether Ms. Sterling fails to state a
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`claim under the Rehabilitation Act. The Court dismisses Ms. Sterling’s claims under the
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`Rehabilitation Act.
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`Defendants further argue that Dr. Wallace in his individual capacity is entitled to summary
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`judgment on Ms. Sterling’s claims under the ADA and ADEA (Dkt. No. 8, at 2). Defendants
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`contend that agency supervisory employees may not be held individually liable under the ADA or
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`ADEA (Dkt. No. 9, at 10–11, 31). Ms. Sterling clarifies in her response to defendants’ motion for
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`summary judgment that she “does not bring individual capacity claims against Wallace under the
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`ADEA [or] ADA” (Dkt. No. 14, at 2). This statement is consistent with Ms. Sterling’s amended
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`complaint in which she claimed only that “the board members in their official capacity are sued
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`under the ADA and ADEA” (Dkt. No. 2, ¶ 2). The Court therefore need not address whether Dr.
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`Wallace can be sued in his individual capacity under the ADA and ADEA or whether he is entitled
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`to qualified immunity under those statutes because Ms. Sterling has not sued Dr. Wallace under
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`those statutes.
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`Ms. Sterling’s remaining claims are: (1) under the ADA against the members of the Board
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`of Trustees in their official capacities for injunctive relief; (2) under the ADEA against the
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`members of the Board of Trustees in their official capacities for injunctive relief; and (3) under the
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`FMLA against all defendants for injunctive and monetary relief (Dkt. No. 14, at 1–2; Dkt. No. 2,
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`¶ 2). Ms. Sterling seeks relief in the form of cleaning of her personnel file, a directive not to
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`retaliate, awarding the next three available promotions to her, promotion to the position at issue,
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`training, declaratory relief, an apology, posting of this lawsuit and verdict, a trial by jury, and
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`reasonable fees and costs on all claims (Dkt. No. 2, at 5). Additionally, she seeks recovery of lost
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`wages and benefits, front pay or reinstatement, and liquidated damages on her FMLA claims (Id.).
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`Defendants also argue that all defendants in their official capacities are entitled to sovereign
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`immunity on all claims for monetary and injunctive relief (Dkt. No 8, at 2). Defendants maintain
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`that Dr. Wallace in his individual capacity is entitled to qualified immunity on Ms. Sterling’s
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`FMLA claims because, according to defendants, he did not violate any clearly established law and
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`acted reasonably under the circumstances (Id., at 3). Finally, defendants argue that Ms. Sterling’s
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`ADA, ADEA, and FMLA claims all fail on the merits either because she cannot establish prima
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`facie cases under the relevant statutes or because she cannot establish that defendants’ reason for
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`not hiring Ms. Sterling was pretextual (Id., at 2–3). The Court addresses each of these arguments.
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`B.
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`Defense Of Sovereign Immunity
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`1.
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`Monetary Relief
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`Defendants argue that the Eleventh Amendment bars Ms. Sterling’s claims to the extent
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`that she seeks monetary relief under the ADA and ADEA against the members of the Board of
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`Trustees and Dr. Wallace in their official capacities (Dkt. No. 9, at 11, 31). Defendants also argue
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`that they are entitled to summary judgment because official capacity claims for monetary relief
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`under the FMLA are barred by the Eleventh Amendment (Dkt. No. 8, at 2). Ms. Sterling responds
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`that she can obtain monetary relief from the Board of Trustees under the FMLA because her leave
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`was not for her own health condition (Dkt. No. 14, at 1).
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`The Eleventh Amendment protects states from suits brought by citizens. U.S. Const.
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`amend. XI. This protection extends to suits against a state’s departments and agencies. Pennhurst
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`State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State officials acting in their official
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`capacities are entitled to sovereign immunity when plaintiffs seek retroactive monetary relief
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`which would be “paid from public funds in the state treasury[.]” Edelman v. Jordan, 415 U.S.
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`651, 663 (1974). However, state officials may be subject to suits for prospective injunctive relief
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`to prevent ongoing violations of federal law. Ex parte Young, 209 U.S. 123, 159–60 (1908).
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`The members of the Board of Trustees and Dr. Wallace in their official capacities are
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`entitled to sovereign immunity to the extent that Ms. Sterling seeks monetary relief under the ADA
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`and ADEA. Arkansas is immune from suits under the ADA and ADEA and has not waived its
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`immunity under either statute. See Bunch v. Univ. of Ark. Bd. of Trustees, 863 F.3d 1062, 1067–
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`68 (8th Cir. 2017) (recognizing Arkansas’ immunity under ADA); Whitten v. Ark. Dep’t of Human
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`Servs., 2 Fed. Appx. 595, 597 (8th Cir. 2001) (recognizing Arkansas’ immunity under ADEA).
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`Further, sovereign immunity bars suits against state officials in their official capacity for
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`retroactive monetary relief. Edelman, 415 U.S. at 663. Therefore, to the extent that Ms. Sterling
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`seeks monetary relief under the ADA and ADEA, sovereign immunity bars her claims.
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`However, Ms. Sterling’s claims against defendants in their official capacities for monetary
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`relief under the FMLA are not barred by sovereign immunity because Congress validly abrogated
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`state sovereign immunity for claims under the FMLA’s care-of-others provision. Congress may
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`abrogate state sovereign immunity when enacting legislation pursuant to its powers under the
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`Fourteenth Amendment. The Fourteenth Amendment provides that no state shall “deprive any
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`person of life, liberty, or property, without due process of law; nor deny to any person within its
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`jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section Five
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`empowers Congress “to enforce, by appropriate legislation, the provisions of this article.” Id. § 5.
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`The Fourteenth Amendment “embod[ies] significant limitations on state authority” and thus allows
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`Congress to “provide for private suits against States or state officials which are constitutionally
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`impermissible in other contexts.” Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Under the
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`FMLA, states are immune from suit when an employee sues under the FMLA’s self-care provision.
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`Coleman v. Court of Appeals of Md., 566 U.S. 30, 33 (2012); 29 U.S.C. § 2612(a)(1)(D). However,
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`the Supreme Court has held that Congress validly abrogated state sovereign immunity under the
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`FMLA’s care-of-others provision, which Congress passed pursuant to its powers under Section
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`Five of the Fourteenth Amendment to remedy unconstitutional gender discrimination. Nev. Dep’t
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`of Human Res. v. Hibbs, 538 U.S. 721, 730 (2003); 29 U.S.C. § 2612(a)(1)(C).
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`Ms. Sterling’s leave was covered under the FMLA’s care-of-others provision, based on the
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`undisputed record evidence before the Court. Under the FMLA, eligible employees are entitled to
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`leave to care for a family member with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). A
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`serious health condition is “an illness, injury, impairment, or physical or mental condition that
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`involves . . . continuing treatment by a health care provider.” Id. § 2611(11)(B). Cancer is a
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`serious health condition. S. Rep. No. 103–3, at 29 (1993). Further, doctor’s appointments for the
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`treatment of serious health conditions are covered by the FMLA. Phillips v. Mathews, 547 F.3d
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`905, 910 (8th Cir. 2008). Here, it is undisputed that Ms. Sterling took FMLA leave during the
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`time period of May 8, 2018, that her leave was approved by her supervisor, and that Ms. Sterling
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`took leave to attend a “cancer doctor’s appointment” with her mother (Dkt. No. 10, ¶¶ 21–23).
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`Based on this record evidence, Ms. Sterling can establish that her leave fell under FMLA’s care-
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`of-others provision. The members of the Board of Trustees and Dr. Wallace in their official
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`capacities are therefore not entitled to sovereign immunity on Ms. Sterling’s claims for monetary
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`relief under the FMLA.
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`The Court grants defendants’ motion for summary judgment on the issue of sovereign
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`immunity on Ms. Sterling’s claims for monetary relief under the ADA and ADEA but denies the
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`motion on the issue of sovereign immunity on Ms. Sterling’s claims for monetary relief under the
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`FMLA.
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`2.
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`Injunctive Relief
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`Defendants are not entitled to sovereign immunity on Ms. Sterling’s claims for prospective
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`injunctive relief. Defendants argue that the exception to sovereign immunity under Ex parte Young
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`does not apply because Ms. Sterling has not alleged an ongoing violation of federal law and that
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`there is no relief which could be granted to Ms. Sterling even if she could successfully bring a
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`claim (Dkt. No. 9, at 31). Ms. Sterling responds that she can obtain prospective injunctive relief
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`because she is suing the individual members of the Board of Trustees in their official capacities
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`under Ex parte Young (Dkt. No. 14, at 1–2).
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`A plaintiff seeking injunctive relief against a state official under Ex parte Young must
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`demonstrate both that she seeks prospective injunctive relief and that there is a continuing violation
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`of federal law. Green v. Mansour, 474 U.S. 64, 68 (1985). A court considering whether the Ex
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`parte Young exception applies need only conduct “a straightforward inquiry into whether [the]
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`complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
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`prospective.” 281 Care Committee v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011) (quoting Verizon
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`Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002)). The Eighth Circuit
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`has recognized that the Ex parte Young exception applies to suits against state officials where the
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`plaintiff alleges that they were terminated in violation of federal law and seeks reinstatement. See
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`Mahn v. Jefferson Cty., 891 F.3d 1093, 1099 (8th Cir. 2018) (permitting suit under Ex parte Young
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`exception where plaintiff sought “declaratory relief that her employment was terminated in
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`violation of the First Amendment . . . and the remedy of reinstatement to her position”); see also
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`Singer v. Harris, CASE NO. 4:15CV00408 BSM, 2016 WL 10489850, at *5 (E.D. Ark. July 13,
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`2016) (permitting plaintiff’s claim for prospective injunctive relief under ADA to proceed to trial
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`where plaintiff’s complaint sought “Declaratory for reinstatement or front pay”). In Mahn, a case
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`involving First Amendment retaliation, the Eighth Circuit observed that reinstatement is an
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`appropriate remedy under Ex parte Young because “[t]he goal of reinstatement . . . is not
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`compensatory; rather, it is to compel the state official to cease her actions in violation of federal
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`law and to comply with constitutional requirements.” Mahn, 891 F.3d at 1099 (quoting Elliott v.
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`Hinds, 786 F.2d 298, 302 (7th Cir. 1986)).
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`The Court concludes that, on a straightforward inquiry into Ms. Sterling’s complaint, she
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`seeks prospective injunctive relief against state officials to remedy an alleged failure to hire in
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`violation of the ADA, ADEA, and FMLA. In her complaint, Ms. Sterling represents that she seeks
`
`relief in the form of, among other things, cleaning her personnel file, a directive not to retaliate,
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`awarding the next three available promotions to her, promotion to the position at issue, and training
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`(Dkt. No. 2, at 5). She alleges that she was not promoted because of her association with a person
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`with a disability, because of her age, and because of her use of FMLA leave, all of which would
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`be violations of federal law (Id., at 4–5). As in a case for reinstatement, the relief Ms. Sterling
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`seeks would, if granted, “compel the state official[s] to cease [their] actions in violation of federal
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`law and to comply with . . . requirements” under federal law. Mahn, 891 F.3d at 1099 (quoting
`13
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`Case 4:19-cv-00025-KGB Document 19 Filed 10/23/20 Page 14 of 26
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`Elliott, 786 F.2d at 302). The Ex parte Young exception therefore applies, and defendants are not
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`entitled to sovereign immunity on Ms. Sterling’s claims for prospective injunctive relief.
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`Defendants’ arguments to the contrary are unavailing. Defendants argue that Ms. Sterling
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`does not seek prospective injunctive relief based on statements Ms. Sterling made at her deposition
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`(Dkt. No. 9, at 12–13). At her deposition, Ms. Sterling was asked, and answered, as follows:
`
`Q.
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`Okay. Are you asking to be placed in the coordinator position and Mrs. Howell --
`Mrs. Howell removed from that position?
`
`
`A. Well, if I was offered the position, that would be a different scenario. I don’t know
`how to answer that one. I mean if we were today and we were doing the hiring and
`I was offered the job, I would take the job. Does that answer that question?
`
`Right. But since that is not the situation we have --
`
`Right, but is -- is --
`
`
`Q.
`
`A.
`
`Q. Would you want Ms. Howell -- are you asking that Ms. Howell be removed and
`you placed in the position?
`
`That’s -- I’m having a problem with the question.
`
`Okay. I mean -- I mean I’m just saying this. This is -- yes.
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`You would want the university to --
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`-- fire Mrs. Howell and hire you?
`
`
`A.
`
`Q. Well, its times --
`
`A.
`
`Q.
`
`A. Well, I just don’t want --
`
`Q.
`
`A.
`
`No, I don’t really want her to be fired is where I’m having the problem with; is --
`the problem is that I felt like I was the most qualified for the position, okay, and I
`should have gotten the position. Now, they hired her now. She’s been there a year
`and a half. I don’t know what they should do with her. Okay. That’s --
`
`
`Q. Well, that’s why I asked because I’m not sure what – what -- are you asking to be
`placed in any other jobs?
`
`
`A.
`
`
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`Currently?
`
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`Case 4:19-cv-00025-KGB Document 19 Filed 10/23/20 Page 15 of 26
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`
`Q.
`
`A.
`
`Q.
`
`
`A.
`
`Yes. Uh-huh.
`
`No.
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`Are there any jobs that you are aware of in particular or at this time that you would
`like to be placed in?
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`No, not that I -- I haven’t looked at the jobs.
`
`
`(Dkt. No. 8-1, at 18–19).
`
`
`Based on the record evidence before the Court construing all reasonable inferences in favor
`
`of Ms. Sterling, Ms. Sterling seeks promotion to the position at issue, among other forms of
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`prospective injunctive relief. This satisfies the inquiry under Ex parte Young. See Mahn, 891 F.3d
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`at 1099 (“The Eleventh Amendment does not bar the relief of reinstatement.”).
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`Defendants further argue that they may not be sued for injunctive relief because “[w]ith
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`regard to the ADEA, the United States Supreme Court has never held that the Ex parte Young
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`doctrine may be used to circumvent the Eleventh Amendment” (Dkt. No. 9, at 12). However, suits
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`against state officials in their official capacity for prospective injunctive relief are permissible
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`under the ADEA notwithstanding the fact that the Supreme Court has not explicitly applied Ex
`
`parte Young to the ADEA. Courts within the Eighth Circuit have allowed suits for prospective
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`injunctive relief against state officials under the ADEA. See, e.g., Jackson v. Univ. of Ark. for
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`Medical Scis., No. 4:08CV04234–WRW, 2009 WL 890518, at *2 (E.D. Ark. March 31, 2009);
`
`see also Drye v. Univ. of Ark. for Medical Scis. ex rel. Univ. of Ark. Bd. of Trustees, No.
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`4:09CV00922 JLH, 2011 WL 288564, at *1 (E.D. Ark. Jan. 27, 2011) (collecting cases).
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`Defendants do not cite authority to the contrary. The Court therefore declines to find an exception
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`to Ex parte Young for claims under the ADEA.
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`
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`Case 4:19-cv-00025-KGB Document 19 Filed 10/23/20 Page 16 of 26
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`For these reasons, the Court denies defendants’ motion for summary judgment on the issue
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`of sovereign immunity on Ms. Sterling’s claims for injunctive relief under the ADA, ADEA, and
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`FMLA.
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`C.
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`Defense Of Qualified Immunity
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`Defendants next contend that Dr. Wallace in his individual capacity is entitled to qualified
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`immunity on Ms. Sterling’s FMLA claim. Defendants argue that “a reasonable official would not
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`have known that his actions violated any of Sterling’s FMLA rights” (Dkt. No. 9, at 38). Ms.
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`Sterling contends that Dr. Wallace is not entitled to qualified immunity because retaliation and
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`discrimination are clearly established as illegal under the FMLA (Dkt. No. 14, at 1).
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`The Court concludes that Dr. Wallace is not entitled to qualified immunity because
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`qualified immunity is not available to defendants on an FMLA claim. Darby v. Bratch, 287 F.3d
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`673, 682 (8th Cir. 2002). The Eighth Circuit held in Darby that the FMLA “creates clearly
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`established statutory rights, including the right to be free of discrimination or retaliation on account
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`of one’s exercise of leave rights granted by the statute.” Id. Courts in this Circuit therefore
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`routinely reject defenses of qualified immunity under the FMLA. Fiedler v. Nebraska,
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`4:08CV3144, 2010 WL 11526885,