Derrick Dorrell Turner v. Arkansas Insurance Department, Mike Pickens

However, indicates that the the record eval- entity, and its separate as a MRNRC sys- separate filing in a kept records are recommendation the MRNRC uation tem, the LeValley reports to MRNRC the Service’s supported as it only insofar is- all substantive result. Chair for compel opposite the position, sues, than employee other and no Service event, 1999 letter the any accessed the LeValley the ever worked on or it mentions because irrelevant recommendation, that the records. To the extent requested of thé MRNRC influence documents, rely on requested the did MRNRC any of Service influence of not the have been in Ser- process. documents would records, decision-making those in its files, files, and as such not MRNRC vice provided has not Missouri Because Although the to Missouri. nexus offered requisite the to establish were evidence mutu- the did have a and the MRNRC and Service records the MRNRC’s between that relation- agency relationship, ally official beneficial its performance Service’s the private does not ship court did alone duties, that the district we hold transform agency. into a federal entity or- of MRNRC concluding private that the in not err merely an the Service was contrary, were To the of MRNRC records the ganizational of the MRNRC and the rec- ex-officio member agency into federal not transformed forbade expressly Constitution MRNRC ords. employees participating federal us to refer urges further Missouri proceedings. in MRNRC MRNRC vote and by the D.C. Circuit outlined factors the conclude that Service therefore We exercise con did that the Service conclude showing that the its burden of satisfied Burka at issue. See the records trol over records agency were not requested records Health & Human Dep’t States v. United As a of the FOIA. meaning within (D.C.Cir.1996) Servs., result, did not err district court (Burka). concluded Circuit has The D.C. could not be the MRNRC determining that (1) records when agency an controls files private turn over its compelled to agency creator intended the document’s request. to Missouri’s FOIA response (2) records, control over to have from any way not restricted agency was Conclusion it records as disposing of the using and re (3) read or agency personnel pleased, district judgment of the Accordingly, the records to some requested upon lied is affirmed. (4)

extent, were inte the documents and system. agency’s record into the

grated (1) id. Missouri maintains

See control over relinquish intended

Service was a Service LeValley, who

its records (2) not restrict

employee, Service using disposing from any way

ined (3) records, records were read TURNER, Appellee, Derrick Dorrell evi by agency personnel, upon relied indi from the Service by a letter denced nfrom suggestio it had used cating that manual, INSURANCE ARKANSAS to revise its

MRNRC DEPARTMENT, property kept on Service were documents Defendant, employee. a Service PICKENS, Appellant. Mike

No. 01-3498. Appeals,

United States Court of

Eighth Circuit. May

Submitted: July

Filed:

Rehearing Rehearing En Banc Sept.

Denied: 2002.* * Judge Bye grant petition would for rehear- decision in this matter. Judge en banc. part Smith took no AAG, Little argued,

Timothy Gauger, G. Rock, AR, appellant. for Newbombh, argued, Little A. Robert Rock, AR, appellee. BYE, BOWMAN, MAGILL, and

Before Judges. Circuit MAGILL, Judge. Circuit Pickens, the Insurance Commis- Mike Arkansas, appeals of the State sioner for motion denial of his court’s1 the district immu- judgment on summary ap- on presented The issue nity grounds. Whether, quali- narrow one: peal is a it was immunity purposes, fied 23, 1999, that September on upon conferred U.S.C. free from dis- right to be employee the or in discrimination on racial charge based For exercising rights. retaliation below, conclude set forth the reasons clearly established that such and affirm. of date I. Turner, African- Dorrell

Derrick American, former is a (the Insurance Commission the Arkansas “Commission”). Turner May position to the promotion applied for Analysis. Manager of Financial Assistant of Arkansas. District Wright, Chief Eastern Webber Susan 1. The Honorable Court for Judge, District United States however, dismay, Much to his Mettler, ty. Turner was 165 F.3d at 1202 (citing Col not selected position. to fill the Shortly Bellinghausen, lins v. 153 F.3d thereafter, (8th filed a charge Cir.1998)). Turner Additionally, we review a Equal Employment Opportunity Commis district court’s denial summary judg (“EEOC”) 22, 1999, sion July alleging ment based on qualified immunity de novo. that he was a promotion denied based on Vaughn Ruoff, later, his race. About two months above, As noted review is limit 28, 1999, law, terminated ed to issues of and this court does not Turner. Pickens’ proffered reason for review the merits case or the suffi terminating Turner was Turner’s alleged ciency of the evidence. Lyles v. City of misrepresentations to the Commission re Barling, Cir. garding undergraduate 1999). degree. Sub Finally, whether the law at issue sequently, Turner amended his EEOC “clearly was established” at the time of the so, complaint. In doing Turner aban alleged violation pure is a question of law doned his failure promote claim and' to be, reviewed de novo. Winters v. sued Pickens in his capacity individual un Adams, (8th Cir.2001). der Title §§ VII and 42 U.S.C. 1981 and 1983, claiming that he was terminated be III. cause of his in race retaliation for and/or In reviewing qualified immunity filing his initial EEOC claim. cases, (1) we must determine whether court, In the district Pickens moved there a deprivation of a federal consti summary judgment arguing that he was tutional or statutory and, so, if right qualified entitled to immunity must determine whether the -right was claims based on particular, “clearly established” at the time of the argued Pickens as of September alleged deprivation. County Sacramen 1999, the law not clearly established Lewis, to v. 523 U.S. 841 n. that an at-will could bring a (1998). 140 L.Ed.2d 1043 If claim under 1981 for race discrimination either question is answered the nega or retaliatory discharge. By order en- tive, inquiry comes to an end and the 10, 2001,

tered October the district court public official is qualified entitled to immu denied Pickens’ summary motion for judg- nity. Vaughn, 253 F.3d at 1128. If both ment. timely appealed. questions are affirmative, answered in the however, a public may official avoid suit

II. only if he meets his burden of establishing Under the collateral undisputed order doc and material facts that demon trine, a district denial court’s of a qualified strate that his actions were reasonable un immunity defense be immediately ap der the circumstances. If such Id. facts are pealed. Mettler v. Whitledge, undisputed, then that question is a of law 1197, 1202 Cir.1999); see also Mitchell to be by court; not, reviewed if then it is v. Forsyth, 472 U.S. a question 105 S.Ct. for a jury and summary judg (1985). However, L.Ed.2d 411 ment improper. case, Id. In this Pick because this case comes to us on an inter ens not dispute does that Turner has been locutory appeal, jurisdiction our is ex deprived right, of a nor sup does Pickens tremely fact, limited. the only issue ply the court with any undisputed and jurisdiction this court has to hear is wheth predicate material facts to show that his er Pickens is entitled to immuni actions were reasonable under the circum claim the statutory. Underlying this on or solely stances, Pickens relies rather but an at-will em- premise of whether was not “clear basic that the law the contention or depriva good can fired for the time of the who cause ployee, at ly established” all, See, Buckley Rogerson, bring can an action under e.g., no cause tion. 1125, 1131 right.2 of a contractual for violation review, all case of our purpose For the established,” the To be otherwise, law, must Supreme Court sufficiently clear “must be right’s contours Septem- have been “established” would understand official that a reasonable 23,1999. ber right.” doing violates that he is that what 635, 640, Creighton, 483 Anderson (1987); see 97 L.Ed.2d

107 S.Ct. IV. — U.S. —, —, Pelzer, Hope also 666, — 2508, 2515, 153 guarantees persons to all L.Ed.2d Section 1981 122 S.Ct. however, (2002). every “the same requirement, is no There the United States previ has enforce Territory action in very “that the make State rather, unlawful, but white citi- ously enjoyed been held as is contracts .... (1994). 1981(a) the unlawfulness law light pre-existing ....” U.S.C. zens F.3d at Vaughn, Union, 253 apparent.” must be 491 v. McLean Credit Patterson (internal citations quotations and 2363, 1129 164, 179-80, 109 105 U.S. — at —, omitted); Hope, also see (1989), Supreme the Court L.Ed.2d 132 (Thomas, J., 2515; at 2522 at id. 122 S.Ct. “only § 1981 covered con- concluded that determination, this dissenting). making In the the formation of contract duct at initial the con view of to a broad “we subscribe impairs right the to conduct which and law, look we clearly established and cept of through legal obligations enforce contract law, including available decisional to all held Consequently, the Court process.” courts, federal from other decisions § did not cover racial harass- 1981 state, precedent no binding there is when that occurred after employer ment an (internal quotations Id. in this circuit.” employment of the relation- inception the omitted). That even and citations 176-77, In 2363. 109 S.Ct. ship. Id. at in decisions absence complete the Patterson, Congress amended response facts, “clear a can be volving similar Rights Act through § the Civil 1981 offi public if a reasonable ly 102-166, 1071. 1991, 105 Stat. Pub.L. No. the conduct known that cial have would so, scope the Congress broadened doing (citing unlawful. Id. of was complained con- “make and enforce phrase 628, Serrell, 244 Tlamka v. making, perfor- “the include tracts” to Cir.2001)). modification, mance, and termination contracts, of all enjoyment bene- presented issue determinative terms, fits, and conditions of privileges, estab- it was is whether appeal 42 U.S.C. relationship.” contractual lished” 1981(b) (1994). Thus, provides § could not be fired employee from that occur violations protection race or of his retaliation the basis con- until the conclusion inception constitutional rights, either exercising held, has how- explicitly the issue employ- has decided Recently, concluded that at-will ever, maintain § at-will an maintain actions under ees could racially Maritz, Inc., discriminato- claim 1981 under Skinner cases). (citing practices.”) ry employment Cir.2001) ("Each appeals that court of federal Skinner, Patterson, relationship. tractual F.3d at the United States Su Court, preme while rejecting underly claim, ing merits of Patterson’s acknowl brought In an action under Patterson, edged that an employee, are first with determin tasked might have a cause of action based on the employment Turner’s at-will employer promote claims that her failed was a relationship Commission her her at based on race. 491 U.S. one under Arkansas law. contractual Id. so, doing S.Ct. 2363. Court 340. The Arkansas Court has stated that “the whether a pro employee’s held that “repeatedly when motion claim is actionable under employment for an contract of is indefinite depends upon whether the nature of the term,” an employment relationship such change position was such it in at-will. Sterling Drug, considered Inc. v. opportunity volved the into a enter new Oxford, so, 294 Ark. 743 S.W.2d 383 contract If employer. then Erickson, (citing the employer’s Ark. refusal to enter the new Griffin (1982)) (emphasis contract' is actionable 1981.” S.W.2d add Id. added). ed). (emphasis As the Fifth Circuit nature Despite contractual of an out, pointed has language “[t]his leaves no at-will employment relationship, generally doubt that the Court considered the em “right employer to terminate ployee’s relationship [at-will] with her em unconditional abso ployer pur to be a contractual one” Unlimited, lute.” Servs. Marine Inc. v. poses §of it apparent 1981 because Rakes, Ark. 918 S.W.2d “there can no ‘new contract’ unless (1996) (internal quotations and citations there is old Fadeyi first an contract.” omitted). whether, But under Arkansas Lubbock, Planned Parenthood Assoc. law, Turner’s was proper termination of Inc., (5th Cir.1998). 160 F.3d not relevant this casé because look merely to state law to define the Patterson, nature of Under purposes of relationship an the between at-will em an employment-at-will relationship Here, ployee his employer. although a considered contractual one even at-will, employment though independent Turner’s an was under state law contract may 1051; Fadeyi, Arkansas law such an not exist. employment rela 160 F.3d Avera, see Bishop also tionship is contractual in nature although (11th Cir.1999); 1236 n. 6 v. Dia- any independent Spriggs it is not on based con Glass, mond Auto 165 F.3d 1020 n. 8 right. tractual (4th Cir.1999); McKnight v. Motors Gen. Having determination, made this (7th Cir.1990). Corp., 908 F.2d we now turn to whether it was “rejected That in Patterson the Court that an- employee at-will could the notion a requires plaintiff that not be for illegal fired reasons without independent to have an contractual recourse the protections afforded law,” to sue under state but rather “[§ ] § 1981. we -take While a broad view of all 1981 only requires that employee the have ” making available decisional law when Skinner, the a ‘contract.’ at 341 n. determination whether a principal read, of law 2. Properly the decision Patterson “clearly established,” was we necessarily presumes at-will employees that have First, follow hierarchical framework. rights “contractual” under are must address relevant Court pre enforceable in court. Haddle Garri- Cf. son, 121, 126, cedent. 525 U.S. minority intended to install (at-will expressly could employee L.Ed.2d at 1050. the be employees.” under U.S.C. bring action view, at- [was] with “conclusion clear of interference kind court’s “[t]he cause alleged here employee can employment though relations an at-will will that even of cause, traditional torts cause, species bad or no merely good be fired contractual interference all, be fired for intentional he or she cannot cause at added); ”) also see (emphasis relations Id. at illicit cause.” 1051-52. Co., 980 Assocs., Ins. Inc. v. Time Estes later, January A few months 1228, 1232 ter- to Turner’s eight prior months about casts serious foregoing discussion The mination, the Fourth Circuit addressed Patterson, Pickens’ claim because doubt reaching same Spriggs. issue an at- to hold implicitly, appears albeit in Fadeyi, the court conclusion as of action bring a cause will “that an at- [because] held Fourth Circuit However, if there is § 1981.3 under relationship is contractual will was district court about whether doubt may therefore serve relationships ... such Pickens’ motion in denying correct § 1981 claims.” contracts for predicate immu- summary judgment on In so con- 165 F.3d at 1018-19.4 Spriggs, of claims, courts the decisions nity special mention the court made cluding, our conclusion. support further appeals was consistent its decision the fact to ex- appellate first federal Appeals decision to “only Court of whether issue address pressly Id. at this issue.” resolved squarely have employee’s supports Thus, the Fifth Circuit action cause appeals to address two courts on November was decided Fadeyi, which Turner’s claim squarely that the issue held 11, 1998, year before Turner’s almost a actionable. court, relying Fadeyi, termination. Nevertheless, points cases Patterson, hold noted that “[t]o heavily on Circuits and Eleventh from Seventh right of have no employees was not the law argues he show that effectively evis- § 1981would action First, the Seventh “clearly established.” that very protection Congress cerate By requiring black employers. em- Congress superceded their true that While it is 3. environment, Rights ployees to work in hostile of the passage with its Civil Patterson them the same necessarily employer has denied does not follow of it Act is all advancement that avail- completely opportunity eliminate Congress to intended policy Patterson. A deliberate analysis put forward in citizens. able to white of fact, Patterson, Congress ap- employees are overruling who of black in of harassment submit, approach Justice adopted the of pears to have I competing with white citizens (explain- Fadeyi, making at 1050 Stevens. 160 of in discrimination manifest Rights history Act of legislative of the Civil ing concept which in the sense in contracts Patterson, 1991). Jus- Writing in separately McCrary, Runyon [427 v. interpreted in was understanding on (1976)]. tice Stevens elaborated S.Ct. 2586 96 employment rela- at-will nature of the of the Patterson, S.Ct. 2363 at 109 491 U.S. §a 1981 action: tionship of in the context J., dissenting concurring part (Stevens, in petitioner, employee, part). such in An at-will contract; existing merely performing an not recognized that Although Circuit the Fourth 4. remaking constantly that con- she conclusion, the supported its Patterson employed at or for will [W]hether ... tract. analysis rely in Patterson. on the term, chose to not typically to employees strive fixed at n. Spriggs, 165 F.3d 1020 rewarding relationship with a more achieve 75 8 dictum,

Circuit, questioned they whether “at- nevertheless cast sufficient doubt adequate support will provide[s] status over claims Turner’s and demonstrate that [plaintiffs] 1981 claim.” section Gonzalez the law not “clearly established.” We Co., v. Ingersoll Milling Mach. disagree. Although recognize we Cir.1998); 1035 but see support these position, cases Pickens’ McKnight, (noting F.2d at 109 reject suggestion Pickens’ that such dic- at “[a] contract for will tum equal footing stands on settled continuing end but it is a real and abruptly case law.5 nonetheless”). However, contract because plaintiff provide did not Gonzalez making When the determination direct evidence discrimination could “clearly whether the law was estab point similarly not other situated to em- alleged lished” at the time the violation ployees who had been more favor- treated occurred, obligated we are to include the ably, the court did not determine the Tlamka, decisions of the district courts. § Next, question. 133 F.3d at 1035. thorough F.3d at 634. A review of the Eleventh Circuit but considered did these decisions show that the overwhelm not decide the majority reaching cases the issue could sue under Bish- concluded that an employee’s at-will status at op, (holding that conduct did not preclude the maintenance of an complained of was not unlawful in count, action under 1981. By our out of light pre-existing law governing published nineteen on opinions the is 1994). 1981,” claims under as of June sue, 28A(k), see 8th R. Cir. fifteen distinct conclusion, however, coming this courts employees concluded that at-will Eleventh noted that Patterson Circuit could sue while four “arguably point,” but chose not to apply found such impermissib a cause of action at n. Patterson decision. Id. respect decisions, le.6 With argues although these cases these directly us, do not address the tips issue before balance in favor of Turner. say Co., 5. This is that we not take not do notice Farrior v. F.Supp.2d H.J. Russell & dictum, (N.D.Ga.1999) (same); but such rather that do think 1364-66 Jones Inc., necessary equal Sys., give prece- that it it F.Supp.2d Sabis Educ. so, essence, (N.D.Ill.1999) (same); 875-76 dential effect. To do Riad v. would 520 S. Ltd., give F.Supp.2d Mich. Ave. these cases force and effect of law Assocs. (N.D.Ill.1999); propositions 754-57 certain in the narrow context Pettis Alexander Ltd., Graphics, determining F.Supp.2d "clearly whether the law was (S.D.Ind.1999) (same); qualified immunity purposes. v. Am. Baker Juice Inc., view, (N.D.Ind.1994) F.Supp. employing practice our such a would (same); Inc., customary Humanity, Filbern Habitat odds manner in 833, F.Supp.2d (W.D.Mo.1999) 57 v. which we treat dictum. St. 835-36 John’s Stekloff 858, (same); Motorcars, (8th Inc., Mercy Sys., LaRocca v. Health 862 Precision note, however, 762, Cir.2000) ("We F.Supp.2d (D.Neb.1999) 45 pass- that this 774-76 (same); Co., ing Ferguson v. comment was dictum does not O’Neal Constr. and bind 35 832, us.”); (D.N.M.1999) F.Supp.2d (same); Mortgage see also RTC 837-38 Trust 1994—N2v. McClenahan, Haith, 574, 225, F.Supp. v. 133 Mass 577 893 230-31 ( 1995) (same); v. Good Sa S.D.N.Y. Lazaro Entm’t, Compare 180, Ogden Lane v. Hosp., 13 maritan 54 F.Supp.2d 184-85 1261, (M.D.Ala.1998) (hold- (S.D.N.Y. 1999) (same); F.Supp.2d 1272 Williams v. United Farmers, ing 1193, employee may bring Daily a F.Supp.2d 20 1201-02 1981); (S.D.Ohio 1998) (same); Sheppard cause Henry of action under v. Trammell Dickstein, Inc., Shapiro, SE, 629, Oshinsky, Morin F.Supp.2d & 59 Crow 34 633-35 27, (D.D.C.1999) (same); (W.D.Tenn.1998) F.Supp.2d (same); 31-32 v. Wis. Price Servs.

759 BYE, dissenting. Judge, Circuit question us to This leads case, strongly which Supreme Court one “clearly established” The deduces court the cor- is position Turner’s implies over- Court decision Supreme law from a cases one, appeals courts of two plus rect evenly-divided cir- Congress, four by ruled ex- opinions court fifteen district and decisions, district and fifteen cuit court is the position Turner’s state that pressly The court’s against four. court decisions law in one, enough to show correct count) (and conflict with its nose approach We “clearly established.” circuit, I can in our and earlier cases Determining whether it does. hold and munici- government wonder what a not “clearly established” is law is will in our circuit lawyers practicing pal The determination science. precise this case. take from prece- however, balancing of all available a with the point, law on dential decisional v. Mc on Patterson reliance court’s decisions given effect greatest Union, 164, 109 491 Lean Credit Next, we Court. Supreme States United (1989), 2363, deeply L.Ed.2d 132 circuit, and where own our look within was overruled since decision troubling canvass we then point no law on there Act of Rights Civil Congress the district appeals, .of the other courts 101, 102-166, § 1991, 105 Stat. No. Pub.L. courts,7 deci- courts, giving each and state how a I cannot fathom 1071-72. In our weight. requisite its point sion can law longer “good” that is no decision circuit view, two cases the fact that The court’s law. “clearly established” directly support cases district fifteen court authority is appellate on federal reliance im- Court proposition circuit split since equally problematic, suffi- position is that same supports plicitly case) (as presents have in this authority law to demonstrate cient the law is not evidence nearly irrefutable September as of “clearly established” v. Lit McMorrow clearly See established. (8th Cir.1997); Mur tle, Dowd, Cir.

phy v. y. 1992) curiam). cal the court Finally, (per author split 15-4 of district above, culates a hold stated For the reasons mind, this my position. its To ity favoring it was that as of was un law nose count demonstrates employees that at-will “clearly established” settled, these decisions when particularly discrimination could sue circuit. own within our Therefore, split reflect a we AFFIRM Hu Filbern Habitat Compare, e.g., summary denial district court’s Inc., 835-36 F.Supp.2d manity, immunity issue judgment on the (W.D.Mo.1999) (employees-at-will proceedings, further REMAND for claims), v. Becker with Jones today. bring result we reach consistent Cir.1998) (2d (Unpublished (E.D.Wis. WL 640438 Corp., F.Supp.2d Brown, Albertson's, Inc., Decision) (same); 1999) (same); Biglow v. Table Moscowitz (D.Kan.1999) (hold (S.D.N.Y.1994) F.Supp.2d F.Supp. a cause bring cannot (same). 1981); Becker Jones v. of action Div., F.Supp.2d Group O'Fallon toward, nor us party has directed 7. Neither (same); (E.D.Mo.1999) v. Moorer 796-97 law on any, decisional state we found have F.Supp. Corp., Aerospace Grumman point. (E.D.N.Y.1997), aff'd, 162 F.3d 675-76 (E.D.Mo. Group, F.Supp.2d America, Appellee, United States of 1999) (employees-at-will may not bring v. claims). Jones, Harold J. also known as Jones, Appellant. Jeff

The court’s has the approach added vice 00-2469, Nos. 00-3769 and decisions, 01-1601. of conflicting with such as Solem, Cir.1991), 936 F.2d 363 Offet United States of Appeals, Court where we debated South Dakota’s Eighth Circuit. application good-time credits law to Submitted: Nov. prisoners clearly constituted established July Filed: violation of the Ex Post Facto Clause. Rehearing En Canvassing authority, Rehearing relevant Banc found Sept. Denied: three circuit court decisions and two dis trict opinions favoring prisoner’s

approach. But we also identified a single

opinion from the California Court

disagreeing array of federal au

thority. underwhelming This split au

thority led our court to conclude the law clearly

was not established. Id. at 366-67. attempt court does not even to recon approach Offet,

cile its and I am

similarly square unable to them.

I cannot agree with the court that the

array divergent authority it has uncov- yields “clearly

ered established” law. I

respectfully dissent. America,

UNITED STATES of

Appellee, PALMER, Appellant.

John L. America,

United Appellee, States of Cashaw,

James O. also known J.C., Appellant.

Case Details

Case Name: Derrick Dorrell Turner v. Arkansas Insurance Department, Mike Pickens

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 11, 2002

Citation: 297 F.3d 751

Docket Number: 01-3498

Court Abbreviation: 8th Cir.