ELECTRONICALLY FILED Pulaski County Circuit Court Terri Hollingsworth, Circuit/County Clerk 2021-Jul-14 23:17:48 60CV-21-4295 C06D16 : 46 Pages IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS CIVIL DIVISION
Dr. Brian K. Mitchell Plaintiff v. Case No. ______
University of Arkansas at Little Rock Defendants
Dr. Christina Drale, Chancellor in her personal capacity
Dr. Velmer Burton, Provost in his personal capacity
Dr. Sarah Beth Estes, Dean of College of Arts and Sciences in her personal capacity
Dr. Jess Porter, Chair, History Department in his personal capacity
Dr. Belinda Blevins-Knabe, IRB Director in her personal capacity
Dr. Krista Lewis, Hearing Committee Chair in her personal capacity
UALR Institutional Review Board, Board of Trustees
COMPLAINT Introduction This is a cause of action for relief from employment discrimination under Title VII on the basis of race and national origin; employment discrimination under ADEA on the basis of age; employment discrimination under § 1981; harassment and retaliation under Title VII and § 1981; the Due Process Clause of the United States Constitution, pursuant to § 1983; and employment discrimination under the Arkansas Civil Rights Act.
Despite his accomplishments, as the only Black professor in the History Department, Dr. Mitchell has experienced a nearly continuous pattern of discriminatory interference with achieving access to fair terms, conditions, and opportunities for advancement while a full-time professor at UALR. His on-going employment is overshadowed and adversely impacted by multiple improperly motivated administrative actions. He is also subject to on-going harassment and retaliation by the parties named as defendants herein, through their roles at UALR.
Page 1 of 46 Complaint Mitchell v. UALR et al Parties
1. The Plaintiff, Dr. Brian Mitchell (“Dr. Mitchell”) is a natural person who resided in Pulaski County, Arkansas during the times relevant to this cause of action. Dr. Mitchell is a Black American, and at all times relevant to this cause of action, he was over the age of forty.
2. Separate Defendant University of Arkansas at Little Rock (“UALR”) is a public entity located in Little Rock, Arkansas. It is a corporate body with the power to sue and be sued. Ozarks Unlimited Res. Coop. Inc. v. Daniels, 333 Ark 214, 969 S.W.2d 169 (1998).
3. Separate Defendant Dr. Christina Drale is a natural person and currently serves as Chancellor at UALR. At all times relevant herein, she was employed as a senior administrator at UALR. She is named in her personal capacity.
4. Separate Defendant Dr. Velmer Burton is a natural person and currently serves as Provost at UALR. At all times relevant herein, he was employed as a senior administrator at UALR. He is named in his personal capacity.
5. Separate Defendant Dr. Sarah Beth Estes is a natural person and currently serves as Dean of the College of Arts and Sciences at UALR. At all times relevant herein, she was employed as a senior administrator at UALR. She is named in her personal capacity.
6. Separate Defendant Dr. Jess Porter is a natural person and currently serves as Chair of the History Department at UALR. At all times relevant herein, he was employed as a senior administrator at UALR. He is named in his personal capacity.
7. Separate Defendant Dr. Belinda Blevins-Knabe is a natural person and currently serves as IRB Director at UALR. At all times relevant herein, she was employed as a senior administrator at UALR. She is named in her personal capacity.
8. Separate Defendant Dr. Krista Lewis is a natural person and previously served as Grievance Hearing Committee Chair at UALR. At all times relevant herein, she was employed as a senior administrator at UALR. She is named in her personal capacity.
9. Separate Defendant UALR Institutional Review Board/IRB Board of Trustees is a public entity located in Little Rock, Arkansas. It is a corporate body with the power to sue and be sued. Ozarks Unlimited Res. Coop. Inc. v. Daniels, 333 Ark 214, 969 S.W.2d 169 (1998).
Jurisdiction
10. This Court has personal jurisdiction over Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis and UALR because at all times relevant to this cause of action, each of the foregoing had continuous and systemic contacts with the State of Arkansas that are sufficient to
Page 2 of 46 Complaint Mitchell v. UALR et al justify the State’s exercise of judicial power with respect to any and all claims Dr. Mitchell may have against each of them. Int’l Shoe Co. v. Washington, 316 U.S. 310, 317 (1945).
Venue
11. Venue is properly located in this Court pursuant to Ark. Code Ann. §16-55-213.
The Factual Basis for Dr. Mitchell’s Claims
A. Background
12. Dr. Mitchell earned Bachelors and Masters of Arts degrees in History, a Masters of Science degree in Urban Studies, and a Ph.D in Urban Studies with a concentration in Public History, at the University of New Orleans.
13. When he joined the full-time faculty at UALR in 2015, Dr. Mitchell had over a decade of higher-education teaching experience and a successful professional career as a researcher and investigator in the non-profit and public sectors. He taught as an adjunct professor at UALR from Spring 2006 to Spring 2015.
14. In Summer 2015, Dr. Mitchell started working for UALR as full-time, tenure-track, Assistant Professor in the History Department. The History Department is housed within the College of Arts and Sciences (“CALS”). Dr. Mitchell’s duties generally include teaching, research, and service, with undergraduate to advanced graduate level courses.
15. Dr. Mitchell has an employment contract with UALR. He is not an at-will employee, which means that he is entitled to procedural due process with regard to his employment with UALR. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-543 (1985); Matthews v. Eldridge, 424 U.S. 319, 349 (1976); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576- 577 (1972).
16. Throughout his employment at UALR, Dr. Mitchell has served with consistent excellence and distinction. He has amply fulfilled his duties and earned broad respect for his high-quality work and collegiate relationships. He has never been subject to any discipline, except for the incidents of harassment and retaliation described herein. He is firmly established as a national leader in his area of expertise, particularly United States History, African-American History, Urban History, and Public History.
17. Despite these accomplishments, as the only Black professor in the History Department, Dr. Mitchell has experienced a nearly continuous pattern of discriminatory interference with achieving access to fair terms, conditions, and opportunities for advancement while a full-time professor at UALR. These egregious, on-going acts of interference began with his initial hiring negotiations, continued with unfair and improper evaluations, escalated when he reported
Page 3 of 46 Complaint Mitchell v. UALR et al discrimination concerns, and finally culminated with harassment and retaliation through official grievance and IRB oversight procedures. The effects of these adverse actions and hostile environment continue to burden Dr. Mitchell professionally and personally in ways that his similarly situated colleagues do not experience.
18. Senior administrators refused to investigate and remedy Dr. Mitchell’s repeated requests for appropriate actions. On multiple occasions, they have wrongfully and maliciously interfered with Dr. Mitchell’s due process and equal protection rights, both through destruction of and failure to create and maintain statutorily required public employment records.
19. In spring 2021, Dr. Mitchell was awarded tenure, effective July 1, 2021. This cause of action is brought for relief from harm that has already occurred and continues to occur, as described in detailed sections below. His on-going employment is overshadowed and adversely impacted by multiple improperly motivated administrative actions. He is also subject to on-going harassment and retaliation by the parties named as defendants herein, both individually and through their roles at UALR.
20. On May 31, 2019, Dr. Mitchell filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Exhibit 1)
21. On April 15, 2021, Dr. Mitchell received a notice of suit rights from the EEOC, and this cause of action is being filed within ninety days of his receipt of that notice. (Exhibit 2)
B. Compensation, Harassment
22. In fall 2017, Dr. Mitchell became aware of serious pay discrepancies in his department, and was told by his colleagues that it was related to his race.
23. He made various inquiries and learned that he was the lowest-paid full-time faculty member there. When he was hired in 2015, he was told that he was receiving the maximum that all new faculty were paid. He was told his compensation was non-negotiable. However, he later learned that a younger white counterpart with substantially less professional qualifications, and an ivy-league degree, was hired at the same time with a higher base starting salary.
24. Since 2015, UALR’s History Department has hired several full-time professors who were all white, younger, less experienced, less otherwise professionally established and qualified, and demonstrably less involved in service to the community and the University. UALR hired them with higher starting salaries and gave them additional financial research incentives that were never offered to Dr. Mitchell.
25. He sought to address the discrepancies internally through repeated, polite, yet persistent requests in person and via email to his supervisory chair and administrators, named defendants herein. Eventually, he was told that the University would raise his pay to the department floor,
Page 4 of 46 Complaint Mitchell v. UALR et al and issue a one-time back-pay check. However, this check was repeatedly promised and inexplicably repeatedly delayed and withheld from him. (Exhibit 3)
26. Finally, in spring 2018, Dr. Mitchell was told by an accounting administrator to report to the Payroll office, where a check would be waiting for him. When he arrived, the office clerk told him that there was no check there for him, that it had been cancelled without explanation, and there was no information as to when a check would be available for him. Dr. Mitchell respectfully expressed his bewilderment, and asked for the payroll clerk to contact the Provost’s office and ask what had happened. At that moment, an older white male administrator came out from a rear office into the reception area, and in a loud, hostile, unyielding voice, told Dr. Mitchell to leave immediately or the police would be called on him. He said, “Leave or I will call 911 right now!” He did not allow Dr. Mitchell to respond or discuss the problem. For a few minutes, the man yelled over Dr. Mitchell’s pleas to call the Provost until Dr. Mitchell left the office, deeply shaken.
27. Prior to leaving campus, he sent an email inquiry to the Provost’s office, and drove away. Less than an hour later, he received a phone call from a different administrator, directing him to return to the campus payroll office to pick up a check. This time it was given to him without incident.
28. This unwelcome, offensive experience was sufficiently severe in its hostility that Dr. Mitchell was effectively intimidated and prevented from further persisting in inquiring about or seeking relief for this and other discriminatory employment inequities until 2019, when his workplace hostility and interference escalated, and intolerably impacted and further threatened the terms and conditions of his employment at UALR.
29. UALR maintains Dr. Mitchell in the lowest pay rung of its History Department. He is one of two there. The other professor was hired at the same time. He is a much younger person, with substantially less service, much narrower research, and minimal prior teaching experience. However, his Ph.D is from an ivy league institution. This ‘credential’ makes him a designated candidate for future academic leadership, and he is being cultivated as a mentee by the Department Chair and other colleagues.
30. Dr. Mitchell’s pay decreased about $30,000/year when he moved into academia from the professional sector. He was told by UALR’s representatives at the time of his hire that he could not go up for early tenure to make up for the loss in pay. However, he later learned that numerous new hires where given the opportunity to go up for early tenure. When he discovered that he was not allowed to negotiate his hiring terms with equal footing, Dr. Mitchel asked if his terms could be re-negotiated. Dean Clifton said no. (Exhibit 4)
31. In December 2017, UALR’s response to Dr. Mitchell’s request for action was to raise his pay to equal the next-lowest-paid person, and to issue a small arrears check in spring 2018 - after
Page 5 of 46 Complaint Mitchell v. UALR et al innumerable unexplained delays, and finally outright harassment. Dr. Mitchell contended that this was unfair, but was told by Dean Clifton that he was instructed to do no more.
32. Employment records provided by UALR in 2019 contain information about the foregoing process that was previously withheld from Dr. Mitchell. These documents provide evidence of spoliation of records by defendants herein.
33. As of Spring 2018, Defendant Burton was aware of the disparity, but took no actions to investigate or otherwise address the discriminatory compensation policies and actions.
34. After Dr. Mitchell reported concerns that race was a factor in his pay, in response to accounting requests to explain the one-time payment to him, on March 8, 2018, Defendant Drale wrote that Defendant Burton stated that he would not put anything about this issue into a writing.
On March 8, 2018, Christina Drale emailed to Michelle Curd, Associate Director of Personnel, copied to H.R., Records Retention, and the Assistant Provost, the following:
“Although the November memo from Dean Clifton stated that the salary adjustment was not retroactive, meaning not retroactive from date of hire, this position was later reconsidered by the Provost and legal counsel and the Provost decided to provide the salary differential back to the date of hire as a lump sum. The extra comp epaf is a one time payment in the amount of $4,728 and will not be repeated and will not be added to Dr. Mitchell’s base salary. Provost Burton will not put any of this in the form of a written memo, so regarding documentation, this email will be the only item I can provide.” (Emphasis added.) (Exhibit 5)
35. All other administrators involved, except Dean Clifton, also refused to put anything in writing about the situation or otherwise record their administrative actions in relation to it.
36. No rationale was provided for the new salary amount. Its fairness is disputed, but no route for appeal or discussion has ever been provided.
37. It appears the check for back pay may have been coded and issued in a way that may have caused inappropriate and adverse tax consequences for Dr. Mitchell, on the direction of senior administrators.
38. Administrators knew the arrears check amount was $200 short of their arbitrary amount, but they withheld that information and the funds to date, while representing to Dr. Mitchell that he was paid in full.
39. Although UALR later took actions to purportedly correct this pay disparity, upon information and belief, in fact, the original disparity was never equitably corrected, and this and other financial disparities continue to exist. If unaddressed, these inequities will persist and magnify over time in base pay, retirement contributions, prestige, and future earnings.
Page 6 of 46 Complaint Mitchell v. UALR et al 40. In this case, Title VII’s prohibition on discrimination and compensation based on race is violated because UALR is paying its full-time professors inside protected classes less than similarly-situated professors outside the protected classes, and there is no satisfactory explanation or accounting for the difference.
41. Further, UALR maintains facially neutral compensation policies and practices that have adverse impacts on full-time professors in protected classes, that cannot be justified as job- related and consistent with businesses necessities. This includes but is not limited to the policy that “Salary allocations for tenure-track faculty shall be based on annual performance.” (History Department Bylaws, Section VII(C)(3)(d)). This clause purports to apply to only the ‘raise pool,’ but an investigation is warranted to learn whether Dr. Mitchell’s experience demonstrates that evaluation points are not awarded equitably with actual performance, in order to manipulate total compensation rates. The consistent control by one individual, the Chair, and the surrounding secrecy of the committee process, allow this dynamic to occur. (Exhibit 6)
42. In a disparate impact analysis, Dr. Mitchell’s actual job performance, duties, workload, research / scholarly activities, and service to the university and public should each be considered. His outstanding public regard and appreciation bring on-going popular media reports, national research prestige, statewide historical relevance, and general popular acclaim to UALR. Dr. Mitchell has consistent high-quality research output, a long dedication to excellence in teaching, and a positive public service profile that are most readily comparable to the top tier of his profession, with the ‘excellence’ designation - both in the UALR History Department, across the university system, and beyond. Few professors in the entire University of Arkansas system have as distinguished and prolific teaching, research, and public service careers as Dr. Mitchell.
43. Dr. Mitchell has previously brought these concerns directly to the responsible parties in human resources and senior administration to ask them to investigate this matter and take corrective actions, without success. They have never provided rationales for the established compensation differentials other than the types of continued disqualification and disregard for Dr. Mitchell’s work as described, as against disproportionately elevating the asserted value of ivy league credentials.
44. Despite his actual consistent excellence in the three evaluation areas, teaching, research, and service, for four years, Dr. Mitchell was held at the lowest title of full-time employee professors, Assistant Professor. Dr. Mitchell's compensation is artificially depressed because of discriminatory practices that affect compensation- particularly discrimination in evaluations.
Page 7 of 46 Complaint Mitchell v. UALR et al C. Race, National Origin, and Age bias in other employment terms and conditions
1. Work assignments / Expectation to work for free
45. As a full-time professor of history, Dr. Mitchell has worked on documentaries, public historic markers, teacher education, and collaborated with students, community groups, and government agencies. He led a nationally recognized project to award medals to minority veterans of World War I.
46. As described more fully below, Dr. Mitchell is engaging in this excellence-level digital, database, and traditional historical research and scholarship, along with a full course load of teaching, committee duties, student mentoring, and project oversight, without receiving any of the usual professional recognition for these activities, commiserate with his white, younger, and foreign-born counterparts. These recognitions have material impacts in the forms of evaluation points, compensation packages, titles, promotions, and qualifications for higher positions such as institute directorships.
47. Because of his high-quality work, and the cultural relevance of and popular interest in his research, Dr. Mitchell often receives requests from public offices such as the Governor’s office, to participate in or lead endeavors in this trending and newly appreciated field of study. Dr. Mitchell does these work projects in his capacity as a full-time UALR professor, but he does not enjoy the same rewards as all other similarly situated full-time professors in his department who are not in these protected classes.
48. These dynamics, combined with the continued efforts to disqualify his scholarly accomplishments from consideration for tenure, and withholding letters of support from his file, express an institutional expectation that Dr. Mitchell will continue to go on indefinitely, doing all of this excellent work for the benefit of the university and community, for free.
49. Further, as described more fully below, in the course of this disparate employment condition, UALR, through its senior administrators, allows Dr. Mitchell to be kept in indefinite states of uncertainty, limbo, concealment, and inappropriate job pressures, at the same time that he consistently outperforms the majority of his colleagues, and receives only one-third of the compensation and substantially less evaluation points than his peers receive.
50. The implication by an institution that an African-American will be indefinitely chattelled or otherwise committed in service to it, with the African-American owing everything to the institution and its benefactors, but them owing nothing (or only a pittance) to the African- American, is experienced as a profound experience of racial harassment. This is all the more so when considering the long-term racial history of the area, UALR, and the continued complete segregation of the all-white leadership of the university’s administrative structure.
Page 8 of 46 Complaint Mitchell v. UALR et al 51. As a form of racial harassment, the expectation to work indefinitely for free, and to take arbitrary criticism and denial of equitable promotions without complaint, are continued dynamics of plantation and slavery culture in the American South. Therefore, in this context, these actions by supervisors were sufficiently severe and pervasive to substantially alter Dr. Mitchell’s working conditions, because of their on-going harms and current trajectory, which is the denial of future promotions, and the other adverse terms and conditions of employment that are described in detail herein.
2. Promotion and tenure; Performance evaluations; Constructive feedback
52. Dr. Mitchell’s first evaluation as a full-time professor was for 2015. The process was completed in spring 2016. The history department chair at that time was Dr. Clea Hupp. The evaluation examined the three areas specified by the bylaws - Research, Service, and Teaching. Dr. Hupp showed Dr. Mitchell and Dr. Heil how she wanted tenure and promotion binders organized. Hupp wanted one binder for each year of review, with a tab for each of the three evaluation areas. Dr. Mitchell received a favorable review, and had no objections to his binder or curriculum vitae.
53. Dr. Mitchell’s second evaluation as a full-time professor was for 2016. The process was completed in spring 2017. At that time, the history department chair changed to Defendant Dr. Jess Porter. This evaluation critiqued not only Research, Service, and Teaching, but also analyzed the structure of the binder and documents within (such as the c.v. and table of contents). Dr. Mitchell received feedback that his portfolio was too heavy in Service and should place more emphasis on Research. However, he did not receive high points for service.
54. Porter additionally noted that he did not like the structure of Dr. Mitchell’s CV. His feedback included statements that he did not want the professional experience and accolades included; he did not like formatting such as font, italicization, bullet points, organization, and style of the c.v. However, vitae and binder organization styles are not defined by the department’s guidelines, nor are they criteria for professional evaluation in the department’s established bylaws point system.
55. Dr. Mitchell’s c.v. and Binder were described as “Unprofessional” in his 2016 evaluation.
56. Dr. Heil used the same format that was previously required by Hupp. Upon information and belief, no similar “unprofessional” designation was assigned to Heil.
57. Between 2015 and 2018, Dr. Mitchell continued to strive to meet the requirements to qualify for tenure, and was offered contracts for multiple book chapters. In this process, he conferred with department colleagues about these qualifications – such as whether book chapters equaled journal articles. His co-workers provided different information than the chair. The co- workers said that they were previously treated equally.
Page 9 of 46 Complaint Mitchell v. UALR et al 58. However, as Department Chair, Defendant Porter said that only “university press” chapters would be accepted. Other tenured faculty members maintained that Dr. Porter was incorrect.
59. Dr. Mitchell felt that the book chapter route was too uncertain, so he asked Dr. Porter about the provision in the tenure requirement for a ‘single-authored Monograph’ (book). Porter replied that the publication of a book would fulfill all of Dr. Mitchell’s scholarship requirements for tenure. Dr. Mitchell checked the by-laws and noted that the book needed to be published in a “recognized press.”
60. Dr. Mitchell’s third evaluation as a full-time professor was for 2017. The process was completed in spring 2018. The history department chair was Dr. Jess Porter.
61. Also in 2018, Dean Clifton moved CALS (College of Arts and Letters) from paper-binder submissions of tenure materials to an online submission program called “Activity Insight.” Tenure track faculty members were required to load all tenure information into the new program.
62. Despite the availability of the digital Activity Insight platform, of which Dr. Mitchell was an early and enthusiastic adopter, Dr. Porter directed Dr. Mitchell and Dr. Heil to turn in paper binders and informed them that they would move to an online submission the following year.
63. Prior to the evaluation, Dr. Mitchell rearranged his materials’ organization to match that described by Dr. Porter. Porter’s structure differed from Hupp’s in that it was not organized by years. Instead, Porter’s structure required four binders in total, instead of one for each year. One binder was the master binder for Evaluation materials, a second was for Scholarship and Research, a third for Service, and a fourth for Teaching.
64. Dr. Mitchell submitted his binders early so that they could be reviewed, and any changes or errors identified by Porter could be fixed prior to the final submission. When he subsequently asked about the binders, Porter replied that they were fine. However, when Dr. Mitchell received his evaluation, it stated that his binders were unorganized.
65. Dr. Mitchell’s 2017 evaluation score was at the bottom of the satisfactory category, and he was ranked at the bottom of his department.
66. Around that time, Dr. Mitchell sent copies of his evaluation to his faculty mentor, Dr. Briscoe, and the Faculty Mentor Director, Dr. Montague. They told him to continue to work hard and noted that they would watch how his tenure process continued.
67. Dr. Mitchell continues to work with inequitable workload expectations and evaluation points. He conducts excellent projects without any of the professional credit and recognition that his white, younger, and foreign-born colleagues enjoy. Although he gives multiple heavily attended presentations around the state each month, he receives UALR’s and the History
Page 10 of 46 Complaint Mitchell v. UALR et al Department’s public praises on social media, but no corresponding professional evaluation credits, or the corresponding material benefits and campus privileges of high-level, professional academic accomplishments.
68. Since 2015, as a professor of history, Dr. Mitchell has worked on multiple high-profile, high-quality, very successful research and public service projects, such as documentaries, public historic markers, teacher education, and collaboration with students, community groups, and government agencies. These projects are usually the result of the combination of an invitation to respond to a need identified by a public official or university research partner, and Dr. Mitchell’s on-going research initiatives and subject matter expertise.
69. Despite this excellence in his job performance, and the prestige, good will, and grant resources he brings to UALR, Dr. Mitchell is not evaluated, rewarded, recognized, or promoted to positions with titles, duties, and compensation reflective of his actual work product.
70. This is the amount of effort required to meet the “excellent” category of evaluation review, and other qualifications for tenure and promotion, so therefore are work assignments. Although Dr. Mitchell fulfills these assignments diligently and well, he is not treated as an equal to his white, younger, or foreign-born peers who are producing comparable or less amounts of scholarship deliverables each year. He is instead as treated as a less valuable employee than his department and system colleagues with substantially fewer and less time- and intellectually- demanding work assignments. For example, upon information and belief, in the History Department, Professors Kirk, Mann, and Baylis each receive evaluation credit or points for their outside nontraditional scholarship activities.
71. In the period of 2017-2018, Dr. Mitchell was extremely productive and pushed himself to excel in hopes of receiving a positive evaluation. In this time frame, he accomplished the following, all while maintaining his regular teaching and committee duties:
a. He published book chapters, encyclopedia articles, digital projects, documentaries, book reviews, and had two book projects go “In-Press”.
b. Additionally, he worked on a series of projects (the Awarding of Medals to the family of Leroy Johnson, a black veteran killed during the Elaine Massacre, Index of lost death certificates for Phillips County, Identified the burial sites of several of the Elaine twelve, co-authored bios of the Elaine Twelve with students.)
c. Started a foundation and raised funds for memorials for the Twelve and received a NEH grant. This worked garnered positive national publicity for the university.
d. U.S. Congressman French Hill introduced and passed a federal bill calling for the establishment of a committee to re-evaluate awards given to black soldiers, based on
Page 11 of 46 Complaint Mitchell v. UALR et al anomalies Dr. Mitchell discovered in the Leroy Johnson case. This bill will have national impact in better understanding World War I history.
e. Dr. Mitchell added Frank Moore to the National List of Noteworthy African Americans buried in National Cemeteries.
f. He also worked with State Representatives and the Department of Corrections to commemorate the boys lost in the Wrightsville Fire of 1959.
g. He gave more than 20 academic presentations.
72. Dr. Mitchell was also conducting independent research on the Reconstruction period, and in the Summer of 2018, after submitting a full manuscript, he signed a book contract for a monograph with the Historic New Orleans Collection Press (“HNOCP”). He also signed a contract for a co-authored text with the University of Arkansas Press in mid-2018.
73. In December 2018, Dr. Mitchell was approached by Dr. Baldwin (Acting-Provost, Director of the Arkansas Studies Institute, and a former tenured member of the History Department), and asked to work on digital public history projects for the Arkansas Studies Institute (ASI). He informed Dr. Baldwin that he was told that digital projects were not described by the by-laws, and that he was told by Department Chair Dr. Porter, that although valid scholarship, those projects would not be considered in regard to tenure. Mitchell additionally informed Baldwin that the collection of records relating to the Elaine Massacre would be time consuming. Baldwin suggested that Mitchell have the Dean do an MOU (Memorandum of Understanding) regarding the value of the work to be done so that it could be counted for tenure. She saw little reason why digital humanities would not be counted toward tenure, since it was a standard method of research for some years, and widely accepted by most universities and even in other departments in UALR.
74. Subsequently, Dr. Mitchell met with Dean Clifton in regard to Dr. Baldwin’s suggestion to get an MOU for the research being done on behalf of ASI. Clifton stated that he thought that Baldwin’s suggestion was fair since the university would directly benefit from this research. Clifton contacted Porter.
75. Defendant Porter then refused to process, approve, or promote a MOU for Dr. Mitchell’s digital public history research and scholarship - even though his projects were at higher Carnegie-rated universities, and for this same university. Dr. Porter reported to Dr. Mitchell that the MOU was rejected by the APT Committee, but upon information and belief, the APT Committee did not ever see or consider the proposal.
76. Dr. Mitchell’s fourth evaluation as a full-time professor was for 2018. The process was completed in spring 2019. The history department chair was Dr. Jess Porter.
Page 12 of 46 Complaint Mitchell v. UALR et al 77. At the beginning of the 2018 evaluation process, Dr. Mitchell sent his annual self - assessment to the APT Committee and a copy to his faculty mentor, Dr. Briscoe for his review. Dr. Briscoe responded that his materials were “excellent !!!”.
78. However, Dr. Mitchell unexpectedly received an unfavorable evaluation. Only a summary score sheet was provided. It appeared that many of his accomplishments were not included in the scoring calculations. Much of the language is dismissive, derogatory, and vague. Most importantly, the evaluation disqualified Dr. Mitchell’s book from tenure consideration – stating that only “academic presses” would be accepted. (Exhibit 7)
79. Additionally, on or about February 1st, 2019, Defendant Porter set a deadline for appeal of this evaluation that was shorter than the amount of time provided in the History Department bylaws, to a day when Dr. Mitchell already had several academic events and presentations scheduled. Dr. Porter knew of these scheduled events prior to moving the appeal deadline up to that date, as he introduced Dr. Mitchell at two of the events.
80. During this period, Dr. Mitchell discussed and shared his evaluation results with a History Department colleague, Dr. Key. Key stated that he found the evaluation problematic and asked Mitchell if he could discuss it with Porter, to which he agreed.
81. On or about February 4, 2019, Dr. Mitchell then requested and attended a meeting with Dr. Porter to discuss the evaluation. Porter noted that he had spoken with Key and was aware that Mitchell was unhappy about his evaluation. Mitchell contrasted the wording in the bylaws with the verbiage in his evaluation. Porter affirmed that he understood that there were concerns.
82. The evaluation stated that it was unclear if Dr. Mitchell’s publisher, the HNOCP, met the qualifications for tenure. In this meeting, Mitchell asked Porter to Google-search for it. Porter then immediately found the press’s website, and quickly ascertained that the press met the department’s qualifications.
83. Dr. Porter stated that he would fix the evaluation and said that the evaluation was just a “draft.” Dr. Mitchell again asked him to review the bylaws procedures and to show him where a draft evaluation procedure could be found.
84. Dr. Mitchell noted that the bylaws state that an evaluation is to be sent out annually, and it is the responsibility of the faculty to appeal any changes within a week of receipt. Dr. Porter stated that he would consider that meeting to be Dr. Mitchell’s appeal, and he typed an amended evaluation. His second evaluation changed some verbiage in the last section, to indicate that Dr. Mitchell had successfully met all of the department’s requirements for tenure. However, he left the scoring and all other items on the evaluation records the same. (Exhibit 7)
Page 13 of 46 Complaint Mitchell v. UALR et al 85. Concerned for his upcoming tenure review, Dr. Mitchell objected to the other exclusions, disparaging tone, and final evaluation score not being revised. He stated to Dr. Porter that he could no longer trust the tenure policy to be administered fairly, and that Dr. Porter seemed to be attempting to disqualify Dr. Mitchell’s work by misrepresenting the bylaws in his evaluation documents.
86. In this meeting, Dr. Mitchell told Dr. Porter that he believed that he had been treated unfairly in regards to pay, evaluations, promotions, and progress towards tenure because of his Race (Black).
87. As he was the only Black / African-American professor in the department, he noticed that he was being subjected to frequent, inexplicable professional obstacles and interference that his white colleagues never experienced.
88. Dr. Porter responded that he had made the initial changes, and that he would be willing to seek training for the department in regard to racial bias.
89. Because the APT Committee participates in faculty evaluations, Dr. Mitchell asked Dr. Porter if the any of the individuals on the APT Committee had been involved his hiring process, and therefore had established the continuing pay disparity between him and his peers. Porter looked to see who was on Mitchell’s hiring committee and noted that several of the same faculty members were on both the APT and the hiring committees.
90. Dr. Mitchell then told Dr. Porter that he sought to formally report apparent discrimination on the basis of race, age, and national origin, and that he would be reaching out to Dean Estes of CALS, UALR Diversity / Multicultural Director, Mia Phillips, and the Provost’s and Chancellor’s offices. He hoped for a prompt and straightforward resolution to his concerns.
91. Also on or about February 4, 2019, Dr. Mitchell next contacted Mia Phillips and Dean Estes, informed them of his concerns of discrimination, and asked if they could facilitate a meeting with the university’s Provost, Chancellor, and stakeholders in the recruitment and retention of minority faculty.
92. On February 11, 2019, Dr. Porter provided Dr. Mitchell with a copy of the revised evaluation. (Exhibit 8)
93. Dr. Mitchell met with Defendant Estes on February 5, 2019 at 2:00 PM in her office, where he was interviewed about his allegations by her. She informed him that he could report his complaint using either an informal or formal procedure.
94. Estes said that if he chose the informal process, she would talk to Dr. Porter, but no records would be retained or disciplinary actions would come from the meeting. Dr. Mitchell
Page 14 of 46 Complaint Mitchell v. UALR et al told her that the procedure that she described was in violation of federal law. She noted that the procedure was outlined by the Human Resource department.
95. Estes then discussed the formal process. She told him that the Human Resource department handled formal discrimination complaints with two different procedures. She said that Human Resources would conduct an investigation of his allegations, and would either make a determination, or would send it to a committee hearing, and the hearing members would make a determination. Dr. Mitchell asked why they had two distinctly different procedures. He asked how the committee’s composition would be determined, and she noted that Dr. Mitchell would be asked to pick a non-management / non-human resources employee, Dean Estes would be given the selection of a committee member, and the Chancellor would be given a selection of a committee member. He questioned the fairness of this process, and noted that it was a violation of the privacy provisions of Title VII. He also noted that none of the people on the committee would have knowledge of civil rights and employment laws, which also seemed improper and inappropriate. He again asked if they could resolve the matter through the Provost, Chancellor, and Dean’s offices directly, and he was told no.
96. Dean Estes also directed Dr. Mitchell to sent Dr. Porter a written appeal of his evaluation. His subsequent email described the issues as he understood them at the time. Dr. Estes’s directives to Dr. Mitchell caused some confusion, but also some clarity, as these issues were then reported in writings. Unfortunately, the same administrators continued to intentionally and maliciously mal-administrate UALR’s response to Dr. Mitchell’s report of employment discrimination. (Exhibit 9)
97. Dr. Porter’s response, dated February 14, 2019, is an example of the ‘accident / oversight / pledge / minimal correction’ cycle described throughout this complaint. (Exhibit 10)
98. On February 7th, Dean Estes emailed Dr. Mitchell, informing him that she had talked to Ms. Cynthia Mayhan in regard to his allegations and the grievance procedures. He was informed that Mayhan would be his point of contact in Human Resources.
99. On February 11, 2019, Dr. Mitchell was told in person by Mia Phillips, Multi-Cultural Director, that the Chancellor and Provost would not meet with him to discuss his allegations. She sent him a link to the online grievance submission site.
100. Dr. Mitchell tried to submit a complaint online that day, but the online submission form was not working. He emailed Phillips to let her know that the website was not working. He printed out the form and hand delivered it to Human Resources, and was interviewed by Mayhan about his experiences and allegations at that time.
101. On February 12, 2019, Estes asked Mitchell to meet with her and Mayhan for another interview on February 14, 2019.
Page 15 of 46 Complaint Mitchell v. UALR et al 102. On February 14, 2019, Dr. Mitchell met with Estes and Mayhan for a third interview about his concerns.
103. After that, for several weeks, Dr. Mitchell could not get any replies or answers from administrators about the status or next steps of his complaint.
104. After an extended period of inaction and several follow-up inquiries, instead of properly investigating and remedying its unlawful, discriminatory practices, UALR administrators, defendants herein, involuntarily placed Dr. Mitchell into a disciplinary, adversarial-type hearing process with numerous concerns that are detailed in section F below.
105. In spring 2019, Dr. Mitchell hired a private attorney to assist him in safeguarding his employment rights at UALR. His attorney reported his concerns and requested his employment records, specifically including his evaluation scoring records.
106. Dr. Mitchell’s attorney submitted a written complaint of discrimination to UALR. UALR later provided written responses from each of the parties named in the complaint, as well as all other History Department faculty members.
107. In their written responses to that complaint, each of his colleagues and the APT Committee members affirmed the need to examine, investigate, verify, or audit the annual evaluation scores, which are found on the department’s score or tally sheets. (Exhibit 10)
108. Dr. Mitchell’s attorney began specifically requesting the score sheets on March 21st, 2019, and received no response or acknowledgment to these items. After several repeated requests, on May 7th, 2019, UALR Attorney Mandy Hull emailed to Dr. Mitchell’s attorney, “There was only one scoring sheet retained, and it contains the 2015 APT scores.” (Exhibit 11)
109. The non-retention of these employment records is notable for several reasons. First, they were internally transmitted via email amongst several parties, and received and processed by Defendants Porter and Estes. Second, state laws and regulations provide that these records were to be kept in the offices of Porter and Estes. Third, checklists provided by UALR indicate that the records were properly handled and retained. (Exhibit 12)
110. This admitted spoliation is an apparent violation of three applicable Arkansas state laws:
A. § 5-53-110. Tampering. (Official proceedings) (a) A person commits the offense of tampering if, believing that an official proceeding or investigation is pending or about to be instituted, he or she induces or attempts to induce another person to: (1) Testify or inform falsely; (2) Withhold any unprivileged testimony, information, document, or thing regardless of the admissibility under the rules of evidence of the testimony, information, document, or
Page 16 of 46 Complaint Mitchell v. UALR et al thing and notwithstanding the relevance or probative value of the testimony, information, document, or thing to an investigation; (b) (1) Tampering under subdivision (a)(1) of this section is a Class D felony. (2) Otherwise, tampering is a Class A misdemeanor.
B. A.C.A. § 5-53-111. Tampering with physical evidence. (a) A person commits the offense of tampering with physical evidence if he or she alters, destroys, suppresses, removes, or conceals any record, document, or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or investigation. (b) (1) Tampering with physical evidence is a Class D felony if the person impairs or obstructs the prosecution or defense of a felony. (2) Otherwise, tampering with physical evidence is a Class B misdemeanor.
C. A.C.A. § 5-54-121. Tampering with a public record. (a) A person commits the offense of tampering with a public record if, with the purpose of impairing the verity, legibility, or availability of a public record , he or she knowingly: (1) Makes a false entry in or falsely alters any public record; or (2) Erases, obliterates, removes, destroys, or conceals a public record. (b) (2) Otherwise, tampering with a public record is a Class D felony.
111. While UALR has admitted to this egregious act of spoliation, it has never provided any non-discriminatory rationale or explanation for it.
112. In spring 2019, Dr. Mitchell was informed by a state judge that she had emailed a letter of recommendation to Defendant Jess Porter for his tenure file. On May 7, he wrote Dr. Porter and asked if he had received a letter from the judge. Porter said that he had received a letter of recommendation on Apr. 23. After Dr. Mitchell’s inquiry, Porter forwarded the letter to him. Letters of Recommendation are required for tenure. University tenure policy states that ‘Peer or External Reviews (3 or more) - Required’.
113. Dr. Mitchell then contacted Defendant Estes to ask if any Letters of Recommendation were sitting in her office. Only after this request was he informed that several letters of recommendation dating back to 2018 had been withheld by her office.
114. Upon information and belief, a review of the 2016-2019 evaluation scores rankings, compared with the professors’ actual job performance, plus other qualifying accomplishments, will show that despite having exceptional teaching, service, and scholarship, Dr. Mitchell’s
Page 17 of 46 Complaint Mitchell v. UALR et al departmental evaluation rank is inequitably low when compared to professors outside his protected classes of race, national origin, and age. This permanently affects his terms of employment, as these scores are considered cumulatively.
D. Age
115. UALR violated Title VII’s prohibition on age discrimination when it hired comparable professors at the same time as Dr. Mitchell and since, all of whom are under 40 years old, at higher pay and with more favorable employment terms than his. UALR continues to employ them with higher compensation, benefits, and privileges of the larger salaries, research funds, mentorships, etc.
116. For examples, in 2015, a younger, substantially less experienced professor was hired with higher pay, with the rationale for the disparity that he was from an ivy-league school. In 2016, two younger, less experienced professors were hired at approximately 10% higher rates of pay, with travel funds and additional research stipends of approximately $6,000 as hiring bonuses or incentives. Dr. Mitchell has never received stipends or travel funds for his research from UALR’s History Department.
117. Further, upon information and belief, on each year’s annual evaluations at UALR’s History Department, professors younger than 40 receive amounts of credit and recognition, in the form of evaluation scores or points for their professional endeavors that are acutely disproportionate to the amount of credit that Dr. Mitchell, over 40, receives for similar and substantially greater endeavors, work load, accomplishments, and on-campus and national acclaim. This annual points-based evaluation system is important in this context because it is the basis for career- and life-long advancement, pay, and prestige.
118. If points were awarded consistently by age in this department, based on demonstrable academic accomplishments and other standard criteria for professors, Dr. Mitchell would clearly be in the “excellent” category of professional attainment. However, upon information and belief, Dr. Mitchell’s evaluation scores for the years 2016-2019 ranked far below his younger peers.
E. National Origin
119. As a public employer, UALR violates Title VII’s prohibition on employment discrimination related to bias against one’s national origin, in this case - African-American.
120. UALR’s hiring, retention, “grievance,” human resources, promotion, and tenure policies and practices treat African-Americans unfavorably in comparison to people of color who are foreign-born, including both permanent immigrants and visiting specialists.
121. Upon information and belief, UALR has only employed roughly one dozen full-time African-American professors in its almost-100-year history, most of whom are there now,
Page 18 of 46 Complaint Mitchell v. UALR et al serving without tenure. UALR presently employs about 448 full-time professors, and only about 31 are African-American or Black. This is 7%, in contrast to Arkansas at 15% and Little Rock at about 42% African-American.
122. Despite America being their nation of origin, African-American full-time professors are outnumbered by foreign-born colleagues two-to-one (2:1) on UALR’s campus. Further, about 46% of UALR’s departments have no full-time African-American professors in their faculties.
123. Finally, full-time African-American professors are paid substantially less than their similarly-situated international colleagues at UALR.
124. Within the History Department, Dr. Mitchell’s terms and conditions as an African American are most readily compared with Dr. Kirk’s, an international professor, in terms of quality and quantity of scholarship and service, with Dr. Mitchell teaching several more courses than Dr. Kirk at this time. Their professional credentials are approximately equal. Dr. Kirk has more publications, and Dr. Mitchell has more professional and teaching experience. They bring about the same amount of on-going positive prestige and resources to UALR.
125. However, Dr. Mitchell only receives about one-third (1/3) of the total compensation of Dr. Kirk, and has been held at the lowest rank of title, and had his accomplishments disqualified from tenure, continuously for several years, while Dr. Kirk was hired with tenure, only a few years prior, and has enjoyed substantially higher rewards, prestige, and privileges ever since.
126. In recent years, multiple internal studies, reports, committees, and exit interviews have directly reported to UALR’s senior administration and Human Resources department that the university has persistent, specific, on-going problems with hiring and retaining African- American professors.
F. Discrimination Grievance Procedure
127. In spring 2019, UALR’s administrators’ responses to Dr. Mitchell’s reports of discrimination were to rebuff him, delay, misdirect, alienate him, refuse to act timely and appropriately on his complaints. 128. Instead of timely and good-faith investigating and remedying Dr. Mitchell’s reports of concerns of apparent pernicious and pervasive, improperly motivated employment discrimination, they treated him as someone accused of misconduct. 129. UALR’s administrative response was to insist that he must participate, without representation of counsel, in an adversarial, disciplinary-type hearing process. 130. By its own terms, UALR’s “grievance policy” places a person bringing a complaint into the posture of a defendant: rights to representation are curtailed; an involuntary, adversarial process is instigated; and alienation from colleagues is intensified. The complainant must
Page 19 of 46 Complaint Mitchell v. UALR et al prosecute their case against their department superiors and system administrators without representation, records, witnesses, and impartial, trained fact-finders, while sacrificing confidentiality, collegiality, and an internal investigation done by someone competent in this field. 131. By that time, multiple incidents of spoliation of relevant employment records had been discovered by Dr. Mitchell. However, UALR administrators refused to address how he could have a fair process without these records, or whether any responsible parties would be reported according to state law. 132. UALR should have promptly investigated its own records, data, system operations, and other similar complaints, instead of insisting on this punitive, escalatory course. 133. Despite its several assertions to the contrary, the Hearing Committee could not impose sanctions on personnel they find culpable of wrong-doing, because no other parties besides Dr. Mitchell have received due process notice that this could be a disciplinary hearing against them. If it is truly intended to operate the way UALR states, it also puts Dr. Mitchell, again representing himself against his will, in the role of prosecutor, against his department chair and his APT Committee. This was a profoundly unjust and inappropriate position to put him in. 134. In her response to Dr. Mitchell’s written complaint, in 2019, Defendant Estes stated that ‘an ad hoc committee is not the appropriate venue for this type of complaint, yet she also is one of the primary administrators who insisted on it and administered it. Dean Estes also admitted by omission that in her ‘investigation’, she failed to review any relevant records. (Exhibit 12) 135. Given the forgoing concerns, Dr. Mitchell notified UALR that he would not participate in person in the “hearing.” On campus, he was then approached in person by Dr. Krista Lewis, a fellow professor who acted as Hearing Committee Chair, who in a warm and friendly manner, encouraged Dr. Mitchell to submit written materials for their consideration, so he did. 136. In July 2019, the Hearing Committee released its findings, and summarily dismissed Dr. Mitchell’s complaint. (Exhibit 13) 137. Afterwards, he tried to reach Dr. Lewis, but she thereafter avoided him on campus. On July 26, 2019, Dr. Mitchell wrote to Dr. Lewis: I have received the findings of your committee and have some questions. The committee noted that I was given satisfactory scores therefore I not in peril. The committee did not take up the issue of whether my scoring was commensurate to the work performed in the areas of Research, Service and Teaching as compared to others in my department. Your reply does not include direct violations of bylaws outlined in the documents which we submitted. Your report also does not discuss the disappearance of records and the suppression of records and reporting to which I provided direct evidence of and which were in violation of state and federal law. 138. On the same day, he received a reply from an interim administrator that stated:
Page 20 of 46 Complaint Mitchell v. UALR et al As stated to you on yesterday, you will need to contact the Provost Office regarding concerns regarded to your evaluations, as the Hearing Committee's decision was upheld by the Chancellor. The Chancellor makes the final determination; therefore, you may contact his office regarding his final decision. Furthermore, I directed you on yesterday to contact Dr. Charles Azebeokhai regarding any other issues, as I am no longer the Interim Employee Relations Manager. Because there was no evidence of race discrimination, your complaint is considered closed. Please contact Dr. Christie Drale or Dr. Azebeokhai, not the members of the Hearing Committee, if you should have further concerns. (Exhibit 14) 139. The combined effects of the foregoing caused ever-increasing stress, discomfort, confusion, anxiety, alienation, and exhaustion for Dr. Mitchell. 140. The most frequent response Dr. Mitchell receives is that whatever happened was an “accident” or “oversight,” along with a pledge to correct matters. However, these pledges are not faithfully and diligently followed-through upon.
G. Abuse of IRB Office
141. On November 21, 2019, Dr. Mitchell was contacted by a student in one of his graduate courses, discussing one of their course projects, in relation to what the student described as privacy related concerns with the project materials. Dr. Mitchell reassigned the student.
142. This project was a transcription of a historical archive, a public records document that is housed at the Arkansas Studies Institute (“ASI”). It was a ledger of names of residents a juvenile detention facility for Black boys that included entries from the 1950s through 1978. None of the privacy laws were extant at that time, and they do not apply retroactively. Students were only to transcribe the content of each entry into databases for ASI to later index the records.
143. On November 25, 2019, Dr. Mitchell received an email from Dr. Blevins, Chair of the IRB department, notifying him that a complaint had been received against him and an investigation was beginning. He was ordered to ‘cease and desist’ his work. (Exhibit 15)
144. On November 26, 2019, Dr. Blevins sent additional questions. Dr. Mitchell promptly answered the questions. He also began asking questions about the basis for the inquiry, as historical studies and transcription of archival records are specifically excluded from IRB oversight by federal regulations. (Exhibit 16)
145. Dr. Blevins would not answer Dr. Mitchell’s questions, except by citing to UALR’s IRB policy, which both does not conform to federal regulations, and has never been formally approved by any campus committees. Dr. Blevins asked the same questions repeatedly, and would not accept Dr. Mitchell’s answers that there were no covered human subjects in his project, nor was he conducting research with this class project.
Page 21 of 46 Complaint Mitchell v. UALR et al 146. In essence, Dr. Blevins was directing Dr. Mitchell to complete IRB forms in such a way that would give her a rationale for exercising oversight over him, but he refused.
147. This type of back and forth continued for over a year. Dr. Mitchell noticed a pattern such that he would be given short deadlines to respond to IRB demands for responses, and that these deadlines frequently corresponded with dates that his UALR-based calendar was completely booked, including personal milestones such as his wedding anniversary.
148. Eventually the matter was brought before the IRB Board of Trustees, who found an “incident of serious noncompliance” of IRB procedures, in that Dr. Mitchell had failed to request a review of his research project. This is the only such finding by this body in the last five years. (Exhibit 17)
149. Dr. Mitchell appealed to the Board who claimed to do an appeal process. However they made no written records of their investigation, audit, findings, or evidence. They purport to have conducted an “oral audit”.
150. They upheld the finding and on this basis, sent a notice of this finding to the federal IRB oversight agency, the Department of Human Services Office of Human Research Protection (“DHS OHRP”).
151. Without resolution, this report has enormous adverse implications for Dr. Mitchell’s long-term career as a researcher. It threatens his credibility, prestige, and opportunities for advancement within and without UALR.
152. Dr. Mitchell did not receive a copy of the report or complaint that UALR, Blevins, and the IRB Board sent to OHRP. He understands it to allege that his research harmed or exposed to harm incarcerated juveniles.
153. Through his attorney, Dr. Mitchell timely requested an appeal directly to OHRP.
154. Due to the extraordinary intervening events of the Covid-19 pandemic, the OHRP has faced critical competing demands for their expertise, and they have not yet responded to Dr. Mitchell’s appeal. It would be inappropriate to demand their attention elsewhere at this time.
155. Dr. Mitchell has requested assistance from Drale, Estes, and Porter with this matter, but they refuse to take any meaningful action to stop these improperly motivated actions.
156. This has become a point of contention within the department. A few colleagues went to the Chair, Defendant Porter, to voice their concerns about the blatant disparate treatment of Dr. Mitchell.
Page 22 of 46 Complaint Mitchell v. UALR et al 157. In January 2020 Dr. Mitchell wrote to fellow UALR Professor Jim Vander Putten to ask for his perspective on the matter, as a past IRB chair. Vander Putten explained to Dr. Mitchell that UALR’s IRB department has longstanding issues with non-compliance with federal regulations. In violation of federal regulations, Blevins and the IRB Board of Trustees have the same parties filling multiple roles, or left necessary roles unfilled, such as Research Integrity Officer and Research Compliance Officer. They also fail to maintain a policy on Research Misconduct, per industry standards, which allows them to arbitrarily abuse the power of their office for discriminatory, harassing, and retaliatory reasons. In further violation of federal regulations, Blevins and the IRB Board of Trustees together simultaneously act as the institutional review body, the policing body, auditors, and judging, sentencing, and enforcement bodies. (Exhibit 18)
158. UALR’s IRB handbook is dated Spring 2018, but the specific provisions do not align with 45 CFR § 46 since the 2018 revision, which states:
45 CFR § 46.102(l)
(l) Research means a systematic investigation, including research development, testing, and evaluation, designed to develop or contribute to generalizable knowledge. Activities that meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program that is considered research for other purposes. For example, some demonstration and service programs may include research activities. For purposes of this part, the following activities are deemed not to be research:
(i) Scholarly and journalistic activities (e.g., oral history, journalism, biography, literary criticism, legal research, and historical scholarship), including the collection and use of information, that focus directly on the specific individuals about whom the information is collected.
159. In spring and summer 2020, as Dr. Mitchell approached his final semester before his tenure evaluation, harassment from Blevins intensified.
160. Around this time, he learned that Defendant Lewis, not a student, was the source of the original ‘complaint’ against him. The student was her mentee.
161. When Lewis filed this complaint, she bypassed the routine, established avenues and protocols for following up with such a concern or allegation directly with the professor in question or their chair before going to a different department or process.
162. In Fall 2020, Dr. Blevins again tried to force Dr. Mitchell to submit his work to her oversight. He participated in answering her questions until they were plainly repetitive and unreasonable.
Page 23 of 46 Complaint Mitchell v. UALR et al 163. Blevins has continued without basis to assert that Mitchell is subject to her oversight. Dr. Mitchell is the only Black/African-American professor in the History Department, and he is the only professor in the History Department over whom the IRB Department asserts oversight and regulation powers, including the power to censure and discipline.
Claims
Claim I
Employment Discrimination under Title VII on the basis of Race
164. Plaintiff repeats and re-alleges paragraphs 1-163.
165. Title VII provides that it is an unlawful employment practice for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
166. Under Title VII, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). Title VII also prohibits, in some circumstances, facially neutral practices that have a “disparate impact” on individuals because of a protected characteristic. See 42 U.S.C. § 2000e-2(k).
167. A successful Title VII plaintiff may recover backpay, and compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. 42 U.S.C. § 1981a(a)(1) and (b). Punitive damages are also recoverable where the employer engaged in discriminatory practice(s) with malice or with reckless indifference to the federally protected rights of the employee. 42 U.S.C. § 1981a(b)(1).
168. Plaintiffs “may establish unlawful employment discrimination through direct or indirect evidence.” Xuan Huynh v. U.S. Dep't of Transp., 794 F.3d 952, 958 (8th Cir. 2015). Plaintiffs can prove a defendant’s reason for an adverse employment action is pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir. 2011). “Either route amounts to showing that a prohibited reason, rather than the employer's stated reason, actually motivated the employer's action.” Torgerson v. City of Rochester, 643 F.3d 1031, 1055 (8th Cir. 2011); see also MacDissi
Page 24 of 46 Complaint Mitchell v. UALR et al v. Valmont Indus., Inc., 856 F.2d 1054, 1059 (8th Cir. 1988) (“[A]n employer’s submission of a discredited explanation for firing a member of a protected class is itself evidence which may persuade the finder of fact that such unlawful discrimination actually occurred.”).
169. Burton, Drale, and Porter maintained Dr. Mitchell as the lowest-paid member of the History Department despite his excellent qualifications and work product for racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1). This adverse employment act also violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e- 2(a)(2).
170. In 2018, Porter denied Mitchell’s request for an MOU for evaluation credit for digital public history projects for the university, based on racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
171. In 2018, Porter denied Mitchell’s request for an MOU for evaluation credit for digital public history projects for the university, based on racially discriminatory reasons. This adverse employment act also violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
172. From 2016-2019, Porter gave Mitchell negative performance evaluations, based on racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
173. From 2016-2019, Porter gave Mitchell negative performance evaluations, based on racially discriminatory reasons. This adverse employment act also violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
174. In January 2019, Dr. Porter gave Dr. Mitchell a negative evaluation, denying substantial qualifications, that he then partially revised. This adverse employment act violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
175. Porter partially arbitrarily revised some evaluation text but not the tone or score, and decreased the time to appeal the evaluation for racially discriminatory reasons. This adverse
Page 25 of 46 Complaint Mitchell v. UALR et al employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
176. Porter and Estes committed spoliation of the records of Dr. Mitchell discriminatory evaluation score sheets for racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
177. Porter and Estes committed spoliation of the records of Dr. Mitchell discriminatory evaluation score sheets for racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
178. Drale and Burton committed spoliation of records of Dr. Mitchell discriminatory pay disparity for racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
179. Drale and Burton committed spoliation of records of Dr. Mitchell discriminatory pay disparity for racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
180. Drale, Burton, and Estes repeatedly used their official positions to interfere with Dr. Mitchell’s submission of reports of discrimination, and interfered with his efforts to have the university appropriately investigate and remedy it. This was for racially discriminatory reasons. These adverse employment acts also violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
181. Drale, Estes, and Lewis abused the internal discrimination complaint process by treating Dr. Mitchell as a person accused of misconduct instead, for racially discriminatory reasons. This adverse employment act Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
182. Drale, Estes, and Lewis abused the discrimination complaint process by conducting a sham process that created further discouraged, alienated, and exhausted Dr. Mitchell, for racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
Page 26 of 46 Complaint Mitchell v. UALR et al 183. Drale, Estes, and Lewis abused the discrimination complaint process by conducting a sham process that created further discouraged, alienated, and exhausted Dr. Mitchell, for racially discriminatory reasons. These adverse employment acts also violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
184. Blevins and Lewis repetitively abused the power of the IRB office to racially target and improperly discipline Mitchell, for racially discriminatory reasons. These adverse employment acts violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
185. UALR is liable for its administrators’ racially discriminatory acts. 42 U.S.C. § 2000e- 5(g)(1).
Claim II Employment Discrimination under Title VII on the basis of National Origin
186. Plaintiff repeats and re-alleges paragraphs 1-185.
187. UALR maintains Dr. Mitchell at the lowest pay rung of his department, while his international colleagues of similar levels of production and prestige are compensated a salary three (3) higher than Dr. Mitchell’s, because of discrimination based on his national origin as an African-American.
188. These adverse employment acts violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his national origin. 42 U.S.C. § 2000e-2(a)(1).
189. These adverse employment acts violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his national origin. 42 U.S.C. § 2000e-2(a)(2).
190. Since 2015, each year, UALR History Department has awarded less evaluation points to Dr. Mitchell, and also ranked him lower, than his international colleague, who receives higher scores and rewards than Dr. Mitchell, despite their equal expectations for achievement, and Dr. Mitchell’s substantially greater campus responsibilities. These points are totaled cumulatively for future raises and promotions. This adverse employment act violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive him of employment opportunities or otherwise adversely affect his status as an employee because of his national origin as an African-American. 42 U.S.C. § 2000e-2(a)(2).
Page 27 of 46 Complaint Mitchell v. UALR et al 191. UALR is liable for its administrators’ racially discriminatory acts. 42 U.S.C. § 2000e- 5(g)(1).
192. In 2018, Porter denied Mitchell’s request for an MOU for evaluation credit for digital public history projects for the university, based on racially discriminatory reasons. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges of employment because of his race. 42 U.S.C. § 2000e-2(a)(1).
193. In 2018, Porter denied Mitchell’s request for an MOU for evaluation credit for digital public history projects for the university, based on racially discriminatory reasons. This adverse employment act also violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive or tend to deprive him of employment because of his race. 42 U.S.C. § 2000e-2(a)(2).
Claim III Employment Discrimination under ADEA on the basis of Age Age Discrimination in Employment Act
194. Plaintiff repeats and re-alleges paragraphs 1-193.
195. ADEA, Congress stated that its purpose is “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. § 621(b).
196. “The ADEA prohibits discrimination against employees, age 40 and over, because of their age.” Rahlf v. Mo-Tech Corp., Inc., 642 F.3d 633, 637 (8th Cir. 2011); 29 U.S.C. §§ 623, 631(a). “In order to establish a prima facie case of age discrimination under the Age Discrimination in Employment Act (“ADEA”) a plaintiff must show: (1) she is over 40; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) substantially younger, similarly situated employees were treated more favorably.” Faulkner v. Douglas County Nebraska, 906 F.3d 728, 734 (8th Cir. 2018).
a. Where the employee claims that the employer’s facially neutral employment practices have a disparate impact on persons age 40 or over, the employee makes a prima facie case by “identifying a specific employment practice and then presenting statistical evidence of a kind and degree sufficient to show that the practice in question caused the plaintiff to suffer adverse employment action because of his or her membership in a protected group.” Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 953 (8th Cir. 2001). See also Eggers v. Wells Fargo Bank, N.A., 899 F.3d 629, 633 (8th Cir. 2018).
Page 28 of 46 Complaint Mitchell v. UALR et al 197. An employer’s substantially varying statements of reasons for employment decision may be evidence that its reasons were pretextual. See Jones v. National American University, 608 F.3d 1039, 1048 (8th Cir. 2010) (jury could find employer’s reasons were pretextual where reasons shifted over time, selected candidate lacked plaintiff’s extensive management experience and age-related comments had been made); Baker v. Silver Oak Senior Living Management Co., L.C., 581 F.3d 684, 689 (8th Cir. 2009) (whether employer’s proffered reasons were pretextual was a jury issue when shifting reasons were combined with evidence from which a jury could find that management “harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce”).
198. The damages recoverable under the ADEA are those made recoverable under section 216 of the Fair Labor Standards Act. See 29 U.S.C. 626(b), 216. The plaintiff is entitled to “the most complete relief possible” and typically is awarded back pay, defined as “the difference between the value of the compensation the plaintiff would have been entitled to had he remained employed by the defendant and whatever wages he earned during the relevant period.” Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061-62 (8th Cir. 2002). The value of plaintiff’s compensation includes the value of lost benefits, such as employer-subsidized health, life, disability and other insurance, employer contributions to retirement, and accrued vacation. Id. at 1062; Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1111 (8th Cir. 1994) (affirming back pay award that included insurance replacement costs and lost 401(k) contributions).
199. In summer 2015, UALR History Department hired Dr. Mitchell at a non-negotiated salary of approximately 10% less than a substantially less experienced professor under age 40 who was hired at the same time. UALR made this decision because of age, which is a violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 623(a)(1),(2).
200. In 2016, UALR History Department hired two additional professors under age 40 with higher salaries and other financial and professional incentives that were never offered to Dr. Mitchell. This adverse employment act violated Dr. Mitchell’s statutory right not to be discriminated against with respect to his compensation, terms, conditions, or privileges, of employment because of his age. 29 U.S.C. § 623(a)(1).
201. Since 2015, each year, UALR History Department has awarded less evaluation points to Dr. Mitchell, and also ranked him lower, than his department colleagues under 40, who receive higher scores and rewards than Dr. Mitchell, despite the disparate workloads and expectations for achievement. These points are totaled cumulatively for future raises and promotions. This adverse employment act violated Dr. Mitchell’s statutory right not to be limited, segregated, or classified in any way that would deprive him of employment opportunities or otherwise adversely affect his status as an employee because of his age. 29 USC § 623(a)(2).
202. UALR is liable for its discriminatory actions based on age. 29 USC § 626(b).
Page 29 of 46 Complaint Mitchell v. UALR et al Claim IV
Employment Discrimination under § 1981 because of Race
203. Plaintiff repeats and re-alleges paragraphs 1-202.
204. § 1981 of Title 42, United States Code, which prohibits race discrimination in the making and enforcement of contracts, provides a cause of action for race discrimination in employment claims. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975); see also Swapshire v. Baer, 865 F.2d 948 (8th Cir. 1989). § 1981 permits the recovery of general damages for pain, suffering, humiliation, and the like. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989).
205. Punitive damages are allowed even though the threshold for liability requires reckless conduct. Smith v. Wade, 461 U.S. 30 (1983). See Kolstad v. American Dental Ass’n, 527 U.S. 526, 535, 536 (1999), and Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 903 (8th Cir. 2006), discussing the meaning of “malice” and “reckless indifference.”
206. When Burton, Drale, and Porter maintained Dr. Mitchell as the lowest-paid member of the History Department despite his excellent qualifications and work product, it was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
207. In 2018, when Porter denied Mitchell’s request for an MOU for evaluation credit for digital public history projects for the university, this was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
208. From 2016-2019, Porter gave Mitchell negative performance evaluations, based on racially discriminatory reasons. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
209. In January 2019, Dr. Porter gave Dr. Mitchell a negative evaluation, denying substantial qualifications, that he then partially revised. That evaluation was based on racially discriminatory reasons, was an adverse employment act, and violated Dr. Mitchell’s statutory right to make and enforce contracts on a non-racially discriminatory basis. 42 U.S.C. §§ 1981(a), (b), (c).
210. When Porter partially arbitrarily revised some evaluation text but not the tone or score, and decreased the time to appeal the evaluation, these were adverse actions that violated Dr. Mitchell’s statutory right to make and enforce contracts on a non-racially discriminatory basis. 42 U.S.C. §§ 1981(a), (b), (c).
Page 30 of 46 Complaint Mitchell v. UALR et al 211. Porter and Estes committed spoliation of the records of Dr. Mitchell’s discriminatory evaluation score sheets, involving deceit and intentional malice. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
212. Drale and Burton committed spoliation of records of Dr. Mitchell’s discriminatory pay disparity, involving deceit and intentional malice. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
213. Drale, Burton, and Estes repeatedly used their official positions to interfere with Dr. Mitchell’s submission of reports of discrimination, and interfered with his efforts to have the university appropriately investigate and remedy it. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
214. When Drale, Estes, and Lewis abused the discrimination complaint process by treating Dr. Mitchell as a person accused of misconduct instead, this was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
215. When Drale, Estes, and Lewis abused the discrimination complaint process by conducting a sham process that created further discouraged, alienated, and exhausted Dr. Mitchell, this was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
216. Blevins and Lewis repetitively abused the power of the IRB office to discriminatorily target and improperly discipline Mitchell, involving deceit and intentional malice. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to make and enforce contracts on an non-racially discriminatory basis. 42 U.S.C. § 1981(a), (b), (c).
217. These actions by Drale, Burton, Estes, Porter, Blevins, and Lewis all violated Dr. Mitchell’s statutory right to make and enforce contracts free from race discrimination, and they are each personally liable for these violations. 42 U.S.C. § 1981(a), (b), (c); Patterson v. Cnty. of Oneida, 375 F.3d 206 (2d Cir. 2004) (citing Hayut v. State Univ. of N.Y., 352 F.3d 733, 753-754 (2d Cir. 2003); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000).
Page 31 of 46 Complaint Mitchell v. UALR et al 218. It is common knowledge that race discrimination in employment is illegal under federal law. Sanders v. Lee Cnty. Sch. Dist. No. 1, 669 F.3d 419, 432 (3d Cir 2000); Lafate v. Chase Manhattan Bank (USA), 123 F. Supp. 2d 773, 784 (D. Del 2000).
219. Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis cannot claim ignorance of this fact, thus when they took adverse actions against Dr. Mitchell on the basis of race, they did so with malice or reckless indifference to his right to be free from race discrimination in employment. Therefore they are each personally liable for punitive damages. 42 U.S.C. § 1981a(b)(1).. Claim V Harassment under Title VII and § 1981
220. Plaintiff repeats and re-alleges paragraphs 1-219.
221. Harassment on the basis of race, color, national origin, religion, age and disability is actionable if it involves a hostile working environment. Harassment on the basis of sex, race, color, national origin or religion is prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). See, e.g., Schmedding v. Tnemec Co., Inc., 187 F.3d 862 (8th Cir. 1999) (Title VII).
222. Harassment cases can also be brought under 42 U.S.C. § 1981, Ross v. Kansas City Power & Light Co., 293 F.3d 1041 (8th Cir. 2002) (race and 1981); and under 42 U.S.C. § 1983, Moring v. Arkansas Dep’t of Corr., 243 F.3d 452 (8th Cir. 2001).
223. In Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986), the court explained:
“[I]n assessing the hostility of an environment, a court must look to the totality of the circumstances.” Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316 (citations omitted). In Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993), the Court held that a hostile environment claim may be actionable without a showing that the plaintiff suffered psychological injury. In determining whether an environment is hostile or abusive, the relevant factors include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris, 510 U.S. at 23. See also Faragher v. City of Boca Raton, 524 U.S. 775, 524 U.S. at 787-88, 118 S. Ct. at 2283 (1998), (reiterating relevant factors set forth in Harris); Phillips v. Taco Bell Corp., 156 F.3d 884, 889 (8th Cir. 1998); Meritor Savings Bank v. Vinson, 477 U.S. at 67; Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982); Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992); Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559, 564 (8th Cir. 1992); Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989); Minteer v. Auger, 844 F.2d 569 (8th Cir. 1988).
Page 32 of 46 Complaint Mitchell v. UALR et al 224. “‘[M]alice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination” and that “an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 535, 536 (1999).
225. Punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” Stogsdill v. Healthmark Partners, L.L.C., 377 F.3d 827, 832 (8th Cir. 2004) (quoting State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003).
226. (“[i]n assessing reprehensibility, however, it is crucial that a court focus on the conduct related to the plaintiff’s claim rather than the conduct of the defendant in general.”). Williams v. ConAgra Poultry Co., 378 F.3d 790, 797 (8th Cir. 2004)
227. Dr. Mitchell was subjected to the unwelcome spoliation of his employment compensation records by Drale and Burton in 201* because of his race, and because his failure to quietly submit to the discrimination he experienced, involving deceit and intentional malice. This action was hostile, abusive, humiliating, and in violation of federal law.
228. Dr. Mitchell was subjected to the unwelcome spoliation of his employment evaluation score sheets for the years 2016, 2017, and 2018 by Porter and Estes because of his race, and because his failure to quietly submit to the discrimination he experienced, involving deceit and intentional malice. This action was hostile, abusive, humiliating, and in violation of federal law.
229. Because of his race, Dr. Mitchell was subjected to repeated unwelcome interference with his reports of discrimination, and attempts to have it investigated and remedied, by Drale, Estes, and Porter, through their positions at UALR, in 2019. These actions were repeated, abusive, humiliating, and unreasonably interfered with Dr. Mitchell’s work performance. In spring 2019, in response to Dr. Mitchell’s persistent complaints of discrimination, UALR administrators Drale, Estes, Porter, and Lewis gave him no avenue of relief except a sham hearing process that treated him as a person accused of misconduct, involving intentional malice. When Drale, Estes, and Lewis abused the discrimination complaint process by conducting a sham process that created further discouraged, alienated, and exhausted Dr. Mitchell, these acts were persistent, abusive, and in violation of federal law.
230. From summer 2019 through fall of 2020, in response to Dr. Mitchell’s persistent complaints of discrimination, Blevins and Lewis abused the power of the IRB office to racially target and improperly discipline Mitchell, involving deceit and intentional malice, with the cooperation of Porter, Estes, and Drale, involving deceit and intentional malice. Dr. Mitchell was subjected to frequent unwelcome interferences, repetitive, arbitrary, unproductive requests, an “oral audit”, and report of research misconduct to the federal government.
Page 33 of 46 Complaint Mitchell v. UALR et al 231. As a form of racial harassment, the refusals to properly investigate or take any meaningful action in response to Dr. Mitchell’s reports of discrimination and other concerns, while forcing his participation in an adversarial, quasi-discipline-style sham hearing, while his key employment records are destroyed - without consequences, except against him, are, like above, continued dynamics of plantation and slavery culture in the American South. Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986).
232. Therefore, in this context, these actions by supervisors were sufficiently severe and pervasive to substantially alter Dr. Mitchell’s working conditions, because of their effects of forcing him to make choices about ‘making noise’ or persisting in his voicing concerns and pursuing remediation, or accepting his adverse treatment for the sake of short-term amicability, while ultimately sacrificing his hard-earned employment’s good standing, privileges, compensation, stability, and relinquishing his long-term prospects for promotion. Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986).
233. These actions are so severe and pervasive that a reasonable person in Dr. Mitchell’s position would find his work environment to be abusive or hostile. At the time and as a result of this conduct, Dr. Mitchell believed and experienced his work environment to be abusive and hostile in regards to the issues raised herein. Defendants had actual knowledge of these facts, and failed to take prompt and appropriate corrective action to end the harassment. Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986). Claim VI Retaliation under Title VII and § 1981
234. Plaintiff repeats and re-alleges paragraphs 1-233.
235. Title VII, the Age Discrimination in Employment Act, The Americans With Disabilities Act, the Family and Medical Leave Act, and other federal employment laws expressly prohibit retaliation against employees who engage in “protected activity.” See, e.g., 42 U.S.C. § 2000e-3 (Title VII);
236. To establish a claim of retaliation, the plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer took or engaged in a materially adverse action, and (3) a causal connection existed between the protected activity and the materially adverse action. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S. Ct. 2405, 2414-15 (2006); see, e.g., Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir. 2007). An action is “materially adverse” if “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” Burlington, 548 U.S. at 68; Vajdl v. Mesabi Academy of Kidspeace, Inc., 484 F.3d 546, 552 (8th Cir. 2007).
Page 34 of 46 Complaint Mitchell v. UALR et al 237. Employees are protected from retaliation, if they oppose an employment practice that they reasonably and in good faith believe to be unlawful. See Clark County School District v. Breeden, 532 U.S. 268 (2001); Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1155 (8th Cir. 1989)
238. As a general proposition, the threshold for engaging in “protected activity” is fairly low: the touchstone is simply whether the employee had a reasonable, good faith belief that the employer had committed an unlawful employment practice. Stuart v. General Motors Corp., 217 F.3d 621, 634 (8th Cir. 2000); Buettner v. Eastern Arch Coal Sales Co., 216 F.3d 707, 714 (8th Cir. 2000); Wentz, 869 F.2d at 1155.
239. To qualify as unlawful retaliation, the employer must have taken a “materially adverse” action. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S. Ct. 2405, 2414-15 (2006). To be “materially adverse,” the plaintiff must show that a reasonable employee in plaintiff’s position might well have been “dissuaded” from filing or supporting a charge of discrimination. Id. at 68. This is an objective standard. Id.
240. The requisite “materially adverse” action is not limited to actions that affect the terms and conditions of employment. Id. Indeed, it extends beyond workplace and employment- related acts and harm. Id. On the other hand, trivial actions are not materially adverse. Id. at 1215-16. Petty slights, minor annoyances, or a simple lack of good manners normally are not sufficient to demonstrate that an action is materially adverse. Id. Both the action and its context must be examined, as acts that may be immaterial in some situations may be material in others. Id.; see Clegg v. Arkansas Dept. of Correction, 2007 WL 2296414 (8th Cir. 2007); Stewart v. Independent Sch. Dist. No. 196, 481 F.3d 1034 (8th Cir. 2007). An employer’s actions may be considered “cumulatively” -- “extreme, systematic retaliatory conduct” may be considered materially adverse. Devin v. Schwan’s Home Service, Inc., 2007 WL 1948310 (8th Cir. 2007).
241. Lewis, Porter, and Estes committed spoliation of the records of Dr. Mitchell’s discriminatory evaluation score sheets, involving deceit and intentional malice, in retaliation for Dr. Mitchell raising the issue of his discriminatory pay disparity. This was an adverse employment act that violated Dr. Mitchell’s statutory right to challenge racially discriminatory practices in the workplace and not be retaliated against for doing so. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981a (a)(b)(1); CBOCS W., Inc. v. Humphries, 552 U.S. 442 (2008) (42 U.S.C. § 1981 encompasses retaliation claims).
242. Drale and Burton committed spoliation of records of Dr. Mitchell’s discriminatory pay disparity, involving deceit and intentional malice, in retaliation for Dr. Mitchell raising the issue of his discriminatory evaluation scores. This was an adverse employment act that violated Dr. Mitchell’s statutory right to challenge racially discriminatory practices in the workplace and not be retaliated against for doing so. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981a (a)(b)(1); CBOCS W., Inc. v. Humphries, 552 U.S. 442 (2008) (42 U.S.C. § 1981 encompasses retaliation claims).
Page 35 of 46 Complaint Mitchell v. UALR et al 243. In retaliation for Dr. Mitchell raising the issue of his discriminatory employment terms and conditions, Drale, Burton, and Estes repeatedly used their official positions to interfere with Dr. Mitchell’s reports of discrimination, and interfered with his efforts to have the university appropriately investigate and remedy the issues. This was an adverse employment act that violated Dr. Mitchell’s statutory right to challenge racially discriminatory practices in the workplace and not be retaliated against for doing so. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981a (a)(b)(1); CBOCS W., Inc. v. Humphries, 552 U.S. 442 (2008) (42 U.S.C. § 1981 encompasses retaliation claims).
244. In spring 2019, in retaliation for Dr. Mitchell’s persistent complaints of discrimination, UALR administrators Drale, Estes, Porter, and Lewis gave him no avenue of relief except a sham hearing process that treated him as a person accused of misconduct, involving intentional malice. This was an adverse employment act that violated Dr. Mitchell’s statutory right to challenge racially discriminatory practices in the workplace and not be retaliated against for doing so. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981a (a)(b)(1); CBOCS W., Inc. v. Humphries, 552 U.S. 442 (2008) (42 U.S.C. § 1981 encompasses retaliation claims).
245. In retaliation for his persistent complaints of discrimination, Drale, Estes, and Lewis abused the internal discrimination complaint process by conducting a sham process that created further discouraged, alienated, and exhausted Dr. Mitchell. This was an adverse employment act that violated Dr. Mitchell’s statutory right to challenge racially discriminatory practices in the workplace and not be retaliated against for doing so. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981a (a)(b)(1); CBOCS W., Inc. v. Humphries, 552 U.S. 442 (2008) (42 U.S.C. § 1981 encompasses retaliation claims).
246. From summer 2019 through fall of 2020, in retaliation for Dr. Mitchell’s persistent complaints of discrimination to UALR and the EEOC, Blevins and Lewis abused the power of the IRB office to discriminatorily target and improperly discipline Mitchell, involving deceit and intentional malice, with the cooperation of Porter, Estes, and Drale. This was an adverse employment act that violated Dr. Mitchell’s statutory right to challenge racially discriminatory practices in the workplace and not be retaliated against for doing so. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981a (a)(b)(1); CBOCS W., Inc. v. Humphries, 552 U.S. 442 (2008) (42 U.S.C. § 1981 encompasses retaliation claims).
247. Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis are personally liable for retaliating against Dr. Mitchell for filing complaints of discrimination with UALR and the EEOC. 42 U.S.C. § 1981(a), (b), (c); Patterson v. Cnty. of Oneida, 375 F.3d 206 (2d Cir. 2004) (citing Hayut v. State Univ. of N.Y., 352 F.3d 733, 753-754 (2d Cir. 2003); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000).
Page 36 of 46 Complaint Mitchell v. UALR et al 248. It is common knowledge that race discrimination in employment is illegal under federal law. Sanders v. Lee Cnty. Sch. Dist. No. 1, 669 F.3d 419, 432 (3d Cir 2000); Lafate v. Chase Manhattan Bank (USA), 123 F. Supp. 2d 773, 784 (D. Del 2000).
249. Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis cannot claim ignorance of this fact; thus, when they retaliated against Dr. Mitchell for filing charges of discrimination with UALR and the EEOC, they did so with malice or with a reckless indifference to his right to be free from race discrimination in employment, therefore, they are personally liable for punitive damages. 42 U.S.C. § 1981a (b)(1).
250. UALR is liable for the racially retaliatory acts of its administrators. 42 U.S.C. § 2000e- 5(g)(1). Claim VII Due Process Clause of the United States Constitution pursuant to § 1983
251. Plaintiff repeats and re-alleges paragraphs 1-250.
252. At all relevant times, there was in full force and effect, 42 U.S.C. § 1983, which prohibited the deprivation of rights to persons such as the Plaintiff, when under color of state law. That the actions and inactions of defendants were taken under color of state law, and were in derogation of the Equal Protection and Due Process rights of the Plaintiff, in that Plaintiff’s race was the unjustified motivating factor in the adverse actions taken against him. Further, Defendants violated Plaintiff’s rights secured by Title VII, and his right to be free from discriminatory harassment and retaliation in violation of the United States Constitution as well as the State of Arkansas and its Constitution. These rights were clearly established at the time.
253. Dr. Mitchell’s employment contract with UALR is a property right, which means that he is entitled to procedural due process with regard to his employment with UALR. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-543 (1985); Matthews v. Eldridge, 424 U.S. 319, 349 (1976); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576-577 (1972).
254. As an employer, UALR has an affirmative duty to obtain the facts underlying an employee’s complaint. Under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer. Malik v. Carrier Corp., 202 F3d97, 1005 (2d Cir. 2000). An investigation can be tainted by personal bias and self-interest where investigators hold high managerial positions, and the individuals who aid in the investigation are close colleagues of the accused. Quela v. Payco-General American Credits, Inc., 82 FEP Cases (BNA) 1878 (N.D. Ill 2000). Courts scrutinize the extent to which an investigator has had prior involvement in the underlying misconduct that will be the subject of the investigation. Henderson v. Simmons Foods, Inc., 83 FEP Cases 279 (8th Cir June 16, 2000). An investigation is inadequate where an investigator has never investigated this type of claim, the investigation focused on other issues
Page 37 of 46 Complaint Mitchell v. UALR et al and ignored specific allegations of harassment, and failed to ask where the accused engaged in the discriminatory conduct alleged. Smith v. First Union National Bank, 202 F3d 234 (4th Cir 2000).
255. Drale and Burton committed spoliation of records of Dr. Mitchell’s discriminatory pay disparity, involving deceit and intentional malice. This action was based on racially discriminatory reasons, was an adverse employment action, and it violated Dr. Mitchell’s due process rights to notice and an opportunity to be heard before an adverse action was taken against him via his compensation terms.
256. Porter and Estes committed spoliation of the records of Dr. Mitchell’s discriminatory evaluation score sheets, involving deceit and intentional malice. This action was based on racially discriminatory reasons, was an adverse employment action, and it violated Dr. Mitchell’s due process rights to notice and an opportunity to be heard before an adverse action was taken against him via his performance evaluation records.
257. In his several interactions with Dean Estes, she repeatedly misdirected, delayed, avoided, refused to investigate records of discrimination, refused to allow Dr. Mitchell to access the purported “informal grievance process”; refused to address whether a professor’s monograph must be in a university press to be considered for tenure; asserted that an ad hoc committee is not the appropriate venue for this type of complaint, yet she also administrated it. These actions were based on racially discriminatory reasons, were adverse employment actions, and it violated Dr. Mitchell’s due process rights to notice and an opportunity to be heard before an adverse action was taken against him via his employment terms and conditions.
258. On multiple occasions, Dr. Mitchell gave actual and constructive notice to defendants of his demand for proper procedural due process. Defendants all ignored his multiple requests, conducted sham processes, and denied him a real opportunity to contest their decisions. This violated Dr. Mitchell’s right to procedural due process under the Fourteenth Amendment. Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
259. There is an extensive pattern of conduct by UALR administrators where Dr. Mitchell provides information, and then there is a long silence; when he follows up, after a few communications, suddenly there is a response that gives him a short timeline to reply, often with burdensome requests and deadlines that fall on a date with a personal appointment or multiple professional presentations.
260. Due Process violations of the grievance process included:
i) UALR should have promptly investigated its own records, data, system operations, and other similar complaints, instead of insisting on this punitive, escalatory course.
Page 38 of 46 Complaint Mitchell v. UALR et al ii) Treatment as a defendant in an involuntary, adversarial, disciplinary-style process. iii) Prohibited from representation by private counsel. iv) Conflicts of interest – individuals complained-against are driving the process. v) Evidence:
(1) No provisions for presentation of records, witnesses, legal authorities, etc.
(2) The employer will not provide information about what the committee would be presented with, i.e., previous complaints without relief, spoliation of critical records, lack of a non-adversarial internal investigation, etc. vi) The investigatory records and witnesses:
(1) Have only been available to the employer for an extended period;
(2) Are subject to the control and influence of the employer;
(3) Are subject to spoliation by the employer; and
(4) Delay the complainant from ability to prepare complaint. vii) The “ad hoc” nature of the “Hearing Committee”:
(1) Violates employee confidentiality and privacy;
(2) It is unclear whether the committee is supposed to function as an investigatory or fact-finding body;
(3) The individuals on the committee are not versed in employment laws and regulations; viii) By requiring Dr. Mitchell to sit for yet more examination interviews, it allows those who have failed to investigate to avoid accountability; ix) This arrangement requires Dr. Mitchell to serve in all of the following roles during this “hearing”:
(1) Plaintiff/Complaining Witness;
(2) Fact witness for testimony, unclear who would question him;
Page 39 of 46 Complaint Mitchell v. UALR et al (3) Attorney/advocate – opening statements, presentation of case, etc., all while having grossly inequitable access to records and witnesses.
x) The spoliation of records violates federal and state laws and regulations, but UALR’s administrators have not been reported or disciplined for these actions.
261. This arrangement is impossibly burdensome and inequitable.
262. Due Process violations of the IRB process included numerous aspects of this process.
263. Defendants Blevins and the IRB Board of Trustees withheld evidence from Dr. Mitchell that Defendant Lewis was the true source of the alleged student complaint.
264. Defendants Blevins and the IRB Board of Trustees arbitrarily applied their own regulations that are in conflict with federal regulations, and refused to explain or answer for the discrepancy. The UALR IRB regulations have also not been duly adopted by any formal committees on campus.
265. Defendants Blevins and the IRB Board of Trustees arbitrarily applied their own regulations that are in conflict with federal regulations, and refused to explain or answer for the discrepancy. The UALR IRB regulations have also not been duly adopted by any formal committees on campus.
266. Defendants Blevins and the IRB Board of Trustees in violation of federal regulations, made no records of their findings beyond conclusory allegations, and purport to have conducted an “oral audit.”
267. Defendants Blevins and the IRB Board of Trustees arbitrarily and improperly defined ‘human subjects research’ for the purposes of oversight of Dr. Mitchell, inconsistently with federal regulations.
268. In violation of federal regulations, without a written investigatory audit record, Blevins and the IRB Board of Trustees produced a record of a finding of a “serious incident” of research misconduct, and reported same to the federal government.
269. In violation of federal regulations, Blevins and the IRB Board of Trustees had the same parties filling multiple roles, or left necessary roles unfilled, such as Research Integrity Officer and Research Compliance Officer. They also fail to maintain a policy on Research Misconduct, per industry standards, which allows them to arbitrarily abuse the power of their office for discriminatory, harassing, and retaliatory reasons.
Page 40 of 46 Complaint Mitchell v. UALR et al 270. In violation of federal regulations, Blevins and the IRB Board of Trustees together simultaneously act as the institutional review body, the policing body, auditors, and judging, sentencing, and enforcing bodies.
271. Defendants Drale, Porter, Estes, Blevins and the IRB Board of Trustees improperly used the power of the IRB office to continue a pattern of nearly continuous interference with Dr. Mitchell’s achievement of access to fair terms, conditions, and opportunities for advancement while a full-time professor at UALR.
272. Defendants Blevins, Lewis, and the IRB Board of Trustees improperly used the power of the IRB office to harass and retaliate against Dr. Mitchell.
273. The law has been clearly established for more than sixty years that due process includes the right to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis knew or should have known that Dr. Mitchell had this right, yet they violated it nonetheless. Consequently, they are individually liable for violating Dr. Mitchell’s clearly established constitutional right to procedural due process. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
274. Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis violated Dr. Mitchell’s procedural due process rights with malice or with a reckless indifference to his federally protected rights, therefore, they are individually liable for punitive damages. Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981).
275. Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis, and the UALR Institutional Review Board, violated Dr. Mitchell’s procedural due process rights in their capacities as final decision makers for UALR, therefore, UALR is liable for there wrongful acts. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
Claim VIII Employment discrimination under the Arkansas Civil Rights Act
276. Plaintiff repeats and re-alleges paragraphs 1-275.
277. The Arkansas Civil Rights Act provides under Civil Rights Offenses that
(a) Every person who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution shall be liable to the party injured in an action in circuit court for legal and equitable relief or other proper redress.
Page 41 of 46 Complaint Mitchell v. UALR et al (b) In the discretion of the court, a party held liable under this section shall also pay the injured party's cost of litigation and a reasonable attorney's fee in an amount to be fixed by the court.
Ark. Code Ann. § 16-123-105.
278. Under Discrimination Offenses, the law states
(a) The right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(1) The right to obtain and hold employment without discrimination;
(b) Any person who is injured by an intentional act of discrimination in violation of subdivisions (a)(2)-(5) of this section shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover compensatory and punitive damages, and, in the discretion of the court, to recover the cost of litigation and a reasonable attorney's fee. (c) (1) (A) Any individual who is injured by employment discrimination by an employer in violation of subdivision (a)(1) of this section shall have a civil action against the employer only in a court of competent jurisdiction, which may issue an order prohibiting the discriminatory practices and provide affirmative relief from the effects of the practices, and award back pay, interest on back pay, and, in the discretion of the court, the cost of litigation and a reasonable attorney's fee. (2) (A) In addition to the remedies under subdivision (c)(1)(A) of this section, any individual who is injured by intentional discrimination by an employer in violation of subdivision (a)(1) of this section shall be entitled to recover compensatory damages and punitive damages.
Ark. Code Ann. § 16-123-107.
279. When Burton, Drale, and Porter maintained Dr. Mitchell as the lowest-paid member of the History Department despite his excellent qualifications and work product, it was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
Page 42 of 46 Complaint Mitchell v. UALR et al 280. In 2018, when Porter denied Mitchell’s request for an MOU for evaluation credit for digital public history projects for the university, this was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
281. From 2016-2019, Porter gave Mitchell negative performance evaluations, based on racially discriminatory reasons. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
282. In January 2019, Dr. Porter gave Dr. Mitchell a negative evaluation, denying substantial qualifications, that he then partially revised. That evaluation was based on racially discriminatory reasons, was an adverse employment act, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
283. When Porter partially arbitrarily revised some evaluation text but not the tone or score, and decreased the time to appeal the evaluation, these were adverse actions that violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
284. Porter and Estes committed spoliation of the records of Dr. Mitchell’s discriminatory evaluation score sheets, involving deceit and intentional malice. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
285. Drale and Burton committed spoliation of records of Dr. Mitchell’s discriminatory pay disparity, involving deceit and intentional malice. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
286. Drale, Burton, and Estes repeatedly used their official positions to interfere with Dr. Mitchell’s submission of reports of discrimination, and interfered with his efforts to have the university appropriately investigate and remedy it. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
Page 43 of 46 Complaint Mitchell v. UALR et al 287. When Drale, Estes, and Lewis abused the discrimination complaint process by treating Dr. Mitchell as a person accused of misconduct instead, this was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
288. When Drale, Estes, and Lewis abused the discrimination complaint process by conducting a sham process that created further discouraged, alienated, and exhausted Dr. Mitchell, this was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16- 123-107.
289. Blevins and Lewis repetitively abused the power of the IRB office to discriminatorily target and improperly discipline Mitchell, involving deceit and intentional malice. This was based on racially discriminatory reasons, was an adverse employment action, and violated Dr. Mitchell’s statutory right to obtain and hold employment without discrimination because of his race and national origin. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
290. Defendants Drale, Burton, Estes, Porter, Blevins, and Lewis violated Dr. Mitchell’s procedural due process rights in their capacities as final decision makers for UALR, therefore, UALR is liable for there wrongful acts. Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16- 123-107.
Relief Requested 1. Dr. Mitchell requests that the Court enjoin all Defendants from engaging in any further race discrimination, age discrimination, national origin discrimination, or retaliation against him. 29 USC § 626(b); 42 U.S.C. § 2000e-5(g)(1). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
2. Dr. Mitchell requests that the Court enjoin the named defendants from committing any further violations of his rights to procedural Due Process under the Fourteenth Amendment. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).
3. Dr. Mitchell requests an award of compensatory damages against UALR for its acts of race discrimination, age discrimination, national origin discrimination, and retaliation. He requests that the Court order damages, to include back pay. 29 U.S.C. § 626(b); 42 U.S.C. § 2000e-5(g)(1). The back pay award should include lost wages, raises, overtime compensation, bonuses, vacation pay, and retirement benefits. United States v. Burke, 504 U.S. 229, 237-242 (1992). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
Page 44 of 46 Complaint Mitchell v. UALR et al 4. Dr. Mitchell requests an award of compensatory damages against UALR and the named defendants for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses. 29 U.S.C. § 626(b); 42 U.S.C. § § 1981a(a)(1), 1981a(b)(3). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16- 123-107.
5. Dr. Mitchell requests an award of compensatory damages against the named defendants in their personal capacities for violating his right to make and enforce employment contracts free from race discrimination. 42 U.S.C. § 1981(a), (b), (c); Patterson v. Cnty. of Oneida, 375 F.3d 206 (2d Cir. 2004) (citing Hayut v. State Univ. of N.Y., 352 F.3d 733, 753- 754 (2d Cir. 2003); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
6. Dr. Mitchell requests an award of punitive damages against the named defendants in their personal capacities because they engaged in discriminatory practices with malice or with a reckless indifference to his federally protected rights. 42 U.S.C. § § 1981a(b)(1), 1981a(b)(4).
7. Dr. Mitchell requests an award of compensatory damages against the named defendants in their personal capacities because they violated his clearly established constitutional right to procedural due process. Harlow v. Fitzgerald, 457 U.S. 800, 818-820 (1982). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
8. Dr. Mitchell requests an award of punitive damages against the named defendants in their personal capacities because they violated his procedural due process rights with malice or with a reckless indifference to his federally protected rights. Newport v. Fact Centers, Inc., 453 U.S. 247 (1981).
9. Dr. Mitchell requests an award of pre-judgment interest and post-judgment interest at the maximum rate allowed by law. Loeffler v. Frank, 486 U.S. 549 (1988).
10. Dr. Mitchell requests that he be awarded his costs of prosecuting this case, including attorney’s fees. 29 U.S.C. § 216(b); 42 U.S.C. § § 1988(b), 1988(c), 2000e-5(k). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
11. Dr. Mitchell requests that the Court award him any other equitable relief that the Court deems appropriate. 29 U.S.C. § 626(b); 42 U.S.C. § 2000e-5(g)(1). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
Jury Demand
12. Dr. Mitchell demands a trial by jury. 29 U.S.C. § 626(c)(2); 42 U.S.C. § 1981a(c)(1). Ark. Code Ann. § 16-123-105; Ark. Code Ann. § 16-123-107.
Page 45 of 46 Complaint Mitchell v. UALR et al Respectfully Submitted, _____/s/______Amelia Lafont Law Office of A. Lafont, PLLC P.O. Box 56102 Little Rock, AR 72215 (501) 237-0345 telephone (501) 897-8667 facsimile [email protected] Attorney for the Plaintiff
Page 46 of 46 Complaint Mitchell v. UALR et al