United States v. Theola Blackmon

1The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2222
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Esther Catherine Bowlin, *
*
Appellant, *
*
v. *
*
Arkansas Department of Health; *
Dr. Paul Halverson, Director of *
Arkansas Department of Health, in * Appeal from the United States
his individual and official capacities; * District Court for the
Helen Brown, In-Home Service * Eastern District of Arkansas.
Coordinator for Northeast Region of *
Arkansas Department of Health, in her * [UNPUBLISHED]
individual and official capacities; *
Georgia Murphy, In-Home Service *
Specialist for Arkansas Department of *
Health, in her individual and official *
capacities, *
*
Appellees. *
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Submitted: January 12, 2010
Filed: April 6, 2010
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Before GRUENDER and SHEPHERD, Circuit Judges, and JARVEY,1 District Judge.
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2The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
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PER CURIAM.
Esther Catherine Bowlin, a former home health nurse with the Arkansas
Department of Health (“the Department”), brought this action against the Department,
Dr. Paul Halverson, Helen Brown, and Georgia Murphy (collectively “defendants”),
alleging violations of the Age Discrimination in Employment Act (ADEA), First
Amendment free speech and Fourteenth Amendment due process violations brought
under 42 U.S.C. § 1983, and state law claims of libel and slander. In response to the
defendants’ motion to dismiss or for summary judgment, Bowlin conceded her ADEA
claim lacked merit. The district court 2 subsequently granted summary judgment on
all claims in favor of defendants.
Having reviewed the summary judgment order de novo and viewing the record
in the light most favorable to Bowlin, see Didier v. Schwan Food Co., 465 F.3d 838,
841 (8th Cir. 2006) (standard of review), we conclude the district court properly
granted the defendants’ motion for summary judgment. We agree with the district
court that Bowlin’s claims against the Department and Dr. Halverson, Brown, and
Murphy, in their official capacities, fail on immunity grounds. See Robb v.
Hungerbeeler, 370 F.3d 735, 739 (8th Cir. 2004) (official-capacity suit is treated as
suit against government entity); Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003)
(subject to exceptions, such as waiver, the Eleventh Amendment provides states and
state agencies with immunity from suit). The district court correctly determined that
defendants set forth a legitimate reason for the employment action. Bowlin has not
shown this reason was a pretext for retaliation, and thus, her First Amendment free
speech claim fails. See Hughes v. Stottlemyre, 506 F.3d 675, 678-79 (8th Cir. 2007)
(applying burden-shifting framework to a claim that employee suffered a retaliatory
employment action in violation of his First Amendment rights), cert. denied, 128 S.
Ct. 1741 (2008). Because Bowlin does not qualify under either exception to

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Arkansas’s at-will employment doctrine, the district court did not err in finding
Bowlin failed to establish that she had the constitutionally protected property interest
necessary to support her due process claim. See Allen v. City of Pocahontas, Ark.,
340 F.3d 551, 555 (8th Cir. 2003) (“Arkansas law recognizes two exceptions to the
at-will employment doctrine: (1) where a personnel manual specifies that termination
will only be for cause and (2) where the employment agreement itself specifies that
termination will only be for cause.”). Finally, Bowlin’s state law claims for libel and
slander brought against Dr. Halverson, Brown, and Murphy, in their individual
capacities, are barred under Arkansas Code Annotated § 19-10-305(a).
Accordingly, we affirm the district court’s grant of summary judgment. See 8th
Cir. R. 47B.
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