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                SUPREME COURT OF ARKANSAS
                                       No.   CV-16-755

                                                Opinion Delivered:   June 8, 2017
ARKANSAS STATE MEDICAL BOARD
AND PEGGY CRYER, INDIVIDUALLY APPEAL FROM THE PULASKI
AND IN HER OFFICIAL CAPACITY    COUNTY CIRCUIT COURT
                     APPELLANTS [NO. 60CV-14-4638]

V.                                              HONORABLE CHRISTOPHER
                                                CHARLES PIAZZA, JUDGE
KRISTI BYERS
                                 APPELLEE
                                                AFFIRMED IN PART; REVERSED IN
                                                PART AND REMANDED WITH
                                                INSTRUCTIONS.


                              JOHN DAN KEMP, Chief Justice

       The Arkansas State Medical Board (“Board”) and Peggy Cryer, individually and in

her official capacity as Executive Secretary of the Board, appeal from the circuit court’s

order denying their motion for summary judgment based on sovereign and statutory

immunities. We affirm in part and reverse in part and remand with instructions.

       Appellee Kristi Byers, an African American female, was employed by the Board as

the Administrative Services Manager (“ASM”). As the ASM, she was responsible for the

Board’s financial and human-resources operations. Byers started work on October 7, 2013,

as an ASM classified as extra help. Appellants alleged that, after Byers became the sole ASM

in 2014, she began violating leave polices. Specifically, appellants alleged that from January
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through July 2014, Byers took 232 hours of undocumented paid leave. 1 Cryer terminated

Byers on July 25, 2014, for allegedly not using leave time on days that she did not come to

work.

        Byers filed suit on December 15, 2014, for wrongful termination, alleging race

discrimination and retaliation under the Arkansas Civil Rights Act (“ACRA”), Ark. Code

Ann. §§ 16-123-101 to -108 (Repl. 2016), and 42 U.S.C. §§ 1981 and 1983, and seeking

damages and injunctive relief.2 She alleged that she was fired because she had complained

about illegal employment practices and purported race discrimination. Appellants filed a

motion for summary judgment denying Byers’s allegations and arguing, among other things,

that the circuit court should dismiss Byers’s complaint on immunity grounds. Specifically,

appellants asserted that sovereign immunity barred Byers’s ACRA claims against the Board

and Cryer, in her official capacity. They also asserted that Byers’s ACRA claims and federal

civil-rights claims against Cryer, in her individual capacity, were barred by statutory

immunity. The circuit court denied appellants’ motion for summary judgment, concluding

that the Board and Cryer were not entitled to sovereign immunity and that Cryer was not

entitled to statutory immunity. Appellants now bring this interlocutory appeal of the circuit

court’s order pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(10) (2016).3


        1
         Appellants alleged that in February 2014, Byers took 64 hours of undocumented
leave; in April, she took 8 hours of undocumented leave; in June, she took 32 hours of
undocumented leave, and in July, she took 128 hours of undocumented leave.
        2
        Byers also brought claims under the Arkansas Whistle-Blower Act, Ark. Code Ann.
§§ 21-1-601 to -610 (Repl. 2016). Those claims are not relevant to this appeal.
        3
        “An order denying a motion to dismiss or for summary judgment based on the
defense of sovereign immunity or the immunity of a government official” is an appealable
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                                      I. Sovereign Immunity

       Appellants contend that the doctrine of sovereign immunity bars Byers’s ACRA

claims against the Board and against Cryer in her official capacity. Sovereign immunity for

the State of Arkansas arises from express constitutional declaration. Article 5, section 20 of

the Arkansas Constitution provides, “The State of Arkansas shall never be made a defendant

in any of her courts.” We have extended the doctrine of sovereign immunity to include

state agencies, see, e.g., Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, 425

S.W.3d 731, and we have recognized that a suit against a public official in his or her official

capacity is essentially a suit against that official’s agency, e.g., Ark. Dep’t of Human Servs. v.

Ft. Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294. Generally, a suit against the State is

barred by the sovereign-immunity doctrine if a judgment for the plaintiff will operate to

control the action of the State or subject the State to liability. See Ark. Dep’t of Envtl. Qual.

v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654 (2008). There are, however, exceptions to

that rule. For example, we have recognized that a claim of sovereign immunity may be

surmounted when the State is the moving party seeking relief or when an act of the

legislature has created a specific waiver4 of sovereign immunity. See Simons v. Marshall, 369

Ark. 447, 255 S.W.3d 838 (2007). We have held that a suit against the agency or officer is


order. See Ark. R. App. P.–Civ. 2(a)(10); see, e.g., City of Little Rock v. Dayong Yang, 2017
Ark. 18, 509 S.W.3d 632 (explaining that when the refusal to grant a summary-judgment
motion has the effect of determining that the appellant is not entitled to immunity from
suit, an interlocutory appeal is permitted because the right of immunity from suit is
effectively lost if a case goes to trial).
       4
        We note that section 16-123-104 states that “[n]othing in [the Arkansas Civil
Rights Act] shall be construed to waive the sovereign immunity of the State of Arkansas.”

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not prohibited if the state agency is acting illegally or if an agency officer refuses to perform

a purely ministerial act required by statute. See Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d

6 (2005). Moreover, this court has long recognized that a state agency or officer may be

enjoined from proposed action that is ultra vires. See, e.g., Fitzgiven v. Dorey, 2013 Ark. 346,

429 S.W.3d 234; Solomon v. Valco, Inc., 288 Ark. 106, 702 S.W.2d 6 (1986); Ark. Game &

Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974).5 In addition, we have held

that a state agency or officer may be enjoined from acting arbitrarily, capriciously, in bad

faith, or in a wantonly injurious manner. See Ark. Dep’t of Envtl. Qual. v. Oil Producers of

Ark., 2009 Ark 297, 318 S.W.3d 570.

       At issue in this case is whether either the “ultra vires” exception or the “bad faith”

exception applies. As she argued below, Byers contends that article 5, section 20 “does not

bar suit over the official-capacity ACRA claims because the courts have jurisdiction to

enjoin officers of state agencies who engage in acts which are ultra vires, in bad faith, or

arbitrary, which is the case here.” (Emphasis added.) She then cites boilerplate law for these

exceptions, but she makes no effort to apply the law to the facts of this case, nor did she

attempt to do so below. Because Byers did not develop her claim at the circuit-court level,

the record does not demonstrate that the ultra vires exception or the bad faith exception to

sovereign immunity applies. See Grine v. Bd. of Trs., 338 Ark. 791, 798–99, 2 S.W.3d 54,

59 (1999).




       5
        For an act to be ultra vires, it must be “beyond the agency’s or officer’s legal power
or authority.” Solomon, 288 Ark. at 108, 702 S.W.2d at 7.
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       Because a judgment for Byers would operate to control the action of the State or

subject it to liability, her ACRA claims against the Board and against Cryer in her official

capacity are barred by article 5, section 20 of the Arkansas Constitution. Accordingly, we

reverse the circuit court’s denial of summary judgment on sovereign immunity and remand

with instructions for the circuit court to enter an order dismissing the ACRA claims against

the Board and against Cryer in her official capacity.

                                    II. Statutory Immunity

       Appellants contend that statutory immunity bars Byers’s ACRA claims and federal

civil-rights claims against Cryer in her individual capacity. When determining whether

officers and employees of the State are entitled to statutory immunity, we have traditionally

been guided by the standard used for qualified-immunity claims in federal civil-rights

actions. See, e.g., Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002) (per curiam).

Generally, an official is immune from suit if his or her actions did not violate clearly

established principles of law of which a reasonable person would have knowledge. Id., 89

S.W.3d 919 (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)). To stave off summary

judgment on qualified immunity, a civil-rights plaintiff must assert a constitutional violation,

demonstrate that the constitutional right is clearly established, and raise a genuine issue of

fact as to whether the official would have known that the conduct violated that clearly

established right. See Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002).

       Further, employees and officers of the State are afforded statutory immunity from

civil liability and from suit for nonmalicious acts occurring within the course of their

employment. See Grine, 338 Ark. 791, 2 S.W.3d 54; Ark. Code Ann. § 19-10-305(a) (Repl.

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2016) (“Officers and employees of the State of Arkansas are immune from liability and from

suit, except to the extent that they may be covered by liability insurance, for damages for

acts or omissions, other than malicious acts or omissions, occurring within the course and

scope of their employment.”). In defining malice as it used in section 19-10-305(a), this

court has stated,

       “It is true that in law malice is not necessarily personal hate. It is rather an intent and
       disposition to do a wrongful act greatly injurious to another.” Satterfield v. Rebsamen
       Ford, Inc., 253 Ark. 181, 185, 485 S.W.2d 192, 195 (1972); see also Stine v. Sanders,
       66 Ark. App. 49, 987 S.W.2d 289 (1999). Malice is also defined as “the intentional
       doing of a wrongful act without just cause or excuse, with an intent to inflict an
       injury or under circumstances that the law will imply an evil intent . . . . A conscious
       violation of the law . . . which operates to the prejudice of another person. A
       condition of the mind showing a heart . . . fatally bent on mischief.” Black’s Law
       Dictionary, 956–57 (6th ed. 1990).

Fuqua v. Flowers, 341 Ark. 901, 905–06, 20 S.W.3d 388, 391 (2000).

       In the instant case, Byers alleged that Cryer terminated her in retaliation for her

complaints about race discrimination. According to Byers, Jennifer Johnson, an African

American female employed by the Board, complained to Cryer about racial discrimination.

Byers alleged that Cryer was angered by Johnson’s complaint and told Byers to fire Johnson.

Cryer acknowledged that she and Johnson had a conversation about discrimination, but she

denied that she was angry about the conversation, and she denied that she had asked Byers

to fire Johnson. Cryer stated that Johnson was not terminated and that she continued

working for the Board until she voluntarily left. Byers also alleged that Cryer refused to pay

Nona Rose, an African American job applicant, a higher salary than a current white

employee in the same position. Byers acknowledged, however, that the white employee

had already been working in the position for one year. Cryer maintained that she did not

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terminate Byers because of any conversations they had about Johnson and Rose, or any

purported complaints of race discrimination. Rather, she stated that she fired Byers after

discovering that Byers had “stolen” 232 hours of undocumented leave time. Cryer stated

that she asked Byers to turn in leave slips for her time off,6 but Byers neither acknowledged

the request nor turned in any leave slips.

       Appellants contend that Cryer is entitled to statutory immunity because Byers has

failed to demonstrate malice. We agree that statutory immunity bars Byers’s ACRA claims

against Cryer in her individual capacity. This court has made clear that a bare allegation of

willful and wanton conduct is not enough to demonstrate malice. See Simons, 369 Ark. 447,

255 S.W.3d 838; Fegans, 351 Ark. 200, 89 S.W.3d 919; Fuqua, 341 Ark. 901, 20 S.W.3d

388; Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). A review of the record reveals

that Byers filed three complaints in this case: a complaint, an amended complaint, and a

second amended complaint. Byers did not specifically allege in any of her complaints that

Cryer acted maliciously. In their motion for summary judgment, appellants argued that

Byers’s race discrimination and retaliation claims against Cryer in her individual capacity

were barred by statutory immunity because Cryer did not act with malice when she

terminated Byers. Byers responded that statutory immunity did not bar the claims because

Cryer acknowledged that she “knew the law” and “knew she could not retaliate,” but Byers

did not respond to appellants’ contention that Cryer had not acted with malice. At the



       6
         In an email dated June 29, 2014, Cryer stated to Byers, “I have never received time
slips from you when you have been ill. I can only assume that you have them in a folder,
would you please let me sign off on them?”

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hearing on the motion for summary judgment, appellants reiterated their argument that

Cryer was entitled to statutory immunity for the individual-capacity claims under ACRA

because Byers had failed to establish malice. In response, counsel for Byers stated,

               Well, tell me what can be more outside the law than racial discrimination or
       retaliation when the lady acknowledged she couldn’t do it. I’ve raised a, a reasonable
       inference of fact that she did do it. Judge, if I walk in here drunk and, and first thing
       you’re going to say, and I’m not by the way, but if I do, you’re going to say, Mr.
       Sutter, are you drunk? Yes, sir. Well, did you know you weren’t supposed to go to
       Court drunk? Yes, sir. You, you sentence people to jail for that type of conduct
       much less holding them civilly liable. Malice is just a, is just a label more than
       anything else.

               If you know that you have an obligation under the law, and then I prove that
       you did it anyway, I think that’s sufficient to show a reckless disregard, and, therefore,
       malice. But, I’ll acknowledge to you, you know, it’s just something I’m going to
       have to develop if, if, well, when this goes up because they always appeal every single
       thing that I do alleging that every, every single case I bring is unwarranted by the
       facts of the law.

In her brief on appeal, Byers appears to assert that she has proved malice because (1) “[r]ace

discrimination is, by definition, hateful and vindictive,” (2) Cryer testified that she knew

race discrimination and retaliation were illegal, and (3) it is “reckless for anyone to engage

in racial discrimination and retaliation in the 21st century.” In sum, Byers has merely stated,

in conclusory fashion, that Cryer acted with malice when she fired Byers. Byers’s bare

allegation is insufficient to demonstrate malice. See, e.g., Simons, 369 Ark. 447, 255 S.W.3d

838. Therefore, we hold that Cryer is entitled to statutory immunity on Byers’s individual-

capacity race-discrimination and retaliation claims under the ACRA. Accordingly, we

reverse the circuit court’s denial of summary judgment on this basis and remand with

instructions for the circuit court to enter an order dismissing the ACRA claims against Cryer

in her individual capacity.

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       Finally, appellants contend that statutory immunity pursuant to section 19-10-305(a)

bars Byers’s §§ 1981 and 1983 claims against Cryer in her individual capacity. Immunity

under state law is not dispositive of a federal civil-rights claim against state actors in their

individual capacities, even if the claim is brought in state court. See Early v. Crockett, 2014

Ark. 278, n.5, 436 S.W.3d 141 n.5. Although appellants contend that the federal claims

against Cryer are barred by statutory immunity, they fail to support their contention with

cogent legal argument or citation to relevant authority. This court has been resolute in

holding that it will not address assignments of error that are unsupported by convincing

argument or sufficient legal authority. E.g., Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547

(2005). Therefore, we affirm the circuit court’s ruling that Cryer is not entitled to statutory

immunity on the federal civil-rights claims.

       Affirmed in part; reversed in part and remanded with instructions.

      Leslie Rutledge, Att’y Gen., by: C. Joseph Cordi, Jr., Sr. Ass’t Att’y Gen., and Delena
C. Hurst, Ass’t Att’y Gen., for appellant.

       Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellee.




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