1

The 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

___________

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Arkansas Department of Health, in her * [UNPUBLISHED]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.

___________
2

The 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 court2

 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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