Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—E.D. Ark.: State employee, fired after Charlie Kirk posts, advances retaliation claims, (May 5, 2026)

By Tulay Turan, J.D.

Termination counts as an adverse action that would chill an ordinary person from speaking.

An Arkansas Department of Health employee, who was terminated after posting comments on Facebook about Charlie Kirk’s assassination, can proceed to discovery on her federal and state retaliation-for-protected-speech claims against her supervisor and the department’s chief legal counsel in their individual and official capacities. However, a federal district court in Arkansas granted the department’s motion to dismiss those claims against three other department officials because they did not participate in her termination. The court also dismissed the employee’s procedural due process claims because she did not argue she had a property interest in her job (Gray v. Mallory, No. 4:25-cv-01057-LPR (E.D. Ark. May 1, 2026)).

The Arkansas Department of Health fired the employee after she made posts on Facebook about Charlie Kirk’s assassination.

Complaint. The employee sued the department and a number of department officials under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act, alleging her termination constituted unconstitutional retaliation for protected speech. The department filed this motion to dismiss all claims.

Matter of public concern. Analyzing the federal and state law retaliation-for-protected-speech claims at the same time, the court first found the employee’s social media comments were a matter of public concern. Although the specific posts were not contained in the complaint, the defendants entered them into the record and conceded the posts were on a matter of public concern.

Adverse actions. Next, the court addressed the defendants’ argument that the complaint failed to allege specific facts to show that each individual defendant engaged in retaliation. The court explained that “a plaintiff must plausibly allege that the defendant took (or at least pushed forward) an adverse action what would chill a person of ordinary firmness from speaking.”

Here, the complaint met this bar with respect to the employee’s supervisor and the department’s chief legal counsel. However, the complaint did not meet the bar with respect to any other defendants. Her direct supervisor was the person who actually terminated her. Termination counts as an adverse action that would chill an ordinary person from speaking, the court said. Thus, the complaint plausibly alleged a qualifying adverse action taken by her supervisor.

Regarding the chief legal counsel, the reasonable inference from the complaint’s allegations was that he was, to some extent, an active participant in the decision to terminate the employee. The court said that was enough at this stage to meet the adverse action prong.

The complaint, however, did not explicitly allege any specific act or actions on the part of the secretary, chief of staff, or deputy director that would count as participation in her termination. Thus, the court dismissed the retaliation-for-protected-speech claims against these defendants.

Qualified immunity. The court also rejected the defendants’ qualified immunity argument regarding the supervisor and the chief legal counsel at this stage, noting that it was certainly possible they would prevail on the argument at summary judgment. The complaint’s allegations made it plausible that the employee was terminated for her posts concerning Charlie Kirk’s assassination. In addition, the complaint did not affirmatively suggest the kind of disruption that would trigger Pickering balancing. In such circumstances, the court said, the logic of the Eighth Circuit’s opinion in Melton v City of Forrest City dictated that the case move forward for now.

Thus, the court denied the motion to dismiss the retaliation-for-protected-speech claims against the supervisor and the chief legal counsel in their individual and official capacities.

No property interest. Turning to the employee’s procedural due process claim, the court dismissed it to the extent it was based on an alleged property interest in her job or an alleged lack of adequate notice of, and an opportunity to contest, her termination. The employee did not argue that she had a property interest in her job.

Name-clearing hearing. The court also dismissed the employee’s procedural due process claim regarding a name-clearing hearing. Such a hearing is related to an employee’s liberty interest rather than a property interest. An employee is entitled to a name-clearing hearing only if her employer disseminates stigmatizing statements against her.

Here, the employee failed to allege any facts that made it plausible that the defendants even made—let alone disseminated—stigmatizing statements. The complaint stated that the chief legal counsel “accused her of bad faith” and that the department “cited her ‘reaction’ during the meeting [with him] as a basis for termination.” None of this came close to the level of stigma necessary to require a name-clearing hearing under Eighth Circuit case law, the court said.

Conspiracy claim. Finally, the court dismissed the employee’s § 1983 conspiracy claim. The complaint failed to allege facts to suggest a “meeting of the minds” needed to satisfy the first prong of the § 1983 conspiracy test. The complaint’s allegations made it plausible that the employee’s supervisor terminated the employee and the chief legal counsel participated in the decision to terminate her. However, the fact that two people were both involved in the termination of an employee did not mean there was an agreement between those two people to deprive the employee of a constitutional right.

Thus, the court dismissed this claim without prejudice.

The case is No. 4:25-cv-01057-LPR.

Judge: Rudofsky, L.

Attorneys: Lucien R. Gillham (Sutter & Gillham) for Joy Gray. Carl F. Cooper, III, Arkansas Attorney General’s Office, for Renee Mallory, Don Adams, Cassie Cochran, Cristy Sellers and Reggie Rogers.

Companies: Arkansas Department of Health

Cases: PublicEmployees Procedure IndividualRights Discharge Retaliation StateLawClaims ArkansasNews