Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—E.D. Ark.: State employee, fired after Charlie Kirk post, denied reinstatement while retaliation claim proceeds, (Dec 2, 2025)

By Tulay Turan, J.D.

The department does not have any power over her speech because she no longer works there.

An Arkansas Department of Health employee, who was fired after posting comments on Facebook about Charlie Kirk’s assignation, failed to show she would suffer irreparable harm in the absence of a preliminary injunction reinstating her while her First Amendment retaliation claim proceeds. Denying her motion for injunctive relief, a federal district court in Arkansas rejected her reliance on a presumption-of-irreparable-harm theory where the department was not currently chilling her speech. The court also denied her request for a name-clearing hearing where she failed to show a likelihood of success on the merits of the claim (Gray v. Mallory, No. 4:25-cv-01057-LPR (E.D. Ark. Nov. 21, 2025)).

The Arkansas Department of Health fired the employee after she made comments on Facebook about Charlie Kirk’s assassination. All parties acknowledged that her termination was linked to the nature of her comments.

Retaliation claims. The employee sued the department and a number of department officials under 42 U.S.C. § 1983 and § 1985, and the Arkansas Civil Rights Act, alleging her firing constituted unconstitutional retaliation for protected speech. She filed this motion for preliminary injunctive relief. Her primary request was that the court order the department to re-hire her for the pendency of this litigation. Her fallback request was that the court order the department to immediately provide her with a name-clearing hearing.

No irreparable harm. Denying the employee’s request for reinstatement, the court found she failed to show she was likely to suffer irreparable harm in the absence of an injunction. The employee’s entire irreparable-harm argument relied on a quote from the Supreme Court in Elrod v. Burns, 427 U.S. 347, (1976): “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable [harm].” The court noted that in the Eighth Circuit, showing a likelihood of success on the merits in a constitutional case usually indicates irreparable harm is likely in the absence of a preliminary injunction because “[i]n most instances, constitutional violations constitute irreparable harm.”

However, the court said that “most is not all.” The mere assertion of a possible constitutional violation does not release a plaintiff from the burden of showing that irreparable harm is likely to occur in the absence of preliminary relief. The Elrod maxim is limited to cases where “First Amendment interests were either threatened or in fact being impaired at the time relief was sought.” The maxim holds true in most First Amendment cases because they seek to enjoin a law or regulation that is actively chilling a plaintiff’s speech.

Speech not chilled. Here, the employee’s challenge is not to a current or prospective law, regulation, or similar government action that is actively chilling (or imminently will begin chilling) her speech. Instead, she is challenging the department’s decision to terminate her from her job. That is a single, discrete act that took place entirely in the past. The department, the court said, is not currently chilling her speech. It can’t be because she is no longer working for the department. Therefore, the department no longer has any power over her or her speech.

The court found the employee could not just point to Elrod and “call it a day.” More was required of her, but she did not provide more and, thus, failed to establish the irreparable harm factor of the preliminary injunction framework. Because she failed to make out that factor, the court denied her request for a preliminary injunction without considering the other Dataphase factors.

Request for hearing. The court also denied the employee’s request for a name-clearing hearing because she failed to show a likelihood of success on the merits of the claim.

First, she did not properly present this issue in her preliminary injunction request. Her brief attached to the motion did not include any legal arguments about the name-clearing-hearing claim.

Second, she did not appear to have ever requested a name-clearing hearing. There was evidence in the record that she pursued the department’s grievance/appeal process, and her grievance/appeal was denied. Her position appeared to be that her inquiries about the grievance and appeal process were close enough to count as a request for a name-clearing hearing. Based on the very limited evidentiary record, the court disagreed.

Stigma threshold. Third, the court found the employee failed to show that statements made by the department were “so damaging as to make it difficult or impossible for [the employee] to escape the stigma of those charges.” If the statements don’t meet that threshold, they don’t count as stigmatizing and thus don’t trigger the name-clearing-hearing requirement, the court explained. The statements must involve dishonesty, immorality, criminality, or racism.

Here, the court was not exactly clear which statements she alleged to be the stigmatizing ones. The notice of disciplinary action stated she was discharged because she “posted on social media unprofessional posts/comments to a public incident.” The notice also indicated the department received a complaint regarding her posts. These statements came nowhere close to meeting the “so damaging” threshold, the court found. “Generically accusing someone of posting unprofessional comments is not the same as accusing them of ‘dishonesty, immorality, criminality, or racism.’”

The employee also implied that the department’s response to her grievance was stigmatizing. However, the court found nothing in the response stigmatizing at all. There was not even a reference to the underlying reason she was terminated.

Failed to meet factors. Finally, the court noted the employee’s analysis of the other three Dataphase factors was “paper-thin.” Her single-sentence argument for each factor was insufficient to carry her burden on those factors. Even if she had met her burden on those factors, the court said it would not grant a preliminary injunction because her chance of success on the merits of her name-clearing-hearing claim was close to zero. Accordingly, the court denied the motion for a preliminary injunction in its entirety.

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, and Cassie Cochran.

Cases: RemediesDamages PublicEmployees IndividualRights Discharge Retaliation ArkansasNews