• Plaintiff is a former Pine Bluff police officer

LITTLE ROCK — A lawsuit by a former Arkansas Capitol Police officer alleging that racial discrimination was behind his firing can proceed, a federal appeals court ruled Tuesday.

The 8th U.S. Circuit Court of Appeals in St. Louis upheld an Arkansas federal judge’s ruling that Richard Burton could proceed with his lawsuit against Secretary of State Mark Martin and Capitol Police Chief Darrell Hedden, although the appeals court said Hedden is entitled to immunity on one claim.

Burton, who is black, was hired by the Capitol Police in June 2009 and fired in April 2010. He was fired before Martin was elected in November 2010, but Martin is named as a defendant in his official capacity as the current secretary of state, who oversees the Capitol Police.

Burton’s suit alleges that a fellow officer who is white often addressed him and another black officer with a racial epithet and that he complained about the white officer in December 2009, after which Hedden advised the officer not to make racial remarks.

The suit alleges that in February 2010, the white officer threw keys at Burton and the other black officer. Burton claims that he complained about the incident and was told by a superior to stop "aggravating" the white officer.

According to the suit, Burton missed work one day because of oversleeping after working at another job and was disciplined for failing to turn in an accident report in a timely manner. Burton maintains he had been told not to prepare the report until he had been shown how to use a new computer system.

The stated reason for his firing was failure to meet the standards of his 12-month probationary period.

Burton maintains that because he was a Pine Bluff police officer for four years before being hired by the Capitol Police, he was not required to go through a probationary period. His suit originally alleged that he was the victim of racial discrimination, retaliation, a hostile work environment and deprivation of a protected property or liberty interest.

Martin and Hedden moved for summary judgment, arguing that they were entitled to immunity. A federal judge ruled that the suit could proceed on the claims of discrimination and retaliation but granted the defendants summary judgment on the claims of a hostile work environment and deprivation of a protected property or liberty interest.

The defendants appealed, and a three-judge panel of the 8th Circuit on Tuesday upheld the judge’s ruling on most points. The appeals court said in its opinion that Burton showed that a white officer who committed similar offenses was not fired.

"We concur in the district court’s determination that ‘viewing the evidence in the light most favorable to Mr. Burton, a jury could reasonably find that (the state) defendants’ asserted reasons for terminating Mr. Burton were a pretext for race discrimination," Judge Lavenski Smith wrote in the opinion.

The 8th Circuit reversed the judge on one point, saying the denial of qualified immunity to Hedden on Burton’s retaliation claim was in error.

Burton asserted the claim under the Equal Protection Clause of the 14th Amendment, but the right to be free from retaliation is established under the First Amendment, not the 14th, the appeals court said.