Bales v. City of Fort Smith

2016 Ark. App. 491, 505 S.W.3d 705, 2016 Ark. App. LEXIS 522
CourtCourt of Appeals of Arkansas
DecidedOctober 19, 2016
DocketCV-15-873
StatusPublished
Cited by4 cases

This text of 2016 Ark. App. 491 (Bales v. City of Fort Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bales v. City of Fort Smith, 2016 Ark. App. 491, 505 S.W.3d 705, 2016 Ark. App. LEXIS 522 (Ark. Ct. App. 2016).

Opinion

LARRY D. VAUGHT, Judge

11Appellants Don Paul Bales (Bales), Rick Entmeier (Entmeier), and Wendall Sampson, Jr., (Sampson) sued appellees the City of Fort Smith, Arkansas, and Kevin D. Lindsey, Chief of the Fort Smith Police Department (FSPD), in the Sebastian County Circuit Court for violations of the Arkansas Whistle-Blower Act (AWBA). Appellees petitioned the circuit court for summary judgment, and the circuit court -granted the motion, dismissing the case in its entirety^ Appellants bring this appeal challenging the circuit court’s order for summary judgment to appellees. After considering the merits, we affirm in part and reverse and remand in part.

I. Background

Because this case is entirely based on the AWBA, we begin with a brief overview of the Act. Ark. Code Ann. §§ 21-1-601 et seq. (Repl. 2004 & Supp. 2015). Pursuant to the AWBA, “[a] public employer shall not take adverse action against a public employee because |athe public employee ... communicates in good faith to an appropriate authority (A) the existence of waste of public funds, property, or manpower ... or (B) a violation or suspected violation of a law, rule, or regulation adopted under the law of this state or a political subdivision of this state.” Ark. Code Ann. § 21-l-603(a)(l).

To prevail in an action under the AWBA, “the public employee shall establish, by a preponderance of the evidence, that the employee has suffered an adverse action because the employee ... engaged ... in an activity protected under this subchapter.” Ark. Code Ann. § 21-1-604(c). The mere fact that an employee meets the definition of a whistleblower does not mean that he or she is protected from all subsequent discipline. A public employer has an affirmative defense to a whistle-blower lawsuit if the adverse action taken against the public employee was due to employee misconduct, poor job performance, or a reduction in workforce unrelated to a whistle-blowing communication. Ark. Code Ann. § 21-l-604(e)(l). With these standards in mind, we turn our attention to the alleged whistle-blowing communications engaged in by appellants as well as the disciplinary measures that followed.

Although not a party, Addisen Entmeier (Addisen) was a catalyst for this litigation. 1 Addisen was a probationary police officer with the FSPD. During his probationary period, Addisen developed the opinion that employees were requesting pay for overtime work completed during their already-paid lunch hours. Sampson and Addisen reported this |spractice to Sergeant Dawn Sprayberry. 2 Emily Haney, an employee engaged in this practice, is married to Captain Alan Haney who was Addisen’s supervisor.

It is alleged that several members of the FSPD sought to have Addisen terminated in retaliation for his statements about Emily Haney and the others who engaged in this practice. Addisen took his concerns regarding this supposed retaliation to Bales, and Bales accompanied Addisen to file a grievance on the matter with Chief Lindsey. Addisen was ultimately terminated during his probationary period, but his termination is not a subject of this appeal.

Following Addisen’s termination, Bales and Entmeier wrote messages of support for Addisen on their personal Facebook pages. Shortly thereafter, Chief Lindsey told them that he took no offense to their Facebook posts. It was during this exchange that Bales and Entmeier told Chief Lindsey that they believed he had been misled into terminating Addisen’s employment. As a result of this conversation, Chief Lindsey instituted an internal investigation into Addisen’s termination. Subsequent to that, Chief Lindsey ordered Bales and Entmeier to stop posting those types of messages on Facebook.

First, we consider the alleged whistle-blowing communications made by Bales, Entmeier, and Sampson. Bales and Ent-meier allege that they are whistle-blowers entitled to relief under the AWBA because they were retaliated against for reporting violations of FSPD rules relating to the termination of Addisen. Sampson contends that his report of improper overtime pay and his report of harassment and bullying by Sgt. Dawn Sprayberry qualify 14him as a whistleblower under the AWBA. With this in mind, we direct our attention to the alleged retaliatory acts against appellants.

Almost immediately following the termination of Addisen, appellants became the subject of internal investigations and grievances at the FSPD. Prior to Addi-sen’s termination, Bales and Entmeier had never been disciplined during their employment with the FSPD, and Sampson had not been disciplined in more than fifteen years.

Bales and Entmeier’s support for Addi-sen following his termination ultimately became the subject of an internal FSPD inquiry. Bales received a five-day suspension without pay for conduct unbecoming an officer or neglect of duty and for public criticism that impairs the operation of the department, and Entmeier received a one-day suspension without pay for conduct unbecoming an officer.

Another alleged retaliatory act involves Angela McCabe, a 911 dispatcher in the FSPD. Bales and Sampson gave McCabe a counseling session to address a personnel issue. This session was at the behest of Bales and Sampson’s supervisors. McCabe was ultimately assigned to work a different shift. Afterward, McCabe filed a grievance against Bales and Sampson alleging age discrimination and sexual harassment. An investigation into the grievance was initiated. As a result, Sampson was formally reprimanded and Bales was suspended without pay for one day.

A FSPD morale-building exercise also resulted in disciplinary measures for Bales. Bales and Sampson organized a morale-building exercise that required some employees to be out of the office. The employees who staffed the office during the exercise received overtime pay. As a result, the FSPD conducted an investigation regarding a potential misuse |Bof police funds, and Bales received a disciplinary memo to his file.

In January 2014, appellants filed this lawsuit against appellees alleging violations of the AWBA, and in March 2015, appellees filed a motion for summary judgment. Attached to appellees’ motion was the testimony of appellants, as well as sixteen additional affidavits. The crux of appellees’ motion was that any sanctions imposed against appellants were the result of poor job performance and were not retaliatory. Appellees asserted that there were no facts in evidence to support the existence of a causal connection between appellants’ alleged whistle-blowing communications and the sanctions imposed on them thereafter. Appellants responded to the motion for summary judgment and offered their own responsive affidavits. The circuit court ultimately found that ap-pellees were entitled to summary judgment on appellants’ claims.

In this appeal, appellants argue that the circuit court erred by granting' summary judgment to appellees. They contend that (1) appellees did not establish that summary judgment was warranted, (2) the circuit court erred in granting summary judgment because causation is a question of fact for the jury, (3) the circuit court ignored their evidence, and (4) appellees’ failure to fully answer discovery precluded summary judgment.

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2016 Ark. App. 491, 505 S.W.3d 705, 2016 Ark. App. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bales-v-city-of-fort-smith-arkctapp-2016.