Cite as 2014 Ark. App. 99
ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-379
JANANN JOHNSON Opinion Delivered February 12, 2014 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. CV-2009-7248] WINDSTREAM COMMUNICATIONS, INC. HONORABLE TIMOTHY DAVIS APPELLEE FOX, JUDGE
REVERSED AND REMANDED
RITA W. GRUBER, Judge
This is the second time that appellant, Janann Johnson, has appealed an order of
summary judgment against her in favor of her former employer, Windstream
Communications, Inc. The lawsuit began when appellant sued Windstream for violation of
the Americans with Disabilities Act (ADA) and the Arkansas Civil Rights Act (ACRA) after
Windstream fired her. In the first appeal, we reversed the award of summary judgment and
remanded, directing the circuit court to analyze and explain its decision using the framework
set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), as required by our
supreme court’s decision in Brodie v. City of Jonesboro, 2012 Ark. 5. Johnson v. Windstream
Communications, Inc., 2012 Ark. App. 590 (Johnson I). After remand, the circuit court entered
a new order, again granting Windstream’s motion for summary judgment and setting forth
in great detail each of its rulings pursuant to the McDonnell Douglas framework. On appeal Cite as 2014 Ark. App. 99
from the new order, appellant contends that the circuit court erred in (1) applying federal
standards to decide summary judgment in a case brought in state court with state-law claims;
(2) finding that law of the case mandated summary judgment, and required the court to enter
findings to achieve that result regardless of what the facts, inferences, and law demanded; (3)
finding that appellant did not have a disability; (4) finding that appellant was not qualified for
her job; (5) finding that appellant did not request accommodation, that such a request was not
a protected activity, or that appellee met its obligations as to accommodation; and (6) finding
that appellant did not provide facts sufficient to create a jury question on the issues of
discriminatory and retaliatory intent at either the prima facie or pretext stages of her case.
Because the circuit court erred in interpreting our mandate, we reverse its order
granting summary judgment and remand for the court to use the McDonnell Douglas
framework in determining whether material issues of fact exist and summary judgment is
appropriate. Then, only if it determines that summary judgment is appropriate, the court
must enter an order setting forth its analysis, as we explained in Johnson I. If, however, the
court determines that summary judgment is not appropriate, it should proceed accordingly
and set the case for trial or make whatever other disposition it determines advisable under the
circumstances.
We set forth the basic facts of this case in our previous opinion. See Johnson I, 2012
Ark. App. 590, at 2–4. In this second appeal, we turn first to appellant’s second argument that
the circuit court erred in determining that law of the case mandated summary judgment,
leaving it no option to re-evaluate the case to determine whether or not summary judgment
2 Cite as 2014 Ark. App. 99
was appropriate. This case was initially before the Honorable Jay Moody, who recused after
the first appeal and upon remand of the case to circuit court. The case was transferred to the
Honorable Tim Fox. At the hearing before Judge Fox, appellant requested the court to set
the case for a jury trial. The court denied the request, stating that the court of appeals had
remanded solely for the circuit court to explain the reasons for its decision. The circuit court
noted, “If I could set it for a jury trial that might be better time wise, money wise, and cost
wise, but I don’t believe that I can.” In its order, the court explained our mandate: “The
court of appeals remanded the case based on Brodie v. City of Jonesboro, 2012 Ark. 5, decided
on January 12, 2012, and asked for a more detailed explanation of this Court’s ruling.”
The question before us now is what did our mandate order? Our mandate stated that
the case was being “Reversed and Remanded” for the reasons set forth in our opinion. The
first paragraph in our opinion states this: “For the reasons expressed below, we reverse the
summary judgment awarded to appellee and remand.” Johnson I, 2012 Ark. App. 590, at 1.
We then recognized that the circuit court granted Windstream’s motion without
explanation, stating merely that the summary-judgment motion was “well-taken,” in spite
of appellant’s objection and request for rulings on each of the issues. We held that our
supreme court clarified in Brodie that, even on summary judgment, the circuit court must
evaluate these types of cases using the McDonnell Douglas framework and explain in detail its
findings pursuant thereto. We felt bound by Brodie to reverse and remand to the circuit court
to perform this function. We did not decide in the first appeal whether summary judgment
was or was not appropriate because we did not have an adequate order to review.
3 Cite as 2014 Ark. App. 99
In his concurring opinion, Judge Vaught emphasized that an analysis using the
McDonnell Douglas framework “does not abrogate the trial court’s duty to deny summary
judgment if there are material facts left to be decided.” Johnson I, 2012 Ark. App. 590, at 8
(Vaught, J., concurring). And he reminded the circuit court in this case to look carefully at
the elements of appellant’s claim on remand because both parties presented facts that they
argued proved the opposite point regarding appellant’s alleged disability. Judge Vaught
concluded, “If this presents a material fact that is still in issue, then summary judgment is not
appropriate and the McDonnell Douglas test is never reached.” Id.
A “mandate” is the official notice of action of the appellate court, directed to the
court below, advising it of the action taken by the appellate court and directing it to have the
appellate court’s judgment duly recognized, obeyed, and executed. City of Dover v. Barton,
342 Ark. 521, 525, 29 S.W.3d 698, 700 (2000). Here, our mandate did not say remanded,
as the circuit court indicated in its order; it said reversed and remanded. Reverse means “to
overthrow, vacate, set aside, make void, annul, repeal, or revoke . . . . To reverse a judgment
means to overthrow it by contrary decision, make it void, undo or annul it for error.” Black’s
Law Dictionary, 1185–86 (5th ed. 1979). Remand is defined as follows: “To send back. The
sending by the appellate court of the cause back to the same court out of which it came, for
the purpose of having some further action taken on it there.” Id. at 1162. Our mandate
reversed the order of summary judgment, making it void, and remanded to the circuit court
with directions to use the McDonnell Douglas framework in reviewing Windstream’s motion
for summary judgment and include its analysis in its summary-judgment order. Implicit in
4 Cite as 2014 Ark. App. 99
these directions is the possibility that the court might determine after its analysis that the case
is not appropriate for summary judgment. “A trial court must implement both the letter and
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Cite as 2014 Ark. App. 99
ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-379
JANANN JOHNSON Opinion Delivered February 12, 2014 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. CV-2009-7248] WINDSTREAM COMMUNICATIONS, INC. HONORABLE TIMOTHY DAVIS APPELLEE FOX, JUDGE
REVERSED AND REMANDED
RITA W. GRUBER, Judge
This is the second time that appellant, Janann Johnson, has appealed an order of
summary judgment against her in favor of her former employer, Windstream
Communications, Inc. The lawsuit began when appellant sued Windstream for violation of
the Americans with Disabilities Act (ADA) and the Arkansas Civil Rights Act (ACRA) after
Windstream fired her. In the first appeal, we reversed the award of summary judgment and
remanded, directing the circuit court to analyze and explain its decision using the framework
set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), as required by our
supreme court’s decision in Brodie v. City of Jonesboro, 2012 Ark. 5. Johnson v. Windstream
Communications, Inc., 2012 Ark. App. 590 (Johnson I). After remand, the circuit court entered
a new order, again granting Windstream’s motion for summary judgment and setting forth
in great detail each of its rulings pursuant to the McDonnell Douglas framework. On appeal Cite as 2014 Ark. App. 99
from the new order, appellant contends that the circuit court erred in (1) applying federal
standards to decide summary judgment in a case brought in state court with state-law claims;
(2) finding that law of the case mandated summary judgment, and required the court to enter
findings to achieve that result regardless of what the facts, inferences, and law demanded; (3)
finding that appellant did not have a disability; (4) finding that appellant was not qualified for
her job; (5) finding that appellant did not request accommodation, that such a request was not
a protected activity, or that appellee met its obligations as to accommodation; and (6) finding
that appellant did not provide facts sufficient to create a jury question on the issues of
discriminatory and retaliatory intent at either the prima facie or pretext stages of her case.
Because the circuit court erred in interpreting our mandate, we reverse its order
granting summary judgment and remand for the court to use the McDonnell Douglas
framework in determining whether material issues of fact exist and summary judgment is
appropriate. Then, only if it determines that summary judgment is appropriate, the court
must enter an order setting forth its analysis, as we explained in Johnson I. If, however, the
court determines that summary judgment is not appropriate, it should proceed accordingly
and set the case for trial or make whatever other disposition it determines advisable under the
circumstances.
We set forth the basic facts of this case in our previous opinion. See Johnson I, 2012
Ark. App. 590, at 2–4. In this second appeal, we turn first to appellant’s second argument that
the circuit court erred in determining that law of the case mandated summary judgment,
leaving it no option to re-evaluate the case to determine whether or not summary judgment
2 Cite as 2014 Ark. App. 99
was appropriate. This case was initially before the Honorable Jay Moody, who recused after
the first appeal and upon remand of the case to circuit court. The case was transferred to the
Honorable Tim Fox. At the hearing before Judge Fox, appellant requested the court to set
the case for a jury trial. The court denied the request, stating that the court of appeals had
remanded solely for the circuit court to explain the reasons for its decision. The circuit court
noted, “If I could set it for a jury trial that might be better time wise, money wise, and cost
wise, but I don’t believe that I can.” In its order, the court explained our mandate: “The
court of appeals remanded the case based on Brodie v. City of Jonesboro, 2012 Ark. 5, decided
on January 12, 2012, and asked for a more detailed explanation of this Court’s ruling.”
The question before us now is what did our mandate order? Our mandate stated that
the case was being “Reversed and Remanded” for the reasons set forth in our opinion. The
first paragraph in our opinion states this: “For the reasons expressed below, we reverse the
summary judgment awarded to appellee and remand.” Johnson I, 2012 Ark. App. 590, at 1.
We then recognized that the circuit court granted Windstream’s motion without
explanation, stating merely that the summary-judgment motion was “well-taken,” in spite
of appellant’s objection and request for rulings on each of the issues. We held that our
supreme court clarified in Brodie that, even on summary judgment, the circuit court must
evaluate these types of cases using the McDonnell Douglas framework and explain in detail its
findings pursuant thereto. We felt bound by Brodie to reverse and remand to the circuit court
to perform this function. We did not decide in the first appeal whether summary judgment
was or was not appropriate because we did not have an adequate order to review.
3 Cite as 2014 Ark. App. 99
In his concurring opinion, Judge Vaught emphasized that an analysis using the
McDonnell Douglas framework “does not abrogate the trial court’s duty to deny summary
judgment if there are material facts left to be decided.” Johnson I, 2012 Ark. App. 590, at 8
(Vaught, J., concurring). And he reminded the circuit court in this case to look carefully at
the elements of appellant’s claim on remand because both parties presented facts that they
argued proved the opposite point regarding appellant’s alleged disability. Judge Vaught
concluded, “If this presents a material fact that is still in issue, then summary judgment is not
appropriate and the McDonnell Douglas test is never reached.” Id.
A “mandate” is the official notice of action of the appellate court, directed to the
court below, advising it of the action taken by the appellate court and directing it to have the
appellate court’s judgment duly recognized, obeyed, and executed. City of Dover v. Barton,
342 Ark. 521, 525, 29 S.W.3d 698, 700 (2000). Here, our mandate did not say remanded,
as the circuit court indicated in its order; it said reversed and remanded. Reverse means “to
overthrow, vacate, set aside, make void, annul, repeal, or revoke . . . . To reverse a judgment
means to overthrow it by contrary decision, make it void, undo or annul it for error.” Black’s
Law Dictionary, 1185–86 (5th ed. 1979). Remand is defined as follows: “To send back. The
sending by the appellate court of the cause back to the same court out of which it came, for
the purpose of having some further action taken on it there.” Id. at 1162. Our mandate
reversed the order of summary judgment, making it void, and remanded to the circuit court
with directions to use the McDonnell Douglas framework in reviewing Windstream’s motion
for summary judgment and include its analysis in its summary-judgment order. Implicit in
4 Cite as 2014 Ark. App. 99
these directions is the possibility that the court might determine after its analysis that the case
is not appropriate for summary judgment. “A trial court must implement both the letter and
spirit of the mandate, taking into account the appellate court’s opinion and the circumstances
it embraces.” City of Dover, 342 Ark. at 525, 29 S.W.3d at 700 (quoting Dolphin v. Wilson,
335 Ark. 113, 983 S.W.2d 113 (1998)).
Although we regret that the circuit court found our mandate confusing, we must
reverse its order granting summary judgment. On remand, we again direct the circuit court
to use the McDonnell Douglas framework to review appellee’s motion for summary judgment
to determine whether material issues of fact exist. As in any summary-judgment analysis, the
circuit court must determine whether there is a genuine issue of material fact presented. A
court may grant summary judgment only when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, clearly show that there
are no genuine issues of material fact to be litigated and the party is entitled to judgment as
a matter of law. Watkins v. Ark. Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, at 7,
__ S.W.3d __, ___. We express no opinion regarding whether summary judgment is or is
not appropriate in this case. We reverse this case on the basis of appellant’s second point on
appeal; accordingly, we do not address her remaining points on appeal.
Reversed and remanded.
WHITEAKER, J., agrees.
VAUGHT, J., concurs.
LARRY D. VAUGHT, Judge, concurring. I concur for the same reasons stated in my
5 Cite as 2014 Ark. App. 99
concurring opinion in Johnson v. Windstream Communications, Inc., 2012 Ark. App. 590.
Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellant.
Wright, Lindsey & Jennings LLP, by: Troy A. Price and William Stuart Jackson, for
appellee.