Fennell v. City of Pine Bluff , 2016 Ark. App. LEXIS 290 ( 2016 )

Cite as 2016 Ark. App. 275
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-751
RENITA JOHNSON FENNELL and Opinion Delivered May 18, 2016
EARL EDWARD BURNLEY
APPELLANTS APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. CV 2011-438-2]
CITY OF PINE BLUFF, ET AL. HONORABLE ROBERT H. WYATT,
APPELLEES JR., JUDGE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
CLIFF HOOFMAN, Judge
Appellants Renita Johnson Fennell and Earl Edward Burnley appeal after the Jefferson
County Circuit Court granted summary judgment and dismissed appellants’ fourth amended
complaint with prejudice in favor of appellees City of Pine Bluff (City) and Larry Reynolds,
in his individual and official capacity. This court previously dismissed a prior appeal for lack
of a final order. See Fennell v. City of Pine Bluff, 2015 Ark. App. 216. Having found that
appellants have cured any deficiencies, we may now address the merits of this appeal.
Appellants contend that (1) the circuit court erred when it failed to provide a basis for its
decision as required; (2) the circuit court erred by applying federal summary-judgment
standards; (3) the circuit court erred in dismissing the whistle-blower claims based on either
the lack of an adverse act, retaliatory intent, and/or an affirmative defense that the city would
have taken action against Fennell and Burnley regardless of their protected activity; (4) the
circuit court erred in dismissing appellants’ Arkansas Civil Rights Act (ACRA) free-speech
Cite as 2016 Ark. App. 275
claims on the grounds that there was no protected speech, adverse action, retaliatory intent
or the same-decision defense, and/or qualified immunity; (5) the circuit court erred in
dismissing appellants’ overtime claims based on the statute of limitations when they clearly
alleged a denial of overtime as recently as 2012, suit was filed in 2011, the Arkansas Minimum
Wage Act (AMWA) has a three-year statute of limitations, and appellees have the burden of
proving that appellants did not work when appellees failed to keep accurate records; and (6)
the circuit court erred in dismissing Burnley’s battery claim where Burnley testified that
Reynolds came up to him immediately after he had reported Reynolds, challenged Burnley
to fight, threatened him, and repeatedly bumped Burnley’s chest without consent. We affirm
in part and reverse and remand in part.
Fennell initially filed a complaint against the City of Pine Bluff on July 11, 2011. After
subsequent amended complaints, Fennell and Burnley filed a fourth amended complaint
against the City of Pine Bluff, Reynolds, and Kenneth Blackwell, in his individual and official
capacities,1 on August 27, 2013. Appellees filed an answer to the fourth amended complaint
on September 16, 2013, and a motion for summary judgment on December 16, 2013, arguing
that the fourth amended complaint should be dismissed. Appellants subsequently filed a
response to the motion for summary judgment on January 28, 2014, and appellees filed a reply
on February 13, 2014.2
1
Blackwell was dismissed as an unserved defendant and is not a party to this appeal.
2
Appellants’ fourth amended complaint and appellees’ motion for summary judgment
addressed numerous claims that are not at issue in this appeal. Additionally, appellants
expressly abandoned several claims and arguments in their reply brief, including “(1) the hate
2
Cite as 2016 Ark. App. 275
Several exhibits were submitted to the circuit court, including deposition excerpts,
copies of payroll records, copies of time cards, memorandums, and affidavits. Based on the
facts contained in the exhibits, appellees alleged that they were entitled to summary judgment
because the relevant facts were undisputed. Fennell began working for the City of Pine Bluff
in 1999 driving buses, doing customer service, and servicing buses. Burnley was hired in 2006
and would fuel buses, check fluids, and assist the mechanic. During their employment, they
were supervised by the operations manager; Revawn Johnson, Quintavious Brown, and
Kenneth Blackwell served in that order as operations manager. The operations manager
reported to the transit director. Reynolds served as the transit director from 1999 to 2013 and
was replaced by Charlina Lacy in July 2013.
In Fennell’s deposition testimony and affidavit, she testified that she had observed
Reynolds stealing gasoline and that she had made a report to Ted David, the mayor’s assistant.
However, she was unable to recall when she made this report or even the year in which she
made the report. Despite the fact that she could not recall when she reported the gasoline
theft, she alleged that she was denied the opportunity to work overtime hours driving a bus
as a result of her report. Additionally, she stated that she was denied a promotion because
Brown had told her that he would promote her to his position if Reynolds was fired and he
was promoted to serve as transit director. However, Brown subsequently resigned from his
crimes claim; (2) the issue of willfulness so that a three year statute of limitations could be
applied on the FLSA claims; [and] (3) the issue of official capacity liability on the free speech
retaliation claims.” Instead, appellants specifically stated that only their “(1) AMWA claims;
(2) battery claims; (3) whistle-blower claims; [and] (4) ACRA claims for retaliation” should
be set for trial. As such, this opinion is limited to discussing these claims and issues.
3
Cite as 2016 Ark. App. 275
position, and Blackwell was hired to replace him. At some point, Fennell and Burnley were
accused of stealing money. However, neither employee was disciplined because Reynolds
determined that the allegations were false. Fennell further complained that Blackwell would
yell at her to “get to work,” that she was suspended for insubordination in July 2013 by
Blackwell, and that she was terminated in August 2013.
Burnley testified that he was not paid for all of his work, that he had reported to
Johnson in 2008 that Reynolds had stolen gasoline, that Reynolds had bumped his chest
during an argument regarding not receiving all of his pay, that he was falsely accused of theft
but was not disciplined after Reynolds had determined that the allegations were false, and that
he generally was subjected to a “hostile work environment.” However, Burnley testified that
this hostile environment started in 2007.
Reynolds denied the allegations made against him. Furthermore, Lacy testified that
Fennell was suspended for insubordination after Fennell had a meeting with her and
Blackwell. During that meeting, she stated that Fennell “lashed out” at Blackwell and
behaved in a manner that she believed was insubordinate. Additionally, she testified that
Fennell’s termination was the result of budget cuts in 2013. Lacy was told in an email that
there were two budget cuts in 2013. Mayor Debbie Hollingsworth confirmed that she had
required and approved the budget reduction.
A disciplinary-action form documenting the incident that resulted in Fennell’s
suspension was submitted as an exhibit. The form documented that Fennell had violated Pine
Bluff Transit’s policy when she called a coworker to work in her place instead of calling her
4
Cite as 2016 Ark. App. 275
supervisor and that she was insubordinate to Blackwell in a meeting in the director’s office
regarding this violation. Additionally, a letter dated August 12, 2013, and signed by Lacy,
stated that Fennell’s position had been “written out of the Pine Bluff Transit Budget.”
After a hearing on the motion for summary judgment on May 2, 2014, the circuit
court filed the following order on June 9, 2014:
The Court has considered the Defendants’ Motion for Summary Judgment that
was filed after the Plaintiffs’ Fourth Amended Complaint. The Court has considered
the Response filed by Plaintiffs; and, Reply filed thereto by the Defendants, and finds
that the Motion for Summary Judgment shall be granted in its entirety. Because the
Motion for Summary Judgment is granted, the Plaintiffs’ Fourth Amended Complaint
is dismissed with prejudice.
After the circuit court subsequently denied appellants’ motion to vacate and motion to alter
or amend, this appeal followed.
Summary judgment may be granted only when there are no genuine issues of material
fact to be litigated. Greenlee v. J.B. Hunt Transp. Servs., 2009 Ark. 506, 342 S.W.3d 274.
Once the moving party has established a prima facie entitlement to summary judgment, the
opposing party must meet proof with proof and demonstrate the existence of a material issue
of fact. Id. On appellate review, this court determines if summary judgment was appropriate
based on whether the evidentiary items presented by the moving party in support of the
motion leave a material fact unanswered. Id. We view the evidence in the light most
favorable to the party against whom the motion was filed, resolving all doubts and inferences
against the moving party. Id. Our review focuses not only on the pleadings, but also on the
affidavits and other documents filed by the parties. Id.
In appellants’ first point on appeal, they argue that the circuit court erred when it failed
5
Cite as 2016 Ark. App. 275
to provide a basis for its decision as required. Specifically, they argue that the circuit court
was required to make specific findings in its order granting summary judgment, citing Brodie
v. City of Jonesboro and Johnson v. Windstream Communications, Inc., as authority. See Brodie v.
City of Jonesboro, 2012 Ark. 5; Johnson v. Windstream Commc’ns, Inc., 2012 Ark. App. 590
(Johnson I).
Appellees correctly note that as a general rule, circuit courts are not required to make
specific findings when granting motions for summary judgment. See Hardin v. Bishop, 2013
Ark. 395, 430 S.W.3d 49; Ark. R. Civ. P. 52(a) (2015). However, our supreme court has
established a pertinent exception to this general rule in cases involving ACRA claims. See
Brodie, supra. Therefore, although the circuit court did not err in not making specific findings
in granting summary judgment regarding all claims alleged by appellants, we find that the
circuit court did err in part by failing to make specific findings as our supreme court has now
required under Brodie.
Appellants alleged in their fourth amended complaint employment-related retaliation
claims pursuant to Arkansas Code Annotated section 16-123-108 (Supp. 2011) of ACRA.3
This court has applied the three-stage, burden-shifting standard set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) in analyzing these types of claims. Eusanio v. Tippin,
2013 Ark. App. 38, 425 S.W.3d 838. As our supreme court explained in Brodie, 2012 Ark.
5, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id.
3
Although appellants had also alleged in their fourth amended complaint claims
pursuant to Arkansas Code Annotated section 16-123-106 (Supp. 2011) of ACRA, appellants
expressly abandoned these claims in their reply brief.
6
Cite as 2016 Ark. App. 275
Once a prima facie case is established, a rebuttable presumption shifts the burden to the
defendant to articulate a legitimate, nondiscriminatory reason for his or her action. Eusanio,
supra. If the defendant articulates such a reason, the presumption disappears, and the plaintiff
bears the burden of proving that the defendant’s proffered reason is merely a pretext for
discrimination. Brodie, supra.
Our supreme court has additionally made it clear that, even in summary-judgment
cases, the circuit court must evaluate these types of claims using the McDonnell Douglas
framework and that it must explain its findings. See Brodie, supra. As in Brodie and Johnson I,
we cannot conclude that the circuit court properly evaluated this case under McDonnell
Douglas. There is no mention in the circuit court’s order about a prima facie case of
discrimination, a legitimate, nondiscriminatory reason for appellees’ actions, or pretext for
discrimination. See Brodie, supra; Alexander v. E. Tank Servs., Inc., 2016 Ark. App. 185, ___
S.W.3d ___; Johnson I, supra; Johnson v. Windstream Commc’ns, Inc., 2014 Ark. App. 99
(Johnson II). Accordingly, we must reverse and remand this case in part to the circuit court
to explain its ruling on each remaining ACRA claim. Johnson I, supra. As we further
explained in Johnson II, the circuit court must use the McDonnell Douglas framework in
reviewing appellees’ motion for summary judgment regarding appellants’ remaining ACRA
claims and include its analysis in its summary-judgment order. Implicit in these directions is
the possibility that the circuit court might determine after its analysis that the claims are not
appropriate for summary judgment. See Johnson II, supra.
In appellants’ second point on appeal, they argue that the circuit court erred by
7
Cite as 2016 Ark. App. 275
applying federal summary-judgment standards. This argument is without merit. As appellants
indicated in their first point on appeal, the circuit court made no specific findings in its order
granting summary judgment, and there is no indication in the record that the circuit court
applied improper summary-judgment standards.
In appellants’ third point on appeal, they argue that the circuit court erred in dismissing
the claims alleged under the Arkansas Whistle-Blower Act (AWBA), Arkansas Code
Annotated sections 21-1-601 to -609 (Repl. 2004 & Supp. 2013). Under the AWBA, a
public employee who reports violations of law or waste of public funds to the appropriate
authorities is afforded protection under the Act. See Ark. Code Ann. § 21-1-602(8). A public
employer is prohibited from taking adverse action against a public employee for a
communication that falls within the protection of this subchapter. See Ark. Code Ann. § 21-
1-603(a)(1). Pursuant to section 21-1-602(1), an “adverse action” means to discharge,
threaten, or otherwise discriminate or retaliate against a public employee in any manner that
affects the employee’s employment, including compensation. A whistle-blower who is
punished by a public employer may seek actual damages and injunctive relief. See Ark. Code
Ann. § 21-1-604(a). However, “[a] public employer shall have an affirmative defense to a
civil action brought by a public employee under this subchapter if the adverse action taken
against a public employee was due to employee misconduct [or] poor job performance . . .
unrelated to a communication made pursuant to § 21-1-603.” See Ark. Code Ann. § 21-1-
604(e)(1). In order for appellants to prevail on their claims under the AWBA, they were
required to establish, by a preponderance of the evidence, that they suffered an adverse action
8
Cite as 2016 Ark. App. 275
because they engaged or intended to engage in an activity protected under the AWBA and
that such action was unrelated to their own misconduct or poor job performance. Barrows v.
City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117; Hollis v. Fayetteville Sch. Dist. No. 1 of
Washington Cty., 2015 Ark. App. 544, 473 S.W.3d 45. The burden was on appellees to
establish their affirmative defense of employee misconduct unrelated to the communications
by a preponderance of the evidence. Ark. Code Ann. § 21-1-604(e)(2).
On appeal, appellants allege that the circuit court erred in dismissing Fennell’s and
Burnley’s whistle-blower claims because
Burnley and Fennell have both given sworn testimony that their working hours were
cut, reducing their pay. In Burnley’s case, he was not paid for time worked, and
overtime worked. Fennell was denied a promotion, and therefore more pay. Finally,
Fennell was suspended and then fired. . . . Burnley and Fennell were also subjected to
a hostile work environment, including threats to their compensation, jobs, and person,
closer supervision, being yelled at regularly, being segregated from other employees,
and battered in Burnley’s case.
However, appellants’ arguments are without merit. Fennell failed to provide any proof that
the alleged adverse actions were the result of her reporting Reynolds. In fact, she was unable
to recall when she even made the alleged report. Arguably, she would have had to have made
the report sometime prior to 2011, when she instituted this lawsuit, but her suspension and
termination did not occur until 2013. Additionally, she did not even allege that she had
applied for Blackwell’s position and was denied the promotion. Instead, she alleged that
Brown had told her that he would promote her if he was promoted. However, it is
undisputed that Brown resigned from his position. Furthermore, Fennell failed to submit any
proof that she was entitled to receive overtime hours. Finally, appellees submitted evidence
9
Cite as 2016 Ark. App. 275
that Fennell was suspended and terminated as a result of insubordination and budget cuts,
respectively. For all of these reasons, the circuit court did not err in dismissing Fennell’s
whistle-blower claims.
For similar reasons, the circuit court did not err in dismissing Burnley’s whistle-blower
claims. Although Burnley testified that he reported Reynolds’s theft in 2008, he further
testified that his problems at work started in 2007. Therefore, Burnley failed to provide any
proof that the alleged adverse actions were the result of the report. Consequently, there were
no genuine issues of material fact left unresolved, and appellees were entitled to summary
judgment as a matter of law. Accordingly, we affirm on this point on appeal.
In appellants’ fourth point on appeal, they argue that the circuit court erred in
dismissing appellants’ employment-related retaliation claims pursuant to Arkansas Code
Annotated section 16-123-108 of ACRA. Because we are required to reverse and remand
for further findings as we explained in addressing appellants’ first point on appeal, it is
premature for this court to address the merits of appellants’ arguments regarding their
employment-related retaliation claims at this time.
In appellants’ fifth point on appeal, they argue that the circuit court erred in dismissing
appellants’ overtime claims filed pursuant to the AMWA based on the fact that they were
barred by the statute of limitations. However, when a circuit court bases its decision on more
than one independent ground and the appellant challenges fewer than all those grounds on
appeal, we will affirm without addressing any of the grounds. Evangelical Lutheran Good
Samaritan Soc’y v. Kolesar, 2014 Ark. 279; Patel v. Patel, 2015 Ark. App. 726, 479 S.W.3d 580.
10
Cite as 2016 Ark. App. 275
Here, the circuit court granted the motion for summary judgment in its entirety, and appellees
specifically argued in their motion for summary judgment that appellants’ AMWA claims
should be dismissed because the City’s payroll records indicated that appellants were
compensated for all the time they worked. Therefore, because appellants failed to challenge
this ground on appeal and only argue that the circuit court erred in granting summary
judgment based on an independent ground regarding statute of limitations, we must
summarily affirm without addressing the merits.
In appellants’ final point on appeal, they argue that the circuit court erred in dismissing
Burnley’s battery claim. In their initial brief, appellants’ discussion of this point consists of
only four sentences, not including the heading, and a reference to Arkansas Model Jury
Instruction 417 without any further explanation or citation to authority. Appellants failed to
address the specific arguments that were made by appellees to the circuit court and in their
motion for summary judgment. Appellees had contended that any battery claim was not
factually supported as required by Costner v. Adams, 82 Ark. App. 148, 121 S.W.3d 164
(2003).
We have repeatedly held that we will not consider an argument if the appellant does
not make a convincing argument or cite authority to support it. Orintas v. Point Lookout Prop.
Owners Ass’n Bd. of Dirs., 2015 Ark. App. 648, 476 S.W.3d 174. It is not the duty of this
court to research or develop arguments for an appellant on appeal, and the failure to develop
a point legally or factually is reason enough to affirm the circuit court. Id. Furthermore,
although appellants have developed and referenced the arguments raised before the circuit
11
Cite as 2016 Ark. App. 275
court in their reply brief, an argument made for the first time on reply comes too late. Id.
Unless an appellant files an initial brief with all its arguments for reversal, an appellee has no
opportunity to respond to those arguments in writing, and it is well established that we will
not consider an argument made for the first time in a reply brief. Id. As such, we summarily
affirm this point on appeal.
Affirmed in part; reversed and remanded in part.
HARRISON and VAUGHT, JJ., agree.
Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellant.
Sara Teague, for appellee.
12