Entmeier v. City of Fort Smith , 2016 Ark. App. LEXIS 548 ( 2016 )


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  •                                 Cite as 
    2016 Ark. App. 517
    ARKANSAS COURT OF APPEALS
    DIVISION II
    No. CV-16-93
    ADDISEN ENTMEIER                                Opinion Delivered: November 2, 2016
    APPELLANT
    APPEAL FROM THE SEBASTIAN
    V.                                              COUNTY CIRCUIT COURT, FORT
    SMITH DISTRICT
    [NO. 66FCV-13-1196-I]
    CITY OF FORT SMITH, ARKANSAS,
    ET AL.                                          HONORABLE STEPHEN TABOR,
    APPELLEES                 JUDGE
    AFFIRMED
    RITA W. GRUBER, Judge
    Appellant, Addisen Entmeier, brings this appeal from an order of the Sebastian County
    Circuit Court granting appellees’ motion for summary judgment in this case, which was
    brought under the Arkansas Whistle-Blower Act (the Act). Appellees are the City of Fort
    Smith; Kevin D. Lindsey (chief of the Fort Smith Police Department); and Alan Haney,
    Brandon Bird, Chris Harris, Dewey Young, Gerald Schaefer, and Chris Boyd, Sr. (all officers
    of the Fort Smith Police Department). The court found that Entmeier failed to meet proof
    with proof—relying instead on “innuendo and supposition” to support his whistle-blower
    claim—in the face of appellees’ evidence that Entmeier was fired for poor job performance
    and not because he was a whistle-blower. On appeal, Entmeier contends that the circuit court
    erred in failing to grant additional time to complete discovery before ruling on the motion
    for summary judgment and that the court misapplied the burdens, standards, and analysis
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    2016 Ark. App. 517
    required to grant a motion for summary judgment. We find no error, and we affirm the
    circuit court’s order.
    Entmeier began working for the Fort Smith Police Department (the Department) in
    November 2010 as a civilian employee in a “non-uniformed” position. He worked in the
    Communications Unit, also known as Dispatch or 911, until March 2011. At that point, one
    of his supervisors, Sergeant Waymon Parker, told Entmeier that he was behind in his training
    and had a limited time frame to improve or that he could transfer to the Meter Enforcement
    Unit. Entmeier testified1 that he had a “gut feeling” that he was being offered a transfer
    because he had “made someone mad.” Entmeier transferred to the Meter Enforcement Unit
    in April 2011, where he remained until July 2012.
    The events surrounding Entmeier’s claimed status as a whistle-blower occurred in 2011
    during an investigation of the Communications Unit conducted by Sergeant Dawn
    Sprayberry with the Professional Standards Unit. The purpose of the investigation was to
    examine the reasons for the unit’s high turnover and general personnel problems. At the time
    of the investigation, Entmeier had already transferred into the Meter Enforcement Unit, but
    he was interviewed on May 26, 2011, regarding his experience working in Dispatch.
    Entmeier worked under Emily Haney while in Dispatch. Ms. Haney is married to Captain
    Alan Haney, one of the appellees herein. On March 6, 2012, Captain Haney improperly
    1
    No depositions were taken in this case; however, depositions were taken in another
    whistle-blower case against the City of Fort Smith that was proceeding at the same time. See
    Bales v. City of Fort Smith, 
    2016 Ark. App. 491
    , ___ S.W.3d ___. Some of the issues and
    evidence in that case dovetail with this case.
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    accessed Sergeant Sprayberry’s investigatory files without authorization, which included
    Entmeier’s interview statement.
    In June 2012, Entmeier applied to become an officer with the Department. Entmeier
    had suffered a panic attack at work in February 2012 while in the Meter Enforcement Unit,
    and he failed to include this information on the medical form in his application. During a
    polygraph examination, the discrepancy was discovered, and a review board conducted an
    investigation regarding whether his failure to disclose the attack prevented him from being
    accepted into probationary-officer training. Captain Haney was on the review board, which
    found no wrongdoing and accepted Entmeier as a probationary officer. Entmeier’s year-long
    probationary training began in July 2012.
    After the initial training, Entmeier began his “field training” in November 2012,
    which continued until March 2013, when he was assigned to a troop and permitted to work
    on his own. He was initially assigned to Troop 1, but before he began, he voluntarily agreed
    to transfer into Troop 3 in order to help another officer who wanted to switch for personal
    reasons. Captain Haney was the commander of Troop 3. From March through June,
    Entmeier’s supervisory officers in Troop 3, appellees herein, reported numerous problems
    with his job performance. Entmeier was terminated on July 5, 2013, less than two weeks
    before his probationary training period was scheduled to end.
    On December 26, 2013, Entmeier filed a complaint under the Arkansas Whistle-
    Blower Act, alleging that he had been fired from Captain Haney’s Troop 3 in retaliation for
    accusing Ms. Haney of abuse of overtime in his interview during the 2011 investigation of
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    the Communications Unit. No discovery was conducted, and on June 3, 2015, appellees filed
    a motion for summary judgment contending that Entmeier could not show facts beyond mere
    speculation and conjecture to support the claim that he had been fired because he had engaged
    in whistle-blowing activity. They contended that, even if Entemeier could prove that he was
    a whistle-blower, he had been terminated for poor job performance, not for any alleged
    whistle-blowing activity. Entmeier responded that the motion was premature and prevented
    him from engaging in discovery. He also argued that the motion was based on self-serving
    affidavits that were false or intentionally misleading and that the motion ignored genuine
    issues of material fact. The circuit court granted appellees’ motion, finding that Entmeier had
    failed to sufficiently meet proof with proof and that there were no genuine issues of material
    fact.
    I. Discovery
    For his first point on appeal, Entmeier argues that the circuit court erred in failing to
    grant him additional time to complete discovery before ruling on appellees’ motion. The
    circuit court rejected Entmeier’s argument, stating that the motion for summary judgment had
    been filed almost eighteen months after Entmeier had initiated the lawsuit and that no
    discovery efforts had been conducted during that time. The court recognized that Entmeier
    did not file discovery until a month after the motion for summary judgment had been filed.
    The court also noted that defense counsel had stated at the hearing that appellees had
    assembled and made available to Entmeier thousands of pages of discovery documents, which,
    as of the date of the hearing in September 2015, had not been reviewed by anyone on
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    Entmeier’s behalf. The court found that the motion was not premature.
    A trial court has wide discretion in matters pertaining to discovery, and we will not
    reverse its decision absent an abuse of that discretion. Lancaster v. Red Robin Int’l, Inc., 
    2011 Ark. App. 706
    , at 11, 
    386 S.W.3d 662
    , 670. In support of his argument that the motion was
    premature, Entmeier cites our supreme court’s decision in First National Bank v. Newport
    Hospital & Clinic, Inc., 
    281 Ark. 332
    , 
    663 S.W.2d 742
    (1984). In that case, the court reversed
    the trial court’s summary judgment, holding that the motion should not have been granted
    until discovery that was “clearly pertinent” to the issues in the case had been completed. 
    Id. at 335,
    663 S.W.2d at 743. There, the defendants in a medical-malpractice case filed motions
    for summary judgment after the plaintiff had requested production of certain “pertinent”
    medical records. 
    Id. The supreme
    court specifically noted that there had been “no suggestion
    of a lack of diligence by the plaintiff in discovery efforts.” 
    Id. Here, in
    contrast, no discovery
    was conducted for eighteen months, and none was propounded until after appellees’ motion
    for summary judgment had been filed. Finally, Entmeier did not review the documents that
    had been provided to him before the summary judgment hearing. On this record, we hold
    that the circuit court did not abuse its discretion in refusing to withhold its ruling on the
    motion to allow Entmeier to conduct additional discovery.
    II. Summary Judgment
    Before we turn to the circuit court’s ruling, we set forth the relevant provisions of the
    Arkansas Whistle-Blower Act, found in Arkansas Code Annotated sections 21-1-601 et seq.
    (Repl. 2004 & Supp. 2015). Pursuant to the Act,
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    (a)(1) A public employer shall not take adverse action against a public employee because
    the public employee or a person authorized to act on behalf of the public employee
    communicates in good faith to an appropriate authority:
    (A) The existence of waste of public funds, property, or manpower, including federal
    funds, property, or manpower administered or controlled by a public employer; 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 the state.
    Ark. Code Ann. § 21-1-603 (emphasis added).
    To prevail in an action brought under this Act, the public employee must show that
    he has suffered an adverse action because he engaged or intended to engage in an activity
    protected under the Act. Ark. Code Ann. § 21-1-604(c). The Act also provides that a public
    employer has an affirmative defense to a whistle-blower lawsuit if the adverse action taken
    against the employee “was due to employee misconduct, poor job performance, or a
    reduction in workforce unrelated to a communication made pursuant to § 21-1-603.”
    Ark. Code Ann. § 21-1-604(e)(1).
    Summary judgment is to be granted by a circuit court only when it is clear that there
    are no genuine issues of material fact to be litigated and the party is entitled to judgment as
    a matter of law. Gallas v. Alexander, 
    371 Ark. 106
    , 114, 
    263 S.W.3d 494
    , 501 (2007). 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. Bingham v. C & L Elec. Coop., 
    2015 Ark. App. 237
    , at 4, 
    459 S.W.3d 831
    , 833. On
    appellate review, we determine 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
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    unanswered. Town of Gilbert v. Fruehauf, 
    2013 Ark. App. 17
    , at 2, 
    425 S.W.3d 816
    , 817.
    Finally, when evaluating evidence in a motion for summary judgment, we must resolve all
    doubts and inferences against the moving party. Quarles v. Courtyard Gardens Health & Rehab.,
    LLC, 
    2016 Ark. 112
    , at 8, 
    488 S.W.3d 513
    , 519.
    Entmeier argues that the circuit court improperly shifted the burden of proof to him
    and failed to resolve all doubts and inferences against appellees. We disagree. Entmeier alleged
    that he was terminated for communicating in good faith to the Office of Professional
    Standards regarding the waste of public funds. Specifically, he alleges in his complaint that the
    information he provided in his interview regarding overtime waste by Emily Haney was
    improperly discovered by Captain Haney and that, because of this, he was terminated while
    under Captain Haney’s supervision in Troop 3. To support his whistle-blower status,
    Entmeier points to the following statement from his 29-page interview:
    Personally, I think that they get so much overtime in there, and then, you know—say
    I work in there, and I’m a dispatcher. We’re shorthanded, get all this overtime, you’re
    supposed to be making $30,000 a year. You’re making $80,000 a year because you’re
    getting all this overtime. Hey, if we all get together and we scare off all these people
    or, you know, we try to fail them any way we can, then we’ll keep ’em from filling
    these slots up to where we don’t lose pay.
    In response, appellees alleged in their motion that Entmeier was not fired because he
    was a whistle-blower but because of poor job performance. Their motion for summary
    judgment refuting Entmeier’s allegations that they violated the Act included depositions taken
    in a separate whistle-blower case that concerned many of the same underlying facts. See 
    Bales, supra
    . Appellees also attached the affidavits of the parties and several other witnesses with
    knowledge about Entmeier and his employment with the Department. These documents
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    contained abundant evidence supporting appellees’ affirmative defense that Entmeier was not
    terminated because he was a whistle-blower but because of his own poor job performance.
    Once the moving party makes a prima facie showing of entitlement, the opposing party may
    not rest upon mere allegations or denials, but must “meet proof with proof” and set forth
    specific facts showing that there is a genuine issue for trial. Wirth v. Reynolds Metals Co., 
    58 Ark. App. 161
    , 166, 
    947 S.W.2d 401
    , 403–04 (1997).
    Appellees presented the following evidence to support their motion. First, appellees
    presented Entmeier’s deposition testimony in which he admitted to various performance
    issues. First, he testified that when he was offered the transfer from Dispatch to the Meter
    Enforcement Unit, he was told that he would be terminated if he did not either improve in
    four weeks or transfer to the Meter Enforcement Unit. He admitted that he chose to transfer
    rather than attempt improvement. He also testified that he had suffered a panic attack at work
    while working in the Meter Enforcement Unit in February 2012. He admitted that he had
    lied in his application about the panic attack but then recognized that he had been hired as
    a probationary officer in spite of this. Captain Haney was on the review board that
    investigated this issue and approved of Entmeier’s hiring in July 2012. This occurred more
    than a year after Entmeier’s alleged whistle-blowing activity and several months after Captain
    Haney had improperly obtained access to the file.
    Entmeier also testified that when he began field training for probationary officers in
    November 2012, he worked with Jason Thompson and Daniel Honeycutt. He said that
    Honeycutt had pointed out various areas in which Entmeier was having problems, including
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    geographical awareness—that is, taking the shortest route to a call—and being able to identify
    specific laws. Entmeier remembered an incident in which Thompson had counseled him
    about issuing the wrong citation and several incidents when Thompson had counseled him
    regarding officer safety. He also recalled having been counseled for failing to turn on his police
    cruiser camera and failing to turn on his uniform mic so that his conversations were recorded.
    Entmeier began working in Troop 3 under Captain Haney in March 2013. He testified
    regarding several arrests in May that Officers Bird and Young told him were handled
    improperly. They suggested that he become more familiar with the loitering statute. On
    another arrest, Entmeier had overlooked some drug paraphernalia on the subject when he
    patted him down, which was later discovered on the subject at the jail. Entmeier testified
    regarding numerous counseling sessions, including the “bad arrest” of a man in the curtilage
    of his business, during which Captain Haney told Entmeier to study the laws of disorderly
    conduct, public intoxication, loitering, and obstructing governmental operations. Regarding
    a subsequent counseling session on June 5, Entmeier testified that his supervisors informed
    him that he was “doing poorly,” that he needed more assistance than his peers, and that he
    was calling the sergeants too much for direction. They asked him whether he had been
    studying the laws. Captain Haney told Entmeier that he was on a “short leash” and had only
    five weeks to improve performance before the end of the probationary period or he would
    face termination.
    He testified that he was counseled again by Officers Bird and Young concerning the
    unlawful arrest of a drunk female who was passed out on a couch. He removed her from the
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    home and then arrested her for public intoxication. Officers Bird and Young told Entmeier
    that the arrest was unlawful and directed him to call the prosecutor to have the charge nolle
    prossed. Entmeier testified that he thought he was being treated unfairly because they “kept
    conferencing with me,” but he admitted that the counseling sessions were about “legitimate
    things”—“learning the laws and becoming more familiar with the Department’s policies.”
    Each affidavit attached to appellees’ motion also detailed a variety of problems with
    Entmeier’s job performance while he was under appellees’ supervision in Troop 3. Appellee
    Sergeant Brandon Bird detailed issues with Entmeier occurring from March through June
    2013. Most of these concerned Entmeier’s lack of knowledge regarding the criminal laws and
    procedure, his inability to “rationalize his way though complex problems,” and his
    unwillingness or confusion in taking direction from senior officers.
    Appellee Chris Boyd, Sr., a major in charge of the Patrol Division, stated in his
    affidavit that he was aware of concerns from several supervisors about Entmeier’s performance.
    He stated that Entmeier was having difficulties making proper decisions during encounters
    with the general public and with suspects, was having continual shortcomings regarding
    knowledge and application of the law, and was making mistakes that someone with his level
    of training and experience should not have been making.
    Captain Haney emphasized in his affidavit and notes that Entmeier was not sufficiently
    familiar with the criminal code and the common charges a patrol officer uses on a daily basis.
    In spite of Captain Haney’s continual pleas to Entmeier to study the laws and learn the points
    for each arrest, Entmeier had not made any improvements. Sergeant Chris Harris, who
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    conducted a “ride along” to evaluate Entmeier from June 27–30, 2013, stated that Entmeier
    was unable to take the most direct routes to call locations, did not appear able to thoroughly
    investigate a complex case or see multiple ways to handle a situation, and seemed confused
    and unsure about how to handle the pursuit of a suspect. Sergeant Harris expressed
    reservations that remedial training would be successful given Entmeier’s failure to embrace
    past efforts to train him from his chain of command.
    Finally, Chief Kevin Lindsey, the chief of police for the City of Fort Smith, stated that
    his decision to terminate Entmeier was based on information he received from Entmeier’s
    chain of command. The decision was not based on any single factor but on the totality of the
    information. He stated that when he was approached by Sergeant Rick Entmeier, Entmeier’s
    father, and another officer, Sergeant Don Paul Bales, regarding Entmeier’s having been
    terminated based on “false information,” he instructed the Office of Professional Standards to
    investigate the claim. He reviewed the investigation file and determined that there were no
    facts on which to base a conclusion that Entmeier had been terminated for any reason other
    than his inadequate job performance as a probationary training officer.
    Captain Jarrard Copeland—who, as the head of the Office of Professional Standards,
    investigated Entmeier’s termination—collected notes from Officers Thompson and
    Honeycutt, who had conducted Entmeier’s field training from November 2012 through
    March 2013 before he began working in Troop 3. The officers’ comments from the training
    included numerous concerns regarding Entmeier’s lack of geographical awareness, his failure
    to understand the law, and his failure to issue the proper citation. The following are only a
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    few examples of these comments, which continued through March.
    Honeycutt: 11-26-12—“Still having trouble locating addresses. He needs to improve
    his geographical awareness.” 12-19-12—“Needs to continue to improve his
    geographical awareness.” 2-4-13—“I explained to Addisen that he should not be
    making these mistakes at this point in his training.” 2-10-13—“He did not take the
    most immediate route which caused a delay in our response times.” 2-11-13—“He did
    have some problems identifying the specific law that was broken. I instructed him to
    study the most common laws we deal with and familiarize himself with them.”
    Thompson: 1-1-13—“I still had to assist him in taking the shortest route to calls.”
    2-13-13—“He issued the wrong citation on an accident . . ..” 2-24-13—“He did not
    know how to handle a child custody case. He called another officer for assistance.”
    In response to appellees’ motion and documentation, Entmeier provided the affidavit
    of Officer Wendall Sampson; the affidavit of his father, Sergeant Entmeier; and the affidavit
    of Sergeant Don Bales, all from the case of Bales v. City of Fort Smith, 
    2016 Ark. App. 491
    ,
    ___ S.W.3d ___. None of these officers had worked with Entmeier during his probationary
    training period and none had any first-hand knowledge of his job performance. Sergeant
    Entmeier stated that he had been told that his son was “messing up left and right.” He also
    said that Captain Ed Smalley had informed him that he was not aware of any issues with his
    son’s training. Captain Smalley was the Police Training Coordinator, but there is no evidence
    that he ever worked with Entmeier directly, and Captain Smalley did not provide an affidavit.
    Sergeant Bales stated in his affidavit that Entmeier had told him that he had been passed
    by both of his training officers, Honeycutt and Thompson, but that he had been informed by
    Sergeant Bird, Sergeant Young, and Captain Haney that his performance was not up to
    standards and that he would be fired if he did not make immediate improvements. Sergeant
    Bales stated that, based on his knowledge of the probationary officer training, if Entmeier’s
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    allegations were true, the program was not being followed properly. Sergeant Bales, however,
    testified in his deposition that he had never personally worked with Entmeier, evaluated him,
    or overseen him in any way concerning his job performance. Neither Sergeant Bales’s
    deposition nor his affidavit explained the specific rules of the training program that he alleged
    had been violated. Further, none of Entmeier’s documents provide any evidence other than
    speculation that he was terminated for statements he had made in his interview and not for
    the many performance problems he had experienced during his entire probationary-officer
    training. Entmeier did not provide any depositions or affidavits from an officer who had
    directly supervised him during his probationary training year, or any other individual with
    direct knowledge of his job performance, to refute appellees’ extensive evidence on this issue.
    The circuit court found that Entmeier had failed to meet proof with proof. The court
    found the statements of Entmeier’s father to be mere hearsay, uncorroborated by those who
    allegedly had made the statements. The court also noted that Entmeier himself testified to
    many of the performance issues and that he had been silent regarding these performance issues
    in his response to appellees’ evidence. Again, the court found that Entmeier had failed to meet
    proof with proof and had relied on innuendo and supposition to support his claims.
    The circuit court determined as a matter of law that appellees had an affirmative
    defense to Entmeier’s claim and that his termination was due to poor job performance.
    Entmeier has failed to demonstrate the existence of a genuine issue of material fact that he was
    not terminated for poor job performance. Accordingly, we affirm the circuit court’s order
    granting summary judgment.
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    Affirmed.
    KINARD and VAUGHT, JJ., agree.
    Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.
    Daily & Woods, P.L.L.C., by: Douglas M. Carson, Wyman R. Wade, Jr., and Colby T.
    Roe, for appellees.
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Document Info

Docket Number: CV-16-93

Citation Numbers: 2016 Ark. App. 517, 506 S.W.3d 253, 2016 Ark. App. LEXIS 548

Judges: Rita W. Gruber

Filed Date: 11/2/2016

Precedential Status: Precedential

Modified Date: 10/19/2024