Bales v. City of Fort Smith

Cite as 2016 Ark. App. 491
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CV-15-873
Opinion Delivered October 19, 2016
APPEAL FROM THE SEBASTIAN
DON PAUL BALES et al. COUNTY CIRCUIT COURT,
APPELLANTS FORT SMITH DISTRICT
[NO. CV-14-23(VI)]
V.
HONORABLE JAMES O. COX, JUDGE
THE CITY OF FORT SMITH,
ARKANSAS, et al. SUBSTITUTED OPINION ON GRANT OF
APPELLEES REHEARING; AFFIRMED IN PART;
REVERSED AND REMANDED IN PART
LARRY D. VAUGHT, Judge
Appellants 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
Cite as 2016 Ark. App. 491
the 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. § 21-1-603(a)(1).
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. § 21-1-
604(e)(1). 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
1
Addisen’s father is appellant Rick Entmeier.
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practice 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 Entmeier 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
Later, Sampson reported that he was subjected to harassment and bullying by
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Sergeant Sprayberry.
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him 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 Addisen’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 Addisen 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
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of 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 appellees 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.
II. Entitlement to Summary Judgment
A motion for summary judgment should be granted only when, in light of the
pleadings and other documents before the circuit court, there is no genuine issue of material
fact, and the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56(c).
The burden of sustaining a motion for summary judgment is always the responsibility of the
moving party. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999). When
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reviewing whether a motion for summary judgment should have been granted, the appellate
court determines whether the evidentiary items presented by the moving party in support
of the motion left a material question of fact unanswered. Bomar v. Moser, 369 Ark. 123,
127, 251 S.W.3d 234, 239 (2007). Once the moving party has established prima facie
entitlement to summary judgment by affidavits, depositions, or other supporting documents,
the opposing party must meet proof with proof and demonstrate the existence of a material
issue of fact. Id. This court views 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.
Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). This court also evaluates whether
reasonable minds could differ in their interpretation of the facts. Thomas v. Stewart, 347 Ark.
33, 60 S.W.3d 415 (2001).
We begin our analysis by considering three of appellants’ points on appeal that arise
with respect to all of their AWBA claims and are best discussed simultaneously. These issues
are whether summary judgment was improper because (1) appellees failed to establish prima
facie entitlement to summary judgment, (2) causation is always a question of fact, and (3)
the circuit court ignored their evidence.
For each appellant’s claim, appellees presented evidence that any disciplinary action
taken was for reasons unrelated to protected whistle-blowing communication. Appellants
claim that summary judgment cannot be granted on these grounds because that is an
affirmative defense. Ark. Code Ann. § 21-1-604(e). They argue that affirmative defenses
must always be raised at trial and determined by the trier of fact. We disagree. Once the
moving party presents evidence of the affirmative defense in its motion for summary
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judgment, it is the responsibility of the nonmoving party to meet proof with proof. Bomar,
supra; see also Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117.
Additionally, appellants assert that the circuit court improperly granted summary
judgment because causation is always a question of fact. In order to establish proximate
cause, there must be evidence beyond mere allegations and conclusions. Wirth v. Reynolds
Metal Co., 58 Ark. App. 161, 947 S.W.2d 401 (1997). While causation is usually a question
for a jury to decide, it becomes a question of law only if reasonable minds could not differ.
Mergen, supra. Whether this appeal presents a situation in which proximate cause is an issue
of law will be discussed in greater detail. However, our case law contemplates instances in
which proximate cause is not a question for the fact-finder.
Finally, appellants argue in favor of reversal based on the broad premise that the
circuit court ignored their evidence. To support this argument, they direct our attention to
statements the circuit court made from the bench when granting summary judgment. We
need not evaluate the circuit court’s statements from the bench in order to address this issue.
Our standard for considering an order for summary judgment is well settled. In reviewing
an order granting summary judgment, appellate courts are charged with determining first
whether the moving party established prima facie entitlement to summary judgment and
then whether the nonmoving party met proof with proof. Bomar, supra. This is the standard
by which we will consider whether summary judgment was appropriate on each of
appellants’ AWBA claims, and the resolution of this question will necessarily dispose of the
issue of whether the circuit court properly considered all evidence before it.
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With these preliminary issues resolved, we turn our attention to the individual claims
of each appellant. To prevail on a claim, the public employee must report a violation or
waste to an appropriate authority such as a “member, officer, agent, investigator, auditor,
representative or supervisory employee of the body, agency or organization.” Ark. Code
Ann. § 21-1-602(2)(A)(i). The reporting of the violation or waste must then result in an
“adverse action” to the employee, which means to “discharge, threaten, or otherwise
discriminate or retaliate against a public employee in any matter that affects the employee’s
employment, including compensation, job location, rights, immunities, promotions, or
privileges.” Ark. Code Ann. § 21-1-602(1).
A. The Claim of Don Paul Bales
We begin our analysis by considering whether there is evidence that Bales suffered
an adverse action because of his alleged whistle-blowing communication. Our law is clear
that the party moving for summary judgment must first establish a prima facie entitlement
to summary judgment. Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d
545 (1995). Once a prima facie entitlement has been established, it is only then that the
party opposing the motion must demonstrate the existence of a genuine issue as to material
fact. Id.
Appellees have established prima facie entitlement to summary judgment. They
offered affidavits indicating that all investigations regarding Bales were the result of employee
misconduct or poor job performance and not related to his alleged whistle-blowing
communication. Accordingly, we direct our attention to whether there is evidence to
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establish a causal connection between Bales’s alleged whistle-blowing and the subsequent
adverse actions he faced.
Almost immediately after Bales’s alleged whistle-blowing communication, he
became the subject of internal investigations. Bales presents evidence that he was punished
in response to his comments and behavior regarding Addisen’s termination. He also faced
adverse actions at the FSPD arising out of his disciplinary measures against Angela McCabe
and his organization of the morale-building exercise.
Bales highlights several pieces of evidence to support the proposition that there was
a causal connection between his alleged whistle-blowing communication and the
subsequent adverse actions he faced. Bales emphasizes Chief Lindsey’s own testimony
wherein he admitted punishing Bales in spite of the fact that he thought Bales had made a
good-faith report about Addisen’s termination. Bales also indicates that another FSPD
employee received different treatment than he did after making similar good-faith allegations
that ultimately turned out to be unsubstantiated. Bales presented evidence that, in one
investigation against him, Chief Lindsey amended the investigation to include statements
made by Bales and that Chief Lindsey’s amendment was made before Bales actually made
his statements. This could lead a fact-finder to infer a malicious intent by Chief Lindsey.
Finally, Chief Lindsey held himself out to be a neutral arbiter in the investigations against
Bales, but during the investigation against Bales and Entmeier, he reviewed and amended
the investigatory questions to be asked. This conduct by Chief Lindsey could also lead to
the inference that Lindsey was not the neutral arbiter he claimed to be.
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When evaluating evidence in a motion for summary judgment, we must resolve all
doubts and inferences in the nonmoving party’s favor. Meadors, supra. With this standard in
mind, it is clear that reasonable minds could determine that there is evidence connecting
Bales’s alleged whistle-blowing communication to the adverse actions he ultimately
incurred. Accordingly, we hold that summary judgment on Bales’s whistle-blower claim
was improper, and we reverse and remand this claim for further proceedings.
B. The Claim of Rick Entmeier
We now direct our attention to whether Entmeier suffered an adverse action because
of his alleged whistle-blowing communication. When considering whether appellees
established a prima facie entitlement to summary judgment, we acknowledge that appellees
again offered reasons for Entmeier’s disciplinary measures unrelated to his alleged whistle-
blowing communication. Accordingly, we conclude that appellees established a prima facie
entitlement to summary judgment, and our question becomes whether Entmeier met proof
with proof to withstand summary judgment.
As with Bales, we determine that reasonable minds could conclude that the adverse
actions Entmeier suffered were a result of his alleged whistle-blowing communication.
Evidence shows that Chief Lindsey may not have been a neutral arbiter during the
investigatory proceedings against Entmeier. Specifically, Chief Lindsey took an active role
in the investigatory process by reviewing and amending the investigatory questions to be
asked of Entmeier and Bales. We reverse and remand Entmeier’s claim for further
proceedings.
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C. The Claim of Wendall Sampson, Jr.
Finally, we direct our attention to Sampson’s whistle-blower claim. In this instance,
we are required to evaluate whether Sampson is a whistle-blower within the meaning of
the AWBA.
Sampson’s alleged whistle-blowing communications are (1) reporting what he
believed to be the unauthorized use of overtime pay and (2) reporting bias, bullying, and
harassment by Sergeant Dawn Sprayberry. According to the AWBA, a whistle-blower is
one who either reports (1) a waste of public funds or (2) a violation of the law. A whistle-
blowing communication is defined as either a communication regarding the existence of
waste of public funds, property, or manpower or a violation or suspected violation of a law,
rule, or regulation adopted under the law of this state. Ark. Code Ann. § 21-1-603(a)(1).
Appellees contend that Sampson’s communications regarding Sergeant Sprayberry’s
alleged bullying and harassment as alleged here are not contemplated by the AWBA. We
agree. Bullying and harassment do not amount to either a waste of public funds or a violation
of the law for purposes of the AWBA.
Sampson also alleges that his communications regarding improper overtime usage
qualify him as a whistle-blower under the AWBA. Appellees dispute this, arguing that
overtime pay was always available in the department and that the alleged improper overtime
payment reported by Sampson was to fund positions that had to be staffed. Simply put, they
assert that, because no money was lost by the FSPD, there was no waste. We hold that the
appellees’ argument fails. The AWBA requires only that Sampson make a good-faith report.
Ark. Code Ann. § 21-1-603(a)(1). The evidence, viewed in the light most favorable to
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Sampson, establishes that his report on improper overtime usage was made in good faith.
Accordingly, we conclude that whether Sampson is a whistle-blower within the meaning
of the AWBA is a question of fact.
Having made that conclusion, we turn our attention to whether Sampson presented
evidence that he suffered an adverse action because of his alleged whistle-blowing
communication. The adverse action suffered by Sampson was a formal reprimand for
disciplining Angela McCabe without first documenting her work deficiencies. As with the
claims of Bales and Entmeier, appellees introduced evidence that the disciplinary measures
Sampson received were the result of employee misconduct or poor work performance and
were not retaliatory, and we hold that appellees established a prima facie entitlement to
summary judgment.
We now consider whether there is evidence to establish a causal connection between
Sampson’s alleged whistle-blowing communication and the adverse action he suffered.
Sampson failed to offer any evidence linking his formal reprimand to his alleged whistle-
blowing communication, and without any evidence of causation, Sampson failed to meet
proof with proof. Accordingly, his whistle-blower claim necessarily fails. We hold that the
circuit court properly granted summary judgment on Sampson’s AWBA claim and affirm.
III. Whether Discovery Issues Precluded Summary Judgment
As their final issue on appeal, appellants contend that the circuit court was precluded
from granting summary judgment because appellees failed to fully answer discovery. A
circuit court has wide discretion in matters pertaining to discovery, and Arkansas appellate
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courts will not reverse a circuit court’s decision absent an abuse of discretion. Lancaster v.
Red Robin Int’l, Inc., 2011 Ark. App. 706, 386 S.W.3d 662.
“Before being required to demonstrate [the required] evidence in response to a
motion for summary judgment, a plaintiff is entitled to have the benefit of adequate
discovery from the opposing parties as the nature of the case requires.” First Nat’l Bank v.
Newport Hosp. & Clinic, Inc., 281 Ark. 332, 335, 663 S.W.2d 742, 743–44 (1984). The issue
of discovery was fiercely contested before the circuit court, and the evidence indicates that
the circuit court gave appellants great latitude in conducting discovery including, but not
limited to, allowing appellants to access all available records at the FSPD. With regard to
Sampson, we hold that the circuit court did not abuse its discretion by refusing to allow
more discovery. The issue of discovery as it pertains to Bales and Entmeier is moot. With
the claims of Bales and Entmeier returning to the circuit court for further proceedings, the
circuit court is free to allow discovery on their claims as it deems appropriate.
Affirmed in part; reversed and remanded in part.
ABRAMSON, HARRISON, GRUBER, GLOVER, and HOOFMAN, JJ., agree.
Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellants.
Daily & Woods, P.L.L.C., by: Douglas M. Carson, Wyman R. Wade, Jr., and Colby
T. Roe, for appellees.
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