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October 20, 2005.

MICHAEL D. VOSS, Plaintiff,

The opinion of the court was delivered by: GEORGE HOWARD Jr., District Judge


Plaintiff filed this action alleging that defendant discriminated against plaintiff in violation of Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq, and the Arkansas Civil Rights Act ("ACRA"), Ark. Code Ann. § 16-123-101 et seq. when he was terminated from employment on March 22, 2003. Plaintiff also brings a common law action for wrongful discharge. Plaintiff alleges that defendant terminated him in retaliation for having reported incidents of sexual harassment and unethical business practices. Defendant has filed a motion for summary judgment.

Defendant is in the business of sales and service of residential and commercial heating and air conditioning equipment in the central Arkansas area. In 1979, plaintiff formed a company called Voss Central Air, Inc. ("VCA"). He owned and operated that company through 1998, when plaintiff sold certain assets and liabilities of VCA to defendant. In conjunction with the sale, plaintiff became employed by defendant as a residential sales representative and was paid on a commission basis. At the time plaintiff reported to Charles Detherage, who was the residential manager.

  Sometime in 1999 or 2000, plaintiff's job duties changed and he moved to commercial replacement sales, still being paid on a commission basis. Detherage continued to be his supervisor. In early 2000, Detherage became the general manager of defendant's North Little Rock Center. In January, 2001, plaintiff was made manager of the commercial replacement sales department effective January 1, 2001, with an annual salary of about $83,000.00. His duties were also expanded to manage the residential construction department. Around December 2001, plaintiff' took over management of the commercial service department, with the foreman of the residential construction department assuming plaintiff's duties in residential construction.

  According to defendant, through 2001, 2002, and early 2003, defendant's profits were decreasing and that in June 2002, Detherage and District Manager Bob Struve developed a plan intended to increase defendant's profitability. The plan included the release of four salaried employees; restructuring of sales department management; increasing sales margins; phasing out the plumbing department; and restructuring methods to acquire new business opportunities.

  Plaintiff disputes defendant's assertions, stating that the allegations concerning profitability pertain to defendant's entire Arkansas operations. According to plaintiff, the profits of the North Little Rock Center, where plaintiff worked, did not drop as much as other areas.

  Around June 2002, Detherage decided to remove plaintiff from a management position and return him to sales. When plaintiff returned to sales, his direct supervisor was Jim Monk. Defendant contends that the move to sales was necessitated by the need to improve profitability; plaintiff counters that the move was in retaliation for his having made complaints about sexual harassment and unethical business practices.

  Plaintiff states that an individual named Lane Lovett ("Lovett") became manager of residential sales sometime in 2000. According to plaintiff, Lovett made sexually derogatory and inappropriate comments about female employees. Plaintiff states that from 2000 onward he made numerous complaints to Detherage about Lovett's behavior but that nothing was done.

  At the time Detherage moved plaintiff to sales, Detherage told plaintiff that at some future time his salary would be discontinued and he would need to go on commission. Plaintiff states that Detherage did not specify when this change would occur and that plaintiff believed that once on commission he would be provided with a true source of leads to generate his commission. Plaintiff contends that rather than being provided leads, leads were withheld or diverted from plaintiff in retaliation for plaintiff's complaints of sexual harassment by Lovett.

  Around December 26, 2002, plaintiff telephoned defendant's corporate office "hotline" to complain about the hostile work environment and unethical business practices. He met with Debra Rose, defendant's Human Resources Manager, in Memphis, Tennessee on January 16, 2003. ln addition to the complaints of sexual harassment by Lovett and unethical business practices, plaintiff contends that he complained of defendant's retaliatory actions against him for reporting the problems.

  According to plaintiff, on January 22, 2003, Monk informed plaintiff that his salary would be ended and that he would be on a 100% commission. Plaintiff asserts that Monk was acting pursuant to Detherage's instruction, and that the date this would become effective was not specified.

  In January 2003, Bill Dziurawiec assumed the position of District Manager over defendant's district that included the North Little Rock Center. Dziurawiec was assigned the task of improving the North Little Rock Center's profitability. Defendant asserts that as part of this task, Dziurawiec and Detherage met with plaintiff on March 22, 2003, to discuss changes in plaintiff's compensation. Specifically, Dziurawiec informed plaintiff that his compensation would be switched to straight commission and that his $83,000.00 salary would cease. Plaintiff would not agree to the commission only compensation proposal and he was terminated.

  Defendant contends that it is entitled to summary judgment because plaintiff can offer no material facts in dispute to establish that his termination was in retaliation for any action he had taken.

  Retaliation claims under Title VII and the ACRA are analyzed the same. See Davis v. KARK-TV, Inc., 421 F.3d 699, 703-04 (8th Cir. 2005), Island v. Buena Vista Resort, 352 Ark. 548, 557 (2003) To establish a prima facie case of retaliation, plaintiff must show that he was engaged in a statutorily protected activity, that defendant took an adverse employment action against him, and that there was a causal link between the two actions. Wallace v. Sparks Health Sys., 415 F. 3d 853, 858 (8th Cir. 2005). Once plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory ...

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