The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Gary Thompson, a former employee of the Faulkner County Sheriff's Department, brought this action against Martin Montgomery, individually and in his official capacity as Sheriff of Faulkner County. Thompson alleges that he was fired for exercising his right to free speech in violation of his rights under the First Amendment to the United States Constitution and under the Arkansas Constitution. Thompson seeks redress pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights Act of 1993 ("ACRA"), codified in Arkansas Code Annotated § 16-123-101 et seq. Montgomery has moved for summary judgment in his individual and official capacity. For the following reasons, this motion is granted in part and denied in part.
A court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1985) (quoting FED. R. CIV. P. 56(e)). The non-moving party sustains this burden by showing that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir. 2001) (citing Rabuska v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996) (citing Anderson, 477 U.S. at 248).
Thompson worked for the Faulkner County Sheriff's Department. In late 2004 or early 2005, he went to the home of a fellow employee, Scott Manning, to watch a football game. While at Manning's home, Thompson told Manning, "Somebody told me that the Sheriff had used a credit card to purchase a swimming pool at Wal-Mart. I don't know if it was a county credit card, but I wouldn't doubt it." Thompson had been told about the alleged purchase of the swimming pool about six to eight months earlier by his wife.
In October 2005, Thompson received a Notice of Termination from Montgomery. The notice stated:
[I]t has been determined that you disclosed false information about myself and another employee making personal purchases on a county credit card. As stated in the affirmative duty policy, if you believed this to be true you should have reported this to the Prosecuting Attorney. Instead, you chose to discuss this with other employees. I am truly sorry and disappointed in your conduct. Therefore, your appointment as an employee of the Faulkner County Sheriff's Department is hereby terminated.
The "affirmative duty policy" requires that all employees "shall immediately report" any personal observations of a fellow employee's conduct that is in violation of county policies or procedures and any information regarding illegal, immoral, or unethical conduct on the part of any county employee.
Thompson appealed his termination to the Faulkner County Grievance Committee, which held a hearing on the matter in November 2005. At the grievance hearing, Montgomery testified that he fired Thompson for violating the affirmative duty policy. He also testified that Thompson had lied by creating the story about Montgomery using a credit card to purchase a swimming pool.
Thompson admits that he violated the policy but denies that this was the reason for his termination. Thompson contends that this reason is pretextual and that the real reason for his termination was his statement to Manning. Thompson testified in his deposition that when Montgomery fired him, Montgomery told him that he was fired because of "what you said over the credit card." Montgomery admitted in his deposition that he fired Thompson "for lying and failing to report what would have been criminal conduct on my behalf." Thompson denies making any false statements about the matter.
Thompson further contends that around the time of the events in question a special prosecutor was investigating the misuse of county credit cards. Thompson testified that allegations regarding the misuse of county funds were the subject of newspaper articles and were a regular subject of discussion among employees of the sheriff's department. Montgomery testified that at the time of Thompson's termination there was a public dispute about spending in the sheriff's office, including allegations of misuse of county credit cards, and that it "made quite a public splash."
Thompson has produced a document entitled Report to the Faulkner County Quorum Court. This report states that the Faulkner County Sheriff's Office fund disbursements for 2003 and 2004 were scrutinized in three special investigations. The report concluded that Montgomery and certain employees of the sheriff's office used county credit cards inappropriately and otherwise made improper expenditures of county funds. One of the recommendations of the report was that Montgomery should reimburse the county $3,561.
As noted above, Thompson brings claims under both 42 U.S.C. § 1983 and the ACRA.
Because the ACRA may construed in accordance with § 1983, ARK. CODE ANN. ...