FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. CV 2011-438-2]
HONORABLE ROBERT H. WYATT, JR., JUDGE
& Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien
Gillham, for appellant.
Teague, for appellee.
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 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
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,  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.
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.
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 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.
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.
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.
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 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."
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.
the circuit court subsequently denied appellants' motion
to vacate and motion to alter or amend, this appeal followed.
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, ...