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Fennell v. City of Pine Bluff

Court of Appeals of Arkansas, Division I

May 18, 2016

RENITA JOHNSON FENNELL and EARL EDWARD BURNLEY APPELLANTS
v.
CITY OF PINE BLUFF, ET AL. APPELLEES

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. CV 2011-438-2] HONORABLE ROBERT H. WYATT, JR., JUDGE

          Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellant.

          Sara Teague, for appellee.

          CLIFF HOOFMAN, Judge

         Appellants 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 part.

         Fennell 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, [1] 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.[2]

         Several 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.

         In 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.

         Burnley 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.

         Reynolds 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.

         A 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."

         After a 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.

         After the circuit court subsequently denied appellants' motion to vacate and motion to alter or amend, this appeal followed.

         Summary 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, ...


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