DON PAUL BALES et al. APPELLANTS
THE CITY OF FORT SMITH, ARKANSAS, et al. APPELLEES
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. CV-14-23(VI)] HONORABLE JAMES O. COX, JUDGE
Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for
& Woods, P.L.L.C., by: Douglas M. Carson, Wyman R. Wade,
Jr., and Colby T. Roe, for appellees.
SUBSTITUTED OPINION ON GRANT OF REHEARING
D. VAUGHT, JUDGE.
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.
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 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).
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.
not a party, Addisen Entmeier (Addisen) was a catalyst for
this litigation.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 practice to Sergeant
Dawn Sprayberry. Emily Haney, an employee engaged in this
practice, is married to Captain Alan Haney who was
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.
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.
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 him as a whistleblower under the
AWBA. With this in mind, we direct our attention to the
alleged retaliatory acts against appellants.
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.
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.
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 ...