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Bales v. City of Fort Smith

Court of Appeals of Arkansas, Divisions II & III

October 19, 2016

DON PAUL BALES et al. APPELLANTS
v.
THE CITY OF FORT SMITH, ARKANSAS, et al. APPELLEES

         APPEAL 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 appellants.

          Daily & 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

          LARRY D. VAUGHT, JUDGE.

         Appellants 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.

         I. Background

         Because 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).

         To 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.

         Although not a party, Addisen Entmeier (Addisen) was a catalyst for this litigation.[1]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.[2] Emily Haney, an employee engaged in this practice, is married to Captain Alan Haney who was Addisen's supervisor.

         It is 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.

         Following 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.

         First, 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.

         Almost 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.

         Bales 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.

         Another 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 ...


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