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Entmeier v. City of Fort Smith

Court of Appeals of Arkansas, Division II

November 2, 2016

ADDISEN ENTMEIER APPELLANT
v.
CITY OF FORT SMITH, ARKANSAS, ET AL. APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCV-13-1196-I] HONORABLE STEPHEN TABOR, JUDGE

         AFFIRMED

          Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.

          Daily & Woods, P.L.L.C., by: Douglas M. Carson, Wyman R. Wade, Jr., and Colby T. Roe, for appellees.

          RITA W. GRUBER, Judge

         Appellant, Addisen Entmeier, brings this appeal from an order of the Sebastian County Circuit Court granting appellees' motion for summary judgment in this case, which was brought under the Arkansas Whistle-Blower Act (the Act). Appellees are the City of Fort Smith; Kevin D. Lindsey (chief of the Fort Smith Police Department); and Alan Haney, Brandon Bird, Chris Harris, Dewey Young, Gerald Schaefer, and Chris Boyd, Sr. (all officers of the Fort Smith Police Department). The court found that Entmeier failed to meet proof with proof-relying instead on "innuendo and supposition" to support his whistle-blower claim-in the face of appellees' evidence that Entmeier was fired for poor job performance and not because he was a whistle-blower. On appeal, Entmeier contends that the circuit court erred in failing to grant additional time to complete discovery before ruling on the motion for summary judgment and that the court misapplied the burdens, standards, and analysis required to grant a motion for summary judgment. We find no error, and we affirm the circuit court's order.

         Entmeier began working for the Fort Smith Police Department (the Department) in November 2010 as a civilian employee in a "non-uniformed" position. He worked in the Communications Unit, also known as Dispatch or 911, until March 2011. At that point, one of his supervisors, Sergeant Waymon Parker, told Entmeier that he was behind in his training and had a limited time frame to improve or that he could transfer to the Meter Enforcement Unit. Entmeier testified[1] that he had a "gut feeling" that he was being offered a transfer because he had "made someone mad." Entmeier transferred to the Meter Enforcement Unit in April 2011, where he remained until July 2012.

         The events surrounding Entmeier's claimed status as a whistle-blower occurred in 2011 during an investigation of the Communications Unit conducted by Sergeant Dawn Sprayberry with the Professional Standards Unit. The purpose of the investigation was to examine the reasons for the unit's high turnover and general personnel problems. At the time of the investigation, Entmeier had already transferred into the Meter Enforcement Unit, but he was interviewed on May 26, 2011, regarding his experience working in Dispatch. Entmeier worked under Emily Haney while in Dispatch. Ms. Haney is married to Captain Alan Haney, one of the appellees herein. On March 6, 2012, Captain Haney improperly accessed Sergeant Sprayberry's investigatory files without authorization, which included Entmeier's interview statement.

         In June 2012, Entmeier applied to become an officer with the Department. Entmeier had suffered a panic attack at work in February 2012 while in the Meter Enforcement Unit, and he failed to include this information on the medical form in his application. During a polygraph examination, the discrepancy was discovered, and a review board conducted an investigation regarding whether his failure to disclose the attack prevented him from being accepted into probationary-officer training. Captain Haney was on the review board, which found no wrongdoing and accepted Entmeier as a probationary officer. Entmeier's year-long probationary training began in July 2012.

         After the initial training, Entmeier began his "field training" in November 2012, which continued until March 2013, when he was assigned to a troop and permitted to work on his own. He was initially assigned to Troop 1, but before he began, he voluntarily agreed to transfer into Troop 3 in order to help another officer who wanted to switch for personal reasons. Captain Haney was the commander of Troop 3. From March through June, Entmeier's supervisory officers in Troop 3, appellees herein, reported numerous problems with his job performance. Entmeier was terminated on July 5, 2013, less than two weeks before his probationary training period was scheduled to end.

         On December 26, 2013, Entmeier filed a complaint under the Arkansas Whistle-Blower Act, alleging that he had been fired from Captain Haney's Troop 3 in retaliation for accusing Ms. Haney of abuse of overtime in his interview during the 2011 investigation of the Communications Unit. No discovery was conducted, and on June 3, 2015, appellees filed a motion for summary judgment contending that Entmeier could not show facts beyond mere speculation and conjecture to support the claim that he had been fired because he had engaged in whistle-blowing activity. They contended that, even if Entemeier could prove that he was a whistle-blower, he had been terminated for poor job performance, not for any alleged whistle-blowing activity. Entmeier responded that the motion was premature and prevented him from engaging in discovery. He also argued that the motion was based on self-serving affidavits that were false or intentionally misleading and that the motion ignored genuine issues of material fact. The circuit court granted appellees' motion, finding that Entmeier had failed to sufficiently meet proof with proof and that there were no genuine issues of material fact.

         I. Discovery

         For his first point on appeal, Entmeier argues that the circuit court erred in failing to grant him additional time to complete discovery before ruling on appellees' motion. The circuit court rejected Entmeier's argument, stating that the motion for summary judgment had been filed almost eighteen months after Entmeier had initiated the lawsuit and that no discovery efforts had been conducted during that time. The court recognized that Entmeier did not file discovery until a month after the motion for summary judgment had been filed. The court also noted that defense counsel had stated at the hearing that appellees had assembled and made available to Entmeier thousands of pages of discovery documents, which, as of the date of the hearing in September 2015, had not been reviewed by anyone on Entmeier's behalf. The court found that the motion was not premature.

         A trial court has wide discretion in matters pertaining to discovery, and we will not reverse its decision absent an abuse of that discretion. Lancaster v. Red Robin Int'l, Inc., 2011 Ark.App. 706, at 11, 386 S.W.3d 662, 670. In support of his argument that the motion was premature, Entmeier cites our supreme court's decision in First National Bank v. Newport Hospital & Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984). In that case, the court reversed the trial court's summary judgment, holding that the motion should not have been granted until discovery that was "clearly pertinent" to the issues in the case had been completed. Id. at 335, 663 S.W.2d at 743. There, the defendants in a medical-malpractice case filed motions for summary judgment after the plaintiff had requested production of certain "pertinent" medical records. Id. The supreme court specifically noted that there had been "no suggestion of a lack of diligence by the plaintiff in discovery efforts." Id. Here, in contrast, no discovery was conducted for eighteen months, and none was propounded until after appellees' motion for summary judgment had been filed. Finally, ...


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