                                 Cite as 2016 Ark. App. 491


                 ARKANSAS COURT OF APPEALS
                                     DIVISIONS II & III
                                       No. CV-15-873
                                                  Opinion Delivered   October 19, 2016

                                   APPEAL FROM THE SEBASTIAN
 DON PAUL BALES et al.             COUNTY CIRCUIT COURT,
                       APPELLANTS FORT SMITH DISTRICT
                                   [NO. CV-14-23(VI)]
 V.
                                   HONORABLE JAMES O. COX, JUDGE
 THE CITY OF FORT SMITH,
 ARKANSAS, et al.                  SUBSTITUTED OPINION ON GRANT OF
                         APPELLEES REHEARING; AFFIRMED IN PART;
                                   REVERSED AND REMANDED IN PART


                              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
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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




       1
           Addisen’s father is appellant Rick Entmeier.

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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



       Later, Sampson reported that he was subjected to harassment and bullying by
       2

Sergeant Sprayberry.
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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

grievance was initiated. As a result, Sampson was formally reprimanded and Bales was

suspended without pay for one day.

       A FSPD morale-building exercise also resulted in disciplinary measures for Bales.

Bales and Sampson organized a morale-building exercise that required some employees to

be out of the office. The employees who staffed the office during the exercise received

overtime pay. As a result, the FSPD conducted an investigation regarding a potential misuse


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of police funds, and Bales received a disciplinary memo to his file.

       In January 2014, appellants filed this lawsuit against appellees alleging violations of

the AWBA, and in March 2015, appellees filed a motion for summary judgment. Attached

to appellees’ motion was the testimony of appellants, as well as sixteen additional affidavits.

The crux of appellees’ motion was that any sanctions imposed against appellants were the

result of poor job performance and were not retaliatory. Appellees asserted that there were

no facts in evidence to support the existence of a causal connection between appellants’

alleged whistle-blowing communications and the sanctions imposed on them thereafter.

Appellants responded to the motion for summary judgment and offered their own

responsive affidavits. The circuit court ultimately found that appellees were entitled to

summary judgment on appellants’ claims.

       In this appeal, appellants argue that the circuit court erred by granting summary

judgment to appellees. They contend that 1) appellees did not establish that summary

judgment was warranted, (2) the circuit court erred in granting summary judgment because

causation is a question of fact for the jury, (3) the circuit court ignored their evidence, and

(4) appellees’ failure to fully answer discovery precluded summary judgment.

                          II.     Entitlement to Summary Judgment

       A motion for summary judgment should be granted only when, in light of the

pleadings and other documents before the circuit court, there is no genuine issue of material

fact, and the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56(c).

The burden of sustaining a motion for summary judgment is always the responsibility of the

moving party. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999). When


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reviewing whether a motion for summary judgment should have been granted, the appellate

court determines whether the evidentiary items presented by the moving party in support

of the motion left a material question of fact unanswered. Bomar v. Moser, 369 Ark. 123,

127, 251 S.W.3d 234, 239 (2007). Once the moving party has established prima facie

entitlement to summary judgment by affidavits, depositions, or other supporting documents,

the opposing party must meet proof with proof and demonstrate the existence of a material

issue of fact. Id. This court views the evidence in the light most favorable to the party against

whom the motion was filed, resolving all doubts and inferences against the moving party.

Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). This court also evaluates whether

reasonable minds could differ in their interpretation of the facts. Thomas v. Stewart, 347 Ark.

33, 60 S.W.3d 415 (2001).

       We begin our analysis by considering three of appellants’ points on appeal that arise

with respect to all of their AWBA claims and are best discussed simultaneously. These issues

are whether summary judgment was improper because (1) appellees failed to establish prima

facie entitlement to summary judgment, (2) causation is always a question of fact, and (3)

the circuit court ignored their evidence.

       For each appellant’s claim, appellees presented evidence that any disciplinary action

taken was for reasons unrelated to protected whistle-blowing communication. Appellants

claim that summary judgment cannot be granted on these grounds because that is an

affirmative defense. Ark. Code Ann. § 21-1-604(e). They argue that affirmative defenses

must always be raised at trial and determined by the trier of fact. We disagree. Once the

moving party presents evidence of the affirmative defense in its motion for summary


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judgment, it is the responsibility of the nonmoving party to meet proof with proof. Bomar,

supra; see also Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117.

       Additionally, appellants assert that the circuit court improperly granted summary

judgment because causation is always a question of fact. In order to establish proximate

cause, there must be evidence beyond mere allegations and conclusions. Wirth v. Reynolds

Metal Co., 58 Ark. App. 161, 947 S.W.2d 401 (1997). While causation is usually a question

for a jury to decide, it becomes a question of law only if reasonable minds could not differ.

Mergen, supra. Whether this appeal presents a situation in which proximate cause is an issue

of law will be discussed in greater detail. However, our case law contemplates instances in

which proximate cause is not a question for the fact-finder.

       Finally, appellants argue in favor of reversal based on the broad premise that the

circuit court ignored their evidence. To support this argument, they direct our attention to

statements the circuit court made from the bench when granting summary judgment. We

need not evaluate the circuit court’s statements from the bench in order to address this issue.

Our standard for considering an order for summary judgment is well settled. In reviewing

an order granting summary judgment, appellate courts are charged with determining first

whether the moving party established prima facie entitlement to summary judgment and

then whether the nonmoving party met proof with proof. Bomar, supra. This is the standard

by which we will consider whether summary judgment was appropriate on each of

appellants’ AWBA claims, and the resolution of this question will necessarily dispose of the

issue of whether the circuit court properly considered all evidence before it.




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        With these preliminary issues resolved, we turn our attention to the individual claims

of each appellant. To prevail on a claim, the public employee must report a violation or

waste to an appropriate authority such as a “member, officer, agent, investigator, auditor,

representative or supervisory employee of the body, agency or organization.” Ark. Code

Ann. § 21-1-602(2)(A)(i). The reporting of the violation or waste must then result in an

“adverse action” to the employee, which means to “discharge, threaten, or otherwise

discriminate or retaliate against a public employee in any matter that affects the employee’s

employment, including compensation, job location, rights, immunities, promotions, or

privileges.” Ark. Code Ann. § 21-1-602(1).

                                A. The Claim of Don Paul Bales

        We begin our analysis by considering whether there is evidence that Bales suffered

an adverse action because of his alleged whistle-blowing communication. Our law is clear

that the party moving for summary judgment must first establish a prima facie entitlement

to summary judgment. Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d

545 (1995). Once a prima facie entitlement has been established, it is only then that the

party opposing the motion must demonstrate the existence of a genuine issue as to material

fact. Id.

        Appellees have established prima facie entitlement to summary judgment. They

offered affidavits indicating that all investigations regarding Bales were the result of employee

misconduct or poor job performance and not related to his alleged whistle-blowing

communication. Accordingly, we direct our attention to whether there is evidence to




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establish a causal connection between Bales’s alleged whistle-blowing and the subsequent

adverse actions he faced.

       Almost immediately after Bales’s alleged whistle-blowing communication, he

became the subject of internal investigations. Bales presents evidence that he was punished

in response to his comments and behavior regarding Addisen’s termination. He also faced

adverse actions at the FSPD arising out of his disciplinary measures against Angela McCabe

and his organization of the morale-building exercise.

       Bales highlights several pieces of evidence to support the proposition that there was

a causal connection between his alleged whistle-blowing communication and the

subsequent adverse actions he faced. Bales emphasizes Chief Lindsey’s own testimony

wherein he admitted punishing Bales in spite of the fact that he thought Bales had made a

good-faith report about Addisen’s termination. Bales also indicates that another FSPD

employee received different treatment than he did after making similar good-faith allegations

that ultimately turned out to be unsubstantiated. Bales presented evidence that, in one

investigation against him, Chief Lindsey amended the investigation to include statements

made by Bales and that Chief Lindsey’s amendment was made before Bales actually made

his statements. This could lead a fact-finder to infer a malicious intent by Chief Lindsey.

Finally, Chief Lindsey held himself out to be a neutral arbiter in the investigations against

Bales, but during the investigation against Bales and Entmeier, he reviewed and amended

the investigatory questions to be asked. This conduct by Chief Lindsey could also lead to

the inference that Lindsey was not the neutral arbiter he claimed to be.




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       When evaluating evidence in a motion for summary judgment, we must resolve all

doubts and inferences in the nonmoving party’s favor. Meadors, supra. With this standard in

mind, it is clear that reasonable minds could determine that there is evidence connecting

Bales’s alleged whistle-blowing communication to the adverse actions he ultimately

incurred. Accordingly, we hold that summary judgment on Bales’s whistle-blower claim

was improper, and we reverse and remand this claim for further proceedings.

                              B. The Claim of Rick Entmeier

       We now direct our attention to whether Entmeier suffered an adverse action because

of his alleged whistle-blowing communication. When considering whether appellees

established a prima facie entitlement to summary judgment, we acknowledge that appellees

again offered reasons for Entmeier’s disciplinary measures unrelated to his alleged whistle-

blowing communication. Accordingly, we conclude that appellees established a prima facie

entitlement to summary judgment, and our question becomes whether Entmeier met proof

with proof to withstand summary judgment.

       As with Bales, we determine that reasonable minds could conclude that the adverse

actions Entmeier suffered were a result of his alleged whistle-blowing communication.

Evidence shows that Chief Lindsey may not have been a neutral arbiter during the

investigatory proceedings against Entmeier. Specifically, Chief Lindsey took an active role

in the investigatory process by reviewing and amending the investigatory questions to be

asked of Entmeier and Bales. We reverse and remand Entmeier’s claim for further

proceedings.




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                            C. The Claim of Wendall Sampson, Jr.

       Finally, we direct our attention to Sampson’s whistle-blower claim. In this instance,

we are required to evaluate whether Sampson is a whistle-blower within the meaning of

the AWBA.

       Sampson’s alleged whistle-blowing communications are (1) reporting what he

believed to be the unauthorized use of overtime pay and (2) reporting bias, bullying, and

harassment by Sergeant Dawn Sprayberry. According to the AWBA, a whistle-blower is

one who either reports (1) a waste of public funds or (2) a violation of the law. A whistle-

blowing communication is defined as either a communication regarding the existence of

waste of public funds, property, or manpower or a violation or suspected violation of a law,

rule, or regulation adopted under the law of this state. Ark. Code Ann. § 21-1-603(a)(1).

       Appellees contend that Sampson’s communications regarding Sergeant Sprayberry’s

alleged bullying and harassment as alleged here are not contemplated by the AWBA. We

agree. Bullying and harassment do not amount to either a waste of public funds or a violation

of the law for purposes of the AWBA.

       Sampson also alleges that his communications regarding improper overtime usage

qualify him as a whistle-blower under the AWBA. Appellees dispute this, arguing that

overtime pay was always available in the department and that the alleged improper overtime

payment reported by Sampson was to fund positions that had to be staffed. Simply put, they

assert that, because no money was lost by the FSPD, there was no waste. We hold that the

appellees’ argument fails. The AWBA requires only that Sampson make a good-faith report.

Ark. Code Ann. § 21-1-603(a)(1). The evidence, viewed in the light most favorable to


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Sampson, establishes that his report on improper overtime usage was made in good faith.

Accordingly, we conclude that whether Sampson is a whistle-blower within the meaning

of the AWBA is a question of fact.

       Having made that conclusion, we turn our attention to whether Sampson presented

evidence that he suffered an adverse action because of his alleged whistle-blowing

communication. The adverse action suffered by Sampson was a formal reprimand for

disciplining Angela McCabe without first documenting her work deficiencies. As with the

claims of Bales and Entmeier, appellees introduced evidence that the disciplinary measures

Sampson received were the result of employee misconduct or poor work performance and

were not retaliatory, and we hold that appellees established a prima facie entitlement to

summary judgment.

       We now consider whether there is evidence to establish a causal connection between

Sampson’s alleged whistle-blowing communication and the adverse action he suffered.

Sampson failed to offer any evidence linking his formal reprimand to his alleged whistle-

blowing communication, and without any evidence of causation, Sampson failed to meet

proof with proof. Accordingly, his whistle-blower claim necessarily fails. We hold that the

circuit court properly granted summary judgment on Sampson’s AWBA claim and affirm.

                 III.     Whether Discovery Issues Precluded Summary Judgment

       As their final issue on appeal, appellants contend that the circuit court was precluded

from granting summary judgment because appellees failed to fully answer discovery. A

circuit court has wide discretion in matters pertaining to discovery, and Arkansas appellate




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courts will not reverse a circuit court’s decision absent an abuse of discretion. Lancaster v.

Red Robin Int’l, Inc., 2011 Ark. App. 706, 386 S.W.3d 662.

       “Before being required to demonstrate [the required] evidence in response to a

motion for summary judgment, a plaintiff is entitled to have the benefit of adequate

discovery from the opposing parties as the nature of the case requires.” First Nat’l Bank v.

Newport Hosp. & Clinic, Inc., 281 Ark. 332, 335, 663 S.W.2d 742, 743–44 (1984). The issue

of discovery was fiercely contested before the circuit court, and the evidence indicates that

the circuit court gave appellants great latitude in conducting discovery including, but not

limited to, allowing appellants to access all available records at the FSPD. With regard to

Sampson, we hold that the circuit court did not abuse its discretion by refusing to allow

more discovery. The issue of discovery as it pertains to Bales and Entmeier is moot. With

the claims of Bales and Entmeier returning to the circuit court for further proceedings, the

circuit court is free to allow discovery on their claims as it deems appropriate.

       Affirmed in part; reversed and remanded in part.

       ABRAMSON, HARRISON, GRUBER, GLOVER, and HOOFMAN, JJ., agree.

       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.




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