Jenkins v. Mercy Hosp. Rogers

• Decision Date: 12 November 2021
• Docket Number: No. CV-20-713,CV-20-713
• Parties: Ann JENKINS, Appellant v. MERCY HOSPITAL ROGERS, Appellee
• Court: Arkansas Supreme Court

2021 Ark. 211

633 S.W.3d 758

Ann JENKINS, Appellant

v.MERCY HOSPITAL ROGERS, Appellee

No. CV-20-713

Supreme Court of Arkansas.

Opinion Delivered: November 12, 2021

Kezhaya Law PLC, Bentonville, by: Matthew A. Kezhaya, for appellant.

Wright, Lindsey & Jennings LLP, Little Rock, by: Michelle M. Kaemmerling and Gary D. Marts, Jr., for appellee.

ROBIN F. WYNNE, Associate Justice

Ann Jenkins appeals from the Benton County Circuit Court's dismissal of her employment-discrimination complaint against Mercy Hospital Rogers ("Mercy"). For reversal, Jenkins argues that (1) her fraud claim survives because Mercy misrepresented its policy against religious discrimination; (2) her wrongful-termination claim survives under either the contract or the public-policy exception to the at-will employment doctrine; and (3) her claim under the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark. Code Ann. §§ 16-123-101 to -108 (Repl. 2016 & Supp. 2021), survives either because Mercy does not qualify for the religious-organization exemption or because the exemption is unconstitutional. We affirm in part and reverse and remand in part.

I. Background

Jenkins began working as a physical therapist assistant at Mercy in 2012. At all relevant times, Mercy had an influenza vaccination

policy requiring that all employees receive an annual influenza vaccine as a condition of employment. Mercy's vaccination policy stated that Mercy "will grant exemptions to the annual flu vaccination for approved medical reasons or sincerely held religious beliefs." Under the vaccination policy, an employee whose exemption request is denied must be vaccinated, and an employee who is not vaccinated or granted an exemption will be terminated. Mercy also had an Equal Employment Opportunity ("EEO") policy stating in relevant part that "Mercy ... is committed to a policy of non-discrimination on the basis of ... religion .... In our commitment to discrimination-free services we exceed the requirements of Title VI & Title VII of the Civil Rights Act of 1964." In addition, Mercy displayed an "EEO is the Law" poster, which stated in relevant part that "Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from discrimination ... on the basis of ... religion." Mercy's website also stated that "Mercy is an equal opportunity employer .... We do not discriminate based upon ... religion."

In the fall of 2018, Jenkins requested an exemption to the annual influenza vaccination

requirement. She stated that receiving the vaccine would violate her religious beliefs, based on her interpretation of scriptures including Leviticus and Deuteronomy. Mercy denied her exemption request. Jenkins appealed pursuant to the vaccination policy, and Mercy again denied her request. Mercy terminated Jenkins after she failed to get vaccinated.

After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Jenkins sued Mercy in federal court, alleging that Mercy terminated her in violation of federal and state law. The federal court dismissed Jenkins's federal Title VII claim with prejudice, determining that Mercy is a religious corporation exempt from Title VII liability for religious discrimination in employment. Jenkins v. Mercy Hosp. Rogers , No. 5:19-cv-05221, 2020 WL 1271371, at * 2 (W.D. Ark. Mar. 17, 2020). The federal court declined to exercise jurisdiction over Jenkins's state-law claims and dismissed these claims without prejudice. Id.

Jenkins then filed this action in the Benton County Circuit Court, alleging fraud, violation of ACRA, wrongful termination, and estoppel. Jenkins amended her complaint three times. In her original and first amended complaints, Jenkins alleged that Mercy is a religious organization. In her second and third amended complaints, however, she alleged that Mercy, while an affiliate of the Catholic Church, is not a religious organization. Jenkins also dropped her estoppel claim and added declaratory-judgment claims alleging that ACRA's exemption for religious organizations is unconstitutional under both the federal and state constitutions. Mercy moved to dismiss, and the circuit court dismissed Jenkins's claims with prejudice. Jenkins timely appealed.

II. Standard of Review

In reviewing a circuit court's decision on a motion to dismiss under Arkansas Rule of Civil Procedure 12(b)(6), this court treats the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff. Parnell v. FanDuel, Inc. , 2019 Ark. 412, at 2, 591 S.W.3d 315, 317. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. at 3, 591 S.W.3d at 318. We look only to the allegations in the complaint and not to matters outside the complaint. Henson v. Cradduck , 2020 Ark. 24, at 4, 593 S.W.3d 10, 14. We treat only the facts alleged in the complaint as true but not a plaintiff's theories, speculation, or statutory interpretation. Id. The standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. Id. We consider questions of law de novo. Brown v. Towell , 2021 Ark. 60, at 6, 619 S.W.3d 17, 20.

III. Fraud

Jenkins argues that her fraud claim survives because Mercy made false representations about its policy against religious discrimination. In her complaint, Jenkins alleged that statements in Mercy's EEO policy, influenza vaccination

policy, EEO poster, and on its website—that Mercy "is committed to a policy of non-discrimination," "exceed[s] the requirements of Title VII," and "is an equal opportunity employer"—falsely represented that Mercy does not discriminate. She contends that Mercy fraudulently induced her to continue her employment at the hospital by representing that it does not discriminate and that she justifiably relied on those representations.

To prove fraud, a plaintiff must show that (1) the defendant made a false representation of material fact; (2) the defendant knew that the representation was false or that there was insufficient evidence upon which to make the representation; (3) the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered damage as a result of the false representation. Muccio v. Hunt , 2016 Ark. 178, at 4–5, 490 S.W.3d 310, 312–13.

Projections of future events or conduct cannot support a fraud claim as a matter of law. Se. Distrib. Co. v. Miller Brewing Co. , 366 Ark. 560, 575, 237 S.W.3d 63, 74 (2006) ; Anthony v. First Nat'l Bank of Magnolia , 244 Ark. 1015, 1028, 431 S.W.2d 267, 274 (1968) ("Representations that are promissory in nature or of facts that will exist in the future, though false, do not support an action for fraud."). Rather, the misrepresentation "must relate to a past event, or a present circumstance, but not a future event." P.A.M. Transport, Inc., v. Arkansas Blue Cross & Blue Shield , 315 Ark. 234, 240, 868 S.W.2d 33, 36 (1993). See Hobson v. Entergy Arkansas, Inc. , 2014 Ark. App. 101, at 10, 432 S.W.3d 117, 124 (employer's promises to employee that it would buy the employee's house if he relocated were promises of future events); Welsher v. Mercy Health Sys. of Nw. Arkansas, Inc. , 2012 Ark. App. 394, at 4 (hospital's statements to physician that it would engage in certain activities to expand cardiology services were "expressions of aspirations and goals," not statements of material fact). We have, however, recognized an exception to the general rule when the person making the representation knows it to be false at the time it is made. Delta Sch. of Commerce, Inc. v. Wood , 298 Ark. 195, 200, 766 S.W.2d 424, 427 (1989).

Jenkins argues that Mercy fraudulently induced her to remain employed at the hospital by knowingly representing—falsely, she claims—that it does not discriminate. She relies on Interstate Freeway Services, Inc. v. Houser , 310 Ark. 302, 835 S.W.2d 872 (1992). In Houser , this court concluded that statements made by an employer to Houser that Houser would manage a restaurant after opening it were sufficient to show fraud. 310 Ark. at 306–08, 835 S.W.2d at 874. At the time he made those statements, the employer intended to replace Houser after the restaurant opened and did so within four days. Id. at 305–06, 835 S.W.2d at 873–74. By contrast, in this case, Mercy's statements were general aspirational statements about its commitment to nondiscrimination. Mercy could not have known that when it hired Jenkins, it would not approve her exemption request six years later.

Jenkins has failed to plead that Mercy made any false representations of material fact sufficient to sustain a fraud action. The statements in Mercy's policies that it is committed to a policy of nondiscrimination and that it is an equal opportunity employer do not relate to past events or present circumstances. Instead, they are projections that Mercy will not engage in religious discrimination in the future. Because these statements are aspirational expressions of Mercy's dedication to nondiscrimination in the workplace and not representations of material fact, they cannot support a fraud claim.

Nor has Jenkins alleged facts to establish that she justifiably relied on the statements made by Mercy. When an employment contract is silent as to its duration, either party may terminate the relationship at will and without cause. Cottrell v. Cottrell , 332 Ark. 352, 354, 965 S.W.2d 129, 130 (1998). This court has recognized an exception to the at-will doctrine "where there is an agreement that the employment is for a specified time, in which case firing may be only for cause, or where an employer's employment manual contains an express provision stating that the employee will only be dismissed for cause and that provision is relied on by the employee." Crain Indus., Inc....