Johnson v. Butler

• Decision Date: 09 June 2016
• Docket Number: No. CV–15–480,CV–15–480
• Citation: 494 S.W.3d 412,2016 Ark. 253
• Parties: Calvin Johnson, in His Official Capacity, and Board of Trustees of the University of Arkansas, Appellants v. Eugene Butler, Appellee
• Court: Arkansas Supreme Court

2016 Ark. 253

494 S.W.3d 412

Calvin Johnson, in His Official Capacity, and Board of Trustees of the University of Arkansas, Appellants

v.Eugene Butler, Appellee

No. CV–15–480

Supreme Court of Arkansas.

Opinion Delivered June 9, 2016

Fred Harrison and Matthew McCoy Associate General Counsel, for appellant.

Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter, Little Rock, for appellee.

ROBIN F. WYNNE, Associate Justice

Appellee Eugene Butler filed suit against appellees Calvin Johnson, in his official capacity,¹ and the Board of Trustees of the University of Arkansas (collectively, the University or appellants), alleging violation of the Arkansas Whistle–Blower Act (AWBA), Ark.Code Ann. § 21–1–601 et seq., related to his termination from his job as a police officer at the University of Arkansas at Pine Bluff (UAPB). The University filed a motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6), asserting that appellee's third amended complaint failed to state a cause of action that is not barred by sovereign immunity, and the circuit court denied the motion. Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure–Civil permits an appeal from an interlocutory “order denying a motion to dismiss ... based on the defense of sovereign immunity.” We reverse and dismiss because the complaint fails to state a factual basis for Butler's claim under the AWBA and therefore the appellants are entitled to sovereign immunity.

In his third amended complaint,² Butler alleged the following. Butler was hired by UAPB as a police officer in 2001. He was promoted to detective, and under Chief of Police Fred Weatherspoon, lead detective. After Chief Weatherspoon was fired, Major Maxcie Thomas was named interim chief of police. Chief Thomas “verbally attacked” Butler during two meetings “in attempt to provoke him into insubordination.” Butler goes on to allege that there were competing “plans” for the department—the chancellor's and Chief Thomas's—and that he (Butler) was appointed to the position of major while Chief Thomas was not working due to health problems. Further,

18. Several employees were lost during this time and the Department was short of staff. The Officers wanted to meet with Chief Thomas and Plaintiff sent him a memo in regards to that. During the meeting, Chief Thomas immediately started verbally attacking Plaintiff in front of the Officers. He accused Plaintiff of being responsible for the shortage; but everyone looked at him in disbelief. Thomas was acting this way because of Plaintiff's reports to Chancellor Davis, who was an appropriate authority under the [AWBA].

19. Another one of Plaintiff[']s duties was being in charge of security of the Harrold Complex Dormitory. The Chancellor gave Rita Ticey the position of Administrator and she was also the Chancellor's assistant. Ticey dealt with everything dealing with money. She was also the person that checked all the paper work dealing with time sheets and payroll. Ticey purchased and paid all the bills for the Harrold complex. Due to the fact that Plaintiff was not always around, Ticey would sign his name to time sheets.

20. Sometime later an audit was done of the Harrold Complex in order to determine of [sic] public funds had been wasted or stolen. The auditors asked Plaintiff questions in regards to his signature. They questioned Plaintiff about two of his signatures being on numerous time sheets; Rita Ticey and a worker in the Chancellor's Office signed Plaintiff[']s name. They asked Plaintiff if he gave them permission to sign his name. Plaintiff told them yes. They asked Plaintiff if he signed the signature card for them to sign his name and he said no. They showed Plaintiff some documents and he pointed out his actual signature. They talked to Plaintiff for approximately ten minutes. A few days later the things Plaintiff told them had been changed. They told the Chancellor that Plaintiff did not authorize Ticey to sign his name which was a lie. She had talked to Plaintiff and told him that she was going to sign his name because he was out of place. This was normal for others to sign your name. It was apparent that the auditors were not seeking the truth from Plaintiff. They also wanted to know if Plaintiff was related to Ticey and they were told no. Plaintiff therefore participated in an investigation of waste or violation of the employee code of conduct.

21. During the latter part of December 2011 or the first part of January 2012, Plaintiff was tricked to the University Counsel's Office by Chief Maxcie Thomas. He told Plaintiff that he needed to meet with him in regards to some cases Plaintiff worked. Plaintiff took the files with him and when he got there, Chief Thomas was there also. The University counsel, Jeff Bell, another Attorney and Maxcie Thomas were in the conference room. At all times relevant, Jeff Bell was acting within the scope of his employment as a lawyer for the Defendant. After the interview began, they asked Plaintiff a few questions and then the female attorney left. Goswick then entered the room. Attorney Bell and Goswick immediately started questioning Plaintiff in regards to the audit. The audit was an investigation, hearing, court proceeding, legislative or other inquiry, or in any form of administrative review to determine waste or theft of public money.

22. The information Plaintiff told them was true. Jeff Bell constantly told Plaintiff that he was lying. Plaintiff kept telling them what he was saying was the truth. They told Plaintiff that the Chancellor was making a fool out of him. They told Plaintiff if he told them what they need to know that he would protect him. There was nothing to tell and he became agitated. At one point he asked Chief Thomas if Plaintiff did any work for him. Chief Thomas lied and told him that Plaintiff only did work and ran errands for the Chancellor and Ticey.

23. If any money was mismanaged Plaintiff had nothing to do with it. Maxcie Thomas has lied on Plaintiff on numerous occasions. He had made it a point to do everything he could to get Plaintiff fired. Plaintiff had verbally complained on him and filed a grievance on him. This was protected activity as well. Thomas has belittled Plaintiff In front of Dr. Herts, the grievance Officer for the University. This was a violation of the Defendant's code of conduct.

24. Shortly after the meeting with Bell and Thomas ended, Bell told Plaintiff he would be terminated because of his participation in the investigation and his communication with the auditors. As Bell promised, on February the 24, 2012 Plaintiff was terminated.

Butler claims that he left personal items, including a printer and refrigerator, at his office and that Chief Thomas has refused to release his property. Butler goes on to state that, pursuant to the AWBA, he was a public employee working for a public employer when he “reported waste or a violation of UAPB's code of ethics or responsibilities, and was terminated in retaliation for his report and participation in a protected activity.” Finally, he states that he “participated in [an] investigation, hearing, court proceeding, legislative or other inquiry, or in any form of administrative review and was terminated because he refused to lie.” Butler alleges that as a direct and proximate cause of UAPB's³ adverse action, he has suffered wage loss and seeks all remedies available to him under the AWBA, including reinstatement, fringe benefits, and retirement credits. Appellants filed a motion to dismiss the third amended complaint as being barred by the doctrine of sovereign immunity on the grounds that (1) it is an action against the State of Arkansas, and article 5, § 20 of the Arkansas Constitution expressly prohibits the General Assembly from waiving the State's sovereign immunity from suit in her own courts; and (2) it fails to state a claim that would permit suit against a state official. The circuit court denied the motion without explanation, and this timely appeal followed.

Before reaching the merits, we address the concerns raised by the dissenting justices that this court lacks jurisdiction to hear this interlocutory appeal because the trial court failed to specifically rule on sovereign immunity. Those concerns are misplaced because the sole issue in the motion to dismiss was sovereign immunity, and the trial court's order operates as a ruling on that issue. This case is thus distinguishable from Arkansas Lottery Commission v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400, in which the Arkansas Lottery Commission moved for dismissal on multiple grounds, only one of which was based on the defense of sovereign immunity, and the trial court entered a detailed order but did not specifically rule on sovereign immunity. Under those circumstances, this court held that we did not acquire jurisdiction and dismissed the appeal without prejudice, so that the Commission could return to circuit court to obtain a ruling for this court to review. Here, we have a ruling on the issue of sovereign immunity and it is appropriate to address the merits of the appeal. See also Ark. Dep't of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294.

In reviewing a circuit court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Ark. State Claims Comm'n v. Duit Constr. Co., 2014 Ark. 432, 445 S.W.3d 496. 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. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.

On appeal, appellants argue that the circuit court erred in denying the motion to dismiss Butler's AWBA law suit because it is barred by sovereign immunity. For their first subpoint, appellant...