Johnson v. Windstream Commc'ns, Inc., CV–17–480

• Decision Date: 28 February 2018
• Docket Number: No. CV–17–480,CV–17–480
• Parties: Janann JOHNSON, Appellant v. WINDSTREAM COMMUNICATIONS, INC., Appellee
• Court: Arkansas Court of Appeals

545 S.W.3d 234

Janann JOHNSON, Appellant
v.
WINDSTREAM COMMUNICATIONS, INC., Appellee

No. CV–17–480

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: February 28, 2018

Sutter & Gillham, P.L.L.C., by: Luther O'Neal Sutter, Little Rock, and Lucien Gillham, for appellant.

Wright, Lindsey & Jennings LLP, Little Rock, by: Troy A. Price, William Stuart Jackson, and Regina A. Young, for appellee.

RITA W. GRUBER, Chief Judge

Appellant Janann Johnson brings her fourth appeal to this court in her lawsuit against Windstream Communications, Inc., for alleged violations of the Americans with Disabilities Act (ADA) and the Arkansas Civil Rights Act (ACRA).¹ We dismissed her last appeal without prejudice for lack of a final order. Appellant has now timely appealed from a final order and brings the following points on appeal: the circuit court erred in (1) granting Windstream's motion for directed verdict on her retaliation claim; (2) giving a business-judgment jury instruction without informing the jury that it did not apply to her failure-to-accommodate claim; and (3) excluding evidence regarding comparators. We affirm the circuit court's judgment.

I. Jurisdiction

Before we consider Johnson's arguments, we turn to Windstream's contention in its brief that we lack jurisdiction to hear this appeal. Resolution of the issue requires a brief procedural history. The case went to trial before a jury on four of Johnson's claims over several days in March 2015: ADA retaliation, wrongful termination due to disability discrimination, failure to accommodate, and wrongful termination due to sex discrimination. At the close of Johnson's case, her counsel voluntarily nonsuited the claim for wrongful termination due to sex discrimination, and the circuit court granted Windstream's motion for directed verdict on the ADA retaliation claim. The wrongful-termination and failure-to-accommodate claims went to the jury, which rendered a verdict for Windstream on both claims. The court recognized Johnson's voluntary dismissal in its order entered on the jury's verdict on April 2, 2015. On April 6, 2015, Johnson filed a motion for new trial, which the circuit court denied in an order entered on May 1, 2015. On May 15, 2015, Johnson filed a notice of appeal from the April 2, 2015, order and from the order denying her motion for new trial.

The record was lodged in this court on November 10, 2015. We dismissed Johnson's appeal on September 21, 2016, because the voluntary nonsuit without prejudice rendered the order not final, and the circuit court had not entered a properly executed Rule 54(b) certificate. See Johnson III . On October 7, 2016, Johnson filed a petition for rehearing and a petition for review. We denied the petition for rehearing on October 26, 2016, and the supreme court denied the petition for review on March 30, 2017. Our mandate issued on March 30, 2017, and Johnson filed a motion for entry of final judgment in the

545 S.W.3d 238

circuit court on April 12, 2017. The circuit court granted the motion and dismissed all claims with prejudice on May 5, 2017. On May 7, 2017, Johnson filed a notice of appeal from that order and from the 2015 orders she attempted to appeal in Johnson III.

Windstream argues that Johnson had one year from the voluntary dismissal of her claim on April 2, 2015, to refile the claim pursuant to Ark. Code Ann. § 16–56–126 (Repl. 2005). Thus, Windstream argues, the April 2, 2015, judgment became final on April 2, 2016, and Johnson's failure to file a notice of appeal within 30 days after that date—we assume Windstream means by May 2, 2016, though it does not specify—causes her appeal to be untimely. Windstream does not clarify from which order Johnson was required to file a notice of appeal or in which court, as the appeal was pending in this court during the relevant time frame. This argument assumes that Johnson had not refiled this claim in either federal or state court before May 2, 2016. In either case, Johnson had already appealed from the last orders entered at that point—the orders of April 2, 2015, and May 1, 2015.

Once the record was lodged in this court on November 10, 2015, the circuit court no longer had jurisdiction to act further in the matter. Myers v. Yingling , 369 Ark. 87, 89, 251 S.W.3d 287, 290 (2007). We dismissed Johnson's appeal on September 21, 2016, for lack of a final order due to her voluntary nonsuit of one claim. The dismissal of the appeal had the effect of reinvesting jurisdiction in the circuit court to enter a final order in the case. Mountain Pure LLC v. Affiliated Foods Sw., Inc. , 366 Ark. 62, 68, 233 S.W.3d 609, 614 (2006). Our mandate was issued on March 30, 2017, and the circuit court entered a final order on May 5, 2017, from which order Johnson timely appealed. Thus, the appeal is properly before us.

II. Facts

Johnson began working as a staff manager for Windstream in 2006. Joyce Latham was Johnson's direct supervisor during the relevant period. Latham and Johnson had worked together at Alltel before moving to Windstream and had also regularly socialized together outside the office. According to the testimony of both Johnson and Latham, the position of staff manager, which involves managing and being accountable for a team of employees, required good organizational and time-management skills. Johnson also testified that it was stressful, fast-paced, and time-consuming.²

Latham testified that she began noticing a change in Johnson's job performance in early 2008, when Johnson missed a lot of deadlines and Latham was notified that Johnson had failed to return voicemails or respond to emails. Latham also received notices that the data provided by Johnson's team was inaccurate. In an evaluation that Latham prepared in February 2008, she noted that Johnson had not been able to meet all of the deadlines and needed to focus on ensuring that her employees were performing their duties so that she could focus on the requirements of her own position as staff manager. In Johnson's semiannual review in August 2008, Latham again apprised Johnson of several areas in which her performance was deficient and needed improvement. Specifically, Latham informed Johnson that she needed to ensure that her team was completing all assignments by the assigned deadline and that she was delegating to

545 S.W.3d 239

her employees and not performing their tasks for them. The review concluded, "Janann currently is not meeting the expectations of a Staff Manager. Without immediate and sustained improvement she will be placed on a Performance Improvement Plan [PIP]."

In mid-October 2008, Latham approached Johnson about taking a demotion (but keeping her salary) to a senior-analyst position that had no management responsibilities. Latham told her that the other option was to put her on a PIP to deal with the performance issues. Johnson asked for time to consider the options, and she selected the PIP on October 28, 2008. That same day, in an email to Latham, she requested a few days of leave under the Family and Medical Leave Act (FMLA) claiming, "Due to the stress of the past week or so, I'm having issues sleeping, thinking, concentrating, etc." Latham granted her the time off. At some point during this time off, Johnson met with an attorney and a psychiatrist at the attorney's office regarding the issues in this lawsuit.

On November 5, 2008, after Johnson returned from FMLA leave, Windstream presented Johnson with the written PIP, which set forth problem areas in which improvement was necessary, including, among other items, missed deadlines; failure to independently set priorities; poor team management; and failure to timely respond to emails, voicemails, and employee issues. Johnson was again given the option to work as a senior analyst at the same salary rather than enter into a PIP. Johnson chose the PIP. On November 13, 2008, in a written response to the PIP, Johnson mentioned her alleged disability:

The last few weeks have been extremely stressful, and I have been forced to consult a physician. I believe I am substantially limited in my ability to think and concentrate, and I believe I will need intermittent FMLA leave as an accommodation. As a further accommodation, I request that my superiors give me weekly feedback regarding my progress, as well [as] objective benchmarks so I can measure my success. An agenda for each meeting will help all of us communicate. If you believe that I am deficient in any of my skill sets, I request additional training opportunities.

There is no evidence in the record that Johnson had told Windstream before this time that she suffered from any substantial limitation or "disability."

The parties dispute exactly how often Johnson and Latham had meetings during the PIP process—though at least biweekly—but they agree that Latham's and Johnson's offices were "within shouting distance from each other" and that they spoke regularly in the office. Due to the Thanksgiving and Christmas holidays, both Latham and Johnson were out of the office some during this time. After entering the PIP, Johnson continued to experience performance problems, and on December 19, 2008, Windstream issued Johnson a final written warning—signed by Latham, Angela Newell (Latham's manager), and Toni Hardin (Newell's manager)—detailing numerous deficiencies since November 12, 2008, and indicating...