Ark. Code Ann. § 16-123-108 (2020)

RESEARCH REFERENCES

ALR.

What constitutes activity of employee protected under state whistleblower protection statute covering employee's “report,” “disclosure,” “notification,” or the like of wrongdoing—Sufficiency of report. 10 A.L.R.6th 531.

What constitutes activity of employee, other than “reporting” wrongdoing, protected under state whistleblower protection statute.13 A.L.R.6th 499.

Ark. L. Rev.

Madeline L. Kurrus, Comment: Taking It Personally: Holding Individual Supervisors Liable for Retaliation Under the Arkansas Civil Rights Act, 65 Ark. L. Rev. 873 (2012).

Case Notes

Adverse Employment Action.

Employee who claimed to have been retaliated against following the employee's return from military duty failed to sufficiently allege an adverse employment action as required to establish a claim under the Arkansas Civil Rights Act, § 16-123-101 et seq.; the record did not support an allegation that the employee was not put back into the position that the employee held prior to military duty, and other alleged actions, including a delay in providing certain items and a temporary reassignment for training, did not affect material aspects of employment. Clegg v. Ark. Dep't of Corr., 496 F.3d 922 (8th Cir. 2007).

Where a white employee resigned, the employee's retaliation claim failed because (1) a phone conversation was not protected conduct since the employee said nothing in the call about race discrimination, and (2) the employee did not demonstrate a materially adverse action since the employee failed to offer sufficient evidence of a constructive discharge. Helton v. Southland Racing Corp., 600 F.3d 954 (8th Cir. 2010).

Retaliation claim filed by plaintiff, a new zoning official, against defendant city employer, failed because a written warning did not threaten termination or any other employment-related harm, as the employee had suffered no loss of pay, reduction in hours or responsibilities, or exclusion from other opportunities, and further, a prior discipline for similar misconduct weakened any inference that the warning was considered “materially adverse.” Hill v. City of Pine Bluff, 696 F.3d 709 (8th Cir. 2012).

Causal Link.

Assuming that plaintiff cardiologist engaged in protected conduct when he complained about other physicians' bias and racial discrimination to administrators, the only evidence for which was cited in his complaint, plaintiff failed to establish a causal connection between the complaint in 2005 and the ultimate revocation of his hospital privileges in 2007, and thus, his claim of retaliation under 42 U.S.C. § 1981 and the Arkansas Civil Rights Act failed as a matter of law. Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675 (8th Cir. 2012).

Employer was entitled to summary judgment on a former employee's retaliatory discharge claim because there was sufficient evidence that the employer was concerned about the employee's unsafe driving as a truck driver well before the employee complained about sexual harassment by a co-driver. Nichols v. Tri-National Logistics, Inc., 809 F.3d 981 (8th Cir. 2016).

Pretext.

That the employer forgave the employee's earlier errors did not prohibit it from terminating her when the mistakes continued and worsened; even if the employee could establish a prima facie retaliation case, no reasonable factfinder could conclude that the employer's proffered reason for firing her was pretextual as required in the McDonnell Douglas framework. Burkhart v. Am. Railcar Indus., Inc., 603 F.3d 472 (8th Cir. 2010).

Employee's retaliation claim based on failure to promote and the employee's termination for insubordination failed because the employee did not show pretext since, inter alia, the proximity of the promotion decision to the employee's statement that the employee would file a discrimination charge if not promoted was not probative of pretext. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782 (8th Cir. 2011).

Proper Defendants.

Law professor's Arkansas Civil Rights Act (ACRA) claims against state university officials were properly dismissed because the ACRA only permitted retaliation and interference claims against employers, not individuals. Steinbuch v. Univ. of Ark., 2019 Ark. 356, 589 S.W.3d 350 (2019).

Protected Activities.

Former employee's retaliation claim under this section of the Arkansas Civil Rights Act failed, given evidence that the employee was terminated for sexually harassing co-workers and for filing untruthful complaints accusing the co-workers of sexual harassment. The evidence showed that the employee was discharged not for filing complaints, but for filing untruthful complaints. McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855 (8th Cir. 2009).

Former county juvenile detention officer failed to establish retaliation, as she did not engage in protected activity; her request for an extension of leave in order to obtain a new medical certification removing a restriction on lifting was not a request for a reasonable accommodation and therefore was not protected activity. Scruggs v. Pulaski County, 817 F.3d 1087 (8th Cir. 2016).

Statute of Limitations.

Employment retaliation claim under this section, the Arkansas Civil Rights Act, was subject to the three-year limitation period applicable when a statutory claim had no limitation period, § 16-56-105, rather than the one-year limitation provided in another part of the Act, § 16-123-107(c). Smith v. ConAgra Foods, Inc., 2013 Ark. 502, 431 S.W.3d 200 (2013).

Summary Judgment.

In granting summary judgment against plaintiff former employees, the circuit court erred by failing to make the specific findings required for the former employees’ Arkansas Civil Rights Act claims where there was no mention of the McDonnell-Douglas framework or any of its requirements. Fennell v. City of Pine Bluff, 2016 Ark. App. 275, 492 S.W.3d 887 (2016).

Supervisor.

In a case involving the Arkansas Civil Rights Act, § 16-123-101 et seq., a default judgment was not set aside under Ark. R. Civ. P. 55 because a motion for an extension was not timely where the request was not made to a trial court before the expiration of the period originally prescribed, the failure to respond in a timely manner due to one attorney being distracted by the birth of a child was not excusable neglect, an amendment to Ark. R. Civ. P. 12 was inapplicable, and an argument that the complaint failed to state a claim was rejected. The denial of illegal intent was insufficient in a first affidavit, a second affidavit was filed after the default was granted, and an individual supervisor could have been held personally liable for alleged acts of retaliation under subsection (a) of this section. Eusanio v. Tippin, 2013 Ark. App. 38, 425 S.W.3d 838 (2013).

Cited: Wallace v. Sparks Health Sys., 415 F.3d 853 (8th Cir. 2005); Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005).