James Dray v. City of Bentonville

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

Olly Neal, Judge

DIVISION IV

CA00-57

OCTOBER 11, 2000

JAMES DRAY

AN APPEAL FROM THE BENTON

APPELLANT COUNTY CIRCUIT COURT

[CIV-96-241-1]

CITY OF BENTONVILLE HONORABLE TOM J. KEITH

CIRCUIT JUDGE

APPELLEE

AFFIRMED

Appellant, James Dray, a former sergeant of the Bentonville Police Department, takes this appeal from an order granting the City of Bentonville's motion for directed verdict in his wrongful termination suit. The trial court concluded that as an at-will employee, appellant was terminated for reasons not adverse to the public policy of the State of Arkansas. We agree and affirm.

This is appellant's second appeal to this court from rulings related to his termination from the Bentonville Police Force on January 25, 1994. In Dray v. Director, 55 Ark. App. 66, 930 S.W.2d 390 (1996), we ruled that appellant was entitled to unemployment benefits because he was not discharged for misconduct connected with his employment.

The City of Bentonville hired appellant as a police officer on June 5, 1984, and promoted him to the rank of sergeant on January 11, 1993. Appellant was terminated for events that occurred about 2:00 a.m., December 20, 1993, at the Bentonville Police Department. On that date, a fellow officer notified appellant that appellant's fifteen-year-old son, Casey, had been arrested on a charge of public intoxication, and would only be released to a parent or legal guardian. When appellant arrived at the police station, his son had been handcuffed and remained very intoxicated, argumentative, and belligerent toward the police officers who arrested him and toward his father. Appellant slapped his son on the face twice in response to the conduct. Appellant was terminated effective January 25, 1994.

Appellant stated that when he received the call from the police department concerning his son's arrest, he was off duty on sick leave due to an accident he had in November 1993. Appellant was not in uniform when the incident occurred. According to Mr. Dray, he had no responsibilities that called for contact with juveniles and would not have been at the police station if the juvenile who was arrested had not been his son. Mr. Dray admitted to striking his son on the face and testified that he did so because his son "smarted off" to him after being admonished for being disrespectful to other officers.

In ruling on a motion for a directed verdict, the trial court is to view the evidence that is most favorable to the nonmoving party and give that evidence its highest probative value, taking into account all reasonable inferences deducible from it. Burns v. Boot Scooters, Inc., 61 Ark. App. 124, 965 S.W.2d 798 (1998). The motion should only be granted if the evidence is so insubstantial as to require that a jury verdict for the nonmoving party be set aside. If, however, there exists substantial evidence to support a jury verdict for thenonmoving party, then the motion should be denied. Id. Substantial evidence is that evidence which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture. Id.

Appellant points to our decision in his prior appeal as support for the proposition that he was not fired for misconduct. Appellant contends that our previous ruling presents a bar to appellee arguing appellant was terminated for misconduct. Appellant misconstrues that decision and the law. Our decision in Dray v. Director dealt with the narrow issue of whether appellant was terminated for misconduct in connection with employment for purposes of unemployment benefits. In such cases, we have stated that for an employer to show that his employee's off-duty activities rise to the level of misconduct in connection with employment for purposes of denying unemployment benefits, the employer must show by a preponderance of the evidence:

[T]hat the employee's conduct (1) had some nexus with her work; (2) resulted in some harm to the employer's interest, and (3) was in fact conduct which was (a) violative of some code of behavior impliedly contracted between employer and employee, and (b) done with intent or knowledge that the employer's interest would suffer.

Feagin v. Everett, Dir., 9 Ark. App. 59, 652 S.W.2d 839, 844-45 (1983).

In the instant action, we are not required to apply this standard because we are not faced with a request for unemployment benefits. Rather, what we must decide is whether the trial court erred in ruling that appellant did not present substantial evidence that he was wrongfully terminated. In both his complaint and his appeal, appellant alleges that the Cityof Bentonville terminated him solely because he slapped his son. Appellant argues that this action by the City of Bentonville amounts to wrongful termination because it was done contrary to this state's well-established public policy granting a parent the right to discipline his child. We disagree.

Generally, the law in this state is that an employer or an employee may end an employment relationship at will. St. Edward Mercy Med. Ctr. v. Ellison, 58 Ark. App. 100, 946 S.W.2d 726 (1997). Under the employment-at-will doctrine, an at-will employee may be discharged for good cause, no cause, or even a morally wrong cause. Id. Our supreme court has recognized a limited public policy exception to the at-will doctrine and has held "that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state." Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 249, 743 S.W.2d 380, 385 (1988). To determine the public policy of this state, we look to our statutes and constitution, Sterling Drug, Inc. v. Oxford, supra, because public policy is declared by the General Assembly, and not this court. Davis v. Ross Prod. Co., 322 Ark. 532, 910 S.W.2d 209 (1995); Nabholtz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995).

Appellant argues he has a cause of action for wrongful discharge because he was terminated for disciplining his son. He cites Arkansas Code Annotated § 5-2-605 (Repl. 1997) for the proposition that a parent's right to discipline is a well-established public policy of this state. That section provides in pertinent part:

The use upon another person of physical force that would otherwise constitute an offense is justifiable under any of the following circumstances:

(1) A parent, teacher, guardian, or other person entrusted with care and supervision of a minor or an incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor or incompetent person.

In addition to the above statute, the General Assembly has provided that child abuse does not include reasonable physical discipline of a child when it is for purposes of restraining or correcting a child. Ark. Code Ann. § 9-27-303(4)(B(i) (Supp. 1999). The code further provides, however, striking a child on the face is not reasonable or moderate when used to restrain or correct a child. Ark. Code Ann. § 9-27-303(4)(B)(ii)(g).

There can be little doubt that a parent's right to discipline a child is a well-established policy of this state. Statutes clearly exempting from criminal liability certain behaviors when used to discipline a child support the contention that this state favors a parent's right to correct a child's improper behavior. The General Assembly, however, has expressly provided that slapping a child in the face is a per se unreasonable means of disciplining a child. In light of this provision, we cannot say that appellant's slapping his child in the face falls within a well-established policy of this state.

Appellant also argues that the Bentonville City Council usurped the mayor's power in ordering that he be fired. Appellant presented a personnel form indicating that he was fired pursuant to council action. Bentonville personnel policies provide that the mayor has the power to approve all terminations. In this case, appellant received a letter from the mayor informing him of his termination from the Bentonville Police force. Based on this evidence, the trial court did not err in ruling that appellant's termination followedappropriate procedures.

Affirmed.

Robbins, C.J., and Bird, J., agree.