Ronnie Johnson v. Sentinel-Record, Inc., a Subsidiary of Wehco Media, Inc. and Floyd Emerson

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

RONNIE JOHNSON,

APPELLANT

V.

SENTINEL-RECORD, INC., a subsidiary of WEHCO MEDIA, INC. AND FLOYD EMERSON,

APPELLEES

CA01-702

JANUARY 9, 2002

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

NO. CIV99-747-1,

HON. JOHN H. WRIGHT, JUDGE

AFFIRMED

In August 1975, appellant Ronnie Johnson began employment with Sentinel-Record, Inc., in the advertising department. He alleges that during this employment, he was forced to share commissions and give cash and gifts to Floyd Emerson. Johnson quit his employment with Sentinel in 1984, but returned in 1993 to the classified sales department. He worked for four years and was promoted to Classified Ad Manager and received a pay raise, which was approved by Emerson. In February 1997, Sentinel placed Johnson on probation after he missed multiple days of work without properly notifying Sentinel of his intent to be absent. He was discharged by Emerson in April 1997 for the stated reason of performance deterioration and because he had taken a vacation day without obtaining prior permission from Emerson. Johnson brought suit, alleging wrongful discharge in violation of the public policy of Arkansas against Sentinel and tortious interference with his employment contract with Sentinel against Emerson and another manager. Johnson then

nonsuited these claims in 1998 and refiled the case against only Sentinel and Emerson. The trial court granted summary judgment in favor of the appellees, Sentinel and Emerson, finding that no genuine issue of material fact existed as to either the wrongful discharge or the tortious-interference-with-a-contract claim. Johnson appeals, contending that a genuine issue of material fact does exist, which should have precluded the trial court from granting summary judgment.

Standard of Review

We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 ( 2000). We now regard it simply as one of the tools in a trial court's efficiency arsenal; however, this court only approves the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Id. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. This court need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id.

All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. Oncethe moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. Facts stated in an affidavit must be admissible in evidence if they are to be relied upon in granting or denying summary judgment. Id.

Wrongful Discharge Claim

Sentinel and Emerson filed a motion for summary judgment, supported by affidavits and responses to requests for interrogatories. They contended that, even if the proffered reason for Johnson's discharge was true, Johnson was an employee-at-will and that the public policy exception to the employment-at-will doctrine was inapplicable. They further contended that Johnson's proffered reason for his discharge was not true, and that no genuine issue of material fact existed regarding the reason for his discharge. Johnson acknowledged that he could leave his employment at any time and that Sentinel could terminate him at any time, thus constituting an employment-at-will relationship.

An employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). 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, but this is a limited exception to the employment-at-will doctrine. Id.

While it would be for a jury to determine the reason for the plaintiff's termination, the question of whether the reason asserted by the plaintiff was in violation of a well-established public policy of the state is ordinarily a question of law for the court. Skrable v. St. Vincent Infirmary, 57 Ark. App. 164, 943 S.W.2d 236 (1997). The public policy exception is limited and narrow in scope. Id. The public policy of the state is contravened if an employer discharges an employee for reporting a violation of state or federal law. Sterling Drug, Inc., supra. The public policy of our state is found in our statutes and in our constitution. Id. Johnson has cited this court to no statute or constitutional provision that he claims was violated by the alleged conduct of Sentinel and Emerson. See Skrable, supra. We do not decide today whether the public policy exception is applicable in this case because even if the exception is applicable, Johnson failed to meet proof with proof.

Sentinel and Emerson established their prima facie entitlement to summary judgment with an affidavit denying the veracity of the allegations and alleging a legitimate reason for Johnson's termination - deteriorating job performance of which Johnson had been warned. Sentinel and Emerson further supported their motion with affidavits from all persons Johnson had identified as ones who would support his allegations. Prima facie evidence is "[e]vidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient." Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000)(citing Black's Law Dictionary, 1190 (6th. ed. 1990)).

When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Wirth v. Reynolds Metal Co., 58Ark. App. 161, 947 S.W.2d 401 (1997). Sentinel and Emerson produced multiple affidavits that negated Johnson's essential causation element, as well as proving that, as a matter of law, the claim for tortious interference with a contract could not be maintained against Emerson. Sentinel and Emerson supported their motion for summary judgment with Johnson's responses to their interrogatories and requests for production; affidavits from Emerson, another manager, and other employees of Sentinel; and excerpts from Johnson's deposition. In response to an interrogatory, Johnson provided the names of persons with relevant knowledge and stated that these would be his expected trial witnesses. Johnson admits on appeal that none of these persons corroborated his claim of wrongful discharge. Sentinel and Emerson provided affidavits from each of these persons, none of whom corroborated his claim.

The many affidavits established that Johnson's performance had deteriorated; that he was frequently absent; that he often drank and smelled of alcohol on the job; and that his shaking prevented him from sitting at his desk. Allegations that Emerson requested Johnson to share commissions or give him gifts were denied by Emerson and uncorroborated by the others whom Johnson had stated would so corroborate. Additionally, affiants testified that the proper procedure for taking days off was to notify a supervisor, which would be Emerson in Johnson's case.

In Johnson's deposition, he admitted that Emerson and Ballentine, another manager, told him that morale was low, customer complaints about him were high, and that they believed this was due to Johnson's excessive absenteeism and lack of proper leadership. Headmitted that Ballentine and Emerson discussed his appearance with him at the February meeting, and also the sick leave procedure issue.

These affidavits established Sentinel and Emerson's prima facie entitlement to summary judgment. It was then Johnson's burden to meet proof with proof and show the existence of a genuine issue of material fact that remained to be litigated.

Johnson's response to the summary judgment was supported by affidavits from four persons, including himself. Mark Leopold stated that Johnson had told him that Emerson would "pad" his commission, and in return, Johnson would pay Emerson cash. Leopold stated that he told Johnson that he believed this to be illegal. He stated that he never witnessed Johnson giving Emerson money but stated that Johnson told him that he did not really make as much as was listed on his W-2. Ruby Johnson, Johnson's mother, described events that related only to Emerson's first term of employment with Sentinel. Naomi Baswell, Johnson's sister, stated that when Johnson applied to Sentinel the second time, he refused to pay Emerson and that the job "suddenly changed from management to a sales position."

Facts stated in an affidavit must be admissible in evidence if they are to relied upon in granting or denying summary judgment. Dixie Ins. Co. v. Joe Works Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989). Hearsay statements are excluded from summary judgment analysis since such statements would be inadmissible at trial and violate Arkansas Rule of Civil Procedure 56's call for "such facts as would be admissible in evidence." Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997).

Johnson's affidavits discussed events occurring during his first term of employment at Sentinel, which were not properly before the court because such alleged actions occurred well past the running of the statute of limitation, and hearsay conversations. No part of Johnson's summary judgment evidence addresses the legitimacy of the proffered reason for his termination.

Thus, much of the testimony in Johnson's supporting affidavits is inadmissible hearsay and improper summary judgment evidence. The remaining testimony fails to raise a genuine issue of material fact. Accordingly, we affirm the trial court's grant of summary judgment on the wrongful discharge claim.

Tortious Interference with a Contract

In Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001), Palmer was an at-will employee of the Council. The Council engaged RPL, a human resources consulting business. RPL suggested various way to handle Palmer's performance problems, but ultimately, Palmer's employment was terminated. Palmer brought suit against RPL and others for tortious interference with a contract. Stating that "it is well settled that a party to a contract, and its agents acting in the scope of their authority, cannot be liable for interfering with the party's own contract," the court held that because RPL was an agent of the Council, it was not a third party which could interfere with the employment contract between the Council and Palmer. Id. The court held that no claim for tortious interference of a contract could stand against the other defendants as well, because "it is undisputed that the [other defendants] are employees of the Council and are not third parties for the purposesof appellant's tortious interference claim." Id. at 472, 40 S.W.3d at 791.

In the case at bar, Emerson was an employee of Sentinel, and thus could not be a third party to any contract relation between Johnson and Sentinel. Therefore, Emerson cannot be held liable for interfering with Sentinel's contract with Johnson. Accordingly, we affirm the trial court's grant of summary judgment in favor of Emerson on the tortious-interference-with-a-contract claim.

Affirmed.

Crabtree and Baker, JJ., agree.