Collins v. City of Lowell, Arkansas

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CHRISTOPHER COLLINS 	PLAINTIFF
V. 	CASE NO. 5:24-CV-5122
CITY OF LOWELL, ARKANSAS 	DEFENDANT
MEMORANDUM OPINION AND ORDER
Christopher Collins was employed in the City of Lowell, Arkansas’s (“the City”)
police department from September 25, 2017 until December 13, 2023, when his
supervisor informed him that his position was being eliminated. 	Mr. Collins filed this
lawsuit against the City in Benton County Circuit Court, alleging that his firing violated
article 2 of the Arkansas Constitution (which provides similar speech protections to those
provided by the First Amendment to the United States Constitution), as well as the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). 	See Doc. 3. 	The City
removed the lawsuit to this Court, invoking this Court’s federal-question jurisdiction under
28 U.S.C. § 1331, as the FMLA is a federal statute. 	See Doc. 2. 	After the parties
completed discovery, the City moved for summary judgment, arguing that all of Mr.
Collins’s claims should be dismissed with prejudice. See Doc. 18. That Motion has been
fully briefed and is now ripe for decision.0F
1 For the reasons given below, the City’s Motion
1 The Court has also considered the City’s Brief in Support (Doc. 22) and Statement of
Undisputed 	Material 	Facts 	(Doc. 	20); 	Plaintiff 	Christopher 	Collins’s 	Response 	in
Opposition (Doc. 23), Response to Defendant’s Statement of Undisputed Material Facts
(Doc. 24), and Brief in Support of his Response (Doc. 25); and the City’s Reply (Doc. 26).
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is GRANTED IN PART AND DENIED IN PART. Counts 1 and 2 of Mr. Collins’s Complaint
are DISMISSED WITH PREJUDICE, but Count 3 will proceed to trial.
I. 	LEGAL STANDARD
Summary judgment is appropriate if “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Nat’l Bank of
Com. of El Dorado v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir 1999) (quoting Fed. R.
Civ. P. 56). 	“[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2)
the disputed fact is material to the outcome of the case; and (3) the dispute is genuine,
that is, a reasonable jury could return a verdict for either party.” RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). 	The moving party bears the
burden of proving the absence of any material factual disputes and that they are entitled
to judgment as a matter of law, but the nonmoving party may not rest upon mere denials
or allegations in the pleadings and must set forth specific facts to raise a genuine issue
for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). 	“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
II. 	DISCUSSION
Mr. Collins’s Complaint asserts three separate counts. 	Count 1 is for the City’s
alleged violation of his right to consult and petition under article 2, section 4 of the
Arkansas Constitution. 	Count 2 is for the City’s alleged violation of his right to freely
communicate his thoughts and opinions under article 2, section 6 of the Arkansas
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Constitution. And Count 3 is for the City’s alleged violation of his rights under the FMLA.
Below, the Court will first discuss Mr. Collins’s constitutional claims. Then the Court will
address his FMLA claim.
A. Counts 1 and 2, Ark. Const. Art. 2
The Arkansas Civil Rights Act (“ACRA”) provides that anyone who deprives a
person of his rights under the Arkansas Constitution “shall be liable to the party injured in
an action . . . for legal and equitable relief or other proper redress.” See Ark. Code Ann.
§ 16-123-105(a). 	The ACRA is analogous to the Federal Civil Rights Act of 1871, 42
U.S.C. § 1983, which provides a similar statutory vehicle for redress of violations of the
federal Constitution; and thus the ACRA explicitly states that courts “may look for
guidance to state and federal decisions interpreting . . . 42 U.S.C. § 1983” when they are
construing the ACRA. 	See Ark. Code Ann. § 16-123-105(c). 	Similarly, and as noted
above, article 2 of the Arkansas Constitution and the First Amendment to the United
States Constitution provide analogous protections for speech. 	Accordingly, claims for
violations of speech rights under article 2 are analyzed under the same standards as
those governing First Amendment violations. 	See McCullough v. Univ. of Ark. for Med.
Sci., 559 F.3d 855, 865 (8th Cir. 2009). This discussion, then, will extensively reference
§ 1983 and First Amendment caselaw, given the relative abundance of cases interpreting
those authorities.
Mr. Collins claims that the City retaliated against him for engaging in two distinct
but related acts of speech, which form the bases for his two distinct constitutional claims.
Both concern advocacy he undertook regarding the issue of officer pay. According to his
Complaint, in 2023 Mr. Collins conducted a survey of wages paid by area law enforcement
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agencies and learned that that members of the City’s police department were paid lower
wages than those of other local law enforcement agencies. 	See Doc. 3, ¶¶ 9, 12. This
survey was not a task that was assigned to Mr. Collins in the course of his employment,
but rather was something he undertook on his own initiative to address what he perceived
as low morale among members of the City’s police department. 	See id. at ¶ 9. 	He
communicated the results of his survey to Chief of Police Tim Kuth, among others, on
October 31, 2023. 	See id. at ¶ 13. This is the first expressive act for which Mr. Collins
claims the City retaliated against him. On November 17, 2023, Chief Kuth reassigned Mr.
Collins from his day-shift position as a detective to a night-shift position as a patrol officer;
Mr. Collins claims that Chief Kuth gave him no explanation for this reassignment. See id.
at ¶ 15.
On December 12, 2023, Mr. Collins spoke with a City Council member, Bill Adams,
against whom Mr. Collins alleges Chief Kuth held a grudge. See id. at ¶ 19. Mr. Collins
“had earlier discussed his work on the wage survey with this Council member and had
expressed to the Council member his belief that he had been assigned to the patrol
division as retaliation for developing the wage survey.” Id. This is the second expressive
act for which Mr. Collins claims the City retaliated against him. The next day, he received
a phone call from his supervisor, who informed Mr. Collins that he was being fired but
would not tell him a reason why. See id. at ¶ 20.
As noted above, Count 1 of Mr. Collins’s Complaint alleges a violation of his right
to petition, while Count 2 alleges a violation of his right to free speech. The United States
Supreme Court has explained that “the right to speak and the right to petition are cognate
rights,” elaborating:
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Both speech and petition are integral to the democratic process, although
not necessarily in the same way. 	The right to petition allows citizens to
express their ideas, hopes, and concerns to their government and their
elected representatives, whereas the right to speak fosters the public
exchange of ideas that is integral to deliberative democracy as well as to
the whole realm of ideas and human affairs. 	Beyond the political sphere,
both speech and petition advance personal expression, although the right
to 	petition 	is 	generally 	concerned 	with 	expression 	directed 	to 	the
government seeking redress of a grievance.
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011).
However, although the rights to speech and petition differ in these nuanced ways,
the same framework applies to both of them when a public employee alleges that his
employer 	infringed 	these 	rights 	by 	retaliating 	against 	him 	for 	exercising 	them.
Specifically:
If a public employee petitions as an employee on a matter of purely private
concern, the employee’s First Amendment interest must give way, as it does
in speech cases. When a public employee petitions as a citizen on a matter
of public concern, the employee’s First Amendment interest must be
balanced against the countervailing interest of the government in the
effective and efficient management of its internal affairs. 	If that balance
favors the public employee, the employee’s First Amendment claim will be
sustained. If the interference with the government’s operations is such that
the balance favors the employer, the employee’s First Amendment claim will
fail even though the petition is on a matter of public concern.
Id.at 398 (internal citations omitted).
The City puts forward a variety of reasons why they contend his speech and
petition claims should be dismissed with prejudice, but the most fundamental reason is
that, they argue, Mr. Collins’s speech and petition did not enjoy any constitutional
protection in the first place because they were not made on matters of public concern. As
the Eighth Circuit has explained:
Whether an employee’s speech addresses a matter of public concern must
be determined by the content, form, and context of the speech, and the
speech must relate to some matter of political, social or other concern to the
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community. 	When a public employee’s speech is purely job-related, her
speech will not be deemed a matter of public concern. Unless the employee
is speaking as a concerned citizen, and not just as an employee, the speech
does not fall under the protection of the First Amendment. It is not enough
that the topic of an employee’s speech is one in which the public might have
an interest. We must determine whether the purpose of the speech was to
raise issues of public concern or to further the employee’s private interests.
Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002) (internal citations and quotation marks
omitted).
The facts of Sparr, the case just quoted, are analogous in many significant ways
to those of the instant matter, such that this Court believes Sparr essentially dictates the
outcome here. Barbara Sparr was employed in the Pulaski County, Arkansas Assessor’s
office as an administrative assistant to both the County Assessor, B.A. McIntosh, and the
Chief Deputy Assessor, Janet Ward. Id. at 591. Mr. McIntosh decided to retire, and Ms.
Ward began an electoral campaign to take his place. Id. Ms. Ward promised Ms. Sparr
that if she won the election, then she would promote Ms. Sparr to Chief Deputy Assessor.
Id. Although Ms. Sparr initially supported Ms. Ward’s candidacy, she eventually changed
her mind and advised Ms. Ward of this in a memorandum. 	Id. 	The memorandum
contained 	some 	politely 	worded 	but 	nevertheless 	harsh 	criticism 	of 	Ms. 	Ward’s
management style. 	Id. at n.1. 	Before giving it to Ms. Ward, Ms. Sparr showed the
memorandum to Mr. McIntosh, who encouraged her to give it to Ms. Ward but instructed
her not to provide a copy to the office’s Personnel Director. 	Id. at 592. 	But Ms. Sparr
gave a copy to the Personnel Director anyway, as well as to Ms. Ward. Id. Mr. McIntosh
learned that Ms. Sparr had given a copy to the Personnel Director, and fired her the next
day. Id.
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In Sparr, the Eighth Circuit ultimately held that Ms. Sparr’s actions could not be
fairly characterized as constituting speech on a matter of public concern, for two reasons.
First, although her memorandum contained matters that “could be of concern to the
public,” it was motivated primarily by her self-interest as an employee. 	See id. at 594–
95. Second, the record contained no evidence that Ms. Sparr ever intended to bring the
memorandum’s contents into the public eye before her employment was terminated. See
id. at 595. Therefore, her speech did not enjoy First Amendment protection. 	See id. at
596.
To be clear, there are times when a public employee’s statement may be on a
matter of public concern even when the statement is purely private, and must accordingly
receive First Amendment protection. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S.
410, 414 (1979). 	But in such situations, the statement typically is not motivated by the
speaker’s self-interest as an employee. 	So, for example, in Rankin v. McPherson, the
United States Supreme Court held that a county clerical employee’s private statement
regarding her opinions on the policies of the Presidential administration was made on a
matter of public concern. See 483 U.S. 378, 386 (1987). But when an employee’s purely
internal statement is motivated at least in part by his self-interest as an employee, then
“the internal nature of [the employee]’s speech is a factor to be considered” along with
the speech’s content to determine whether his self-interest as an employee outweighed
his interest as a citizen commenting on matters of public concern when making the
statement. See Sparr, 306 F.3d at 595.
Here, as in Sparr, Mr. Collins was fired after (1) providing a supervisor with a memo
which contained constructive criticism about the workplace, and (2) discussing the matter
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with another party who the supervisor preferred that he not discuss it with. In each case,
the memorandum discussed matters that pertained to the plaintiff’s job (Ms. Sparr’s
unwillingness to accept the position of Chief Deputy Assessor; the wages paid to Mr.
Collins and his coworkers) but that also were at least arguably matters of public concern
(the suitability of an electoral candidate for the position she sought; problems retaining
staff on the police force). But, in this case as in Sparr, Mr. Collins has not presented any
evidence showing that he intended to bring his wage survey’s contents into the public
eye. 	Quite the opposite, in fact: in a grievance he filed after his termination, Mr. Collins
stated that the goal of his wage survey “was to simply provide information to the command
staff of the Lowell Police Department so we could be better informed to move forward in
a sensible manner that could be both fiscally responsible and provide a boost to lagging
morale.” 	(Doc. 20-13, p. 2). 	Later in the same grievance, Mr. Collins stated that “[t]he
wage survey was an effort to collect data, make the command staff and administration
aware of the numbers to then be able to make informed decisions, and then potentially
use the information to better inform the City Council about the growing gap in wages for
critical public safety personnel compared to other municipalities . . . .” Id. at 5. Similarly,
the grievance form explains that in Mr. Collins’s conversations with Councilmember
Adams, he simply advised the latter of the wage survey’s findings, and that he had been
reassigned to night patrol in retaliation for his work on the wage survey. See id. at 5–6.
Simply put, the evidence in the record uniformly indicates that Mr. Collins only ever
intended 	to 	discuss 	the 	wage 	survey 	and 	retaliation 	with 	City 	employees 	and
policymakers who had the authority to take action upon these matters—not with members
of the general public. 	Viewing this fact in context with the wage survey’s contents, the
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Court finds as a matter of law that Mr. Collins’ speech actions here, however laudable his
motives may have been, were nevertheless motivated primarily by his interest as an
employee in his workplace and his job security rather than by his interest as a citizen
commenting on matters of public concern. 	Accordingly, his communications were not
entitled to constitutional protection, and Counts 1 and 2 of his Complaint must be
dismissed with prejudice.
B. Count 3, FMLA
In addition to his claims that he was fired in retaliation for his work on the wage
survey, Mr. Collins also alleges that he was fired so that the City could avoid fulfilling its
obligation under the FMLA to give him leave for cancer treatment. 	On November 29,
2023, Mr. Collins emailed his supervisor, with the human resources director copied, to
inform them that “in the next couple of months” he would need to receive treatment for a
recurrence of cancer. 	See Doc. 23-19, pp. 1–2. 	In that email, Mr. Collins recalled that
when he went through a similar treatment several years earlier he “didn’t miss much work
then” and that he was “hoping for something similar” this time as well. See id. The human
resources director responded with FMLA paperwork attached, explaining “I understand
you don’t anticipate missing much work, but this is still an FMLA qualifying event.” 	See
id. Mr. Collins was fired fourteen days later, on December 13, 2023.
“The FMLA was designed to protect, in relevant part, the reasonable medical
needs of employees with serious health conditions within the limits set by the employer’s
legitimate interest in managing its business.” Scobey v. Nucor Steel-Arkansas, 580 F.3d
781, 786 (8th Cir. 2009). It “entitles employees to take twelve weeks of leave from work
during any twelve-month period if the employee meets certain statutory requirements.”
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Boston v. TrialCard, Inc., 75 F.4th 861, 868 (8th Cir. 2023) (citing U.S.C. § 2612(a)(1)).
The Eighth Circuit has explained that there are three types of claims arising under the
FMLA:
(1) where an employer refuses to authorize leave under the FMLA or takes
other action to avoid responsibilities under the Act (an entitlement or
interference claim); (2) where an employee opposes any practice made
unlawful under the FMLA and the employer retaliates against the employee
(a retaliation claim); and (3) where an employer takes adverse action
against an employee because the employee exercises rights to which she
is entitled under the FMLA (a discrimination claim).
Id.
Mr. Collins’s Complaint does not specify which type(s) of FLMA claim he is
bringing. See Doc. 3, ¶¶ 29–32. The City’s Motion seems to assume Mr. Collins’s FMLA
claim is for retaliation; or, in any event, that is the type of FMLA claim around which the
Motion frames its arguments.1F
2 See Doc. 22, p. 16. However, in Mr. Collins’s deposition,
he (and counsel for the City) framed his FMLA claim as one for discrimination, based on
indirect rather than direct evidence. See Doc. 23-5, p. 3 (internally numbered as pp. 23:1–
25:14). 	For purposes of this Opinion and Order it makes no difference whether Mr.
Collins’s claim is for retaliation or discrimination (or entitlement, or interference, or any
combination of these) because the City’s arguments on summary judgment apply with
equal force (or lack thereof) to any type of FMLA claim.
2 Somewhat confusingly, although Section III.B of the City’s Motion is entitled “Collins’s
Termination was for Legitimate Reasons, Not FMLA Retaliation,” that Section concludes
with the assertion that “the City could not have discriminated against Collins, interfered
with his right to take leave, or denied any FMLA right,” and that therefore “there is no
basis for Collins’s claim of FMLA retaliation, discrimination, or interference.” 	See Doc.
22, p. 17.
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The City advances two arguments for dismissing Mr. Collins’s FMLA claim. First,
the City contends that Mr. Collins never provided proper notice of his need for FMLA
benefits. 	Second, the City maintains that his firing was for legitimate reasons, and not
related to his health issues.
Regarding notice, it is well-settled that in order to trigger an employer’s duties
under the FMLA an employee must give notice of their need for FMLA leave, but that “the
employee need not explicitly assert rights under the FMLA or even mention the FMLA”;
rather, “the employer’s duties are triggered when the employee provides enough
information to put the employer on notice that the employee may be in need of FMLA
leave.” 	Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 471 (8th Cir. 2007). 	That
obviously 	occurred 	here. 	As 	already 	mentioned 	above, 	Mr. 	Collins 	informed 	his
supervisor and the human resources director via email of his potential upcoming need for
medical leave, and the human resources director responded by informing him that this
was an FMLA-qualifying event and provided him with FMLA forms to fill out. 	See Doc.
23-19. The City maintains that Chief Kuth was not yet personally aware of Mr. Collins’s
potential need for medical leave at the time of his firing. 	But Mr. Collins’s supervisor
testified in his deposition that he is “sure” that he told Chief Kuth that Mr. Collins was
planning to take medical leave, though he could not recall the date and time when he did
so. See Doc. 23-7, p. 3 (internally numbered as pp. 26:18–26:24). At a minimum, then,
there is a material dispute of fact on this point, and a jury could reasonably infer from this
evidence that Chief Kuth in fact was aware of Mr. Collins’s medical situation at the time
of his firing.
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Regarding the reason for Mr. Collins’s firing: “[w]hether characterized as a
‘discrimination’ claim under § 2615(a)(1), or as a ‘retaliation’ claim under § 2615(a)(2),
[courts] require proof of the employer’s discriminatory intent.” 	Corkrean v. Drake Univ.,
55 F.4th 623, 630 (8th Cir. 2022). “Such proof may come from direct evidence or indirect
evidence using the McDonnell Douglas burden-shifting framework.” Id. (internal quotation
marks omitted) (citing McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973)). 	As
already noted, Mr. Collins conceded in his deposition that his FMLA claim is based only
on indirect evidence. Under the McDonnell Douglas framework:
To establish a prima facie case of FMLA discrimination, an employee must
show: (1) that he engaged in activity protected under the Act, (2) that he
suffered a materially adverse employment action, and (3) that a causal
connection 	existed 	between 	the 	employee’s 	action 	and 	the 	adverse
employment action. 	If the employee establishes a prima facie case, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its challenged actions. The employee may then demonstrate that
the proffered reason is pretextual, showing that the employer’s proffered
explanation 	is 	unworthy 	of 	credence 	or 	persuading 	the 	court 	that 	a
prohibited reason more likely motivated the employer. If an employer bases
its 	decision 	on 	an 	honestly-held 	belief 	unrelated 	to 	the 	FMLA, 	it 	is
nondiscriminatory even if that belief is mistaken.
Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861, 866 (8th Cir. 2015) (internal alterations,
quotation marks, and citations omitted).
Mr. Collins can easily establish a prima facie case here. He informed his employer
of his potential need for medical leave (a protected act), and he was terminated two weeks
later (an adverse action). And the Eighth Circuit has specifically held that a period of two
weeks between the protected activity and adverse action at issue “is sufficient, but barely
so, to establish causation” for purposes of a prima facie case. See Smith v. Allen Health
Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002). 	Chief Kuth, for his part, testified in his
deposition that he fired Mr. Collins for “insubordination,” because Mr. Collins “was saying
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that I was lying about not supporting [line officers] or helping them with wages.” See Doc.
20-5, pp. 13–14 (internally numbered as 35:19–36:4); see also id. at 15–16 (internally
numbered as 38:19–39:10). Thus the burden shifts back to Mr. Collins to show that this
reason is pretextual.
An employee may prove pretext by:
demonstrating that the employer’s proffered reason has no basis in fact,
that the employee received a favorable review shortly before he was
terminated, that similarly situated employees who did not engage in the
protected activity were treated more leniently, that the employer changed its
explanation for why it fired the employee, or that the employer deviated from
its policies.
Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006). 	Mr. Collins has
provided evidence of several of these things, which is sufficient to create a jury question
on the issue of pretext.
Evidence of shifting explanations includes the fact that at the time of his firing Mr.
Collins was not given any reason for his termination, see Doc. 23-7, p. 3 (internally
numbered as pp. 28:4–28:12), and that after his termination the police department
informed the Arkansas Division on Law Enforcement Standards and Training that Mr.
Collins was “Terminated for Non-Disciplinary Reasons,” see Doc. 23-26. 	Chief Kuth
conceded in his deposition that he never counseled or had any discussion at all with Mr.
Collins about the reason for his firing before terminating his employment. See Doc. 23-
6, pp. 8–9 (internally numbered as pp. 36:10–38:3). Mr. Collins has placed into the record
the “only formal annual evaluation available to Plaintiff,” (Doc. 24, ¶ 4.B), from the year
2021, which rates him as “exceeds expectations” in every category and which contains
glowing praise of his performance throughout, see generally Doc. 23-13.
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Chief Kuth also conceded that he did not conduct any investigation into the
allegations that Mr. Collins called him a liar before firing him. 	See id. at 9 (internally
numbered as pp. 38:4–39:14). 	However, the Lowell Police Department Policy &
Procedures Manual requires investigations to be conducted into allegations of employee
misconduct before disciplinary measures are taken, and provides procedures to be
followed in such investigations. See Doc. 23-12, pp. 6–9, § 24. Mr. Collins testified that
he had extensive experience on internal investigations for prior allegations of employee
misconduct, and that to his knowledge he was the first person ever fired from the police
department without having first been counseled about his alleged misconduct or given a
performance improvement plan or having been the subject of a formal investigation. See
Doc. 23-5, pp. 9–11 (internally numbered as 49:25–54:23). He provided several specific
examples of department employees who were accused of much worse misconduct than
his own alleged misconduct and who were formally investigated before disciplinary action
was taken against them. See id. Finally, Mr. Collins denies that he ever called Chief Kuth
a liar; and, as noted above, Mr. Collins’s supervisor has testified that he informed Chief
Kuth of Mr. Collins’s potential need for medical leave before the firing. 	A jury could
reasonably infer from all of this that the City’s proffered reason for firing Mr. Collins was
pretextual. Therefore, summary judgment on Mr. Collins’s FMLA claim is inappropriate.
III. 	CONCLUSION
IT IS THEREFORE ORDERED that Defendant City of Lowell, Arkansas’s Motion
for Summary Judgment (Doc. 18) is GRANTED IN PART AND DENIED IN PART. Counts
1 and 2 of Plaintiff Christopher Collins’s Complaint (Doc. 3) are DISMISSED WITH
PREJUDICE. Count 3 will be set for trial.
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IT IS SO ORDERED this 1st day of May, 2025.
_______________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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