Green v. City of N. Little Rock

2012 Ark. App. 21

388 S.W.3d 85

Tim GREEN, Appellant

v.CITY OF NORTH LITTLE ROCK, Appellee.

No. CA 11–586.

Court of Appeals of Arkansas.

Jan. 4, 2012.

Luther Oneal Sutter II, Benton, for appellant.

John Lennon Wilkerson, North Little Rock, for appellee.

DOUG MARTIN, Judge.

[Ark. App. 1]Appellant Tim Green, a former North Little Rock police officer, appeals from the decision of the Pulaski County Circuit Court granting the motion for summary judgment filed by the appellees, collectively referred to herein as “the City of North Little Rock” or “the City.” ¹

Green began working as a police officer for North Little Rock in 1997. During his tenure as a police officer, he was married to Carmen Green, who was also a North Little Rock police officer. On January 2, 2007, Carmen Green approached North Little Rock Police Lieutenant Brian Scott and conveyed an allegation that Tim Green was using steroids. [Ark. App. 2]Scott relayed the allegations to Captain Donnie Bridges that same day, informing Bridges in a memorandum that Carmen Green had advised Scott that she had discovered a large bag of syringes in her home; in addition, Ms. Green said that she had researched her bank statements and discovered payments for suspected steroids to a company from overseas.

Upon receiving this information, Bridges notified North Little Rock Police Chief Danny Bradley of the allegations. Bridges and Bradley contacted Captain Mike Davis, Tim Green's supervisor, and discussed Carmen Green's allegations. At that meeting, Davis informed Bradley of two recent hostile encounters between Green and two other North Little Rock Police Department officers. Bradley also recalled seeing Green recently and noticing that he had “become swollen and bloated,” according to Bridges's affidavit. Bradley concluded that, while Carmen Green's allegations alone might not warrant the ordering of a drug test, her allegations, combined with the two hostile encounters and Bradley's personal observations, amounted to reasonable suspicion that Green was using steroids.

At that point, Bradley ordered Green to submit to a drug test pursuant to the Police Department's “Alcohol and Drug Policy,” which provides that members of the police force “shall be required to submit to chemical testing ... [w]hen the City has reasonable suspicion that a member has violated [the Police Department's] prohibitions regarding use of alcohol or drugs.” Bridges informed Green that he was required to take the “reasonable suspicion” drug test, and on January 9, 2007, Lieutenant Jim Scott and Sergeant Janice Jensen (both of whom were officers with the department's Professional Standards division) transported Green to the testing facility, where Scott read Green the “reasonable suspicion” paperwork. Green [Ark. App. 3]signed the form, was photographed, and provided a urine sample. In addition, Green was placed on administrative leave by Bradley.

The sample was analyzed by Dr. Richard Doncer, who contacted Scott and informed him that Green had tested positive for high levels of the anabolic steroid Nandrolone. Dr. Doncer's official test results, however, contained the following conclusion:

After review of the data on Officer Tim Green's drug test, I have made the final interpretation as a negative test. He did have a legal use administered by a physician in the past. Due to the uncertainty and poor data available regarding the metabolism and detectability of the drug (Nandrolone), I feel that this is the correct decision.

Perhaps, you may want to advise the donor to refrain from future use, even if prescribed legally. You may also want to randomly drug test him in the coming months to assure his levels are declining.

On February 1, 2007, Bradley wrote a letter to Green advising that Green was being released from administrative leave and returned to his regularly scheduled duties in the patrol division. On February 5, 2007, Green completed a “work environment survey” in which he claimed to be aware of “behaviors in the workplace” that violated the Police Department's discrimination and harassment policy. Green was interviewed by Lieutenant Scott and Sergeant Jensen about his claims on February 14, 2007. During that interview, Green complained about “what was done to [him] on January the 9th being placed on administrative leave due to false allegations by members of this department.” Green also asserted that he was treated in a “threatening and intimidated [sic] manner” when he was called and when he tried to explain that he had a prescription for the steroids. Green further [Ark. App. 4]advised Scott and Jensen that he did not know the nature of the reasonable suspicion underlying his drug test, and he complained that no one would tell him.

On March 19, 2007, Bradley sent Green a letter in which Bradley related that “the complaint that you voice in your statement does not fall under the purview of [the Department's discrimination and harassment policy] or any other department policies, rules, regulations, standards of conduct dealing with illegal discrimination or harassment; therefore, no further investigation of your complaint will be conducted.” Bradley did, however, schedule a meeting with Green to discuss the complaint.

Bradley and Davis met with Green on May 16, 2007, after which Bradley wrote an internal memorandum to memorialize the discussion that was had. Bradley wrote that Green felt he was subjected to the drug testing and was being treated differently because of his pending divorce from Carmen Green. Bradley advised Green, “that certainly was not a motivation on my part, nor did I have any knowledge of it being a motivation of any other supervisor in this department.”

Green apparently made no further complaints about the situation, and he received commendations from the Police Department on July 30, 2007 and September 11, 2007, as well as a letter of recognition on November 9, 2007. Green received a pay raise in July 2007.

Green sustained an on-the-job injury to his knee on December 10, 2007, while responding to a police service call. He sought workers' compensation benefits, and on December 11, 2007, his physician, Dr. Vander Schilden, recommended that Green be taken off work until further notice. Green received workers' compensation benefits until February [Ark. App. 5]27, 2008. In addition, he was given “injured-on-duty days,” meaning he was entitled to full pay while recovering from his injury, from December 11, 2007, the day after his injury, until January 27, 2008.

Green submitted the initial paperwork for taking leave pursuant to the Family and Medical Leave Act (FMLA) to Bradley on December 10, 2007. Green never completed the paperwork, however. On December 12, 2007, Green filed an application for duty-disability retirement with the Arkansas Local Police and Fire Retirement System (LOPFI). On December 26, 2007, a representative from LOPFI contacted Bradley to inform him that Green had applied for duty-disability retirement and to seek a written statement certifying whether the disability was duty-related. Bradley advised LOPFI on January 3, 2008, that Green injured his knee while responding to a service call and that the Department did not oppose Green's application for disability retirement.

On January 31, 2008, Dr. Vander Schilden released Green to return to a “desk-type occupation until a determination is made by the medical board as to the status of his medical retirement.” In a separate note dated that same day, Dr. Vander Schilden advised that Green was capable of returning to a desk-type job on January 28, 2007, but the doctor did not want Green returning to work in any capacity while he was taking pain medication. Dr. Vander Schilden again stated on February 4, 2008, that Green could return to work in a “desk-type capacity.”

Based on Dr. Vander Schilden's representations, Bradley assumed that Green would seek light-duty work when he returned to duty, and Bradley thus began filling out the [Ark. App. 6]appropriate paperwork that would allow Green to do so. The “Light/Modified Duty Agreement” provided that Green could perform light-duty work in the service division of the Police Department from February 4, 2008, until February 18, 2008.

On February 8, 2008, however, Green sent an interdepartmental communication to Bradley informing the chief that Green intended to resign, effective as of February 22, 2008. Green's supervisor, Captain Davis, received this letter on February 14, 2008. On that same date, Bradley approved Green for light-duty work. When Bradley received Green's resignation letter, however, he rescinded his decision to allow Green to work a light-duty position.² Bradley explained in an affidavit as follows:

Upon reflection of ... Green's medical retirement, which I believed meant that he was claiming a disability and could not return to work; his resignation, which also meant he would not be returning to work; and the “light-duty” policy, which limits “light duty” positions to those who are going to return to work, I decided to rescind my decision concerning ... Green's “light duty” position.

In a deposition, Bradley stated, “I mean, he's leaving the department, so there's no point in continuing his light duty.” Bradley denied, however, that he would ever have denied Green light duty in order to force a retirement.

Upon receiving Bradley's rescission of the light-duty agreement, Green submitted a revised resignation letter in which he expressed his belief that he was “being discriminated [Ark. App. 7]against and treated unfairly.” Accordingly, Green announced his intention to make his resignation effective February 19, 2008.

Green filed a complaint ³ against the City on December 15, 2008, alleging that, on January 9, 2007, the City caused Green to be arrested without probable cause, drug tested, and placed on administrative leave. Green also alleged that, by virtue of the drug test, he was deprived of his right to be free from...