Labor & Employment Law Daily Wrap Up, DISCHARGE—W.D. Ark.: Officer fired after personal wage survey gets speech claims tossed, FMLA claim advances, (May 5, 2025)

By Marjorie Johnson, J.D.

“[H]owever laudable his motives may have been,” his actions 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.”

A police officer terminated ostensibly for insubordination after he conducted a personal wage survey and raised concerns about officer pay failed to survive summary judgment on his claims that his firing violated the Arkansas Constitution’s free speech and assembly protections since he was primarily motivated by his own personal interests, ruled a federal district court in Arkansas. However, a jury will decide whether the city violated the FMLA by firing him 14 days after he requested FMLA leave to undergo treatment for a cancer reoccurrence since pretext could be inferred from ample evidence of shifting explanations, disparate treatment, and the police chief’s failure to follow investigatory and disciplinary policies and procedures (Collins v. City of Lowell, No. 5:24-cv-05122-TLB (W.D. Ark. May 1, 2025)).

Wage survey discussion. The officer began working for the police department (PD) in 2017. In 2023, he conducted a wage survey and learned that that PD staff received lower wages than other local law enforcement agencies. The survey was not a task assigned to him in the course of his employment but rather was something he undertook on his own initiative to address what he perceived as low morale. On October 31, he communicated the results to the police chief and others. On November 17, the chief reassigned him, with no explanation, from his day-shift position as a detective to a night-shift position as a patrol officer.

Fired after complaining to council member. On December 12, the officer spoke with a city council member with whom he had previously discussed the wage survey and expressed his belief that he was reassigned as retaliation for developing the wage survey. The next day, his supervisor informed him in a phone call that he was being fired but did not tell him a reason why.

Cancer-related leave request. Meanwhile, on November 29, the officer sent an email advising his supervisor and the HR director that “in the next couple of months” he would be receiving treatment for a recurrence of cancer. He recalled that when he went through a similar treatment several years earlier, he “didn’t miss much work” and was “hoping for something similar.” The HR director responded with FMLA paperwork attached, explaining “I understand you don’t anticipate missing much work, but this is still an FMLA qualifying event.” His firing occurred 14 days later.

Speech related to private interests. The court first found that the officer failed to survive summary judgment on his claims that the city violated his rights to petition and engage in free speech under the Arkansas constitution. Notably, he was fired after he provided the chief with a memo which contained constructive criticism about the workplace and also discussed the matter with another party who the chief preferred that he not discuss it with. The memo discussed matters that pertained to his job (the wages paid to him and his coworkers) but that also were at least arguably matters of public concern (problems retaining staff on the police force).

However, he did not present any evidence suggesting that he intended to bring his wage survey’s contents into the public eye. Moreover, statements that he made in his post-termination grievance further indicated that he 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.

Notice of need for FMLA leave. Though the officer did not specify which type(s) of FMLA claim he brought, the court ultimately found that the city’s arguments failed regardless. First, the city argued that he never provided proper notice of his need for FMLA benefits. However, his email to his supervisor and the HR director provided enough information to put the city on notice that he may be in need of FMLA leave. Insofar as the city also claimed that the police chief was not aware of his potential need for medical leave when he made the termination decision, a triable issue existed since the officer’s supervisor testified that he was “sure” that he told the chief that the officer was planning to take medical leave, though he could not recall the date and time when he did so.

Causation. Next, the officer could establish his prima facie case since he was terminated 14 days after he advised the city of his potential need for medical leave. Significantly, the Eighth Circuit has held that a period of two weeks between the protected activity and adverse action at issue “is sufficient, but barely so, to establish causation.”

Pretext. Finally, the officer presented sufficient evidence to cast doubt on the chief’s testimony that he fired him for insubordination because he “was saying that I was lying about not supporting [line officers] or helping them with wages.” First, pretext could be inferred from evidence of shifting explanations since the officer was not provided any explanation at the time of his firing, and the police department informed the Arkansas Division on Law Enforcement Standards and Training that he was “Terminated for Non-Disciplinary Reasons.” Moreover, the chief admitted he never counseled the officer about the reason for his firing before terminating him, and the only formal evaluation the officer received rated him as “exceeds expectations” in every category.

In addition, the chief conceded that he did not follow PD policy requiring investigations to be conducted into allegations of employee misconduct before taking disciplinary measures. The officer also stated that to his knowledge he was the first person ever fired from the PD without having first been counseled about his alleged misconduct or given a performance improvement plan or having been the subject of a formal investigation. He also provided several specific examples of staff members who were accused of much worse misconduct and formally investigated before being subjected to any disciplinary action.

The case is No. 5:24-05122-TLB.

Judge: Brooks, T.

Attorneys: Stephen Lee Wood (Law Offices of Stephen Lee Wood, PA) for Christopher Collins. Sara L. Monaghan (Arkansas Municipal League) for City of Lowell, Arkansas.

Companies: City of Lowell, Arkansas

Cases: Discharge EmployeeLeave IndividualRights PublicEmployees Retaliation StateLawClaims ArkansasNews