Brown v. United Parcel Servs., Inc. , 531 S.W.3d 427 ( 2017 )

Cite as 2017 Ark. App. 501
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-17-41
DEBBIE JEAN BROWN AND LOUISE OPINION DELIVERED: OCTOBER 4, 2017
PILZ
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SIXTH DISTRICT
[NO. 60CV-13-4093]
V.
HONORABLE TIMOTHY DAVIS
FOX, JUDGE
UNITED PARCEL SERVICE, INC.
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Judge
Debbie Jean Brown and Louise Pilz filed suit against their employer United Parcel
Service, Inc. (UPS), for violations under the Arkansas Civil Rights Act (ACRA). 1 Ark.
Code Ann. §§ 16-123-101 to -108 (Repl. 2016). Following a jury trial in the Pulaski
County Circuit Court, a verdict was rendered in favor of UPS. Appellants argue on appeal
that the trial court erred in denying their motion for directed verdict and in rejecting their
proposed jury instruction on UPS’s “honest belief” defense. We affirm.
Brown filed her complaint against UPS on October 16, 2013, alleging that she had
been subjected to gender discrimination and retaliation at her workplace. She claimed that
UPS had violated the ACRA by retaliating against her, harassing and intimidating her, and
refusing to promote her. On October 11, 2014, Brown’s complaint was amended and
1
Along with UPS, Stan Roux, Kim Loftin, and Todd Hyden were named as
defendants, but claims against them were nonsuited at trial, and no further claims have been
filed against them.
Cite as 2017 Ark. App. 501
supplemented to add Pilz’s allegation that she had been denied the same benefits as males
who work for UPS and had been denied equal pay in violation of the Arkansas Equal Pay
Act. Both appellants sought general and punitive damages. UPS responded, denying
appellants’ allegations.
At trial, Naaman Kelley, Jimmy McClure, Cedric Williams, Quentin Goodwin, and
Dante Tippin testified on behalf of appellants. Naaman Kelley, a twenty-seven-year
employee with UPS working in Little Rock as division manager, testified that Brown is a
female part-time supervisor for UPS in Little Rock. He said that UPS had not been very
consistent with respect to its promotional process during his tenure. He said that Brown is
an outstanding person, tells the truth, and is qualified for “any job in that hub.” He
explained that MAPP (Management Assessment and Promotion Process) is similar to an
aptitude test. He said that if UPS follows its policy, the MAPP test must be passed in order
for anyone to be considered for a full-time slot. He said that he had been told by Charlotte
Westmoreland, who had previously worked in the human-resources department, that
Brown had passed the MAPP test. He said that if Brown had failed it, there should be a
record. He testified that of all the supervisors that had been working “out there,” very few
approached or exceeded Brown’s qualifications. He said that over the last four or five years,
Brown had not passed the MAPP test, and he had told her several times to take it again.
He said that he did not believe that Brown was being discriminated against, retaliated against,
or treated unfairly. He thought that the promotional practice was being unfairly
administered. He stated that to be qualified for a promotion one must pass the MAPP test
and that Brown had not, to his knowledge, passed it under his tenure. Even though he was
2
Cite as 2017 Ark. App. 501
told she had passed it prior to his tenure, he did not go and look at the actual document.
He said that Brown had not met the requirements for promotion during his tenure.
Jimmy McClure testified that he is the area human-resources manager in Arkansas
for UPS and before that had worked at the Little Rock hub. He said that Brown is a good
employee who knows her job. He thought Brown could cover for a full-time supervisor
and that it was not uncommon for a part-time supervisor to do so. A part-time supervisor
is guaranteed 27.5 hours a week. He said that he knew of some of Brown’s complaints but
could not remember specific conversations with others in management. He also knew that
Brown had engaged in protected activity by instigating a lawsuit and that meant she should
not be retaliated against. He thought that Brown could “possibly” be a full-time supervisor
in the absence of the MAPP requirement. He said that he did not know if Brown had the
skill set to perform the job function of full-time supervisor.
McClure said that Pilz works in the Texarkana facility as a part-time supervisor. He
said Pilz had passed MAPP, and he was aware of her claim that she should have been
promoted. He said that Pilz was a good, loyal employee at UPS. He acknowledged that
James Thompson had been promoted in Texarkana and that Thompson had a lot of
experience driving a package truck. He said that Pilz did not have driving experience and
that there is a preference for driving experience in the position of on-car supervisors.
Cedric Williams testified that he is the twilight hub manager at UPS in Little Rock
and that Brown works for him in the hub. He said that he was testifying under subpoena
and that he supports Brown’s position in this case. When he took his current position,
Brown talked to him a lot about how to run the hub. He said that Brown could be a full-
3
Cite as 2017 Ark. App. 501
time supervisor “without a doubt.” He said Brown always arrived around two hours before
her shift started and worked off the clock. He said that he was “talked to” about having a
conversation with Brown to tell her to stop working off the clock, but he never told her to
quit coming in early. He said that Brown worked full-time supervisor’s hours.
Quentin Goodwin testified that he has worked at UPS for nineteen years and that
he had supervised Brown in 2007-2008. He said that he could not name a more qualified
person in hub operations than Brown. He said that Todd Hyden knew that Brown had
been coming in early back in 2007-2008 and that Brown deserved to be a full-time
supervisor based on her skills and ability. He said that Brown was more qualified than
Antonio Rich, who is a hub supervisor. He said that he had worked in Texarkana in 2014
and that Pilz was a go-getter. He said that Kim Loftin in Texarkana had needed assistance,
and Goodwin had helped him “with some rides.” He said that there is a preference for full-
time supervisors to have driving experience, but a preference is not the same as a
requirement. Texarkana is one of the most complicated centers in the district. Goodwin
said that because there are all kinds of operational concerns in the Texarkana hub, “we’d
like to have full-time supervisors with driving experience.” He said that he had told Brown
to stop working off the clock in 2008. He said that he had been told that Brown had passed
MAPP, but he did not have access to her scores.
Dante Tippin testified that he is a business manager with UPS and had been in
Texarkana from September 2004 until April 2008 as an on-road supervisor. He said that
Pilz was hired after he began there, and she was a part-time package-center supervisor. It
was his opinion that driving experience would be helpful in a supervisor’s job.
4
Cite as 2017 Ark. App. 501
Louise Pilz testified that she performs full-time supervisor duties, but she has never
made more than $38,000 a year at UPS. She said that Kim Loftin was her center manager
for a year and a half. She said that she began work as a temporary employee in June 2005
and that after two months she took a management test, passed it, and began working in
September 2005 as a part-time supervisor. In November 2005, Pilz was made a permanent
employee.
Pilz said that she performs the job of full-time supervisor in some areas and regularly
exceeds thirty-three hours a week. She said that she works in the evenings and that there
is not a full-time supervisor working at that time. She testified that she is sixty-five years
old and loves her job. She said that she wants equal pay as a full-time employee and that
she does not have any driving experience. She said that Kim Loftin had not given her an
opportunity to get that training, and she had not asked him, or anyone, what she needed to
do. She thought that after she had passed MAPP she was qualified and eligible to be a full-
time supervisor or a full-time specialist. She claimed that no one ever told her that she
needed driving experience. She said that Loftin had lied to her when he told her there was
no opening for a full-time supervisor. She said that James Thompson, a driver from Fort
Worth, got the position and that Thompson did not have any supervisory experience. She
said that she felt like she had been stepped over for promotion because she is a female and
that her hours were changed in retaliation for her not being able to go in to work early on
two occasions. She applied for two on-car supervisor positions in 2014 and was not hired.
Pilz also complained that she worked by herself at night with no way to lock the doors. She
said that when the locks were replaced, the doors could only be locked from the outside,
5
Cite as 2017 Ark. App. 501
which did not help her to feel more secure. She said that other than the friction with Kim
Loftin, she had been treated fairly by everyone at the Texarkana center.
Raymond Battle testified that he has been with UPS since 1976 and is the division
manager for three-quarters of Arkansas. He is responsible for the Texarkana center, and he
was the division manager in Texarkana in 2013 and 2014. He said that he relied on Kim
Loftin’s recommendation in filling the positions in Texarkana, that he had never considered
Pilz for any promotion, and that Thompson had driving experience and no management
experience. He said that lack of driving experience would not disqualify someone from an
on-car supervisor job but neither would lack of managerial experience. He said that he
relied on Loftin to make recommendations for those jobs. He said that even if Pilz had
been in the selection pool, he would have picked the driver with the nine- to ten-year
driving experience. He said that he did not hire Pilz for the second vacancy because he
needed someone with driving experience. He said that the females in his division in
Texarkana are given equal opportunities for career advancement.
Yakisha Sherman testified that she is a full-time twilight-retention and training
supervisor for UPS in Little Rock and had previously been in human resources as a part-
time supervisor. She said that she thought Brown was a great employee, could do a full-
time supervisor’s job, and had some “absenteeism.” Sherman said that she had initiated
MAPP for herself in 2008. She said that she was required to take a couple of tests and
undergo a panel interview, and then she was told she was MAPP qualified, which was a
necessary step for promotion. She said that there had been no one who had been promoted
6
Cite as 2017 Ark. App. 501
from part-time to full-time who had not gone through that process. Full-time supervisors
go to presort meetings and part-time supervisors do not.
James Kent Hardy testified that he has worked at UPS for thirty-five years and is an
on-road supervisor. He knew Brown when she had worked for him as a part-time
supervisor in 2002, 2003, or 2004. He said Brown was “excellent.” He said that one had
to have initiative to climb the ladder at UPS and that a manager’s support was also needed.
He did not have reason to believe that either Pilz or Brown had been treated differently
based on their gender or had been retaliated against.
Debbie Jean Brown testified that she is sixty years old and has worked at UPS for
nineteen years. She said that she is a part-time supervisor but had fulfilled every role except
float control because “they said I was too valuable on the floor to give up.” She believes
that she has been passed over for promotion, and she named Yakisha Sherman, who was
promoted, as having less experience than she does. She also named five men in management
who knew she had “held full-time positions.” She said that she had been working off the
clock, knew it was an integrity violation, but that if she had not done it, “our sort would
not be able to run.” She said that she is a team player. She said that Antonio Rich had
been promoted in 2010 or 2011 after they had been told not to bother putting in a letter
for promotion. Based on that, she made a complaint on UPS’s 1-800 number and called
Stan Roux. She also described an incident in which Todd Hyden called her “useless as a
used car salesman.” She said that Hyden had done nothing but belittle her, call her illiterate,
and that because of the way she had been treated, she missed a lot of work due to stress.
She said in part:
7
Cite as 2017 Ark. App. 501
It’s who you know, not what you know gets you a job out there, gets you a
promotion. There’s nothing fair about it. I think it’s retaliation because I’m not a
man; I am a white-American-Indian female, outspoken; and I do not play games.
Brown said that she had passed the MAPP test in 2008, but she had not seen a
document reflecting that. On cross-examination, she said that she knew MAPP was the
first step in the process to becoming promotion eligible, but she said that no one had told
her about MAPP until it had been “out over a year.” She complained that “they did not
communicate out there like they should.” She testified that the UPS manual explains the
MAPP process, which contains four parts. She understood that after completing the four
steps, she would be placed into a pool for consideration for promotion. She said that she
was told that she did not pass the test in 2011, but she did not believe that she had failed it.
She said that she never proceeded to the fourth step, which is the panel interview.
Therefore, she had never gone through the four steps to be placed into the pool for
consideration. She said that she did not know how many times she had initiated the MAPP
process since 2008.
Stan Roux testified that he is the director of human resources at UPS for the Central
Plains District. He has had discussions with Brown and had looked into whether she was
eligible for promotion. He said that he had good reason to believe that she did not pass the
MAPP test.
After these witnesses testified, UPS moved for a directed verdict on each of
appellants’ claims, and the motion was denied. However, the trial court granted UPS’s
motion for a directed verdict on the issue of punitive damages.
8
Cite as 2017 Ark. App. 501
Kim Loftin, Todd Hyden, Stan Roux, Charlotte Westmoreland, and Jimmy
McClure testified on behalf of UPS. Loftin testified that he has worked for UPS for twenty-
eight years and is currently at the Fort Smith facility, but he had worked as business manager
in the Texarkana facility from April 2013 until September 2014. He said that Pilz had
worked for him and that she had not performed the job duties of a full-time, on-road
supervisor. He distinguished Pilz’s job from full-time supervisory jobs. He said that there
had been two vacancies for on-road supervisor positions in Texarkana in 2014. The first
job was filled by James Thompson. The job was posted through the MCO (a UPS on-line
job posting) process after it had been determined there was no one in Texarkana who could
fill the job. He said that they had been looking for someone with extensive on-road
experience. He denied trying to hide the vacancy from Pilz and said that he did not
remember talking with her about the opening. He said that Pilz is a great worker and that
he had never had a problem with her. He said that the second job opening was filled by
someone with on-car supervisor experience. He said that he had changed Pilz’s hours
because he was implementing new controls. He said that he did not decide on which locks
needed to be different or who needed access to certain areas; the security department made
those decisions. He did not remember Pilz complaining about the door locks. He did not
have an issue with Pilz, and he thought she was a good worker. He said that he did not
consider gender in making his referrals.
Todd Hyden testified that he works as a division manager for UPS and had been at
Little Rock for nine and a half years. He discussed the operations of the Little Rock hub
and the job duties of various positions. He said that he was not aware of any other off-the-
9
Cite as 2017 Ark. App. 501
clock issues since the one that had been addressed by UPS when a supervisor was asking
workers not to record all their time. He said he did not consider gender in his promotions
and that UPS had a policy against it. He identified a list of MAPP-qualified candidates dated
December 28, 2010, and Brown’s name was not on it. He said that he gets those lists in the
regular course of business and that he had never seen Brown’s name listed. He said that he
had promoted women who had been MAPP qualified. He said that he did not remember
calling Brown “useless as a used car salesman.” He denied making the comment but said
he had apologized to Brown because he would have been apologetic if she felt that he had
made that comment. He said that he had no issues with Brown and that she had done a
good job and is a good employee. He said that Brown had not been promoted because she
had never been MAPP qualified.
Stan Roux testified that UPS has a policy prohibiting discrimination or harassment
in the workplace. He also identified UPS’s response to the lawsuit Brown had filed with
the EEOC in 2010. Roux said that he had responded to the lawsuit by stating that Brown
had never submitted a letter of interest or expressed interest in initiating MAPP. He said
he no longer thought the statement he had made in the response was complete.
Charlotte Westmoreland testified that she works at UPS in Houston, Texas, and had
worked in Arkansas for UPS for twenty-three years. When she worked in Little Rock, she
was promoted from data-entry clerk to damage and over-good clerk, to preloader, to part-
time supervisor, to package-car driver, and to full-time supervisor for the preload. She had
taken a test to be qualified before she became a full-time manager, then she had to go
through a panel interview. She said that this was “before MAPP.” She testified to several
10
Cite as 2017 Ark. App. 501
promotions following her position as full-time preload supervisor and said she had been the
administrator of the MAPP process, ensuring that all the processes were completed. There
had been a scoring sheet for each applicant who had applied for a management position.
She identified a scoring sheet for Brown dated March 30, 2006, showing that Brown had
completed an initial assessment and had passed, but she did not complete the process. Brown
failed the initial assessment in 2007, and in 2009 she passed the initial assessment but did not
complete the process because she did not take the AP test.
Jimmy McClure testified that MAPP has been replaced by MRE (Management
Ready Evaluation), and there is currently a different process for part-time supervisors, but
he could not recall its name. He did not know if passing a test was a requirement for part-
time supervisor under the current MRE.
At the conclusion of the evidence, UPS renewed its motion for directed verdict on
appellants’ claims, and it was denied. Appellants moved for summary judgment as a matter
of law on UPS’s affirmative defense of “good faith belief,” and that motion was also denied.
Appellants objected to the “business judgment” jury instruction, which required UPS to
present a good-faith belief to successfully defend against appellants’ claims. The trial court
overruled the objection, and the following jury instruction was given:
In making a business decision, Defendants are only required to have a good-faith
belief, created through a reasonable reliance on the specific facts known to them at
the time the promotional decisions were made. When deciding Plaintiffs’ motion
claims therefor, the key inquiry is assessing whether the decisions to not promote,
either was motivated by their gender or protected activity, or whether the decisions
were made by Defendant’s honest belief that Ms. Brown was not eligible for
promotion, and Ms. Pilz did not have the driving experience needed to be an on-
road supervisor in Texarkana. The key question is whether the decisions not to
promote either Plaintiff was motivated by an honest belief.
11
Cite as 2017 Ark. App. 501
Appellants proffered the above instruction with the additional language, “Defendant bears
the burden of proving its good faith belief.” Several other objections and rulings followed,
but none are the subject of this appeal. After the jury deliberated, it found for UPS on each
claim.
The ACRA provides citizens of this state legal redress for civil-rights violations of
state constitutional or statutory provisions, hate offenses, and discrimination offenses. See
Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The ACRA also
seeks to prevent retaliatory conduct against those seeking its protection. See id. The Act
unequivocally grants to qualified persons the right to be free from employment
discrimination “because of gender.” Ark. Code Ann. § 16-123-107(a)(1).
UPS identified the framework in Arkansas for reviewing gender-discrimination cases
as follows:
If the plaintiff can demonstrate that an illegitimate criterion was a motivating
factor in the employment decision, the burden shifting formula set out in Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), is
applied. . . . If the plaintiff is unable to produce evidence that directly reflects the use
of an illegitimate criterion in the challenged decision, the employee may proceed
under the now-familiar three-step analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under
this test, the burden of persuasion never leaves the plaintiff, but there is a shift in the
burden to come forward with evidence: (1) the plaintiff must present a prima facie
case consisting of four distinct elements; (2) the defendant must rebut the prima facie
case by showing nondiscriminatory reasons for termination; and (3) the plaintiff must
show the reasons are pretextual.
Flentje, 340 Ark. at 571, 11 S.W.3d at 537 (quoting Stacks v. Sw. Bell Yellow Pages, Inc., 996
F.2d 200 (8th Cir.1993)). 2
2
Flentje involved an appeal of summary judgment granted in favor of an employer in
a gender-discrimination suit under the ACRA. Because Flentje contained issues of first
12
Cite as 2017 Ark. App. 501
On appeal to this court, appellants argue that the trial court erred in “denying [their]
motion for a directed verdict on [UPS’s] affirmative defense of good faith belief and
instructing the jury on that defense.” Appellants’ second point on appeal is that, “even if
an ‘honest belief’ instruction were appropriate, the trial court erred in rejecting [appellants’]
proposed instruction, which made it clear that the burden of proof was on [UPS].” These
arguments hinge on appellants’ insistence that UPS bore the burden of proof at trial.
In support of their burden-of-proof argument, appellants urge this court to determine
whether the jury’s verdict for UPS is supported by substantial evidence. ConAgra Foods, Inc.
v. Draper, 372 Ark. 361, 276 S.W.3d 244 (2008). The ConAgra court stated,
Our standard of review of the denial of a motion for directed verdict is
whether the jury’s verdict is supported by substantial evidence. Crawford County v.
Jones, 365 Ark. 585, 232 S.W.3d 433 (2006); Stewart Title Guar. Co. v. American
Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005); Ethyl Corp. v. Johnson,
345 Ark. 476, 49 S.W.3d 644 (2001). Similarly, in reviewing the denial of a motion
for JNOV, we will reverse only if there is no substantial evidence to support the
jury’s verdict, and the moving party is entitled to judgment as a matter of law. Id.
Substantial evidence is that which goes beyond suspicion or conjecture and is
sufficient to compel a conclusion one way or the other. Id. It is not our place to try
issues of fact; rather, we simply review the record for substantial evidence to support
the jury’s verdict. Id. In determining whether there is substantial evidence, we view
the evidence and all reasonable inferences arising therefrom in the light most
favorable to the party on whose behalf judgment was entered. Id. A motion for
directed verdict should be denied when there is a conflict in the evidence, or when
the evidence is such that fair-minded people might reach different conclusions. See
McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007) (citing Wal-Mart Stores,
Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991)).
Id. at 364, 276 S.W.3d at 247–48.
impression under the ACRA—pregnancy-gender discrimination—the Arkansas Supreme
Court reviewed federal decisions for persuasive authority on which to base its analysis.
13
Cite as 2017 Ark. App. 501
UPS contends that the substantial-evidence standard is not strictly applied in cases
like this one in which the appealing parties are also the parties with whom the ultimate
burden of proof rests. UPS contends that as long as there is any evidence to support the
jury’s verdict in UPS’s favor, regardless of whether the evidence is substantial, the verdict
must stand.
Where the sufficiency of the evidence to support a verdict is the issue on
appeal, the standard of review is whether the verdict is supported by substantial
evidence. Obviously in appeals from a verdict for the defendant the rule cannot
always be read literally, as the defendant may have introduced little or no proof, yet
the jury found against the plaintiff. It makes little sense in such cases for the appellant
to argue the strict application of the rule, insisting that a reversal is required because
the defendant’s proof failed to meet the substantial evidence test. The evident fact is
the plaintiff failed to convince the jury, or fact finder, of an essential element of proof.
That seems to have been the case with this jury, it simply did not think the defendant
was negligent, or that the plaintiff’s injuries were proximately caused by the
negligence, if any. Thus, the lack of substance is not with the defendant’s proof, but
with the plaintiff’s. See Morton v. American Medical International, Inc., 286 Ark. 88, 689
S.W.2d 535 (1985).
Schaeffer v. McGhee, 286 Ark. 113, 115, 689 S.W.2d 537, 539 (1985).
During oral argument before this court, UPS clarified its contention, claiming that it
had the burden of producing a good-faith reason for declining to promote appellants;
however, the burden of proof remained with appellants to establish their discrimination
claims. We agree that the burden remained with appellants to provide sufficient proof of
their claims. See Flentje, supra. However, even strictly applying the substantial-evidence
standard of review and viewing the evidence and all reasonable inferences arising therefrom
in the light most favorable to UPS, we hold that substantial evidence supports the jury’s
verdict.
14
Cite as 2017 Ark. App. 501
The ACRA guarantees freedom from gender discrimination, including the right to
obtain and hold employment without discrimination. Ark. Code Ann. § 16-23-107(a)(1)
& (c); Ark. Code Ann. § 11-4-601. Appellants contend that they need not prove intentional
employment discrimination, merely that they were injured by employment discrimination
by an employer. However, appellants did not object to the jury instructions on the elements
of their discrimination claims. Their failure to object operates as a waiver of their argument
that the trial court erred in interpreting the ACRA to require that the element of intent be
proved. Delta Sch. of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989).
Arkansas Code Annotated section 16-123-103(c) provides that a defendant in a
discrimination case may avoid liability by showing that his or her actions were based on
legitimate, nondiscriminatory factors and not on unjustified reasons. Appellants argue that
the federal “honest belief” defense is broader than the limited defense provided under the
Arkansas statute. They acknowledge and cite Pulczinski v. Trinity Structural Towers, Inc.,
691 F.3d 996 (8th Cir. 2012), which rejected a modified “honest belief” rule, holding that
a plaintiff must prove the employer acted with intent in an employment-discrimination case.
The court stated that “[e]ven if the business decision was ill-considered or unreasonable,
provided that the decisionmaker honestly believed the nondiscriminatory reason he gave for
the action, pretext does not exist.” Pulczinski, 691 F.3d at 1003. Nevertheless, appellants
urge this court to follow the Sixth Circuit’s requirement that a determination be made
whether the employer made a reasonably informed and considered decision. See Smith v.
Chrysler Corp., 155 F.3d 799 (6th Cir. 1998).
15
Cite as 2017 Ark. App. 501
Appellants contend that the question before this court is whether any version of the
“honest belief” defense is available under Arkansas law and, if so, whether there was any
substantial evidence to support an “honest belief” instruction. Appellants claim that the
defense is not available and that an Arkansas employer can avoid liability only by
demonstrating that its actions were based on legitimate, nondiscriminatory factors. They
claim that the defense does not extend to a mistaken belief that the employer’s actions were
based on a legitimate, nondiscriminatory factor. They conclude that reading an “honest
belief” instruction into an employment-discrimination case in Arkansas is contrary to the
statute. Relying on the Sixth Circuit’s requirement that an employer must be able to
establish its reasonable reliance on the particularized facts that were before it at the time the
decision was made, Smith, supra, appellants argue that there was no substantial evidence to
support the “affirmative defense” of having a legitimate, nondiscriminatory reason. They
argue that there was no evidence of a reasonably informed and considered decision and no
suggestion of any particularized facts before the employer made the decision.
Appellants point to the conflicting evidence regarding whether Brown was qualified
for a promotion based on the MAPP procedure. There was testimony that she had been
told she had passed the MAPP test, and there was testimony that she had not. Appellants
argue that the jury should have been asked whether Brown had actually passed the MAPP
test. They contend that, under the honest-belief instruction given by the trial court, the
question became whether UPS could have reasonably believed that Brown did not pass the
MAPP test. They contend, therefore, that the error was prejudicial. In regard to Pilz,
appellants claim that there was no dispute that she had passed the MAPP test; but she was
16
Cite as 2017 Ark. App. 501
never considered for a promotion. Appellants argue that UPS failed to articulate what
honest belief they relied on when they failed to promote Pilz.
Appellants’ argument that the ACRA does not recognize an “honest belief” rule is
incorrect. We can look to federal and state courts’ analyses of the ACRA’s federal
counterpart as persuasive authority. See Ark. Code Ann. § 16-123-105(c) (providing that
when construing the ACRA, a court may look for guidance to state and federal decisions
interpreting Title VII for persuasive authority). An honest belief has been held to be a
legitimate, nondiscriminatory reason under the ACRA in federal courts. Gibson v. Am.
Greetings Corp., 670 F.3d 844 (8th Cir. 2012); Barber v. C1 Truck Driver Training, LLC, 656
F.3d 782 (8th Cir. 2011); McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855 (8th Cir.
2009).
Further, there was sufficient evidence for the jury to be charged with an “honest
belief” instruction. The decision makers involved in the promotion decision testified that
they honestly believed appellants were either ineligible for promotion or less qualified than
other candidates. It was within the jury’s purview to consider the credibility of witnesses
and the weight and value of their testimony. Potlatch Corp. v. Missouri Pa. R.R. Co., 321
Ark. 314, 902 S.W.2d 217 (1995). Appellants failed to offer sufficient evidence to infer that
discriminatory animus was the real reason for the decision not to promote. Arnold v. Nursing
& Rehab. Ctr. at Good Shepherd, LLC, 471 F.3d 843 (8th Cir. 2006), abrogated on other
grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011).
In their second point on appeal, appellants argue that even if an “honest belief”
instruction had been appropriate, the trial court erred in rejecting their proposed instruction,
17
Cite as 2017 Ark. App. 501
which made it clear that the burden of proof was on UPS. Appellants argue that “honest
belief” is an affirmative defense. The statute provides that a defendant avoids liability by
showing that his actions were based on legitimate, nondiscriminatory factors and not on
unjustified reasons. Ark. Code Ann. § 16-123-103(c). Thus, appellants urge this court to
hold that the jury should have been instructed that UPS had the burden of proof on this
issue.
We note the following standard of review:
A party is entitled to a jury instruction when it is a correct statement of the
law and when there is some basis in the evidence to support giving the instruction.
Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a circuit
court’s failure to give an instruction unless the court abused its discretion. See Belz–
Burrows, L.P. v. Cameron Constr. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002). When
a model instruction is applicable in a case, it shall be used unless it does not accurately
state the law. See, e.g., Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891 (1995). Jury
instructions are not to be viewed in isolation but are to be considered as a whole to
determine whether the circuit court correctly instructed the jury. McGraw v. Weeks,
326 Ark. 285, 930 S.W.2d 365 (1996); Long v. Lampton, 324 Ark. 511, 922 S.W.2d
692 (1996).
Armstrong Remodeling & Constr., LLC v. Cardenas, 2012 Ark. App. 387, at 10, 417 S.W.3d
748, 755.
We hold that the “honest belief” rule is not an affirmative defense under Ark. R.
Civ. P. 8(c); it is simply a rule. See Pulczinski, supra. It was appellants’ burden to prove an
adverse employment action motivated by intentional discrimination. The proposed
language improperly shifts the ultimate burden of proof to UPS. See Torgerson, supra; Flentje,
supra. As set forth above in our discussion regarding the standard of review, because we
decline to shift the burden of proof, we reject appellants’ argument that the jury should have
been instructed to do so.
18
Cite as 2017 Ark. App. 501
Affirmed.
HARRISON and KLAPPENBACH, JJ., agree.
Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter; and Baker & Schulze, by: J.G.
“Gerry” Schulze, for appellants.
Waller Lansden Dortch & Davis, LLP, by: John E.B. Gerth and Aron Z. Karabel; and
Quattlebaum, Grooms & Tull PLLC, by: E.B. Chiles IV, for appellee.
19