Smith v. ConAgra Frozen Foods Inc et al

Filing 50

ORDER attaching draft certification order. The parties should file any suggested changes, objections, or acceptance by 1/31/13. Signed by Judge D. P. Marshall Jr. on 1/17/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

PLAINTIFF

TANYA SMITH

v.

No. 4:12-cv-517-DPM

CONAGRA FOODS, INC. and
TERRY STEEN

DEFENDANTS
ORDER

The Court's draft certification order is attached for consideration. The
parties should file any suggested changes, objections, or acceptance by 31
January 2013.
So Ordered.
v

D.P. Marshall Jr.
United States District Judge
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DRAFT
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

PLAINTIFF

TANYA SMITH
No. 4:12-cv-517-DPM

v.

CONAGRA FOODS, INC. and
TERRY STEEN

DEFENDANTS

CERTIFICATION ORDER
Which statute of limitation applies to employment-related retaliation
claims under the Arkansas Civil Rights Act will resolve important issues in
this case.

Tanya Smith worked for ConAgra.

She says the company

discriminated against her and fired her for taking sick leave and requesting
an accommodation upon her return.

She brought employment-based

retaliation and discrimination claims against ConAgra. The discrimination
claim, which had a one-year statute of limitation, was dismissed as
time-barred.

ARK. CODE ANN. § 16-123-107(c)(3).

She also asserts an

employment-based retaliation claim against her former supervisor, Terry
Steen. The statute, however, contains no explicit limitation period for the
employment-related retaliation claims. ConAgra says that the Court should

look to the one-year limit in§ 16-123-107(c)(3). Smith argues that the threeyear statute applies - the provision that catches all statutory causes of action
that otherwise have no limitations period. ARK. CODE ANN. § 16-56-105. No
Arkansas precedent decides between these statutory options. Crites v. Cowan,
2011 Ark. App. 11.
Here is the timeline:

•

February or March 2010

ConAgra terminated Smith and
allegedly discriminated against her.

•

20 July 2010

Smith filed a complaint with the EEOC
against only ConAgra, not Terry Steen.

•

29 August 2011

EEOC closed the case and issued a rightto-sue letter.

•

29 November 2011

Smith filed her first lawsuit in Pulaski
County.

•

28 March 2012

The 120-day limit to serve ConAgra and
Steen ended. Neither was served.
Smith says she tried to serve Steen, but
could not find him.

•

26 April 2012

Smith non-suited the complaint.

•

7 May 2012

Smith filed the current action in Pope
County, Arkansas.

•

18 August 2012

ConAgra removed the case to Federal
Court.

•

17 September 2012

After this Court granted a motion to
extend time for service, Smith served
Steen.

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Smith's retaliation claims against ConAgra and Steen are untimely if the
one-year statute of limitation applies. ARK. CODE ANN.§ 16-123-107(c)(3). If
the three-year statute applies, her claims are timely. ARK. CODE ANN.§ 16-56105. The Arkansas savings statute, ARK. CODE ANN. § 16-56-126, does not
benefit Smith because there was no completed but imperfect service in the
original Pulaski County action. Clouse v. Ngau Van Tu, 101 Ark. App. 260,274
S.W.3d 344 (2008). Her retaliation claims therefore rise or fall depending on
the applicable statute of limitations.
The Court therefore certifies the following question, subject to the
Arkansas Supreme Court's power to reformulate it:
Are employment-related retaliation claims under the Arkansas
Civil Rights Act, ARK. CODE ANN. § 16-123-108, subject to the
one-year statute of limitation provided in another part of the Act,
ARK. CODE. ANN. § 16-123-107(c), or the three-year limitation
period applicable when a statutory cause of action contains no
limitations period? ARK. CODE ANN. § 16-56-105; Chalmers v.
Toyota Motor Sales, USA, Inc., 326 Ark. 895, 901, 935 S.W.2d 258,

261 (1996).

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Counsel for Tanya Smith

Counsel for ConAgra Foods Inc.

Luther O'Neal Sutter
Sutter & Gillham, PLLC
Post Office Box 2012
Benton, AR 72018

Brittany M. Ems
Husch Blackwell - St. Louis
190 Carondelet Plaza
Suite 600
St. Louis, MO 63105
Josef S. Glynias
Husch Blackwell - St. Louis
190 Carondelet Plaza
Suite 600
St. Louis, MO 63105
Carolyn B. Witherspoon
Cross, Gunter, Witherspoon &
Galchus, P.C.
Post Office Box 3178
Little Rock, AR 72203-3178

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So Ordered.
D.P. Marshall Jr.
United States District Judge

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