Smith v. ConAgra Frozen Foods Inc et al

Filing 54

CERTIFICATION ORDER, purs to Rule 6-8 of the Rules of the Supreme Court of the State of Arkansas, this Court certifies to the Supreme Court of Arkansas a question of law that may be determinative of this case. The Clerk is hereby directed to forward this Order to the Supreme Court of Arkansas under his official seal. Signed by Judge D. P. Marshall Jr. on 2/4/13. (kpr)

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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. ARK. CODE ANN. § 16-123-108. This provision, 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§ 16-123107(c)(3). Smith argues that the three-year statute applies - the provision that catches all statutory causes of action that otherwise have no limitation 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 April2012 Smith non-suited the complaint. • 7May 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. -2- 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 limitation. 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 limitation 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). -3- 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 -4- So Ordered. D.P. Marshall Jr. United States District Judge 1 -5- lefrnrtMY J20l I 5

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