Thomas Perez, et al vs. Soldiers of the Cross, et al
OPINION AND ORDER denying 24 Motion for Summary Judgment. Signed by Honorable P. K. Holmes, III on January 19, 2018. (tg) Modified on 1/19/2018 to add text (tg).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
R. ALEXANDER ACOSTA, Secretary of
Labor, United States Department of Labor
Case No. 5:17-CV-5014
SOLDIERS OF THE CROSS, d/b/a
Shepherd’s Chapel Church, and
DENNIS MURRAY, individually
OPINION AND ORDER
Before the Court are Defendants’ motion for summary judgment (Doc. 24), statement of
facts in support of its motion (Doc. 25), and brief in support of its motion. (Doc. 26). Plaintiff
filed a response in opposition to summary judgment. (Doc. 29).1 Defendants submitted a reply to
Plaintiff’s response. (Doc. 30). For the reasons stated herein, Defendants’ motion (Doc. 24) will
When a party moves for summary judgment, it must establish both the absence of a genuine
dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Nat’l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir. 1999). In order
for there to be a genuine issue of material fact, the nonmoving party must produce evidence “such
that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 66–67 (8th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Only facts “that might affect the outcome of the suit under the governing law” need be
Plaintiff did not file a response to the statement of facts as required by Local Rule 56.1(b).
However, Plaintiff raises factual disputes in his response. (Doc. 29). The Court, in its discretion,
will not deem Defendants’ statement of facts admitted.
considered. Anderson, 477 U.S. at 248. “[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the burden of proof.” P.H. v. Sch. Dist. of
Kan. City, Mo., 265 F.3d 653, 658 (8th Cir. 2001). Facts asserted by the nonmoving party “must
be properly supported by the record,” in which case those “facts and the inferences to be drawn
from them [are viewed] in the light most favorable to the nonmoving party.” Id. at 656–57.
Defendants contend that they are entitled judgment as a matter of law because Plaintiff has
failed to make a prima facie case of retaliation and failed to demonstrate that Defendants’ stated
reason for terminating Darrin Carnahan (Darrin) and Kim Carnahan (Kim) were pretextual. The
Court finds that there are genuine issues of material fact as to whether Darrin and Kim engaged in
protected activity, whether Darrin and Kim suffered adverse employment actions, and whether the
alleged adverse employment actions were causally connected to the alleged protected conduct.
The Court also finds that there are genuine issues of material fact as to whether Defendants’ stated
reasons for terminating Darrin and Kim were pretextual. Accordingly, summary judgment is not
Defendants further contend that Plaintiff cannot bring a claim of retaliation on behalf of
Darrin because the claim does not survive his death. The Eighth Circuit recently held that a claim
under the Americans with Disabilities Act can survive the plaintiff’s death. Guenther v. Griffin
Constr. Co., 846 F.3d 979, 986 (8th Cir. 2017). The Court concludes that the Eight Circuit’s
reasoning in Guenther applies to the Occupational Safety and Health Act. See id. at 985 (“we find
Congress's call for a ‘national mandate’ with ‘consistent’ standards and the desire to effect the
‘evenhanded application’ of the ADA's anti-discrimination provisions both weigh in favor of a
uniform federal rule.”); see also 29 C.F.R. §1977.1(a) (“The Occupational Safety and Health Act
... is a Federal statute of general application designed to regulate employment conditions relating
to occupational safety and health and to achieve safer and healthier workplaces throughout the
Nation.”). Accordingly, Plaintiff can bring a retaliation claim on behalf of Darrin.
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (Doc. 24)
IT IS SO ORDERED this 19th day of January, 2018.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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