Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 1 of 16 PageID #: 95

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1 -- Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 1 of 16 PageID #: 95 ELECTRONICALLY FILED Benton County Circuit Court Brenda Deshields, Circuit Clerk 2017-Feb : 15: CV IN THE CIRCUIT COURT OF BENTON COUNTY, AM KJ!lM i- 1 _ 9 w_o_o 4 : 1_ 6 _P ag;:_e_s...: J CIVIL DMSION NATHAN COY and JACI HAWKINS PLAINTIFFS v. Civil Action No. THE CITY OF CAVE SPRINGS, ARKANSAS; KIMBERLY HUTCHESON, individually and in her official capacity as as Recorder-Treasurer for the City of Cave Springs; and CHARLES LINDLEY, MARY ANN WINTERS, RICK SA YER, LARRY FLETCHER, and RANDALL NOBLETT, all individually and in their official capacities as Alderman of the City of Cave Springs, Arkansas DEFENDANTS COMPLAINT For their Complaint against the Defendants, Plaintiff Nathan Coy ("Coy'') and Plaintiff Jaci Hawkins ("Hawkins"), allege as follows: STATEMENT OF THE CASE 1. This is a civil action pursuant to the provisions of: The Arkansas Whistle-Blower Act, A.C.A , et seq., as amended ("AWA"); and the Arkansas Civil Rights Act' of 1993, A.C.A , et seq., as amended ("ACRA"); 42 U.S.C and 1988, as amended, The Americans with Disabilities Act of 1990, 42 U.S.C , et seq. ("ADA"); Title VII of the Civil Rights Act of1964, as amended ("Title VII"); the Family and Medical Leave Act ("FMLA"); and at common law. Defendants d enied Plaintiffs their right to free speech and/or freedom of association. Defendants retaliated against Plaintiffs in response to their exercise of those protected freedoms (U.S. CONST. amends. I and XIV; Ark. Const. art. 2, 6). j EXH{lrl IT...,,.

2 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 2 of 16 PageID #: 96 Defendants retaliated agamst Plaintiffs because Plaintiffs communicated in good faith the existence of waste and/or suspected violations of law to their public employer. 2. Further, Plaintiff Coy suffers from a disability protected under the ADA. Plaintiff Coy is also a member of a protected class due to his national origin - Hispanic. Defendants discriminated against Plaintiff by willfully refusing to provide a reasonable accommodation and by subjecting him to a hostile work environment. Defendants terminated Coy's employment and took other adverse employment actions during the time that Coy was on protected leave under thefmla. 3. Plaintiffs seek injunctive relief, pursuant to the A WA, to remedy adverse action taken against Plaintiffs, as well as compensatory damages, punitive damages and attorney's fees, all pursuant to federal and state law, and any further relief to which they may be entitled. JURISDICTION AND VENUE 4. Plaintiffs are residents of Benton County, Arkansas. 5. The City of Cave Springs, Arkansas (the "City'') is a city of the second class located in Benton County, Arkansas. The principal actions and/or omissions giving rise to this action occurred in Benton County, Arkansas. 6. This Court has jurisdiction over the parties and the subject matter of this action, and venue is proper in this court. ALLEGATIONS COMMON TO ALL CLAIMS 7. Defendant Kimberly Hutcheson ("Hutcheson") is the elected Treasurer I Recorder for the City. Hutcheson is also the acting human resources manager I director for the City. 8. Travis Lee ("Lee") is the elected Mayor of the City.

3 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 3 of 16 PageID #: Defendants Charles Lindley ("Lindley"), Maty Ann Winters ("Winters"), Rick Sayer ("Sayer"), Larry Fletcher ("Fletcher''), and Randall Noblett ("Nobletf') are each Aldermen serving on the City Council for the City of Cave Springs (referred to collectively herein as "City Council"). I 0. Plaintiff Nathan Coy was previously employed by the City of Cave Springs. Coy worked for the Police Department as a Patrolman. Coy also simultaneously held the positions of Code Enforcement Director, Events Coordinator, Planning & Zoning Assistant and Animal Control Director for the City, all at the time of his termination. 11. Coy assisted Lee during Lee's mayoral campaign by openly campaigning for,lee and directing certain portions of Lee's campaign efforts'. Hutcheson and the City Council have openly opposed and/or attacked Lee and those employees of the City believed to be aligned with Lee, including Coy and Hawkins. Noblett ran against Lee during the mayoral race. Winters and Hutcheson have openly expressed their opposition of Lee and their desire to hold the office of mayor. 12. Coy's national origin is Hispanic. Hutcheson has repeatedly expressed racial animus towards Coy and others. Hutcheson made the statement to Hawkins, "you know [Coy] is Hispanic. I'm going to get him fired." 13. Coy was diagnosed with Post Traumatic Stress Syndrome ("PTSD") in the Spring of 2016, as a result of being forced to use his service weapon in the line of duty. Coy's treating physicians have certified that Coy is disabled due to his PTSD. Lee, Hutcheson, and the City Council were are of Coy's disability. Coy applied for and was approved to take leave under the FMLA because his disability and the treatment of his serious medical condition.

4 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 4 of 16 PageID #: As set forth more fully herein, Coy communicated to the Mayor and/or the City Council that Hutcheson was engaging in waste of public funds and/or manpower and/or property and/or was engaged in violations or suspected violations oflaws, rules, and/or regulations adopted under the laws of this state and/or a political subdivision of this state: Coy also reported that members of the City Council were engaged in violations of open meetings laws and other waste, fraud, abuse or other illegal activities. 15. Coy's employment was terminated by name, not by position, during a special meeting of the City Council on January 4, Lee vetoed the resolution on January 5, Later, Lee fired Coy on January 30, Lee stated to Coy, "I had to fire you because the City Council hated you and wanted you gone." He further told Coy that he"had to compromise." 17. Coy was on protected leave under the FMLA and the ADA when the City terminated his employment. 18. Plaintiff J aci Hawkins is an employee of the City. Previously, she held the position of Deputy Recorder I Treasurer under Hutcheson. Hutcheson fired Hawkins from that position, and Hawkins is currently employed by the City as the deputy court clerk and water and sewer clerk. 19. Hawkins worked directly under Hutcheson and witnessed much of Hutchesort's unlawful activities. 20. Hutcheson repeatedly warned Hawkins to remain loyal to Hutcheson, and threatened to fire Hawkins if Hawkins did not remain loyal to her. Hutcheson warned Hawkins not to speak to Lee about anything, and to remain loyal only to Hutcheson.

5 ', Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 5 of 16 PageID #: Hawkins witnessed much of Hawkins discriminatory treatment, both towards Coy and a private business and to other City employees. Hawkins witnessed Hutcheson threaten and/or plot to retaliate against City employees that refused to align with Hutcheson. 22. Hawkins reported Hutcheson's illegal activity to the City Council and to Lee. As retaliation, Hutcheson removed Hawkins from the position of Deputy Recorder-Treasurer. Political Attacks and Retaliation 23. Hutcheson and the City Council have aligned themselves against Lee. Noblett lost his mayoral bid in the race against Lee. Hutcheson has repeatedly expressed her desire to be Mayor of the City. Because of this political enmity, Hutcheson and the City Council have engaged in a coordinated political attack campaign against Lee and any City employee aligned or perceived to be aligned with Lee. 24. The City Council and/or Hutcheson accused Lee of making unauthorized expenditures and of hiring employees without authorization from the City Council. They asked the city attorney to investigate the Mayor on those grounds. In or about December of2016, the city attorney concluded his investigation and found that the City Council approved/authorized the expenses and employment at issue. Thus, the allegations were found to be false. 25. Hutcheson and/or the City Council have withheld and/or slow-paid wages due and owing to City employees deemed to be loyal to Lee or otherwise deemed to be disloyal to the City Council and/or Hutcheson. 26. The City Council has held multiple unlawful meetings, violating Arkansas openmeetings laws, against the express counsel of the acting city attorney at that time. The City Council has held multiple closed meetings without providing notice to the public or otherwise giving the public an opportunity to observe.

6 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 6 of 16 PageID #: Hutcheson failed to properly maintain the :finances of the City. She has refused to timely pay wages due and owing to City employees. She has failed to maintain proper records for an accounting of the City's :financial position. She has withheld payments to Coy and other City employees whom she perceived to be aligned against her and/or aligned with Lee. Further, she has failed to properly maintain minutes of City Council meetings, upon information and belief. 28. Hutcheson and/or the City have made multiple attempts to terminate the employment of those City employees who are politically aligned with Lee and/or are perceived to be against the City Council or Hutcheson. 29. Hutcheson and/or the City Council denied such employees access to City facilities and/or equipment necessary to carry out the essential functions of their respective jobs, such as city hall and/or administrative buildings and/or computer work stations and/or computer programs. 30. Hawkins and Coy together and independently reported Hutcheson's illegal actions to Lee. Hawkins and Coy spoke out publicly against the actions of Hutcheson and the City Council. They reported Hutcheson's illegal actions to the City Council, only to later learn that the City Council was on Hutcheson's side. 31. Hutcheson fired Hawkins from the position of Deputy Treasurer-Recorder only days after she made statements to the City Council against Hutcheson. 32. Hutcheson and the City Council attempted to terminate the employment of Coy, Hawkins and eight other City employees on January 4, The other eight employees were likewise politically aligned against Hutcheson and the City Council, or at least perceived to be so.

7 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 7 of 16 PageID #: Subsequently, Hutcheson again locked out Coy, Hawkins and other City employees perceived to be politicl:ll threats. She denied them access to City facilities and/or computers or City records. Her actions were approved and/or ratified by the City Council. 34. Lee capitulated, and he terminated Coy's employment on January 30, Discrimination 35. Hutcheson expressed racial I national origin animus towards Coy and to other peoples of protected classes, on multiple occasions. 36. Hutcheson commented on Coy's national origin multiple times. She made comments to Hawkins with respect to Coy's national origin. In the same conversation, Hutcheson stated that she was going to get Coy fired. Hutcheson told other City employees that she was going to get Coy fired. 37. Upon information and belief, Hutcheson is the creator and/or administrator of a public Facebook account titled Informed Residents of Cave Springs, and Hutcheson uses the account as her pseudonyni to espouse her opinions. On or about December 9, 2016, Hutcheson commented on Coy's Hispanic national origin in a public post on the account. 38. Hutcheson also commented on Coy's disability on the Facebook account. 39. Hutcheson owns and operates The Asylum Haunted House in Cave Springs. Hutcheson and/or members of her family videotaped black children as they went through the house to record moments when the children were scared. 40. Upon information and belief, the children had no knowledge of the filiming. Hutcheson then played the videos in City Hall and/or City administrative offices. 41. City Hall is a small building and the administrative offices are close together. Employees had no choice but to take notice. Hutcheson played the videos openly and loud enough for city employees to hear. 42. Hutcheson also discriminated against a private business because the business [ employed a black individual. The business was in a contractual relationship with the City. Hutcheson terminated the contract with that business solely because the business had a black employee. Upon information and belief, Hutcheson told the business owner that "the City

8 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 8 of 16 PageID #: 102 doesn't take kindly to blacks." Thus, the City has unlawfully discriminated against a private business on the basis of race. 43. Hawkins reported Hutcheson's conduct to Lee. COUNT I VIOLATION OF FIRST AMENDMENT RIGHT TO FREE SPEECH (retaliation) 44. Plaintiffs incorporates by reference and restates word for word each of the factual allegations contained in paragraphs 1-43 as if set forth fully herein. 45. The conduct of Defendants violated and continues to violate Plaintiffs' Constitutional rights. 46. Upon information and belief, Defendants, individually and in concert, determined to retaliate against Plaintiffs because Plaintiffs were politically aligned against Defendants and/or were perceived to be aligned against Defendants and/or made statements on a matter of public concern. 47. Plaintiffs engaged in conduct protected under the First Amendment of the United States Constitution. Specifically, Plaintiffs' statements - to Lee and to the City Council and to public at large - embraced matters of public concern. Coy and Hawkins spoke out against elected officials and also spoke in support of Lee. The right to :freedom of political association is the quintessential :freedom of the First Amendment. Moreover, the community has an interest in the unlawful actions and misuse of public funds by its elected leaders. 48. Defendants took adverse, retaliatory action against Plaintiffs, under color of law, in response to Plaintiffs' free exercise of their right to engage in protected speech. Hawkins was removed from her position as Deputy Recorder/Treasurer. Coy was discharged from all

9 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 9 of 16 PageID #: 103 positions with the City. Defendants threatened and harassed Plaintiffs. Defendants interfered with Plaintiff's job performance without just cause. 49. Defendants' adverse actions were motivated, at least in part, by Plaintiffs' protected conduct. 50. The retaliation was also in furtherance of the policy, custom and/or practice of the City, as created and/or enforced and/or ratified by Hutcheson, the City Council and/or Lee, which is to restrain the protected speech of City employees and to suppress political opposition from City employees. COUNT II VIOLATION OF FIRST AMENDMENT (prior restraint) 51. Plaintiff Hawkins incorporates by reference and restates word for word each of the factual allegations contained in paragraphs 1-50 as if set forth fully herein. 52. Hutcheson prohibited, or attempted to prohibit, Hawkins from making statements of public concern, as set forth above. 53. Plaintiff had the unfettered right to speak to anyone with respect to matters of public concern. 54. Hutcheson's actions were a blatant attempt to strip Plaintiff of her right as a citizen to criticize Hutcheson and/or the City and to chill Plaintiff's exercise of her right to free speech. 55. This prohibition against Plaintiff's free exercise of protected speech created a prior restraint of her First Amendment rights. COUNT III VIOLATIONS of THE ARKANSAS CIVIL RIGHTS ACT (free speech)

10 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 10 of 16 PageID #: Plaintiffs incorporates by reference and restates word for word each of the factual allegations contained in paragraphs 1-55 as if set forth fully herein. 57. Defendants, acting under color of law, caused Plaintiffs to be subjected to a deprivation of their rights, privileges, and immunities, as secured by the Arkansas Constitution, including the freedoms of speech and publication (Ark. Const. art. 2, 6). Thus, Defendants violated the ACRA, Defendants acted willfully and with malice. 59. As a direct and proximate result of the violations of Plaintiffs' constitutional rights by Defendants, Plaintiffs. suffered general and special damages, as alleged herein, and. is entitled to relief under the ACRA. 60. Defendants are liable to Plaintiffs for the unlawful deprivation of Plaintiffs' constitutional rights; pursuant to ACRA, 105. COUNT IV VIOLATIONS OF THE ARKANSAS CIVIL RIGHTS ACT (discrimination) 61. Plaintiffs repeat the allegations contained in Paragraphs 1-60 as if set forth herein word for word. 62. Section 107(a) of the ACRA prohibits discrimination based on race or national origin (A.C.A (a)) and codifies the right to obtain and hold employment without discrimination (A.C.A (a)(l)). 63. Section 107(c)(l)(A) of the ACRA provides: "[a]ny individual who is injured by employment discrimination by an employer in violation of subdivision (a)(l) of this section shall have a civil action in a court of competent jurisdiction, which may issue an order prohibiting the discriminatory practices and provide affirmative relief from the effects of the practices, and award back pay,

11 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 11 of 16 PageID #: 105 interest on back pay, and, in the discretion of the court, the cost of litigation and a reasonably attorney's fee. 64. Section 107(c)(2)(A) of the ACRA.entitles an injured party to an award of compensatory and punitive damages to remedy intentional discrimination by an employer. Defendant is liable for its discriminatory actions against Plaintiff. 65. Section 108 of the ACRA prohibits retaliation against an employee who has engaged in protected activity under the ACRA (A.C.A lOS(a) and (b)). 66. Section 108(a) of the ACRA provides: "No person shall discriminate against any individual because such individual in good faith has opposed any act or practice made unlawful by this subchapter or "because such mdividual in good faith made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 67. Section 108(c) of the ACRA entitles an injured party to an award of. compensatory and punitive damages to remedy retaliatory actions by an employer. 68. Defendant is liable for the retaliatory actions against Plaintiffs, all as alleged herein. 69. As set forth above, Defendants subjec ed Plaintiff Coy to intentional discrimination in the form of disparate treatment and hostile work environment harassment. In addition, Defendants subjected Plaintiff Coy to retaliation because Coy engaged in protected activity by reporting and opposing the discrimination. 70. Defendants subjected Hawkins to retaliation because Hawkins engaged in the protected activity of reporting the unlawful discrimination against Coy and opposing such conduct.

12 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 12 of 16 PageID #: 106 COUNTV VIOLATIONS OF THE ARKANSAS WHISTLE-BLOWER ACT 71. Plaintiffs incorporates by reference and restates word for word each of the factual allegations contained in paragraphs 1-70 as if set forth fully herein. 72. Plaintiffs are public employees pursuant to AW A 602( 4). 73. The City is a public employer pursuant to A WA 602(5). 74. Plaintiffs possessed personal knowledge of a factual basis of the existence of waste of public funds, property, or manpower administered by a public employer pursuant to AWA 603(a)( l)(a) and violations of or suspected violations oflaws, rules, and/or regulations adopted under the laws of this state and/or a political subdivision of this state pursuant to AW A 603(a)(l )(B). 75. Plaintiffs communicated in good fa ith pursuant to AWA 602(3) and 603(b)(l). the aforesaid existence of waste and suspected violations oflaw to one or more appropriate authorities pursuant to AW A 602(2)(A) in a time and manner which gave the public employer reasonable notice of need for corrective action pursuant to AWA 603(a)(2). 76. Plaintiffs are each "whistle-blowers" pursuant to A WA 602(8). 77. Defendants took "adverse action" against Plaintiffs for engaging in an activity protected under the AWA, as set forth in AWA 602(1) and 603(a)(l). COUNT VI TITLE VII DISCRIMINATION (Hostile Work Environment) 78. Plaintiff Coy repeats the allegations set forth in paragraphs 1-77 as if set forth herein word for word. 79. Plaintiff is a member of a protected class due to his national origin - Hispanic..

13 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 13 of 16 PageID #: Plaintiff was subjected to a severe, pervasive and unwelcome hostile work environment. 81. Defendants' conduct was unwelcome. 82. Defendants' conduct was sufficiently severe or pervasive to alter the conditions of Coy's employment and create an abusive or hostile work environment. 83. Plaintiff perceived the working environment to be abusive and/or hostile. 84. A reasonable person in Plaintiff's circumstances would consider the working environment to be abusive and/or hostile. COUNT VII TITLE VII DISCRIMINATION (Disparate Treatment) 85. Plaintiff Coy repeats the allegations contained in paragraphs 1-84 as if set forth herein word for word. 86. Coy was subjected to disparate discipline and disparate job assignments, was not promoted, was discharged, and was subjected to other adverse employment actions. 87. Plaintiff's national origin was a motivating factor and/or sole reason in Defendants' decision to subject Plaintiff to disparate discipline and disparate job assignments, ' to not promote Plaintiff, to discharge Plaintiff and/or to subject Plaintiff to other adverse employment actions. COUNT VIII TITLE VII RETALIATION 88. Plaintiff Coy and Hawkins repeats the allegations contained in paragraphs 1-87 vas if set forth herein word for word.

14 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 14 of 16 PageID #: Plaintiffs engaged in or were.engaging in a protected activity; that is, Plaintiffs reported and/or complained of the aforementioned unlawful employment practices committed by Defendants. 90. Defendant subjected Plaintiff to adverse employment actions, as set forth above, in retaliation for Plaintiff's participation in protected activity. COUNT IX ADA VIOLATIONS 91. Plaintiff restates and incorporates by reference the foregoing allegations as if set forth word for word herein. 92. Plaintiff Coy's employment was terminated in substantial part due to his disabilities and/or Defendants' perception that Plaintiff was disabled and/or Plaintiff's record of disability. 93. Plaintiff was qualified to do the essential job functions with or without reasonable accommodation. 94. Plaintiff suffered adverse actions due to his disability. 95. Plaintiff is a covered individual who engaged in protected activity because he opposed unlawful employment practices in the form of disability discrimination. COUNTX FMLA VIOLATIONS 96.. Plaintiff restates and incorporates by reference the foregoing allegations as if set forth word for word herein. 97. Coy was and "employee" and the City is an "employer" as those terms are defined in thefmla.

15 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 15 of 16 PageID #: Coy was on FMLA protected leave at the time his employment was terminated. 99. Coy suffers from a qualifying serious medical condition The City interfered with and/or denied Coy's FMLA leave and/or retaliated against Coy for taking protected leave under the FMLA. DAMAGES 101. As a direct and proximate result of the Defendants' actions, Plaintiffs suffered adverse employment actions and other damages, which would not have otherwise occurred. Plaintiffs plead for all special and general damages available under law and/or equity, in an amount to be determined at trial, including, but not limited to: e Restoration of employment file; Lost wages and benefits; Injunctive relief to restrain continued violations of the provisions of the Arkansas Whistle-Blower Act; Statutory penalties; ci Reinstatement to their respective positions before adverse actions; Compensatory damages; Court costs and attorney's fees; and Punitive damages JURY DEMAND I 02. Plaintiffs demand a trial by jury on all issues. CONCLUSION 103. WHEREFORE, Plaintiffs respectfully pray for judgment against Defendants on all claims alleged herein, or that may be brought in the course of this action, for legal and

16 Case 5:17-cv TLB Document 3 Filed 03/16/17 Page 16 of 16 PageID #: 110 I equitable relief and compensatory and punitive damages in an amount to be determined at trial, as well as attorney's fees, reasonable costs, pre-judgment interest, and such other and further relief as to which they may be entitled at law or equity. Respectfully Submitted, HOGUE LAW FIRM, PLLC 206 N. College Ave. Fayetteville, AR (479) (479) josh@hoguelawfirm.com Attorneys for Plaintiffs