Barrow v. City of Hillview, Kentucky et al
Filing
62
MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 12/14/2017, re Defendants' 54 MOTION for Summary Judgment.cc: Counsel (RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
JAMES S. BARROW
PLAINTIFF
LEO DANIEL COOK
INTERVENING PLAINTIFF
v.
CIVIL ACTION NO. 3:14-CV-00219-CRS
CITY OF HILLVIEW, KENTUCKY, et al.
DEFENDANTS
MEMORANDUM OPINION
This matter is before the court on motion of Defendants, City of Hillview, Kentucky;
Glenn Caple, in his individual capacity; and Kenneth Straughn, in his individual capacity
(collectively, “Defendants”), for summary judgment. For the reasons stated herein, the court will
GRANT Defendants’ motion.
Plaintiff’s Amended Complaint and Intervening Plaintiff’s
Intervening Complaint will be DIMISSED.
I.
BACKGROUND
The incidents giving rise to this action began in early January of 2012. Plaintiff James S.
Barrow (“Barrow”) and Intervening Plaintiff Leo Daniel Cook (“Cook”) (collectively,
“Plaintiffs”), both employed as police officers for the City of Hillview (“Hillview”), were asked
to accompany Defendants Glenn Caple (“Caple”) and Kenneth Straughn (“Straughn”) to the
home of Jim Eadens, the mayor of Hillview. (DN 55, Exh. I, 7.) Mayor Jim Eadens (“Mayor
Eadens”) had allegedly called Straughn believing there to be K-9 law enforcement dogs in the
yard around his home. (Id. at Exh. B, 1-2.) At this time, Caple was Hillview’s Chief of Police
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and Straughn was employed as Major of the Hillview police department. (Def.’s Ans. to Am.
Compl., DN 7, ¶¶ 4, 5.)
Plaintiffs Cook and Barrow and Defendants Straughn and Caple responded to Mayor
Eadens’ call. (DN 55, Exh. B, 1-2.) No law enforcement dogs were found at Mayor Eadens’
home, but Straughn and Barrow did discover a backpack on Mayor Eadens’ property while
walking around the premises. (Id. at 2-3.) Cook was asked to examine the backpack and he
found that it contained what looked like objects used to manufacture methamphetamine. (Id. at
Exh. C, 22-23.) Plaintiffs apparently suspected that the backpack belonged to the Mayor’s son.
(DN 54, Exh. E, 34:8-11.) The backpack was soon thereafter placed on the other side of a fence
surrounding Mayor Eadens’ property, allegedly at the direction of Caple. (DN 55, Exh. C, 2123.) This was on the opposite side of the fence that the backpack was originally discovered. (Id.
at Exh. B, 4.)
Cook believed that Caple ordered the backpack to be moved so as to protect Mayor
Eadens from bad publicity. (Id. at Exh. C., 26-27.) When Cook informed Barrow that the
backpack had been moved from its original location, Barrow suspected that the action was either
illegal or against policy. (Id. at Exh. D, 38.) Barrow claims that as he was walking towards his
car to leave Mayor Eadens’ property, Straughn ordered Barrow not to say a word to anyone
about what happened. (Id. at Exh. D, 38:7-13.)
Barrow reported the incident to the Bullitt County Sheriff Office, which then referred
Barrow to the Federal Bureau of Investigation (FBI).
(Id. at 16-18.)
Barrow and Cook
cooperated with the FBI in their investigation of what Cook claims the FBI called a case of
“political corruption.” (Id. at Exh. C, 38:16-22.) During the investigation, Caple was permitted
to continue acting as Chief of Police but was confined to “performing only administrative
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duties.” (Id. at Exh. G, 72:15-23.) Both Barrow and Cook claim, however, that despite this
“abstention of duties,” Caple retained all of his police powers. (Id. at 73-74.) These powers
included the ability to carry a badge and firearm and make arrests. (Id.)
Plaintiffs allege that they were subjected to adverse employment actions by Caple and
Straughn when it became known that they participated in the FBI investigation of Caple.
Plaintiffs claim that the following disciplinary actions against them evidence a “progression of
discipline” and were in retaliation for cooperating with the FBI:
On May 9, 2013, Barrow received a verbal reprimand for speeding in the parking
lot. (Id. at Exh. E.)
On May 31, 2013, Cook received a written reprimand for mishandling a case. (Id.
at Exh. F.)
On January 15, 2014, Barrow received a written reprimand for an alleged
violation of Hillview’s pursuit policy and video recording policy. This reprimand
sought a two-day suspension of Barrow. (Id. at Exh. A.)
On May 7, 2014, Cook received a verbal reprimand regarding daily log sheets.
(Id. at Exh. Q.)
On June 12, 2014, Cook received a memo written by Straughn concerning his
excessive absences. (Id. at Exh. M.)
On July 7, 2014, Cook was served with a notice of intent to interview him
regarding complaints for failure to investigate crimes. (DN 54-5, 52-53.)
On August 19, 2014, Cook was served with charges for attempting to add $2.50 to
the accounts of two Bullitt County Jail inmates for cooperation in an
investigation. These charges sought Cook’s termination. (Id. at 54-55.)
Plaintiffs assert that retaliation also occurred in forms other than written discipline.
Barrow points to the fact that he was initially denied court pay for his time meeting with the U.S.
Attorney concerning the investigation and prosecution of Caple.1 (DN 55, Exh. I, 52.) Barrow
also was required to take his two suspension days, pursuant to his January 15, 2014 disciplinary
charges, during the same pay period rather than over multiple pay periods to avoid financial
hardship. (Id. at 46-49.)
1
The decision denying Plaintiff Barrow’s request for court pay was later rescinded and he was ultimately
compensated for his time. (Id. at Exh. I, 52.)
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Barrow and Cook state that the abovementioned treatment was different from the
treatment of other Hillview police officers. For example, in September of 2014, Defendant
Straughn failed to turn on his video recording device during a traffic stop in violation of the
video recording policy and received no disciplinary charges. (Id. at Exh. I, 39-41.) Officers
McWhirter, Creason, and Clark were given either no discipline or only reprimands for violations
of pursuit and video recording policies. (Id. at Exh. I, 42-43; Id. at 44-45; Id. at Exh. G, 44-45.)
Additionally, while Barrow was required to take his two suspension days in the same pay period,
other officers were allowed to spread their suspension days over multiple pay periods. (Id. at
Exh. I, 52-53.)
Plaintiffs claim that this retaliatory treatment was promulgated by both Caple and
Straughn directly.
Caple and Straughn both signed Barrow’s May 9, 2013 reprimand for
speeding. (Id. at Exh. E.) Caple signed Cook’s May 31, 2013 reprimand for mishandling a case.
(Id. at Exh. F.) While he was under investigation, Caple continued attending meetings in which
the disciplinary charges of Barrow and Cook were discussed, despite alleging that he did not
participate in these discussions. (Id. at Exh. G, 28.)
On February 26, 2014, the Civil Service Board of Hillview upheld Barrow’s two day
suspension set forth in the Disciplinary Action Form dated January 15, 2014, for violations of
Hillview’s pursuit and video recording policies. (Id. at Exh. A.) Barrow appealed this decision
to the Bullitt Circuit Court in March of 2014, which affirmed the decision of the Hillview Civil
Service Board in July of 2015. (DN 54, Exh. G.) Meanwhile, Barrow filed a separate Complaint
in Bullitt Circuit Court against Defendants, which was subsequently removed to this court. (DN
1.) Cook filed an Intervening Complaint in October of 2014. (DN 14.) On January 29, 2015,
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Cook entered into a voluntary settlement agreement with the City of Hillview, in which it was
agreed to dismiss all pending disciplinary charges against him with prejudice. (DN 54, Exh. H.)
Defendants now move this court to enter summary judgment in their favor on all four
counts of Barrow’s Amended Complaint and Cook’s Intervening Complaint.
II.
STANDARD
A party moving for summary judgment must show that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally, the Court must
draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists when “there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).
III.
DISCUSSION
Plaintiff Barrow and Intervening Plaintiff Cook bring the following claims: Count I
under 42 U.S.C. §§ 1985 and 1986 against Defendants Caple and Straughn, individually, for
conspiracy to deter Plaintiffs from testifying freely and to penalize Plaintiffs for doing so; Count
II, for Tortious Employment Reprisal under Kentucky law against Defendant Hillview, for
adverse employment action contrary to public policy; Count III, under 42 U.S.C. § 1983, against
Defendant Hillview and individual Defendants, for reprisal for First Amendment speech; and
Count IV, under Section 2 of the Kentucky Constitution, against individual Defendants for
arbitrary governmental authority. (DN 6; DN 14.)
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Defendants Caple, Straughn, and Hillview move for summary judgment on Plaintiff’s
Amended Complaint and Intervening Plaintiff’s Intervening Complaint. The court will address
each count in turn.
a. Immunity
As an initial matter, the court will address the issue of qualified immunity as raised by
Defendants. Qualified Immunity protects government officials who are performing discretionary
functions “from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
This doctrine attempts to balance two
important considerations – “the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Determining if a party is insulated from suit under qualified immunity is a two-part
inquiry: (1) whether the defendant violated a constitutional right; and (2) whether that right was
clearly established. Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010). Whether a right was
clearly established is a question of law. Dickerson v. McClellan, 101 F.3d 1151, 1156–57 (6th
Cir. 1996). The court is not required to undertake this inquiry in sequential order and, instead,
may “exercise [its] sound discretion in deciding which of the two prongs . . . should be addressed
first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
When the issue of qualified immunity is raised, the plaintiff has the burden of showing that the
defendants are not entitled to qualified immunity. Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th
Cir. 2012) (citing Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)).
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Defendants raised the issue of qualified immunity in their motion for summary judgment.
For reasons stated below, this court finds that Plaintiffs have failed to show that the individual
Defendants violated their constitutional or statutory rights; therefore, the issue of qualified
immunity is moot.
b. Count I: 42 U.S.C. §§ 1985(2) and 1986
Plaintiffs first bring claims under 42 U.S.C. §§ 1985(2)2 and 1986. Count I of Barrow’s
Amended Complaint alleges that Defendants Caple and Straughn, in their individual capacities,
intended to “deter the Plaintiff from testifying freely, fully, and truthfully in [United States v.
Caple]3 and to punish him for doing so.” (DN 6, ¶ 18.) Barrow further alleges that Caple and
Straughn “conspired with each other and acted in concert with each other” in so deterring his
testimony. (Id. at ¶ 17.) Intervening Plaintiff Cook brings the same allegation in his Intervening
Complaint. (DN 14, ¶¶ 17-18.) The City of Hillview is not a party to this claim.
1. Section 1985(2) Claims
Section 1985(2) states that it is an unlawful conspiracy to interfere with civil rights, in
relevant part:
[i]f two or more persons in any State or Territory conspire to deter, by
force, intimidation, or threat, any party or witness in any court of the United
States from attending such court, or from testifying to any matter pending therein,
freely, fully, and truthfully, or to injure such party or witness in his person or
property on account of his having so attended or testified…
42 U.S.C. § 1985(2). Therefore, “[t]o sustain a cause of action under 42 U.S.C. §
1985(2), a plaintiff must prove the existence of a conspiracy among ‘two or more persons.’”
Doherty v. American Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984). Additionally, a plaintiff
2
Neither Plaintiff’s Amended Complaint nor Intervening Plaintiff’s Intervening Complaint specifies that the claims
are brought under subsection 2 of 42 U.S.C. § 1985. However, Plaintiffs clarify in briefing that they only allege
claims under 42 U.S.C. § 1985(2). (DN 55, 14.)
3
When Plaintiff Barrow’s Amended Complaint was filed, a criminal prosecution was still pending in the United
States District Court for the Western District of Kentucky, No. 3:13-cr-00134-CRS-1. (DN 6, ¶ 15.)
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must support a claim under Section 1985 with “specific allegations showing the existence of a
conspiracy.” Azar v. Conley, 456 F.2d 1382, 1384 (6th Cir. 1972).
Because the language of Section 1985(2) requires that the conspiracy is among “two or
more persons,” courts have found that a corporation cannot conspire with itself. This notion,
called the “intra-corporate conspiracy doctrine,” states that “if all of the defendants are members
of the same collective entity, there are not two separate ‘people’ to form a conspiracy.” Johnson
v. Hills & Dales General Hosp., 40 F.3d 837, 830-40 (6th Cir. 1994) (quoting Hall v. Cuyahoga
Valley Joint Vocational Sch. Bd. Of Educ., 926 F.2d 505, 510 (6th Cir. 1991). While the intracorporate conspiracy theory developed within the frame-work of antitrust law, courts have
consistently applied the theory in Civil Rights cases. Doherty, 728 F.2d at 339. This doctrine is
applicable to both government entities and corporations. Brace v. Ohio State Univ., 866 F. Supp.
1069, 1075 (S.D. Ohio 1994). Therefore, under this doctrine, the City of Hillview may not be
held liable for any claims under 42 U.S.C. § 1985(2).
Defendants concede that an exception to the intra-corporate conspiracy doctrine exists
when employees or agents of the same entity act outside the scope of their employment.
Johnson, 40 F.3d at 840. The fact that Plaintiffs’ claims were brought against Caple and
Straughn in their individual capacities is not sufficient to establish that Defendants were acting
outside the scope of their employment. Jackson v. City of Columbus, 194 F.3d 737, 753 (6th Cir.
1999) (citing Harris v. Board of Educ., 798 F. Supp. 1331, 1346 (S.D. Ohio 1992) (“[S]imply
joining corporate officers as defendants in their individual capacities is not enough to make them
persons separate from the corporation in legal contemplation. The plaintiff must also allege. . .
that they acted other than in the normal course of their corporate duties.”) (internal quotation
marks and citation omitted)).
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The Sixth Circuit case Johnson v. Hills & Dales General Hosp. is instructive in
determining whether Plaintiffs have alleged facts sufficient to overcome the intra-corporate
conspiracy doctrine.4 40 F.3d 837. This case distinguished between “collaborative acts done in
pursuit of an employer’s business and private acts done by persons who happen to work at the
same place.” Id. at 841. In other words, “managers of a corporation jointly pursuing its lawful
business do not become ‘conspirators’ when acts within the scope of their employment are said
to be discriminatory or retaliatory.” Id. (citing Travis v. Gary Community Mental Health Ctr.,
Inc., 921 F.2d 108, 110 (7th Cir. 1990)). The Court noted that “internal corporate decisions” will
“almost always be within the scope of employment.” Id. at 840-41.
The Court in Johnson found that the defendants, employees of a hospital, were acting
within the scope of their employment when they wrote a letter to their hospital’s administration
complaining about the performance of the plaintiff, a physician at the hospital. Id. at 838. As a
result of the letter, the hospital president reassigned the physician to a different hospital
department. Id. The plaintiff claimed she was reassigned because of racial discrimination, but
the Court found that the actions of the defendants were protected by the intra-corporate
conspiracy doctrine because, “the employees’ complaints were made during the course of their
working hours, the remarks were connected to the business of the hospital, and they were
forwarded to proper managerial authorities.” Id. at 841. See also Irons v. City of Bolivar, 897
F. Supp.2d 665, 669-70 (W.D. Tenn. 2012) (“Because the power to fire the police chief fell
within the Mayor’s authority and the power to review that decision was within the duty of the
Personnel Board, the alleged conduct did not fall outside the scope of the Defendants’
employment.”)
4
While the claim in Johnson was brought under Section 1985(3), which requires evidence of the intent to deprive a
person or class of persons of the equal protection of the laws, the general application of the intra-corporate
conspiracy doctrine and its exceptions applies to Section 1985(2) claims.
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Applying the reasoning in Johnson, this court finds that the alleged retaliatory actions of
Caple and Straughn in disciplining Barrow and Cook are “internal corporate decisions” such that
Defendants were acting within the scope of their employment. The disciplinary charges against
Plaintiffs were made during the course of their working hours, all the charges were connected to
the Hillview police department and its policies, and the disciplinary charges were subject to
review by the Hillview Civil Service Board. Further, it is not relevant whether plaintiffs actually
committed the Hillview violations they were charged with; it is enough that the alleged
retaliatory actions were connected to the “legitimate business” of the Hillview Police
Department. See Johnson, 40 F.3d at 841 (“[I]t is not necessary that the complaints were based
on fact.”).
Construing all factual inferences in favor of Plaintiffs, the court nevertheless concludes
that Barrow and Cook failed to allege sufficient facts to show that the Individual Defendants
acted outside the scope of their employment in bringing disciplinary actions against them.
Therefore, the intra-corporate conspiracy rule applies such that at least two separate people did
not exist to form a conspiracy against Plaintiffs. Plaintiffs’ Section 1985 claims fail as a matter
of law and Defendants’ motion for summary judgment will be granted with respect to Count I of
the Plaintiffs’ complaints.
2. Section 1986 Claims
42 U.S.C. § 1986 provides a cause of action against persons who fail to prevent a
conspiracy under 42 U.S.C. § 1985. See Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984).
Therefore, in order to state a cause of action under Section 1986, Plaintiffs must first establish a
cause of action under Section 1985. Because no conspiracy exists under Section 1985, Plaintiffs’
Section 1986 claims must be dismissed as a matter of law.
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c. Count II: Tortious Employment Reprisal
Plaintiffs bring claims against the City of Hillview under Kentucky common law for
alleged “tortious employment reprisal.” Specifically, Plaintiffs claim that failing to report the
conduct of Defendant Caple in January 2012 would have “constituted the crime of official
misconduct under the Kentucky Penal Code.” (DN 6, ¶ 23.) As such, Plaintiffs assert that
adverse employment actions, allegedly taken by Defendants against Plaintiffs for compliance
with the Kentucky Penal Code, contravene “fundamental and well-established” public policy
under Kentucky law. For the following reasons, the court finds that, even construing the facts in
the light most favorable to Plaintiffs, Count II of Barrow’s Amended Complaint and Cook’s
Intervening Complaint should be dismissed as a matter of law.
Plaintiffs are correct that Kentucky recognizes a common law retaliation claim distinct
from an action under the Kentucky Whistleblower Statute, Ky. Rev. Stat. (KRS) § 61.102.5 This
common law action is called “public policy wrongful discharge.” While Plaintiffs call their
cause of action “tortious employment reprisal,” the case law they offer in support of their claim
solely refers to “public policy wrongful discharge.” Therefore, Count II will be construed as a
public policy wrongful discharge claim.
An action under the theory of wrongful discharge “is a relatively recent development,
having arisen out of carefully crafted exceptions” to the terminable-at-will doctrine. Hill v.
Kentucky Lottery Corp., 327 S.W.3d 412, 420 (Ky. 2010). The terminable-at-will doctrine is a
5
KRS § 61.102 states, in relevant part,
No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official
authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress,
dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good
faith reports, discloses, divulges, or otherwise brings to the attention of…any law enforcement
agency or its employees, or any other appropriate body or authority, any facts or information
relative to an actual or suspected violation of any law…
Plaintiff Barrow brought a claim under KRS § 61.102 in his original complaint (DN 1.) Barrow voluntarily
dismissed this claim upon filing his Amended Complaint. (DN 6.)
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common law principle whereby “an employer may discharge his at-will employee for good
cause, no cause, or for a cause that some might view as morally indefensible.” See Firestone
Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1984).
There are only two identified situations in Kentucky in which “grounds for discharging
an employee are so contrary to public policy as to be actionable absent explicit legislative
statements prohibiting the discharge.” Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky. 1985). These
situations are: “where the alleged reason for the discharge of the employee was the failure or
refusal to violate a law in the course of employment” or, “when the reason for a discharge was
the employee's exercise of a right conferred by well-established legislative enactment.” Id.
(citing Suchodolski v. Michigan Consolidated Gas Co., 316 N.W.2d 710, 711-12 (Mich. 1982)).
Plaintiffs argue that they were retaliated against under the first situation; that failing to
report the actions of Defendant Caple would be a violation of KRS § 522.030, Official
Misconduct in the Second Degree. KRS § 522.030 states in relevant part that “[a] public servant
is guilty of official misconduct in the second degree when he knowingly. . . [r]efrains from
performing a duty imposed upon him by law or clearly inherent in the nature of his office.” KRS
§ 522.030(1)(b). Reporting Defendant Caple’s conduct, Plaintiffs assert, was a duty of their
office; failing to report Caple’s conduct would have amounted to a violation.
The tort of public policy wrongful discharge is not applicable to Plaintiffs’ cases. Firstly,
this action relates to the wrongful discharge of an employee, not adverse employment action in
general. See Gritton v. Disponett, 2007 WL 3407459 at *12 (E.D. Ky. 2007) (“Actual discharge
or termination of employment is an essential element of a wrongful discharge claim under
Kentucky law.”).
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There is no dispute that Plaintiff Barrow was not terminated from the Hillview police
department. (DN 55, Exh. D, 70:2-12.) Barrow’s testimony that he believed he would have
been terminated if not for the filing of the present lawsuit is merely speculative. (Id.) Cook,
likewise, was not terminated from his position. (Id. at Exh. N.) Cook entered into a voluntary
settlement with the Hillview Civil Service Board before the hearing on his charges, resulting in a
transfer from his position as a detective to patrol officer. (Id.) As neither Barrow nor Cook was
terminated, Plaintiffs cannot establish a claim under common law wrongful discharge.
Even if, arguendo, this court was to apply the concept of public policy wrongful
discharge to adverse employment action in general, the law is clear that this action evolved as a
public policy exception to the “terminable-at-will” doctrine. See, e.g., Hill, 327 S.W.3d at 420
(finding “a narrow public policy exception should be adopted” for the terminable-at-will
doctrine); See also Grzyb, 700 S.W.2d at 401 (noting “the limitations on any judicial exceptions
to the employment-at-will doctrine”) (internal citations omitted);
See also Firestone, 666
S.W.2d at 732 (reaffirming the “terminable-at-will” doctrine in light of public policy wrongful
discharge).
Conversely, a claim under common law wrongful discharge is inapplicable to Barrow and
Cook because they are police officers in the civil service of the City of Hillview and are not
“terminable-at-will.”
In Kentucky, an employee is at-will “unless the parties specifically
manifest their intention to condition termination only according to express terms....” Jones v.
Perry County Fiscal Court, 185 F.Supp.3d 947, 955 (E.D. Ky. 2016) (citing Bailey v. Floyd
Cnty. Bd. of Educ., 106 F.3d 135, 141 (6th Cir.1997)). A government position, by itself, does
not constitute a protected property interest such that an employee is only terminable for cause.
Bailey, 106 F.3d at 141.
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Section 37.07(a) of the City of Hillview, Kentucky City Ordinances (“City Ordinances”)
states that:
No employee in the classified service of this city shall be dismissed, suspended,
or reduced in grade or pay for any reason except inefficiency, misconduct,
insubordination or violation of law involving moral turpitude, or violation of any
rule adopted by the city legislative body or Civil Service Commission.
(DN 54, Exh. A, § 37.07(a).) Hillview adopted civil service for Hillview police officers
during the time relevant to this action. (Id., § 37.02.) As such, the Plaintiffs’ employment may
only be terminated for the conditions stated in Section 37.07(a), above, and they are therefore not
terminable-at-will. Plaintiffs’ employment is protected from termination under the provisions of
the City Ordinances and they do not need the benefit of the carefully crafted public policy
exception to the terminable-at-will doctrine.
Plaintiffs only provided authority for a claim of public policy wrongful discharge and
they offered no support for a common law tortious employment reprisal claim distinct from
wrongful discharge. Therefore, this court has construed the Plaintiffs’ claims as common law
wrongful discharge actions has concluded that this cause of action is inapplicable to the facts of
Plaintiffs’ cases. Because there is no dispute that Barrow and Cook were not discharged from
employment, and because, as police officers in the civil service of the City of Hillview, they
were not terminable-at-will, Defendants’ motion for summary judgment as to Plaintiffs’ claims
under Count II will be granted. Consequently, Count II of the Amended Complaint and the
Intervening Complaint will be dismissed.
d. Count III: 42 U.S.C. § 1983
Plaintiff Barrow claims, in the alternative to Count II of his Amended Complaint, that
reporting the actions of Defendant Caple at Mayor Eadens’ house in January of 2012 to law
enforcement agencies is protected First Amendment speech and that Defendants unlawfully
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retaliated against him for so exercising this protected speech. (DN 6, ¶ 28.) Intervening Plaintiff
Cook alleges in his Intervening Complaint that his cooperation with law enforcement in
investigating the abovementioned actions of Defendant Caple is similarly protected by the First
Amendment; likewise, he alleges that he was also retaliated against for exercising this protected
speech. (DN 14, ¶ 28.) Plaintiffs bring these claims pursuant to 42 U.S.C. § 1983. Because
Plaintiffs do not factually or legally substantiate a claim under Section 1983, Count III of the
Amended Complaint and Intervening Complaint must be dismissed. The Court will address
separately the claims against the individual Defendants and the claims against Defendant
Hillview.
1. Section 1983 Claims Against Caple and Straughn
Section 1983 does not, in itself, create substantive rights, but rather provides “a method
for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144
(1979). Generally, a plaintiff claiming a Section 1983 violation must prove that a government
action occurred “under color of law,” and that the government action is a deprivation of a
constitutional right or federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
Government officials sued in their individual capacities may be liable under Section 1983. Hafer
v. Melo, 502 U.S. 21, 23 (1991).
Plaintiffs bring Section 1983 claims against Caple and
Straughn, individually, for violation of their First Amendment rights.
Plaintiffs, as public employees, are subject to diminished First Amendment rights in
certain circumstances. Public employees, however, are not stripped of all First Amendment
rights by virtue of employment; courts are clear that a distinction exists between “speech offered
by a public employee acting as an employee carrying out his or her ordinary job duties and that
spoken by an employee acting as a citizen expressing his or her personal views on disputed
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matters of public import.” Garcetti v. Ceballos, 547 U.S. 401, 416 (2006) (emphasis in original).
In order to establish a First Amendment claim under Section 1983, public employees must show
that: (1) their First Amendment activity dealt with an issue of public concern and (2) that their
interests in speaking outweighed the defendant’s interests in regulating their speech.
See
Connick v. Myers, 461 U.S. 138, 147 (1983).
This first inquiry, whether the public employee’s speech is a matter of public concern, is
a question of law to be decided by the court. Johnson v. University of Cincinnati, 215 F.3d 561,
583 (6th Cir. 2000). “Whether an employee’s speech is a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147-48. The Supreme Court in Garcetti held that “when public
employees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes.” 547 U.S. at 421.
Defendants argue that “It was [Plaintiffs’] sworn duties as police officers to report any
such suspected illegal activities to appropriate law enforcement authorities, which they did… It
cannot be reasonably disputed that Barrow and Cook’s reports to law enforcement authorities
were made pursuant to their official employment duties.” (DN 54, 21.) Plaintiffs do not dispute
this argument. In fact, Plaintiffs admit that they believe their cooperation with the FBI was
pursuant to their official employment duties: “as we now believe is clear, [Plaintiffs’] speech was
action constituting performance of their law enforcement duties.” (DN 55, 31.) Rather, Barrow
and Cook clarify that they bring Count III only as an alternative to Count II in case the court
“may not agree that cooperating with the FBI and testifying in the Caple suit was part of
Plaintiffs’ law enforcement duties.” (Id.)
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While the court acknowledges that a claim may be brought in the alternative,6 Cook and
Barrow must nevertheless meet the summary judgment standard for the alternative claim in order
for that claim to survive a properly supported motion. The Federal Rules of Civil Procedure
(FRCP) Rule 56(e) provides that, “when a properly supported motion for summary judgment is
made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Liberty Lobby, 477 U.S. at 250. Plaintiffs have failed to set forth any facts tending to
support their alternative argument that Cook and Barrow were acting outside the scope of their
employment duties when they participated in the FBI investigation.
Under Count II, Plaintiffs support their contention that Barrow and Cook were acting
within the scope of their employment. As previously addressed at length in this Memorandum
Opinion,7 Plaintiffs argue that, “Enforcement of criminal law… is a duty inherent in the nature of
a law-enforcement official.”
Plaintiffs provide the language of KRS § 522.030, Official
Misconduct in the Second Degree, in support. (DN 55, 34.) Conversely, in their argument for
Count III, Plaintiffs do not offer a single fact tending to show that, in the alternative, Barrow and
Cook were engaging in protected First Amendment activity. Plaintiffs similarly do not offer any
law or precedent supporting an argument that reporting misconduct or participating in an FBI
investigation is protected speech. Barrow and Cook merely “ask the court not to dismiss [Count
III] at this point, but to wait until the scope of Plaintiffs’ duties issue is resolved.” (Id. at 31.)
This “wait and see” approach is irreconcilable with their burden on a properly supported motion
for summary judgment. Plaintiffs have neither moved for summary judgment nor met the
6
Federal Rules of Civil Procedure Rule 8(d) states that, “A party may state as many separate claims or defenses it
has, regardless of consistency.”
7
See Section C, “Count II: Tortious Employment Reprisal” of the “Discussion” of this Memorandum Opinion.
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summary judgment requirements for an adverse party under FRCP Rule 56(e); consequently,
Plaintiffs’ Section 1983 claims against Caple and Straughn will be dismissed.8
2. Section 1983 Claims Against Hillview
Next, the court turns to Defendants’ argument that Plaintiffs’ claims against the City of
Hillview must fail to the extent that Plaintiffs attempt to assert a claim under Monell v. Dept. of
Social Services of the City of New York, 436 U.S. 658 (1978). Monell allows local governing
bodies to “be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as
here, the action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
Id. at 690.
Similarly, local governments may be liable for implementing or adopting
unconstitutional customs. Id.
While not specifically referencing Monell, Plaintiff’s Amended Complaint states that,
“The retaliatory reprisals against the Plaintiff were carried out by the Defendant Hillview
through the actions of Caple and Straughn… and constitute the result of Hillview policy as
imposed by said individuals.” (DN 6, ¶ 29.) Cook’s Intervening Complaint states the same.
(DN 14, ¶ 29.) Beyond this allegation, there is nothing in the record to indicate that Caple and
Straughn were implementing or executing any unconstitutional policy, ordinance, regulation,
decision, or custom of Hillview or its Ordinances. The court thus finds that Plaintiffs have not
established a Monell claim.
8
Additionally, Plaintiffs fail to meet their burden in overcoming Defendants’ qualified immunity defense.
Defendants raised the issue of qualified immunity for Count III: “[Defendants] are entitled to qualified immunity
where applicable, and Plaintiff’s [sic] claims for violations of 42 U.S.C. Section 1983 must fail.” (DN 54, 11.)
When a defendant raises this issue, the burden shifts to the plaintiff to show that the defendant is not entitled to
qualified immunity. See Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012). Plaintiffs fail to address qualified
immunity under their Section 1983 claims.
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For the reasons stated, summary judgment will be granted to Defendants on Plaintiffs’
Section 1983 claims. Count III of Barrow’s Amended Complaint and Cook’s Intervening
Complaint will be dismissed.
e. Count IV: Kentucky Constitution § 2
Plaintiffs lastly claim that the actions of Defendants constituted arbitrary governmental
authority under Section 2 of the Kentucky Constitution.
Count IV of Plaintiff Barrow’s
Amended Complaint states, “The actions of Defendants as set out above constitute the exercise
of arbitrary governmental authority prohibited by Section 2 of the Kentucky Constitution.” (DN
6, ¶ 33.) Barrow’s Amended Complaint further states that “The Defendants are therefore liable
to the Plaintiff for damages caused by such actions.”
(Id. at ¶ 34.)
Cook’s Intervening
Complaint alleges the same. (DN 14, ¶ 33-34.)
The language of Section 2 of the Kentucky Constitution is brief, simply stating, in full:
“Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a
republic, not even in the largest majority.” Ky. Const. § 2. In essence, “Section 2 is a curb on
the legislature as well as on any other public body or public officer in the assertion or attempted
exercise of political power.” Kentucky Milk Marketing and Antimonopoly Com'n v. Kroger Co.,
691 S.W.2d 893, 899 (Ky. 1985). Under Kentucky law, judicial power may be used to intervene
upon governmental action “[i]f the action taken rests upon reasons so unsubstantial or the
consequences are so unjust as to work a hardship.” Id. (citing Wells v. Board of Education of
Mercer County, Ky., 289 S.W.2d 492, 494 (Ky. 1956)).
In a 2011 decision, the Kentucky Supreme Court specifically declined to create a private
right of action in Kentucky for money damages for violations of the state constitution. St. Luke
Hosp., Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011). The Court noted that Kentucky’s General
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Assembly has not authorized a statutory private right of action for state constitutional violations
and the Court rejected the request to create a constitutional tort akin to a federal Bivens action.
Id. at 536-37 (discussing Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)). Because
Plaintiffs seek “damages caused by such actions” of individual Defendants for violations of
Section 2 of the Kentucky Constitution, Count IV of Barrow’s Amended Complaint and Cook’s
Intervening Complaint are not cognizable and will be dismissed.
IV.
CONCLUSION
For the reasons stated, the court will GRANT the motion of Defendants Hillview,
Straughn, and Caple for summary judgment.
The Court will DISMISS Plaintiff Barrow’s
Amended Complaint and DISMISS Intervening Plaintiff Cook’s Intervening Complaint.
An order will be entered in accordance with this opinion.
December 14, 2017
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