Sexton v. Hannibal, Missouri, City of et al

Filing 98

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Hannibal Defendants motion for partial summary judgment is GRANTED with respect to Count III, and DENIED in other regards with respect to Defendant Terry. [Doc. # 69 ]IT IS FURTHER ORDERED that Def endant Hickss motion for summary judgment is GRANTED as to Counts I, III, IV, V, and Count II based upon an alleged equal protection violation, and DENIED as to Count II based upon an alleged First amendment violation. [Doc. #66] Signed by Honorable Audrey G. Fleissig on 5/27/11. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

MARY SEXTON,
Plaintiff,
v.
CITY OF HANNIBAL, et al.,
Defendants.

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No. 2:09CV00008 AGF

MEMORANDUM AND ORDER
In this case, Plaintiff Mary Sexton claims that she was fired from her job with the
City of Hannibal (“the City”) at the Hannibal Convention and Visitors Bureau (“HCVB”)
in violation of her First Amendment rights, her equal protection rights, Missouri common
law for wrongful discharge (“whistleblowing”), the Missouri Human Rights Act, and
Title VII of the Civil Rights Act of 1964. Now before the Court are the motions for
summary judgment filed by Defendant Beau Hicks, the Executive Director of the HCVB;
and the motion for partial summary judgment filed by the remaining Defendants -- the
City, the members of the HCVB Board of Directors (Jim Behrens, Bob Gilstrap, Beth
Knight, Steve Ayers, Melanie Campbell, Steve Terry), and the City Manager (Jeff
LaGarce) (collectively referred to herein as the “Hannibal Defendants”). In the latter
motion, in addition to seeking partial summary judgment along with the other Hannibal
Defendants, Defendant Terry seeks summary judgment on all claims. For the reasons set

forth below, both motions shall be granted in part and denied in part.
BACKGROUND
As motions for summary judgment are under consideration, the Court describes the
facts in the light most favorable to Sexton. See, e.g., Alvarez v. Des Moines Bolt Supply,
Inc., 626 F.3d 410, 413 (8th Cir. 2010). Sexton began working for the City in 1997 as a
secretary. On May 31, 2005, she was transferred to HCVB, where her title was Tour and
Travel Manager. In approximately October 2007, Terry, who was then the president of
the HCVB Board of Directors, began to bother Sexton and complain about her job
performance allegedly to get her to leave the job so that his daughter could be hired in
Sexton’s place. Sexton complained to Hicks and LaGarce about Terry’s conduct, but no
action was taken to rectify the situation.
On October 10, 2008, Plaintiff reported to the Hannibal Police Department that
Terry was harassing/stalking her. She was advised to keep a record of such behavior;
ultimately nothing was done on the matter. On October 24, 2008, Sexton reported to the
police that money was missing from the HCVB petty cash fund. At the direction of the
police, Sexton reported her concerns about the missing money, to LaGarce and the City
Clerk, Angelica Zerbonia. Sexton told them that she suspected that Hicks was
responsible for the missing money, as well as for numerous other improper acts, including
going to a local casino during work hours and using the HCVB van for personal use.
LaGarce asked Hicks if he had engaged in any of the wrongdoing and Hicks denied it.
This was the extent of LaGarce’s investigation.
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On November 10, 2008, the HCVB Board of Directors, which consisted of
Defendants Behrens, Gilstrap, Knight, Ayers, Campbell, and Terry, met. Terry excused
himself from the meeting because he knew that Sexton’s complaints against him were
going to be discussed. The remaining Board members then voted to go into closed
session. Hicks was excused from the meeting, and Sexton was invited into the meeting.
She was asked questions about her complaints regarding Terry, but not about her
accusations against Hicks. She was then excused from the meeting and the Board
members who were present voted unanimously to clear Hicks “of any wrongdoing
pertaining to what was brought forth to” LaGarce and the City Clerk by Sexton, and to
terminate Sexton due to dishonesty and making false and malicious statements about
Hicks.
When Sexton was asked during her deposition whether she had any proof that
Hicks had stolen money from the HCVB petty cash, Sexton responded that she “never
accused him of taking money from anything.” She testified that money was missing but
that she “didn’t know where it was going.”
At all relevant times, the City was insured through a Missouri Intergovernmental
Risk Management Association (“MIRMA”) plan, which provides that it “does not apply
to any claim or “suit’ which is barred by the doctrines of sovereign immunity and/or
official immunity . . . .” The plan also includes a section, “Employment Practices
Liability Coverage,” which provides coverage for “any loss which [the City] shall become
legally obligated to pay as a result of any claim for [a] . . . wrongful act of termination.”
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All counts of Sexton’s five-count amended complaint are brought against all
Defendants, with the individual Defendants sued in their individual and official
capacities. Counts I, II, and IV are brought under 42 U.S.C. § 1983. Count I asserts that
Defendants fired Sexton in violation of her First Amendment rights for reporting her
concerns about Hicks’s wrongdoing to the police, LaGarce, and the City Clerk. In Count
II, Sexton claims that Defendants conspired to protect Hicks and fire Sexton because of
her constitutionally protected speech, and to treat her less favorably than male employees
of the City in violation of her equal protection rights. In Count IV Sexton claims that
Defendants’ actions were taken due to her gender, in violation of her equal protection
rights.
Count III asserts a Missouri state common law claim of wrongful discharge for
whistleblowing. Lastly, in Count V, Sexton claims that Defendants fired her because of
her gender, in violation of Title VII of the Civil Rights Act of 1964, and the Missouri
Human Rights Act (“MHRA”), Mo. Rev. Stat. § 213.010, in that male employees of the
City who, unlike her, had actually engaged in acts of misconduct, were not fired, but
given lesser punishments, such as administrative leave without pay.
DISCUSSSION
Summary Judgment Standard
The Court may grant a motion for summary judgment if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
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moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
burden is initially placed on the moving party to establish the absence of a genuine issue
of material fact and that the party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). In ruling on a motion for summary judgment,
the Court must view the facts in the light most favorable to the nonmoving party, and all
justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252, (1986). The Court’s function is not to weigh the evidence, but to
determine whether there is a genuine issue for trial. Id. at 249. “However, ‘[t]he mere
existence of a scintilla of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for the
[nonmovant].’” Tusing v. Des Moines Indep. Cmty. Sch. Dist., ___ F.3d ___, 2011 WL
1364477, at *3 (8th Cir. April 12, 2011) (quoting Anderson, 477 U.S. at 252).
The Hannibal Defendants’ Motion for Partial Summary Judgment
The Hannibal Defendants move for summary judgment on the wrongful discharge
claim under Missouri law (Count III). They argue that (1) sovereign immunity bars this
claim against the City and the individual Defendants in their official capacities, and (2)
this claim can only be brought against Sexton’s actual former employer, which was the
City, and not against the individual defendants in their individual capacities. The Court
agrees with both contentions.
Under Missouri law, a municipality has sovereign immunity from whistleblower
actions for wrongful termination, unless that immunity has been waived. Brooks v. City
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of Sugar Creek, ___ S.W.3d ___, 2011 WL 976741, at *2 (Mo. Ct. App. W.D.) (March
22, 2011) (citing Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. 2006). [W]hen a
public entity purchases liability insurance for tort claims, sovereign immunity is waived
to the extent of and for the specific purposes of the insurance purchased. Id. Sexton’s
argument that the “Employment Practices Liability Coverage” section of the MIRMA
plan waives the City’s sovereign immunity with regard to Count III is foreclosed by
Topps v. City of Country Club Hills, 272 S.W.3d 409, 415 (Mo. Ct. App. 2008), which
held that such a provision does not override a provision in the same policy stating that the
policy is not meant to constitute a waiver of sovereign immunity.
Turning to the Hannibal Defendants’ second argument, in Taylor v. St. Louis Cnty.
Bd. of Election Comm’rs, 625 F.3d 1025, 1029 (8th Cir. 2010), the Eighth Circuit held
that under Missouri law, only a plaintiff’s actual employer was subject to suit for
wrongful termination due to whistleblowing. Id. at 1028-29. Here, Sexton’s actual
employer was the City. Thus, the individual Hannibal Defendants are entitled to
summary judgment on Count III in their individual capacities. See id.
Terry’s Motion for Summary Judgment
Terry argues that he is entitled to summary judgment on all claims because he was
not at the meeting when the decision was made to fire Sexton and there is no evidence to
support a claim that he conspired with the other individual Defendants to fire her. To
establish a § 1983 conspiracy claim, a plaintiff “must show evidence sufficient to support
the conclusion that the defendants reached an agreement to deprive the plaintiff of
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constitutionally guaranteed rights.” White v. McKinley, 519 F.3d 806, 816 (8th Cir.
2008) (quoting another source). “The question of the existence of a conspiracy to deprive
[a plaintiff of her] constitutional rights should not be taken from the jury if there is a
possibility the jury could infer from the circumstances a meeting of the minds or
understanding among the conspirators to achieve the conspiracy’s aims.” Id. (affirming
the district court’s denial of a private party’s motion for summary judgment on § 1983
conspiracy claim). Proof of a conspiracy will often consist only of circumstantial
evidence. Id.
Here, the Court believes that, taking the facts in the light most favorable to Sexton,
there remain genuine issues of material fact regarding whether Terry conspired with the
other Defendants to fire Sexton for an unconstitutional reason. Accordingly, Terry’s
motion for summary judgment shall be denied.
Hicks’s Motion for Summary Judgment on Sexton’s First Amendment Claim and
Related Conspiracy Claim
Hicks argues that Sexton’s First Amendment retaliation fails as to him because
Sexton’s report to the police that Hicks was engaged in improper conduct involved
“nothing more than personnel matters,” and not matters of public concern; and Sexton
spoke to the police as an employee pursuant to her official duties, and not as a public
citizen. Hicks points to Sexton’s deposition testimony that her job duties included
identifying noncompliance with city regulations and making recommendation to correct

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any noncompliance. He also asserts that the claim fails because it was the HCVB board,
not him, that fired Sexton.
A public employee engages in speech protected under the First Amendment if she
speaks “as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). This is a two-part question of law for the Court. McGee v. Pub. Water
Supply, Dist. #2 of Jefferson Cnty., Mo., 471 F.3d 918, 920 (8th Cir. 2006). “[W]hen
public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421.
Here, the Court concludes that Hicks’s alleged wrongdoing was a matter of public
concern. See Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency and
misconduct is a matter of considerable significance.”); Lindsey v. City of Orrick, Mo.,
491 F.3d 892, 899 (8th Cir. 2007) (“Criticism . . . of government officials and their
policies clearly addresses matters of public concern”).
The Court further concludes that Sexton spoke as a citizen when she reported
Hicks’s alleged wrongdoing to the police, and not as an employee, because, even
accepting Hicks’s characterization of Sexton’s job duties, reporting her supervisor’s
alleged wrongdoing to the police was not part of her official duties. See Thomas v. City
of Blanchard, 548 F.3d 1317, 1323-24 (10th Cir. 2008) (holding that when city building
code inspector went beyond complaining to his supervisors about an impropriety in
issuing a certificate of occupancy to the mayor, and threatened to report to a state
investigative agency outside his chain of command, his speech ceased to be merely
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pursuant to his official duties and became the speech of a concerned citizen; “The
question under Garcetti is not whether the speech was made during the employee’s work
hours, or whether it concerned the subject matter of his employment. . . . Rather, it is
whether the speech was made pursuant to the employee’s job duties, or in other words,
whether it was ‘commissioned’ by the employer”) (quoting Garcetti, 547 U.S. at 421-22);
Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (surveying post-Garcetti case law
and concluding that complaints raised up the chain-of command in a public workplace are
often viewed as being pursuant to one’s job duties while “external communications” in
which a public employee raises concerns to persons outside the workplace are “ordinarily
not made as an employee, but as a citizen”).1
Hicks is correct, however, that because he was not Sexton’s employer, he cannot
be liable under § 1983, for her termination. Thus, Hicks is entitled to summary judgment
on Count I of Sexton’s complaint. Hicks can, however, be liable, for conspiracy to
violate Sexton’s First Amendment rights. In this regard, Hicks argues that Sexton failed
to produce sufficient evidence of his participation in such a conspiracy, to survive
summary judgment on this claim. The Court concludes, as it did above in Terry’s case,
that, taking the facts in the light most favorable to Sexton, there remain genuine issue of

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Even speech on a matter of public concern by a public employee speaking as a
citizen may be limited if “the statements are too damaging to the government's capacity to
conduct public business to be justified by any individual or public benefit thought to flow
from the statements.” Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, Will Cnty.,
391 U.S. 563 (1968). Hicks, however, does not raise a Pickering argument in support of his
motion for summary judgment.
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material fact on whether Hicks conspired with the other Defendants to fire Sexton in
violation of her First Amendment rights. The Court rejects Hicks’s further argument that
because no First Amendment violation was established, he is entitled to qualified
immunity on this claim.
Hicks’s Motion for Summary Judgment on Sexton’s Claim for Whistleblowing
Hicks argues that Sexton’s state law whistleblowing claim fails as to him because
she admitted in her deposition that she has no evidence that Hicks stole any money, and
because he was not the one who fired her. Hicks’s second point is well-taken. As noted
above, the Eighth Circuit has held that under Missouri law, only a plaintiff’s actual
employer was subject to suit for wrongful termination due to whistleblowing. Taylor,
625 F.3d at 1028-29. Here, Sexton’s actual employer was the City. Thus, Hicks is
entitled to summary judgment on Count III of the complaint.
Hicks’s Motion for Summary Judgment on Sexton’s Remaining Claims
Hicks argues that he is entitled to summary judgment on Sexton’s claims based on
the equal protection clause, Title VII, and the MHRA because Sexton has adduced no
evidence that she was treated differently than similarly situated male employees, and
because he was not the one who fired Sexton.
As Hicks argues and Sexton concedes, individual liability does not exist under
Title VII. Accordingly, Hicks’s motion for summary judgment shall be granted on that
aspect of Count V. Sexton’s remaining claims based upon gender discrimination also fail
as to Hicks because he did not supervise or have any part in the disciplinary decisions
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with regard to the male employees of the City whom Sexton asserts were more favorably
treated than she was.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Hannibal Defendants’ motion for partial
summary judgment is GRANTED with respect to Count III, and DENIED in other
regards with respect to Defendant Terry. [Doc. #69]
IT IS FURTHER ORDERED that Defendant Hicks’s motion for summary
judgment is GRANTED as to Counts I, III, IV, V, and Count II based upon an alleged
equal protection violation, and DENIED as to Count II based upon an alleged First
Amendment violation. [Doc. #66]

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 27th day of May, 2011.

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