Bartlett et al v. Rock Township Ambulance District, et al.
Filing
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MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion for summary judgment is GRANTED. (Doc. No. 54.) IT IS FURTHER ORDERED that all remaining motions are dismissed as moot. A separate Judgment shall accompany this Memorandum and Order. re : 54 MOTION for Summary Judgment filed by Defendant Curt Tary, Defendant Steve Ott, Defendant Ron Counts, Defendant Don Wieland, Defendant Rock Township Ambulance District, Defendant Richard Bowers, Defendant Margie Sammons, Defendant Randy Crisler Signed by Honorable Audrey G. Fleissig on 4/17/12. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SCOTT BARTLETT and
KEVIN BOYER,
Plaintiffs,
v.
ROCK TOWNSHIP AMBULANCE
DISTRICT, et al.,
Defendants.
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Case No. 4:10CV02344 AGF
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ motion for summary judgment
(Doc. No. 54). Plaintiffs Kevin Boyer and Scott Bartlett, two former employees of Rock
Township Ambulance District (the “District”), brought this action under 42 U.S.C.
§ 1983, claiming that their First Amendment rights were violated when they were
terminated from their employment as paramedics with the District in retaliation for
engaging in protected speech. They name as Defendants the District, the Paramedic
Chief of the District (Margie Sammons), and six members of the District’s Board of
Directors. Specifically, Plaintiffs allege that they were terminated because they
complained to Defendants and outside law enforcement agencies that the District
mismanaged taxpayer funds by failing to remove each of their ex-spouses from the
District’s health insurance plan. Defendants argue that they are entitled to summary
judgment because Plaintiffs cannot establish that they engaged as citizens in speech
involving a matter of public concern, as required for a First Amendment retaliation claim.
For the reasons set forth below, the motion for summary judgment shall be granted.
BACKGROUND
For the purposes of the motion under consideration, the record establishes the
following.
In November 2005, while Boyer was employed with the District, he got divorced.
This was a well-known fact at the District. Whether by fault of Boyer or the District, his
ex-wife remained on his health insurance plan provided by the District. On January 4,
2010, after Boyer attempted to put his new wife on the health insurance plan, the District
notified him that it was conducting an investigation into his failure to remove his ex-wife
from the health insurance plan after he got divorced and requested that he provide a
written response by January 15, 2010.
By letter dated January 6, 2010, Boyer explained that he thought he had followed
proper procedures for removing his ex-wife from the plan, and that he never tried to hide
his divorce or to purposely keep his ex-wife on the plan. Boyer spoke to his Union,
which retained counsel on his behalf. (Doc. No. 52.) Counsel sent a letter dated January
15, 2010, to the District, setting forth the reasons why Boyer believed that his ex-wife
had been removed from the health insurance plan. The letter asserted that it was
“glaringly obvious that the individuals responsible for watching over the District’s
expenditures” were at fault for not removing Boyer’s ex-wife from the health insurance
plan, and that it was “outrageous for the District’s staff to now attempt to blame this
waste of funds on [Boyer], when the fault lies with it.”
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Counsel’s letter was received on January 18, 2010. The District terminated Boyer
on January 19, 2010, effective immediately. On January 22, 2010, Boyer filed a
grievance appealing his termination. The grievance was denied and Boyer appealed the
denial on February 1, 2010. On February 19, 2010, the District denied the appeal. On
February 24, 2010, Boyer, by and through counsel, sent correspondence to the Jefferson
County Sheriff’s Department, the Missouri State Auditor, the Jefferson County
Prosecutor’s Office, and the FBI, reporting on the District’s lack of oversight on its
expenditures for insurance premiums, resulting in wasting taxpayer money on premiums
for Boyer’s ex-wife, and the District’s attempt to cover this up by firing Boyer in
retaliation for his uncovering the District’s lack of oversight.
By fax to the District dated February 25, 2010, Boyer’s counsel renewed the
request that Boyer be reinstated in light of another District paramedic whom counsel also
represented allegedly having been told that day that she was blameless for her ex-husband
remaining on her health insurance plan after her divorce. The request for reinstatement
was denied.
Plaintiff Bartlett learned that his ex-wife had not been removed from the District’s
health insurance plan when he received an Explanation of Benefits on April 5, 2010 -over two years after his divorce. Bartlett approached Sammons about the issue and
Sammons directed him to fill out the paperwork to remove his ex-wife. Bartlett did so on
April 7, 2010. He testified that he was concerned that his employment might be
terminated based on the fact that Boyer had been terminated. The same attorney who had
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been retained to represent Boyer was retained to represent Bartlett. By letter to the
District dated April 14, 2010, counsel explained why Bartlett believed that his ex-wife
had been removed from the health insurance plan. The letter also accused the District of
“continued mismanagement of taxpayer funds” and requested, on behalf of Bartlett, an
investigation into “why the District has continued to waste taxpayer funds to pay health
insurance premiums for his former spouse.” The letter closed as follows:
Please be advised that Paramedic Bartlett expects the District to refrain
from taking any disciplinary action against him as a result of the District’s
own failure to process his ex-wife’s request to be removed from the
District’s health insurance. Further, any disciplinary action taken against
Paramedic Bartlett as a result of his revealing the District’s illegal
expenditure of funds will be considered to be retaliation for his
whistleblowing activities and he will seek all legal remedies available to
him against the District.
(Doc. No. 61-48.)
Thereafter, Sammons notified Bartlett of an investigation into the matter and
requested a written statement from him. Bartlett provided a written memorandum dated
June 2, 2010, that outlined the reasons he believed that he and/or his ex-spouse had done
everything that was required to have his ex-spouse removed from the health insurance
plan. The memorandum closed as follows:
In conclusion, the facts of the matter and the contents of the District’s files
do not show I intended to keep my former spouse on the District’s health
insurance, or that I misled the District into keeping her on its health
insurance coverage. What did happen was that a mistake was made, but not
by me.
(Doc. No. 61-33.)
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In late June 2010, the District told Bartlett that he would be terminated for failing
to file a timely report of change of marital status unless he agreed to pay the District
restitution in the amount of approximately $7,000 and sign a release releasing the District
from all liability with respect to the matter. On July 13, 2010, Bartlett, by and through
counsel, sent correspondence to the entities to whom counsel had written with respect to
Boyer on February 24, 2010, making representations on Bartlett’s behalf similar to those
he had made with respect to Boyer. On July 15, 2010, Bartlett informed the District that
he would not sign the release, and on July 17, 2010, the District terminated him.
ARGUMENTS OF THE PARTIES
Defendants argue that they are entitled to summary judgment because the evidence
demonstrates that Plaintiffs’ self-interest in saving their jobs outweighed any purported
interest they had in commenting as citizens on matters of public concern, and therefore,
their speech criticizing the District is not entitled to First Amendment protection. In
addition, Defendants point out with respect to Boyer that he did not make any complaint
about mismanagement of taxpayer funds by the District until after he was terminated on
January 19, 2010.
Plaintiffs argue that the misuse of public funds is a matter of public concern and
that the evidence shows that their primary concern in criticizing Defendants’ failure to
remove Plaintiffs’ ex-spouses from the District’s health insurance plan was to speak as
citizens on a matter of public concern. Boyer asserts that because he did not believe he
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was being considered for discipline before he wrote the two statements in January 2010,
the statements could not have been written to save his job as Defendants maintain. Boyer
also points to the correspondence critical of Defendants that was sent to outside law
enforcement entities “while his appeal for reinstatement was still pending.” Bartlett
asserts that in making his written statements critical of Defendants and in making the
decision to not accept the agreement offered to him in lieu of termination, his motive was
to bring to light Defendants’ misuse of public funds, and not to keep his job.
DISCUSSION
“Summary judgment is proper if, after viewing the evidence and drawing all
reasonable inferences in the light most favorable to the nonmovant, no genuine issues of
material fact exist and the movant is entitled to judgment as a matter of law.” Rynders v.
Williams, 650 F.3d 1188, 1194 (8th Cir. 2011) (citation omitted). “Credibility
determinations and the weighing of the evidence are jury functions, not those of a judge,
and the court should deny summary judgment if there is sufficient evidence for a jury to
return a verdict for the non-moving party.” Id.
To establish a retaliatory discharge claim under the First Amendment, a plaintiff
must prove that he engaged in protected activity, and that his activity was a substantial or
motivating factor in his employer’s decision to terminate him. Id.; McCullough v. Univ.
of Ark. for Med. Sciences, 559 F.3d 855, 865 (8th Cir. 2009) (citation omitted). If a
plaintiff meets this burden, the burden shifts to the employer to show that it would have
taken the same action regardless of the plaintiff’s speech activities. Id.
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A public employee engages in speech protected under the First Amendment if he
speaks “as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). A public employer that retaliates against “speech that owes its existence to a
public employee’s professional responsibilities does not infringe any liberties the
employee might have enjoyed as a private citizen,” and thus does not violate the First
Amendment. Id. at 421-22. The determination is a two-step process by which the court
must decide both whether the employee spoke as a citizen and whether the speech was on
a matter of public concern. Id. (holding that a government employee did not act as a
citizen when speech was made, but not challenging the Circuit Court’s finding that the
speech addressed a matter of public concern); McGee v. Pub. Water Supply, Dist. #2 of
Jefferson Cnty., Mo., 471 F.3d 918, 920-21 (8th Cir. 2006) (explaining that no First
Amendment protection arises if a government employee speaks only on matters of
personal interest, as opposed to “matters that are of concern to the general public,” or
speaks on matters of public interest but does so in the course of his employment duties
and not as a citizen).
If the employee fails to satisfy both of these prongs, he has no First Amendment
cause of action based on his employer’s reaction to the speech. Garcetti, 547 U.S. at
418. If, on the other hand, the employee demonstrates that he spoke as a citizen, “that is,
outside the scope of employment[,]” on matters of public concern, the First Amendment
offers protection if his speech survives the balancing test of Pickering v. Board of
Education of Township High School Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968).
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McGee, 471 F.3d at 920. Pickering requires a court to determine “whether the relevant
government entity had an adequate justification for treating the employee differently from
any other member of the general public.” Garcetti, 547 U.S. at 418.
“Employees in some cases may receive First Amendment protection for
expressions made at work.” Garcetti, 547 U.S. at 421 (citing Givhan v. W. Line Consol.
Sch. Dist., 439 U.S. 410, 415-16 (1979) (holding that constitutional freedom of speech is
not “lost to the public employee who arranges to communicate privately with his
employer rather than to spread his views before the public”)). In addition, the First
Amendment “protects some expressions related to the speaker’s job.” Id.; see also Dahl
v. Rice County, Minn., 621 F.3d 740, 744 (8th Cir. 2010).
Whether a public employee spoke as a citizen on a matter of public concern is a
matter of law for the court and “must be determined by the content, form, and context of
a given statement, as revealed by the whole record.” Dahl, 621 F.3d at 744 (citation
omitted.) The Eighth Circuit has explained that when an employee’s speech includes
matters of both public concern and personal interest, a court
must analyze the content, form, and context of the speech to determine
whether the speaker was acting primarily as a concerned citizen or as an
employee. If the speech was mostly intended to further the employee’s
private interests rather than to raise issues of public concern, her speech is
not protected, even if the public have an interest in the topic of the speech.
Bailey v. Dep’t of Elementary & Secondary Educ., 451 F.3d 514, 518 (8th Cir. 2006)
(citing Schilcher v. Univ. of Ark., 387 F.3d 959, 963 (8th Cir. 2004)).
Here, viewing the facts in the light most favorable to Plaintiffs and looking at the
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record as a whole, the Court concludes that Plaintiffs’ statements to Defendants are not
entitled to First Amendment protection. While, to be sure, misuse by public entities of
public funds, and “criticism of government officials and [their] polic[ies]” are matters of
public concern, see, e.g., Lindsey v. City of Orrick, Mo., 491 F.3d 892, 899 (8th Cir.
2007), Plaintiffs’ statements to Defendants were “mostly intended to further [their]
private interests rather than to raise issues of public concern.” See Bailey, 451 F.3d at
519-20 (holding that a state employee did not engage in protected speech by expressing
disagreement with a supervisor about department procedures and by writing to
management complaining about a supervisor and procedures); 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”); Casey v. W. Las Vegas Ind. Sch. Dist., 473 F.3d 1323, 132933 (10th Cir. 2007) (holding that superintendent of school district spoke as a district
employee when she conveyed to board her concern about the district’s lack of compliance
with federal regulations governing a program, when she instructed a subordinate to
contact federal authorities about illegal enrollments in the program, and when she related
to board members her concerns about the board’s failure to comply with state open
meetings law; but she spoke as a private citizen when she wrote to the state’s attorney
general about alleged violations of state open meetings law); cf. Jackler v. Byrne, 658
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F.3d 225, 239-40 (2d Cir. 2011) (holding that a police officer’s refusal to make a false
report about an incident of police brutality he had witnessed was a matter of public
concern, “rather than an effort to further some private interest,” and that the officer was
acting as a citizen rather than an employee, as there was no indication that he had any
personal interest in describing the conduct in question).
While the matter is not wholly free from doubt, the Court concludes that Plaintiffs’
internal statements to Defendants in response to Defendants’ request for a response to an
internal investigation involving the improper retention of their ex-spouses on the
District’s health insurance plan was not protected First Amendment speech. Rather, they
were statements primarily intended to further Plaintiffs’ private interests. Indeed, there is
little to suggest otherwise in the case of Boyer. The Court further notes that in Bailey, the
Eighth Circuit, in finding that the plaintiff’s statements at an internal meeting and in an
internal letter were not protected speech, twice noted that the statements at issue were not
addressed to the public. Bailey, 451 F.3d at 518-19, 520.
The statements by Plaintiffs to outside parties, such as the Jefferson County
Sheriff’s Department, were made by Plaintiffs as citizens. However, in Boyer’s case,
they were made after the termination decision was made, and thus cannot form the basis
of a retaliation claim. It does not avail Boyer to assert that this speech came while his
renewed request for reinstatement was pending. Holding otherwise would allow any
public employee to “constitutionalize” any statement made as an employee by making
public statements on the matter after an adverse employment action, and then requesting
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reconsideration by his employer of the adverse action.
Nor does it avail Bartlett to argue that his public statements were made before he
was actually terminated, because they were made after he was told that he would be
terminated unless he agreed to pay restitution and to sign a release. To be sure, the First
Amendment protects speakers from threats of punishment that are designed to discourage
future protected speech. See, e.g., Farley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009)
(explaining that a First Amendment retaliatory discharge claim is a subset of the original
prohibition against prior restraint of protected speech). But here, restitution was a
condition to his not being terminated, a condition that does not implicate the First
Amendment, and a condition that Bartlett refused.
The cases relied upon by Plaintiffs, such as Kincade v. City of Blue Springs, 64
F.3d 389 (8th Cir. 1995), are either inapposite or pre-date Garcetti.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is
GRANTED. (Doc. No. 54.)
IT IS FURTHER ORDERED that all remaining motions are dismissed as moot.
A separate Judgment shall accompany this Memorandum and Order.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 17th day of April 2012.
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