Crews et al v. Monarch Fire Protection District

Filing 75

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Monarch Fire Protection District, Kim Evans, and Steve Swyers motion to dismiss, or in the alternative, for summary judgment 27 is GRANTED. IT IS FURTHER ORDERED that Defendants motion to strike 41 is DENIED as moot. Signed by District Judge Rodney W. Sippel on 8/6/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LESLIE CREWS, et al,
Plaintiffs,
vs.
MONARCH FIRE PROTECTION
DISTRICT, et al.,
Defendants.

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Case No. 4:12 CV 142 RWS

MEMORANDUM AND ORDER
Plaintiffs Leslie Crews, Cary Spiegel, and Michael Davis were employees of Defendant
Monarch Fire Protection District (the District). Their employment was terminated. Plaintiffs
filed this lawsuit seeking money damages for alleged violations of their due process rights. They
sued the District and two of its Board members. Defendants have moved for summary judgment.
Because Plaintiffs’ due process rights were not violated I will grant the Defendants’ motion for
summary judgment.
Background
Defendant Monarch Fire Protection District is a political subdivision of the State of
Missouri which provides fire protection services in western St. Louis County. The District is
managed by Monarch’s Board of Directors. The Board is elected by the residents of the District.
The members of the three-member Board at the relevant time period were Defendant Kim Evans,
Defendant Steve Swyers, and Robin Harris.
The Board appoints the eight “command Chiefs” who manage the day to day operations
of the District. Monarch’s firefighters’ union, the International Association of Fire Fighters,

represents all of the firefighters and paramedics employed by the District, except its eight
command Chiefs. Plaintiffs were command Chiefs. Plaintiff Leslie Crews was the Assistant
Chief, second in command in the District. Plaintiff Cary Spiegel was the Deputy Chief, third in
command in the District. Plaintiff Michael Davis was a Battalion Chief, the highest ranking
officer to supervise one of the three shifts operated by the District.
In 2007, four female firefighters filed an employment discrimination lawsuit against the
District. A judgment was entered in favor of two of the firefighters which was affirmed by the
Missouri Court of Appeals in Kessler, et al. v. Monarch Protection Fire District, 352 S.W.3d 677
(Mo Ct. App. 2011). Four days after the court of appeals decision, the Monarch Board of
Directors terminated the employment of Crews, Spiegel, and Davis. Defendant Board members
Evans and Swyers voted to terminate Plaintiffs. The third Board member, Robin Harris, did not
participate in the decision. Plaintiffs were told they were being terminated because of the court
of appeals decision affirming the judgment in the discrimination suit. Plaintiffs allege in their
Amended Complaint that Evans and Swyers made “numerous publically broadcasted statements
that the Plaintiffs were fired because of their alleged involvement in wrongfully discriminating
against the four women who had sued the District.” Plaintiffs suggest that their employment was
terminated for political reasons.
Plaintiffs assert that they were fired in violation of their due process rights under Article
1, Section 10 of the Missouri Constitution and under the Fifth and Fourteenth Amendments to
the United States Constitution through 42 U.S.C. § 1983. Plaintiffs did not have a written
employment agreement with the District nor were they covered under any form of collective
bargaining agreement. Plaintiffs allege that Monarch’s Official Rules and Regulations provided
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a procedure for disciplinary action and dismissal which created a constitutionally protected
property interest in their continued employment with Monarch. Plaintiffs allege that those
procedures were not followed in their termination which violated their due process rights.
Plaintiffs also allege that the post-termination statements by Evans and Swyers violated their
protected liberty interest in their reputations. Plaintiffs seek monetary damages and attorney’s
fees.
Defendants have moved to dismiss Plaintiffs’ claims, or in the alternative, for summary
judgment. Defendants assert immunity defenses, argue that Plaintiffs have failed to establish a
property right, and have failed to exhaust their administrative remedies before filing this lawsuit.
Plaintiff’s oppose Defendants’ motion.
Legal Standard
When ruling on a motion to dismiss, I must accept as true all factual allegations in the
complaint and view them in light most favorable to the Plaintiff. Fed. R. Civ. P. 12(b)(6);
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The purpose of a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. An action fails
to state a claim upon which relief can be granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). To survive a motion to dismiss, a plaintiff’s factual allegations “must be enough to raise
a right to relief above the speculative level. Id. at 555.
Summary judgment is appropriate if the evidence, viewed in the light most favorable to
the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center,
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160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary
judgment bears the initial responsibility of informing the court of the basis of its motion and
identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a motion is made and supported
by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient
evidence to support the existence of the essential elements of his case on which he bears the
burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the
plaintiff has an affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Discussion
Plaintiffs’ claim under the Missouri Constitution
Plaintiffs have sued the District and have sued Defendants Evans and Swyers in their
official and individual capacity. A suit against a state official in his or her official capacity is not
a suit against the official but rather is a suit against the official's office. Will v. Michigan Dept.
of State Police, 491 U.S. 58, 71 (1989).
Defendants first argue that Plaintiffs claims under the Missouri Constitution should be
dismissed. Defendants assert that the District, as a fire protection district, is a political
subdivision of the State of Missouri and possesses sovereign immunity pursuant to § 537.600
R.S.Mo. See Duncan v. Creve Coeur Fire Protection District, 802 S.W.2d 205, 207 (Mo. Ct.

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App. 1991). Neither of the exceptions to sovereign immunity apply in this case.1
Defendants assert that Evans and Swyers are shielded from individual liability for
Plaintiffs state law claim under the doctrine of official immunity. Official immunity shields
public officers and state officials from civil liability for injuries arising out of their discretionary
acts, functions, or omissions performed in the exercise of their official duties. Harris v. Munoz,
43 S.W.3d 384, 387 (Mo. Ct. App. 2001). The decision to terminate Plaintiffs’ employment was
undisputably a discretionary act. In their opposition brief, Plaintiffs do not oppose the dismissal
and / or summary judgment on their Missouri Constitution claim.2 I find that the District and the
individual Defendants are entitled to summary judgment on this claim based on sovereign
immunity and official immunity, respectively.
Federal due process claims3
Plaintiffs base their due process claims on the actions of two Board members. Plaintiffs
have not sued the Board which is a legal entity with the ability to sue and to be a party to suits.

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The exceptions are the negligent operation of a motor vehicle or an injury caused by the
dangerous condition of the public entity’s property.
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Instead they suggest these their claim under the Missouri Constitution should have been
addressed in a motion to strike.
3

Plaintiffs due process claims are limited to procedural due process claims. Plaintiffs
have not alleged any facts which would meet the conscience shocking standard needed to
establish a substantive de process claim. See Hess v. Ables, 714 F.3d 1048, 1053 (8th Cir. 2013)
(“Success on a substantive due process claim requires allegations that the defendant's course of
action was ‘conscience shocking.’”). Moreover, a public employee’s interest in continued
employment with a government employer is not protected by substantive due process under the
Fourteenth Amendment. Singleton v. Cecil, 176 F.3d 419, 423 (8th Cir. 1999).

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See § 321.220 R.S.Mo. A public entity cannot be held vicariously liable under U.S.C. § 1983 for
the actions of its employees based on a theory of respondeat superior. Monell v. New York City
Dept. of Social Services, 436 U.S. 658, 691 (1978). A plaintiff may establish public entity
liability under 42 U.S.C. § 1983 by proving their constitutional rights were violated by the public
entity’s official policy or through a custom, “even though such a custom has not received formal
approval through the body’s official decisionmaking channels.” City of St. Louis v. Praprotnik,
485 U.S. 112, 122 (1988). The existence of a custom or policy must be established by more that
a single set of circumstances that applied to the plaintiff’s case. Munz v. Parr, 758 F.2d 1254,
1259 (8th Cir. 1985).
The District argues that it is entitled to summary judgment because Plaintiffs claims
against the District are improperly based on a theory of respondeat superior. Rather than
alleging that the action of the Board violated their rights and suing the Board, Plaintiffs sued only
two of the individual Board members and seek liability against the District based on these two
Board members’ actions. Plaintiffs have failed to assert any policy, custom, or practice followed
by the District which led to the alleged violation of their due process rights. As a result, I find
that the District is entitled to summary judgment on Plaintiffs’ due process claims.
Moreover, a review of the merits of Plaintiffs claims establishes that they have failed to
establish, as a matter of law, that they had a property interest in their continued employment with
the District.
“A government employee is entitled to procedural due process only when he has been
deprived of a constitutionally protected property or liberty interest.” Winegar v. Des Moines
Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir.1994). “Procedural due process imposes
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constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’
interests within the meaning of the Due Process Clause of the ... Fourteenth Amendment.”
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 333
(internal quotations omitted). A plaintiff alleging that a public entity deprived him of
employment without due process must first demonstrate that he had a property interest in his
continued employment. Barnes v. City of Omaha, 574 F.3d 1003, 1006 (8th Cir. 2009). “A
property interest arises from a legitimate claim of entitlement to continuing employment. A
public employee has a property interest when there are contractual or statutory limitations on the
employer's ability to terminate an employee, such as a contractual right to be terminated only for
cause.” Bennett v. Watters, 260 F.3d 925, 927 (8th Cir. 2001)(internal quotations and citation
omitted).
Missouri follows the at-will employment doctrine. An employer may terminate an at-will
employee for any reason or for no reason (with the limitation of a public-policy exception).
Bazzi v. Tyco Healthcare Group, LP, 652 F.3d 943, 947 (8th Cir. 2011).
Although Plaintiffs did not have a written employment contract with the District,
Plaintiffs assert that they had a property interest in their continued employment based on
Monarch’s Official Rules and Regulations or by a custom, practice, or policy of the District.
Plaintiffs argue that the Rules and Regulations manual provides a procedure for dismissal
proceedings against a District employee. That procedure includes a pretermination review which
is “an informal procedure in which the appointing authority or designated management official
advises the employee of the reason or reasons for termination and then give the employee an
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opportunity to present facts to mitigate the penalty...” [Doc. # 11. Amended Compl. at ¶ 31] If
management determines that dismissal is warranted, a formal charge is filed which supports the
dismissal which should include a statement that the employee was given an opportunity for a
pretermination review. Id. However, the Rules and Regulations also provide for Exceptions to
Progressive Discipline and state that an employee can be subjected to immediate dismissal. [Doc.
# 26, Defs.’ Statement of Uncontroverted Facts ¶ 17]
Plaintiffs allege that this custom and practice of providing District employees with a
pretermination review applied to all District employees and created a constitutionally protected
property interest in Plaintiffs’ continued employment with the District.
The Missouri Supreme Court has held that an employer’s publication of an employment
handbook does not alter the at-will status of its employees. Johnson v. McDonnell Douglas
Corp., 745 S.W.2d 661, 662 (Mo. 1988). The court held that self-imposed policies in an
employer’s handbook did not create an employment contract. The court found as significant the
handbook’s provision that the rules in the handbook could be changed at anytime. This provision
prevented a reasonable employee from construing the handbook as an offer to modify his at-will
status. Id. See also Green v. St. Louis Housing Authority, 911 F.2d 65, 71 (8th Cir. 1990)(“the
mere fact that [the employer] has published a handbook, stating policies and procedures, does not
give [the plaintiff] an entitlement under Missouri law to continued employment.).
Like the handbook at issue in Johnson, Monarch’s Official Rules and Regulations provide
that the Chief of the Fire Department has the sole power to adopt and change the rules and
regulations at any time. Any official interpretations of the rules and regulations are made by the
Chief. [Doc. # 26, Ex. D] Given the ability of the Chief to amend the rules and regulations at any
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time, Plaintiffs had no objective basis for construing the handbook as an offer to modify their atwill status. Nor does the fact that the Rules and Regulations provided a pretermination review
provide the right to be terminated only “for cause.” Cole v. Conservation Com'n, 884 S.W.2d
18, 20 (Mo. Ct. App. 1994)(an employment manual which contained a five-step disciplinary
process did not create a “for cause” standard for termination and employee was an at-will
employee who could be terminated at any time for any reason). See also Stow v. Cochran, 819
F.2d 864, 866 -867 (8th Cir. 1987)(“the existence of a grievance procedure alone is sufficient to
create a property interest”).
Neither the District nor the Board members are given any rights or responsibilities in the
Official Rule and Regulations. The Board has the authority to hire and fire the command Chiefs
like Plaintiffs. Plaintiffs have not provided any evidence that the Board had a custom or practice,
or in any way expressed an intent, of following the pretermination review procedure before it
terminated a command Chief. Nor did Plaintiffs make any demand for a pretermination review
or request a hearing from the Board after their termination. As a result, I find that Plaintiffs did
not have a property interest in their continued employment based on Monarch’s Official Rulea
and Regulations.
As an alternative, Defendants Evans and Swyers have asserted that they are entitled to
qualified immunity for the claims against them individually. Qualified immunity protects
government officials performing discretionary functions. Bankhead v. Knickrehm, 360 F.3d 839,
843 (8th Cir.2004)(internal quotations and citations omitted). “Government officials are
generally shielded 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
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known. Thus, we decide whether a defendant is entitled to qualified immunity according to an
objective standard.” Id. (internal quotations and citations omitted). “A right is clearly established,
for qualified immunity purposes, if the ‘contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’ ” Murphy v. State
of Ark., 127 F.3d 750, 755 (8th Cir.1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). The qualified immunity doctrine allows public officers to make reasonable errors so
that they do not always “err on the side of caution.” Hunter v. Bryant, 502 U.S. 224, 229 (1991).
As I have already found, Defendants did not violate Plaintiffs property rights when their
employment was terminated. Even if it was determined that Monarch’s Rules and Regulations
established a right to a pretermination hearing, that right was not clearly established because a
reasonable Board official would not understand that terminating a command Chief without such
a hearing violated a constitutional right. Defendants Evans and Swyers did not have an
objectively reasonable basis for knowing that their termination decision violated Plaintiffs’
rights. As a result, they are entitled to qualified immunity.
Plaintiffs’ liberty interest claim
An “employee is entitled to procedural due process only when he has been deprived of a
constitutionally protected ... liberty interest.” Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20
F.3d 895, 899 (8th Cir.1994). “An employee's liberty interests are implicated where the employer
levels accusations at the employee that are so damaging as to make it difficult or impossible for
the employee to escape the stigma of those charges.” Id. This stigma may be established where
the employee is accused of actions involving “dishonesty, immorality, criminality, [and]
racism....” Id.
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To establish a procedural due process claim against a state employer for deprivation of a
protected liberty interest in a public employee's reputation, a plaintiff must demonstrate that: (1)
an official made a defamatory statement that resulted in a stigma; (2) the defamatory statement
occurred during the course of terminating the employee; (3) the defamatory statement was made
public; (4) an alteration or extinguishment of a right or legal status; and (5) he must prove he
requested and was denied a name-clearing hearing. Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir.
2009).
Plaintiffs allege that Defendants Evans and Swyers made public defamatory statements
about them after their termination. However, it is undisputed that Plaintiffs never requested a
name-clearing hearing. As a result, they cannot establish a liberty interest claim and Defendants
will be granted summary judgment on this claim.
Failure to exhaust administrative remedies
As an alternative grounds for dismissal, Defendants assert that Plaintiffs failed to exhaust
their mandatory state administrative remedies before filing the present lawsuit.
Fire protection districts are deemed to be an agency for the purpose of the Missouri
Administrative Procedure Act (MAPA) §§ 536.010, et seq. Krentz v. Robertson, 228 F.3d 897,
904 (8th Cir. 2000). “An agency means any administrative officer or body existing under the
constitution or by law and authorized by law or the constitution to make rules or to adjudicate
contested cases. Id. § 536.010(1). A contested case is a proceeding before an agency in which
legal rights, duties or privileges of specific parties are required by law to be determined after
hearing.” Id. (internal quotations omitted). “[A]n employee waives a procedural due process
claim by refusing to participate in post-termination administrative or grievance procedures made
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available by the state” under the MAPA. Id.
As employees of an agency covered by the MAPA, Plaintiffs were required to seek a
post-termination hearing as part of a contested hearing under the MAPA before they could file a
lawsuit asserting due process claims. Plaintiffs failed to request from the Board either a
pretermination hearing or a post-termination hearing. I have found, as a matter of law, that the
existence of Monarch’s Rules and Regulations did not give rise to a property interest in
Plaintiffs’ continued employment. Nor did the Rule and Regulations give Plaintiffs the right to a
pretermination hearing. Because the District is a MAPA agency, Plaintiffs could have instituted
a contested case proceeding after their termination became effective. Plaintiffs failed to do so.
As a result they are barred from bringing their due process claims in the present lawsuit. Id. at
904.
Accordingly,
IT IS HEREBY ORDERED that Defendants Monarch Fire Protection District, Kim
Evans, and Steve Swyers’ motion to dismiss, or in the alternative, for summary judgment [#27] is
GRANTED.
IT IS FURTHER ORDERED that Defendants motion to strike [# 41] is DENIED as
moot.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 6th day of August, 2013.

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