Crews et al v. Monarch Fire Protection District

Filing 89

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' motion to reconsider # 77 is DENIED. Signed by District Judge Rodney W. Sippel on 11/18/13. (ARL)

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
On August 6, 2013, I granted summary judgment to Defendants on Plaintiffs’ procedural
due process claims.1 Plaintiffs filed a motion to reconsider and vacate my order under Fed. R.
Civ. P. 59(e). Federal Rule of Civil Procedure 59(e) was adopted "to clarify a district court's
power to correct its own mistakes in the time period immediately following entry of judgment."
Innovative Home Health Care, Inc. v. P.T. - O.T. Associates of the Black Hills, 141 F.3d 1284,
1286 (8th Cir. 1998) (internal quotations and citations omitted). Rule 59(e) motions serve a
limited function of correcting manifest errors of law or fact or to present newly discovered
evidence. Id. Such motions cannot be used to introduce new evidence, tender new legal theories,
or raise arguments which could have been offered or raised prior to entry of judgment. Id.
Plaintiffs assert that my judgment was based on manifest errors of law and fact and should
be vacated.
Plaintiffs lacked a property interest in their continued employment
Plaintiffs, three officers of the Monarch Fire District, alleged in their complaint that they

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For a recitation of the facts and claims in this case see my Memorandum and Order
granting summary judgment issued on August 6, 2013.

had a property interest in their jobs. Their employment was terminated by Monarch’s Board of
Directors. Plaintiffs allege that their procedural due process rights were violated because
Monarch’s Board failed to hold a pre-termination hearing before Plaintiffs were fired.
In granting Defendants’ motion for summary judgment, I found that the undisputed
evidence in this matter established that Plaintiffs did not have a property interest in their continued
employment. Each was an at-will employee subject to termination without the right to a pretermination hearing. Plaintiffs based their claim of a property interest on Monarch’s Official Rules
and Regulations which provided a procedure for disciplinary action. However, the undisputed
evidence revealed that these Rules and Regulations were drafted by the Chief of the Fire
Department who had the power to amend the rules at any time. As a result, under Missouri law,
they did not provide the basis to assert a property interest in continued employment. Moreover,
the undisputed evidence established that the Monarch Board had never adopted these rules and
that the Board had the authority to hire and fire the command Chiefs like Plaintiffs.
In their motion to vacate, Plaintiffs assert that disputed material facts exist regarding
whether the custom and practice of the Board granted Plaintiffs a de facto property interest in
their continued employment. In support of this argument, Plaintiffs cite to the deposition
testimony of Fire Chief Clifford Biele for the proposition that three command Chiefs, David
Becker, Cary Spiegel, and Ken Beekman, were provided with hearings before disciplinary action
was taken. However, in his deposition, Chief Biele states that Becker was terminated without a
hearing although a hearing was offered to him “days” after he was terminated.2 [Doc. # 81, Ex. G1, Beile’s Dep. at 50-52]
Cary Spiegel appeared before the Board in a non-termination disciplinary matter involving

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Becker requested the hearing. [Doc. # 40, Ex. N, Rick Gans’ Dep. at 28]
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an allegation he had purchased beer at a market while traveling in a company vehicle. He was
placed on probation. [Id. at 52-53] Because the Board’s action with Spiegel did not involve a
termination, the Board’s actions regarding Spiegel fails to create a disputed fact regarding
whether the Board had a custom and practice of providing command Chiefs with a hearing before
terminating their employment.
Nor does the experience of Ken Beekman create a fact dispute about whether command
Chiefs had de facto property interest in their employment. The Board had a meeting with him
over several accusations of misconduct. At the time he was a consultant to the District, not a
command Chief. Nor was he terminated, he retired. [Id. at 61-63]
Plaintiffs also assert that a material fact was raised through Board member Robin Harris’
belief that the Rules and Regulations applied to all of the District’s employees including the
command Chiefs. However, at his deposition taken a year after Plaintiffs were terminated, Harris
testified that he had never read the Rules and Regulations and that the Board had the discretion to
modify them. [Doc. # 40, Ex. L, Harris Dep. at 50-51] Harris testified he had never been
involved in any disciplinary process of command officers before Plaintiffs’ employment was
terminated. [Id. at 52] Harris did not know whether the Rules and Regulations had ever been
adopted by the Board, and he was not aware if the Board had ever utilized the Rules and
Regulations during any disciplinary process or procedure. [Id. at 57-59]
I find that Plaintiffs’ assertion in their motion to vacate that the testimony of Biele and
Harris created a genuine issue of material facts precluding summary judgment is without merit.
Moreover, in granting Defendants summary judgment, I found that Evans and Swyers
were entitled to qualified immunity because they were not on notice that the Fire Chief’s Rules
and Regulations, or the Board’s previous actions, created any de facto property interest to

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Plaintiffs regarding a right to their continued employment.
Claims against the District
Defendants argued in their motion for summary judgment that Plaintiffs’ claims against the
District were based on the theory of respondeat superior. In support of this position, Defendants
cited Plaintiffs’ amended complaint which alleged that “The misconduct alleged against [the
District] was done through its agents, including, but not limited to, Evans and Swyers, who were
acting within the scope and course of their authority, and under color of state law in their official
capacities, with full knowledge that Plaintiff’s rights were being violated as alleged herein.” [Doc.
# 11, Pls.’ Am. Compl. at ¶ 7] The Plaintiffs also alleged that “[the District’s] customs, practices
and written policies prohibit the District from dismissing any employee except for cause, and
require that any such employee be given notice and an opportunity to be heard before being
terminated.” [Id. at ¶ 31]
Read as a whole, Plaintiffs’ complaint alleges that the District had a policy to give
employees of the District a hearing before they would be terminated. The complaint asserts that
two members of Monarch’s Board of Directors, Kim Evans and Steve Swyers, acted against the
District’s policy by firing Plaintiffs without giving them a hearing before their termination.
Plaintiffs did not name as a defendant Monarch’s Board of Directors which is a legal entity
with the ability to sue and be sued. See § 321.220(3) R.S.Mo.3 As result, the allegations against
Evans and Swyers were claims against only two of Monarch’s Board members asserting that they
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When a board of an agency is not deemed to be a legal entity with the ability to sue or be
sued, the proper way to invoke a claim against the board is to name all of the individual board
members in their official capacity as defendants. See Edwards v. Baer, 863 F.2d 606, 609 (8th
Cir. 1988)(jurisdiction can only be obtained by suing the individual board members). Although
this method of suing a board is inapplicable in this case, if it had applied, Plaintiffs failed to use
this method because they only named two of the three Monarch’s Board members as defendants
in this action.
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violated Plaintiffs’ due process rights. Defendants permissively construed the claims against the
District as an assertion of respondeat superior liability for the actions of two Board members.
In their opposition to Defendants’ motion for summary judgment, Plaintiffs failed to
substantively address Defendants’ position that the claims against the District were based on the
theory of respondeat superior. Plaintiffs, for the first time in their motion to vacate the judgment,
assert that the two Board member were policymakers and that their failure to provide Plaintiffs
with a hearing created a new District policy which violated Plaintiffs’ due process rights. This
argument is based on a new legal theory which is not clearly asserted in Plaintiffs’ complaint. If
this was Plaintiffs’ claim, Plaintiffs should have made this clear in their opposition to summary
judgment. Because this argument could have been asserted in their opposition, it is in appropriate
to raise it in a motion to vacate.
Moreover, because I found that Evans and Swyers are entitled to qualified immunity,
Plaintiffs’ cannot maintain a claim against the District based on Evans and Swyers’ actions. See
Sitzes v. City of West Memphis Ark., 606 F.3d 461, 471 (8th Cir. 2010).
Plaintiffs’ liberty interest claim
As stated in my order granting Defendants summary judgment, it is undisputed that
Plaintiffs never requested a name-clearing hearing. As a result, they cannot establish a liberty
interest claim. Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir. 2009)(plaintiffs must prove they
requested and were denied a name-clearing hearing).
The MPPA
Plaintiffs assert in their motion to vacate that the District is not an agency subject to the
Missouri Administrative Procedure Act (MAPA) §§ 536.010, et seq. However, as I stated in my
order granting Defendants summary judgment, the United States Court of Appeals for the Eighth

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Circuit has found fire protection districts to be deemed to be agencies for the purpose of the
MAPA. Krentz v. Robertson, 228 F.3d 897, 904 (8th Cir. 2000)(“[A]n employee waives a
procedural due process claim by refusing to participate in post-termination administrative or
grievance procedures made available by the state” under the MAPA. Id.). In my order granting
summary judgment, I concluded, based on Defendants’ undisputed evidence, that Plaintiffs did not
have a property interest in their continued employment as a matter of law. As an alternative, I
found that even if Plaintiffs had such a property interest, they failed to exhaust their administrative
remedies under the MAPA. Nothing in Plaintiffs’ motion to vacate changes that conclusion.
Moreover, Plaintiffs assert for the first time in their motion to vacate that seeking relief under the
MAPA would have been futile. This argument could have been asserted in Plaintiffs’ opposition
to summary judgement and was not. As a result, it is an improper argument to raise for the first
time in the motion to vacate.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion to reconsider [# 77] is DENIED.

_____________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 18th day of November, 2013.

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