McKee et al v. Reuter et al

Filing 79

MEMORANDUM AND ORDER (See Full Order). IT IS HEREBY ORDERED that defendants' motion for summary judgment [# 65 ] is GRANTED in part and DENIED in part. Defendants Reuter and Scrivner are entitled to summary judgment on Susan Hickmans claims in Count II, and Susan Hickmans claims are dismissed in their entirety. Defendants Scrivner and Cusick are entitled to qualified immunity on the claims of Beckie Hickman contained in Count III. The counts of the Amended Complaint that remain for tri al are: Count I, brought by Jeanette McKee against Michael Reuter and Christy Scrivner, and Count III, brought by Beckie Hickman against Michael Reuter. IT IS FURTHER ORDERED that plaintiffs' motion for leave to supplement the record in opposition to defendants' summary judgment motion [# 74 ] isGRANTED. Signed by District Judge Catherine D. Perry on 9/5/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEANETTE MCKEE, et al.,

Plaintiffs,
vs.
MICHAEL REUTER, et al.,
Defendants.

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Case No. 4:16 CV 207 CDP

MEMORANDUM AND ORDER
The three plaintiffs in this case, Jeanette McKee, Susan Hickman and Sharon
Rebecca Hickman (referred to as “Beckie”) are past Deputy Clerk employees of the
Circuit Court of Jefferson County. Defendant Michael Reuter is the elected Clerk of
Court, who defeated plaintiff McKee in a partisan election in 2014. Plaintiffs Susan
and Beckie supported McKee in the election.
Plaintiffs have sued Michael Reuter and others under 42 U.S.C. § 1983. They
allege that after Reuter won the 2014 election, he and the other individual defendants
conspired to force plaintiffs out of their jobs because of their political affiliations and
because of issues they raised during the election. McKee and Beckie Hickman were
both terminated by Reuter and then reinstated by a judicial review committee before
they eventually resigned. Susan Hickman retired from her position. In addition to
Reuter, plaintiffs’ claims are brought against Christy Scrivner, who Reuter appointed

to replace McKee as Chief Deputy Clerk. Plaintiff Beckie Hickman is also suing her
direct supervisor, Teresa Cusick.
Now pending before me is defendants’ motion for summary judgment on all
claims. Defendants argue they are entitled to qualified immunity. As a separate but
additional basis for summary judgment, Reuter argues that he was justified in
discharging McKee and Beckie. As for Susan who retired from the Clerk’s office,
defendants argue that her constructive discharge claim fails because she never
brought her complaints to the attention of her employers.
Susan admits that she did not complain to Reuter and Scrivner about her
working conditions. Because defendants were never provided a reasonable
opportunity to work out her problems before she retired, Susan suffered no adverse
employment action and her constructive discharge claim fails. As to Beckie’s claims
against Teresa Cusick and Christy Scrivner, the facts are insufficient to demonstrate a
violation of a constitutional right. Cusick and Scrivner are therefore entitled to the
defense of qualified immunity as to these claims. However, McKee’s claims against
both Scrivner and Reuter, and Beckie’s claim against Reuter, demonstrate genuine
disputes of material fact that are factual sufficient to show a violation of right.
Therefore, I will deny summary judgment as to these claims.

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Motion for Leave to Supplement
After defendants’ motion for summary judgment was completely briefed,
plaintiffs filed a verified motion for leave to supplement the record in opposition to
summary judgment. Plaintiffs seek to include in the summary judgment record the
decisions of the three-judge panels which reinstated plaintiffs McKee and Beckie
after their terminations by Reuter. ECF No. 74. Defendants oppose the motion,
arguing that the documents are unauthenticated, hearsay opinions that the plaintiffs
have never before produced or relied upon. ECF No. 75.
Plaintiffs’ opposition to summary judgment and their response to defendants’
statement of facts repeatedly discuss their reinstatements by a judicial review
committee. Defendants cannot argue that they were unaware of these documents
given that they are employment records provided to them at the time of plaintiffs’
reinstatements. I will grant plaintiffs’ motion for leave. I will consider the decisions
of the Review Committees – not for the truth of the facts that they contain or as proof
that the terminations were wrong – but as evidence of the fact that a judicial review
committee overturned plaintiffs’ terminations and reinstated them.
Summary Judgment Standard
The standards for summary judgment are well settled. In determining whether
to grant a motion for summary judgment, the court views the facts – and any
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inferences from those facts – in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant bears the burden of establishing that (1) it is entitled to judgment as a
matter of law and (2) there are no genuine issues of material fact. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met
this burden, however, the non-moving party may not rest on the allegations in its
pleadings but must, by affidavit and other evidence, set forth specific facts showing
that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e). Where a factual
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587. At
the summary judgment stage, I will not weigh the evidence and decide the truth of the
matter, but rather I need only determine if there is a genuine issue for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Background1
In 2014, the three plaintiffs were clerks at the Jefferson County Circuit Clerk’s
office. McKee was the Chief Deputy Clerk – the highest ranking and paid deputy
clerk – working for elected Clerk of Court Howard Wagner. After Wagner
announced his intent to retire, McKee began her campaign in March 2014 to be the

The relevant facts set out here are viewed in the light most favorable to plaintiffs – as required for
summary judgment. Areas of dispute are described in the discussion section below.
1

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next elected Clerk of Court. McKee ran unopposed in the primary as the Democratic
nominee, and her opponent in the general election was defendant Michael Reuter, the
Republican nominee. During a “meet the candidates” public campaign event, McKee
commented about Reuter’s being accused of domestic violence in his past.2 Almost
all the deputy clerks in the Circuit Clerk’s office, including Susan and Beckie,
supported McKee in her campaign. McKee lost the election in November 2014, and
Reuter started as the new Clerk of Court on January 2, 2015.
I.

Count I: Jeanette McKee
Plaintiff Jeanette McKee started working for the clerk’s office in 1989 and

became Chief Deputy Clerk in 1998. On Reuter’s first day as Clerk of Court, before
McKee had even taken her coat off, he told her to move out of the semi-private office
that she shared with Susan Hickman, and to a cubicle outside of his office. When
McKee asked him about her duties under his new management, Reuter told her she
would still be the Chief. However, on his second day in office, Reuter held a meeting
for deputy court clerks where he introduced defendant Christy Scrivner as the new
Chief Deputy Clerk. Immediately following the general clerks meeting, Reuter met
with just the supervisors. Despite being a clerk and a supervisor, Reuter told McKee
that she was “not allowed” and “not needed” at the meetings because “nothing
2

Reuter admits that he was arrested for domestic violence in 2000, based on a complaint made by
his wife. No charges were ever filed; however, his wife did request and receive a temporary Order
of Protection against him. ECF No. 71-1 at 20-23.

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pertained” to her. The following day Reuter humiliated McKee when he publicly
requested her parking pass and all office keys because she was no longer the Chief.
Around this same time, Reuter had two cameras installed in the office which he used
for the following six months. ECF Nos. 71-4 at 152, 154-61; 71-1 at 34, 26-33; 67-1
at 87.
After replacing her as Chief, Reuter told McKee to help train Scrivner in her
new position. Three days later, McKee went on medical leave until early February.
When she returned, Reuter gave her a notice of Corrective Action, reprimanding her
for refusing to help Scrivner on two occasions before her medical leave, in violation
of his direct order. McKee denied refusing to help Scrivner and appealed the notice.
Reuter assigned McKee to a microfilming position – a position that did not
previously exist – as punishment. After review of the notice of Corrective Action by
an outside fact finder,3 Reuter withdrew the reprimand in late February but did not
move McKee out of microfilming until the following week. ECF Nos. 71-4 at 116117,168, 170, 179; 67-4.
On April 2, 2015, McKee exchanged words in a disagreement with one or two
nonparty employees in the office. Six days later Reuter dismissed McKee and had
3

McKee points out that the fact finder appointed by Reuter to review her appeal was not
‘independent’ because the person appointed had previously contributed to one of Reuter’s wife’s
political campaigns. ECF No. 71-4 at 170-72. Despite this, McKee cannot show any injury
resulting from his appointment; his report suggested that the Corrective Action against her be
withdrawn.

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her escorted out of the building. Around this time, Scrivner wrote the word “Karma”
on the board outside her office. McKee appealed her termination to the presiding
judge and a three-judge panel was appointed to review the decision. The Review
Committee held a hearing where both Reuter and Scrivner testified against McKee.
The Committee found McKee’s termination unreasonable and ordered her
reinstatement on June 11, 2015. ECF Nos. 71-4 at 104-11, 176-79; 71-6 at 90-91.
Upon reinstatement, Reuter assigned McKee to a position in the traffic division
on the first floor of the building, with duties considerably below her qualifications.
Defendant traffic supervisor Teresa Cusick told McKee that Reuter said she could not
go to the second floor, where the main clerk’s office was located. Other clerks in the
office told McKee that they felt Reuter did not want them to talk to her. McKee
resigned from her position soon after reinstatement. ECF No. 71-4 at 75-76, 179.
II.

Count II: Susan Hickman
When Reuter started as Clerk of Court, plaintiff Susan Hickman had been

working in the clerk’s office for more than twenty-five years. Susan supported
McKee in her election campaign, shared an office space with her, and attended
McKee’s appeal of termination hearing to provide moral support. After Reuter
started as Clerk of Court, he and Scrivner transferred Susan to several different
positions – she was a “floater” throughout the office – and her duties changed
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“constantly.” Although Susan maintained her “supervisor” title, she supervised no
one and was often assigned to perform entry level duties. ECF Nos. 67 at ¶50; 71-4
at 177; 71-6 at 23, 52-53, 82.
Reuter told Susan to help Scrivner learn the responsibilities of her new position
as Chief Deputy Clerk. However, having never done the job herself, Susan was
unfamiliar with many of the duties required of that job, and felt that Scrivner was
often angry with her for not being able to answer her questions. At one point,
Scrivner locked the office door, stuck her finger in Susan’s face, and insisted that
Susan help her. Susan assured her that she would help as much as she could. ECF
No. 71-6 at 23-24, 56.
Around March 2015, when Susan and Reuter were discussing deferred
compensation benefits by a bulletin board in the office, Susan realized Reuter was
staring at her crotch area while she was talking. She asked him multiple times why
he was staring at her and he finally answered, “cause I can.” Susan retired from her
position in the clerk’s office in June 2015. ECF No. 71-6 at 83-85.
III.

Count III: Beckie Hickman
Beckie Hickman had been with the clerk’s office over four years, and was

assigned to the support division when Reuter took over as Clerk of Court. In July
2015, Reuter transferred Beckie to the traffic division to work under supervisor
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Cusick. While working in traffic, Cusick berated and demeaned Beckie by calling
her “stupid,” telling her that she “had a mental handicap,” and that she “would never
learn the job.” Cusick asked her questions like “do you have to stand so close to
me?” and “do you have to be in my – my area?” Beckie was not “trained
consistently” in that she did not take classes “like other people got chances to” and
overall “other clerks got a lot more training.” Beckie was not allowed to sit by a
newer-to-traffic employee that she felt would be more helpful in answering her
questions and training her. Cusick required Beckie to keep her phone on do not
disturb and Cusick gave her conflicting instructions on things like whether to answer
the phone and whether to go to the window. Cusick gave Beckie negative
performance reviews, which Beckie contends were unwarranted. When asked if she
believes that Cusick gave her the negative reviews because she is a Democrat, Beckie
said she did not know why Cusick did it. ECF No. 71-5 at 12-13, 16, 53, 55, 58.
Beckie brought her complaints of mistreatment and insufficient training to
Reuter, while Scrivner was present in his office. Reuter did not respond to these
complaints. Despite Beckie’s having satisfactory performance reviews before
moving to traffic, Reuter would not transfer her to a different position even though
other employees were moved when they had problems. After three months of poor
reviews, Beckie received a notice of Corrective Action in which Cusick
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recommended to Reuter that Beckie be transferred or terminated. On October 13,
2015, Reuter terminated her. Beckie appealed her termination under court rules to
the presiding judge and a hearing was held before a three-judge Review Committee.
In March 2016, that Committee found Beckie’s termination unreasonable and ordered
that she be reinstated.
Following her reinstatement and return to the traffic department, Beckie had
carpal tunnel surgery. Reuter did not respond to her request for light duty. She
eventually had a nervous breakdown resulting in a medical leave of absence. Near
the end of September 2016, Beckie was told that the judges of the court would allow
her to remain an employee, with unpaid time off, if she sent in a letter. She faxed a
letter and then confirmed with Scrivner by phone that the letter was received and that
Scrivner had everything that was needed. On October 5, 2016, Beckie called
Scrivner to inform her that she was not up to returning to work. Scrivner told her that
her faxed letter was undated and if she did not return to work the following day, she
would lose her job. Beckie tendered her resignation. ECF No. 71-5 at 13-16, 73-75,
81-82, 90-92.

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Discussion
I.

§1983 Liability and Political Discrimination
The three plaintiffs claim that defendants conspired to force them out of their

jobs due to their political support of Democrat McKee in the 2014 election. For a
public employee, §1983 “imposes liability for certain actions taken ‘under color of’
law that deprive a person ‘of a right secured by the Constitution and laws of the
United States.’ ” Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 535 (8th
Cir. 2014) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 931 (1982)). “[A]
public employee acts under color of law when he ‘exercises[s] power possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law.’ ” Id. (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). A civil
rights plaintiff pressing a conspiracy claim must “show that two or more individuals
conspired for the purpose of depriving [the plaintiff of a constitutional right] … and
that an act was done in furtherance of the conspiracy that caused an injury or
deprivation to another.” Marti v. City of Maplewood, Mo., 57 F.3d 680, 685 (8th Cir.
1995).
Plaintiffs allege that defendants violated their First Amendment right of
political free speech. It is undisputed that “political belief and association constitute
the core of those activities protected by the First Amendment.” Elrod v. Burns, 427
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U.S. 347, 356 (1976)). In political discrimination4 cases, the Eighth Circuit applies a
burden-shifting test:
the threshold burden [is for the employee] to produce sufficient direct or
circumstantial evidence from which a rational jury could find that political
affiliation was a substantial or motivating factor behind the adverse
employment action. At that point the employer must articulate a
nondiscriminatory basis for the adverse employment action and prove by a
preponderance of the evidence that it would have been taken without regard to
plaintiff’s political affiliation.
Wagner v. Jones, 664 F.3d 259, 270 (8th Cir. 2011) (quoting Rodriguez-Rios v.
Cordero, 138 F.3d 22, 24 (1st Cir. 1998)). Plaintiffs have the initial burden of
showing they suffered an adverse employment action that was substantially motivated
by their political beliefs or affiliations. Id. at 271. Substantial or motivating factors
can be shown through either direct or indirect evidence, and the motivating factor
need only have played a part in the adverse employment action. Once plaintiffs have
met their prima facie burden, defendants must show that they would have made the
same employment decisions regardless of political affiliation or belief. Id.
II.

Susan Hickman’s Claim of Constructive Discharge
Susan retired from her position in the clerk’s office; her employment was never

terminated and then reinstated, like McKee’s and Beckie’s. Susan alleges that she
Defendants’ motion for summary judgment described plaintiffs’ claims as those of political
retaliation instead of political discrimination. According to the Eighth Circuit, a claim of First
Amendment political discrimination rather than retaliation is stated when the claim is based on
status or affiliation. Wagner v. Jones, 664 F.3d 259, 269 (8th Cir. 2011). Plaintiffs’ claims here are
based on their affiliation as Democrats.
4

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was forced to retire by intolerable working conditions. A constructive discharge is an
adverse employment action that occurs when an employer deliberately makes an
employee’s working conditions intolerable in order to force the employee to quit.
Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981). “To constitute a
constructive discharge, the employer’s actions must have been taken with the
intention of forcing the employee to quit.” Id. An objective standard is applied to
determine whether a constructive discharge occurred. Bergstrom-Ek v. Best Oil Co.,
153 F.3d 851, 858 (8th Cir. 1998). Nonetheless, if an employee leaves without
giving her employer a reasonable chance to work out the problem, the employee is
not constructively discharged. Id. (citing West v. Marion Merrell Dow, Inc., 54 F.3d
493, 498 (8th Cir. 1995)).
Susan admits that she did not complain to Reuter or Scrivner about her
working conditions. ECF No. 71 at ¶ 54. Because Susan gave her supervisors no
reasonable opportunity to respond to her complaints before voluntarily retiring, her
constructive discharge claim fails. Susan suffered no adverse employment action.
See Taylor v. Farmland Foods, Inc., No. C00-1010, 2001 WL 34148158, at *5 (N.D.
Iowa July 24, 2001) (employee resigned before giving employer any opportunity to
address alleged discriminatory treatment, therefore his resignation was not a
constructive discharge or an adverse employment action). Because Susan cannot
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establish an adverse employment action, she cannot make a prima facie showing of
political discrimination. Count II will be dismissed.
III.

Qualified Immunity
When a state actor is sued in her individual capacity, she can plead an

affirmative defense of qualified immunity, as all three defendants have done here.
“Qualified immunity protects a government official from liability in a section 1983
action unless the official’s conduct violated a clearly established constitutional or
statutory right of which a reasonable person would have known.” Henderson v.
Munn, 439 F.3d 497, 501 (8th Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). “To overcome the defense of qualified immunity, a plaintiff must show:
(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the
deprivation of a constitutional or statutory right; and (2) the right was clearly
established at the time of the deprivation.” Howard v. Kansas City Police Dep’t., 570
F.3d 984, 988 (8th Cir. 2009). The court may address either prong first. Id. (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
In 1976, the Supreme Court established that the dismissal or threatened
dismissal of employees based on their political affiliation violates the First and
Fourteenth Amendments. Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion). In
1990, the Court extended this rule to the failure to promote or transfer employees as
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well. Rutan v. Republican Party of Ill., 497 U.S. 62 (1990). Given this clearlyestablished law, in order to defeat a defense of qualified immunity, plaintiffs must
demonstrate a violation of these constitutional rights. An examination of qualified
immunity under the summary judgment standard of viewing the facts in the light
most favorable to the plaintiff, “usually means adopting ... the plaintiff’s version of
the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). In considering the facts for
qualified immunity, each defendant’s conduct must be evaluated individually.
Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir. 2010).
A. Teresa Cusick
Beckie is the only plaintiff with a claim against defendant Teresa Cusick.
Beckie alleges Cusick mistreated her at the instruction and direction of Reuter and
because of political reasons. Cusick began working in the Jefferson County Clerk’s
office in 1981. Cusick states that, like Susan and Beckie, she supported McKee in
her campaign for Clerk of Court. There is no indication that Beckie disagrees with
this statement, as most clerks in the office in 2014 campaigned for McKee. ECF No.
71-5 at 36.
Before and after the election, Cusick was the supervisor in the traffic division.
While supervising Beckie, Cusick claims Beckie (1) issued arrest warrants for the
wrong person; (2) failed to issue warrants in a timely manner; (3) failed to check her
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office mail for a month; and (4) performed incompetently. Cusick recommended to
Reuter that Beckie either be terminated or transferred to another department. Beckie
does not deny making these mistakes; she just said she does not “recall” them. She
admitted to incorrectly dating a document and that she was “sure [she] did make
mistakes by not being trained right.” ECF Nos. 67-22 at ¶ 2, 5, 7, 9; 71-5 at 31-32,
55-57.
In order to overcome a defense of qualified immunity, the facts must
demonstrate that Cusick violated Beckie’s rights. Viewing the facts in Beckie’s
favor, there is insufficient evidence to demonstrate such a violation. Beckie alleges
that Cusick’s behavior and statements created a hostile environment for her in the
traffic division. The court recognizes that Cusick treated Beckie badly, said mean
things to her, and occasionally gave her conflicting instructions. However, like
Beckie, Cusick was herself a supporter of McKee in the 2014 election. Even Beckie
admitted that she did not know why Cusick acted as she did towards her. ECF No.
71-5 at 53. There is no evidence of intent by Cusick to deprive Beckie of her
employment due to her political affiliation.
Although Cusick’s notice of Corrective Action recommended transfer or
termination of Beckie, Cusick’s actions were based on a nondiscriminatory reason:
Beckie’s poor job performance. There is no foundation for Beckie’s statement that
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the poor reviews she received were unwarranted. When questioned about specific
mistakes on the job, Beckie either did not recall making the mistake or admitted to
the mistake. No genuine dispute exists here. Beckie’s claim against defendant
Teresa Cusick fails. Cusick is entitled to the defense of qualified immunity and she
will be dismissed from this suit.
B. Christy Scrivner
On his second day in office, Reuter named defendant Christy Scrivner as the
Chief Deputy Clerk, replacing McKee. It is undisputed that Scrivner had no relevant
work experience, qualifications, or training when she started in the clerk’s office.
She had never been in a courthouse and did not know what it meant to be a clerk.
Michael Reuter and his wife5 knew Scrivner from being frequent customers in her
pizza restaurant before the election. Scrivner describes herself as neither a
Republican nor a Democrat. However, she supported both Michael Reuter and his
wife in their 2014 campaigns on the Republican ticket by walking in a parade,
wearing a ‘Reuter’ t-shirt, putting a sign in her yard, and handing out flyers at a poll
on Election Day. ECF No.71-7 at 21-25, 28, 47-53.
Plaintiffs McKee and Beckie allege that Scrivner’s appointment as Chief
Deputy Clerk was in exchange for her assistance in making working conditions
Michael Reuter’s wife, Renee Reuter, was also originally named as a defendant in this case but she
was dismissed on November 17, 2016. ECF No. 55. Renee is an elected district representative on
the County Council.
5

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intolerable for them – that Reuter and Scrivner conspired to coerce the plaintiffs’
resignations through onerous working conditions. Beckie’s only allegations against
Scrivner are that Beckie complained to Reuter about working conditions in Scrivner’s
presence, and that Scrivner told Beckie that her leave-extension paperwork was in
order, when it was not. These allegations do not demonstrate a violation of Beckie’s
constitutional rights. There is no evidence of political discrimination based on
Beckie’s party affiliation or her support of McKee. Furthermore, there is no evidence
of a conspiracy between Reuter and Scrivner for the purpose of depriving Beckie of a
constitutional right. See Marti, 57 F.3d 680 at 685. Scrivner is entitled to qualified
immunity on Beckie’s claims against her.
However, qualified immunity will not protect Scrivner against the claim
brought by McKee. Despite having no experience or training, Scrivner replaced
McKee as Chief Deputy Clerk and then filed a false complaint against her on their
second day working together. The complaint led to the issuance of a notice of
Corrective Action – McKee’s first reprimand in her twenty-five years at the office.
Scrivner was a public employee performing her official duties when she testified
against McKee at her appeal termination hearing. Scrivner verified her support of
Reuter’s dismissal of McKee by writing the word “Karma” on the board outside her
office. According to Scrivner, the reprimand was justified because McKee refused to
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answer her questions and failed to help train her. When Scrivner testified at the
appeal hearing, she said she was not providing her opinion on McKee’s termination,
only answering questions as required by her job.
A dispute exists as to whether Scrivner’s actions against McKee were
politically motivated or based on legitimate, nondiscriminatory reasons. Thus,
accepting the facts in the light most favorable to McKee, they are sufficient to
demonstrate a violation of McKee’s rights.
C. Michael Reuter
The facts against Reuter, viewed in a light most favorable to McKee and
Beckie, also create genuine disputes of fact sufficient to establish violations of right
and defeat a defense of qualified immunity. According to McKee, Reuter forced her
out of her job because of her political affiliation by: removing her from her semiprivate office to a desk right outside his office on his first day before she had even
taken off her coat; installing two office cameras that he used during her employment
under him; publicly humiliating her when he took her office keys and parking pass;
intentionally excluding her from office meetings; replacing her as Chief Deputy Clerk
with someone completely unqualified, despite telling her that she would remain
Chief; telling other clerks in the office not to talk to her; assigning her to
microfilming as a punishment; issuing her a notice of Corrective Action in conspiracy
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with Scrivner and based on false information; terminating her employment based on
false information; assigning her to a position significantly below her qualifications
following her reinstatement; and restricting her presence in the main clerk’s office.
McKee also argues that Reuter wanted to get back at her for statements she made
during the campaign, questioning his qualifications and notifying people of an adult
abuse Order of Protection against him.
In response, Reuter states that he moved McKee outside his office so she could
assist him more closely because she was the most knowledge clerk; that he installed
the cameras for his protection; that he told her not to come to the office meeting
because there were customers who needed help at the clerk’s office window and she
had already met Scrivner; and that he advised McKee not to come to the second floor
after reinstatement in order to lighten the tension between employees. Reuter argues
that he had a legitimate, nondiscriminatory reason for McKee’s termination: her
outburst in the office on April 2, 2015. Reuter collected written statements from
employees who described McKee as yelling and cursing at coworkers. ECF No. 67-9
to 67-17. McKee disputes her ex-coworkers accounts of the incident, and argues that
the incident was not a sufficient basis for dismissing her after many years of service
with no previous disciplinary marks. The evidence shows numerous factual disputes;
McKee’s evidence, if believed, could show a constitutional violation.
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The facts as alleged by Beckie against Reuter also demonstrate genuine
disputes. According to Beckie, Reuter denied her multiple requests to transfer out of
the traffic division despite allowing other employees to transfer upon request; failed
to respond to her complaints of mistreatment by supervisor Cusick or her request for
light duty after having surgery; failed to provide her with sufficient training in her
traffic position, nor the same amount of training provided to other clerks; and
terminated her with insufficient grounds given her clean employment record at the
office. Reuter argues that Beckie’s deficient performance in her employment duties
was a legitimate, nondiscriminatory basis for termination. These genuine disputes of
fact create issues for trial and preclude a summary judgment based on qualified
immunity.
Conclusion
Because a political discrimination claim requires a prima facie showing of an
adverse employment action, plaintiff Susan Hickman’s claim fails on the merits as
she admits that she never brought her working condition complaints to her employer
before retiring. Furthermore, plaintiff Beckie Hickman cannot establish a violation of
her constitutional rights by Scrivner and Cusick; therefore Scrivner and Cusick are
entitled to the defense of qualified immunity on her claims.

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However, genuine disputes of material fact exist as to McKee and Beckie’s
claims against Reuter, and as to McKee’s claim against Scrivner. When the facts are
viewed in the light most favorable to plaintiffs, they are sufficient to establish
constitutional violations and require the denial of the defense of qualified immunity
for these defendants on these claims. The factual disputes also preclude summary
judgment on the merits of the claims. A jury must decide whether the facts show
adverse employment actions taken against plaintiffs, motivated by a constitutionally
protected First Amendment right of political belief and association, and not based on
legitimate, nondiscriminatory reasons.
Based on the foregoing,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment
[#65] is GRANTED in part and DENIED in part. Defendants Reuter and Scrivner
are entitled to summary judgment on Susan Hickman’s claims in Count II, and Susan
Hickman’s claims are dismissed in their entirety. Defendants Scrivner and Cusick
are entitled to qualified immunity on the claims of Beckie Hickman contained in
Count III. The counts of the Amended Complaint that remain for trial are: Count I,
brought by Jeanette McKee against Michael Reuter and Christy Scrivner, and Count
III, brought by Beckie Hickman against Michael Reuter.

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IT IS FURTHER ORDERED that plaintiffs’ motion for leave to supplement
the record in opposition to defendants’ summary judgment motion [#74] is
GRANTED.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 5th day of September, 2017.

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