Zimbobway Schwartze Bramblett v. City of Columbia, Missouri et al

Filing 119

AMENDED ORDER granting in part and denying in part Defendant's motion for summary judgment, Doc. 102 . This order replaces the order entered at Doc. 118 or correct the numbering of the Counts referenced in the order. Summary judgment is granted with respect to Plaintiff's Counts IV and V. Summary judgment is denied with respect to Plaintiff's Counts I, II, and III. (Hatting, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
IRENE MARIA ZIMBOBWE
SCHWARTZE BRAMBLETT,

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Plaintiff,
v.
CITY OF COLUMBIA, MISSOURI,
et al.,
Defendants.

No. 2:14-cv-04078-NKL

ORDER
Defendants’ motion for summary judgment, Doc. 102, is granted in part and
denied in part.1 Defendants’ motion is granted with respect to Plaintiff’s Count II: Prima
Facie Tort and Count IV: Due Process Liberty Interest. Defendants’ motion is denied
with respect to Plaintiff’s Count III: Due Process Property Interest and Count I: Breach of
Contract.
I.

Undisputed Facts
Plaintiff Irene Maria Zimbobwe Schwartze Bramblett (“Schwartze”) is a former

employee for the City of Columbia, Missouri (“City”). Prior to May 14, 2009, Schwartze
worked as a Police Captain for the City.

On May 14, Schwartze was appointed

temporary Emergency Communications and Management Administrator (“ECMA

1

Three Defendants are named in this action: the City of Columbia, Kenneth Burton, and
Michael Matthes.

Administrator”).2 At that point, she was approximately two years and nine months from
becoming eligible for retirement under the police pension. Schwartze would not have
accepted the ECMA Administrator position if the assignment affected her police pension.
To ensure that Schwartze’s pension eligibility was not affected, she was paid for her
work as ECMA Administrator from the City’s Police Department budget and remained a
captain in the department. On October 5, 2009, Bill Watkins, then acting City Manager,
offered Schwartze a permanent position as ECMA Administrator. The terms of this job
offer were laid out in a memorandum (the “October 5, 2009 Agreement”):
I am pleased to offer you the position of ECMA for the City of
Columbia. Should you agree to accept this offer the following are
the terms and conditions of your appointment as Emergency
Communications and Management Administrator.
You will remain a Columbia Police Department captain assigned to
the position of Emergency Communications and Management
Administrator. Your assignment will end when you first become
eligible to retire under the police pension plan. At that time you will
have the option of being reassigned to the Police Department or
retiring under the police pension plan and continuing as the
Emergency Communications and Management Administrator. If
you continue as Administrator, you will be covered by the LAGERS
retirement system.
You must inform me of your decision to return to the Police
Department or remain as Administrator at least six months before
you first become eligible for retirement under the police pension
plan.

2

In 2010 this position was changed to the Director of Public Safety Joint
Communications and Emergency Management Director. Because this change did not
affect Schwartze’s job duties the Court will, for ease of communication, use the title
ECMA Administrator throughout this order to refer to the job held by Schwartze.
2

Of course, your assignment to the position of Administrator as well
as your option to continue as Administrator is subject to satisfactory
job performance.
City Exhibit 22, Doc. 103-22. This Agreement was signed by both Schwartze and
Watkins.
As ECMA Administrator, Schwartze was paid about $15,000 more than the prior
ECMA Administrator had been paid due to the funding of her position through a captain
position in the City’s Police Department. Despite continuing to be paid from the Police
Department budget, after becoming ECMA Administrator Schwartze performed no police
duties and did not report to the Police Chief, Kenneth Burton. The Police Captain
position was a “classified” position under the City Ordinances.
In May 2011, Michael Matthes became the City Manager. When Matthes became
City Manager, the City was operating at a nearly $3 million deficit. By 2012, the City
had a $1.9 million surplus because Matthes put a hiring freeze in effect.
Schwartze became eligible to receive police pension benefits on February 2, 2012.
As set out in the October 5, 2009 Memorandum, Schwartze was to have the option at that
point to remain as ECMA Administrator or return to the Police Department. In May
2011 and numerous times thereafter Schwartze had conversations with Matthes wherein
she indicated her intention to retire from the Police Department in February 2012 and
serve solely as the ECMA Administrator.
In late 2011 and early 2012, Eric Anderson, an independent consultant, conducted
a review of the administration of the Police Department. Schwartze met with Anderson

3

one time and was critical of Burton but not Matthes. She has no knowledge of anything
she said to Anderson being relayed to Burton or Matthes.
Sometime after Schwartze’s meeting with Anderson, on January 18, 2012 Matthes
told Schwartze he was considering eliminating the ECMA Administrator position.
Schwartze asked during this meeting whether going back to the Police Department as
captain was an option; Matthes indicated that he would think about it and get back to her.
Matthes reiterated that the City was in the process of eliminating the ECMA
Administrator position at a meeting with Schwartze in February 2012. During that
meeting Matthes told Schwartze she could not return to the Police Department.
Schwartze did not express an opinion at that point about what she planned to do moving
forward. On February 6, 2012, Burton emailed Matthes and complained that Schwartze
was “stonewalling.”
On May 9, 2012, Matthes presented Schwartze with two options: she could
voluntarily resign and retire from her job as ECMA Administrator and begin drawing her
police pension, or she would be eliminated. Matthes gave Schwartze less than one hour
to decide whether to accept the resign/retirement scenario or be eliminated. Schwartze
consulted with her attorney, and decided not to resign.

After being informed of

Schwartze’s decision, Matthes provided her a letter stating that she was placed on
administrative leave, effective immediately. At around 5:00 p.m., Matthes sent an email
to the Mayor, City Council, and senior staff stating that Schwartze was on paid
administrative leave pending action at the next City Council meeting to amend the
budget. Burton then sent an email to the Police Department stating that Schwartze was
4

no longer an administrator of the City and Schwartze’s access to the building was
restricted to areas open to the general public unless she was accompanied by an escort.
After learning of Schwartze’s removal, Deputy Police Chief Stephen Monticelli emailed
Burton and stated, “Wow, there has to be a story there? She step in it again?” Burton
responded, “we will talk later.”
Watkins believes the City’s termination of Schwartze was “poorly handled,” and
has noted that in the sixteen years in which he served as Assistant City Manager and City
Manager, he never laid off or terminated a department head without cause.

In his

experience, employees laid off for budgetary reasons were not terminated immediately,
were not locked out of their officers, were not locked out of their computers, and were
not escorted by police or human resources staff off of City property. City Attorney Fred
Boeckmann made statements similar to Watkins’ regarding the irregularities surrounding
Schwartze’s termination.
On May 17, 2012, Schwartze’s attorney filed a “Complaint/Grievance/Appeal”
under the City’s Ordinances.

On June 11, 2012, Matthes denied Schwartze’s

Complaint/Grievance. On June 14, Schwartze requested a hearing before the Personnel
Advisory Board. The City informed Schwartze that layoffs are not subject to hearings
before the Board.
On June 4, 2012, the City Council voted to eliminate the ECMA Administrator
position. However, prior to that date Matthes had indicated to Schwartze that even if the
City Council did not vote to eliminate the position, that would not change his decision to
terminate Schwartze.
5

Joe Piper and Fire Chief Scott Olsen were assigned Schwartze’s work after she
was terminated. Piper received a raise and a promotion. The City also requested that
Donna Hargis return to work from retirement to help with the workload in Schwartze’s
absence. Following Schwartze’s separation of employment from the City, she asked to
be placed on a reemployment list. This reemployment list exists because City Ordinance
19-211 states that laid off employees will be given “first consideration” for the position
that was eliminated or similar positions. In October 2012, Schwartze applied for the
deputy chief of police position and was considered but not selected. Instead, the City
hired Diane Bernhard, an internal applicant already working in the Police Department.
Matthes did not know Schwartze applied for the deputy chief position. Captain positions
opened in September 2012 and August 2013 and both positions were filed internally.
II.

Discussion
A.

Count III: Due Process Property Interest

Schwartze has brought two due process claims under 42 U.S.C. § 1983. In order
to have a successful claim under § 1983, the plaintiff must be able to prove that “1)
defendant deprived plaintiff of a right, privilege or immunity secured by the Constitution
or laws of the United States, and 2) defendant was acting under the color of state law at
the time of the conduct constituting the deprivation.” Foremost Ins. Co. v. Public Serv.
Comm’n of Mo., 985 S.W.2d 793, 796 (Mo. Ct. App. 1998).
Schwartze contends that Defendants violated her procedural due process rights
when they terminated her from her job as ECMA Administrator and refused to let her
return to a job at the Police Department. In order for a government employee to have a
6

right to procedural due process, they must be deprived of a constitutionally protected
property or liberty interest. Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927,
934 (8th Cir. 2012). Property interests in employment generally arise from limitations on
an employer’s right to terminate an employee. Daniels v. Bd. of Curators of Lincoln
Univ., 51 S.W.3d 1, 7 (Mo. Ct. App. 2001). Due process requires notice, an opportunity
to respond to the charges before termination, and post-termination administrative review.
Id. Schwartze contends that she had a protected property interest in her employment with
the City pursuant to 1) the October 5, 2009 Agreement, 2) the City Ordinances and
Charter, 3) City customs and practices, or 4) some combination of the above.
Regardless of the content of the October 5, 2009 Agreement and the City’s
customs and practices with respect to her employment, Schwartze had a property interest
in her employment under the City Ordinances. Section 19-237 of the City Code sets out
the grievance procedure that applies to all classified employees who have “an action
taken against them . . . without just cause.” This “just cause” requirement mandates that
an employee receive due process before being terminated. Defendants have conceded for
the purpose of the summary judgment motion that Schwartze was a classified employee.
Therefore, she was entitled to due process before being separated from her job for
reasons other than a layoff.
Here, there is a factual dispute regarding whether Schwartze’s position was
terminated due to a lack of funds or curtailment of work, or whether she was separated
from employment for some other reason. While the City consistently told Schwartze that
she was being laid off and her position as ECMA Administrator was being eliminated,
7

the City has conceded other facts which support Schwartze’s contention that her layoff
was pretext for a termination due to animus.

For example, Burton believed that

Schwartze had made comments critical of him and how he ran the Columbia Police
Department and thought that she was a contributor to the toxic supervisory culture. The
record also suggests that the way in which Schwartze was removed from her job was
unprecedented. Moreover, the City’s budget accommodated for Schwartze’s positions,
and Matthes admitted that even if the City Council had refused to eliminate Schwartze’s
position from the budget, Schwartze would not be reinstated in her position. Defendants
also declined to rehire Schwartze when later positions became available, even though she
had a right to “first consideration” under the Ordinances.
If Schwartze was separated from her position as ECMA Administrator for reasons
other than a layoff, she was entitled to due process in the course of her separation. Due
process may consist of both pre- and post-deprivation procedures. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 541-42 (1985).

Inadequate pre-deprivation

procedures may be cured by extensive post-deprivation procedures. Id. at 546-48.
The pre-deprivation process afforded Schwartze was insufficient if she was fired
rather than laid off. Schwartze was notified months before her termination that her
superiors were considering eliminating her position and discussed this situation with
Matthes multiple times before her termination. However, Defendants’ only explanation
for her termination was that budget cuts necessitated her position being eliminated, a
contested issue.

Schwartze was not notified of other underlying reasons for her

termination or given a chance to respond to any accusations against her. If Schwartze is
8

able to prove that the layoff was pretext for termination for some other reason, she was
denied due process in not being informed of the real reasons for her termination or given
a chance to respond. Inherent in the concept of due process is the opportunity for the
accused to respond to the accusations being levied against her. Where the accused is not
informed of the actual reasons for her termination so as to have a chance to respond to the
actual cause of the termination, there can be no due process.
Assuming the layoff was a pretext for her termination, Schwartze was also
afforded insufficient post-deprivation process. Defendants contend that Schwartze could
have appeared at the City Council meeting on June 4, 2012 to contest the elimination of
the ECMA Administrator position. However, the City Council meeting was not an
adversarial proceeding wherein Schwartze had the opportunity to address the merits of
the reasons for her termination. See St. Louis County v. State Tax Commission, 608
S.W.2d 413 (Mo. banc 1980) (noting that “[t]he element of adversity is essential to the
meaning” of contested case). The City continued to maintain at the time of the Council
meeting that Schwartze’s position was being eliminated due to budgetary issues. If
Schwartze is able to demonstrate that these purported budgetary issues were pretext for
her termination, she was never notified of the actual reasons for her discharge to be able
to respond to the accusations against her. Moreover, the City Council meeting cannot
fairly be called an adversarial proceeding meant to give Schwartze an opportunity to
vindicate her rights. She was not guaranteed the opportunity to speak at the meeting.
Furthermore, the issue before the Council related to the budget and not substantive
complaints against Schwartze. Any commentary she would have provided regarding her
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personal job performance or workplace issues would have been irrelevant to the
underlying budget considerations at the meeting.
The City also failed to provide Schwartze with an adversarial hearing when she
requested one. Schwartze submitted a Complaint/Grievance/Appeal pursuant to Chapter
19 of the City Ordinances after she was placed on administrative leave. Matthes denied
this Complaint/Grievance/Appeal on June 11, 2012. Her subsequent request for a hearing
before the Personnel Advisory Board was also denied.
Defendants contend that Schwartze’s failure to participate in a post-termination
hearing waived her procedural due process claim. Exhaustion of administrative remedies
is generally not required in order for a plaintiff to pursue a section 1983 action. Webb v.
Board of Educ. of Dyer County, Tenn., 471 U.S. 234, 248 (1985). However, the Eighth
Circuit did hold in Krentz v. Robertson Fire Protection District, 228 F.3d 897 (8th Cir.
2000), that the plaintiff waived his procedural due process claim by failing to participate
in post-termination proceedings under MAPA. In contrast to Schwartze’s situation,
however, the plaintiff in Krentz was provided notice of a meeting at which he would have
an opportunity to respond to defendants’ decision to terminate him. Schwartze was
specifically denied such an opportunity when she requested it. She did not waive her
procedural due process claim by failing to engage in post-termination proceedings which
she was explicitly denied.3

3

Defendants also argue that the contested and uncontested case distinction hinges on
whether a hearing is required, rather than granted, and that if Schwartze is correct that she
was entitled to a hearing this is an uncontested case because she failed to avail herself of
post-termination proceedings under MAPA. This argument contradicts common sense.
10

Finally, Defendants Burton and Matthes argue that they are entitled to qualified
immunity for this claim. They are entitled to qualified immunity unless Schwartze can
show (1) that her constitutional right was violated and (2) that the right was clearly
established at the time of the alleged misconduct. Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). In order to be clearly established, the right must be sufficiently clear that a
reasonable official would understand that their actions violated the right. Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
The rule that public employees who have protected interests in their employment
must be provided adequate process in termination is well settled. See Young v. City of St.
Charles, Mo., 244 F.3d 623 (8th Cir. 2001). Defendants also do not contest that it is clear
that a pretextual layoff may not be used to avoid procedural due process obligations. See
Lalvani v. Cook County, Ill., 269 F.3d 785, 793 (7th Cir. 2001). As Defendants have
conceded that Schwartze was a classified employee, she was clearly entitled to due
process for any separation other than for layoff. Given the above described factual
disputes, Burton and Matthes are not entitled to qualified immunity at this time.
Burton contends that he is individually entitled to summary judgment on this claim
because Schwartze has presented no evidence that he was involved in the decision to
eliminate the ECMA Administrator position, terminate Schwartze, or not allow her to

Defendants concede that Schwartze requested an administrative hearing, which she was
denied. If a hearing was required in relation to her termination, this denial constitutes the
due process violation. See Sapp v. City of St. Louis, 320 S.W.3d 159, 165 (Mo. Ct. App.
2010) (“Sapp’s right to due process was violated when he did not get a contested case
hearing.”); see also Guelker v. Director of Revenue, 28 S.W.3d 488, 491 (Mo. Ct. App.
2000) (“the law will not require the doing of a useless and futile act.”).
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return to the Police Department. However, Schwartze has presented facts to indicate that
Burton had conversations with Matthes about the decision to terminate Schwartze.
Moreover, Schwartze contends that Matthes informed her that he was not the one
responsible for deciding whether Schwartze could be reemployed at the Police
Department. It can be reasonably inferred from these facts that Burton, the Police Chief,
was involved in making this decision. In addition, there are facts to support an inference
that Burton had a negative relationship with Schwartze.

Given the factual disputes

regarding Burton’s role in Schwartze’s termination, he is not entitled to summary
judgment on this claim.
As the record contains factual disputes regarding the underlying reasons for
Schwartze’s separation from employment and who was involved in that decision, and
because she was provided insufficient process if she was terminated for reasons other
than a layoff, the Defendants’ motion for summary judgment is denied as to Count III.
B.

Count IV: Due Process Liberty Interest

Schwartze also contends that Defendants infringed upon her Due Process rights in
stigmatizing her in connection with her termination, which resulted in a violation of her
liberty interests. Specifically, Defendants had a police officer escort her out of the
building following her termination, did not allow her to gather her personal belongings
after her termination, locked her out of her office, and refused to allow her to be in nonpublic portions of the police station without an escort. There was also a department wide
email sent out regarding her removal from the department.

12

In order to show a violation of her liberty interests, Schwartze must be able to
demonstrate that “(1) an official made a defamatory statement that resulted in stigma; (2)
the defamatory statement occurred during the course of terminating the employee; (3) the
defamatory statement was made public; and (4) an alteration or extinguishment of a right
or legal status.” Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir. 2009). The Eighth Circuit
described the extent of the defamatory statements that must be alleged before they are
actionable under § 1983 in Jones v. McNeese, 746 F.3d 887, 898 (8th Cir. 2014):
For a defamatory statement to be actionable under § 1983, it must go
beyond “alleging conduct [by the plaintiff] that fails to meet
professional standards,” Raposa v. Meade Sch. Dist. 46-1, 790 F.2d
1349, 1354 (8th Cir. 1986). Rather, the statement must “damage[ ] a
person’s standing in the community or foreclose[ ] a person’s
‘freedom to take advantage of other employment opportunities.’” Id.
(quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “The requisite stigma has
generally been found in cases in which [a government official] has
accused the [plaintiff] of dishonesty, immorality, criminality, racism,
or the like.” Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir.
1993) (collecting cases).
The Eighth Circuit then concluded that the McNeese’s statements that Jones may have
engaged in ethically questionable conduct, visited inmates at a prison which was a
practice the defendant saw as highly inappropriate, and committed an “ethical breach”
did not “create the level of stigma required to implicate a constitutionally protected
liberty interest.” Id. (quotation omitted).
Schwartze admits that she is unaware of any disparaging remarks made by
Matthes or Burton regarding her termination. The only other statement made regarding
Schwartze’s termination was the email sent to the City employees informing them that
13

Schwartze was no longer employed by the City, and Defendants’ actions in removing her
from the building after she was placed on administrative leave. Schwartze has presented
no evidence of Defendants ever accusing her of dishonesty, immorality, criminality,
racism, or anything along those lines. Mascho v. Gee, 24 F.3d 1037, 1039 (8th Cir. 1994).
Simply removing a terminated employee from the building or preventing access to
records is not sufficient to infer such an accusation. The Eighth Circuit has specifically
rejected the idea that a stigma can be “created by innuendo from inferences drawn from
general allegations of misconduct and insubordination.” Id. Here, there is no evidence
that Defendants publically accused Schwartze dishonesty, immorality, criminality, racism
or anything similar. Defendants are entitled to summary judgment on Count IV.
C.

Counts I and II: State Law Claims
1.

Contract Claims4

Schwartze contends that Defendants breached the October 5, 2009 Agreement or
other contractual protections afforded by the Ordinances and customs, policies, and
practices of the City. In addition to arguing that Defendants breached the explicit terms
of these alleged contracts, Schwartze argues that Defendants breached the implied
covenant of good faith and fair dealing.
Schwartze contends that the October 5, 2009 Agreement as supplemented by the
Ordinances, customs, practices, and policies of the City created an implied in fact
contract to provide her contractual protections to which the implied duty of good faith
4

The following discussion relates solely to Schwartze’s state law claims and not the §
1983 claims. As previously discussed, being a classified employee alone triggered a right
to due process.
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and fair dealing applies. The parties have submitted inadequate briefing on this issue for
the Court to be able to determine at this point whether an implied in fact contract was
created.

However, Perry v. Sindermann, 408 U.S. 593 (1972), clearly supports

Schwartze’s contention that “[e]xplicit contractual provisions may be supplemented by
other agreements implied from ‘the promisor’s words and conduct in light of the
surrounding circumstances.” Given this precedent and Defendants’ failure to respond to
the merits of Schwartze’s arguments regarding the existence of an implied in fact
contract, summary judgment is denied on this argument at this time.
Schwartze alternatively argues that the October 5, 2009 Agreement constituted a
complete and unambiguous contract for employment, which granted her a right to
continued employment by the City. The Agreement between Schwartze and the City
provided as follows:
I am pleased to offer you the position of ECMA for the City of
Columbia. Should you agree to accept this offer the following are
the terms and conditions of your appointment as Emergency
Communications and Management Administrator.
You will remain a Columbia Police Department captain assigned to
the position of Emergency Communications and Management
Administrator. Your assignment will end when you first become
eligible to retire under the police pension plan. At that time you will
have the option of being reassigned to the Police Department or
retiring under the police pension plan and continuing as the
Emergency Communications and Management Administrator. If
you continue as Administrator, you will be covered by the LAGERS
retirement system.
You must inform me of your decision to return to the Police
Department or remain as Administrator at least six months before
you first become eligible for retirement under the police pension
plan.
15

Of course, your assignment to the position of Administrator as well
as your option to continue as Administrator is subject to satisfactory
job performance.
City Exhibit 22, Doc. 103-22. Schwartze relies on the Agreement’s provision that the
terms of the Agreement are “subject to satisfactory job performance” to support her
contention that the Agreement conveyed on her a right to continued employment.
In order for an employment contract to override the general rule that employment
is provided on an at-will basis terminable by either party, the contract must express a
specific duration or some specified limitations on discharge. Morrow v. Hallmark Cards,
Inc., 273 S.W.3d 15, 26 (Mo. Ct. App. 2008). The Agreement specified that Schwartze
was to be employed as “a Columbia Police Department captain assigned to the position of
Emergency Communications and Management Administrator” until she “first bec[a]me
eligible to retire under the police pension plan.” This provision set out a specific duration
to override the at-will employment rule through February 2, 2012, the date Schwartze
became eligible to retire under the pension.
The contract also provided that when her assignment as ECMA Administrator
ended, Schwartze had the right to exercise an option to remain the ECMA Administrator
or return to the Police Department.

The Agreement specified that Schwartze’s

assignment to the ECMA Administrator position, as well as the right to exercise the
option, were “subject to satisfactory job performance.” As employment contracts are
presumed to be at will absent language to the contrary, and all words in a contract must
be given meaning, the most reasonable interpretation of the Agreement is that it
16

guaranteed Schwartze exemption from at will employment at least until her assignment
ended and she exercised her option.
Schwartze has argued that Defendants breached the covenant of good faith and fair
dealing in terminating her employment. Missouri law implies the covenant of good faith
and fair dealing in every contract. Farmers’ Elec. Coop. v. Mo. Dep’t of Corr., 977
S.W.2d 266, 271 (Mo. banc 1998).

“[W]here a contract confers on one party a

discretionary power affecting the rights of the other, a duty is imposed to exercise the
discretion in good faith and in accordance with fair dealing.” City of St. Joseph v. Lak
Contrary Sewer Dist., 251 S.W.3d 362, 369 (Mo. Ct. App. 2008) (quotation omitted).
This duty obligated Defendants to act with good faith in allowing Schwartze to exercise
her option to remain as ECMA Administrator or return to the Police Department. The
record contains factual disputes which prevent resolution of this claim. The parties
disagree about whether Schwartze was laid off or terminated for some other reason.
They also disagree about the existence and severity of any budget shortages the City was
experiencing at the time Schwartze’s positions were cut. If the police captain and ECMA
Administrator positions were eliminated for the purpose of mooting Schwartze’s option
and forcing her out of City employment, this would violate the covenant of good faith
and fair dealing.
Defendants raise a myriad of arguments regarding alleged procedural defects in
the October 5, 2009 Agreement which they contend prevented the Agreement from
conveying Schwartze any contract rights. Most notably, they argue that the execution of
the Agreement conflicted with the City Charter, which states that the City Manager has
17

the power to “remove all officers and employees of the city,” and that all contracts
contrary to the Charter are void.

They also note that the Charter requires that all

contracts be certified in writing by the Director of Finance to be valid and binding on the
city.5
Defendants contend that a contract which does not comply with statutory or
charter requirements is automatically void and cannot be validated by substantial
compliance. The Court concludes that the weight of Missouri case law on this topic
supports the application of substantial compliance to the October 5, 2009 Agreement. In
Veling v. City of Kansas City, 901 S.W.2d 119 (Mo. Ct. App. 1995), the Missouri Court
of Appeals concluded that the fact that an employment contract was not certified by the
Director of Finance in accordance with the Kansas City Charter did not prevent the
existence of a contract under the doctrine of substantial compliance.

The court

distinguished contrary precedent because the case at bar involved an employment
contract, and did not involve allegations of fraud or equitable estoppel, or an attempt to
enforce an oral contract. None of those elements are present in Schwartze’s case. The
Missouri Court of Appeals also noted that its conclusion in Veling was consistent with the
court’s prior decision in Lynch v. Webb City School Dist. No. 92, 418 S.W.2d 608 (Mo.
Ct. App. 1967), which also found that substantial compliance in an employment contract
was sufficient to create a valid contract. Schwartze’s claim, like those in Veling and
Lynch, involves a dispute over an employment contract where the plaintiff alleges not
5

It is unclear how these arguments bear on the validity of any implied in fact contract,
and the parties have not yet addressed that issue. Therefore, the Court will not resolve
that issue on summary judgment.
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that the City Charter should be circumvented, but that there was substantial compliance
with its requirements. See Veling, 901 S.W.3d at 124 (“Veling is not asking the courts to
overlook a statutory or charter requirement for a valid contract with a municipality in
arguing for the application of equitable estoppel; instead, Veling asks the court to find he
“substantially complied” with the requisite elements of section 432.070, and the Kansas
City Charter.”). The Defendants cite to Ballman v. O’Fallon Fire Protection District,
459 S.W.3d 465 (Mo. Ct. App. 2015), to support their position that substantial
compliance cannot redeem contracts which are deficient under the explicit terms of the
City Charter. However, Ballman does not address substantial compliance. Based on the
briefing and the clear rules set out in Veling and Lynch regarding substantial compliance
in city employment contracts, the Court cannot say that Ballman has overruled Veling,
Lynch, and their progenies.
Though the Court has concluded that the doctrine of substantial compliance may
be sufficient to override any deficiencies in the approval of the October 5, 2009
Agreement to create an enforceable employment contract, there are factual disputes
which prevent the Court from determining at this point whether there was adequate
compliance with the Charter to make the Agreement enforceable.

Whether the

Agreement was sufficiently approved by the Director of Finance and City Manager to
have substantially complied with the Charter requirements is appropriate for resolution at

19

trial.6 The Court therefore declines to grant Defendants’ motion for summary judgment
as to Count I.
2.

Prima Facie Tort Claim

Finally, Schwartze has alleged a prima facie tort claim against Matthes and
Burton.

“In order to establish a prima facie tort, the plaintiff must prove: (1) an

intentional lawful act by the defendant, (2) defendant’s intent to injure the plaintiff, (3)
injury to the plaintiff, and (4) an absence of, or insufficient justification for defendant’s
act.” Woolsey v. Bank of Versailles, 951 S.W.2d 662, 668 (Mo. Ct. App. 1997). “The
plaintiff must show specific, clear-cut, express malicious intent to injure; mere intent to
do the act which results in injury is not sufficient.” Id. at 669. This is a “‘heavy’
burden.” Kiphart v. Community Federal Sav. & Loan Ass’n, 729 S.W.2d 510, 517 (Mo.
Ct. App. 1987).
Construing all allegations in favor of Schwartze, she has failed to show sufficient
malicious intent for her to maintain a prima facie tort claim. Schwartze argues that this
malicious intent is apparent from Defendants’ belief that she was not “on board” with
their management style, their decision to fire her without cause and to fabricate a reason
for her termination, and the way she was treated after her termination. While these facts
support Schwartze’s contention that Defendants removed her from her job, they are
insufficient to demonstrate that Defendants had a malicious intent to injure Schwartze.

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Defendants further argue that any promise of indefinite employment in the Agreement
was illusory. As Schwartze agreed to take the job as ECMA Administrator as
consideration for the contract set out in the Agreement, the contract was not illusory.
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Schwartze has presented no evidence that Defendants acted to prevent her from obtaining
future employment or attempted to deprive her of anything beyond her employment.
There is also no evidence that Burton’s sarcastic commentary on his inclusion in an email
addressed to Schwartze’s “friends” and statement that her accepting a new position
elsewhere was “wonderful” for the City had any independent injurious effect on
Schwartze beyond her termination.
As Schwartze has failed to demonstrate sufficient malicious intent or that she
suffered harm beyond her termination, Defendants are entitled to summary judgment on
Count II.
III.

Conclusion
For the reasons set forth above, summary judgment is granted for the Defendants

on Counts II and IV. Defendants’ motion is denied with respect to Plaintiff’s Count III
and Count I.
/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 22, 2015
Jefferson City, Missouri

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