Blase v. City of Neosho et al

Filing 38

ORDER granting 31 plaintiff's motion for leave to file amended complaint; granting 22 defendant's motion for summary judgment and setting telephone pretrial conference for 10:00 a.m., Friday, October 21, 2011. See Order for details. Signed on 10/17/11 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
Jan M. Blase,
Plaintiff,
v.
The City of Neosho, Steve Hart,
Richard Davidson, Tom Workman,
David Ruth, Charles Collinsworth,
and Steven Hays,
Defendants.

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Civil Action Number
10-03311-CV-S-JTM

Order
On February 22, 2010, Jan Blase (“Blase”) was terminated as the City Manager of
Neosho, Missouri (“Neosho”). A few months thereafter, on July 19, 2010, Blase filed an action
in state court against Neosho, the individual members of the City Council for Neosho, and the
Neosho City Attorney. The Petition asserted four counts:
(1)

Blase’s termination violated the Due Process Clause as
incorporated into the Fourteenth Amendment of the United States
Constitution;

(2)

Blase was wrongfully terminated in violation of public policy
under Missouri law;

(3)

the actions of the City Council and the City Attorney wrongfully
interfered with Blase’s contractual relationship with Neosho; and

(4)

the Court should conduct a de novo review of the termination
pursuant to MO. REV. STAT. § 536.150.

The case was subsequently removed from the state court to this Court and currently pending
before the Court is a motion for summary judgment [Doc. 22] filed by the defendants.1 For the
reasons set out herein, the motion is granted.
With regard to Blase’s first allegation, to wit, that his termination violated the due
process protections embedded in the Fourteenth Amendment, although not specifically cited by
Blase, such a claim is cognizable – if at all – pursuant to 42 U.S.C. § 1983. First enacted by
Congress following the conclusion of the Civil War, section 1983 provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured. . . .
42 U.S.C. § 1983. By its plain terms then section 1983 provides a remedy “against all forms of
official violation of federally protected rights,” including the rights guaranteed by the United
States Constitution. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 700-01, 98
S.Ct. 2018, 2041 (1978).
It is well settled that the Constitution, as construed over the years, encompasses two
different types of due process claims – substantive due process and procedural due process.
County of Sacramento v. Lewis, 523 U.S. 833, 841, 118 S.Ct. 1708, 1713 (1998). Affording
Blase’s Petition a favorable reading, he is complaining about both procedural and substantive
due process violations in his termination by Neosho. While the nature of the two due process
claims is distinct, both types of claims involve one common and essential element:

1

After the summary judgment motion was filed, Blase filed a motion seeking leave
to file a First Amended Complaint that would add a fifth cause of action for breach of contract.
That proposed amendment will be addressed at the conclusion of this order.
2

Section 1983 relief is predicated on the denial of a right or interest
protected by the Constitution. . . . Analysis of either a procedural
or substantive due process claim must begin with an examination
of the interest allegedly violated. Protected property interests are
created by state law, but federal constitutional law determines
whether the interest created by state law rises to the level of a
protected property interest.
Dover Elevator Co. v. Arkansas State University, 64 F.3d 442, 445-46 (8th Cir. 1995) (citations
omitted) (emphasis added). Accordingly to prevail on either a substantive due process claim or a
procedural due process claim, Blase must be able to establish that he had a protected property
interest in his job as City Manager with Neosho.
Blase was an at-will employee of Neosho. As the City Manager, he was appointed by the
City Council and “serve[d] at the pleasure of the Council.” Neosho City Code § 105.140. Blase
did enter into an Employment Agreement with Neosho that was intended to memorialize certain
benefits and establish working conditions for Blase’s employment with Neosho. However, that
Employment Agreement also specifically provided:
Nothing in this agreement shall prevent, limit, or otherwise
interfere with the right of the Council to terminate the services of
[Blase] at any time, subject only to the provisions set forth in
Section 3, Paragraphs A and B, of this Agreement and the City
Charter.
Employment Agreement § 2(A). The City Charter provides that “[t]he City Manager shall hold
office at the pleasure of the Council.” Neosho City Charter § 3.02. Section 3 of the
Employment Agreement merely provides severance pay terms in the event Blase was terminated
by Neosho.
As an at-will employee in Missouri, Blase could have been discharged by Neosho “for
cause or without cause.” Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. 1985) (en banc). Indeed,

3

Blase could even have been discharged “for no reason or for an arbitrary or irrational reason.”
Shawcross v. Pyro Products, Inc., 916 S.W.2d 342, 343 (Mo. App. [E.D.] 1995) (quotations
omitted). Given this status under Missouri law, a substantial question arises as to whether Blase
had a property interest under Missouri law in his employment with Neosho and, to the extent that
he did, whether federal constitutional law would conclude that the property interest rises to the
level of a protected property interest. Indeed, in broad terms, it is well settled that “that an
at-will employee has no property interest to support a claim for violation of due process when
discharged.” Daniels v. Board of Curators of Lincoln University, 51 S.W.3d 1, 7 (Mo. App.
[W.D.] 2001).
Blase argues, however, that his due process claim falls within an exception to the general
rule based on his Employment Agreement with Neosho. Specifically, Blase argues that his due
process rights were violated when: (1) he was not paid severance pay following his termination,
and (2) the procedures employed by Neosho in conducting his termination hearing were
inadequate. The Court rejects both arguments.
With regard to Blase’s assertion that Neosho has violated his due process rights by
breaching the Employment Agreement (by the non-payment of severance), Blase does not state a
constitutionally protected property interest, but rather a garden variety breach of contract claim.
As the Eighth Circuit has noted, “[i]t is well established that “a simple breach of contract does
not rise to the level of a constitutional deprivation.” Dover Elevator Co. v. Arkansas State
University, 64 F.3d 442, 446 (8th Cir. 1995) (“the assertion that any time one has an enforceable
contract to which the State is a party, there is constitutionally protected property interest under
that contract . . . is inconsistent with the concept of the Fourteenth Amendment [citation

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omitted].”). Indeed, as summarized by another court:
[These] courts have observed that if every breach of contract by
someone acting under color of state law constituted a deprivation
of property for procedural due process purposes, the federal courts
would be called upon to pass judgment on the procedural fairness
of the processing of a myriad of contractual claims against public
entities. We agree that such wholesale federalization of state public
contract law seems far afield from the great purposes of the due
process clause.
Unger v. Nat'l Residents Matching Program, 928 F.2d 1392, 1398 (3d Cir. 1991) (citation
omitted).
Furthermore, as to the conduct of the termination hearing, Blase complains that he was
not afforded the names of witnesses to be called and the documents to introduced at his
termination hearing prior to the hearing. However, Blase has produced no evidence establishing
that he was entitled to such pre-hearing discovery, including no evidence that such discovery
was an implied contractual term “arising out of customs, practices and de facto policies.”
Winegar v. Des Moines Independent Community School District, 20 F.3d 895, 899 (8th Cir.
1994). As such, the Court finds that Blase had no constitutionally protected property interest in
the precise manner that Neosho conducted his termination hearing.
Inasmuch as the Court concludes that Blase has failed to identify and establish any
constitutionally protected property interest. Blase’s claim under 42 U.S.C. § 1983 for a violation
of his due process rights necessarily fails.
In his second cause of action, Blase asserts that his termination was “wrongful” under
Missouri law in that it was in violation of public policy. Although Blase purports to assert this
claim against Neosho and the City Council and City Attorney, the latter individuals are not
proper party-defendants in a wrongful termination action. A wrongful discharge claim, if
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cognizable at all, is only appropriate against a plaintiff’s employer. The City Council members
were essentially Blase’s supervisors, not his employer; while the City Attorney was essentially a
co-employee. Compare Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 230 Ill. Dec.
596, 694 N.E.2d 565 (1998); Reno v. Baird, 18 Cal. 4th 640, 76 Cal. Rptr. 2d 499, 957 P.2d 1333
(1998) (supervisors are not subject to individual liability for wrongful discharge in violation of
public policy). Moreover, even if the individual defendants could be deemed to be Blase’s
employer, they would be entitled to official immunity protecting them from liability. Gavan v.
Madison Memorial Hospital, 700 S.W.2d 124, 128 (Mo. App. 1985) (recognizing that a public
officer’s decisions regarding “discharging or firing” employees are discretionary functions
subject to official immunity). If not official immunity, then the Court concludes that the
individual defendants are entitled to qualified immunity.
It is well understood that “the doctrine of qualified immunity protects government
officials . . . from individual liability . . . unless their conduct violated ‘clearly established . . .
constitutional rights of which a reasonable person would have known.’” Baribeau v. City of
Minneapolis, 596 F.3d 465, 473 (8th Cir. 2010) (quoting, in part, Pearson v. Callahan, 555 U.S.
223 , 230, 129 S.Ct. 808, 815 (2009)). When a defendant properly raises a qualified immunity
defense, a plaintiff must show that: (1) the facts demonstrate the deprivation of a constitutional
right; and (2) the right was clearly established at the time of the deprivation. Howard v. Kansas
City Police Department, 570 F.3d 984, 988 (8th Cir. 2009). With regard to these two
requirements, the Supreme Court has articulated that:
If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries
concerning qualified immunity. On the other hand, if a violation
could be made out on a favorable view of the parties’ submissions,
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the next, sequential step2 is to ask whether the right was clearly
established.
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001). Simply put, Blase has not
asserted any facts to establish a violation of a constitutional right with respect to his termination.
As such, qualified immunity bars his claims against the City Council members and the City
Attorney.
With regard to a wrongful termination claim in violation of public policy3 against Neosho
itself, the claim is barred by sovereign immunity as delineated under Missouri law, MO. REV.
STAT. § 537.600. That statute codifies that state instrumentalities are immune from suit except
for:

2

Earlier this year, the Supreme Court explained that the Saucier test is not rigid in

its sequencing:
[W]hile the sequence set forth [in Saucier] is often appropriate, it
should no longer be regarded as mandatory. [Federal courts]
should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular
case at hand.
Perason, 555 U.S. at 236, 129 S.Ct. at 818. In the present motion, however, the second prong of
Saucier (whether the alleged constitutional violations were clearly established) is not being
argued.
3

It is well settled that “the government cannot condition public employment on a
basis that infringes upon its employees’ constitutionally-protected interests in freedom of
expression.” Dooley v. St. Louis County, 187 S.W.3d 882, 885 (Mo. App. [E.D.] 2006) To that
end, an aggrieved public employee may assert a claim of wrongful discharge by establishing that
his speech was protected by the First Amendment and that the speech was a substantial or
motivating factor in his demotion or termination. Campbell v. Arkansas Dept. of Correction,
155 F.3d 950, 958 (8th Cir. 1998). Presumably, this is the basis of Blase’s wrongful termination
claim, although the Petition is devoid of any facts establishing any protected speech.
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(1)

Injuries directly resulting from the negligent acts or
omissions by public employees arising out of the
operation of motor vehicles or motorized vehicles
within the course of their employment.

(2)

Injuries caused by the condition of a public entity's
property if the plaintiff establishes that the property
was in dangerous condition at the time of the injury.

(3)

Cases where a political subdivision has purchased
liability insurance.

MO. REV. STAT. § 537.600 (1)-(3). Missouri courts have clearly stated that state sovereign
immunity shields a state instrumentality from claims for wrongful discharge. See, e.g., State ex
rel. Public Housing Agency v. Krohn, 98 S.W.3d 911, 914 (Mo. Ct. App. 2003); Krasney v.
Curators of University of Missouri, 765 S.W.2d 646, 650 (Mo. Ct. App. 1985). In the absence of
any of these exceptions, sovereign immunity protects Neosho from Blase’s claim for wrongful
termination.4
In his third cause of action, Blase contends that the members of the City Council and the
City Attorney negligently interfered with his employment relationship with Neosho. Under
Missouri law, a showing of tortious interference with a contract requires:
(1)

a contract or valid business expectancy,

(2)

the defendant’s knowledge of the contract or
relationship,

(3)

a breach induced or caused by defendant’s
intentional interference,

4

Blase argues that sovereign immunity may be inapplicable because it appears that
Neosho might have purchased liability insurance. While Neosho has purchased some liability
insurance, it has established that it has no liability coverage to cover the allegations being
asserted by Blase herein.
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(4)

an absence of justification, and

(5)

damages to the plaintiff.

Rhodes Engineering v. Public Water Supply District No. 1 of Holt County, 128 S.W.3d 550, 555
(Mo. App. [W.D.] 2004). In this case, Blase’s claim fails because he cannot establish an
absence of justification. Under Missouri law:
A plaintiff has the burden of producing substantial evidence to
establish absence of justification. An absence of justification is the
absence of any legal right on the part of the defendant to take the
action about which a plaintiff complains.
Chandler v. Allen, 108 S.W.3d 756, 760 (Mo. App. [W.D.] 2003).
On January 25, 2010, the City Council adopted a preliminary resolution to initiate the
process of terminating Blase as City Manager. As set forth in that resolution, the City Council
enumerated three reasons for instigating Blase’s removal:
(1)

Blase committed malfeasance by paying general city obligations
and payroll with funds that were contractually obligated to be used
for the construction of an aircraft hangar;

(2)

Blase failed to adequately communicate with the City Council in
violation of the City Charter, and

(3)

Blase failed to notify the City Council that available revenues
would be insufficient to meet the amount budgeted by Neosho.5

Under Missouri law, when a defendant in a tortious interference case “has a legitimate interest,
economic or otherwise, in the contract . . . sought to be protected, then the plaintiff must show
that the defendant employed improper means in seeking to further only his own interests.”
Nazeri v. Missouri Valley College, 860 S.W.2d 303, 317 (Mo. 1993) (en banc). Specifically:

5

On December 13, 2010, Blase was found guilty of a Class A misdemeanor
violating MO. REV. STAT. § 576.040 [official misconduct by a public servant].
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In the context of this tort, improper means are those that are
independently wrongful, such as threats, violence, trespass,
defamation, misrepresentation of fact, restraint of trade, or any
other wrongful act recognized by statute or the common law.
Id. At no point in the pleadings filed with this Court has Blase submitted any evidence (or
argument) to suggest that charges asserted against him by the City Council were the product or
the result of “improper means.” Consequently, Blase has failed to show that the actions of the
defendants were undertaken without justification.
Blase’s final alleged cause of action in his original petition is an assertion that he is
entitled to judicial review pursuant to MO. REV. STAT. §536.150. That statute, part of Missouri’s
Administrative Procedure Act, provides:
When any administrative officer or body existing under the
constitution or by statute or by municipal charter or ordinance shall
have rendered a decision which is not subject to administrative
review, determining the legal rights, duties or privileges of any
person, . . . and there is no other provision for judicial inquiry into
or review of such decision, such decision may be reviewed by suit
for injunction, certiorari, mandamus, prohibition or other
appropriate action . . . .
MO. REV. STAT. §536.150(1). An important exception, however, exists with regard to the
application of this provision:
Section 536.150 . . . has been held not to be applicable to provide
judicial review to a common law employee at will who is not
otherwise protected by statute, ordinance, regulation or
employment contract.
Barnes v. City of Lawson, 820 S.W.2d 598, 601 (Mo. App. [W.D.] 1991) (citing Karzin v.
Collett, 562 S.W.2d 397, 400 (Mo. App. [E.D.] 1978). See also Mosley v. Members of Civil
Service Bd. for City of Berkeley, 23 S.W.3d 855, 859 (Mo. App. [E.D.] 2000) (“Because at-will
employees may lawfully be fired for any reason or for no reason at all, § 536.150 does not
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authorize judicial review of the termination of at-will employment.”). Inasmuch as Blase was an
at-will employee, he is not entitled to seek judicial review pursuant to the provisions of MO.
REV. STAT. §536.150(1).
One final matter must be addressed. On September 9, 2011, Blase filed a motion with the
Court seeking leave to file an amended complaint [Doc. 31]. The request was filed after the
deadline for amending pleadings set out in the scheduling order, after the close of discovery, and
after the defendants had filed their motion for summary judgment. The proposed amended
complaint raises the same four causes of action addressed herein and adds a fifth cause of action
for an alleged breach of the Employment Agreement. Specifically, Blase asserts that Neosho
breached the Employment Agreement by not providing Blase with severance pay and health
benefits. Blase contends that such benefits were due to him following his termination based on
the terms of the Employment Agreement. Although, Neosho has not responded to the alleged
cause of action, it seems likely that it will argue that Blase’s termination was “for cause” and,
thus, benefits are not owed to Blase.
The Federal Rules of Civil Procedure provide that amendments to the pleadings are to be
liberally permitted:
A party. . . may amend his pleading only by leave of Court or by
written consent of the adverse party; and leave shall be freely
granted when justice so requires.
FED. R. CIV. P. 15(a) (emphasis added). The courts that have analyzed the “justice” language in
Rule 15 have concluded that:
Under this policy, only limited circumstances justify a district
court’s refusal to amend the pleadings: undue delay, bad faith on
the part of the moving party, futility of the amendment or unfair
prejudice to the opposing party.
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Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir. 1987) (reversing a district court for
denying leave to amend). The decision to permit a party to amend its pleadings is left to the
discretion of the district court. Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d
1078, 1081 (8th Cir. 1993).
In opposing the leave to amend, the defendants argue undue delay and posit one
argument with regard to prejudice, to wit: permitting the “amendment to the pleadings at this
stage of the process would require reopening the discovery period thereby allowing defendants
additional opportunity to depose plaintiff.” The defendants do not argue that Blase has sought
leave to amend in bad faith nor do the defendants argue that the amendment would be futile.
Balancing the interests of the parties, the Court – with great hesitance – concludes that justice is
better served by permitting Blase to file his proposed FIRST AMENDED COMPLAINT.
In reaching this conclusion, the Court has given considerable emphasis to the fact that the
original petition made it clear that Blase was contending that he was owed severance pay and
health benefits under the terms of the Employment Agreement. PETITION ¶ 14. Moreover, it
appears likely that if Blase is not permitted leave to amend, his ability to ever pursue a breach of
contract claim for the Employment Agreement would be foreclosed due to res judicata and/or
collateral estoppel. Why Blase did not include a breach of contract claim in the original petition
is an unanswered question. Finally, the Court has also given careful consideration to the
defendants’ claim of prejudice. While additional discovery may be required, it would appear to
be extremely limited in scope.
Moreover, in reaching its decision in this case, the Court was greatly influenced by the
Eighth Circuit’s opinion in Carter v. United States, 123 Fed. Appx. 253 (8th Cir. 2005). In
Carter, an injured pedestrian sued the United States under the FTCA after she fell on a sidewalk
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in front of a Post Office. Following the expiration of the deadline for seeking an amendment to
the pleadings under the applicable scheduling order and the completion of discovery, the United
States moved to dismiss the pedestrian’s case because her complaint did not state a legal claim
under Missouri law. In response, the pedestrian argued that her complaint was sufficient and, in
the alternative, sought leave to file an amended complaint adding an entirely new cause of action
against the United States. The district court granted the motion to dismiss and denied the motion
to amend, noting that the motion was untimely and the defendant would be prejudiced by the
amendment (since the case would otherwise be dismissed).
On appeal, the Eighth Circuit affirmed the district court’s ruling on the United States’
motion to dismiss finding that “the complaint fail[ed] to state a viable cause of action.” Id. at
258. However, the Eighth Circuit reversed the district court’s ruling on the request to file an
amended complaint.
The district court, relying on [Hammer v. City of Osage Beach,
318 F.3d 832 (8th Cir. 2003)], first denied [the pedestrian’s] motion
on the grounds of undue prejudice. Hammer, however, involved
the denial of a request to file a second amended complaint. We
have held “parties should usually be given at least one chance to
amend their complaint.” Because we prefer to have claims decided
on the merits rather than on the pleadings, we conclude the district
court erred in denying [the pedestrian] at least one opportunity to
amend her complaint. We also note, the factual underpinnings for
the claims asserted in the amended complaint are identical to those
in the original complaint. Thus, we divine no undue prejudice to
the [United States] in allowing [the pedestrian] to amend her
complaint.
Id. at 259 (quoting, in part, Wisdom v. First Midwest Bank of Poplar Bluff, 167 F.3d 402, 409
(8th Cir.1999)).
As in Carter, this case involves a First Amended Complaint. Moreover, again as in
Carter, “the factual underpinnings for the claims asserted in the amended complaint are identical
13

to those in the original complaint.” In recognition of the Eighth Circuit’s stated preference that
claims be decided on the merits rather than pleadings, under the unique facts before the Court,
the plaintiff is hereby afforded three (3) days from the date of this Order to file his First
Amended Complaint with the Court. The rulings herein on the counts set forth in the original
petition will apply equally to the same counts asserted in the First Amended Complaint. The
Court will hold a telephone conference with counsel for the parties on Friday, October 21, 2011,
at 10:00 a.m. to discuss whether the City of Neosho6 wishes to proceed to trial as scheduled or to
continue the trial to permit a brief period of discovery and, possibly, another dispositive motion.
Accordingly, it is
ORDERED that defendant’s MOTION FOR SUMMARY JUDGMENT, filed July 18, 2011
[Doc 22] is GRANTED. It is further
ORDERED that plaintiff’s MOTION FOR LEAVE TO AMEND PLAINTIFF’S COMPLAINT,
filed September 6, 2011 [Doc. 31] is GRANTED. Plaintiff shall have 3 days from the date of
this Order to electronically file his FIRST AMENDED COMPLAINT. It is further
ORDERED that counsel for the parties shall participate in a telephone conference with
the Court at 10:00 a.m., Friday, October 21, 2011 to discuss the current posture of this case and

Although the fifth cause of action in the proposed First Amendment Complaint is
directed toward all defendants, The City of Neosho – as the only other party to the Employment
Agreement – is the only proper party-defendant in a claim for breach of the Employment
Agreement.
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the feasibility of the current trial date. On that date, counsel are directed to call 877.336.1274
and provide the access code 3496777 in order to participate in the telephone conference call.

/s/ John T. Maughmer

JOHN T. MAUGHMER
U. S. MAGISTRATE JUDGE

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