Claflin v. Shaw et al

Filing 74

ORDER granting in part and denying in part 71 motion for summary judgment. Signed on 3/20/14 by District Judge Ortrie D. Smith. (Wolfe, Steve)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
KATHARINE CLAFLIN,
Plaintiff,
vs.
LARRY MITCHELL SHAW and
BARTON COUNTY, MISSOURI,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 13-5023-CV-SW-ODS

ORDER AND OPINION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending is Defendant Larry Mitchell Shaw’s Motion for Summary Judgment.1
The motion (Doc. # 71) is granted in part and denied in part.

I. BACKGROUND

This is Defendants’ Motion for Summary Judgment. Accordingly, the facts will be
construed in Plaintiff’s favor and factual disputes will be resolved in Plaintiff’s favor. In
his Reply Brief Defendant criticizes Plaintiff for “ignor[ing] the avalanche of facts”
against her and relying “on a few lines in Defendant’s deposition.” Defendant’s Reply
Suggestions at 3-4. However, Defendant’s criticism does not alter the requirement that
factual disputes be resolved in Plaintiff’s favor. The Court cannot and will not weigh the
facts: that is the jury’s job.
Plaintiff was an employee of Barton County, Missouri and worked as a dispatcher
for the Barton County Sherriff’s office. Defendant’s SOF 1, 3. Defendant Larry Shaw
was the Barton County Sheriff and he faced an opponent (Jeremy Brand) in the 2012
primary. Defendant’s SOF 6. Brand had formerly been a deputy with the Barton
County Sheriff’s office; Defendant previously terminated him. Defendant’s Dep. at 71.
1

The other Defendant, Barton County, Missouri, was dismissed at Plaintiff’s
request on November 20, 2013.

Defendant knew Plaintiff (and another employee, Deputy Ashworth) were supporting
Brand in the election. Plaintiff told at least two people in the office that she was
supporting Brand. Plaintiff’s Dep. at 42-43; Luce Dep. at 19-20; Heiskell Dep. at 24-26,
44-45. Several people had also told Defendant of Plaintiff’s support for Brand.
Defendant was concerned this evidenced a lack of loyalty from Plaintiff and Deputy
Ashworth. Defendant’s Dep. at 68-73. This lack of loyalty was one of the reasons he
decided to fire them; in fact, Defendant described this as the “primary” reason for
terminating the pair, and he terminated them on November 7, 2012. Defendant’s Dep.
at 68-73, 101, 165-67.
Plaintiff’s opposition to Defendant did not interfere with her ability to do her job.
Luce Dep. at 20-21. Defendant presents testimony from people who describe Plaintiff
as “disruptive,” but all of that testimony relates to conduct other than her support of
Brand. The Record suggests Plaintiff generally disapproved of Defendant’s decisions
and policies and she criticized him, but this “disruption” was not connected to Plaintiff’s
support of Brand. E.g., Heiskell Dep. at 24, 46-47; Luce Dep. at 9-11. In fact, it
appears to have been a regular, if not daily, occurrence. Luce Dep. at 37-40.
Nonetheless, Chief Deputy Luce did not discipline her or recommend that Defendant
discipline her. Luce Dep. at 8-12.
In September 2012, the Missouri Highway Patrol (“MHP”) was engaged in an
investigation of the Barton County Sheriff’s Office. On October 11, 2012, Plaintiff was
interviewed by Casey Jadwin (whose title is never disclosed) and Trooper Donald
Jones. Trooper Jones’ report and Jadwin’s deposition confirm the initial interview in
October took place in a parking lot; according to Trooper Jones’ report, it was a
McDonalds’ parking lot. Trooper Jones came to the Sheriff’s Office in November and
obtained some records; he also talked to Defendant but according to Trooper Jones’
report, Defendant told Trooper Jones to refer all questions to his attorney. Defendant
knew about the investigation, and knew the MHP would be interviewing people in his
office, Defendant’s Dep. at 59-60, but there is no evidence Defendant knew who was
interviewed or what they reported. Plaintiff disputes this fact, but identifies nothing in
the Record that demonstrates Defendant knew that she talked to the MHP, much less
what she said. Plaintiff only points to the fact that she was terminated the day after the
2

MHP investigators came to the office in November 2012 to obtain records, but this fact
does not establish Defendant’s knowledge. Plaintiff admits Defendant did not
discourage her (or anyone) from talking to the investigating officers. The Record also
establishes that others in the Sheriff’s Office talked to the investigators but were not
terminated.
Defendant has posited that Plaintiff violated various office rules and policies.
However, construing the Record in Plaintiff’s favor demonstrates other employees also
violated those rules and policies but were not terminated. E.g., Heiskell Dep. at 8, 1013 (describing common usage of computers to check Facebook and use of personal
cellphones). Moreover, there is even a factual dispute as to whether there was a policy
forbidding this activity. E.g., id. at 14 (Heiskell’s testimony that Defendant never said “I
don’t want you to use your Facebook. He just said, Be mindful, be careful. Don’t let it
interfere with anything.”).
Defendant has also emphasized certain specified instances of misconduct, but
construing the facts in Plaintiff’s favor puts them in a different light than the one cast by
Defendant. In September 2012 Plaintiff attended a party during which a false report
was called in to the Lamar Police Department. However, Plaintiff had nothing to do with
the false report. Plaintiff’s Dep. at 62-63. In addition, the person who actually made the
call is still a part-time dispatcher with the Barton County Sheriff’s Department,
Defendant’s Dep. at 80-81, which undercuts Defendant’s claim regarding the
seriousness of this event even if Plaintiff knew about it or was involved.
Another incident Defendant emphasizes occurred in October 2012, when the
Sheriff’s Office was investigating a murder/suicide/felony assault. The crime was
covered extensively on the news, and on that day Plaintiff received a call from a
member of the public asking about the crime. She returned the phone call and
confirmed that the news reports were true but provided no confidential information about
the investigation. Plaintiff’s Dep. at 22-25.

3

II. DISCUSSION

A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” See generally Williams v. City of St. Louis,
783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the
substantive law, it is the substantive law's identification of which facts are critical and
which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.@
Wierman v. Casey=s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted).
In applying this standard, the Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all inferences that may be
reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984),
cert. denied, 470 U.S. 1057 (1985). However, a party opposing a motion for summary
judgment “may not rest upon the mere allegations or denials of the . . . pleadings, but
. . . by affidavits or as otherwise provided in [Rule 56], must set forth specific facts
showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
The Amended Complaint sets forth three counts: Count I alleges Plaintiff was
terminated in violation of her First Amendment rights to (a) support and speak in favor of
a political candidate and (b) talk to the MHP about matters of public concern. Count I is
asserted against Sheriff Shaw in his personal and official capacities. Counts II and III
assert state-law claims, and both are based on Plaintiff’s claim that she was terminated
for providing information to the MHP. However, Plaintiff states she does not intend to
proceed on these claims, so judgment can be entered in Defendant’s favor on Counts II
and III without further discussion.
Defendant essentially argues (1) the Record establishes he did not terminate
Plaintiff for engaging in First Amendment activity, (2) even if he did, the termination was

4

justified based on the Pickering balancing test,2 and (3) if he is nonetheless liable on
these uncontroverted facts, he is protected by qualified immunity. Both of Defendant’s
arguments rest on the proposition that the facts are uncontroverted – a proposition the
Court does not agree with. Nonetheless, because Defendant has asserted his
entitlement to qualified immunity with respect to Plaintiff’s political activity, the Court is
required to first determine whether the facts – construed in Plaintiff’s favor – support a
finding that a constitutional right was violated. If so, the Court must then determine
whether that right was clearly established. E.g., Hinshaw v. Smith, 436 F.3d 997, 1004
(8th Cir. 2006). The Court must conduct this inquiry in a manner that allows for
meaningful review by rendering an opinion that is similar to that required by Rule
52(a)(2). Robbins v. Becker, 715 F.3d 691, 964 (8th Cir. 2013).

A.

To establish a prima facie case of retaliatory termination, the Record construed in
Plaintiff’s favor must establish (1) her speech or activity was protected by the First
Amendment, (2) she was terminated, and (3) the protected activity was a substantial
motivating factor in the decision to take the adverse employment action. Rynders v.
Williams, 650 F.3d 1188, 1194 (8th Cir. 2011). Plaintiff has satisfied these requirements
with respect to her support of Brand. First, her statements of support for a political
candidate are unquestionably protected by the First Amendment. E.g., Sorrell v. IMS
Health Inc., 131 S. Ct. 2653, 2673-74 (2011); Rutan v. Republican Party of Ill., 497 U.S.
62, 69 (1990). Even her “quiet support” (as Defendant describes it) is entitled to
protection. Second, there is no question that Plaintiff was terminated. Finally, there is a
factual dispute as to why Plaintiff was terminated; more importantly, a jury might find
Plaintiff was terminated because she supported Defendant’s opponent. If nothing else,
Defendant’s own testimony that this was the primary reason he terminated her would
provide a sufficient basis for a jury reaching this conclusion. In addition, there is
evidence in the Record that might cause a jury to disbelieve Defendant’s proffered
2

A reference to the balancing test enunciated in Pickering v. Board of Educ., 391
U.S. 563 (1968).
5

reasons, particularly if the jury finds (as would be permitted by the Record) that (1) other
people engaged in the same (or worse) conduct but were not terminated, (2) the Chief
Deputy did not discipline, or recommend discipline for, Plaintiff, (3) the reasons
proffered justified a much earlier and more contemporaneous termination, and (4)
Defendant’s accusations of serious misconduct were not true. The combination of a
basis for disbelieving Defendant’s now-proffered justifications with Defendant’s
admission that Plaintiff’s support of Brand was the primary reason he terminated her
could cause a jury to believe Defendant acted based on Plaintiff’s support for Brand.
The next issue is application of the Pickering balancing test.3 The test
weigh[s] the employee’s right to engage in the particular speech at issue
with such considerations as “whether the statement impairs discipline by
superiors or harmony among co-workers, has a detrimental impact on
close working relationships for which personal loyalty and confidence are
necessary, or impedes the performance of the speaker’s duties or
interferes with the regular operation of the enterprise.”
Hinshaw, 436 F.3d at 1005 (quoting Rankin v. McPherson, 483 U.S. 378, 3888 (1987)).
This is a legal inquiry, but “fact disputes concerning any of the factors are appropriately
submitted to a jury.” Id. at 1004.
There are factual disputes concerning the Pickering factors. Defendant contends
the Record establishes Plaintiff was not shy in sharing her opinions or her criticism of
Defendant, and he characterizes this as “disruption.” However, Plaintiff was critical of
Defendant (in Defendant’s words, “disruptive”) long before she said anything about
3

The parties assume the test must be applied, but interestingly Defendant’s
position might lead to the conclusion that it does not. Defendant strives mightily to
argue that Plaintiff never engaged in speech. Plaintiff’s Suggestions at 19-20. If this
was the case, and if the jury believes Defendant fired Plaintiff merely because she
silently supported Brand, then the Pickering test is not necessary. Cf. Hinshaw, 436
F.3d at 1005-06 (dicta discussing Branti v. Finkel, 445 U.S. 507 (1980) and Elrond v.
Burns, 427 U.S. 347 (1976)). True, Plaintiff was not fired because she supported a
political party other than the one Defendant belonged to (a true patronage situation) –
but the principle is the same. Cf. Barnes v. Bosley, 745 F.2d 501, 506 n.2 (8th Cir.
1984), cert. denied, 471 U.S. 1017 (1985). A public employee cannot be fired merely
for their political affiliation “unless the hiring authority can demonstrate that party
affiliation is an appropriate and reasonable requirement for the effective performance of
the public office.” Hinshaw, 436 F.3d at 1005. However, the Record so clearly
establishes that Plaintiff was not merely a silent supporter of Brand’s that the Court
believes the Pickering test applies.
6

Brand. There is evidence from which the jury could believe the “level of disruption” was
unchanged – meaning disruption in the office occasioned by Plaintiff’s support of Brand
was not any different from the “ordinary” disruption Plaintiff caused. The question is not
whether Plaintiff was disruptive: there is evidence that she was. The question is
whether her support of Brand augmented the disruption to the point that it was worse
than before, and on this point there is a factual dispute that requires a jury’s resolution.
Defendant seems to acknowledge this distinction in his Reply Suggestions, where he
argues these communications caused the disruption. Reply Suggestions at 4.
However, contrary to Defendant’s argument the Record is not conclusive on this point.
Moreover, there is evidence that Plaintiff’s support of Brand had no effect on her job
performance or the office’s ability to function. As noted earlier, Chief Deputy Luce did
not discipline her or suggest to Defendant that she be disciplined. And this assumes
one credits Defendant’s version of the facts: as noted there is evidence in the Record to
suggest Plaintiff’s support of Brand was not particularly disruptive to the workplace.

B.

The Court reaches a different conclusion regarding that aspect of Count I
predicated on Plaintiff’s statements to the MHP. The Court will accept for purposes of
discussion that this speech was protected by the First Amendment, and there is no
question that she was terminated. However, the uncontroverted facts provide no basis
for a jury to find these statements were a substantial motivating factor in Defendant’s
decision to terminate her. There is no evidence in the Record establishing Defendant
knew of these statements, and without such knowledge there is no basis for a jury to
find these statements were a factor in his decision. Plaintiff attempts to establish the
necessary link only by pointing to the fact that Trooper Jones’ November visit occurred
one day before she was terminated. This temporal proximity does not establish that
Defendant knew Plaintiff talked to the MHP or what she related. Plaintiff’s concession
that Defendant knew of the investigation and that others who talked to the MHP were
not terminated undercuts the value of this temporal proximity – and there is no other
evidence to establish a relationship between her reports and her termination. There are
7

no facts from which a jury could conclude one had anything to do with the other, and
Defendant is entitled to summary judgment on this aspect of Count I.

C.

In Part II.A, the Court concluded the Record contains facts that might cause a
jury to find Plaintiff’s rights were violated because she was fired for supporting
Defendant’s political opponent. The Court now considers Defendant’s claim of qualified
immunity. Qualified immunity protects state actors from liability for actions that do not
violate clearly established rights that would have been known to a reasonable person in
that situation. Defendant bears the burden of demonstrating the law was not clearly
established. E.g., Schockency v. Ramsey County, 493 F.3d 941, 947-48 (8th Cir. 2007),
cert denied, 552 U.S. 1143 (2008).
Defendant argues clearly established law does not establish an employee has
First Amendment protection in the absence of actual speech. Plaintiff’s Suggestions at
24. First of all, this is incorrect. See footnote 1, supra; see also Rutan, 497 U.S. at 7576. As a general matter, “[i]t is well established that a government employer cannot
take adverse employment actions against its employees for exercising their First
Amendment rights,” Shockency, 493 F.3d at 948 (emphasis added) – not just those
First Amendment rights that involve speech. Second – and more importantly –
Defendant presents an unfair characterization of the Record: there is abundant
evidence demonstrating Plaintiff talked about her support of Brand. In fact, Defendant
cites this very evidence to support his arguments under Pickering. Regardless,
construing the Record in the light most favorable to Plaintiff demonstrates the factual
predicate for Defendant’s qualified immunity argument is absent. A jury could find
Defendant knew of Plaintiff’s support for his opponent, that Plaintiff made statements in
support of his opponent, and that he fired her for this support (disloyalty) and for making
these supporting statements. As Shcokeny makes clear, a governmental employee’s
right to engage in First Amendment activity without reprisal is well-established.

8

D.

Defendant seeks dismissal of the claims against him in his official capacity. The
suit against Defendant in his official capacity is treated as a suit against Barton County.
E.g., Rynders, 650 F.3d at 1195. Plaintiff originally named Barton County as a
defendant, but dismissed it. Having already dismissed Barton County, Plaintiff cannot
continue her claim against Barton County.

E.

Defendant seeks summary judgment on Plaintiff’s claim for punitive damages
sought against him in his official capacity. The request is granted for two reasons.
First, summary judgment is being granted on Plaintiff’s official-capacity claim. Second,
even if summary judgment were not being granted the claim for punitive damages would
be disallowed. Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

III. CONCLUSION

For these reasons, summary judgment is granted with respect to (1) Counts II
and III and (2) the aspect of Count I predicated on Plaintiff’s statements to the Missouri
Highway Patrol. Plaintiff’s claims against Defendant Larry Shaw in his official capacity
are really claims against Barton County, and Barton County has previously been
dismissed. Summary judgment is denied with respect to that aspect of Count I
predicated on Plaintiff’s support and statements in favor of Defendant’s political
opponent.

IT IS SO ORDERED.

DATE: March 20, 2014

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

9