Merrell v. Douglas County, Nebraska et al
Filing
78
MEMORANDUM AND ORDER - The Defendant's 65 MOTION for Summary Judgment is granted. The Plaintiff's Second Amended Complaint 63 is dismissed with prejudice. A separate judgment will be entered.Ordered by Chief Judge Laurie Smith Camp. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY L. MERRELL,
CASE NO. 8:11CV74
Plaintiff,
vs.
DOUGLAS COUNTY, NEBRASKA,
JEFFREY NEWTON, BARBARA
GLAZER, WAYNE LOVETT, JOHN
SKANES, MICHAEL MYERS, and
MARK FOXALL,
MEMORANDUM
AND ORDER
Defendants.
This matter is before the Court on the Defendants’ Motion for Summary
Judgment (Filing No. 65). The parties have submitted briefs (Filing Nos. 66, 72, 73, 77)
and indexes of evidence (Filing Nos. 67, 68, 71) in support of their respective positions.
For the reasons stated below, the Defendants’ Motion will be granted.
BACKGROUND
Unless otherwise noted, the following facts are those that are stated in the
parties’ briefs and supported by pinpoint citations to admissible evidence1 in the record,
that the parties have admitted, and that the parties have not properly resisted as
required by NECivR 56.1 and Fed. R. Civ. P. 56.
Defendant Douglas County, Nebraska (“Douglas County”), is a political
subdivision of the State of Nebraska. Plaintiff Jeffrey L. Merrell (“Merrell”) was formerly
employed by Douglas County as a corrections sergeant for the Douglas County
Corrections Center (“DCCC”), which is operated by the Douglas County Department of
1
The Court notes Merrell objects to certain evidence offered by the Defendants on hearsay
grounds. The Court will only consider that evidence for its non-hearsay purposes. Merrell also objects to
certain evidence offered by the Defendants on relevance grounds. The Court will only consider the
parties’ evidence to the extent that it is relevant to Merrell’s claims or the Defendants’ defenses.
Corrections (“DCDC”). He was also a member of the Fraternal Order of Police Lodge
No. 8 (“FOPL”).
At all times relevant to this action, Defendant Barbara Glaser
(“Glaser”)2 was the corrections programs administrator for the DCDC and supervised
inmate recreation and education, and the inmate law library. 3
Defendant Jeffery
Newton (“Newton”)4 served as the DCDC’s director from December 4, 2006, to July 15,
2011, and was responsible for the DCDC’s operations, for establishing its policies and
procedures, and for making disciplinary and employment decisions.
At all times
relevant to this action, Defendant Mark Foxall (“Foxall”) was the deputy director of the
DCDC.
He assisted Newton with certain personnel matters, such as disciplinary
actions. Defendant John Skanes (“Skanes”) is the work release administrator for the
DCDC. Defendant Wayne Lovett (“Lovett”) is the admissions manager for the DCDC.
Defendant Michael Myers (“Myers”) is the community corrections manager for the
DCDC.
The FOPL entered into an agreement with Douglas County, effective July 1,
2006, that incorporated Douglas County’s civil service regulations and the DCDC’s
standard operating procedures, and expressly reserved to the DCDC management the
authority to establish work rules, regulations, and other terms and conditions of
employment for covered employees. Merrell was expected, as a DCDC employee, to
2
Merrell’s Amended Complaint provides a different spelling for this defendant’s last name:
“Glazer.” (See Filing No. 63.) The Court will use the spelling provided by the Defendants.
3
Glaser died February 21, 2013. (Filing No. 59.) The Defendants note that “[n]o further action
has taken place regarding Ms. Glaser’s passing. To the extent Ms. Glaser is named in her official
capacity, Plaintiff asserts a claim against Defendant Douglas County and this brief, accompanying Index,
and motion for summary judgment are intended to address such claim.” (Filing No. 66 at 2 n.1.)
4
Merrell’s Second Amended Complaint provides a different spelling for this defendant’s first
name: “Jeffrey.” (See Filing No. 63.) The Court will use the spelling provided by the Defendants.
2
be familiar with and follow the DCDC’s policies and procedures, one of which required
that co-workers treat each other in a professional manner.
Douglas County has an official policy that affords employees potentially subject
to discipline a pre-disciplinary hearing. (See Filing No. 67-5 at CM/ECF pp. 62-63.)
That policy states:
a.
It is the policy of Douglas County to allow an employee the
opportunity to respond to allegations made which may justify their
being suspended, demoted, or terminated. The Pre-Disciplinary
Hearing is designed to provide an initial check against mistaken
decisions and to assist the Elected Official/Department Head or
designee in making a determination as to whether there are
reasonable grounds to believe that the allegations against the
employee are true and support the proposed actions.
The
employee is entitled to (1) written notice of the pending allegations,
(2) an explanation of the employer’s evidence, and (3) an
opportunity to present an argument/evidence as to why disciplinary
action should not occur. . . .
f.
While the mechanism surrounding a Pre-Disciplinary Hearing has
been described in some detail, it should be remembered that the
hearing itself is intended to be a somewhat informal session with
each participant having the ability to exchange information and
come to an understanding of the issues involved and their
importance. It shall be seen as an opportunity to clarify any
misunderstanding and provide a basis for future utilization of the
employee’s potential as well as a means to determine the
authenticity of the alleged misconduct.
(Id. at CM/ECF p. 62, Art. 22, § 6.) When a DCDC employee submits a complaint
against another employee, the DCDC’s office of professional review (“OPR”) reviews
the matter and then recommends a particular disposition to Newton. If the employee
challenges the OPR’s recommendation, the OPR assembles a three-person panel for
the pre-disciplinary hearing.
Panel members must be unrelated to the individuals
involved in the underlying events, and must be senior in position to the person
potentially subject to discipline.
3
Douglas County’s policy also states that “the right to appeal suspensions,
demotions, and terminations . . . is established by Nebraska statute.” (Id. at CM/ECF p.
64, Art. 23, § 1.)
Nebraska statutes provide an employee the right to appeal a
disciplinary action to the Douglas County Civil Service Commission, and state that no
disciplinary decision is final until the Douglas County Civil Service Commission issues
its ruling. See Neb. Rev. Stat. §§ 23-2510, 23-2511. The ruling of the Douglas County
Civil Service Commission may be appealed to the Douglas County District Court, and
then to Nebraska’s appellate courts. See Neb. Rev. Stat. §§ 23-2515, 25-1911.
In late 2008 and early 2009, a woman named Blythe Bowman (“Bowman”) was in
charge of the DCCC’s law library and was responsible for coordinating inmate requests
to visit the library. In early February 2009, Bowman submitted a written complaint to the
DCDC, alleging that Merrell directed comments and conduct towards her that resulted in
a negative impact on inmates’ visits to the law library. Two other female staff members
had submitted complaints similar to Bowman’s. Based on the information available to
them, Newton and Foxall believed there was merit to Bowman’s complaint and that
Merrell should be disciplined since working with co-workers was an essential part of
being a corrections officer, especially for someone in the supervisory role of corrections
sergeant.
Skanes, Lovett, and Myers were selected to serve on the panel at Merrell’s predisciplinary hearing relating to Bowman’s complaint. Skanes and Lovett do not know
why they were selected to the panel; Myers did not know a particular reason he was
selected to be on the panel other than his rank was senior to Merrell’s. Prior to the
hearing: none of the panel members talked to Newton or Foxall about Merrell’s
4
interactions with Bowman; Skanes was unaware of Bowman’s complaint against
Merrell, did not know Merrell or Bowman, and had no reason to believe that Bowman
had an ulterior motive when filing her complaint; Lovett was also unaware of Bowman’s
complaint, and although he knew Merrell, his prior associations with Merrell were
neutral; and Myers did not know Merrell or Bowman, and had no reason to believe
Bowman had an ulterior motive in filing the complaint against Merrell.
On or about February 25, 2009, Merrell received a list of evidence related to
Bowman’s complaint against him. On March 5, 2009, he received a copy of the charge
against him, listing several policies he was alleged to have violated. (Aff. of Jeffrey L.
Merrell, Filing No. 71-6 at ¶ 4; Pre-Disciplinary Hearing Notice, Filing No. 71-8.)
Merrell’s pre-disciplinary hearing occurred on March 11, 2009. Merrell attended
the hearing and was represented by two FOPL representatives. Glaser did not attend
the hearing. At the pre-disciplinary hearing, Merrell had an opportunity to review the
documents before the panel, respond to them, and to offer his own documents. He was
allowed to present whatever evidence he desired, and had the ability to call Bowman as
a witness. The panel members considered written reports as well as the evidence
Merrell presented to them. They then weighed the facts against DCDC policy and made
a recommendation to Newton, finding in favor of Merrell with respect to certain policy
provisions.
Although Merrell contends that he sufficiently addressed Bowman’s
complaint, the panel members did not believe he did, and the hearing concluded.
After Merrell left, Bowman spoke with Myers and Lovett. Someone from the OPR
told Myers that it was appropriate to have Bowman demonstrate one of the interactions
described in a written report the panel had reviewed. Meyers then asked Bowman to
5
demonstrate that interaction, and Bowman did. Meyers believed it was consistent with
Merrell’s verbal description of the interaction. The panel recommended to Newton that
Merrell be suspended for three days, and in accordance with the panel’s
recommendation, Newton imposed a three-day suspension on Merrell, which would not
disrupt any of Merrell’s benefits.
The panel members thought due process had been afforded to Merrell at the predisciplinary hearing because they believed he received notice of the pre-disciplinary
hearing, he received an explanation of the evidence against him, and he had an
opportunity to respond. After the hearing, none of them talked to Newton or Glaser
about Merrell.
Merrell contends that he did not receive an explanation of all the
evidence against him, asserting that his notice of suspension referred to evidence that
had not been presented to him before or during his pre-disciplinary hearing; that the
panel’s recommendation to Newton reflected that Merrell was accused of having
documents at the hearing that he was not supposed to have but that he did not receive
notice of this accusation prior to the hearing and was not provided an opportunity at the
hearing to respond to the accusation5; and that, “[i]n the absence of Bowman testifying
as to the context and specific things said and done,” he could not respond to the
allegations against him because they were too generalized and vague. (Filing No. 71-6
at ¶¶ 5-7.)
He also asserts DCDC’s policy impermissibly required him to disprove
Bowman’s allegations.
5
Although the panel’s recommendation indicates that the members found it concerning that
Merrell had certain documents in his possession (Filing No. 71-10 at CM/ECF p. 2), a comparison of the
official letter of suspension Merrell received (Filing No. 71-11) to the pre-disciplinary hearing notice
Merrell received (Filing No. 71-8), indicates that Merrell’s discipline was only for the charge reflected in his
pre-disciplinary hearing notice.
6
A day or two after the pre-disciplinary hearing, Bowman spoke with Glaser, and
mentioned that she had talked with the panel members. Bowman did not mention to
Glaser that Merrell and his representatives were not present at the time. This was the
only conversation Glaser had with Bowman about Bowman’s interaction with Merrell.
Merrell appealed his three-day suspension to the Douglas County Civil Service
Commission.
A hearing was held for his appeal on May 7, 2009, which Merrell
attended, represented by counsel. Merrell had a right to subpoena witnesses for the
hearing. At the hearing, he had the right to offer exhibits and to question adverse
witnesses, and was able to cross-examine Bowman. During the cross-examination of
Bowman, Bowman testified that she talked to panel members after the pre-disciplinary
hearing and outside the presence of Merrell or his representatives. This was first time
Newton heard that Bowman had talked to panel members outside the presence of
Merrell or one of his representatives. Newton had never encountered this type situation
before, and instead of proceeding further with the hearing, he withdrew the charges
against Merrell.
Newton did not discipline anyone involved with Merrell’s pre-disciplinary hearing,
including the individual from the OPR who advised Myers that it was appropriate to talk
to Bowman after the pre-disciplinary hearing and outside of Merrell’s presence. Newton
did not believe anyone’s conduct was sufficiently egregious to warrant discipline. OPR
personnel, however, were reminded that no evidence was to be presented at a predisciplinary hearing outside the presence of the subject employee and a union
representative.
7
Merrell did not return to work after March 13, 2009. Newton did not know if
Merrell would be returning to work, although he assumed Merrell would. As Merrell
came close to running out of accrued leave time, Newton reminded Merrell that his
FOPL contract gave him the option of requesting an unpaid leave of absence for a
temporary disability. Merrell, however, did not make such a request. One of Merrell’s
treating doctors reported that Merrell was unable to return to work for psychiatric
reasons that resulted from the accusations against him, how he was treated during the
pre-disciplinary hearing, and the outcome of the pre-disciplinary hearing. (Aff. of Bruce
Gutnik & Gutnik Reports, Filing Nos. 71-3, 71-4, 71-5.)
On April 14, 2009, Merrell filed with the Nebraska Equal Opportunity Commission
(“NEOC”) a charge of discrimination and retaliation on the basis of race, color, sex, age,
and disability against Douglas County. On October 27, 2009, Merrell filed with the
NEOC a second charge of discrimination and retaliation against Douglas County.
Without having served a notice of claim letter on Douglas County,6 on February
24, 2011, Merrell initiated this action. On March 11, 2013, Merrell filed his Second
Amended Complaint (Filing No. 63), asserting three claims for relief. First, he alleges
that, pursuant to § 1983, his procedural due process rights were violated due to the
circumstances surrounding his pre-disciplinary hearing.
Second, he alleges that,
pursuant to § 1983, his rights under the First Amendment were violated because he
6
In a footnote, the Defendants assert that this provides an independent ground for dismissing
Merrell’s claims to the extent they are asserted against Douglas County. (Defs.’ Br., Filing No. 66 at
CM/ECF pp. 49-50 n.7 (citing Neb. Rev. Stat. §§ 13-902, 13-919(1); Jessen v. Malhotra, 665 N.W.2d 586,
590 (Neb. 2003); Chicago Lumber Co. of Omaha v. Sch. Dist. No. 71 of Milligan, Fillmore Cnty., 417
N.W.2d 757, 764 (Neb. 1988); Campbell v. City of Lincoln, 240 N.W.2d 339 (Neb. 1976))). For the
reasons stated below, even if Merrell had served a notice of claim letter on Douglas County, Merrell has
failed to evidence sufficient to establish the claims he has asserted against any of the Defendants.
8
“was harassed, retaliated against, and terminated” for “making complaints about the
Defendants.”
(Id. at CM/ECF p. 12.)
Third, he alleges that some or all of the
Defendants engaged in a conspiracy to harass and terminate him in violation of state
law and 42 U.S.C. § 1985.
The Defendants’ filed their Motion on May 13, 2013,
requesting that the Court grant summary judgment in their favor with respect to all three
of Merrell’s claims.
STANDARD
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Serv., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the non-moving party and
mak[e] all reasonable inferences in [that party's] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir. 2011). However, “'facts must be viewed in the light
most favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)).
“If the moving party will bear the burden of persuasion at trial, that party must
support its motion with credible evidence . . . that would entitle it to a directed verdict if
not controverted at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986).
.
“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue
. . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the
9
kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.” Id. at 324 (emphasis added).
In response to the movant’s showing, the nonmoving party’s burden is to produce
“evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.
at 331. “[T]he absence of an adequate response by the nonmovant, even after the
moving party has carried its initial burden of production, will not automatically entitle the
movant to entry of summary judgment.” Lawyer v. Hartford Life & Acc. Ins. Co., 100 F.
Supp. 2d 1001, 1008 (W.D. Mo. 2000) (citing Celotex, 477 U.S. at 331). Instead, “the
moving party must show that the evidence satisfies the burden of persuasion and that
the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id.
(citing Celotex, 477 U.S. at 331).
In other words, where the Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party”–where there is no “'genuine
issue for trial'”–summary judgment is appropriate. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
With respect to Merrell’s due process claim, the Defendants contend they are
entitled to summary judgment because uncontroverted evidence in the record reflects
Merrell’s procedural due process rights were not violated, and to the extent they may
have been, the Defendants are entitled to qualified immunity. With respect to Merrell’s
First Amendment retaliation claim, the Defendants contend that they are entitled to
summary judgment because Merrell has failed to show he engaged in protected speech
10
or conduct and because he has failed to show a causal connection between any such
speech or conduct and his suspension or termination.
With respect to Merrell’s
conspiracy claim, the Defendants contend that they are entitled to summary judgment
because Merrell has failed to point to any evidence indicating that a conspiracy existed.
Merrell argues that he has pointed to evidence sufficient to create an issue of fact with
respect to each of his claims.
I. Procedural Due Process Claim & Qualified Immunity Defense
To establish his procedural due process claim, Merrell must satisfy a two-step
test: he must show (1) that the Defendants deprived him of an interest protected by the
due process clause of the United States Constitution7; and (2) that the Defendants
deprived him of that protected interest without due process of law. Smutka v. City of
Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006); see also de Llano v. Berglund, 282 F.3d
1031, 1034 (8th Cir. 2002) (citing Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897,
902 (8th Cir.2000)).
“An essential principle of due process is that a deprivation of life, liberty, or
property ‘be preceded by notice and opportunity for hearing appropriate to the nature of
the case.’” Loudermill, 470 U.S. at 542 (quoting Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950)). “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” Winegar v.
Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899-900 (8th Cir. 1994) (citing
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Thus, “[d]ue process is a flexible
7
It is “federal law, not state law or [an organization’s] policy, [that] determines what constitutes
adequate procedural due process.” de Llano, 282 F.3d at 1035 (8th Cir. 2002) (citing Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 541 (1985)). Thus, even if an organization’s internal procedures are
violated, the plaintiff is left with, at most, a state law cause of action. Id.
11
concept that varies with the particular situation.” Id. at 900 (citing Zinermon v. Burch,
494 U.S. 113, 127 (1990)).
When the situation involves the termination of “‘[a] public employee with a
protected property interest in continued employment,” the employee “receives sufficient
due process if he [or she] receives notice, an opportunity to respond to the charges
before his [or her] termination, and post-termination administrative review.’”
Floyd-
Gimon v. Univ. of Ark. for Med. Scis. ex rel. Bd. of Trs. of Univ. of Ark., 716 F.3d 1141,
1146 (8th Cir. 2013) (third and fourth alterations in original) (quoting Young v. City of St.
Charles, Mo., 244 F.3d 623, 627 (8th Cir.2001)).
The greater the post-disciplinary
process available to the employee, the less elaborate the pre-disciplinary process must
be. See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 934 (8th Cir. 2012)
(“Due process does not require elaborate pre-termination procedures, especially where
meaningful post-termination process is available.”).
For example, even in the
termination context, when post-disciplinary proceedings are available, the Eighth Circuit
has “consistently held that . . . ‘informal meetings with supervisors’ may be sufficient
pre-termination hearings.” Sutton v. Bailey, 702 F.3d 444, 447 (8th Cir. 2012) (quoting
Schleck, 939 F.2d at 641). When the situation involves a “mere suspension,” even
lesser process may comport with due process. See Winegar, 20 F.3d at 900. See also
Oswald v. Waterloo Bd. of Educ., No. C02-2050, 2003 WL 22284654, at *7-9 (N.D. Iowa
Sept. 22, 2003).
It appears that the Defendants do not dispute, at least for purposes of the
present Motion, that under the applicable standard of review, a jury could find that
Merrell had a protected interest in his employment with the DCDC. (See Defs.’ Br.,
12
Filing No. 66 at 16.) Therefore, the Court will assume Merrell had a protected property
interest in his employment with the DCDC. Even if Merrell had a protected interest in
his employment with the DCDC, the record does not reflect that the Defendants
deprived him of that interest without due process of law.8
The Defendants contend that Merrell’s post-suspension hearing cured any due
process violation that may have occurred leading up to and during Merrell’s presuspension hearing. Merrell focuses solely on the circumstances surrounding the presuspension hearing to support his procedural due process claim, and contends that
lifting his suspension did not cure the due process violations that had already occurred.
He relies on Martin v. Neb. Dep’t of Pub. Insts., 584 N.W.2d 485 (Neb. Ct. App. 1998),
to support his contention that his post-suspension proceeding did not cure the alleged
pre-suspension due process violation.
The Nebraska Court of Appeals in Martin found “the authority providing that
posttermination proceedings do not cure violations of pretermination due process to be
better reasoned.”
Id. at 491.
Martin, however, was expressly overruled by the
Nebraska Supreme Court in Scott v. Cnty. of Richardson, 789 N.W.2d 44, 52 (Neb.
2010)9, and is contrary to Eighth Circuit authority.
See Smutka, 451 F.3d at 528
8
While the parties’ dispute, and therefore the Court’s analysis, focuses on the process afforded
to Merrell leading up to his suspension and not whether Merrell’s was deprived of a property interest
when he was suspended, the Court notes that other courts have found short-term suspensions do not
trigger due process concerns, at least when the suspension does not affect the employee’s pay, benefits,
or reputation. See, e.g., Pitts v. Bd. of Educ. of U.S.D. 305, Salina, Kansas, 869 F.2d 555, 556 (10th Cir.
1989); Oswald, 2003 WL 22284654, at *6.
9
“We hold that deficiencies in due process during pretermination proceedings may be cured if the
employee is provided adequate posttermination due process. . . . To the extent that Martin holds to the
contrary, it is expressly overruled.” Scott, 789 N.W.2d at 52.
13
(quoting Krentz, 228 F.3d at 902) (“We have further explained, ‘[E]xtensive posttermination proceedings may cure inadequate pretermination proceedings.’”).
Considering the pre- and post-suspension proceedings together, even if some of
the circumstances surrounding the pre-suspension hearing were improper, no
reasonable finder of fact could conclude that the Defendants deprived Merrell of a
protected interest in his employment without due process of law. The record reflects
that Merrell was facing a “mere suspension”; he received notice of the evidence and
ultimate charge against him both prior to and at his pre-suspension hearing; at his presuspension hearing, he had an opportunity to respond to the charges and the evidence
against him, which included the opportunity and ability to call Bowman as a witness; and
when he appealed his suspension, he had a second opportunity to address the charges
and evidence against him, and an opportunity to address the allegedly improper
circumstances that surrounded his pre-suspension hearing.10 Therefore, the Court will
10
At a minimum, the Court does not believe a reasonable official would have understood that
suspending Merrell without more elaborate procedures than that which Merrell received violated Merrell’s
procedural due process rights. See Solomon v. Petray, 699 F.3d 1034, 1038 (8th Cir. 2012) (internal
citations omitted) (“Analyzing a claim of qualified immunity requires a two-step inquiry. In one step, the
deciding court determines whether the facts demonstrate a deprivation of a constitutional right. In the
other, the court determines whether the implicated right was clearly established at the time of the
deprivation.”); Sutton, 702 F.3d at 447-48 (alteration in original) (quoting Powell v. Mikulecky, 891 F.2d
1454, 1457 (10th Cir.1989)) (internal quotation marks omitted) (“The qualified immunity question, then, is
‘whether the contours of the pretermination procedural due process rights announced in [Loudermill], and
applied in lower court cases interpreting that decision, were sufficiently clear that a reasonable official
would understand that terminating [Sutton] without a more elaborate hearing than that which he received
violated those procedural rights.’”). See also Floyd-Gimon, 716 F.3d at 1147 (finding no due process
violation when employee was terminated at an informal meeting with her supervisors for allegedly altering
patient records even though the employee never formally received specific details surrounding her
termination, was not allowed to see any of the allegedly altered records, and was not afforded a formal,
post-termination hearing); Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d 707, 711 (8th Cir. 1986)
(finding a public employee’s procedural due process rights were not violated when the defendant failed to
provide proper notice of certain evidence because that evidence was only a “minor part” of the decision to
terminate the employee and the employee had received adequate notice of the ultimate reason for her
discharge); Oswald, 2003 WL 22284654, at *7 (finding the “plaintiff was afforded all the due process he
was due” even though a witness made statements to the disciplinary board outside of the presence of the
plaintiff and his attorney because “the comments made were already contained in the record or were
14
grant the Defendants’ Motion to the extent they seek the dismissal of Merrell’s
procedural due process claims.11
II. First Amendment Retaliation
Merrell has alleged that the Defendants “harassed, retaliated against, and
terminated” him in violation of his First Amendment rights. (Second Am. Compl., Filing
No. 63 at CM/ECF p. 12.) To establish his retaliation claim, Merrell first must establish
his prima facie case of retaliation, which requires him to show that (1) he engaged in
activity protected by the First Amendment, (2) he suffered an adverse employment
action, and that (3) the protected activity and the adverse employment action are
causally connected. Butler v. Crittenden Cnty., Ark., 708 F.3d 1044, 1051 (8th Cir.
2013); Hughes v. Stottlemyre, 506 F.3d 675, 678 (8th Cir. 2007). Merrell bears the
burden of demonstrating that his activity is protected by the First Amendment. Altonen
v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007). “Whether expressive activity
is protected by the First Amendment is a legal question.” Id. (citing Schilcher v. Univ. of
Ark., 387 F.3d 959, 963 (8th Cir.2004)).12
completely consistent with it.”); Schleck, 939 F.2d at 642 (finding employees’ supervisor entitled to
qualified immunity where employees were terminated at an informal hearing with their supervisor, even
though the supervisor did not disclose the accusers’ names, the names of everyone interviewed when
investigating the charges of sexual harassment, or in general, “all of the details of the charges against”
the employees).
11
The Defendants also argue that Merrell failed to establish a substantive due process claim. A
review of Merrell’s Second Amended Complaint and his opposition brief indicates that Merrell has not
attempted to assert a substantive due process claim. Therefore, the Court does not address that issue.
12
If Merrell can establish his prima facie case, the burden shifts to the Defendants “to
demonstrate that it would have taken the same action regardless of her First Amendment activities.” Id.
(citing Hughes v. Stottlemyre, 454 F.3d 791, 796 (8th Cir.2006)). If the Defendants meet their burden of
showing that it had a legitimate, nondiscriminatory reason for their actions, the burden shifts back to
Merrell to show the Defendant’s actions were pretextual. See Morris v. City of Chillicothe, 512 F.3d 1013,
1019 (8th Cir. 2008). As will be explained below, the Court finds that Merrell has not established his
prima facie case. The Court need not proceed further with its analysis.
15
The Defendants do not dispute that Merrell’s suspension and termination
constitute adverse employment actions.
They contend, however, that summary
judgment should be entered in their favor because Merrell has failed to point to
evidence sufficient to show that he engaged in conduct protected by the First
Amendment, or that there was a causal connection between his allegedly protected
conduct and his suspension or termination. Merrell suggests that the “disclosures [he
made] about problems with certain co-employees about false allegations being made
against him” constitute protected speech because “[f]alse allegations involving public
employees is a public interest not just a private interest.” (See Pl.’s Br., Filing No. 72 at
CM/ECF p. 22 & n.31.) Merrell does not appear to address the third element of his First
Amendment retaliation claim in his opposition brief, but concludes that he “has adduced
sufficient evidence of this claim for summary judgment purposes.” (See id.)
The First Amendment protects speech and conduct only “if it relates to a matter
of public concern[.]” Altonen, 487 F.3d at 559. Although speech and conduct may
“relate[ ] both to an employee's private interests as well as matters of public concern, [it]
is protected if it is primarily motivated by public concern.” Id. (citing Bailey v. Dep't of
Elem. & Secondary Educ., 451 F.3d 514, 518 (8th Cir.2006)). In other words, “[i]f the
main motivation for the speech was furthering [the plaintiff’s] ‘private interests rather
than to raise issues of public concern, h[is] speech is not protected, even if the public
would have an interest in the topic of h[is] speech.’” Id. A plaintiff’s motivation “is
determined by evaluating . . . content, form, and context.” Id.
While allegations involving a public employee may be of public interest, Merrell
has failed to satisfy his burden of demonstrating that he engaged in protected activity.
16
The record reflects that all of Merrell’s complaints were motivated to address and
correct what he perceived to be an undesirable work environment resulting from
allegedly false accusations against him, matters personal to Merrell. Merrell has not
provided the Court with any reason to believe that he engaged in any conduct “as a
concerned citizen attempting to inform the public about h[is] government employer’s
practices.” Id. at 560. Therefore, Merrell has not established his prima facie case of
retaliation, and the Defendants’ Motion will be granted to the extent they seek the
dismissal of Merrell’s First Amendment retaliation claim.
III. Civil Conspiracy Under State Law and § 1983
For his third and final theory of recovery against the Defendants, Merrell alleges
“[t]hat some or all of the various Defendants engaged in a conspiracy to harass and
terminate [Merrell].” (Second Am. Compl., Filing No. 63 at CM/ECF p. 13.) Merrell
must prove four elements to recover on his § 1985 conspiracy claim13:
13
As the Defendants note, Merrell does not specify the subsection of § 1985 under which he
brings his conspiracy claim. (Defs.’ Br., Filing No. 66 at CM/ECF p. 46 n.6.) The Defendants assert “the
context of [Merrell’s] Second Amended Complaint indicates that he alleges a conspiracy to violate his civil
rights, actionable under § 1985(3).” (Id.) Merrell does not dispute that he brings his § 1985 claim
pursuant to subsection (3), and the Court agrees that the context of Merrell’s Second Amended
Complaint, as well as the allegations contained in his opposition brief to the Defendants’ Motion, indicate
that Merrell brings his § 1985 claim pursuant to subsection (3).
The Court also notes that Merrell does not specify what state law he believes forms the basis of
his conspiracy claim. The Court will assume that Merrell has asserted a claim of civil conspiracy under
Nebraska law. Under Nebraska law, “[a] civil conspiracy is a combination of two or more persons to
accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or
oppressive means.” Eicher v. Mid Am. Fin. Inv. Corp., 748 N.W.2d 1, 15 (Neb. 2008). To be actionable,
“the alleged conspirators [must] [have] actually committed some underlying misconduct.” Id. In other
words, a civil conspiracy claim merely “serves to impose vicarious liability for the underlying tort of those
who are a party to the conspiracy.” Koster v. P & P Enters., Inc., 539 N.W.2d 274, 278 (Neb. 1995);
Hatcher v. Bellevue Volunteer Fire Dep't, 628 N.W.2d 685, 696 (Neb. 2001) (“Our case law thus clearly
reveals that one can be vicariously liable for one's role in a civil conspiracy only if there is liability for an
underlying tort.”). Merrell has not alleged that any of the Defendants committed an independent tort.
Even if Merrell had, he has failed to point to any evidence indicating the Defendants engaged conduct to
accomplish an unlawful or oppressive purpose. Therefore, to the extent Merrell has asserted a civil
conspiracy claim under Nebraska law, his claim will be dismissed.
17
(1) the existence of a civil conspiracy; (2) that the purpose of the
conspiracy was to deprive h[im] either directly or indirectly of h[is] civil
rights; (3) that a conspirator did an act in furtherance of the object of the
conspiracy; and (4) damages, shown by demonstrating either injury to
person or property or the deprivation of a civil right.
Mettler v. Whitledge, 165 F.3d 1197, 1206 (8th Cir. 1999). The first element “requires
evidence of specific facts that show a ‘meeting of minds’ among conspirators.” Barstad
v. Murray Cnty., 420 F.3d 880, 887 (8th Cir. 2005). “Speculation and conjecture are not
enough to prove a conspiracy exists.” Mettler, 165 F.3d at 1206.
In his opposition brief, Merrell points only to five alleged agreements that he
believes support his conspiracy claims, all of which relate to the alleged inadequacies
revolving around his suspension and pre-suspension hearing. (See Pl.’s Br., Filing No.
72 at CM/ECF pp. 22-23.) He has not, however, pointed to any evidence of specific
facts that show a meeting of the minds among any of the Defendants, nor any evidence
indicating these inadequacies were intentional or committed for the purpose of violating
his civil rights.14 Therefore, the Defendants’ Motion will be granted to the extent they
seek summary judgment with respect to Merrell’s conspiracy claim.
CONCLUSION
No reasonable trier of fact could find in favor of Merrell on any of his three claims.
Therefore, the Defendants’ Motion for Summary Judgment will be granted, and Merrell’s
Second Amended Complaint will be dismissed, with prejudice. Accordingly,
14
The Court also notes that a conspiracy “requires at least two persons,” and because a
government entity and its agents are considered “a single person in the eyes of the law,” to establish a
civil conspiracy, to show government agents engaged in a conspiracy with each other or the government
agency itself, a plaintiff is required to show that the government agents, “at the time of the conspiracy,
act[ed] beyond the scope of their authority and for their own benefit.” Barstad, 420 at 887; see also
Koster, 539 N.W.2d at 279 (quoting Wiekhorst Bros. Excavating & Equip. Co. v. Ludewig, 529 N.W.2d 33,
40 (Neb. 1995)) (“[a] corporation cannot conspire with an agent when the agent is acting within the scope
of his or her authority.”). It does not appear that Merrell has pointed to any evidence of specific facts
showing that, any time relevant to this action, any of the individual Defendants were acting beyond the
scope of their authority and for their own benefit.
18
IT IS ORDERED:
1.
The Defendants’ Motion for Summary Judgment (Filing No. 65) is granted;
2.
The Plaintiff’s Second Amended Complaint (Filing No. 63) is dismissed
with prejudice; and
3.
A separate judgment will be entered.
Dated this 2nd day of August, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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