Morgan v. Robinson et al

Filing 60

MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED THAT: Plaintiffs motion for partial summary judgment, Filing No. 38 , is denied. Plaintiffs motion for a stay, Filing No. 41 , is denied. Defendants motions to strike, Filing Nos. 46 and 47 , are denied. Defendants motion to dismiss, Filing No. 56 , is denied. The magistrate judge shall proceed to progress this case on the constitutional issues remaining herein. The stay in this case is lifted. Ordered by Senior Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONALD MORGAN,
Plaintiff,

8:14CV212

vs.
MEMORANDUM AND ORDER
MICHAEL ROBINSON, Washington County
Sheriff, an individual; and WASHINGTON
COUNTY, NEBRASKA,
Defendants.

This matter is before the Court on plaintiff’s motion for partial summary judgment,
pursuant to Fed. R. Civ. P. 56, Filing No. 38, and motion for a stay, Filing No. 41, and on
defendants’ motion to strike partial summary judgment pursuant to Fed. R. Civ. P. 56, Filing
No. 46, motion to strike request for stay, Filing No. 47, and motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), Filing No. 56. The plaintiff filed a complaint for violation of his First
and Fourteenth Amendment rights under 42 U.S.C. § 1983 and for breach of contract
against defendants Michael Robinson, Washington County Sheriff, and Washington County,
Nebraska. Filing No. 1. The Court granted a motion to compel arbitration, Filing No. 36.
The case proceeded to arbitration, and the arbitration process is now completed.
BACKGROUND
The Court set forth the facts in its previous memorandum order, Filing No. 36. For
purposes of these motions, the Court adopts the same facts and includes them in this
memorandum and order.1 This case proceeded to arbitration and the arbitrator

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The Court indicated: The Complaint states that the defendants employed the plaintiff as a deputy for
the Washington County Sheriff’s Office for 13 years, and that defendant Michael Robinson served as the
Washington County Sheriff. Filing No. 1, at ¶¶ 4, 5. The Complaint alleges that defendants terminated the
plaintiff in retaliation for engaging in protected speech. Id. at ¶¶ 11-13, that defendant Robinson made
stigmatizing remarks against the plaintiff, and that the defendants have failed to follow proper arbitration

issued his award on May 10, 2015. See Filing No. 40, Ex. 1. The arbitrator defined the
issue as: “Was Deputy Donald Morgan terminated for just cause, and, if not, what should
the remedy be?” Id. at p. 2. The arbitrator specifically stated that “While the Grievant has
raised Constitutional issues regarding freedom of speech and seeks damages which may or
may not be appropriate in a civil suit, my focus must be on the language of the contract
itself and any related policies and rules of the sheriff’s office”. Id. at 9. The arbitrator did
not discuss or decide the constitutional issues raised by the plaintiff.

The arbitrator

concluded that the County did not have just cause to terminate Deputy Sheriff Donald
Morgan for the statements he made during his primary campaign for sheriff. Particularly,
the arbitrator stated that:
His conduct did not demonstrate moral turpitude, his statements were not
falsehoods intent upon personal gain, and he did not slander or speak
detrimentally about the sheriff’s office or another employee. Rather, Deputy
Morgan engaged in a spirited political campaign in which he expressed his
positions on matters involving the sheriff’s office which he considered to be
important. There is no evidence that such statements damaged the Sheriff’s
office or interfered in any way with its operation. Just cause did not exist for
his termination.

Id. at 9. The arbitrator ordered reinstatement, back pay, lost benefits and seniority. Neither
side asked for reconsideration, nor did any of the parties appeal this ruling (if they were in
fact entitled to appeal). The defendants have reinstated the plaintiff as of June 3, 2015;
have awarded back pay; and have restored benefits. As a result, the defendants move to
dismiss this case and plaintiff moves for partial summary judgment.
procedures and have denied the plaintiff an opportunity to clear his name before an impartial tribunal. Id. at ¶¶
15-16. The speech involved Donald Morgan’s campaign against defendant Michael Robinson who both ran for
election for the position of Washington County Sheriff. Robinson won the primary election on May 13, 2014,
and on May 18, 2014, defendants terminated Morgan from the Washington County Sheriff’s Department.
Morgan claims defendants fired him, because of statements he made during the election.

Filing No. 36, at 1-2.
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DISCUSSION
Plaintiff firsts ask that this Court grant his partial summary judgment motion,
regarding the breach of contract claim, on the basis of the arbitrator’s decision. Filing No.
38. Defendants ask the Court to dismiss the case, also on the basis of the arbitrator’s
decision. The plaintiff also asks this court to stay the arbitrator’s award with respect to the
breach of contract claim until the conclusion of the remaining issues in this case. Plaintiff
contends he will ask for front pay or other monetary remedies for his § 1983 claims. He
does not believe that reinstatement is feasible, and thus such remedy should be stayed
pending the outcome of his constitutional claims. However, he wishes to allow the back pay
and costs to go into effect.
The Court agrees that it should not undertake to review the merits of the arbitrator’s
decision with respect to the breach of contract claim. See Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, 562-63 (1976) (“Courts are not to usurp those functions which collectivebargaining contracts have properly ‘entrusted to the arbitration tribunal.’ Id., at 569, 80
S.Ct., at 1347, 4 L.Ed.2d at 1405. They should not undertake to review the merits of
arbitration awards but should defer to the tribunal chosen by the parties finally to settle their
disputes. Otherwise ‘plenary review by a court of the merits would make meaningless the
provisions that the arbitrator's decision is final, for in reality it would almost never be final.’
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960)).”
With regard to the breach of contract claim, it is clear that the plaintiff agrees with the
findings of the arbitrator but not the remedy. The problem with plaintiff’s request is that it
requires the Court to change the remedy issued of the arbitrator. The Court is not going to
do so. First, the Court will not allow the plaintiff to re-litigate that which the arbitrator has
decided with respect to the breach of contract claim, and no one argued that the arbitrator
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acted outside of his scope when applying this remedy.

Accordingly, the Court has no

authority to grant plaintiff’s motion for partial summary judgment. Second, the parties did
not attempt to appeal any part of the decision of the arbitrator, or ask for reconsideration.
Further, the Court agrees with the defendants that the Agreement does not provide for
judicial confirmation of the arbitration award. In the Eighth Circuit, parties must have an
express affirmative agreement providing for judicial confirmation of an award for a federal
court to have authority under section 9 of the Federal Arbitration Act to enter judgment on
the award. See PVI, Inc. v. Ratiopharm GmbH, 135 F.3d 1252,1253-54 (8th Cir. 1998) (“the
FAA provides that a party to an arbitration may apply to the court for confirmation of an
arbitration award only ‘[i]f the parties in their agreement have agreed that a judgment of the
court shall be entered upon the award made pursuant to the arbitration.’”) (quoting 9 U.S.C.
§ 9).

Accordingly, the Court will not review the merits of the arbitrator’s decision as it

relates to the breach of contract claim.
However, that is not the case with regard to the plaintiff’s First Amendment claim
under § 1983. With regard to the constitutional claims raised under § 1983, the United
States Supreme Court has held:
“It is apparent, therefore, that in a § 1983 action, an arbitration proceeding
cannot provide an adequate substitute for a judicial trial. Consequently,
according preclusive effect to arbitration awards in § 1983 actions would
severely undermine the protection of federal rights that the statute is
designed to provide. We therefore hold that in a § 1983 action, a federal court
should not afford res judicata or collateral-estoppel to effect an award in an
arbitration proceeding brought pursuant to the terms of a collective-bargaining
agreement.”
McDonald v. City of W. Branch, Mich., 466 U.S. 284, 292 (1984). Accordingly, the Court
finds the case as it relates to the alleged constitutional claims shall proceed.

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The determinations and remedies as found by the arbitrator with respect to the
breach of contract claim are controlling, and the Court will not address any of those issues.
However, the plaintiff is entitled to proceed on his constitutional claims and ask for whatever
relief is deemed appropriate.
THEREFORE, IT IS ORDERED THAT:
1. Plaintiff’s motion for partial summary judgment, Filing No. 38, is denied;
2. Plaintiff’s motion for a stay, Filing No. 41, is denied;
3. Defendants’ motions to strike, Filing Nos. 46 and 47, are denied;
4. Defendants’ motion to dismiss, Filing No. 56, is denied;
5.

The magistrate judge shall proceed to progress this case on the constitutional

issues remaining herein.
6. The stay in this case is lifted.

Dated this 4th day of September, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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