Nagel v. Jamestown, North Dakota, City of et al
Filing
60
AMENDED MEMORANDUM AND OPINION by Judge William G. Young.(JG)
UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
THOMAS NAGEL,
Plaintiff,
v.
CITY OF JAMESTOWN, North
Dakota, and SCOTT EDINGER,
individually and in his official
capacity as Chief of the Police
Department of Jamestown,
Defendants.
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YOUNG, D.J. 1
CIVIL ACTION
NO. 17-00066-WGY
August 2, 2018
MEMORANDUM & ORDER
I.
INTRODUCTION
The Plaintiff Thomas Nagel (“Nagel”) brought this suit
against the Defendants City of Jamestown, North Dakota (the
“City”), and Scott Edinger, the Chief of the Police Department
of Jamestown (“Edinger,” and collectively with the City, the
“Defendants”) alleging violations of his federal and state
constitutional rights.
Pending before the Court are the
Defendants’ motion for summary judgment and Nagel’s motion for
partial summary judgment.
1
For the reasons stated herein, the
Of the District of Massachusetts, sitting by designation.
[1]
Court GRANTS the Defendants’ motion for summary judgment on
Counts I, II and IV and DENIES Nagel’s motion for partial
summary judgment.
The Court dismisses Count III without
prejudice.
A.
Procedural History
On April 5, 2017, Nagel filed a complaint in the United
States District Court for the District of North Dakota against
the City and the chief of its police department, Edinger.
Compl. ¶¶ 21-48, ECF No. 1.
In his complaint, Nagel alleges a
violation of his First Amendment rights under 42 U.S.C. § 1983
(Count I); a violation of his Fourteenth Amendment right to due
process under 42 U.S.C. § 1983 (Count II); a violation of his
constitutional rights under Article I, sections 4, 5 and 9 of
the North Dakota Constitution (Count III); and a violation of
the North Dakota Administrative Code Chapter 4-07-19 (Count IV).
Id.
On April 3, 2018, the Defendants filed a motion for summary
judgment.
Defs.’ Mot. Summ. J., ECF No. 23.
briefed the issues.
The parties fully
Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’
Mem.”), ECF No. 24; Pl.’s Resp. Mot. Summ. J. (“Pl.’s Opp’n”),
ECF No. 49; Defs.’ Reply Pl.’s Resp. Mot. Summ. J. (“Defs.’
Reply”), ECF No. 54.
Nagel also filed a motion for partial
summary judgment on Count II, a portion of Count III, and Count
IV.
Pl.’s Mot. Partial Summ. J., ECF No. 38.
[2]
This motion was
fully briefed as well.
Pl.’s Mem. Supp. Partial Summ. J.
(“Pl.’s Mem.”), ECF No. 43; Defs’ Mem. Opp’n Partial Summ. J.
(“Defs.’ Opp’n”), ECF No. 47; Pl.’s Reply Defs’ Resp. Mot.
Partial Summ. J. (“Pl.’s Reply”), ECF No. 51.
On June 1, 2018, this Court heard oral argument on both
motions and took the matter under advisement.
See ECF Nos. 55,
57.
B.
Factual Background 2
On April 16, 1989, Nagel started working for the Jamestown
Police Department.
Aff. Brian D. Schmidt (“Schmidt Aff.”), Ex.
1 at 3, ECF No. 26-1.
Edinger was the Chief of the Police
Department and Nagel’s supervisor at all material times.
Scott Edinger (“Edinger Aff.”) ¶ 1, ECF No. 37.
Aff.
Nagel was also
affiliated with the Fraternal Order of Police, a labor union
that represents some members of the police department.
2.
Compl. ¶
In 1998, Nagel founded the James Valley Regional Lodge
Number 4 of the Fraternal Order of Police and became its
president for a period of eighteen years.
Schmidt Aff., Ex. 2
(“CSC Hearing Transcript”), 154:11-19, ECF No. 26-2.
As the
president, Nagel advocated for a change in the retirement system
of city employers.
2
Schmidt Aff., Ex. 4, ¶ 12, ECF No. 26-4.
The facts are undisputed, unless otherwise stated.
[3]
Nagel’s advocacy and behavior in some meetings created tension
with his superiors.
Edinger Aff. ¶¶ 2-9.
In 2013, after attending a class in which it was
recommended to police officers to use pseudonyms on social
media, Nagel changed his Facebook name to “Dominic Brimm” and
privatized his account.
CSC Hearing Transcript at 156:11-157:6.
According to Nagel’s testimony, he also created a false Facebook
account under the name of Robert Hines, who posed as a local kid
who had dropped out of school.
Id. at 158:20-23.
Nagel used
the Hines account to spy on people that the police department
was investigating.
Id. at 158:11-25, 159:1-18; Schmidt Aff.,
Ex. 5 (“Nagel’s Deposition”), 60:1-61:18, ECF No. 26-5.
Using
the Hines account, Nagel clicked on the Facebook page of Matt
Thom (“Thom”), the Stutsman County Deputy, and saw a picture of
Thom riding a jet-ski with the son of Stutsman County Sheriff
Kaiser (“Sheriff Kaiser”).
Id. at 62:5-63:7.
In early November 2015, KVLY, a television station in
Fargo, North Dakota, received a tip from a “Dominic Brimm” about
the improper conduct of some members of the Stutsman County
Sheriff’s Department.
Edinger Aff. ¶ 10.
The hotline tip
alleged that a county-owned jet-ski had been used by a member of
the Stutsman County Sheriff’s Office (“Sheriff’s Office”) for
personal purposes, and included the Facebook picture.
Thomas Nagel (“Nagel Aff.”) ¶¶ 5-6, ECF No. 45.
[4]
Aff.
After receiving
the tip, Valley News Live reporter Christine Stanwood
(“Stanwood”) came to the Stutsman County courthouse on November
4, 2015.
Edinger Aff. ¶ 10.
Nagel then had a camera interview
with Valley News Live, in which he commented on an alleged crime
commited by a member of the Sheriff’s Office who had used a
government-owned jet-ski for personal use.
Compl. ¶¶ 7-8;
Schmidt Aff., Ex. 3 (“VNL Interview”), ECF No. 26-3.
In the
interview, Nagel aknowledged that Dominic Brimm was the alias he
went by on Facebook.
VNL Interview at 1:45-1:52.
He said that
he knew about the picture but denied being the one who sent it
to Valley News Live.
Id. at 2:09-2:14.
When asked about who
did, he answered: “I can say it is somebody that would be in
fear of losing their job.”
Id. at 2:21-2:26.
After the interview, Nagel went to Edinger’s office and
told him that he knew who had submitted the tip.
Transcript at 263:10-265:22.
That afternoon, Nagel visited
attorney Joseph Larson (“Larson”).
118:11-25.
CSC Hearing
Nagel’s Deposition at
In Larson’s office, Nagel talked to the North Dakota
Game and Fish Department and verified that the County did not
own a jet-ski.
Id. at 121:8-122:1.
After the Valley News Live interview, the County prohibited
Nagel’s Fraternal Order from holding any meetings or activities
on County properties, and required the Fraternal Order to remove
[5]
vending machines from which it profited and the ATM it housed in
the County building.
Id. at 126:1-6.
Nagel filed two grievances against Edinger.
Nagel filed
the first grievance after Edinger told him that some people
wanted his resignation.
at 126:10-18;
Edinger Aff. ¶ 22; Nagel’s Deposition
CSC Hearing Transcript at 272:1-5.
Edinger
responded to the grievance by explaining that Casey Bradley, the
Stutsman County Auditor, had mentioned this to him and that no
formal request for the resignation had been made.
Ex. 4, ECF No. 37-4.
Edinger Aff.,
On November 5, 2015, Sherriff Kaiser told
Edinger that he wanted Nagel to stay out of the Sheriff’s
Office.
Edinger Aff. ¶ 23; CSC Hearing Transcript at 273:22-
274:2.
The Sheriff’s Office and Police Department offices are
located within the same building and are separated by a hallway.
Edinger Aff. ¶ 16; Aff. Chad Kaiser (“Kaiser Aff.”) ¶ 6, ECF No.
27.
According to Kaiser’s and Edinger’s testimony, the Valley
News Live incident had created “extreme tension” between the two
offices.
Edinger Aff. ¶ 15; Kaiser Aff. ¶ 5.
Nagel to stay out of the Sheriff’s Office.
CSC Hearing Transcript at 274:15-21.
Edinger ordered
Edinger Aff. ¶ 20;
Nagel filed his second
grievance on January 27, 2016, in which he stated that Edinger
had an obligation to put the order in writing.
CSC Hearing
Transcript at 218:21-219:2; Edinger Aff., Ex. 3 at 3-4, ECF No.
[6]
37-3.
Nagel did not follow through with any of the grievances.
Edinger Aff. ¶ 27; CSC Hearing Transcript at 273:22-274:12.
Meanwhile, the Police Department and Sheriff’s Office
requested that the North Dakota Criminal Bureau of Criminal
Investigation (“BCI”) conduct a criminal investigation on the
jet-ski issue.
Compl. ¶ 9; Edinger Aff., Ex. 1 (“BCI Report”),
8-9, ECF No. 37-1; Edinger Aff., Ex. 9 (“Edinger’s Deposition”),
98:10-99:24, ECF No. 37-9.
Various members of the Jamestown
Police Department and Sheriff’s Office were interviewed.
Report at 2-7, 11-36, 82-96, 112-16.
Nagel.
Id. at 32-36.
BCI
The BCI never interviewed
On December 31, 2015, Nagel’s attorney
sent another letter to the BCI asserting that Stutsman County
leased a jet-ski and concluding that an enforcement officer had
a “duty to pursue exonerating and exculpatory evidence.”
109-10.
Id. at
On February 4, 2016, the BCI investigation closed,
having concluded that the Sheriff’s Office did not own a jet-ski
and that there was insufficient evidence to support a criminal
prosecution.
Id. at 62, 122; Nagel Aff. ¶ 8 & Ex. 2.
The Police Department and the Sheriff’s Office also
conducted a joint internal investigation of potential violations
related to the Valley News Live report.
102:8-103:4; Compl. ¶ 9.
Edinger’s Deposition at
The investigation included thirty
interviews of employees of the Jamestown Police and Sheriff’s
Office.
Aff. John Johnson (“Johnson Aff.”) ¶ 5, ECF No. 32.
[7]
During his interview, Sheriff Kaiser stated that the jet-ski
depicted in the picture belonged to his brother-in-law and that
the whole incident had caused “huge tension” in both his
personal life and at work.
12:7, ECF No. 27-1.
Kaiser Aff., Ex. 1, 4:16-24, 11:14-
He recalled that his wife had taken a
picture of Thom and his son on the jetski and sent it to Thom.
Id. at 5:6-7, 9:23-10:1.
The picture then became public when
Thom designated it as his Facebook profile picture.
at 42.
BCI Report
Several of the interviewees affirmed that Nagel knew the
source of the anonymous tip sent to Valley News Live.
Gross
Aff., Ex. 1, 23:1-24:1, ECF No. 35-1; Hirchert Aff. Ex. 1,
10:13-11:12, ECF No. 25-1; CSC Hearing Transcript at 263:10265:22.; Overvold Aff., Ex. 1, 5:9-6:17, ECF No. 30-1; Falk
Aff., Ex. 1 (“Prochnow Interview”), 25:8-14, 27:19-28:2, 49:1450:23, ECF No. 29-1.
Nagel was the last officer to be interviewed.
¶ 8.
Johnson Aff.
On February 12, 2016, Johnson sent Nagel an email
explaining that he had been assigned to conduct an investigation
about the Valley News Live broadcast.
ECF No. 32-1.
Johnson Aff., Ex. 1, 1-2,
On February 15, 2016, Larson sent an email to
Johnson saying that Johnson and Edinger’s actions violated
Nagel’s constitutional rights and that Nagel could not be
disciplined for exercising his permitted rights.
Ex. 2, ECF No.32-2.
Johnson Aff.,
Johnson responded that he was investigating
[8]
the Valley News Live incident to determine whether there had
been violations of the Rules and Regulations of the Jamestown
Police Department and that there had been no “complaint.”
Johnson Aff., Ex. 3 at 2, ECF No. 32-3.
Larson filed a motion
for a temporary restraining order, or in the alternative, a writ
of mandamus in the District Court of North Dakota.
Aff., Ex. 5, ECF No. 32-5.
Johnson
Larson argued that Nagel’s answers
to the investigation could “be used to discipline the employee
including termination of employment.”
Id. at ¶ 5.
The court
entered a writ of mandamus excluding any member of the Stutsman
County Sheriff’s Department or any other investigative agency
from Nagel’s interview.
Johnson Aff., Ex. 6, ECF No. 32-6.
On February 19, 2016, Nagel was interviewed in the presence
of his attorney.
Johnson Aff., Ex. 7, 2:8-15, ECF No. 32-7.
Johnson read Nagel his rights, which included a “right to be
informed of the allegations involved.”
Id. at 3:3-4:1.
Johnson
also informed Nagel that his statements could be used to seek
disciplinary action against him.
Id.
During the interview,
Johnson explained to Nagel that he was investigating violations
of the Jamestown Police Department Rules and Regulations and the
Law Enforcement Code of Ethics related to the Valley News Live
incident.
Id. at 4:10-7:2.
In the interview, Nagel was
questioned about the Valley News Live interview and confronted
[9]
with evidence from Thom’s, Gross’s, and Edinger’s interviews and
evidence from the Valley News Live report.
Id. at 17:5-23:20.
The investigative reports concluded that Nagel’s actions
were directly related to his role as a police officer and had
“brought discredit” to the Jamestown Police Department and the
Stutsman County Sheriff’s Office.
ECF No. 32-10.
Johnson Aff., Ex. 10 at 11,
The report stated that Nagel’s responses
indicated that Nagel knew who had sent the tip, as Nagel had
stated to several of his colleagues.
The report concluded that
Nagel had lied to the investigators about his knowledge of who
was responsible for the tip.
3.
Falk Aff., Ex. 3, ¶ 6, ECF No. 29-
The report recommended that Edinger invoke a review board.
Johnson Aff. Ex. 10 at 12.
On February 26, 2016, Edinger empanelled a review board to
determine if there were “any policy, procedure, rules, or
regulation violations by any Jamestown Police Department
officers.”
Edinger Aff., Ex. 5, ECF No. 37-5.
The review board
consisted of four Jamestown police officers and one private
citizen.
Id.
The review board unanimously determined that
Nagel had violated the Law Enforcement Code of Ethics.
Aff., Ex. 1 at 7, ECF No. 33-1.
Blinsky
It decided that Nagel’s
behavior had “brought discredit to him and the Jamestown Police
Department” and that after knowing the purpose of the interview,
“[h]e should have passed the information . . . [to] the chain of
[10]
command.”
Id. at 1.
It also concluded that, from the
information gathered in the interviews, it was clear that Nagel
knew about the incident in July and “did nothing to bring it to
light until the news media in November.”
Id. at 2.
In
addition, it found that Nagel knew who had sent the tip to
Valley News Live, despite the fact that Nagel denied knowing who
had sent the package in his interview.
Id. at 1-2.
The review
board unanimously recommended Nagel’s dismissal from the
department.
Id. at 8.
Edinger sent a letter to the City Administrator, Jeff Fuchs
(“Fuchs”), stating that Nagel had “violated numerous policies
and procedures” and that he was “no longer a viable law
enforcement officer.”
Edinger Aff., Ex. 7, ECF No. 37-7.
Fuchs
and Katie Andersen, the City’s mayor, reviewed the evidence and
the review board’s recommendation for termination.
Aff. ¶ 4; Fuchs Aff. ¶ 18, ECF No. 31.
Andersen
On March 9, 2017, Fuchs
and Andersen terminated Nagel’s contract.
Andersen Aff. ¶¶ 5-6;
Fuchs Aff., Ex. 1, ECF No. 31-1.
Nagel requested a post-termination hearing before the Civil
Service Commission.
Fuchs Aff., Ex. 2, ECF No. 31-2; CSC
Hearing Transcript.
On April 27, 2016, a hearing was held in
which Nagel called seven witnesses, including five experts.
at 25-250.
Id.
Both the City and Nagel submitted several exhibits.
Id. at 253-351; Schmidt Aff., Ex. 7, ECF No. 26-7.
[11]
Nagel,
Edinger, Johnson, and Falk testified at the hearing.
252-351.
Id. at
Nagel denied being the anonymous tipster or knowing
who had sent the picture.
Aff. ¶ 13.
Id. at 244:8-22; 351:14-25; Nagel
Nagel Aff., ¶¶ 14-18.
On May 20, 2016, the Civil
Service Commission issued its decision, finding that the Review
Board findings were supported by evidence, and denied Nagel’s
appeal.
II.
Fuchs Aff., Ex. 3, ECF No. 31-3.
ANALYSIS
The Defendants are seeking summary judgment in their favor
arguing no constitutional rights were violated.
Defs.’ Mem. 39.
Alternatively, they argue that Edinger is entitled to qualified
immunity regarding the constitutional claims.
Id.
They further
argue that there is no cause of action under the North Dakota
Constitution or North Dakota Administrative Code.
Id.
Nagel is
seeking partial summary judgment on all counts except Count I
and the part of Count II alleging free speech and freedom of
association violations.
A.
Pl.’s Mem. 1.
Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary
judgment is appropriate where the moving party demonstrates that
there exists no genuine issue of material fact and that it is
entitled to judgment as matter of law.
Fed. R. Civ. P. 56(c).
“Where the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate.”
[12]
Mansker
v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
the inferences must be drawn in favor of the nonmovant.
v. Williams, 650 F.3d 1188, 1194 (8th Cir. 2011). 3
All
Rynders
To survive a
motion for summary judgment, “[t]he nonmoving party must
demonstrate the existence of specific facts in the record that
create a genuine issue for trial.”
Metro Sales, Inc. v. Core
Consulting Grp., LLC, 275 F. Supp. 3d 1023, 1034 (D. Minn.
2017).
If after reviewing all the evidence there are no genuine
issues of material fact, “the movant is entitled to judgment as
a matter of law.”
B.
Rynders, 650 F.3d at 1194.
Qualified Immunity
Government officials are entitled to qualified immunity to
protect themselves from the burdens of litigation, unless they
incompetently violate clearly established statutory or
constitutional rights.
(8th Cir. 2017).
Vester v. Hallock, 864 F.3d 884, 886
“Qualified immunity gives government officials
3
While this decision faithfully tracks Fed. R. Civ. P.
56(c)(2), completeness requires noting that, where the moving
party bears the burden of proof, the nonmovant need not
demonstrate such specific opposing facts since the factfinder
could disbelieve the evidence proffered. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); see,
e.g., Lund v. Crane Co., No. 2:13-cv-02776, 2016 WL 2742383, at
*13 n.5 (C.D. Cal. May 10, 2016); Securities and Exchange
Commission v. EagleEye Asset Mgmt., LLC, 975 F. Supp. 2d 151,
156-57 (D. Mass. 2013); Delano v. Abbott Labs., 908 F. Supp. 2d
888, 893 (W.D. Tenn. 2012); Anderson v. Potter, 723 F. Supp. 2d
368, 372 n.4 (D. Mass. 2010); Allen v. Murray-Lazarus, 755 F.
Supp. 2d 480, 482 n.2 (S.D.N.Y. 2010).
[13]
breathing room to make reasonable but mistaken judgments.”
Stanton v. Sims, 571 U.S. 3, 5 (2013).
Edinger is not entitled
to such immunity if: (i) viewing the facts in a way favorable to
Nagel, he deprived Nagel of a constitutionally protected right,
and (ii) the right was “clearly established” at the time.
v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012).
Jones
“Clearly
established” means that “a reasonable official would understand
that what he is doing violates [a certain] right,” and there
ought be controlling authority or a consensus of cases to put an
officer on notice.
Id.; see Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014).
A clearly established right “must be
sufficiently clear [so] that a reasonable official would
understand that what he is doing violates that right.”
864 F.3d at 886-87.
Vester,
Defendants have the burden of “proving that
the law was not clearly established.”
493 F.3d 941, 948 (8th Cir. 2007).
Shockency v. Ramsey Cty.,
As explained below, Edinger
did not violate “clearly established” statutory or
constitutional rights, and thus, he is entitled to qualified
immunity.
C.
Count I: Violation of First Amendment Rights
Nagel alleges that the Police Department terminated his
contract in retaliation for his interview with Valley News Live.
Compl. ¶ 23.
According to Nagel, this constitutes a violation
of his freedom of speech and freedom of association rights under
[14]
the First Amendment and the Federal Civil Rights Act, 42 U.S.C.
§ 1983.
Compl. ¶¶ 21-27.
Nagel argues that the resolution of
this Count should be preserved for trial since there are
disputed factual issues.
Pl.’s Mem. 12-13.
To establish retaliation for the exercise of free speech, a
public employee has to show that: (i) “[the] speech was
protected by the First Amendment,” (ii) his contract was
terminated, and (iii) the protected speech was the cause of the
termination.
Rynders, 650 F.3d at 1194.
To prove that the
speech was protected, Nagel has to show that he spoke as a
“citizen on a matter of public concern.”
McGee v. Public Water
Supply, Dist. No. 2, 471 F.3d 918, 920 (8th Cir. 2006).
In his Valley News Live interview, Nagel was not speaking
as a citizen on a matter of public concern.
Nagel has
consistently alleged that he was not speaking as a Jamestown
Police Officer but as a Fraternal Order member.
Compl. ¶ 8.
In
Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995), however, the
Eighth Circuit rejected the argument that the public concern
test “does not fit cases involving an employee whose expression
did not take place at work and was not about work.”
Id. at 970.
In Tindle, the protected expression at issue was made by a
police officer while at a Fraternal Order function with other
off-duty police officers.
Id. at 971.
The Eighth Circuit
explained that the Fraternal Order “function was related to [the
[15]
police officer’s] work and caused adverse consequences at work.”
Id.; see Lyons v. Vaught, 875 F.3d 1168, 1174 (8th Cir. 2017)
(“[A] public employee’s speech is not protected by the First
Amendment if it ‘owes its existence’ to his professional
responsibilities.” (quoting McGee, 471 F.3d at 921)).
The Eighth Circuit has also noted that “under the First
Amendment, speech can be ‘pursuant to’ a public employee’s
official job duties even though it is not required by, or
included in, the employee’s job description, or in response to a
request by the employer.”
Lyons, 875 F.3d at 1174 (quoting
Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010)).
In the Valley News Live interview, even though Nagel took his
badge off, he was identified as a Jamestown Police Officer.
Schmidt Aff., Ex. 3 (CD), 1:45-1:52.
The story was entitled
“Fraud and Feud at the Stutsman County Sheriff Office.”
2:39-43.
Id. at
Nagel’s gun and handcuffs were visible during the
interview.
Id.
Thus, a reasonable person would identify Nagel
as a police officer, not as a citizen.
Further, his speech during the interview was not on a
“matter of public concern.”
The public concern “must be
determined by the content, form, and context of a given
statement.”
Connick v. Myers, 461 U.S. 138, 148-49 (1983).
Nagel has asserted different reasons that he gave the interview.
One of the reasons is that he wanted to clear the name of
[16]
Dominic Brimm, his Facebook alias.
189:24-190:2; 238:17-22.
CSC Hearing Transcript at
It thus seems that Nagel raised an
issue of his own concern.
See Kokkinis v. Ivkovich, 185 F.3d
840, 844 (7th Cir. 1999) (“[I]t is necessary to ‘look at the
point of the speech in question: was it the employee's point to
bring wrongdoing to light?
Or to raise other issues of public
concern, because they are of public concern?
Or was the point
to further some purely private interest?’” (quoting Callaway v.
Hafeman, 832 F.2d 414, 417 (7th Cir. 1987))).
Even assuming that Nagel was a citizen speaking on a matter
of public concern, he would still not be protected by the First
Amendment.
“[T]he court must consider whether the interest of
the employee, as a citizen, in commenting on matters of public
concern outweighs the interest of the state, as an employer, in
promoting the efficiency of the public services it performs.”
Tyler v. City of Mountain Home, Ark., 72 F.3d 568, 570 (8th Cir.
1995).
“Factors relevant in weighing the competing interests of
the employer and employee are whether the speech creates
disharmony in the work place, interferes with the speaker's
ability to perform his duties, or impairs working relationships
with other employees.”
Id.
Moreover, the Eighth Circuit
affords additional deference to police departments with respect
to restrictions on speech:
[17]
It has been recognized that a police department has a
more significant interest than the typical government
employer in regulating the speech activities of its
employees in order to promote efficiency, foster loyalty
and obedience to superior officers, maintain morale, and
instill public confidence. Because police departments
function as paramilitary organizations charged with
maintaining public safety and order, they are given more
latitude in their decisions regarding discipline and
personnel regulations than an ordinary government employer.
The public safety employer's determinations of both the
potential for disruption as a result of the speech, as well
as the employer's response to the actual or perceived
disruption, are entitled to considerable judicial
deference.
Id. (emphasis added, internal citations and quotations omitted).
Here, it is clear that the City’s interest outweighs that
of Nagel.
As explained by Sheriff Kaiser, the interview
strained the relationship between the Jamestown Police
Department and the Sheriff’s Office, which work together and are
located in the same building.
Kaiser Aff., ¶¶ 4-10, Ex. 1 4:16-
24; 11:14-12:7; Edinger Aff. ¶¶ 15-20.
Edinger also received
around 150 complaints from the public.
Edinger Aff. ¶ 31, Ex. 8
at 7, ECF No. 37-8.
Additionally, the Police had to undergo a
BCI investigation and a joint internal investigation.
Furthermore, a County Commissioner asked for Nagel’s resignation
and the Sheriff no longer wanted him in the Sheriff’s Office.
Edinger Aff. ¶ 13.
All in all, each of the Eighth Circuit’s
factors weigh in favor of the City: the Valley News Live
interview created great disharmony in the workplace, interfered
[18]
with Nagel’s ability to perform his duties, and impaired his
working relationships with other employees.
To preclude summary judgment on this count, Nagel argues
that a reasonable official would think that his conduct was
protected by the First Amendment.
Pl.’s Resp. 8.
He relies on
a decision from the Northern District of Iowa explaining that a
reasonableness standard may raise a factual issue that precludes
summary judgment.
See Bruning ex rel. Bruning v. Carroll Cmty.
Sch. Dist., 486 F. Supp. 2d 892, 912 (N.D. Iowa 2007).
As the
facts are presented here, however, a reasonable official would
understand that this issue was closely related to the
performance of his job and that he was not speaking as an
average “citizen” in the interview.
In addition, Nagel’s termination was recommended because of
his conduct providing misleading statements during the internal
investigation, not simply because he gave the interview.
Mem. 47.
Defs.’
Nagel was not speaking as a citizen during the
internal investigation.
After the investigation concluded, he
was considered a Giglio-impaired officer. 4
Edinger Aff., Ex. 7.
In Bradley v. James, the Eighth Circuit ruled that “[a]s a
4
In Giglio v. United States, the Supreme Court held that
prosecutors have a duty to disclose evidence regarding the
credibility of government witnesses. 405 U.S. 150, 154-55
(1972). Thus, a police officer whose credibility has been
damaged is considered a less valuable witness in criminal
proceedings, and in turn, a less effective employee.
[19]
police officer, Bradley had an official duty to cooperate with
the investigation . . . .”
479 F.3d 536, 538 (8th Cir. 2007).
Under Bradley, Nagel’s responses to his interview during the
investigation were not protected by the First Amendment.
Nagel also alleges that his right to freedom of association
was violated.
Nagel points out that the fact that the Fraternal
Order was prohibited from holding meetings and activities on
County properties and required to remove its vending machines
and ATM after his interview with Valley News Live shows that his
involvement in the Fraternal Order was a factor in his
termination.
Pl.’s Opp’n 23.
This fact alone, however, does
not rise to the level of a “substantial or motivating factor in
the defendant’s decision” to terminate his employment.
Wingate
v. Gage County Sch. Dist., No. 34, 528 F.3d 1074, 1081-82 (8th
Cir. 2008); Davidson v City of Minneapolis, 490 F.3d 648, 654-55
(8th Cir. 2007) (“To establish a prima facie case of
retaliation, a plaintiff must allege and prove that: . . . (3)
the protected conduct was a substantial or motivating factor in
the defendant's decision to take the adverse employment
action.”).
Nagel fails to identify any other specific facts
that would show how his Fraternal Order membership influenced
the decision to terminate him.
See Metro Sales, Inc. v. Core
Consulting Grp., LLC, 275 F. Supp. 3d 1023, 1034 (D. Minn. 2017)
(“The nonmoving party must demonstrate the existence of specific
[20]
facts in the record that create a genuine issue for trial.”).
Nagel even asserts in his memorandum that “the genesis of this
lawsuit” is in the Valley News Live interview and that “the
television report and nothing else . . . was the catalyst for
the termination”.
Pl.’s Opp’n 19 (emphasis added).
Taking
Nagel’s various versions of the facts as true, then, no
reasonable juror could believe that his membership in the
Fraternal Order was a substantial factor in his termination.
The Defendants are thus entitled to summary judgment on Count I.
D.
Count II: Violation of Fourteenth Amendment Rights
Both parties ask for summary judgment on Count II.
Due
process requires “notice of the charges . . . an explanation of
the employer’s evidence, and an opportunity to present [one’s]
side of the story.”
Berdahl v. North Dakota State Pers. Bd.,
447 N.W.2d 300, 305 (N.D. 1989).
Jamestown Municipal Code § 11-
22(e) allows termination of employees where there is
“misconduct, inefficiency or other just cause.”
Municipal Code § 11-22(e).
Jamestown
Nagel alleges that the Defendants
did not provide him with notice of the charges or a pretermination hearing, depriving him of his due process rights
under the Fourteenth Amendment.
Compl. ¶¶ 28-36.
To establish
his right to procedural due process, Nagel must show that he has
a property interest in his job and that the requirements of
procedural due process were violated.
[21]
Board of Regents of State
Colls. v. Roth, 408 U.S. 564, 576-77 (1972), overruled in part
and on other grounds in Paul v. Davis, 424 U.S. 693 (1976).
Nagel is a municipal employee and his property right derives
from the Jamestown Municipal Code, since he may be terminated
only “for cause.”
Jamestown Municipal Code § 11-22(e).
The Defendants argue that there was notice because Nagel
was informed three different times of the charges against him.
Defs.’ Opp’n ¶ 21.
The following facts are all undisputed. First, Johnson
wrote to Nagel that he was going to be interviewed to determine
whether there were any violations of the rules and regulations
of the Jamestown Police Department including the Law Enforcement
Code of Ethics about the events surrounding the Valley News Live
interview.
Johnson Aff., Ex. 5 at 2.
Larson then filed a
motion for a temporary restraining order requesting that nonemployers be restricted from participating in the interview and
stating that the information gained from the interview “may be
used to discipline the employee including termination of
employment.”
interview.
Id.
Second, Larson was present during Nagel’s
Nagel asked to be informed of the allegations being
investigated, to which Johnson answered that Nagel was being
investigated for a violation to the Jamestown Police Department
rules and regulations surrounding the Valley News Live incident.
Johnson Aff., Ex. 7, 4:10-7:2.
Third, the City Administrator
[22]
and the City Mayor provided Nagel with a written notice of
termination, after which Nagel was provided an extensive posttermination hearing.
Nagel Aff., Ex. 8, ECF No. 45-8.
Given these undisputed facts alone, Nagel was not given an
adequate pre-termination hearing and the charges against him
were not completely explained.
of a possible termination.
Nagel was also not given notice
It is also true, however, that given
these facts Nagel knew what was being investigated and that
disciplinary actions might arise from the investigation.
Nagel
also had two different opportunities to defend himself: the
interview in which he was presented with evidence against him
and an extensive post-termination hearing.
“[T]he Due Process Clause requires a pre-termination
hearing in some form, but if a post-termination hearing is
available, the pre-termination proceedings ‘need not be
elaborate . . . .’”
Sutton v. Bailey, 702 F.3d 444, 447 (8th
Cir. 2012) (quoting Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 545 (1985)).
“[W]e have consistently held that, where
post-termination proceedings are available, ‘informal meetings
with supervisors’ may be sufficient pre-termination hearings.”
Pena v. Kindler, 863 F.3d 994, 998 (8th Cir. 2017) (quoting
Sutton, 702 F.3d at 447).
“We have repeatedly observed that an
employer need not disclose all of the details of the charges
against the employee.”
Sutton, 702 F.3d at 448.
[23]
In Smutka v. City of Hutchinson, the Eighth Circuit
reaffirmed that “[e]xtensive post-termination proceedings may
cure inadequate pretermination proceedings.”
451 F.3d 522, 528
(8th Cir. 2006) (quoting Krentz v. Robertson Fire Prot. Dist.,
228 F.3d 877, 902 (8th Cir. 2000)).
Nathan Smutka (“Smutka”)
was an employer for the Hutchinson Utilities Commission (“HUC”).
Id. at 523.
After learning that his HUC credit card was not
working, Smutka had an outburst in the break room.
Id. at 524.
An investigation of the incident was initiated by the City
Attorney and the City’s Human Resource Director.
Id.
They
first met with Smutka to inform him of the allegations of the
breakroom incident, and they later met with Smutka and his
attorney, again informing him of the incident being
investigated.
Id.
Smutka’s attorney submitted a written
response to the allegations of misconduct.
Id. at 525.
Four
days later, Smutka’s employers delivered a letter terminating
his employment.
Id.
Smutka appealed his termination and
requested an independent review by the Bureau of Mediation
Services (“BMS”).
Id.
A BMS officer held a trial-like hearing,
allowing the parties to submit post-hearing briefs, and
concluded there was no just cause to support the termination and
that the HUC had not followed its policies in terminating
Smutka’s employment.
Id.
Smutka’s employment was reinstated
[24]
and Smutka shortly thereafter filed a federal lawsuit alleging
that he was denied pre-termination due process.
Id. at 526.
On appeal from a grant of summary judgment to the
defendants, the Eighth Circuit concluded that Smutka’s pretermination proceedings were sufficient.
Id. at 527.
It noted
that Smutka “knew enough about the incident to prepare a
response” and that HUC “was not required to provide [Smutka]
with a full [pre-termination] hearing, nor was [HUC] required to
disclose all of the details of the charges.”
Id. at 527.
(quoting Schleck v. Ramsey County, 939 F.2d 638, 642 (8th Cir.
1991) (alteration in original)).
The court concluded that
Smutka had two different opportunities to respond to the
misconduct charge, “one with the assistance of counsel,” and
that Smutka’s comprehensive post-termination proceedings could
cure “superficial pretermination proceedings.”
Nagel’s case is similar to that of Smutka.
Id.
Johnson met
with Nagel in the presence of Nagel’s attorney before his
termination to discuss the events surrounding the Valley News
Live interview and confronted him with evidence from other
witnesses.
Nagel denied the allegations against him with his
attorney present.
Nagel also appealed the termination to the
Civil Service Commission, where he was afforded a trial-like
hearing in which he presented various expert witness and around
100 exhibits and was allowed the opportunity to submit closing
[25]
briefs.
Ex. 1.
Schmidt Aff., Ex. 2; Schmidt Aff. Ex. 7; Schmidt Aff.,
Any defect in Nagel’s pre-termination due process was
cured by the extensive post-termination hearing.
Thus, Nagel’s
due process rights were not violated.
E.
Count III: Violation of the North Dakota Constitution
Nagel argues that the above-mentioned violations are also
violations of his rights of freedom of speech, freedom of
association, and due process under Article 1, sections 4, 5, and
9 of the North Dakota Constitution.
Compl. ¶¶ 37-42.
As the
Defendants point out, however, Nagel has no direct cause of
action under the North Dakota Constitution.
Defs.’ Mem. ¶ 111.
While Nagel may seek the vindication of his federal
constitutional rights under 18 U.S.C. § 1983, there is no
corresponding North Dakota statute authorizing the vindication
of rights secured by the North Dakota Constitution.
In
Kristensen v. Strinden, 343 N.W.2d 67 (N.D. 1983), the North
Dakota Supreme Court explained that there was no direct cause of
action for damages for violations of the North Dakota
Constitution where North Dakota courts had not yet implied one.
Id. at 70.
It further noted that no North Dakota court has
recognized a direct cause of action for money damages for a
violation of the North Dakota constitutional provisions at
issue, including Article I, section 4.
Id.
In a recent order
granting summary judgment, another court in this District
[26]
concluded that since the North Dakota Supreme Court has not
“inferred a private right of action under the state
constitution. . . [t]his Court will not take the extraordinary
step of inferring one.”
Order, Sander v. City of Dickinson,
Case No. 1:15-cv-72, J. Hovland, 2018, ECF No. 124.
There are also, however, no North Dakota Supreme Court
cases that deny a right of action under the state constitution.
Therefore, Nagel’s claims in Count III are dismissed without
prejudice.
He may pursue his North Dakota constitutional claims
in the courts of that state.
F.
Count IV: Violation of North Dakota Administrative
Code
Finally, Nagel alleges that the City’s failure to provide
him with pre-termination notice, opportunity to be heard, and
written final action notice before discharging him violated
chapter 4-07-19 of the North Dakota Administrative Code.
¶¶ 43-46.
Compl.
This chapter requires that prior to discharging a
“regular employee,” the State ought provide the employee with a
pre-termination notice and a written final action.
Code 4-07-19-05, 4-07-19-06.
N.D. Admin.
The chapter also asserts that a
public sector employee may be disciplined only for cause.
Id.
at 4-07-19-03.
Nagel’s claim fails as matter of law because chapter 4-0719 only applies to state employees or employees of local
[27]
governments “in [a] position[] classified by human resource
management services.”
N.D. Admin. Code 4-07-19-01 (policies and
rules that applies to employees in the state); see Lee v.
Walstad, 368 N.W.2d 542, 546-47 (N.D. 1985) (declining to hold
that a city chief of police has a property interest in his
employment under North Dakota law).
Nagel is a city employee,
not a state employee, and his position as a city police officer
is not classified by “human resource management” -- an
organization under the auspices of the state Office of
Management and Budget -- as a “regular employee” within the
meaning of chapter 4-04-19.
See N.D. Cent. Code § 54-44.3-12;
N.D. Admin. Code 4-07-19-01.
Therefore, this Court GRANTS the
Defendants’ motion for summary judgment on this count.
IV. CONCLUSION
For the foregoing reasons, this Court GRANTS Defendants
motion for summary judgment on Counts 1, 2 and 4 and DENIES
Nagel’s motion for partial summary judgment on Count 2, part of
Count 3 and Count 4.
The Court dismisses Nagel’s claims in
Count 3 without prejudice.
Judgment shall enter for the
Defendants.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
[28]
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