Morris v. McAlester, City of et al
Filing
83
OPINION AND ORDER by Judge Frank H. Seay granting in part and denying in part 59 Motion for Summary Judgment. (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRIS MORRIS,
)
)
Plaintiff, )
)
vs.
)
)
THE CITY OF MCALESTER, a
)
political subdivision of the
)
State of Oklahoma; and JIM LYLES,)
in his individual capacity,
)
)
Defendants. )
No. CIV-10-200-FHS
ORDER AND OPINION
Before the court for its consideration is a Motion for
Summary Judgment (Doc. 59) filed by the defendants City of
McAlester and Jim Lyles.
The court rules as follows on the
motion.
STANDARD FOR SUMMARY JUDGMENT
Summary Judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56 ( c) See also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party has the burden of demonstrating the absence of a
genuine issue of fact.
(1986).
Celotex v. Catrett, 477 U.S. 317, 325
If this initial burden is satisfied, the nonmoving party
then has the burden of coming forward with specific facts showing
there is a genuine issue for trial as to elements essential to
the nonmoving party’s case.
Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) and Bacchus
Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.
1991).
The nonmoving party cannot rest on the mere allegations
of the pleadings, but must go beyond the pleadings and “set forth
specific facts showing there was a genuine issue for trial as to
those dispositive matters for which [it] carries the burden of
proof.” Applied Genetics v. First Affiliated Securities, 912 F.2d
1238, 1241 (10th Cir. 1990).
“A fact is ‘material’ only if it ‘might affect the outcome
of the suit under the governing law,’ and a dispute about a
material fact is ‘genuine’ only ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Thomas v. IBM, 48 F.3d 478, 486 (10th Cir. 1995) (quoting
Anderson, 477 U.S. at 248).
In this regard, the court examines
the factual record and reasonable inferences therefrom in the
light most favorable to the nonmoving party.
Deepwater Invs.
Ltd. v. Jackson Hole Ski Corp, 938 F.2d 1105, 1110 (10th Cir.
1991).
This court’s function is not “to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
With
these standards in mind, the court turns to the merits of the
defendants’ motion.
Factual Findings
The court finds the facts as follows. Plaintiff Chris Morris
has been an employee of the McAlester Police Department since
July 1, 1996.
Plaintiff has also been a member of the Fraternal
Order of Police (FOP) since 1996 where he served as its vicepresident from 2000 to 2004.
After he completed his term as
vice-president he then served as president from 2004 to 2009.
president of the FOP, plaintiff appointed members to the
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As
grievance committee and also helped an officer with a grievance
concerning overtime pay.
On August 10, 2008, plaintiff was arrested for drunk
driving.
On September 22, 2008, defendant Lyles, acting as the
Chief of Police for the City of McAlester, terminated Morris’
employment for violation of various rules and regulations. The
City Manager approved the termination. On September 24, 2008,
plaintiff filed a grievance over his termination.
The grievance
was ultimately decided in plaintiff’s favor and he was reinstated
to his position.
I.
Free Association Claim
The court must first consider whether plaintiff’s claim is a
free speech claim or a free association claim.
In their reply to
the motion for summary judgment, defendants allege that
plaintiff’s claims are more properly characterized as a free
speech claim versus a free association claim. It is clear in the
pleadings that plaintiff has framed his claim as a free
association claim. Plaintiff’s entire lawsuit is based on two
actions, (1) the plaintiff’s appointment of members to the
grievance committee and (2) his assistance with another officer’s
grievance regarding overtime pay. The court finds plaintiff’s
claim is a freedom of association claim because both of these
actions were taken solely in his position as FOP president.
He
would not have participated in either of these activities if it
would not have been for his position as president of the FOP and
his association with that organization.
The court arrives at
this conclusion because plaintiff’s claims are solely connected
to his association with and his membership in the FOP.
Defendant has moved for summary judgment on plaintiff’s free
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association claim.
Plaintiff alleges he was been retaliated
against by defendant Lyles based on two specific actions he had
taken while president of the FOP.
First, plaintiff alleges that
in 2005 as FOP president he made a decision not to appoint union
members to the grievance committee in an effort to try to form a
committee that would be favorable to administration.
Plaintiff
claims that subsequently he realized this was not best for the
officers for whom he was to advocate as FOP president.
As a
result, he changed his position and appointed union members to
the grievance committee.
The second action occurred in November
2007, toward the end of plaintiff’s role as FOP president and
involved plaintiff assisting officer Jeremy Busby with a
grievance concerning over-time pay.
The Supreme Court in Pickering v. Board of Education, 391
U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138, 142 (1983)
derived a four part test to determine whether a public employee
has violated an employee’s First Amendment rights.
The threshold
requirement requires the court to determine whether the
employee’s speech touches on a matter of public concern.
City of Edmond, 155 F.3d 1193, 1201 (10
th
Cir. 1998).
Dill v.
However,
the law is unsettled as to whether the public concern requirement
is applicable in a free association claim.
Neither the Supreme
Court, nor the Tenth Circuit Court of Appeals has expressly
determined whether the public concern element is applicable in a
freedom of association claim. See Schalk v. Gallemore, 906 F.2d
491, 498 & n. 6 (10th Cir. 1990)(requiring public concern where
the “association” was “nothing more nor less than an audience”
for the employee’s speech but explictedly declining to hold that
public concern is always required.) and Flanagan v. Munger, 890
F.2d 1557, 1564 n.7 (10th Cir. 1989)(expressing some doubt
whether the Pickering test, particularly the public concern prong
applies in freedom of association cases”). In fact, the Tenth
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Circuit Court of Appeals has specifically reserved the question
in several unpublished opinions. See, e.g., Lunow v. City of
Oklahoma City, 61 Fed. Appx. 598, 606 (10th Cir. 2003).
The Tenth Circuit Court of Appeals has indicated in a
holding that the public concern requirement does not apply in the
narrow situation where the free association claim is brought by a
unionized public employee who has asserted that he was retaliated
against because of his union membership. Shrum v. City of Coweta,
449 F.3d 1132, 1138-1139 (2006). In Butcher v. City of McAlester,
956 F.2d 973 (10th Cir. 1992), the Tenth Circuit Court of Appeals
upheld a jury verdict in favor of a public employee union
member’s freedom of association claim without applying the public
concern test.
F.2d 1434 (10
See also Morfin v. Albuquerque Public School, 906
th
Cir. 1990)(reversing a grant of summary judgment
to a defendant on a union association claim without applying the
public concern test.)
While the issue does seem to be somewhat unsettled as to
whether a plaintiff must establish the public concern element in
a free association claim, the court finds the Tenth Circuit Court
of Appeals does not require the speech in question to touch on an
issue of public concern in the narrow circumstance of a free
association case which deals with a labor union association.
(See Shrum
at 1138-1139.)
Thus, the court finds the plaintiff
in the case at bar is not required to show his activities touched
on an area of public concern.
To establish his constitutional claim, the employee must
show that the speech was a “substantial factor” in the adverse
employment decision.
Dill
at 1202.
Upon consideration of the
motion for summary judgment filed herein by defendants as to
plaintiff’s free association claim, the court concludes that
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genuine issues of material fact are present in the case as to
whether plaintiff’s activities as FOP president were a
substantial factor in his termination. Summary judgment is
therefore inappropriate and said motion should be overruled as to
this issue.
Fed. R. Civ. P. 56; see, e.g., Celotex Corporation
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986).
II. City of McAlester
Municipal liability under 42 U.S.C. Sec. 1983 must be
premised on the enforcement of some official policy, procedure,
custom or usage.
Monell v. Department of Social Services, 436
U.S. 658 (1978) and Meade v. Grubbs, 841 F.2d 1512, 1529 (10th
Cir. 1988).
Under 42 U.S.C. Sec. 1983, a local government or
municipality may be held liable for adopting an official policy
or custom causing a violation of constitutional rights.
However,
local governments can not be sued under a respondeat superior
theory of liability.
Monell, 436 U.S. at 691.
In order for the
City of McAlester to be held liable in the instant action,
plaintiff must show “... the unconstitutional actions of an
employee were representative of an official policy or custom of
the municipal institution, or were carried out by an official
with final policy making authority with respect to the challenged
action.” Seamons v. Snow, 206 F.2d 1021, 1029 (10th Cir. 2000).
In the case at bar, it appears that plaintiff is attempting
to establish liability against the City of McAlester by showing
that an unconstitutional act was committed by an official with
final policy-making authority.
Simmons v. Uintah Health Care
Special Dist., 506 F.3d 1281, 1284-85 (10th Cir. 2007).
Defendant contends that every decision made by defendant Lyles
was subject to review by the City Manager and could be upheld or
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overturned by the City Manager.
As a result, the action against
the City of McAlester must fail because defendant Lyles did not
have final policy-making authority.
Plaintiff alleges that under
the City Charter and Municipal Code of McAlester defendant Lyles
has control and supervision over his department which included
the power of termination and the City Manager did not review the
decisions of defendant Lyles.
Plaintiff contends that under the
facts of this case defendant Lyles was the final policymaker for
the city and as such, his actions can hold the City of McAlester
liable.
In support of its position plaintiff cites Flanagan v.
Munger, 890 F.2d 1557 (10th Cir. 1989).
However, the court finds
that case distinguishable because in Flanagan the city had
delegated to the police chief final authority over certain
disciplinary issues.
The city had further admitted, through
requests for admissions, that it had delegated authority to the
police chief to set policy regarding discipline imposed on
officers for violation of department rules and regulations.
at 1568.
Id.
The court, in that case, determined that the admission
by the City effectively disposed of the municipal liability issue
because it all but flatly stated that Chief Munger was the final
policymaker. Id. In the case at bar, there is no such admission.
In fact, in the instant case defendants argue the opposite, that
defendant Lyles did not have the final word on termination of
police officers. Thus, the court finds Flanagan unpersuasive on
this issue.
After a review of the relevant facts, the court finds that
the defendant Lyles was not a final policymaker for the City of
McAlester.
The court finds the Charter for the city specifically
states that the termination of all city employees is subject to
the City Manager’s direction and supervision.
of McAlester, article 3 section 3.04.
Charter for City
In fact, in this case the
City Manager Mark Roth in a memo to plaintiff states that he has
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concurred and approved of plaintiff’s termination.
Thus, it
appears the City Manager was the final policymaker for the City
of McAlester in regard to the termination of city employees.
Accordingly, this court finds that defendant Lyles was not a
final policymaker for the city of McAlester and as such, the City
of McAlester is entitled to an entry of summary judgment.
III.
Qualified Immunity
As part of the summary judgment motion before the court, the
individual defendant Chief Lyles claims an entitlement to
qualified immunity.
The affirmative defense of qualified
immunity is available to all government officials.
Fitzgerald, 457 U.S. 800 (1982).
Harlow v.
This immunity is an immunity
from suit and not merely a defense to liability.
Pueblo
Neighborhood Health Centers v. Losavio, 847 F.2d 642, 644-45
(10th Cir. 1988) and England v. Hendricks, 880 F.2d 281 (10th Cir.
1989).
The test the court must apply is an objective one which
inquires into the objective reasonableness of the official’s
actions.
Harlow, 457 U.S. at 816.
Government officials
performing discretionary functions will not be held liable for
their conduct unless their actions violate “clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
Id. at 818; see also Clanton v. Cooper, 129
F.3d 1147, 1153 (10th Cir. 1997)(quoting Harlow).
Certain standards apply when a court is called upon to rule
on a qualified immunity defense at the summary judgment stage of
the proceedings.
As a threshold inquiry, the court must
determine whether the facts as alleged, taken in the light most
favorable to the plaintiff, show that a defendant’s conduct
violated a constitutional right.
This purely legal determination
allows courts to “weed out suits which fail the test without
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requiring a defendant who rightly claims qualified immunity to
engage in expensive and time consuming preparation to defend the
suit on its merits.”
(1991).
Siegert v. Gilley, 500 U.S. 226, 232
The court has previously found that there is a factual
dispute as to whether plaintiff’s activities as the president of
the FOP were a substantial factor in his termination.
This
factual dispute results in the rejection of defendant Lyles’
qualified immunity defense as plaintiff has shown that, under his
version of the facts, defendant Lyles could have violated his
clearly established constitutional right to free association.
It
will be for the jury to determine which version of the facts to
believe.
The court grants in part and denies in part the defendants’
motion for summary judgment.
IT IS SO ORDERED this 12th day of September, 2011.
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