Smith v. Snodgrass et al

Filing 73

OPINION & ORDER by Magistrate Judge Kimberly E. West granting 37 Motion for Summary Judgment. The jury trial set for January 18, 2017 is hereby stricken. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RANDY SMITH,
Plaintiff,
v.
DEBY SNODGRASS; KRIS MAREK;
BRYCE TODD; CLAUDIA CONNER;
GREGORY SNIDER; SCOTT LANGE;
LESSLEY PULLIAM; and
MICHAEL VAUGHT,
Defendants.

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Case No. CIV-14-201-KEW

OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion for
Summary Judgment (Docket Entry #37).

Beginning in 1998, Plaintiff

was employed by the Oklahoma Tourism and Recreation Department
(“OTRD”) as a Park Ranger II and worked at the Cherokee Landing
State Park.

As a term of his employment, Plaintiff’s conduct was

required to conform to the “Park Ranger Rules of Ethical Conduct”
(the “Rules”) contained in the Park Ranger Policy and Procedure
Manual at RP30-5-304(I)(b) provided on the issue of “Conduct
Unbecoming of an Officer” that
Rangers shall conduct themselves at all times, both on
and off duty, in such a manner as to reflect most
favorable on the Ranger Program and Department. Conduct
unbecoming of an officer shall include actions which
cause disrespect to the Park Ranger Program or reflects
discredit upon the Ranger or which impairs the operation
or efficiency of the Program and Department.
The

Rules

also

provided

“Dereliction of Duty” that

at

RP30-5-304(I)(l)

concerning

Rangers shall not . . . , play games, . . ., or otherwise
engage in entertainment or unacceptable standards which
cause disrespect to the individual, Program, or
Department.
The

Rules

stated

at

RP30-5-304(I)(p)

pertaining

to

the

handling of “Confidential Information” that
Rangers shall treat law enforcement business of the
Ranger Program as confidential as provided by Oklahoma
Statutes.
Rangers shall not disclose information
acquired by reason of their official position to any
person no entitled to receive such information.
In April of 2012, Steve Williams (“Williams”), the Park
Manager at Greenleaf State Park, died of a gunshot wound.
death

was

investigated

by

the

Oklahoma

State

The

Bureau

of

Investigation (“OSBI”) and the OSBI’s investigation was completed
on December 17, 2012.
On December 18, 2012, while in uniform, Plaintiff asked a coworker, Josh Baker (“Baker”), if he had shot Williams.

Baker

“appeared to be very upset” by Plaintiff’s question and reported it
to Aron Maib (“Maib”), another Park Ranger for OTRD. Maib noted in
an affidavit that “[i]t had been widely rumored that Josh Baker’s
wife had engaged in a marital affair with Steve Williams prior to
Williams’

shooting

death.”

Defendants’

Motion

Judgment, Exh. 6, Affidavit of Aron Maib, ¶ 3.

for

Summary

Maib immediately

advised Defendant Lessley Pulliam (“Pulliam”), the Park Manager of
Cherokee Landing State Park, of what Josh Baker had told him.

2

Pulliam spoke with Baker about the incident and confirmed that
Plaintiff had asked him if he shot and killed Steve Williams.
Pulliam reported the incident to Greg Snider, Northeast Region
Manager for OTRD and Defendant Mike Vaught (“Vaught”), former Chief
Park Ranger and an employee of the OTRD at all times relevant to
this case.
Vaught also attested by affidavit that “[i]t had been widely
rumored that Josh Baker’s wife had engaged in an extramarital
affair with Steve Williams prior to Williams’ shooting death, so
Randy Smith’s comments were cause for concern and taken very
seriously.”1

Defendants’ Motion for Summary Judgment, Exh. 5,

Affidavit of Mike Vaught, ¶ 5. As a result of Plaintiff’s comment,
on December 19, 2012, Mr. Vaught contacted the OSBI and informed
them that he would have Plaintiff contact them about the death of
Williams and Baker’s “potential involvement if necessary”.
¶ 6.

Id. at

On the same date, Vaught also spoke with Plaintiff who

informed Vaught that he had asked Baker about Williams’ death as a
joke.

Vaught requested that Plaintiff write an incident report

describing his exchange with Baker.

1

Plaintiff objects to the statements in the affidavit concerning
the rumors of the affair, stating “any rumor is hearsay and not
indicative of who was aware of the rumor or its validity.” Consideration
of this statement evidence is limited as a demonstration of the awareness
of the affiants of the alleged rumor and the affect that the awareness
had in precipitating their actions.
Such “state of mind” evidence
represents a permissible exception to the hearsay rule, which does not
require acceptance of the truth of the matter asserted in the statements.
Fed. R. Evid. 803(3).

3

On December 19, 2012, Plaintiff provided completed an incident
report.

He stated that

In jest I asked Josh if he shot Steve Williams there was
nothing intentional about the question (sic). Really I
was just messing with Josh to see his reaction. I did
not think that Josh had done anything wrong, and in
hindsight I realize that it was a bad joke.
During the months of Steve Williams (sic) death there had
been a lot of rummers (sic) going around, and I though
Josh had probably heard all that had been going around.
The whole thing was misunderstood, and I appologize (sic)
for my lack of forethought.
Defendants’ Motion for Summary Judgment, Exh. 9, Incident
Report dated December 19, 2012.
On December 28, 2012, Plaintiff was notified in writing that
his actions were considered a violation of Merit Rule 530:10-1191(a), OTRD Operating Procedure P-135(a), and OTRD Procedure RP305-304(a) and (b).

The bases for finding these violations were set

forth in the letter in the following recitation:
Mr. Smith is a Park Ranger, Level II, and has been
employed with the OTRD since July 31, 1996.
On December 18, 2012, Ranger Smith was talking to Josh
Baker, Equipment Operator, Level I, outside of the
Tenkiller State Park maintenance building.
As Jeff
Garrett, Laborer, Level I, approached Ranger Smith and
Mr. Baker, Ranger Smith asked Mr. Baker “did you shoot
Steve Williams?”
Mr. Baker complained about this line of questioning to
his chain of command. Greg Snider, Regional Manager,
contacted Mike Vaught, Chief Ranger, regarding your
actions with Mr. Baker.
On December 19, 2012, Chief
Ranger Vaught contacted you requesting that you prepare
an incident report regarding your December 18, 2012,
interaction with Mr. Baker. in your incident report you
admitted this line of questioning was a joke designed to
see how Mr. Baker would react. You admitted that you did
4

not believe that Mr. Baker had done anything wrong, yet
you took no action to inform Mr. Baker that he was not
under criminal investigation or to apologize for this
serious error in judgment until you were required to
write the incident report.
Ranger Smith your actions indicate that you have treated
a fellow OTRD employee discourteously and have caused
this employee to potentially believe that he was a
suspect in an criminal investigation.
* * *
Defendants’ Motion for Summary Judgment, Exh. 10.
The letter informed Plaintiff that a pre-termination hearing
would be conducted on January 7, 2013 at 10:00 a.m. at the OTRD
office in Oklahoma City, Oklahoma.

Plaintiff was also issued a

Notice of Pre-Termination Hearing and a Suspension with Pay.

The

Notice was hand delivered to Plaintiff on December 28 or 29, 2012.
Bryce

Todd

(“Todd”),

a

hearing

officer

for

OTRD,

was

designated to act as the sole hearing officer at Plaintiff’s pretermination hearing.
On January 2, 2013 at 10:52 a.m., Plaintiff e-mailed Defendant
Scott Lange (“Lange”), OTRD’s Human Resources Director, requesting
a continuance of the pre-termination hearing because “the weekend
and holidays for the New Year have left me unable to contact
representation.” On January 2, 2013 at 11:04 a.m., Lange forwarded
the e-mail to Defendants Claudia Connor, OTRD’s general counsel,
and Deby Snodgrass (“Snodgrass”), former director of the OTRD, for
approval.

Lange’s e-mail to Snodgrass indicated

I received this request this morning.
5

If you choose to

grant this request, I would recommend that the hearing
not be continued beyond January 14, 2013. I have a call
in to Bryce on another issue and I don’t what (sic) his
availability is for any date other than January 7, 2013.
On

January

2,

2013

at

1:36

p.m.,

Snodgrass

“[p]lease set according to your recommendation.”
information

was

communicated

to

him,

Plaintiff

responded,
Before the

submitted

his

resignation by e-mail to Lange on January 2, 2013 at 4:17 p.m.
Plaintiff’s request for a continuance was never denied by any of
the Defendants.
Plaintiff testified that he called Lange about the continuance
request but that Lange told him that Claudia Conner made those
decisions and would not be back in the hearing date on January 7,
2013.
On October 16, 2013, Plaintiff commenced this action in the
District Court in and for Sequoyah County, Oklahoma.
2014, Defendants removed the case to this Court.

On May 28,

In the agreed

Pretrial Order entered in this case, Plaintiff alleges Defendants
violated

his

constitutional

procedural

due

process

rights

as

enforced through 42 U.S.C. § 1983 in (1) demonstrating bias or
predetermining that he should be terminated in advance of the pretermination hearing; (2) failing to grant him a continuance of the
pre-termination hearing as requested; and (3) failing to employ
progressive discipline rather than termination for Plaintiff’s
offense.
Under Federal Rule of Civil Procedure 56(c), summary judgment
6

shall be granted if the record shows that, "there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law."

The moving party has the burden

of showing the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 255354, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists
when "there is sufficient evidence favoring the non-moving party
for a jury to return a verdict for that party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91
L.Ed.2d 202 (1986).

In determining whether a genuine issue of a

material fact exists, the evidence is to be taken in the light most
favorable to the non-moving party.

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
Once the moving party has met its burden, the opposing party must
come forward with specific evidence, not mere allegations or
denials of the pleadings, which demonstrates that there is a
genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105
(7th Cir. 1983).
“To assess whether an individual was denied procedural due
process, courts must engage in a two-step inquiry: (1) did the
individual possess a protected interest such that the due process
protections

were

applicable;

and,

if

so,

then

(2)

individual afforded an appropriate level of process.”

was

the

Riggins v.

Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (internal quotation

7

marks omitted).

Defendants do not challenge whether Plaintiff

possessed a protected interest in his employment.

The Court,

therefore, addresses the second component required for due process.
“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.”

Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)(internal quotation
marks omitted).

Because “the root requirement of the Due Process

Clause [is] that an individual be given an opportunity for a
hearing

before

he

is

deprived

of

any

significant

property

interest,” there must be “some kind of a hearing prior to the
discharge of an employee who has a constitutionally protected
property interest in his employment.”
marks omitted).
notice

to

the

Id. (internal quotation

“[S]uch a hearing requires: (1) oral or written
employee

of

the

charges

against

him;

(2)

an

explanation of the employer's evidence; and (3) an opportunity for
the employee to present his side of the story.”

Riggins, 572 F.3d

at 1108 (brackets and internal quotation marks omitted).

But “[a]

full evidentiary hearing is not required prior to an adverse
employment action”; it suffices that the employee is “given notice
and an opportunity to respond.”

Id. (internal quotation marks

omitted).
Clearly,

Plaintiff

was

provided

with

notice

of

the

transgressions for which an adverse employment action was proposed,

8

the nature of the action proposed to be taken, and a date and time
for

a

hearing

for

Plaintiff

to

present

his

side

circumstances forming the basis of the adverse action.

of

the

The notice

provided the requisite due process to protect Plaintiff’s property
interest in continued employment.
Plaintiff, however, proposes that the effectiveness of the due
process

provided

to

him

was

compromised

by

several

factors.

Plaintiff first contends that the parties involved in the process
demonstrated a pre-determination toward supporting his termination
in advance of the hearing and also demonstrated bias which would
affect the fairness of the hearing.

Plaintiff’s evidence of pre-

determination and bias consists of (1) a conversation overheard by
another employee of OTRD, Jeff Garrett, between Lange and Maib
wherein Lange allegedly stated “they want Randy Smith out”; (2) a
Personnel Transaction form dated January 2, 2013 and signed on
January 2, 2013 which notes in the Agency Remarks portion of the
form that “Mr. Smith resigned effective January 7, 2013, in lieu of
discharge”; (3) Maib being friends with Todd such that bias was
presumed;

(4)

a

belief

that

Snodgrass

had

never

reversed

a

recommendation for termination in the past and that he did not
believe she would in his case; and (5) a belief that other
employees involved in the process were biased because of prior
interactions with Plaintiff or because of their unwillingness to
change an employment decision made by others.

9

“[I]n order for a hearing to afford an individual due process,
the

hearing

tribunal

must

be

impartial.

A

tribunal

is

not

impartial if it is biased with respect to the factual issues to be
decided at the hearing.”
Cir. 1985).

Corstvet v. Boger, 757 F.2d 223 (10th

“[A] substantial showing of personal bias is required

to disqualify a hearing officer or tribunal in order to obtain a
ruling that the hearing is unfair.”

Roberts v. Morton, 549 F.2d

158, 164 (10th Cir. 1976), cert. denied, 434 U.S. 834, 98 S.Ct.
121, 54 L.Ed.2d 95 (1977). Tribunals enjoy a presumption that they
are not biased unless it is substantially demonstrated that they
are

actually

adjudicated.

biased

with

respect

to

factual

issues

being

See, e.g., Mangels v. Pena, 789 F.2d 836, 838 (10th

Cir. 1986).
The fallacy in Plaintiff’s position rests on the unsupported
belief that any bias by persons not involved in the pre-termination
hearing and the resulting decision coming out of that hearing
taints the objectivity of the hearing process.
assigned hearing officer for Plaintiff’s case.

Todd was the

Only evidence of

his alleged bias would be pertinent to the discussion of an
insufficiently neutral hearing tribunal or hearing officer.

The

only allegation specific to Todd is his alleged relationship with
Maib.

Plaintiff takes an extraordinary leap of faith to assert

that this relationship is sufficient to demonstrate bias on the
part of the only hearing officer assigned to Plaintiff’s pre-

10

termination hearing.

Plaintiff contends that since Maib received

the complaint from Baker, reported it to superiors, and is friends
with Todd, Todd is necessarily tainted, biased and could not
provide a fair hearing for Plaintiff.

Plaintiff has not made the

“substantial showing” necessary to find Todd to have been a biased
hearing officer such that the pre-termination hearing could be
considered violative of due process requirements.
Plaintiff also contends that the decision to terminate was
predetermined as reflected in the Personnel Transaction form.

He

asserts the use of the term “in lieu of termination” demonstrates
his

termination

was

a

foregone

presentation at the hearing.
the

hearing

officer

who

conclusion

regardless

of

the

The form was not prepared by Todd,
would

have

presentation but for his resignation.

considered

Plaintiff’s

Additionally, the form was

signed after the resignation was submitted and reflects that the
termination would have resulted since Plaintiff did not appear at
the pre-termination hearing. Certainly, Plaintiff had no knowledge
of this form at the time he decided to resign instead of proceed
with the hearing and so it could not have played a part in his
decision to resign.

Plaintiff attempts to read into the statement

more than is objectively present and this Court concludes that this
stray statement is not indicative of a predetermination of the
outcome of the hearing, had it taken place.
Plaintiff next asserts that Defendants failed to grant him a

11

continuance of the pre-termination hearing.

The evidence does not

support a finding that Plaintiff failed to receive the requested
continuance.

The request was not denied at any time.

Snodgrass’

response, while not a model of clarity, did not deny the request
but explicitly granted the request, deferring the precise timing of
the extension to Lange’s recommendation as stated in the prior email.

The problem with these events rests with timing.

Plaintiff

made his request for extension to Lange on January 2, 2013 at 10:52
a.m.

Lange forwarded the request to Connor and Snodgrass at 11:04

a.m. with his recommendation for dates.

At 1:36 p.m., Snodgrass

granted the request and deferred to Lange on the timing.

The

timing of Plaintiff’s telephone call to Lange is not provided in
the evidence but it was prior to Snodgrass’ response to him since
he referred to Connor rather than to Snodgrass who submitted an email response.

At 4:17 p.m., Plaintiff submitted his resignation.

Since the hearing was not set until January 7, 2013, it is unclear
why Plaintiff decided to resign at this time, even if he was under
the impression that Connor had to make the determination.

His

resignation effectively ended Defendants’ ability to act on his
request.
Plaintiff offers the testimony of a former OTRD employee by
affidavit and, in the supplemental briefing, by deposition - Ellen
King (“King”).
during

the

King acted as human resources program manager

employment

actions

taken

12

against

Plaintiff.

She

disagreed with the level of discipline taken against Plaintiff.
She testified that she believed the outcome of the pre-termination
hearing was predetermined because of communications she had with
Lange - she “got the feeling” but could not “say . . . I’m sure of
it. Just knowing [Lange].” She also stated in response to whether
Lange ever told her what they wanted to do to discipline Plaintiff,
“[y]ou know, part of me wants to say yes, but without just being
straight out, I would rather say I don’t remember.”
not

have

actions.

any

knowledge

of

an

investigation

into

She also did
Plaintiff’s

More importantly, King did not have knowledge of the

hearing officer assigned to Plaintiff’s case.
King also testified that she heard that Plaintiff had been
denied an extension for the pre-termination hearing from “Cathy,
the young lady that worked with me, but I’m not positive.”

After

reading the e-mail exchange on the issue, however, King stated his
extension had not been denied.

She did not believe Plaintiff’s

comment to Baker warranted his termination. She also admitted that
she had not heard of other instances involving a comment such as
that made by Plaintiff being made in the context of a murder
investigation.
In

her

affidavit,

King

makes

several

negative

comments

concerning the operations at OTRD since Snodgrass took over and
criticized the manner in which Lange conducted employee matters.
The vast majority of these comments have little or no bearing on

13

the specific circumstances of Plaintiff’s case.

King’s comments

that “[i]t was clear that there was some sort of vendetta that OTRD
or Snodgrass and others had against Randy Smith” when, in her
opinion, the discipline imposed upon Plaintiff compared to others.
This statement represents rank speculation, especially in light of
the

vagueness

of

her

recollections

as

to

the

specifics

Plaintiff’s case reflected in her deposition testimony.

of

In short,

much of King’s testimony is discounted because she lacked personal
knowledge of the basis for Plaintiff’s discipline and because she
includes speculative and opinionated information, not evidence.
See, Fed. R. Civ. P. 56(c)(4); Argo v. Blue Cross & Blue Shield of
Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006).
Moreover, this Court also notes that Plaintiff’s basis for
requesting the continuance was somewhat tenuous.

He stated that

the holidays precluded him from obtaining representation.

Since

the pre-termination hearing “is not an elaborate procedure” and
“serves merely as an initial check against mistaken decisions”, the
right to counsel has not been recognized, in contrast to a posttermination hearing.

Hughes v. Unified School Dist. No. 330,

Wabaunsee County, Kans., 872 F.Supp. 882, 890-91 (D. Kan. 1994)
citing Loudermill, 470 U.S. at 545-46.

Had Plaintiff appeared at

the pre-termination hearing, he would have been able to hire
counsel and pursue a post-termination evidentiary appeal with the
Oklahoma Merit Protection Commission.

14

Okla. Stat. tit. 74 §§ 840-

6.5 and 6.7. Defendants were not obligated to grant the request on
the basis provided.
Plaintiff

also

contends

Defendants

failed

to

employ

progressive discipline as provided by the OTRD policies rather than
imposing termination for his actions.

As an initial matter,

whether progressive discipline was or was not employed in this case
is immaterial and irrelevant to the issue on the single claim
presented by Plaintiff - whether he received adequate due process
before being deprived of his property interest in his continued
employment.

To the extent Plaintiff includes this argument in his

continuing effort to show predisposition for his termination, he
fails to allege that Todd as the hearing officer at the pretermination

hearing

participated

in

any

of

the

employment

decisions, communicated with those that did, or demonstrated bias
in

his

conduct

which

would

have

deprived

Plaintiff

of

his

constitutional right to due process.
OTRD policy permitted termination for Plaintiff’s conduct. If
Defendants acted contrary to the letter or intent of the policy for
progressive discipline in any way or considered a prior incident
which should not have been considered in accordance with policy,
such conduct does not rise to the level of a constitutional due
process violation.

“The Due Process Clause of the Fourteenth

Amendment is not a guarantee against incorrect or ill-advised
personnel decisions.”

Bishop v. Wood, 426 U.S. 341, 350 (1976);

15

Clinger v. New Mexico Highlands Univ. Bd. of Regents, 215 F.3d
1162, 1168 (10th Cir. 2000)(citation omitted).

Moreover,

“‘[a]

failure to comply with state or local procedural requirements does
not necessarily constitute a denial of due process; the alleged
violation must result in a procedure which itself falls short of
standards derived from the Due Process Clause.’”

Hennigh v. City

of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998) citing Hicks v.
City of Watonga, 942 F.2d 737, 746 n. 4 (10th Cir. 1991)(quoting
Mangels v. Pena, 789 F.2d 836, 838 (10th Cir. 1986)); Levitt v.
University of Tex. at El Paso, 759 F.2d 1224, 1230 (5th Cir.)
(“Even if [a] university depart[s] from its own regulations, not
every violation by an agency of [its own] rules rises to the level
of a due process claim.” (internal quotations omitted)), cert.
denied, 474 U.S. 1034 (1985).

The failure to follow progressive

discipline represents a managerial discretionary act, whether
mistaken

or

not,

which

is

not

violative

of

Plaintiff’s

constitutional rights.
Defendants also raise the issues of a lack of personal
participation by some Defendants and qualified immunity.
this

Court

has

determined

that

none

of

Defendants’

Since
actions

represent a constitutional due process violation, these issues need
not be addressed.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary
Judgment (Docket Entry #37) is hereby GRANTED.

16

IT IS FURTHER ORDERED that the jury trial of this case set for
January 18, 2017 is hereby STRICKEN.
IT IS SO ORDERED this 11th day of January, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

17