Young v. Idabel, City of et al

Filing 74

ORDER by Judge Ronald A. White granting defendant Foshee-Thomas' motion for summary judgment ( 50 Motion for Summary Judgment) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
PROCTOR ANDREW YOUNG,
Plaintiff,
v.
CITY OF IDABEL;
MAYOR TINA FOSHEE-THOMAS,
Defendants.

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Case No. CIV-14-465-RAW

ORDER
Before the court is the motion of the defendant Tina Foshee-Thomas (“FosheeThomas”) for summary judgment.

Plaintiff alleges various claims arising out of his

employment and termination as Fire Chief of the City of Idabel (“Idabel”). Defendant
Foshee-Thomas was mayor of Idabel during the pertinent time period.1
Summary judgment is appropriate only when “there is no genuine dispute as to any
material fact” and “the movant is entitled to a judgment as a matter of law.” Rule 56(a)
F.R.Cv.P. The court examines the factual record and reasonable inferences therefrom in the
light most favorable to the party opposing summary judgment. See EEOC v. Abercrombie
& Fitch Stores, Inc., 731 F.3d 1106, 1116 (10th Cir.2013). The party opposing a properly
supported motion for summary judgment may not rest upon the mere allegations or denials

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The court incorporates by reference the companion order ruling on defendant Idabel’s motion for
summary judgment. As stated in footnote 1 of that order, plaintiff has sued the mayor in both her official
and individual capacities. A suit against the mayor in her official capacity, however, is simply another way
of pleading an action against the city. Therefore, this order will address in detail only those claims asserted
against Foshee-Thomas in her individual capacity.

of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.
Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10 th Cir.2013).
Plaintiff’s first claim (discriminatory discharge under Title VII) is only asserted
against Foshee-Thomas in her official capacity. (Amended Complaint, #36 at page 6 of 13).
In the companion order, the court granted Idabel’s motion for summary judgment on this
claim. Accordingly, summary judgment is appropriate on Foshee-Thomas’s behalf in her
official capacity.
Plaintiff’s second claim is pursuant to 42 U.S.C. §§1981 and 1983 and is evidently
asserted against Foshee-Thomas both in her official and individual capacities. The court
granted Idabel’s motion for summary judgment on the merits and is persuaded the same
reasoning supports granting Foshee-Thomas’s motion, again both in her official capacity and
her individual capacity.
Plaintiff’s third claim, for hostile work environment, is asserted against FosheeThomas only in her official capacity. Again, the court has granted Idabel’s motion for
summary judgment as to this claim and therefore necessarily grants it as to Foshee-Thomas
in her official capacity.
Plaintiff’s next claim alleges malicious prosecution. Such a claim consists of the
following elements: (1) the defendant caused the plaintiff’s continued confinement or
prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause
supported the original arrest, continued confinement, or prosecution; (4) the defendant acted

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with malice; and (5) the plaintiff sustained damages. Wilkins v. DeReyes, 528 F.3d 790, 799
(10th Cir.2008).
Plaintiff argues that Foshee-Thomas caused his prosecution in that she intentionally,
or with reckless disregard for the truth, falsified, omitted or suppressed evidence. The
evidence in question appears to be information underlying the purported factual findings
made by the district judge of McCurtain County in the order dismissing the final two criminal
charges against plaintiff. (#59-5). There, the judge states that “[t]he testimony of the former
Mayor and the present Mayor establish that Mr. Young was (1) in charge of the Fire
Department, (2) had authority to modify his own schedule, (3) excluded from strict 24 hour
shifts, (4) Mr. Young was not required to record actual time on time sheets, (5) permission
was given to work as referee, (6) his time sheets do not show actual time only total hours
worked, (7) he set his own work schedule.”
Essentially, plaintiff’s argument is based on Pierce v. Gilchrist, 359 F.2d 1279 (10 th
Cir.2004), where the Tenth Circuit held that a police forensic analyst (i.e., someone who did
not file the charges) could nevertheless be sued for malicious prosecution where the plaintiff
contended that the analyst withheld exculpatory evidence and fabricated inculpatory
evidence. More specifically, the court said plaintiff “bears the heavy burden” of showing
that defendant’s falsification of inculpatory evidence or suppression of inculpatory evidence
was necessary to the initial finding of probable cause and that without the false or withheld
evidence, there would have been no probable cause for plaintiff’s prosecution. Id. at 1295.

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The court finds plaintiff has failed to meet this heavy burden. For one thing, the
district judge states he is applying the reasonable doubt standard in his order. This is not the
same as the initial finding of probable cause discussed in Pierce. Also, as stated in the
companion order dealing with Idabel’s motion for summary judgment, the court gives no
weight to the purported factual findings in #59-5. The state court order did not result from
a contested proceeding, but from a joint motion. Factual findings were not necessary to
dismiss the criminal charges if the State had simply dismissed them.
Even giving the factual findings some weight the court finds them insufficient in the
present context. First, the district court states they derive from “[t]he testimony of the former
Mayor and the present Mayor.” The “present Mayor” is defendant Foshee-Thomas, and
therefore it is critical to differentiate what information was in her knowledge. This has not
been done. Foshee-Thomas did testify that during the investigation she did not relate the
district court’s “factual findings” to the attorney-investigator (Margaret Love) or the OSBI.
(#59-3 at 198.11-17). She also testified, however, that she did not recall those things. (Id.
at 198-25 – 199.2).2
In his affidavit (#51-1) Bruce Willingham (editor of the McCurtain Daily Gazette)
states that he learned from a volunteer firefighter of a separate IFD bank account with no

2

To be clear, Foshee-Thomas could not have conveyed “the district court’s factual findings” to
anyone, of course, because they were generated later. The issue is whether she had knowledge of the
underlying information and failed to convey exculpatory information. Plaintiff has not proved that she did.

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oversight. He first asked Idabel Police Chief Jim Coffman3 to request an FBI probe.
Willingham then reconsidered and went to the McCurtain County District Attorney. He
explicitly states “I never spoke with Mayor Tina Foshee-Thomas before asking for an OSBI
investigation.” Additionally, “I requested that the entire Department be investigated, not any
individual.”
In her affidavit (#51-2), Foshee-Thomas says she first became aware of the OSBI
investigation when told by Police Chief Coffman. Upon being presented with one of
plaintiff’s time sheets she had stated that plaintiff “had never been approved to be paid for
any hours that he did not actually work.” Upon learning that plaintiff allegedly was
requesting to be paid for hours that he did not work, she consulted with an attorney who
handled employment issues for the city and was advised not to pay him for the hours claimed
that the did not work. Most pertinently, “[m]y only involvement in the criminal case was to
provide documents when requested and to testify when compelled to do so.” Plaintiff has
not raised a genuine issue of material fact to the contrary.4
At the pretrial conference, the court granted defendant Foshee-Thomas’s motion for
summary judgment as to plaintiff’s claim for intentional infliction of emotional distress
against Foshee-Thomas in her individual capacity. The court now memorializes the ruling.

3

Incorrectly called “Idabel Fire Chief” in the affidavit.

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In the alternative, the court finds the mayor’s actions of providing facts upon which a criminal
prosecution was based were essentially those of a private citizen and thus were not performed under color
of state law. See Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980). No conspiratorial conduct has been
proven.

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Plaintiff has not demonstrated conduct by Foshee-Thomas “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Roberts v. International Business
Machines Corp., 733 F.3d 1306, 1311 (10th Cir.2013)(quoting Breeden v. League Servs.
Corp., 575 P.2d 1374, 1378 (Okla.1978)).
It is the order of the court that the motion of the defendant Foshee-Thomas for
summary judgment (#50) is hereby GRANTED.
ORDERED THIS 23rd DAY OF FEBRUARY, 2016.

Dated this 23rd day of February, 2016.

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