Chancellor v. Town of Sportsmen Acres et al

Filing 33

OPINION AND ORDER by Judge John E Dowdell The Motion for Summary Judgment by Defendants Rex Morgan, Dennis Logan, and Dusty Brower (Doc. 14) is granted as to plaintiff's § 1983 claims. The Motion for Summary Judgment by Defendant Tow n of Sportsmen Acres (Doc. 12) is moot to the extent it seeks summary judgment as to plaintiff's Burk claim. Plaintiff's Motion for Partial Summary Judgment, and Brief in Support (Doc. 17) is denied to the extent it seeks summary judgment as to her § 1983 claims and moot as to her Burk claim. Defendants' Motion in Limine (Doc. 16) and plaintiff's Motion in Limine and Brief in Support (Doc. 18) are moot. The plaintiff's state law Burk claim is hereby remanded to t he Mayes County District Court ; remanding case (terminates case) ; finding as moot 12 Motion for Summary Judgment; granting 14 Motion for Summary Judgment; finding as moot 16 Motion in Limine; denying 17 Motion for Partial Summary Judgment; finding as moot 18 Motion in Limine (Re: 2 Notice of Removal ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
RENA CHANCELLOR,
Plaintiff,
v.
TOWN OF SPORTSMEN ACRES, et al.,

Defendants.

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Case No. 11-CV-762-JED-FHM

OPINION AND ORDER
The Court has for its consideration the following submissions by the parties: Plaintiff’s
Motion for Partial Summary Adjudication, and Brief in Support (Doc. 17), Motion for Summary
Judgment by Defendant Town of Sportsmen Acres (Doc. 12), and Motion for Summary
Judgment by Defendants Rex Morgan, Dennis Logan, and Dusty Brower (Doc. 14).
Background
Plaintiff, Rena Chancellor, formerly the Town Clerk of the defendant Town of Sportsmen
Acres (“Sportsmen Acres” or the “Town”), brings this lawsuit against Sportsmen Acres, and Rex
Morgan, Dennis Logan, and Dusty Brower (collectively, the “individual defendants”).
Sportsmen Acres is a municipal corporation organized under the laws of the State of Oklahoma,
and located in Mayes County. Sportsmen Acres is governed by a Board of Trustees (the
“Board”) comprised of four Board members. The individual defendants are public officials of
Sportsmen Acres. Specifically, Rex Morgan is the current Mayor and a Board member, Dennis
Logan is the former Mayor and a former Board member, and Dusty Brower is a former Board
member. The individual defendants were, at all times relevant to this litigation, members of the

Board.1 Chancellor was the Town Clerk for Sportsmen Acres from May, 2005 to December,
2010.
During her time as Town Clerk, Chancellor worked closely with Mayor Logan. Their
relationship was not without conflict. Among other things, the two disagreed about the extent of
the Mayor’s control over Chancellor’s duties as Town Clerk. In addition, Logan was, at some
time prior to November of 2010, allegedly interested in cutting Chancellor’s hours to reduce the
town budget. In the months leading up to November of 2010, Chancellor complained to the City
Attorney, Lisa Bohannon, on several occasions about Mayor Logan’s behavior toward
Chancellor.

Chancellor decided that Logan should be removed as Mayor.

To that end,

Chancellor drafted a statement which detailed all of her complaints against Logan.

On

November 23, 2010, Chancellor read her statement (hereinafter referred to as the “speech” or the
“statement”) to the Board and the public in attendance at a town meeting of the Board. (See Doc.
19-2). Among the topics in her statement, Chancellor alleged that Mayor Logan had engaged in
bullying behavior towards her, impersonated a police officer, and destroyed a computer cable
owned by the Town.
Chancellor’s service as Town Clerk ended shortly thereafter, on December 14, 2010.
Specifically, the Board announced during the course of the December 14, 2010 Board meeting
that the Board was terminating Chancellor’s employment, with two weeks notice from that date.
Chancellor did not resume her duties after the December 14 meeting. Chancellor claims that she
was fired by the Board as a result of her statement given during the November 23, 2010 Board
meeting.

As a result of her termination, Chancellor brought the instant lawsuit against

Sportsmen Acres and the individual defendants, asserting claims under 42 U.S.C. § 1983 and
1

The fourth Board member at the time of Chancellor’s termination, David Hurst, has not been
named as a defendant.
2

Oklahoma common law. As noted, Chancellor, Sportsmen Acres, and the individual defendants
each filed motions for summary judgment.
Summary Judgment Standards
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, the courts
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477
at 251-52. The evidence of the non-movant is to be taken as true, and all justifiable inferences
are to be drawn in non-movant’s favor. Anderson, 477 U.S. at 255; see Ribeau v. Katt, 681 F.3d
1190, 1194 (10th Cir. 2012). “Credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment. . . .” Anderson, 477 U.S. at 255. “[A]t the summary
judgment stage the judge's function is not himself 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.
“When the moving party has carried its burden under Rule 56[a], its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (citations
omitted). When the record, taken as a whole, “could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Id. (quotations omitted). “The mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there

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must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. In essence, the inquiry for the Court is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at 250. In its review, the Court construes the record in
the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d
1249, 1251 (10th Cir. 1998).
Analysis
I.

Chancellor’s Section 1983 Claims against the Individual Defendants
A. Individual Capacity Claim
Chancellor’s § 1983 claim against the individual defendants in their individual capacity is

based upon an alleged deprivation of her free speech rights under the First Amendment to the
United States Constitution.
“[A] public employee does not relinquish First Amendment rights to comment on matters
of public interest by virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140
(1983). Indeed, the First Amendment protects public employees from adverse employment
actions in retaliation for their exercise of free speech. Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968). When analyzing a free speech claim based on retaliation by an employer, the Tenth
Circuit applies a five-prong test which has been distilled from Pickering and Garcetti v.
Ceballos, 547 U.S. 410 (2006), a subsequent First Amendment retaliation case. See Couch v. Bd.
of Trs. of the Mem'l Hosp., 587 F.3d 1223, 1235 (10th Cir. 2009). The Garcetti/Pickering test
includes the following inquiries:
(1) whether the speech was made pursuant to an employee's official duties; (2)
whether the speech was on a matter of public concern; (3) whether the
government's interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff's free speech interests; (4) whether
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the protected speech was a motivating factor in the adverse employment action;
and (5) whether the defendant would have reached the same employment decision
in the absence of the protected conduct.
Leverington v. City of Colorado Springs, 643 F.3d 719, 724 (10th Cir. 2011). The first three
parts of the Garcetti/Pickering test are issues of law for the Court to decide.

Dixon v.

Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009).
The individual defendants argue that summary judgment is appropriate because
Chancellor’s speech was pursuant to her official duties and the matters on which she spoke were
not of public concern. For reasons stated below, the Court finds that the subjects of Chancellor’s
speech were not of public concern, and as such, her First Amendment rights were not violated.
Whether Ms. Chancellor’s speech was a matter of public concern is a question of law.
Leverington, 643 F.3d at 727 (citing Baca v. Sklar, 398 F.3d 1210, 1219 (10th Cir. 2005)).
“Matters of public concern are those of interest to the community, whether for social, political, or
other reasons.” Brammer–Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir.
2007) (internal quotation marks omitted); see also City of San Diego v. Roe, 543 U.S. 77, 83–84
(2004) (“[P]ublic concern is something that is a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public at the time of publication.”).
“Whether an employee's speech addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the whole record.” Connick, 461
U.S. at 147–48. “Although speech related to internal personnel disputes ordinarily does not
involve public concern, speech which discloses any evidence of corruption, impropriety, or other
malfeasance on the part of city officials ... clearly concerns matters of public import.” Dill v.
City of Edmond, 155 F.3d 1193, 1202 (10th Cir. 1998). Generally speaking, courts construe
public concern “very narrowly.” Flanagan v. Munger, 890 F.2d 1557, 1563 (10th Cir. 1989).

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The parties have condensed plaintiff’s November 23, 2010 statement before the Board
into three categories: complaints about workplace treatment; allegations that Mayor Logan
impersonated a police officer; and Logan’s cutting of a computer cable (i.e. destruction of town
property). Each is hereafter evaluated as to whether they are of public concern.
1.

Workplace treatment

Chancellor complained of mistreatment by Logan in the workplace, which included
alleged verbal abuse and bullying behavior. The Tenth Circuit has been clear that “speech
relating to internal personnel disputes and working conditions ordinarily will not be viewed as
addressing matters of public concern.” David v. City & Cnty. of Denver, 101 F.3d 1344, 1355
(10th Cir. 1996). Recently, in Morris v. City of Colorado Springs, 666 F.3d 654 (10th Cir.
2012), the Tenth Circuit addressed a nurse’s complaints, which alleged that she was subjected to
demeaning comments, being flicked in the head by a doctor with his finger, and being hit by
bodily tissue thrown at her by a doctor. The court held that her notice to the hospital of these
issues did not raise an issue of public concern. Id. at 663. Given the Tenth Circuit’s holding in
Morris and the conduct at issue in that case, the Court finds that the matters raised in
Chancellor’s speech regarding work place treatment do not rise to the level of being a public
concern.
2.

Impersonating a Police Officer

Chancellor made hearsay allegations that she had been told of an instance where Logan
was impersonating a police officer through his use of a town police cruiser. The individual
defendants argue that the Board was already aware of this allegation, thereby making the
allegation of no interest to the public at the time of Chancellor’s statements to the Board.

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Chancellor responds that the record does not support the individual defendants’ allegation that
the Board was already aware of Chancellor’s concern.
This Court has examined the materials submitted in connection with the parties’ summary
judgment briefing and has found that it is unclear, based upon the evidence submitted, whether
the Board was aware of the allegation that Logan had been impersonating a police officer.
Regina Phillips testified that David Hurst, a Board member at the time of Chancellor’s statement,
stated that he was “aware of some of the things” included in Chancellor’s speech. (Doc. 13-28).
This statement alone, assuming it to be admissible as non-hearsay, does not establish that the
Board, or any member of the Board, was aware, prior to the November 23, 2010 meeting, of the
allegation that Logan had been impersonating a police officer. The Court must therefore address
whether Logan’s alleged conduct is a matter of public concern under the assumption that it was
news to the Board.
Chancellor’s written statement which she read to the Board stated the following regarding
Logan’s alleged impersonation of an officer:
[Logan] would come out in the night and hide from the police officer and spy on
them [sic]. He has even come out and sat in the store parking lot in a patrol car,
as though he was [sic] on police duty. One of the Mayes county deputies said he
stopped about two O clock [sic] in the morning to talk [to] the officer on duty and
it was Dennis [Logan] sitting in the police car.
(Doc. 15-13).2 This statement alone – while it does suggest unusual behavior on the part of the
Town’s Mayor – does not establish “corruption, impropriety, or other malfeasance” on Logan’s
part. See Dill, 155 F.3d at 1202. “[I]t is not always enough that ‘its subject matter could in
[certain] circumstances, [be] the topic of a communication to the public that might be of general

2

It is undisputed that a police cruiser was kept at Logan’s personal residence. The Town had a
long-standing practice of keeping police cruisers at the private residences of Town officials who
lived in Sportsmen Acres because the Town had no location to secure the cruisers. (Doc. 17-5).
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interest.’ What is actually said on that topic must itself be of public concern.” Wilson v. City of
Littleton, Colo., 732 F.2d 765, 769 (10th Cir. 1984) (quoting Connick, 461 U.S. at 148 n.8)
(italics added).
3.

Cutting of Computer Cable

In Chancellor’s statement to the Board, she discussed Logan’s cutting of a $40 computer
cable which provided internet connectivity to the Town’s police department. The individual
defendants again argue that the Board was already aware of this conduct, making it no longer of
public concern, assuming it had ever been.

This time, the record evidence supports the

individual defendants’ contention.
The individual defendants state that, prior to the November 23, 2010 meeting, the Chief
of Police informed the Board of the cutting of the internet cable. (Doc. 15, at 3, Doc. 15-14).
Chancellor does not dispute this fact. (Doc. 21, at 3).3 To qualify for first amendment protection
in this context, the speech must be “a subject of general interest and of value and concern to the
public at the time of publication.” Roe, 543 U.S. at 83–84. Here, Chancellor’s statements
regarding the alleged destruction of property had been publicly revealed in a prior Board meeting
by the Chief of Police. Because this information was already known to the Board and the
general public at time, Chancellor’s statements related to the alleged destruction of property were
not of public concern.
4.

Chancellor’s Motives

“In analyzing whether speech constitutes a matter of public concern, we may focus on the
motive of the speaker and whether the speech is calculated to disclose misconduct or merely
3

Chancellor’s response to the individual defendants’ motion for summary judgment
incorporates by reference her response to the Town of Sportsmen Acres motion for summary
judgment, as the statement of facts in both motions for summary judgment are identical. (Doc.
22, at 1-2).
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deals with personal disputes and grievances unrelated to the public's interest.” Leverington, 643
F.3d at 727 (internal quotation omitted; emphasis in original). Thus, in addition to whether
Chancellor’s statements were, in and of themselves, of public concern, the Court must consider
Chancellor’s motivations in making the statement. Chancellor testified that she was aware, prior
to her statement to the Board, that Logan desired to cut her hours:
Q

Okay. At any time were you aware of any efforts to reduce the number of
hours you were working?

A

You mean that there at the end?

Q

At any time.

A

Oh, yeah, Dennis wanted to.

Q

And when did you first learn of that?

A

He brought it up in a meeting, just out of the blue, but I don’t remember
which meeting it was. He called it “budget cuts,” that he wanted to do
budget cuts in operation hours in the office.

Q

Okay. How far before your termination do you believe that this was?

A

Two or three months.

(Doc. 15-7). Based upon Chancellor’s knowledge regarding potential cuts to her hours, she may
have desired to take action to prevent such cuts. This possible motive for Chancellor’s speech to
the Board reinforces the Court’s conclusion that her statement was in fact not of public concern.
Having determined that Chancellor’s speech was not of public concern, the individual
defendants are entitled to summary judgment with respect to Chancellor’s § 1983 claim against
them in their individual capacity. See Leverington, 643 F.3d at 728 (“Because Ms. Leverington's
statement as alleged was not on a matter of public concern, the district court properly dismissed
her claim against Memorial, and we need not reach the other prongs of the Garcetti/Pickering

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test.”); Brammer–Hoelter, 492 F.3d at 1203 (“If the speech is not a matter of public concern,
then the speech is unprotected and the inquiry ends.”).4
B. Official Capacity Claim
Plaintiff is also pursuing a claim against the individual defendants in their official
capacity, which seeks prospective injunctive relief pursuant to § 1983 for the alleged violation of
her First Amendment rights.

Such official capacity claims are permitted in limited

circumstances, see Muscogee (Creek) Nation v. Oklahoma Tax Comm'n, 611 F.3d 1222 (10th
Cir. 2010), however, having found no First Amendment violation, plaintiff’s official capacity
claim is likewise subject to summary judgment. For that same reason, the Court also need not
address the issue of qualified immunity arguably raised by the individual defendants. See, e.g.,
Allen Oil & Gas, LLC v. Klish, 113 F. App'x 869, 870 (10th Cir. 2004).
II.

Chancellor’s Burk Tort Claim against Sportsmen Acres
In addition to her First Amendment claims brought under § 1983, plaintiff alleges a claim

against Sportsmen Acres for common law wrongful termination under Burk v. K-Mart Corp.,
770 P.2d 24, also known as a “Burk claim.” In this removed action, plaintiff’s state law tort
claim is before the Court by virtue of the Court’s supplemental jurisdiction under 28 U.S.C. §
1367. As a court of limited jurisdiction, this Court is obligated to examine whether it should
continue to exercise supplemental jurisdiction over plaintiff’s state law Burk claim. See Estate of
Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1168 (10th Cir. 2004)
(finding lack of supplemental jurisdiction over state law claims sua sponte).

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Having found no First Amendment violation, the Court also need not address the issue of
qualified immunity. See, e.g., Allen Oil & Gas, LLC v. Klish, 113 F. App'x 869, 870 (10th Cir.
2004).
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In light of this Court’s determination that summary judgment should be, and is, granted
with respect to plaintiff’s § 1983 claims – the basis for the Court’s original jurisdiction in this
case – there are no remaining federal question claims in this case. In the notice of removal, the
sole basis for jurisdiction alleged was the existence of a federal question; namely plaintiff’s §
1983 claims. Neither party has asserted diversity as a basis for jurisdiction, and it appears from
the record that diversity is not present in this case. Under the circumstances presented here, the
Tenth Circuit has recognized that the preferred practice is to decline to exercise supplemental
jurisdiction over a remaining state law claim where a basis for original jurisdiction is no longer
present. Gaston v. Ploeger, 297 F. App’x 738, 746 (10th Cir. 2008) (affirming district court’s
decision to decline supplemental jurisdiction over state law negligence claim where summary
judgment was granted as to § 1983 claims against political subdivision of state); Lawler v.
QuikTrip Corp., 172 F. App'x 873, 877 (10th Cir. 2006) (affirming district court’s summary
judgment order dismissing state law claims under 28 U.S.C. § 1367); see also Smith v. City of
Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (“[w]hen all federal claims have been dismissed, the
court may, and usually should, decline to exercise jurisdiction over any remaining state law
claims”). Instead of dismissing plaintiff’s state law Burk claim without prejudice, this remaining
state law claim shall be remanded to the Mayes County District Court for further proceedings.
See Schachter v. PacifiCare of Oklahoma, Inc., 923 F. Supp. 1448, 1453 (N.D. Okla. 1995).
IT IS THEREFORE ORDERED that the Motion for Summary Judgment by
Defendants Rex Morgan, Dennis Logan, and Dusty Brower (Doc. 14) is granted as to plaintiff’s
§ 1983 claims. The Motion for Summary Judgment by Defendant Town of Sportsmen Acres
(Doc. 12) is moot to the extent it seeks summary judgment as to plaintiff’s Burk claim.
Plaintiff’s Motion for Partial Summary Judgment, and Brief in Support (Doc. 17) is denied to

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the extent it seeks summary judgment as to her § 1983 claims and moot as to her Burk claim.
Defendants’ Motion in Limine (Doc. 16) and plaintiff’s Motion in Limine and Brief in Support
(Doc. 18) are moot.
IT IS FURTHER ORDERED that the plaintiff’s state law Burk claim is hereby
remanded to the Mayes County District Court.
SO ORDERED this 3rd day of June, 2013.

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