Denton v. Yancey et al
Filing
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OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 40 Motion for Summary Judgment; granting 49 Motion to Strike Document(s) (Documents Terminated: 47 First MOTION in Limine , 56 Third MOTION in Limine , 57 MOTION in Limine , 52 Second MOTION in Limine ) (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MIKE DENTON,
Plaintiff,
v.
DAN YANCEY, individually and in
his official capacity;
RODNEY RAY, individually and in
his official capacity; and
CITY OF OWASSO, OKLAHOMA,
a municipal corporation,
Defendants.
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Case No. 13-CV-709-TCK-TLW
OPINION AND ORDER
Before the Court are Defendants’ Motion for Summary Judgment and Brief in Support (Doc.
40) and Plaintiff’s Motion to Strike Portions of Defendants’ Reply in Support of Summary Judgment
(Doc. 49).
I.
Background
Plaintiff Mike Denton, a police officer for the City of Owasso, Oklahoma (“City”) filed this
action against the City; the police chief, Dan Yancey (“Yancey”); and the city manager, Rodney Ray
(“Ray”) asserting claims under 42 U.S.C. §§ 1983 and 1981. Specifically, Plaintiff alleges three
claims: (1) First Amendment retaliation claim based on his speech; (2) First Amendment retaliation
claim based on his right of association; and (3) Fourteenth Amendment due process claim.
A.
The Incident
For purposes of summary judgment, the following facts are either undisputed or taken in a
light most favorable to Plaintiff. Plaintiff has been employed by the City as a police officer since
February 1994. On June 30, 2011, Plaintiff and fellow officers Jonathan Foyil (“Foyil”) and H.D.
Pitt (“Pitt”) were involved in the arrest of Bryan Spradlin (“Spradlin”) (the “Incident”). While
Plaintiff and Foyil were escorting Spradlin into the police station, Spradlin allowed his body to go
limp, causing Spradlin to fall forward. Foyil and Plaintiff stumbled forward over Spradlin. Video
footage shows Plaintiff step on Spradlin’s head before the officers picked Spradlin up off the
ground. Once inside the station, video footage shows Plaintiff lifting Spradlin’s handcuffed arms
up and over the back of his head and purposefully striking Spradlin in the face three times with the
back of his arm while escorting Spradlin through a sally-port. During the shift, Foyil told Pitt – who
was also Foyil’s supervisor – that he was concerned about Plaintiff’s strikes to Spradlin’s face. Pitt
shared Foyil’s concerns with Plaintiff, and Pitt and Plaintiff discussed the Incident. Plaintiff told
Pitt he struck Spradlin in the face because he thought Spradlin was about to spit on him.
B.
The Investigation
On July 26, 2011, Officer Foyil sent an e-mail to Pitt regarding the Incident indicating that
“by policy, [he] was required to notify [his] immediate supervisor” and wanted to “have a trail that
[he] fulfilled his responsibilities by informing” his supervisor. (Ex. 8 to Defs.’ Mot. for Summ. J.)
Pitt forwarded the e-mail to Captain Tracy Anderson, who forwarded the e-mail to Yancey. Upon
receiving the e-mail, Yancey reviewed the video footage and initiated an investigation into the
Incident to determine whether Plaintiff’s actions violated the City’s Use of Force and Weapons
policy.
Yancey engaged an independent investigator, Captain Greg Sipes of the Broken Arrow
Police Department, to investigate the Incident. On September 21, 2011, Captain Sipes issued a
written report concluding that “some or all of the force applied in this incident could be ruled
excessive.” (Ex. 11 to Defs.’ Mot. for Summ. J.) On October 3, 2011, Yancey signed a City of
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Owasso Proposed Disciplinary Action Notice, recommending Plaintiff’s termination. A variety of
interim disciplinary hearings were held before Ray approved a City of Owasso Disciplinary Action
Approval, recommending Plaintiff’s termination, on November 4, 2011.
C.
The Arbitration
Plaintiff and Owasso Fraternal Order of Police Lodge 149 (“Union”) subsequently filed a
grievance, claiming there was no just cause for Plaintiff’s termination. An arbitration hearing was
held in March 2012, and the arbitrator issued his award on June 20, 2012. The arbitrator ultimately
concluded that “a preponderance of the evidence does establish that [Plaintiff’s] misconduct during
the transport of [Spradlin] was unnecessary and unreasonable, but was not excessive force within
the meaning of existing case law. OPD’s action of termination shall be voided and discipline will
be reduced to a written reprimand.” (Ex. 18 to Defs.’ Mot. for Summ. J. at 20.) The City later
appealed the arbitration decision in the District Court of Tulsa County. The trial court vacated the
arbitration award as contrary to public policy, but such ruling was ultimately reversed by the
Oklahoma Court of Civil Appeals. Therefore, the arbitrator’s decision was ultimately upheld on
appeal, and Plaintiff remains employed as a police officer by the City today.
D.
Release of Video Footage
In December 2011, the Tulsa World filed suit against the City in the District Court of Tulsa
County to obtain video of the Incident, after the City refused to provide the footage pursuant to the
Oklahoma Open Records Act. The City defended the lawsuit until July 10, 2012, but then
voluntarily produced the video to the Tulsa World. Plaintiff alleges the release of the video footage
coincided with the arbitration award in Plaintiff’s favor and was a retaliatory act by the City.
Defendants argue that the video was released at that time because the arbitration had concluded, the
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City had obtained a release of liability from Spradlin, and it became apparent that the video footage
qualified as an open record to which the Tulsa World was entitled.
II.
Standard of Review
Summary judgment is proper only if “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). The moving
party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite
Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court resolves all factual disputes and
draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking
to overcome a motion for summary judgment may not “rest on mere allegations” in its complaint
but must “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). The party seeking to overcome a motion for summary judgment must also make a showing
sufficient to establish the existence of those elements essential to that party’s case. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).
III.
Plaintiff’s Motion to Strike
Plaintiff filed a Motion to Strike Portions of Defendants’ Reply in Support of Summary
Judgment (Doc. 49), requesting the Court strike the portions of Defendants’ reply addressing new
allegations of excessive force against Plaintiff that arose earlier this year. Defendants did not
respond to Plaintiff’s motion. The Court finds the new allegations to be wholly irrelevant to the
claims raised by Plaintiff in this proceeding, and Plaintiff’s Motion to Strike (Doc. 49) is granted.
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IV.
Defendants’ Motion for Summary Judgment
A.
First Amendment Retaliation - Speech
Plaintiff alleges Defendants retaliated against him for his speech at the arbitration when the
City released the video footage of the Incident to the Tulsa World. The Supreme Court has long
recognized that “the government's interest in regulating the speech of its employees differs
significantly from its interest in regulating the speech of the public in general.” Deschenie v. Bd.
of Educ., 473 F.3d 1271, 1276 (10th Cir. 2007). When a citizen accepts public employment, “‘the
citizen by necessity must accept certain limitations on his or her freedom.’” Brammer–Hoelter v.
Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007) (quoting Garcetti v. Ceballos, 547
U.S. 410, 418 (2006)). When faced with a First Amendment claim by a public employee, “courts
must balance the First Amendment interests of that employee, speaking as a concerned citizen, with
the government’s interests in promoting the efficiency of the public services it performs through its
employees.” Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014). To balance these
interests, courts utilize a five-part test based on the Supreme Court cases of Garcetti and Pickering
v. Board of Education, 391 U.S. 563 (1968). See Brammer-Hoelter, 492 F.3d at 1202-03. Under
the Garcetti/Pickering test, a First Amendment retaliation claim has five elements:
(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 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.
Cypert v. Ind. Sch. Dist No. 1-050 of Osage Cnty., 661 F.3d 477 (10th Cir. 2011). “The first three
steps are to be resolved by the district court, while the last two are ordinarily for the trier of fact.”
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Brammer-Hoelter, 492 F.3d at 1202-03. For purposes of this Opinion and Order only, the Court
assumes Plaintiff can satisfy the first three elements of the Garcetti/Pickering analysis and proceeds
to the fourth element.
1.
Speech at Issue
Prior to addressing the fourth element, some discussion of the speech underlying Plaintiff’s
claim is necessary. In his Complaint, Plaintiff alleges only that “[a] substantial and motivating
factor in Defendants’ retaliation against Plaintiff were statements he made that were protected by
the First Amendment Right of Free Speech.” (Compl. ¶ 28.) As a result, some ambiguity exists
regarding the exact nature of such speech. In their motion, Defendants cite six instances of speech
which they believe underlie Plaintiff’s retaliation claim. However, in his response, Plaintiff
unequivocally indicates that his sworn testimony at the arbitration is the only speech at issue. (Pl.’s
Resp. to Defs.’ Mot. for Summ. J. at 28.) Accordingly, the Court has only considered Plaintiff’s
testimony at the arbitration in analyzing Plaintiff’s retaliation claim.
2.
Substantial or Motivating Factor
The fourth element of the Garcetti/Pickering test requires Plaintiff to prove that his protected
speech was a substantial or motivating factor in the alleged adverse employment decision.
a.
Adverse Employment Decision
The “adverse employment decision” concept requires some initial discussion. The “adverse
employment decision” standard in the context of a First Amendment retaliation claim is less
strenuous than that in the Title VII context. Baca v. Sklar, 398 F.3d 1210, 1220-21(10th Cir. 2005).
As examples, the Tenth Circuit has found the following employment decisions could constitute
impermissible retaliation: (1) removal of job duties, (2) a job reprimand, (3) a poor performance
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evaluation, and (4) an involuntary transfer to another facility. See Schuler v. City of Boulder, 189
F.3d 1304, 1310 (10th Cir. 1999). Additionally, the Tenth Circuit has held that “actions short of an
actual or constructive employment decision can in circumstances violate the First Amendment.”
Morfin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1437 n.3 (10th Cir. 1990) (implying plaintiffs
could pursue a First Amendment retaliation claim where they allegedly were subjected to
“substantial harassment and abuse.”)
Plaintiff has never clearly indicated which adverse employment decision underlies his
retaliation claims. In his response to Defendants’ motion, Plaintiff appears to allege two instances
of retaliation: (1) the investigation into the Incident and Plaintiff’s subsequent termination; and (2)
the release of the video to the media following the arbitration. Because Plaintiff has limited the
speech at issue to his speech at the arbitration – which was after the investigation into the Incident
and Plaintiff’s termination – the release of the video to the media is the only possible adverse
employment decision.1
b.
Causation
“Although causation is normally a question of fact to be decided by the jury, a plaintiff
opposing summary judgment must show that there is ‘evidence (either of a direct or indirect nature)
from which a reasonable jury could find the required causal link between the protected disclosures
. . . and the allegedly retaliatory actions.’” Payne v. D.C., 741 F. Supp. 2d 196, 219 (D.D.C. 2010)
(quoting Williams v. Johnson, 701 F. Supp. 2d 1, 17 (D.D.C. 2010)). In his response to Defendants’
motion, Plaintiff argues “Defendants had the clear option of putting this matter behind them for all
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For purposes of this Opinion and Order, the Court assumes release of the video footage
could constitute an adverse employment action.
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involved . . . . The Defendants chose not to do that, but rather chose to release videos to the public
that were highly embarrassing to the Plaintiff.” (Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 29.) This
is the only “evidence” Plaintiff offers of a causal link between his testimony at the arbitration and
the release of the video.
To prevail on his First Amendment retaliation claim, Plaintiff must provide some evidence
of a connection between his speech and the adverse action. “Mere speculation fails to create a
genuine issue of material fact to avoid summary judgment.” Id. at 220; see also Huskey v. City of
San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (affirming summary judgment for defendant on
plaintiff’s retaliation claim where claim rested on logical fallacy of post hoc, ergo propter hoc, i.e.
“after this, therefore because of this”). Plaintiff simply has not offered any evidence. Nothing in
the record indicates that Plaintiff’s testimony at the arbitration was a substantial or motivating factor
in the release of the video. Instead, the evidence available suggests that the conclusion of the
arbitration and the pending lawsuit against the City motivated the release of the video, not Plaintiff’s
speech. At the time the video was released, the arbitration had concluded and Plaintiff’s counsel had
released a copy of the arbitration award – which thoroughly described the events depicted in the
video – to the Tulsa World.
Based on the evidence provided, no reasonable jury could find that Plaintiff’s speech at the
arbitration was a substantial or motivating factor in prompting the release of the arrest video.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s First Amendment
retaliation claim based on his speech, and the Court need not reach the question of whether
Defendants Yancey and Ray are entitled to qualified immunity.
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B.
First Amendment Retaliation - Association
“The First Amendment protects the right of a public employee to join and participate in a
labor union.” Morfin, 906 F.2d at 1438. “Although ‘an employer is free to communicate to his
employees any of his general views about unionism or any of his specific views about a particular
union,’ the employer may not retaliate against an employee for engaging in union activity . . . .”
Cillo v. City of Greenwood Vill., 739 F.3d 451 (10th Cir. 2013) (quoting NLRB v. Gissel Packing
Co., 395 U.S. 575, 618 (1969)). The Garcetti/Pickering analysis also applies to First Amendment
claims for retaliation based on association. However, the Tenth Circuit has held that “[i]n the
specific context of public employee labor unions, this Court has rejected the requirement that a
worker demonstrate that his association with the union be a matter of public concern.” Shrum v. City
of Coweta, 449 F.3d 1132, 1138 (10th Cir. 2006). The Tenth Circuit also found that courts need not
balance the government’s interests against the employee’s interests in union association where a
collective bargaining agreement has been signed. Id. at 1139 (“Where a public employer has
negotiated with an employee union and signed a collective-bargaining agreement, it has
contractually agreed to the legitimacy of the union and its employees’ association with the union.
The public employer has presumably received the benefit of the bargain . . . .”) Accordingly, in the
context of a retaliation claim based on association, a plaintiff need only satisfy the first, fourth, and
fifth prongs of the Garcetti/Pickering test. See supra Part II.A.
Plaintiff alleges he was an active participant in the Union prior to his termination. (Pl.’s
Resp. to Defs.’ Mot. for Summ. J. 20.) Specifically, Plaintiff cites a July 7, 2011 e-mail he sent in
which he urged the union members not to ratify the collective bargaining agreement proposed by
the City and “did not hesitate to criticize City management’s position.” (Id. at 23.) Plaintiff
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contends – but fails to cite any evidence – that Yancey admitted to seeing the e-mail. Plaintiff
argues Yancey subsequently retaliated against Plaintiff by investigating the Incident and, ultimately,
recommending Plaintiff’s termination. Plaintiff alleges he was subjected to further retaliation when
Defendants released the video to the Tulsa World.
Defendants claim that even if Plaintiff’s union association is protected by the First
Amendment, Plaintiff has failed to provide specific evidence that his association with the union was
a substantial or motivating factor in the adverse employment action taken against him.
1.
Substantial or Motivating Factor
As noted above, Plaintiff must provide evidence of a causal link between his association with
the union and the adverse employment action. Mere speculation or conjecture by Plaintiff alone will
not suffice. See Payne v. D.C., 741 F. Supp. 2d 196, 219-20 (D.D.C. 2010). Although Plaintiff has
alleged general union involvement, he offers only one specific incident to support his involvement
– the July 7, 2011 e-mail. Even assuming Yancey saw the e-mail, Plaintiff has not offered any
evidence that the July 7, 2011 e-mail motivated any adverse employment action.
No reasonable jury could find a causal link between Plaintiff’s Union activity and any of the
potential adverse employment actions (investigation into the Incident, Plaintiff’s termination, and
release of the video). See Bourgeault v. Pueblo Cnty., Colo., No. 11-CV-01792-RPM, 2013 WL
2468314, at *4 (D. Colo. June 7, 2013) (granting summary judgment on First Amendment
association claim where plaintiff supported her claim with only evidence of her union membership,
attendance at a “protest meeting,” and two stray union-related comments); Morris v. City of
McAlester, No. CIV-10-200-FHS, 2011 WL 4036161, at *2-3 (E.D. Okla. Sept. 12, 2011) (finding
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genuine issue of material fact as to causation where plaintiff, who served as president and vicepresident of union, alleged specific controversial activities taken in those roles).
Without articulating it in such terms, Plaintiff also argues that disparate treatment of officers
alleged to have used excessive force evidences retaliation. “When an employer disciplines an
employee who has engaged in protected activity more harshly than it treats similarly situated
employees who commit comparable or more serious offense, an inference of improper motive may
be drawn.” Cillo, 739 F.3d at 462. However, in comparing treatment of employees, the court’s job
is not to “second guess” whether the employer’s decision was “ultimately correct or wise. Rather,
we ask whether there is ‘some evidence of impermissible motives’ – in this case, retaliation for
Union activity.” Id.
Plaintiff relies on an incident from 2007, known as the “Bassuco incident” as evidence of
disparate treatment by the City. According to Plaintiff, the officers involved in the Bassuco incident
used greater force than Plaintiff used in the Incident, yet none of those officers were terminated. The
parties disagree as to the true nature of the Bassuco incident. Plaintiff claims the Bassuco incident
involved allegations of excessive force by officers, while Defendants claim the real concern was the
“un-cuffing [of] a controlled prisoner, who then attacked the officers.” (Defs.’ Reply at 8.) During
his deposition, Yancey testified regarding the nature of the Bassuco incident:
That particular case was a situation where they had uncuffed a prisoner that had
been secured after pepper-spraying him, taking him outside, lost control of him. He
got aggressive with the officers. And they had at that point, in my opinion, had the
right to use force. . . . So the conduct in that particular situation would have been
uncuffing the – or the misconduct would have been uncuffing the individual.
(Dep. of D. Yancey, Ex. 9 to Pl.’s Response, 12:22-13:8.) Plaintiff has not offered any evidence
which suggests the nature of the Bassuco incident was anything other than as Yancey testified. No
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evidence of an excessive force investigation following the Bassuco incident has been provided.
However, even if the Court construes the Bassuco incident in a light most favorable to Plaintiff, the
Court does not find treatment of the officers involved in the Bassuco incident to evidence any
impermissible motive by Defendants. Specifically, Plaintiff has not indicated whether the officers
involved in the Bassuco incident were also involved in union activities. Such fact is key when
comparing the Bassuco incident to the subject Incident. If the Bassuco officers were also involved
in union activities, the Bassuco incident cannot possibly give rise to any inference of an improper
motive by Defendants.
Based on the evidence provided, no reasonable jury could find that Plaintiff’s Union
involvement was a substantial or motivating factor in the investigation into the Incident, Plaintiff’s
termination, or the release of the arrest video. Accordingly, Defendants are entitled to summary
judgment on Plaintiff’s First Amendment retaliation claim based on his association. The Court need
not reach the question of whether Defendants Yancey and Ray are entitled to qualified immunity.
C.
Fourteenth Amendment - Due Process
In his response, Plaintiff concedes his Fourteenth Amendment due process claim, and
Defendants are entitled to judgment on such claim.
V.
Conclusion
Plaintiff’s Motion to Strike Portions of Defendants’ Reply in Support of Summary Judgment
(Doc. 49) is GRANTED. Defendants’ Motion for Summary Judgment and Brief in Support (Doc.
40) is GRANTED.
SO ORDERED this 23rd day of October, 2015.
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