Pennycuff v. Oklahoma Corporation Commission
Filing
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ORDER granting 13 Defendants' Motion to Dismiss (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 3/5/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JIM PENNYCUFF,
Plaintiff,
v.
JACK MCNUTT, in his individual
capacity and MIKE HENLEY,
in his individual capacity,
Defendants.
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Case No. CIV-14-949-M
ORDER
Before the Court is Defendants’ Motion to Dismiss, filed December 8, 2014. On January
8, 2015, plaintiff responded, and on January 15, 2015, defendants replied. Based on the parties’
submissions, the Court makes its determination.
I.
Introduction1
Plaintiff was employed with the Oklahoma Corporation Commission (“OCC”) from July
30, 2012 through December 10, 2013 as a motor vehicle enforcement officer. Plaintiff alleges
two separate instances where he informed his supervisor Sargent Gary Hewett (“Hewett”) of
wrongdoing by other OCC employees. The first instance was in or about August 2012 when
plaintiff alleges he informed his supervisor that he discovered a computer generated wagering
bracket created by OCC employee Ricky Lawrence (“Lawrence”) for personal use on one of the
OCC computers. Plaintiff alleges that Lawrence was subsequently promoted. Plaintiff next
alleges that in or about October 2012, he discovered and reported to Hewett that OCC employee
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The facts set forth in this introduction are taken from Plaintiff’s First Amended
Complaint.
Cheryl Harris (“Harris”) accepted beer from an Anheuser Bush delivery truck in return for
allowing overweight vehicles to pass through a weight station.
Plaintiff alleges that on November 26, 2013, he met with defendants Jack McNutt
(“McNutt”) and Mike Henley (“Henley”) to discuss an email stating that plaintiff had made a
disparaging remark about Hewett. Plaintiff alleges that he denied making the remark, and that
Henley told him that he was very promotable and his job was not in jeopardy. Plaintiff also
alleges that later on that same day he told McNutt about the illegal activities of Lawrence and
Harris. Plaintiff then alleges that he observed a change in McNutt’s conduct towards him, that
McNutt refused to speak to plaintiff after he informed McNutt of the other employees’ actions,
and that McNutt referred to him as “shit for brains” in front of other employees. Plaintiff alleges
that he was terminated from his employment on December 10, 2013.
Plaintiff alleges that reporting of the illegal activities impacting tax payer funds
constitutes protected free speech pursuant to the First Amendment; that he was exercising his
right to freedom of speech; and that his termination was in retaliation for exercising his
constitutional right of freedom of speech, which was a violation of 42 U.S.C § 1983. Defendants
now move this Court to dismiss plaintiff’s claim because (1) they are entitled to qualified
immunity; and (2) plaintiff has failed to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6).
II.
Discussion
A.
Treating Defendants’ Motion as a Motion for Summary Judgment
In his response, plaintiff asserts that the Court should convert defendants’ motion to
dismiss to a motion for summary judgment because defendants have presented matters outside of
the pleadings. See Federal Rule of Civil Procedure 12(d) (“If, on a motion under Rule 12(b)(6) or
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12(c), matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.”). The Court has
thoroughly reviewed defendants’ motion to dismiss, and while the Court finds that defendants
have presented a version of the facts that slightly differs from plaintiff’s alleged facts, these
slight differences can be excluded by this Court. The Court, therefore,
will not convert
defendants’ motion to dismiss to a motion for summary judgment.
B.
Qualified Immunity
Defendants assert that plaintiff’s 42 U.S.C. § 1983 claim should be dismissed because
they are entitled to qualified immunity. “When a defendant pleads qualified immunity, the
plaintiff has the heavy burden of establishing: (1) that the defendant's actions violated a federal
constitutional or statutory right; and (2) that the right violated was clearly established at the time
of the defendant's actions.” Scott v. Hern, 216 F.3d 897, 910 (10th Cir. 2000) (internal citations
omitted). “To be clearly established, ‘[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Gann v. Cline,
519 F.3d 1090, 1092 (10th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). A plaintiff can demonstrate that a constitutional right is clearly established “by reference
to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other
circuits.” Id. “The judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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Defendants assert that (1) they did not violate plaintiff’s First Amendment rights; and (2)
that the law is not clearly established as to whether defendants violated plaintiff’s First
Amendment rights. Plaintiff contends that his First Amendment right to freedom of speech was
violated because his speech related to a matter of public concern and that the law is clearly
established. In order for plaintiff’s First Amendment right to freedom of speech to have been
violated, the Court must determine if his speech was protected. To determine the scope of an
employee’s speech the Tenth Circuit uses the Garcetti-Pickering analysis.
First, the court must determine whether the employee speaks
pursuant to [his] official duties. If the employee speaks pursuant to
his official duties, then there is no constitutional protection because
the restriction on speech simply reflects the exercise of employer
control over what the employer itself has commissioned or created.
Second, if an employee does not speak pursuant to his official
duties, but instead speaks as a citizen, the court must determine
whether the subject of the speech is a matter of public concern. If
the speech is not a matter of public concern, then the speech is
unprotected and the inquiry ends. Third, if the employee speaks as
a citizen on a matter of public concern, the court must determine
whether the employee's interest in commenting on the issue
outweighs the interest of the state as employer. Fourth, assuming
the employee's interest outweighs that of the employer, the
employee must show that his speech was a “substantial factor or a
motivating factor in [a] detrimental employment decision. Finally,
if the employee establishes that his speech was such a factor, the
employer may demonstrate that it would have taken the same
action against the employee even in the absence of the protected
speech.
Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir. 2007)
(internal citations and quotations omitted).
“[I]f an employee engages in speech during the course of performing an official duty and
the speech reasonably contributes to or facilitates the employee's performance of the official
duty, the speech is made pursuant to the employee's official duties.” Id. Defendants contend that
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plaintiff’s speech was made pursuant to plaintiff’s role as a motor vehicle enforcement officer
and, therefore, is not considered protected speech. Plaintiff alleges in his First Amended
Complaint that he reported the incidents of Lawrence and Harris because he was a concerned
citizen and, therefore, his speech involved matters of public concern.
Defendants assert that plaintiff makes a broad allegation that his remarks were made as a
matter of public concern, but provides no factual allegation to support his claim. Defendants
further assert that, “[p]laintiff’s only concern was his desire to make his co-workers look bad in
the face of [p]laintiff’s own reprimand.”2 Def. Mot. Dis. at 9. Plaintiff, in his response, fails to
provide any assertion or analysis based on the Garcetti-Pickering framework as to how his
remarks were made outside of his official duties as a motor vehicle enforcement officer and as a
matter of public concern. The only response plaintiff provides which address defendants’
assertion that his comments were made pursuant to his official duties as a motor vehicle
enforcement officer is as follows:
If proven these facts establish a First Amendment violation
because the speech involved related to a matter of public concern.
“Matters of public concern” which are protected as free speech
under the First Amendment, are those of interest to the community,
whether for social, political or other reasons. Brammer-Hoelter v.
Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir, 2007)
[sic] Furthermore, the particular First Amendment violation
alleged by Plaintiff is clearly established. “Statements revealing
official impropriety usually involve matters of public concern for
protected speech purposes.” Id. at 1205; Lighton v. University of
Utah, 209 F.3d. [sic] 1213, 1224 (10th Cir. 2000) [sic]
Plf.’s Resp. at 6.
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Plaintiff takes issue with defendants’ assertion that plaintiff only made these remarks to
make his co-workers look bad and contends that this information is outside of the pleadings and
the Court should not consider this information. However, the Court finds that defendants are not
presenting any information that is outside of the pleadings, but contending that plaintiff’s
remarks are not protected speech because he did not make them as a matter of public concern.
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Having carefully reviewed plaintiff’s First Amended Complaint, and presuming all of
plaintiff’s factual allegations are true and construing them in the light most favorable to plaintiff,
the Court finds that plaintiff’s remarks concerning Lawrence and Harris’ actions were made
pursuant to his official duties as a motor vehicle enforcement officer and not as a matter of
public concern. Plaintiff conclusively without providing any factual or authoritative support
determines that his remarks were a matter of public concern and that as a result defendants
violated his First Amendment right.
In determining whether speech pertains to a matter of public
concern, the court may consider the motive of the speaker and
whether the speech is calculated to disclose misconduct or merely
deals with personal disputes and grievances unrelated to the
public’s interest. Statements revealing official impropriety usually
involve matters of public concern. Conversely, speech that simply
airs grievances of a purely personal nature typically does not
involve matters of public concern. In deciding what is a matter of
public concern, we are required to consider the content, form, and
context of a given statement, as revealed by the whole record.
Brammer-Hoelter, 492 F.3d at 1205 (internal citations and quotations omitted). Plaintiff alleges
in his First Amended Complaint that he advised McNutt of the illegal activities of Lawrence and
Harris after he had had a discussion with defendants regarding disparaging remarks he made
about Hewett. Looking at plaintiff’s First Amended Complaint as a whole, it reads as though
plaintiff was airing out a personal grievance for events that occurred more than a year prior to
plaintiff having the discussion with defendants. Furthermore, while the duty of reporting
Lawrence’s misuse of OCC computers and Harris’ failure to enforce state size and weight laws
may not formally be listed in plaintiff’s job description, this action would be more in the realm of
acting in pursuant of official job duties, than acting as a matter of public concern. See Garcetti v.
Ceballos, 547 U.S. 410, 424-25 (2006) (“Formal job descriptions often bear little resemblance to
the duties an employee actually is expected to perform, and the listing of a given task in an
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employee’s written job description is neither necessary nor sufficient to demonstrate that
conducting the task is within the scope of the employee’s professional duties for First
Amendment purposes.”) Plaintiff has failed to meet his heavy burden of establishing defendants
violated his First Amendment right and, therefore, defendants are entitled to qualified immunity.
Further, as of result of plaintiff’s inability to establish that his First Amendment right has been
violated, plaintiff has failed to state a claim upon which relief can be granted and, therefore, this
case should be dismissed.
III.
Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS Defendants’ Motion to
Dismiss [docket no. 13] and DISMISSES this case.
IT IS SO ORDERED this 5th day of March, 2015.
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