Kopf v. Canadian County Board of County Commissioners et al

Filing 119

ORDER granting 47 and 49 defendants' motions for summary judgment as to plaintiff's § 1983 First Amendment retaliation claims but otherwise denied...see order for specifics. Signed by Honorable Joe Heaton on 06/01/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LISA KOPF,

)
)
Plaintiff,
)
vs.
)
)
BOARD OF COUNTY COMMISSIONERS)
OF THE COUNTY OF CANADIAN, ex rel.)
CANADIAN COUNTY SHERIFF’S
)
DEPARTMENT, et al.
)
)
Defendants.
)

NO. CIV-15-0361-HE

ORDER
Plaintiff Lisa Kopf (“Kopf”) filed this suit against defendants Sheriff Randall Edwards
(“Edwards”) and Deputy Sheriff John Darnell (“Darnell” or "Lt. Darnell"), alleging she was
terminated from her employment as a deputy sheriff in the Canadian County sheriff's office
based on gender discrimination, contrary to Title VII of the Civil Rights Act, and in
retaliation for her exercise of free speech rights. She also asserts a common law tort under
state law. Both defendants have moved for summary judgment on all claims.
Summary judgment is warranted “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). “A fact is ‘material’ if, under the governing law, it could have an effect on the
outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a rational jury could
find in favor of the nonmoving party on the evidence presented.” Tabor v. Hilti, Inc., 703
F.3d 1206, 1215 (10th Cir. 2013) (citation omitted). And in determining whether this
standard is met, the court views the evidence in the light most favorable to the non-moving

party. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014).
Factual Background
The following facts are either undisputed or viewed in the light most favorable to
plaintiff as the non-movant.1 Kopf started working for the Canadian County sheriff’s office
(“CCSO”) on November 1, 2013, as a jailer. Approximately two months later, on December
26, 2013, she witnessed a jailer treat an inmate in a manner that she considered abusive. She
immediately reported the incident to her supervisor. However, she was concerned that her
report did not result in corrective action and, a few days later, Kopf discussed the incident
with a female Oklahoma City police officer whom she viewed as a mentor. Within the next
few days, the undersheriff and the jail administrator learned of Kopf’s discussion of the
incident with the OCPD officer and reprimanded her for going outside of the chain of
command and discussing the matter with someone outside the CCSO.
On January 7, 2014, Kopf was interviewed by Lt. Darnell as part of a background
investigation process conducted for all prospective deputy sheriffs. The interview lasted
longer than two hours and at the end, Darnell joked that he would “keep [Kopf] around” as
long as she did not get involved with any males at the CCSO.
In March of 2014, Kopf was promoted to deputy sheriff and given a pay increase.
She was still assigned to duties at the jail at that time. The next month, Kopf was transferred

1

Facts are only construed in Kopf’s favor when she has “set forth specific facts showing a
genuine issue for trial.” Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). In some instances,
Kopf’s responses to defendants’ asserted facts are non-responsive and do not create a factual
dispute.

2

from the jail to the civil division—a transfer she considered to be favorable.
In May 2014, Kopf received a reprimand for insubordination based on use of an ecigarette in violation of a verbal CCSO policy after she had been specifically informed of the
policy.
In June 2014, Darnell performed a followup background interview with Kopf in which
he ultimately indicated he would be recommending her termination, based on what he viewed
as deceptive answers on her employment application regarding past drug use and
employment. After the interview, Darnell recommended termination of Kopf’s employment
to Sheriff Edwards, and Edwards fired Kopf effective July 8, 2014.
Discussion
Kopf asserts three claims against defendants. First, she asserts a Title VII claim
against the county, alleging gender discrimination contrary to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.2 Second, she asserts § 1983 claims against both
Sheriff Edwards in his official capacity (i.e. against the county) and Lt. Darnell, alleging
retaliation based on exercise of her First Amendment rights. Finally, she asserts a Burk tort
under state law,3 alleging her termination violated state public policy as established by the
Oklahoma Anti-Discrimination Act, 25 Okla. Stat. §§ 1101, et seq., and the Free Speech
2

The complaint also makes passing reference to 42 U.S.C. § 1981 as a basis for claim, but
that statute applies only to claims of racial discrimination and plaintiff makes no such claim in this
case. See § 1981 (“All persons within the jurisdiction of the United States shall have the same right
. . . to the full and equal benefit of all laws and proceedings for the security of persons and property
as is enjoyed by white citizens . . . .”).
3

Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989).

3

clause of the Oklahoma Constitution, Okla. Const. art. II, § 22.
Title VII Claim
Kopf alleges that she was discriminated against and terminated on the basis of her
gender. She offers no direct evidence of discrimination based on gender, so the claim is
evaluated for summary judgment purposes under the McDonnell Douglas burden-shifting
framework.4 Under this framework, a plaintiff must offer evidence sufficient to make out
a prima facie case of discrimination based on the prohibited ground. Smothers v. Solvay
Chemicals, Inc., 740 F.3d 530, 538–39 (10th Cir. 2014). If she does so, the burden then
shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for the adverse
employment action.” Id. If the defendant satisfies this burden, the burden then shifts back
to the plaintiff to produce evidence that the employer’s stated justification is pretextual—that
is, that a material question of fact exists as to whether the employer was motivated by the
discriminatory reason and whether the employer’s justification is “unworthy of credence.”
Id.
To make out a prima facie case of discrimination, the plaintiff bears a “light burden”
to show that she “(1) belongs to a protected class; (2) was qualified for her position; (3) was
discharged despite her qualifications; and (4) was terminated under circumstances which give
rise to an inference of unlawful discrimination.” Swackhammer v. Spring/United Mgmt Co.,
493 F.3d 1160, 1166 (10th Cir. 2007) (internal quotation marks and citation omitted).

4

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).

4

Circumstances giving rise to an inference of unlawful discrimination may include preferential
treatment given to employees outside the protected class and remarks made by
decisionmakers that could reflect a discriminatory animus. Plotke v. White, 405 F.3d 1092,
1101 (10th Cir. 2005).
Here, Kopf asserts she was treated differently from male co-workers in that her
background interview with Darnell was longer than theirs. She asserts she was provided less
equipment for her duty belt. She also asserts she was disciplined for violation of a policy
against use of e-cigarettes, when her co-workers were not disciplined for similar violations.
She also indicates she was disciplined for issues as to her background check no more serious
than ones which did not get her male co-workers in trouble, or at least did not trigger similar
discipline. This is sufficient to make out the necessary prima facie showing.
Sheriff Edwards asserts insubordination and dishonesty on Kopf’s employment
application as legitimate, nondiscriminatory grounds for her termination and there is a basis
in the evidence to support those assertions. The burden therefore shifts to Kopf to show that
those asserted grounds are pretextual.
Plaintiff's evidence of pretext is thin. She relies heavily on her January interview
taking over two hours as an indication that she was being treated differently because of her
sex. But she does not dispute defendant's evidence that approximately twenty other
applicants had interviews which lasted over an hour and a half. More importantly, she
ignores the fact that after the two hour interview she was promoted to the deputy position
which she sought. That circumstance plainly does not support an inference of discrimination.
5

Her complaints about her gear belt suggest the problem was, at least in part, that the belt
didn't fit well and it is difficult to attach much significance to plaintiff's somewhat indefinite
suggestions as to the gear she got. The joking comment at the conclusion of the first
interview is perhaps some evidence of discrimination, though the nature of the comment and
sequence of events result in it having little, if any, probative impact.
Plaintiff has, however, produced evidence suggesting that male employees were
treated differently, both in the enforcement of the CCSO's anti-smoking policy and, more
importantly, that at least one other deputy had significant misrepresentations in his
application for employment, arguably as serious as those of plaintiff, which did not result in
discipline.5
With respect to the claimed misrepresentations by Kopf in her employment
application, defendants claim Kopf failed to disclose the unfavorable circumstances of
leaving employment at an insurance agency, and failed to disclose prior use of
methamphetamine. However, there is at least a permissible inference that she represented
what she understood the reason for her termination to have been and that, given the specific
wording of the drug question, she did not falsely answer it.6 In any event, while defendant's
views of the evidence is also permissible, it is not so obviously correct as to preclude finding

5

The other employee had falsely indicated he had never been arrested and also falsely stated
that no lawsuits had been filed against him, when in fact several had been.
6

She acknowledged prior drug use in two instances and, in response to the direction to
"explain fully", she identified marijuana as to one of the instances and unspecified drug use with her
boyfriend as to the other.

6

a justiciable question as to pretext.
In any event, and while the question is close, the court concludes plaintiff has
prevented sufficient evidence of pretext to avoid summary judgment on the Title VII claim.
First Amendment Retaliation Claim
Suits against a public official in their official capacity are, in substance, a suit against
the political subdivision of which they are an officer. Moss v. Kopp, 559 F.3d 1155, 1168
n. 13 (10th Cir. 2009). In § 1983 suits, political subdivisions may be liable for constitutional
violations where the violation stems from an official policy or from a well settled
governmental custom or practice. Monell v. Dep’t of Social Serv. of New York, 436 U.S.
658, 690 (1978). Thus, a political subdivision may be bound by the actions of an official
with “final policymaking authority” with respect to the alleged constitutional violation.
Moss, 559 F.3d at 1168–69. When the official with final policymaking authority ratifies a
subordinate’s decision and the impermissible basis for that decision, however, that
ratification may subject the local governmental entity to liability. Id.
Here, Kopf claims that she engaged in protected speech when she reported suspected
inmate abuse to her mentor. She further claims the retaliation for her speech came in the
form of Darnell’s protracted and intrusive background interview conducted two weeks after
her protected speech. All parties acknowledge that Sheriff Edwards was the final decisionmaker for the termination decision at issue here, but plaintiff argues that Edwards’ personnel
decision was based on the recommendation of Lt. Darnell. Plaintiff’s retaliation claim is
against both the county and Lt. Darnell individually.
7

To determine whether a public employer has unconstitutionally retaliated against an
employee for engaging in protected speech, courts employ the five-step Garcetti-Pickering
test. That 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 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) (quoting Dixon
v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The first three questions are for the
court and the last two are ordinarily for the trier of fact. Brammer-Hoelter v. Twin Peaks
Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007).
Here, the court has considerable doubt whether plaintiff’s report of the alleged abuse
would qualify as speech other than in the course of her official duties, but it is unnecessary
to definitively resolve the issue here.7 Similarly, the court has considerable doubt whether
plaintiff’s claim survives the weighing of the interests involved.

Law enforcement

organizations have substantial and legitimate interests in maintaining the confidentiality of
their investigations and operations, and confidentiality would be virtually impossible to
maintain if employees were permitted to share confidential information outside the

7

The “public concern” element is met here, as the question of whether abuse of a prisoner
is occurring in a county jail appears to meet the second element. See Brammer-Hoelter, 492 F.3d
at 1205 (10th Cir. 2007) (“Statements revealing official impropriety usually involve matters of
public concern.”).

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organization merely by designating the information recipient as their “mentor.” Further,
plaintiff’s transmission of the information to the OCPD officer appears less involved with
“whistleblowing” in any conventional sense, than with simply getting personal guidance.
However, it is also unnecessary to reach a definitive conclusion as to this element.
While the fourth element—whether the protected speech was a motivating factor in
the employment decision—is ordinarily for the trier of fact, there is no dispute of material
fact as to the issue and it is determinative here. Plaintiff’s claim is squarely based on the
assertion that Sheriff Edwards followed and relied on the recommendation of Lt. Darnell.
And it is undisputed that Lt. Darnell did not even know about plaintiff’s report of abuse to
the OCPD officer until after plaintiff had been terminated. Defendant has asserted as an
undisputed fact that “[i]n fact, Darnell did not learn about the . . . alleged inmate abuse issue
until February 29, 2016 when [alleged offender] gave his deposition in this case.” Fact No.
34, Doc. No. 47. Plaintiff did not dispute that fact.8 And in the face of that undisputed fact,
the claimed temporal proximity of events to each other does not help the plaintiff.9 The
result is that the undisputed facts make it clear that plaintiff’s report of abuse to her mentor
was not a motivating factor in the decision to terminate.
Summary judgment will be granted for defendants as to the First Amendment
8

Contrary to plaintiff’s suggestion, the fact proffered by defendants was not just that Darnell
“claimed” not to have known, but that he, in fact, did not know of the report of alleged abuse.
9

Given the time lapse between the report of abuse and the termination decision, some five
to six months later, it is difficult to draw any inference of the events being connected. As noted
above, the event that was close to the time of the abuse report—the two-hour interview—was
unremarkable and followed by a promotion.

9

retaliation claim.
Burk Tort
Both defendants moved for summary judgment on Kopf’s Burk tort claim on the basis
she had not identified a “clear mandate of public policy” as articulated by Oklahoma law that
was violated by her discharge. In Kopf’s response, she indicates that her Burk claim relies
on the free speech provisions of the Oklahoma Constitution and the Oklahoma AntiDiscrimination Act’s prohibition of discrimination on the basis of gender.
Defendants raise in reply briefs, for the first time, at least two issues with the Burk
claim. First, they argue that any Burk tort against them in their official capacities (and thus,
against Canadian County) must satisfy the requirements of the Oklahoma Governmental Tort
Claims Act, 51 Okla. Stat. § 151 et seq. (“OGTCA”). Second, Darnell argues the Burk claim
against him in his individual capacity must fail because Burk torts do not extend to impose
individual liability on coworkers or supervisors. See Eapen v. McMillan, 196 P.3d 995, 998
(Okla. Civ. App. 2008).
The court has considerable doubt whether plaintiff’s Burk claims will make it to the
jury, due to some or all of the issues defendants have belatedly raised. Non-compliance with
the OGTCA may bar their consideration as to the county. The state anti-discrimination
statute may well preclude, in this context, a separate common law or Burk tort. Such theories
may or may not permit recovery against an individual supervisor (or other higher up) like Lt.
Darnell. But defendants’ belated arguments in this regard are just that—belated—and the
court will not ordinarily consider summary judgment arguments made for the first time in a
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reply brief. The motions will be denied as to the Burk claims.
Conclusion
Defendants’ motions for summary judgment [Doc. Nos. 47 and 49] are GRANTED
as to plaintiff’s §1983 First Amendment retaliation claims, but are otherwise DENIED.
IT IS SO ORDERED.
Dated this 1st day of June, 2016.

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