Cramer et al v. Oklahoma County Board of County Commissioners et al
Filing
79
OPINION AND ORDER. Plaintiff Sherry Owens' official-capacity 42 U.S.C. § 1983 claim against Defendant David Hooten is dismissed without prejudice. Defendant Hooten's Motion for Summary Judgment (Doc. No. 42 ) and Defendant Board's Motion for Summary Judgment (Doc. No. 36 ) are otherwise GRANTED as to Plaintiff Owens. Signed by Honorable Charles Goodwin on 05/01/2019. (jb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANGELA CRAMER et al.,
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Plaintiffs,
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v.
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OKLAHOMA COUNTY BOARD
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OF COUNTY COMMISSIONERS et al., )
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Defendants.
)
Case No. CIV-18-179-G
OPINION AND ORDER
Now before the Court is the Motion for Summary Judgment (Doc. No. 42) of
Defendant David Hooten, seeking judgment on the 42 U.S.C. § 1983 claim asserted by
Plaintiff Sherry Owens. Plaintiff Owens has filed a Response (Doc. No. 56), to which
Defendant Hooten has replied (Doc. No. 61). Also before the Court is a Motion for
Summary Judgment (Doc. No. 36) filed by Defendant Board of County Commissioners of
Oklahoma County (“Board”), to which Plaintiff Owens and the other plaintiffs in this
action1 have jointly responded (Doc. No. 49) and Defendant Board has replied (Doc. No.
60).
I.
Background
The Court previously summarized the factual landscape of this lawsuit:
Each plaintiff was an at-will employee and [with the exception of Ms.
Epps] had been hired by Carolyn Caudill, the former County Clerk for
Oklahoma County, to work in the Oklahoma County Clerk’s Office (“Clerk’s
Office”). Caudill was first elected in 1996; in March 2016, she announced
1
Angela Cramer, Aimee Drake, Donella Epps, Donna Hanson, Michael Hughes, and
Phillip Malone.
she would seek a sixth term as County Clerk. The plaintiffs were volunteer
workers for, and supporters of, Caudill’s re-election campaign . . . .
[Defendant David Hooten] defeated Caudill in August 2016 in a runoff
primary election and became the Republican Party candidate for County
Clerk. In November 2016, he defeated Chris Powell in the general election
and was sworn in as County Clerk on January 3, 2017.
First Order of May 30, 2018 (Doc. No. 21) at 4-5 (footnote omitted). The plaintiffs in this
action were terminated by Defendant Hooten in January and February 2017. Id. at 5; Am.
Compl. (Doc. No. 15) ¶ 21; Answer (Doc. No. 24) ¶ 10.
Plaintiff Owens and the other plaintiffs in this action claim that they were
improperly terminated from their jobs as retaliation for the exercise of their right to
freedom of speech under the First Amendment. Specifically, Plaintiff Owens alleges that
shortly after Defendant Hooten took office, Hooten terminated Owens because she had
supported Caudill and had volunteered for Caudill’s campaign.
II.
Summary Judgment Standard
Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim. The
Court must grant summary judgment when “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). “An
issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). “An issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Id.
2
A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). If the movant carries this initial burden, the
nonmovant must then “go beyond the pleadings and ‘set forth specific facts’ that would be
admissible in evidence in the event of trial from which a rational trier of fact could find for
the nonmovant.” Adler, 144 F.3d at 671 (quoting prior version of Fed. R. Civ. P. 56(e));
see also LCvR 56.1(c). The Court must then 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 v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). Parties may establish the existence or nonexistence of a material disputed
fact by:
• citing to “depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other materials”
in the record; or
• demonstrating “that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence and the inferences
drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola
Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he
mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which the [trier of fact] could reasonably find for
the [nonmovant].” Liberty Lobby, 477 U.S. at 252.
3
III.
Discussion
A. Public Employee First Amendment Retaliation Claims
As elements of a § 1983 claim, a plaintiff “must allege the violation of a right
secured by the Constitution and laws of the United States” and “must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins,
487 U.S. 42, 48 (1988). Here, there is no question that Defendant Hooten acted under color
of state law in terminating Clerk’s Office employees. See id. at 49 (“[G]enerally, a public
employee acts under color of state law . . . while exercising his responsibilities pursuant to
state law.”). Defendant Hooten challenges whether Plaintiff can show that, in doing so,
Hooten “‘subject[ed]” Plaintiff, “or cause[d] [Plaintiff] to be subjected,” “to a deprivation
of [her] lawful rights.” Porro v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010) (internal
quotation marks omitted).
A government employee “does not relinquish First Amendment rights to comment
on matters of public interest by virtue of government employment.” Connick v. Mvers,
461 U.S. 138, 140 (1983). “Rather, the First Amendment protects a public employee’s
right, in certain circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “However, the interests of public
employees in commenting on matters of public concern must be balanced with the
employer’s interests in promoting the efficiency of the public services it performs through
its employees.” Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011)
(internal quotation marks omitted).
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Through two decisions—Pickering v. Board of Education, 391 U.S. 563, 568
(1968), and Garcetti, 547 U.S. at 417—the Supreme Court has articulated five factors to
be considered in analyzing public-employee, free-speech cases. Leverington, 643 F.3d at
724 (explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom
of speech retaliation claims is a five step inquiry” that should be referred to as “the
Garcetti/Pickering analysis” (internal quotation marks omitted)). The Tenth Circuit has
summarized these factors as follows:
(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.
Eisenhour v. Weber Cty., 744 F.3d 1220, 1227-28 (10th Cir. 2014) (internal quotation
marks omitted). “The first three elements are issues of law for the court to decide, while
the last two are factual issues typically decided by the jury.” Knopf v. Williams, 884 F.3d
939, 945 (10th Cir. 2018) (internal quotation marks omitted).
B. Relevant Facts2
Plaintiff Owens, whose job title was Deputy Clerk, Data Entry, was employed at the
Clerk’s Office from October 2013 until January 20, 2017. Am. Compl. ¶ 7; Answer ¶ 1.
2
Facts relied upon are uncontroverted or, where genuinely disputed, identified as such and
viewed in the light most favorable to Plaintiff.
5
While working at the Clerk’s Office, Plaintiff believed that her supervisor was “critical” of
her. Owens Dep. 114:23-116:1 (Doc. No. 42-1).3
To kick off her reelection campaign, Caudill held a party to which all of the Clerk’s
Office employees were invited. Cramer Dep. 45:5-20 (Doc. No. 42-2). Plaintiff Owens
did not attend this party or any of Caudill’s other campaign events. Plaintiff discussed her
support of Caudill with coworkers, including her supervisor. Owens Dep. 58:20-59:4,
60:13-23, 80:8-13. Plaintiff helped with Caudill’s campaign by placing signs in her yard
and her neighbors’ yards and removing signs after the election. Id. 58:20-59:4-60:13-23.
Plaintiff Owens did not see or talk to Defendant Hooten when she placed her signs,
and Plaintiff did not discuss her campaign activities with Defendant Hooten or hear anyone
else do so. Id. at 63:16-18, 78:13-18. Plaintiff believes that the only way Defendant
Hooten would have known about Plaintiff’s campaign involvement is if her supervisor told
Defendant Hooten. Id. at 78:23-79:3, 80:3-7. Plaintiff’s belief that her supervisor told
Defendant Hooten is based upon the amount of time her supervisor spent with Defendant
Hooten after he took office. Id. at 78:23-80:7, 80:22-24.
On January 20, 2017, Plaintiff Owens was told that the Clerk’s Office had a “budget
cut” and that Plaintiff could either be terminated or could choose to resign and receive a
reference from her employer. Owen Dep. 61:11-62:1. Plaintiff chose to resign and
received a positive reference letter signed by Defendant Hooten. Pl.’s Resp. Ex. 30 (Doc.
No. 56-30). Defendant Hooten publicly stated that budget concerns were the reason for
3
In citing to depositions, the Court uses the page numbers as they appear on the original
transcripts. For all other documents filed by the parties, the Court uses ECF page numbers.
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terminating Plaintiff and certain other employees in January and February 2017. Am.
Compl. ¶ 22; Answer ¶ 11.
C. Defendant Hooten’s Motion
For purposes of his Motion, Defendant Hooten does not dispute Plaintiff’s ability to
prove the first three Garcetti/Pickering elements in her favor. See Def. Hooten’s Mot. at
17; see also First Order of May 30, 2018, at 8-10. Defendant Hooten does argue, however,
that Plaintiff cannot show a genuine material fact issue as to the fourth and fifth elements
and that he is therefore entitled to judgment as a matter of law. See Def. Hooten’s Mot. at
18-25.
As to the fourth element—whether the protected speech was a motivating factor in
the adverse employment action—a plaintiff must “establish a causal connection between
his [or her] protected speech and an adverse employment action.” Underwood v. Bd. of
Cty. Comm’rs of Cty. of Jefferson, 611 F. Supp. 2d 1223, 1229 (W.D. Okla. 2009).
To do so, the employee must show that his protected expression was a
substantial or motivating factor in the adverse employment action.
Maestas[v. Segura, 416 F.3d 1182, 1188 (10th Cir. 2005)]; Baca v. Sklar,
398 F.3d 1210, 1220 (10th Cir. 2005). Although the courts have not defined
the phrase “substantial” or “motivating” factor for this purpose, the Tenth
Circuit has explained the plaintiff’s burden of showing a substantial
motivating factor:
What constitutes a substantial motivating factor evades precise
definition. An employee “need not prove his speech was the sole
reason for defendants’ action.” Copp v. Unified Sch. Dist. No. 501,
882 F.2d 1547, 1554 (10th Cir. 1989). Nor is the employee required
to show “but-for” causation; that is, to demonstrate but-for the
employee’s speech the subsequent employment action would not have
occurred. Rather, the employee must show the protected speech
played a substantial part in the employer’s decision to adversely alter
the employee’s conditions of employment.
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Maestas, 416 F.3d at 1188.
Underwood, 611 F. Supp. 2d at 1229.
Having carefully reviewed the record, the Court agrees that Plaintiff Owens has not
met her burden to show a genuine fact issue for trial as to whether Plaintiff’s termination
was “substantially motivated by retaliation for” her support of Caudill’s 2016 reelection
campaign. Id. at 1232. Although Plaintiff was terminated only 17 days after Defendant
Hooten took office on January 3, 2017, the Tenth Circuit has made clear that “temporal
proximity is insufficient, without more, to establish [protected] speech as a substantial
motivating factor in an adverse employment action.” Maestas, 416 F.3d at 1189. Close
temporal proximity coupled with an employer’s knowledge of protected activity “may be
sufficiently probative of causation to withstand summary judgment,” however. Id.
Plaintiff Owens has not pointed to evidence sufficient to create a genuine issue of
material fact that Defendant Hooten had “knowledge” of Plaintiff’s speech in support of
the Caudill campaign at the time of Plaintiff’s termination. Plaintiff worked on signs for
Caudill. She did not attend any campaign events. She did not discuss any campaignrelated activities with Defendant Hooten. Plaintiff cites another employee’s testimony that
Defendant Hooten told that employee he knew who had donated money to Caudill’s
campaign, but Plaintiff would not have been on that list because she did not donate money
to Caudill’s campaign. See Pl.’s Resp. at 10 (citing Porter Dep. 21:17-22:10 (Doc. No. 562)). And while Plaintiff suggests her supervisor might have informed Defendant Hooten
of Plaintiff’s campaign activities, her evidence is speculative and refuted by the supervisor,
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who denied any knowledge of who worked on Caudill’s campaign (besides herself).
Hudson Dep. 62:4-7 (Doc. No. 42-3).4
In short, “[t]o withstand summary judgment . . . , an employee must produce
evidence linking the employer’s action to the employee’s speech.” Maestas, 416 F.3d at
1188. “Axiomatic to establishing causation in this context is proof that the employer knew
of the employee’s protected conduct.” Hook v. Regents of Univ. of Cal., 394 F. App’x 522,
539 (10th Cir. 2010). “Speculation or hunches amidst rumor and innuendo will not
suffice.” Maestas, 416 F.3d at 1189. Because Plaintiff Owens’ showing on the fourth
element of her retaliation claim is overly speculative, she has not shown a genuine issue
for trial, and Defendant Hooten in his individual capacity is entitled to judgment on this
First Amendment claim.5 See id. at 1189-90 (upholding grant of summary judgment to
employers where plaintiffs failed to present sufficient evidence linking their speech to an
adverse employment action).
4
Defendant Hooten has presented evidence indicating that Plaintiff was fired for budgetary
reasons and based upon the recommendation of her supervisor. See, e.g., Hudson Dep.
36:8-12; Def. Hooten’s Mot. Ex. 9 (Doc. No. 42-9); Lambert Dep. 11:3-12:6, 13:17-16:10,
19:4-15 (Doc. No. 42-5). Defendant Hooten also has presented evidence that “at least as
many” employees who had participated in Caudill’s campaign “were retained as were
discharged” during the relevant time period. Six v. Henry, 42 F.3d 582, 584-85 (10th Cir.
1994); see Def. Hooten’s Mot. Undisputed Facts at pp. 13-14, ¶¶ 43-50; Pl.’s Resp. to Def.
Hooten’s Facts at pp. 9-10, ¶¶ 43-50.
Defendant Hooten also is entitled to dismissal of Plaintiff’s claim against him in his
official capacity. See First Order of May 30, 2018, at 1 n.2; Second Order of May 30, 2018
(Doc. No. 22) at 7 n.7; Dixon v. Bd. of Cty. Comm’rs of Cty. of Okla., No. CIV-15-196-R,
2015 WL 5839364, at *2 (W.D. Okla. Oct. 7, 2015).
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D. The Board’s Motion
Defendant Board primarily argues that it is entitled to summary judgment on
Plaintiff Owens’ claim because Plaintiff “lack[s] standing” to bring suit against this
Defendant. Specifically, the Board argues that it does not exercise supervisory authority
over Defendant Hooten as County Clerk, that Plaintiff is not complaining about any
policies of the Board, and that Plaintiff cannot establish that her injuries “are fairly
traceable to conduct of [the Board],” and thus the Board is not a “proper party” to this
lawsuit. Def. Board’s Mot. at 12-17, 19-20; Def. Board’s Reply at 1-3.
The Board’s standing argument conflates the justiciability of a plaintiff’s lawsuit
with the plaintiff’s ultimate ability to prove a defendant’s liability in that lawsuit. Cf.
Kauble v. Bd. of Cty. Comm’rs of Cty. of Okla., No. CIV-17-729-D, 2018 WL 912285, at
*3 (W.D. Okla. Feb. 15, 2018) (“While couched in terms of subject matter jurisdiction,
[the Oklahoma County Board of County Commissioners’] argument [that the plaintiff lacks
Article III standing to sue], in reality, is premised on the notion that [the plaintiff] has failed
to state a claim upon which relief can be granted because [the Oklahoma County Board of
County Commissioners] has no authority to act in areas of detaining or releasing
inmates.”); Thurman v. Cty. Comm’rs of Okla. Cty., No. CIV-17-950-M, 2018 WL
6237908, at *3 (W.D. Okla. Oct. 16, 2018) (R. & R.) (same), adopted, 2018 WL 6220213
(W.D. Okla. Nov. 28, 2018).
This type of standing argument has been repeatedly rejected by this Court:
Under Oklahoma law, a county’s board of county commissioners is not a
separate legal entity from the county. Rather, in general, it exercises the
powers of the county. 19 Okla. Stat. § 3. A suit brought against a county’s
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board of county commissioners is the way Oklahoma law contemplates suing
the county. 19 Okla. Stat. § 4. Moreover, in the § 1983 context, a suit against
the board of county commissioners or some other county official in their
official capacity is, in substance, a suit against the county. Porro[, 624 F.3d
at 1328]; Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999). . . . .
The motion filed by the Board of County Commissioners confuses the
issue by arguing that it (the Board) is not a “proper party,” essentially because
it didn’t do anything wrong, or fail to do anything it had a duty to do. But,
as noted above, the Board, as such, is not even a legal entity and obviously
cannot be a “party” regardless of what it did or didn’t do. Rather, the
question is whether a basis for claim against the county is stated.
Snow v. Bd. of Cty. Comm’rs of Cty. of McClain, No. CIV-14-911-HE, 2014 WL 7335319,
at *2 (citing DuBois v. Bd. of Cty. Comm’rs of Mayes Cty., No. 12-CV-677-JED-PJC, 2014
WL 4810332 (N.D. Okla. Sept. 29, 2014)).
“Although it is true that in certain
circumstances a board of county commissioners may be an improper party because its
policies or customs cannot be shown to be responsible for an alleged constitutional
violation, that does not mean that a board can never be a proper party as a matter of law.”
Kauble, 2018 WL 912285, at *4; accord Chichakli v. Samuels, No. CIV-15-687-D, 2016
WL 11447755, at *3 (W.D. Okla. Mar. 10, 2016) (R. & R.) (“Grady County can be held
liable notwithstanding the fact that the Grady County Board of County Commissioners,
itself, does not operate the jail or promulgate the policies attendant thereto.”), adopted,
2016 WL 2743542 (W.D. Okla. May 11, 2016). “The United States Supreme Court has
made it clear that any official or entity whose actions represent official policy may be liable
under § 1983.” Vernon v. Slabosky, No. CIV-11-815-HE, 2016 WL 4775739, at *14 (W.D.
Okla. Sept. 14, 2016) (citing Pembauer v. City of Cincinnati, 475 U.S. 469, 480 (1986)).
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As previously explained in this case, Plaintiff Owens’ suit against the Board is
actually a suit against Oklahoma County. See Second Order of May 30, 2018, at 7, 12-14;
see also Wright v. Stanley, No. CIV-11-1235-C, 2015 WL 3606390, at *3 (W.D. Okla.
June 8, 2015), rev’d on other grounds sub nom. Wright v. Collison, 651 F. App’x 745 (10th
Cir. 2016). In order to hold Oklahoma County—sued here through the Board—liable on
Plaintiff’s First Amendment claim, Plaintiff must show: “(1) the existence of a county
policy or custom by which [Plaintiff] was denied a constitutional right, and (2) that the
policy or custom was the moving force behind the constitutional deprivation[—]i.e. that
there is a direct causal link between the policy or custom and the injury alleged.” Snow,
2014 WL 7335319, at *2 (internal quotation marks omitted).
It is undisputed that
Defendant Hooten, in his capacity as a “county officer,” has final decisionmaking authority
in performing certain functions, including hiring and firing. Am. Compl. ¶ 38; Answer ¶
1; Def. Board’s Mot. at 19; see Okla. Stat. tit. 19, § 161(1). As such, his “edicts or acts
may fairly be said to represent official policy” as implemented by an official with final
decisionmaking authority for Oklahoma County. Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436 U.S. 658, 694 (1978); see Snow, 2014 WL 7335319, at *7. And a plaintiff may
be able to demonstrate an official “policy or custom” for § 1983 purposes through reference
to “a final decision” by a county policymaker. Schneider v. City of Grand Junction Police
Dep’t, 717 F.3d 760, 770 (10th Cir. 2013); see also Second Order of May 30, 2018, at 14.
As outlined above, however, Plaintiff Owens cannot show a genuine factual dispute
as to whether she “was denied a constitutional right.” Snow, 2014 WL 7335319, at *2.
Defendant Board therefore cannot be held liable for any such denial. See id.; Dodds v.
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Richardson, 614 F.3d 1185, 1208 (10th Cir. 2010) (“[M]unicipalities are only liable for
constitutional violations that they have directly caused.”); Graves v. Thomas, 450 F.3d
1215, 1218 (10th Cir. 2006) (“[A] municipality may not be held liable where there was no
underlying constitutional violation by any of its officers.”); cf. Poore v. Glanz, 724 F.
App’x 635, 639 (10th Cir. 2018) (noting that an official-capacity claim can only be proven
“if the official’s own policies led to the deprivation of the plaintiff’s constitutional rights”).
The Board is therefore entitled to summary judgment on Plaintiff’s claim.
CONCLUSION
As outlined herein, Plaintiff Sherry Owens’ official-capacity 42 U.S.C. § 1983 claim
against Defendant David Hooten is dismissed without prejudice. Defendant Hooten’s
Motion for Summary Judgment (Doc. No. 42) and Defendant Board’s Motion for Summary
Judgment (Doc. No. 36) are otherwise GRANTED as to Plaintiff Owens. Judgment in
favor of Defendants on Plaintiff Owens’ claim shall be entered after resolution of the other
remaining claims in this lawsuit.
IT IS SO ORDERED this 1st day of May, 2019.
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