JOHN A. ROSS, District Judge.
This matter comes before the Court on Defendant Allan D. Stichnote, Dennis Campbell, David Schmerber, Rodney Epps, Yolonda Fountain-Henderson, Richard G. Walsh, Robert J Orr, Benjamin Sutphin, and the City of Jennings, Missouri's Motion for Partial Summary Judgment on Counts I and II of the Second Amended Complaint (ECF No. 65) and Defendants' Motion to Strike the Inadmissible Allegations in Plaintiff's Affidavit and the Inadmissible Exhibits Plaintiff Submitted In Support of his Response in Opposition to Defendants' Motion for Partial Summary Judgment on Counts I and II (ECF No. 92). These matters have been fully briefed and are ready for disposition.
This case originally was filed in State Court and was removed to Federal Court on September 7, 2010. (ECF Nos. 1, 4). Remaining before the Court are Plaintiff's claims for "Freedom of Speech" (Count I) and "Freedom of Association" (Count II). (Second Amended Complaint (ECF No. 18; hereinafter "Complaint" or "Compl.")
Plaintiff was hired as a probationary police officer and an at-will employee for the City of Jennings on April 28, 2008. (SUMF, ¶ 8). Plaintiff became a member of the Fraternal Order of Police, Lodge 15 ("FOP") in the fall of 2008. (SUMF, ¶ 39). On November 13, 2008, police officers for the City of Jennings voted to make the FOP its collective bargaining representative. (SUMF, ¶ 40). Plaintiff also became a member of the FOP Union Bargaining Committee. (SUMF, ¶ 41).
In a letter dated January 21, 2009, the FOP attorney, Greg Kloeppel sent a letter to Balke confirming that Officers Kris Hart, Eugene Tisius, Byron Chastain, and Plaintiff had been selected as representatives from the City of Jennings Police Department for collective bargaining with the City of Jennings at the "meet and confer" meetings. (SUMF, ¶¶ 103, 105). Balke provided the January 21, 2009 letter to Mayor Sutphin. (SUMF, ¶ 104). In turn, the Jennings City Counsel authorized the Mayor, the City attorney, and the City Clerk, or their designees to act on behalf of the City for the "meet and confer" meeting. (SUMF, ¶ 110).
On February 27, 2009, Kloeppel forwarded a letter to Mayor Sutphin, Balke and City attorney Jamis Kresyman confirming the initial meet and confer meeting with the Union Bargaining Committee for the police officers would occur on March 10, 2009. (SUMF, ¶ 129). Plaintiff did not attend the first meet and confer because of personal issues. (SUMF, ¶ 166). Officer Kris Hart testified that Mayor Sutphin stated at the meeting that the Union was a bad idea and that officers had been forced into joining the union against their will. (SUMF, ¶ 169). Hart testified that Sutphin stated, "I will go to St. Louis County Police Department before this union bankrupts this City." (SUMF, ¶ 170). Officer Byron Chastain testified that Mayor Sutphin stated that "[b]efore he let this department bring us down or before he signed a contract and let this department bring us down, he would get rid of us and bring in St. Louis County." (SUMF, ¶ 175). Officer Eugene Tisius heard Mayor Sutphin state that "We will get rid of the police department and go with County before we let you guys take our city down." (SUMF, ¶ 187). Mayor Sutphin denies making these statements. (SUMF, ¶¶ 171, 176, 188).
On January 7, 2009, Officer Dominic Pendino ("Pendino"), a fellow Jennings police officer, filed a harassment complaint against Plaintiff regarding actions that occurred in September or October of 2008. (SUMF, ¶ 90; ECF No. 79-23). Pendino did not identify any other officers to substantiate his allegations that Plaintiff harassed him. (Exhibit 25; ECF No. 79-25, p. 3). Pendino also claimed that he received inadequate training. (SUMF, ¶¶ 90-91). Plaintiff was required to file a response to the complaint. (SUMF, ¶¶ 93, 144, 147, 190). Therein, Plaintiff denied the allegations made by Pendino and described several issues with Pendino's safety procedures. (Exhibit 25; ECF No. 79-25, p. 3).
Walsh investigated the complaints Pendino made about his training and regarding Plaintiff. (SUMF, ¶¶ 93, 114). On February 20,2009, Walsh prepared a memorandum to Orr detailing his investigation concerning the harassment complaint made by Pendino against Plaintiff and Pendino's complaints about his training. (SUMF, ¶ 121). In his memorandum, Walsh indicated that Plaintiff denied the allegations made by Pendino and that no independent substantiation of Pendino's allegations had been discovered.
Based upon the recommendation of Orr, Mayor Sutphin recommended the termination of Pendino to the Jennings City Council/Personnel Committee at a special meeting on March 2, 2009. (SUMF, ¶ 141). The Jennings City Council noted that the investigation of the harassment complaint made by Pendino against Plaintiff was inconclusive. (SUMF, ¶ 143). The Jennings City Council/Personnel Committee decided to request that Pendino and Plaintiff submit to polygraph testing because the City Council could not tell who was telling the truth about the harassment based upon the information provided. (SUMF, ¶ 144). The Jennings City Council decided not to terminate Pendino until it received the results of the polygraph tests of Pendino and Plaintiff. (SUMF, ¶ 145). Sutphin gave Walsh a verbal order to request polygraph examinations of Pendino and Plaintiff based upon the decision of the Jennings City Council/Personnel Committee. (SUMF, ¶¶ 147-49). Plaintiff testified that he told Walsh that the only reason the investigation into Pendino's complaint was continuing was in retaliation for Plaintiff's involvement in the Union Bargaining Committee (SUMF, ¶ 151), Walsh does not recall this statement (SUMF, ¶ 152).
On March 30, 2009 and April 2, 2009, Walsh issued written orders to Pendino and Plaintiff that their polygraph testing was scheduled for April 8, 2009. (SUMF, ¶ 190). Plaintiff had a problem with the Polygraph Permission Form provided by the polygraph administrator, Sam Yarborough. (SUMF, ¶ 195). Plaintiff had been ordered to take the polygraph test, but the form stated that he was present for the polygraph by his own free will.
Walsh determined that Pendino's harassment complaint against Plaintiff was sustained because he did not submit to the polygraph test as directed. (SUMF, ¶ 219). Walsh also determined that Plaintiff's failure to comply with orders to take the polygraph examination constituted insubordination. (SUMF, ¶ 220). After reviewing Walsh's determinations, Orr recommended terminating Plaintiff to Mayor Sutphin and the City Council members. (SUMF, ¶¶ 224-29). Based upon the recommendation of Orr, Mayor Sutphin verbally recommended the termination of Plaintiff to the City Councilmembers. (SUMF, ¶¶ 237-39).
On April 20, 2009, the Jennings City Council voted to terminate Plaintiff's employment as a Jennings police officer. (SUMF, ¶¶ 237-41).
The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);
A moving party always bears the burden of informing the Court of the basis of its motion.
In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
In his Complaint, Plaintiff alleges claims under 28 U.S.C. §1983 for "Freedom of Speech" against all defendants (Count I) and "Freedom of Association" against all defendants (Count II). Essentially, Plaintiff's claims are for first amendment retaliation. To state a prima facie case for first amendment retaliation, it is necessary for Plaintiff to show: (A) he participated in protected speech or activities; (B) the defendants took an adverse employment action against him; and (C) the protected speech or activities was/were a substantial or motivating factor in the defendants' decision to take the adverse action.
Defendants claim that there is no evidence that Plaintiff was terminated from his employment because of his union involvement. Defendants claim that they were not aware of Plaintiff's union activity during the relevant time period. Likewise, they assert that Plaintiff cannot provide any evidence to support a claim that Plaintiff's union activities caused Defendants to terminate his employment. Rather, Defendants claim that the undisputed evidence demonstrates Plaintiff was terminated for a legitimate, non-discriminatory reason.
Plaintiff asserts that there is a material question of fact or law that the protected conduct in which he engaged caused Defendants to take the adverse employment action against him. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Response"), ECF No. 76, p. 2). Plaintiff claims that Defendants knew that he was involved in union organizing, and his involvement in these union organizing activities resulted in adverse employment actions against him. Plaintiff claims that there are disputed issues of material fact regarding Plaintiff's union involvement and Defendants' knowledge of and discouragement of such activities.
City Councilpersons Stichnote, Campbell, Schmerber, Epps, and Fountain-Henderson claim that they had no knowledge at any time that Plaintiff had joined the FOP in the fall of 2008, had been elected a member of the Union Bargaining Committee on or around December 3, 2008, or that Plaintiff was assigned to handle pay rates and salaries for police officers as a member of the Union Bargaining Committee. (SUMF, ¶ 48). Defendants assert that Plaintiff has not provided any evidence that the individual Councilmembers read the letter dated January 21, 2009 to Balke, confirming that Plaintiff was a member of the Union Bargaining Committee. (Reply of Defendants to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Reply"), ECF No. 89, p. 8). Rather, Defendants claim that Plaintiff's argument amounts to mere speculation that the Councilmembers knew of Plaintiff's protected activity. (Reply, p. 8).
Plaintiff cites to evidence that the City Council members knew of Plaintiff's involvement in protected activity. (Response, p. 8). For instance, Plaintiff cites to the media coverage of certain police officers' efforts to collectively bargain with the City of Jennings. (
Moreover, Plaintiff identifies other circumstances surrounding his termination that provide "some evidence" of a causal relationship between his protected activity and the adverse employment action taken against him. Plaintiff claims that the City Council reopened a "dead" investigation and ordered Plaintiff to take a polygraph examination after it was informed that he was on the Union Bargaining Committee. (Response, p. 9). That is, Plaintiff notes that Walsh had stated that Pendino's claim was unsubstantiated, yet the City Council ordered Plaintiff to submit to a polygraph test. (
The Court finds that Plaintiff has identified sufficient evidence to survive summary judgment. Plaintiff presents evidence that the City Council had access to information that Plaintiff was a member of the Union Bargaining Committee during a very contentious period. Plaintiff also notes that the police department recommended to the City Council to terminate Pendino, essentially ending the investigation into the harassment allegations against Plaintiff, but the Council chose to reopen the investigation and order Plaintiff to take a polygraph test. The Court finds that the timing of the City Council's decision to reopen the investigation and ultimately terminate Plaintiff's employment, despite the recommendations of Orr and Walsh, demonstrates an issue of fact regarding the reason Plaintiff was terminated. The Court denies summary judgment on Plaintiff's claims against the individual City Council members.
Defendants claim that Mayor Sutphin's purported "discriminatory animus toward collective bargaining" is insufficient to establish a causal connection between Plaintiff's union activity and his termination. (Reply, p. 12). First, Defendants claim that the temporal proximity does not support a finding of a causal relationship to establish retaliation. Defendants claim that there is no temporal proximity because four (4) months passed between Plaintiff's protected activity and when his employment was terminated. Moreover, Defendants claim that Plaintiff has not identified any admissible evidence to establish that Mayor Sutphin made any statements or engaged in any conduct indicating that he singled Plaintiff out for adverse treatment based upon a retaliatory motive. (Reply, p. 13). Defendants claim that Plaintiff has not demonstrated that Mayor Sutphin had a reason to target Plaintiff for adverse treatment. (Reply, p. 13). Likewise, Defendants claim that Plaintiff has not shown that Mayor Sutphin had knew that Plaintiff acted as a spokesperson for the FOP, worked on pay rates for the proposed contract, and had a role on the Union Bargaining Committee. (Reply, pp. 13-14).
In response, Plaintiff argues that the temporal connection is closer than Defendants state. Plaintiff claims that Mayor Sutphin was not made aware of Plaintiff's role on the Union Bargaining Committee until more than a month after Plaintiff became a member. (Response, p. 14; SUMF, ¶ 49 (Mayor Sutphin claims that he did not know that Manuele had joined the FOP and been elected a member of the Union Bargaining Committee until he received a letter dated January 21, 2009). More importantly, Plaintiff claims that the polygraph was ordered just over one month after Mayor Sutphin learned of Plaintiff's role on the Union Bargaining Committee. (
As an additional basis of the Mayor's alleged anti-union bias, Plaintiff notes that Mayor Sutphin received a handout entitled, "What Can This Union Really Do for You?" from the labor attorney for the City of Jennings. (SUMF, ¶¶ 30-32). Mayor Sutphin approved the handout and submitted it to Walsh for distribution to the police officers before the election to determine whether the FOP would be the collective bargaining representative for the police officers for the City of Jennings. (SUMF, ¶¶ 30, 34).
In addition, Plaintiff claims that Mayor Sutphin was aware of Plaintiff's protected speech through the Mayor's meeting with Walsh and Lane to discuss the police department and collective bargaining. (Response, p. 15). Several officers also testified that Mayor Sutphin made anti-union statements during the collective bargaining meeting. (SUMF, ¶¶ 169, 170, 175, 187).
The Court finds sufficient evidence to create an issue of fact regarding Plaintiff's claims against Mayor Sutphin. The Court finds that the temporal proximity between Mayor Sutphin learning of Plaintiff's membership on the Union Bargaining Committee and ordering Plaintiff to take the polygraph examination provide some evidence of discriminatory causation.
Defendants argue that the evidence does not support a finding that Orr and Walsh had a retaliatory motive for terminating Plaintiff. Defendants acknowledge that Orr and Walsh were aware of Plaintiff's position on the Union Bargaining Committee. (SUMF, ¶ 47 (Walsh overheard statements by other police officers indicating that Plaintiff had joined the FOP and had been elected a member of the Union Bargaining Committee); SUMF, ¶ 46 (Orr had no knowledge that Plaintiff had joined the FOP and was a member of the Union Bargaining Committee until he received a copy of a letter dated January 21, 2009 from an attorney for the FOP). Defendants, however, assert that Orr and Walsh's knowledge of Plaintiff's position on the Union Bargaining Committee is insufficient to establish a causal connection. (Reply, p. 10).
Likewise, Defendants claim that Plaintiff provides no evidence that Orr and Walsh took any action against Plaintiff based upon any "orders" from Mayor Sutphin. (Reply, p. 11). Defendants argue that Plaintiff has not put forth any evidence that Walsh and Orr took action against Plaintiff based upon a retaliatory motive. (
Plaintiff identifies several items that he claims demonstrate an issue of fact. First, Plaintiff notes that Walsh and Orr knew about his involvement in union organizing.
In addition, Plaintiff claims that Orr did not support collective bargaining efforts. At meetings between Orr, Walsh and Lane, Orr indicated that he disagreed with what the union requested. (
Plaintiff also argues that Orr and Walsh took orders to terminate Plaintiff from Mayor Sutphin. (Response, p. 13). As previously indicated, several officers testified that the Mayor Sutphin stated that he would rather have the police force turned over to St. Louis County than let the union have any influence. (
The Court finds that Plaintiff provides sufficient evidence to support his first amendment claims against Orr and Walsh. First, even Orr and Walsh admit that they were aware of Plaintiff's position on the Union Bargaining Committee during the relevant period. In addition, Plaintiff provides evidence that Orr did not support the FOP. Finally, Plaintiff identifies evidence that Mayor Sutphin, from whom Orr and Walsh took direction, opposed unionization. Accordingly, the Court finds an issue of fact regarding whether Orr and Walsh took an adverse employment action against Plaintiff because of his union activities.
A municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue.
The Court notes that "[a]n unconstitutional governmental policy can be inferred from a single decision taken by the highest official responsible for setting policy in that area of the government's business."
Defendants argue that no policy or custom exists that would implicate liability against the City. Plaintiff, however, argues that a "widespread custom of discrimination against the union activities of police officers" warrants liability under §1983. (Response, p. 22). Plaintiff states that "[b]ased on the City of Jennings' established policy as created and carried out by its municipal leaders, the municipality itself should be held liable." (
Here, the Councilmembers and/or Mayor Sutphin had final policymaking authority for the City of Jennings; were the highest ranking policy officials in the City of Jennings; and ultimately were responsible for employment decisions within the police department.
In the alternative, Plaintiff claims that the City of Jennings can be held liable under a cat's paw theory of liability. "If a non-decision-maker performs an act motivated by a discriminatory bias that is intended to cause, and that does proximately cause, an adverse employment action, then the employer is liable under the cat's paw theory of liability."
Defendants argue that cat's paw liability does not apply to municipalities. (Defendants' Memorandum in Support of the Motion for Partial Summary Judgment on Counts I and II of the Second Amended Complaint ("Memorandum"), ECF No. 66, pp. 27-28).
The Court agrees that cat's paw liability does not apply to municipalities, which cannot be held liable on agency principles.
Even if Plaintiff can establish a prima facie case for employment retaliation, Defendants claim that they had a legitimate non-discriminatory reason for terminating Plaintiff's employment and Plaintiff cannot provide evidence to demonstrate that the explanation proffered for Plaintiff's termination was pretextual. (Memorandum, pp. 19-24; Reply, p. 14). That is, Defendants claim that they fired Plaintiff for not cooperating in an investigation of a complaint of harassment against him by failing to submit to the polygraph test ordered by Walsh.
Plaintiff asserts that the totality of the circumstances demonstrates pretext. Plaintiff claims that the reason provided for terminating his employment, i.e., insubordination for refusing to take an ordered polygraph examination, was pretextual. (Response, p. 20). Plaintiff claims that the causal connection between his union activities and his termination is strengthened by proof that Defendants' reasons for terminating Plaintiff were unfounded and false. (Response, p. 19);
The Court finds that Plaintiff has provided sufficient evidence of pretext to survive summary judgment. The Court notes that Walsh initially found no substantiation for Pendino's claims against Plaintiff. Nevertheless, the investigation of Plaintiff continued and he was ordered to undergo a polygraph examination. The Court finds that this demonstrates a material issue of fact regarding whether Plaintiff was terminated for not cooperating in an investigation of a complaint against him, or for his union organizing. Accordingly, the Court denies summary judgment.
Defendants note that the United States Supreme Court held that municipalities are immune from punitive damages under §1983.
Defendants assert that paragraphs 11, 15, 16, 17, 19, 21, 22, 23, 24, 25, 28, 29, 30, 31 and 33 of Plaintiff's affidavit contain inadmissible hearsay statements and Plaintiff failed to properly authenticate Exhibits 30, 31, 33, 36, 37, 40, 44, 45, 46, 47, 50, 51, 54, 55, and 56. Defendants claim that those paragraphs and exhibits should be stricken and should not be considered in ruling on Defendants' Motion for Summary Judgment on Counts I and II.
Defendants assert that paragraphs 11, 15, 16, 17, 19, 21, 22, 23, 24, 25, 28, 29, 30, 31 and 33 of Plaintiff's affidavit contain inadmissible hearsay statements and should be stricken. Defendants assert that those paragraphs "contain allegations of what Sam Yarbrough allegedly told Plaintiff and, therefore, are based upon inadmissible hearsay." (Defendants' Memorandum of Law in Support of Defendants' Motion to Strike the Inadmissible Allegations in Plaintiff's Affidavit and the Inadmissible Exhibits Plaintiff Submitted in Support of his Response in Opposition to Defendants' Motion for Partial Summary Judgment on Counts I and II ("Memorandum"), ECF No. 93, p. 3). Specifically, Defendants note that the allegation in paragraph 21 contains Yarbrough's "opinion, speculation, and conclusion that Plaintiff `was being coerced' to take the polygraph examination[.]" (Memorandum, p. 3). Defendants claim that this allegation lacks foundation and is not based on personal knowledge. (
Defendant also provides a specific objection to paragraph 41 because it allegedly misstates the reason for Plaintiff's termination set forth in the letter to Plaintiff from Cheryle Balke. (Memorandum, p. 4). The letter states that Plaintiff was terminated "for failing to co-operate in an investigation of a complaint of harassment filed against . . . [Plaintiff] by another officer, by your failure to submit to a polygraph test as ordered by Lt. Col. Walsh." (Memorandum, p. 4).
Initially, Plaintiff claims that "Defendants make only the conclusory assertion in their Motion to Strike that certain paragraphs contain hearsay, without any detail, analysis, or indication as to what, if any, particular statements constitute hearsay or why such statements constitute hearsay." (Plaintiff's Response to Defendants' Motion to Strike the Inadmissible Allegations in Plaintiff's Affidavit and the Inadmissible Exhibits Plaintiff Submitted in Support of his Response in Opposition to Defendants' Motion for Partial Summary Judgment on Counts I and II ("Response"), ECF No. 96, p. 2). Plaintiff also asserts that he does not offer the statements at issue for the truth of the matter asserted under Fed.R.Evid. 801(c). (
Plaintiff also states that the used those statements as the basis to form certain "beliefs stemming from those statements." (Response, p. 2). In response, Defendants argue that Plaintiff's "beliefs and opinions are not admissible evidence regardless of the basis of those beliefs and opinions." (Reply, p. 3). And, Defendants urge that "if Plaintiff is using those statements in an attempt to demonstrate how he formed certain beliefs and opinions, then he must be offering those statements to prove the truthfulness of those statements and those statements are inadmissible hearsay." (
Plaintiff also claims that the statements at issue fall within the present sense impression exception to the hearsay rule. Fed.R.Evid. 803(1). Defendant asserts that the statements do not fall within that exception because they do not describe an event or condition. (Reply, p. 3). In addition, there is no indication that there was substantial contemporaneity between the event or condition being described and the statement describing the event or condition. (
Finally, Plaintiff claims that the statements in paragraphs 21, 22 and 31 "are not excluded by the hearsay rule because of their status as an existing mental, emotional, or physical condition." (Response, p. 2). Defendants assume that Plaintiff is asserting that these paragraphs fit under the state of mind exception to the hearsay rule. (Reply, p. 4) (citing Fed.R.Evid. 803(3)). In response, Defendants assert that Plaintiff's statements do not fit within the state of mind exception "because the statements are statements of belief that Plaintiff is attempt to use to prove the facts of those beliefs." (
The Court finds that the statements at issue constitute hearsay and do not fit within any exception to the hearsay rule. The Court believes that Plaintiff is offering these statements for the truth of the matter asserted. Likewise, Plaintiff's affidavit provides no details to support his claim that these statements relate to a present sense impression. Moreover, the Court does not believe that the statements fit within the state of mind exception to the hearsay rule. The alleged statements by Yarbrough are stricken from Plaintiff's affidavit, and the Court will not consider those statements in ruling the motion for summary judgment.
Defendants assert that Plaintiff failed to properly authenticate Exhibits 30, 31, 33, 36, 37, 40, 44, 45, 46, 47, 50, 51, 54, 55, and 56 and that those exhibits should be stricken. Defendants argue that Plaintiff did not submit an affidavit based upon personal knowledge authenticating these documents. (Memorandum, pp. 4-5).
Plaintiff asserts that the documents at issue were all provided to Plaintiff by Defendants through the discovery process and consist of Defendants' own business records. (Response, p. 3). In an effort to cure the deficiencies noted by Defendants, Plaintiff provides his affidavit to his response to the motion to strike states that all of the exhibits in question are "accurate representations of the documents they purport to be." (ECF No. 96-1).
Unsatisfied by Plaintiff's affidavit, Defendants claim that the exhibits were "prepared by other individuals and not Plaintiff." (Reply, p. 6). Defendants assert that Plaintiff has no personal knowledge of the accuracy of the exhibits that were prepared by other individuals and Plaintiff cannot authenticate those exhibits. (Reply, p. 6). Defendant, however, does not provide any citation for his proposition that Plaintiff did not prepare these exhibits and that he has no personal knowledge of them.
Accordingly,
