Shrum v. City of Coweta, Okla.
| Decision Date | 08 June 2006 |
| Docket Number | No. 04-7037.,04-7037. |
| Citation | 449 F.3d 1132 |
| Parties | Rex SHRUM, Plaintiff-Appellee, v. CITY OF COWETA, OKLAHOMA, a Municipal corporation; Steven C. Whitlock, individually, Defendants, and Derrick Palmer, individually, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John Howard Lieber, James C. Hodges and Shannan Pinkham Passley of Eller & Detrich, P.C., Tulsa, OK, for Defendants-Appellants.
James Patrick Hunt and Douglas D. Vernier of James R. Moore & Associates, P.C., Oklahoma City, OK, for Plaintiff-Appellee.
Before BRISCOE, McWILLIAMS, and McCONNELL, Circuit Judges.
Plaintiff-Appellee Rex Shrum is both a law enforcement officer and a clergyman. After eight apparently successful years of juggling the two responsibilities, his relationship with the management of the police department soured, and the Chief of Police allegedly rearranged Officer Shrum's work schedule so it would conflict with his duties as a minister. Forced to choose between his police and his ministerial responsibilities, Officer Shrum resigned from the police department and filed this lawsuit. We must now decide whether the City of Coweta and the Chief of Police violated Officer Shrum's constitutional rights to freedom of association, free exercise of religion, and substantive due process.
Rex Shrum has served as pastor of the Coweta Church of Christ, in eastern Oklahoma, since April 1990. In 1994, he joined the police force of the City of Coweta. He arranged with his new employer to give him Wednesday evenings and Sundays off, so that he could continue to carry out his ministerial duties. He worked the day shift Monday through Friday as a detective. Officer Shrum was also a member of the local lodge of the Fraternal Order of Police (FOP), which was the certified bargaining agent for its members in the Coweta Police Department.
Problems arose over Officer Shrum's time sheets. He was supposed to put his time sheets in the report box of Assistant Chief of Police Derrick Palmer on Friday night, before leaving for the weekend, so the time sheets would be submitted by the 8:00 Monday morning deadline. Officer Shrum had repeatedly turned in time sheets late and had been reprimanded several times. On Monday morning, June 18, 2001, the records clerk in the Police Department could not find Officer Shrum's time sheet for the previous week. On this occasion Officer Shrum denied any wrongdoing. Another officer, Sergeant Mike Sullivan, stated that he saw Officer Shrum's time sheet in Assistant Chief Palmer's box. Nevertheless, Officer Shrum was suspended by the Department for three days without pay. His suspension was announced in a letter from Assistant Chief Palmer, dated June 22, 2001, which warned that further infractions would lead to "progressive disciplinary action." Officer Shrum filed a grievance, which the City denied and which was submitted to arbitration on September 12, 2001, in accordance with the collective-bargaining agreement between the City and the FOP.
On October 2, 2001, Officer Shrum was again suspended by Assistant Chief Palmer. This time, for submitting his time sheet late, he was suspended for five days without pay and put on probation for six months. Officer Shrum again filed a grievance. This grievance was later settled, with the City agreeing to pay Officer Shrum for the days he was suspended.
In early 2002 Officer Shrum was reassigned to work as a patrolman under Sergeant Joe Gist. In the new position he would continue on the day shift but would not have Sundays off. To clear Sundays for his ministerial duties, Officer Shrum asked Sergeant Gist for permission to move to the evening or midnight shift. Sergeant Gist agreed, provided that Officer Shrum could arrange with the evening or midnight shift supervisor to have an officer replace him on the day shift. Officer Shrum made the necessary arrangements with Sergeant Sullivan, who was the midnight shift supervisor and also the president of the FOP lodge. Another officer moved to the day shift; Officer Shrum worked the midnight shift and was off Sundays and Mondays.
On January 8, 2002, Officer Shrum received his semi-annual performance review. In his review of Officer Shrum six months earlier, Assistant Chief Palmer had marked two of the twelve evaluated areas as ones where "improvement is necessary": "Adherence to Policy" and "Interpersonal Relationship." His new supervisor, Sergeant Gist, conducted the January 8 review and marked the same two areas "unsatisfactory." In explaining the rating for "Adherence to Policy," Sergeant Gist noted that Officer Shrum had been For "Interpersonal Relationship," Sergeant Gist wrote that a "situation" with Officer Shrum had Assistant Chief Palmer signed and approved the performance review.
On January 29, 2002, the arbitrator reached a decision in the first time-sheet dispute. The arbitrator found that Officer Shrum had not been late in submitting his time sheet due on June 18, 2001, and that the City violated the collective-bargaining agreement by suspending him. The arbitrator directed the City to "rescind its discipline . . . in every respect," to make Officer Shrum whole, to "eliminate any record of this discipline" from his personnel file, and never to consider the event to Officer Shrum's detriment. Two weeks later, Palmer, who had been promoted to Chief of Police, wrote to Mr. Whitlock, the city manager, advising him to resist the arbitrator's decision until compelled by a court to comply. In his letter to Mr. Whitlock, Chief Palmer did not deny the substance of Officer Shrum's allegations; he insisted rather that the grievance was not timely filed. Meanwhile, Officer Shrum continued to work the midnight shift with Sundays and Mondays off, under the arrangement worked out with Sergeant Gist and Sergeant Sullivan.
On March 15, 2002, Chief Palmer wrote to Sergeant Gist that he was "very concerned" about Officer Shrum's "performance level." Chief Palmer directed Sergeant Gist to assign Officer Shrum to the day shift "for a minimum of 30 days" so he could receive "remedial training in supervision, ethics and interpersonal relationships." At his deposition, Chief Palmer could not recall the specific problems with Officer Shrum's performance or the specific remedial training that was needed. Chief Palmer did recall that if Officer Shrum failed to work Sundays under this new arrangement, he could be fired.
Remedial training was also ordered for Sergeant Sullivan, who had testified in Officer Shrum's favor at arbitration. Sergeant Sullivan received a negative review in February 2002, was demoted and assigned remedial training in March 2002, and was fired in April 2002. An arbitrator ordered his reinstatement and called the case "a classic example of what not to do when administering discipline." The arbitrator later reiterated the order and found that Sergeant Sullivan's halting reinstatement had been marked by "the taint of retaliation."
On March 17, two days after the letter from Chief Palmer, Sergeant Gist instructed Officer Shrum to begin working the day shift on March 19. Concerned about a conflict with his ministerial duties, Officer Shrum asked Sergeant Gist whether he could continue to have Sundays off. The parties dispute Sergeant Gist's answer. The Defendants maintain that Sergeant Gist told Officer Shrum that he could not take Sundays off because a more senior officer had selected that day, and according to the collective-bargaining agreement off-days were selected by seniority. Officer Shrum's evidence is quite different. He submitted a deposition of Sergeant Gist to the effect that another officer was willing to trade Sunday shifts with Officer Shrum. According to Sergeant Gist, Chief Palmer disapproved, insisting that Officer Shrum work on Sundays so that he could be monitored.
On March 22, 2002, Officer Shrum wrote a resignation letter to Chief Palmer, effective April 3, 2002. In the letter, Officer Shrum described his hiring in 1994 as being done "with the understanding by both the chief of police, and the city manager that my responsibilities at the Church had to be met," and he described the ease with which his ministerial duties had been accommodated. According to Officer Shrum, in his eight years on the force he had created no problems and caused no complaints from other officers. Nevertheless, Officer Shrum said he was resigning because of Chief Palmer's "continued religious harassment" — "by forcing me to work on Sunday you have given me no other choice."
On August 22, 2003, Officer Shrum filed this suit in federal district court. He brought many claims: violations of his federal constitutional rights of free speech, freedom of assembly/association, and free exercise of religion; violation of the Oklahoma Fire and Police Arbitration Act; wrongful termination against public policy; violation of the Oklahoma Constitution; lack of substantive due process; intentional infliction of emotional distress; and violation of the Oklahoma Religious Freedom Act. Officer Shrum sought actual and compensatory damages from the City and actual, compensatory, and punitive damages from Chief Palmer and from the City Manager, Mr. Whitlock, both of whom he sued in their individual capacities.
By consent of the parties, the case was presided over by a Magistrate Judge, whose decision will be referred to as that of the district court. See Fed.R.Civ.P. 73; 28 U.S.C. § 636(c)(3). The Defendants moved for summary judgment on all claims. The district court granted the motion in part, dismissing all claims against Mr. Whitlock on qualified immunity grounds, dismissing the First Amendment free speech claim and the equivalent claim under the...
To continue reading
Request your trial
-
Logar v. W. Va. Univ. Bd. of Governors
...(6th Cir. 1992) (same); Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 958 (7th Cir. 1988) (same); see also Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1145 (10th Cir. 2006) (Tenth Circuit has yet to decide which property interests in employment are protected by substantive due proces......
-
Janny v. Gamez
...officials interfered with religious exercise not out of hostility or prejudice, but for secular reasons." Shrum v. City of Coweta , 449 F.3d 1132, 1144 (10th Cir. 2006). Indeed, "courts have repeatedly rejected" the notion that Free Exercise Clause claims must be premised on religious animu......
-
Ashaheed v. Currington
...First Amendment applies to exercises of executive authority no less than it does to the passage of legislation." Shrum v. City of Coweta , 449 F.3d 1132, 1140 (10th Cir. 2006) ; see Sause v. Bauer , ––– U.S. ––––, 138 S. Ct. 2561, 2562-63, 201 L.Ed.2d 982 (2018) (police officers who ordered......
-
Moya v. Garcia
...textual source of constitutional protection,’ a more general claim of substantive due process is not available." Shrum v. City of Coweta , 449 F.3d 1132, 1145 (10th Cir. 2006) (quoting Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). Our sister circuits are di......
-
Constitutional violations (42 U.S.C. §1983)
...of freedom of association need not demonstrate that his association with union is matter of public concern. Shrum v. City of Coweta , 449 F.3d 1132, 1138 (10th Cir. 2006). “Matters of public concern” are those of interest to community, whether for social, political, or other reasons, while ......
-
Chapter 22 - § 22.2 • FEDERAL CIVIL RIGHTS STATUTES
...e.g., Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463, 464-65 (1979) (union association); Shrum v. City of Coweta, 449 F.3d 1132 (10th Cir. 2006) (recognizing that in the context of public employee labor unions, there is no requirement that an employee demonstrate that hi......
-
Chapter 22 - § 22.2 • federal civil rights statutes
...e.g., Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463, 464-65 (1979) (union association); Shrum v. City of Coweta, 449 F.3d 1132 (10th Cir. 2006) (recognizing that in the context of public employee labor unions, there is no requirement that an employee demonstrate that hi......
-
A Call for Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action
...Amendment is to be regarded as having a reflex character that applies to all levels of government). 244. See Shrum v. City of Coweta, 449 F.3d 1132, 1142-43 (10th Cir. 2006). In Shrum, Judge McConnell opined that the meaning behind the use of the word "Congress" in the First Amendment must ......