Walker v. Town of Hennessey
| Decision Date | 17 June 2013 |
| Docket Number | No. CIV–11–1364–HE.,CIV–11–1364–HE. |
| Parties | Rodney WALKER, Plaintiff, v. TOWN OF HENNESSEY, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
OPINION TEXT STARTS HERE
Loren F. Gibson, Gibson & Associates PLC, Oklahoma City, OK, for Plaintiff.
David W. Lee, Emily B. Fagan, Lee Law Center PC, Oklahoma City, OK, for Defendant.
Plaintiff Rodney Walker filed this action against his former employer, the Town of Hennessey (“Hennessey”), asserting procedural and substantive due process claims and a First Amendment retaliation claim. Defendant Hennessey has filed a motion for summary judgment, which is appropriate only “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 genuine dispute as to a material fact ‘exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.’ ” Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1141 (10th Cir.2011) (quoting Zwygart v. Bd. of Cnty. Comm'rs, 483 F.3d 1086, 1090 (10th Cir.2007)). Having considered the submissions of the parties in light of this standard, the court concludes defendant's motion should be granted in part and denied in part.
The Town of Hennessey operates under the statutory town board of trustees form of government. See11 Okla. Stat. §§ 12–101–12–114. Tiffany Tillman is the Town Clerk and Town Administrator. On April 11, 2002, the Town Board of Hennessey approved the Employee Handbook, which has applied to all Hennessey employees since that date. While the Handbook specifies that the Town reserves the right “to revise, supplement or rescind any policies or portion of the handbook,” it excepts from any changes its “employment-at-will policy permitting [the employee] or the Town of Hennessey to end [their] relationship for any reason at any time.” Doc. # 44–2, Introductory Statement.1 The Handbook also includes the following provisions.2
The following information is to establish for the employees in the Town of Hennessey's service a system of personnel rules based on merit principles and designed to secure more efficient administration governing the appointment, removal, promotion, transfer, layoff, and discipline of such employees and other benefits of town government on the basis of merit and fitness.
Employment with the Town of Hennessey is voluntarily entered into, and the employee is free to resign at will at anytime, with or without notice or cause, so long as there is no violation of applicable federal or state law. Policies set forth in this handbook are not intended to create a contract, nor are they to be construed to constitute contractual obligations of any kind or a contract of employment between the Town of Hennessey and any of its employees. The provisions of the handbook have been developed at the discretion of the Board of Trustees and, except for its policy of employment-at-will, may be amended or cancelled at any time, at the Town of Hennessey Board of Trustees sole discretion.
126 Progressive Discipline ...
Although employment with the Town of Hennessey is based on mutual consent and both the employee and the Town of Hennessey have the right to terminate at will, with or without cause or advance notice, the Town of Hennessey may use progressive discipline at its discretion.
Disciplinary action may call for any of four (4) steps—verbal warning, written warning, suspension with or without pay, or termination of employment—depending on the severity of the problem and the number of occurrences. There may be circumstances when one or more steps are bypassed. Progressive discipline means that, with respect to most disciplinary problems, these steps will normally be followed: a first offense may call for a verbal warning; a next offense may be followed by a written warning; another offense may lead to a suspension; still another offense may then lead to termination of employment.
Dismissals are discharges or separations made for misconduct, inefficiency or other just cause. A department head or the Town Administrator may dismiss any employee at any time with the approval of the Board of Trustees. But no dismissal of a regular employee shall take effect unless prior to the effective date thereof, the department head gives to such employee a written statement, setting forth in substance the reasons therefore and files a copy of such statement with the Board of Trustees and in the employee's personnel file.
The Board of Trustees may dismiss or suspend without pay, upon the recommendation of the Town Administrator or department head, an employee for any just reasonable cause. The following are some of the examples of just and reasonable cause:
Refusal to comply with the proper order of an authorized superior.
Destruction or theft of property belonging to the Town of Hennessey.
A conviction of a felony or misdemeanor involving moral turpitude.
Violation of policies and procedures of a department or the Town which may bring the department or the Town into public disrepute or impair its efficiency or service.
Acceptance of a gift or fee given with the intent of influencing the employee in performance of their duties.
The direct use of official position of authority for personal profit or advantage.
Falsification of any records including falsification of any application papers.
The Town Administrator or department head may demote an employee to a different pay grade by changing their job classification or reduce the salary of an employee within the range provided and according to the rules of pay for cause. A written statement of the reasons for such actions shall be furnished to the affected employee and the copy filed with the Board of Trustees and in the personnel file of the affected employee at least (5) five days prior to the effective date of action. No demotion shall be made as a disciplinary action. Final approval of any demotion shall reside with the Board of Trustees.
Doc. # 49–1.
Plaintiff signed an Employee Acknowledgment Form dated September 24, 2002, which states in pertinent part:
I have entered into my employment relationship with the Town of Hennessey voluntarily and acknowledge that there is no specified length of employment. Accordingly, either I or the Town of Hennessey can terminate the relationship at will, with or without cause, at any time, so long as there is no violation of applicable federal or state law.
Since the information, policies and benefits described here are necessarily subject to change, I acknowledge that revisions to the handbook may occur, except to the Town of Hennessey's policy of employment-at-will.... Furthermore, I acknowledge that this handbook is neither a contract of employment nor a legal document.
Doc. # 44–3.
On May 13, 2009, five Trustees of the Town Board voted unanimously to demote plaintiff from Chief of Police to patrolman and to terminate another Hennessey police officer, Don Thrash, effective immediately. The next day the Town Board voted to appoint Terry Gillock as interim police chief. In July, Hank Weber was hired as Hennessey's new police chief.
The Hennessey Board of Trustees voted to terminate plaintiff on November 16, 2009. Police Chief Weber recommended his termination and testified that it was because of plaintiff's inadequate job performance. Plaintiff responds that during his twenty year tenure with the Hennessey police department he was never disciplined and never received a less than satisfactory job performance review. In fact, he asserts, in August 2010, Chief Weber wrote him a glowing recommendation.
Plaintiff asserts that when he was demoted and terminated the procedure outlined in the Handbook for such employment actions was not followed (no written statement was prepared detailing the reasons for the action), that no reason or explanation was given for either employment decision and he was not provided a hearing or allowed to respond to any charges.3 He contends he was discharged in retaliation for exercising his First Amendment right of free speech.4
Plaintiff bases his retaliation claim on several different incidents which he contends involved “protected speech,” including his proposed testimony in a criminal trial (“trial testimony”). Plaintiff was subpoenaed to testify in the trial of Michael Ethan Moeller, who was charged with assault and battery with a dangerous weapon for shooting Alex Hardin, the mayor's son. Plaintiff advised Chief Weber between November 5 and November 9, 2009, that he anticipated testifying that the shooting was in self-defense. Weber then informed Tillman of the subpoena and plaintiff's anticipated testimony. One of the town trustees, Gritz, was present during the conversation.
The second basis for plaintiff's free speech claim stems from another employee's alleged observation, around May 5, 2009, of a town employee possibly masturbating in his office while on duty. Plaintiff reported the incident to the town administrator, although he asserts it was not “part of [his] job function, nor a requirement of his job” to report the incident to the Kingfisher County Sheriff's Department. Doc. # 49, p. 15. Plaintiff asserts that someone did report the matter to the sheriff's department and that angered Mayor Hardin, who, a couple of days later, decided plaintiff probably was the source of the information. He expressed that opinion to Tillman and at least one town trustee. Plaintiff was told that all the trustees believed he had reported the incident to the sheriff's department. The town attorney also believed that plaintiff was the person who contacted a tv station about the matter, although plaintiff testified he did not.
Plaintiff claims he also engaged in protected speech when he reported to Tillman, on...
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