Burns v. Board of County Com'Rs of Jackson County

• Decision Date: 03 June 2003
• Docket Number: No. 02-3121.,02-3121.
• Citation: 330 F.3d 1275
• Parties: Rick D. BURNS, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF JACKSON COUNTY, Kansas; Edward V. Bruns; John T. Grau; Ellen Schirmer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

330 F.3d 1275

Rick D. BURNS, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF JACKSON COUNTY, Kansas; Edward V. Bruns; John T. Grau; Ellen Schirmer, Defendants-Appellees.

No. 02-3121.

United States Court of Appeals, Tenth Circuit.

June 3, 2003.

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Deanne Watts Hay (Stanley R. Parker with her on the briefs), Parker & Hay, L.L.P., Topeka, KS, for the Plaintiff-Appellant.

J. Steven Pigg, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, KS, for the Defendants-Appellees.

Before LUCERO, BALDOCK and McCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

This civil rights appeal raises the following notable issue: whether deposition corrections are subject to a "sham affidavit" analysis. We answer this question in the affirmative. As to the merits of plaintiff's constitutional challenge, arising from the termination of his employment with the Jackson County, Kansas Road and Bridge Department (the "Department"), we conclude that plaintiff has failed to show a genuine issue of material fact as to whether his termination was racially motivated in violation of the Equal Protection Clause of the Fourteenth Amendment, or intended to punish speech protected by the First Amendment. Thus, the district court properly granted summary judgment to the defendants. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I

Rick Burns, the plaintiff in the instant case, is one-quarter Native American and an enrolled member of the Pottawatomie Indian Tribe. From 1991 until January 28, 2000, Burns was employed by the Department, first as a truck driver and then as a road-grader operator. In November 1999, Burns's supervisor Ed Bruns wrote to the Department employees reminding them of the time they were required to be on the job and that travel time was not compensated. A month later, Burns and several other Department employees met with County Counselor Ed Dunn to discuss whether they would be covered by workers' compensation insurance for any accidents that occurred on the way to work. During this meeting, Burns allegedly made a remark about the County Commissioners to the effect that "you can't teach the dumb son of a bitches anything." (1 Appellant's App. at 152.)

Following this meeting with Dunn, supervisor Ed Bruns implemented a new pay plan that divided employees into "A" and "B" categories, with the "A" category employees receiving higher pay. Some employees, including Burns, believed that Bruns had placed the employees who went to talk to Dunn in the "B" category because they were "troublemakers." (1 id. at 86.) Burns confronted Bruns about the new pay plan, but Bruns provided no explanation.

On January 24, 2000, County Commissioner John Grau came to Burns's house at Burns's request, to discuss certain concerns Burns had regarding the Department. In addition to the new pay plan, Burns was concerned about (1) why the Department had traded a bulldozer for a Caterpillar and (2) why the Department had traded a Ford pickup for a Chevy pickup. Burns considered it strange that the Department purchased the new Caterpillar without testing it first. Regarding the pickup trade, Burns considered it suspicious that the bridge foreman, who had often ridden in the old Ford pickup, purchased the Ford when the Department put it up for sale.

At his meeting with Grau, Burns began by discussing the equipment purchases. The conversation then turned to the new pay plan, and Burns asked Grau who was responsible for the decision. Grau responded "you can blame it on me." Pressed further by Burns, Grau explained that "we all made it." (1 id. at 78.) By all accounts, Burns then became angry and called Grau a "lying motherfucker." (Appellant's Br. at 4; Appellees' Br. at 5.)

What happened next is disputed by the parties. Burns claims that Grau lunged at him, backing Burns up against Grau's truck, and Burns put up his hand "to keep him away." (1 Appellant's App. at 78.) Burns also alleges that Grau called him a "no good Indian." (1 id.) George Uhl, another employee who was present during the meeting between Grau and Burns, confirms Burns's account of the altercation. Grau gives a different account of events,¹ claiming that Burns was the aggressor and that Burns grabbed Grau in the neck and shoulder area. Grau denies calling Burns a "no good Indian." (1 id. at 181.) Both parties agree that the rest of the conversation was less heated and the two men parted in a seemingly amicable manner.

Following this altercation, Grau called supervisor Ed Bruns and reported what had happened, telling Bruns "that Rick had asked him to stop by and he'd stopped by and Rick got hot and cussed him and calling him names [sic] and grabbed him." (1 id. at 124.) Grau told Bruns what profane epithet Burns had used, and explained that Burns had been the aggressor, grabbing Grau close to his neck and shoulder. Grau explained to Bruns that Burns was upset about the pay plan and the equipment purchases, and told Bruns that Uhl had been present and shared some of the same concerns. On January 28, Bruns met in person with Grau, bridge foreman Terry Mick, and County Counselor Dunn. Grau related the altercation in more detail, but said nothing about having called Burns a "no-good Indian." (1 id. at 131.)

After this meeting, supervisor Bruns decided to terminate Burns. On January 28, 2000, Burns received the following letter from Bruns:

The actions that you were involved in with Jackson County Commissioner John Grau on January 24, 2000 near your home, were of such a serious nature as to result in the immediate termination of your employment with the Jackson County Road and Bridge Department.

Such actions as reported to me would constitute gross misconduct, the threatening or committing of physical violence against the person of John Grau, and other violations of your employment.

I want to advise you that you may have a hearing before the Board of County Commissioners concerning this termination of your employment. If you desire a hearing, please request one within ten (10) days upon the receipt of this letter by calling the Jackson County Clerk's office.

(1 id. at 117.) Supervisor Bruns never indicated that he was irritated by the fact that Burns or anyone else had complained about trading a pickup truck, the purchase of a bulldozer, or the pay plan.

Burns requested, and received, a post-termination hearing before the Jackson County Board of Commissioners ("Board"), held on February 14, 2000. Grau, the Chairman, turned the meeting over to Commissioner Ellen Schirmer because he had been involved in the incident, but Grau did not abstain from voting. Before voting, the Commissioners consulted the minutes from a previous meeting, at which the Board had delegated to the Department supervisor the power to hire and fire Department employees. After the minutes were reviewed, Commissioner Ogden "moved to not terminate Rick Burns," but the motion "died for the lack of a second." (2 id. at 372.) Commissioner Grau then "moved to terminate Rick Burns. Ellen Schirmer seconded and the motion carried 2/1. [Ogden] voted against the motion." (2 id.) Thus, Burns's termination was upheld by a two-to-one vote.²

After the Board declined to reinstate him, Burns filed suit under 42 U.S.C. §§ 1981 and 1983 against the Board, supervisor Bruns, and Commissioners Grau and Schirmer. In this suit, Burns claims that his discharge was in retaliation for his exercise of First Amendment rights and/or on account of his Native American heritage and therefore a violation of the Equal Protection Clause of the Fourteenth Amendment.³ Defendants moved for summary judgment, which was granted by the district court. Burns now appeals the grant of summary judgment to the defendants.

II

"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). Summary judgment is appropriate "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). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms, 165 F.3d at 1326. However,

[a]lthough the movant must show the absence of a genuine issue of material fact, he or she need not negate the nonmovant's claim. Once the movant carries this burden, the nonmovant cannot rest upon his or her pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof. The mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is genuine; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant. If there is no genuine issue of material fact in dispute, we determine whether the district court correctly applied the substantive law.

Id. (quotations and citations omitted). In First Amendment cases in particular, "an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Schalk v. Gallemore, 906 F.2d 491, 494 (10th Cir.1990) (quotation omitted).

III

We proceed to consider the merits of Burns's claim under § 1983. Burns raises two separate constitutional claims, which we now address. First, Burns asserts that he was terminated because of his Native American ethnicity, in violation of the Equal Protection Clause of the Fourteenth Amendment. The district court...