Cooper v. Town of Bar Nunn, 02-CV-1072-B.
| Decision Date | 14 April 2003 |
| Docket Number | No. 02-CV-1072-B.,02-CV-1072-B. |
| Citation | 257 F.Supp.2d 1363 |
| Parties | Donald A. COOPER, Plaintiff, v. TOWN OF BAR NUNN, and Charles Anderson, individually and in his Capacity as Fire Chief of the Town of Bar Nunn, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Keith R. Nachbar, Casper, WY, for Plaintiff.
Judith A. Studer, Rick L. Koehmstedt, Schwartz Bon Walker & Studer, Casper, WY, for Defendant.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case arises from the Bar Nunn Volunteer Fire Department's termination of Plaintiff. The matter is before the Court on Defendants' Motion for Summary Judgment. Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:
Statement of Parties and Jurisdiction
Plaintiff Donald A. Cooper ("Plaintiff") is a 59-year-old resident of Natrona County, Wyoming. Plaintiff was an employee of Defendant Town of Bar Nunn, Wyoming.
Defendant Town of Bar Nunn, Wyoming ("Bar Nunn") is a municipal corporation in Wyoming. Defendant Charles Anderson ("Anderson") is Fire Chief for Bar Nunn.
This Court exercises federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. Venue is proper under 28 U.S.C. § 1391(b).
Plaintiff volunteered to be a member of the Bar Nunn Volunteer Fire Department in 1996. When Plaintiff joined, he had recently been terminated from the Natrona County Volunteer Fire Department for insubordination.
Plaintiff filled out a membership application for the Bar Nunn Volunteer Fire Department ("Department"). This application did not contain any guarantees of continued membership, and it explained that the position was strictly volunteer and that the applicant was to donate time to the Department as a public service. The Department approved Plaintiff's application, and he officially became a member. Between 1996 and 1998, Plaintiff regularly attended training meetings, business meetings, and fire calls for the Department.
In late 1999 or early 2000, Department members began discussing the idea of a live training exercise on the 7L Ranch. The ranch was owned by Plaintiff's brother, Douglas Cooper, and was located north of Casper. This "7L Burn" exercise was planned for April 8, 2000. The members who led the 7L Burn had little or no training on the methods and techniques for safely conducting a prescribed burn.
A planning meeting for the 7L Burn exercise was held on April 5, 2000. At that meeting, a "burn plan" was handed out to all members. The members also discussed the specific weather parameters in which the exercise would take place. Plaintiff did not attend this meeting. Plaintiff and Anderson were not present at the time the 7L Burn was planned or conducted.
On April 8, 2000, all available Department members traveled to the 7L Ranch. The location for the burn was very flat and covered with grass and sagebrush. Because of recent snowfall, the sagebrush was wet. Although the grass had dried somewhat, overall damp conditions prevailed. The weather forecast indicated low winds, which would be favorable for the burn exercise. Thus, the Department members proceeded with the burn as scheduled, after having another on-site meeting to discuss safety. Weather and humidity readings were taken again, and Douglas Cooper brought an extra water truck to the location of the exercise.
At the ranch, the firefighters lit the prairie on fire as a training exercise, without first having obtained predictions of fire behavior, fire travel speed, fire intensity, weather conditions, or an assessment of fuel moisture or fuel load. Additionally, the Department had not notified the public, the Bureau of Land Management ("BLM"), or the Wyoming State Forestry Division about the burn exercise.1 During the burn exercise, the fire was controlled and did not cause any unwanted property damage.
At all times during the exercise, the weather conditions were within the safety parameters articulated in the burn plan. However, the exercise was largely unsuccessful because the wet conditions made burning difficult. After the fire was fully extinguished, the members returned to Bar Nunn. Douglas Cooper, who was not on location when the exercise occurred, remained behind to ensure that there were no problems with the area. No injuries or adverse incidents resulted from the exercise.
At the regularly scheduled meeting, on April 19, 2000, Department members had an open forum to discuss and critique the exercise. Plaintiff attended and posed various questions to Assistant Chief Charles Johnson ("Johnson"). Plaintiff asked if the Department had obtained a site-specific ("spot weather") forecast from the BLM prior to beginning the exercise, and Johnson responded that it had not. Plaintiff then asked if the burn had performed as expected, and Johnson answered that he had not done any fire behavior calculations or made any estimates of the fire behavior. Next, Plaintiff asked of the room in general whether anybody had previous prescribed fire experience. Plaintiff learned that one or two other members had such experience. Plaintiff asked no other questions and made no other comments at that meeting. Plaintiffs questions were posed in an appropriate, courteous, and businesslike manner.
As the meeting was ending, Plaintiff took Johnson aside and voiced his concerns about conducting the burn without having observed proper safety precautions. Plaintiff told Johnson that he was amazed at what they had done, and that they were fortunate to have gotten away with the manner in which they conducted the burn. Plaintiff also told Johnson that he needed to consider him as a resource, and that Plaintiff could be helpful in the future. Plaintiff believes that Johnson took offense to his comments, although the manner and tone of the discussion were no different than in a typical discussion at the fire station. At any rate, after a couple of minutes, the parties went home.
A day or two after the April 19 meeting, Anderson was informed of Plaintiffs behavior and told that Plaintiff continued badgering one or two members after the meeting regarding the training exercise. Anderson was also advised that Plaintiff had gotten into an argument with Johnson, who was acting as Fire Chief at the meeting. Based on this information, Anderson suspended Plaintiff, pending further investigation into the matter. Plaintiff was warned not to set foot on Department property or to respond to calls, or he would be arrested for trespassing. Plaintiff complied with the order.
Anderson interviewed the Department members present at the April 19 meeting. Anderson determined that Plaintiff could return to the Department with full duties and scheduled a meeting with Plaintiff to discuss the suspension. Around May 15, 2000, Anderson and Plaintiff met for lunch. Anderson informed Plaintiff that he had some work to do to resolve the matter, and that in the meantime, Plaintiff would stay on suspension.2
Plaintiff remained on suspension for a lengthy period of time and never received direct word from Anderson that his suspension had ended. In the winter of 2000-01, Plaintiff saw Anderson at a restaurant, where Anderson told Plaintiff that everything would be fine. In June 2001, Plaintiff saw Anderson at a party. When Plaintiff tried to initiate conversation, however, Anderson turned away. About two weeks later, without any warning, Plaintiff received a letter indicating that he was terminated from the Department because of his actions at the April 19, 2000 meeting.
Plaintiff filed his Complaint on November 4, 2002, alleging that Defendants violated his First Amendment rights by terminating him from the Department in retaliation for his exercise of free speech.3 Plaintiffs Complaint asks for actual and punitive damages, attorneys' fees and costs, and injunctive relief in the form of reinstatement with the Department.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court views the evidence in the light most favorable to the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996).
The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to establish the existence of an essential element of the claims on which it bears the burden of proof at trial. Id. "While the movant bears the burden of showing the absence of a genuine issue of material fact, the movant need not negate the nonmovant's claim." Jenkins, 81 F.3d at 990.
To satisfy this burden, the nonmoving party must go beyond the pleadings and designate specific facts to make a showing that there is a genuine issue for trial. Ford v. West, 222 F.3d 767, 774 (10th Cir.2000). In order to successfully resist summary judgment, there must be sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, a "mere ... 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." Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997).
A four-step analysis is used to resolve First Amendment retaliation claims. See Pickering v. Bd. of Educ., 391...
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