DeFries v. Town of Washington, Okl.

• Decision Date: 31 January 1995
• Docket Number: No. CIV-94-1146-A.,CIV-94-1146-A.
• Citation: 875 F. Supp. 756
• Parties: Matt DeFRIES, Plaintiff, v. TOWN OF WASHINGTON, OKLAHOMA; Armelda Moody, Individually, and as former member of the Board of Trustees of the Town of Washington; Ricky Smith, Individually, and as a former member of the Board of Trustees of the Town of Washington; Joann Davidson, Individually, and as a former member of the Board of Trustees of the Town of Washington; Larry Bonnell, Individually and as a former City Attorney of the Town of Washington, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

875 F. Supp. 756

Matt DeFRIES, Plaintiff, v. TOWN OF WASHINGTON, OKLAHOMA; Armelda Moody, Individually, and as former member of the Board of Trustees of the Town of Washington; Ricky Smith, Individually, and as a former member of the Board of Trustees of the Town of Washington; Joann Davidson, Individually, and as a former member of the Board of Trustees of the Town of Washington; Larry Bonnell, Individually and as a former City Attorney of the Town of Washington, Defendants.

No. CIV-94-1146-A.

United States District Court, W.D. Oklahoma.

January 31, 1995.

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F. Andrew Fugitt, Kerr Irvine Rhodes & Ables, Oklahoma City, OK, for Matt DeFries.

Peter A. Erdoes, David W. Kirk, Kirk Erdoes Watts & Contreras, Oklahoma City, OK, for Town of Washington, Okl.

Peter A. Erdoes, David W. Kirk, Kirk Erdoes Watts & Contreras, Oklahoma City, OK, for Armelda Moody, Ricky Smith, Joann Davidson, Larry Bonnell.

ORDER

ALLEY, District Judge.

Before the Court is defendants' motion to dismiss or for summary judgment, which the Court has previously advised the parties would be decided pursuant to Rule 56, Fed. R.Civ.P. The parties have received ample opportunity to present all pertinent materials, and the motion is now ready for decision.

The following statement contains undisputed facts presented by defendants in their initial and reply briefs, as well as additional facts presented by plaintiff in his response and surreply briefs. For purposes of this Order, the Court will assume all are true.

STATEMENT OF UNDISPUTED FACTS

Plaintiff worked for the Town of Washington, Oklahoma. He was hired in September 1991 to do water department and maintenance work. About a month later, he was given office duties and the position of deputy town clerk. This change occurred when the person who had served as town clerk resigned. The Board of Trustees passed an ordinance combining the offices of town clerk and town treasurer, and appointed the elected town treasurer to the newly created office. Plaintiff's job was expanded to include performance of the former clerk's duties. The Board could not have named plaintiff town clerk because he was not a town resident.

In May 1992, Mayor Armelda Moody became concerned about the Town's financial situation after reviewing records of water and sewer accounts and bank deposits. She called an emergency meeting of the Board of Trustees on May 11 to discuss immediate concerns about the Town's general fund balance. Plaintiff, who had been keeping account ledgers and depositing funds received from utility customers, was relieved of his duties with pay due to "bookkeeping inconsistencies". A hearing was set for May 18.

Plaintiff hired legal counsel, Andrew Fugitt. On May 14, Town Attorney Larry Bonnell sent Mr. Fugitt a copy of disciplinary procedures prepared for the Town. Mr. Bonnell also promised to inform Mr. Fugitt of the specific allegations against plaintiff and to allow time to prepare for the hearing, which was postponed. On June 1, the Board of Trustees passed an ordinance creating a formal disciplinary procedure for Town employees, Ordinance No. 1992-3. This disciplinary procedure was later invoked for plaintiff when the parties were unsuccessful in resolving his suspension through a proposal that he be restored to a job with only field duties.

On July 27, Mr. Bonnell wrote to advise Mr. Fugitt of the specific allegations against plaintiff and to reschedule his hearing for August 3. Mr. Bonnell said an independent accountant's report showed that approximately $1,400 received by Mr. DeFries between December 1991 and May 1992 could not be referenced to a bank deposit. Mr. Fugitt had previously received a copy of the accountant's report.

Plaintiff's hearing finally took place at a special meeting of the Board of Trustees on August 11, 1992 during an executive session. Although this session was not open to the public, plaintiff and his attorney attended all proceedings except the Board's deliberations. Mr. Fugitt also made a written response to the allegations against plaintiff. At the conclusion of the executive session, the Board voted to terminate Mr. DeFries' employment. Afterwards, Mr. Bonnell sent written notice of the reasons for plaintiff's discharge, again stating that the accountant's report showed $1,400 missing while Mr. DeFries was receiving utility payments.

Within the time period set by Ordinance No. 1992-3, Mr. Fugitt sent the Town notice of appeal from the Board's decision. He also requested an opportunity to review and copy documents related to the charges against Mr. DeFries, including utility ledgers, account statements and bank records. In response, the Board of Trustees selected a separate Appeal Board. Also, Mr. Bonnell began collecting the requested documents and later produced copies.

On September 8, 1992, at a regular meeting of the Board of Trustees, a group of town residents presented a statement of grievances and asked the Board members to resign. Although the list of grievances is not part of the court record, meeting minutes reflect that the group's spokesman complained about the way Mr. DeFries' discipline had been handled. On this and other occasions, the charges against Mr. DeFries were discussed in Board meetings attended by the public. According to Mrs. DeFries, some Board members and Mr. Bonnell made comments that implicitly accused her husband of taking the missing money.

On October 29, Mr. Bonnell notified Mr. Fugitt that the appeal hearing was set for November 6 and provided a list of witnesses and exhibits that would be presented. By November 16, however, all of the Town's trustees and officers had resigned. The Appeal Board finally held Mr. DeFries' hearing on January 13, 1993. The Appeal Board did not issue findings about whether Mr. DeFries' dismissal was justified but recommended further investigation of the matter. The Board of Trustees never acted on that recommendation. But in April 1994, town residents were advised in a newsletter that an extended investigation by federal, state and county authorities found no money missing and no wrongdoing by Mr. DeFries.

Plaintiff filed this suit in July 1994. He claims under 42 U.S.C. § 1983 that defendants violated his fourteenth amendment rights to procedural and substantive due process and deprived him of both liberty and property interests. Under state law, plaintiff claims that his discharge violated public policy and breached an employment contract arising from the Town's disciplinary procedures. Defendants have moved for summary judgment on the grounds that plaintiff can prove no federal claim and his state law claims fail on the merits and for lack of subject matter jurisdiction.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the pleadings, affidavits, depositions and other evidence on file "show that there is no genuine issue 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). When considering a motion for summary judgment, a court must view all facts and inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). However, only genuine disputes over facts that might affect the outcome of the case under the governing substantive law preclude the entry of summary judgment. Id. at 248, 106 S.Ct. at 2510. "A trial judge must bear in mind the actual quantum and quality of proof necessary to support liability" and must determine whether the proffered evidence is sufficient to allow a reasonable jury to find liability. Id. at 254, 106 S.Ct. at 2513. If the evidence leads to only one reasonable conclusion, summary judgment is proper. Id. at 250, 106 S.Ct. at 2511.

A party's failure to make a sufficient showing on an essential element of his case renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Palermo v. First Nat'l Bank & Trust Co., 894 F.2d 363, 367 (10th Cir.1990). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. A movant need only point out that there is an absence of evidence to support an essential element of his opponent's case. Id. at 325, 106 S.Ct. at 2553-54. Then, the non-movant must go beyond the pleadings and set forth specific facts demonstrating that there is a triable issue. Id. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Fed.R.Civ.P. 56(e).

PROPERTY INTEREST AND PROCEDURAL DUE PROCESS

Plaintiff claims he had a property interest in continued employment with the Town that could not be taken away without due process. Two Supreme Court decisions circumscribe this procedural due process claim. In Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972), the Court ruled that a tenured public employee has a property interest in continued employment. This property interest is not derived from the Constitution, but is created and defined "by existing rules or understandings that stem from an independent source such as state law...." Id. at 577, 92 S.Ct. at 2709. "A public employee has a property interest in continued employment if under state law that employee has a `legitimate claim of entitlement' to — not merely a `unilateral expectation' of — continued employment." Carnes v. Parker, 922 F.2d 1506, 1510 (10th Cir.1991).

In Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 542-43, 105 S.Ct. 1487, 1493-94, 84 L.Ed.2d 494 (1985), the Supreme Court held that a public employee who has a property...