Draper v. City of Festus

• Decision Date: 15 October 2013
• Docket Number: Case No. 4:11cv1652 TCM
• Parties: TERRY DRAPER, Plaintiff, v. CITY OF FESTUS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

TERRY DRAPER, Plaintiff,
v.
CITY OF FESTUS, et al., Defendants.

Case No. 4:11cv1652 TCM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: October 15, 2013

MEMORANDUM AND ORDER

The matter is before the Court¹ on Defendants' motion for summary judgment [Doc. 22]. Plaintiff filed a brief in opposition to the summary judgment motion, to which Defendants filed a reply. The parties also filed statements of fact and exhibits in support of their positions.

Background

This lawsuit arises out of the 2011 termination of Terry Draper's (Plaintiff's) employment with Defendant City of Festus, Missouri ("City"), which was addressed during a public hearing before Defendant City Council of Festus ("Council") in June 2011. Defendants are City; Council; and eight individuals: City's Mayor, Michael Cage ("Mayor"); and Council's members: Timothy Montgomery, Gary Underwood, Paul Schaffer, Kathy

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Murphy, Kevin Dennis, Bobby Venz, and Jim Tinnin (collectively, "Council Members"). Plaintiff is pursuing his claims against the individual Defendants in their individual and official capacities.

In Count I of his complaint, Plaintiff seeks a de novo hearing of the termination decision under Mo. Rev. Stat. § 536.150. (Pl.'s Compl. at 8-10 [Doc. 2].) As an alternative to Count I, in Count II Plaintiff asks the Court to review the administrative record and vacate the termination decision pursuant to Mo. Rev. Stat. § 536.100, on the ground that, upon the record as a whole, there is not substantial and competent evidence to support the termination and Defendants' actions were arbitrary and capricious, constituted an abuse of discretion, and violated Plaintiff's statutory and constitutional rights. (Id. at 10-14.) In both Counts I and II, Plaintiff requests reinstatement with full back pay plus an award of pre- and post-judgment interest, reasonable attorney's fees, and costs. (Id. at 10, 14.)

In addition to those Counts, Plaintiff alleges in Count III that the City is liable for breach of Plaintiff's three-year employment contract, and seeks an award of "all monies owed to him under the contract," including reasonable attorney's fees. (Id. at 14-15.) In Court IV, Plaintiff alleges the individual Defendants are jointly and severally liable for defamation, and seeks an award of compensatory damages and punitive damages, costs, and reasonable attorney's fees. (Id. at 15-17.) Plaintiff also seeks the same relief from all Defendants for their allegedly tortious interference with a business expectancy (Count V), for their alleged civil conspiracy (Count VI); and, under 42 U.S.C. § 1983, for their alleged violation of Plaintiff's substantive due process rights (Count VII). (Id. at 17-23.) In Count VIII, Plaintiff

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alleges that the individual Defendants are liable under 42 U.S.C. § 1983 for a conspiracy to violate Plaintiff's civil rights; and seeks a monetary award to make him whole for all losses and damages, for his emotional pain and suffering, for punitive damages, for costs and for reasonable attorney's fees. (Id. at 23-26.) Finally, in Count IX, Plaintiff alleges all Defendants are liable for knowingly or purposely violating Missouri's Sunshine Law, Mo. Rev. Stat. § 610.021, entitling Plaintiff to a civil penalty, costs, and reasonable attorney's fees. (Id. at 26-27.) Plaintiff pursues Counts I and II in the alternative; and pursues Counts III, IV, V, VII, VIII, and IX "in the alternative to but without waiver of Counts I and II." (Id. at 14, 15, 17, 21, 23, and 26.)

Defendants deny liability and, through their pending motion for summary judgment, seek entry of judgment in their favor on each of Plaintiff's claims.

Based on review of Defendants' admissions in response to the allegations in Plaintiff's complaint, as well as the parties' admissions in response to each others' statement of facts regarding the pending summary judgment motion, and other uncontested evidentiary material submitted by the parties, the record reveals the following undisputed facts.

Plaintiff has worked in city administration for over 35 years, and was employed as City's City Administrator from August 2009 to July 2011. (Id. ¶¶ 2 and 9, as admitted by Defs. in their Answer [Doc. 5]; Defs.' Statement Facts ¶ 1 [Doc. 23], as admitted by Pl. [Doc. 25]; Pl.'s Statement Facts ¶ 168 [Doc. 25], as admitted by Defs. [Doc. 27].) Plaintiff has not been employed since City terminated him. (Pl.'s Statement Facts ¶ 169 [Doc. 25], as admitted by Defs. [Doc. 27].)

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In October 2010, Defendants discussed a new contract with Plaintiff. (Pl.'s Compl. ¶ 11 [Doc. 2], as admitted by Defs. in their Answer [Doc. 5].) In their motion papers, the parties refer to that contract and there is no dispute regarding its existence, validity, or terms relating to termination. Plaintiff's three-year employment contract with City ("contract") was entered into on October 27, 2010. (Section 2C, Employment Agreement, dated Oct. 27, 2010, Ex. 1 attached to Compl. [Doc. 1 at 34-37].) Section 2A of the contract states that "[n]othing in this Agreement shall prevent, limit or otherwise interfere with the right of the Council to terminate the services of Employee at any time, subject only to the provisions set forth in Section 3 of this Agreement." (Id.) Section 3A sets forth the benefits to which Plaintiff is entitled if he is terminated. (Id. at 2.) In relevant part, Section 3A provides "that in the event Employee is terminated for 'just cause' as defined herein then City's only obligation to Employee is to pay to him all compensation accrued but unpaid at the date of termination." Id. Section 3C of the contract defines termination for just cause as "termination for any of the following reasons: (1) act(s) of misfeasance or malfeasance; or (b) act(s) constituting gross dereliction of duty; or (c) conviction of a crime involving moral turpitude." Id.

Plaintiff understood that, as City Administrator, he could authorize expenditures under $500.00; he needed to get three bids and have Council approval for purchases over $500.00; and a formal written proposal and bidding was required for purchases over $5,000.00. (Defs.' Statement Facts ¶¶ 74, 81 [Doc. 23], as admitted by Pl. [Doc. 25].)

Defendant Council is an administrative body, which, as of April 2011, included

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individual Defendants Montgomery, Underwood, Schaffer, Murphy, Dennis, Venz, and Tinnin. (Pl.'s Compl. ¶¶ 4, 5, and 15 [Doc. 2], as admitted by Defs. in their Answer [Doc. 5].) Defendant Mayor is a voting member of Defendant Council only when there is a tie vote. (Pl.'s Compl. ¶ 5 [Doc. 2], as admitted by Defs. in their Answer [Doc. 5].)

From December 2010 through March 2011, Defendant Montgomery, who was not then a member of Defendant Council but was campaigning to become a Council member, attended certain Council meetings and challenged Plaintiff's decisions as City Administrator. (Pl.'s Compl. ¶ 12 [Doc. 2], as admitted by Defs. in their Answer [Doc. 5]; Defs.' Statement Facts ¶ 138 [Doc. 23], as admitted by Pl. [Doc. 25]; Pl.'s Statement Facts ¶ 175 [Doc. 25], as admitted by Defs. [Doc. 27].) Defendant Montgomery discussed issues regarding the emergency repair of Defendant City's heating, ventilation, and air conditioning (HVAC) system and the changing of an employee bonus program. (Pl. Compl. ¶ 14 [Doc. 2], as admitted by Defs. in their Answer [Doc. 5]; Defs.' Statement Facts ¶¶ 139, 141 [Doc. 23], as admitted by Pl. [Doc. 25]; Pl's Statement Facts ¶ 215 [Doc. 25], as admitted by Defs. [Doc. 27].)

Plaintiff alleges that Montgomery called him a liar at a Council meeting, either in open or closed session, on April 27, 2011. (Defs.' Statement Facts ¶ 76 [Doc. 23], as admitted by Pl. [Doc. 25]; Pl. Dep. at 41-43 and 45, Ex. C to Defs.' Statement Facts [Doc. 23-5].) No one else called Plaintiff a liar; no one ever told Plaintiff that any other Council member called him a liar; no one told Plaintiff they heard Montgomery or anyone else refer to Plaintiff as a liar or thief; and Plaintiff is not aware of any other Council member calling

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him a thief. (Defs.' Statement Facts ¶ 77 [Doc. 23], as admitted by Pl. [Doc. 25]; Pl. Dep. at 41-45, Ex. C to Defs.' Statement Facts [Doc. 23-5].) Additionally, Plaintiff is not aware of anyone at Public Works or in the City who is conspiring with Montgomery. (Defs.' Statement Facts ¶ 102 [Doc. 23], as admitted by Pl. [Doc. 25].)

Alma Pat Parsons is a Certified Public Accountant who is City's Finance Director and has held that position since May 2005. (Defs.' Statement Facts ¶¶ 54 and 106 [Doc. 23], as admitted by Pl. [Doc. 25].) She does not recall ever hearing Montgomery using the word "lying" or suggesting that Plaintiff was being less than truthful. (Defs.' Statement Facts ¶ 110 [Doc. 23], as admitted by Pl. [Doc. 25].)

Plaintiff was advised he was suspended with pay as of May 2, 2011, and could appear or respond in writing at a Council hearing on May 4, 2011. (Defs.' Statement Facts ¶ 2 [Doc. 23], as admitted by Pl. [Doc. 25]; see also Pl.'s Compl. ¶ 19 [Doc. 2], as admitted by Defs. in their Answer [Doc. 5]; Ex. 5 attached to Pl.'s Compl. [Doc. 1 at 42-44].²)

On May 2, 2011, Plaintiff received a letter from the City Attorney, Meagan Breeze. (Defs.' Statement Facts ¶ 78 [Doc. 23], as admitted by Pl. [Doc. 25].) By...