Hammer v. City of Osage Beach, Mo

• Decision Date: 31 January 2003
• Docket Number: No. 01-3206.,01-3206.
• Citation: 318 F.3d 832
• Parties: Ken HAMMER, Plaintiff-Appellant, v. THE CITY OF OSAGE BEACH, MISSOURI, and Jim Schneider, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

318 F.3d 832

Ken HAMMER, Plaintiff-Appellant, v. THE CITY OF OSAGE BEACH, MISSOURI, and Jim Schneider, Defendants-Appellees.

No. 01-3206.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2002.

Filed: January 31, 2003.

Rehearing and Rehearing En Banc Denied: March 12, 2003.

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Ronald Lynn Myers, argued, Springfield, MO, for appellant.

Thomas J. Pirmantgen, argued, Jefferson City, MO (Clarence W. Hawk, Jace Kentner, Michael G. Berry, on the brief), for appellee.

Before McMILLIAN, HEANEY and RILEY, Circuit Judges.

McMILLIAN, Circuit Judge.

Plaintiff Ken Hammer ("Hammer") appeals from an order entered in the United States District Court for the Western District of Missouri¹ granting summary judgment in favor of Defendants the City of Osage Beach ("the City") and the City's Mayor, Jim Schneider (collectively "Defendants"). See Hammer v. City of Osage Beach, No. 00-4050-CV-4-ECF (W.D.Mo. Sept. 7, 2001) (hereinafter "slip op."). For reversal, Hammer argues that the district court erred in granting summary judgment in favor of Defendants because there were genuine issues of material fact in dispute as to (1) whether Defendants violated his procedural due process rights; (2) whether he was wrongfully discharged; and (3) whether statements critical of his job performance contained in a press release were non-actionable opinions protected by the First Amendment. In addition, he argues that the district court erred in granting summary judgment in favor of Mayor Schneider because only the City filed a summary judgment motion. Hammer also argues that the district court abused its discretion in denying his second motion to amend his complaint. For the reasons set forth below, we affirm the judgment of the district court.

Jurisdiction in the district court was proper based on 28 U.S.C. §§ 1343 and 1367. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(a).

FACTS

Hammer was the City Administrator for the City of Osage Beach, Missouri. As City Administrator, Hammer's responsibilities included preparation of the City's personnel code and pay plan. Hammer was also the City budget officer and under state statute and City ordinance was responsible for preparing the proposed budget for the mayor and the board of aldermen (the "Board"). Hammer did not have a written employment contract with the City. Under Osage Beach City Ordinance 2-123,² the City Administrator position was for an indefinite term and could be terminated by procedures set forth in Mo. Rev.Stat. § 79.240.³

On December 15, 1999, Mayor Schneider issued a press statement regarding the general status of the City's government (the "December 15 Press Statement"). The December 15 Press Statement referred to certain recent conduct by Hammer and two aldermen and contained accusations of general improprieties and illegalities related to the City's health insurance, contract bids, and Hammer's termination of another City employee. On January 10, 2000, at a closed meeting of the Board, Alderman Sheely moved to terminate Hammer's employment with the City. All six members of the Board voted on the motion to terminate Hammer, with three aldermen voting in favor of the termination and three opposed. Mayor Schneider broke the tie by casting his vote in favor of the termination motion. In a letter dated January 11, 2000, Mayor Schneider advised Hammer that his employment was terminated effective immediately. The letter did not state the reason for Hammer's termination.

On January 25, 2000, Hammer submitted a written request for a public hearing before the Board. Hammer requested advance notice of the date and time of the hearing in order to prepare for the hearing and to inform any witnesses he might choose to call. On January 27, 2000, Hammer received a letter from the City's attorney informing him that a public hearing would be held on February 7, 2000, and that only he would be permitted to address the Board and the public. Hammer spoke at the February 7, 2000, hearing and was given an unlimited amount of time to air his concerns. Hammer's attorney was also permitted to speak on his behalf. Nothing in the hearing record indicates that Hammer attempted to call witnesses.

On March 28, 2000, Hammer filed this suit in the United States District Court for the Western District of Missouri. On March 26, 2001, the district court granted Hammer's motion to amend his complaint. In his amended complaint, Hammer alleged that Defendants: (1) deprived him of a property interest without due process by failing to comply with Mo.Rev.Stat. § 79.240 when they terminated his employment, in violation of 42 U.S.C. § 1983; (2) wrongfully terminated his employment⁴; and (3) defamed him through false and libelous statements in the December 15 Press Statement.⁵ On August 15, 2000, the district court denied Hammer's second motion for leave to amend his complaint to allege claims of retaliation for whistleblower activities. On August 23, 2001, the district court allowed the City to amend its answer to add the affirmative defense of sovereign immunity.

On September 7, 2001, the district court granted the City's motion for summary judgment. Slip op. at 14. The district court held that Defendants had complied with the termination provisions contained in Mo.Rev.Stat. § 79.240, that Mayor Schneider was authorized to break the tie vote of the Board under Mo.Rev.Stat. § 79.120, and that Hammer's procedural due process rights were not violated. Id. at 5-10. In addition, the district court held that Hammer's tort claim for wrongful discharge was barred by sovereign immunity and that any potential claim for breach of contract must fail because Hammer had no written employment contract with the City or, in the alternative, because he failed to adequately plead a claim for breach of contract. Id. at 11-12. The district court also held that Hammer failed to properly plead a claim of First Amendment retaliation. Id. at 12. Finally, the district court found that Hammer's defamation claim was also barred by sovereign immunity, and, in any event, the statements contained in the December 15 Press Statement were privileged opinions protected by the First Amendment and, therefore, not actionable. Id. at 13-14. Although Mayor Schneider had not joined the City's motion for summary judgment, the district court held that the mayor's statements were privileged and, therefore, non-actionable, and dismissed the defamation claim as to all parties. Id. (citing Ribaudo v. Bauer, 982 S.W.2d 701, 703 (Mo.Ct.App.1998) (Ribaudo) (dismissing libel claim against all parties where summary judgment was requested by only one party because the statement at issue was privileged)). This appeal followed.

DISCUSSION

We review the district court's decision to grant summary judgment de novo. See Audio Odyssey, Ltd. v. United States, 255 F.3d 512, 516 (8th Cir.2001) (citing Do v. Wal-Mart Stores, 162 F.3d 1010, 1012 (8th Cir.1998) (additional citations omitted)). The question before the district court, and before this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Celotex); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under the applicable law. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. Having reviewed the record as a whole, considering all facts and reasonable inferences that can be drawn from them in the light most favorable to Hammer as the non-moving party, we conclude that the district court correctly granted summary judgment in favor of Defendants.

I.

Hammer first contends that there were genuine issues of material fact in dispute as to whether Defendants failed to follow proper termination procedures in violation of City ordinance, state law, and his constitutional right to procedural due process. Under Mo.Rev.Stat. § 79.240, which governs fourth class cities, including the City of Osage Beach, an appointed city officer may be removed at will by the mayor with a majority vote of all members of the board of aldermen. The board of aldermen may also remove an appointed city officer independent of the mayor's approval or recommendation by a two-thirds majority vote. Hammer claims that a two-thirds majority vote of the Board was required to effect his termination because Alderman Sheely, not Mayor Schneider, made the original motion calling for his termination. Because the Board's original vote was tied three to three, Hammer claims that the vote was merely an "attempted termination" which failed to effectively terminate his employment. Hammer also argues that Mayor Schneider should not have been allowed to vote on the motion to terminate his employment because his personal enmity towards Hammer made him an interested party.

The district court held that it was irrelevant whether Mayor Schneider or an alderman first presented the motion to terminate Hammer's employment to the Board, citing (State ex rel. Gorris v. Mussman, 612 S.W.2d 357 (Mo.Ct.App.1980) (Gorris)).⁶ In order for Hammer's termination to be effective under Mo.Rev.Stat. § 79.240, Mayor Schneider's recommendation and approval by a simple majority of the Board was all that was required. After the Board's vote on the motion to terminate ended in a tie, Mayor Schneider properly cast the tie-breaking vote. In exercising this power, Mayor Schneider expressed his intent to dismiss Hammer by personally voting for his dismissal — a decision supported by a majority...