Merrell v. Douglas Cnty.
| Decision Date | 02 August 2013 |
| Docket Number | CASE NO. 8:11CV74 |
| Parties | JEFFREY L. MERRELL, Plaintiff, v. DOUGLAS COUNTY, NEBRASKA, JEFFREY NEWTON, BARBARA GLAZER, WAYNE LOVETT, JOHN SKANES, MICHAEL MYERS, and MARK FOXALL, Defendants. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the Defendants' Motion for Summary Judgment (Filing No. 65). The parties have submitted briefs (Filing Nos. 66, 72, 73, 77) and indexes of evidence (Filing Nos. 67, 68, 71) in support of their respective positions. For the reasons stated below, the Defendants' Motion will be granted.
Unless otherwise noted, the following facts are those that are stated in the parties' briefs and supported by pinpoint citations to admissible evidence1 in the record, that the parties have admitted, and that the parties have not properly resisted as required by NECivR 56.1 and Fed. R. Civ. P. 56.
Defendant Douglas County, Nebraska ("Douglas County"), is a political subdivision of the State of Nebraska. Plaintiff Jeffrey L. Merrell ("Merrell") was formerly employed by Douglas County as a corrections sergeant for the Douglas County Corrections Center ("DCCC"), which is operated by the Douglas County Department ofCorrections ("DCDC"). He was also a member of the Fraternal Order of Police Lodge No. 8 ("FOPL"). At all times relevant to this action, Defendant Barbara Glaser ("Glaser")2 was the corrections programs administrator for the DCDC and supervised inmate recreation and education, and the inmate law library.3 Defendant Jeffery Newton ("Newton")4 served as the DCDC's director from December 4, 2006, to July 15, 2011, and was responsible for the DCDC's operations, for establishing its policies and procedures, and for making disciplinary and employment decisions. At all times relevant to this action, Defendant Mark Foxall ("Foxall") was the deputy director of the DCDC. He assisted Newton with certain personnel matters, such as disciplinary actions. Defendant John Skanes ("Skanes") is the work release administrator for the DCDC. Defendant Wayne Lovett ("Lovett") is the admissions manager for the DCDC. Defendant Michael Myers ("Myers") is the community corrections manager for the DCDC.
The FOPL entered into an agreement with Douglas County, effective July 1, 2006, that incorporated Douglas County's civil service regulations and the DCDC's standard operating procedures, and expressly reserved to the DCDC management the authority to establish work rules, regulations, and other terms and conditions of employment for covered employees. Merrell was expected, as a DCDC employee, tobe familiar with and follow the DCDC's policies and procedures, one of which required that co-workers treat each other in a professional manner.
Douglas County has an official policy that affords employees potentially subject to discipline a pre-disciplinary hearing. (See Filing No. 67-5 at CM/ECF pp. 62-63.) That policy states:
(Id. at CM/ECF p. 62, Art. 22, § 6.) When a DCDC employee submits a complaint against another employee, the DCDC's office of professional review ("OPR") reviews the matter and then recommends a particular disposition to Newton. If the employee challenges the OPR's recommendation, the OPR assembles a three-person panel for the pre-disciplinary hearing. Panel members must be unrelated to the individuals involved in the underlying events, and must be senior in position to the person potentially subject to discipline.
Douglas County's policy also states that "the right to appeal suspensions, demotions, and terminations . . . is established by Nebraska statute." (Id. at CM/ECF p. 64, Art. 23, § 1.) Nebraska statutes provide an employee the right to appeal a disciplinary action to the Douglas County Civil Service Commission, and state that no disciplinary decision is final until the Douglas County Civil Service Commission issues its ruling. See Neb. Rev. Stat. §§ 23-2510, 23-2511. The ruling of the Douglas County Civil Service Commission may be appealed to the Douglas County District Court, and then to Nebraska's appellate courts. See Neb. Rev. Stat. §§ 23-2515, 25-1911.
In late 2008 and early 2009, a woman named Blythe Bowman ("Bowman") was in charge of the DCCC's law library and was responsible for coordinating inmate requests to visit the library. In early February 2009, Bowman submitted a written complaint to the DCDC, alleging that Merrell directed comments and conduct towards her that resulted in a negative impact on inmates' visits to the law library. Two other female staff members had submitted complaints similar to Bowman's. Based on the information available to them, Newton and Foxall believed there was merit to Bowman's complaint and that Merrell should be disciplined since working with co-workers was an essential part of being a corrections officer, especially for someone in the supervisory role of corrections sergeant.
Skanes, Lovett, and Myers were selected to serve on the panel at Merrell's pre-disciplinary hearing relating to Bowman's complaint. Skanes and Lovett do not know why they were selected to the panel; Myers did not know a particular reason he was selected to be on the panel other than his rank was senior to Merrell's. Prior to the hearing: none of the panel members talked to Newton or Foxall about Merrell'sinteractions with Bowman; Skanes was unaware of Bowman's complaint against Merrell, did not know Merrell or Bowman, and had no reason to believe that Bowman had an ulterior motive when filing her complaint; Lovett was also unaware of Bowman's complaint, and although he knew Merrell, his prior associations with Merrell were neutral; and Myers did not know Merrell or Bowman, and had no reason to believe Bowman had an ulterior motive in filing the complaint against Merrell.
On or about February 25, 2009, Merrell received a list of evidence related to Bowman's complaint against him. On March 5, 2009, he received a copy of the charge against him, listing several policies he was alleged to have violated. (Aff. of Jeffrey L. Merrell, Filing No. 71-6 at ¶ 4; Pre-Disciplinary Hearing Notice, Filing No. 71-8.)
Merrell's pre-disciplinary hearing occurred on March 11, 2009. Merrell attended the hearing and was represented by two FOPL representatives. Glaser did not attend the hearing. At the pre-disciplinary hearing, Merrell had an opportunity to review the documents before the panel, respond to them, and to offer his own documents. He was allowed to present whatever evidence he desired, and had the ability to call Bowman as a witness. The panel members considered written reports as well as the evidence Merrell presented to them. They then weighed the facts against DCDC policy and made a recommendation to Newton, finding in favor of Merrell with respect to certain policy provisions. Although Merrell contends that he sufficiently addressed Bowman's complaint, the panel members did not believe he did, and the hearing concluded.
After Merrell left, Bowman spoke with Myers and Lovett. Someone from the OPR told Myers that it was appropriate to have Bowman demonstrate one of the interactions described in a written report the panel had reviewed. Meyers then asked Bowman todemonstrate that interaction, and Bowman did. Meyers believed it was consistent with Merrell's verbal description of the interaction. The panel recommended to Newton that Merrell be suspended for three days, and in accordance with the panel's recommendation, Newton imposed a three-day suspension on Merrell, which would not disrupt any of Merrell's benefits.
The panel members thought due process had been afforded to Merrell at the pre-disciplinary hearing because they believed he received notice of the pre-disciplinary hearing, he received an explanation of the evidence against him, and he had an opportunity to respond. After the hearing, none of them talked to Newton or Glaser about Merrell. Merrell contends that he did not receive an explanation of all the evidence against him, asserting that his notice of suspension referred to evidence that had not been presented to him before or during his pre-disciplinary hearing; that the panel's recommendation to Newton reflected that Merrell was accused of having documents at the hearing that he was not supposed to have but that he did not receive notice of this accusation prior to the hearing and was not provided an opportunity at the hearing to respond to the accusation5 ; and that, "[i]n the absence of Bowman testifying as to the context and specific things said and done," he could not respond to the allegations against him because they were too generalized and vague. (Filing No. 71-6 at ¶¶ 5-7.) He also asserts DCDC's policy impermissibly required him to...
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