Mitchell v. City of Moore

Decision Date11 July 2000
Docket Number99-6177,99-6121,Nos. 98-6446,99-6101,s. 98-6446
Citation218 F.3d 1190
Parties(10th Cir. 2000) LYNDELL MITCHELL, Plaintiff-Appellant and Cross-Appellee, v. THE CITY OF MOORE, OKLAHOMA, a Municipal Corporation; MIKE DREA, BRUCE STORM, and GARY TIPPS, all individually, Defendants-Appellees and Cross-Appellants
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 97-CV-1193-C ) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] David J. Batton (Michael H. Thompson, Oklahoma City, Oklahoma, with him on the briefs), Norman, Oklahoma, for Plaintiff-Appellant and Cross-Appellee.

Ted N. Pool (Sherry Blankenship, and Susan K. Noland of Pool, Blankenship & Vincent with him on the briefs) of Pool, Blankenship & Vincent, Oklahoma City, Oklahoma, for Defendants-Appellees and Cross-Appellants.

Before TACHA, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Captain Lyndell Mitchell, a police officer with the Moore, Oklahoma police department, sued the City of Moore and three city officials individually, claiming several adverse employment actions, including paid suspensions and the denial of a promotion, created various federal and state causes of action. The district court granted the defendants summary judgment in toto. While this suit was still pending before the district court, Captain Mitchell's employment was terminated, at which time Captain Mitchell's union forced the City to arbitrate Captain Mitchell's removal. The City eventually sought to enjoin the arbitration hearing, arguing the summary judgment order was res judicata as to the issues in arbitration. The district court refused to grant the injunction. The district court also denied the City's request for attorney fees and granted its full request for costs in the underlying suit. The current case is actually four appeals, with Captain Mitchell appealing the grant of summary judgment and the award of costs, the City appealing the denial of the injunction, and all the defendants appealing the denial of attorney fees. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


Captain Mitchell began his career as a police officer with the City of Moore in 1974. He attained the rank of Captain in 1991. In December, 1994, his superiors appointed Captain Mitchell Administrative Assistant, which qualified him as the second ranking officer in the police department. During his tenure as a police officer, Captain Mitchell was an active member of the Fraternal Order of Police (Union), the exclusive bargaining agent for the police officers employed by the City of Moore.

The current dispute began in June 1995, when Chief of Police Bruce Storm (first individual defendant) gave Captain Mitchell a relatively negative performance evaluation. Chief Storm listed several negatives on the evaluation, including concerns a private business venture had become Captain Mitchell's main focus, concerns about Captain Mitchell's ability to work with others, and a lack of initiative on a particular project. In addition, Chief Storm made some remarks that Captain Mitchell perceived as anti-union, and conceivably formed the background for his claims that future disciplinary actions were based on anti-union animus and thus violated his First Amendment rights:

Captain Mitchell has frequently expressed interest in assuming a more responsible position within the Police Department. However, rather than acquiring an attitude which would be more in line with an Officer in an Executive position, he has maintained the attitude of a Union member being much more concerned about taking advantage of his benefits, etc. At some point Captain Mitchell must make a decision whether he truly wants to go up and therefore remove himself from the umbrella of security of the F.O.P., or to continue under the protection of the Union. In any event, Captain Mitchell would be well served to do less complaining and to perform as a Police Executive.

On June 29, 1995, Chief Storm relieved Captain Mitchell of his duties as second-in-command. On the same day, Chief Storm promoted Gary Tipps (second individual defendant) from Sergeant to the newly created rank of Major, and Major Tipps assumed the duties previously performed by Captain Mitchell. Major Tipps resigned his position as Union president in order to accept the promotion. Chief Storm stated in his deposition he chose Major Tipps in part as a way of strengthening his relationship with the Union.

Apparently, Chief Storm's concern about his relationship with the Union was well-founded. Prior to Major Tipps' promotion, the Union had decided to hold a no-confidence vote on Chief Storm. When then-President Tipps mentioned the vote to the City Manager, who is responsible for hiring and firing the Chief of Police and other city employees, the City Manager informed President Tipps such a vote would have no impact on his decision to retain Chief Storm and the publicity surrounding the vote would damage the police department's chances of obtaining new facilities in an upcoming bond or sales tax election. President Tipps and other Union leaders decided to postpone the no-confidence vote until after the bond election. In his deposition testimony, Captain Mitchell pointed to these events as the seed of a conspiracy between Chief Storm, Major Tipps, and the City Manager to promote Tipps in order to prevent the no-confidence vote, and eventually deprive Captain Mitchell of various rights.

Later in 1995, Chief Storm confidentially hired an undercover police officer to investigate a local gambling and drug operation. Captain Mitchell received an inquiry on Friday, October 6, 1995, from a neighboring police department concerning the undercover officer's identification card, which had turned up in the neighboring jurisdiction. Captain Mitchell was not aware of the undercover operation, so he contacted Chief Storm to find out if the department had indeed hired an undercover officer. Chief Storm instructed his secretary to tell Captain Mitchell not to worry about the matter. However, gossip among the regular officers concerning the "mystery officer" became rampant, and Chief Storm and Major Tipps began to suspect Captain Mitchell of helping fuel the fire. The following Monday, based on concern that the undercover operation had been compromised and that Captain Mitchell criticized his superiors for not informing him about the operations, Chief Storm and Major Tipps charged Captain Mitchell with insubordination and breach of confidence and placed him on administrative leave with pay pending an investigation. In addition, they ordered Captain Mitchell not to work at his family's business during regular department business hours while he remained on suspension. Captain Mitchell admittedly ignored this order.

Captain Mitchell claims the paid suspension lasted approximately thirty days. At the end of the suspension, Chief Storm recommended to the City Manager Captain Mitchell be suspended without pay for five days, to be served through the loss of five accrued vacation days. This punishment was ultimately rescinded, and the vacation days were restored. After Captain Mitchell returned to work, Major Tipps placed him in a series of what Captain Mitchell described as demeaning positions for his rank and education. In response, Captain Mitchell filed his first Notice of Tort Claim with the City, which objected to the suspension and subsequent assignments, claiming $100,000 in damages.

In July 1996, Sergeant Tipps (he had since been demoted back to Sergeant from Major) overheard a police dispatcher request an officer to escort Captain Mitchell's wife to her car after her restaurant closed. Sergeant Tipps informed dispatch that pursuant to his understanding of a new policy, on-duty officers were no longer to take such calls. When Captain Mitchell learned of this incident, he made a copy of the dispatch tape and provided it to his wife, who then gave the tape to a city councilman. Chief Storm again placed Captain Mitchell on paid administrative leave pending the investigation of this incident. Chief Storm recommended Captain Mitchell be terminated; however, the City entered into a settlement agreement with Captain Mitchell placing him on six months disciplinary probation instead. During this same time-frame, the Union held a vote of no-confidence on Chief Storm. Chief Storm's attorney responded to the charges put forth by the Union in support of the vote by reading a letter to city council members, which stated in relevant part:

It is regrettable that Capt. Lyndell Mitchell is ostensibly among the leaders of the FOP who have organized the vote of no confidence .... Although Chief Storm fully recognizes that Capt. Mitchell is entitled to his opinions and viewpoints, it makes it particularly difficult for Chief Storm to operate the department efficiently when the person on whom he must rely most heavily is one of his primary protagonists.

Chief Storm ultimately left his position as Chief of Police. Captain Mitchell applied for the position, as he had done once before when Chief Storm was chosen. City Manager Mike Drea (third individual defendant) appointed an officer Captain Mitchell considered less qualified than himself, passing over Captain Mitchell once again. On August 8, 1997, after instigating the current litigation in July, Captain Mitchell filed his second Notice of Tort Claim with the City, pointing to the tape incident and the promotion pass-over as harassing activity and demanding more than $10,000 in damages. The current lawsuit followed in close proximity.

In his Second Amended Complaint, Captain Mitchell stated seven causes of action: a § 19831 claim against the City; a § 1983 and § 19852 claim against the individual defendants; a cause of action claiming the City and the individual defendants violated...

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