Morris v. City of Chillicothe

• Decision Date: 14 January 2008
• Docket Number: No. 06-3995.,06-3995.
• Citation: 512 F.3d 1013
• Parties: Russell J. MORRIS, Appellant, v. CITY OF CHILLICOTHE; Richard L. Krouse; D. John Edwards; Charles Haney; Earle Teegarden; Maurice Zion; and Pam Jarding, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

512 F.3d 1013

Russell J. MORRIS, Appellant, v. CITY OF CHILLICOTHE; Richard L. Krouse; D. John Edwards; Charles Haney; Earle Teegarden; Maurice Zion; and Pam Jarding, Appellees.

No. 06-3995.

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2007.

Filed: January 14, 2008.

Jeffrey W. Bruce, argued, Belton, MO, for appellant.

Joseph R. Colantuano, argued, Leawood, KS (Katherine A. Worthington, Katherine I. Tracy, on the brief), for appellees.

Before BYE, BOWMAN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Russell J. Morris brought this action under 42 U.S.C. § 1983, claiming that the police chief of the Chillicothe, Missouri, Police Department ("the department"), various Chillicothe city council members, and the City of Chillicothe (collectively the defendants)¹ terminated him in retaliation for exercising his First Amendment right of freedom of association with an attorney. The district court² granted summary judgment for defendants, concluding that Morris failed to show that his hiring an attorney was a substantial or motivating factor in his termination. Morris appeals, arguing that the district court erred in granting summary judgment because there was sufficient circumstantial evidence to show (1) defendants' firing motive was his retaining an attorney; and (2) the reasons proffered by defendants were pretextual. He also appeals the district court's finding that he neither pleaded nor proved a right of access claim. We affirm.

I. Background

The following facts are recited in the light most favorable to the non-moving party, Russell Morris. Morris was hired by the department, as an entry level police officer, in January 1998. He was promoted to sergeant in. April 2001, and he remained in that position until his termination on April 5, 2004.

Morris's pre-firing employment record included documented performance problems. Specifically, Morris had difficulty resolving conflicts with other employees. Also, Morris ranked in the bottom one-third among other officers in the department for the number of traffic stops executed over the final four years of his employment. In 2002, Morris's captain formally notified him of concerns that Morris may have misused sick time. In 2003, via an employee performance appraisal, Morris was advised to pay closer attention to the image he projected in his work product and his accountability in covering his shift. Also in 2003, Morris was reprimanded for attending only half of the training sessions at a conference that the department paid for him to attend. According to Morris, this was a misunderstanding because he told the department that he would not attend the sessions in which he had prior training.

Morris also experienced interpersonal problems with other department employees. The department's personnel policy states that an employee may be disciplined for making false or malicious statements concerning any employee or officer. Morris was aware that violations of this policy could lead to termination, but admits that he told police chief Richard Knouse that another officer had taken a bribe without knowing if the accusation was true. Morris also told fellow officers that a particular female office manager's appearance made him think she was promiscuous.

Late in the fall of 2003, Morris told a city councilman that the department was experiencing morale problems. This councilman then told the city administrator, defendant D. John Edwards, and the city attorney about Morris's concerns. On February 10, 2004, Morris, along with officer Jason Sackrey, submitted a written grievance letter to Administrator Edwards outlining problems they observed in the department. The letter alleged that a fellow officer had used excessive force on an arrestee, that the department had improperly expended city funds for overtime, and that other police officers had falsified time reports. Within two weeks of the letter's submission, Chief Knouse and Administrator Edwards met with the city attorney to discuss the possibility of demoting Morris for spreading rumors and excessive use of sick time. The city attorney recommended that Morris be terminated, but no decision was made at that time.

On February 27, 2004, the officer accused by Morris and Sackrey of using excessive force assaulted Sackrey on city property. Soon after, on March 2, 2004, the department held a mandatory meeting for all employees. During this meeting various officers referred to Morris as a "back-stabber" as well as insulting him by calling him various other names. Chief Knouse took no disciplinary action against the name-calling officers. Morris, in light of the meeting, felt he needed to retain an attorney. In the weeks after this meeting, several officers filed written grievances and complaints against Morris.

On March 29, 2004, the city council met to consider Morris's status. Chief Knouse recommended to the city council that Morris be reduced in rank because of various complaints and Morris's previous performance issues. Approval by the city council is necessary for all employee terminations or suspensions, and these actions are generally based on a recommendation by the department head. Administrator Edwards concurred with Chief Knouse's recommendation to demote Morris. The city council, however, voted to suspend Morris, with the understanding that. Administrator Edwards would meet with Morris to discuss his employment situation. Chief Knouse then suspended Morris based on the city. council's action,

On March N, 2004, Morris's attorney sent a letter to the city attorney, Administrator Edwards and Chief Knouse, advising them that Morris was now represented by counsel. The next day, Chief Knouse sent an email to the entire department advising that Morris had retained counsel and that department personnel were not to speak to Morris regarding department or city matters.

Chief Knouse ordered Morris to attend a meeting with Administrator Edwards and himself on April 1, 2004. Morris did not attend this meeting because his counsel could not be present. Morris's counsel sent the department a letter stating that he could not attend. Morris's counsel instructed him not to attend.

Also on April 1, the city council met again to discuss Morris's employment status. The city attorney recommended that Morris be terminated, and three city council members voted to give Administrator Edwards the authority to handle this employment action against Morris. The city council gave Administrator Edwards the authority to offer Morris a resignation option with a severance package. Defendant council member Pam Jarding based her vote on Morris's failure to attend the meeting in violation of a direct order to attend. Defendant council member Earle Teegarden's vote was purportedly based on the city attorney's recommendation regarding Morris's poor performance. Defendant council member Maurice Zion testified that he voted to give Administrator Edwards the authority to take action because he believed that Morris disrupted the department, affecting the safety of the other officers and the community.

Morris claims that this city council meeting was improperly called to retaliate against him for hiring an attorney, however city council members do not recall getting new information about Morris's counsel between the two meetings on March 29, 2004 and April 1, 2004. After rejecting the city's offer to resign, Morris was subsequently dismissed for "dereliction of duty, insubordination and creating a hostile work environment" on April 5, 2004. At that same time Sackrey was told that the department would be willing to reinstate him if he would sign a release regarding all claims against the city. Sackrey rejected the offer and he was also terminated.

On December 21, 2005, Morris filed the present action claiming that he was terminated in violation of his First Amendment rights of free speech and free association—Morris has since abandoned the free speech claim. Morris's complaint included the following: "Defendants terminated plaintiffs employment in retaliation for plaintiffs exercise of his First Amendment rights of free speech and expression on matters of public concern and of association (after his retention of legal counsel to represent him) and to suppress from further disclosure to the general public, the citizens of the City of Chillicothe, and other governmental officials the information reported and disclosed by plaintiff."

On November 1, 2006, the district court granted defendants' motion for summary judgment, finding that Morris did not produce any facts in support of his contention that his retention of an attorney was a substantial or motivating factor in his dismissal. The court also found that Morris failed to plead or provide evidentiary support for his right of access claim.

II. Discussion

Morris appeals, arguing that the district court erred in granting summary judgment. Specifically, Morris contends that he adduced sufficient circumstantial evidence to show that his retention of an attorney was a substantial or motivating factor for the defendants' decision to terminate him. He further contends that the defendants' proffered reasons were a pretext for the retaliatory termination. Morris also appeals the district court's finding that he neither pleaded nor proved a right of access claim. When considering the district court's grant of summary judgment, we review findings of fact for clear error and conclusions of law de novo. ACLU Nebraska Foundation v. City of Plattsmouth, 419 F.3d 772, 775 (8th Cir. 2005).

A. Standard of Review

Summary judgment is justified if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a summary judgment motion, the district court must consider the evidence in the light most favorable to...