Patterson v. City of Earlington

Decision Date20 August 2009
Docket NumberCivil Action No. 4:07-CV-52-M.
CourtU.S. District Court — Western District of Kentucky
PartiesJames C. PATTERSON, Plaintiff, v. CITY OF EARLINGTON, et al., Defendants.

Charles W. Miller, Rheanne D. Falkner, Miller & Falkner, Louisville, KY, Tracey M. Sims, Bardstown, KY, for Plaintiff.

Stephen Keller, Michael S. Maloney, Schiller Osbourne Barnes & Maloney, PLLC, Louisville, KY, for Defendants.


JOSEPH H. McKINLEY, JR., District Judge.

This matter is before the Court on Defendants' motion for summary judgment on Plaintiff's claims for violation of the First and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983, for violation of the Kentucky Whistleblower Act (KRS § 61.102 et seq.,) and for intentional infliction of emotional distress. Fully briefed, the matter is ripe for decision. For the reasons that follow, Defendants' motion is GRANTED.


In November 2006, Michael Seiber was elected mayor of the City of Earlington, Kentucky. Around this time, James "Craig" Patterson, the city's chief of police, began to hear "grumblings or comments" that Seiber may not have met the residency requirement for mayoral candidates. (Patterson Deposition, p. 48). He consulted with Paul Rhodes, a former city employee, and with Steve Everly, the then-outgoing mayor of Earlington, and they advised him that candidates for mayor were required to have resided within the city limits for one year "immediately preceding" the election. As a result, Patterson began gathering Seiber's election-related filings from the Hopkins County Clerk's Office, as well as records of his water usage from the City's Water Department, to determine whether he resided in Earlington for the requisite time. Patterson's search revealed that Seiber had listed multiple addresses as his legal residence prior to the November 2006 election, and that one such address pertained to a vacant lot.

On January 1, 2007, Seiber officially took office. That day, he met with Patterson to announce his intention to switch the mayor's office with a larger room that was then occupied by the police department. Patterson objected to the move. However, Seiber reportedly dismissed Patterson's concerns and told him that the move needed to happen by Friday of that week. On Thursday, January 4, 2007, Patterson, along with Everly and Rhodes, met with Detective Stacey Blackburn of the Kentucky State Police and presented him with a letter detailing the results of Patterson's investigation of Seiber's alleged election law violations. Patterson also told Blackburn about Seiber's proposed room switch and his concern that police evidence lockers would be moved without proper supervision.

Blackburn relayed this information to Captain Leslie Gannon. She, in turn, wrote a letter to Seiber notifying him that an official complaint had been filed against him and that "until you are contacted by the investigating officer, you are hereby advised not to tamper with any police evidence that is located in the city building." [DN 38, Exhibit 4]. Blackburn delivered the letter to Seiber later that day. Seiber recalls telling Blackburn, "I know what this is about. I moved the police department." (Seiber Deposition, p. 73). However, Blackburn recalls Seiber responding to the letter by saying, "This is all about Craig Patterson." (Blackburn Deposition, p. 88). Ronnie Cox also had a conversation with Seiber that week in which "[Seiber] was upset ... [and] said something about [how] Craig [Patterson] had an investigation about his residency in Earlington." (Ronnie Cox Deposition, p. 37).

On January 5, 2007, Patterson went to the city building to pick up his paycheck and was told that he needed to speak with Seiber. They met, and Seiber reportedly asked him to resign, but Patterson refused. Seiber then handed him an envelope saying, "I don't have any choice. It's nothing personal. I don't have the money to pay you." (Patterson Deposition, p. 104). Patterson abruptly left the office. A short while later, he opened the envelope and found a letter dated January 4, 2007, which read: "This letter is a formal notice of your removal as Earlington chief of police, effective immediately (KRS 83A.080), due to lack of revenue to maintain a two-person police department." [DN 38, Exhibit 13].


To grant a motion for summary judgment, the Court must find that the pleadings, together with the depositions, interrogatories and affidavits, establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The rule requires the non-moving party to present "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.


Defendants argue that Plaintiff's claims should be dismissed because (1) the record shows that he did not speak "as a citizen" for purposes of his First Amendment claim when he approached the state police about Seiber's alleged violations of Kentucky law; (2) his Equal Protection claim is based on a "class of one" theory, which the United States Supreme Court has found noncognizable in the public employment context; (3) his Kentucky Whistleblower Act claim fails because the City of Earlington is not an "employer" for purposes of the Act; and (4) Kentucky case law holds that a plaintiff's termination, even if discriminatory, does not rise to the level of "outrageous conduct" necessary to establish liability for intentional infliction of emotional distress. The Court considers these arguments in turn.

A. Federal Law Claims

Plaintiff's federal law claims are brought pursuant to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must demonstrate that "(1) the defendants deprived him of a right, privilege, or immunity secured to [him] by the United States Constitution or other federal law; and (2) the defendants caused the deprivation while acting under color of state law." Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir.2000). Section 1983 "creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere." Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)) (internal marks omitted)). At issue here are Patterson's substantive rights under the First and Fourteenth Amendments to the United States Constitution.

1. First Amendment

Patterson's First Amendment claim is based on the idea that he was retaliated against for constitutionally-protected speech, i.e., for reporting Seiber's alleged election law violations and possible interference with police evidence to the Kentucky State Police. In order to state a prima facie case of retaliation under the First Amendment, a plaintiff must show that: "1) he engaged in constitutionally protected speech; 2) he was subjected to adverse action or was deprived of some benefit; and 3) the protected speech was a `substantial' or a `motivating factor' in the adverse action." Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.2003). Whether a public-employee plaintiff engages in constitutionally protected speech depends on whether he is speaking as a citizen on a matter of public concern, and whether his interest in so speaking outweighs the State's interest in promoting effective and efficient public service. Pickering v. Bd. of Educ. Of Township High School Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see also Kindle v. City of Jeffersontown, 2009 WL 69231 (W.D.Ky. 2009). If the answer to both inquiries is yes, the speech is protected.

The Court has little doubt that Patterson spoke on a matter of public concern when he met with the Kentucky State Police. See Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir.1988) (finding that "speech disclosing public corruption is a matter of public interest and therefore deserves constitutional protection.") (citations omitted); see also Connick, 461 U.S. at 148, 103 S.Ct. 1684 (explaining that statements "seek[ing] to bring to light actual or potential wrongdoing or breach of public trust on the part of [government employees]" address a matter of public concern). The question is whether he was speaking "as a citizen." In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court explained that public employees do not "surrender all their First Amendment rights by reason of their employment." Id. at 417, 126 S.Ct. 1951; see also Thomas v. Whalen, 51 F.3d 1285, 1291 (6th Cir.1995) (noting that "[f]reedom of speech is not traded for an officer's badge ...) (quotation omitted). However, it made clear that "[w]hen...

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    ...or entities outside the police, rather than up the chain of command, was pursuant to an official duty. See Patterson v. City of Earlington, 650 F.Supp.2d 674, 680 (W.D.Ky.2009) (chief of city police's reports to state police were made to “most appropriate authority”); Mantle v. City of Coun......
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