Pearson v. CITY OF BIG LAKE, MINN.

• Decision Date: 25 February 2010
• Docket Number: Civil No. 08-1370 (JRT/FLN).
• Citation: 689 F. Supp.2d 1163
• Parties: Todd PEARSON, Mark Pearson, and Andrew Rick, Plaintiffs, v. CITY OF BIG LAKE, MINNESOTA; Sean Rifenberick, in his individual and official capacity; and Scott Johnson, in his individual and official capacity, Defendants.
• Court: U.S. District Court — District of Minnesota

689 F.Supp.2d 1163

Todd PEARSON, Mark Pearson, and Andrew Rick, Plaintiffs, v. CITY OF BIG LAKE, MINNESOTA; Sean Rifenberick, in his individual and official capacity; and Scott Johnson, in his individual and official capacity, Defendants.

Civil No. 08-1370 (JRT/FLN).

United States District Court, D. Minnesota.

February 25, 2010.

Benjamin Elwood and Lawrence Schaefer, Schaefer Law Firm, LLC, Minneapolis, MN, for Plaintiffs.

Julie Fleming-Wolfe, Fleming-Wolfe Law Office, St. Paul, MN, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, District Judge.

Plaintiffs Todd Pearson, Mark Pearson, and Andrew Rick (collectively, "plaintiffs"), were officers in the City of Big Lake (Minnesota) Police Department, and they brought this action against the City of Big Lake, Big Lake Chief of Police Sean Rifenberick, and Big Lake City Administrator Scott Johnson (collectively, "defendants"). Plaintiffs allege that they suffered adverse employment actions as a result of their cooperation with an internal investigation relating to Chief Rifenberick. Defendants filed a motion for summary judgment on all counts. (Docket No. 23.) For the reasons stated below, the Court grants the motion in part and denies the motion in part.

BACKGROUND¹

This suit arises out of a tumultuous period at the Big Lake Police Department (the "Department"). During that period, the City of Big Lake (the "City") twice changed the organizational structure of the Department and also hired an independent investigator to look into a complaint brought by Officer Daniel Sherburne about Sean Rifenberick, the Chief of Police. Todd Pearson and Mark Pearson were directly involved in the organizational changes, first being promoted to the supervisory position of Sergeant and then effectively being demoted to patrol officers when the City eliminated the Sergeant positions. Mark Pearson raised concerns that Chief Rifenberick was not properly administering a state grant, and his concerns were ultimately shared with the investigator. Chief Rifenberick attempted to enlist the help of Andrew Rick in monitoring Officer Sherburne and also attempted to shape the testimony of Andrew Rick and other officers. Plaintiffs allege that they suffered adverse employment actions as a result of their participation in the investigation, their reporting of suspected violations of the Fair Labor Standards Act ("FLSA"), and their reporting of inappropriate emails that Chief Rifenberick sent to the Pearsons. Specifically, the Pearsons allege that the Sergeant positions were eliminated as a result of their protected conduct, and Andrew Rick alleges that he was terminated as a result of his protected conduct. The Pearsons also allege that the elimination of the Sergeant positions violated due process, and that Chief Rifenberick has interfered with their efforts to obtain employment elsewhere by making defamatory statements about them.

A. Events Leading up to the Creation of the Sergeant Positions

Prior to August 2005, the Department had a "flat" structure, consisting of Chief Rifenberick and approximately eight rank-and-file officers. In November 2002, the City hired Mark Pearson as a patrol officer. (Rifenberick Dep. at 63-65, 84, Fleming-Wolfe Aff. Ex. 5, Docket No. 25.) Approximately one year later, Andrew Rick began work with the Department as a volunteer reserve officer. (Rick Dep. at 19, Elwood Aff. Ex. 1, Docket No. 30.)

On January 19, 2005, Chief Rifenberick completed the first and only performance evaluation that Mark Pearson received before he was promoted to Sergeant. The evaluation stated that Mark Pearson's overall performance was "good," and that he was fully meeting the expectations of his job. (Rifenberick Dep. at 92-99, Fleming-Wolfe Aff. Ex. 5, Docket No. 25; Rifenberick Dep. Ex. 2, Elwood Aff. Ex. 6, Docket No. 32.)

In May 2005, the City hired Todd Pearson, Mark Pearson's twin brother. Mark Pearson had recommended him for the position, and Chief Rifenberick specifically recommended that the City Council hire him. (Rifenberick Dep. at 137-39, Fleming-Wolfe Aff. Ex. 5, Docket No. 25.)

In 2005, it was apparent that the City was growing and that the Department would also be growing. Chief Rifenberick encouraged the City Council to establish an intermediate Sergeant position to assist with management, supervision, and other responsibilities. The City Council created the Sergeant position, and on July 18, 2005, Chief Rifenberick recommended Mark Pearson for promotion to Sergeant. (Rifenberick Dep. at 99-102, 129-31, Fleming-Wolfe Aff. Ex. 5, Docket No. 25.) In recommending Mark Pearson, Chief Rifenberick stated that "Officer Pearson has met all of my requirements and has improved tremendously over the last year." (Fleming-Wolfe Aff. Ex. 8, Docket No. 25.) The City promoted Mark Pearson to Sergeant in August 2005. (See Rifenberick Dep. at 109-15, 122, Fleming-Wolfe Aff. Ex. 5, Docket No. 25.)

Also in August 2005, Officer Daniel Sherburne and several other officers went to Law Enforcement Labor Services (hereinafter the "union") and expressed concern that some of Chief Rifenberick's overtime and timecard practices violated state or federal law, including the FLSA. The union subsequently met with Chief Rifenberick, who became upset about the allegations, and who suspected that Officer Sherburne had something to do with them. (Johnson Dep. at 125-28, Elwood Aff. Ex. 5, Docket No. 31.)

On or about November 2, 2005, Chief Rifenberick completed a six-month review of Todd Pearson. The review stated that Todd Pearson met or exceeded expectations for all criteria, and rated his overall performance as "exceeding expectations." Chief Rifenberick closed the narrative portion of his written assessment by saying, "If chosen to become the next supervisor, I am certain that Todd Pearson would excel at the position and become a more prominent leader within the agency." (Rifenberick Dep. at 153-55, Fleming-Wolfe Aff. Ex. 5, Docket No. 25; Rifenberick Dep. Ex. 8, Elwood Aff. Ex. 6, Docket No. 33.)

Chief Rifenberick socialized with Rick and the Pearsons, and in January and February 2006, he sent the Pearsons three emails, two of which had "pornographic" images attached, and one of which included sexually explicit text. Mark Pearson testified that he was offended by the emails because they came from his boss. Todd Pearson testified that he believed that Chief Rifenberick reasonably thought that it was acceptable to send the emails because they were all close friends, but he also testified that he told Chief Rifenberick that he was offended by the email and that he was concerned about being disciplined if he were to open the attachments at work. The Pearsons showed at least one of the emails to Andrew Rick. (Rick Dep. at 242-43, 257-58, Fleming-Wolfe Aff. Ex. 1, Docket No. 25; T. Pearson Dep. at 210-12, Fleming-Wolfe Aff. Ex. 2, Docket No. 25; Rifenberick Dep. at 85-87, Fleming-Wolfe Aff. Ex. 5, Docket No. 25.)

In February 2006, Andrew Rick went to Chief Rifenberick with some concerns about Officer Sherburne, one of the people who had previously expressed concerns about Chief Rifenberick's overtime and timecard practices. Chief Rifenberick ordered Rick to memorialize these concerns in writing and submit them to him. Chief Rifenberick was "continually" calling Rick about concerns that Sherburne and other licensed officers were "pushing negativity onto reserves." (Rifenberick Dep. at 281-84, Fleming-Wolfe Aff. Ex. 5, Docket No. 25; see also Rick Dep. at 39-42, 81-82, Fleming-Wolfe Aff. Ex. 1, Docket No. 25.)

In early 2006, Chief Rifenberick encouraged the City Council to create a second Sergeant position, arguing that the position was justified by the growth in Big Lake's population and the growth in the size of the Department. Chief Rifenberick recommended Todd Pearson for the position, and he was promoted effective April 16, 2006. (Rifenberick Dep. at 140-42, Fleming-Wolfe Aff. Ex. 5, Docket No. 25; Fleming-Wolfe Aff. Ex. 9, Docket No. 25.)

B. Rick's Promotion to Full-Time Patrol Officer and Events Leading up to the Shellum Investigation

Mark Pearson had assisted the Department in applying for and obtaining a "Safe `n' Sober" grant from the State of Minnesota. His name was on the grant application, and he was responsible for its proper administration. (T. Pearson Dep. at 58-59, Fleming-Wolfe Aff. Ex. 2, Docket No. 25.) In May 2006, he sent a letter to City Administrator Scott Johnson to express concerns about Chief Rifenberick, including his administration of grant payments. He also expressed concern about Chief Rifenberick's management and communication style. City Administrator Johnson responded by email, stating that he did not feel comfortable with Pearson's "end around" approach with Chief Rifenberick. Johnson refused to meet with Pearson without Chief Rifenberick present. Johnson did not view Pearson's concerns as a "complaint." Pearson responded to Johnson's email by expressing concern about retaliation from Chief Rifenberick. (Johnson Dep. at 86-89, 104-05 Fleming-Wolfe Aff. Ex. 6, Docket No. 25.)

Also in May 2006, Chief Rifenberick directed each officer in the Department to complete an anonymous survey about communication within the department and about Chief Rifenberick's management and communication style. Chief Rifenberick encouraged the officers to be honest in their responses and assured them that the survey was anonymous. After the officers completed the surveys, Chief Rifenberick called the Pearsons into his office and enlisted them to assist in identifying the author of each survey response. Chief Rifenberick told them that he could recognize the Pearsons' handwriting, and he did in fact correctly identify their surveys. (M. Pearson Aff. ¶ 2, Docket No. 35; T. Pearson Aff. ¶ 2, Docket No. 36; see also Rifenberick Dep. Ex. 9, Elwood Aff. Ex. 6, Docket No. 33.)

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