Roskens v. Graham
| Citation | 435 F.Supp.3d 955 |
| Decision Date | 24 January 2020 |
| Docket Number | No. C18-71-LTS,C18-71-LTS |
| Parties | Cynthia ROSKENS, Plaintiff, v. Erik GRAHAM, Individually and in his official capacity as Mayor of the City of Ackley, Iowa, et al., Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Adam Clifford Witosky, Matthew Mark Boles, Parrish Kruidenier Moss Dunn Montgomery Boles Gribble C, LLP, Des Moines, IA, for Plaintiff.
Stephen G. Kersten, Kersten Brownlee & Hendricks LLP, Fort Dodge, IA, for Defendants.
I. INTRODUCTION ...961
II. RELEVANT FACTS ...962
III. ANALYSIS ...970
IV. CONCLUSION ...992
I. INTRODUCTION
This case is before me on a motion (Doc. No. 13) for summary judgment by defendants and a motion (Doc. No. 15) for partial summary judgment by plaintiff Cynthia Roskens. Each side has filed a resistance (Doc. Nos. 22-1, 231 and 25) and Roskens has filed a reply (Doc. No. 26). I find that oral argument is not necessary. See Local Rule 7(c).
II. RELEVANT FACTS
The following facts are undisputed2 for purposes of defendants' motion except where otherwise noted:
Roskens was hired by the City of Ackley in 2004 as a Billing Clerk and became the City Clerk in 2007. Doc. No. 23-1 at 4. She stayed in this position until she resigned on July 15, 2016, to take another job. Id.
On March 6, 2017, a U.S. Cellular phone bill was delivered to the Ackley City Hall and opened by City Clerk Kelly DeBerg. The phone bill was addressed as follows:
Id. at 4 (citing Doc. No. 19 at 33). The address is not the address of Ackley City Hall or any other City of Ackley office. The bill showed phone number 641-373-4856 listed as "City of Ackley" and the phone number 319-240-0644 listed as "Cynthia Roskens."3 Both phone numbers were under the tax ID number for the City of Ackley. Id. at 5. From July 2016 through December 2016, Roskens received the bill at her home address (701 7th Avenue, Ackley, IA 50601) with the "City of Ackley" name on the envelope. Id. She never contacted U.S. Cellular to change the name from "City of Ackley" to her own. Id. She denies ever noticing the "City of Ackley" name on the envelope. Id. No one from the City of Ackley authorized Roskens to use the "City of Ackley" name as an account name for her phone number and no one authorized her to use the City of Ackley's tax ID number for the cell phone account. Id.
DeBerg checked the account number on the bill against other city accounts. Id. at 6. DeBerg determined that the City had never paid on the account listed in the bill and contacted Mayor Erik Graham, who instructed her to call U.S. Cellular. Id. Police Chief Brian Shimon was in DeBerg's office at the time she called the Mayor. Id. U.S. Cellular confirmed that the account was addressed to the City of Ackley at 701 7th Avenue, Ackley, IA 50601-1509, and established using the City of Ackley tax ID but advised DeBerg that it could not provide further information because Roskens was the only one authorized on the account. Id. at 7.
Shimon conducted an investigation into the bill. Roskens disputes this characterization as it fails to identify any factual act performed by Shimon. Id. at 6. Shimon filed a criminal complaint against Roskens. Id. at 7. Roskens disputes that Shimon did this upon advisement from the Iowa Attorney General that the County Attorney could file criminal charges. Id. Roskens disputes whether Shimon had malice toward her when he filed the complaint and whether she plea bargained the case and paid the amount Shimon came up with as unpaid taxes in the form of restitution. Id.
A second issue arose between Roskens and the City of Ackley involving an alleged overpayment of vacation time. Roskens initially intended to resign on July 8, 2016, but she stayed on an additional week at the request of Graham so that the City Clerk's office would remain staffed. Id. at 8. The City of Ackley employee handbook provided:
Id. Roskens denies that only the City Council had authority to change the policy on vacation payout. Id. She also denies that the appropriate way to bring a request for vacation payout to the attention of the City Council as an exception to the rules set forth above was to place it on an agenda as a line item. Id. She denies that as City Clerk, she had the authority to place items on the agenda, including any line item regarding her request for vacation payout. Id. Roskens also denies that she told Graham that she would like to be compensated for unused vacation time and that he referred her to Joe Wessels and Robert Harms, as members of the Council Finance Committee, regarding putting the item on an agenda. Id. She denies that she approached Harms about her request and he told her that he did not oppose it, but that he also did not have the power to grant it and that such a request had to be submitted to the entire council. Id.
Roskens' paycheck was placed on the agenda as a line item, but there was no information regarding the vacation payout included in the line item. Subsequently, a state audit determined that Roskens was overpaid 102 hours, including 80 hours of unused vacation time paid in June 2016 and 22 hours of improperly carried over vacation time paid in July 2016. Id. At the direction of Graham, City Attorney Michael A. Smith demanded repayment from Roskens. Id. When Roskens refused, Smith filed a small claims action against Roskens for the amount of the overpayment. After a hearing, the court found for Roskens and dismissed the City's suit. At her deposition, Roskens claimed the civil lawsuit against her was defamatory. Roskens admits she did not suffer any monetary damage because of the alleged defamation. Id.
Except as otherwise noted, the following facts4 are undisputed for purposes of defendants' motion for summary judgment based on (1) Roskens' statement of additional material facts (Doc. No. 23-2), to which defendants did not respond, and (2) Roskens' motion for partial summary judgment:
While working for the City of Ackley, Roskens also served as the cemetery sentinel. Defendants dispute that this job required Roskens to be on call 24 hours a day, seven days a week noting that Roskens acknowledged at her deposition that she was given 24 hours' notice to make sure a grave was marked and opened. Doc. No. 25 at 2. It is also disputed to what extent Roskens was given the duties of the former City Administrator. Defendants note that the City Council abolished the position when the previous City Administrator left employment and admit that Roskens assumed some of those duties. Id. Unlike the prior City Administrator, defendants note Roskens did not have authority to approve her own vacation schedule or to approve a vacation payout. Id. Finally, Roskens also performed some duties of the Economic Director from February 2014 through June 2015 while the position was vacant. Id.
The City of Ackley did not provide Roskens with a cell phone for use in her public duties. Id. Roskens contends she utilized her personal cell phone in her public duties. Defendants dispute this, noting that Roskens has submitted no evidence of this beyond her testimony. Id. Roskens claims that in 2014, U.S. Cellular "placed her in its program for a sales tax exemption because she was a city employee."5 Doc. No. 15-1 at 2. Defendants dispute this. Doc. No. 25 at 3. Roskens personally paid for all lines on the account she set up.6 Id. Roskens contends she contacted U.S. Cellular at its Cedar Falls office on July 3, 2016, to advise she was no longer a city employee and to change the address to which her cell phone bill was sent. Doc. No. 15-1 at 2. Defendants dispute this, noting that records show her account continued using the tax ID number for the City of Ackley. Doc. No. 25 at 3. Defendants agree, however, that from July 2016 through December 2016, Roskens received monthly U.S. Cellular bills addressed to "City of Ackley" at her home address, which contained the "City of Ackley" name on the envelope. She did not contact U.S. Cellular to correct the name.
Multiple facts concerning DeBerg's opening of the letter are disputed, such as when DeBerg realized the billing statement belonged to Roskens and whether DeBerg attempted to confirm whether the account number was a city account. Id. DeBerg admits that she saw the address on the outside of the envelope, but it is disputed that she knew the address was Roskens' home address when she...
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