Stalhut v. City of Lincoln

Decision Date30 May 2001
Docket NumberNo. 4:00CV3268.,4:00CV3268.
Citation145 F.Supp.2d 1115
PartiesMark STALHUT, Plaintiff, v. CITY OF LINCOLN and Tom Casady, in his individual and official capacities, Defendants.
CourtU.S. District Court — District of Nebraska

Carole J. McMahon-Boies, Pepperl, McMahon-Boies Law Firm, Lincoln, NE, for plaintiff.

Richard C. Anderson, City Attorney's Office, Lincoln, NE, for defendants.


KOPF, District Judge.

Plaintiff, Mark Stalhut, is employed as a police officer by the defendant City of Lincoln, Nebraska. Also named as a defendant is Tom Casady, the chief of police, who is sued both personally and officially. Stalhut alleges that he was denied a promotion to the rank of sergeant because of age and gender discrimination. Casady, in his individual capacity, has moved for summary judgment on the basis of qualified immunity (filing 15). That motion will be granted.


At issue is plaintiff's "fourth cause of action," brought pursuant to 42 U.S.C. § 1983, which alleges that "the City of Lincoln has an established policy of giving preference in hiring to those under forty and to women," in violation of the equal protection clause, and that plaintiff was treated differently from "younger officers seeking promotion" and from "female officers who received preference in hiring."1 (Filing 1, ¶¶ 12-13) It is also generally alleged that Casady "acting in his individual and official capacity under color of law acted to deprive the plaintiff to his right to Equal Protection in the hiring process." (Filing 1, ¶ 12). The specific incident of discrimination alleged in the complaint is that on December 15, 1998, Stalhut, who was then 40 years old, was denied a promotion in favor of a younger, female officer.2 (Filling 1, ¶ 3)

The evidence establishes that the Lincoln Police Department has a written policy regarding promotions, and that the matter is also governed by the Lincoln Municipal Code and by a labor agreement between the City of Lincoln and the Lincoln Police Union. There are a limited number of positions for the rank of sergeant, and promotions occur only when a new position is allocated or when one of the existing positions is vacated. The promotional process begins with a written examination, administered either annually or biannually, which results in a rank-order list of candidates. For the first promotion occurring after the compilation of this list, the top one-third of the candidates are eligible; for the second and subsequent promotions, the top two-thirds of the candidates are eligible. The chief of police ultimately decides which eligible candidate receives the promotion. (Filing 16, part I, "Casady affidavit," ¶¶ 4-6)

Chief Casady's practice has been to meet with the department's command staff of 17 captains and 2 assistant chiefs to solicit their input and advice regarding promotion of the eligible candidates, and to have them each prepare a list of their top three choices in order. After these lists are compiled, Casady again meets with the assistant chiefs regarding the listed candidates, and a review is made of personnel files. Since becoming chief of police in 1994, Casady has only selected sergeants from the list of candidates nominated by the command staff. (Casady affidavit ¶ 8)

On the basis of the written examination that was conducted in February 1998, Stalhut ranked fourth among 24 officers who were eligible for promotion. He, however was not nominated by the command staff for any promotion that was made during the remainder of the year, including on December 15, 1998, when a younger, female officer, Terri Lobdell, was made a sergeant. (Casady affidavit, ¶¶ 9-10)

According to Casady, when he made the decision to promote Lobdell, he was unaware either of her age or of Stalhut's age. The promotion decision was made on the basis that Lobdell was nominated by a large number of the command staff officers, and that she had distinguished herself from the other nominated candidates by recently obtaining a graduate degree. (Casady affidavit, ¶ 10)

Stalhut says that he was told by Casady six weeks prior to the time that the command staff officers made their nominations that Casady was going to promote Lobdell because "he couldn't pass up a female with a masters degree." (Filing 19, "Stalhut affidavit") Casady responds that he may have said that "it's hard to pass up a woman with a master's degree," but if so, it was only after the fact, when he met privately with Stalhut to discuss his promotional prospects and to offer suggestions for improving his candidacy. Casady says he used Lobdell as an example because she, after having been passed over for promotion previously, had decided to pursue a graduate degree. (Casady affidavit, ¶¶ 11-13)

Stalhut also says that he has been told by Casady that "no one over forty is likely to be promoted," and that Casady has been "very vocal and adamant regarding his policies on such things as hiring." Stalhut sought promotion during a two-year period, during which time at least four younger males were promoted, even though Stalhut had scored better on the examination than some of them. Also during this time, Terri Lobdell was the only female officer eligible for promotion, and, according to Stalhut, she was "much lower on the promotion list" than him. Stalhut further states, without elaboration, that he "had much more seniority and experience than all the chosen candidates." (Stalhut affidavit)


"Qualified immunity shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known." Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). To withstand the application of qualified immunity, a plaintiff must assert a violation of a constitutional right; that right must have been clearly established at the time of the violation; and, given the facts most favorable to the plaintiff, there must be no genuine issues of material fact as to whether a reasonable official would have known that the alleged action violated that right. Id. (citing Foulks v. Cole County, Mo., 991 F.2d 454, 456 (8th Cir.1993)); see also Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir.1998) (citing Burnham v. Ianni, 119 F.3d 668, 673-74 (8th Cir.1997) (en banc)). Hall v. Missouri Highway & Transp. Com'n, 235 F.3d 1065, 1067 (8th Cir.2000).

On a motion for summary judgment, though, a genuine issue as to predicate facts material to the qualified immunity issue will defeat the motion.3 See Gregoire v. Class, 236 F.3d 413, 417 (8th Cir.2000). As further explained in Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir.2000):

A motion for summary judgment on qualified immunity grounds is only precluded when the plaintiff has "(1) assert[ed] a violation of a constitutional right; (2) demonstrate[d] that the alleged right is clearly established; and (3) raise[d] a genuine issue of fact as to whether the official would have known that his alleged conduct would have violated the plaintiff[s'] clearly established right." Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir.1999) (quoting Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.), cert. denied, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 407 (1996)). Stated another way, qualified immunity shields a defendant from suit if he or she could have reasonably believed his or her conduct to be lawful "in light of clearly established law and the information [that the defendant] possessed." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3037, 97 L.Ed.2d 523 (1987). "The qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per curiam), quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 1097, 1096, 89 L.Ed.2d 271 (1986). Although qualified immunity is " `an immunity from suit rather than a mere defense to liability,'" Hunter, 502 U.S. at 227, 112 S.Ct. 534 (emphasis omitted) (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. 2806, 86 L.Ed.2d 411), and therefore its availability "ordinarily should be decided by the court long before trial," Hunter, 502 U.S. at 228, 112 S.Ct. 534, the nonmoving party is given the benefit of all relevant inferences at the summary judgment stage, and if a "genuine dispute exists concerning predicate facts material to the qualified immunity issue, the defendant is not entitled to summary judgment on that ground." Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir.2000).

In the present case, therefore, in order to deny the defendant's motion for summary judgment on the ground of qualified immunity I must make two findings: First, I must find that the record, when viewed in a light most favorable to Stalhut, would allow a reasonable finder of fact to conclude that Casady engaged in a course of conduct that violated Stalhut's clearly established constitutional rights.4 Second, I must find as a matter of law that no reasonable official could have thought that such a course of conduct was lawful.5 See Hudson v. Norris, 227 F.3d 1047, 1050 (8th Cir.2000). For the reasons discussed below, I am unable to find that a jury could reasonably conclude that Casady's alleged conduct violated Stalhut's clearly established rights.

A. Clearly Established Rights

Stalhut claims that his equal protection rights were violated, in that he was discriminated against in public employment on the basis of his age (40 years) and gender (male). Gender is a suspect classification under the equal protection clause. See Knapp v. Hanson, 183 F.3d 786, 789 (8th Cir.1999). Age is not. See Weber v. Strippit, Inc., 186 F.3d 907, 911 (8th Cir. 1999), cert. denied, 528 U.S. 1078, 120 S.Ct. 794, 145 L.Ed.2d 670 (2000). Nonetheless, age...

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