Steckelberg v. Rice

• Decision Date: 31 March 2016
• Docket Number: 4:15-CV-3069
• Citation: 184 F.Supp.3d 746
• Parties: Todd Steckelberg, Plaintiff, v. Colonel Brad Rice, in his Individual Capacity, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

184 F.Supp.3d 746

Todd Steckelberg, Plaintiff,

v.Colonel Brad Rice, in his Individual Capacity, et al., Defendants.

4:15-CV-3069

United States District Court, D. Nebraska.

Signed March 31, 2016

Joy A. Shiffermiller, Shiffermiller Law Firm, Lincoln, NE, for Plaintiff.

David A. Lopez, Stephanie A. Caldwell, Attorney General's Office, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

John M. Gerrard, United States District Judge

This matter is before the Court on the defendants' motion to dismiss (filing 9). That motion will be granted.

I. BACKGROUND

The plaintiff's operative complaint (filing 5) sets forth what can best be described as a series of workplace disputes that, according to the plaintiff, violate his rights under the U.S. Constitution and state law. The plaintiff, Todd Steckelberg, is a trooper with the Nebraska State Patrol. Filing 5 at 2. The defendants are the Nebraska State Patrol and several other employees of the State Patrol sued in their individual capacities: Colonel Brad Rice, Captain Brenda Konfrst, Lieutenant Kevin Ryan, Major Russ Stanczyk, Lieutenant Craig Loveless, and Lieutenant Kevin Bridges. Filing 5 at 2-4.

The plaintiff alleges that when Rice was his captain in O'Neill, Nebraska, the plaintiff applied for promotion to sergeant, but did not score as well on the ranking for that position because he had not received an annual evaluation. Filing 5 at 5. He filed an internal affairs complaint because of Rice's failure to follow policy and ensure that evaluations were performed. Filing 5 at 5. After filing the complaint, the plaintiff was called to a meeting with his lieutenant, sergeant, and Rice, where he was questioned about the complaint. Filing 5 at 5-6. Rice objected to the attendance of the plaintiff's union representatives and, according to the plaintiff, the meeting was "against contract and policy as to how an internal affairs complaint is to be handled." Filing 5 at 6. The disposition of the internal affairs proceeding is not addressed in the plaintiff's pleading, and it does not appear that the plaintiff is seeking legal relief relating to it. See filing 11 at 4.

The plaintiff also alleges that he was "supportive" of a female trooper who pursued a gender discrimination case against Rice, and that it "was well documented" that Rice was investigated for "[p]roselytizing" by placing Bible verses on his wall, trying to have a prayer before a meeting, and placing religious pamphlets in employee mailboxes. Filing 5 at 6. The plaintiff alleges that Rice "continues to hold a grudge" against the plaintiff. Filing 5 at 6. But again, it does not appear that the plaintiff is seeking legal relief based on any of these allegations. See filing 11 at 4.¹

The plaintiff alleges that due in part to the "hostile work environment" under Rice, he transferred to a different area, apparently in July 2006. Filing 5 at 4, 7. In March 2014, while working for the traffic services division, the plaintiff was involved in an early-morning pursuit that ended in a collision between the plaintiff's patrol vehicle and the vehicle he was pursuing. Filing 5 at 7. The plaintiff's narrative regarding the incident and its effects is somewhat hard to follow, but the gist of it is that the plaintiff was treated unfairly when the pursuit was investigated. Allegedly, a "pursuit critique" was performed; and Konfrst, Bridges, and Ryan (none of whose authority with respect to the plaintiff is clear) pressured the officers performing the critique to find that the plaintiff had violated policy during the pursuit. Filing 5 at 7-8.

The plaintiff filed a number of grievances with respect to the investigation, based on what he believed to be violations of "the Union Contract, policies and standard operating procedures." Filing 5 at 8-9. The grievances were denied, and according to the plaintiff, they were not handled in accordance with policy. Filing 5 at 9-10. The plaintiff alleges that "the Defendants" (it is not clear which ones) refused to provide him with documents, and modified other documents, that should have been provided to him under "the due process requirements of the Union Contracts, policies and Standard Operating Procedures." Filing 5 at 9. According to the plaintiff, he has been "shunned and isolated" by Konfrst, Bridges, and Loveless since those grievances were filed, and other officers are reluctant to associate with the plaintiff "for fear of being targeted by association." Filing 5 at 10. According to the plaintiff, when the arbitration was eventually decided, the arbitrator "found many violations of policy and procedure." Filing 5 at 14.

While the arbitration hearing on those grievances was pending, the plaintiff applied for a "lateral transfer" to an executive protection position which, according to the plaintiff, would have meant overtime and more pay. Filing 5 at 10. Plaintiff claims to have been "the best qualified applicant for the position" but Rice did not award it to him. Filing 5 at 11. The plaintiff alleges that "[i]t has been state [sic] that Plaintiff ‘might run his mouth’ and ‘right or wrong the Governor can't hear these things.’ " Filing 5 at 11. The complaint does not identify who made these remarks, or where or when they might have been made.

After the arbitration hearing regarding the plaintiff's grievances concluded, but before the arbitrator's decision was issued, the plaintiff was directed to report to a meeting at State Patrol headquarters. Filing 5 at 11. The meeting took place on May 19, 2015, and included Rice, Konfrst, Stanczyk, and the plaintiff's union representation. Filing 5 at 11-12. The plaintiff was given a " ‘Supervisory Observation Form’ " charging that the plaintiff had " ‘demonstrated poor judgment, a failure to follow orders and/or reckless ‘hero’ type behavior" in four incidents which "spanned dates of July 22, 2014, September or October of 2014, and April 21st of 2015." Filing 5 at 12. The plaintiff claims that the charges of misconduct were both untimely and false. Filing 5 at 12.

Nonetheless, the plaintiff was placed on a "PIP"² that required him to keep an activity log, keep his recording equipment on at all times, attend "EAP",³ and ride along with the State Patrol chaplain for a shift. Filing 5 at 12. The "EAP" was required because, according to the form, the plaintiff " ‘is perceived to be ruminating about work day and night.’ " Filing 5 at 13. The plaintiff and his union representative met with Rice and the commander of the professional standards division; at the end of that meeting, Rice said that the "PIP" would be put "on hold," but that the plaintiff should still attend "EAP." Filing 5 at 13. And the plaintiff was still required to do a ride-along with the chaplain, a Catholic priest. Filing 5 at 13-14.

The day after the arbitration was decided, Rice "showed up to vehicle check point which was Plaintiff's scheduled work on that day, at 6:30 pm." Filing 5 at 14. What Rice did after showing up, or whether his presence was in some way unusual or prejudicial to the plaintiff, is not clear from the complaint. The plaintiff also alleges that Rice

has, in the process of discussing plaintiff's Employment issues and more particulary [sic] the Executive Protection position for which he applied, made false defamatory and stigmatizing statement [sic] including wrongly claiming he had removed Plaintiff from the swat [sic] Team when he was in O'Niell [sic] at the request of other team members because he was not showing up for trainings, when the fact is, Plaintiff removed himself from the position due to a health condition at the time.

Filing 5 at 14.

Finally, the plaintiff alleges that after the instant lawsuit was initiated, Ryan was reassigned from internal affairs to headquarters troop. Filing 5 at 15. The significance to the plaintiff of this transfer is unclear. Before being transferred, Ryan allegedly filed an internal affairs complaint "listing himself as complainant and naming as witness Tim Young, who was their counsel at the arbitration hearing." Filing 5 at 15. "In the internal affairs complaint Defendant Ryan acknowledges that their counsel Tim Young requested a finding of dishonesty and acknowledges the arbitrator did not find him to be dishonest." Filing 5 at 15. It appears that the request for a "finding of dishonesty" was an argument, in the arbitration hearing, that the plaintiff was not credible, and that the arbitrator rejected this argument. See filing 5 at 15. But other than that, the plaintiff does not allege what else was in Ryan's internal affairs complaint, or even at whom it was directed.

About a month later, the plaintiff was provided with notice of Ryan's internal affairs complaint. Filing 5 at 16. At the same time, the plaintiff was given a letter signed by Rice that abated " ‘I.A. Case 15-018 ... until the conclusion of the civil proceedings or until activated and continued at my discretion.’ " Filing 5 at 16. The Court infers that "I.A. Case 15-018" is Ryan's internal affairs complaint, and not one of the plaintiff's grievances. The plaintiff alleges that the "civil proceedings" are the instant case and a proceeding before the Nebraska Commission on Industrial Relations (CIR). It is not explained who initiated the CIR proceedings or what issues are presented there.

Based on these facts, the plaintiff asserts what he styles as three claims for relief: (1) 42 U.S.C. § 1983 claims for violation of the U.S. Constitution (including the Due Process Clause and the First Amendment free speech right, right of association, and Establishment Clause), (2) a 42 U.S.C. § 1985 conspiracy to deny civil rights, and (3) retaliation for union membership in violation of Neb. Const. art. XV, § 13 and Neb. Rev. Stat. § 48–217. The defendants have moved to dismiss the plaintiff's complaint.

II. STANDARD OF REVIEW

A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This standard does not...