Thompson v. City of Des Moines, 95-1833

• Decision Date: 18 June 1997
• Docket Number: No. 95-1833,95-1833
• Parties: Jerry D. THOMPSON, Appellant, v. CITY OF DES MOINES, Iowa, John Pat Dorrian, George Flagg, Preston Daniels, Tom Vlassis, Mike McPherson, Jack Porter, and Archie Brooks, Individually and as City Council Members, and Cy Carney, Individually and as City Manager, Appellees.
• Court: Iowa Supreme Court

Page 839

564 N.W.2d 839

Jerry D. THOMPSON, Appellant, v. CITY OF DES MOINES, Iowa, John Pat Dorrian, George Flagg, Preston Daniels, Tom Vlassis, Mike McPherson, Jack Porter, and Archie Brooks, Individually and as City Council Members, and Cy Carney, Individually and as City Manager, Appellees.

No. 95-1833.

Supreme Court of Iowa.

June 18, 1997.

Brent R. Appel and Kimberley K. Baer of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellant.

Thomas W. Foley and Thomas M. Zurek of Nyemaster, Goode, McLaughlin, Voigts West, Hansell & O'Brien, P.C., Des Moines, for appellee City of Des Moines.

Thomas D. Hanson of Hanson, Bjork & Russell, Des Moines, for appellees John Pat Dorrian, Tom Vlassis, Jack Porter, and Archie Brooks.

David A. Tank of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellee Preston Daniels.

Charles E. Gribble of Roehrick, Hulting, Blumberg, Kirlin & Krull, P.C., Des Moines, for appellee George Flagg.

D. William Thomas of Duffy, Spellman, Ryan, Thomas & Clark, Des Moines, for appellee Mike McPherson.

Randolph Duncan of Duncan, Green, Brown, Langeness & Eckley, P.C., Des Moines, for appellee Cy Carney.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and TERNUS, JJ.

NEUMAN, Justice.

When the City of Des Moines reorganized its management structure in 1993, plaintiff Jerry Thompson lost the job of employment relations director that he had held for eighteen years. Claiming the reorganization was a mere sham to circumvent his contractual rights, Thompson sued the city and its mayor, manager, and council members on theories of breach of contract, tortious interference with contractual relationship, conspiracy, and violation of due process. Most of Thompson's theories were decided adversely to him by way of summary judgment; the remaining count--a contractual claim related to seniority and "bumping" rights upon layoff--was rejected by a jury. On Thompson's appeal from summary judgment for the defendants and denial of his motion for a new trial, we affirm.

I. Before turning to the facts, we pause briefly to address Thompson's overarching claim that the case--being fact intensive--cannot properly be resolved by summary judgment. It is true that summary judgment is properly granted only when the moving party demonstrates (1) the absence of any genuine issue of material fact, and (2) entitlement to judgment as a matter of law. Iowa R. Civ. P. 237(c); Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 281 (Iowa 1995). Fact issues are material, however, only when the dispute over them might affect the outcome of the suit. Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988). If the conflict in the record concerns only the legal consequences flowing from undisputed facts, entry of summary judgment is proper. Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988).

Our task on appeal is not to weigh evidence but to determine whether a genuine issue of material fact exists and whether the district court correctly applied the law. Junkins, 421 N.W.2d at 132. We are obliged to review the record in the light most favorable to the party resisting summary judgment. Id. at 132-33. The resister, however, "may not rest upon the mere allegations or denials of his pleading." Iowa R. Civ. P. 237(e). Thus we have said:

The resistance must set forth specific facts which constitute competent evidence showing a prima facie claim. By requiring the resister to go beyond generalities, the basic purpose of summary judgment procedure is achieved: to weed out "[p]aper cases and defenses" in order "to make way for litigation which does have something to it."

Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 454 (Iowa 1989) (citations omitted).

With these principles in mind we turn to the record made before the district court.

II. In 1974, Thompson left his job as assistant county administrator in Muskegon, Michigan, to become Des Moines' employee relations director. The appointment was non-civil service, full time and permanent in nature. According to an employee handbook then in existence, "permanent appointment" meant "[a]n appointment you receive if the City plans to engage your services for an indefinite period." Thompson accepted the job and moved his family here on assurances from former city manager Richard Wilkey that he would enjoy long-term job security.

Throughout his career with the city Thompson served as its chief collective bargainer. He developed a reputation as a tough negotiator, with an aggressive style at the bargaining table. His performance, though generally regarded as satisfactory from the city's perspective, created some friction with union leadership.

In 1993 the city faced a budget shortfall in excess of $4 million. The city manager, defendant Cy Carney, proposed the elimination of eleven management positions--including Thompson's--intended to generate annual salary savings of $630,000. Under the proposal, Thompson's duties would be absorbed by personnel staff within the city manager's office and the city's risk management department. The mayor and city council members approved the reorganization by a unanimous vote.

Thompson was notified of the reorganization and elimination of his position in June 1993. Although Carney at first advised Thompson no other positions in city government were available, a month later he encouraged Thompson to consider his seniority and "bumping" rights relative to two positions for which he qualified: assistant employment relations director and personnel analyst. Thompson declined the offer.

Thompson sued the city and its mayor, manager, and council members, individually, in an amended petition containing nine alternative theories of recovery. Briefly stated, Thompson alleged breach of oral and written contracts of employment; tortious interference by city council members and the city manager with his contractual relationship with the city; a cause of action under 42 U.S.C. § 1983 for deprivation of a protected property right without due process; breach of contractual right to "bump" into another position at the same salary level; unlawful "demotion" without hearing in violation of due process guarantees; violation of state and federal age discrimination statutes; and conspiracy to violate Thompson's contractual rights.

Following extensive discovery, the city and individual defendants moved for summary judgment. They claimed the record could not support the alleged contractual promises, tort theories, and constitutional claims Thompson advanced and, in any event, the city's employee handbook permitted layoffs made necessary by budgetary constraints and organizational changes. Thompson resisted by claiming the budget shortfall was contrived to cover up improper motives by council members and the city manager who, bowing to pressure from the unions, wanted him ousted. He supported his resistance with a string of factual scenarios--about one per year for the period 1987 to 1993--that purported to demonstrate his conspiracy theory. These vignettes, viewed in the light most favorable to Thompson, may be summarized as follows:

In 1987, following particularly heated negotiations over public employee union salary increases in which Thompson raised the specter of layoffs, union representatives began making what Thompson characterized as "end run" appeals around city management to negotiate directly with members of the city council.

In 1989, union representatives directly appealed to the mayor and city council to restrict negotiations relative to health care benefits. The city council passed a resolution in conformity with the request.

When, in 1991, Thompson introduced the issue of health benefits at the bargaining table, he was told by the city manager to drop the matter because it had no support among council members. Although Thompson believed this "end run"--like the others--amounted to a prohibited practice under Iowa Code section 20.10(3)(b) and revealed the animus underlying his eventual termination as the city's chief negotiator, no prohibited practice claim was ever filed.

During 1990 and 1991, the unions made significant political gains, electing supporters in key council races. Thereafter union representatives who disliked Thompson more openly called for his replacement.

Following the 1991 election, defendants Flagg, Porter, and McPherson held a "secret" luncheon meeting to discuss "new opportunities to get things done on the council" in light of the election results. Thompson was reportedly the focus of the conversation. Thereafter, rumors surfaced that Thompson's position was in jeopardy. A union representative confirmed the rumors, telling Thompson he should "find a way to mend fences and not force all issues to arbitration...."

In early 1992, Carney assured Thompson there was no substance to the rumors. By April, however, Carney had received his "marching orders." At yet another meeting of less than a quorum of the council (arguably arranged to avoid Iowa Code chapter 21, the open meetings law) Carney received "quite a lecture" concerning Thompson, particularly regarding charges that he swore and used foul language at the bargaining table. It was suggested that management and labor need to "be more friendly and on the same team." Carney's notes from the meeting reveal a directive "to make appropriate improvements."

Thompson argued before the district court, and reiterates on appeal, that Carney faced a dilemma at this point. The union's problem with Thompson had become Carney's problem. Because, according to Thompson, Carney could not discharge him without cause, Carney had to devise a scheme to get rid of him some other way, or face his own termination. Thus was born the idea of eliminating Thompson's position through reorganization, a means of achieving indirectly what could not be done directly.

The district court rejected Thompson's portrayal of the case, finding that even under...