Tice v. Bd. of Cnty. Comm'rs of Lincoln Cnty., CIV-18-974-R
| Decision Date | 02 April 2020 |
| Docket Number | No. CIV-18-974-R,CIV-18-974-R |
| Parties | SABRINA TICE, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF LINCOLN COUNTY and SHERIFF CHARLIE DOUGHERTY, Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Before the Court is the Motion for Summary Judgment (Doc. No. 39) filed by Defendant Sheriff Charlie Dougherty. Plaintiff filed a Response in opposition to the motion and Defendant Dougherty filed a Reply in support of his position. (Doc. Nos. 46 and 48). Upon consideration of the parties' submissions, the Court finds as follows.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting Fed. R. Civ. P. 56(a)). A dispute is genuine "if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way," and it is material "if under the substantive law it is essential to the proper disposition of the claim." Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013). In assessing whether summary judgment is appropriate, the Court views the facts and all reasonable inferences in the light most favorable to the nonmoving party. Williams v. FedEx Corp. Services, 849 F.3d 889, 896 (10th Cir. 2017).
Plaintiff filed this action alleging violation of her right to association under the First Amendment because she was terminated from her position as investigator for the Lincoln County Sheriff's Department the day after Defendant Dougherty, the incumbent, defeated her husband, John Tice, in the 2016 election.1 The circumstances surrounding Plaintiff's first four years at the Department are not disputed; the facts related to her termination and the events leading thereto, however, are contested by the parties.2
Consistent with the above, the parties agree that Defendant Dougherty was elected sheriff of Lincoln County in 2010 via special election. After Plaintiff had served for a period as a reserve deputy, in 2012 Defendant hired her as a full-time deputy. Her husband, John Tice, already served in that capacity. In 2015, Sheriff Dougherty was informed by the Oklahoma State Bureau of Investigation ("OSBI") of an ongoing investigation into the alleged excessive use of force by John Tice. As a result of this information, Sheriff Dougherty placed Deputy John Tice on paid administrative leave. In August 2015, the OSBI indicated that John Tice was to be indicted, which resulted in his termination by Defendant Dougherty. Defendant contends that, following John Tice's termination,Plaintiff yelled and cussed at him because she disagreed with his termination decision.3
In September 2015, Plaintiff filed a complaint regarding derogatory comments made to her by Captain Jack Jackson that were also critical of her husband. (Doc. No. 42-4). Later that day Plaintiff surreptitiously recorded conversations with Jackson.4 Although Plaintiff's direct supervisor, Larry Stover, was aware of this behavior, there is no evidence in the record that Defendant took any steps toward disciplining Plaintiff despite her surreptitious recording of conversations with other officers starting sometime after August 2015. Defendant does not cite to the alleged recordings as a basis for his termination decision, nor was Plaintiff disciplined for recording the conversations.
In April 2016, the charges against him having been dismissed, John Tice declared his candidacy for Sheriff in the upcoming election. Plaintiff concedes that Sheriff Dougherty treated her well during the election, but contends the Undersheriff, Tim Donaldson, acted hostilely toward her on more than one occasion because of her husband's candidacy and her support thereof.5 The day after the election Sheriff Dougherty informed Plaintiff that she was terminated.
Defendant Dougherty made the termination decision, although he testified that he had received oral recommendations to that effect from Captain Stover and Undersheriff Donaldson. Defendant testified that Captain Stover said, "[j]ust that she was causing problems and degrading the agency and talking bad about me and that none of us knew what we were doing." (Dougherty Deposition, p. 26). "He probably just brought to my attention that, you know, they are trying to work investigations and what-have-you and she's upset because I fired John, and we don't see eye to eye on that, and so she - - he was just having problems with getting her to be focused and move forward." (Id. at pp. 27-28).6
The Sheriff believes Captain Stover came to his office three times in the two months prior to Plaintiff's termination, but the Sheriff did not terminate her then because it would look bad due to the election. Id. Donaldson's oral recommendation allegedly came thirty days prior to Plaintiff's termination. (Id. at p. 28). When asked for specific information regarding Donaldson's recommendation, he testified about a 2015 incident involving Plaintiff and Jack Jackson, who made derogatory comments about Plaintiff and her husband, the conversations that Plaintiff taped. "And so Tim had recognized some things - or there was one incident where her and Capt. Jackson had got into a word argument, and so Tim intervened on that deal and disciplined Jack, the captain." (Id. at p. 29).
Sheriff Dougherty testified about his decision, stating that everyone in the small office needed to be able to work together and that Plaintiff's negativity made thatimpossible because she was talking badly about the Sheriff and his office.7 Plaintiff denies making negative comments about the Sheriff or the Sheriff's Department, but concedes that shortly after her husband's arrest, she might have made negative comments about the Lincoln County District Attorney's Office, because she disagreed with their decision. Regardless, between the summer of 2015 and November 2016, when Defendant terminated Plaintiff, there is no indication of any disciplinary action imposed on Sabrina Tice as a result of her alleged negative public comments prior to her termination.
"The First Amendment protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance." Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir. 2003) (citation omitted). To avoid summary judgment, Plaintiff must establish that a genuine issue of material fact exists that provides evidence that her political affiliation or beliefs were the "substantial" or "motivating" factor behind her termination and that her position did not require political allegiance.8 Id. at 1185. If Plaintiff presents evidence that her affiliation was a substantial or motivating favor in her termination, Defendant may avoid liability by establishing by a preponderance of the evidence that he would have reached the same decision as to Plaintiff's employment even in the absence of her protected conduct. Walton v. Powell, 821 F.3d 1204, 1211 (10th Cir. 2016).
Defendant is not entitled to summary judgment on Plaintiff's claim that he interfered with her right of association under the First Amendment by terminating her employment after she supported the opposition candidate, her husband John Tice, in the 2016 sheriff's election. Defendant Dougherty terminated Plaintiff Tice one day after the election and he was aware of her activities in support of her husband's candidacy in opposition to his reelection.
Adverse action in close proximity to protected speech may warrant an inference of retaliatory motive. See Baca, 398 F.3d at 1221. . . . [T]emporal proximity is insufficient, without more, to establish such speech as a substantial motivating factor in an adverse employment decision. Id; see also Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th Cir.2003) (). An employer's knowledge of the protected speech, together with close temporal proximity between the speech and challenged action, may be sufficiently probative of causation to withstand summary judgment. See Ramirez, 41 F.3d at 596. Other evidence of causation may include evidence the employer expressed opposition to the employee's speech, see Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 929 (9th Cir.2004), or evidence the speech implicated the employer in serious misconduct or wrongdoing. See Baca, 398 F.3d at 1221. On the other hand, evidence such as a long delay between the employee's speech and challenged conduct, see McGuire v. City of Springfield, 280 F.3d 794, 796 (7th Cir.2002), or evidence of intervening events, see Gubitosi v. Kapica, 154 F.3d 30, 33 (2d Cir.1998), tend to undermine any inference of retaliatory motive and weaken the causal link.
Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005). Defendant Dougherty indicates that he made the decision to terminate Plaintiff following the recommendations of Larry Stover, Plaintiff's immediate supervisor, and undersheriff Tim Donaldson. The record indicates that Undersheriff Donaldson harassed Plaintiff about her support of John Ticeduring the election, for which he was disciplined, but nevertheless his opinion on Plaintiff's employment status was considered by the Sheriff.9
As noted, Defendant could avoid liability by establishing by a preponderance of the evidence that he would have terminated Plaintiff regardless of her association with the opposition in the election. To be certain, Defendant has presented evidence that would support terminating Plaintiff, although ironically nothing was apparently said to Plaintiff during the eighteen-month period, nor was she subjected to any discipline for her alleged behavior. Defendant's evidence is not undisputed, certain of the evidence may be hearsay, and a jury is the proper body for assessing the credibility of the witnesses. Upon consideration of the...
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