Warner v. Graham
| Decision Date | 15 May 1987 |
| Docket Number | Civ. No. A1-85-259. |
| Citation | 675 F. Supp. 1171 |
| Parties | Frances A. WARNER, Plaintiff, v. John A. GRAHAM, Duainne S. Bourcy, Wayne J. Anderson and Weldee Baetsch, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Greg Lewis, Moorhead, Minn., David C. Thompson, Fargo, N.D., for plaintiff.
Mary Muehlen Maring, Michael D. Nelson, West Fargo, N.D., for defendants.
Frances Warner sues defendants for violation of her first amendment right to free exercise of her religion. 42 U.S.C. § 1983. Defendants have moved this court for summary judgment pursuant to Rule 56, Fed.R. Civ.P.
Summary judgment is appropriate where there are no genuine issues of material fact and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir.1986). For purposes of a motion for summary judgment this court must view the facts in the light most favorable to the non-moving party, and must give that party the benefit of all reasonable inferences to be drawn from the facts. Matsushita Electric Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986); Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986). Summary judgment is an extreme remedy, and should not be entered unless the movant establishes its right to judgment with such clarity as to leave no room for controversy; the non-movant must not be entitled to recover under any discernible circumstances. Foster v. Johns-Manville Sales Corp., 787 F.2d 390, 392 (8th Cir.1986).
The following facts are not disputed:
Termination
In 1981 the Lake Region Human Services Center hired plaintiff as a consultant on an independent contract basis to provide drug and alcohol education to various public schools, non-profit associations, and other groups both on and off the Devils Lake Sioux Indian Reservation.
In 1982, plaintiff became a full-time Program Specialist with the Lake Region Human Services Center. The Position Information Questionnaire for the position indicated that plaintiff's primary function was to provide alcohol and drug education services of a preventive nature to students in grades 5-12 (45% of allocated time). She was also to conduct chemical abuse awareness sessions with adults and community groups, develop a "minor in possession" program, participate in incest groups, and other specialized assignments (25% of time); assist addiction counselors in assigned tasks related to overall case plans for addicted individuals and families (20% of time); and work with community groups and caretakers in doing needs assessments and effectiveness of services data collection (10% of time).
On July 13, 1984, plaintiff was arrested and charged with distribution and possession with intent to distribute peyote, a Schedule I, non-narcotic controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. She was acquitted of these charges on October 29, 1984.
On July 16, 1984, plaintiff discussed the situation with defendant Duainne Bourcy, the regional director for the Lake Region Human Services Center. During the meeting, plaintiff admitted that she used peyote, and explained that this use was associated with her religious practices in the Native American Church.
After the meeting, Bourcy telephoned Wayne Anderson, the deputy director of the Department of Human Services, and they decided that the appropriate course of action was to suspend plaintiff for thirty days without pay, pending the outcome of the criminal proceedings. Bourcy and Anderson had previously discussed various options and prior practices within the Department in deciding which course to follow with plaintiff.
Bourcy mailed a letter notifying plaintiff of her suspension on the same date. The letter informed plaintiff that, if the charges were dropped or she were acquitted, she might be reinstated. Lake Region reserved the right to alter her employment status at any time, however.
On August 14, 1984, plaintiff was suspended without pay for an indeterminate period. This suspension was purely procedural: since personnel guidelines only permitted thirty-day suspensions, and it appeared that criminal proceedings would require more time, Bourcy and Anderson placed plaintiff on an indefinite leave of absence.
On September 25, 1984, Bourcy met with Anderson, defendant John Graham, the Executive Director of the Department of Human Services; and Assistant Attorneys General Judith Cummings and Blaine Nordwall. Bourcy then informed the others that plaintiff had admitted to using peyote, and that she intended to continue using peyote. Mr. Bourcy also stated that several school officials and community members had expressed an unwillingness to allow plaintiff into their schools and community groups, even if she were acquitted. Mr. Bourcy did not explain that the plaintiff's use of peyote was connected with the practice of her religion. Everyone agreed that plaintiff should be terminated.
On September 27, 1984, Bourcy sent plaintiff a letter informing her that she had been terminated because of her admitted use of peyote and the adverse effect this use would have on her working relationships with clients and addiction professionals. Plaintiff filed a grievance.
On October 2, 1984, an internal grievance procedure hearing was held before a hearing officer; the officer recommended upholding plaintiff's termination. The officer considered various testimony, and determined that Bourcy's stated reasons must be accepted as fact, and cannot be said to be without substance or reasoned basis. Because personnel policies and procedures had been followed, the hearing officer found that he was required to recommend that the regional director's actions be upheld. The hearing officer recommended, however, that plaintiff's request to be placed in alternative employment (i.e., sexual abuse counseling) be given serious consideration.
On November 8, 1984, defendant Graham upheld Bourcy's decision to terminate plaintiff, finding that his conclusions regarding plaintiff's future effectiveness was upheld by the record. Graham also stated that his decision was reached after The reason for her termination was that her use of a "mind-altering substance" was deemed inappropriate for her position, and that her reinstatement would harm the Department's clients and other public agencies served by the Department. Graham recommended, however, that plaintiff be given priority consideration for vacant human service center positions, and directed that the personnel division provide her with weekly job opening announcements.
Plaintiff appealed this decision to the State Personnel Board, and an investigatory hearing was held on December 10, 1984 before hearing officer Darwin Heinitz.
On January 28, 1985 Heinitz gave the State Personnel Board his Findings of Fact, Conclusions of Law and Recommendation. Mr. Heinitz stated in his Recommendation that plaintiff's acquittal had removed "use and possession of a controlled substance" as a ground for dismissal; the only "cause" that remained was plaintiff's effectiveness as an alcohol and drug educator. Since the extent of the effects on plaintiff's job duties, working relationships, etc., was unknown, Mr. Heinitz recommended that plaintiff be reinstated. Based on the Findings, Conclusions and Recommendation, the State Personnel Board found that plaintiff's termination was inappropriate, and ordered that plaintiff be reinstated with full back pay and benefits.
On February 6, 1985, defendants Weldee Baetsch, Director of Personnel of the Department of Human Services, and Bourcy met with plaintiff to discuss implementation of her return. Plaintiff signed in for work later that afternoon. Plaintiff then requested, and received, annual leave until February 11, 1985.
On February 7, 1985, plaintiff contacted Baetsch and informed him that she wanted her reinstatement revoked. Baetsch informed plaintiff that he was not authorized to do that. Baetsch then returned to Devils Lake and met with plaintiff to negotiate the terms of her reinstatement.
The parties met for three days, but no agreement could be reached.
On February 21, 1985, Darwin Heinitz (the hearing officer before the State Personnel Board) met with plaintiff and Bourcy and made recommendations to facilitate plaintiff's return to work. Plaintiff left the meeting after the recommendations had been made, and immediately submitted her written resignation.
On March 26, 1985, defendants accepted plaintiff's resignation.
On July 31, 1984, plaintiff applied for unemployment benefits. On August 14, 1984, she was determined disqualified from benefits from July 29, 1984 through August 18, 1984.
On August 22, 1984, plaintiff appealed the August 14 determination.
On September 17, 1984, an Appeals Referee held a telephonic hearing on plaintiff's appeal. On September 19, 1984, the Appeals Referee held that plaintiff was entitled to unemployment compensation benefits effective July 29, 1984 and thereafter as long as she continued to meet the legal eligibility requirements. The Appeals Referee found that the Department of Human Services had failed to establish that plaintiff's suspension involved misconduct.
On September 28, 1984, the Department of Human Services requested Bureau review of the Appeals Referee's decision. This request was granted on October 15, 1984, and a remanded hearing was held November 20, 1984, at the Devils Lake Job Service office.
On January 2, 1985, the Appeals Referee at the remanded hearing found that the Department had failed to establish that the reasons for plaintiff's suspension involved misconduct, and that plaintiff was therefore entitled to benefits...
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