Wittmer v. Thomason
| Decision Date | 26 February 2021 |
| Docket Number | Case No. CIV-18-403-SPS |
| Parties | MICHAEL D. WITTMER, Plaintiff, v. ROGER THOMASON, Individually and in his capacity as Mayor and a Trustee of the Board of Trustees of Warner, Oklahoma; BARBARA WATSON, Individually and in her capacity as Trustee of the Board of Trustees of Warner, Oklahoma; JACQUIE MARSHALL, Individually and in her capacity as Trustee of the Board of Trustees of Warner, Oklahoma; CARYN MILLER, Individually and in her capacity as Trustee of the Board of Trustees of Warner, Oklahoma; JOHNNY LEWIS, Individually and in his capacity as Town Clerk-Treasurer and/or Town Administrator of Warner, Oklahoma; TOWN OF WARNER, OKLAHOMA, Defendants. |
| Court | U.S. District Court — Eastern District of Oklahoma |
This matter comes before the Court on motion for summary judgment by the Defendants in this case, Roger Thomason, Individually and in his capacity as Mayor and a Trustee of the Board of Trustees of Warner, Oklahoma; Barbara Watson, Individually and in her capacity as a Trustee of the Board of Trustees of Warner, Oklahoma; Jacquie Marshall, Individually and in her capacity as a Trustee of the Board of Trustees of Warner, Oklahoma; Caryn Miller, Individually and in her capacity as a Trustee of the Board of Trustees of Warner, Oklahoma; Johnny Lewis, Individually and in his capacity as Town Clerk-Treasurer and/or Town Administrator of Warner, Oklahoma; and the Town of Warner, Oklahoma ("Town"). For the reasons set forth below, the Court finds that the Defendants' Joint Motion for Summary Judgment and Brief in Support [Docket No. 98] should be GRANTED IN PART and DENIED IN PART.
The Plaintiff filed this case on December 20, 2018. In his Amended Complaint, Plaintiff alleges four causes of action against the various Defendants. The Plaintiff's First Claim for Relief is raised pursuant to 42 U.S.C. § 1983 as to all Defendants, alleging a First Amendment retaliation claim. The Second Claim for Relief is brought under Title VII, alleging a claim for retaliation for engaging in a protected activity as to the Board of Trustees and the Town of Warner. The Third Claim for Relief alleges tortious interference pursuant to Oklahoma law as to Defendant Lewis alone. The Fourth and final Claim for Relief alleges a violation of Oklahoma public policy as a result of wrongful discharge, a Burk tort, as to all Defendants.
Summary judgment should be granted if the record shows that "there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for thatparty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party has the burden of showing the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), and the evidence is to be taken in the light most favorable to the non-moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, an adverse party must "properly support an assertion of fact or . . . properly address another party's assertion of fact as required by Rule 56(c)" by "citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish the absence or presence of a genuine dispute[.]" Fed. R. Civ. P. 56(c).
The relevant undisputed facts in this case reflect that the Plaintiff was hired by the Town of Warner in 2011 as an at-will employee in the Street Department and to provide occasional help in the Water Department. See Docket No. 98, p. 7. In 2016, the Plaintiff applied for a new position, but the position went to a co-worker, Joe Swimmer, instead. Upon the announcement of Mr. Swimmer's hiring at a Town meeting, the Plaintiff stood up and called them "sorry pieces of s%$&." Id., Ex. 1, pp. 22-23. In 2017, the Plaintiff was told at a Town meeting to take any issues to the Administrator, and not individual Board members. He was also told by Board Member Sarah Hubler,1 a personal friend of the Plaintiff, that he needed to follow the chain of command. Id., Ex. 1, pp. 27-29. That same year, the Plaintiff began using his cell phone to make undisclosed recordings of his interactions with co-workers because he feared he was about to lose his job.
On January 8, 2018, the Plaintiff used his phone to record a conversation between two of his co-workers, Joe Swimmer and Matt McLean, while they were having breakfast at City Hall before the workday began. This recording captured audio of these two employees using racially derogatory language and expressions. See Docket No. 107, Ex. 6. Upon recording this conversation, the Plaintiff did not report it to his supervisor (who was also the Town Administrator), Defendant Lewis, but instead released it to local media. The Plaintiff has testified that he heard Mr. Swimmer use racist language on four occasions prior to the one he recorded, but that the recording from January 8, 2018 was the first time he had heard Mr. McLean use racist language. See Docket No. 98, Ex. 1, p. 5-7. Upon the release of the recording to the media, both Swimmer and McLean tendered their resignations at a Town special meeting on January 10, 2018. See Docket No. 98, p. 9.
The Plaintiff has testified that he believed that he would be terminated for reporting incidences of racist language, but that he knew of no occasion when the Board had fired an employee for making such a report. Id., Ex. 1, p. 3-5. The Town of Warner hired attorney Tom Wright to investigate the claims of racism raised by the Plaintiff's release of the recording to the media. Mr. Wright interviewed the Plaintiff with the Plaintiff's attorney present, and the Plaintiff stated he had not disclosed prior instances of the use of racist language by co-workers to the Board but that he had heard Mr. Swimmer use such language in the past and had told individual Board members. Mr. Wright presented his investigation report at a Town of Warner meeting on March 19, 2018, in which he concluded that the events recorded on January 8, 2018, were an "isolated event," and that the Plaintiff made the recordings not to reveal racism but because he believed Mr. Swimmer was receivingspecial treatment. See Docket No. 107, Ex. 2, pp. 4-5. Mr. Wright further concluded that the Town of Warner acted appropriately in response to this incident by convening a special meeting as soon as was possible, condemning the racial slurs, and calling for an investigation, but that the conversation including racial slurs was troubling and the Town should require mandatory yearly training to prevent racially insensitive events like this in the future. Id. The Plaintiff testified at his deposition that an attendee (not a Board member or Town official) at this meeting, who was also a friend of Mr. Swimmer, suggested terminating Plaintiff's employment for being a whistleblower. See Docket No. 107, Ex. 1, p. 20. Additionally, the Plaintiff provided a recording of at least a portion of this meeting, during the time when Mr. Wright's report was received and the Board opened the floor up for questioning Mr. Wright about his report. At that time, several attendees expressed dissatisfaction that Mr. Swimmer and Mr. McLean's employment had been terminated and asked about termination of the Plaintiff's employment because he had released the recording to the media and did not "follow the chain of command." See Docket No. 107, Ex. 8. It appears from the recording that the citizens were concerned about the media attention and the loss of jobs of the two men who made racist statements, but not concerned that the statements had been made. Citizens had to be instructed several times to redirect comments and questions to Mr. Wright and the content of his report rather than problems they had with the Plaintiff. Id.
On April 3, 2018, the Town of Warner held a meeting which included an agenda item related to the Defendant and possible disciplinary action related to the use of Town gravel, equipment, and wages. The Agenda item read:
Discussion/Action on driveways that were put in by Michael Wittmer using Town of Warner gravel, Town of Warner Equipment and wages paid by the Town of Warner. Please decide[] disciplinary action; up to and/or including termination. Please advise whether to report to applicable authorities. Please decide whether to seek reimbursement from Mr. Wittmer for the cost of each driveway.
Docket No. 98, Ex. 2, p.4. At this meeting, the Board of Trustees went into executive session, then returned to publicly vote to terminate the Plaintiff's employment with the Town of Warner. The motion was passed, and the Plaintiff's employment was terminated that evening. Id.
The Defendants contend that they are entitled to summary judgment on all four causes of action in this case. The Court disagrees with the Defendants as to Count I, but otherwise agrees with the Defendants as to Counts II-IV for the reasons stated below.
First Amendment Retaliation Pursuant to § 1983. The relevant law for this claim is evaluated under the Garcetti/Pickering2 test, "[t]o achieve the required balance between the interests of public employees in commenting on matters of public concern and the interests of government employers in performing efficiently." Bailey v. Indep. Sch. Dist. No. 69 of Canadian Cty. Oklahoma, 896 F.3d 1176, 1181 (10th Cir. 2018). Using that test, the Court asks:
(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverseemployment action; and (5) whether the...
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