Wright v. City of Salisbury, Mo.

• Decision Date: 10 September 2009
• Docket Number: No. 2:07CV56 AGF.,2:07CV56 AGF.
• Citation: 656 F.Supp.2d 1013
• Parties: Bill W. WRIGHT, Plaintiff, v. CITY OF SALISBURY, MISSOURI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

656 F.Supp.2d 1013

Bill W. WRIGHT, Plaintiff, v. CITY OF SALISBURY, MISSOURI, et al., Defendants.

No. 2:07CV56 AGF.

United States District Court, E.D. Missouri, Northern Division.

September 10, 2009.

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Carla G. Holste, Carson and Coil, Jefferson City, MO, for Plaintiff.

Michael G. Berry, Michael G. Berry, L.L.C., Jefferson City, MO, for Defendants.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, United States Magistrate Judge.

This matter is before the Court¹ on Defendants' Jointly Filed Motion for Summary Judgment (Doc. # 16). For the reasons set forth below, the motion shall be granted in part and denied in part.

Plaintiff Bill W. Wright brings this action pursuant to 42 U.S.C. § 1983 alleging that Defendants, while acting under color of state law, terminated Plaintiff's employment as a police officer with the City of Salisbury in retaliation for and in violation of Plaintiff's First Amendment right to free speech. Defendants are the City of Salisbury, Missouri ("City"); Joe Fehling, Mayor of the City of Salisbury; and Bill Leach, Doug Farnen, Reuben Tisdale, Eddie Hubbard, Mitchell Stephens, and John Standfield, members of the City's Board of Aldermen. Plaintiff also brings claims under state law alleging that all Defendants violated the Missouri Sunshine Law, and that Defendant City of Salisbury wrongfully discharged him in violation of Missouri public policy. Plaintiff seeks relief against the individual Defendants in both their individual and official capacities. Plaintiff requests equitable relief in the form of reinstatement, statutory penalties, and monetary relief, including actual and punitive damages.

All Defendants now move for summary judgment claiming that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Plaintiff has responded to Defendants' motion to which Defendants have replied. With leave of Court, Plaintiff filed Additional Suggestions in Opposition to Defendants' motion.

Pursuant to Fed.R.Civ.P. 56(c), a court may grant summary judgment if the information before the court shows that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of proof is on the moving party to set forth the basis of its motion, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the court must view all facts and inferences in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party shows there are no material issues of fact in dispute, the burden shifts to the adverse party to set forth facts showing there is a genuine issue for trial. Id. The non-moving party may not rest upon his pleadings, but must come forward with affidavits or other admissible evidence to rebut the motion. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

Count I—First Amendment Free Speech

A. Background

In 2006, Plaintiff began his employment as a law enforcement officer with the City. On October 11, 2007, the City's Board of Aldermen voted to eliminate the position then held by Plaintiff, thereby effectively terminating Plaintiff's employment with the City. Prior to Plaintiff's termination, Plaintiff engaged in speech, questioning Mayor Fehling's alleged instruction to him to refrain from stopping and arresting suspected drunk drivers within the City. It is this speech which Plaintiff claims caused the Board of Aldermen to terminate his employment. Defendants argue that they are entitled to judgment as a matter of law on this claim inasmuch as Plaintiff's speech did not constitute protected speech under the First Amendment and was not the cause of his termination.²

To establish a free speech retaliation claim, Plaintiff must prove that he engaged in protected activity, and that his activity was a substantial or motivating factor in his employer's decision to terminate his employment. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 865 (8th Cir.2009) (citing Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007)); Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672-76 (8th Cir.1986); see also Hughes v. Stottlemyre, 506 F.3d 675, 678 (8th Cir.2007) (establishing a case of retaliation under the First Amendment) cert. denied, ___ U.S. ___, 128 S.Ct. 1741, 170 L.Ed.2d 540 (2008). If a plaintiff meets this burden, the burden then shifts to the employer to show that it would have taken the same action regardless of the plaintiff's speech activities. McCullough, 559 F.3d at 865 (citing Altonen, 487 F.3d at 559).

A public employee engages in speech protected under the First Amendment if he speaks "as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Davison v. City of Minneapolis, Minn., 490 F.3d 648, 655 (8th Cir.2007). This is a question of law for the Court and must be determined by the content, form, and context of a given statement, "as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 148, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); McGee v. Pub. Water Supply, Dist. # 2 of Jefferson County, Mo., 471 F.3d 918, 920 (8th Cir.2006).³ This determination, itself, is a two-step process by which the Court must decide both whether the employee spoke as a "citizen" and whether the speech was on a matter of public concern. Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (holding that government employee did not act as a citizen when speech was made, but not challenging Circuit Court's finding that speech addressed a matter of public concern); McGee, 471 F.3d at 920-21 (holding that no First Amendment protection arises if government employee speaks only on matters of personal interest, as opposed to "matters that are of concern to the general public," or speaks on matters of public interest but does so in the course of his employment duties and thus not as a citizen); see also Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008); Mills v. City of Evansville, Ind., 452 F.3d 646, 647-48 (7th Cir.2006); Foley v. Town of Randolph, 601 F.Supp.2d 379, 383, 383 n. 4 (D.Mass.2009) (citing Curran v. Cousins, 509 F.3d 36, 45 (1st Cir.2007)). If the employee fails to satisfy both of these prongs, he has no First Amendment cause of action based on his employer's reaction to the speech. Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. If, on the other hand, the employee demonstrates that he spoke as a citizen, "that is, outside the scope of employment[,]" on matters of public concern, the First Amendment offers protection if his speech survives the balancing test of Pickering v. Board of Ed. of Township High School District 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). McGee, 471 F.3d at 920. Pickering requires the Court to determine "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731).

B. Evidence before the Court on Defendants' Motion

As relevant to Plaintiff's First Amendment claim, the following facts are not in dispute:

On September 21, 2007, Mayor Fehling called a meeting at his office which the Chief of Police, Jim Blackwell, and Plaintiff attended. The meeting occurred on Plaintiff's day off, and he was not in uniform. On September 22, 2007, Plaintiff wrote a letter, on his personal letterhead addressed to "To Whom It May Concern," regarding the meeting that occurred on September 21 between himself and Mayor Fehling. In this letter, Plaintiff stated that the Mayor had called the meeting in response to ongoing citizen complaints regarding Plaintiff making traffic stops for minor violations. Plaintiff continued in this letter as follows, regarding DWI enforcement:

Mayor Fehling then spoke to me about D.W.I. enforcement. He commented on the fact that I had requested of the Police Committee, two days prior to this meeting, to go for training to become a Standardized Field Sobriety Tests (SFST) instructor, saying that he was having second thoughts about it due to me aggressively attempting to apprehend drunken drivers within the city. He stated to me that I should allow drunken drivers to drive within the city as long as they are on secondary roads and not leaving town on the highways. He said the danger to the public from drunken drivers was minimal within the city on city streets because they were not traveling as fast as those on the highways. He said if I got behind someone I suspected of drunken driving, I would just let them continue driving to their destination (be it home, etc.) here in the city.

(Def. Ex. R at 1, Doc. #17-15 at 7.)⁴ Throughout the remainder of the letter, Plaintiff referred to the Mayor's alleged instruction and how it would—or would not—affect Plaintiff's ability to perform his duties as a police officer. Plaintiff contended in the letter that he informed the Mayor that "if I believed I could not [sic] longer function as an ethical police officer, I would have to consider resigning[,]" and, further, that "I must perform my sworn duties and continue to stop people who violate the law and issue warnings, citations, or make arrests. I cannot allow anyone to drink and drive and WILL ARREST anyone who does so." Def. Ex. R at 1-2.

Specifically referencing public safety, Plaintiff stated, "Not only is my job in jeopardy because I do my job, but Mayor Fehling has made it very clear that he believes it is okay to put the lives of citizens in jeopardy to squelch complaints from his constituents." Id. at 2. Echoing these same thoughts later in the letter, Plaintiff st...