Opinion
TH 01-171-C-T/H
June 18, 2002
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendants filed a Motion for Summary Judgment. Plaintiff opposes the Motion.
This court now GRANTS Defendants' Motion.
I. Factual and Procedural Background
These facts are not disputed. Additional facts may be set forth in the discussion sections as necessary. In the Statement of Material Facts, Plaintiff moved to strike Defendants' twenty-nine because it is hearsay. This statement detailed the recommendations of Charles Braun, an attorney from the Indiana Law Enforcement Academy. Not only does this statement appear to be hearsay, it is not relevant to the proceedings and is therefore STRICKEN.
Donald Manlove was hired as the Hymera Town Marshal, the only paid member of the Hymera Town Marshal's office, by the Hymera Town Council in October 2000.
Defendants Russell Knight and Gene Slack were two of the three members of the Hymera Town Council. Knight is the president. The Town of Hymera owned one police car, which Manlove was allowed to drive. Some time prior to January 30, 2001, Manlove began dating Kimberly Wright. On January 30, 2001, Wright was charged with battery. Shortly thereafter, Knight cancelled Manlove's mandatory training, without which Manlove could not continue to hold his job. According to Manlove, in a conversation with Manlove, Knight stated that the training would not have been cancelled if Manlove did not have a connection to Wright. In March 2001, Knight told Manlove that he could no longer park the Hymera Town Marshal's car at Wright's house. Manlove disregarded Knight's directive and continued to park the car at Wright's house. During this time, Manlove secretly recorded several of his conversations with Knight. In these conversations, Manlove asked whether he had to stop seeing Wright or if his relationship with her presented problems with his job.
Knight disputes this statement, but for the purposes of summary judgment, this court must accept Manlove's contention as true. In any event, this isolated statement does not change the outcome of the proceedings.
Knight denied that his relationship with Wright caused any problems and stated that he had no desire to interfere in Manlove's personal life. Sometime during his tenure as Town Marshal, Manlove was involved in several traffic stops outside of his jurisdiction, including pulling over an Indiana State Representative, and stops in Indianapolis, Shelbyville, and on U.S. 41. At a Town Council meeting on April 9, 2001, Manlove was dismissed. At this meeting, at least two people spoke on Manlove's behalf. (Designation of Evidence, Ex. B, Manlove Dep. at 134-39.) The stated reasons for his dismissal were his failure to obey Knight's directive regarding the Town Marshal's car and patrolling outside of Hymera. (Id., Ex. C.) On later unemployment benefit forms, the reasons for Manlove's termination were listed as violation of employer's policy, insubordination, breach of trust, and having an untrained dog in his police car. (Pl.'s Designation of Evidentiary Materials in Resp. to Defs.' Mot. for Summary J., Ex. 8.)
On July 18, 2001, Manlove filed a complaint against the Town of Hymera, Knight, and Slack alleging violations of § 1983 based on his firing, specifically that his freedom of association, right to privacy, and procedural due process rights were violated. Defendants filed an answer on September 12 and Plaintiff amended his Complaint on November 8.
Defendants filed this Motion for Summary Judgment on March 4, 2002. Plaintiff opposes the Motion. The court now rules as follows.
II. Standard Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
III. Freedom of Association and Right to Privacy Defendants first contend that there is no constitutional right to engage in a dating relationship and, even if the right existed, Plaintiff has not shown that he was dismissed because of his relationship with Wright. As a preliminary matter, Defendants note that Plaintiff's constitutional claims arise under the Fourteenth Amendment's freedom of association, rather than the associations protected by the First Amendment. The First Amendment protects expressive associations: those that are stated in the amendment.
See Swank v. Smart, 898 F.2d 1247, 1250-51 (7th Cir. 1990). The Fourteenth Amendment protects non-expressive associations: those that relate to intimate, highly personal human relations and are a type of liberty interests. Plaintiff cites to IDK, Inc. v. Clark County, 836 F.2d 1185, 1192-93 (9th Cir. 1988), in support of his claim that both constitutional rights are implicated in this case. That case merely discusses the differences between the two freedoms of association. Because there is no claim of expressive association between Plaintiff and Wright, his claim must be based on the Fourteenth Amendment.
This leaves the more interesting question of whether the Fourteenth Amendment recognizes a liberty interest in dating relationships that receives more protection than merely against arbitrary deprivations. This is a question that neither the Supreme Court nor the Seventh Circuit has directly addressed. The Seventh Circuit has held that governmental action that forbids dating infringes on a liberty interest, but unless the right to date is a right of privacy or a fundamental right, the governmental action would only violate substantive due process if it was arbitrary. Swank, 898 F.2d at 1251. In that case, a police officer was fired in part because he gave a young woman he did not know a ride on his motorcycle. The court determined that this association was not the "kind of association to which a specially protected constitutional right of privacy might attach." Id. at 1252. The court offers no more guidance for this situation except to note that a protected right to privacy exists in certain circumstances, but it has been narrowly interpreted. Id. at 1252-53.
In support of their proposition that the Fourteenth Amendment does not protect dating relationships, Defendants cite to Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Supreme Court held that the right of privacy does not extend to homosexual sodomy.
Defendants also rely on language in Bowers that decrees that the Due Process Clause should not be expansively interpreted. Id. at 194-95. Plaintiff relies on Thorne v. El Segundo, 726 F.2d 459, 468-72 (9th Cir. 1983), in which the court held that a police department's interview questions about the sex life and sexual history of an applicant were unconstitutional. Although the court did note that the city was not entirely prohibited from questioning or considering the sexual morality of its employees, the regulations needed to be "carefully tailored to meet the City's specified needs." Id.
After weighing the appropriate concerns, the court will assume for the purposes of deciding this case that there is specially protected right to date the people one chooses.
This is just the sort of intimate life decision that is protected by the Fourteenth Amendment's liberty clause. Just as the earlier cases dealing with child rearing, family relationships, procreation, marriage, and contraception, the right to associate with whomever you choose is highly-personal and affects spheres of one's life with which the government perhaps should not be able to interfere. See Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Prince v. Massachusetts, 321 U.S. 158 (1944); Skinner v. Oklahoma, 316 U.S. 535 (1944); Meyer v. Nebraska, 262 U.S. 390 (1923). A dating or relationship choice might be considered "one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving, 388 U.S. at 12.
Although in Loving the Court was referring to marriage, in this day and age, the decision on who to date and have relationships with might be viewed by many as just as important.
However, that is not to say that such a "dating" right would be without limits, especially in the law enforcement context. The nature of law enforcement is that there is a high need for harmony and cooperation among its employees. Law enforcement agencies also need to be concerned with public appearances so that the populace they serve does not becomes disillusioned with them. In short, police power "represents a very strong government interest." Kukla v. Village of Antioch, 647 F. Supp. 799, 808 (N.D.Ill. 1986).
Therefore, the interest in police power must be balanced against the right of privacy and association. As discussed in the previous paragraphs, if there is a "dating" right of privacy, it would be deserving of broader protection than merely from arbitrary regulations.
However, in this case, there is no need to determine whether that level of protection would be intermediary or strict scrutiny because, at any level, Plaintiff has failed to prove a violation of his constitutional rights.
So even if this court finds a protected "dating" right under the Constitution, the discussion does not end there. Defendants also claim that summary judgment must be granted in their favor because Plaintiff has failed to show that he was fired because of his association with Wright. Specifically, Defendants contend that they had no issue with Plaintiff dating Wright, but that he was fired for failing to obey orders including driving his patrol car to and from Wright's home, leaving the car parked in front of Wright's home, and patrolling areas outside of Hymera.
Title 42 U.S.C. § 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir 1997). Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere. Id. Liability under § 1983 requires proof of two essential elements: that the conduct complained of (1) was committed by a person acting under color of state law; and (2) deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997). The initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated.
Plaintiff urges the use of the McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973), test that is used in Title VII cases. Although this court is not convinced that the test is even applicable, it is of no consequence to the final outcome of this Motion. Even if the court were to use McDonnell Douglas, Plaintiff would still lose because he cannot establish that Defendants' stated reasons for firing him were pretextual, or "a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995).
Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997). In this case, Defendants are contending that their conduct did not deprive Plaintiff of rights secured by the Constitution.
Specifically, they allege that Plaintiff was not deprived of any right because he was fired for legitimate reasons unrelated to his dating relationships.
In support of their position, Defendants rely on Knight's affidavit in which he states that he told Manlove that he had no objection to his relationship with Wright (Designation of Evidence, Ex. D, Knight Aff. ¶ 7.) This is also supported by Manlove's deposition. (Id., Ex. B, 115-16, 121-23.) Furthermore, both Knight and Slack's depositions state that Manlove was fired because of his refusal to obey orders, specifically their directive to not park the Town Marshal's car at Wright's house. In support of his position that the Defendants fired him because of his relationship with Wright, Manlove attempts to discredit Knight and Slack. His first argument is that Knight admitted that firing Manlove because of his relationship would be illegal and therefore "[a] reasonable jury could certainly conclude that it is not surprising that someone who acts upon unlawful motivations would repeatedly deny those motivations." (Br. at 12.) This is nothing more than speculation and conjecture about Knight's motivations and unsupported by any evidence.
Manlove also contends that the Defendants cancelled Manlove's mandatory training soon after learning of Wright's arrest and that this cancellation was tantamount to firing Manlove. As further support for the proposition that the cancellation was due to Manlove's relationship with Wright, Manlove relies on a conversation that took place directly after the cancellation in which Knight allegedly stated that "if not for Manlove's connection to Wright, he would not have canceled Manlove's required training course." (Pl.'s Designation of Evidentiary Materials in Response to Defs.' Mot. for Summary J., Ex. 5, Manlove Aff. ¶ 7.)
Several times in his brief Manlove argues that the timing of the events leads to the conclusion that he was fired due to his continued dating of Wright after her arrest. Specifically he notes that he had no disciplinary problems until after Wright was arrested. Although the timing is suspicious, it is simply not enough to establish a violation of Manlove's constitutional rights. Furthermore, Manlove was not fired until two months after Wright's arrest. In any event, the total period of employment was fairly short, only seven months. This further undercuts Manlove's timing argument.
Although Knight denies making this statements, this does not create a material issue of fact because there is no evidence that this cancellation was tantamount to firing Manlove.
Plaintiff claims that the course was only offered in limited circumstances, but offers no basis for his knowledge and no definition as to what constitutes limited. (Pl.'s Designation of Evidentiary Materials in Resp. to Defs.' Mot. for Summary J., Ex. 5, ¶ 37.) Furthermore, both parties agree that Knight told Manlove that he would be able to take the training course later in the year. (Pl.'s Statement of Material Facts ¶ 43.)
Manlove further contends that Knight had no authority to order Manlove to not park the Town Marshal's car at Wright's house because the town board has to function through town meetings where official action is taken. (Pl.'s Br. in Resp. to Defs.' Mot. for Summary J. at 19.) As correctly noted by the Defendants, Knight was the town council president and in charge of the day-to-day operations of Hymera. As the town executive, he had the authority to give orders to Hymera employees. See Ind. Code §§ 36-1-2-5, 36-5-2-2 (1998).
Manlove also claims that there was no town policy preventing him from parking the town car at Wright's house. Although it is correct that there was no formal, written policy, Manlove disregarded a direct order to not park the car there. It is not necessary that he disobeyed a written town policy, it is sufficient that he failed to follow orders.
Neither side contends that Knight did not order Manlove to discontinue parking the Town Marshal's car in front of Wright's home. There is also no dispute that Manlove ignored the order and continued to park there. Hymera is a small town. Wright had just been charged with the battery of a child. The town executive could legitimately be concerned with the appearance of having the town's only paid law enforcement officer park his town-owned vehicle in front of Wright's house. This is a legitimate justification for Manlove's firing which would not impinge upon his rights of association or privacy.
Manlove devotes the rest of his argument on this issue to undermining the other alleged reasons for his firing including patrolling outside of Hymera limits, having his dog in the town car, and ticketing an Indiana State Representative outside of Hymera. Manlove first notes that the Defendants have used different explanations at different stages of the proceedings (i.e., town board meeting, forms for unemployment benefits). Manlove provides no citation to evidence in support of his claim and Defendants note that there were several reasons provided for the termination at the town board meeting including patrolling on U.S. 41, pulling over a State Representative, and parking the town car at Wright's house. (Designation of Evidence, Ex. C, Manlove Dep. at 134-36.) These explanations were not inconsistent with the alleged reasons given on the unemployment papers for the firing of insubordination and breach of trust.
The unemployment forms mention an incident with a K9 dog that is not mentioned in the newspaper article. However, this is not enough to show that the listed reasons were pretenses. Rather, two different people were reporting details of an event and their versions differed slightly. It is worthy of mentioning that the majority of the reasons did overlap.
Manlove also contends that all of his actions were completely lawful, citing to Indiana Code section 36-5-7-5, which provides that a Town Marshal has the authority to "arrest without process all persons who commit an offense within his view" and "pursue and jail persons who commit an offense." As a preliminary matter, it is not clear that violations of traffic ordinances are "offenses" as that word is used in the statute. However, even if Manlove was authorized under the law to pursue traffic offenders outside of Hymera, that is not the dispositive issue. A town council can decide how aggressive its Marshal should be in his enforcement of the law. As the Defendants state, "It was the consistent poor judgment exercised by Manlove, his continued reluctance to confine his law enforcement efforts to Hymera and his repeated disregard for the wishes of his superiors that ultimately led to his dismissal." (Reply Br. at 10.) Because Manlove has provided no evidence that the Defendants deprived him of his substantive due process rights, summary judgment must be granted in favor of the Defendants on this claim.
IV. Procedural Due Process Manlove also brings a procedural due process claim. Specifically he contends that Defendants violated Manlove's liberty interest without providing any hearing or opportunity to refute the allegations leading to his firing. (Compl. ¶ 25.) Defendants contend that Plaintiff must fail on this claim as well because there was no deprivation of a liberty interest. Plaintiff contends that he was harmed by the imposition "upon him [of] a stigma that has had the effect of foreclosing Manlove's freedom to take advantage of other employment opportunities in this law enforcement field and in other fields of employment."
(Amended Compl. ¶ 25.)
A state employee has a liberty interest in not being discharged from his or her employment under certain circumstances. See Strasburger v. Board of Educ., Hardin County Community Unit Sch. Dist. No. 1, 143 F.3d 351, 356 (7th Cir. 1998). To establish a deprivation of such a liberty interest, a plaintiff must show the following elements: (1) he was discharged from his employment, (2) "he was stigmatized by the defendant's conduct," Strasburger, 143 F.3d at 356, (3) "the stigmatizing information was publicly disclosed," id., and (4) "he suffered a tangible loss of other employment opportunities as a result of public disclosure." Id.; see also Harris v. City of Auburn, 27 F.3d 1284, 1286 (7th Cir. 1994).
In this case, there is no evidence that Manlove's termination was accompanied by sufficiently stigmatizing conduct, which he must prove to prevail on a deprivation of liberty claim. The first element requires the employee to show that a public official made defamatory statements about him. These statements must be false assertions of fact meaning that true but stigmatizing statements do not support this type of claim. To be sufficiently stigmatizing, the employee's "good name, reputation, honor, or integrity" must be implicated and "the circumstances of the termination must make it virtually impossible for the employee to find new employment in that field." Strasburger, 143 F.3d at 356;
Lashbrook v. Oerkfitz, 65 F.3d 1339, 1348-49 (7th Cir. 1995). Examples of sufficiently stigmatizing accusations are "such charges as immorality, dishonesty, alcoholism, disloyalty, Communism, or subversive acts." Lashbrook, 65 F.3d at 1348. A label of incompetence or inadequacy in performing one's job does not infringe one's liberty interest. See Lashbrook, 65 F.3d at 1348. At most, Manlove's firing implied that he was incompetent and insubordinate as Town Marshal, but this is not sufficiently stigmatizing.
Manlove relies on Ratliff v. City of Milwaukee, 795 F.2d 612 (7th Cir. 1986), in which the court affirmed the dismissal of a probationary police officer's suit relating to her termination. In that case the court determined that:
the charges against Ratliff were so critical of her abilities as a police officer that it would be virtually impossible for her to find new employment in law enforcement. Ratliff was charged with unsatisfactory performance and lack of ability, but the specifics were so devastating that it is unrealistic to believe that she could pursue a career in law enforcement, if the reasons were publicized.
Id. at 625-26. In this case the charges against Manlove were not so critical as to make it impossible to find new employment in law enforcement. He was accused of parking the town car in front of his girlfriend's house after being told not to and of making several stops outside of the jurisdiction. These are hardly the type of claims that have lasting stigmatizing effects.
There is nothing to suggest that this label rendered Manlove unemployable as a law enforcement officer, and, in fact, Manlove is currently employed as a Department of Corrections' employee. Although this job is not exactly the same as his former job as Hymera Town Marshal, it illustrates that the Defendants' conduct was not so stigmatizing so as to foreclose other job opportunities in the law enforcement sector. Thus, the evidence is insufficient to support Manlove's claimed deprivation of a liberty interest in his firing as Town Marshal. Because Manlove was not deprived of any protected interest under the Due Process Clause, he was not entitled to a name-clearing hearing.
In any event, Manlove received a hearing. When Manlove was terminated at the April 9, 2001 town council meeting, members of the community spoke on his behalf, he was able to hear the charges against him, and he was able to respond to the allegations. (Manlove Dep. at 134-39.)
V. Qualified Immunity Because Plaintiff has presented no viable § 1983 claim, this court need not address Defendants' final contention that Knight and Slack are entitled to qualified immunity. However, even if this court is incorrect in its analysis of the other contentions, Knight and Slack would be entitled to qualified immunity on the substantive due process claim. State actors are entitled to qualified immunity so long as their conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Jenkins v. Keating, 147 F.3d 577, 584-85 (7th Cir. 1998), the Seventh Circuit emphasized the rationale behind the doctrine of qualified immunity, explaining that "[t]he necessity of protecting [officials] from undue interference with their duties and from potentially disabling threats of liability has given rise to the doctrine of qualified immunity. . . ." (internal quotations omitted). See also Harlow, 457 U.S. at 806; Tangwall v. Stuckey, 135 F.3d 510, 514 (7th Cir. 1998). Moreover, immunity acts as a safeguard to government and protects the public at large by "avoid[ing] excessive disruption of government and permitt[ing] the resolution of many insubstantial claims on summary judgment." Harlow, 457 U.S. at 818.
Just as there is no viable claim against Knight and Slack, the claims against the Town of Hymera must also fail.
The court must first determine whether the plaintiff has alleged a deprivation of a constitutional right and then whether that right was clearly established. Townsend v. Vallas, 256 F.3d 661, 672 (7th Cir. 2001). To be clearly established, "the contours of a right . . . must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right." Id.
Burdens borne by the different parties regarding the issue of qualified immunity have been explained by the Supreme Court in Siegert v. Gilley, 500 U.S. 226, 232-35 (1991), and by the Seventh Circuit in Pounds v. Griepenstroh, 970 F.2d 338, 340 n. 2 (7th Cir. 1992), and Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988) (en banc). The Seventh Circuit summed up the shifting burdens as follows:
Initially, the plaintiff must allege the violation of some constitutional right. Next, the plaintiff must attempt to demonstrate that the right was clearly established by referring the court to analogous cases that would have put the defendants on notice that their acts were illegal. Finally, the defendants must respond to the plaintiff's argument by proving, through prior decisions or otherwise, that they could reasonably have believed that their acts were constitutionally permissible . . . because the plaintiff's right was not so clearly established that the unlawfulness of their acts was apparent. . . .
Pounds, 970 F.2d at 340 n. 2.
In this case, although Plaintiff has sufficiently alleged a deprivation of a constitutional right, he has not established that the constitutional right was a clearly established right. The issue of what constitutes a liberty interest under the Due Process Clause is a murky one at best. There is no clear Supreme Court or Seventh Circuit defining a protected liberty interest in one's dating relationships. The closest case Plaintiff has been able to locate is a Ninth Circuit opinion from over a decade ago which even the Ninth Circuit has declined to extend. Thus, Plaintiff has not shown that Knight and Slack reasonably should have known that their actions violated the Plaintiff's rights. Because it is not clear that Defendants Knight and Slack violated a clearly established constitutional right of the Plaintiff, they are entitled to qualified immunity on the substantive due process claim against them in their individual capacity.
Plaintiff contends that because Knight testified that firing Manlove based on his dating choices would be unconstitutional, he is not entitled to qualified immunity. Qualified immunity is based on what a reasonable person would have known, or an objective test. Knight's subjective beliefs do not enter into the equation. Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999) ("Qualified immunity depends on the objective legal reasonableness of the defendants' actions, not on their subjective motivations.").
VI. Conclusion For the foregoing reasons Defendants' Motion for Summary Judgment is GRANTED.