CIVIL ACTION No. 03-2148-KHV
March 29, 2004
MEMORANDUM AND ORDER
Terry Bell brings this action under 42 U.S.C. § 1983 against his former employer, the Board of Commissioners of Jefferson County, claiming that the County violated his constitutional rights when it terminated his employment on August 2, 2002. Plaintiff claims that defendants (1) fired him in retaliation for exercising First Amendment free speech rights; and (2) deprived him of a property interest in continued employment and a liberty interest in reputation and employment opportunities without procedural due process, in violation of the Fourteenth Amendment. This matter comes before the Court on Defendants Board Of County Commissioners Of Jefferson County. Don Haynes, Travis Oliver And Robert Abel's Motion For Summary Judgment (Doc. #71) filed December 31, 2003 and Plaintiff's Motion For Leave to File A Surreply Memorandum In Opposition To Defendants' Motion For Summary Judgment (Doc. #89) filed March 8, 2004. For reasons stated below, the Court finds that defendants' motion should be overruled and that plaintiff's motion should be sustained.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co. 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga. Okla, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l. Inc. v. First Affiliated Sec. Inc. 912 F.2d 1238, 1241 (10th Cir. 1990): see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 586-87 (1986); Bacchus Indus. Inc. v. Arvin Indus. Inc. 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs. Ltd. v. Jackson Hole Ski Corp. 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment maybe granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
The following facts are either uncontroverted or construed in a light most favorable to plaintiff.
On June 1, 1986, Jefferson County hired Terry Bell as an emergency medical technician for its Emergency Medical Services ("EMS"). On November 14, 2001, Don Haynes, EMS director, promoted Bell to assistant director. Haynes told Bell that he would be the assistant as long as he wanted the job and satisfactorily performed his duties. At his deposition Haynes testified based on his general knowledge that when County employees pass the probationary period, they can only be fired for a reason or for cause. The County did not offer Bell a written contract and no member of the Board of County Commissioners promised him permanent employment. Bell read his copy of the Jefferson County Employee Handbook (the "Handbook"), which provided in part as follows:
After the fact, because they "[c]hecked [the] handbook," defendant attempted to change Haynes' deposition testimony to say that after the probationary period, good cause was not required. Plaintiff correctly points out that the Court must reject this as a material change which is controverted by the original testimony. See Garcia v. Pueblo County Country Club, 299 F.3d 1233 (10th Cir. 2002); see also In re Indep. Servs. Org. Antitrust Litig., 85 F. Supp.2d 1130, 1156 (D. Kan. 2000) (court will disregard summary judgment affidavits which are inconsistent with prior sworn testimony if changes attempt to create sham fact issue).
In as much as an employee can terminate his or her employment with the County at any time and for any reason, a Department Head or Jefferson County Commissioners can terminate an employee at any time and for any reason. The County subscribes to the policy of "employment at will." Continued employment with the County is at the sole and exclusive option of County Commissioners. Permanent employment or employment for a specific term cannot be guaranteed or promised.
Bell Depo. Ex. 1 Tab A. No County Commissioner ever told Bell that the policy was other than as stated in the Handbook. On the other hand, no supervisor ever specifically pointed out to Bell any Handbook provision which "disclaim[ed] the intent not to form an implied contract of employment." Bell Declaration at ¶ 3.
The Handbook specifically dealt with the probationary period, termination of employment, and employee grievances. In a section entitled "Initial Evaluation Period" it provided in relevant part as follows:
A new employee when hired will be on a six (6) month evaluation period . . . If during the initial evaluation period or any immediately subsequent probationary period an employee's performance or conduct is not acceptable, they [sic] may be dismissed without the right of appeal or hearing, except in the case of alleged discrimination or harassment based upon age, color, sex, race, religion, disability, citizenship, national origin or ancestry.
Oliver Depo. Ex. 11 at 41, Plaintiff's Appendix. The section titled "Corrective Counseling and Performance Improvement" provided as follows:
The involuntary dismissal notice is prepared by the Supervisor with the concurrence of, and review by, the Department Head and Jefferson County Commissioners. The employee is notified of the dismissal/termination by the Supervisor and, if necessary, will be directed to report to the Clerk's office for completion of appropriate documentation. Involuntary dismissal is reserved for those cases that cannot be resolved by corrective counseling or in those cases where a major violation has occurred which cannot be tolerated.Id. at 44. The Handbook also contained a section titled "Terminations," which provided in part that:
[i]f an employee feels they [sic] have been terminated unfairly, they [sic] may appeal as stated in the Jefferson County Employee Handbook Grievance Policy.
Bell Depo. Ex. 1 at 52, Defendants' Exhibits. Finally, the Handbook recognized that "[o]ccasionally, an employee may have a complaint or grievance concerning his or her job, working conditions, salary, relationship between employee and co-workers, or supervisor, or the application of equal employment opportunity policies." Id. at 53. It established the following grievance procedure:
If the grievance is concerned witha disciplinary action, the employee may submit his/her complaint in writing to the Jefferson County Commission within fifteen (15) working days of the disciplinary action. The Commission shall appoint a committee to conduct a hearing in accordance with procedures one (1) through six (6). The committee shall consist of three (3) County employees, with at least one member being a Jefferson County employee of a classification level comparable to the grievant.
No member of the grievance committee shall be employed in the department in which the grievance occurred.
1. The committee shall convene within fifteen (15) days from the Commissions' receipt of the employee's request for such a hearing.
2. At the hearing, all concerned parties shall be given an opportunity to present their respective side of the grievance together with any pertinent evidence or witnesses as deemed relevant by the Committee. All parties shall have the right to cross examine adverse witnesses and evidence.
3. The Committee may call for additional evidence as it deems proper.
4. The Committee will not be bound by any legal rules of evidence.
5. No witness shall be subject to any restraint, interference, discrimination or reprisal by any of his/her testimony in such hearing.
The Committee shall report its finding and decision to the Commission in writing within ten (10) calendar days of the hearing's conclusion and such decision shall be supported by evidence. A copy of the finding shall be provided to the employee and the Department Head. No disciplinary action shall take effect until the Committee reports its findings to the Commission and the Commission has adopted the findings of the Committee.Id. at 53-54.
On July 17, 2002, the head of the County road department terminated Donald Wright's employment. Wright filed a grievance to challenge his termination. The grievance committee recommended that he be reinstated. The County Commissioners agreed and reinstated Wright to his position.
In January of 2002, Haynes and EMS employee Janey Gordon responded to a "code blue" medical call at the courthouse. Although the patient died, Haynes and Gordon laughed and giggled when they returned to the EMS station, "high-frying" each other and talking about what a cool call it had been. Bell expressed to them his concern that they had not followed protocol. He also told Haynes that "we probably as an ambulance service were facing a large malpractice suit if the family wanted to pursue it."
Some time after Bell became assistant director, Haynes began to deliver truckloads of supplies from the County EMS stock room to the ambulance service at the city fire department in Valley Falls, Kansas. Haynes also promised John Gordon, the Valley Falls Fire Chief, that the County would contribute $8,000.00 from its budget to the city fire department. Bell discussed this with Haynes on several occasions, the last being in July of 2002. Bell told Haynes that the deliveries violated County policy, were unfair to the other 11 fire districts in the County and wasted taxpayer money. Bell also told Haynes that a cash contribution was a bad idea and probably illegal, and that Haynes should consult with the County Counselor.
After he expressed these concerns, Bell and Haynes met with Chief Gordon and other members of the Valley Falls Fire Department, including John Shipleyand Janey Gordon, who served in both the County EMS and Valley Falls Fire Department. Bell stated that he did not think that the County EMS could give them funds and supplies.
Janey Gordon is Chief Gordon's daughter.
Haynes discussed with all three members of the County Commission the practice of delivering supplies and contributing funds to the Valley Falls Fire Department. The record contains no direct evidence, however, that Haynes told the Commissioners that Bell had these concerns.
In March or April of 2002, County Commissioner George Mathews went to the EMS station to discuss his re-election campaign with Haynes. Mathews was planning to publicize his accomplishments for the County, including the fact that the County had hired Haynes, turned the EMS around and substantially increased its collections. Mathews particularly wanted to include the fact that the County had recently collected about $83,000.00 from Medicare. Bell told Mathews that he was concerned about linking the Medicare collections to Haynes, because the numbers reflected sums which EMS had applied for earlier. Bell told Mathews that if he attributed the influx to Haynes, "somebody's going to get a hold of the truth and . . . you're going to look kind of foolish." Bell Depo. at 108, Plaintiff's Appendix.
Since January of 2001, the County Commissioners had been concerned about collecting reimbursement from Medicare and private health insurance companies. Commissioner Travis Oliver testified that before Haynes became EMS director, the business side of the ambulance service had been ineffectively managed and that he (Oliver) spent "a lot of time messing with that particular issue, and that's why I had most of my conversations with Donnie [Haynes]. We used to fund it by $350,000.00, I think. This year, I think we levied $30,000.00 [in property taxes]." Plaintiff's Appendix, Oliver Depo. at 98.
In March of 2002, EMS hired Tani Ruff to bill the accounts and perform secretarial duties for Haynes and Bell. A month later, Ruff conducted a training session for EMS employees and other first responders in Jefferson County, and she addressed the importance of documentation for billings to Medicare and health insurance companies. As an example, Ruff discussed an ambulance transport to the emergency room for a patient who had trouble sleeping. Ruff said something to the effect that she could take a non-emergency ambulance run and if she coded it right, she could turn it into a high paying emergency run. Bell testified that Ruff's approach horrified him, and he told Haynes that he would have no part of Medicare fraud. During the last two weeks of July of 2002, Bell again expressed to Haynes his concern about possible Medicare fraud by Ruff. Bell told Haynes that because of Ruff's work habits (her dress, attitude and language and the fact that she arrived late, left early and slept at her desk), and because he could not trust her on the medical billing, he wanted to "let her go" before her six-month probationary period was up.
During the summer of 2002, Bell received information that Haynes had been responding to emergency calls in his County vehicle while drinking or under the influence of alcohol. Bell reminded Haynes that it was against County policy to operate a County vehicle after consuming alcohol, and Haynes agreed that this was not a good thing to do. Bell never told any commissioner about this concern, however.
On July 30, 2002, Haynes metwithEMS employees Philip Briney, TimDooley, Steve Scott, John Shipley, Janey Gordon and Tani Ruff. They complained that Bell had an abusive attitude, created tension in the workplace, and called female employees bitches and cunts. They also said that Bell called Haynes a "big fat douche bag" and other derogatory names such as "fat bastard." The employees told Haynes that morale was very low because of Bell, and that some employees would seek other employment if Bell remained assistant director. Scott told Haynes that members of the Rock Creek Fire Department (another fire department in Jefferson County) did not want to respond to calls because Bell routinely called them derogatory names and belittled them about the care which they provided. All six employees gave Haynes written statements which outlined their concerns, including conduct that had occurred months and even years before the meeting.
The relationship between Rock Creek Fire Department and the County EMS improved after the County terminated Bell.
Morale at the EMS has sharply improved since Bell's termination. Bell attempts to controvert this fact, which is based on Shipley's affidavit, stating that a "reasonable jury could find Mr. Shipley's testimony is tainted by a retaliatory animus arising from the Plaintiff's exercise of his right of free speech." Even if a jury disbelieved Shipley's testimony, morale after Bell's termination is not a material fact in determining whether the County is entitled to summary judgment.
As of July 30, 2002, the date of the meeting between Haynes and the six employees, Haynes had never taken disciplinary action against Bell. Haynes knew that Scott and Dooley were unhappy when the County promoted Bell to assistant director, that plaintiff had exercised his right of free speech concerning several topics, and that Bell held certain views which contradicted his views and those of other EMS employees.
On July 31 or August 1, 2002, Haynes told Commissioners George Mathews and Francis Grollmes that he was thinking about firing Bell. The Commissioners told Haynes to do what he thought was best for his department. On August 1, Haynes also discussed with Commissioner Travis Oliver the possibility of firing Bell. Oliver asked Haynes what he wanted to do, and Haynes replied that he had decided to fire Bell.
On August 2, 2002, Haynes prepared a termination letter to Bell, stating as follows:
It has been brought to my attention that there has been more than one incident that you have verbally made several employees fearful of their jobs. On one occurrence you said "that if you said shit they had better start looking for a corner." It has just been reported to me that you now have made a physical threat to an employee. You told this employee "that if they ever did that again that you would kick their ass." This has made for a [h]osfile work environment. This cannot and will not be tolerated. Because of your actions towards other employee's [sic] I have no other choice but to end your employment with Jefferson County.
Depo. Ex. 21, Plaintiff's Appendix.
On August 2, 2002, Haynes and Commissioner Oliver met with Bell and told him that his employment was terminated. Commissioner Oliver gave Bell Haynes' letter of August 2 and read it to him. Bell asked to see the written complaints against him, but his request was denied. After the meeting, pursuant to the Handbook provision on "Personnel Records," the County placed a copy of the termination letter in Bell's personnel file. The policy provided in relevant part as follows:
Complete records of the employment history of every current and former County employee shall be maintained in an employee personnel file. The employee, designee of the employee, Department Head/Supervisor or their designee, and the County Commissioners shall have access to the personnel files. Access may be granted as legally required or otherwise advisable to courts, representatives of investigatory agencies or third-party payor, etc. The confidentiality of employee records shall be maintained to the extent permitted here. . . . The following documents are to be included in each employee's personnel file: . . . resignation, termination notification with date, grievances with action taken and date.
Depo. Ex. 11 at 45, Plaintiff's Appendix.
On Augusts, 2002, Bell and his representative, David Christy, met with the County Commission. Christy asserted that the County grievance policy was unclear (a) whether the first two steps of the grievance procedure were mandatory; and (b) how a "working day" was calculated where an employee worked a 24-hour shift every three calendar days. Christy stated that the grievance policy in the County Handbook was assinine and made "no sense whatsoever."
On August 7, 2002, pursuant to step one of the County grievance policy, Bell contested his termination in a written grievance to Haynes. Bell denied and refuted all allegations of Haynes' letter of August 2. Pursuant to step one of the County grievance policy, Bell also gave Haynes a second written grievance entitled "Notification of Hosfile Work Environment and Request for Investigation." In this grievance, Bell stated in part:
Please accept this memorandum as notification that I was subjected to working in a hosfile work environment during my employment withJeffersonCountyEmergencyServices. This Hosfile Environment developed due to your inability to manage the day in and day out operations of Jefferson County Emergency Services. . . . I had to continually monitor the decision[s] you were making in an effort to keep Jefferson County from defending themselves from civil ramifications in almost every aspect of the administration of the department, including but not limited to issues of policy, security, confidentiality and financial wastefulness and mismanagement.
Oliver Depo. Ex. 31, Plaintiff's Appendix.
On August 12, 2002, Bell attended a County Commission meeting to read and submit a letter. That letter demanded reinstatement with pay until "suchtime as the County Commissioners have rendered their decision following the finding of the Grievance Board and the investigation by the E.E.O.C., under Title VII, Hosfile Environment, has been completed."Id. Oliver Depo. Ex. 32. The letter stated in part:
As stated in your Grievance Policyand Procedure, page 54, first paragraph, first sentence, "No disciplinary action shall take effect until the Committee reports its findings to the Commission and the Commission has adopted the findings of the Committee."
Nowhere within the Grievance Policy and Procedure does it refer to the grievant as a terminated or ex-employee. Throughout the entire document, it refers to the grievant as "employee."Id.
On August 22, 2002, Bell filed with the County Commission a "Notification of Request for Grievance Hearing." That notification again contested his termination and refuted the allegations set forth in Haynes' letter of August 2. At a County Commission meeting on August 26, 2002, Bell asked for copies of the written complaints against him, a waiver of a speedy grievance hearing, and for at least four consecutive hearing days to submit evidence. The Commission referred the requests to Bob Abel, Annie Landis and Chris Schmeissner, who comprised the grievance committee. Bell also asked for a decision on his request to be reinstated with pay. The Commission did not act on that request. On September 3, 2002, Bell gave the grievance committee a letter and copies of all documents which he had previously submitted to the County Commission. The letter stated in part:
On August 26, 2002, during regular session of the Board of County Commissioners for
Jefferson County, all decisions reference [sic] Terry Bell's employment and dismissal were deferred to the appointed grievance committee. I am hereby submitting to the chairman of that said committee, Bob Abel, the documents which the County Commissioners chose not to address.
Plaintiff's Appendix, Depo. Ex. 41. The County Commission gave no direction to the grievance committee as to how to conduct the grievance hearing; it only directed the grievance committee to consult with County Counselor Steve Montgomery.
Abel consulted with Montgomery on how to proceed. Because plaintiff had a number of pending requests, Montgomery advised Abel to conduct a pre-grievance conference. At this conference, which occurred on September 6 in the county courthouse, Abel limited the hearing to eight hours instead of four days and told Bell that he had four hours to present his case. Abel also decided that the grievance committee would not force witnesses to attend the proceedings. Abel required each side to provide questions which the committee (not the parties) would ask the various witnesses. When Bell objected to these decisions, Abel told Bell that he could do them all a favor and just pay his fee and file his complaint upstairs.
Before the grievance hearing, Bell's attorney gave Abel a list of witnesses he wanted to call, with questions for each witness. Bell's list included Janey Gordon, whose complaint that Bell had threatened to "kick her ass" had been cited in his termination letter. Abel made no effort to contact Gordon or request her presence at the grievance hearing. Phil Briney, who had also lodged a compliant against Bell, may have been allowed to review the list of questions before he testified at the grievance hearing.
On October 10, 2002, Bell submitted to the County Commission his objections to Abel's decisions at the pre-grievance conference, including the time limitations and the inability to cross-examine adverse witnesses. Bell noted that County grievance policy provided him "the right to cross examine adverse witnesses and evidence," and that denying him that right was a violation of due process.
On October 10, 2002, the grievance committee conducted its hearing on Bell's grievance. On the advice of the County Counselor, Abel instructed the witnesses that they did not have to answer any question which made them uncomfortable. Abel did not ask all questions which plaintiff had submitted, and he rephrased a number of plaintiff's questions. Abel did not allow Bell to call all of his witnesses, even though they were in the courthouse. Several EMS employees who had lodged complaints against Bell, including Scott and Janey Gordon, were not called as witnesses. Bell therefore had no opportunity to cross-examine them.
During the grievance hearing, Bell discussed concerns which he had previously expressed to Haynes. These included the facts that (1) Haynes and Janey Gordon had not followed established protocol in responding to the "code blue" medical call; (2) Haynes had given County supplies (and even proposed giving County funds) to the Valley Falls Fire Department; (3) Ruff had committed Medicare fraud; and (4) Haynes had responded to calls in a County vehicle while either drinking or under the influence of alcohol.
On October 14, 2002, the grievance committee submitted a one-sentence decision finding that "[a]fter hearing testimony and reviewing the evidence the grievance committee recommends that the Jefferson County Commission should uphold the decision to terminate Terry Bell." Oliver Depo. Ex. 44, Plaintiff's Appendix. Abel delivered the recommendation to the County Commission during a ten-minute executive session. He did not discuss Bell's grievance with the Commissioners before or during the executive session, and he did not give the Commissioners any information except what was in the grievance committee decision. The Commissioners did not ask any questions. Immediately after the executive session the Commissioners voted to uphold the decision of the grievance committee. Bell did not receive a copy of the grievance committee's decision until after October 14, and he had no opportunity to appear before the Commission to contest it.
From March until May of 2003, Bell worked for Countryside Construction for $17.50 an hour. He currently earns $12.00 an hour at King Construction. After the County terminated his employment, Bell applied for only one job — the one at King Construction.
Plaintiff asserts the following claims under Section 1983: (1) termination of his employment in retaliation for the exercise of First Amendment free speech rights; and (2) violation of procedural due process rights under the Fourteenth Amendment in connection with (a) his property interest in continued public employment and (b) his liberty interest in his reputation and other employment opportunities.
Defendant contends that it is entitled to summary judgment on both claims because (1) the Board of Commissioners was the final policymaker on plaintiff's termination and, since it was not aware of plaintiff's constitutionally protected speech, it could not have retaliated against him; (2) if Haynes, was the final policymaker, he had an interest in maintaining an effective workplace which outweighed plaintiff's interest in free speech; (3) as an at-will employee, plaintiff did not have a recognized property interest in continued employment which would trigger Fourteenth Amendment rights to due process and, even if he did, no due process violation occurred; and (4) defendant did not violate the Fourteenth Amendment by publishing a stigmatizing statement that would foreclose other employment.
As a preliminary matter, plaintiff sues the individual defendants in only their official capacities. Any claims against them merely duplicate the claims brought directly against the Board of County Commissioners, because official capacity suits are merely "another way of pleading an action against the entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985). As long as the government entity receives notice and an opportunity to respond, an official capacity suit is treated as a suit against the entity.Id. at 165-66. In suits in which a government entity is a party, the Court has previously dismissed official capacity claims against individuals who are sued in their official capacities. See Sims v. Unified Gov't of Wyandotte County, 120 F. Supp.2d 938, 945 (D. Kan. 2000) (where plaintiff sues both municipality and municipal officers in official capacities, suits against officers are redundant and should be dismissed). The Court therefore dismisses all of plaintiff's claims against the individual defendants in their official capacities and refers to the Board or the County as the sole remaining defendant.
Section 1983 does not itself create any substantive rights.Gallegos v. City County of Denver, 984 F.2d 358, 362 (10th Cir. 1993). It merely grants an avenue of relief to a plaintiff who has been deprived of an existing constitutional or federal statutory right by a person acting under color of state law. Id. Section 1983 reaches only deliberate deprivations of federally protected rights, and does not impose liability for mere negligence. See Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992) (supervisors not liable if they merely "should have known" of sexual harassment but failed to stop it). Therefore, the County cannot be liable under a theory of respondeat superior. Id. On the other hand, if a policymaker is "deliberately indifferent" to constitutional violations by subordinates, the policymaker may be liable. Deliberate indifference is akin to recklessness — "a conscious acceptance of a known, serious risk." Archuleta v. McShan, 897 F.2d 495, 499 (10th Cir. 1990). "Recklessness is generally regarded as satisfying the scienter requirement of section 1983 because it requires proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk." Woodward, 977 F.2d at 1399 (citing Archuleta, 897 F.2d at 499). As to each of plaintiff's claims, the County can be liable under Section 1983 if an official custom or policy caused a violation of plaintiff's constitutional rights, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978); Graham 473 U.S. at 165 or an individual with final policymaking authority violated plaintiff's constitutional rights. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986) (holding that single decision by official responsible for establishing final policy may give rise to municipal liability); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992) (same), cert. denied, 508 U.S. 952 (1993):Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1189 (10th Cir. 2003).
I. First Amendment Claim
Plaintiff asserts that the County violated his First Amendment right to free speech by terminating his employment because he voiced concerns to Haynes, the grievance committee and the Board of Commissioners about alleged medicare fraud, possible illegal transfer of money and supplies to the Valley Falls Fire Department, and Haynes' use of County vehicles while intoxicated. The County first asserts that it is entitled to summary judgment on this claim because the Board was the final policymaker on plaintiff's termination, and the Commissioners did not know about any such speech. Defendant alternatively argues that even if Haynes was the final policymaker, his reasonable belief that Bell was undermining the efficient operation of the EMS outweighed Bell's right to voice his concerns.
A. Final Policymaker
As noted, defendant primarily argues that the Board of Commissioners was the final policymaker. As defendant points out, Kansas law places final authority over county personnel decisions (except for employees of independently elected officials) in the elected board of county commissioners. See K.S.A § 19-10(a); Nielander v. Bd. of County Comm'rs, 275 Kan. 257.264-67. 62 P.2d 247 (2003). Plaintiff responds that the Commissioners delegated their final policy making authority to Haynes when they told him to do what he thought best for his department, and that Haynes' decision to fire him was not subject to meaningful review. See Randle, 69 F.3d 441, 448 (10th Cir. 1995). The Court must therefore address whether Haynes or the Board was the final policymaking authority.
Only those officials with "final policy making authority" can subject a municipality to liability. Randle, 69 F.3d at 448 (quotingCity of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)). "Final policymaking authority" is a legal issue for the Court to decide under state and local law. Praprotnik, 485 U.S. at 124, 129-130 (because civil service commission possessed final authority on personnel decisions, discretionary hiring and firing decisions by subordinate employees did not constitute finalpolicymaking by municipality). InPraprotnick, Justice O'Connor highlighted two guiding inquiries in resolving this issue: "(1) whether a subordinate's discretionary decisions are constrained by general policies enacted by others; and (2) whether the subordinate's specific decisions are reviewable by others." Id. at 127 (plurality opinion). According to the Tenth Circuit in Randle, this guidance largely flowed from an example offered in Justice Brennan's plurality opinion in Pembaur v. Cincinnati, 475 U.S. 469 (1986), as follows:
Justice Brennan explained that in the case where the Board of County Commissioners established county employment policy and delegated to the County Sheriff alone the discretion to hire and fire employees pursuant to that policy, the county itself would not be liable if the Sheriff unconstitutionally exercised this authority because the "decision to act unlawfully would not be a decisionof the Board." Id at 483 n. 12, 106 S.Ct. at 1300 n. 12. However, if the [S]heriff had been delegated final responsibility for establishing employment policy-i.e., if the [S]heriff was not subject to any meaningful review or constraints-then the county could be held liable for his actions within the grant of his official authority. Id. Justice Brennan defined a "policy" as "a course of action [consciously chosen] from among various alternatives by the officialor officials responsible for establishing final policy with respect to the subject matter in question." Id. at 483-84, 106 S.Ct. at 1300. However, he underscored that while the quintessential policy is a governmental entity's "establish[ed] fixed plans of action to be followed under similar circumstances consistently and over time," Id. at 480-81, 106 S.Ct. at 1299, policy can also be established pursuant to a specific and one-time decision made by a "final policymaker," id. at 481, 106 S.Ct. at 1299.Randle, 69 F.3d at 448 (quoting Penbaur). Based on these principles, the Tenth Circuit has identified three elements which are useful in determining whether an individual is a "final policymaker": (1) whether the official is meaningfully constrained "by policies not of that official's own making;" (2) whether the official's decisions are subject to any meaningful review; and (3) whether the policy decision purportedly made by the official is within the realm of the official's grant of authority. Id. at 448 (citing Praprotnik, 485 U.S. at 127 and Ware v. Unified Sch. Dist., 902 F.2d 815, 818 (10th Cir. 1990) (no delegation when decision of subordinate constrained by policies not of his making or subject to review by authorized policymaker)).
In order to determine whether an individual holds final policymaking authority in a Section 1983 case, the Court examines the legal chain of authority. See Jantz, 976 F.2d at 631 (school board not liable for principal's action because school board had ultimate legal authority to review decisions involving hiring and firing): Ware, 902 F.2d at 819 (municipality not liable because principal who fired plaintiff was not final policymaker on personnel matters; he was vested with no such authority and his decisions were reviewable by school board). To strip an official of "final policymaking" authority, any review procedure or constraints must be meaningful, as opposed to merely hypothetical. Flanagan v. Munger, 890 F.2d 1557, 1569 (10th Cir. 1989) (official was final policymaker where his discipline decisions were final and administrative review was illusory).
The Board acknowledges that the County could be liable for Haynes' decisions if it delegated its final policymaking authority to him.See Ware, 902 F.2d at 815. "Such delegation arises when a subordinate's decision is couched as a policy statement expressly approved by the policymaking entity, or when the decision manifests a custom or usage of which the entity must have been aware. Delegation does not occur when a subordinate's decisions are constrained by policies not of his making or when those decisions are subject to review by the authorized policymaker." Id. at 818. "Simply going along with discretionary decisions made by one's subordinates . . . is not a delegation to them of the authority to make policy."Praprotnik, 485 U.S. at 130. If the Board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur.Id; see also Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988) (clear message from Praprotnik is that incomplete delegation of authority, where right of review is retained, will not result in municipal liability).
Here, Haynes' decision to fire plaintiff was not a policy statement approved by the County Commissioners or a custom or usage of which the County Commissioners were aware, and County liability cannot be premised upon an official custom or policy. As noted, however, the County can be liable for Haynes' conduct under Section 1983 if he acted as a final policymaker in denying plaintiff's constitutional rights. Stated otherwise, the Board may be liable for the alleged violation of plaintiff's constitutional rights if it delegated to Haynes its final policymaking authority with respect to the termination. On the other hand, if Haynes' decision to fire plaintiff was subject to meaningful review by the Board, no delegation occurred and the County is not liable for Haynes' conduct.
Defendant points out that the County grievance process allowed a terminated employee to challenge the termination and that the review process was not meaningless because about a month before Bell was fired, based on the recommendation of the grievance committee, the County Commissioners reinstated a County employee whose department head had terminated his employment. The uncontroverted evidence demonstrates that the County Commission retained the right to review the decisions made by department heads, including Haynes, with regard to termination of individual employees. The Board's policy also provided for a grievance committee to review the decisions of department heads. Accordingly, Haynes' decision to fire Bell was clearly reviewable by others. In addition, Haynes' decision to fire Bell was constrained by general policies contained in the Handbook which, as Haynes understood it, prevented him from firing an employee without cause after the end fo the probationary period. The Court therefore finds as a matter of law that Haynes was not the final policymaker.
Plaintiff also argues that the grievance committee was the final policymaker because the Board of County Commissioners delegated its responsibility for plaintiff's termination to that body. Plaintiff points to testimony that the County Commissioners historically followed the recommendations of the grievance committee — a fact which could suggest that the County Commission had a custom or policy of abdicating its right to review decisions of grievance committee and delegate its final policymaking authority to the grievance committee. Here, while the Commission theoretically retained the right to review the decision of the grievance committee, it rubber-stamped that decision with no question, discussion or inquiry — hardly the kind of "meaningful review" in which a final policymaker would engage.
Even if the County was the final policymaker, as defendant argues, it may be held liable for deliberate indifference to the risk of constitutional violations by subordinates. Deliberate indifference is akin to recklessness — "a conscious acceptance of a known, serious risk." Archuleta v. McShan 897 F.2d 495, 499 (10th Cir. 1990). "Recklessness is generally regarded as satisfying the scienter requirement of section 1983 because it requires proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk." Woodward, 977 F.2d at 1399 (citing Archuleta, 897 F.2d at 499).
On this record, the Court finds as a matter of law that either the Board of Commissioners or the grievance committee was the final policymaker. Because the record does not clearly establish whether the Board had a custom or policy of delegating its final policymaking authority to the grievance committee, the Court reserves for trial the question whether the Board delegated that authority to the grievance committee in this case. The Board, however, is not entitled to summary judgment which declares that it was the final policymaker in this case.
B. First Amendment Analysis
A public employer may not condition employment or its incidents upon an employee's relinquishment of First Amendment Rights. Woodward, 977 F.2d at 1403. A public employee speaking on a matter of public concern is protected from an adverse employment decision if "the interests of the [employee], as a citizen, in commenting upon matters of public concern [outweigh] the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," Picketing v. Bd. of Educ, 391 U.S. 563, 568 (1968), and if the employee proves that the protected speech was a "motivating factor" in the adverse employment decision. Mount Healthy City Sch. Dist. Bd. of Educ. v. Dovle, 429 U.S. 274, 287 (1977); see also Bisbee v. Bey, 39 F.3d 1096, 1100 (10th Cir. 1994). Speech on matters of public concern has been defined generally as speech "relating to any matter of political, social, or other concern to the community."Connick v. Myers, 461 U.S. 138, 146 (1983). Speech disclosing governmental wrongdoing or misconduct is generally of public concern.See, e.g. Walter v. Morton 33 F.3d 1240, 1243 (10th Cir. 1994);Wulf v. City of Wichita, 883 F.2d 842, 857 (10th Cir. 1989). If plaintiff's speech was constitutionally protected, the Court employs theMount Healthy test to determine whether the speech was a motivating factor in the adverse employment decisions or whether the employer would have made the same decisions absent the speech. See Wulf, 883 F.2d at 856-57. In cases alleging retaliatory discharge of a public employee in violation of the First Amendment, the Tenth Circuit applies the following four step-analysis:
First, we determine whether the public employee's speech touches on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146-47 (1983). Second, if the employee spoke as a citizen on a matter of public concern, we must weigh "the interests of the [employee], as a citizen, in commenting upon matters of public concern" against the State's interest "as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568. Third, if the employee's speech interests outweigh the [employer's] efficiency interests, the plaintiff must prove the protected speech was a motivating factor in his or her termination. Mt. Healthy City Sch. Dist. v. Dovle, 429 U.S. 274, 287 (1977). Finally, if the plaintiff makes the required showing, the burden then shifts to the defendant, who must show by a preponderance of the evidence it would have reached the same employment decision in the absence of the protected activity. Id. The first two steps must be resolved by the court; the last two steps are ordinarily questions for the trier of fact. Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th Cir. 1989); Wulf v. City of Wichita, 883 F.2d 842, 856-57 (10th Cir. 1989).Cragg v. City of Osawatomie. Kan, 143 F.3d 1343, 1346 (10th Cir. 1998).
In arguing that it is entitled to summary judgment on plaintiff's First Amendment claim, defendant addresses only the third step of the analysis, asserting that because the Board was the final policymaking authority and it did not know about plaintiff's statements, speech could not have been the motivating factor for his termination. This argument must fail because it proceeds from the faulty premise that as a matter of law the Board was the final policymaker. Moreover, Haynes testified that in the summer of 2002, he discussed with the County Commissioners concerns that the EMS was delivering supplies and possibly funds to the Valley Falls Fire Department. From this testimony, plaintiff argues that a jury could reasonably infer that Haynes told the Commissioners that he was the one who had raised the concerns. The record contains no direct evidence that Haynes attributed the concerns to plaintiff, but Haynes fired plaintiff on August 2, 2002, and his conversations with the County Commissioners occurred some time within the 60 days before that date. Viewed in the light most favorable to plaintiff, the record reflects that over a period of months Bell had continually expressed to Haynes his concerns about Medicare fraud and possible misuse of County property and funds in regard to the Valley Falls fire department. The Court agrees that on this record a jury could reasonably infer that in the days leading up to August 2, 2002, Haynes told the Commissioners Bell's speech on these matters.
Plaintiff also asserts that he criticized the grievance process to the Board of Commissioners by stating that "[d]enying me the right to speak on my own behalf in my own words in my own manner is a direct violation of my right to due process," and that he thus engaged in other protected speech of which of the Commissioners were aware. As defendant points out, however, this statement was aimed at plaintiff's own personal circumstance and not a broader public purpose, and such speech does not involve a matter of public concern. See David v. City County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996). Further, this particular theory is not in the pretrial order. See D. Kan. Rule 16.2(c) ("The pretrial order . . . will control the subsequent course of the action unless modified by the consent of the parties and court, or by an order of the court to prevent manifest injustice").
Plaintiff also suggests that the Commission knew of his speech because in March or April of 2002, he told Commissioner Mathews of his concern about possible Medicare fraud in the EMS. The record however, reflects that plaintiff only told Mathews that his campaign should not try to tie the increase in Medicare receipts to Haynes' tenure as EMS director. Plaintiff's testimony on this matter does not suggest that he and Mathews discussed Medicare fraud.
More importantly, Bell has presented evidence that during the grievance hearing, he discussed all of the concerns which he had previously expressed to Haynes. These included the facts that (1) Haynes and Janey Gordon had not followed established protocol in responding to the "code blue" medical call; (2) Haynes gave County supplies (and even proposed giving County funds) to the Valley Falls Fire Department; (3) Ruff committed Medicare fraud; and (4) Haynes responded to calls in a county vehicle while either drinking or under the influence of alcohol. On October 14, 2002, the grievance committee submitted a one-sentence decision finding that "[a]fter hearing testimony and reviewing the evidence the grievance committee recommends that the Jefferson County Commission should uphold the decision to terminate Terry Bell." The County Commission did not ask any questions of the grievance committee, and a reasonable jury could find that the Board was thus deliberately indifferent to the risk that the recommendation of the grievance committee violated plaintiff's constitutional rights. Furthermore, if the grievance committee is the final policymaker, it cannot claim ignorance of plaintiff's speech. The County is not entitled to summary judgment on plaintiff's First Amendment Claim.
II. Procedural Due Process
Plaintiff claims that defendant violated his Fourteenth Amendment right to procedural due process when it terminated his employment. Defendant asserts that it is entitled to summary judgment because (1) plaintiff did not have a property interest in continued employment and was not entitled to due process; and (2) in any event, the County Commissioners did not violate his procedural due process rights.
Procedural due process must accompany the deprivation of an established property or liberty interest. Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 569 (1972). Property interests are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. Id. at 577;see also Paul v. Davis, 424 U.S. 693, 710 (1976) (liberty and property interests attain constitutional status by of virtue initial recognition and protection by state law).
The threshold issue is whether plaintiff had "a legitimate claim of entitlement" in continued employment, as opposed to a "unilateralexpectation" or "an abstract need or desire" for it.Roth, 408 U.S. at 577, Farthing v. City of Shawnee. Kan, 39 F.3d 1131, 1135 (10th Cir. 1994). A property interest in employment can be created by ordinance or by an implied contract, but the sufficiency of the claim of entitlement must be decided under state law. Bishop v. Wood, 426 U.S. 341, 344 (1976).
Under Kansas law, public employment is presumed at-will. A public employee hired for a definite term has a property interest in continued employment, while an employee hired for an indefinite term is an at-will employee without a property interest. City of Elam v. Williams, 753 F. Supp. 1530, 1536 (D. Kan. 1990); see also Kastner v. Blue Cross Blue Shield. Inc., 21 Kan. App. 2d 16, 22, 894 P.2d 909, 915 (1995) (in absence of contract to the contrary, employment is at-will). Kansas law clearly establishes that the incumbent to a public office enjoys no property or vested interest in public office. Riddle v. City of Ottawa, 12 Kan. App. 2d 714, 716-17, 754 P.2d 465.468-69 (1988) (citing Stoldt v. City of Toronto, 234 Kan. 957, 964, 678 P.2d 153, 160 (1984)). see also Kansas Constitution Article 15 § 2.
Defendant argues that plaintiff was an at-will employee who lacked a property interest in continued employment. See Elam, 753 F. Supp. at 1536. Noting that an implied-in-fact contract of employment is an exception to the at-will doctrine, however, it argues that the uncontroverted facts establish the absence of an implied contract in this case. An implied-in-fact contract of employment arises from facts and circumstances showing mutual intent to contract.Kastner, 21 Kan. App. 2d at 23, 894 P.2d at 915 (citing Allegri v. Providence-St. Margaret Health Ctr. 9 Kan. App. 2d 659, 663, 684 P.2d 1031, 1035 (1984)). The intent of the contracting parties is normally a question of fact for the jury, and existence of an implied contract of employment requires a factual inquiry. Frye v. IBP. Inc. 15 F. Supp.2d 1032, 1044 (1998). Factors to be considered in determining whether the parties had a mutual intent to contract include the understanding and intent of the parties, which are ascertainable from written and oral negotiations, the conduct of the parties, the usages of the business, the situation and objective of the parties giving rise to the relationship, the nature of the employment, and any other circumstances surrounding the employment relationship which would tend to make clear the intention of the parties at the time the employment relationship commenced. Id. at 1044-45 (citations omitted).
The County emphasizes that the County Handbook states (several times) that it is not intended to express or imply a contract of employment. Several sections of the Handbook state that County employees are employees "at will." The Handbook also states that "[a]n employee may be dismissed at any time, for any reason, at the sole and absolute discretion of the County." Defendant asserts that as a matter of law, based on these disclaimers, plaintiff's employment was at-will. Plaintiff first counters that a disclaimer in a personnel manual is not dispositive of the at-will employment issue; that the Handbook provides for a three-step grievance procedure; and that under the Handbook, "involuntary dismissal is reserved for those cases that cannot be resolved by corrective counseling or in those cases where a major violation has occurred which cannot be tolerated." Plaintiff concludes that under these provisions, the County must have some reason for dismissing an employee: an employee cannot be dismissed for no reason at all. See Anglemyer v. Hamilton County Hosp, 58 F.3d 533, 538 n. 2 (10th Cir. 1995) (disclaimer only one factor in determining whether parties intended to form implied contract); Wilkinson v. Shoney's. Inc. 269 Kan. 194, Syl. ¶ 7, 4 P.3d 1149 (2000) (employment manual not determinative of implied contract issue where certain provisions expressly or impliedly contradict disclaimer). Although a written personnel policy alone is not sufficient to establish an implied contract of employment of a term of specific duration, such a policy, coupled with additional evidence, is sufficient. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 815 P.2d 72 (1991) (written personnel policy plus testimony of supervisor that employer's philosophy was to be "fair to employees" and acknowledgment of two clerical errors on plaintiff's leaves of absence sufficient to create fact question on implied contract). Here, Haynes promised plaintiff that he could remain as assistant EMS director as long as he carried out the duties of the position. Further, Haynes himself testified that a regular county employee could be fired only for cause. Based on the summary judgment record, plaintiff has established a genuine issue of material fact whether he had an implied-in-fact contract of employment which was sufficient to create a protected property interest in continued employment.
Plaintiff also asserts that he had a property interest in the grievance procedure set forth in the Handbook. See Carnes v. Parker, 922 F.2d 1506, 1511 (10th Cir. 1991) (procedural protections not sufficient to create property interest in continued employment, but can sustain entitlement to procedures themselves) (Oklahoma law); Allsup v. Mount CarmelMed. Ctr. 22 Kan. App. 2d 613, 618-19, 922 P.2d 1097, 1099 (1996). Defendant does not respond to this claim, other than to state that plaintiff's claim "overlooks the fact that he received a hearing through the grievance process." Defendant's Reply Brief (Doc. #87) filed February 27, 2004 at 12. Defendant's argument itself overlooks the nature of plaintiff's claim: that he did not receive the grievance hearing to which he was entitled under the Handbook.
Defendant argues that as a matter of law, even if plaintiff had a protected property interest in his employment, the grievance hearing provided all process that was due. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner." Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (further quotation omitted). To determine the extent of the procedural protections required, a court must balance three factors: (1) the nature of the individual's interests at stake; (2) the risk of an erroneous decision, and (3) the value that additional procedural safeguards would provide. Id
Here, defendant agrees that if plaintiff had a property interest in his position, he was entitled to notice, representation by an attorney, an unbiased tribunal and the right to cross-examine witnesses. See Miller v. City of Mission, 705 F.2d 368, 372 (10th Cir. 1983). Defendant asserts that because the County grievance policy guaranteed each of these, it did not deprive plaintiff of due process. Citing Abel's pre-hearing comment that plaintiff should just go ahead and file a complaint in state court, however, plaintiff asserts that the tribunal was biased. Plaintiff also complains that he was not allowed to cross-examine witnesses. Defendant replies that Abel's comment and refusal to let plaintiff cross-examine witnesses was not County policy and that it is not liable for the improper procedure by the grievance committee. Plaintiff, however, has produced evidence that before the hearing he complained to County Commissioners about procedural due process issues, including the denial of his right to cross-examine witnesses. The Board cannot insulate itself from the grievance committee's denial of procedural due process by reckless indifference to plaintiff's rights. Defendant is not entitled to summary judgment on plaintiff's procedural due process claim.
III. Liberty Interest
Plaintiff finally claims that defendant violated his liberty interest in his good name, reputation, honor and integrity, and his freedom to take advantage of other employment opportunities. Defendant contends that it is entitled to summary judgment because plaintiff cannot show that the Board of Commissioners made (1) any public statement disparaging plaintiff or harming his standing in the community, or (2) any statement which precluded him from taking advantage of other employment opportunities. Plaintiff responds that the termination letter contained stigmatizing statements and that it was placed in his personnel folder pursuant to county policy.
In Workman v. Jordaa 32 F.3d 475, 481 (10th Cir. 1994), the Tenth Circuit set out a four-part test for whether statements infringe upon a liberty interest in one's good name and reputation as it affects one's property interest in continued employment. Plaintiff must show that (1) the situation implicated his good name, reputation, honor and integrity, (2) the statement was false, (3) the statement occurred in the course of terminating the employee or foreclosed other employment opportunities, and (4) the statement was published.
Defendant asserts that no final policymaker for the County publicly made any stigmatizing statement about plaintiff. Plaintiff responds that placing Haynes' termination letter in his personnel file constitutes publication of a stigmatizing statement that he physically threatened another employee. As a general proposition, personnel files are shielded from disclosure under the Kansas Open Records Act, K.S.A. § 45-221 (a)(4). Under the Handbook, however, County Commissioners and department heads have access to personnel files, and access may be granted as legally required to others — including courts, investigatory agencies and third party payers. In Bailey v. Kirk, 777 F.2d 567 (10th Cir. 1985), the Tenth Circuit stated in dicta as follows:
Courts have held that the presence of false and defamatory information in an employee's personnel file may constitute "publication" if not restricted for internal use. See . . . Doe v. United States Civil Service Commission 483 F. Supp. 539, 570-71 (S.D. N.Y. 1980) (derogatory statements in plaintiff's files were sufficient to demonstrate publication because they were "memoralized in an official . . . report that could be relied upon by the [employer] or another federal agency in the event that [plaintiff] reapplie[d] for a fellowship or [sought] another high level government position.
Although this statement is not controlling, it provides guidance which this Court adopts.
To invoke the procedural due process liberty interest, a discharged employee must allege that defendant imposed a "stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities."Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1235 (10th Cir. 1998). As an alternative to showing preclusion of other employment, however, plaintiff may show that defendant made a stigmatizing statement in the course of his termination. See Workman, 32 F.3d 475 (10th Cir. 1994): Cf. Stidham v. Peace Officer Standards Training, 265 F.3d 1144 (10th Cir. 2001) (plaintiff could not prevail on "foreclosure of employment opportunities" claim because plaintiff not terminated incident to alleged defamation) (citingSiegert v. Gilley, 500 U.S. 226 (1991)). Here, the alleged stigmatizing statement was made and published in the course of plaintiff's termination. Defendant does not argue that plaintiff has failed to set forth facts establishing the other elements of his liberty claim. The Court therefore finds that defendant is not entitled to summary judgment on this claim.
IT IS THEREFORE ORDERED that Defendants Board Of County Commissioners Of Jefferson County. Don Haynes. Travis Oliver And Robert Abel's Motion For Summary Judgment (Doc. #71) filed December 31, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff's Motion For Leave to File A Surreply Memorandum In Opposition To Defendants' Motion For Summary Judgment (Doc. #89) filed March 8, 2004 be and hereby is SUSTAINED.