Opinion
4:19-CV-04109-KES
2022-07-28
Denise WUBBEN, Plaintiffs, v. YANKTON COUNTY, SOUTH DAKOTA; Dan Klimisch, in his individual capacity; Gary Swensen, in his individual capacity, Defendants.
Thomas K. Wilka, Sara E. Schroeder, Hagen, Wilka and Archer, P.C., Sioux Falls, SD, for Plaintiffs. Ryland L. Deinert, Klass Law Firm, LLP, Sioux City, IA, for Defendants.
Thomas K. Wilka, Sara E. Schroeder, Hagen, Wilka and Archer, P.C., Sioux Falls, SD, for Plaintiffs. Ryland L. Deinert, Klass Law Firm, LLP, Sioux City, IA, for Defendants. ORDER ADOPTING IN PART, MODIFYING IN PART, AND REJECTING IN PART THE REPORT & RECOMMENDATION KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE
Plaintiff, Denise Wubben, brought this lawsuit against defendants, Yankton County, Dan Klimisch, and Gary Swensen (collectively, the County) following her termination of employment with Yankton County. See Docket 1. In an amended complaint, Wubben alleges that the County violated her due process and First Amendment rights. Docket 21 at 9-12. Wubben also brings claims for wrongful termination and defamation. Id. at 14-16. Yankton County and Klimisch move for summary judgment on Counts I through V, Docket 31, and Swensen moves for summary judgment on Count VI. Docket 39. Wubben opposes the motions. Dockets 49 & 54. The court referred the motions for summary judgment to a Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). Docket 63. The Magistrate Judge recommends that the court grant summary judgment in favor of Yankton County and Klimisch on Counts I, II, and III and decline to exercise supplemental jurisdiction over the remaining counts. Docket 64 at 46-47. Wubben timely filed objections to the Report and Recommendation. Docket 69. For the following reasons, the court adopts the Report and Recommendation in part, modifies it in part, and rejects it in part. Yankton County and Klimisch's motion for summary judgment is granted on Counts I and V and denied on Counts II, III, and IV. Swensen's motion for summary judgment is granted.
BACKGROUND
The Report and Recommendation contains a full recitation of the facts. Docket 64 at 2-10. Except as modified, infra, the court adopts the facts as stated in the Report and Recommendation and views the facts in the light most favorable to Wubben, the non-moving party.
LEGAL STANDARDS
I. Report and Recommendation
This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. When "written objections are filed, the District Court shall conduct the required de novo review as to those portions of the magistrate's report and recommendation to which objection is made." Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990) (citing 28 U.S.C. § 636(b)(1); Branch v. Martin, 886 F.2d 1043, 1045-46 (8th Cir. 1989)). In conducting a de novo review, this court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
II. Summary Judgment
Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party can meet its burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must inform the court of the basis for its motion and also identify the portions of the record that show there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted).
To avoid summary judgment, "[t]he non-moving party may not 'rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.' " Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary judgment is precluded if there is a genuine dispute of fact that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a summary judgment motion, the court views the facts and the inferences drawn from such facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).
DISCUSSION
I. Objections to the Report and Recommendation
A. Objection 1
First, Wubben objects to the Report and Recommendation's findings that "the [February 14, 2019] interaction between Ms. Wubben and the commissioners was captured on a security camera" and "the surveillance video did not show Commissioner Klimisch getting in Ms. Wubben's face and pointing his finger at her after the . . . meeting in the Planning and Zoning offices." Docket 64 at 3, 7; Docket 69 at 2. Wubben argues that:
[T]he entire interaction between Ms. Wubben and Commissioners Klimisch and Healy was not within range of the security camera at the Planning & Zoning . . . office; much of that interaction took place in the [Planning and Zoning] conference room which was not within the view of the security camera. Ms. Wubben's testimony that Mr. Klimisch pointed his finger in her face and angrily said 'you have crossed the line' may have happened in the conference room. There is a disputed issue of fact about whether or not this [incident between Wubben and Klimisch] happened.Docket 69 at 2 (internal citations omitted). Essentially, Wubben's objection is that the video surveillance submitted to the court shows some, but not all, of her interaction with Klimisch on February 14, 2019, and that Klimisch may have confronted her in the conference room outside the view of a camera. See id.
Deposition testimony from Commissioner Cheri Loest indicates that there were cameras near Wubben's desk and in Pat Garrity's office but not in the Planning and Zoning conference room. See Docket 52-17 at 9. According to Wubben, she spoke with Klimisch and others in the conference room on February 14, 2019, before she returned to her desk. See Docket 52-19 at 12-13. The County does not dispute this assertion. Thus, the first part of the objection is sustained, and the Report and Recommendation is modified to state that "some of the interaction between Ms. Wubben and the commissioners was captured on a security camera." Docket 64 at 3 (additions in italics).
Regarding the second part of the objection, Wubben argues that Klimisch "may have" gotten in her face in the conference room, thus explaining why the interaction does not appear on the surveillance video. See Docket 47 Exhibit 5. But her argument does not change the fact that "the surveillance video did not show Commissioner Klimisch getting in Ms. Wubben's face and pointing his finger at her after the February 14 meeting in the Planning and Zoning offices." Thus, the second part of the first objection is overruled, and that part of the Report and Recommendation will remain as written.
B. Objection 2
The Report and Recommendation states that "many Yankton County citizens believe[ed] they were banned from coming into the Planning and Zoning office and government center" and "Ms. Wubben argues that she did not ban anyone from the office or tell anyone they were banned." Docket 64 at 4. Wubben objects, stating "Ms. Wubben did not argue 'that she did not ban anyone from the [Planning and Zoning] office or tell anyone they were banned.' She testified explicitly that she did not do this. There is a disputed issue of fact about who, if anyone, told these citizens they were banned." Docket 69 at 2 (internal citation omitted) (emphasis added) (quoting Docket 64 at 4).
Although not clearly stated, the court interprets Wubben's objection to be with the word "argues." See id. But in Wubben's brief in opposition to Yankton County and Klimisch's motion for summary judgment, she does just that: she argues that she "did not ban anyone from the office, nor tell anyone they were banned." Docket 54 at 4. Wubben cites to her sworn deposition testimony in support of her argument. Id. (citing Docket 52-19 at 8-9, 16, 18). The video recording of the February 14 Commission meeting indicates that several citizens believed they were banned from the Planning and Zoning office, but it does not clearly establish who banned them. See Docket 47 Exhibit 4 at 3:17:30-3:27:00. Yankton County and Klimisch dispute Wubben's argument and claim that she banned citizens from the county building. Docket 33 ¶ 33. Thus, there is a dispute of fact and the objection is overruled because it is accurate to state that Wubben "argues" she did not ban anyone.
C. Objection 3
Wubben's third objection is best addressed in two parts. First, she objects to the statement that "defendants assert Ms. Wubben was at the [February 19, 2019] meeting as the Acting Planning and Zoning Administrator." Docket 64 at 5 (emphasis added). The Magistrate Judge did not find that Wubben was the Acting Administrator. See id. The statement objected to is simply a characterization of Yankton County and Klimisch's argument. See id. Thus, the first part of the objection is overruled.
Second, Wubben "objects to the finding of fact . . . that her declining to post the revised ordinance [online] 'was not because she did not know how to do so,' and that this was insubordinate." Docket 69 at 4 (quoting Docket 64 at 5). Wubben asserts that she did not post the revised ordinance because she did not know how to do so, she did not know if the revisions were final, and she questioned whether there was a policy that allowed her to post the documents. Id. These reasons for not posting the revised ordinance online are consistent with her deposition testimony, see Docket 45-3 at 13-14, and not contradicted by other facts in the record. Thus, the objection is sustained. The Report and Recommendation is modified to state "This was because she did not know how to do so, she was unsure if the revisions were final, and she claimed there needed to be a policy in place for her to post the ordinances on the website." Docket 64 at 5 (replacing the final sentence on the page).
D. Objection 4
Under Objection 4, Wubben objects to three different factual findings and one legal conclusion related to the February 19, 2019 County Commission meeting. Docket 69 at 4-5. First, Wubben objects to the statement that "[Commissioner] Kettering addressed an item on the agenda regarding complaints from the public claiming they were banned from the [Planning and Zoning] office[.]" Id. at 4 (quoting Docket 64 at 6). Wubben argues that the statement "implies that this item was on the formally prepared agenda; [but] in fact, Commissioner Kettering made a motion to add this item to the agenda at the beginning of the . . . meeting." Id. The video recording of the meeting confirms that the agenda item was added to the agenda at the beginning of the meeting by Commissioner Kettering with the consent of the other commissioners. Docket 47 Exhibit 4 at 2:50-6:25. Thus, the objection is sustained, and the Report and Recommendation is modified to reflect that Commissioner Kettering added an agenda item at the beginning of the February 19, 2019 meeting to discuss allegations that citizens were banned from the Planning and Zoning office.
Second, Wubben "objects to the finding of fact that she 'repeatedly interrupted' Commissioner Healy when he was trying to explain his orders on February 14, 2019." Docket 69 at 5 (quoting Docket 64 at 6). This objection relates to the parties' dispute regarding whether Wubben was "disruptive" and "insubordinate" at the February 19 Commission meeting. Compare Docket 33 ¶ 41 with Docket 51 ¶ 41; see also Docket 64 at 23. Video of the Commission meeting does not clearly establish who interrupted whom while Wubben was at the podium and Commissioner Healy was speaking. Docket 47 Ex. 4 at 03:27:30. Thus, the objection is sustained, and the Report and Recommendation is modified by removing the following sentence: "While Commissioner Healy was attempting to explain himself, Ms. Wubben repeatedly interrupted him." Docket 64 at 6.
Third, Wubben "objects to the finding of fact that [she] started arguing with members of the audience." Docket 69 at 5. The parties dispute the nature of Wubben's interaction with the Commission and members of the public at the February 19, 2019 meeting. See Docket 33 ¶ 47; Docket 51 ¶¶ 36, 41. Video of the meeting does not clearly establish who started an argument and who responded in turn. See Docket 47 Exhibit 4 at 03:28:20. Thus, the objection is sustained, and the Report and Recommendation is modified to remove the statement that Wubben "started to argue with members of the audience." Docket 64 at 6.
Fourth, Wubben also objects to the Report and Recommendation's conclusion that she spoke at the February 19, 2019 meeting as an employee and not as a private citizen. Docket 69 at 4. The Report and Recommendation found that Wubben spoke at the meeting on matters of public concern as a public employee pursuant to her official duties, thus her speech was unprotected against employer retaliation. Docket 64 at 39-40; see also Nagel v. City of Jamestown, 952 F.3d 923, 929 (8th Cir. 2020); Lyons v. Vaught, 875 F.3d 1168, 1173 (8th Cir. 2017). Based on that finding, the Magistrate Judge recommends granting Yankton County and Klimisch's motion for summary judgment on Count III, Retaliation for Exercise of First Amendment Rights. Docket 64 at 43.
Wubben argues that there is a dispute of fact regarding whether she spoke as a private citizen when Commissioner Klimisch asked her to speak at the end of the meeting. Docket 69 at 4.
"[T]wo inquiries . . . determin[e] whether public employee speech is protected against employer retaliation:"
The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the
answer is yes then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.Nagel, 952 F.3d at 929 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). "The critical question" under the first inquiry "is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Id. (quoting Lane v. Franks, 573 U.S. 228, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014)). Whether a public employee speaks as a private citizen on a matter of public concern is a question of law. McGee v. Pub. Water Supply, 471 F.3d 918, 920 (8th Cir. 2006) (citing Connick v. Myers, 461 U.S. 138, 148 n.7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). But "underlying factual disputes concerning whether the plaintiff's speech is protected . . . should be submitted to the jury through special interrogatories or special verdict forms." Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993) (citations omitted). Factual questions for the jury include "the nature and substance of the plaintiff's speech activity and whether the speech created disharmony in the work place." Id. (citing Bennis v. Gable, 823 F.2d 723, 729 (3d Cr. 1987); McGee v. S. Pemiscot Sch. Dist. R-V, 712 F.2d 339, 342 (8th Cir. 1983)). "The trial court should then combine the jury's factual findings with its legal conclusions in determining whether the plaintiff's speech is protected." Id. (citation omitted).
Here, Wubben initially attended the February 19 meeting as an employee of the Planning and Zoning Office to address drainage issues that were on the posted agenda. Docket 51 ¶ 29; see also Docket 52-11 at 2 (identifying "Planning and Zoning" as the "Presenter" for agenda items No. 08 and 12); Docket 49 Exhibit 4 at 34:30-35:50; 1:23:20-1:24:00 (showing Wubben address the Commission regarding agenda items No. 08 and 12). Then, at the beginning of the meeting, the Commission added agenda items for discussion, including the issue of whether citizens had been "banned from entering the County Courthouse and public facilities." Docket 49 Exhibit 4 3:00-5:30. Unlike items on the posted agenda that was published before the meeting, the Commission did not designate a "presenter" for the added discussion item. Id. When the Commission took up additional agenda item No. 15A, "banned personnel," the Commission heard nearly 10 minutes of commissioner discussion and public comment before the commissioners started moving on to the next agenda item. Id. 3:17:30-3:27:00. It was only once another citizen interrupted the Commission and suggested that they hear from Wubben that she walked to the podium and explained what she knew about the alleged "ban" of citizens from county offices. Id. 03:27:00.
Viewing the facts in the light most favorable to Wubben, there is a genuine dispute regarding whether Wubben spoke at all or part of the February 19 Commission meeting as a private citizen. Although this is typically a question of law, there are underlying factual disputes regarding the "nature and substance" of Wubben's "speech activity" that a jury should decide. See Shands, 993 F.2d at 1342. This dispute is material to the issue of whether Wubben's speech was protected by the First Amendment—the first of three requirements for a colorable First Amendment retaliation claim. See Lyons v. Vaught, 781 F.3d 958, 961 (8th Cir. 2015). Thus, Wubben's objection is sustained, the Report and Recommendation is modified, and the court denies Yankton County and Klimisch's motion for summary judgment on Count III of the Amended Complaint.
In their opening brief, after addressing the merits of Count III, Yankton County and Klimisch state, "Wubben also failed to exhaust her administrative remedies in regard to [Count III]." Docket 32 at 16. But they failed to elaborate and did not identify any law or facts to describe and support their argument—namely, what remedy they believe Wubben should have pursued under this claim and whether it applies here. See id. Their reply brief is also devoid of any support for their exhaustion argument regarding Count III. See Docket 59. Thus, the court considers the issue waived. See Clay v. Credit Bureau Enters., Inc., 882 F. Supp. 2d 1083, 1111 (N.D. Iowa 2012) ("Failure to brief an issue in more than a perfunctory manner allows a court to consider the issue waived." (cleaned up)). Relatedly, the Magistrate Judge did not address exhaustion of administrative remedies regarding Count III, see Docket 64 at 36-43, and Yankton County and Klimisch did not file any objections to the Report and Recommendation or respond to Wubben's objections. See Fed. R. Civ. P. 72(b)(2)-(3). For both of these reasons, the court declines to address their exhaustion argument regarding Count III.
E. Objection 5
Wubben "objects to the finding of fact that [she] was 'continuing to be disruptive' at the February 19, 2019 County Commission meeting." Docket 69 at 5. She argues that there is a dispute of fact regarding whether she was disruptive. Id. Like the second part of Objection 4, supra section I.D, this relates to the parties' dispute regarding whether Wubben was "insubordinate." See Docket 64 at 23; see also Docket 51 ¶ 41. Viewing the Commission meeting in the light most favorable to Wubben, it is unclear whether her comments or those of others in the audience were "disruptive," thus the court declines to make that conclusion. The objection is sustained, and the Report and Recommendation is modified by removing the following: "After continuing to be disruptive, Ms. Wubben sat down again." Docket 64 at 7.
F. Objection 6
Wubben objects to the Report and Recommendation's statement that "Wubben asserts that at no point during [a February 20, 2019] meeting was she advised that she was being disciplined, formally or informally, or written[.]" Docket 69 at 5. She argues that, as written, the Report and Recommendation implies that discipline was discussed at the meeting, contrary to her assertion. See id. Wubben's argument is corroborated by the deposition testimony of commissioners Loest and Kettering, both of whom stated that no form of discipline was discussed at the February 20 meeting. See Docket 45-11 at 3; Docket 52-17 at 6-7. Nothing in the record contradicts their testimony. Thus, the objection is sustained, and the Report and Recommendation is modified to state "At no point during this meeting was she advised that she was being disciplined, formally or informally, or written up." Docket 64 at 8.
G. Objection 7
Wubben objects to the "implication . . . that [Wubben]'s statement is false or unfounded" in the following sentence: "Ms. Wubben asserts she first learned of her termination when she read about it in the local public newspaper," the Yankton Press and Dakotan. Docket 69 at 6 (citing Docket 64 at 8). Nothing in the record contradicts Wubben's assertion that she first learned of her termination in the newspaper. See Docket 52-5; see also Docket 52-17 at 7 (noting that the newspaper article was published on February 22, 2019, the same date as the Commission's first vote to terminate Wubben's employment). Thus, the objection is sustained, and the Report and Recommendation is modified to state that "Ms. Wubben first learned of her termination when she read about it in the local public newspaper, the Yankton Press and Dakotan." Docket 64 at 8.
H. Objection 8
Wubben objects to the statement that "Ms. Wubben asserts she was not given any notice of the proposed disciplinary action, nor was she given an opportunity to present her side of the issue." Docket 69 at 6 (citing Docket 64 at 9). Nothing in the record contradicts Wubben's assertion. Thus, the objection is sustained, and the Report and Recommendation is modified to state "Ms. Wubben was not given any notice of the proposed disciplinary action, nor was she given an opportunity to present her side of the story." Docket 64 at 9.
I. Objection 9
The Report and Recommendation states that "Ms. Wubben filed her initial complaint on June 27, 2019, wherein she alleged five counts against defendants Yankton County, Commissioner Klimisch, and Commissioner Swensen[.]" Docket 64 at 9. Wubben objects, noting that the initial complaint named only Yankton County and Klimisch as defendants. Docket 69 at 6; see also Docket 1 at 1. Thus, the objection is sustained, and the Report and Recommendation at page 9 is modified to identify only Yankton County and Klimisch as the defendants in the initial complaint.
J. Objection 10
The Report and Recommendation states:
In her amended complaint, Ms. Wubben alleges counts I-V against Yankton County, Commissioner Klimisch, and Commissioner Swensen collectively, and count VI against Commissioner Swensen alone. However, after review of the parties' briefs, it appears that Ms. Wubben has not argued Commissioner Swensen violated any of the rights asserted in counts I-V. Therefore, this court considers counts I-V against Commissioner Swensen to be waived.Docket 64 at 11-12 (emphasis added) (internal citation omitted). Wubben agrees with the Magistrate Judge that Counts I through V of the Amended Complaint are brought against Yankton County, Klimisch, and Swensen collectively, while Count VI is brought only against Swensen. See Docket 69 at 6. But Wubben objects to the statement that she has "waived" her claims against Swensen on Counts I through V. Id.
Under the court's Third Amended Scheduling Order, all motions other than motions in limine were due by August 31, 2021. Docket 29. On that date, Yankton County and Klimisch moved for summary judgment on Counts I through V and Swensen separately moved for summary judgement only regarding Count VI. Docket 31; Docket 39. Because Swensen chose not to move for summary judgment on Counts I through V, Wubben, in her response briefs, had no reason to specifically argue that Swensen violated her rights as alleged in those counts. The fact that Swensen did not move for summary judgment on Counts I through V does not mean that Wubben "waived" those claims. To the contrary, Counts I through V against Swensen survive because Swensen did not move for summary judgment on those claims and the dispositive motions deadline has passed. Wubben's objection is sustained, and the Report and Recommendation is modified to remove the conclusion that Wubben has waived Counts I through V against Swensen.
K. Objection 11
Wubben objects to the Report and Recommendation's conclusion that, as a matter of law, Wubben was an at-will employee of Yankton County. See Docket 69 at 6-12; Docket 64 at 20; see also Zavadil v. Alcoa Extrusions, Inc., 363 F. Supp. 2d 1187, 1191 (D.S.D. 2005) ("Whether an employee is an at-will employee is a question of law."). This objection relates to the allegations in Count I, Deprivation of Property Rights Without Due Process of Law. See Docket 21 ¶¶ 39-47. The Magistrate Judge found that Wubben was an at-will employee and thus does not have a constitutionally protected property interest. The Magistrate Judge recommends granting Yankton County and Klimisch's motion for summary judgment on Count I. Docket 64 at 26.
The Report and Recommendation identifies the proper standard to determine whether a public employee has a constitutionally protected property interest:
Whether the employee had a legitimate claim of entitlement—and thus, a constitutionally protected property interest—depends on state law and the terms of [her] employment." Mulvenon v. Greenwood, 643 F.3d 658 [653], 657 (8th Cir. 2011) (citing Koziesek [Kozisek] v. Cnty. of Seward, 539 F.3d 930, 937 (8th Cir. 2008)). A public employee has a property interest when there are "contractual or statutory limitations on the employer's ability to terminate an employee," such as a contractual right to be terminated only for cause. Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994) (citing Bishop v. Wood, 426 U.S. 341, 344 [, 96 S.Ct. 2074, 48 L.Ed.2d 684] (1976)).Docket 64 at 13-14. Under SDCL § 60-4-4, "[a]n employment having no specific term may be terminated at the will of either party on notice to the other, unless otherwise provided by statute." There are three exceptions to termination at-will under South Dakota law:
(1) terminations that contravene public policy, (2) employees with express 'for cause only' agreements or implied 'for cause only' cases where an employee handbook contains a detailed list of exclusive grounds for discharge and a mandatory specific procedure that the employer agrees to follow, or (3) an employee who accepted employment after being promised future promotion to a certain position.Zavadil, 363 F. Supp. 2d at 1191 (emphasis added) (citing Meyers v. Am. States Ins. Co., 926 F. Supp. 904, 910 (D.S.D. 1996); Bass v. Happy Rest, Inc., 507 N.W.2d 317, 321 (S.D. 1993)). Wubben argues that her employment with Yankton County falls under the second exception, an implied "for cause only" employment agreement. See Docket 69 at 6-11; Docket 64 at 19-20. In addition to a list of exclusive grounds for termination and a mandatory specific procedure, an implied for-cause-only agreement "must contain language indicating a clear intention on the employer's part to surrender its statutory power to terminate its employees at will." Butterfield v. Citibank of S.D., N.A., 437 N.W.2d 857, 859 (S.D. 1989) (internal citation omitted). An implied contract of employment with termination for-cause-only does not exist if the parties have an express contract for at-will employment. Aberle v. City of Aberdeen, 718 N.W.2d 615, 622 (S.D. 2006).
Wubben's objection relies heavily on section 901 of the Yankton County Personnel Handbook. Docket 69 at 7-11; see also Docket 45-8 at 4. Section 901 states, in relevant part:
B. When a problem occurs, the normal process will be to encourage the employee to change the unacceptable behavior or performance problem. The normal process includes the following steps:
1. Verbal warning and counseling with the department head or supervisor;
2. Written warning with a copy in personnel file;
3. Up to thirty (30) day suspension; or
4. Termination.Docket 45-8 at 4-6. Missing from Wubben's objections, but discussed in the Report and Recommendation, are other relevant portions of the Handbook:
Item 3 and 4 may be applied on the first offense if the performance or behavioral problem is sufficiently serious, upon recommendation of the department head and approved by the Yankton County Commission.
. . .
H. The following illustration is a representation of progressive discipline. It does not supersede the County's written policies, nor does it infer that the same steps will be taken in all cases. Its purpose is to show how employees and supervisors could interact and the outcomes of various misconduct situations.
I. The following illustration is a representation of the actions associated with suspension or termination. It does not supersede the County's written policies, nor does it infer that the same steps will be taken in all cases. Its purpose is to show how the process would typically work.
101 Nature of EmploymentDocket 45-8 at 2-3.
A. Employment with Yankton County is voluntarily entered into, and the employee is free to resign at will at any time. In such an event, the employee is expected to give the County two weeks notice of the intended action.
B. Policies set forth in this handbook are not intended to create a contract, nor are they to be construed to constitute contractual obligations of any kind of a contract of employment between the County and any of its employees. The provisions of the handbook have been developed at the discretion of management and, except for its policy of employment-at-will, may be amended or canceled at any time, at the County's sole discretion.
. . .
807 Employment At-Will
At all times employment with Yankton county is considered to be "at will" and the employer/employee relationship may be terminated at any time for any lawful reason by either party.
First, Wubben argues that "the Report [and Recommendation] elevates generic at-will disclaimers over the more specific and definite statement in . . . Section 901." Docket 69 at 7. But when an agreement contains multiple references to at-will employment, then those provisions will necessarily become the focal point of the court's analysis when determining whether there is "language indicating a clear intention on the employer's part to surrender its statutory power to terminate its employees at will." Butterfield, 437 N.W.2d at 859. Here, the language of sections 101, Nature of Employment, and 807, Employment At-Will, show that Yankton County seeks to retain, not surrender, its statutory power to terminate employees at-will. The express at-will employment provision means that an implied for-cause-only termination agreement cannot exist. Aberle, 718 N.W.2d at 622.
Even if Yankton County relied on South Dakota's at-will statute instead of expressly stating an at-will policy in the Handbook, the disciplinary process in section 901 does not amount to an implied for-cause-only termination agreement. Although 901(B) and (I) describe the "normal" and "typical" process, it emphasizes that the same steps may not be taken in all cases, and it clearly states that the disciplinary process does not supersede other written policies, including the explicit at-will employment statement in section 807. Section 901(H) discusses "how employees and supervisors could interact." Docket 45-8 at 5. Nowhere does it state or even imply that the disciplinary process is mandatory, and it does not identify exclusive grounds for termination. See Zavadil, 363 F. Supp. 2d at 1191. At most, the disciplinary process in section 901 is more like a guide, not a mandatory procedure. See Butterfield, 437 N.W.2d at 860. The court finds that Wubben did not have an implied for-cause-only termination agreement and that Wubben was an at-will employee of Yankton County.
Second, she argues that the process in Section 901 is a policy or regulation that "has the force of law" that "must" be followed. Docket 69 at 7 (citing Schaub v. Chamberlain Bd. Of Educ., 339 N.W.2d 307, 310 (S.D. 1983)). In support of her argument, Wubben compares the Handbook's disciplinary process to school board policies, state administrative rules, and statutes. Docket 69 at 7. But her argument wrongly assumes that the Handbook's disciplinary process is mandatory. See supra. And Wubben provides no authority to support the proposition that an employer handbook with a non-mandatory disciplinary procedure has the same "force of law" as a school board policy, administrative rule, or statute. See Docket 69 at 7. Yankton County has included express language in the Handbook to retain its statutory power to terminate its employees at will. This court has found that, as a matter of law, Wubben was an at-will employee. Thus, the non-mandatory disciplinary process in the Handbook is not a policy that has the force of law.
Third, Wubben argues that "[t]he phrase 'if the performance or behavioral problem is sufficiently serious' requires the employee to engage in some type of misconduct" creating a "for cause only" employment agreement. Docket 69 at 8. Again, this argument overlooks express at-will provisions elsewhere in the Handbook and wrongly assumes that the disciplinary process is mandatory. But because, as a matter of law, she was an at-will employee and not entitled to a mandatory disciplinary process, any factual dispute regarding whether her conduct was "sufficiently serious" is irrelevant.
Fourth, Wubben objects to the Magistrate Judge's finding that her "behavior at the February 19 Commission meeting was deemed to be sufficiently serious by the commissioners to warrant skipping steps 1-3, thereby making the termination acceptable pursuant to section 901(B)." Docket 64 at 23; see also id. at 24. It is true that the parties dispute the seriousness of Wubben's conduct leading to her termination. See, e.g., Docket 69 at 11; Docket 59 at 1-3. But this dispute of fact is immaterial to Wubben's claim for deprivation of property rights without due process, because as an at-will employee she did not have a constitutionally protected property interest. See Warnock v. City of Canton, No. 11-cv-4023-KES, 2012 WL 2050734, at *5 (D.S.D. June 7, 2012). Thus, the court does not need to reach the issue of whether her conduct was "sufficiently serious" under section 901(B) of the Handbook's non-mandatory disciplinary process. The Report and Recommendation is modified to remove such a finding.
In conclusion, Wubben was an at-will employee of Yankton County. The Handbook did not create an implied for-cause-only termination agreement. Because Wubben was an at-will employee, she did not have a constitutionally protected property interest in continued employment. Thus, the court grants Yankton County and Klimisch's motion for summary judgment on Count I.
L. Objection 12
Wubben objects to the Magistrate Judge's conclusion that she "failed to show that the defendant's statements were false and failed to deny Commissioner Klimisch's statement" in the newspaper, "[thus] she has failed to establish deprivation of a liberty interest." Docket 64 at 36. Based on that conclusion, the Magistrate Judge recommends granting Yankton County and Klimisch's motion for summary judgment on Count II, Denial of Liberty Interest Without Due Process of Law. Id.
Wubben does not dispute the standard applied by the Magistrate Judge:
An employee's liberty interest is implicated when the government publicly stigmatizes an employee in conjunction with that employee's termination . . . . At-will, public employees generally have no liberty interest in continued employment. Speer v. City of Wynne, 276 F.3d 980, 984 (8th Cir. 2002) (citing Bishop, 426 U.S. at 348 [, 96 S.Ct. 2074] ). An exception exists, however, in cases where an employee is terminated in connection with publicized allegations of illegal or improper conduct. Id. Under those circumstances, "the Constitution's procedural due process protections require the employer to provide the employee with an opportunity to dispute the defamatory allegations in what is commonly referred to as a name-clearing hearing." Id. (citing Codd v. Velger, 429 U.S. 624, 627-28 [, 97 S.Ct. 882, 51 L.Ed.2d 92] (1977)); Singleton [v. Cecil], 176 F.3d 419, 424 (8th Cir. 1999) (en banc).Docket 64 at 29-30. "The requisite stigma has generally been found when an employer accuses an employee of dishonesty, immorality, criminality, racism, and the like." Winegar, 20 F.3d at 899.
To establish the deprivation of a liberty interest, Wubben must show that "(1) [s]he was stigmatized by the statements; (2) those statements were made public by the administrators; and (3) [s]he denied the stigmatizing statements." Rush v. Perryman, 579 F.3d 908, 913 (8th Cir. 2009) (citing Coleman v. Reed, 147 F.3d 751, 755 (8th Cir. 1998)). Additionally, the government employer must 'create[ ] and disseminate[ ] a false and defamatory impression about the at-will employee in connection with the discharge." Mogard v. City of Milbank, 932 F.3d 1184, 1190-91 (8th Cir. 2019) (quoting Speer, 276 F.3d at 984)
The statements that form the basis of Wubben's allegations in Count II are found in a February 22, 2019 article in the Yankton Press and Dakotan. Docket 64 at 31; Docket 69 at 12. First, Commissioner Kettering stated:
The deputy zoning administrator had claimed that [commissioner] Dan [Klimisch] had stuck his finger in her face and said, "You have crossed the line." . . . We obtained a copy of the video taken in the office the day of the action. It showed absolutely no evidence of any threatening or aggressive gesture by Dan.Docket 64 at 31. The Report and Recommendation found that Commissioner Kettering's statement regarding the February 14 incident in the Planning and Zoning office was not false. Docket 64 at 32. Wubben objects, arguing that there is a dispute of fact regarding whether Kettering's statement was false and defamatory and thus stigmatizing. Docket 69 at 13; see Mogard, 932 F.3d at 1190-91.
Here, Commissioner Kettering's statement is technically correct that the video from the Planning and Zoning office cameras does not show Klimisch putting his finger in Wubben's face. But whether Klimisch told Wubben "You have crossed the line" cannot be determined from the video, because it does not have any audio. See Docket 47 Exhibit 5. And Commissioner Kettering's statement disregards the fact that the alleged interaction between Wubben and Klimisch could have occurred in the conference room, outside the view of a camera. Viewed in the light most favorable to Wubben, his statement implies that because the alleged incident between Klimisch and Wubben did not occur within view of the two cameras in the office, it did not occur at all. Because there is a dispute of fact regarding whether and where the February 14 incident between Klimisch and Wubben occurred, see supra section II.A, there is also a dispute of fact regarding whether Kettering's statement is false or defamatory. See Smith v. Des Moines Pub. Sch., 259 F.3d 942, 947-48 (8th Cir. 2001). Thus, a jury should determine both the underlying factual dispute and whether Kettering's statement created a false or defamatory impression of Wubben. See Mogard, 932 F.3d at 1190-91.
The second part of the article that the Report and Recommendation focuses on is Kettering's statement regarding whether Wubben "banned" anyone from the county government building:
The second event investigated covered a claim that several Planning and Zoning commissioners and other citizens were banned from the government office . . . . Our findings were that the deputy planning and zoning administrator had not been given any authority, nor was it suggested, that these people be not allowed to enter the government building.Docket 52-5 at 4; Docket 64 at 31, 33-34; Docket 69 at 12-13. The Magistrate Judge found that the statement was not false and that Wubben had not denied it. Docket 64 at 34.
Here, the statement in the article regarding whether citizens were banned implies that Wubben banned them, or at least that she overstepped her authority by restricting access. There is a dispute of fact regarding whether anyone was banned, who banned them, and whether any commissioners told Wubben to ban, or in any way restrict, citizen access to the county building. Docket 33 ¶ 33; Docket 51 ¶ 33; see Docket 47 Exhibit 4 at 3:17:30-3:27:00. Thus, whether the statement implying Wubben banned citizens from the county building is false should be determined by a jury. Smith, 259 F.3d at 947-48. Regarding Wubben's denial of the banning allegation, the video of the commission meeting, viewed in the light most favorable to Wubben, shows that she sought to deny the accusations by clarifying how she interacted with citizens in the Planning and Zoning office. Docket 47 Exhibit 4 3:27:00. Yankton County and Klimisch construe the interaction in their favor and argue that Wubben did not affirmatively and explicitly deny the allegation. Docket 33 ¶ 43. Thus, a dispute of fact exists regarding whether she denied the banning allegation.
In the third statement at issue in the article, Klimisch states:
We had an employee that, on their own accord, tried to create controversy in the county . . . . That's unfortunate. We want all of our employees to feel that they're making a difference and be proud of the community that they live in. Unfortunately that doesn't always happen.Docket 52-5 at 4; Docket 64 at 31. The Magistrate Judge found that Wubben did not deny the statement that she "tried to create controversy in the county." Docket 64 at 35. Like the statement regarding whether Wubben banned anyone from the county building, the video of the commission meeting shows that she sought to deny the accusations that she banned anyone or otherwise created controversy by clarifying how she interacted with citizens in the Planning and Zoning office. Docket 47 Exhibit 4 3:27:00. Yankton County and Klimisch argue that Wubben did not deny the allegation. Docket 33 ¶ 43. Thus, a dispute of fact exists regarding whether Wubben denied Klimisch's statement that she sought to "create[ ] controversy."
Disputes of fact exist regarding whether the statements in the Yankton Press and Dakotan article were false and whether Wubben denied them. These disputes are material to Wubben's claim in Count II, Denial of Liberty Interest Without Due Process of Law. See Docket 21 at 11. Thus, Wubben's objection is sustained, the Report and Recommendation is rejected on Count II, and Yankton County and Klimisch's motion for summary judgment on Count II is denied.
In their opening brief, after addressing the merits of Count II, Yankton County and Klimisch state, "Wubben also failed to exhaust her administrative remedies in regard to Count II." Docket 32 at 14. But they failed to elaborate and did not identify law or facts to describe and support their argument—namely, what remedy they believe Wubben should have pursued under this claim and whether it applies here. See id. In fact, they suggest that Wubben had no administrative remedy because she was an at-will employee. See id. Their reply brief was also devoid of any support for their exhaustion argument regarding Count II. See Docket 59. Thus, the court considers the issue waived. See Clay, 882 F. Supp. 2d at 1111 ("Failure to brief an issue in more than a perfunctory manner allows a court to consider the issue waived." (cleaned up)). Relatedly, the Magistrate Judge did not address exhaustion of administrative remedies regarding Count II, see Docket 64 at 29-36, and Yankton County and Klimisch did not file any objections to the Report and Recommendation or respond to Wubben's objections. For both of these reasons, the court declines to address their exhaustion argument regarding Count II.
M. Objection 13
Wubben objects to the legal conclusion that she spoke as a public employee on matters of public concern at the February 14 commission meeting. This objection simply restates what Wubben more thoroughly addressed in Objection 4, supra section I.D. There, the court found that there are underlying factual disputes regarding whether Wubben spoke at the February 14 meeting as a public employee on matters of public concern. Wubben's restatement of the issue in Objection 13 does not change the court's conclusion that Yankton County and Klimisch are not entitled to summary judgment on Count III. II. Counts IV, V, & VI
The Magistrate Judge recommends that the court refrain from exercising supplemental jurisdiction over Counts IV, V, and VI based on the recommendation that the court grant summary judgment in favor of Yankton County and Klimisch on the federal claims in Counts I, II, and III. Docket 64 at 44-45. But because the court now denies Yankton County and Klimisch's motion for summary judgment on Counts II and III, the court proceeds to analyze Counts IV, V, and VI in order to fully address Yankton County and Klimisch's motion for summary judgment. See 28 U.S.C. § 1367.
A. Count IV: Wrongful Termination Under State Law
In Count IV, Wubben claims that she was wrongfully terminated from her employment with Yankton County and that her wrongful termination was the proximate cause of damage to her in the form of lost past and future income, loss of benefits, and anxiety and emotional distress. Docket 21 ¶ 67. Wubben makes three allegations in support of her claim, each of which she states are "independently sufficient reasons" to conclude that she was wrongfully terminated. First, she alleges that the County Commission, as the body rendering an employment decision, was not impartial. Id. ¶¶ 63, 65. Second, Wubben states that the County wrongfully terminated her employment in executive session before initiating the "grievance process." Id. ¶¶ 64-65. Third, Wubben claims that the County retaliated against her for exercising her First Amendment right to free speech. Id. ¶¶ 65-66.
Wrongful termination of an at-will employee is a tort claim under South Dakota law. Peterson v. Glory House of Sioux Falls, 443 N.W.2d 653, 654 (S.D. 1989). The "public policy exception to the at-will [employment] doctrine . . . provides that an employer becomes subject to tort liability if its discharge of an employee contravenes some well established public policy." Johnson v. Kreiser's, Inc., 433 N.W.2d 225, 227 (S.D. 1988) (citing Phipps v. Clark Oil & Refining Corp., 396 N.W.2d 588, 592 (Minn. Ct. App. 1986)). (citation omitted). "[W]here [an] employer's motivation for the discharge contravenes some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by the discharge." Id. (quoting Harless v. First Nat. Bank, 162 W.Va. 116, 246 S.E.2d 270, 275 (1978)).
1. Whether the County Commission was Impartial
Under Wubben's first rationale for her wrongful termination claim, she asserts that the members of the County Commission were not impartial in their decision to terminate her and that the Commission's action was arbitrary, capricious, and an abuse of discretion. Docket 21 ¶ 63. In support, she cites to Riter v. Woonsocket Sch. Dist. No. 55-4, 504 N.W.2d 572 (S.D. 1993), for its discussion of a school board's partiality when making a termination of employment decision. In Riter, a tenured teacher appealed the school board's decision not to renew the part of his contract that included his position as boys head basketball coach. Id. at 573. His appeal to the circuit court, and then to the South Dakota Supreme Court, was specifically authorized by SDCL § 13-46-1, appeals of school board decisions. Id. at 574. The Supreme Court applied a two-prong test to determine the legality of the school board's decision: (1) was the school board's decision procedurally legal and (2) was the school board's decision arbitrary, capricious, or an abuse of discretion. Id. "A violation of either prong is an independent ground upon which to conclude that the school board's actions were illegal." Id. Under the second prong:
[T]he standard to be applied is whether the record establishes either actual bias on the part of the Board or the existence of circumstances that lead to the conclusion that an unacceptable risk of actual bias or prejudgment inhered in the Board's procedure. Involvement by the Board, however, prior to the board's decision not to renew a contract, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power. The Board and its members are afforded a strong presumption of good faith. This deference, however, must be balanced with a teacher's right to security in employment and to prevent dismissal of a teacher without cause.Id. (cleaned up).
Here, Wubben asserts in the Amended Complaint that, under the second prong, the County Commission's decision to terminate her was illegal because their decision was arbitrary, capricious, or an abuse of discretion. Docket 21 ¶ 63. But in response to the motion for summary judgment, Wubben merely rests on the allegations in the Amended Complaint and does not demonstrate any dispute of fact regarding her assertion. See Docket 54 at 23-24; see also Mosley, 415 F.3d at 910. Yankton County and Klimisch rebut Wubben's allegation in the Amended Complaint by arguing that the County Commissioners, like school board members, are presumed to have acted in good faith. Docket 32 at 16-17; Riter, 504 N.W.2d at 574.
Both Wubben's and Yankton County and Klimisch's reliance on Riter is misplaced. First, Riter and the South Dakota cases cited therein deal with termination of public school employees under a statutorily guaranteed appeal process specific to boards of education. See Riter, 504 N.W.2d at 574; SDCL § 13-46-1; Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 25 (S.D. 1989); Strain v. Rapid City Sch. Bd., 447 N.W.2d 332, 335-37 (S.D. 1989); Moran v. Rapid City Area Sch. Dist. No. 51-4, 281 N.W.2d 595, 598 (S.D. 1979); Schneider v. McLaughlin Ind. Sch. Dist. No. 21, 90 S.D. 356, 361, 241 N.W.2d 574 (1976). Second and relatedly, Riter specifically addresses a "teacher's right to security in employment" and the right to termination for cause only. 504 N.W.2d at 574 (emphasis added). Neither Wubben nor Yankton County and Klimisch provide any authority that would necessarily apply the appeal process in SDCL § 13-46-1 and the two-prong standard in Riter to a county commission and its at-will employees. See Docket 54 at 23-24; Docket 32 at 16-17. Because Wubben was an at-will employee as a matter of law, supra section I.K, the court finds that Wubben is not entitled to a post hoc determination of the County Commission's partiality. Thus, whether the Commissioners' decision to terminate Wubben was arbitrary, capricious, or an abuse of discretion is irrelevant and cannot be a basis for her wrongful termination claim.
2. Whether the County was required to initiate the "grievance process"
Wubben claims that the County wrongfully terminated her employment before initiating the "grievance process," where the County Commission should have been the final step in a multi-step process. See Docket 21 ¶¶ 64-65. Yankton County and Klimisch construe Wubben's claim as a challenge to the Commission's voting process and compliance with open meetings laws. See Docket 32 at 16. But the Amended Complaint and Wubben's response brief indicate that the "grievance process" she refers to is the same as the disciplinary procedure in the Handbook. See Docket 21 ¶¶ 64-65. Because Wubben was an at-will employee, whether the County Commission followed an optional disciplinary process is irrelevant. Thus, the County's failure to follow such an optional process cannot be a basis for her wrongful termination claim.
3. Whether the County retaliated against Wubben's exercise of free speech
Wubben claims that the County retaliated against her for exercising her right to free speech in violation of SDCL § 60-11-17.1 and S.D. Const., art. VI, §§ 4-5. Id. ¶¶ 65-66. In response, Yankton County and Klimisch argue that Wubben's speech was unprotected because she spoke at the February 19 meeting as a public employee pursuant to her official duties. See Docket 32 at 14-15, 17 (relying on their analysis in support of summary judgment on Count III).
a. Alleged Retaliation Under SDCL § 60-11-17.1
Wubben alleges that she was "terminated in violation of SDCL [§] 60-11-17.1 which prohibits the discharge of an employee, or any reprisal against her, for speaking about matters of public concern as a concerned citizen." Docket 21 ¶ 66. Yankton County and Klimisch argue that § 60-11-17.1 is inapplicable because it only applies to retaliation for wage disputes. Docket 32 at 17. SDCL § 60-11-17.1 provides:
No employer may discharge, discriminate, or engage in or threaten to engage in any reprisal, economic or otherwise, against any employee because the employee has made any complaint to the employer, or to the Department of Labor
and Regulation, that the employee has not been paid wages in accordance with this chapter or because the employee has made any complaint or is about to institute any proceedings, or because the employee has testified or is about to testify in any such proceedings.Notably, nothing in the statute states or implicitly relates to "speaking about matters of public concern as a concerned citizen." Based on a plain reading of the statute, the statute does not act as a general prohibition against all forms of employer retaliation. Rather, the statute speaks to employer retaliation in the context of complaints or proceedings regarding an employee's wages. Wubben does not cite any authority for the proposition that a violation of § 60-11-17.1 provides a cause of action for employer retaliation against any and all types of employee speech. The cause of action Wubben suggests is more akin to the public policy exception for whistleblowing, though that narrowly applies to reporting of unlawful or criminal conduct, not general complaints or adversarial proceedings against an employer. See Dahl v. Combined Ins. Co., 621 N.W.2d 163, 167 (S.D. 2001).
Contrary to Wubben's argument, courts have discussed § 60-17-11.1 only in the context of retaliation for wage complaints or proceedings. See Huy Luong v. China Garden, No. 10-cv-5069-JLV, 2012 WL 2122200, at *1 n.2 (D.S.D. June 12, 2012) (citing § 60-11-17.1 in support of the statement that "It is unlawful for any employer to engage in any threatened reprisal or termination of an employee who files a wage complaint."); Garrity v. Klimisch, No. 20-cv-4027-LLP, 2020 WL 5878035, at *8 (D.S.D. Oct. 2, 2020) (citing Compensation Employment Law Alliance, Global Employer Handbook, South Dakota (2018) (referring to employer conduct under SDCL ch. 60-11, Wages, Hours, and Conditions of Employment)). Based on the text of the statute, relevant discussion by other courts, and Wubben's lack of support for her argument, the court finds that § 60-11-17.1 does not prohibit employer retaliation for an employee's speech apart from wage complaints or proceedings. Thus, § 60-11-17.1 cannot serve as a basis for Wubben's wrongful termination claim.
b. Alleged Retaliation for Exercise of State Constitutional Rights
Wubben alleges that the County terminated her employment in retaliation for the exercise of her right to free speech in violation of sections 4 and 5 of South Dakota's Bill of Rights. Docket 21 ¶ 65 (citing S.D. Const., art. VI., §§ 4-5). Yankton County and Klimisch argue that her speech at the February 19 meeting was unprotected, thus they did not violate Wubben's Constitutional rights. See Docket 32 at 17 (citing to their earlier argument under Count III).
Sections 4 and 5 of Article 6 of the South Dakota Constitution state:
§ 4. Right of petition and peaceable assemblySection 5 is the state "counterpart" to the First Amendment in the United States Constitution. Gilbert v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249, 257-58 (S.D. 2006) ("The majority of states with almost identical language [to § 5] have interpreted their state constitutional free speech provisions as coextensive with their federal counterparts.")
The right of petition, and of the people peaceably to assemble to consult for the common good and make known their opinions, shall never be abridged.
§ 5. Freedom of speech—Truth as defense—Jury trial
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court.
As the court discussed above, the at-will employment doctrine is codified at SDCL § 60-4-4. "Wrongful termination suits are subject to the at-will doctrine." Zavadil, 363 F. Supp. 2d at 1191 (citing Bass, 507 N.W.2d at 320 n.5). But the "harsh effects" of the at-will employment doctrine have been tempered by South Dakota's adoption of the public policy exception. Dahl, 621 N.W.2d at 166. An employee has a cause of action "where an employer's motivation for termination contravenes a clear mandate of public policy." Id. The South Dakota Supreme Court has recognized causes of action for employees under the public policy exception for (1) termination for failure to commit a crime, (2) termination in retaliation for filing a worker's compensation claim, and (3) termination in retaliation for whistleblowing that serves a public purpose. Id. at 166-67. Courts have also recognized a fourth cause of action when an employee is discharged for "[e]xercising his . . . rights to freedom of speech and to petition the government for redress of grievances." Jorgensen v. Schneider, No. 10-cv-5021-JLV, 2012 WL 13173045, at *25 (D.S.D. Sept. 27, 2012) (citing Emery v. Schneider, No. 07-cv-5038-KES, 2009 WL 236686, at *10 (D.S.D. Jan. 30, 2009)); see also Jarman v. Barndt, No. 03-cv-5064-KES, 2006 WL 88657, at *8 (D.S.D. Jan. 12, 2006).
To establish a free speech retaliation claim, Wubben must demonstrate that she "engaged in protected activity and that this activity was a substantial or material factor in [her] employer's decision to take an adverse employment action." Emery, 2009 WL 236686, at *5 (quoting Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007)). The burden then shifts to defendants to demonstrate that they would have taken the same action regardless of Wubben's speech activities. Id. (citing Altonen, 487 F.3d at 559). "To prevail, the employee must prove by a preponderance of the evidence that the discharge was for an impermissible reason." Johnson, 433 N.W.2d at 227-28.
To determine whether Wubben's speech was protected, the court asks whether her speech addressed a matter of public concern, and if so, it must balance her right to free speech against the interests of the County. Gunter v. Morrison, 497 F.3d 868, 872 (8th Cir. 2007). "[M]atters of public concern include matters of political, social, and other concern to the community." Lindsey v. City of Orrick, 491 F.3d 892, 898 (8th Cir. 2007) (citation omitted). When the employee's speech concerns matters of both public concern and personal interest, the court must determine whether the employee was speaking primarily as a concerned citizen or as an employee. Bailey v. Dep't of Elementary & Secondary Educ., 451 F.3d 514, 518 (8th Cir. 2006).
Here, viewing the facts in the light most favorable to Wubben, her speech activities at the February 19 County Commission meeting concerned matters that were of both public concern and personal interest, including whether anyone was "banned" from the county government building. Docket 51 ¶¶ 33, 36-37; see supra section I.D. And the court previously found that whether Wubben spoke as a public employee or private citizen is a disputed issue of fact to be decided by a jury. Supra section I.D. Because a disputed issue of fact exists regarding Wubben's claim for wrongful termination, Yankton County and Klimisch's motion for summary judgment on Count IV is denied.
Like in Counts II and III, Yankton County and Klimisch did not elaborate on their argument under Count IV that "Wubben also failed to exhaust her administrative remedies in regard to this claim." Docket 32 at 17. They failed to identify any law or facts to describe and support their argument—namely, what remedy they believe Wubben should have pursued under this claim and whether it applies here. See id. Their reply brief is also devoid of any support for their exhaustion argument regarding Count IV. See Docket 59. Thus, the court considers the issue waived. See Clay, 882 F. Supp. 2d at 1111. Relatedly, the Magistrate Judge did not address exhaustion of administrative remedies regarding Count IV, see Docket 64 at 36-43, and Yankton County and Klimisch did not file any objections to the Report and Recommendation or respond to Wubben's objections. See Fed. R. Civ. P. 72(b)(2)-(3). For both of these reasons, the court declines to address their exhaustion argument regarding Count IV.
B. Count V - Injunctive Relief: Reinstatement
In Count V, Wubben seeks reinstatement of employment as a form of injunctive relief under Federal Rule of Civil Procedure 65. Docket 21 ¶¶ 68-75. Yankton County and Klimisch move for summary judgment on Count V, but their only argument is that "Wubben . . . is now retired rendering Count V moot." Docket 31 at 1 n.1. Wubben did not respond to the motion for summary judgment regarding Count V. See Docket 54. In her objections to the Report and Recommendation, she states that she does not "challenge[ ] the disposition . . . of count[ ] V[.]" Docket 69 at 14. The undisputed fact that Wubben is now retired diminishes her claim of irreparable harm in the Amended Complaint. See Docket 21 ¶ 71. And Wubben does not identify facts outside the pleadings to show or support her likelihood of success on the merits. Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir. 2011) (discussing the preliminary injunction standard under Rule 65); see also Cmty. Of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, 634 F.3d 1005, 1012 (8th Cir. 2011) (elevating "likelihood of success" to "actual success on the merits" under the permanent injunction standard). Based on Wubben's lack of opposition to the motion on this count and the lack of support for her allegations in the record, the court grants Yankton County and Klimisch's motion for summary judgment on Count V.
C. Count VI - Defamation: Defendant Gary Swensen
Although the Magistrate Judge recommends the court decline to exercise supplemental jurisdiction over Count VI, the Report and Recommendation substantively addresses Count VI and alternatively recommends entering summary judgment against Wubben. Docket 64 at 45-46. Upon a de novo review, and without any objection from Wubben, the court adopts the Magistrate Judge's recommendation and grants Swensen's motion for summary judgment on Count VI.
III. Qualified Immunity
The Magistrate Judge found that Klimisch is entitled to qualified immunity on Counts I, II, and III, because Wubben had not demonstrated a deprivation of a constitutional right. Id. at 44. That finding was based on the conclusion that there are no factual disputes in Counts I, II, and III, and that summary judgment should be entered in favor of Yankton County and Klimisch on those counts. See id. But because the court now denies Yankton County and Klimisch's motion for summary judgment on Counts II and III, the court will address whether Klimisch is entitled to qualified immunity on those counts.
"Qualified immunity is an immunity from suit, not a mere defense to liability." De La Rosa v. White, 852 F.3d 740, 743 (8th Cir. 2017). The qualified immunity doctrine "balances 'the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.' " Duffie v. City of Lincoln, 834 F.3d 877, 881 (8th Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The doctrine "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015) (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
"On summary judgment, a defendant official is entitled to qualified immunity unless (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation." Hawkins v. Gage Cnty., 759 F.3d 951, 956 (8th Cir. 2014) (cleaned up). "To deny [defendant] qualified immunity, [the court] must resolve both question in [plaintiff's] favor." The existence of qualified immunity generally turns on the objective reasonableness of the actions, without regard to the knowledge or subjective intent of the particular officer. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For a right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A clearly established right does not require "a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." De La Rosa, 852 F.3d at 745 (quoting Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)). The court has discretion as to which step of the qualified immunity analysis to address first. Pearson, 555 U.S. at 236, 129 S.Ct. 808.
A. Count II
Under Count II, Wubben alleges that the County deprived her of her liberty interest under the Due Process Clause. Docket 21 at 48-52. As the court determined above, a dispute of fact exists regarding whether statements Klimisch made were false and whether Wubben denied them. Supra section I.L. There is no dispute that the statements in the newspaper were public. See id. The facts on the disputed issues, when viewed in the light most favorable to Wubben, indicate that the statements were false and she did deny them. See id. Thus, at prong one of the qualified immunity analysis, the court finds that Wubben has "at least conditionally established" the deprivation of a constitutional right. Putnam v. Keller, 332 F.3d 541, 547 (8th Cir. 2003).
Under the second prong, the court considers whether her liberty right was clearly established "in light of the specific context of this case[.]" Id. at 546. The Eighth Circuit in Putnam v. Keller found that a protected liberty interest is clearly established "if a person's 'good name, reputation, honor, or integrity' are put at issue by the State." Id. at 547 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). In Putnam, a state college sent a letter to a former part-time instructor accusing him of inappropriate and criminal behavior. Id. at 546. The instructor denied the statements in a letter to the college. Id. Although disputed by the college, the instructor alleged that the college showed the letter to two county officials and communicated the accusations to faculty and staff of the college. Id. at 547. The Eighth Circuit affirmed the district court's finding that the instructor's protected liberty interest right was clearly established when the college made stigmatizing statements. Id.
Here, Klimisch argues that his statements in the newspaper were not false. Docket 59 at 6. But regardless of a final adjudication of whether the statement was true or false, his statement that Wubben "created controversy in the county" certainly put her reputation and integrity at issue. And although Klimisch and Wubben dispute whether or to what extent she denied Klimisch's allegation, such a dispute does not prevent the court from finding that her protected liberty interest was clearly established when Klimisch made a stigmatizing statement. See Putnam, 332 F.3d at 547 (noting that dissemination of the statements was disputed, but still holding that the employee had a clearly establish liberty interest). The court finds that a reasonable commissioner would have known that Wubben's liberty interest was clearly established when the commissioner's statements were published in the newspaper. Thus, Klimisch's motion for summary judgment based on qualified immunity is denied regarding Count II.
B. Count III
In Count III, Wubben alleges that the County terminated her in retaliation for exercising her First Amendment right of free speech. Docket 21 ¶¶ 53-61. As the court determined above, a dispute of fact exists regarding whether Wubben's speech was protected when she spoke at the February 19 County Commission meeting—the first of three elements for a prima case of First Amendment retaliation. Supra section I.D; see also Lyons, 781 F.3d at 961. But viewed in the light most favorable to Wubben, her speech at the end of the meeting where she joined the discussion regarding a "ban" on citizens at the county building indicates that she spoke as a private citizen and not in her role as a county employee. See supra section I.D. There is no dispute that the County took an adverse employment action when it terminated Wubben, thus satisfying the second element. Lyons, 781 F.3d at 961. Finally, under element three, there is no dispute that Wubben's speech and expression at the end of the February 19 Commission meeting was a "motivating factor" in her termination. Id.; see Docket 32 at 15 ("[Wubben] was terminated for her conduct when speaking . . . in regard to agenda item 'less time vs. banned[.'] She was also terminated for her outburst and the false allegations against Klimisch [at the meeting]."). Because the first element favors Wubben, and the remaining elements are not in dispute, the court finds that Wubben has "at least conditionally established" a First Amendment retaliation claim. Putnam, 332 F.3d at 547.
Under the second prong, the court considers whether her right to free speech under the First Amendment was clearly established at the time it was violated. "It is settled at a high level of generality that the First Amendment prohibits government officials from retaliating against a citizen for exercising his right of free speech." Scott v. Tempelmeyer, 867 F.3d 1067, 1070 (8th Cir. 2017) (citing Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). But a more particularized showing based on the facts of the case is required for the plaintiff to meet her burden under the "clearly established" prong. Morgan v. Robinson, 920 F.3d 521, 523-24 (8th Cir. 2019) (en banc). Wubben only argues facts specific to Klimisch's subjective knowledge, and she does not identify any case or cases that resemble the facts of her case. Docket 54 at 25; see also Benner v. St. Paul Pub. Schs., I.S.D. #625, 380 F. Supp. 3d 869, 909-910 (D. Minn. 2019). Despite demonstrating a constitutional violation under the first prong, Klimisch is entitled to qualified immunity on Count III because Wubben has not demonstrated that the right was clearly established.
CONCLUSION
Yankton County and Klimisch are entitled to summary judgment on Counts I and V. Swensen is entitled to summary judgment on Count VI. Klimisch is entitled to qualified immunity on Count III, but not on Count II. Genuine issues of material fact preclude summary judgment in favor of Yankton County on Counts II, III, and IV, and in favor of Klimisch on Counts II and IV. Counts I through V against Swensen survive. Thus, it is
ORDERED that:
1. The Report and Recommendation (Docket 64) is adopted, except those parts that at are modified or rejected herein. 2. Wubben's objections (Docket 69) are sustained in part and overruled in part. 3. Yankton County's motion for summary judgment (Docket 31) is granted on Counts I and V and denied on Counts II, III, and IV. Klimisch's motion for summary judgment is granted on Counts I, III, and V and denied on Counts II and IV. 4. Swenson's motion for summary judgment on Count VI (Docket 39) is granted. 5. This matter will be promptly scheduled for trial.