Opinion
No. A2-99-2
August 2, 2000
MEMORANDUM AND ORDER
I. INTRODUCTION
Before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, (docket #47). Plaintiff resists the motion. As explained below, defendants' motion is GRANTED IN PART, and DENIED IN PART.
Defendants' request for oral argument on the motion is DENIED.
A. Factual Background
This case arises out of an employment conflict. Plaintiff has been an employee of Public Safety Answering Point (PSAP), the "911" emergency telephone communications dispatch service within Grand Forks County, since 1979. She became a supervisor in 1993. In September, 1997, a group of PSAP employees, certain defendants in this case, filed a "formal complaint" or grievance against plaintiff with Grand Forks Mayor Pat Owens, also a defendant in this case. The "formal complaint" alleged that plaintiff had created a hostile work environment at PSAP by acting in a demeaning manner toward and communicating unprofessionally with the staff and the public. The complaint requested an investigation and also requested that plaintiff be suspended with pay during this time in order to protect the complainants from any potential retaliation.
These defendants are Emanuel, Feist, French, Gefroh, Newman, Spradlin, and Warne.
Mayor Owens complied with the requests in the complaint by authorizing defendant Dan Gordon, the city's Human Resources Director, to conduct an investigation and placing plaintiff on administrative leave with pay. Plaintiff was notified of the complaint against her, the pending investigation, and the decision to place her on leave by letter from the Mayor dated October 2, 1997. The investigation was completed on or about October 15, 1997. Plaintiff was provided a copy of the report and on October 27, 1997 she and her attorney met with Mayor Owens. After the meeting, Mayor Owens demoted plaintiff from supervisor to dispatcher, suspended plaintiff without pay for three days, and placed plaintiff on probation. Plaintiff appealed the Mayor's decision to the Grand Forks Civil Service Commission, some members of which are also defendants in this action. The Commission reversed the Mayor's decisions to suspend and place plaintiff on probation, but agreed that plaintiff's demotion was appropriate. This decision was not made until September 15, 1998.
During the spring and summer of 1998 the PSAP personnel system was restructured. At the time of the restructuring plaintiff was on paid suspension due to an unrelated pending criminal charge against her that was later dismissed. Plaintiff's position was eliminated and replaced with three separate team leader positions. Although plaintiff was the most senior employee at PSAP she was not considered for one of the team leader positions. Before returning to work at PSAP, plaintiff requested and was provided information about this restructuring.
On November 30, 1998 plaintiff was ordered to return to work by the Mayor. To ease plaintiff's transition back to work and to improve employee relations generally, a meeting was scheduled with a facilitator, Rebecca Monley, for the employees of PSAP. Pete Eggimann, plaintiff's supervisor, was concerned about her return and anticipated problems. Not long after plaintiff returned, Eggimann started receiving complaints regarding plaintiff which he documented.
In late April of 1999 plaintiff was again placed on administrative leave with pay after an incident where she accidentally cutoff a caller and became emotionally distraught. As a consequence of this incident, plaintiff was ordered to undergo a fitness for duty evaluation by Eggimann. The evaluation essentially concluded that plaintiff was not suffering from any specific problems that would impair her ability to perform her job. On November 22, 1999 plaintiff was ordered back to work. Plaintiff refused based on her psychological inability to work at PSAP. She used her accrued vacation time until the end of December 1999. Thereafter, she began using her accrued sick leave and has not returned to work. Although she is not currently working at PSAP, she has neither quit nor been terminated.
Plaintiff filed this civil rights action in January 1999. Her amended complaint alleges several claims pursuant to 42 U.S.C. § 1983 and a breach of contract claim. Plaintiff's § 1983 actions assert the following: (1) that she was denied substantive and procedural due process when she was demoted and not considered for a team leader position; (2) that her First Amendment rights were violated by subjecting her to a hostile work environment in retaliation for her exercise of said rights; (3) that she was intentionally treated differently than other similarly situated employees in violation of her equal protection rights; and (4) that defendants conspired to deprive her of her federal rights. Plaintiff's suit names the City of Grand Forks, the Grand Forks Civil Service Commission, and various city officials and employees in their official and individual capacities as defendants. Defendants moved for summary judgment on all federal counts, and asked the Court to decline to exercise supplemental jurisdiction over the breach of contract claim.
B. Summary Judgment Standards
Summary judgment is appropriate only when, viewed in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is "material" if it might affect the outcome of a case under the applicable substantive law, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Graning, 172 F.3d at 614-615.
The "basic inquiry" for purposes of summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996) (citing Anderson, 477 U.S. at 251-52). In making this inquiry, however, this court will not "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter." Id. (citing Anderson, 477 U.S. at 249). Rather, this court's function is to determine only whether a dispute is genuine, and "[i]f reasonable minds could differ as to the import of the evidence," summary judgment is inappropriate. Id. at 1377 (citing Anderson, 477 U.S. at 250).
The moving party has the initial burden of demonstrating to the court that there is no genuine issue of fact. Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998) (citing Celotex Corp., 477 U.S. at 323). Once the moving party has met this burden, however, the nonmoving party cannot simply rest on the mere denials or allegations in the pleadings; rather, the nonmovant must set forth specific facts showing that there is a general issue for trial. Id. (citing Fed.R.Civ.P. 56(e)).
II. DISCUSSION
Generally, in order to establish a § 1983 claim, plaintiff must show that the defendants, acting under color of state law, deprived her of a constitutional or federal right, privilege, or immunity. See 42 U.S.C. § 1983; Graning, 172 F.3d at 615. To establish a claim against the city, plaintiff must show that the deprivation was a result of a governmental policy, practice, or custom, or that the action taken was made by an official with final decision making authority. See Monell v. Department of Soc. Servs., 436 U.S. 658, 691, 694 (1978) (municipalities cannot be held liable under § 1983 on respondeat superior theory unless injury was inflicted pursuant to execution of municipal policy or custom); Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986);Graning v. Sherburne County, 172 F.3d 611, 615 (8th Cir. 1999). Insofar as the suit affects the defendants in their individual capacities they are entitled to raise, and have done so here, the defense of qualified immunity. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
Plaintiff names the City of Grand Forks as a defendant and also numerous other city employees in their official capacities. A section 1983 suit against a defendant in his/her official capacity must be treated as a suit against the municipality. Hafer v. Melo, 502 U.S. 21, 25 (1991); Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999). Naming the individual defendants in their official capacity is redundant; therefore, the claims against Patricia Owens, Bev Bredemeier, Jim Johnson, Sally Page, Dan Gordon, George Hoselton, Peter Eggiman, Kristin Spradlin, Patricia French, Margaret Emanuel, Carrie Feist, Terri Newman, Shannon Gefroh, and Kathy Warne in their official capacity are DISMISSED.
Moreover, defendants correctly point out that the Grand Forks Civil Service Commission, an administrative body created by the city of Grand Forks, does not have the capacity to sue or be sued under state law. See Fed.R.Civ.P. 17(b); Grand Forks City Code, ch. VI, art. 2. Thus, all claims against the commission are DENIED and the Grand Forks Civil Service Commission is DISMISSED from this suit. Accordingly, this suit goes forward, at least at this point, against the City of Grand Forks, and each of the named defendants listed above in their individual capacity.
Initially, the court addresses defendants' argument that they are entitled to summary judgment on plaintiff's municipal liability claim. While it is clear that a municipality, such as the City of Grand Forks, is not vicariously liable for the unconstitutional acts of it employees, see Johnson, 172 F.3d at 535, a municipality may be liable for the unconstitutional acts of its officials when done pursuant to custom or policy or when the acts are done by an official with final decision making authority. Graning, 172 F.3d at 615. As plaintiff points out, defendants have almost admitted that the Mayor and possibly members of the Grand Forks Civil Service Commission are officials with final decision making authority. See Def. Br. in Supp. of Mot. Summ. J. p. 5, 14 (stating that "In Grand Forks, the highest level of management is the Mayor." and further stating that "Pursuant to Civil Service Code Ms. Westfall had the right (and exercised that right) to appeal the Mayor's decision to the Grand Forks Civil Service Commission."). The Court recognizes, however, that whether a particular official possesses final policymaking authority is a question of state law, see Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 652 (8th Cir. 1998), and, therefore, determines that material issues of fact exist regarding the municipal liability of the City of Grand Forks which preclude summary judgment on this issue. Accordingly, the defendant's motion for summary judgment on municipal liability is DENIED.
As discussed above, in order to prevail on a § 1983 action the defendant must have been acting under color of state law. The defendants have not presented an argument refuting the "acting under color of law" requirement. Thus, the remaining inquiries concern whether material issues of fact exist regarding the alleged deprivations of plaintiff's federal rights and whether defendants are entitled to qualified immunity.
1. Procedural/Substantive Due Process
The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. The amendment offers two protections: procedural and substantive due process, see Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999); procedural due process protects "how" the property deprivation was effectuated while substantive due process protects persons from arbitrary or irrational deprivations. "Analysis of either a procedural or substantive due process claim must begin with an examination of the interest allegedly violated and `the possession of a protected life, liberty, or property interest is a condition precedent' to any due process claim." Id. (citations omitted).
Plaintiff claims that she was denied procedural and substantive due process in relation to her demotion and the restructuring of the supervisory positions at PSAP. The Court first examines plaintiff's claim regarding her demotion. Defendants concede that as a civil service employee plaintiff has a property interest in her job as a supervisor at PSAP and could only be demoted for "due cause." Def. Br. in Supp. of Mot. Summ. J. p. 12. Thus, the remaining question is whether plaintiff's demotion was effectuated without due process of law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (noting that once it is determined that the Due Process Clause applies, "the question remains what process is due."). "A public employee receives due process if there is notice and an opportunity to respond to charges of misconduct before her termination and if posttermination administrative review procedures are available."Graning, 172 F.3d at 616.
While plaintiff does not dispute that she received some notice and a pre-demotion hearing with the Mayor followed by an appeal to the Grand Forks Civil Service Commission, she claims, and has offered evidence tending to support, that these procedures were inadequate. See Winegar v. Des Moines Indep. Community Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994) (reversing summary judgment and noting that pre-deprivation procedures might have been inadequate since plaintiff was not given a meaningful opportunity to challenge the outcome and that post-deprivation "encounters" were not meaningful opportunities to be heard); Linton v. Frederick County Bd. of County Comm'rs, 964 F.2d 1436 (4th Cir. 1992) (discussing importance of specified notice). Although due process is a flexible concept, the essence of due process requires that "a plaintiff must receive adequate notice and an opportunity to be heard `at a meaningful time and in a meaningful manner.'" Post v. Harper, 980 F.2d 491 (8th Cir. 1992) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Factual concerns persist for the Court regarding the adequacy and meaningfulness of the procedures afforded plaintiff.
The Court is mindful of defendants' argument that any pre-deprivation inadequacies were cured by the post-deprivations procedures afforded plaintiff. While this is a sound legal argument based on Loudermill, the Court has factual concerns regarding the post-deprivation procedures as well which prevent the granting of summary judgment.
Similarly, factual issues persist regarding plaintiff's substantive due process claim. This claim, according to plaintiff, arises out of Eggimann's order, which was approved by the Mayor, that plaintiff undergo a mental examination for fitness of duty following the phone incident. Plaintiff has presented evidence upon which the Court could find that defendants acted arbitrarily and capriciously in this matter. See Morris v. Clifford, 903 F.2d 574, 576, 578 (8th Cir. 1990). Accordingly, based on the above, defendants' motion for summary judgment on plaintiff's procedural and substantive due process claims regarding her demotion are DENIED.
The Court now turns to plaintiff's claim that she was denied procedural due process regarding the restructuring of the supervisory positions at PSAP. As explained previously, a person is entitled to due process when being deprived of a property interest. "Property interests are not created by the Constitution, but stem from an independent source, such as state law." Holloway v. Conger, 896 F.2d 1131, 1134 (8th Cir. 1990). Regulations, statutes and contracts are examples of such sources that may create property interests. It is clear that a property interest requires more than a unilateral expectation or an abstract need or desire for the claimed benefit; instead the plaintiff must establish "a legitimate claim of entitlement to it." See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). "While state law defines the underlying substantive interest, `federal constitutional law determines whether that interest rises to the level of a "legitimate claim of entitlement" protected by the Due Process Clause.'" Ezekwo v. NYC Health Hospitals Corp., 940 F.2d 775, 782 (2nd Cir. 1991) (citations omitted); Buchanan v. Little Rock Sch. Dist. of Pulaski County, 84 F.3d 1035, 1038 (8th Cir. 1996). Consequently, the question is one for the court to determine as a matter of law.
See Buchanan, 84 F.3d 1037-38.
Plaintiff alleges that she has a property interest in promotions under the Grand Forks Civil Service System because the relevant provisions of the city code provide that deference should be given to seniority. As the most senior employee at PSAP, plaintiff alleges that her procedural due process rights were violated in that she was not given notice or considered for a team leader position when the center was restructured. While plaintiff correctly points out that seniority plays a role in promotions and reassignments within the Grand Forks Civil Service System, she ignores the fact that the first consideration in such appointments is merit and fitness based on "systematic tests, examinations, and evaluations." See Grand Forks City Code § 6-0102(A); (D). "Following scoring of reassignment examinations, the applicants shall be ranked in the order of the ratings earned in the test given. In the event of a tie in the final ratings of eligible persons for a reassignment, all other factors being equal, seniority shall prevail." Id. § 6-0513(4). These provisions do not provide plaintiff with a legitimate claim of entitlement to a promotion based on seniority, instead they provide the tie-breaking rule.
Plaintiff has not supplied, nor has the Court found, any case-law supporting that such provisions, as noted above, establish a property interest in promotions. Indeed, the Court has found ample authority supporting the opposite. See Nunez v. City of Los Angeles, 147 F.3d 867, 871-872 (9th Cir. 1998) (collecting cases from the Eleventh, Seventh, Third, First, Fourth and D.C. Circuits). As noted by the court in Nunez, the prospect of a promotion is not in the same category as one's actual job as a tenured civil service employee. Id. at 871. The possibility of a promotion is a mere expectancy that does not ripen into a property interest until one actually receives the promotion or the binding assurance of a forthcoming promotion. Id. at 873. This Court sees nothing that would change that conclusion simply because the City of Grand Forks uses seniority as a means of breaking the tie between qualified applicants. Consequently, the defendants' motion for summary judgment as to this claim is GRANTED.
2. Equal Protection/First Amendment Claims
The Fourteenth Amendment prohibits a state from denying "any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The gravamen of the equal protection clause is that "similarly situated people must receive similar treatment under the law." Post v. Harper, 980 F.2d 491, 495 (8th Cir. 1992). When fundamental rights or suspect classifications are involved, the court subjects the state action to more exacting scrutiny. This recognition does not alter the fact that the equal protection clause also protects persons from arbitrary or irrational state action and intentional discrimination regardless of a suspect classification. See Batra v. Board of Regents of University of Nebraska, 79 F.3d 717, 721-22 (8th Cir. 1996) (explaining that the protection of the equal protection clause is itself fundamental and not limited to "suspect classifications" or other "fundamental rights"). Indeed, just this term the United States Supreme Court has made clear that the equal protection clause protects the "`class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 120 S.Ct. 1073, 1074 (2000) (per curiam). Factual concerns persist regarding plaintiff's claim of disparate treatment vis-a-vis similarly situated employees and her claim that she was singled out for intentional discrimination. Accordingly, the motion for summary judgment on this claim is DENIED.
A § 1983 action may be based upon retaliation for the exercise of first amendment rights. See, e.g., Starrett v. Wadley, 876 F.2d 808, 815, 817 n. 12 (10th Cir. 1989). In order to establish a retaliation claim in violation of the first amendment, the plaintiff must establish that she (1) engaged in protected speech and (2) that it was a substantial or motivating factor in (3) the adverse employment action taken against her. Campbell v. Arkansas Dept. of Correction, 155 F.3d 950, 958 (8th Cir. 1998). "`Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context' of the speech, and that speech must relate to some `matter of political, social or other concern of the community.'" Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999) (quoting Connick v. Myers, 461 U.S. 138, 146-48 (1983)). Purely job-related speech is not deemed a matter of public concern protected by the first amendment. Id. (holding that police officer's written statements about officer's conversations with witnesses and discharged officers regarding possible prisoner mistreatment were not matters of public concern). Plaintiff proffers a number of potential protected communications including: appealing the Mayor's decision to demote, suspend, and place her on probation; requesting information about the restructuring of the PSAP center; filing a grievance with the Mayor regarding a newspaper article on the PSAP center; filing a grievance regarding a "hostile work environment;" and finally starting this particular lawsuit. It is the Court's duty to carefully review the record to "ensure that matters of internal policy, including mere allegations of favoritism, employment rumors, and other complaints of interpersonal discord, are not treated as matters of public policy." Goldstein v. Chestnut Ridge Volunteer Fire Co., Nos. 99-1089, 99-1180, 2000 WL 961590, *15 (4th Cir. July 12, 2000). "To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs." Connick, 461 U.S. at 149.
In Connick v. Myers, the leading Supreme Court case on speech that is a matter of public concern, the plaintiff (Myers) was an assistant district attorney with no property interest in her position. 461 U.S. 138 (1983). The district attorney (Connick) wanted to transfer her to a different section of the criminal court. Myers objected and expressed her views to several supervisors, including Connick. Connick made the decision to transfer her anyway. Myers talked to one of the first assistant district attorneys about her reluctance to accept the transfer. During this conversation, Myers determined that she would research how others in the office felt about these types of proposed transfers, office morale, the need for a grievance committee and other office issues. She prepared a questionnaire and circulated it throughout the office. Word got back to Connick about the questionnaire, and he immediately terminated Myers, allegedly for refusing to accept the transfer. Myers filed suit claiming that her employment had been wrongfully terminated because she had exercised her constitutionally protected right of free speech.
The Supreme Court held that most of the questionnaire did not address matters of public concern. Instead the Court viewed "the questions pertaining to the confidence and trust that Myers' co-workers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers' dispute over her transfer. . . ." Id. at 148. The questionnaire, with one exception, was not speech of public importance, said the Court, because the questions did not seek to inform the public that the district attorney's office was not discharging it duties, Myers did not seek to reveal any actual or potential wrongdoing or breach of public trust on the part of District Attorney Connick or others, and if released to the public the questionnaire would only convey that one employee was upset with the status quo. Id.
The question that was of public concern asked whether any of the assistant district attorneys "ever feel pressured to work in political campaigns on behalf of office supported candidates."Connick, 461 U.S. at 149. The Court determined that this was clearly a matter of interest to the community. Id. Nothing in this case reaches that level.
Similarly, an examination of the context, form, and content of plaintiff's proffered communications reveals that they are not matters of public concern. See id. at 147-148. First these communications arose in the context of an employee complaint filed against plaintiff in her supervisory capacity and the investigation into the complaint. The complaint itself regarded issues of office morale, management problems, and employee conflict. These are internal office concerns. See id. Moreover, plaintiff's communications were made in direct response to the complaint and investigation. She had never spoken out on these issues before the decisions to demote her. Additionally, her communications are not general attacks on city policy but specific complaints regarding her employment treatment. See Buazard, 172 F.3d at 548 (explaining that unless the public employee is speaking as a concerned citizen, not just an employee, the speech does not warrant First Amendment protection). Like Myers, if plaintiff's speech was put out into the public it would simply convey that she was upset about her demotion.
From the Court's review it is clear that plaintiff was personally, rather than publicly, motivated in making the communications. This conclusion is evidenced by the fact that each were made in direct response to an employment decision affecting plaintiff or a perceived personal attack. For example, plaintiff's request for information about the restructuring of PSAP was made in a letter concerning her return to work and it was made only after it became clear that she would be ordered back to work by the Mayor. Moreover, while not controlling on the issue, the communications were internal in nature and not expressed in public. See id. at 549 (noting that the context of the speech, like the internal nature, is a relevant factor for consideration).
Consequently these communications are not, as a matter of law, matters of public concern. See Connick, 461 U.S. 148 n. 7; Padilla v. South Harrison R-II Sch. Dist., 181 F.3d 992, 996 (8th Cir. 1999) (whether speech is a matter of public concern is a matter of law for the court to decide). Since plaintiff's speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary to go further. Connick, 461 U.S. at 146. Consequently, defendants' motion for summary judgment on the first amendment claim is GRANTED.
This determination, however, does not preclude that the evidence may be relevant to plaintiff's other claims, specifically the equal protection and substantive due process claims. The Court holds that the first amendment simply is not the proper vehicle.
Plaintiff's last claim is that the named defendants conspired to violate her federal constitutional rights in violation of 42 U.S.C. § 1983. Amended Compl. ¶¶ 94-96. Defendants have moved for summary judgment on the claim, yet plaintiff has not responded or prosecuted the claim. Under Local Rule 7.1(C) a failure to file a brief in response is deemed an admission that the motion is well taken. The rule is equally applicable where the party files a response but does not address the issue. See Demerath Land Co. v. Sparr, 48 F.3d 353, 356 (8th Cir. 1995) (summary judgment proper where movant asserted in brief in support of motion for summary judgment that plaintiff had failed to establish claim and nonmovant had opportunity but failed to respond to challenged claim). Cf. Coney v. Union Pacific R.R., 136 F.3d 1195, 1196 (8th Cir. 1998) (citing Fed.R.App.P. 28(a) that "[a] party's failure to raise or discuss an issue in his (or her) brief is deemed to be an abandonment of that issue.") (citations omitted). This Court is under no obligation to prosecute plaintiff's conspiracy claim for her and the Court refuses to do so. Accordingly, the motion for summary judgment on the conspiracy claim is GRANTED.
3. Immunity
As previously explained the named defendants in this case have been sued in their individual capacities. Such defendants are entitled to raise, and have done so here, the defense of immunity.See Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (noting that Supreme Court decisions have consistently held that government officials are entitled to raise some form of immunity in suits for damages). The defense is not foreclosed by the Court's ruling that material issues of fact exist regarding plaintiff's equal protection claim and procedural and substantive due process claims as they relate to a protected property interest.
Defendants Bredemeier, Johnson, and Page, Grand Forks Civil Service Commissioners, claim that they are entitled to absolute immunity as they were acting in a quasi-judicial capacity when determining whether plaintiff was properly disciplined. The Court agrees. "Persons who perform quasi-judicial functions are entitled to absolute immunity." Dunham v. Wadley, 195 F.3d 1007, 1010 (8th Cir. 1999) (providing absolute immunity to board members who held meetings, considered evidence, and issued orders involving doctor's unlawful practice of veterinary medicine). Like the board in Dunham, these three defendants, along with two other members of the civil commission that are not defendants, received testimony, weighed evidence, made factual findings, determined sanctions, and issued a written decision. See id. at 1011. These are traditionally functions that are judicial in nature. "`A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.'" Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir. 1992) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908)). Defendants Bredemeier, Johnson, and Page are thus entitled to absolute immunity. Accordingly, summary judgment is GRANTED to these three defendants in their individual capacity; and they are DISMISSED from this suit.
The remainder of the individual defendants assert that they are entitled to qualified immunity. The Court turns first to defendants Hoselton, Spradlin, French, Emanuel, Feist, Newman, Gefroh, and Warne. As the defendants have correctly pointed out, the plaintiff has failed to address their claims for qualified immunity in her responsive pleading. As discussed previously, such a failure is, by local rule and general principles, an abandonment, waiver or admission that the motion is well taken. See Demerath Land Co., 48 F.3d at 356. Thus, summary judgment as to these defendants is GRANTED and they are DISMISSED from this suit.
Moreover, the Court notes that plaintiff has failed to allege a constitutional deprivation against these particular individual defendants at all. These defendants, with one exception, were plaintiff's co-workers, some of which filed the initial complaint or grievance against her. Under no stretch of the imagination could the filing of the complaint have been a deprivation of plaintiff's constitutional rights. The other basis for plaintiff's claims against these defendants may have been her conspiracy claim which the Court has also determined plaintiff abandoned or waived.
This leaves the Court with defendants Owens (Mayor at the time), Gordon (city human resources director), and Eggimann (PSAP director) sued in their individual capacity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. A right is clearly established when "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . ."Anderson v. Creighton, 483 U.S. 635, 640 (1987). "The standard for determining whether this qualified immunity is applicable is objective reasonableness." Schleck v. Ramsey County, 939 F.2d 638, 640 (8th Cir. 1991). "The standard is to be applied to a particular defendant's conduct as a question of law and is to be decided by the court prior to trial." Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997).
The Court has previously discussed the contours of the rights allegedly violated, and assuming those constitutional violations exist, the Court may still consider the legal question of whether, construing the material issues of fact in favor of plaintiff, the individual defendants' conduct was objectively reasonable given their knowledge and the clearly established law. Cf. Waddell v. Forney, 108 F.3d 889, 890 (8th Cir. 1997) (determining that appellate court could consider the legal question of qualified immunity notwithstanding that district court's determination that material issues of fact remained for trial). The Court is only concerned with defendants' conduct since allegations of malice do not suffice to subject governmental officials to the costs and inconveniences of trials. See Harlow, 457 U.S. at 817-18.
Examining the conduct relevant to the surviving claims, the Court notes the following. As to defendant Gordon, he was directed by the Mayor to investigate the complaint filed by PSAP employees against plaintiff. While he did not interview plaintiff during the process, it was not objectively unreasonable not to do so in light of the facts that plaintiff was given an opportunity to provide him with a list of names of people she wanted interviewed, she was given a copy of the report before the disciplinary decision was made, and plaintiff had a meeting with the Mayor, the decision-maker, before formally being disciplined. As to defendant Owens, she authorized an investigation, met with the plaintiff, considered the evidence and made a decision. This conduct, too, is objectively reasonable. Last, as to defendant Eggimann, he ordered plaintiff to undergo a fitness for duty evaluation, gathered PSAP employee complaints against plaintiff, reprimanded plaintiff, and expressed his reluctance to plaintiff's return to work at PSAP. Again, the Court finds nothing objectively unreasonable in this conduct. Eggiman was the director of PSAP and daily management of the staff was his responsibility.
In sum, the Court has thoroughly reviewed the submissions of the parties, the evidence presented and the entire file, and finds nothing to indicate that these defendants violated clearly established constitutional law. This is particularly evident in light of Simons v. City of Grand Forks, 985 F.2d 981 (8th Cir. 1993), where the City of Grand Forks faced a similar challenge by the city assessor to his termination. In Simons, the Eighth Circuit affirmed that Simons' had been afforded procedural due process by the City of Grand Forks. While the Court has found that material issues of fact exist regarding the sufficiency of the procedures afforded plaintiff that distinguish this case fromSimons, it is clear that these defendants' attempted, although they may not have succeeded, to follow the procedures set out inSimons. Thus, they are entitled to the protection of qualified immunity. Summary judgment as to these individual defendants is therefore GRANTED and the defendants are DISMISSED from this suit.
Plaintiff's last claim is breach of contract. Insofar as defendants have asked the Court to decline to exercise supplemental jurisdiction over the claim if the federal claims are dismissed, see 28 U.S.C. § 1367(c), the request is moot since § 1983 actions remain and the breach of contract claim forms part of this same case and controversy. See id. § 1367(a).
III. CONCLUSION
Accordingly, based on the foregoing, and upon review of all files, records and proceedings herein,
IT IS ORDERED that defendants' motion for summary judgment, (doc. #47) is GRANTED as it relates to:
(1) plaintiff's procedural and substantive due process claim only as it relates to a promotion during the restructuring of PSAP;
(2) plaintiff's first amendment claim;
(3) plaintiff's conspiracy claim;
(3) the absolute and qualified immunity of all individually named defendants.
Defendants' motion for summary judgment is DENIED in all other respects, including municipal liability, and leaving for trial:
(1) plaintiff's procedural and substantive due process claim;
(2) plaintiff's equal protection claim;
(3) plaintiff's breach of contract claim.
IT IS FURTHER ORDERED that the caption of this case is hereby amended to read:
IT IS SO ORDERED.
Dated this __ day of August, 2000.