Opinion
Case No. 117,602
04-30-2020
Becky S. WRIGHT, Plaintiff/Appellant/Counter-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF CARTER COUNTY, Defendant/Appellee/Counter-Appellant.
Mark Hammons, HAMMONS, GOWENS, HURST & ASSOCIATES, Oklahoma City, Oklahoma, for Plaintiff/Appellant Counter-Appellee Jordan L. Miller, Ambre C. Gooch, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee Counter-Appellant
Mark Hammons, HAMMONS, GOWENS, HURST & ASSOCIATES, Oklahoma City, Oklahoma, for Plaintiff/Appellant Counter-Appellee
Jordan L. Miller, Ambre C. Gooch, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee Counter-Appellant
OPINION BY JANE P. WISEMAN, CHIEF JUDGE:
¶1 Becky Wright appeals a trial court judgment entered after a jury verdict finding in her favor but awarding no damages in this wrongful termination action. Wright asserts the verdict must be set aside for the following reasons: it is internally inconsistent, the trial court erred in admitting evidence of criminal convictions, the trial court erred in instructing the jury, and the trial court improperly denied her First Amendment claim. The Board of County Commissioners of Carter County counter-appeals asserting trial court error in denying its motion in limine but granting Wright's motion in limine and in instructing the jury regarding scope of employment. After review of the record and relevant law, we reverse the summary judgment on Wright's First Amendment claim but find no basis to reverse for any internal inconsistency in the verdict or for error in admitting evidence or instructing the jury. Based on our affirmance of the judgment on Wright's wrongful termination claim, we dismiss the counter-appeal as Board requested. In summary, we affirm the judgment on the wrongful termination claim, reverse and remand the summary judgment in favor of Board on Wright's First Amendment claim, and dismiss Board's counter-appeal.
FACTS AND PROCEDURAL BACKGROUND
¶2 Wright brought this lawsuit against Board for retaliation and wrongful termination of her employment after she reported criminal conduct by her supervisor, Cynthia Harmon, the County Clerk for Carter County. Board filed an answer, admitting some allegations, denying others, and claiming insufficient information to admit or deny the remainder. Board also asserted multiple affirmative defenses.
¶3 Board filed a motion for summary judgment claiming Wright "was terminated solely for embezzling county property." Board alleged Wright took advantage of her position to access index books in the County Clerk's office and to then sell information she obtained for her own personal gain as a landman.
¶4 In her brief in opposition to Board's motion for summary judgment, Wright claimed that while working as a deputy clerk with Harmon as her supervisor, she "reported to the Sheriff and the FBI allegations of criminal misconduct by Ms. Harmon including a fraudulent Indian citizenship card and filing a fraudulent deed." She asserted "that she was terminated for protected whistleblowing."
¶5 Wright filed motions in limine seeking to exclude argument, questioning, or evidence related to her criminal convictions that were more than ten years-old and her more recent plea of no contest and deferred misdemeanor sentence on charges related to her conduct while employed by the County Clerk. In response, Board asserted the 1990s' convictions for "conspiracy to obtain property, forgery, unauthorized use of a credit card, and uttering a forged instrument .... are highly probative, as [Wright] herself admits that these convictions are the reason she started working as a ‘landman,’ which did not require a background check." Board further argued the nolo contendere plea is admissible because, in making the plea, Wright was "admitting her own misconduct at the County Clerk's Office, based on the very conduct for which she was terminated" and Board is seeking to introduce the evidence for "defensive purposes, namely to protect itself where [Wright] is now suing [Board] for damages."
¶6 On January 24, 2018, the trial court filed a "Notice of Decision" in which it overruled Board's motion for summary judgment finding "that there is substantial controversy as to material facts regarding the reason for terminating [Wright] and that a genuine issue exists to be decided by the trier of facts." Later in its pretrial order, the trial court granted judgment in Board's favor as a matter of law on Wright's § 1983 claim.
¶7 At trial, Wright introduced evidence and testimony supporting her claim of wrongful termination, which she claimed arose from being a whistleblower and reporting Harmon's allegedly duplicitous activity to the sheriff and the FBI. Board introduced evidence which it claimed supported Harmon's termination of Wright for embezzlement related to Wright's use and copying of index books from the County Clerk's office for personal gain related to Wright's landman business.
¶8 The jury returned a verdict finding in favor of Wright and against Board but assessing damages in the amount of $0. The trial court entered judgment accordingly. Both Wright and Board appeal.
STANDARD OF REVIEW
¶9 "The appellate standard of review in a motion for summary judgment is de novo. " Serra v. Estate of Broughton , 2015 OK 82, ¶ 16, 364 P.3d 637. We will examine the evidentiary materials "to determine if there is a substantial controversy as to the material facts." Id. We must view all inferences and conclusions to be drawn from the evidentiary materials "in the light most favorable to the nonmoving party." Id .
¶10 As to the jury's verdict, this Court is "not allowed to substitute our judgment for that of the jury merely because we would have decided or viewed disputed material fact questions differently than the jury." Badillo v. Mid Century Ins. Co. , 2005 OK 48, ¶ 3, 121 P.3d 1080. "Where competent evidence was presented at trial to support reasonable findings as to those material fact questions relating to the claim in suit and no reversible error is otherwise shown, an appellate court must affirm a judgment based on a jury verdict, not second-guess such judgment or the jury verdict upon which it is based." Id .
¶11 "A trial court has discretion in deciding whether proffered evidence is relevant and, if so, whether it should be admitted, and a judgment will not be reversed based on a trial judge's ruling to admit or exclude evidence absent a clear abuse of discretion." Myers v. Missouri Pac. R.R. Co. , 2002 OK 60, ¶ 36, 52 P.3d 1014.
¶12 The standard of review for reviewing jury instructions "considers the accuracy of the statement of law, the applicability of the instructions to the issues when the instructions are considered as a whole, and above all, whether the probability arose that jurors were misled and reached a different conclusion due to an error in the instruction." Cimarron Feeders, Inc. v. Tri-Cnty. Elec. Coop., Inc. , 1991 OK 104, ¶ 6, 818 P.2d 901.
ANALYSIS
I. The Jury Verdict
A. Internal Inconsistency
¶13 In her first proposition of error, Wright asserts, "The Verdict Must Be Set Aside As Internally Inconsistent" because the jury found in her favor but awarded no damages. Wright cites Sharp v. Whitworth , 2017 OK CIV APP 40, ¶ 9, 401 P.3d 763, which states in part:
However, "when liability is established, and there is compelling uncontroverted evidence of damages, a zero damage award is inconsistent." Clay v. Choctaw Nation Care Center, LLC , 2009 OK CIV APP 35, 210 P.3d 855 (emphasis in original). Similarly, "[a] failure to award any damages for pain and suffering where clearly proved, under proper instructions is in effect a finding of no liability." Hallford v. Schumacher , 1958 OK 53, 323 P.2d 989. Under these circumstances, the jury verdict would be inconsistent and invalid. Id.
Wright asserts the undisputed evidence showed she suffered approximately $19,000 in lost wages and additionally suffered emotional distress.
¶14 Board presented evidence suggesting Wright was using her position in the County Clerk's office for personal financial gain, so the evidence on the question of damages was not uncontroverted. Although Wright presented evidence of her damages, there was also evidence from which the jury could conclude she had suffered no loss in light of her financial gain from using county records in her landman business. The assessment of damages is clearly within the fact-finding province of a well-instructed jury and will not be set aside absent reversible error by the trial court. With these considerations, we will not reverse the trial court's refusal to find the verdict internally inconsistent.
¶15 Wright directs our attention to a question from the jury during deliberations. The jury asked, "If we the jury find in favor of the Plaintiff, Becky Wright do we have to give her $19,200.00 (or) do we have options?" The trial court responded: "You have heard all of the testimony, have all of the evidence, and the jury instructions from the trial to determine the amount of damages. The amount of damages that could be awarded the Plaintiff is at your sole discretion." Wright further reports that the bailiff told the trial court that the jury, upon being released, wanted to know if they had filled out the verdict form "wrong."
¶16 We conclude that the jury's question is not indicative of an internally inconsistent verdict. The jury's question could be read as asking if it had to award $19,200 or could it award less than that amount or none at all. "Broad discretion is given to the jury to determine the amount of damages." Fowler v. Lincoln Cty. Conservation Dist. , 2000 OK 96, ¶ 18, 15 P.3d 502. The trial court's response to the question was correct, and we see no error in the court's acceptance of the jury's verdict.
B. Criminal Convictions and 12 O.S.2011 § 2609(B)
¶17 Wright next asserts the admission of her stale criminal convictions from the 1990s was prejudicial error. She states she filed a motion in limine to exclude this evidence, but the trial court denied the motion . She says she "elected to attempt to minimize the prejudice by addressing the issue herself." She continues, "Of course [Board] elaborated on these convictions adducing that they were in four different counties," arguing she had difficulty getting a job due to "four felonies," stating she had been in jail and prison, and mentioning the convictions in closing argument.
Wright recites in her appeal brief in chief that the trial court denied her request to exclude "the ancient felony convictions," but granted the motion in limine as to her no contest plea and deferred sentence arising from embezzlement charges against her for appropriating property of the County Clerk for her own purposes. (Br. in chief at p. 2). Board contends in its answer brief that the trial court's order on the no contest plea was "unclear" and merely deferred the issue to trial to see if Wright "opened the door" to its admissibility. (Br. at p. 7). Board further states that the court on the second day of trial "unequivocally" ruled that any discussion or reference to the no contest plea was strictly off limits. (Br. at p. 9).
¶18 The trial court's decision on the motion in limine is not per se appealable. Myers v. Missouri Pac. R.R. Co. , 2002 OK 60, n. 66, 52 P.3d 1014. "The party against whom a liminal ruling is made must re-press the issue at trial and obtain a final order. Only the latter is appealable." Id . As a tactical decision, rather than waiting until Board introduced evidence of her convictions, Wright's attorney raised them in his opening statement and did not wait until the evidence was offered to renew his motion in limine or object to it.
¶19 Board argues the trial court correctly denied Wright's motion in limine because the probative value of the evidence of her 1990s' convictions supported by specific facts and circumstances substantially outweighed their prejudicial effect, as provided in 12 O.S.2011 § 2609(B). Board's argument posits that these convictions show why Wright was working as a landman while employed by the County Clerk and why she was using the land records in her private business.
¶20 As Board notes in its answer brief, the trial court denied this motion in limine off the record, so we cannot ascertain, as called for by § 2609(B), the "specific facts and circumstances" persuading the court of the evidence's substantial probative value. We must agree with Wright that, without the benefit of the trial court's on-the-record findings as to the "specific facts and circumstances" leading the court to allow evidence of 20-plus year-old convictions, which should "very rarely" be permitted, this would appear to fail the balancing test required to find the prejudicial effect outweighed by its probative value. We fail to see the probative value of introducing evidence of convictions to establish why Wright was working as a landman or why she was using County Clerk records in her landman business—the former question simply serves as a pretext to admit evidence of her stale convictions and the latter can be answered without reference to the convictions. This record leads us to conclude that denying this motion in limine and allowing admission of these "ancient" convictions was error.
The Oklahoma Court of Criminal Appeals in Croney v. State , 1987 OK CR 274, 748 P.2d 34, has determined that it is reversible error for the trial court to admit evidence of a defendant's previous convictions which were more than ten years old when the following occur:
First, the State failed to give advance written notice to the [defendant] that his stale convictions would be used for impeachment purposes. Second, the State failed to offer any, much less sufficient, specific facts and circumstances to satisfy their burden of proof that the probative value of the stale convictions substantially outweighed the prejudicial effect. Third, the trial court failed to conduct a balancing test to determine whether the probative value of the stale convictions substantially outweighed the prejudicial effect, and failed to support its admission of the stale convictions by identifying the specific facts and circumstances which determined its decision to admit the prior convictions which fell outside the ten (10) year limitation of Section 2609(B).
Id. ¶ 7. The Court stated specifically, "The trial court is further required to make a record and support its admission of the stale convictions by identifying the ‘specific facts and circumstances’ which determined its decision." Id. ¶ 12.
United States v. Beahm , 664 F.2d 414, 418 (4th Cir. 1981).
¶21 But even if this evidence should not have been admitted, Wright is not automatically entitled to reversal and a new trial. "Before any claimed error concerning the admission or exclusion of evidence will be deemed reversible error, an affirmative showing of prejudicial error must be made." Kahre v. Kahre , 1995 OK 133, ¶ 45, 916 P.2d 1355 ; see also 12 O.S.2011 § 2104(A) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected ...."). Our review leads us to conclude that Wright is not entitled to such a reversal when she advised the jury in opening statement of her convictions and did not protect her record by waiting for Board to offer the evidence and re-urging her meritorious objection. We are unable to conclude that any prejudice she might have suffered from this evidence requires reversal when she contributed to the error by raising it before the jury.
¶22 We must also add that it is difficult for us to find prejudicial error when the jury found in her favor on the issue of liability for wrongful termination. Although Wright argues that prejudice from this evidence "very likely influenced the jury to render an inconsistent verdict where they found for [Wright], but declined to award undisputed damages," we cannot agree. It cuts the argument too fine, and to some degree defies logic, to say the jury did not hold these convictions against her for purposes of liability, but did for purposes of setting damages. We will not reverse the judgment on this jury's verdict based on this record.
Because we reverse a portion of this case and remand for further proceedings, we caution that this issue may arise again and the trial court should be guided by our analysis of this question.
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C. Jury Instructions
¶23 Wright next asserts, "A major issue in the case was whether Ms. Wright had to prove that her whistleblower [sic ] was the ‘but for’ cause of her termination." She claims she proposed a modification to the OUJI instruction that would "delet[e] an erroneous part of the instruction which required the protected act to be the ‘but for’ cause of the termination." The trial court denied the request for modification, including a request made before the instructions were read, and the court read the OUJI instruction as written.
¶24 The instruction the trial court read was based on OUJI-CIVIL 21.9:
The evidence may show that Becky Wright was discharged for more than one reason. Becky Wright need not prove that her reporting the alleged fraudulent conduct of Cynthia Harmon, was the only reason she was discharged. Becky Wright must prove that her reporting the alleged fraudulent conduct of Cynthia Harmon to law enforcement was a significant factor in the decision of the County Clerk, Cynthia Harmon[,] to discharge her.
In order for you to decide that Becky Wright's reporting the alleged fraudulent conduct of Cynthia Harmon to law enforcement was a significant factor for Becky Wright's termination, you must determine whether Cynthia Harmon would have discharged Becky Wright, even if Becky Wright had not reported allegations of fraud to law enforcement, and everything else remained the same.
¶25 "A judgment will not be disturbed because of allegedly erroneous instructions, unless it appears reasonably certain that the jury was misled thereby." Johnson v. Ford Motor Co. , 2002 OK 24, ¶ 16, 45 P.3d 86. "The test of reversible error in instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered, if the alleged errors had not occurred." Id . The instruction is a correct statement of the law, and we will not reverse based on this instruction when the verdict on liability was in Wright's favor.
¶26 Wright's last jury instruction argument is that the trial court erred in denying her request to give an instruction "Defining The County As The Defendant." She states, "Because there was a persistent conflation of suing the county in the name of its board of commissioners, and suing the commissioners themselves," she proposed an instruction "to clearly identify Carter County, a governmental entity, as the Defendant in this case." Again, given the wrongful termination verdict in Wright's favor, we are not persuaded that the jury was misled or that Wright has shown prejudice on this issue.
II. Summary Judgment on Wright's § 1983 Claim
¶27 Wright also raises the trial court's decision to grant summary judgment on her 42 U.S.C.A. § 1983 First Amendment claim. The motion was initially denied on January 27, 2018. In the pretrial conference order filed April 20, 2018, however, the trial court stated, "Current [Defendant] not liable for § 1983 cause of action as a matter of law." Other portions of the order show Wright's First Amendment claims marked through with a line and the trial judge's initials written near those portions. Wright asserts that "the trial court sua sponte dismissed the First Amendment claim with only a cursory explanation." She states, "The contents of the Court's notes, particularly in light of the contrary holding regarding the state law whistleblower claim, indicates that the Court believed that the County could not be held liable for the actions of its [County] Clerk." She asserts that because Harmon had the authority to hire and fire her own deputies, her final decision-making authority was sufficient to hold Board liable for violating her First Amendment rights.
¶28 Title 42 U.S.C.A § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Federal courts apply the Garcetti/Pickering test to claims of retaliation for First Amendment speech under § 1983 :
"(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct." Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir.2009). The first three elements are issues of law for the court to decide, while the last two are factual issues typically decided by the jury. Id. But see Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty., 661 F.3d 477, 483-84 (10th Cir.2011) (affirming summary judgment for defendants where plaintiff could not meet evidentiary burden at the fourth step).
Trant v. Oklahoma , 754 F.3d 1158, 1165 (10th Cir. 2014). The trial court in this instance did not reach a determination of disputed facts on Wright's First Amendment claim, but concluded that Board could not be held liable for her § 1983 claim as a matter of law.
¶29 The United States Supreme Court in Monell v. Department of Social Services of City of New York , 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978), stated:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr.
Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970) : "Congress included customs and usages [in § 1983 ] because of the persistent and widespread discriminatory practices of state officials .... Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law."
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory .
(Emphasis added; footnotes omitted.) The Court went on to state:
We begin with the language of § 1983 as originally passed:
"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress ...." 17 Stat. 13. (emphasis added).
The italicized language plainly imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B "caused" A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent. See Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 602, 46 L.Ed.2d 561 (1976).
Id . at 691-92, 98 S. Ct. 2018, 2036-37 (emphasis added; footnote omitted). The Court concluded "that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Id . at 694, 98 S. Ct. 2018, 2037. The Court explained, "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id . at 694, 98 S. Ct. 2018, 2037-38.
¶30 In Seifert v. Unified Government of Wyandotte County/Kansas City , 779 F.3d 1141, 1159 (10th Cir. 2015), the United States Court of Appeals for the Tenth Circuit said:
A local government is not liable for every constitutional violation by one of its officers or employees. "Under Section 1983, municipalities cannot be held liable for the actions of others under the common law principle of respondeat superior; they are responsible only for their own actions." Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281, 1284 (10th Cir.2007). Under this standard, "a municipality is responsible for both [1] actions taken by subordinate employees in conformance with preexisting official policies or customs and [2] actions taken by final policymakers, whose conduct can be no less described as the ‘official policy’ of a municipality." Id. at 1285 (emphasis omitted); see Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (municipal liability can arise from those "whose acts or edicts may fairly be said to represent official policy" (internal quotation marks omitted)).
The Seifert Court, however, concluded the defendant sheriff could subject the county to potential liability because "it appears that the actions of Sheriff Ash, in his position as the final policymaker for the Wyandotte County Sheriff's Department, represent the official policy of the Unified Government." Id .
¶31 "A municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff." Hinton v. City of Elwood, Kan. , 997 F.2d 774, 782 (10th Cir. 1993). A plaintiff must show the following to establish municipal liability: "1) the existence of a municipal policy or custom, and 2) that there is a direct causal link between the policy or custom and the injury alleged." Id . According to the Tenth Circuit Court of Appeals:
A municipal policy or custom may take the form of (1) "a formal regulation or policy statement"; (2) an informal custom "amoun[ting] to ‘a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law’ "; (3) "the decisions of employees with final policymaking authority"; (4) "the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers' review and approval"; or (5) the "failure to adequately train or supervise employees, so long as that failure results from ‘deliberate indifference’ to the injuries that may be caused." Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir.2010) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) and City of Canton v. Harris, 489 U.S. 378, 388-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ) (internal quotation marks omitted).
Bryson v. City of Oklahoma City , 627 F.3d 784, 788 (10th Cir. 2010).
¶32 Title 19 O.S.2011 § 161(1) defines "County officer" for purposes of compensation, expenses and related matters as "the county clerk, county commissioner, county assessor, district court clerk, county treasurer and county sheriff." Section 162 provides, "Subject to the approval of the county excise board, every county officer shall appoint such regular and special deputies as are essential to the performance of the duties of office in an efficient manner and shall fix their salaries and compensation." 19 O.S.2011 § 162. Section 162 further states:
It shall be the responsibility of the board of county commissioners to cause such job descriptions and salary levels to be established. The county officer shall annually make request for appropriation for payment of salaries, traveling expenses, supplies and equipment and other needs for performing his official duties. The board of county commissioners and the county excise board shall annually appropriate amounts that will enable a county officer to hire and keep capable deputies, provide their instruction, provide sufficient supplies and equipment for the county officer and his deputies, provide reimbursement for traveling expenses for the county officer or deputies whose assignments require expenditures therefor, or provide a monthly travel allowance for the county officer in lieu of reimbursed expenditures for travel within this state.
19 O.S.2011 § 162.
¶33 As a county officer, Harmon is in the category of "those whose edicts or acts may fairly be said to represent official policy" for Carter County. Monell v. Department of Soc. Servs. of City of New York , 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978). As a result, Wright may be able to show in support of her § 1983 claim that there was an official policy or custom in Harmon's decision to terminate her because Harmon had final policymaking authority. In short, it was error to grant Board's motion for summary judgment as a matter of law on Wright's § 1983 claims.
III. Board's Counter-Appeal
¶34 In its counter-appeal, Board asserts error arising from two motions in limine and jury instructions. Board asserts none of Wright's propositions of error necessitates a new trial and asks us to consider its propositions of error only if reversible error results in granting a new trial. It says, "If this Court does not order a new trial based on any of [Wright's] Propositions of Error, [Board] requests that the Court dismiss its appeal at [Board's] request." Having found no basis for ordering a new trial on the issue tried to the jury, we will not address Board's propositions of error and will dismiss its counter-appeal.
CONCLUSION
¶35 We conclude Wright has failed to show prejudicial error in the trial court's admission of evidence, instructions to the jury, or acceptance of the jury verdict. However, summary judgment on Wright's claim of retaliation for exercise of her First Amendment rights pursuant to 42 U.S.C. § 1983 must be reversed, and we remand for further proceedings solely on the § 1983 issues. Because no new trial on Wright's wrongful termination claim is warranted, we dismiss Board's counter-appeal.
¶36 DISMISSED IN PART, AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS.
THORNBRUGH, P.J., and FISCHER, J. (sitting by designation), concur.