Bumbales v. City of Vandalia, Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

WILLIAM PARKER, et al.,1 )

)

Plaintiffs, )

)

v. ) No. 2:18 CV 13 JMB

)

CITY OF VANDALIA, MISSOURI,2 et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Presently pending before the Court is Defendants’ Motion for Summary Judgment. (ECF

No. 75) Plaintiffs William Parker ("Parker") and William Jones ("Jones") (collectively

"Plaintiffs") filed an opposition (ECF No.87) and Defendants filed a reply thereto. (ECF No. 97)

The motion is fully briefed and ready for disposition. All matters are pending before the

undersigned United States Magistrate Judge with the consent of the parties, pursuant to 28 U.S.C.

§ 636(c). Based upon a review of the file, record and proceedings herein, and for the reasons

stated, the Court grants Defendants’ motion for summary judgment.

According to the allegations in the Second Amended Complaint ("SAC") (ECF No. 41),

Plaintiffs were police officers employed by Defendant City of Vandalia, Missouri ("Vandalia"), a

fourth-class city located in Audrain County, Missouri. (Id. at ¶¶ 4, 22-23) At the time of the events

1 On January 2, 2019, the Court dismissed with prejudice Plaintiff Raymond Bumbales (ECF No.

49).

2 Defendants are City of Vandalia, Missouri, Christopher Hammann, Gabriel Jennings, Robert

Dunn, John Weiser, Dempsey Dixon, Ralph Kuda, Deborah Hopke, Ramon Barnes, Janet Turner,

Teresa Wenzel, Donald Elkins, and W. Alan Winders (collectively "Defendants").

giving rise to the instant action and the filing of the SAC, Chase Waggoner ("Waggoner")3 was

the city administrator of Vandalia and Defendant Christopher Hamman ("Hamman") was the

Vandalia Chief of Police. (Id. at ¶¶ 5-6) Defendants Gabriel Jennings ("Jennings"), Robert Dunn

("Dunn"), and Dempsey Dixon ("Dixon") were former Vandalia aldermen. (Id. at ¶¶ 7-8, 10)

Defendants John Weiser ("Weiser"), Janet Turner ("Turner"), Teresa Wenzel ("Wenzel"), Ramon

Barnes ("Barnes”), and Deborah Hopke ("Hopke") were current Vandalia aldermen. (Id. at ¶¶ 9, 11-

15) Defendant Ralph Kuda was the mayor of Vandalia. (Id. at ¶ 17) Defendant W. Alan Winders

("Winders") served as the interim City Administrator following Waggoner’s termination. (Id. at ¶

18) Defendant Donald Elkins ("Elkins") was a Vandalia police officer. (Id. at ¶ 19)

In the SAC, Plaintiffs assert claims against Vandalia in Count V, against all Defendants

except Elkins in Count IV, and against Hammann and Elkins in Counts VI and VII, and Parker

asserts a claim against Vandalia in Count I and against all Defendants except Elkins in Count III.4

Parker alleges a Title VII discrimination claim against Vandalia (Count I) and a discrimination

claim against all Defendants except Elkins (Count III), arguing that Defendants discriminated and

retaliated against him based on his national origin, in violation of the Missouri Human Rights Act

("MHRA"). (ECF No. 41, SAC at ¶¶ 132-34) Plaintiffs allege a § 1983 claim (Count IV) against

all Defendants except Elkins, arguing that Defendants violated their liberty interest and

constitutional rights by terminating them, failing to protect their good names, and denying them

due process by depriving Plaintiffs a meaningful opportunity to be heard at their termination

hearing. (Id. at ¶¶ 139-44) Plaintiffs allege a § 1983 claim (Count V) against Vandalia. Plaintiffs

also allege a defamation claim (Count VI) and a malicious prosecution claim (Count VII) against

3 On April 15, 2020, Waggoner filed a separate motion for summary judgment (ECF No. 69).

4 Count II contains a claim by only Bumbales. (SAC at ¶¶126-29)

Hammann and Elkins, arguing that they made false and defamatory statements, and caused them

to be maliciously prosecuted. (Id. at ¶¶ 158-63, 166-73)

I. Factual Background

The facts are taken from the SAC, Defendants’ Statement of Uncontroverted Material Facts

(ECF No. 76), Plaintiffs' Response thereto and Additional Facts in Dispute (ECF No. 86), and

Defendants’ Reply and Response to Plaintiffs' Statement of Additional Facts. (ECF No. 98) To

resolve the motion for summary judgment, the Court has considered only those facts that are

material and relevant, and the facts are viewed in the light most favorable to Plaintiffs.

Plaintiffs filed a Response to twenty-five of the one hundred forty-three paragraphs of

Defendants’ Statements of Uncontroverted Material Facts. See ¶¶ 25, 42, 44-45, 48, 50, 52, 58,

60, 63, 66-72, 82-86, 104, 108, and 141. Local Rule 4.01(E)5 provides with respect to summary

judgment motions:

A memorandum in support of a motion for summary judgment shall have

attached a statement of uncontroverted material facts, set forth in a

separately numbered paragraph for each fact, indicating whether each fact

is established by the record, and, if so, the appropriate citations. Every

memorandum in opposition shall include a statement of material facts as to

which the party contends a genuine dispute exists. Those matters in dispute

shall be set forth with specific references to portions of the record, where

available, upon which the opposing party relies. The opposing party also

shall note for all the disputed facts the paragraph number from movant’s

listing of facts. All matters set forth in the statement of the movant shall be

deemed admitted for purposes of summary judgment unless specifically

controverted by the opposing party.

5 This local rule "exists to prevent a district court form engaging in the proverbial search for a

needle in the haystack. Courts have neither the duty not the time to investigate the record in search

of an unidentified genuine issue of material fact to support a claim or a defense." Libel v.

Adventure Lands of America, Inc., 482 F.3d 1028, 1032 (8th Cir. 2007) (internal quotation and

citation omitted).

E.D. Mo. L.R. 4.01(E) (“Local Rule 4.01(E). As a result of Plaintiffs' failure to submit

responses to ¶¶ 25, 42, 44-45, 48, 50, 52, 58, 60, 63, 66-72, 82-86, 104, 108, and 141,

Plaintiffs have not met the requirements of Local Rule 4.01(E), and are deemed to have

admitted the facts set forth in those paragraphs. Turner v. Shinseki, 2010 WL 2555114, at

*2 (E.D. Mo. June 22, 2010)(citing Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168

(E.D .Mo. 1999), aff’d 232 F.3d 907 (8th Cir. 2000)), cert. denied, 531 U.S. 877 (2000).

Plaintiffs have attempted to create a genuine dispute of material facts by

supplementing the record with a statement of thirty-six additional facts in dispute (ECF

No. 86), most of these facts are controverted by Defendants and unsupported by the record

and some are admitted by Defendants.6 (ECF No.98) Specifically, Local Rule 4.01(E)

requires that the opposing party cite the paragraph number from the movant's listing of

facts for all disputed facts. E.D. Mo. L.R. 4.01(E). Plaintiffs have not cited authority for

submitting additional facts as opposition to a summary judgment motion nor has this

Court's research found any authority. Neither the Federal Rules of Civil Procedure, not

this Court's Local Rules, make any provision for the submission of additional facts by a

party opposing a motion for summary judgment.

The Court addresses the parties' arguments regarding Plaintiffs’ Statement of Additional

Facts and finds that Plaintiffs asserted factual disputes are either not supported by the record cited

by Plaintiffs; immaterial and ineffective for purposes of establishing a genuine issue of material

6 Defendants admitted the statement of additional facts set forth in ¶¶ 1, 2 (in part), 4, 12, 13, 14

(in part), 17, 18, 20, 21, 22, 24, 25 (in part), 26, 27, 28, 29, 32, 33, 34, and 35.

fact precluding the entry of summary judgment; and/or rely on exhibits stricken from the record

in the July 28, 2020, Order.7

The Court, therefore, accepts the following facts as true for purposes of resolving the

motion for summary judgment. Plaintiffs were previously employed by Vandalia, a fourth-class

city located in Audrain County, Missouri, as part-time police officers with the Vandalia Police

Department.8 ((ECF No. 41, SAC at ¶¶ 4, 42-43) Parker and Jones were at-will employees. (Jones

Depo. at 202; Parker Depo. at 18) Jones completed the scheduling for the police department.

(Jones Depo. at 22)

Hammann served as the part-time Chief of Police of the Vandalia Police Department from

December 15, 2016, to January 16, 2017. (SAC at ¶ 6; Hammann Depo. at 21) Bumbales was

employed as a police officer with the Vandalia Police Department, and he applied for the Chief

position at the same time as Hammann. (SAC at ¶ 41. Bumbales Depo. at 31) Parker felt that

Bumbales should have been hired over Hammann. (Parker Depo. at 207) Bumbales was upset

when he was not hired as Chief, and he expressed his unhappiness. (Bumbales Depo. at 71) Parker

and Jones discussed Hammann’s hiring and agreed that Hammann lacked the experience to be

Chief. (Parker Depo. at 35, 37; Jones Depo. at 36)

7 On July 28, 2020, the Court granted Defendants’ motion to strike summary judgment exhibits

16, 17, 22, 25, and 26 and ordered the exhibits stricken from the record.

8 Under Missouri law, fourth-class city police officers are considered at-will employees governed

by the appointive officer provision of § 79.240, Mo. Rev. Stat. See Armer v. City of Salem, 861

F.2d 514, 515-16 (8th Cir. 1988) (explaining that "the Missouri courts have consistently interpreted

§ 79.240 to include police officers as appointee officers…. [and] treated fourth-class city police

officers as ‘appointive officers’ within the meaning of 79.240. ") (citing Amaan v. City of Eureka,

615 S.W.2d 414 (Mo. banc 1981)).

Jennings, Dunn, and Dixon are former Vandalia aldermen. (SAC at ¶¶ 7, 8, and 10)

Weiser, Turner, Wenzel, Barnes, and Hopke are current Vandalia aldermen. (Id. at ¶¶ 9, 11, 12,

13, 14, and 15) Kuda is the Mayor of Vandalia. (Id. at ¶ 17) Waggoner is the former Vandalia

City Administrator. (Id. at ¶ 5) Following Waggoner’s termination, Winders served as the interim

City Administrator. (Id. at ¶ 18) Elkins is a police officer with the Vandalia Police Department.

(Id. at ¶ 19)

Parker is of Polish ancestry and heritage.9 Parker testified that Waggoner discriminated

against him based on his national origin by making Polish jokes while acting as City Administrator,

and no other actions by Waggoner or anyone at Vandalia were taken because of his national origin.

(Parker Depo. at 25, 149) In the SAC, Parker alleges that Waggoner "regularly told Polish jokes

on numerous occasions" in front of Parker and other employees. (Id. at ¶¶ 24, 25, 47, 58; Parker

Depo. at 25) Parker and Bumbales approached Jones in October or November, 2016, about

Waggoner’s Polish comments. (Jones Depo. at 25-26, Parker Depo. at 23, SAC at ¶ 72) 10 Parker

testified that Hammann, Jennings, Dunn, Weiser, Dixon, Turner, Wentzel, Barnes, Hopke, Kuda,

and Winders did not discriminate against him based on his national origin.11 (Id. at 153-54, 156)

In late December 2016 or early January 2017, Jones told Waggoner and Kuda that Parker

and Bumbales had filed, or planned to file, EEOC claims. (SAC at ¶ 72; Jones Depo. at 43) At

that same meeting, Jones told Kuda and Waggoner that he would be filing a EEOC claim as well,

9 Jones is not Polish. (Jones Depo. at 60)

10 Defendants cite to page 43 of Parker’s deposition but did not attach page 43. The Court finds

that pages 25-26 of Parker’s deposition support this factual assertion.

11 Parker also testified that Jennings, Dunn, Weiser, Turner, Wenzel, Barnes, Hopke, Kuda, and

Winders did nothing to damage his standing in the community or his professional reputation.

(Parker Depo. at 174, 178)

out of fear of retribution by Vandalia, Kuda, Waggoner, and Hammann. (SAC at ¶ 72) Jones did

not report Waggoner’s alleged Polish comments to Kuda until after he knew that Hammann had

been named police chief. (Jones Depo. at 43-44) Although Parker was aware that the Vandalia

Police Department had a grievance system,12 he did not file a grievance regarding Waggoner’s

Polish comments. (Parker Depo. at 27, 29) Jones was aware that the Vandalia Police Department

had a grievance system and an anti-harassment policy. (Jones Depo. at 151-52) Since 2008, until

the day he was fired, Jones set the schedule for the Vandalia police department. (Id. at 22)

In a January 13, 2017, letter of reprimand, the city attorney outlined her investigation of

allegations contained in a written complaint by a former employee regarding, in part, the issue of

Waggoner joking with a member of the police department regarding his national heritage and

making the officer feel offended and harassed by the jokes. (Defts’ Exh. 9 at 6-9)

Bumbales submitted his EEOC complaint to Kuda on January 6, 2017, after the time he

learned that Hammann had been hired as the new Chief, not him. (Bumbales Depo. at 33, 69)

On January 10, 2017, Parker issued Hammann a citation for failing to register his motor

vehicle. (SAC at ¶ 94; Parker Depo. at 53-54) Before issuing the ticket, Parker discussed issuing

the ticket with Bumbales and Jones. (Parker Depo. at 57-58)

On January 11, 2017, Bumbales issued Hammann a citation for failing to register his motor

vehicle. (Bumbales Depo. at 102; Defts’ Exh. 11) Jones was aware that Bumbales was issuing

this ticket to Hammann, and Bumbales and Parker discussed issuing tickets to Hammann. (Jones

Depo. at 51, 56)

12 Vandalia’s grievance system is set forth in the Vandalia City Code, Article VII. (Defts’ Exh.

12)

On January 12, 2017, Bumbales issued Waggoner separate tickets for not properly affixing

license plates to his vehicle and for failure to remove an abandoned camper on a state road.

(Bumbales Depo. at 75, 92-93; Defts’ Exh. 11) Thereafter, Bumbales realized that he should not

have issued the second ticket because the camper was not parked on a state road. (Bumbales Depo.

at 94-95) Prior to writing this ticket, Bumbales discussed the ticket with Jones. (Id. at 95)

On January 16, 2017, the part-time positions with the Vandalia Police Department held by

Parker, Jones, and Bumbales were eliminated. (SAC at ¶¶ 75-77; Parker Depo. at 68) Jones

admitted that he had heard about the possibility of restructuring of the police department, and based

on his conversation with Hammann, Jones had no concerns about the restructuring. (Jones Depo.

at 63) Parker acknowledged that Jones’ position with the police department was eliminated even

though Jones did not have any Polish ancestry or heritage. (Parker Depo. at 70) Parker testified

that he could not speak about whether the decision to eliminate his position had anything to do

with his Polish ancestry and heritage because he did not know Waggoner well enough. (Id.) Parker

admitted that the Vandalia police force needed more full-time police officers and that he could not

work as a full-time officer because he had another full-time job. (Parker Depo. at 46-47) Jones

also acknowledged that he could not work as a full-time Vandalia police officer. (Jones Depo. at

62)

Waggoner made the decision, not Hammann, to eliminate the part-time police officer

positions and move to have more full-time officer positions. (Waggoner Depo. at 75) Waggoner’s

plan was to eliminate all part-time positions in the police department, and although the other part-

time officer positions were not terminated at that time because these officers were not scheduled

to work, these positions would have been eventually terminated. (Id. at 98, Hammann Depo. at

24, 54) Waggoner explained to Parker that the elimination of his position had nothing to do with

his performance, but that the police department wanted more full-time officers. (Parker Depo. at

66-67) Waggoner explained to Jones that the elimination of his position was because Vandalia

wanted to move away from part-time officer positions. (Jones Depo. at 61)

Waggoner, as the City Administrator, believed he had the authority over all departments in

Vandalia, including the Police Department, subject to the oversight and approval of the City

Council. (Id. at 15-16) Waggoner also believed that he had the authority to eliminate positions

with consultation of Hammann, but Hammann did not have the authority to eliminate positions or

terminate employees. (Waggoner Depo. at 98-99) Vandalia does not believe that Waggoner had

the authority to eliminate positions. (Defts’ Exh. 7)

On January 17, 2017, Bumbales as the Police Chief for the City of Farber, Missouri, issued

Hammann tickets for traveling 47 miles per hour in a 45 mile an hour zone and for failure to have

proof of insurance. (Bumbales Depo. at 111-13; Defts’ Exh. 13)

On January 20, 2017, the Vandalia Board of Alderman voted to rescind the decision to

eliminate the part-time officer positions and placed Parker, Jones, and Bumbales on paid

administrative leave, pending an independent investigation into the events surrounding the

elimination of their positions. (Defts’ Exh. 8) The unanimous vote by the Board of Alderman

included “Aye” votes by Jennings, Dixon, Weiser, Turner, and Dunn, as well as non-defendant

Doug Bontz. (Id. at 2-3) Parker and Jones were paid from January to April 12, 2017, while on

administrative leave. (Parker Depo. at 17; Jones Depo. at 74)

Elkins began working as a Vandalia police officer on January 31, 2017, after Parker, Jones,

and Bumbales were placed on paid administrative leave. (Elkins Depo. at 14-15) Elkins did not

know anyone on the Vandalia Police Department, and Hammann asked him to conduct an internal

affairs investigation, which involved issues regarding evidence storage and time sheet

irregularities, including allegations that Plaintiffs forged time sheets. (Hammann Depo. at 65-68,

72) Elkins opined that, based on his law enforcement experience and Vandalia’s pattern and

practice as understood by him, officers were to call into the radio to report on and off duty status.

(Id. at 32) Hammann was not involved in Elkins’ investigation and did not direct him to look at

anyone specifically. (Id. at 72) Elkins investigated Parker, Jones, and Bumbales as part of his

investigation, but he never interviewed any of the plaintiffs or the former Police Chief Justin

Landis (“Landis”).13 (Elkins Depo. at 17, 28-30) Elkins’ investigation revealed that both Parker

and Jones’ time sheets, pay stubs, and radio dispatch logs did not match up. (Id. at 27) Elkins’

investigation also showed that Parker and Jones’ work product did not match the hours they

claimed to have worked and that Parker had fraudulently claimed 47.25 hours and Jones had

fraudulently claimed 474 hours. (Id. at 41, Defts’ Exh. 9)

Parker testified that Hammann’s decision to order an investigation into his employment

stigmatized his standing in the community, but he agreed that no one has the right not to be

investigated in his employment.14 (Parker Depo. at 165, 167) Elkins’ investigation revealed that

Parker had neglected his duty as an officer by having 116 derelict reports in the system, and he

had engaged in conduct unbecoming of an officer by creating a public disturbance outside of a

City Council meeting by verbally berating one officer and flipping off another officer. (Defts’

Exh. 9) Elkins’ investigation further revealed that Jones engaged in conduct detrimental to good

order and discipline by failing to properly send a rape kit for testing and allowing it to sit in the

13 Landis served as the Vandalia Police Chief during the period when Plaintiffs were alleged to

have forged their time sheets.

14 Parker also testified that having Hammann sitting in his vehicle on a public street outside of his

house caused stigma to his standing in the community, but he conceded that he contributed to this

alleged stigma by providing statements to the newspaper. (Parker Depo. at 165-66, 169, 171)

evidence vault for ten years, and he neglected his duty as an officer by completing only 32 reports

in a ten-month time period. (Id. at 4-5) Elkins’ investigation showed no evidence of wrongdoing

by Bumbales. Parker acknowledged that he was not logged into the dispatch radio although he

claimed these hours. (Parker Depo. at 102) Jones averred that he failed to call into the radio and

report himself on and off duty. (Jones Depo. at 5) Parker testified that Elkins damaged his standing

in the community by sending a probable cause statement to the Montgomery County prosecuting

attorney that resulted in the felony charges being filed. (Parker Depo. at 179)

After the resolution of the independent investigation on March 1, 2017, the Board of

Aldermen unanimously voted to remove Parker, Jones, and Bumbales from administrative leave

but then all three officers were placed back on administrative leave, pending a second

investigation. (Defts’ Exh. 8 at 4) The Vandalia Board of Alderman also removed Waggoner

from his position as City Administrator on March 1, 2017. (Id. at 4)

Based on the findings of Elkins’ investigation, the Board of Alderman, except for Jennings,

voted to terminate Parker and Jones’ employment on April 12, 2017. (SAC at ¶¶ 28-29; Defts’

Exh. 8 at 4) The Board terminated Jones and Parker for conduct unbecoming of a Vandalia police

officer, conduct detrimental to the good order and discipline of the police department, and neglect

of duty as a police officer. (Defts. Exhs 10-5, 10-8) Parker and Jones sought and received an

informal hearing with Winders. (SAC at ¶ 83) During that hearing, Parker and Jones were told

the reasons for their terminations. (Parker Depo. at 83; Jones Depo. at 77)

The Board reinstated Bumbales’ employment but Bumbales resigned on April 15, 2017.

(Id.; Bumbales Depo. at 143, 145; Defts’ Exh. 10)

On March 20, 2017, Parker filed a Charge of Discrimination against Vandalia with the

Missouri Commission on Human Rights (“MCHR”), naming Vandalia as the only respondent and

alleging claims of racial discrimination related to his national origin and retaliation. (Defts’ Exh.

20 at 6) Parker listed January 16, 2017, as his latest instance of discrimination, and he did not

check the box marked “Continuing Action.” (Id.) The charge also stated that Parker was

reprimanded, had hours changed to less desirable hours, was denied a pay raise, and discharged

without reason. (Id.) On August 23, 2017, the EEOC issued Parker a right-to-sue letter. (Id. at 4)

On November 7, 2017, the MCHR issued Parker a Notice of Right to Sue. (Id. at 1)

On August 14, 2017, the Montgomery County prosecuting attorney filed felony charges

against Parker and Jones, relating to the falsification of timecards. (SAC at ¶ 88; Parker Depo. at

90; Jones Depo. at 80; Pltfs’ Exhs. 20 and 21) The criminal complaints involved allegations of

forgery between May 19 and October 12, 2016, as to Parker, and between March 17 and November

9, 2016, at to Jones. (Pltfs’ Exhs. 20 and 21) Parker acknowledged that the ultimate decision of

whether to file charges is made by prosecuting attorney. (Id. at 179-80) The forgery allegations

stemmed from Plaintiffs’ time sheets not corresponding with the hours logged into the dispatch

system. (Pltfs’ Exhs.13-14, 20-21; Elkins Depo. at 26-33) These criminal charges15 were pending

for two weeks and then dismissed without prejudice on August 28, 2017. (Parker Depo. at 193;

Jones Depo. at 83-84; Exhs. 14 and 15) Hammann testified that he did not have any conversations

with the prosecuting attorney about either Parker or Jones. (Hammann Depo. at 73) Parker

testified that he paid $5,000 to a bondsman for his bond, and he did not get back that money.

(Parker Depo. at 242) Although Jones posted a $50,000 cash bond and his bond money was

returned to him, he lost the use and interest of this money while the bond existed. (Parker Depo.

at 85-86)

15 Although Elkins originally submitted probable cause statements for misdemeanor stealing

charges, the prosecuting attorney returned the probable cause statements and directed Elkins "to

file five counts of forgery on each one. " (Elkins Depo. at 24)

At the time the felony charges were filed, Parker and Jones both worked for the Missouri

Department of Corrections ("MDOC"). After the felony charges were filed, MDOC placed both

on paid administrative leave. (SAC at ¶¶ 112-113; Parker Depo. at 105, Jones Depo. at 89) Before

this administrative leave, Parker had been suspended five times during his employment at MDOC.

(Parker Depo. at 109-10) Although no one ever told Parker that he was passed over for promotions

at MDOC because of the filing of the felony charges, Parker claims, based on his subjective belief,

that he was passed over for promotions because of the filing of the felony charges. (Id. at 107-08)

In January 2017, Parker accepted a voluntary demotion with MDOC and admitted this demotion

had nothing to with the anything related to this lawsuit. (Id. at 112-13) When Parker resigned

from his MDOC job, he indicated that he was leaving "to take advantage of a once-in-a- lifetime

opportunity." (Id. at 114)

Jones also claims that the filing of the felony charges contributed to him not receiving a

promotion for a warden position at MDOC. (Jones Depo. at 90-92) Before being promoted to

deputy warden at MDOC, Jones had been suspended for a few months as well as a one-day

suspension in September 2018. (Id. at 94-95) MDOC terminated Jones a couple of months after

the September suspension, and he acknowledged that no one at MDOC told him his termination

had anything to do with the filing of criminal charges. (Id. at 98, 100) An October 15, 2018,

termination letter attributed Jones’ termination to being lax in filling vacancies in supervisory

positions and addressing deficiencies under his control. (Id. at 100; Exh. 16) Jones is currently

employed with the Louisiana, Missouri Police Department, and has been since nine to twelve

months after leaving his employment with Vandalia. (Id. at 107)

Jones alleges that Hammann caused damage to his standing in the community and

professional reputation because, as his supervisor, Hammann should have known what was

happening with the investigation that resulted in his arrest and because of conversations Hammann

allegedly had with third parties when Jones was not present. (Id. at 126-27, 129) Jones alleges

that Jennings caused damages to his standing in the community and professional reputation by

Jennings personally telling Jones that an investigation was taking place. (Id. at 133, 135) As to

Dunn, Weiser, Turner, Barnes, and Dixon, Jones alleges that Dunn’s voting to suspend and later

terminate him caused damage to Jones’ standing in the community and personal reputation.16 (Id.

at 137-39, 141-43) Jones alleges that Wenzel and Hopke caused damages to his standing in the

community and professional reputation by voting to terminate him. (Id. at 141-42, 143) Jones

alleges that Kuda discussed the ongoing investigation loud enough for others to hear, but Jones

cannot identify anyone overhearing Kuda. (Id. at 147-48) Jones alleges that Winders caused

damage to his standing in the community and professional reputation by not going into enough

detail during the meeting explaining why he was terminated and for not looking into Vandalia’s

internal affairs investigation. (Id. at 148, 150)

As to Parker’s defamation claim against Hammann and Elkins, Parker asserts that his claim

rests on the statements made about him during the internal affairs investigation, but he

acknowledges that these statements were made within the police department as part of police

business. (Parker Depo. at 183-84) Parker admitted that he does not know if Hammann or Elkins

made any specific statements about him to the Vandalia City Council. (Id. at 188) Parker also is

not aware any statements Hammann and Elkins made about him to the local sheriff’s office,

Vandalia’s insurance agency, the Missouri Highway Patrol Division of Drug and Crime Control,

or to the Montgomery Country Prosecutor, other than statements included in the probable cause

16 As to Dixon, Jones alleged that Dixon shared this information with his wife, but Jones admitted

that he was not aware of Dixon’s wife sharing this information with anyone else. (Id. at 139-40)

statement used to file the criminal charges and filed as part of an official law enforcement

investigation. (Id. at 188-92; Exh. 21)

With respect the newspaper articles, Parker provided an interview, information, and several

quotes for a January 25, 2017, Vandalia Leader article. (Parker Depo. at 95, 234-55; Defts’ Exh.

17) Parker and Jones agree that Hammann did not make any statements about them in that article.

(Parker Depo. at 96; Jones Depo. at 157; Defts’ Exh. 17)

On April 2, 2017, the Hannibal Courier Post published a newspaper article. (Defts’ Exh.

19) The newspaper article discussed how Hammann claimed retaliation after Bumbales, a former

part-time Vandalia policeman and current volunteer Farber Police Department police chief, issued

a pair of traffic citations, one for going two miles over the speed limit and the other for failing to

produce proof of insurance. Id. The article also discussed citations issued to Waggoner17 for

related to an unregistered motor home parked on his property, and that Waggoner and Hammann

felt "targeted for retaliation because of the police department staffing positions." Id.

On August 25, 2017, the St. Louis Post Dispatch published an article concerning Plaintiffs'

felony prosecutions in Montgomery County. (Parker Depo. at 99-100; Defts’ Exh. 18) The article

does not contain any statements from either Hammann or Elkins. (Parker Depo. at 100-01; Defts’

Exh. 18)

17 In the SAC, Plaintiffs allege that Parker issued Hammann a citation for failing to register his

motor vehicle. (ECF No. 94) In January 2017, Bumbales placed a 48-hour warning on an

improperly parked recreational vehicle, indicating that the owner had 48 hours to move the vehicle

or be ticketed. (Id. at ¶ 96) "The recreational vehicle actually belonged to Defendant Waggoner."

(Id. at ¶ 97) After Waggoner failed to move the recreational vehicle within the 48-hour time

period, Bumbales attempted to have the vehicle towed but the tow truck driver could not obtain

the keys to move the recreational vehicle. (Id. at ¶¶ 98-100) Bumbales then issued Waggoner a

citation for the improperly parked and inoperable recreational vehicle. (Id. at ¶ 104)

As to Jones’ defamation claim, although Jones alleges that Hammann made comments to

newspapers, he was unable to identify any specific comments during his deposition. (Jones Depo.

at 152, 155) Other than his statements contained in the probable cause statement submitted to a

prosecutor, Jones was unaware of any allegedly defamatory statements Elkins made about him.

(Id. at159-60; Exh. 22) Jones acknowledged that Elkins’ statements contained in the probable

cause statement were made in the scope of his law enforcement work. (Id. at 160)

II. Motion for Summary Judgment and Responsive Briefs Thereto

In support of their motion for summary judgment (ECF No.75), Defendants contend that

the undisputed material facts establish the following conclusions:

Count I - Vandalia - Parker failed to exhaust his administrative remedies as to any portion

of his claim occurring after March 23, 2017, and he failed to state a claim of hostile work

environment and retaliation against Vandalia;

Count III – Vandalia, Hammann, Jennings, Dunn, Weiser, Dixon, Kuda, Hopke, Barnes,

Turner, Wenzel, and Winders – Parker failed to exhaust his administrative remedies as to

any portion of his claim occurring after March 23, 2017, he failed to state a claim of hostile

work environment and retaliation, and he failed to show any individual liability;

Count IV - Plaintiffs failed to state a prima facie case of a stigma-plus claim or a claim for

due process violations because Plaintiffs were at-will employees, and Hammann, Jennings,

Dunn, Weiser, Dixon, Kuda, Hopke, Barnes, Turner, Wenzel, Winders, and Elkins are

entitled to qualified immunity;

Count V - Vandalia is entitled to summary judgment on Plaintiffs’ Monell municipal

liability claim because there is no underlying constitutional violation inasmuch as Vandalia

had a policy and Plaintiffs cannot show a pattern and practice;

Count VI – the alleged defamatory statements made by Elkins and Hammann were made

in the course of a police investigation and therefore privileged; and

Count VII - Hammann and Elkins are entitled to summary judgment on Plaintiffs’

malicious prosecution claim because there was no action terminated in their favor.

In opposition (ECF No. 87), although Plaintiffs rely on many of their additional facts that

have been controverted by Defendants, the Court may ignore the controverted facts when ruling

on the summary judgment motion. Parker argues that he exhausted his administrative remedies

against Vandalia as to his termination and has supported hostile work environment claim. Parker

also argues that he exhausted his administrative remedies against Defendants. Both Plaintiffs

argue that Defendants violated their due process rights because Defendants failed to a provide a

name-clearing hearing after their termination and the reasons for their dismissals, and Defendants

are not entitled to qualified immunity. Next, Plaintiffs contend that they have proven a defamation

claim against Hammann and Elkins based on the false probable cause statements regarding their

time sheets published to the prosecuting attorney. Lastly, Plaintiffs argue that they have

established a malicious prosecution claim by Hammann and Elkins.

In Reply (ECF No. 97), Defendants largely reiterate the arguments and positions outlined

in their motion.

III. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant summary

judgment if all of the information before the court shows "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. See

Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986). The movant "bears the initial responsibility

of informing the district court of the basis for its motion," and must identify "those portions of

[the record] ... which it believes demonstrate the absence of a genuine issue of material fact."

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A party asserting that a fact cannot be genuinely

disputed must support the assertion by "materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ.

P. 56(c)(1)(A). Material facts are those "that might affect the outcome of the suit under the

governing law," and a genuine material fact is one "such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In response, the nonmovant "must do more than simply show that there is some

metaphysical doubt as to the material facts," and must come forward with "specific facts showing

that there is genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87 (1986). In order to survive a motion for summary judgment, "the nonmoving

party must substantiate his allegations with sufficient probative evidence [that] would

permit a finding in his favor based on more than mere speculation, conjecture, or fantasy."

Barber v. C1Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011). Therefore, "if

a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as

to any element of the cause of action, then summary judgment is appropriate." Anderson, 477 U.S.

at 256.

In considering motions for summary judgment, courts view the facts in the light most

favorable to the nonmoving party. Torgerson, 643 F.3d at 1042 (quotations and internal citations

omitted). But that requirement applies "only if there is a genuine dispute as to those facts." Id.

"A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party

who has the burden of persuasion at trial does not present sufficient evidence as to any element of

the cause of action, then summary judgment is appropriate." Pederson v. Bio-Medical App. of

Minn. 775 F.3d 1049, 1053 (8th Cir. 2015) (quoting Brunsting v. Lutsen Mountains Corp., 601

F.3d 813, 820 (8th Cir. 2010)). Further, if the nonmoving party has failed to "make a showing

sufficient to establish the existence of an element essential to that party’s case, ... there can be ‘no

genuine issue as to any material fact,’ since a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts immaterial." Celotex,

477 U.S. at 322-23.

IV. Discussion

A. The Title VII Claim (Count I) – Vandalia

1. Exhaustion

Parker argues that his failure to file a new Charge of Discrimination relating to his

termination should be disregarded because he was first terminated on January 17, 2017. Although

Parker is correct that his job was eliminated, on January 17, 2017, that decision was rescinded by

the Board of Alderman, and he was placed on paid administrative leave pending an independent

investigation into the events surrounding the elimination of his position. On April 12, 2017, the

Board of Alderman, except for Jennings, voted to terminate Parker and Jones’ employment.

On March 23, 2017, Parker filed a Charge of Discrimination against Vandalia with the

MCHR, naming Vandalia as the only respondent and alleging claims of racial discrimination

related to his national origin and retaliation. Parker lists January 16, 2017, as his latest instance of

discrimination, and he did not check the box marked "Continuing Action." The charge also stated

that Parker was reprimanded, his hours changed to less desirable hours, he was denied a pay raise,

and was discharged without reason.

A plaintiff seeking relief under Title VII must exhaust his remedies before bringing suit in

federal court by, in part, timely filing an administrative charge with the EEOC or a state or local

agency with the authority to seek relief. 42 U.S.C. § 2000e-5(e)(1). The text of the statute on

exhaustion provides:

A charge under this section shall be filed within one hundred and eighty days after

the alleged unlawful employment practice occurred and notice of the charge

(including the date, place and circumstances of the alleged unlawful employment

practice) shall be served upon the person against whom such charge is made within

ten days thereafter.

Id.

"A termination is a discrete act, not a continuing violation." Huston v. Wells Dairy, Inc.,

(8th Cir. 2009). Discrete acts such as termination, failure to promote, denial of transfer, or refusal

hire are each an incident of discrimination and each retaliatory adverse employment decision

constitutes a separate actionable unlawful employment practice. Id. The "termination occurs – and

thus triggers the start of the limitations period – on the day it happens." Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 115 (2002). The termination "day is when the employer notifies the

employee of the decision to terminate [his or] her employment." Id. (citations omitted). "Each

discrete act is a different unlawful employment practice for which a separate charge is required."

Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012) (per curiam); Morgan, 536

U.S. at 1113-14 (a discrete act of discrimination constitutes a separate actionable employment

practice, and each discrete act starts a new clock for filing charges based upon it).

Here, Parker filed his EEOC charge on March 23, 2017, against Vandalia. After Parker

filed his charge, the Board of Alderman voted to terminate his employment, effective April 12,

2017, for conduct unbecoming of a Vandalia police officer, conduct detrimental to the good order

and discipline of the police department, and neglect of duty as a police officer based on the findings

of Elkins’ investigation. The record shows that Parker never filed a new charge related to his April

12, 2107, termination. See Morgan, 536 U.S. at 114 (plaintiff required to file a new EEOC charge

for any discrete discriminatory or retaliatory act after the date of the original charge) On August

23, 2017, the EEOC issued Parker a right-to-sue letter, and on November 7, 2017, the MCHR

issued Parker a Notice of Right to Sue. Accordingly, all federal claims related to any allegations

after March 23, 2017, including the April 12, 2017, termination are beyond the scope of the EEOC

charge of discrimination.18

2. Hostile Work Environment and Retaliation

Parker contends that he was subjected to a hostile work environment and retaliation due

his national origin.

Title VII makes it unlawful for employers to discriminate against any individual "with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).

A. Hostile Work Environment

Parker alleges only Waggoner, in his capacity as City Administrator, made Polish jokes in

his presence more than ten times during his employment, and he reported Waggoner’s comments

to Jones, his supervisor.

18 In Morgan, the Court acknowledged an exception to its bar on the consideration of

discriminatory actions that occur outside the statutory period, but solely for hostile work

environment claims. Morgan, 536 U.S. at 117. "A charge alleging a hostile work environment

claim … will not be time barred so long as all the acts which constitute the claim are part of the

same unlawful employment practice and at least one act falls within the time period." Id.

"Hostile environment claims are different in kind from discrete acts. Their very nature

involves repeated conduct." Morgan, 536 U.S. at 115 (citation omitted). "The ‘unlawful

employment practice’ … cannot be said to occur on any particular day. It occurs over a series of

days or perhaps years and in direct contrast to discrete acts, a single act of harassment may not

be actionable on its own." Id. (citation omitted). Because "incidents constituting a hostile work

environment are part of one unlawful employment practice, the employer may be liable for all

acts that are part of this single claim." Id. at 118. As a result, to submit a timely charge, "the

employee need only file a charge within 180 … days of any act that is part of the hostile work

environment." Id.

"Hostile work environment occurs ‘[w]hen the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’" Jackman v. Fifth Judicial

Dist. Dep’t of Corr. Servs., 728 F.3d 800, 805 (8th Cir. 2013) (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)). To prevail on his claim of hostile work environment due to his national

origin, Plaintiff must show: (1) membership in a protected group; (2) the occurrence of unwelcome

harassment; (3) a casual nexus between the harassment and their membership in the protected

group; (4) that the harassment affected a term, condition, or privilege of employment; and (5) that

the employer knew or should have known of the harassment and failed to take prompt and effective

remedial action. See Banks v. John Deere & Co., 829 F.3d 661, 667 (8th Cir. 2016). If any

essential element of this prima facie case is not supported by specific facts sufficient to raise a

genuine issue for trial, the Court must grant summary judgment to Defendants. Grant v. City of

Blytheville, 841 F.3d 767, 773 (8th Cir. 2016).

"The standards for a hostile environment are demanding, and conduct must be extreme and

not merely rude or unpleasant to affect the terms and conditions of employment." Blomker v.

Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016). When evaluating a hostile environment, the court

should look at the totality of the circumstances, "whether such conduct was physically threatening

or humiliating as opposed to a mere offensive utterance, and whether the conduct unreasonably

interfered with the employee’s work performance." Id. at 1057. "A plaintiff must establish that

discriminatory intimidation, ridicule, and insult permeated the workplace." Wilkie v. Dep’t of

Health & Human Servs., 638 F.3d 944, 953 (8th Cir. 2011). "Title VII does not, however, create

a cause of action for all unpleasant or abusive behavior in the workplace. " Hathaway v. Runyon,

132 F.3d 1214, 1221 (8th Cir. 1997).

In sum, the challenged conduct here includes the elimination of his part-time position and

comments made by Waggoner regarding Parker’s Polish ancestry. "More than a few isolated

incidents are required,’ and the alleged harassment must be ‘so intimidating, offensive, or hostile

that it poisoned the work environment.’" Blomker, 831 F.3d at 1057 (quoting Scusa v. Nestle

U.S.A. Co., 181 F.3d 958, 967 (8th Cir. 1999)). "[M]erely rude or unpleasant" conduct [is]

insufficient "to affect the terms and conditions of employment." Alvarez v. Des Moines Bolt

Supply, Inc., 626 F.3d 410, 420 (8th Cir. 2010).

Parker satisfies the first prong as he is of Polish ancestry, and the Court will assume,

without deciding, that Parker has established the second prong. Nonetheless, Parker has not

advanced any facts from which the Court can find a basis to establish the third prong – that the

harassment resulted from his membership in a protected class.

Waggoner made the decision to eliminate the part-time police officer positions held by

Parker, Jones, and Bumbales and move to more full-time officers. Waggoner explained to Parker

that the elimination of his position had nothing to do with his performance but that the police

department was moving towards having more full-time officers. Parker admitted that Vandalia

police force needed more full-time police officers, but he could not work full-time for Vandalia

because he was already working another full-time job. Parker testified that he does not know if

the decision to eliminate his part-time position has anything to do with his Polish ancestry.

Likewise, Jones’ part-time position with the police department was eliminated even though Jones

did not have any Polish ancestry or heritage.

Parker offers no evidence to substantiate his claim – he only offers speculation that the

part-time officer positions were eliminated on account of his Polish ancestry. To survive a motion

for summary judgment, however, Parker must substantiate his allegations with sufficient probative

evidence that would support a finding in his favor "based on more than mere speculation,

conjecture, or fantasy." Clay v. Credit Bureau Enters., Inc., 754 F.3d 535, 539 (8th Cir. 2014)

(internal quotation marks and citations omitted). Because Parker does not support his allegations

with any probative evidence to show that the alleged actions were based on his national origin, he

has failed to establish a prima facie case of hostile work environment.

Further, Parker’s position was not actually eliminated because the Board of Alderman

rescinded Waggoner’s decision immediately and placed Parker on paid administrative leave

pending an investigation. It is undisputed that Parker was on paid leave from January to April 12,

2017. Thus, Parker’s placement on paid administrative leave did not constitute an adverse

employment action. Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, (8th Cir. 2005) (holding that

the plaintiff did not suffer an adverse employment action by being placed on administrative leave

pending an investigation). On the record, therefore, the Court cannot find Parker suffered an

adverse employment action, and as a result, his discrimination claim necessarily fails.

As to Waggoner’s inappropriate comments and/or jokes, Parker testified that Waggoner

made over ten inappropriate comments during his employment, but he did not identify any of the

comments with specificity or quote the comments. In late 2016, Parker and Bumbales approached

Jones in October or November 2016, about Waggoner’s Polish comments but Jones waited until

late December or early January to report Waggoner’s comments to his supervisors. Once reported,

Vandalia reprimanded Waggoner for his comments. Parker admitted that he did not file a written

grievance for Vandalia to address, despite knowing that Vandalia had a grievance policy.

Parker likewise cannot satisfy the fifth prong as the evidence does not show that Vandalia

failed to take prompt and effective remedial action once Vandalia became aware of Waggoner’s

comments. To determine whether the harassment affected a term, condition, or privilege of a

plaintiff’s employment, the court must consider the totality of the circumstances, including the

severity of the conduct, whether it is physically threatening or humiliating, and whether is

unreasonably interferes with the plaintiff’s job performance. Sellers v. Deere & Co., 791 F.3d

938, 945 (8th Cir. 2015). The Eight Circuit observed that "[t]he Supreme Court has cautioned

courts to be alert for workplace behavior that does not rise to the level of actionable harassment."

Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th Cir. 2005). Here, the complained-of

conduct, while inappropriate and sometimes embarrassing for Parker, cannot be said to have

affected a term, condition, or privilege of employment.

Furthermore, these incidents do not support a finding that Parker endured severe,

persuasive work conditions that a reasonable person would find hostile or abusive because the

comments were relatively infrequent. The Eighth Circuit has required much more severe and

pervasive conduct than that alleged in this case. Ottman v. City of Independence, 341 F.3d 751,

760 (8th Cir. 2003) (reversing the denial of summary judgment and "conclude[ing] the district

court erred in finding a triable issue for the jury” where a coworker made sexist and belittling

comments to, about, and around plaintiff “on a weekly, if not daily, basis."). See, e.g., Bainbridge

v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004) (finding racial remarks, made directly

to plaintiff, once a month for two years by owner and operators, was insufficient to render the

workplace objectively hostile); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981)

("More than a few isolated incidents of harassment must have occurred. Racial comments that are

merely part of the casual conversation, are accidental, or are sporadic do not trigger Title VII’s

sanctions."). See also Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349. 352, 354

(8th Cir. 1997) (upholding hostile work environment claim where the plaintiff had been subjected

to "a steady barrage of racial name-calling at the [defendant’s] facility"); Ways v. City of Lincoln,

871 F.2d 750, 754-55 (8th Cir. 1989) (upholding a finding of hostile work environment where the

plaintiff identified approximately fifty examples of racial harassment). Accordingly, Vandalia is

entitled to summary judgment on Parker’s hostile work environment claims.

B. Retaliation

Parker also alleges he was retaliated against for reporting Waggoner’s anti-Polish

comments, including being terminated, being scheduled less hours, and not receiving a pay raise.

Title VII prohibits employers from retaliating against employees from engaging in activity

that is protected under Title VII. 42 U.S.C. §§ 2000e-3(a) and 2000e-16(a). A claim of retaliation

pursuant to Title VII is not based upon discrimination, but instead upon "an employer’s action to

punish an employee who makes a claim of discrimination." Haas v. Kelly Servs., Inc., 409 F.3d

1030, 1037 (8th Cir. 2005). Plaintiff "first must demonstrate a prima facie case of retaliation to

survive summary judgment." See Jackson v. UPS, Inc., 643 F.3d 1081, 1088 (8th Cir. 2011). To

meet this burden, Parker must show that: 1) he engaged in a protected activity; 2) Vandalia

subsequently took an "adverse employment action" against him; and 3) there was a causal

connection between the protected activity and the adverse employment action. Id. The anti-

retaliation provision "protects an individual not from all retaliation, but from retaliation that

produces an injury or harm." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

The Eighth Circuit has held that to be materially adverse, retaliation cannot be trivial; it

must produce some "injury of harm" and it has found that commencing performance evaluations,

or sending a critical letter that threatened "appropriate disciplinary action," or falsely reporting

poor performance, or "lack of mentoring and supervision" were actions that did not establish a

prima facie case of retaliation, absent showing of materially adverse consequences to the

employee. Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 644 (8th Cir. 2009).

If Parker cannot show a causal link between his protected conduct and the adverse

employment action, summary judgement is proper. Erenberg v. Methodist Hosp., 357 F.3d 787,

793 (8th Cir. 2004). Here, Vandalia argues, and the undisputed evidence shows, that there was no

adverse employment action and no casual connection exists between Parker reporting Waggoner’s

comments and any adverse employment action against him.

"An adverse employment action is defined as tangible changes in working conditions that

produces a material employment disadvantage, including but not limited to, termination, cuts in

pay or benefits, and changes that affects an employee’s future career prospects, as well as

circumstances amounting to a constructive discharge." Jackman, 728 F.3d at 804. "However,

minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause

no materially significant disadvantage, do not rise to the level of an adverse employment action."

Id.

First for the reasons already discussed, Parker cannot establish a prima facie case as to his

part-time position being eliminated. Likewise, although Parker alleges that Waggoner changed his

schedule, the record shows that Jones, not Waggoner, set the schedule for the police officers.

As to his retaliation claim regarding the denial of a pay raise by Waggoner, the only support

for this claim is the allegations in the SAC. (ECF No. 41 at P 73) Parker cites no evidence in the

record in support of this allegation, and he has not submitted the allegation in a verified complaint.

The unsworn and unsupported allegation regarding the denial of a pay raise by Waggoner named

in the unverified SAC and as repeated in Parker’s response to the summary judgment motion do

not constitute competent evidence that can be used to defeat a motion for summary judgment.

Stockdall v. TG Investments, Inc., 2015 WL 9489615, *879 (E.D. Mo. Dec. 30, 2015) ("The Court

cannot rely on unsworn statements at summary judgment. "); Country Mut. Ins. Co. v. Omicron

Capital, LLC, 2015 WL 1894997, at * 7 (E.D. Mo. Apr. 27, 2015) ("A party’s unsworn and

unsupported allegations do not constitute competent evidence that can be used to defeat a motion

for summary judgment. "); Williams v. Donahoe, 2014 WL 6083133, at *3 (E.D. Mo. Nov. 13,

2014) (rejecting the plaintiff’s statements because he "did not file a verified complaint, and he has

submitted no affidavit or other declaration under penalty of perjury that would support these

statements"). Accordingly, Vandalia is entitled to summary judgment on Parker’s retaliation

claims.

B. The MHRA Claims (Count III) – all Defendants except Elkins

1. Termination

In Count III, Parker claims that all Defendants, excluding Elkins, committed discriminatory

acts that subjected him to a hostile work environment based on his national origin, in violation of

the MHRA.

As a general rule, a plaintiff cannot sue a defendant under the MHRA without first

exhausting his administrative remedies by filing a discrimination charge with the MCHR against

that defendant. Mo. Rev. Stat. § 213.075(1). This charge must be filed within 180 days of the

allegedly discriminatory act and must state "the name and address of the person alleged to have

committed the unlawful discriminatory practice." Id.

Likewise, it is well-settled that the issuance of a notice of right-to-sue letter by the MCHR

is a prerequisite to brining a lawsuit under the MHRA. See Public Sch. Ret. Sys. Of Sch. Dist. Of

Kansas City v. Mo. Comm’s on Human Rights, 188 S.W.3d 35 (Mo. Ct. App. 2006). The MHRA

expressly provides that the MCHR must issue a notice of right-to-sue letter to the complainant

“indicating his or her right to bring a civil action within ninety days of such notice against the

respondent named in the [administrative] complaint.” Mo. Rev. Stat. § 213.111(1).

On March 23, 2017, Parker filed a Charge of Discrimination with the MCHR, alleging

claims of racial discrimination related to his national origin and retaliation. (Exh. C, Parker MCHR

documents) The undisputed record shows that he never filed an amended charge of discrimination

after being terminated on April 12, 2017, and he did not indicate a continuing action on his charge.

On November 7, 2017, the MCHR issued a Notice of Right to Sue.

. According to the statute of limitations, only those allegedly unlawful employment acts

occurring 180 days prior to filing his March 23, 2017, charge, were subject to administrative

exhaustion through the charge. Tisch v. DST Sys., 368 S.W.3d 245, 255 (Mo. Ct. App. 2012)

(applying Morgan to conclude that complaints of demotion, denial of transfer, and failure to

promote were all discrete acts of discrimination under MHRA not subject to the continuing

violation theory).

For the reasons discussed earlier, Parker has failed to exhaust his administrative remedies

with respect to his termination by failing to file another charge relating to his April 12, 2017,

termination. Therefore, Parker can only bring a cause of action for events that occurred 180 days

prior to filing his March 23, 2017, charge.

2. Hostile Work Environment

Parker contends that he was subjected to a hostile work environment and retaliation based

on his national origin.

The MHRA’s prohibition against employment discrimination "includes within its scope …

generalized claims of discrimination based on a course of conduct,” such as claims based on hostile

work environment." Fuchs v. Dep’t of Rev., 447 S.W.3d 727, 731 (Mo. Ct. App. 2014). "A

successful claim of hostile work environment discriminatory harassment requires proof that: (1)

the plaintiff is a member of a group protected by the MHRA; (2) the plaintiff was subjected to

unwelcome protected group harassment; (3) the plaintiff’s membership in the protected group was

a contributing factor in the harassment; (4) a term, condition, or privilege of the plaintiff’s

employment was affected by the harassment. " Id. at 732. The conduct must be sufficiently severe

or pervasive, "both as it was subjectively viewed by the plaintiff and as it would be objectively

viewed by a reasonable person." Alhalabi v. Mo. Dep’t of Nat. Resources, 300 S.W.3d 518, 527

(Mo. Ct. App. 2009). In assessing the hostility of an environment, courts look to the totality of the

circumstances. Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 245 (Mo. Ct. App. 2006).

There is no dispute that Parker has established the first part of his claim.

The undisputed evidence before the Court demonstrates that Parker cannot satisfy the

MHRA requirements for several reasons. Waggoner made the decision to eliminate the part-time

police officer positions held by Parker, Jones, and Bumbales and move to have more full-time

officer positions. Waggoner explained to Parker that the elimination of his position had nothing

to do with his performance and that the police department wanted more full-time officers. Parker

admitted that Vandalia police force needed more full-time police officers, but he could not work

full-time for Vandalia because he was already working another full-time job. Parker testified that

he does not know if the decision to eliminate his part-time position had anything to do with his

Polish ancestry. Likewise, Jones’ part-time position with the police department was eliminated

even though Jones did not have any Polish ancestry or heritage. In fact, Parker offers no evidence

to substantiate his claim – he only offers speculation that the part-time officer positions were

eliminated on account of his Polish ancestry. Moreover, the Board of Alderman rescinded

Waggoner’s decision to eliminate the part-time officer positions and placed Parker on paid

administrative leave. Indeed, Parker remained on paid leave even after he filed his charge of

discrimination.

Parker’s claims against all individual Defendants except Elkins must fail because Missouri

cases have only allowed for individual liability under the MHRA when the individuals "directly

oversaw or were actively involved in the discriminatory conduct." Hill v. Ford Motor Co., 277

S.W.3d 659, 669 (Mo. banc. 2009); Brady v. Curators of Univ. of Mo., 213 S.W.3d 101, 113 (Mo.

Ct. App. 2006) (individual supervisors allegedly participated in the age discrimination and

retaliation); Reed v. McDonald’s Corp., 363 S.W.3d 134, 139 (Mo. Ct. App. 2012).

Here, Parker testified that Hammann, Jennings, Dunn, Weiser, Dixon, Turner, Wentzel,

Barnes, Hopke, Kuda, and Winders did not discriminate against him based on his national origin.

Accordingly, the record is devoid of any factual support of discrimination by any of these

individual Defendants.

As to Parker’s MHRA retaliation claim, § 213.070 makes it an unlawful discriminatory

practice to "retaliate or discriminate in any manner against any other person because such person

has opposed any practice prohibited by this chapter." To establish a prima facie case of retaliation

under the MHRA, a plaintiff must prove that: (1) he complained of discrimination; (2) the

employer took adverse action against him; and (3) a causal relationship existed between the

complaint and the adverse action. Cooper, 204 S.W.3d at 245. Further, there must be a showing

the complaint of discrimination was a "contributing factor" to the employer’s adverse employment

action. Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 383 (Mo. banc. 2014).

Here, Parker cannot state a prima facie case of retaliation because he cannot show an

adverse action taken against him. The record shows that his part-time police officer position was

not eliminated because the Board of Alderman rescinded that decision and placed Parker on paid

administrative leave. Accordingly, Defendants’ motion for summary judgment will be granted as

to this claim.

C. Section 1983 Claims (Count IV) – all Defendants except Vandalia

1. Due Process

In Count IV, Plaintiffs assert a liberty interest in protecting their good names, and allege

that they were denied procedural due process because Defendants failed to provide a name-clearing

hearing.

At the conclusion of the second investigation, Vandalia, through its Board of Alderman,

terminated Plaintiffs on April 12, 2017. Plaintiffs requested a hearing to review their terminations,

and during the hearing, Vandalia informed Plaintiffs they were terminated due to falsified

timecards and conduct detrimental to the police department.

As explained above, both Plaintiffs were at-will employees of Vandalia, a fourth-class city.

((ECF Nos. 35 at 11 and 76 at ¶¶ 11-12) As such, Plaintiffs had no property interest in their jobs

protected by the due process clause and could be discharged for any reason or no reason at all. Id.;

Cooper v. City of Creve Coeur, 556 S.W.2d. 721, 717 (Mo. Ct. App. 1977).

Title 42 of the United States Code, § 1983 allows an individual to bring suit against persons

who, under color of state law, have caused him to be "depriv[ed] of any rights, privileges, or

immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. In order

to state a claim pursuant to § 1983, a plaintiff must allege two essential elements: (1) that a right

secured by the Constitution or laws of the United States was violated; and (2) that the alleged

violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

42, 48 (1988). If a defendant is being sued for acts or omissions that occurred while he was acting

as an employee of a state or local government, then that defendant is presumed to be a state actor

for § 1983 purposes. Id. at 49 (stating that "state employment is generally sufficient to render the

defendant a state actor"). "A public employee is deprived of his liberty interest in connection with

a discharge only when it occurs under circumstances which impose upon the employee a stigma

or other disability foreclosing his freedom to take advantage of other employment opportunities."

Green v. St. Louis Housing Auth., 911 F.2d 65, 69 (8th Cir. 1990).

Plaintiffs rely on Vandalia Police Department General Order (“General Order”) (ECF No.

86-15) in support of their procedural due process claim. The General Order provides for dismissal

of an officer for any action, "which in the opinion of the chief of Police is serious enough in nature

to warrant such action." (Id. at 2) That provision provides that, if the officer feels his dismissal

has been for unfair reasons, he shall have the right to appeal to the City Administrator who has the

final decision.

Here, the Board of Alderman, not the Police Chief, terminated Plaintiffs on April 12, 2017.

Accordingly, the provisions in the General Order regarding dismissal do not apply to Plaintiffs’

termination. Plaintiffs’ reliance on the General Order in support of their procedural due process

claim is without merit. Furthermore, in support of their assertions, Plaintiffs rely on exhibits

stricken by the Court – emails chains between counsel and an affidavit from their attorney. (ECF

No. 101) Plaintiffs cannot rely on the stricken exhibits to create a genuine issue of material fact

precluding summary judgment.

Moreover, Plaintiffs have not identified any acts of the individual Defendants that allegedly

deprived them of their due process rights, triggering the need for a name clearing hearing. Indeed,

Plaintiffs have failed to identify any comments made by any Defendant at the time of their

termination that would be actionable and would have triggered a name clearing hearing. Liability

under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of

rights. Madewall v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780

F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff fails to allege

defendant was personally involved in or directly responsible for incidents that injured plaintiff);

Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondent superior theory inapplicable in § 1983

suits). In their SAC, Plaintiffs indicate that Vandalia and Kuda acted to ratify the actions of the

other Defendants, and that Winders attended the April council meeting resulting in Plaintiffs’

terminations.19 But Plaintiffs fail to provide specific factual assertions indicating that the

Defendants named in Count IV were directly involved in or personally responsible for the alleged

violations of their constitutional rights. Rather, Plaintiffs lump Defendants together, without

attributing specific actions to specific Defendants. Because Plaintiffs fail to identify the action

taken by the individual Defendants triggering their right to due process, Defendants are entitled to

summary judgment on their liberty interest claim.

2. Stigma-Plus Claim

Plaintiffs next argue that they have proven their stigma-plus claim because Defendants

defamed their reputation in connection with their termination. Plaintiffs also argue that Defendants

are not entitled to qualified immunity.

"An employee's liberty interests are implicated where the employer levels accusations at

the employee that are so damaging as to make it difficult or impossible for the employee to escape

the stigma of those charges." Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899

(8th Cir. 1994). "The requisite stigma has generally been found when an employer has accused an

employee of dishonesty, immorality, criminality, racism, and the like." Id. Reputational harm

coupled with "some more tangible interests such as employment," can together be "sufficient to

invoke the procedural protection of the Due Process Clause." Id. at 701. See, e.g., Owen v. City

of Independence, Mo., 560 F.2d 925, 935 (8th Cir. 1977) ("In determining whether a government

employer has deprived its employee of a liberty interest in the termination of employment, the

crucial issue is whether the government employer, in connection with the termination, of the

19 General responsibility for supervisory responsibilities cannot establish personal involvement.

See, e.g., Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).

government employment, …, makes a charge which might seriously damage the employee's

standing and reputation in the community."), vacated and remanded on other grounds, 438 U.S.

902 (1978). This stigma must be established where the employee is accused of actions involving

"dishonesty, immorality, criminality, racism, or the like." Winegar, 20 F.3d at 899.

To state a stigma-plus claim, the plaintiff must allege that: (1) an official made a

defamatory statement20 that resulted in stigma; (2) the defamatory statement occurred during the

course of termination the employee; (3) the defamatory statement was made public; and (4) an

alteration or extinguishment of a right or legal status. Brown v. Simmons, 478 F.3d 922, 923 (8th

Cir. 2007).

a. Parker

Parker does not dispute that Jennings, Dunn, Weiser, Turner, Wenzel, Barnes, Hopke,

Kuda, and Winders did nothing to damage his standing in the community or his professional

reputation, leaving only claims against Hammann and Elkins. Parker asserts that Hammann and

Elkins made allegations that he committed a crime.

Although Parker testified that Hammann’s act of ordering an investigation into his

employment caused stigma to his standing in the community, he agreed that no one has the right

not be investigated. Parker also claimed that Elkins damaged his standing in the community by

sending the probable cause statement to the prosecuting attorney that resulted in felony charges

20 "For a defamatory statement to be actionable under § 1983, it must go beyond alleging conduct

by the plaintiff that fails to meet professional standards, and instead must damage [] a person's

standing in the community or foreclose[] a person's freedom to take advantage of other

employment opportunities." Crews v. Monarch Fire Prot. Dist., 771 F.3d 1085, 1092 (E.D. Mo.

2014) (internal quotations omitted). "The stigma must be significant, and it usually involves

allegations of dishonesty, immorality, criminality, or racism." Howard v. Columbia Pub. Sch.

Dist., 363 F.3d 797, 802 (8th Cir. 2004).

being filed but Parker agreed that ultimately it is the prosecuting attorney’s decision whether to

file charges. On the undisputed record, both of these claims fail to state a stigma-plus claim against

Elkins and Hammann.

Here, Parker fails to satisfy the second prong because he cannot show that any of the

alleged defamatory statements were made during the course of his termination. First, any

statement made during an ongoing internal affairs investigation was made prior to March 2, 2017.

Second, any statements contained in the probable cause statement were not made during the course

of his termination because the probable cause statement is signed on July 22, 2017. Parker also

fails to satisfy the third prong because the undisputed record shows that neither Hammann nor

Elkins made any public statements about the internal investigation. Likewise, Hammann’s

statement that Parker failed to meet the professional standards of a police officer is not actionable

under § 1983. Raposa v. Meade Sch. Dist. 46-1, 790 F.2d 1349, 1354 (8th Cir. 1986) (finding for

a defamatory statement to be actionable under § 1983, the statement must go beyond “alleging

conduct [by plaintiff] that fails to meet professional standard”). Accordingly, Parker has failed to

establish any defamatory statements made by either Hammann or Elkins that resulted in stigma, a

necessary element of his stigma-plus claim.

b. Jones

Jones alleges that Hammann caused damage to his standing in the community and

professional reputation because, as a supervisor, Hammann should have known what was going

on with Elkins’ investigation that resulted in his arrest as well as conversations Hammann

allegedly had with third parties when Jones was not present. This allegation fails as Jones failed

to identify any untrue statement made by Hammann during the course of Jones’ termination. By

requesting an internal affairs investigation, Jones cannot meet the standards for a stigma-plus claim

because this is not a public or defamatory statement. Likewise, although Jones testified that he

believed Hammann made statements to third parties, such statements were not alleged to have been

made during the course of his termination.

As to Elkins, Jones cannot meet the first prong inasmuch as the statements set forth in the

probable cause statement were not false as Jones admitted that he did not always call into the radio

and report himself on duty while working. Further, the probable cause statement is dated July 22,

2017, three months after Jones’ termination. Thus, Jones has not satisfied the second prong by

showing the statements were made during the course of his termination on April 12, 2107. Jones

also fails to meet the third prong because Elkins did not make the probable cause statement public.

As to Dunn, Weiser, Turner, Wenzel, Barnes, Jennings, and Hopke, Jones’s claim is based

on their votes as a city council members. But his claim fails to show that these Defendants made

any defamatory statement about Jones, resulting in stigma. Jones’ allegation that Jennings told

him about the ongoing investigation does not support his claim because the statement was

communicated directly to Jones and not to the public.

With respect to Winders, Jones claims that, during a meeting, Winders failed to tell him

why he was terminated, and that Winders failed to look into the underlying internal affairs

investigation. But these facts and circumstances do not involve any public statements by Winders.

Jones’ stigma-plus allegations also fall short relative to Kuda. Jones alleges that Kuda

spoke about the investigation loud enough for others to hear. But Jones admitted that he was not

aware of anyone who actually heard Kuda speaking. In fact, the statement was made during a

conversation between Kuda and Jones.

As to Dixon, Jones has failed to show a stigma-plus claim by Dixon voting to suspend and

then terminate him and sharing this information with his wife because taking a vote does not

establish Dixon made any defamatory statement about Jones, and Jones cannot show Dixon’s

statement to his wife was made in the course of his termination.

Further, Jones cannot meet the fourth prong of his stigma-plus claim against any of the

named Defendants because he cannot show an alteration or extinguishment of a right or legal

status. Jones testified that he had been working in a law enforcement position for nine to twelve

months after his termination. Likewise, Jones cannot show that his termination from MDOC was

related to his termination by Vandalia because when terminated by MDOC, MDOC cited his

failure to file vacancies in supervisory positions and to address operation deficiencies under his

control. At most, Jones claim is based on speculation and conjecture, and this ineffective for

purposes of establishing a genuine factual dispute. Barber, 656 F.3d at 801.

3. Qualified Immunity

Defendants in their individual capacity also argue that they are entitled to qualified

immunity from suit. "Government officials are entitled to qualified immunity, shielding them from

liability, unless the official’s conduct violated a clearly established constitutional or statutory right

of which a reasonable official would have known." Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir.

2014) (internal quotation marks and citations omitted). Dismissal on the basis of qualified

immunity "is inappropriate unless it appears beyond doubt [that the plaintiff] can prove no set of

facts in support of [his] constitutional claims which would entitle [him] to relief." Central Airlines,

Inc. v. United States, 138 F.3d 333, 334 (8th Cir. 1998) (internal quotations omitted).

"To overcome the defense of qualified immunity, a plaintiff must show: (1) the facts,

viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional

right or statutory right; and (2) the right was clearly established at the time of the deprivation."

Saylor v. Nebraska, 812 F.3d 637, 643 (8th Cir. 2016) (internal quotation and citation omitted).

As discussed, Plaintiffs have failed to prove the deprivation of a constitutional right.

Because Plaintiffs have failed to satisfy the first prong of qualified immunity, summary judgement

is granted to all named Defendants on this claim in Count IV. See Hawkins v. Gage City, 759

F.3d 951, 956 (8th Cir. 2014) (" [t]o deny the officers qualified immunity, [the court] must resolve

both questions in [the plaintiff’s] favor").

D. Section 1983 Claims (Count V) – only Vandalia

In Count V, Plaintiffs assert a § 1983 claim against Vandalia, arguing that the city did not

have a policy in place to report wrongdoings, crimes, or other policy violations.

"Section 1983 liability for a constitutional violation may attach to a municipality if the

violation resulted from (1) an official municipal policy; (2) an unofficial custom; or (3) a

deliberately indifferent failure to train or supervise." Atkinson v. City of Mountain View, 709

F.3d 1201, 1214 (8th Cir. 2013) (quotations marks and citations omitted). Municipalities may

only be held liable under § 1983 for injuries caused by their agents or employees on a theory of

vicarious liability like respondent superior. City of Canton v. Harris, 489 U.S. 378, 385 (1989).

The Eighth Circuit has repeatedly "recognized a general rule that, in order for municipal liability

to attach, individual liability first must be found on an underlying substantive claim." McCoy v.

City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005). "Without a constitutional violation by the

individual officers, there can be no 1983 or Monell" claim for municipal liability. Hayek v. City

of St. Paul, 488 F.3d 1049, 1055 (8th Cir. 2007).

Here, Plaintiffs have failed to show that any of the individual named defendants violated

their constitutional rights, thus Vandalia cannot be held liable "on either an unconstitutional policy

or custom theory or on a failure to train or supervisor theory." McCoy, 411 F.3d 922, 923

(dismissing plaintiff’s Monell claims against a municipality where there was no individual § 1983

liability against the officers); see also City of Canton, 489 U.S. at 485 ("[O]ur first inquiry in any

case alleging municipal liability under § 1983 is the question whether there is a direct causal link

between a municipal policy or custom and the alleged constitutional deprivation"). Because

Plaintiffs failed to prove any underlying constitutional violation by the individual defendants,

Vandalia may not be held liable. Whitney v. City of St. Louis, Mo., 887 F.3d 857, 861 (8th Cir.

2018) ("Absent a constitutional violation by a city employee, there can be no § 1983 or Monell

liability for the City.").

E. Defamation Claims (Count VI) – Hammann and Elkins21

In Count VI, Plaintiffs claim that Hammann and Elkins knowingly made defamatory

statements, causing a loss of reputation, respect, and professional standing.

Parker asserts that his defamation claim against Elkins is based on the probable cause

statement provided to the Montgomery County prosecuting attorney during the investigation into

Parker’s employment with the Vandalia Police Department. Parker argues that Elkins damaged

21 The sole basis for the Court’s jurisdiction over Plaintiffs’ remaining state-law claims is 28

U.S.C. § 1367(a), which permits a district court to exercise supplemental jurisdiction over claims

that are a part of the same controversy as the claims that fall within the district court’s original

jurisdiction. Under 28 U.S.C. § 1367(c)(3), the Court may, in its discretion, decline to exercise

supplemental jurisdiction over a claim if "the district court has dismissed all claims over which it

has original jurisdiction. " See Zutz v. Nelson, 660 F.3d 346, 359 (8th Cir. 2011). In determining

whether to exercise supplemental jurisdiction, the Court considers judicial efficiency,

convenience, and fairness to litigators. See Candor Corp. v. City of St. Paul, 912 F.2d 215, 221

(8th Cir. 1990). "[W]hen federal claims are dismissed before trial, the normal practice is to dismiss

pendent [state law] claims." Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir. 1981), overruled on

other grounds by Pinter v. Dahl, 486 U.S. 622, (1988); ACLU v. City of Florissant, 186 F.3d 1095,

1098-99 (8th Cir. 1999) (state law claims are typically "dismissed without prejudice to avoid

needless decisions of state law … as a matter of comity.") (internal quotation omitted). Courts

should "exercise judicial restraint and avoid state law issues wherever possible" Thomas v. Dickel,

213 F.3d 1023, 1026 (8th Cir. 2000) (internal quotations omitted), and the relevant factors typically

point toward declining to exercise supplemental jurisdiction. Carnegie-Mellon Univ. v. Cahill,

484 U.S. 343, 350 n.7 (1988). As a result, this Court could have declined to exercise supplemental

jurisdiction over this state law claim.

his standing in the community by sending the materially false statement made in the course of

police business. Although Jones alleges in the SAC that Hammann made defamatory comments

to newspapers, he fails to identify any specific comments in the newspaper attributed to

Hammann.22 Like Parker, Jones also alleges Elkins made defamatory statements in the probable

cause statement.

Under Missouri law, the elements of defamation are (1) publication (2) of a defamatory

statement (3) that identifies the plaintiff (4) that is false (5) that is published with the requisite

degree of fault, and (6) that damages the plaintiff's reputation. Overcast v. Billings Mut. Ins., 11

S.W.3d 62, 70 (Mo. 2000). Communications made in police reports which officers are required

to make by law are privileged from claims of defamation. See Doe v. City of Creve Coeur, 666

F.Supp.2d 988, 1002 (Mo. E.D. 2009), A showing of actual malice may overcome a qualified

privilege. Id. To support a finding of actual malice, plaintiff must show that the statements were

made "with knowledge that it was false or with reckless disregard of whether it was false or not."

New York Times v. Sullivan, 376 U.S. 254, 280 (1964); Rockwood Bank v. Gaia, 170 F.3d 833,

840 (8th Cir. 1999) (applying Missouri law); Bugg v. Vanhooser Holsen & Eftink, P.C., 152

S.W.3d 373, 377 (Mo. Ct. App.. 2004).

Here, Elkins’ statements contained in the probable cause statements are entitled to qualified

privilege as these statements were made in the course of police business and thus privileged from

22 Under Missouri law, a plaintiff must set forth specifically in his complaint the words and/or

statements which are alleged to be defamatory. See Nazeri v. Missouri Valley College, 860

S.W.2d 303, 313 (Mo. banc 1993). Jones has failed to state a claim for defamation under Missouri

law because the two newspaper articles upon which he relies do not allude to any defamatory

statements Hammann made about him. The SAC fails to set forth Hammann's allegedly

defamatory statements, and Jones could not identify any specific comments during his deposition.

See Missouri Church of Scientology v. Adams, 543 S.W.2d 776 (Mo. banc. 1953) (Missouri law

requires "a plaintiff complaining of defamation must specifically set forth in the complaint the

words which are alleged to be defamatory.").

any claim of defamation. The undisputed facts establish that the statements in the probable cause

statements were not false. Plaintiffs merely allege, without any factual support on the record, that

the statements contained in the probable cause statement regarding them fraudulently entering

timecards while employed by the Vandalia Police Department are materially false. Indeed, Parker

acknowledged that he was not logged into the dispatch radio although he claimed these hours, and

Jones averred that he failed to call into the radio and report himself on and off duty. Plaintiffs both

admitted that they failed to call into the radio to report for duty at the start and end of every shift.

The additional facts on which Plaintiffs rely are not supported by the deposition testimony they

cite so there is no support for the purported facts to establish that the probable cause statements

were materially false.

Based on his investigation, Elkins found that Plaintiffs’ timecards and radio dispatch logs

did not match. Elkins testified that an exception to reporting in the radio occurs when a police

officer is working deep undercover, but Plaintiffs do not assert that they were working undercover.

The record before the Court establishes that Elkins had reason to believe the statements contained

in the probable cause statements signed by him were true. Accordingly, Elkins and Hammann are

entitled to summary judgment on Plaintiffs’ defamation claims.

F. Malicious Prosecution (Count VII) – Hamman and Elkins

In Count VII, Plaintiffs assert a malicious prosecution claim against Hammann and Elkins

for causing felony charges to be filed against them.

On August 14, 2017, the Montgomery County prosecuting attorney filed felony charges23

against Parker and Jones relating to the falsification of timecards. The criminal complaints

involved allegations of forgery, stemming from Plaintiffs’ time sheets. These criminal charges

were pending for two weeks and then dismissed without prejudice on August 28, 2017.

Under Missouri law, "a plaintiff in a malicious prosecution action ‘must plead and prove

six elements: (1) the commencement of a prosecution against the plaintiff; (2) instigation by the

defendant; (3) termination of the proceeding in favor of the plaintiff; (4) the want of probable cause

for the prosecution; (5) [that] the defendant’s conduct was actuated by malice[;] and (6) that the

plaintiff was damaged." Cassady v. Dillard Dep’t Stores, 167 F.3d 1215, 1219 (8th Cir. 1999)

(internal quotation omitted). "Because malicious prosecution suits countervail the public policy

that the law should encourage citizens to aid in the uncovering of wrongdoing the courts require

strict compliance with the requisite elements." Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806

(Mo. banc 1984).

To prevail on their claim for malicious prosecution, Plaintiffs must prove the underlying

criminal prosecution terminated in their favor.

"For purposed of malicious prosecution, an underlying action is deemed terminated when:

(1) a final judgment is entered on the merits; (2) the action is dismissed by the court with prejudice;

or (3) the action is abandoned." Doyle v. Crane, 200 S.W.3d 581, 589 (Mo. Ct. App. 2006)

(emphasis in original). When a case is dismissed without prejudice, the dismissal constitutes a

termination in favor of the defendant for the purpose of a subsequent malicious prosecution suit

by him only when the party who initiated the case manifests an intent to abandon it. Id. Such a

23 Although Elkins originally submitted probable cause statements for misdemeanor stealing

charges, the prosecuting attorney returned the probable cause statements and directed Elkins "to

file five counts of forgery on each one." (Elkins Depo. at 24)

requirement is "reasonable inasmuch as without such finality, the underlying criminal cases could

have been re-filed at any time, provided the statute of limitations as to the criminal cases had not

expired." Id. The Missouri Court of Appeals has rejected the suggestion that an affirmative action

such as an agreement to dismiss the charges upon payment of costs by the defendants will always

be necessary to demonstrate an "intent by the prosecutor to finally abandon the prosecution." Id.

at 590. Often, intent must be proved by inference from the surrounding facts. Wallace v. State,

573 S.W.3d 136, 146 (Mo. Ct. App. 2019).

In Shinn v. Bank of Crocker, 803 S.W.3d 621, 627 (Mo. Ct. App. 1990), the appellate

found that the prosecutor manifested an intent to abandon the prosecution of the plaintiffs, even

though the charges against them were dismissed without prejudice, because the record indicated

an agreement whereby the plaintiffs would pay court costs and the prosecutor, in turn, would cease

the prosecuting of the case. Id.; see also Helenthal v. Polk, 2010 WL 546905, *1 (E.D. Mo. 2010)

(finding that dismissal without prejudice for failure to prosecute reflected an intent to abandon the

claim). The court explained that "[a]bsent such an agreement there would have been no

inducement for the [plaintiffs] to pay the costs," and it is thus "inferable that the prosecutor

specified the initial dismissals were without prejudice so he could refile the charges if the

[plaintiffs] reneged." Id. The question whether a prosecutor’s dismissal of charges without

prejudice is a termination in favor of the defendant is, absent a conflict as to the facts relative to

the circumstance of the dismissal, a question of law for the court to decide. Cowan v. Gamble,

247 S.W.2d 779, 780 (Mo. 1952) (per curiam) (citing Restatement of Torts § 673(1)(b)).

Here, there was no final judgment on the merits of the criminal prosecution, and the court

did not dismiss the prosecution with prejudice, so the issue is whether the prosecution was

abandoned. There have been no actions inferring the prosecutor’s intent to abandon the felony

charges against Plaintiffs. The felony charges were dismissed without prejudice and could have

been refiled by the prosecutor showing that the charges have not been abandoned unless barred by

the applicable statute of limitations. Indeed, although Elkins originally submitted probable cause

statements for misdemeanor stealing charges, the prosecuting attorney returned the probable cause

statements and directed Elkins "to file five counts of forgery on each one." (Elkins Depo. at 24)

The uncontroverted evidence demonstrates that the underlying criminal prosecution did not

terminate in Plaintiffs’ favor.

Even if there is a showing of abandonment, Plaintiffs’ claims would still fail as a matter of

law against Hammann. Plaintiffs offer no evidence in the record showing that Hammann instigated

the prosecution of the underlying criminal case against them as Hammann never discussed the

charges with the prosecuting attorney. Elkins signed both of the probable cause statements.

Nothing in the record, except Plaintiffs’ conjecture, establishes the prosecution of the underlying

criminal cases against them by Elkins was without probable cause and malice. Indeed, both

Plaintiffs admitted they did not report into dispatch at the start and end of every shift.

V. Conclusion

Based on the foregoing analysis, the record clearly establishes that there are no genuine

disputes as to any material facts. Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.

75) is GRANTED.

A separate Judgment in accordance with this Memorandum and Order is entered

herewith.

Dated this 18th day of March, 2021.

/s/John M. Bodenhausen

JOHN M. BODENHAUSEN

UNITED STATES MAGISTRATE JUDGE