Randolph v. Carter County Board of County Commissioners

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

JOHN RANDOLPH IV, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-319-RAW

)

BOARD OF COUNTY )

COMMISSIONERS OF CARTER, )

COUNTY, et al., )

)

)

)

)

)

Defendants. )

ORDER

Before the court is the motion of the defendant Chris Bryant for summary judgment.

Plaintiff alleges claims of (1) retaliation in violation of the First Amendment; (2) retaliation

for political speech in violation of the First Amendment; (3) violation of due process; and (4)

defamation.1

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Rule 56(a) F.R.Cv.P. A dispute is genuine when the evidence is such that a reasonable jury

1In the first amended complaint (#15), plaintiff also

asserted a state-law claim for wrongful discharge. This claim is

not addressed in the summary judgment briefing and appears to

have been abandoned. If not, it only remains standing as to

Bryant in his individual capacity. (See #45). If still viable,

it is dismissed without prejudice under the reasoning below.

could return a verdict for the nonmoving party; a fact is material when it might affect the

outcome of the suit under governing law. See Foster v. Mountain Coal Co., 830 F.3d 1178,

1186 (10th Cir.2016). The court must view all evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party. Spring Creek Expl. & Prod.

Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1027 (10th Cir.2018).

Plaintiff was hired by then-Sheriff Milton Anthony in May, 2016 as a jailer in the

Carter County Jail. Anthony was suspended from office July 1, 2016 due to criminal

charges. He resigned from office effective November 7, 2016. Defendant Bryant took office

as Sheriff of Carter County on December 1, 2016. On December 5, 2016, plaintiff struck an

inmate (plaintiff says in self-defense). Defendant Bryant states he learned of the incident on

December 13, 2016 and launched an investigation.

Plaintiff claims Bryant informed plaintiff that information had been sent to the District

Attorney’s Office for possible charges. (#104-1 at page 55 of 89 in CM/ECF pagination, ll.

20-23). Plaintiff, however, also testified that Bryant at one point denied that “charges” had

been “sent over” to the District Attorney’s Office. (#104-1 at page 57 of 89 in CM/ECF

pagination, ll.22-23). Plaintiff inquired if the investigation was criminal or internal. Bryant

told him it was internal. Plaintiff contends he asked if he would receive a Garrity notice.2

He also contends he inquired about a warning pursuant to Miranda v. Arizona, 384 U.S. 436

2See Garrity v. New Jersey, 385 U.S. 493 (1967)(a government

threat of loss of employment to obtain incriminatory evidence

against an employee violates the Fourteenth Amendment).

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(1966).

Plaintiff’s employment was ultimately terminated on December 22, 2016 for (he

claims) refusal to confess to the crime of assault. Plaintiff states he was willing to serve a

three-day suspension, but refused to confess he committed a crime. Defendant contends

plaintiff was not fired for the use of force, but for stating he would “do it again.”3 Plaintiff

alleges defendants have sought to induce plaintiff’s termination at some other places of

employment and to prevent him from being hired at others. Plaintiff sues both Bryant and

the Board of County Commissioners of Carter County.

Plaintiff contends he was retaliated against for: (1) (a) criticizing the nature of the

investigation, (b) objecting to and insisting on a Garrity notice, and (c) his refusal to admit

to criminal conduct;4 (2) publicly and openly opposing the candidacy of Bryant for Sheriff.

The claims will be addressed in this order.

As to (1), the elements of such a claim are (1) the protected activity was not made

pursuant to an employee’s official duties; (2) the protected speech addressed a matter of

3The court finds this aspect ambiguous. Plaintiff contends

he meant he would exercise self-defense in the same situation,

i.e., a perceived threat. (See #128 at page 16 of 33, Response

37.) The court views the evidence in the light most favorable to

plaintiff, but this does not require the conclusion that

defendant’s interpretation at the time was manifestly

unreasonable.

4The claim in (c) is more appropriately understood to arise

under the Fifth Amendment. See Lozano v. Ortega, 2014 WL

6611595, *11 (W.D.Tex.2014). In any event, the court finds

plaintiff has not raised a genuine dispute of material fact as to

(c).

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public concern; (3) the government’s interests as an employer did not outweigh the

employee’s free-speech interests; (4) the protected speech was a motivating factor in the

adverse employment action; and (5) the defendant would not have made the same

employment decision in the absence of the protected speech. Lincoln v. Maketa, 880 F.3d

533, 538 (10th Cir.2018). “The first three elements are issues of law for the court to decide,

while the last two are factual issues typically decided by the jury.” Knopf v. Williams, 884

F.3d 939, 945 (10th Cir.2018).

Neither party has discussed the first element, but the court will do so. The rationale

regarding the first element is that “when public employees make statements pursuant to their

official duties, the employees are not speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their comments from employer discipline.” Seifert v.

Unified Government of Wyandotte County, 779 F.3d 1141, 1151 (10th Cir.2015). The Tenth

Circuit has “taken a broad view of the meaning of speech that is pursuant to an employee’s

official duties.” Chavez-Rodriguez v. City of Santa Fe, 596 F.3d 708, 713 (10th Cir.2010).

It has described the first prong as a “heavy barrier” for a plaintiff. Casey v. West Las Vegas

Indep. Sch. Dist., 473 F.3d 1323, 1331 (10th Cir.2007).

There is no bright-line rule governing when employees are speaking as part of their

official duties. Lincoln, 880 F.3d at 538. Courts therefore, on a case by case basis, “take a

practical view of all the facts and circumstances surrounding the speech and the employment

relationship.” Knopf, 884 F.3d at 946. The court looks to both the content of the speech, as

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well as the employee’s chosen audience. Poff v. Oklahoma, 683 Fed.Appx. 691, 698 (10th

Cir.2017). In general, the court focuses on whether the speech activity stemmed from and

was of the type that the employee was paid to do. Id. Although no one factor is dispositive,

this focus is the guiding principle in determining if speech is made pursuant to official duties.

Ellison v. Roosevelt Co., 700 Fed.Appx. 823, 828 (10th Cir.2017).

In the case at bar, the speech at issue arose in the context of an internal investigation.

Plaintiff’s objection to the conduct of the investigation was conveyed to those conducting the

investigation themselves, i.e., within the chain of command. Speech about workplace matters

communicated through proper chain of command is typically deemed within the scope of

official duties. Trant v. Oklahoma, 426 Fed.Appx. 653, 659 (10th Cir.2011). See also

Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 747 (10th Cir.2010). This is not to

say that there is a per se rule that speaking outside the chain of command is protected. See

Chavez-Rodriguez v. Santa Fe, 596 F.3d 709, 716 (10th Cir.2010).5

As previously stated, the incident in the jail resulted in an internal investigation.

During the course of that investigation, plaintiff objected to the fact that he was not given

Miranda and Garrity notices. His objection thus involved the manner in which the

investigation was conducted and was communicated solely to those conducting the

5As this court noted in denying defendants’ motion to

dismiss, failing to speak publicly (e.g. to the media) is not

dispositive as to the second element, whether the speech was a

matter of public concern. See Cvancara v. Reams, 676 Fed.Appx.

774 n.5 (10th Cir.2017). Regarding the first element, speaking

“outside the chain of command” does not necessarily mean speaking

to the media.

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investigation. Accordingly, both (1) the content of plaintiff’s speech and (2) his chosen

audience indicate that the speech was within the scope of his official duties.

Plaintiff’s first claim fails on that ground alone, but (for the sake of thoroughness) the

court now turns to the second element. The First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public concern.

Helquist v. Beamer, 763 Fed.Appx. 705, 711 (10th Cir.2019). The government, however, has

a countervailing interest in controlling the operation of its workplaces. Id.

Speech involves matters of public concern when it can be fairly considered as relating

to any matter of political, social, or other concern to the community, or when it is a subject

of legitimate news interest; that is, a subject of general interest and of value and concern to

the public. Butler v. Bd. of Cty. Comm’rs, 920 F.3d 651, 655-56 (10th Cir.2019). Plaintiff

must demonstrate that his speech involved a matter of public concern and not merely a

personal issue internal to the workplace. Moore v. City of Wynnewood, 57 F.3d 924, 931

(10th Cir.1995). Speech relating to internal personnel disputes and working conditions

ordinarily will not be viewed as addressing matters of public concern. Morris v. City of Colo.

Springs, 666 F.3d 654, 661 (10th Cir.2012).

The court considers the motive of the speaker and whether the speech is calculated to

disclose misconduct or merely deals with personal disputes and grievances unrelated to the

public’s interest. Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th

Cir.2007). On the other hand, statements revealing official impropriety usually involve

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matters of public concern. Id.

Plaintiff’s alleged objection might reveal official impropriety if his statement

indicated that defendants did not generally give Miranda warnings to criminal suspects.

Here, his statement was only an objection to the investigation involving himself, and it was

an internal investigation. The court concludes plaintiff’s claim fails as to the second element

as well.

The third element considers “whether the government’s interests, as employer, in

promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free

speech interests.” Singh v. Cordle, 936 F.3d 1022, 1034 (10th Cir.2019). The Tenth Circuit

has stated that this “step in the inquiry is not a simple matter.” Trant v. Oklahoma, 426

Fed.Appx. 653, 661 (10th Cir.2011). While framed as a balancing test, it actually places a

substantial threshold burden on the employer before balancing is even considered. Id.

Unless the government employer can show that the termination was based on legitimate

reasons grounded in the efficient conduct of political business, there is no need to proceed

to balancing, and the First Amendment interest of the plaintiff prevails. Id.

Once again, neither party has addressed this element. Unlike in Trant, a summary

judgment record exists and the court could conceivably undertake its own analysis, but

declines to do so. Because defendant bears the initial burden on this element, the court finds

plaintiff’s claim does not fail as to this element. The court declines to address the fourth and

fifth elements because they are generally determinations for the trier of fact and this motion

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can be resolved without discussion of them.

The court also grants defendant’s motion as to the Count alleging political speech

retaliation. Plaintiff must show a genuine dispute that (1) political affiliation and/or beliefs

were substantial or motivating factors behind his dismissal and (2) his position did not

require political allegiance. Smith v. Martinez, 608 Fed.Appx. 620, 622 (10th Cir.2015). The

court agrees with defendant that plaintiff’s claim fails as to the first prong.

Anthony was suspended from office July 1, 2016. Plaintiff was discharged in

Decemeber, 2016. This is insufficient temporal proximity. Plaintiff has also not

demonstrated that Bryant knew plaintiff had supported Anthony for the sheriff’s election.

(See #104 at page 14 of 32 in CM/ECF pagination, ¶46; #104-1 at page 73 of 89 in CM/ECF

pagination, ll.5-6). Even viewing the record in the light most favorable to plaintiff, there is

insufficient evidence from which an inference of pretext could be drawn such that the claim

would survive the present motion.

Plaintiff also brings a procedural due process claim for the liberty interest in his

reputation. Where a person’s good name, reputation, honor or integrity is at stake because

of what the government is doing to him, a protectable liberty interest may be implicated.

Abdi v. Wray, 942 F.3d 1019, 1032 (10th Cir.2019). Damage to reputation alone, however,

is not enough to implicate due process protections. Al-Turki v. Tomsic, 926 F.3d 610, 617

(10th Cir.2019). Rather, plaintiff must establish “stigma-plus.” The “plus factor” is some

change in legal status. Id. Plaintiff must establish that he suffered the loss of a right or

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interest that has attained constitutional status by virtue of the fact that it was initially

recognized and protected by state law and the State seeks to remove or significantly alter that

protected status. Abdi, 942 F.3d at 1033.

In the context of a governmental employee’s “stigma-plus” claim, plaintiff is required

to show (1) the defendant’s statements impugned his good name, reputation, honor or

integrity; (2) the statements were false; (3) the statements occurred in the course of

terminating the employee [and] will foreclose other employment opportunities; and (4) the

statements were published. Bjorkland v. Miller, 467 Fed.Appx. 758, 767 (10th Cir.2012).

As originally formulated by the Tenth Circuit, the third element was stated in the disjunctive;

the appellate court has since clarified the element “is conjunctive, and that in order to satisfy

it, the employee must show both that the defamatory statement occurred in the course of

employment termination and that it will foreclose other employment opportunities.” Id. If

the four conditions are met, the government must afford the plaintiff “an adequate name-

clearing hearing.” Rogers v. Alezopulos, 549 Fed.Appx. 771, 774 (10th Cir.2013).6

Plaintiff relies upon an affidavit by Johnny Turner (#128-23), Chief of Police for the

City of Healdton, Oklahoma. Turner states that statements by Bryant about the

circumstances of plaintiff’s termination caused Turner to decline to hire plaintiff for the

6“When an employee’s liberty interest is infringed upon, he

must receive an adequate name-clearing hearing.” McDonald v.

Wise, 769 F.3d 1202, 1213 (10th Cir.2014). After a discussion of

Tenth Circuit authority, one court states: “It is not entirely

clear when a name-clearing hearing is the appropriate remedy and

when monetary damages are the appropriate remedy.” Salazar v.

City of Albuquerque, 2014 WL 6065603, *39 (D.N.M.2014).

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Healdton Police Department. Defendant contends that this statement was not made “in the

course” of terminating plaintiff. The court disagrees. The Tenth Circuit does not require the

statements to be strictly contemporaneous, but roughly contemporaneous with a termination

See Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d 723, 727 (10th Cir.2000). The appellate

court has held that (as in the case at bar) a statement made one month after termination was

sufficiently contemporaneous. See McDonald v. Wise , 769 F.3d 1202, 1212 (10th Cir.2014).

This court concludes that plaintiff’s claim nevertheless fails because the Turner

affidavit only establishes loss of a single job. Plaintiff must demonstrate a genuine dispute

of material fact as to whether the statements foreclosed employment opportunities (plural).

Plaintiff needs to show that the government’s action had the broad effect of largely

precluding the plaintiff from pursuing his chosen career. See Katseva v. Dep’t of State, 37

F.3d 1524, 1528 (D.C.Cir.1994). The example of one job is insufficient to show broad

preclusion from continuing his career. See Jefferson v. Harris, 170 F.Supp.3d 194, 205-06

(D.D.C.2016). Rather, the burden is to show that his ability to pursue his chosen profession

has been seriously affected, if not destroyed. See O’Donnell v. Barry, 148 F.3d 1126, 1141-

42 (D.C.Cir.1998). Plaintiff has not done so. As defendant notes, “Plaintiff has been hired

by numerous other law enforcement agencies in the mean-time, all the way through the

present day. . . “ (#137 at 9).

In an alternative argument, Bryant contends he is entitled to the defense of qualified

immunity as to any or all of the federal claims asserted against him. When a defendant

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asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show

with respect to each claim that (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th

Cir.2009).7 Because the court has granted summary judgment on the merits, it declines to

address that argument. See Duvall v. Putnam City Sch. Dist., 2011 WL 3739247 n.32

(W.D.Okla.2011).

All federal claims having been dismissed, the court will dismiss plaintiff’s state-law

claim for defamation without prejudice. See 28 U.S.C. §1367(c)(3); Brooks v. Gaenzle, 641

F.3d 1213, 1229-30 (10th Cir.2010).

7The defense of qualified immunity is available only in

suits against officials sued in their personal capacities, not in

suits against officials sued in their official capacities. Cox

v. Glanz, 800 F.3d 1231, 1239 n.1 (10th Cir.2015). The parties

dispute whether Bryant has been sued in both capacities, but the

court concludes he has been. (See #128 at page 31 of 33 in

CM/ECF pagination). Plaintiff argues that his official capacity

suit may proceed because he “is not required to show a prior

policy or custom” since the Sheriff is the final policymaker with

regard to the jail, citing Layton v. Bd. of County Comm’rs, 512

Fed.Appx. 861 (10th Cir.2013)(See #128 at page 30 of 33 in CM/ECF

pagination). The court disagrees. A showing of official policy

or custom is required for “municipal” liability. See Goss v.

Bd.of County Comm’rs, 645 Fed.Appx. 785, 789 (10th Cir.2016).

Plaintiff has not made such showing.

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It is the order of the court that the motion of defendant Bryant for summary judgment

(#104) is hereby granted as to plaintiff’s federal claims. Bryant is dismissed in both his

individual and official capacity. Any state-law claim is dismissed without prejudice.

Plaintiff’s motion regarding front pay experts (#67) is deemed moot.

IT IS SO ORDERED this 19th day of JUNE, 2020.

_________________________________

RONALD A. WHITE

UNITED STATES DISTRICT JUDGE

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