The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STEPHEN PARMENTER, )
)
Plaintiff, )
)
v. )
)
CITY OF NOWATA, OKLAHOMA, ) Case No. 19-CV-431-TCK-JFJ
)
Defendant. )
OPINION AND ORDER
Before the Court is the Motion for Summary Judgment filed by the defendant City of
Nowata, Oklahoma (“City”). Doc. 23. Plaintiff Stephen Parmenter opposes the motion. Doc. 32.
I. Introduction
This lawsuit arises from the City’s April 8, 2019 termination of Parmenter as the Nowata
Fire Chief. Parmenter filed suit against the City on August 5, 2019, alleging violation of his rights
under 42 U.S.C. 1983 and 11 O.S. §29-104 and seeking, inter alia, damages of $500,000 and
reinstatement to his job position. Doc. 2
Parmenter contends that pursuant to 1l O.S. §29-104, he was entitled to due process. In its
summary judgment motion, the City asserts that (1) Parmenter did not have a protected property
interest in his position as Fire Chief, and therefore was not entitled to due process and that (2) even
though he was not entitled to due process, he in fact received adequate due process.
II. Summary Judgment Standard
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). The movant bears the burden of showing that no genuine issue of material fact
exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court
resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party.
Id. However, the party opposing a motion for summary judgment may not “rest on mere
allegations” in its complaint but must “set forth specific facts showing that there is a genuine issue
for trial.” Fed. R. Civ. P. 56(e). The party opposing a motion for summary judgment must also
make a showing sufficient to establish the existence of those elements essential to that party’s case.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).
A movant that “will not bear the burden of persuasion at trial need not negate the
nonmovant’s claim, “but may “simply . . . point[] out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima
facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth
specific facts’ that would be admissible in evidence in the event of trial from which a rational trier
of fact could find for the nonmovant.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968
F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In a response to a motion for
summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and
may not escape summary judgment in the mere hope that something will turn up at trial. The mere
possibility that a factual dispute may exist, without more, is not sufficient to overcome convincing
presentation by the moving party.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (internal
citations omitted).
III. Material Facts
Plaintiff is the former Fire Chief for the City of Nowata. Doc. 2, ¶4. Melanie Carrick
(“Carrick”) is the City Manager of Nowata. Ex. 1. The City of Nowata’s City Charter provides
that the City Manager has the power and duty “to appoint and remove all Heads of Departments,
and all subordinate officers and employees of the City.” Doc. 23, Ex. 9, City Charter Section
Twenty-Six; Ex. 10, City Code Section 2-302.
The City of Nowata’s Personnel Manual states that all City employees are “at will,” and
can be fired with or without notice. Id., Ex. 11, Personnel Manual, §§1-1, 1-3, 2-5, 9-1, 9-2).
On August 31, 2017, Carrick gave Plaintiff an Employee Warning Notice for:
Altering of employee time sheets, falsification of [his]own time sheet, Interfered
with the City’s relationship with the Harmon Foundation, providing false
information to supervisor, hindering the accounting process by holding checks that
need to be deposited and not turning them in for deposit in a timely manner,
allowing multiple employees to take comp time that they had not accrued, issuance
of comp time not in accordance with City personnel manual, fostering and allowing
to continue an environment of low morale in department, creating feelings of fear
and retribution or retaliation in employees in the department creating a harassing,
hostile and threatening work environment for employees, non-compliance with
hiring policy, holding volunteer pay until dues are paid, scheduling part-time
workers more than part time hours.
Id., Ex. 1. The same day, Carrick also instructed Plaintiff that he was to work at least one regular
shift per week as a firefighter. Id., Ex. 1; Ex. 2, Parmenter Dep. at 87:20-23. As of August 31,
2017, Plaintiff was aware that any further infractions could result in disciplinary action against
him, including termination. Id., Ex. 1; Ex. 2, Parmenter Dep. at 94:13-24.
Carrick continued to communicate with Plaintiff about the issues noted in the reprimand
“throughout a year or a year and a half” before his termination. Id., Ex. 2, Parmenter Dep. at
95:11-96:3. Beginning in March 2018, Carrick and Plaintiff had at least two discussions about
Plaintiff’s job, and even discussed changes to the job description to accommodate Plaintiff. Id.,
Ex. 2, Parmenter Dep. at 97:2-101:24; Ex. 3, Fire Chief Job Description Annotated.
In May 2018, Plaintiff, Carrick and City Attorney John Heskett met for an hour-and-a-half
or longer to discuss the fire chief job description and Plaintiff’s duties. Id., Ex. 2, Parmenter Dep.
at 105:1-106:25l; Ex. 3, Fire Chief Job Description, Annotated.
At no time from August 2017 to the date he was terminated did Plaintiff fulfill his duty to
work one fire shift a week. Id., Ex. 2, Parmenter Dep. at 87:20-88:1; 116:18-22.
In March 2019, the issues about which Plaintiff had previously been counseled resurfaced.
Exs. 4-5, 7, Carrick Memoranda of Reference; Ex. 6, McElhaney Statement. Specifically, EMS
employees complained to Carrick that Plaintiff ignored their requests about scheduling
accommodations and gave special privileges, including excessive overtime, to the single
paramedic employed by the department. Ex. 4. Carrick also learned from employees that, in
contravention of fire department policy, they were allowed to cover shifts for each other without
documenting the hours on their time sheets, and were paid for those hours by the employee they
covered for. Id. at 2; Exs. 5, 7.
On April 8, 2019, Carrick terminated Plaintiff’s employment. Id., Ex. 8, Termination
Letter.
IV. Analysis
The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. Const. Amend. XIV, §1. “The Due Process Clause
of the Fourteenth Amendment ensures that one cannot be deprived of a property right absent due
process of law.” Potts v. Davis County, 551 F.3d 1188, 1192 (10th Cir. 2009). A plaintiff cannot
allege a violation of either procedural or substantive due process if he does not first show that he
had a protected property right. Id.
The Supreme Court has stated that property interests “are not created by the Constitution,”
but rather “they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law-rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972). The determination of whether a property interest
exists is based on “whether the terms of employment created by contract, federal statute, city
charter, or an employee manual create a sufficient expectancy of continued employment to
constitute a property interest, which must be afforded constitutionally guaranteed due process.”
Vinyard v. King, 728 F.2d 428, 432 (10th Cir. 1984).
The Tenth Circuit has recognized that “if state statutes or regulations place substantive
restrictions on a government actor’s ability to make personnel decisions, then the employee has a
property interest protected by the procedural due process clause. Hennigh v. City of Shawnee, 155
F.3d 1249, 1253 (10th Cir. 1998). “To determine whether a plaintiff was denied procedural due
process, [courts] engage in a two-step inquiry: (1) Did the individual possess a protected interest
to which due process protection is applicable? (2) Was the individual afforded an appropriate level
of process?” Id.
A. Whether Parmenter Possesses a Protected Interest
The Supreme Court has stated:
The Fourteenth Amendment’s procedural protection of property is a safeguard of
the security interests that a person has already acquired in specific benefits. These
interests—property interests—may take many forms.
* * *
To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it.
* * *
Property interests . . . are not created by the Constitution. Rather they are created
and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law—rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
Parmenter contends that pursuant to 11 O.S. §29-104, he possessed a property interest in
his position as Fire Chief. That statute provides:
The chief and members of all paid municipal fire departments shall hold their
respective positions unless removed for a good and sufficient cause as provided by
applicable law or ordinance.
However, Oklahoma law further provides:
Whenever a charter is in conflict with any law relating to municipalities in force at
the time of the adoption and approval of the charter, the provisions of the charter
shall prevail and shall operate as a repeal or suspension of the state law or laws to
the extent of any conflict.
11 O.S. §13-109. Accordingly, because the Nowata’s City Charter provides that all City
employees are at will and may be fired with or without notice, its provision prevails over 11 O.S.
§19-104.
Nor is the Court persuaded by Parmenter’s claim that In re City of Durant v. Cicio, 50 P.3d
218 (Okla. 2002) is applicable to this case. In Cicio, the Oklahoma Supreme Court—in the context
of analyzing Oklahoma’s statutory police pension system—stated in dicta that police and fire
protection were not matters of purely municipal concern, but were “unquestionably a matter of
statewide interest” and therefore, under 11 O.S. §50-123—which prohibits discharge “except for
cause”—the plaintiff, a fired police officer, was entitled to continued employment in the absence
of a showing of cause. Id. at 223. Importantly, in Cicio, Durant—in contrast to Nowata—was not
a chartered, home-rule city, but rather was organized and run pursuant to state statutes. Id. at 220.
Because Nowata’s City Charter is controlling over 11 O.S. §29-104, the City Charter
controls resolution of this employment dispute.
B. Adequacy of Due Process
Moreover, even assuming 11 O.S. §19-104 applies to Parmenter’s claim, the undisputed
record establishes that he was fired for “good and sufficient cause.” On August 31, 2017, he
received a formal, documented reprimand listing numerous issues and also ordering him to work
at least one regular shift per week as a firefighter. Accordingly, he was aware that any further
infractions could lead to disciplinary action—including termination—against him. For well over
a year after the written reprimand, Carrick continued to address items listed in the written
reprimand. During that time, and in contravention of the reprimand, he failed to work a single fire
shift. Moreover, after meeting with fire department employees, Carrick learned of other issues—
including that department morale was abysmal due to favoritism of one employee over the others,
and that employees were trading shifts without documenting the trades, and then directly
compensating each other for covered shifts.
The undisputed record supports the City’s position that Parmenter’s termination was for
“good and sufficient cause.”
V. Conclusion
For the foregoing reasons, the City of Nowata’s Motion for Summary Judgment (Doc. 23)
is hereby granted.
ENTERED this 4th day of November, 2020.