Tice v. Board of County Commissioners of Lincoln

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

SABRINA TICE, )

)

Plaintiff, )

)

v. ) No. CIV-18-974-R

)

BOARD OF COUNTY )

COMMISSIONERS OF LINCOLN )

COUNTY and SHERIFF CHARLIE )

DOUGHERTY, )

)

Defendants. )

ORDER

Before the Court is the Motion for Summary Judgment (Doc. No. 39) filed by

Defendant Sheriff Charlie Dougherty. Plaintiff filed a Response in opposition to the motion

and Defendant Dougherty filed a Reply in support of his position. (Doc. Nos. 46 and 48).

Upon consideration of the parties’ submissions, the Court finds as follows.

Summary judgment is appropriate when “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.”

Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting Fed. R. Civ. P.

56(a)). A dispute is genuine “if there is sufficient evidence on each side so that a rational

trier of fact could resolve the issue either way,” and it is material “if under the substantive

law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d

1019, 1022 (10th Cir. 2013). In assessing whether summary judgment is appropriate, the

Court views the facts and all reasonable inferences in the light most favorable to the

nonmoving party. Williams v. FedEx Corp. Services, 849 F.3d 889, 896 (10th Cir. 2017).

Plaintiff filed this action alleging violation of her right to association under the First

Amendment because she was terminated from her position as investigator for the Lincoln

County Sheriff’s Department the day after Defendant Dougherty, the incumbent, defeated

her husband, John Tice, in the 2016 election.1 The circumstances surrounding Plaintiff’s

first four years at the Department are not disputed; the facts related to her termination and

the events leading thereto, however, are contested by the parties.2

Consistent with the above, the parties agree that Defendant Dougherty was elected

sheriff of Lincoln County in 2010 via special election. After Plaintiff had served for a

period as a reserve deputy, in 2012 Defendant hired her as a full-time deputy. Her husband,

John Tice, already served in that capacity. In 2015, Sheriff Dougherty was informed by the

Oklahoma State Bureau of Investigation (“OSBI”) of an ongoing investigation into the

alleged excessive use of force by John Tice. As a result of this information, Sheriff

Dougherty placed Deputy John Tice on paid administrative leave. In August 2015, the

OSBI indicated that John Tice was to be indicted, which resulted in his termination by

Defendant Dougherty. Defendant contends that, following John Tice’s termination,

1 Defendant seeks summary judgment to the extent Plaintiff is attempting to assert a free speech claim, an argument

not addressed by Plaintiff in her response to the Motion for Summary Judgment. See e.g. Jantzen v. Hawkins, 188

F.3d 1247, 1251 (10th Cir. 1999) (noting that there are two separate tests for First Amendment retaliation for speech

and political affiliation). Plaintiff similarly did not respond to Defendant’s familial association claim. The Court

therefore concludes that Plaintiff did not intend to pursue such claims or that she has waived them.

2 Defendant contends the Court should not consider Plaintiff’s self-serving affidavits. The self-serving nature of sworn

testimony is not a proper basis for disregarding it on summary judgment. Although the Court “will disregard a contrary

affidavit ... when it constitutes an attempt to create a sham fact issue,” Burns v. Bd. of Cty. Comm’rs of Jackson Cty.,

330 F.3d 1275, 1282 (10th Cir. 2003)(internal quotation marks omitted), “[s]o long as an affidavit is based upon

personal knowledge and set[s] forth facts that would be admissible in evidence, it is legally competent to oppose

summary judgment, irrespective of its self-serving nature.” Sanchez v. Vilsack, 695 F.3d 1174, 1180 (10th Cir. 2012)

(internal citation and quotation marks omitted). See Greer v. City of Wichita, Kansas, 943 F.3d 1320, 1325 (10th Cir.

2019).

Plaintiff yelled and cussed at him because she disagreed with his termination decision.3

In September 2015, Plaintiff filed a complaint regarding derogatory comments made

to her by Captain Jack Jackson that were also critical of her husband. (Doc. No. 42-4).

Later that day Plaintiff surreptitiously recorded conversations with Jackson.4 Although

Plaintiff’s direct supervisor, Larry Stover, was aware of this behavior, there is no evidence

in the record that Defendant took any steps toward disciplining Plaintiff despite her

surreptitious recording of conversations with other officers starting sometime after August

2015. Defendant does not cite to the alleged recordings as a basis for his termination

decision, nor was Plaintiff disciplined for recording the conversations.

In April 2016, the charges against him having been dismissed, John Tice declared

his candidacy for Sheriff in the upcoming election. Plaintiff concedes that Sheriff

Dougherty treated her well during the election, but contends the Undersheriff, Tim

Donaldson, acted hostilely toward her on more than one occasion because of her husband’s

candidacy and her support thereof.5 The day after the election Sheriff Dougherty informed

Plaintiff that she was terminated.

3 Larry Stover, Plaintiff’s supervisor, indicates that he overheard Plaintiff and recommended at that time that the

Sheriff terminate her employment. In his deposition, the Sheriff did not rely on Plaintiff’s 2015 outburst as a basis for

his termination decision in November 2016. In his affidavit, the Sheriff indicated that Plaintiff had yelled at him but

did not tie the incident to her termination. There was apparently no discipline imposed as a result of the alleged

incident. Plaintiff testified that she discussed the investigation with the Sheriff and that she was emotional and sad

about the situation.

4 Plaintiff also recorded a conversation with Undersheriff Tim Donaldson of an unknown date although presumably

in 2015, during which time she was counseled about failing to follow the chain of command in complaining about Mr.

Jackson’s comments. She apparently also recorded, without the Sheriff’s knowledge, the conversation where he

terminated her employment.

5 On one occasion after Plaintiff rode in a parade in support of John Tice she received a text message from Undersheriff

Donaldson that included a picture of her from the parade captioned “No loyalty, shameful & embarrassing, guess you

didn't abstain from campaigning after all.” Doc. No. 46-2.

Defendant Dougherty made the termination decision, although he testified that he

had received oral recommendations to that effect from Captain Stover and Undersheriff

Donaldson. Defendant testified that Captain Stover said, “[j]ust that she was causing

problems and degrading the agency and talking bad about me and that none of us knew

what we were doing.” (Dougherty Deposition, p. 26). “He probably just brought to my

attention that, you know, they are trying to work investigations and what-have-you and

she’s upset because I fired John, and we don’t see eye to eye on that, and so she - - he was

just having problems with getting her to be focused and move forward.” (Id. at pp. 27-28).6

The Sheriff believes Captain Stover came to his office three times in the two months

prior to Plaintiff’s termination, but the Sheriff did not terminate her then because it would

look bad due to the election. Id. Donaldson’s oral recommendation allegedly came thirty

days prior to Plaintiff’s termination. (Id. at p. 28). When asked for specific information

regarding Donaldson’s recommendation, he testified about a 2015 incident involving

Plaintiff and Jack Jackson, who made derogatory comments about Plaintiff and her

husband, the conversations that Plaintiff taped. “And so Tim had recognized some things -

or there was one incident where her and Capt. Jackson had got into a word argument, and

so Tim intervened on that deal and disciplined Jack, the captain.” (Id. at p. 29).

Sheriff Dougherty testified about his decision, stating that everyone in the small

office needed to be able to work together and that Plaintiff’s negativity made that

6 When asked if he could think of any other comments made by Stover, Sheriff Dougherty testified that he could not.

(Dougherty Deposition, p. 27).

impossible because she was talking badly about the Sheriff and his office.7 Plaintiff denies

making negative comments about the Sheriff or the Sheriff’s Department, but concedes

that shortly after her husband’s arrest, she might have made negative comments about the

Lincoln County District Attorney’s Office, because she disagreed with their decision.

Regardless, between the summer of 2015 and November 2016, when Defendant terminated

Plaintiff, there is no indication of any disciplinary action imposed on Sabrina Tice as a

result of her alleged negative public comments prior to her termination.

“The First Amendment protects public employees from discrimination based upon

their political beliefs, affiliation, or non-affiliation unless their work requires political

allegiance.” Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir. 2003) (citation

omitted). To avoid summary judgment, Plaintiff must establish that a genuine issue of

material fact exists that provides evidence that her political affiliation or beliefs were the

“substantial” or “motivating” factor behind her termination and that her position did not

require political allegiance.8 Id. at 1185. If Plaintiff presents evidence that her affiliation

was a substantial or motivating favor in her termination, Defendant may avoid liability by

establishing by a preponderance of the evidence that he would have reached the same

decision as to Plaintiff’s employment even in the absence of her protected conduct. Walton

v. Powell, 821 F.3d 1204, 1211 (10th Cir. 2016).

7 The Department had a policy that provided, "Deputy shall refrain from gossip, spreading rumors or discussing

Lincoln County Sheriff's Office with any person that does not have a need to know." (Dougherty Deposition, p. 49).

8 The employer bears the burden of proving that a position required political allegiance. Snyder, 354 F.3d at 1185.

Here “Defendant takes no position on whether Plaintiff’s position as a deputy sheriff required political allegiance.”

(Doc. No. 39, ECF p. 20).

Defendant is not entitled to summary judgment on Plaintiff’s claim that he interfered

with her right of association under the First Amendment by terminating her employment

after she supported the opposition candidate, her husband John Tice, in the 2016 sheriff’s

election. Defendant Dougherty terminated Plaintiff Tice one day after the election and he

was aware of her activities in support of her husband’s candidacy in opposition to his

reelection.

Adverse action in close proximity to protected speech may warrant an

inference of retaliatory motive. See Baca, 398 F.3d at 1221. . . . [T]emporal

proximity is insufficient, without more, to establish such speech as a

substantial motivating factor in an adverse employment decision. Id; see also

Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th Cir.2003)

(explaining protected conduct cannot be a basis for retaliation where

defendants did not know of such conduct). An employer's knowledge of the

protected speech, together with close temporal proximity between the speech

and challenged action, may be sufficiently probative of causation to

withstand summary judgment. See Ramirez, 41 F.3d at 596. Other evidence

of causation may include evidence the employer expressed opposition to the

employee's speech, see Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917,

929 (9th Cir.2004), or evidence the speech implicated the employer in serious

misconduct or wrongdoing. See Baca, 398 F.3d at 1221. On the other hand,

evidence such as a long delay between the employee's speech and challenged

conduct, see McGuire v. City of Springfield, 280 F.3d 794, 796 (7th

Cir.2002), or evidence of intervening events, see Gubitosi v. Kapica, 154

F.3d 30, 33 (2d Cir.1998), tend to undermine any inference of retaliatory

motive and weaken the causal link.

Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005). Defendant Dougherty indicates

that he made the decision to terminate Plaintiff following the recommendations of Larry

Stover, Plaintiff’s immediate supervisor, and undersheriff Tim Donaldson. The record

indicates that Undersheriff Donaldson harassed Plaintiff about her support of John Tice

during the election, for which he was disciplined, but nevertheless his opinion on Plaintiff’s

employment status was considered by the Sheriff.9

As noted, Defendant could avoid liability by establishing by a preponderance of the

evidence that he would have terminated Plaintiff regardless of her association with the

opposition in the election. To be certain, Defendant has presented evidence that would

support terminating Plaintiff, although ironically nothing was apparently said to Plaintiff

during the eighteen-month period, nor was she subjected to any discipline for her alleged

behavior. Defendant’s evidence is not undisputed, certain of the evidence may be hearsay,

and a jury is the proper body for assessing the credibility of the witnesses. Upon

consideration of the evidence presented in the light most favorable to the Plaintiff, the

Court cannot say that “any reasonable jury” would find that Defendant would have taken

the adverse action even in the absence of Plaintiff’s support of her spouse in the election.

See Trant v. Oklahoma, 754 F.3d 1158, 1167 (10th Cir. 2008).

Defendant Dougherty in his individual capacity also seeks summary judgment on

the basis that he is entitled to qualified immunity. Under § 1983, state officials sued in their

individual capacity for damages may raise the affirmative defense of qualified immunity.

A.M. v. Holmes, 830 F.3d 1123, 1134 (10th Cir. 2016). Qualified immunity shields

government officials from liability where “their conduct does not violate clearly

9 Donaldson was disciplined in part for placing a flyer allegedly created by the Committee and Constituency of Charlie

Dougherty for Sheriff on Ms. Tice’s desk on November 2, 2016. The flyer included a side-by-side list of the purported

traits of both candidates, each of the characteristics subscribed to Sheriff Dougherty were positive and those attributed

to John Tice were negative, such as “Can’t recognize when he’s wrong” and “Disgusted with the Community.” (Doc.

No. 46-3). Plaintiff’s office was locked, but Donaldson gained access and left the flyer for her. Sheriff Dougherty

testified that Donaldson’s recommendation pre-dated his discipline and any complaints by Plaintiff.

established statutory or constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). “Qualified immunity also shields [officials] who have

‘reasonable, but mistaken beliefs,’ and operates to protect [officials] from the sometimes

‘hazy border[s]’ of the law.” Valdez v. Roybal, 186 F. Supp. 3d 1197, 1251 (D.N.M. 2016)

(quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).

Once a defendant asserts qualified immunity, the Plaintiff bears the burden of

demonstrating that both (1) the official violated a federal constitutional or statutory right;

and (2) the right violated was clearly established at the time of the official’s conduct. T.D.

v. Patton, 868 F.3d 1209, 1219 (10th Cir. 2017). A plaintiff’s failure to establish either of

the two requirements is fatal to a claim. Pearson, 555 U.S. at 236. As set forth above,

Plaintiff has presented sufficient evidence to establish that genuine issues of material fact

exist with regard to her First Amendment association retaliation claim. Furthermore, this

right was clearly established in November 2016, when Ms. Tice’s employment was

terminated. See Jantzen v. Hawkins, 188 F.3d 1247, 1259 (10th Cir. 1999) (Sheriff not

entitled to qualified immunity because he should have known it would be unconstitutional

to terminate employees for affiliating with or supporting a particular candidate for sheriff).

Accordingly, Defendant is not entitled to summary judgment on the basis of qualified

immunity.

Finally, Sheriff Dougherty asserts that Plaintiff cannot prevail on an official

capacity claim. An official capacity claim is essentially a claim against the governmental

entity employing the official. Kentucky v. Graham, 473 U.S. 159, 166 (1985). There are

five potential sources for a municipal policy or custom, only one of which is implicated

herein, the decision of an employee with final policymaking authority. Bryson v. City of

Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).

“Cities cannot incur liability under § 1983 on a respondeat superior theory,

but can be liable if a final policymaker takes unconstitutional action....

Whether an individual is a final policymaker for purposes of § 1983 liability

is a legal issue to be determined by the court based on state and local

law.” Vogt v. City of Hays, 844 F.3d 1235, 1251 (10th Cir.), cert. granted

sub nom. City of Hays v. Vogt, ––– U.S. ––––, 138 S.Ct. 55, 198 L.Ed.2d 781

(2017) (internal citation and quotation marks omitted).

Defendants do not dispute that under Colorado law, Sheriff Wegener had

final policymaking authority for the Sheriff’s Office discipline, demotion,

and termination of deputies. Nor do they dispute that Sheriff Wegener

personally executed the demotion of Plaintiff Tonjes and made the alleged

statement to the news reporter. Defendants rely on inapposite cases, in which

the plaintiff did not sue a municipal entity for the decision of

its final policymaker, but rather attempted to argue a county board was

responsible for the decisions of the sheriff, a city council was responsible for

a police chief's actions, or a sheriff's office was responsible for an officer's

actions by deliberate indifference in training or supervision. See,

e.g., Isenbart v. Bd. of Cty. Comm'rs, No. 11–cv–03240–LTB–BNB, 2012

WL 4378269, *7 (D. Colo. 2012); Bd. of Cty. Comm'rs v. Brown, 520 U.S.

397, 406, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Brown expressly

distinguishes such cases from § 1983 claims that allege a personal, direct

action of the final policymaker. But C.R.S. § 30–10–506 plainly makes

the sheriff the final policymaker for the Sheriff's Office with respect to

employment of deputies, and if the sheriff acted unconstitutionally in those

duties, the Sheriff's Office can be held liable for his actions.

Tonjes v. Park Cty. Sheriff's Office, 300 F. Supp. 3d 1308, 1332 (D. Colo. 2018). In Starett

v. Wadley, 876 F.2d 808 (10th Cir. 1989), plaintiff sued the County and the County

Assessor, for whom plaintiff worked, alleging the violation of her rights under the First

and Fourteenth Amendments, specifically that she was subjected to sexual harassment and

terminated following her complaints. The court found the evidence sufficient to support

liability against the County for the former employee’s First Amendment claim, because the

County assessor who terminated her was the final decisionmaker for purposes of hiring and

firing. “We hold that Wadley’s termination of plaintiff’s employment was a final policy

decision for the County. . . . Because the County had delegated to Wadley the power to

establish final policy concerning hiring and firing personnel within his department, the

County is liable for Wadley's conduct in that regard.” Id.at 819 (footnote omitted).

Whether an individualized decision is a government policy depends on the

authority of the decision-maker. If the decision-maker has final

policymaking authority for the government entity, all decisions made within

the scope of that authority are government policies under § 1983. Simmons,

506 F.3d at 1285-86. This is so because “[a]n act by a [local government

entity’s] final policymaking authority is no less an act of the institution than

the act of a subordinate employee conforming to a preexisting policy or

custom ... whether that action is to be taken only once or to be taken

repeatedly.” Id. at 1285.

Hicks v. City & Cty. of Denver, No. 17-CV-03001-MSK-KLM, 2019 WL 4306196, at *7

(D. Colo. Sept. 11, 2019). There is no dispute that Defendant Dougherty is the final

policymaker with regard to employment at the Lincoln County Sheriff’s Office and

accordingly, his actions provide the basis for liability against Lincoln County via an official

capacity lawsuit.

The Court finds that there are genuine issues of material fact that remain for

resolution at trial on Plaintiff’s individual capacity and official capacity claims against

Defendant Dougherty. Therefore, summary judgment is inappropriate on Plaintiff’s First

Amendment association claim.

IT IS SO ORDERED this 2" day of April 2020.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

1]