Opinion
4:00CV3135
August 17, 2001
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case is now before me on a motion for summary judgment by the defendants, Nebraska Public Power District (hereinafter NPPD), and Jerry Steger, Meshelle Boruch, and Glen Baete, in their official capacities, filing 29. In her complaint, the plaintiff, Donna Kastanek, alleges that she was illegally terminated from her position at NPPD in retaliation for exercising her First Amendment right to comment on matters of public concern. In their motion for summary judgment, the defendants argue that (1) the plaintiff cannot demonstrate that she was terminated pursuant to any NPPD policy or custom, and (2) regardless of the existence of any such policy or custom, the plaintiff was terminated for engaging in non-protected activity. After carefully reviewing this matter, I find that the defendants' motion will be granted.
I. Background
This background is taken primarily from my order of August 7, 2000, in which I denied a motion to dismiss by the defendant, NPPD, and the defendants Steger, Boruch, and Baete, individually and in their official capacities. Filings 11, 12.
The defendant NPPD is a public corporation and political subdivision of the State of Nebraska. The plaintiff Donna Kastanek was employed by NPPD until the spring of 2000, when she was terminated from her position as a buyer at NPPD's Sheldon station. The defendants Jerry Steger, Meshelle Boruch, and Glen Baete were all employees of NPPD at the time of the plaintiff's termination. As of March 28, 2000, Jerry Steger was a manager, Meshelle Boruch was apparently a supervisor, and Glen Baete was the plant manager.
In their answer, the defendants deny that Boruch was a direct supervisor of the plaintiff. See filing 15 ¶ 11.
The plaintiff alleges that during the course of her employment with NPPD, she "observed numerous practices conducted and condoned by the management of NPPD which were unethical, illegal, and/or threatened the safety of employees." Filing 1 ¶ 14. Specifically, the plaintiff asserts that during 1999 and 2000, she observed the following:
a) Flyash Silo explosion on December 29, 1999
b) On February 21, 2000, a 9th Floor bunker explosion in which management failed to sound any warning sirens, account for personnel, or call in the Emergency Response Team
c) Failure to clean bunker floors
d) Failure to equip bunker floors with fire protection such as CO2 or water-type fire extinguishers
e) Failure to properly train employees
Id. ¶ 15.
The plaintiff alleges that after observing these incidents, she met with Bill Mayben on February 22, 2000. During this meeting, the plaintiff apparently expressed her concerns about the safety of the NPPD plant. She claims she reported that the bunker explosions had been occurring since the summer of 1998, yet NPPD management had done nothing to stop them. She also claims she informed Mayben that the 9th floor of the plant was "filthy with coal dust," but management would not hire anyone to clean the floor because of the cost. Id. ¶ 17. Thus, according to the plaintiff, employees from other departments took turns cleaning this area, despite the fact that these employees had not been properly trained to complete such a job.
The complaint does not indicate what position Mayben held at NPPD. In her brief, the plaintiff states that Mayben was "President and CEO." Plaintiff's Brief in Opposition to Motion for Summary Judgment [hereinafter Plaintiff's Brief] at 5.
The plaintiff alleges that on February 24, 2000, she met with Bill Fehrman, vice president of NPPD's Sheldon station, and expressed similar safety concerns. The plaintiff also claims she notified Fehrman that the plant's fire protection was inadequate and advised Fehrman that the bunker fires had begun approximately two years earlier, when the defendant Glen Baete became the Plant Manager. According to the plaintiff, she again met with Fehrman on March 2, 2000, and reported that another employee was working in an area in which she was improperly trained. The plaintiff asserts that she then contacted Bill Mayben on March 10, 2000, "to touch base and reiterate her concerns." Id. ¶ 20.
On March 16, 2000, NPPD suspended the plaintiff with pay and informed her that she was the subject of an internal investigation. On March 28, 2000, the plaintiff was notified that her employment was terminated for "conduct inconsistent with District policy and values." Id. ¶ 24. Defendants Jerry Steger and Meshelle Boruch signed the Notice of Termination.
In her first cause of action, the plaintiff asserts that she was illegally terminated by the defendants Jerry Steger, Meshelle Boruch, and Glen Baete in retaliation for exercising her First Amendment right to comment on matters of public concern. In her second cause of action, the plaintiff makes the same assertion against the defendant NPPD. In an order dated August 7, 2000, I dismissed the plaintiff's third cause of action, which was based on § 48-1114(3) of the Nebraska Fair Employment Practice Act. See filing 12.
In a later order, I denied a Motion for Summary Judgment Based on Qualified Immunity of Defendants Steger, Boruch and Baete in their Individual Capacities. See filings 14, 17.
II. Standard of Review
A motion for summary judgment shall be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "material" fact is one "that might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine" issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 158-59 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256, 257 (citations omitted) (citing Fed.R.Civ.P. 56(e)).III. Analysis
Municipal defendants may not be held liable under § 1983 on a respondeat superior theory. See Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents."); see also McGautha v. Jackson County, Mo., Collections Dep't, 36 F.3d 53, 56 (8th Cir. 1994), cert. denied, 515 U.S. 1133 (1995) ("Respondeat superior does not apply under § 1983. . . ." (citations omitted)). However, "[a] plaintiff may establish municipal liability under § 1983 by proving that his or her constitutional rights were violated by an `action pursuant to official municipal policy' or misconduct so pervasive among non-policymaking employees of the municipality `as to constitute a "custom or usage" with the force of law.'" Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998) (citations omitted). A "custom or usage" is demonstrated by the following:
(1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and
(3) Th[e] plaintiff['s] injur[y] by acts pursuant to the governmental entity's custom, i.e., [proof] that the custom was the moving force behind the constitutional violation.Id. (quoting Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990)). By contrast, the Eighth Circuit has defined the term "policy" as "a deliberate choice of a guiding principle or procedure made by the municipal official who [is determined by state law to] ha[ve] final authority regarding such matters." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citations omitted). Although municipal liability for constitutional violations may arise from a single act, "that act must come from one in an authoritative policy making position" who "`possesses final authority to establish municipal policy with respect to the action ordered.'" McGautha, 36 F.3d at 56 (citations omitted); Ware, 150 F.3d at 885 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)); see also Monell, 436 U.S. at 694 ("[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."). The question of whether a particular individual is a "final policymaker" is a matter of state law for the court. See Ware, 150 F.3d at 885; Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) ("[T]he identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury." (emphasis in original)); City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) ("[T]he identification of policymaking officials is a question of state law.").
In moving for summary judgment, the defendants first argue that the plaintiff "has not and will not be able to raise a genuine issue of material fact as to whether the defendant's [sic] alleged actions in any way represented the implementation or execution of any deliberate, constitutionally violative [sic] NPPD official policy or custom." Defendants' Brief in Support of Motion for Summary Judgment [hereinafter Defendants' Brief] at 5. I am inclined to agree. In supporting their motion, the defendants submit the affidavit of Guy Horn. See filing 30, Ex. 1. Horn states that he is the Senior Vice-President, Energy Supply for the defendant NPPD. Id. ¶ 1. Horn explains that in his capacity as Senior Vice President, "it is not [his] responsibility to establish [NPPD's] customs, policies, rules, and practices regarding the discharge of employees"; rather, "[s]uch customs, policies, rules, and practices regarding the discharge of employees are established by [NPPD's] Human Resources Department under authority delegated by [NPPD's] Board of Directors through [NPPD's] President and CEO."
Id. ¶ 2. According to Horn:
As Senior Vice-President, I am in a position of authority over defendants Jerry Steger, Meshelle Boruch, and (through the Vice President Fossil Energy) over Glen Baete. These individuals are not policy makers for [NPPD], a public corporation and political subdivision of the State of Nebraska, regarding the discharge of employees from employment, and they were not acting as policy makers for [NPPD] regarding the discharge of employees from employment at any time relevant to the instant lawsuit.
The decision to terminate Donna Kastanek from her employment with NPPD was made with my approval and under my authority after consultation with [NPPD's] Human Resources Department and [NPPD] Legal Counsel. . . .Id. ¶¶ 3, 4. I agree with the defendants that Horn's affidavit satisfies their initial burden of demonstrating the absence of any genuine issue of material fact as to whether the defendants Steger, Boruch, and Baete were "final policymakers" with respect to the termination of employees. In response, the plaintiff merely asserts that "[c]learly, Defendants Steger, Boruch, and Baete are officials responsible for establishing final policy with respect to the subject matter in question [i.e., termination of an employee] so as to extend liability to the municipality." Plaintiff's Brief at 5. The plaintiff submits no evidence, and directs me to no authority, in support of this blanket assertion. Nor does the plaintiff submit any evidence contradicting the Horn affidavit. In the absence of evidence indicating that these three individual defendants had final policy-making authority, I have no basis for concluding that the plaintiff was terminated pursuant to an NPPD policy of disciplining and/or discharging employees for speaking on matters of public concern. See Ware, 150 F.3d at 880 ("`Official policy involves "a deliberate choice to follow a course of action . . . made from among various alternatives" by an official who [ is determined by state law to have] the final authority to establish governmental policy.'" (quoting Jane Doe A, 901 F.2d at 645) (emphasis supplied)); see also McGautha, 36 F.3d at 56 ("`When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality.'" (quoting Praprotnik, 485 U.S. at 127); Ware, 150 F.3d at 885 ("Stated differently, where the right to review a decision is retained, there has been an incomplete delegation of authority, and municipal liability may not attach; on the other hand, an absolute delegation of authority may implicate the municipality." (citation omitted)).
As discussed above, however, liability may also be established "through proof that the alleged misconduct was so pervasive among the non-policy making employees of the municipality `as to constitute a "custom or usage" with the force of law.'" McGautha, 36 F.3d at 56 (quoting Monell, 436 U.S. at 690-91; Adickes, 398 U.S. at 144). According the plaintiff, "[the] Defendant NPPD has not limited its constitutional deprivations to an isolated instance." Plaintiff's Brief at 4. In support of her claim, the plaintiff directs me to a decision by the Honorable Richard G. Kopf in the case of Michaelson v. Nebraska Public Power District, No. 4:00CV3101. See filing 36, Ex. 1. In Michaelson, a former NPPD employee, Tim Michaelson, sued NPPD and two individuals, in their official and individual capacities, alleging that he was terminated for (1) speaking on matters of public concern, and (2) opposing NPPD actions that violated federal regulations. See id. at 1. Judge Kopf, in denying NPPD's motion for summary judgment with respect to the First Amendment claim, concluded that a genuine issue of material fact remained as to "the existence of a custom of terminating NPPD employees for speaking on matters of public concern." Id. at 2. In doing so, Judge Kopf cited to (1) an affidavit by the plaintiff Kastanek, and (2) the deposition testimony of a Paul Deterville. See id. The plaintiff has not submitted any evidence regarding Deterville and does not suggest that Deterville's testimony is relevant in this case. Instead, relying on her experience and the Michaelson incident, the plaintiff asserts that "NPPD seems to have established a fixed plan of action to be followed under similar circumstances by consistently terminating employees for speaking out on matters of public concern." Plaintiff's Brief at 4 (emphasis supplied); see also id. at 5 ("The manner in which the Plaintiff's choice to speak out on matters of public concern was punished is identical to the manner in which the Defendant NPPD punished Michaelson for the same choice. . . . This course of conduct clearly establishes a fixed plan of action to be followed under similar circumstances consistently and over time on the part of Defendant NPPD." (emphasis supplied)). I disagree.
The Eighth Circuit has recognized that "[l]iability for an unconstitutional custom or usage . . . cannot arise from a singe act." McGautha, 36 F.3d at 57 (citations omitted). Here, the question is whether two alleged incidents rise to the level of a "custom or usage," as defined by the Eighth Circuit. I conclude that they do not. I simply fail to see how these two incidents, standing alone, can demonstrate the existence of a "persistent and widespread" unconstitutional practice so "permanent and well settled" as to have the "effect and force of law." See Jane Doe A, 901 F.2d at 646 (citing Monell, 436 U.S. at 691); see also Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998) ("We recently held that two specific complaints and various rumors about an officer were not sufficient to establish a policy or custom of condoning unconstitutional conduct." (citing Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)); Andrews, 98 F.3d at 1075-76 (concluding that "two instances of misconduct" by a police officer, combined with various rumors relating to that officer, did not "indicate a `persistent and widespread' pattern of misconduct that amounts to a city custom or policy of overlooking police misconduct" (citing Monell, 436 U.S. at 691)); Miller v. Kennard, 74 F. Supp.2d 1050, 1065-66 (D.Utah 1999) (finding that even if two employees of county sheriff's office suffered retaliation in violation of First Amendment, such incidents were insufficient, standing alone, to establish "persistent and widespread" unconstitutional practice, as required to hold county liable under § 1983 for transfer of plaintiff to undesirable position). Accordingly, I find that the plaintiff has failed to demonstrate a genuine issue of material fact with respect to NPPD's liability on the basis of custom or usage.
Because the plaintiff has failed to submit sufficient evidence regarding the existence of a NPPD policy or custom of retaliation against conduct protected under the First Amendment, the defendant NPPD's motion for summary judgment will be granted. For the same reasons, summary judgment is also appropriate with respect to the defendants Steger, Boruch, and Baete, in their official capacities. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("A suit against a public employee in his or her official capacity is merely a suit against the public employer." (citing Kentucky v. Graham, 473 U.S. 159 (1985)); Kentucky, 473 U.S. at 165-66 ("Official-capacity suits . . . `generally represent only another way of pleading an action against an entity of which an officer is an agent.' . . . As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." (quoting Monell, 436 U.S. at 690, n. 55; Brandon v. Holt, 469 U.S. 464, 471-72 (1985)).
As an alternative ground for summary judgment, the defendants argue that even if the plaintiff could prove the existence of such a policy or custom, "the fact remains that [the plaintiff] was terminated from NPPD for violating NPPD policies governing employee use of NPPD procurement card[s] for personal purposes, benefit and gain." Defendants' Brief at 4-5. Because I have already determined that there is no basis to hold NPPD liable, I see no reason to reach the defendants' alternative argument.
IT IS ORDERED that the Defendants' Motion for Summary Judgment, filing 29, is granted.