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Waide v. City of Oklahoma City

United States District Court, W.D. Oklahoma

March 4, 2019

CATHERINE E. WAIDE, Plaintiff,
v.
CITY OF OKLAHOMA CITY, et al., Defendants.

          ORDER

          TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Douglas Kupper's Motion for Summary Judgment [Doc. No. 48], filed pursuant to Fed.R.Civ.P. 56.[1] Defendant Kupper seeks a judgment in his favor on a claim asserted against him under 42 U.S.C. § 1983, alleging a violation of Plaintiff's Fourteenth Amendment right to due process.[2] Plaintiff Catherine Waide has filed a response brief [Doc. No. 71], and Defendant Kupper has replied [Doc. No. 74]. Thus, the Motion is fully briefed.

         Factual and Procedural Background

         Plaintiff was a municipal employee for more than 20 years when she was terminated on June 22, 2015, from a management position in the parks department. Defendant Kupper, who became director of the department in May 2014, made the initial termination decision. Although Plaintiff asserts numerous claims against her employer, Defendant City of Oklahoma City (the “City”), any individual liability of Defendant Kupper arises only under § 1983, and is based on his alleged violation of Plaintiff's constitutional rights during the termination process. Specifically, Plaintiff alleges she had a property interest in continued employment and she was deprived of that interest without adequate pre-termination procedures required by the Due Process Clause under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), and its progeny. Plaintiff also alleges the post-termination grievance and appeal process (which she completed without success in overturning the decision) was constitutionally flawed.

         Defendant's Motion

         Defendant Kupper seeks summary judgment on the ground that Plaintiff had no property interest in her employment that was protected by the Due Process Clause. Alternatively, Defendant Kupper asserts that constitutionally adequate procedures were followed. Defendant Kupper presents evidence to show that Plaintiff received a “predetermination hearing” as provided by the City's personnel policies; he contends this procedure provided greater pre-termination protection than Loudermill requires. See Def. Kupper's Mot. at 11-12. Plaintiff also utilized the post-termination grievance and review process available to all municipal employees. Finally, Defendant Kupper asserts the defense of qualified immunity.

         Plaintiff's Response

          In response to Defendant Kupper's Motion, Plaintiff relies in substantial part on a mistaken admission by the City in its Answer, admitting a paragraph of Plaintiff's petition alleging that she had a property interest in her employment. See Pl.'s Resp. Def. Kupper's Mot. at 1, 7-9 & n.1 (citing City's Answer [Doc. No. 7], ¶ 67). When alerted to this error, however, the City promptly moved to amend its pleading. See City's Appl. Leave File Am. Answer [Doc. No. 73]. Over Plaintiff's objection, the Court granted the motion, and the City timely filed its Amended Answer [Doc. No. 83], denying the allegation. This amendment superseded the City's original pleading “and render[ed] it of no legal effect.” Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (internal quotation omitted); see Predator Int'l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1180-81 (10th Cir. 2015. Because the City has effectively withdrawn the admission, Plaintiff's reliance on it is now unfounded.[3]

         Plaintiff also asserts that a property interest in continued employment was created by an implied contract arising from certain provisions of the City's employee “handbooks, ” by which she refers to its personnel policies and internal departmental policies. See Pl.'s Resp. Def. Kupper's Mot. at 9. Plaintiff contends the pre-termination procedures provided to her were insufficient to satisfy all requirements of Loudermill, particularly that she receive a meaningful opportunity to respond to the charges against her before the termination decision was made. Plaintiff's response to Defendant Kupper's Motion is silent regarding any alleged deficiency in the post-termination procedures that were provided, but she explains in response to the City's Motion for Summary Judgment that she believes ex parte communications occurred during the grievance and appeal process and interfered with her right to an impartial review of the decision. See Pl.'s Resp. Def. City's Mot. [Doc. No. 75] at 32-33, 34-35.

         Standard of Decision

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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 dispute is genuine if the evidence is such that a reasonable jury could return a verdict for either party. Id. at 255. All facts and reasonable inferences must be viewed in the light most favorable to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks sufficient evidence on an essential element of a claim, all other factual issues concerning the claim become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The movant bears the initial burden of demonstrating the absence of a dispute of material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant carries this burden, the nonmovant must go beyond the pleadings and “set forth specific facts” that would be admissible in evidence and that show a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671; see Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). The Court's inquiry is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-52.

         Statement of Undisputed Facts [4]

         The City operates under a council-manager form of government and a city charter. The city manager serves as the City's chief administrative officer, and the charter authorizes the city manager to appoint and dismiss all officers and employees of the City except elected officers. See Def. Kupper's Mot., Ex. 1 [Doc. No. 48-1], Charter art. IV § 3(a), (c)-(d) (available online at https://library.municode.com/ok/oklahomacity/codes/ codeofordinances?nodeId=OKCH). The charter expressly provides that “removals and demotions shall be made solely for the good of the service, ” and requires the city manager to “[d]ismiss any officer or employee appointed by him whenever, in his judgment, the interests of the City service so require.” Id. art. III § 1; art. IV § 3(d). Also, all employees of the City are subject to written personnel policies. These policies expressly state they “are not a contract of employment, nor are they intended to be and shall not be interpreted by an employee as a contract of employment.” See Def. Kupper's Mot., Ex. 2 [Doc. No. 48-2], Personnel Policies § 102. The City viewed Plaintiff as an at-will municipal employee who could be terminated at any time for any reason that was not illegal;[5] her employment was not covered by a collective bargaining agreement or written employment contract.

         On May 22, 2015, Plaintiff was placed on administrative leave with pay and given written notice by Defendant Kupper of a pre-determination meeting regarding disciplinary action, “up to and including termination.” See Def. Kupper's Mot., Ex. 5 [Doc. No. 48-5] Mem. at 2. The notice alleged three policy violations and provided examples of unacceptable conduct: fostering a culture of intimidation (describing two specific instances of intimidating statements); poor decision making or management of human resources (citing a decision to retain and transfer a probationary employee accused of threatening behavior); and unprofessionalism (describing two instances of unprofessional conduct related to the resignation of her immediate superior ...


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