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Landwehr v. City of Gerald

United States District Court, E.D. Missouri, Eastern Division

December 18, 2017

BRADLEY LANDWEHR, Plaintiff,
v.
CITY OF GERALD, MO., et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants' motion for summary judgment (Doc. No. 24). The motion is fully briefed and ready for disposition. Plaintiff Bradley Landwehr (“Landwehr”) brings this action pursuant to 42 U.S.C. § 1983, claiming he was terminated from his employment in violation of his First Amendment rights to free speech and political association. Landwehr also asserts claims for retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Missouri Human Rights Act, R.S. Mo. § 213.010 et seq. (“MHRA), and conspiracy to terminate him in violation of his rights under state and federal law. Defendants are the City of Gerald, Missouri (the “City”), former City Mayor Keith Wehmeyer (“Wehmeyer”), who is sued only in his individual capacity, and Hillary Ward (“Ward”) and Stephen Grgurich (“Grgurich”), members of the City's Board of Aldermen, who are sued in their individual and official capacities.[1] For the following reasons, the motion will be granted in part and denied in part.

         I. Background[2]

         Wehmeyer served as Mayor of the City from April 2015 to October 2015.[3] (SOF ¶ 135) Prior to his election on April 4, 2015, Wehmeyer was a member of the City's Board of Aldermen. Ward and Grgurich were at all relevant times and are currently members of the City's Board of Aldermen.

         Landwehr was hired by the City as the part-time Director of Public Works in December 2009, following the demotion of Nicholas Grube (“Grube”). (SOF ¶¶ 146, 147.)[4] In April 2010, Mayor Schulte reappointed Landwehr as the part-time Director of Public Works; Landwehr's reappointment was unanimously approved by the City's Board of Aldermen. (SOF ¶¶ 143, 149.) In May 2010, Landwehr was hired as the full-time salaried Director of Public Works. (SOF ¶ 150.) In July 2012, “after much discussion about his performance” and budgetary issues, the Board of Aldermen voted to relieve Landwehr of his duties and re-appoint Grube as Public Works Director.[5] (SOF ¶ 152.) In August 2012, then-Mayor Joanne Parmentier officially reappointed Grube as Public Works Director. (SOF ¶ 153.) In April 2013, newly (re)elected Mayor Schulte reappointed Landwehr as Director of Public Works. Landwehr served in the position until he was terminated on February 24, 2015. (SOF at ¶¶ 1, 154.)

         On February 24, 2015, the Board, comprised of Aldermen Weatherford, Wehmeyer, Ward and Justus, voted unanimously to terminate Landwehr because his “services were no longer needed.” (Doc. No. 25-7 at 1-2; SOF ¶¶ 1, 9.) Although the Board minutes do not reflect the Board's reasons for terminating Landwehr (POSF ¶¶ 193, 201), Defendants later testified that Landwehr was terminated for his overspending, lack of reliable quotes for the Board, performing unnecessary tasks, mismanagement of the construction, repair and maintenance of the Walnut Lift Station, failure to follow the City's purchasing policy, buying dirt without bids or Board approval, failure to remedy DNR violations relating to the Lagoon, failure to finish the Pretreatment Ordinance, failure to enforce the Disconnect Policy on water and sewer, failure to perform routine maintenance on equipment resulting in excessive repair bills, and being out of town or on personal business during work hours (SOF ¶¶ 15-31, 37-47, 50, 54; PSOF ¶ 191). The Board never discussed with Landwehr any issues or concerns it had with his job performance or afforded him an opportunity to address those concerns[6] (PSOF ¶¶ 190, 207, 244), although Landwehr testified he was aware of the Board's dissatisfaction with the cost of repairs to the Lift Station and his decision in the summer of 2014 to purchase dirt to fill in a ditch in front of City Hall (SOF ¶¶ 32, 33, 34). Following his termination on February 24, Landwehr requested a hearing, “as this is not the first time he [had] been fired by the Board.” (Doc. No. 25-7 at 2.)

         A reinstatement hearing was held in open session before the Board of Aldermen on February 27, 2015. (Doc. No. 25-7 at 2-4; SOF ¶¶ 2, 70.) Then-Alderman Wehmeyer recused himself. (SOF ¶ 69.) Landwehr appeared at the hearing with counsel and threatened to bring an age and/or disability discrimination lawsuit against the City if he was not reinstated.[7] (SOF ¶ 71; PSOF ¶ 249.) Alderman Weatherford resigned during the hearing. Grgurich was not present. (SOF ¶ 82.) The remaining two Aldermen, Ward and Justus, testified that faced with the threat of a lawsuit, they felt it was in the City's best interest to reinstate Landwehr. (PSOF ¶¶ 251-53.) Both voted to reinstate Landwehr. (SOF ¶ 2.) Following Landwehr's reinstatement on February 27, 2015 through April 14, 2015, the Board was unaware of any additional issues or problems with Landwehr's job performance. (PSOF ¶¶ 227, 228, 229.)

         In April 2015, Landwehr's brother, Jeff Landwehr, ran against Wehmeyer in the mayoral election. Although Wehmeyer, Ward and Grgurich never saw Landwehr do anything to support his brother's candidacy, they all “assumed” he was supporting his brother. (SOF ¶¶ 87, 89, 156.)

         On April 4, 2015, an anonymous attack letter (“Five Reasons Not to Vote for Me” letter) listing five reasons why residents should not vote for Wehmeyer was delivered to several City residents.[8] (Doc. No. 32-12.)

         After registering to run for Mayor in April 2015, Wehmeyer contacted Grube about the Public Works Director position, because he planned to replace Landwehr if he was elected. (SOF ¶ 84.)

         On April 7, 2015, Election Day, Rick Duncan, a candidate for the City Board of Aldermen, was present at the City polling station and overheard Wehmeyer, Ward, and Grugrich talking about what they would do if elected. Grugrich was running for the Board of Alderman. Wehmeyer and Grugrich were running as a team and encouraging people to vote for both of them because they “knew where they wanted to take the City.” (PSOF ¶ 163.) According to Duncan, Wehmeyer told Ward and Grugrich: “I can tell you one thing, Landwehr is campaigning for his brother and that will be a good reason to get rid of him.” Duncan also overheard Wehmeyer tell Ward and Grugrich that Landwehr was behind the “Five Reasons Not to Vote for Me” letter, and that when he won the election, “that will be reason enough to fire his ass.” (PSOF ¶¶ 157, 159, 165, 166-168, 171.) Wehymeyer denies making these statements, and Ward and Grugrich deny having any conversations with Wehymeyr about it. Landwehr disputes the truthfulness of Defendants' testimony.

         Defendant Wehmeyer defeated Landwehr's brother in the mayoral race and on April 14, 2015, was sworn in as the new City Mayor. (SOF ¶ 3.) Wehmeyer then appointed Grube as Public Works Director to replace Landwehr. (SOF ¶ 4.) Ward moved to accept the appointment; Grugrich seconded the motion. Ward and Grgurich voted “aye;” Aldermen Justus and Lowe voted “nay.” Wehmeyer broke the tie with an “aye” vote and the motion carried. (Doc. No. 25-7 at 21.) Landwehr was the only appointed officer Wehmeyer replaced when elected. (PSOF ¶¶ 184, 185.) Ward and Grugrich both contend they did not know Wehmeyer was going to nominate Grube as Public Works Director. (PSOF ¶ 236.)

         On or about May 27, 2015, Landwehr filed a charge of discrimination with the Missouri Human Rights Commission and the Equal Employment Opportunities Commission (EEOC). On January 13, 2016, he was issued a right-to-sue letter by the Missouri Human Rights Commission; on May 13, 2016, he was issued a right-to-sue letter by the EEOC. On August 9, 2016, Landwehr filed his First Amended Complaint alleging violation of his First Amendment rights to free speech and political association in violation of 42 U.S.C. § 1983 (Count I); age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 261 et seq. and the Missouri Human Rights Act, R.S. Mo. § 213.010 et seq. (Count II)[9]; retaliation (Count III); conspiracy to violate civil rights (Count IV); and conspiracy to violate civil rights under state law (Count V). (First Amended Complaint (“FAC”), Doc. No. 12). Landwehr claims he was terminated because of his support of his brother's candidacy for Mayor against Defendant Wehmeyer and/or his political association with his brother, and because his counsel threatened litigation at his reinstatement hearing.

         II. Legal Standard

         “Summary judgment is proper where the evidence, when viewed in a light most favorable to the non-moving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.R.Civ.P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id. “The basic inquiry is whether the evidence presents 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.” Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and citation omitted). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the movant does so, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         In determining whether summary judgment is appropriate in a particular case, the Court reviews the facts in a light most favorable to the party opposing the motion and gives that party the benefit of any inferences that logically can be drawn from those facts. The Court is required to resolve all conflicts of evidence in favor of the nonmoving party. Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 619 (8th Cir. 1988). In considering a motion for summary judgment, the Court may not make credibility ...


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