250 F.Supp.2d 1112

United States District Court, S.D. Iowa,
Central Division.

Kevin SHEPARD, Plaintiff,

v.

WAPELLO COUNTY, IOWA and Wapello County Sheriff Donald Kirkendall, Defendants.

No. CIV.4-02-CV-10260.

March 4, 2003.
Former county corrections officer sued county and sheriff, alleging wrongful termination occasioned by his complaints of illegal conduct of fellow officer, when accompanying extradited prisoner, and of fiscal mismanagement in connection with denial of overtime pay. Defendants moved for summary judgment. The District Court, Longstaff, J., held that: (1) fact issues precluded summary judgment that termination did not violate Iowa public policy; (2) material issues of fact precluded summary judgment that termination did not violate Iowa whistleblower statute; (3) material issues of fact precluded summary judgment that officer was not terminated in retaliation for assertion of his First Amendment rights; and (4) fact issues precluded summary judgment of nonliability on part of sheriff.
Motion denied.
*1113 Paige E. Fiedler, Beth A. Townsend, Fiedler & Townsend PLC, Johnston, IA, for Plaintiff.
Mark W. Thomas, Grefe & Sidney PLC, Des Moines, IA, for Defendants.
ORDER


LONGSTAFF, Chief Judge.
BEFORE THE COURT is defendants' motion for summary judgment. Plaintiff has resisted the motion and it is now fully submitted.
I. BACKGROUND

The following facts either are not in dispute or are viewed in a light most favorable to plaintiff. Plaintiff began work for defendant Wapello County, Iowa as a correctional officer on November 25, 1997. During the course of plaintiff's tenure with defendant, plaintiff received two promotions, rising to the rank of assistant jail administrator. He was never formally disciplined for misconduct, and remained an at-will employee at all times during his employment.
While serving as assistant jail administrator, plaintiff's direct supervisor was Jail Administrator Sam Craven. Craven in turn reported to Sheriff Donald Kirkendall, a named defendant in the present action.
In May 2001, plaintiff was approached by Kevin Mineart, another corrections officer, who informed plaintiff about a trip taken by Craven and Corrections Officer Katie Leinhauser for purposes of extraditing inmate Patricia McKim from Tucson, Arizona to Ottumwa, Iowa. Mineart informed plaintiff that Leinhauser observed Craven commit several illegal acts during the course of the extradition. Plaintiff told Mineart that if McKim wanted to tell him about the trip in question, she would either need to speak directly with plaintiff, or describe the events in writing.
Several days later, Shawn Smithhart, another sheriff's agent, also contacted *1114 plaintiff. During the course of the conversation, Smithhart outlined the details of the three-day extradition of McKim, including the alleged illegal activities of Craven. Smithhart claimed to have obtained the details directly from McKim.
Included among the facts relayed by Meinhart and Smithhart were the following:
a. that Craven let McKim move about freely on the Amtrak train throughout the three-day journey without handcuffs, shackles or supervision;
b. that Craven repeatedly purchased and allowed McKim to drink alcoholic beverages throughout the journey;
c. that Craven drank alcoholic beverages himself during the trip, often to the point of intoxication;
d. that Craven abused prescription medication to the point of impairment during the extradition trip;
e. that Craven accompanied McKim to several bars in Chicago;
f. that Craven allowed McKim to spend the night alone, unsupervised, in her own hotel room in downtown Chicago; and
g. failed to get McKim medical attention when she became ill from excessive drugs and alcohol.
After his conversation with plaintiff, Smithhart told McKim how to contact plaintiff.
A few days later, McKim called plaintiff and asked to meet. Plaintiff met with McKim on May 13, 2001. McKim confirmed and reiterated Mineart's and Smithhart's accounts of the three-day trip from Tucson to Ottumwa.
McKim then mentioned her meeting with plaintiff to her neighbor, Judd Letts. Letts told Craven about the meeting, who in turn contacted Sheriff Kirkendall and complained that an investigation was being conducted behind his back. When Kirkendall asked whether McKim's account of the extradition trip had any merit, Craven admitted to allowing McKim to travel without restraints during the Amtrak train trip, but denied all other allegations of illegal conduct.
Meanwhile, plaintiff attempted to determine how best to approach Sheriff Kirkendall with his information. Plaintiff had little time for contemplation, however. On May 15, 2001, Kirkendall, having already learned of the situation through Craven himself, summoned plaintiff to his office. During the meeting, Kirkendall told plaintiff not to continue his inquiry into McKim's extradition. Plaintiff took no further action after this date.
On July 1, 2001, Kirkendall again called plaintiff to his office, where Deputy Mark Miller also was present. Kirkendall told plaintiff he must resign or face termination. Plaintiff asked why he was being terminated and was told it was the Patricia McKim thing. Kirkendall stated that he didn't think the events described by McKim ever occurred and that plaintiff had coerced McKim into making a statement. Plaintiff responded that this wasn't true but that in any event, he had stopped his investigation. Kirkendall then brought up several unrelated criticisms of plaintiff's performance that had never been communicated to plaintiff in the past. He told plaintiff that if he chose not to resign and was terminated, he would be ineligible for unemployment benefits. Plaintiff subsequently resigned.
Plaintiff filed the present action in this Court on June 3, 2002. Count I alleges defendants wrongfully discharged plaintiff in violation of recognized Iowa public policy. Count II alleges defendants violated Iowa Code § 70A.29, which prohibits an employer from discharging, disciplining or failing to hire an individual as a reprisal *1115 for a disclosure of any information by that employee to certain public officials. IOWA CODE § 70A.29. Count III sets forth a cause of action under 42 U.S.C. § 1983, alleging the defendants unlawfully retaliated against plaintiff for exercising his First Amendment rights. Count IV alleges a parallel cause of action under § 1983 against Sheriff Kirkendall in his individual capacity. Defendants now move for summary judgment on counts I, III and IV of plaintiff's complaint.
II. APPLICABLE LAW AND DISCUSSION

A. Governing Law

Summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Walsh v. United States, 31 F.3d 696, 698 (8th Cir.1994). The moving party must establish its right to judgment with such clarity that there is no room for controversy. Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir.1982). [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine, if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505. As to materiality, the substantive law will identify which facts are material"""" Factual disputes that are irrelevant or unnecessary will not be counted. Id.
B. Wrongful Discharge in Violation of Public Policy (Count I)

Under Iowa law, an employer generally may discharge an at-will employee at any time for any reason. Huegerich v. IBP, Inc., 547 N.W.2d 216, 219 (Iowa 1996); Borschel v. City of Perry, 512 N.W.2d 565, 566 (Iowa 1994). The Iowa Supreme Court has recognized two exceptions to this rule: (1) if the discharge violates a well-recognized and defined public policy of the state; and (2) if a contract has been created by an employee handbook or manual, and the contract is somehow breached. Borschel, 512 N.W.2d at 566 (quoting Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560 (Iowa 1988)). The public policy exception is at issue in the present case.

To recover damages under the public policy exception to the employment at-will doctrine, a plaintiff must establish (1) engagement in a protected activity, (2) adverse employment action, and (3) a causal connection between the two. Teachout v. Forest City Community School Dist., 584 N.W.2d 296, 299 (1998). In the present case, defendants do not dispute that plaintiff's resignation was in fact a termination, or adverse employment action. FN1 Rather, defendants contend plaintiff is unable to establish that his investigation of Craven constituted protected activity, and/or a causal link between plaintiff's termination and his engagement in protected activity.
FN1. In paragraph 17 of their Statement of Material Facts Not in Dispute, defendants concede Sheriff Kirkendall requested that plaintiff resign.
To evaluate whether plaintiff engaged in a protected activity, the Court must first determine whether plaintiff has identified a well-recognized and defined public policy of the state. Borschel, 512 N.W.2d at 566. This is a legal question to be decided by the Court. See, e.g., *1116 Kempfer v. Automated Finishing, Inc., 211 Wis.2d 100, 564 N.W.2d 692, 695 (1997). For purposes of this determination, the Iowa Supreme Court has recognized that: There need not be an express statutory mandate of protection before an employee's conduct is shielded from adverse employment action. Teachout, 584 N.W.2d at 300. As a practical matter, however, public policy expressed in the constitution and the statutes of the state may be relied upon for finding an exception to the employment at-will doctrine. Borschel, 512 N.W.2d at 567.
In the present case, plaintiff contends his forced resignation violated state public policy encouraging or, in some instances, requiring, the reporting of criminal acts. Specifically, he contends Craven's conduct while transporting McKim violated the following Iowa Code sections:
a. Iowa Code § 719(3), prohibiting the knowing conveyance of contraband, including alcoholic beverages and controlled substances, to an inmate;
b. Iowa Code § 719(8), prohibiting the furnishing of alcoholic beverages or controlled substances to an inmate;
c. Iowa Code § 721.2(4), prohibiting the use of one's public office to require another to do something in excess of one's authority, or requiring another to do an unlawful act;
d. Iowa Code § 721.2(6), prohibiting public employee from failing to perform duty required by law;
e. Iowa Code § 719.5, prohibiting any public officer from permitting, aiding or abetting the escape of an inmate;
f. Iowa Code § 904.320, regulating private transportation of prisoners;
g. Iowa Code § 356.2, requiring sheriffs to receive and keep county prisoners until discharged by law;
h. Iowa Code § 356.50, requiring compliance with standards for private transportation of prisoners promulgated by the American Corrections Association;
i. Iowa Code § 70A.29, prohibiting retaliation against public employees for disclosing information that the employee reasonably believes violates a law or rule, or constitutes an abuse of funds, abuse of authority, or a danger to public safety;
j. 201 IAC § 50.13(2), requiring 24-hour supervision of all inmates and that inmates must be able to be observed at all times; and
k. 201 IAC 50.15(6), requiring jail personnel to provide qualified medical attention to inmates who are obviously injured or ill.
Complaint at ¶ 33. Although many of the above statutes are likely irrelevant to the present matter, there is evidence in the record sufficient to have caused plaintiff to believe Craven violated Iowa Code §§ 719(3) and 719(8). Clearly, Iowa public policy encourages an employee to report suspected criminal activity to the appropriate authority, and, in fact, protects public employees from retaliation for reporting such criminal activity, abuse of authority or similar infractions. See§ 70A.29(1) (rendering it unlawful to take adverse employment action against public employee as a reprisal for a disclosure of any information by that employee regarding another employee's violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety). In fact, plaintiff may have been legally obligated to report the allegations to Sheriff Kirkendall. SeeIOWA CODE § 719.7(4)(B) (A person who possesses contraband or fails to report an offense of possessing contraband as set forth under § 719.7 commits a class D felony).