The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
Plaintiffs Dennis Hothem and Kendell Stevens filed a complaint alleging the defendants, Dave Schneider, individually and as Mayor, and the City of Belle Fourche (the "City") engaged in age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., ("ADEA") (alleging both disparate treatment and disparate impact); violated plaintiffs' First Amendment constitutional rights in violation of 42 U.S.C. § 1983; and wrongfully discharged plaintiffs in violation of South Dakota public policy. (Docket 1). Plaintiffs seek punitive damages against defendant Schneider, individually. Id. Both defendants filed answers denying plaintiffs' claims. (Dockets 16 & 17). Defendants filed separate motions for summary judgment on all claims. (Dockets 47 & 57). The court referred the motions to Magistrate Judge Veronica L. Duffy for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket 82).
On January 20, 2012, Magistrate Judge Duffy filed a report and recommendation. (Docket 103). The magistrate judge recommended the court (1) deny the City's motion for summary judgment on plaintiffs' ADEA-disparate treatment claims; (2) grant the City's motion for summary judgment on plaintiffs' ADEA--disparate impact claims; (3) grant defendants' motions for summary judgment on plaintiffs' civil rights claims; (4) grant the City's motions for summary judgment on plaintiffs' state law public policy claims; (5) grant defendant Schneider's motion for summary judgment on plaintiffs' official capacity claims; (6) grant defendant Schneider's motion for summary judgment as to plaintiffs' ADEA claims; and (7) grant defendant Schneider's motion for summary judgment on plaintiffs' state law public policy claims. Id. at pp. 53, 54, 63, 65, 67 & 70. Plaintiffs and the City filed objections. (Dockets 104 & 106). All parties filed responses and replies to the opposing parties' objections.*fn1
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). For the reasons stated below, plaintiffs' objections are granted in part and overruled in part and the City's objections are granted in part and overruled in part. The report and recommendation of the magistrate judge is adopted in part, modified in part, and rejected in part as explained by this order.
A. MAGISTRATE JUDGE'S FINDINGS OF FACT Plaintiffs' objections to the magistrate judge's findings of fact are
1. Whether the South Dakota Department of Environment and Natural Resources ("DENR")*fn2 issued a written reprimand to the City regarding asbestos removal;
2. Whether DENR instructed the City to perform air monitoring during asbestos removal;
3. Whether on the cost of insurance table Kellie Pummel highlighted the group for individuals in the 55-64 age brackets;
4. When did a series of e-mail communications occur regarding the termination of Mr. Hothem and Mr. Stevens;
5. Whether an unemployment expense figure attributable to plaintiffs as of July 20, 2010, was accurate;
6. Whether assisting with asbestos removal was reasonably contained in plaintiffs' job descriptions;
7. Whether Mr. Hothem's speech regarding asbestos removal was part of his job duties;
8. Whether the lack of an expressed antagonism by Mayor Schneider or Mr. Pummel defeats any claim of retaliation against plaintiffs for exercising their rights of free speech;
9. Whether there was any temporal proximity between plaintiffs' asbestos complaints and their terminations;
10. Whether there was any contact with DENR regarding asbestos removal violations; and
11. Whether plaintiffs' terminations were the result of the issues surrounding asbestos removal.
Defendant City's objections ("defendant's objection(s)" or "City's objection(s)") to the magistrate judge's findings of fact are summarized as:
1. Whether Mr. Hothem's date of return to employment with the City was in January of 2006;
2. Whether the "purpose of the custodial-maintenance department" as expressed in the City's statement of undisputed material facts ("SUMF") No. 5 is factually relevant;
3. Whether the "different job descriptions within the custodial-maintenance department before . . . restructur[ing]" as expressed in the City's SUMF No. 9 is factually relevant;
4. Whether "[t]he work performed by the custodial-maintenance technicians before restructuring of the . . . department" as expressed in the City's SUMF No. 10 is factually relevant;
5. Whether Ms. Landphere's calculations at page 15 fn. 11 of the report and recommendation should have been based on the City's SUMF No. 37;
6. Whether Ms. Landphere's calculations in the City's SUMF Nos. 38, 39, 40, 41, and 42 are factually relevant;
7. Whether the City's SUMF No. 54 is factually relevant;
8. Whether the statement Mr. Smoot received a $3 per hour raise is in error;
9. Whether Mr. Hauf was interviewed by Mr. Hothem when Ms. Penny Herman's position became available;
10. Whether the statements about Mr. Hoffman's salary increases and cost of living increase are in error;
11. Whether Mr. Bennett's statement about the position of the city council regarding the custodial-maintenance department is relevant;
12. Whether the City's disciplinary and grievance procedures are relevant to the termination of plaintiffs; and
13. Whether the statement "Mr. Hothem and Mr. Stevens were not provided any explanation or prior notice about their termination, nor were they given the opportunity to provide reasons why the action should not be taken, which Mr. Hothem and Mr. Stevens assert was in violation of the city's own policies" is relevant.
(Docket 104 at pp. 2-5). Each of the parties' objections will be addressed separately.
1. WHETHER DENR ISSUED A WRITTEN REPRIMAND TO THE CITY REGARDING ASBESTOS REMOVAL
Magistrate Judge Duffy set out the background facts regarding the issue of asbestos tile removal at the City's police department. (Docket 103, pp. 6-10). Those facts need not be restated here.
Plaintiffs' objection focuses on whether the DENR issued a "written reprimand" to the City regarding asbestos removal. (Docket 106 at p. 1). Plaintiffs' statement of material facts does not refer to any type of reprimand or warning from the DENR, let alone a written reprimand. (Docket 68) (sealed) (passim).
Erin Schmidt, a DENR employee, described DENR's contact with the City and its employees relating to the asbestos removal issue. (Docket 60). Her affidavit states "[t]o my knowledge, no notice of violation, written reprimand or any other type of disciplinary action or sanction whatsoever was issued against the City of Belle Fourche, its officials or employees, as a result of the [asbestos] incident." Id. at ¶ 12. Mr. Hothem testified he was shown a "warning letter" by City Building Inspector Martha Wierzbicki from the DENR regarding asbestos removal. (Docket 53-12 at pp. 125:20-25 & 128:9-24).*fn3
Plaintiffs have not produced a "warning letter" or "reprimand letter" from DENR. Sufficient time to complete discovery was allowed to locate such a letter if it existed. There are no other citations to the record which support plaintiffs' objection.
Plaintiffs' objection is overruled.
2. WHETHER DENR INSTRUCTED THE CITY TO PERFORM AIR MONITORING DURING ASBESTOS REMOVAL
Plaintiffs' objections to defendant Schneider's SUMF ¶ 14 claims "SDDENR specifically instructed the City of Belle Fourche to perform air monitoring . . . ." (Docket 95 at ¶ 14). On September 27, 2009, Mayor Schneider issued directives that all renovations and demolitions be coordinated with Building Inspector Wierzbicki and that employees follow state law. (Docket 94 at ¶¶ 164-65). One of those directives certainly would include complying with the DENR fax regarding proper asbestos removal. (Docket 60-1). The instructions for asbestos removal were faxed by DENR to Mr. Hothem on January 7, 2008. Id. Among other requirements for removing asbestos, the instructions contain the following provisions:
OSHA does not require monitoring for asbestos levels for most flooring removal jobs. Monitoring is only required if compliant work practices are not followed, if the material is not removed intact, or if the employees are not properly trained . . . .
However, removal of non-intact floor tiles must be conducted in a negative pressure enclosure, and additional protective work practices, personal protective equipment, monitoring, and training must be provided. . . .
OSHA generally requires respirators be worn when Class II work, including removal of resilient floor coverings, is not performed using compliant work practices. . . . (Docket 60-1). This instruction sheet is the only evidence presented by either party addressing air monitoring. Plaintiffs have not produced any evidence DENR required air monitoring by the City.
Plaintiffs' objection is overruled.
3. WHETHER ON THE COST OF INSURANCE TABLE KELLIE PUMMEL HIGHLIGHTED THE GROUP FOR INDIVIDUALS IN THE 55-64 AGE BRACKETS
Ms. Pummel, the City's insurance agent and wife of City Councilman David Pummel, provided health insurance quotes to the City for all of its employees as part of the 2010 budget process. (Docket 87 at ¶¶ 47 & 48). City employees were separated into age brackets for premium analysis. (Docket 78-2). On the health premium analysis table there are four sections highlighted: "Quoted Coverage Ultra $1000 80/20 4100"; "Four Tier Rate Table"; in the age brackets 55-59 "Family $1,512.07"; and in the age bracket 60-64 "Family $1,980.70." Id. at p. 16. Plaintiffs argue Ms. Pummel highlighted the costs of insurance for individuals falling in the 55-64 age brackets. (Docket 106 at p. 2). Plaintiffs' citation to the deposition of Mr. Hothem is not helpful to resolve the objection. (Docket 71 at ¶ 47) (citing Hothem deposition at p. 166). Mr. Hothem's deposition at page 166 offers no testimony on the highlighting of the health insurance table issue. See Docket 73-1 at p. 166. The City counters there is "no evidence as to who highlighted portions of the document or when portions of the document were highlighted." (Docket 87 at ¶ 48) (emphasis in original).
Gloria Landphere, the City's finance officer, e-mailed Councilman Pummel saying "by the way I did those insurance numbers person by person . . . ." (Docket 77-4 at p. 25). But there is no testimony Ms. Pummel, or the City's agents, Councilman Pummel or Finance Officer Landphere, highlighted the insurance premium table.
Plaintiffs' argument, without more, does not create either an undisputed material fact or allow the court to consider plaintiffs' assertion as a fact for summary judgment purposes.*fn4 Considering the actual testimony on this issue, the court finds there is insufficient evidence to determine by whom or when the highlighting occurred.
Plaintiffs' objection is overruled.
4. WHEN DID A SERIES OF E-MAIL COMMUNICATIONS OCCUR REGARDING THE TERMINATION OF MR. HOTHEM AND MR. STEVENS
Plaintiffs' objection asserts a series of e-mail communications occurred in "late August of 2009." (Dockets 106 at p. 2; 71 at ¶¶ 52-53 & 55; 77-4 at pp. 8-9 & 32-33). Plaintiffs claim these discussions were prior to an e-mail of September 6, 2009, in which Councilman Pummel suggested the city council "eliminate [the] assistant superintendent [and] put (Hothem) on probation with bi-weekly reviews and monthly reviews." (Docket 71 at ¶ 55).
Each of the e-mails which are the subject of plaintiffs' objection are properly referenced and considered in the report and recommendation. (Docket 103 at p. 16 n. 12).
Plaintiffs' objection is overruled.
5. WHETHER AN UNEMPLOYMENT EXPENSE FIGURE ATTRIBUTABLE TO PLAINTIFFS AS OF JULY 20, 2010, WAS ACCURATE
The report and recommendation stated "[t]he unemployment figure attributable to Mr. Hothem and Mr. Stevens as of July 20, 2010, was $5,567." (Docket 103 at p. 19). Plaintiffs object to the use of this expense figure, as the City's 2010 total unemployment expense for Mr. Hothem and Mr. Stevens was $11,000. (Docket 106 at p. 2). The City acknowledges the minutes for the December 10, 2010, city council meeting reflect the total unemployment for the calender year for the custodial-maintenance department was $11,000. (Docket 107 at p. 7). This amount was an additional appropriation request by the City Finance Officer for the 2010 year. Id. The report and recommendation is modified consistent with this order.
Plaintiffs' objection is granted.
6. WHETHER ASSISTING WITH ASBESTOS REMOVAL WAS REASONABLY CONTAINED IN PLAINTIFFS' JOB DESCRIPTIONS
Plaintiffs' objection asserts "assisting with asbestos removal" was not part of plaintiffs' job descriptions, but rather "[t]he code inspector made clear that those issues were to go through her office." (Docket 106 at p. 3). The maintenance and custodial working supervisor job description had been in place since September 19, 2006. (Dockets 74-4 at pp. 1-4 & 90-61). The court finds "asbestos removal" was not specifically included in Mr. Hothem's job description. But as the supervisor of the custodial-maintenance department, among other functions, Mr. Hothem had the following clearly defined duties:
[P]erform activities in the maintaining, repairing, and cleaning of ...