The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment and claim that all of plaintiff's claims fail as a matter of law and should be dismissed. Docket 17. Defendants argue that plaintiff cannot establish that he was denied due process because he does not have a property interest in his employment, he cannot maintain a cause of action under the Privacy Act against a municipality, he cannot establish that defendants acted outrageously, and that a § 1983 claim cannot be maintained against any of the defendants in their official or individual capacities. Plaintiff, Stephan Alan Warnock, resists that motion. Docket 21. Warnock claims that there are genuine disputes of material fact that must be decided by the jury, and defendants' motion should be denied. For the following reasons, defendants' motion for summary judgment is granted.
The evidence*fn1 viewed in the light most favorable to the nonmoving party, Stephan Alan Warnock, is:
The City of Canton (Canton or the city) is a municipality that had an aldermanic form of government until 2008. Warnock began working as a part-time police officer for the city in 1995. In June of 1999, Warnock was appointed as chief of police for the city. Warnock was appointed to the same position on an annual basis. In 2008, the city changed to a city manager form of government. Amy Nelson (city manager or city manager Nelson)*fn2 was the first full-time city manager for the city.
In December of 2009, the city police department began having issues with the radios that police officers use to stay in contact with dispatch and each other. Two members of the police department staff informed Warnock that one of the radios in a particular squad car was not working correctly. Assistant Police Chief David Jacobs also sent emails and otherwise informed Warnock that the radio issue had not been resolved. Jacobs tried to meet with Warnock to discuss the radio problem and other issues, but the meeting never occurred. In the summer of 2010, other officers approached Warnock with concerns about the performance of Officer Chris Reitsma. These concerns dealt directly with officer safety, failure to show up to work on time, failure to fill out proper paperwork, and failure to respond to calls. Docket 19-2 at 3.
As a result of the ongoing concerns in the department, Warnock met with city manager Nelson in July of 2010. At the meeting, Warnock and the city manager discussed problems with police department equipment and the complaints about Officer Reitsma. Following the meeting, city manager Nelson issued a written reprimand to Warnock on July 9, 2010. In the reprimand, Warnock agreed that he would:
1. Discuss officer safety concerns within [his] department as well as personnel concerns[.]
2. Address and reprimand dereliction of officer duties within [his] department[.]
3. Follow up with [Nelson] in two weeks time regarding progress[.]
Docket 19-12 at 1. The reprimand also detailed Warnock's grievance rights available in the Canton personnel manual as it pertained to the discipline he received that day. Warnock did not exercise his grievance rights following the receipt of this reprimand.
Warnock did not follow up with the city manager as he promised to do in his reprimand letter. On August 23, 2010, Warnock was suspended for his failure to follow up with city manager Nelson and because of a confrontation that Warnock had with another officer in relation to Warnock's written reprimand. At the time of his suspension, Warnock was reminded of his grievance rights and his right to file a written statement in response to his suspension. He did not grieve and did not submit a written response.
Soon after Warnock's suspension, police officer Joe Carlson resigned from the police force. Warnock attempted to reach city manager Nelson to tell her about the resignation, but he did not reach her or leave a message. Warnock also did not tell city manager Nelson about the resignation that evening at the city commission meeting. The city manager learned of Carlson's resignation from one of the city commissioners.
In October of 2010, city manager Nelson emailed Warnock and said that she wanted to see Warnock's performance evaluation for Officer Reitsma before Warnock gave it to the employee. Although Warnock read this email, he did not give the performance review to the city manager prior to disclosing it to the employee as requested. City manager Nelson did not agree with Warnock's evaluation of Reitsma, and Reitsma's training period was extended due to performance problems. On October 19, 2010, the city manager issued another written reprimand to Warnock for failing to communicate Officer Carlson's resignation and failing to comply with the email direction to share Reitsma's performance evaluation. Warnock was advised of his grievance rights and his ability to file a written response, but Warnock did not exercise either right.
Prior to October of 2010, Warnock hired an attorney to represent him in his relationship with the city. In December of 2010, Warnock entered into settlement negotiations with the city. Canton city attorney, Larry Nelson, provided numerous draft settlement agreements to Warnock and his counsel. Warnock requested that changes be made to these settlement drafts through his attorney. Warnock voluntarily resigned on December 17, 2010, and he and the city never reached a settlement agreement.
After Warnock's resignation, the city gave notice to Warnock that he had the right to a hearing before the city commission even though he had not officially grieved his reprimands or suspension. Warnock did not attend any post-resignation hearing. On February 11, 2011, Warnock filed this action. Docket 1. Defendants moved for summary judgment on November 7, 2011. Docket 17.
"One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 323 ("[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact." (internal quotations omitted)). The moving party must inform the court of the basis for its motion and also identify the portion of the record that shows that there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted).
Once the moving party has met its initial burden, the nonmoving party must establish "that a fact . . . is genuinely disputed" either "by citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c). "The nonmoving party may not 'rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.' " Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). For purposes of summary judgment, the facts, and inferences drawn from those facts, are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Warnock claims that only the mayor of Canton has the power to issue reprimands, to suspend, and to appoint or remove. For that reason, Warnock asserts that the city manager violated his due process rights when she reprimanded and suspended him.*fn3 Warnock claims that this is an issue of material fact and must be resolved by the jury. Defendants argue that the city manager does have removal authority, that Warnock is an at-will employee with no protected property interest in continued employment, that Warnock received due process even though he voluntarily resigned, and that he did not exhaust his administrative remedies. Finally, defendants state that there is no factual support that defendants acted in a way that shocked the conscience such that Warnock's substantive due process rights were violated. For these reasons, defendants claim that plaintiff does not have a cognizable due process claim against city manager Nelson.
"To establish a violation of procedural due process, a plaintiff must show that he has been deprived of a constitutionally protected life, liberty or property interest." Davenport v. Univ. of Ark. Bd. Of Trs., 553 F.3d 1110, 1114 (8th Cir. 2009) (citation omitted). It is essential to a due process claim that any deprivation of life, liberty, or property be preceded by both notice and an opportunity for a hearing applicable to the nature of the case. Mullane v. Cent. Hanover Bank & Trust, Co., 339 U.S. 306, 314 (1950). When an employee asserts a due process claim, he or she has the burden of establishing that there is a constitutionally protected property interest in his or her continued employment. Mulvenon v. Greenwood, 643 F.3d 653, 657-58 (8th Cir. 2011). "Whether the employee had a legitimate claim of entitlement--and thus, a constitutionally protected property interest--depends on state law and the terms of his employment." Id. at 657 (citing Kozisek v. Cnty. of Seward, Neb., 539 F.3d 930, 937 (8th Cir. 2008)).
"A public employee with a protected property interest in continued employment receives sufficient due process if he receives notice, an opportunity to respond to the charges before his termination, and post-termination administrative review." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citations omitted). The pre-termination process necessary to satisfy due process need not be elaborate, and "even an informal meeting with supervisors is sufficient where the employee is given notice of the charges, an explanation of the employer's evidence, and an opportunity to respond." ...