United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ROBERTO A. LANGE, District Judge.
Plaintiff Nicole Knisley ("Knisley") brought suit against Defendants-her former employer, Lake County, and her former supervisor, Lake County Deputy Sheriff Tim Walburg ("Walburg")-alleging Defendants retaliated against her for exercising her right to free speech guaranteed by the United States Constitution and the South Dakota Constitution. Doc. 1 at 6-10. Knisley seeks monetary relief, including attorney's fees and punitive damages. Doc. 1 at 10-11. Defendants moved for summary judgment on all claims, Doc. 27, which Knisley opposes, Doc. 37. For the reasons explained below, Defendants motion for summary judgment is granted.
I. FACTS PERTINENT TO MOTION
Knisley became employed as a Lake County Deputy Sheriff in April of 2008. Doc. 28 at ¶ 1; Doc. 39 at ¶ 1. At that time, Walburg was the Lake County Chief Deputy Sheriff. Doc. 40-15 at 9, 19. In 2008, Knisley suspected that there were discrepancies in how Walburg was reporting his hours worked under a federal DUI grant. Doc. 40-15 at 22. Knisley's suspicion began when she believed that Walburg was at home during a time when he reported having been working. Doc. 40-15 at 22. After that incident, Knisley began tracking Walburg's hours worked under the grant. Doc. 40-15 at 23. Knisley testified that in 2010 she began collecting documents regarding Walburg's actual hours worked under the grant. Doc. 40-15 at 23. She testified that some of the documents she gathered were in her office, some were gathered from her supervisor's desk, and others were obtained from a Lake County dispatcher. Doc. 40-15 at 23, compared how Walburg was paid with Walburg's time-log sheets. Doc. 40-15 at 23-24. Based on that summary sheet, Knisley suspected that Walburg had been paid $5, 583.27 more than he had actually worked and earned under the grant. Doc. 40-15 at 24.
According to Knisley, while she was a deputy sheriff, if she suspected criminal activity of any resident of Lake County, she was obliged to investigate it. Doc. 40-15 at 22. Knisley had not been trained on what to do if she suspected criminal activity of a fellow law enforcement officer,  Doc. 40-15 at 22, but Knisley testified that in her capacity as a law enforcement officer, she believed that she had the right to obtain relevant documents and to conduct the investigation, Doc. 40-15 at 25.
In 2011, Knisley first reported her suspicion about Walburg to Lee Axdahl, an official with the South Dakota Office of Highway Safety, who was responsible for administering the federal DUI grant funds. Doc. 40-15 at 30. As a result of her report, an audit was conducted by Dennis Falken, an outside auditor for the State of South Dakota. Doc. 40-15 at 30. After Falken completed his review, Falken apparently spoke with Walburg; according to Walburg, Falken did not have any concerns, said the department was doing a good job, and told Walburg that he should "tweak" how things are documented, such as providing more information in certain areas. Doc. 40-16 at 18. Walburg attested that he was unaware that Knisley was the one who reported him. Doc. 35 at ¶ 3. Sometime after the audit, Lake County quit applying for the grant funds because, according to Walburg, no one continued to utilize them. Doc. 40-16 at 19. Knisley was never told the results of Falken's audit. Doc. 40-15 at 30.
In mid-December of 2012, Walburg was appointed Lake County Sheriff, filling the remainder of former and retiring Sheriff Roger Hartman's term. Doc. 35 at ¶ 4; Doc. 40-15 at 9. During the time Hartman supervised Knisley, he never pursued formal disciplinary action against her and believed her to be an "average" and "good" officer. Doc. 40-21 at 3-4. Knisley received commendations from the Federal Bureau of Investigation (FBI) and the Department of Justice for her involvement in a criminal investigation while she was a deputy sheriff. Doc. 40-15 at 18. Knisley received a performance evaluation in 2011 ("2011 Performance Evaluation") while under Hartman's supervision. Doc. 42 at ¶ 3. Overall, the 2011 Performance Evaluation rated Knisley as meeting expectations. Doc. 40-2 at 2-3. Notations were made, however, that Knisley needed to improve on her case report and investigative skills as well as her use of time. Doc. 40-2 at 2, 4.
Shortly after Walburg became Sheriff, Knisley expressed an interest in filling the vacated Chief Deputy position. Doc. 40-16 at 5. According to Walburg, Knisley demanded that Walburg make a quick decision on the matter. Doc. 35 at ¶ 5; Doc. 40-16 at 5. Walburg testified that he never expected Knisley to say something of that nature and in that context, so after their conversation he began documenting Knisley's work issues as they arose. Doc. 35 at ¶ 5; Doc. notations regarding Knisley's work performance dating from December 17, 2012 to August 29, 2013. Doc. 35-1. Some of those notations from December 17, 2012 to February 13, 2013 included Knisley's behaviors regarding gun use in the jail and her failure to fully and timely document investigations. Doc. 35-1 at 1-3. Knisley does not believe that Walburg's documentation was contemporaneous. Doc. 39 at 8-9. Because Knisley was not provided Walburg's documentation, she did not have the opportunity to respond to Walburg's alleged accounts; Knisley also claims that Walburg did not follow Lake County policy in creating his own notes regarding Knisley's performance. Doc. 39 at 8-9.
Walburg sought advice regarding Knisley's conduct from Chris Giles,  an attorney and at that time a County Commissioner for Lake County, in December of 2012. Doc. 40-17 at 11. Giles testified that Walburg came to his private law practice on several occasions and shared his concerns about Knisley. Doc. 40-17 at 11-12. Giles advised Walburg to put Knisley on a "Plan of Assistance or a Plan of Improvement" so that she could change her behavior. Doc. 40-17 at 12.
On February 13, 2013, Walburg met with Knisley and conducted a performance review ("2013 Performance Evaluation"). Doc. 40-3 at 2, 4. Areas noted where Knisley needed improvement included completing work as scheduled, thoroughness and accuracy of work done, concern for safety, use of time, observance of rules and policies, acceptance of authority, initiative, cooperativeness with co-workers, the ability to learn from mistakes, and decisiveness. Doc. 40-3 at 2-4. Walburg also told Knisley that her reports should have better flow, paragraph spacing, and answer "the who, what, when, where, and how" questions. Doc. 40-3 at 2. During that meeting, Knisley disagreed with parts of the evaluation, so Walburg crossed out two notations that addressed the chief deputy position and Knisley's cooperativeness with co-workers. Doc. 40-3 at 3-4; Doc. 40-15 at 15; Doc. 40-16 at 17. Four days after the meeting, Knisley wrote a formal response to Walburg, taking issue with several additional performance problems identified in the 2013 Performance Evaluation. Doc. 40-4. Walburg testified that he continued to counsel or talk with Knisley about her performance issues after the 2013 Performance Evaluation, but admitted that he did not provide any additional documentation to Knisley. Doc. 40-16 at 13-14.
Walburg testified that Knisley's performance did not improve after the 2013 Performance Evaluation. Doc. 40-16 at 31. Although Knisley corrected some behaviors, according to Defendants, issues persisted with the quality and timeliness of her reports. Doc. 40-16 at 31.
Knisley testified that sometime in 2013 she used her cell or home phone to make numerous reports to various outside agencies about Walburg's record-keeping discrepancies in relation to the grant program. Doc. 40-15 at 31. She called Trevor Jones ("Jones"), Director of Public Safety for the State's Highway Department. Doc. 40-15 at 31. Jones told Knisley to call the State's Division of Criminal Investigation (DCI). Doc. 40-15 at 31. Knisley then reported her suspicions to DCI agents Brian Zeeb ("Zeeb") and Dan Satterlee ("Satterlee"). Doc. 40-15 at at 35. Knisley does not remember whether she called Jones, the DCI agents, or Golden before or after her 2013 Performance Evaluation. Doc. 40-15 at 31-32, 35.
In approximately March of 2013, Knisley shared her suspicions about Walburg with Lake County Commissioner Kelli Wollman ("Wollman") at Wollman's home. Doc 40-15 at 32-33; Doc. 40-22 at 7-8. Lake County is governed by a five-person County Commission which oversees all aspects of county business, including the sheriffs department and adherence to employee policies. Doc. 40-22 at 3-4, 11. In 2013, the five members of the County Commission were Chairman Scott Pedersen, Dan Bohl, Ron Golden, Roger Hageman, and Wollman. Doc. 40-22 at 3; Doc. 40-23 at 3; Doc. 40-24 at 4-5; Doc. 40-25 at 3; Doc. 40-26 at 3, 5. Knisley testified that she showed Wollman the documentation gathered in her investigation and told Wollman that she already had reported Walburg to the "appropriate authorities." Doc. commission, rather than just one member, but Knisley told Wollman that she would not do that. Doc 40-22 at 7.
In April of 2013, Knisley met with DCI agents Zeeb and Satterlee and presented them with the documents she had collected in her investigation of Walburg. Doc. 40-15 at 33. Knisley did not, however, provide the agents with her summary sheet because she testified ...