Wubben v. Yankton Cnty.

679 F.Supp.3d 873

Denise WUBBEN, Plaintiffs, v. YANKTON COUNTY, SOUTH DAKOTA; Dan Klimisch,in his individual capacity; Gary Swensen, in his individual capacity, Defendants.

4:19-CV-04109-KES

United States District Court, D. South Dakota, Southern Division

Signed July 28, 2022

Thomas K. Wilka, Sara E. Schroeder, Hagen, Wilka and Archer, P.C., Sioux Falls, SD, for Plaintiffs.

Ryland L. Deinert, Klass Law Firm, LLP, Sioux City, IA, for Defendants.

ORDER ADOPTING IN PART, MODIFYING IN PART, AND REJECTING IN PART THE REPORT & RECOMMENDATION

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

Plaintiff, Denise Wubben, brought this lawsuit against defendants, Yankton County, Dan Klimisch, and Gary Swensen (collectively, the County) following her termination of employment with Yankton County. See Docket 1. In an amended complaint, Wubben alleges that the County violated her due process and First Amendment rights. Docket 21 at 9-12. Wubben also brings claims for wrongful termination and defamation. Id. at 14-16. Yankton County and Klimisch move for summary judgment on Counts I through V, Docket 31, and Swensen moves for summary judgment on Count VI. Docket 39. Wubben opposes the motions. Dockets 49 & 54. The court referred the motions for summary judgment to a Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). Docket 63. The Magistrate Judge recommends that the court grant summary judgment in favor of Yankton County and Klimisch on Counts I, II, and III and decline to exercise supplemental jurisdiction over the remaining counts. Docket 64 at 46-47. Wubben timely filed objections to the Report and Recommendation. Docket 69. For the following reasons, the court adopts the Report and Recommendation in part, modifies it in part, and rejects it in part. Yankton County and Klimisch's motion for summary judgment is granted on Counts I and V and denied on Counts II, III, and IV. Swensen's motion for summary judgment is granted.

BACKGROUND

The Report and Recommendation contains a full recitation of the facts. Docket 64 at 2-10. Except as modified, infra, the court adopts the facts as stated in the Report and Recommendation and views the facts in the light most favorable to Wubben, the non-moving party.

LEGAL STANDARDS

I. Report and Recommendation

This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. When "written objections are filed, the District Court shall conduct the required de novo review as to those portions of the magistrate's report and recommendation to which objection is made." Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990) (citing 28 U.S.C. § 636(b)(1); Branch v. Martin, 886 F.2d 1043, 1045-46 (8th Cir. 1989)). In conducting a de novo review, this court may "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).

II. Summary Judgment

Summary judgment is appropriate 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). The moving party can meet its burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must inform the court of the basis for its motion and also identify the portions of the record that show there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted).

To avoid summary judgment, "[t]he non-moving 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, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary judgment is precluded if there is a genuine dispute of fact that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a summary judgment motion, the court views the facts and the inferences drawn from such facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

DISCUSSION

I. Objections to the Report and Recommendation

A. Objection 1

First, Wubben objects to the Report and Recommendation's findings that "the [February 14, 2019] interaction between Ms. Wubben and the commissioners was captured on a security camera" and "the surveillance video did not show Commissioner Klimisch getting in Ms. Wubben's face and pointing his finger at her after the . . . meeting in the Planning and Zoning offices." Docket 64 at 3, 7; Docket 69 at 2. Wubben argues that:

[T]he entire interaction between Ms. Wubben and Commissioners Klimisch and Healy was not within range of the security camera at the Planning & Zoning . . . office; much of that interaction took place in the [Planning and Zoning] conference room which was not within the view of the security camera. Ms. Wubben's testimony that Mr. Klimisch pointed his finger in her face and angrily said 'you have crossed the line' may have happened in the conference room. There is a disputed issue of fact about whether or not this [incident between Wubben and Klimisch] happened.

Docket 69 at 2 (internal citations omitted). Essentially, Wubben's objection is that the video surveillance submitted to the court shows some, but not all, of her interaction with Klimisch on February 14, 2019, and that Klimisch may have confronted her in the conference room outside the view of a camera. See id.

Deposition testimony from Commissioner Cheri Loest indicates that there were cameras near Wubben's desk and in Pat Garrity's office but not in the Planning and Zoning conference room. See Docket 52-17 at 9. According to Wubben, she spoke with Klimisch and others in the conference room on February 14, 2019, before she returned to her desk. See Docket 52-19 at 12-13. The County does not dispute this assertion. Thus, the first part of the objection is sustained, and the Report and Recommendation is modified to state that "some of the interaction between Ms. Wubben and the commissioners was captured on a security camera." Docket 64 at 3 (additions in italics).

Regarding the second part of the objection, Wubben argues that Klimisch "may have" gotten in her face in the conference room, thus explaining why the interaction does not appear on the surveillance video. See Docket 47 Exhibit 5. But her argument does not change the fact that "the surveillance video did not show Commissioner Klimisch getting in Ms. Wubben's face and pointing his finger at her after the February 14 meeting in the Planning and Zoning offices." Thus, the second part of the first objection is overruled, and that part of the Report and Recommendation will remain as written.

B. Objection 2

The Report and Recommendation states that "many Yankton County citizens believe[ed] they were banned from coming into the Planning and Zoning office and government center" and "Ms. Wubben argues that she did not ban anyone from the office or tell anyone they were banned." Docket 64 at 4. Wubben objects, stating "Ms. Wubben did not argue 'that she did not ban anyone from the [Planning and Zoning] office or tell anyone they were banned.' She testified explicitly that she did not do this. There is a disputed issue of fact about who, if anyone, told these citizens they were banned." Docket 69 at 2 (internal citation omitted) (emphasis added) (quoting Docket 64 at 4).

Although not clearly stated, the court interprets Wubben's objection to be with the word "argues." See id. But in Wubben's brief in opposition to Yankton County and Klimisch's motion for summary judgment, she does just that: she argues that she "did not ban anyone from the office, nor tell anyone they were banned." Docket 54 at 4. Wubben cites to her sworn deposition testimony in support of her argument. Id. (citing Docket 52-19 at 8-9, 16, 18). The video recording of the February 14 Commission meeting indicates that several citizens believed they were banned from the Planning and Zoning office, but it does not clearly establish who banned them. See Docket 47 Exhibit 4 at 3:17:30-3:27:00. Yankton County and Klimisch dispute Wubben's argument and claim that she banned citizens from the county building. Docket 33 ¶ 33. Thus, there is a dispute of fact and the objection is overruled because it is accurate to state that Wubben "argues" she did not ban anyone.

C. Objection 3

Wubben's third objection is best addressed in two parts. First, she objects to the statement that "defendants assert Ms. Wubben was at the [February 19, 2019] meeting as the Acting Planning and Zoning Administrator." Docket 64 at 5 (emphasis added). The Magistrate Judge did not find that Wubben was the Acting Administrator. See id. The statement objected to is simply a characterization of Yankton County and Klimisch's argument. See id. Thus, the first part of the objection is overruled.

Second, Wubben "objects to the finding of fact . . . that her declining to post the revised ordinance [online] 'was not because she did not know how to do so,' and that this was insubordinate." Docket 69 at 4 (quoting Docket 64 at 5). Wubben asserts that she did not post the revised ordinance because she did not know how to do so, she did not know if the revisions were final, and she questioned whether there was a policy that allowed her to post the documents. Id. These reasons for not posting the revised ordinance online are consistent with her deposition...