United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE.
October 2016, the plaintiff, Rhonda Hogeland, was the duly
appointed clerk for the village of Orleans, Nebraska, when
her employment was terminated by a majority vote of the
five-member village Board of Trustees. The three individual
defendants voted together as the Board's majority. The
plaintiff challenges her termination under state and federal
state law, the plaintiff essentially alleges that her
dismissal was in violation of the Nebraska Open Meetings Act,
Neb. Rev. Stat. § 84-1407 et seq. Under federal law, the
plaintiff alleges that her dismissal contravened her right to
due process and was an act of retaliation for speaking out on
matters of public concern. In addition, she alleges that her
termination, and statements and communications made by the
named defendants, were "false malicious and
scandalous," causing her further damage.
STANDARD OF REVIEW
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(a). Rule 56 also allows the Court to grant summary
judgment as to some issues but not as to others. See
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
evidence are jury functions, not those of a judge.
evidence submitted in support and in opposition to the
defendants' motion for summary judgment, when viewed in
the light most favorable to the plaintiff, shows the
plaintiff held two jobs for the Village of Orleans. In the
summer she managed the village swimming pool. Filing 25-3 at
7. Additionally, in October 2011, she was appointed
to fill the position of village clerk. Filing 25-3 at 12. She
had been the "fill-in clerk" for several years
before permanently assuming those duties. Filing 25-3 at
12-13. Defendant Mary Ann Lehmer asked the plaintiff to apply
for the position when the previous clerk resigned, and Lehmer
was responsible for training her for the position once she
had been appointed. Filing 25-3 at 13-14. Her relevant job
duties included preparing the agenda for Board meetings,
posting notice of the meetings, attending the meetings, and
recording the meeting minutes, which would later be
published. Filing 25-3 at 14. The plaintiff also believed her
duties included staying up to date on open meeting rules and
advising the Board on those rules. Filing 25-3 at 37-38.
plaintiff considered the chairperson of the village Board of
Trustees to be her supervisor. Filing 25-3 at 15-17.
Lana Dake was the board chairperson when the plaintiff was
fired. Filing 25-1 at 4. The Board of Trustees would normally
meet once a month, usually the second Tuesday of the month.
Filing 25-3 at 18. The plaintiff's employment was by
appointment, and her reappointment was addressed each year at
the December Board meeting. Filing 25-3 at 19.
about October 3, 2016, defendants Lehmer, David Snodgrass,
and Bruce Werner decided to call a special meeting of the
Board. Filing 25-2 at 31-35. Although Lehmer was a trustee
and not the village clerk, she prepared a notice titled
"SPECIAL MEETING." Filing 25-2 at 34-35; filing
25-4 at 6. The notice reported that the special
meeting of the board would be held on October 4, 2016 at 6:00
p.m., and the agenda consisted of one item, "Personnel
issues." Filing 25-4 at 6. The notice did not inform the
public where the meeting would be held. Filing 25-4 at 6.
Lehmer testified that she posted the notice at the post
office, the bank, and the village hall "at or before 6
p.m." on October 3. Filing 25-2 at 35-36; filing
18-2 at 2. Lehmer, Snodgrass and Werner did not discuss
the need for a special meeting with Dake. Filing 25-1 at
the plaintiff had requested and received approval from Dake
to use two days of vacation on October 3 and 4. Filing 25-1
at 10. Although on vacation, the plaintiff was at home in
Orleans each morning and each evening. Filing 25-3 at 43.
Around ten o'clock on the morning of October 4, the
plaintiff received a telephone call from Dake asking if she
knew anything about the meeting that had been scheduled for
that evening and what it was about. Filing 25-3 at 48-49. The
plaintiff told Dake that she did not know anything about the
meeting. Filing 25-3 at 48-49.
attended the October 4 meeting, and described it as very
hostile toward the plaintiff. Filing 25-1 at 18. The only
matter discussed at the meeting was the plaintiff's job
performance, which Lehmer, Snodgrass and Werner found to be
in violation of the village employee handbook. In addition,
the plaintiff was accused of acting without board approval
when she placed an advertisement in the local newspaper
hoping to hire a fill-in clerk. Filing 25-1 at 19-20; filing
25-4 at 2.
moved to terminate the plaintiff's employment, which was
seconded by Lehmer. Filing 25-4 at 2. The vote on the motion
was 3 to 1 for the plaintiff's termination. Filing 25-4
at 2. Werner, Lehmer, and Snodgrass voted for the
motion; Trustee DaLoy Veldhouse voted no. Filing 25-4 at 2.
For reasons that are not explained in this record, Dake was
not allowed to vote on the motion terminating the
plaintiff's employment. Filing 25-1 at 17. Dake
testified that she would not have voted to terminate ...