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Hogeland v. Village of Orleans

United States District Court, D. Nebraska

October 3, 2018

RHONDA HOGELAND, Plaintiff,
v.
VILLAGE OF ORLEANS, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE.

         In 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 law.

         Under 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.

         I. STANDARD OF REVIEW

         Summary 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 Fed.R.Civ.P. 56(a).

         On a 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. Id.

         II. BACKGROUND

         The 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 following.

         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.

         The 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.

         On or 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 14-16.

         Previously, 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.

         Dake 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.

         Werner 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 ...


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