Roxie ENGLE, Appellee/Cross-Appellant,
v.
Eugene TOWNSLEY, in his individual and in his official
capacity as employee and/or commissioner of the Batesville
Wastewater Utility Commission; Larry Tharnish, in his
individual and official capacity as employee and/or
commissioner of the Batesville Wastewater Utility
Commission; Stanley Wood, Jr., in his individual and
official capacity as employee and/or commissioner of the
Batesville Wastewater Utility Commission; Mike Shetron, in
his official capacity as employee and/or commissioner of the
Batesville Wastewater Utility Commission; Boris Dover, in
his official capacity as employee and/or commissioner of the
Batesville Wastewater Utility Commission; Jim Whitson, in
his official capacity as employee and/or commissioner of the
Batesville Wastewater Utility Commission; Sam Cooke, in his
individual and in his official capacity as employee and/or
commissioner of the Batesville Wastewater Utility
Commission; City of Batesville, AR; Gerald Gaither, in his
official capacity as employee and/or commissioner of the
Batesville Wastewater Utility Commission, Appellants/Cross-Appellees.
Nos. 94-2713, 94-2978.
United States Court of Appeals,
Eighth Circuit.
Submitted Jan. 9, 1995.
Decided March 7, 1995.
Mark R. Hayes, North Little Rock, AR, argued (Jerry C. Post and Eric C. Hance of Batesville, AR, on the brief), for appellant.
Richard W. Roachell, Little Rock, AR, argued, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, and MURPHY, Circuit Judge.
DIANE E. MURPHY, Circuit Judge.
In this case Roxie Engle claims that her first amendment and due process rights were violated when she was terminated from employment as a lab technician for the Batesville Water Utility. She sued, under 42 U.S.C. Sec. 1983, her former supervisors, Eugene Townsley and Larry Tharnish, the Batesville Wastewater Utility Commission, and the City of Batesville. Defendants moved for summary judgment, and the district court1 dismissed Engle's due process claim, but denied the motion as to her first amendment retaliatory discharge claim, several pendent state claims and the defense of qualified immunity. We limit our interlocutory review to the appeal from the denial of qualified immunity to Townsley and Tharnish, the only remaining defendants sued in their individual capacity.2
Roxie Engle was employed for approximately thirteen years by the Batesville Water Utility Commission as a lab technician in a wastewater plant. During her employment, Eugene Townsley served as superintendent of the Commission and Larry Tharnish served as its water utilities manager. On May 22, 1991, Engle's employment was terminated by Townsley. Following a request for an explanation, Townsley informed Engle in writing on May 30, 1991 that she had been fired for an irregularity in her testing procedure.
Engle asserts that she was actually fired in retaliation for complaints that she had filed with the Arkansas Department of Pollution Control and Ecology (the Department). On February 18, 1990, Engle had contacted Dale Washam, a field inspector for the Department, and reported various discrepancies in the operation of the plant. Her complaint resulted in an investigation which uncovered pollution permit violations. Engle also claims to have filed several other complaints during 1990, including one that led to an investigation and resulted in a fine being assessed against the Commission by the Environmental Protection Agency.
Townsley and Tharnish assert that they are entitled to qualified immunity on Engle's first amendment claim because she was terminated for improper testing procedures rather than for any other conduct and they did not even know about her complaints at the time. They claim that Engle sometimes used more than one bottle labelled with the same identification number in quality control tests and that this practice could and did lead to confusion of the results. Plaintiff admits that she sometimes used more than one bottle with the same number, but claims that Townsley and Tharnish knew and approved of the practice.
Public officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
Not every immunity question can be decided on summary judgment, however, for there may be disputed issues of material fact which prevent it. Anderson v. Creighton,
The law is clearly established that the discharge of a public employee in retaliation for the exercise of first amendment rights violates the constitution. Mt. Healthy City School District Board of Education v. Doyle,
Engle's evidence tends to show that on February 18, 1990, she made a complaint to Dale Washam at the Department about discharge filters being bypassed. This complaint led to an investigation of the plant. She made a second complaint later in 1990. In the fall of 1990 she made a third complaint about the plant's failure to implement and enforce a pre-treatment program for industry monitoring. This complaint led to an investigation of the plant beginning in December 1990 which resulted in significant fines.
There is evidence to support Engle's position that Townsley and Tharnish knew that she had been the source of the complaints. Both were aware that the February investigation of the plant was based on a private complaint. In February, Townsley told Washam that the city was having a personnel problem which might be the source of the complaint. When Townsley was questioned about who was likely the complainant, he named a golf course employee and explained that "[h]e and Ms. Engle were good friends." Moreover, the complaints were technical in nature, and Engle had access to technical information. Washam states that he suspected Townsley and Tharnish would figure out who had made the complaint because "[Engle] would know more about the lab work and the plant than ... anybody else...." Supp.App. at A-54.
The record also contains evidence that Engle had complained to co-workers and other supervisory people about environmental rules and regulations being violated at the plant. For example, she had complained about, and to, Townsley and Tharnish. Engle states in her deposition that Townsley had, on several occasions, asked her to falsify reports and that she mentioned this to Tharnish during a telephone conversation. She claims that Tharnish indicated that "it would be to [her] best interest to work things out with [Townsley] ... and do whatever [he] told [her] to do." Supp.App. at A-16.
In this case, the objective determination whether a reasonable official would have believed that Engle's termination was lawful in light of clearly established first amendment law depends on the factual circumstances of the firing. See Anderson,
Accordingly, we affirm the district court's denial of the motion for summary judgment on the basis of qualified immunity. We dismiss as premature the appeals from the other rulings of the district court.