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Cooper v. City of Black River Falls

United States District Court, W.D. Wisconsin

September 19, 2019

THOMAS COOPER, Plaintiff,
v.
CITY OF BLACK RIVER FALLS, ALEX BRAD CHOWN, RONALD E. DANIELSON and KELLY BAKKEN, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Plaintiff Thomas Cooper, a former police officer with the City of Black River Falls police department, alleges that the City, through actions of its administrator, police chief, and former mayor, retaliated against him for speaking up in opposition to a plan to transfer management of police services to the Jackson County Sheriff’s Department in violation of his rights under the First Amendment of the United States Constitution. Before the court is defendants’ motion for summary judgment. (Dkt. #21.) For the reasons that follow, the court will grant that motion, finding plaintiff has failed to put forth sufficient evidence to allow a reasonable jury to find either a deprivation likely to deter an ordianry person from future protected First Amendment conduct or the necessary causal nexus between any protected conduct and the alleged retaliatory acts.

         MOTION TO STRIKE

         As a preliminary matter, defendants move to strike (1) plaintiff Thomas Cooper’s declaration in opposition to defendants’ motion for summary judgment and proposed findings of facts relying on that declaration, (2) Exhibit 70 to deposition of a former police chief, Scot Eisenhauer, which is a memo Eisenhauer drafted describing events during the course of his employment, and (3) an audio recording of the November 2014 City Council meeting. (Dkt. #49.) Defendants’ initial basis for striking Cooper’s declaration is that it contains the word “foregoing” as in “Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury, that the foregoing is true and correct.” (Id. at 2; Cooper Decl. (dkt. #42) 1.) Based on this, defendants argue that “none of the [subsequent] paragraphs in Plaintiff’s Declaration is a sworn statement,” failing to meet the requirement of Federal Rule of Civil Procedure 56(e). (Id.) This argument is so ridiculous that the court considered disregarding the entirety of the motion to strike as a sanction. Indeed, the use of the word “foregoing” was such an obvious error in choice of noun, it would be unlikely to relieve Cooper of a charge of perjury (or at least, fraud on the court) if the representations that followed in his declaration were proven to be knowingly false. Regardless, this unfortunate bit of wordsmithing could (and should) have been cleared up by a simple phone call between counsel without involving the court. Indeed, once notified, plaintiff’s counsel did just that, replacing the wrong word with “following” in Cooper’s amended declaration, to which the parties stipulated in an apparent attempt to address some of defendants’ bases to strike his declaration.[1]

         Turning to defendants’ other three objections to plaintiff’s summary judgment response, the court will address each by rough category as set forth in defendants’ reply. First, defendants seek to strike a number of plaintiff’s proposed findings of facts on foundation grounds, beginning with statements purportedly made by either the City’s Administrator, Alex Brad Chown, or its former mayor, Ronald E. Danielson, both of whom are named defendants, along with the City itself, to Scot Eisenhauer, the City’s police chief immediately before defendant Kelly Bakken,. (Defs.’ Reply (dkt. #63) 1 (citing Pl.’s PFOFs (dkt. #47) ¶¶ 125, 127, 128).) As Eisenhauer explained in his deposition testimony, he has an independent recollection of the meeting, except as to whether Chown or Danielson (or both) made specific statements. (Pl.’s Opp’n (dkt. #61) 8 (citing Eisenhauer Dep. (dkt. #29) 69-74, 83, 86, 119).) Instead, the only evidence of what was specifically said and by whom is contained in Exhibit 70 -- Eisenhauer’s recorded recollection -- the admissibility of which rises or falls under Federal Rule of Evidence 803(5). (Eisenhauer Dep. (dkt. #29) 74.) Indeed, defendants’ counsel resorted to Exhibit 70 at various times in Eisenhauer’s deposition to refresh his recollection. (Id. at 29-32, 72-74, 81-82, 87, 93, 144.) For that reason, as well as the court’s rejection of defendants’ challenges to Exhibit 70 for reasons explained later below, the court will overrule this objection.

         Next, defendants seek to strike PFOF ¶ 74 for lack of foundation, which is supported by plaintiff’s own statements that: “[t]he sign that was placed in the back of Cooper’s truck was a point of contention”; and “[t]he City did not like where Cooper parked his truck.” (Defs.’ Reply (dkt. #63) 2 (quoting Pl.’s PFOFs (dkt. #47) ¶ 74).) The court overrules this objection as well, finding that plaintiff’s account of Chief LaBarbera’s reaction to his parking the dump truck and the message on the sign on the truck are sufficient for a jury to infer a dispute between plaintiff and the City, if not necessarily the truth of any point of contention with the defendants. (See Cooper 3/20/19 Dep. (dkt. #26) 77, 79, 99-100, 103, 107-08.) Of course, for purposes of both summary judgment and if this case had proceeded to trial, defendants are free to challenge whether plaintiff’s belief about the City’s view of his truck is relevant or accurate, but defendants have offered no basis to strike the statements altogether.

         Defendants also seek to strike plaintiff’s PFOF ¶ 138 for lack of foundation. Relying on plaintiff Cooper’s own deposition testimony, this proposed finding represents that the part-time investigator position to which he was promoted in August 2016 was “already covered by the Collective Bargaining Agreement and not a created position.” (Pl.’s PFOFs (dkt. #47) ¶ 138 (citing Cooper 3/20/19 Dep. (dkt. #26) 159-60).) For purposes of summary judgment, the court must overrule this objection as well. As set forth in plaintiff’s PFOF ¶¶ 23 and 24, Cooper was the union president, which provides an adequate basis for him to describe his understanding of the provisions of the collective bargaining agreement and their application to his position. Of course, defendants are free to challenge whether his representation is accurate, whether as a matter of law or fact, but a lack of foundation challenge is meritless.

         Finally, defendants challenge on foundation grounds plaintiff’s PFOF ¶ 189, which lists “numerous individuals” who assisted the police department with fundraising efforts. (Pl.’s PFOFs (dkt. #47) ¶ 189.) Defendants argue that plaintiff “cannot merely state in his opposition brief that he has personal knowledge.” (Defs.’ Reply (dkt. #63) 3.) However, given the context -- that he was a long-standing employee of the police department and the president of the union -- this statement is sufficient, again at least for purposes of summary judgment. See Winskunas v. Birnbaum, 23 F.3d 1264, 1267–68 (7th Cir. 1994) (“The evidence need not be in admissible form; affidavits are ordinarily not admissible evidence at a trial. But it must be admissible in content, in the sense that a change in form but not in content, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial.”). This objection is also overruled.[2]

         Second, defendants objected to a number of proposed findings of facts as hearsay in their original motion. In response, plaintiff argued that some of the proof supporting the challenged PFOFs are actually “[v]erbal acts and/or words offered to show their effect on the person who heard the statement” and, therefore, not hearsay at all. (Pl.’s Opp’n (dkt. #61) 3 (citing Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007)).) For example, defendants seek to strike plaintiff’s PFOF ¶ 175, which states in pertinent part that “Cooper was informed by Kay Larson that Chief Bakken had informed her (Larson) that Cooper was no longer allowed to help out with fundraising anymore.” (Pl.’s PFOFs (dkt. #47) ¶ 175.) While a hearsay objection to Larson relaying Chief Bakken’s statement may have merit if offered for the truth of the matter asserted, defendants’ objection is pointless given that their own interrogatory response acknowledges that “Chief Bakken recalls verbally communicating to Kay Larson that Plaintiff probably could not volunteer on behalf of the Black River Falls Police Department.” (Defs.’ Resp. to Pl.’s PFOFs (dkt. #57) ¶ 176.) Defendants similarly challenge plaintiff’s PFOF ¶ 203 on hearsay grounds, which states, “Johnson called Cooper and asked what he had done to irritate or displease Chief Kelly Bakken.” (Pl.’s PFOFs (dkt. #47) ¶ 203.) Here, too, the court will sustain the hearsay objection to the extent offered for the truth of the matter asserted, but the challenge is again pointless given that defendants do not dispute that Bakken was irritated and displeased in their response to plaintiff’s proposed findings of facts. (Defs.’ Resp. to Pl.’s PFOFs (dkt. #57) ¶ 203.)

         Defendants next challenge plaintiff’s PFOF ¶ 52, which states, “The following day, on November 20, 2014, when Cooper came into work, LaBarbera pointed to Cooper and Kay Larson (Administrative Assistant) and said, ‘In my office -- now.’” (Pl.’s PFOFs (dkt. #47) ¶ 52.) Defendants contend that Larson was not acting in a management capacity, and, therefore, her remark cannot fall within the exception for statement of a party opponent. (Defs.’ Reply (dkt. #63) 6.) The obvious flaw with this argument is that LaBarbera, as the chief of police, made the statement, and to Cooper, not just Larson. As such, the objection is overruled.

         Defendants also seek to strike plaintiff’s PFOF ¶ 210, which states “In 1994, the Sheriff of the Jackson County Sheriff’s Department at that time, Sheriff Richard Galster, attempted to terminate Cooper’s employment with the Sheriff’s Department.” (Pl.’s PFOFs (dkt. #47) ¶ 210.) Defendants obliquely argue that there must be an “oral assertion or non-verbal conduct that Cooper is relying on to make this statement,” either of which is hearsay. (Defs.’ Reply (dkt. #63) 11-12.) However, plaintiff is not attempting to usher in a statement or non-verbal conduct, but rather relies on Cooper’s representation of what happened. As such, the court will not strike it on hearsay grounds. Defendants similarly move to strike PFOF ¶ 211, which states, “In 1994, [Cooper’s] termination was reviewed by the Jackson County Law Enforcement Committee in an open public hearing. The Committee found that there was not cause for termination and ordered that Cooper be reinstated. The Sheriff refused to do so, and Cooper was paid for time while he was on leave and legal fees.” (Pl.’s PFOFs (dkt. #47) ¶ 211.) The court overrules this hearsay objection for the same reasons.[3]

         Last, as alluded to above, defendants challenge on hearsay grounds the admission of Exhibit 70, a written statement by former City Police Chief Eisenhauer, dated December 20, 2017, which plaintiff argues is admissible as a recorded recollection under Federal Rule of Evidence 803(5). While defendants offer various challenges to the statement falling within a “recorded recollection,” the court need not address them because defendants also rely heavily on Exhibit 70 themselves in support of a number of their own proposed findings of facts. (Defs.’ PFOFs (dkt. #37) ¶¶ 139, 140, 144, 147, 148, 159, 161; see also Jacobs Decl., Ex. 70 (dkt. #36-14).) Defendants argue that they cite to other materials in support a number of those findings, and as to some, plaintiff offers no dispute, but defendants’ reliance on Exhibit 70 undermines any challenge to its admission on the grounds that it is unreliable hearsay. Moreover, as it appears to have been made by Eisenhauer while he was still the City of Black River Falls’ Police Chief, his recorded recollections may all come in as a statement of a party opponent or business record. As such, this objection is also overruled for purposes of summary judgment.

         Third, and finally, defendants challenge the admission of an audio recording of the November 2014 Monthly City Council meeting based on lack of authentication. As an initial matter, the recording was produced by defendants in discovery. Indeed, defendants even submitted a transcript of the audio recording, albeit without any formal authentication of the audio recording or the transcript. In their reply, defendants explain that their real objection is that they have no basis of knowing whether the copy of the audio recording submitted to the court is the same as the copy produced by defendants, speculating that the audio recording itself could not be electronically filed and going so far as to accuse plaintiff of “gamesmanship” in introducing it. (Defs.’ Reply (dkt. #63) 8, 10 (“Defendants have no access to that particular disc in order to determine whether it is a copy of the actual recording of the November 19, 2014, hearing and whether any volume controls have been increased or enhanced.”).) This is a ridiculous objection. Defendants offer no basis for suggesting that plaintiff or his counsel altered the sound quality of the filed recording; it is simple rank conjecture. Moreover, if they wished, defendants’ counsel was free to visit the clerk’s office and listen to the audio recording submitted to the court to compare it to the copy plaintiff provided to them. This objection is overruled.[4]

         As reflected in the discussion above, defendants’ motion to strike for the most part was a tremendous waste of the parties’ money and this court’s time and resources, including parts that were utterly pointless, if not frivolous. The court expects better from defendants’ counsel and would entertain a motion for sanctions in the form of the cost of plaintiff’s counsel’s time for the portions deemed frivolous.

         UNDISPUTED FACTS[5]

         A. Overview of the Parties

         Plaintiff Thomas Cooper was a full-time police officer with the Black River Falls police department from 2005 until his termination on October 1, 2017. Before his employment by the City of Black River Falls, Cooper was a police officer for the Village of Merrillan Police Department from approximately 1994 to 2005. While Cooper only resided in Black River Falls itself for a short one to two year period (from 2009 or 2010 through 2011), he has been active in the community, working in and for the City, serving on the school board, having children attending schools in the City, and attending religious services, medical appointments and other events there.

         As previously mentioned, Cooper was also president of the City’s police department’s union from 2011 until his termination in October 2017. In that capacity, he was responsible for advocating on behalf of the staff and union, negotiating contracts, monitoring operations for work rule violations or unfair treatment of the staff, assisting in the processing of grievances, representing staff during any disciplinary action, and making sure dues were paid.

         Defendant City of Black River Falls has a population of approximately 3,500 and is the seat of Jackson County, Wisconsin. The City’s police department was created via charter ordinance in 1883. The current charter ordinance sets forth that the police department is to be staffed by one police chief/criminal investigator, one full-time administrative assistant, five full-time police officers, and four limited term part-time police officers.

         Defendant Ron Danielson was the City’s mayor from April 2008 until April 2016. Since June or July 2013, defendant Alex Brad Chown has served as the City Administrator/Clerk/Treasurer, and continues in that role today, making him responsible for the administration of all activities of the City. In that capacity, Chown would have to approve any promotions in the Black River Falls Police Department, and he would have been involved in any reprimand decisions. Defendant Kelly Bakken is (or at least was for portions of the relevant time period here) the City’s Police Chief, beginning September 4, 2017.

         B. Background

         1. Cooper’s Prior Employment with Jackson County Sheriff’s Department

         Before his employment with the City of Black River Falls beginning in 2005 and with the Village of Merrillan beginning in 1994, Cooper had also been employed by Jackson County, before his involuntary dismissal in 1993. Cooper brought a wrongful termination action against Jackson County, which was resolved via a settlement agreement. While Cooper claims not to believe that agreement contained a non-rehire provision, he does not remember the terms, and cannot say for certain that it does not. He also cannot confirm whether he was ever in possession of the settlement agreement, nor does he remember the attorneys who represented him or the County in that proceeding.

         2. Cooper’s Prior Complaints of Retaliation and Investigation of Mayor Danielson

         In April 2013, Cooper contacted Governor Scott Walker complaining that Mayor Danielson was retaliating against him and the Black River Falls Professional Police Association because of their support of the Governor and the fallout of Act 10. The Governor’s office did not respond to Cooper’s request for an investigation. In August 2013, Cooper also sent emails to the Teamster Union business agent complaining that Mayor Danielson was “telling known lies about me,” damaging his reputation, and that he had “breached the threshold of workplace harassment and is creating a hostile work environment for me.” (Pl.’s Resp. to Defs.’ PFOFs (dkt. #48) ¶¶ 21-22.) Cooper further described being “fearful that Mayor Danielson is preparing to terminate my employment . . . due to my position as Union President.” (Id. at ¶ 22.)

         In December 2013, Cooper next describes being approached by a person who, after asking to remain anonymous, reported that the City was performing sewer repair work in front of the home of Mayor Danielson’s brother. The person expressed concern that the mayor’s brother did not have to pay for these repairs and asked if Cooper could look into it.[6] Cooper took this information to the Chief of Police at that time, David Frederick, who directed him to investigate the matter. As part of that investigation, Cooper interviewed Mayor Danielson for several hours, prepared a report, and forwarded it to the Jackson County District Attorney’s office. The D.A. Gerald Fox opted not to prosecute Danielson because he was unable to establish proof that any crime had been committed.

         Apparently after this decision, Cooper then emailed an Assistant Attorney General for the Wisconsin Department of Justice in April 2014, inquiring whether a police department could file its own complaint against the mayor in circuit court or whether the Department of Justice would file a complaint on behalf of the police department. Cooper maintains that he did not send this email on his own, but rather at the behest of Chief Frederick, who was curious and had questions regarding the matter. Apparently, nothing came of this request for prosecution either.

         C. Plan to Transfer Police Services to the County

         In 2013 and 2014, the City of Black River Falls’ police department struggled with staffing, and particularly with ensuring 24-hour police coverage. Plaintiff does not dispute this generally, although he points out that there were times when officers were available to cover shifts and were not contacted to do so. By the middle of 2014, the City began exploring whether to contract police services to Jackson County. City Administrator Chown testified that the timing made sense given the likely impending retirements of Chief Frederick and administrative assistant Kay Larson.

         While the parties dispute whether this change would have eliminated the City’s police force or simply transferred the oversight to the County, there is no dispute that the police services offered would remain the same, with only the patches on the officers’ uniforms changing. In addition, Jackson County Sheriff’s Department planned to increase its personnel by four full-time deputies, one full-time patrol sergeant and two part-time deputies, although any City police officers would have to apply for employment. Cooper further maintains that Administrator Chown and Mayor Danielson said that it was “possible” current City employees would have to “go back on probation [and] lose all their seniority,” so that “it would be like starting all over as a new employee for Jackson County.” (Pl.’s Resp. to Defs.’ PFOFs (dkt. #48) ¶ 49.)

         D. Initial Opposition Efforts

         When Cooper and others learned of this transfer plan, they formed a group called “Friends of the Black River Falls Police Department” to oppose it, including conducting a petition drive to inform the community and encourage people to attend the council meetings. Cooper wrote that petition and coordinated the signature drive, which ultimately obtained 412 signatures.

         The petition stated:

We the people of the greater Black River Falls area due hereby respectfully express our support to the Black River Falls Common Council to maintain its independence by keeping and supporting your own Police Department. We support the citizens of Black River Falls in maintaining their own Police Department staffed 24 hours per day, seven days a week, 365 days per year.
We further support the Black River Falls Common Council in passing a resolution declaring that its citizens and Council Representatives support and recognize the Black River Falls Police Department as an essential service provided to us for the continued protection of the citizens of Black River Falls and welcomed guests to our community.
We the undersigned ask that this petition be recognized as the will of the people and ask that our elected officials carry out the will of the people as they are elected and sworn to do.

(Cooper Decl. Ex. A (dkt. #42-1).)

         E. November 2014 City Council Meeting and Fall-Out

         On November 19, 2014, the City Council considered the plan to contract out police services through the Jackson County Sheriff’s Department, including the petition Cooper had spearheaded. While present at that meeting, Cooper maintains he was there only in his capacity as a private citizen, emphasizing that he was not wearing his police uniform. At the same time, Cooper acknowledges that he was the president of the Black River Falls police department’s union at the time of the hearing. (Defs.’ Resp. to Pl.’s PFOFs (dkt. #57). Regardless, because public comments at this meeting were limited to residents or business owners of Black River Falls, Cooper could not speak. When asked by the City Counsel during the hearing, City Administrator Chown recommended transfer of services to Jackson County.

         Ultimately, the City Council voted 4-4, with Mayor Danielson casting the tie-breaking vote in favor of transferring police services to the County and rejecting Cooper’s petition. From the transcript and the minutes of the meeting, however, it was also clear that despite this vote, citizens of the City could petition for a binding referendum with a minimum of 200 signatures within 60 days of the vote. Moreover, after Mayor Danielson cast his vote, Cooper spoke up, and Danielson recognized him as “Officer Cooper.” The pertinent portion of the hearing transcript reads as follows:

MR. COOPER: Tom Cooper, Town of Adams. I direct this question at Attorney Diehn. Can we run a recall election at the same time as a referendum and remove council members?
MR. DIEHN: You can obviously do a recall election. That’s not -- I didn’t research the procedure for that, so we -- I can research that and talk to you about it --
MR. COOPER: Okay.
MR. DIEHN: -- and get back tomorrow or thereafter.
MR. COOPER: Thank you very much.
MAYOR DANIELSON: I don’t understand a recall because it’s either referendum either way. I don’t understand your reasoning there, Tom, but, so.
MR. COOPER: Well, I’ll try and make it a little more clear. I think since you cast the tie -- the tie vote -- and broke the tie on this thing -- [] I think that there’s a direct conflict of interest for you to vote on it at all.
MAYOR DANIELSON: That’s the only time I can vote is on a tie.
MR. COOPER: . . . I think that you should have called for a second vote or (inaudible) anything, but I don’t think you’re entitled to vote on it due to a conflict of interest on your part.
MAYOR DANIELSON: I don’t know where --
MR. COOPER: And that’s my feeling.
MAYOR DANIELSON: Where’s the conflict, Tom?
MR. COOPER: The conflict is, is that the city police department investigated you for ...

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