United States District Court, D. Arizona
H. RUSSEL HOLLAND, District Judge.
Cross-Motions for Summary Judgment
Plaintiff moves for summary judgment. This motion is opposed,  and defendant cross-moves for summary judgment. Defendant's cross-motion is opposed. Oral argument was requested and has been heard.
Plaintiff is Douglas Clabaugh. Defendant is Yuma County.
Plaintiff was employed as a deputy by the Yuma County Sheriff's Office. On October 10, 2012, plaintiff had a brief conversation with Jack Lehr, who was also employed by defendant, when plaintiff dropped his patrol vehicle off at the County Maintenance Yard for service. The conversation concerned the upcoming election for sheriff and a debate between the candidates that had been held the night before. During the conversation, plaintiff made reference to the "good old boy system" in the Sheriff's Office.
Lehr reported the conversation to his supervisor, Matthew Catron, via email, because he "kind of felt offended" by plaintiff's remark about "the good old boy system." Lehr testified that he did not really know what plaintiff was referring to in using that term but that he thought it was inappropriate for plaintiff to use that term. In his email to Catron, Lehr stated that plaintiff
asked if I attended the debate between Wilmot and Sandoval for Sheriff. I told him no I did not attend it and that I did not know about [the debate] until yesterday afternoon. Deputy Clabaugh said he would of liked to have attend[ed] the debate but had to work at night.
I told Deputy Clabaugh that it is on the front of the paper that is lying on the other desk. He then said that he is voting for Sandoval, cause he is tired of the gold ole boy things that go on at the Department. He also said that he is not the only one that will be voting for Sandoval from here and he meets with Sandoval regularly.
He then mentioned the Youtube video with Sandoval in it and said that is not a deal thing. [sic] I then told Deputy Clabaugh that I am a registered Democrat and will always vote for the right person and that person is not Sandoval. I told him that I have been at this Department for a long time and this Department is running smoothly and after I saw the Sandoval video, I believe him to be corrupt. After that Deputy Clabaugh's ride showed up and he said he would be in for uniforms soon and he left the Warehouse.
Plaintiff testified that, contrary to what Lehr wrote, he did not use the term "good old boy system" as a means of expressing his own personal opinion about the Sheriff's Department, but rather he used the term to indicate why others were going to vote for Sandoval.
On October 10, 2012, Lieutenant Darren Simmons spoke to plaintiff about his conversation with Lehr. Plaintiff contends that he "advised [Simmons] I would no longer have any conversations with Mr. Lehr" and that he "asked the Lieutenant if this would be the end of the matter" and was told that it would be.
Catron had, however, forwarded Lehr's email to Captain Eben Bratcher. Bratcher's response was "I'd like a list of what good ol boy' actions he [plaintiff] is disturbed by."
On October 11, 2012, plaintiff received a phone call from Simmons who "advised that Captain Bratcher wanted a memorandum about the incident between me and Mr. Lehr. Lieutenant Simmons also said I needed to put in the memo... what a good ol boy system is and what I meant by it and how to correct it."
Plaintiff wrote a memo dated October 14, 2012 in response. Plaintiff wrote:
On 10/11/12, I was advised by Lt Simmons to complete a memo in reference to a conversation that occurred on 10/10/12, between Mr. Jack Lehr and me.
The conversation was in reference to the upcoming election. Mr. Lehr had stated his opinion about the changes that could take effect. I then brought up my opinion about the changes that could take place and what I have heard from other persons.
After speaking with Lt. Simmons about the situation on 10/10/12, I was advised not to express my opinion to anyone while on duty. I advised Lt. Simmons that I understood and there would be no further situations of this matter.
As far as the conversation was concerned, I thought it was two adults that had a difference of opinion and nothing more. I was not angry or upset in reference to Mr. Lehr's opinion and was glad he shared it.
Plaintiff submitted the October 14 memo to Simmons on October 15, 2012, who forwarded it to Bratcher. Bratcher determined that the memo was not sufficient and asked Simmons to have plaintiff write another memo. Simmons relayed this request to Sergeant Voss. Voss asked plaintiff for another memo, advising him that the one he had submitted was "not the memo that Captain Bratcher wanted due to it did not say anything about me speaking about the good ol boy system." Plaintiff said that he would write another memo but "asked if there was a way to get an email or something in writing about what to do[.]" Plaintiff contends that he was concerned that writing about the good old boy system reference could be a policy violation (making disparaging remarks about the Sheriff's Office). Two other deputies were present in the room during Voss' conversation with plaintiff about the memo.
Voss emailed Simmons to advise him of his conversation with plaintiff. Voss wrote that plaintiff stated that he wanted the request to write a memo about the good old boy system in writing "and that he was going to discuss it with a lawyer and or AZCOPS."
Later in the day on October 15, 2012, Simmons placed plaintiff on administrative leave and advised plaintiff that an administrative investigation (AI investigation) would be conducted.
Sergeant Jason Amon conducted the AI investigation. The three charges against plaintiff were insubordination, satisfactory performance, and public criticism. Amon interviewed plaintiff, Lehr, Voss, and Simmons. Prior to his interview with Amon, plaintiff was advised of his rights regarding the interview and was given and signed a copy of A.R.S. § 38-1101, which provides, among other things, standards or rules for interviewing law enforcement officers.
During the interview, Amon asked plaintiff if he "made the comment that you thought [the Sheriff's Office] was a good ole boy system" and plaintiff replied, "No I did not. I was referring to what I've heard." Plaintiff also explained that he asked for the order to be in writing because he thought he was being asked to violate the public criticism policy "where it says where you won't put in writ[ing] where you will slander."
In Lehr's interview with Amon, Lehr stated that plaintiff said "he was voting for Sandoval and he was tired of all the good ole boy ...