United States District Court, D. Arizona
G. Campbell Senior United States District Judge
have filed a motion for summary judgment on the claim brought
by Plaintiff Willard Whalen under 42 U.S.C. § 1983. Doc.
54. The motion is fully briefed, and oral argument will not
aid in the Court's decision. See Fed. R. Civ. P.
78(b); LRCiv. 7.2(f). The Court will deny the motion.
worked as a volunteer firefighter with the Mormon Lake Fire
District between 2011 and 2015, when his volunteer status was
terminated. Whalen filed this suit under § 1983 against
the Fire District, Clifton Terrell, and Glen Reagan. Doc. 1.
He alleges a First Amendment retaliation claim arising from
was hired as a volunteer firefighter in 2011. Doc. 55 at
¶¶ 8, 10. In 2012, he was promoted to a paid
part-time Shift Captain position. Id. He returned to
volunteer status in 2013. Id. Whalen's duties as
a volunteer firefighter included attending training and
responding to emergency calls. Doc. 55 at ¶ 8.
Shift Captain, Whalen was responsible for training and
evaluating firefighters, finding training opportunities and
scholarships for volunteers and firefighters, ensuring
minimum staffing levels were satisfied, organizing the Fire
District's staffing resources to prepare for large
events, and setting up a new fire division. Doc. 60 at ¶
3; Doc. 55 at ¶ 11. In the Fire Chief's absence,
Whalen served as Officer-in-Charge (“OIC”),
assuming responsibility for managing the Fire District's
operations. But Whalen could not write new policies, spend
the Fire District's money, or make decisions reserved to
the Fire Chief. Doc. 55 at ¶ 12. Whalen continued to
manage personnel, including planning and staffing for events
that drew large crowds to Mormon Lake, until his termination
on September 4, 2015. Doc. 60 at 6.
Lake is home to 1, 500 part-time residents and up to 10, 000
visitors during peak summer months. Doc. 59 at 2. The Fire
District is governed by a five-member Board. Doc. 55 at
¶ 1. The Board's duties include setting policies,
managing the Fire District's finances, setting
compensation, and reviewing operating procedures prepared by
the Fire Chief. Doc. 60 at ¶ 1.
Board hires the Fire Chief, who is then responsible for all
personnel issues involving firefighters and administrative
staff. Doc. 55 at ¶ 3. Final policymaking authority
concerning personnel issues rests with the Fire Chief, not
the Board. Doc. 60 at 3-4; Doc. 55 at 10; Doc. 56-3 at
107:15-111. Glen Reagan was Fire Chief between 2011 and 2015.
Doc. 55 at ¶¶ 8, 10. Clifton Terrell was hired by
the Board to succeed Reagan as Fire Chief in June 2015. Doc.
55 at ¶¶ 24-30.
allowed Reagan to continue serving in a senior capacity under
his command. Doc. 55 at ¶¶ 24-30. On August 17,
2015, Terrell suspended Whalen. Doc. 55 at ¶ 71. Shortly
after, Reagan and two volunteer firefighters - Blake Palen
and James Goodall - gave Terrell reports concerning
Whalen's allegedly insubordinate behavior towards Terrell
during August 15, 2015 debriefings. Doc. 60 at ¶ 43.
days later, on August 28, 2015, Terrell convened what he
referred to as a “tribunal” to discuss
Whalen's discipline. Doc. 60 at 11. The tribunal's
members included Reagan, Palen, and Board member Scott Gold.
Id. According to Terrell, the tribunal unanimously
recommended Whalen's termination. Id. Reagan
denies taking part in, or even knowing of, a decision to
terminate Whalen until after it happened. Doc. 55 at ¶
August 31, 2015, Terrell wrote a memorandum about Whalen to
Tim McNeal, Deputy County Attorney and the Board's legal
counsel. Doc. 60 at ¶¶ 47-48. Titled
“Statement of Cause, ” Terrell's memo
provides McNeal with several reasons for Terrell's
decision to terminate Whalen, including Whalen's
deteriorating demeanor and his suggestion during a public
Board meeting that former Fire Chief Reagan misappropriated
funds and that his assistant falsified her time sheets. Doc.
60 at ¶¶ 47-48. Terrell terminated Whalen's
volunteer status with the District on September 4, 2015. Doc.
60 at ¶ 49.
Defendants' Version of Whalen's Termination.
to Defendants, Whalen's insubordinate conduct first began
in September 2014 when he applied for grants to hire new
firefighters without consulting Reagan, who was then the Fire
Chief. Doc. 55 at ¶¶ 21-22. As a result, Reagan
gave Whalen a poor rating on teamwork during a performance
review, noting that Whalen should have addressed department
issues with the Chief. Doc. 55 at ¶¶ 21-22.
30, 2015, Whalen sent an unauthorized email seeking to
coordinate volunteer firefighter schedules in preparation for
the July 4th weekend. Doc. 55 at ¶ 43. Terrell, who was
then serving as Fire Chief, gave Whalen a verbal warning
about the unauthorized email on July 8, 2015. Doc. 55 at
¶¶ 43, 47.
22, 2015, Whalen sent another email to a state agency
requesting firefighter training scholarships for himself and
other Fire District volunteers. Doc. 55 at ¶¶
51-56. According to Defendants, processing and handling
scholarship requests is reserved to the Fire Chief and
Terrell never authorized Whalen to send these requests.
August 15, 2015, Whalen made allegedly disparaging comments
about Terrell's leadership during team debriefings.
Whalen said he believed Terrell was not appropriately
prepared for one event and questioned why Terrell could not
be reached during another incident. Id.
Plaintiff's Version of His Termination.
alleges that Reagan gave him a poor performance review in
September 2014 because they disagreed about a firefighter
safety issue that Whalen later brought to the Board during a
public Board meeting. Doc. 55 at 85. Specifically, Whalen,
who was serving as volunteer Shift Captain at the time, asked
for the Board's guidance on resolving impasses relating
to firefighter safety that arise between the Fire Chief and
Shift Captain. Doc. 55-1 at 87. According to Whalen, he
brought the matter to the Board because he did not want to
expose the Fire ...