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Whalen v. Mormon Lake Fire District

United States District Court, D. Arizona

January 28, 2019

Willard Whalen, Plaintiff,
Mormon Lake Fire District, et al., Defendants.


          David G. Campbell Senior United States District Judge

         Defendants 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.

         I. Background.

         A. Relevant Events.

         Whalen 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 his termination.

         Whalen 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.

         As 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.

         Mormon 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.

         The 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.

         Terrell 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.

         Eleven 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 ¶ 78.

         On 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.

         B. Defendants' Version of Whalen's Termination.

         According 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.

         On June 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.

         On July 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. Id.

         On 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.

         C. Plaintiff's Version of His Termination.

         Whalen 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 ...

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