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Hutton v. Maynard

United States District Court, E.D. Arkansas, Western Division

January 8, 2015

HERMAN L. HUTTON, Plaintiff,



Herman L. Hutton, former Chief of Police for the City of England, Arkansas (the City), brings this action against the City, Mayor Danny Maynard, Jr., and City Council members Lenny Abrams, Peggy Baker, Rick Douglas, Dearl Frizzell, Mary Givens, Bill Newton, Jeremy Nutz, and Dudly Webb, Jr., claiming he was terminated as Chief of Police in retaliation for his desire to promote an African-American, in retaliation for his preaching off duty as an ordained Baptist minister, and due to a desire to replace him with someone younger. Hutton brings his claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and 42 U.S.C. §§ 1981, 1983. Hutton also asserts a state law claim of wrongful discharge.

Before the Court is defendants' motion for summary judgment [doc.#24]. Hutton has responded in opposition to defendants' motion and defendants have replied to Hutton's response. For the reasons that follow, the Court grants defendants' motion for summary judgment on Hutton's federal claims and dismisses Hutton's state law claim of wrongful discharge without prejudice.


Hutton, a white male, was hired as the City's Chief of Police on August 6, 2007. Maynard terminated Hutton from that position on September 19, 2012.

Hutton states that "[d]uring 2009, I was called to minister and began serving as a Baptist preacher." Hutton Aff. ¶ 5.[1] When Hutton started preaching in 2009, Hutton went to Maynard and told him he was going to preach and Maynard supported him. Hutton Depo. at 31, 52. Hutton states he "served as a minister and preacher to area Baptist churches on his off days throughout his administration time, " that he "was ordained with the knowledge and support of the Mayor and city officials, " and that "[t]he Mayor and City Council all knew and respected the Plaintiff for his religious beliefs and, at no time, asked him to cease working as a minister on his off days." Pl.'s Compl. ¶¶ 12, 21.

Some three years after he started preaching, Maynard informed Hutton by letter dated April 30, 2012, that he had received several negative comments from residents regarding a community meeting and that the people who spoke with him about it felt there was too much religious emphasis, with one person saying "it was more like a church service than a city meeting." Maynard also expressed concern about a plaque on the wall of the Police Department entrance with the Ten Commandments and noted that Don Zimmerman, Executive Director of the Arkansas Municipal League, stated this was inappropriate and placed the City at risk for legal action. Maynard concluded his letter to Hutton as follows:

Based on my conversation with Don, I would ask the following: (1) Please do not schedule another community meeting unless the focus is completely on the city, (2) Please do not display any religious materials in areas of the Police Department which are open to the public, and (3) To use Don's word, please avoid any activity that could be considered "proselytizing" while on duty as the Chief of Police.

After receiving Maynard's April 30, 2012 letter, Hutton states he voluntarily offered to quit preaching, noting that "[w]hen [Maynard] gave me the letter I told him, I said, Well, I'll just quit preaching right now, ' but that Maynard responded by telling him Well, you don't have to do that.'" Hutton Depo. at 55. In this respect, Maynard doesn't "think that being a preacher and being a police chief go together" as far as performing the duties of police chief. Maynard Depo. at 12. Rather, Maynard states that "as a police chief, you need to be a chief and uphold the law and make the arrests the way that they should. If you're going to preach, then preach, but don't try to preach to them and witness to them when you're trying to arrest them." Maynard Depo. at 13.[2] Hutton does not dispute that he was not entitled to preach while on duty as police chief. Pl.'s Resp. to Def.s' St. of Undisp. Mat. Facts, ¶ 10 [doc.#34].

As Chief of Police, Hutton was responsible for making sure that officers under his command were trained properly and up-to-date on their certifications. Hutton Depo. at 19-20. At the time of his termination, Hutton's officers were not up-to-date on their firearms certifications and had not been firearms qualified for over two years, from June 2010 to September of 2012. Hutton Dep. at 20, 25. Hutton claims this was because there was a shortage of ammunition. Hutton Depo. at 20. City Council member Nutz states that it was possible for Hutton to obtain ammunition during this period, Nuntz Depo. at 23, while City Council member Baker states that as an employee of Remington Arms, she was aware of a general shortage of ammunition in the United States between 2010 and 2012 but that it wasn't mentioned to her in a City Council meeting. Baker Depo. at 7-8. Baker states that if Hutton had made the City Council aware of his officers' lack of firearm certification then the City Council would have ensured funds were available for the purchase of ammunition. Baker Depo. at 24, 26. For his part, Maynard states the ammunition issue was not ever a consideration for him and that he didn't know there was an ammunition issue until the day he was deposed on May 20, 2014. Maynard Depo. at 77-78.

It was also Hutton's duty to make sure the department's canine was certified. Hutton Depo. at 21. At the time of his termination, the canine was not certified. Hutton Depo. at 21. Hutton states that "the officer [in charge of the canine unit] and I had that discussion [about the canine certification] and he was about to be disciplined when I was fired." Hutton Depo. at 21. Hutton states there were several issues with rescheduling the certification of the canine unit, including that the canine officer "had missed several training sessions because of some family stuff." Hutton Depo. at 84. Hutton states he couldn't recount "exactly every issue that was there, but I know that we had trouble getting him to that training." Hutton Depo. at 84. In his affidavit, Hutton states that "[w]ith regard to ensuring that the canine unit was certified, Maynard, along with the rest of the City Council were aware of the fact that the canine unit was extremely ill making the animal incapable of being certified." Hutton Aff. ¶ 22. Maynard acknowledges that the "dog had gotten in bad health" and that was "[p]ossibly" one of the reasons why the training kept on being delayed. Maynard Depo. at 77-78. The canine had not been certified for some six months at the time Hutton was terminated. Hutton Depo. at 21.

Maynard received complaints about the job performance of Hutton and the police department from Janice Campbell, the Director of the Housing Authority. Hutton Depo. at 63. Among other things, Campbell claimed that a crime occurred at the Housing Authority and that no officer responded. Hutton Depo. at 64. Hutton acknowledges he can neither prove nor disprove Campbell's claim, stating it's "like trying to prove a negative." Hutton Depo. at 64. Hutton also acknowledges that Campbell's claims could "shake [his] boss' faith perhaps in [his] ability to lead the police department." Hutton Depo. at 64.

The owner of Downtown Motors, Larry Pettit, also complained about Hutton, claiming that one of Hutton's officers targeted his employee and gave the employee a ticket. Hutton Depo. at 64-65. Hutton, who noted that his department had arrested several of Pettit's employees, states that after looking at the targeting claim, he determined that the ticket was for a legitimate traffic stop. Hutton Depo. at 65.

At some point, Hutton became aware of a dent to the left front fender of the new Tahoe he was driving. Hutton Depo. at 59. Hutton reported the dent to Maynard or Susan Pitts, Maynard's assistant, and was asked to get the Tahoe repaired. Hutton Depo. at 59. Hutton did not get the Tahoe repaired "right away" and does not "remember if we got it over to the body shop to get that dent taken out or not." Hutton Depo. at 59-60.

Pursuant to a federal grant, Hutton purchased video cameras for the police units but was instructed by Maynard that he must stay within the monetary limits of the grant because of the City's funding. Hutton Depo. at 55. Hutton exceeded the grant limit by some $4, 000 because he didn't account for certain charges, including taxes. Hutton Depo. at 56. In this respect, Hutton states he had to do away with one camera to fit inside the budget and was instructed to return one camera to the vendor. Hutton Depo. at 56. Hutton did not return the camera, however, stating that "we were having problems with two of the cameras that were in the vehicles and I held onto that camera until we got that ironed out with the company." Hutton Depo. at 56. Hutton does not know if the camera issue is "all worked out" as he "left before that was done." Hutton Dep. at 59. Maynard states "there were probably five times that [Hutton] was asked if the camera had been sent back" but it had not and that the camera issue "was the straw that broke the camel's back" in his decision to terminate Hutton. Maynard Depo. at 29, 77.

Hutton states he informed Maynard that he wanted to promote an African-American, Brenda Parks, and that Maynard said, "You do whatever you think is right, Chief." Hutton Depo. at 33. Hutton states he was terminated the following day and that immediately thereafter, "they did away with that position so she wouldn't be put into it" although "she was later reinstated to that position when they made it again." Hutton Depo. at 33. Hutton acknowledges that Parks is the head dispatcher and that she wasn't fired. Hutton Depo. at 34.

Hutton appealed Maynard's termination of him as Chief of Police to the City Council and asked that he be reinstated. The City Council held a meeting on the issue at which Hutton never mentioned that his promotion of Parks or his preaching off duty had anything to do with his termination. Hutton Depo. at 38. Apparently, either a motion was made by City Council member Givens to reinstate Hutton but the motion died for lack of a second or a vote was taken by the full City Council on ...

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