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Munson v. Friske

January 29, 1985


Appeal from the United States District Court for the Western District of Wisconsin. No. 80 C 303 - Barbara B. Crabb, Judge.

Author: Flaum

Before COFFEY and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*

FLAUM, Circuit Judge.

The plaintiff brought this action in the district court seeking declaratory, equitable and monetary relief under 42 U.S.C. §§ 1983 and 1985(3) for an alleged violation of his first and fourteenth amendment rights arising out of the termination of his employment with the defendant Ashland County. The district court granted summary judgment to the defendant on all of the claims and awarded $42,095 in attorneys' fees against the plaintiff. On appeal, we affirm the decision of the district court.


In July 1973, plaintiff Milo John Munson began working for the defendant Ashland County as an addressograph operator and the only employee in the Register of Deeds office under the supervision of the Registrar of Deeds, defendant Wendell R. Friske. Munson was hired to fill in temporarily for another employee who had undergone surgery. In January 1974, when the County learned that the veteran employee would not be returning, Friske asked Munson, who had been working part-time and attending college full-time, to increase his hours in order to process land transfers and to prepare assessment rolls. Munson proceeded to work more hours than the usual, full-time 35-hour work week. Although Friske signed vouchers showing Munson's overtime, Munson was not paid at an increased rate for these extra hours.

In late April 1974, Friske told Munson that extra help was needed in order to eliminate the backlog in the assessment rolls. He asked Munson to write a letter to the Ashland County Board's Finance Committee describing the duties of an addressograph operator, the office's needs and problems, and the need for additional help to eliminate the backlog and meet the assessment roll deadline. On April 30, Munson gave Friske a six-page letter for submission to the Finance Committee. After explaining the office's responsibilities and its critical need for another employee, Munson noted that the pay was "despicable" since it was no more than a common floor sweeper would earn. Munson also wrote that unless the Board would compromise in order to find a solution to the staffing problem, he would have to submit the letter as his letter of resignation.

Although Friske requested the Finance Committee to allow him to hire another employee to assist Munson in entering the transfers on the assessment rolls, he did not file or discuss Munson's letter with the Finance Committee. When Munson learned that Friske had not given the letter to the Committee, he demanded that the letter be sent to inform the Committee of the need for another employee even though Friske warned that the Committee might view the letter as Munson's resignation. Friske finally acceded to Munson's demand to send the letter, but he attached a cover letter to which Munson attached his own cover letter. Munson then sent the letter to defendant Kenneth Todd, the County Board chairman.

On May 13, 1974, Friske and Munson attended a Finance Committee meeting where it was decided that as soon as the assessment rolls were complete, a full-time employee would be hired to replace Munson. With the aid of an additional employee hired on a temporary basis, the tax assessment rolls were completed in mid-June 1974. On June 24, 1974, Munson sent a letter to Todd stating that the rolls were done, and referring to the demands in Munson's April 30 letter. Todd assumed that Munson was renewing those demands. In view of this letter and the fact that the assessment rolls had been completed, Todd added Munson's April 30 demands/resignation letter to the agenda for the July 1 Executive Committee meeting.

Meanwhile, in early June 1974, Munson had joined the Ashland County Courthouse Union Local 216 and had discovered upon reading the union contract that employees who worked more than 35 hours per week were supposed to be paid overtime of one and a half times the regular rate. When he approached Friske about receiving overtime pay, Friske advised Munson not to submit an overtime voucher since no one in the Register of Deeds office had ever submitted such a claim. On June 26, Munson submitted an overtime voucher to Friske which Friske refused to sign because the overtime claimed included time spent on moving cabinets rather than on working on the assessment rolls, as well as instances of working past 10:00 p.m. contrary to Friske's directions. Later that day, Friske gave Munson a letter authorizing compensatory time off instead of overtime pay to be effective June 27.

At the Executive Committee meeting on July 1, Friske informed the Committee that Munson had become "uncontrollable" and was refusing to follow Friske's orders. Board chairman Todd proceeded to read Munson's April 30 letter to the Committee. The Committee decided that it did not have to remedy Munson's concerns because the Register of Deeds office had previously been run by one full-time employee without any extra help or equipment. The Committee voted unanimously to accept Munson's resignation pursuant to his letter of April 30.*fn1

Following his termination and additional requests for overtime pay, Munson sued Ashland County for overtime pay in Wisconsin state court. The state court held that Munson was entitled to overtime pay, but that part of his claim was barred by the statute of limitations. While Munson continued to protest his termination to union representative, Friske learned in July or August 1974 that Munson had purchased some land while he was still employed by the County. Concerned that Munson may have used confidential information gained while he was an employee in the Register of Deeds office, Friske mentioned the land purchase to an official in another County department, who proceeded to investigate the transaction.*fn2 After several meetings of the Finance and Executive Committees, the Board ordered a John Doe investigation into the land purchase. Based on a special prosecutor's memorandum, the state court dismissed the proceeding in April 1975 and held that Munson had possessed no criminal intent.

In June 1980, Munson sued Friske, Rybak (the chairman of the Finance Committee and vice-chairman of the Board), Todd, and Ashland County in district court under 42 U.S.C. §§ 1983 and 1985(3) (1982), alleging that the defendants had unlawfully retaliated against him for exercising his federal constitutional and statutory rights by: (1) terminating his employment with the County as a result of his submission of an overtime claim, (2) neglecting to provide him with a hearing prior to termination, and (3) instigating a John Doe proceeding against him. The individual defendants moved for summary judgment based on the ground that their actions were taken in good faith. Defendant Ashland County moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Construing all of the defendants' motions to be for summary judgment, the district court granted summary judgment, reasoning that Munson had suffered no violation of his constitutional rights as a result of his termination and investigation by the defendants. After a hearing on Munson's ability to pay, the district court awarded attorneys' fees of $42,095 to the defendants.

On appeal, Munson claims that there were material facts in dispute regarding the circumstances of his termination and the instigation of a John Doe proceeding against him which precluded summary judgment. Munson also argues that his employment was improperly terminated because he was not given a hearing and that he has stated a valid claim under 42 U.S.C. § 1985(3) as to class-based invidious discrimination. Finally, ...

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