“As noted in the defendants’ motion to dismiss, the plaintiff still has her job; she has not been fired; she has not been demoted; she has not been disciplined; her pay has not been cut; her staff has been increased; and she has not been kept from performing any of her official duties,” the defendants’ May 4 reply states. “Therefore, the plaintiff here, even if she engaged in free speech activities that her employer did not like in some way, has not suffered any of the harm like that of the plaintiffs in cases where courts have found that a public employer’s actions adversely affected the employee's First Amendment rights.”
The defendants claim that the plaintiff has made it clear that the "retaliatory conduct” upon which she bases her claim is the defendants’ criticism of her job performance and the low evaluation scores she received.
“It is common sense to say that an employer should be able to critique an employee’s job performance without worrying about litigation resulting from such supervisory activities,” the reply states. “So such allegations, even if taken as true, are analogous to the acts that other courts have held are not actionable adverse employment actions sufficient to constitute improper retaliation in a public employment context.”
The defendants claim that the court should find that the plaintiff has failed to allege adverse employment actions that rise to the level of impermissible retaliation.
Tucker’s response to the April 14 motion to dismiss was filed on April 28. She claimed that the defendants “clearly cannot achieve dismissal as a matter of law when they do not include reference to the legal theory on which the plaintiff’s claims are based.”
In the defendants’ motion to dismiss, they allege that Tucker’s claims were not supported by facts or do not have anything to do with the interactions between Tucker and the named city council members.
Tucker has served as the city clerk for approximately 24 years and, in February 2016, she provided testimony at a judicial trial seeking the removal of Mayor Marti Shamberger, Deputy Mayor William Kawecky, Jennifer Selin and Nancy Ganz, according to a complaint filed March 1 in the U.S. District Court for the Northern District of West Virginia.
Tucker claimed the removal petition that was filed by a citizen of Morgantown alleged that the defendants engaged in misconduct, malfeasance in office, incompetence and neglect of duty, and, subsequent to her testimony, she experienced a systematic pattern of retaliation at the hands of the defendants, including baseless and exceedingly negative job performance evaluations.
She also claimed she was subjected to a hostile work environment rife with harassment and unwarranted scrutiny, which continues to the present.
Tucker was one of several city employees, including former City Manager Jeff Mikorski and former Assistant City Manager Glen Kelly, to testify in a petition brought in 2015 by George Papandreas.
Tucker is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Sean W. Cook of Meyer Ford & Glasser.
The defendants are represented by Debra Scudiere and Erin J. Webb of Kay Casto & Chaney.
U.S. District Court for the Northern District of West Virginia case number: 1:17-cv-00033