Van Dam's case closed


***EDITOR'S NOTE***

A previous version of this article incorrectly stated, "Judge Freudenthal issued an order of summary judgment dismissing all seven claims with prejudice," in the Clevenger v. Guernsey portion of the article. This statement is incorrect as the order of summary judgment dismissed five claims with prejudice, leaving two claims, Claim I and Claim III open. These matters were to be taken to trial this month, but the matters were settled between the plaintiffs and defendants. We apologize for the mistake and correct the matter with this update. 

CHEYENNE – On April 9, 2020, a trio of 1983 Civil Rights Employment Discrimination lawsuits were filed in the United States 10th District Court. The three cases were Van Dam v. Guernsey, Montgomery v. Guernsey and Clevenger v. Guernsey. Van Dam v. Guernsey was presided over by the honorable Judge Scott Skavdahl, Montgomery v. Guernsey was presided over by the honorable Judge Alan Johnson and Clevenger v. Guernsey was presided over by the honorable Judge Nancy Freudenthal.

Attorneys Bruce Asay and Gregory Asay represented Terri Van Dam, Kathy Montgomery and Misty Clevenger while attorney John Bowers represented Nick Paustian, Guernsey mayor, Kate Farmer, Guernsey clerk/treasurer, Kellie Augustyn, councilman for the town of Guernsey, and the town of Guernsey.

 

Van Dam v. Guernsey

According to the complaint filed by Van Dam through her counsel, “this is an action brought by the Plaintiff against the Defendants for violations of the Plaintiff’s rights under the United States Constitution and the Wyoming Constitution and certain state law claims. The Plaintiff brings this action for actual and compensatory damages as well as punitive damages and attorney’s fees. The Plaintiff brings this complaint for discrimination and retaliation based on her unlawful and void termination from employment in 2020 where Ms. Van Dam previously worked as chief of police for the Town of Guernsey Police Department.”

The complaint indicated Van Dam began working for the Guernsey Police Department on Jan. 3, 2015, when she was hired as a police officer, who was later promoted to sergeant and then chief of police.

“During her tenure as a law enforcement officer for the Town, Ms. Van Dam endured a fair amount of gender discrimination, and observed questionable behavior from her own superiors and town officials,” the complaint reads. “She reported some offensive conduct to her predecessor chief of police who dismissed her allegations and encouraged her to keep her mouth shut.”

Van Dam began conducting a private investigation, of her own accord, into the town of Guernsey. After acquiring evidence, Van Dam turned her findings over to the Wyoming Division of Criminal Investigation (DCI) and the Federal Bureau of Investigation (FBI).

“On Jan. 7, 2020 at a public town hall meeting, the Town attorney disclosed to the Town council that the Plaintiff (Van Dam) had reported misconduct to DCI and the FBI and that an active investigation was taking place. Plaintiff was shocked at the disclosure considering the repercussions of publicly disclosing the investigation to the potential suspects,” the complaint reads. “On Jan. 15, 2020, the Plaintiff is terminated. Defendant Paustian, under the pretense of discussing her over budgeting, invited the Plaintiff to meet with him in the afternoon…When Plaintiff arrived at the meeting she noted two armed sheriff deputies from the Platte County Sheriff’s Office in addition to Defendant Paustian and Defendant [Augustyn].”

According to the complaint, Paustian told Van Dam she was an at-will employee, and she was being terminated for no providing the police work schedule and “not being on the same plane” as he was. The complaint also purports Paustian accused Van Dam had disclosed information to a private citizen that wound up on a social media post which he thought, “hits a little too close to home.”

The complaint listed six claims: retaliatory termination in contravention to constitutional right-freedom of speech, violation of due process – property interest, violation of due process – liberty interest, private action pursuant to 1983, injunctive relief and declaratory judgement – termination is void.

The complaint said Van Dam had suffered damages and was entitled to the damages she had lost. The damages were listed as employment income, overtime pay, vacation accrual and training, deprivation of liberty, deprivation of property, retaliation and loss of reputation.

A jury trial was conducted Monday, June 7, through Friday, June 11, 2021. A special verdict form was provided to the jury to complete after their deliberations.

The form reads:

“We, the jury duly empaneled in the above-captioned cause, hereby find the

following answers to the questions presented to the Court:

  1. Was the Plaintiffs contact with the Wyoming Attorney General's Office, the Wyoming Division of Criminal Investigation, and the Federal Bureau of Investigations making reports of what she believed to be illicit, illegal and/or improper behavior of members of the Town Council a motivating factor in Defendants' decision to terminate the Plaintiff? [Yes].
  2. Was Plaintiff’s perceived speech to Karina Lewis, which resulted in a public post on Facebook about the plans of the Town Council to defund the Guernsey Police Department, reduce local law enforcement protections, and concerning investigations from outside law enforcement agencies of the Guernsey Mayor and Town Council, a motivating factor in Defendants' decision to terminate the Plaintiff? [Yes].
  3. If you have found that Plaintiffs free speech or perceived free speech was a motivating factor in Defendants' decision to terminate Plaintiff, do you find that Defendants have established by a preponderance of the evidence that they would have reached the same decision even in the absence of Plaintiff s free speech or perceived free speech? [No].
  4. What is the total amount of money you find will compensate Plaintiff for the damages she suffered as a result of her termination? If you find in favor of Plaintiff, but you find Plaintiffs damages have no monetary value, then you must return a verdict for Plaintiff in the nominal amount of one dollar. [$325,175]”

On July 22, 2021, Van Dam’s attorney, Greg Asay, filed a motion requesting the court award the full amount of requested costs and fees totaling $177,604.71. There is no order listed in the court record, but the record shows there was a verbal notice of settlement received by the court Aug. 17, 2021.

 

Montgomery v. Guernsey

According to the complaint filed by Montgomery through her counsel, “This is an action brought by the Plaintiff against the Defendants for violations of the Plaintiffs rights under the United States Constitution and the Wyoming Constitution and certain state law claims. The Plaintiff brings this action for actual and compensatory damages as well as attorney's fees. The Plaintiff brings this Complaint for discrimination and retaliation based on her unlawful and void termination from employment in 2020 where Ms. Montgomery previously worked as the deputy clerk for the Town of Guernsey.”

The complaint states Montgomery began working as deputy clerk for the town of Guernsey on July 2, 2007.

“Over the course of her nearly thirteen years working for the Town, she encountered and overcame multiple challenges,” the complaint reads.

The complaint describes several instances where Montgomery had been made aware of purported malfeasance of municipal employees. She reported the misfeasance but purports nothing was done, and she was “treated like a nuisance” for making said reports.

“On January 7, 2020, Ms. Montgomery met with the mayor. The mayor told her that she is being let go without any reason or cause as she was an "at-will" employee,” the complaint reads. “Ms. Montgomery was terminated two days after telling her supervisor that she would likely need additional medical care…In response to her termination, Ms. Montgomery requested a hearing on her dismissal. The request was denied in a letter which included false statements about Ms. Montgomery and her work for the Town.”
The complaint listed six claims: violation of due process – liberty interest, violation of due process – property interest, private action pursuant to 1983, injunctive relief, defamation and intentional infliction of emotional harm.

“As a result of the above, the Plaintiff has suffered damages. Plaintiff is entitled to damages as she has lost: employment income; overtime pay; vacation accrual and training; deprivation of liberty; deprivation of property; retaliation; humiliation; stress and loss of reputation…Due to the actions of the Defendants the Plaintiff has suffered damages in an amount to be proven at trial, including lost wages and benefits, lost economic potential, harm to her reputation, emotional distress and incurrence of attorney's fees and other costs including prejudgment interest.”

On June 4, 2021, Judge Rankin issued an order on the plaintiff’s motion for a default judgment. According to the judgment, “Courts should exercise caution when applying sanctions through Rule 37. “The remedy should fit the wrong, and the severe measures authorized by this subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.” Fed. R. Civ. P. 37 (advisory committee notes to the 2015 amendment). Here, the Court finds Plaintiffs have not been so severely prejudiced, or that Defendants acted with the requisite intent, to justify a sanction in the form of default judgment. IT IS THEREFORE ORDERED Plaintiffs’ Motions are Denied in Part.”

On Sept. 1, 2021, the court records indicate a notice of settlement was made with the court.

 

Clevenger v. Guernsey

According to the complaint filed by Clevenger through her counsel, “This is an action brought by the Plaintiff against the Defendants for violations of the Plaintiffs rights under the United States Constitution and the Wyoming Constitution and certain state law claims. The Plaintiff brings this action for actual and compensatory damages as well as attorney's fees. The Plaintiff brings this Complaint for discrimination and retaliation based on her unlawful and void termination from employment in 2020 where Ms. Clevenger previously worked as a police sergeant for the Town of Guernsey Police department.”

The complaint indicates Clevenger was hired as a sergeant for the Guernsey Police Department. Clevenger purports the town reached an agreement with her to pay her the same amount of money she was being paid while employed with the Wyoming Law Enforcement Academy. The alleged caveat to the agreement was Clevenger would receive less hourly pay than before but would make up the difference with overtime pay.

“The Town honored this agreement at first, however in October of 2019 the Town began to cut the GPD hours resulting in a significant loss of pay to the Plaintiff. The issue was raised during an executive session of a town hall meeting and all parties agreed that Plaintiff would receive her same take home pay and that she would work at least forty-eight (48) hours per week. Again, this agreement was honored for a short period of time and then hours were again reduced by the Town.”

The complaint then goes on to say Clevenger assisted Van Dam with the investigation into the town of Guernsey’s town officials and employees.

“In December of 2019, the Plaintiff began to hear rumors that the Guernsey Police Department was going to be disbanded by the Town and that the Platte County Sheriff would take over GPD responsibilities…On information and belief, on or around December 2019 the Town Clerk, Kate Farmer was using her position as the Town email administrator to improperly access GPD email accounts and hard drives without authority or justification. Among the countless confidential emails she is believed to have reviewed (including juvenile records) were emails between the chief of police and DCI and the FBI…On information and belief, these emails and their contents were shared with members of the public, town officials and town employees, including alleged suspects whose names had been contained on the lists of people suspected of engaging in illicit behavior and forwarded to outside agencies for investigation.”

Van Dam was terminated by the town of Guernsey and Clevenger was offered the position. Clevenger denied the position and continued to work as a sergeant for the department.

“On February 4, 2020, Ms. Clevenger was invited to attend the executive session of another town council meeting. Ms. Clevenger observed a Platte County Sheriff’s deputy present during the executive session which she noted as odd. As soon as the council went into executive session, she was terminated by the mayor. She was told that she was an "at-will" employee and not provided any reason, or cause for her termination in contravention to the GPD Employee manual which only allows termination of a non-probationary employee for cause. During her tenure with GPD, Ms. Clevenger had a spotless record and no disciplinary actions including verbal warnings. Plaintiff was not allowed a hearing, nor presented with any cause or reason why she was terminated…Two days later, on February 6, 2020, on information and belief, Paustian and [Augustyn] made disparaging comments regarding the work performance and capabilities of the Plaintiff which negatively affected her ability to find work in law enforcement.”

Clevenger’s complaint listed seven claims: retaliatory termination in contravention to constitutional right-freedom of speech, violation of due process – property interest, violation of due process – liberty interest, injunctive relief, private action pursuant to 1983, declaratory judgment – termination is void and breach of contract.

“As a result of the above, the Plaintiff has suffered damages. Plaintiff is entitled to damages as she has lost: employment income; overtime pay; vacation accrual and training; deprivation of liberty; deprivation of property; retaliation; humiliation; stress and loss of reputation…Due to the actions of the Defendants the Plaintiff has suffered damages in an amount to be proven at trial, including lost wages and benefits, lost economic potential, harm to her reputation, emotional distress and incurrence of attorney's fees and other costs including prejudgment interest.”

On April 16, 2021, Judge Freudenthal issued an order of summary judgment dismissing five claims with prejudice. The remaining two claims, Claim I and Claim III remained in effect.

On June 4, 2021, Judge Rankin issued an order of default judgment stating, “Courts should exercise caution when applying sanctions through Rule 37. “The remedy should fit the wrong, and the severe measures authorized by this subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.” Fed. R. Civ. P. 37 (advisory committee notes to the 2015 amendment). Here, the Court finds Plaintiffs have not been so severely prejudiced, or that Defendants acted with the requisite intent, to justify a sanction in the form of default judgment. IT IS THEREFORE ORDERED Plaintiffs’ Motions are Denied in Part.”

On Aug. 17, 2021, the court record indicates the court received a verbal notice of settlement.

The Gazette reached out to the attorneys representing the plaintiffs and defendants for more information about the purported settlements in the matter, but none of the attorneys have called back as of press time.

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