Germann v. City of Kansas City, Mo., 80-0499-CV-W-2-9.

Citation579 F. Supp. 180
Decision Date31 January 1984
Docket NumberNo. 80-0499-CV-W-2-9.,80-0499-CV-W-2-9.
PartiesJohn GERMANN, Plaintiff, v. CITY OF KANSAS CITY, MISSOURI, et al., Defendants.
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

Sandra Midkiff, Kansas City, Mo., for plaintiff.

Daniel G. Jackson, III, Asst. City Atty., Kansas City, Mo., for defendants.

MEMORANDUM OPINION AND ORDER

BARTLETT, District Judge.

In this case, plaintiff, a captain in the Kansas City Fire Department, claims that the City of Kansas City and John Waas, Director of the Department of Fire until April 9, 1980, and Edward Wilson, Waas' successor, violated his federal constitutional rights by not promoting him to battalion fire chief. Specifically, plaintiff alleges that defendants refused to promote him because of what he said as president of the union and because of his union membership. Also, plaintiff asserts that the defendants violated § 105.510 R.S.Mo. by discriminating against him because of his union affiliation.

Findings of Fact

Plaintiff John Germann has been employed by the Kansas City, Missouri, Fire Department for over 22 years. Since July 27, 1971, he has been a fire captain. From January 1, 1976, to December 31, 1981, Germann was President of Local Union No. 42 of the International Association of Fire-fighters, AFL-CIO (hereafter union).

The Kansas City, Missouri, Fire Department is part of the municipal government of the City of Kansas City and is supervised and controlled by the Director of the Fire Department. "The director of the fire department shall have charge of the prevention and suppression of fires and of all employees, buildings and equipment used for this purpose." § 31, City Charter. The Director of the Fire Department was commonly referred to as the "Chief."

Defendant John Waas (hereinafter Waas) was the Director of the Fire Department during all times relevant to this lawsuit. Waas retired as Fire Director on April 9, 1980. Since Waas' retirement, defendant Edward Wilson has been acting and then permanent Director of the Kansas City, Missouri, Fire Department.

Below the fire chief in the chain of command are the deputy fire chiefs, battalion fire chiefs, and fire captains. Seven battalion chiefs are on duty at a time. Each battalion chief supervises six to eight fire companies totalling 25-30 people. Six to eight fire captains report directly to each battalion chief.

In October, 1975, the union went on strike. All union members, including deputy and battalion chiefs, refused to report to work. Chief Waas was the only professionally trained firefighter on duty for a period of four days.

Thereafter, the city and the union executed a Memorandum of Understanding which provided for the reorganization of the fire department, raised wages and prohibited supervisors from belonging to the same labor organizations as the employees they supervised.

The planned reorganization of the fire department was referred to in Article XXII of the agreement in part as follows:

The city is endeavoring in good faith to implement a plan of reorganization for the Fire Department. Those increases tied to the plan will be paid on the dates set forth in this Memorandum provided that the Union and its members fulfill their commitments herein. For the purpose of this commitment, the implementation of the plan shall be measured by the scheduling (or proposed scheduling) of Firefighters on other than a 24 hour workday basis. The Union and its members agree that they will act in good faith to implement the plan and will use their best efforts to insure its success....

The union recognized in Article I of the agreement that:

the City feels that it needs a satisfactory number of supervisors who are not affiliated with any labor organization which admits to membership nonsupervisory fire service employees in order to effectively implement the reorganization of the Fire Department and generally for the purpose of management of the Fire Department....

Local No. 42 was recognized as the "exclusive bargaining representative for all firefighters, fire apparatus operators, captains ... and any employees in positions which may be created below the rank of captain...." Memorandum, Art. I. However, the union was prohibited from representing "supervisors, including battalion chief, deputy fire chief, superintendent of garage, superintendent of alarm, and chief fire prevention inspectors." Id.

Nothing in the Memorandum of Understanding was to be "construed as an attempt to limit the discretion of the appointing authority conferred by Article V, Section 121 of the Charter." Memorandum, Art. IV § 4. Under the city charter, a battalion chief vacancy was filled by the Chief selecting one of the top five candidates from the battalion chief eligibility list.

Waas was responsible for implementing the reorganization of the fire department. During the planning period for implementation of the new fire plan from July 9, 1976, to May 1, 1977, Germann became convinced that Waas was not going to follow the Memorandum of Understanding in implementing the plan. Germann believed that he knew more than Waas about how to interpret the Memorandum of Understanding because Germann helped negotiate the agreement.

From May 1, 1977, into 1979, the city attempted to implement the new work schedule. It was a period of turmoil and conflict between the union and the management of the fire department. One deputy fire chief accurately described the situation as a "we" against "them" atmosphere rather than "us" against the problem of how best to operate the fire department. Germann, as president of the union, vigorously led the union in opposing the manner in which the fire plan was being implemented by the fire department management. He repeatedly expressed his belief that the manner in which the city was attempting to implement the plan violated union members' rights.

Waas believed that it was his responsibility as chief to find a way to implement the city's fire plan while maintaining the fire fighting capability of the department. Waas' efforts to implement the fire plan put him squarely in the middle of the heated dispute between the union and the city. During this tumultuous period Waas needed chief officers whom he could count on to project his policies in the field. Because the situation in the field was constantly changing, Waas could not personally make and carry out all of the decisions necessary to implement the fire plan. Waas had to rely on his deputy chiefs and battalion chiefs to implement diligently and faithfully the city's fire plan, and apply his general directives to new situations.

The change from a twenty-four hour shift to an eight hour shift required more personnel at virtually every level of the fire department, including battalion chief. There were seven battalion chief openings from September 21, 1977, to April 6, 1980, when Waas retired. During the period from September 21, 1977, to September 19, 1979, Germann was ranked number one on the battalion fire chief eligibility list.1 Whenever a battalion chief vacancy occurred, a certification list was prepared showing the current ranking of people on the battalion chief eligibility list. Waas made seven appointments from certification lists based on the September 21, 1977, battalion chief eligibility list:

1) On May 22, 1978, the third person on the certification list was promoted.
2) On June 19, 1978, the second and fifth people on the certification list were selected.
3) On August 28, 1978, the third person on the certification list was selected.
4) On January 29, 1979, the third and fourth persons on the certification list were promoted.
5) On April 23, 1979, the fifth person on the certification list was selected.2

Waas considered Germann for each of these vacancies but did not promote him.3 On only one occasion was Germann the only person skipped over to reach the person selected by Waas for promotion. On two occasions Waas skipped over Germann and three others to reach the name selected. Germann was not the only person ranked in the top five on the September 21, 1977, eligibility list who was not selected for promotion from that list. Two of the original top five names on the September 21, 1977, eligibility list were not selected for promotion during the period that this eligibility list was in effect.

Germann was not promoted because 1) Waas reasonably believed that to promote Germann to management would threaten the efficiency, discipline and morale of the fire department; and 2) Waas reasonably believed that Germann would not resign from the union if promoted to battalion chief.

Waas' concern about the effect Germann's promotion would have on departmental efficiency, discipline and morale was based in part on a letter dated May 11, 1977, which Germann directed to "Chief Waas." Germann sent copies to city officials, other fire department officers, and union officials. Germann had the following to say in this letter about Waas and his efforts to implement the city's fire department policy:

In answer to your letter of May 6, how dare anyone who has done as much as you to tear the Kansas City Fire Department to shreds accuse someone else of attempted obstruction or alteration. With your hand at the controls, the Kansas City Fire Department could not possibly be more completely obstructed by anyone else on the face of the earth.
Nothing would suit me better than to have a Fire Chief who would read and understand his own rules, give his word on an issue and then not violate his own word by his every action as you have If you are really interested in seeing the Memorandum upheld, I suggest some study courses for yourself and the rest of the chief officers under the direction of someone who does not carry such a pitifully twisted outlook toward the employees of the department as you seem to have developed....

Discipline and morale in the department depended on respect being shown to rank. Waas reasonably believed...

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2 cases
  • Germann v. City of Kansas City, 84-1261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 27, 1985
    ...for the Western District of Missouri in favor of the City of Kansas City, Missouri, Edward Wilson and John Waas. Germann v. City of Kansas City, 579 F.Supp. 180 (W.D.Mo.1984). For reversal appellant argues that the district court erred in failing to find that appellees violated his federal ......
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    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • January 31, 1984
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