725 F.Supp. 1536 (D.Kan. 1989), 86-4026, Hullman v. Board of Trustees of Pratt Community College

Docket Nº:86-4026-C.
Citation:725 F.Supp. 1536
Case Date:November 29, 1989
Court:United States District Courts, 10th Circuit, District of Kansas

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725 F.Supp. 1536 (D.Kan. 1989)

Don H. HULLMAN, Plaintiff,



No. 86-4026-C.

United States District Court, D. Kansas.

Nov. 29, 1989

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Wesley A. Weathers, Weathers & Riley, Topeka, Kan., for plaintiff.

David J. Morgan and H. E. Jones, Hershberger, Patterson, Jones & Roth, Wichita, Kan., for defendant.


CROW, District Judge.

The case comes before the court on the motion of defendant, Board of Trustees of Pratt Community College (Board), for summary judgment. Plaintiff, Don H. Hullman, was the Dean of Instruction at Pratt Community College (PCC) for nine years until he was transferred in July of 1985 to the position of Dean of Continuing Education. On August 6, 1985, defendant Board decided against renewing plaintiff's contract for the stated reason that it did not wish to accept the plaintiff's offered conditions. Because of these adverse actions, plaintiff brings the present suit alleging constitutional violations of his rights under the First Amendment and to procedural due process and asserting a state common-law claim for breach of contract. Defendant seeks oral argument on its motion for summary judgment on all of Hullman's claims. The defendant's request is denied, since oral argument would not materially aid the court in deciding the pending motion.

In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."

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Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.

An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact is "material" if proof thereof might affect the outcome of the lawsuit as assessed from the controlling substantive law. 477 U.S. at 249, 106 S.Ct. at 2510. Where reasonable minds would not differ over the import of the evidence and could only reach one conclusion as to the evidence, summary judgment is appropriate. 477 U.S. at 250, 106 S.Ct. at 2511.

The movant's initial burden under Fed.R.Civ.P. 56 is to show the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The movant must specify those portions of " 'the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,' " which demonstrate the absence of a genuine issue of fact. Windon, 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). "[C]onclusory assertions to aver the absence of evidence remain insufficient to meet this burden." Windon, 805 F.2d at 345 n. 7. The movant, however, does not have the burden to prove a negative, that is, to disprove the nonmoving party's evidence. Id. at 346. It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The nonmoving party's evidence is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986).

Plaintiff moves to strike that portion of defendant's reply brief in which additional uncontroverted facts appear. The motion is granted to the extent indicated below. For purposes of the summary judgment motion, the court finds the following facts to be uncontroverted.

1. Plaintiff, Don Hullman, was employed by PCC for nine years as Dean of Instruction pursuant to a series of one-year or two-year contracts. Beginning in 1981, plaintiff's contracts of employment were for one-year terms.

2. Plaintiff was appointed Interim President of PCC for the summer and fall of 1981 until Dr. John Gwaltney took over as President in November of 1981. During his stint as Interim President, plaintiff called an executive session of the Board during which he alleged that certain financial improprieties had been discovered in PCC's budget. Some members of the Board were startled and upset by plaintiff's comments.

3. In February of 1984, the Board approved the recommendation of Dr. John Gwaltney, President of PCC, to reemploy plaintiff and others. The 1984-1985 employment contract for plaintiff was dated May 9, 1984, and signed by plaintiff on May 25, 1985, and it provided in pertinent part:

The Board hereby employs and the Administrative Employee hereby accepts employment for the period beginning July 1, 1984 and ending on June 30, 1985, in an administrative capacity to perform the following administrative services: Dean of Instruction in charge of Transfer Studies subject to the terms and conditions of this Contract.

(Gwaltney Depo. Ex. 3). Plaintiff's salary for this period was $37,861.

4. In 1984, the plaintiff wrote and sent certain memoranda to President Gwaltney and other administrators which questioned the financial budgets for the Adult Supplemental

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Education Fund (ASEF), the legality of using that fund to pay some salaries, and the taking of student instructional fees to pay for PCC's scholarship programs. Plaintiff also differed on occasion with President Gwaltney over increased funding of the vocational department, increased personnel at satellite sites, higher wages for continuing education directors, budget allotments for continuing education, and necessary funding for the library and athletics.

5. At its meeting on March 11, 1985, the Board approved President Gwaltney's recommendation that several of the administrative and operational personnel, including the plaintiff, be reemployed. On July 15, 1985, the Board approved President Gwaltney's recommendation on the following appointments: James Stratford, Dean of Administrative Services, at a salary of $2600 plus present contract; Lynn Cundiff, Dean of Academic and Vocational Instruction, at a salary of $2600 plus present contract; and Don Hullman, Dean of Continuing Education Out District, at a salary of $2600 plus present contract.

6. In early July of 1985, President Gwaltney met with plaintiff and discussed his intentions of recommending plaintiff for the assignment of dean of continuing education, and he requested plaintiff to draw up a job description for that position.

7. Upset with this proposed reassignment, plaintiff delivered a written memorandum on July 10, 1985, to President Gwaltney wherein he requested "a special meeting with the Board of Trustees at the next scheduled board meeting." (Gwaltney Depo. Ex. 7).

8. The following day, July 11, 1985, plaintiff took a vacation day from his job at PCC and traveled to Topeka where he met with Dr. Harold Blackburn, the Commissioner of the Kansas Department of Education, and Mr. Dale Dennis, Assistant Commissioner. They knew that plaintiff was an administrator at PCC. During the meeting, plaintiff raised questions regarding funding of student scholarships and the management of the ASEF. They were unable to answer his questions at that time. While it was not unusual for them to contact the other school officials if there was a problem, neither Blackburn nor Dennis could recall that they or other office staff contacted any PCC officials about this meeting with Hullman.

9. On the next day, July 12, 1985, President Gwaltney and Phil Farmer, a Board member, visited the Board's attorney and requested a legal opinion on the Board's rights in regards to an administrator who was performing unsatisfactorily and whose contract either had been renewed by the Board or had not been offered by the Board. They requested that the opinion be provided before the Board meeting on July 15, 1985. The Board's attorney provided his written opinion on July 15th, and a copy of the letter was placed in plaintiff's personnel file.

10. Plaintiff spoke with the Board during executive session on July 15th without President Gwaltney present. The Board's minutes reflect that they were in executive session from 9:00 p.m. to 12:15 a.m. and then returned to open session and approved President Gwaltney's recommendation on dean assignments. During the meeting, plaintiff apparently made a comment that PCC's administration of the scholarship fund was illegal. (At this point, the court notes that plaintiff has repeatedly used record citations as "See e.g." in the apparent attempt to create an inference of a practice or that the citation is representative of the weight of the evidence. Neither inference is reasonable without additional citations.)

11. On July 16, 1985, President Gwaltney distributed a flow...

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