770 F.2d 896 (10th Cir. 1985), 83-2484, Brown v. Reardon

Docket Nº:83-2484 to 83-2487.
Citation:770 F.2d 896
Party Name:Harry A. BROWN, Eddie M. Andrews, Dennis Normile and Kenneth E. Guth, Plaintiffs-Appellants, v. Jack REARDON, Mayor; Robert Zahnter, Street Commissioner; City of Kansas City, Kansas, and John P. Biscanin, Special Administrator of the Estate of Patrick Hanlon, Defendants-Appellees.
Case Date:August 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 896

770 F.2d 896 (10th Cir. 1985)

Harry A. BROWN, Eddie M. Andrews, Dennis Normile and Kenneth

E. Guth, Plaintiffs-Appellants,

v.

Jack REARDON, Mayor; Robert Zahnter, Street Commissioner;

City of Kansas City, Kansas, and John P. Biscanin,

Special Administrator of the Estate of

Patrick Hanlon, Defendants-Appellees.

Nos. 83-2484 to 83-2487.

United States Court of Appeals, Tenth Circuit

August 19, 1985

Page 897

John H. Fields (Gail A. Bruner, with him on brief) of Carson, Fields, Asner & Carson, Kansas City, Kan., for plaintiffs-appellants.

J. Nick Badgerow of McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendant-appellee Jack Reardon.

Edward H. Powers, Sr., Kansas City, Kan., for defendant-appellee, City of Kansas City, Kan.

Edward M. Boddington, Jr. (David Hauber, with him on brief) of Boddington & Brown, Kansas City, Kan., for defendant-appellee, Robert Zahnter.

George Maier, Jr. of Weeks, Thomas & Lysaught, Kansas City, Kan., on brief for defendant-appellee, Patrick Hanlon (Deceased).

Before BARRETT, SETH and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

In these consolidated cases, Plaintiffs-Appellants, Harry A. Brown, Eddie M. Andrews, Dennis Normile and Kenneth E. Guth, appeal the district court's order granting summary judgment to Defendant-Appellee, City of Kansas City, Kansas (City), and its directed verdict to Defendants-Appellees, Jack Reardon, Mayor, Patrick Hanlon, Finance Commissioner, and Robert Zahnter, Street Commissioner of City of Kansas City, Kansas, in their civil rights action alleging discriminatory job layoffs in violation of the First and Fourteenth Amendments to the Constitution and 42 U.S.C. Secs. 1983, 1985 and 1986. The crux of appellants' complaint was that their layoffs from the Water Pollution Control Department of City resulted from their refusal to purchase a block of tickets for annual political fund raisers sponsored and held by the individual defendants and, further, to pay money into a political organization known as "The 83 Club." Appellants alleged that this political activity was, by implication, the policy and custom of City because it had been pursued by City's governing officials, the individual defendants, as a political patronage or "spoils" system, constituting a conspiracy based on the hiring and firing of employees strictly for political purposes.

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The district court initially denied City's motion for summary judgment. However, following all pleadings, depositions, 1 affidavits and full discovery, City renewed its motion for summary judgment and the court granted this motion on October 6, 1983. The case proceeded to trial by jury against the three individual defendants, commencing on October 13, 1983. At the close of plaintiffs' evidence on October 20, 1983, the court granted the individual defendants' motion for directed verdicts. The district court entered its Memorandum and Order on October 21, 1983, reported as Brown, et al. v. Reardon, et al., 611 F.Supp. 302 (D.Kan.1985).

Factual Background

Appellants are former employees of City, attached to the Water Pollution Control Department, whose Director was one Gyula Kovack. This Department falls under the supervision of the Commissioner of Streets, Parks and Boulevards (L.R. Zahnter). It is undisputed that these layoffs were necessitated by the decision made by the Board of City Commissioners that all sewer general obligations bonds of City had to be retired from sewer service charges and this, in turn, dictated a reduction in the Department's work force. Thus, the need for the layoffs proper has not at any time been challenged. Large deficits would result if economy measures were not instituted.

The criteria for determination of the 26 employees in the Water Pollution Control Department to be terminated or laid off was established by Gyula Kovach, the Director. He adopted the following guidelines in determining those employees to be laid off: (1) any duplicated positions not needed would be abolished, (2) each employee's work skills would be evaluated to ascertain those most capable of performing several jobs, (3) the work records and performances of the employees would be evaluated, and (4) only if all other things were equal would the most senior employees be retained. Neither the Mayor nor the Board of City Commissioners was involved in the formulation of these criteria, nor did any of them direct Mr. Kovach in the decisions made.

Kovach testified that an employee's refusal to purchase tickets for fund raising on behalf of Street Commissioner Zahnter or refusal to contribute to "The 83 Club," a general political fund raising vehicle, played no part in his preparation of the list of those employees in the Department to be laid off. This testimony is undisputed. After the list was prepared by Mr. Kovach based on the aforesaid criteria, it was presented to Street Commissioner Zahnter who made no changes therein. In this regard, the Department is authorized by ordinance to make its own personnel decisions. The list was then submitted to the Personnel Director of City and in turn ratified by the Board of City Commissioners on January 7, 1982.

The plaintiffs testified at trial that they were contacted by Mr. Kovach, as Department head, relative to fund raising events on behalf of Street Commissioner Zahnter between 1979-1981, and that Mr. Kovach would ask how many tickets (at $10.00 each) they could use; these tickets were made available by Street Commissioner Zahnter's staff; the fund raising was to promote the re-election campaign of Zahnter and other city officials through "The 83 Club"; and the fund raising activities were general in scope, far beyond contacts with city employees. Kovach's undisputed testimony was that in the nine years he had worked for City, he knew of no incident in which any type of retribution was taken against a city employee who did not contribute, and that at no time did the Board of City Commissioners take any action or make reference to an employee who failed

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or refused to purchase tickets or make contributions. There is nothing in any deposition or direct testimony of the plaintiffs that their failure to purchase tickets or contribute was a factor in the layoff determination. Evidence, objected to on hearsay grounds, was generously admitted by the trial court that: the Commissioners were supplied lists of contributors, which, of course, would reflect the names of City employees who contributed; the assistant to Mayor Reardon had been advised of harassment of employees who did not contribute; Street Commissioner Zahnter had been personally informed of alleged coercion of employees who elected not to make contributions. There was no evidence, however, that any of the defendants had any knowledge of, or participation in, political considerations (including contributions or failure to contribute) in employment decisions or that employees were told they had to contribute in order to retain their jobs. Tellingly, the record reflects that those employees laid off in the Department included both those who had regularly contributed to the individual Commissioners' re-election fund raisers and political clubs and those who had not contributed by purchase of tickets or contributions to political clubs. Many of the latter were retained by the City following the layoffs. Notwithstanding the lack of any direct evidence of defendants' alleged conspiratorial activities, appellants contend that the record as a whole supports a fair inference that the Mayor and the Board of City Commissioners were aware of and, in effect, placed their "stamp of approval" on the political activities aimed at discriminating against city employees who did not join in the scheme and that they conspired to punish plaintiffs in the layoff process in violation of their due process and First Amendment rights because they had elected not to make the political contributions.

We deem it important to note that this case does not involve a specific attack upon the validity of the political fund raising activities of the defendants per se. In other words, we are not here concerned with the question as to whether the activities are violative of a specific statutory prohibition, state or federal, such as the Hatch Act, see United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), or loss of tax exempt status by a religious organization engaged in substantial activity intended to influence legislation or participate in political campaigns on behalf of specific candidates for public office. See Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir.1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973). Rather, in this case the question is whether, as a matter of fact, there is any evidence that the challenged political activities, i.e., ticket sales for individuals or contributions to "The 83 Club," played any part in the job layoffs.

The district court properly observed that in order for plaintiffs to establish a prima facie case on this claim, it was their burden to establish that "a motivating or substantial factor in defendants' decision to terminate them was their failure to buy tickets or contribute to 'The 83 Club.' Nekolny v. Painter. 653 F.2d 1164, 1168 (7th Cir.1981)." (Memorandum and Order of October 21, 1983, page 6, Appendix to Briefs, Vol. I, p. 262.)

On appeal, appellants raise the following contentions for our review: (1) whether, giving the plaintiffs the benefit of all legitimate inferences that could be properly drawn from the facts of the record at the conclusion of discovery, genuine issues of material fact existed as to the liability of defendant City relative to the wrongful discharge of...

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