Bash v. City of Galena, Kan.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: Vratil
• Citation: Bash v. City of Galena, Kan., 42 F.Supp.2d 1171 (D. Kan. 1999)
• Decision Date: 17 February 1999
• Docket Number: No. 98-2072-KHV.,98-2072-KHV.
• Parties: Jimmie Leuellen BASH, Plaintiff, v. CITY OF GALENA, KANSAS, Defendant.

42 F.Supp.2d 1171

Jimmie Leuellen BASH, Plaintiff, v. CITY OF GALENA, KANSAS, Defendant.

No. 98-2072-KHV.

United States District Court, D. Kansas.

February 17, 1999.

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Jimmie Leuellen Bash, Galena, KS, plaintiff pro se.

James S. Pigg, David R. Cooper, Fisher, Patterson, Sayler & Smith, Topeka, KS, for City of Galena, Kansas, defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Jimmie Leuellen Bash brings this pro se action against his former employer, the City of Galena, Kansas, claiming discrimination and retaliatory discharge in violation of federal and state law. Plaintiff claims violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination In Employment Act ("KADEA"), K.S.A. § 44-1111 et seq.; denial of his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution; illegal discharge in retaliation for whistleblowing activities; and breach of an implied contract of employment.¹ This matter comes before the Court on defendant's Motion For Summary Judgment (Doc. # 25) filed December 21, 1998. In that motion, defendant argues that as a matter of law (1) defendant did not deny plaintiff procedural due process or equal protection of the laws; (2) plaintiff fails to state a claim under the ADEA; (3) plaintiff has failed to comply with state law notice requirements, thus depriving the Court of subject matter jurisdiction over plaintiff's state law claim for retaliatory discharge for whistleblowing; (5) plaintiff fails to establish a prima facie case of retaliatory discharge for whistleblowing; and (6) plaintiff fails to state a claim for breach of an employment contract. For reasons stated more fully below, defendant's motion must be sustained.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted or, where controverted, viewed in the light most favorable to plaintiff.

In 1972, Jimmie Leuellen Bash became a reserve police officer for the Police Auxiliary of the City of Galena, Kansas ("the City"), volunteering at least 16 hours per month. Reserve police officers are not paid. City of Galena Ordinance 94-10 § 1 provides:

The officers of the Galena Auxiliary Police shall serve strictly as volunteers without pay, and said officers shall not be compensated in any manner at any time for their duties as auxiliary police officers.

On October 15, 1996, plaintiff became a full-time employee when Mayor Dale Oglesby appointed him a full-time police officer. The City did not represent that plaintiff could have the job for any given period of time, however, nor did it promise him employment for a specified term.

Prior to plaintiff's employment, in June 1988, the City of Galena had enacted Charter Ordinance No. 5. That ordinance, which remained in effect throughout plaintiff's employment, requires city employees to reside in the City of Galena and specifically provides in pertinent part as follows:

Section 3. That the mayor shall appoint, by and with the consent of the council, the city clerk, chief of police, city superintendent, municipal judge, city attorney, court clerk, building inspector, and fire truck driver, and that the aforesaid appointees shall hold their offices for an indeterminate term, only subject to removal for death, resignation, physical or mental disability, financial exigency, or just cause. Just cause shall include, but not be limited to, any of the following: incompetence, insubordination, neglect of duties, conviction of a felony or misdemeanor, or failure to maintain proper residence as hereinafter provided.

Section 4. That no person shall be eligible to be appointed to any of the aforesaid offices or to any employment with the City of Galena unless he or she shall be or shall become within 90 days of the appointment, a bona fide resident of the City of Galena and the State of Kansas.

Section 5. That the residency requirement of Section 4 above shall not apply to the city attorney, city engineer or any other position which requires special training and licensing by the state.

Section 6. That the residency requirement of Section 4 above shall not apply to anyone employed by the city on the effective date of this Charter Ordinance No. 5.

In addition, Galena City Code 1988 § 1310 provides:

RESIDENCY. Any employee of the city who fails to become a resident of the city within 90 days of appointment and confirmation or ceases thereafter to maintain residency within the city shall become immediately terminated. This provision shall not apply to employees specifically exempted by the State of Kansas.

Plaintiff's residence is adjacent to, but not within, the Galena city limits. According to Mayor Oglesby, plaintiff's appointment was conditioned on compliance with the residency requirement and plaintiff could have satisfied that requirement by moving into the City or consenting to annexation of his residence. Plaintiff disputes that his appointment was conditional upon residency. Attachments To Memorandum In Support Of Defendant's Motion For Summary Judgment (Doc. # 27) filed December 21, 1998, ex. 1, p. 81 (plaintiff's deposition of November 20, 1998). Plaintiff also believes that he was exempt from the residency requirement by virtue of Section 6, in that he was "grandfathered" by virtue of his long tenure as a reserve police officer with the Police Auxiliary, and Section 5, because the position of police officer requires state certification and training.

At the request of Mayor Oglesby, Chief of Police Sloan Rowland asked plaintiff two or three times whether he was going to annex his property. Plaintiff answered that he was not. After more than 90 days had elapsed from the date of plaintiff's appointment, Mayor Oglesby instructed Chief Rowland to terminate plaintiff's employment for non-compliance with the residency requirement. Plaintiff's last day of work was January 22, 1997. On February 6, 1997, plaintiff received notice that he had been discharged for refusing to become a city resident. On that date he also received a copy of Charter Ordinance No. 5. The City did not discharge another police officer, Paul Duncan, who was not a city resident. Duncan had been hired as a full-time police officer, however, before the City adopted Charter Ordinance No. 5. Plaintiff does not know of any City employee who was fired for failing to comply with the residency requirement, nor does he know of any City employee who received a hearing where that employee was terminated within the first 90 days of employment.

Upon his review of Charter Ordinance No. 5, plaintiff formed the belief that he was exempt from the residency requirement because state law requires certification and training of full-time law enforcement officers. Mayor Oglesby, however, disagreed. Plaintiff asked the City Council to overturn his discharge and submitted a written position statement which explained his analysis why the residency requirement did not apply to him.

Plaintiff did not hold certification as a law enforcement officer at the time he was discharged, and he could have worked at least one year without having acquired the state-mandated training and certification.

Plaintiff believes that he was discharged on account of his age and in retaliation for concerns he raised regarding a "Troops to COPS" grant application to pay for training for military veterans newly hired as...