Bell v. Board of County Com'Rs of Jefferson County, CIV.A.03-2148-KHV.

• Citation: 343 F.Supp.2d 1016
• Decision Date: 26 October 2004
• Docket Number: No. CIV.A.03-2148-KHV.,CIV.A.03-2148-KHV.
• Parties: Terry BELL, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, Defendant.
• Court: U.S. District Court — District of Kansas

343 F.Supp.2d 1016

Terry BELL, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, Defendant.

No. CIV.A.03-2148-KHV.

United States District Court, D. Kansas.

October 26, 2004.

Alan V. Johnson, Stephen D. Lanterman, Sloan, Listrom, Eisenbarth, Sloan & Glassman, LLC, Topeka, KS, for Plaintiff.

Michael T. Jilka, Holbrook & Osborn, PA, Wendell F. Cowan, Jr., Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Terry Bell brought suit under 42 U.S.C. § 1983 against the Board of Commissioners of Jefferson County, Kansas. Plaintiff claimed that the County violated his constitutional rights when it terminated his employment in retaliation for his exercise of free speech rights under the First Amendment. Plaintiff also claimed that without procedural due process defendant deprived him of a property interest in continued employment and a liberty interest in his good name and reputation in violation of the Fourteenth Amendment. On April 19 through 23 and April 26, 2004, plaintiff tried his claims to a jury. The jury found that defendant had violated plaintiff's liberty interest in his good name and reputation, and awarded him $50,000 in compensatory damages and $40,000 for lost wages and benefits.

This matter comes before the Court on defendant's Motion To Alter Or Amend Judgment, Or For Judgment, Or For Remittitur, Or For New Trial (Doc. # 148) filed May 24, 2004. Also before the Court are plaintiff's Motion For Order For Equitable Relief (Doc. # 142) filed May 3, 2004, Motion To Reconsider And Alter Judgment (Doc. # 146) filed May 19, 2004, and Motion For Attorney Fees And Expenses (Doc. # 147) filed May 21, 2004. For reasons set forth below, the Court finds that defendant's motion should be sustained in part, and that the remaining motions are therefore moot.¹

Factual Background

In its Memorandum And Order (Doc. # 98) of March 29, 2004, the Court set forth pertinent factual background which is incorporated by reference. The following is a brief summary of the evidence presented at trial concerning plaintiff's liberty interest claim.²

On June 1, 1986, Jefferson County hired Terry Bell as an emergency medical technician for its Emergency Medical Services ("EMS"). On November 14, 2001, Don Haynes, EMS director, promoted Bell to assistant director of EMS. Beginning in January of 2002, Bell expressed concerns to Haynes about the County EMS. Plaintiff's concerns were that (1) Haynes and another EMS employee had not followed protocol in responding to a "code blue" medical call; (2) Haynes had given County supplies (and proposed giving County funds) to the Valley Falls Fire Department; (3) an EMS employee committed Medicare fraud; and (4) Haynes had responded to calls in a County vehicle while under the influence of alcohol.

Six months later, on July 30, 2002, Haynes met with EMS employees Philip Briney, Tim Dooley, Steve Scott, John Shipley, Janey Gordon and Tani Ruff. They complained that Bell displayed an "abusive" attitude, created tension in the workplace, and called female employees bitches and cunts. All six employees gave Haynes written statements which outlined their concerns, addressing conduct that had occurred months and even years before the meeting. On August 2, 2002, Haynes prepared a letter to Bell, informing him that his employment was terminated. The letter stated:

It has been brought to my attention that there has been more than one incident that you have verbally made several employees fearful of their jobs. On one occurrence you said "that if you said shit they had better start looking for a corner." It has just been reported to me that you now have made a physical threat to an employee. You told this employee "that if they ever did that again that you would kick their ass." This has made for a Hostile [sic] work environment. This cannot and will not be tolerated. Because of your actions towards other employee's [sic] I have no other choice but to end your employment with Jefferson County.

Joint Trial Ex. A at D 00700. On August 2, 2002, Haynes and Oliver met with Bell and told him that his employment was terminated. Oliver read Haynes' letter of August 2 and gave it to Bell. After the meeting the County placed a copy of the termination letter in Bell's personnel file pursuant to the Handbook provision on "Personnel Records." That policy provided in relevant part as follows:

Complete records of the employment history of every current and former County employee shall be maintained in an employee personnel file. The employee, designee of the employee, Department Head/Supervisor or their designee, and the County Commissioners shall have access to the personnel files. Access may be granted as legally required or otherwise advisable to courts, representatives of investigatory agencies or third-party payor, etc. The confidentiality of employee records shall be maintained to the extent permitted here.... The following documents are to be included in each employee's personnel file: ... resignation, termination notification with date, grievances with action taken and date, etc.

Defendant's Trial Ex. 403 at D 01014.

On August 7, 2002, pursuant to step one of the County grievance policy, Bell submitted to Haynes a written grievance contesting his termination. On August 22, 2002, Bell filed with the County Commission a "Notification of Request for Grievance Hearing" which contested his termination and refuted the allegations set forth in Haynes' letter of August 2. The Commission referred the requests to the grievance committee comprised of Bob Abel, Annie Landis and Chris Schmeissner. The County Commission gave no direction to the grievance committee as to how to conduct the grievance hearing; it merely directed the grievance committee to consult with County Counselor, Steve Montgomery.

Abel consulted Montgomery as to how to go forward with the process. Because of the number of pending requests by Bell, Montgomery advised Abel to conduct a pre-grievance conference. At this conference, which occurred on September 6, Abel decided to limit the hearing to eight hours and told Bell that he would have four hours to present his case. Abel decided that if witnesses could not or would not come to the proceedings, the grievance committee would not force them to participate. Abel required each side to provide questions for witnesses and stated that the committee would ask the questions. The meeting was in the County courthouse and when Bell objected to these decisions, Abel told him that he could do them all a favor and just pay his fee and file his complaint upstairs.

Before the grievance hearing, Bell's attorney gave Abel a list of witnesses he wanted to call and questions for each witness. One witness on Bell's list was Janey Gordon, whose complaint that Bell had threatened to "kick her ass" had been cited in the termination letter of August 2. Abel, however, did not request Gordon's presence at the hearing.

On October 10, 2002, the grievance committee conducted a hearing. Abel instructed the witnesses that they did not have to answer any question which made them uncomfortable. Abel did not ask all questions which plaintiff submitted and he rephrased a number of plaintiff's questions. Abel did not allow Bell to call all of his witnesses, even though they were in the courthouse. Several EMS employees who had lodged complaints against plaintiff, including Gordon and Scott, were not called. Plaintiff therefore had no opportunity to cross-examine them. Bell testified that during the grievance hearing, he discussed concerns which he had previously expressed to Haynes.

On October 14, 2002, the grievance committee submitted a one-sentence decision to the Jefferson County Commission. It stated:

After hearing testimony and reviewing the evidence the grievance committee recommends that the Jefferson County Commission should uphold the decision to terminate Terry Bell.

Joint Trial Ex. B at D 01690.

Abel gave the recommendation to the County Commission during an executive session. Before the executive session, Abel had not discussed Bell's grievance with any of the Commissioners. During the executive session, Abel did not give the Commissioners any information other than what was in the grievance committee decision, and the Commissioners did not ask any questions. The executive session lasted ten minutes. Bell received a copy of the grievance committee decision after October 14, and the Commission did not give him the opportunity to appear or respond to the grievance committee decision.

At trial, plaintiff claimed that defendant discharged him in retaliation for his exercise of free speech rights under the First Amendment and that without procedural due process, defendant deprived him of a property interest in continued employment and a liberty interest in his good name and reputation, in violation of the Fourteenth Amendment. The jury returned a defense verdict on plaintiff's First Amendment and Fourteenth Amendment property interest claims. As to the liberty interest claim, the Court had submitted the following instruction to the jury:

Plaintiff's third claim is that the County denied him his procedural due process right to a hearing to protect his good name and reputation, in violation of the Fourteenth Amendment of the Constitution. To establish this claim under 42 U.S.C. § 1983, plaintiff must prove that each of the following elements is more probably true than not true:

1. Don Haynes' termination letter of August 2, 2002 made statements which impugned plaintiff's good name, reputation, honor or integrity;

2. Those statements were false;

3. Defendant published those false statements; and

4. At the hearing with regard to his termination, the grievance committee denied plaintiff a name-clearing hearing before an impartial tribunal or a meaningful opportunity to confront and cross-examine adverse witnesses.

With regard to the first...