Burns v. Board of Com'Rs of Cty. of Jackson, Kan.
| Decision Date | 08 March 2002 |
| Docket Number | No. 00-4119-SAC.,00-4119-SAC. |
| Parties | Rick D. BURNS, Plaintiff, v. The BOARD OF COMMISSIONERS OF the COUNTY OF JACKSON in the State of KANSAS, Edward D. Bruns, John T. Grau and Ellen Schirmer, Defendants. |
| Court | U.S. District Court — District of Kansas |
Deanne Watts Hay, Stanley R. Parker, Randy R. Debenham, Parker & Hay, LLP, N. Larry Bork, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Plaintiff.
James S. Pigg, Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.
This employment termination case comes before the court on defendants' motion for summary judgment (Dk. 64), and the individual defendant's motions to dismiss official capacity claims (Dk. 27).
More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas Drilling Partnership v. Federal Deposit Ins. Corp., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
Under this standard, this court examines the record to determine whether any genuine issue of material fact is in dispute, construing the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir.1998). When the nonmovant will bear the burden of proof at trial, he can survive summary judgment only by going beyond the pleadings and presenting evidence sufficient to establish the existence, as a triable issue, of any essential and contested element of his case. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998).
1. Plaintiff applied for and received employment with the Jackson County Road Department on February 20, 1991. His job involved running a road grader. Immediately over his signature on the employment application was the following statement: "I understand and agree that my employment is for no definite period and may ... be terminated at any time without any previous notice." Plaintiff read this section of the application.
2. Neither the road supervisor nor the county commission as a whole discussed the length of plaintiff's employment with him or made any promises to him during the employment interview.
3. At the time of employment, plaintiff received no employment manual. Later, he received a policy manual which contained the following statement on page 1:
"THIS POLICY MANUAL DOES NOT CONSTITUTE A CONTRACT"
Kansas is an
4. Plaintiff read the section that said that the policy manual did not constitute a contract and the paragraph under that heading.
5. The policy manual was withdrawn in February, 1999, and no other manual was adopted.
6. Plaintiff never signed a contract with the county. The county commission never voted to continue plaintiffs employment absent good cause to terminate him.
7. Plaintiff has never been told by any supervisor that he could retain his job absent good cause to terminate him.
8. Road Supervisor Bruns wrote employees on November 30, 1999, referring to a February 5, 1996 policy and reminding employees of the time they were required to be at the job site and that travel time between home and the job site was not compensated.
9. Thereafter employee Dan Smith arranged a meeting with county counselor Ed Dunn. On December 3, 1999, Smith, plaintiff, Dave Hegeman and Charlie Myers met with Dunn.
10. The main concern expressed at the meeting was whether employees were covered by workers compensation insurance and who would be responsible for any accident on the way to the work site.
11. During the meeting Dunn was cordial and never appeared agitated or angry.
12. After the meeting Dunn asked Kansas Workers Compensation officials about the workers compensation issue, but made no inquiry of state or federal officials about wage and hour issues because he had not been asked to do so by the employees.
13. Plaintiff recalls no specific comments he made during the December 3rd meeting. Dunn recalls that plaintiff's only comment was: "you cant teach the dumb son of a bitches anything," referring to the county commissioners.
14. In late December of 1999, a new pay plan was issued effective January 1, 2000, placing employees in a "B" or "A" category. Under that plan, plaintiff's pay raise was neither minuscule nor large, but was in the mid-range. County Commissioner Ogden believed that supervisor Bruns had showed favoritism and had punished employees who met with county counselor Dunn by ranking them as B's rather than A's.
15. On January 24, 2000, Jackson County Commissioner John Grau stopped at plaintiff's residence to talk with plaintiff at plaintiff's request.
16. Plaintiff asked Grau why the county traded the bulldozer for a Caterpillar without first trying the Caterpillar out. Grau replied that he thought the county needed a new dozer.
17. Plaintiff next asked about the county's purchase of a pickup. The county had a Ford pickup that supervisor Bruns drove that had been traded, supposedly because it was worn out. Plaintiff said that he and other employees thought it ironic that the bridge foreman who often had ridden in the truck had purchased it from the dealer. Grau responded that it was "all legal." The pickup was only briefly discussed.
18. Next, plaintiff inquired who had developed the pay scale placing employees in two separate categories. Grau replied that plaintiff could "blame it on me." Plaintiff argued that Grau had not answered his question. Grau responded: "We all made it." Plaintiff then called Grau a "lying motherfucker."1 They were about three feet away from each other at the time.
19. Plaintiff claims that Grau then charged at him and called him a "no good Indian," so plaintiff put his hand out to stop him, contacting Graus chest.
20. The conversation continued with plaintiff repeating his assertion that the pay plan was not fair in that some new employees were making more money than more senior employees. Grau responded by stating that was the way supervisor Bruns had wanted it.
21. The remaining conversation related to doing chores and ended amicably.
22. Grau did not approach plaintiff, become irritated or seem mad at any time during the conversation except immediately after plaintiff called him a profane epithet. Otherwise, the conversation was businesslike. Grau did not respond in a negative manner to either the comments about the dozer or the purchase of the pickup.
23. Plaintiff admits that it was important for the county road supervisor to have a reliable four-wheel drive pickup to get around in bad conditions. Plaintiff had little information about the pickup trade. He did not know how much the county received when the pickup was sold or traded, how much the foreman paid the dealer when he purchased the pickup, or how many miles were on the old pickup. He had no judgment as to its value at the time of trade. He had no information to suggest that the foreman bought the pickup for a reduced price. His only basis for suggesting that any kind of misdealing occurred was the fact that the foreman was familiar with the truck and he questioned why the foreman would want to buy it if it were so worn out that the county wanted to trade it and buy another one.
24. Bruns and the shop foreman had recommended trading the bulldozer because of mechanical difficulties with the old dozer and concern that expensive repair work would need to be done. The dealership had been unable to fix the problem. Additionally, the governmental discount from the dealership was expected to be reduced if the purchase were delayed until the next year.
25. George Uhl, who was present during plaintiff's conversation with commissioner Grau on January 24, 2000, and who operated the dozer, also questioned the purchase of the new Caterpillar. Uhl complained to Grau on another occasion that he didn't like the new dozer compared to the old dozer, and that it was not as powerful as the old. Uhl had also previously complained to Ed Bruns about the wage plan. Uhl had also had a letter published in the Holton newspaper complaining about equipment purchases.
26. Grau perceived Uhl to be very vocal on the bulldozer issue, "very worked up" about that. Uhl also participated in the discussion of the pay plan and truck purchase on the 24th, taking substantially the same position as did plaintiff. Although their conversation was not cordial, Uhl never touched Grau. Although Uhl may have sworn some, he never directed any curse words at Grau or called him a profane epithet, as plaintiff did.
27. Following the confrontation between plaintiff and Grau on January 24, 2000, Grau reported the incident to Bruns, informing Bruns that he had stopped at plaintiff's place at plaintiff's request, that plaintiff was upset with the pay plan and equipment purchases, that plaintiff called him a profane epithet2, that plaintiff grabbed him close to the neck, and that Grau put his hand up to stop him.
28. On January 28,2000, supervisor Bruns, commissioner Grau and bridge foreman Terry Mick met with county counselor Ed Dunn. During the meeting, Grau discussed the confrontation on January 24, 2000, relating...
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