Dehart v. City of Manhattan, Kan.

• Decision Date: 07 October 1996
• Docket Number: No. 95-4154-RDR.,95-4154-RDR.
• Citation: 942 F.Supp. 1395
• Parties: Steven DEHART, Plaintiff, v. CITY OF MANHATTAN, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

942 F.Supp. 1395

Steven DEHART, Plaintiff, v. CITY OF MANHATTAN, KANSAS, Defendant.

No. 95-4154-RDR.

United States District Court, D. Kansas.

October 7, 1996.

Gary F. Conklin, Westmoreland, KS, Stephen W. Cavanaugh, Thomas G. Lemon, Fisher, Cavanaugh & Smith, P.A., Topeka, KS, for plaintiff.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an action brought by the plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff contends that his substantive and procedural due process rights were violated when he was terminated from his position as plant operator of the City of Manhattan's (City) waste water treatment plant. He also asserts a state law breach of contract claim. This matter is presently before the court upon defendant's motion for summary judgment.¹

I.

The claims asserted by the plaintiff in this case revolve solely around whether plaintiff had an implied contract with the City. The focus of the court's opinion shall be upon that issue since plaintiff's claims are contingent upon it.²

II.

Plaintiff was employed by the City as a lab technician on May 10, 1977. He subsequently became plant operator at the City's waste water treatment facility. He held that position until he was terminated on September 14, 1994.

The following facts are pertinent to the issue of whether plaintiff had an implied contract with the City. Upon his employment by the City, plaintiff received an employee handbook. A resolution was passed by the City effective January 1, 1980 establishing policies for governing City employees. The resolution provided that the existing personnel rules shall be the personnel policy of the City. The resolution further provided the following: "City employees shall be suspended or dismissed only for cause specifically stated and any employee so disciplined have rights of appeal as set out in the Personnel Rules hereby adopted."

The City's Personnel Policy Manual and Employee Handbook in effect at the time of plaintiff's termination contained the following under the section entitled "Purpose of Manual":

It is the purpose of this manual to establish and maintain a uniform system of policies and procedures which will be followed by the City of Manhattan, Kansas, in the administration of its personnel program. The policies, procedures and provisions established herein are intended to provide an efficient, equitable and functional system of personnel administration based on merit principles which govern the appointment, promotion, transfer, layoff, dismissal and other related conditions of employment. The manual and its provisions are designed to serve only as a guide to the City's policy and procedures and not as a contract of employment or warranty of benefits.

The handbook indicates six types of discipline, including dismissal, that can be imposed for a violation of the rules. Fourteen examples of matters for which discipline can be imposed are listed in the handbook, but the rules also make clear that disciplinary action is not limited to the stated examples. The rules also provide that "[i]n all cases, the individual will receive written notice of the pending action and shall have the right of appeal through the grievance procedure." The handbook contains an elaborate grievance procedure.

The handbook contains the following specific information on dismissal of an employee:

A Department Head may recommend the dismissal of any employee under his/her jurisdiction for continuous unsatisfactory job performance or other cause. Such action shall require that notice of at least ten (10) working days be given, to include a written statement of the reason for the action. Should the Department Head determine that an immediate dismissal of an employee from the service of the City is needed (because of the reasons for the dismissal), he/she may, with the approval of the City Manager, suspend the employee with or without pay for a period of ten (10) workings (sic) days in lieu of notice. A written statement of the reasons for the dismissal would still be required. A supervisor or division head may in like manner recommend the dismissal of an employee.

A dismissed employee may appeal the dismissal through the procedures established by the grievance procedures.

III.

The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993):

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 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); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

The factual record must be examined in the light most favorable to the party opposing summary judgment. Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995). "`Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

IV.

The City first contends that plaintiff's due process claims are legally foreclosed under state law. The City next contends that the claims are factually foreclosed by state law. Finally, the City argues that plaintiff received due process in his termination from employment.

Plaintiff argues that the question of whether he had an implied contract with the City is a question of fact to be decided by a jury. He points to the following factors in support of his contention that an implied contract existed: (1) the employee manual which limited termination to cause; (2) the length of his employment with the City; (3) the policy of the City to give grievance hearings and pre-termination and post-termination hearings; (4) his promotions and favorable job evaluations; and (5) his contribution to retirement benefits.

A.

The Fourteenth Amendment prohibits a state from depriving a person of a property interest without due process of law. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985). In the employment context, a property interest is defined as a legitimate expectation in continued employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests are not created by the Constitution. Id. Rather, they are created and defined by state law. Id.

B.

Relying upon Riddle v. City of Ottawa, 12 Kan.App.2d 714, 754 P.2d 465 (1988) and Wiggins v. Housing Authority of Kansas City, 22 Kan.App.2d 367, 916 P.2d 718 (1996), the City contends that plaintiff does not have a property interest under the Fourteenth Amendment for the purposes of due process because Kansas law precludes an implied contract with a city that has a city manager form of government. Plaintiff has failed to address this argument in any detail. Rather, plaintiff has simply suggested that the issue of whether he had implied contract with the City is a question of fact. Plaintiff does point to Johnson v. City of Wichita, 687 F.Supp. 1501 (D.Kan.1988) as support for his argument that he had implied contract, but as pointed out by the City, the decision in Johnson fails to address the argument that Kansas law precludes an implied contract with a city that has a city manager form of government.

Riddle has been around for several years and no Kansas court had read it for the proposition that Kansas law precludes an implied contract with a city until the court in Wiggins. Wiggins was only recently decided and we are not aware of any cases that have discussed its holding. An evaluation of the Riddle and Wiggins cases is necessary to understand defendant's argument.

In Riddle, a police officer employed by the City of Ottawa contended that his procedural due process rights were violated when he was suspended without pay for ten days. He alleged that he had a property interest in his job based upon the City's personnel regulations. The Court of Appeals rejected his argument with the following analysis:

Riddle argues he was a permanent employee who could only be disciplined for cause under the express provisions of the Ottawa Personnel Regulations. He argues that these rules and regulations provide the basis for his legitimate claim of entitlement to continued employment. A copy of these rules and regulations has not been included in the record on appeal and, thus, the issue is not reviewable. In any event, the trial court considered the personnel rules and regulations and made a specific finding that "[a]ny employee may be subject to disciplinary action including demotion, suspension, warning or dismissal...