Elam v. Williams

• Decision Date: 13 December 1990
• Docket Number: 88-1284-C.,No. 88-1283-C,88-1283-C
• Parties: Edward W. ELAM, Plaintiff, v. Gary WILLIAMS, as Mayor of the City of Mulvane and as an individual, and City of Mulvane, Kansas, Defendants. Michael C. BYERS, Plaintiff, v. Gary WILLIAMS, as Mayor of the City of Mulvane and as an individual, and City of Mulvane, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

753 F. Supp. 1530

Edward W. ELAM, Plaintiff, v. Gary WILLIAMS, as Mayor of the City of Mulvane and as an individual, and City of Mulvane, Kansas, Defendants.

Michael C. BYERS, Plaintiff, v. Gary WILLIAMS, as Mayor of the City of Mulvane and as an individual, and City of Mulvane, Kansas, Defendants.

Nos. 88-1283-C, 88-1284-C.

United States District Court, D. Kansas.

December 13, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jack Focht, Focht, Hughey, Hund & Calvert, Wichita, Kan., for plaintiffs.

Brian C. Wright, Eldon Boisseau, Turner & Boisseau, Richard Sanborn, City Atty., Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

These cases were consolidated by agreed order on August 27, 1990. (Dk. 82). Before that order, separate motions for summary judgment and pretrial orders had been filed in each case. Because the claims, issues, and arguments are substantially similar in both cases, the court will decide the motions in a single order and will attempt to point out any necessary distinctions between the two cases.

In the spring of 1987, plaintiff, Edward W. Elam, was employed as the City Administrator for the City of Mulvane, and plaintiff, Michael C. Byers, was employed as the Director of Emergency Services for the City of Mulvane. Both claim their civil rights were violated by their terminations in 1987.

A motion for summary judgment is a threshold inquiry into the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.

An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact is "material" if proof of it might affect the outcome of the lawsuit under the controlling substantive law. 477 U.S. at 249, 106 S.Ct. at 2510-11. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476-77 (10th Cir.1990).

The movant's initial burden under Rule 56 of the Federal Rules of Civil Procedure is to show the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The movant must specify those portions of "`the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,'" which demonstrate the absence of a genuine issue of fact. Windon, 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). Alternatively, it may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The nonmoving party's evidence is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986).

Before briefly reciting the pertinent facts, this court will take up one procedural issue. On November 19, 1990, nearly three months late, the defendants filed their reply brief to the plaintiffs' responses. The minute order filed November 13, 1990, specifically limited the defendants to filing a brief on the legal issues raised by the death of defendant Williams. Apparently, the defendants saw this also as an opportunity to file a late reply brief without seeking leave of the court. Such actions cannot be condoned. The court strikes that portion of defendants' pleading (Dk. 92) that purports to reply to the plaintiff's response. Therefore, the court will only consider the last page of the defendants' ten-page pleading captioned, "Defendants' Response to Plaintiffs' Reply to Joint Motion for Summary Judgment" (Dk. 92).

Defendant, Gary Williams, a member of the Mulvane City Council, was elected Mayor of the City of Mulvane and sworn into that office on April 20, 1987. On his first day as mayor, Williams suspended both plaintiffs with pay and communicated by letter the following reasons for their suspensions: (1) authorized the purchase of a typewriter at a cost exceeding $1,000 knowing the council had previously voted against this proposed purchase; (2) prepared separate purchase orders to hide the total cost of the typewriter purchase; (3) "failed to exercise fiscal responsibility;" (4) actively attempted to influence the outcome of recent elections in violation of the City's handbook; and (5) failed to manage your department and personnel in "a prudent and sound manner...." Mayor Williams delivered the suspension letters to the plaintiffs at the council meeting on April 20th. At 11:30 p.m., after the council meeting, Mayor Williams asked plaintiff Elam to respond to the letter, but he declined as he wanted to speak to his attorney first. Plaintiff Byers does not recall being asked at that time to respond to the letter. Police officers then accompanied the plaintiffs to their offices while they obtained the items requested by the mayor in the letter and then they turned over their city keys to the police officers.

Copies of the suspension letters were also given to the council members attending the meeting. The letters were enclosed in an envelope marked "confidential." Members of the public present at the meeting observed the police officers escort the plaintiffs to their offices. Defendant Williams has admitted in his second amended answer that the charges in this suspension letter were made publicly.

On or about June 15, 1987, Mayor Williams suspended the plaintiffs for thirty days without pay and removed them from their respective positions with the City. The letter notifying the plaintiffs of this action accused them of "budget irresponsibility," "improperly becoming involved in the city election process," and "disclosing confidential city records." The letter to Byers included the additional accusations of "granting television interviews without approval" and "refusing to return city property." Defendant Williams has likewise admitted in his second amended answer that these charges were made publicly.

In a letter dated June 23, 1987, plaintiff Elam wrote Mayor Williams requesting a grievance hearing as set forth in the City's policy handbook. Elam explained that though he believed his position was not covered by the policies in the handbook, the Mayor's reliance on those policies as a basis for sanctioning him also must trigger the protection accorded therein. Elam then proceeded to answer Williams' charges. A meeting between Elam, Byers, Mayor Williams and Chief Tucker was held in which the plaintiffs were offered letters of reassignment to "Laborer II" with the City Street Department. Elam did not believe this meeting was an opportunity for enlarging upon what he had stated in his letter to Williams. Both plaintiffs did consider the assignment to be a constructive discharge.

On or about April 21, 1987, plaintiff Byers formally requested a grievance hearing. Another grievance hearing request was filed after the June 15th suspension without pay. The hearings were held on May 27, 1987; July 30, 1987; August 6, 1987; and August 16, 1987. The hearing officers sustained the suspensions of plaintiff Byers. Plaintiff Byers challenges the hearings as not meeting the requirements of due process in several respects. Some of the challenges are the consideration of evidence not presented at the hearing, the lack of specificity as to the reasons for suspension, biased factfinders, the treating of the city attorney's arguments as evidence, and the lack of evidence on the allegations. The transcripts of these hearings are attached to the defendants' joint motion for summary judgment. The City Council in June of 1987 approved Robert Welch as the Emergency Services Director on the suggestion and promotion of Mayor Williams.

This overview of the facts is sufficient to address most of the contentions advanced in the motions for summary judgment. When necessary, the court will refer to other relevant facts. The court intends to deviate from the order of issues addressed in the defendants' briefs so as to avoid duplicative rulings. Plaintiffs' claims under 42 U.S.C. § 1983 are denial of due process in their suspensions and removal from office, and constructive discharge.

PROPERTY INTEREST

Procedural due process must accompany the deprivation of an established property or liberty interest. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The range of protected interests is finite. Id. at 570, 92 S.Ct. at 2705. This court recently summarized the controlling law on the determination of a property interest:

Though protected by it, property interests are not creations of the Constitution; they emerge from and their scope is defined "by existing rules or understandings that stem from an independent source such as

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