Gregg v. Kan. Univ. Med. Ctr.

• Docket Number: 126,053
• Decision Date: 01 December 2023
• Parties: James Gregg, Appellant, v. Kansas University Medical Center, Appellee.
• Court: Kansas Court of Appeals

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James Gregg, Appellant,
v.
Kansas University Medical Center, Appellee.

No. 126,053

Court of Appeals of Kansas

December 1, 2023

NOT DESIGNATED FOR PUBLICATION

Oral argument held October 17, 2023.

Appeal from Wyandotte District Court; TIMOTHY L. DUPREE, judge. Affirmed.

Mark J. Galus, of The Aubry Law Firm, P.A., of Overland Park, for appellant.

Eric J. Aufdengarten, office of the general counsel, University of Kansas, and Noel Z. Fisher, law fellow, of Husch Blackwell LLP, of Kansas City, Missouri, for appellee.

Before ISHERWOOD, P.J., GREEN and PICKERING, JJ.

MEMORANDUM OPINION

PER CURIAM:

After the University of Kansas Medical Center (KUMC) terminated James Gregg's employment, Gregg petitioned the district court for judicial review. Gregg alleged that KUMC erroneously interpreted or applied the law, failed to follow prescribed procedure, and his termination was otherwise unreasonable, arbitrary, or capricious. Gregg appeals the district court's denial of his petition for judicial review. Two consecutive, unsatisfactory, performance ratings are the key to this case, and thus, Gregg's termination was brought on by his own actions. Because KUMC applied the

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proper standard and followed the proper procedure, we affirm the district court's denial of Gregg's petition for judicial review.

FACTS

Gregg worked in the public safety department of KUMC from 1995 to 2013. Gregg attained the rank of University Police Corporal and was the most senior and highly compensated corporal in the department when he was terminated. Gregg was a bargaining unit member of the Fraternal Order of Police, Lodge No. 37 (Union), the exclusive bargaining representative of university police officers and university police corporals. The Union and KUMC were parties to a memorandum of agreement (Contract) that governed the terms and conditions of employment for bargaining unit members like Gregg.

Article 2 of the Contract stated that, except as otherwise provided in the Contract, KUMC retains the right to "discharge employees for proper cause" and to promulgate personnel policies. Article 39 of the Contract-titled "Disciplinary Action"-stated the following: "Employees may be disciplined only for proper cause." Article 39 also provided a mechanism for an employee to appeal his or her termination to a KUMC Hearing Board (Hearing Board), giving the employee the burden of proof to show that the terminating authority did not act reasonably in dismissing the employee.

Beyond the requirements outlined in the Contract, the KUMC Policies of the University Support Staff (USS Policy) also governed the employment relationships between KUMC and USS employees, such as Gregg. Under the USS Policy, an employee may be terminated due to "poor performance, misconduct, or other good cause." When an employee's performance failed to meet expectations, the USS Policy required supervisors to first work with the employee to encourage superior performance and encouraged supervisors to use both informal and formal counseling. If performance did not improve,

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the USS Policy required a performance improvement plan (PIP) with specific reference to the employee's performance shortfalls and a required time frame for improvement. While a PIP could not be less than 30 days long, the opportunity period "must be long enough to be fair and appropriate in the matter of giving the employee the chance to show required improvement."

In January 2012, Gregg failed to attend a driver's license hearing held by conference call. His explanation was that he forgot about the hearing. In March 2012, Gregg lost his department-issued baton. In May 2012, Gregg signed for a subpoena requiring him to attend a driver's license hearing in June. Gregg failed to attend the June hearing and explained to his supervisor that he got the dates confused. On his mid-year review in July 2012, Sergeant Michael James counseled him on his police reports. James explained: "I would also like you to work on reducing the number of reports returned to you by the records unit for correction. You currently lead the department in returned reports which are returned at a rate of 28%." James set a goal for Gregg of 12% returned reports by year's end.

In August 2012, Gregg failed to follow the proper procedure for seized drug evidence, resulting in another officer moving suspected drugs into the correct evidence locker. Gregg's supervisor also advised Gregg that he had taken five sick days in conjunction with regular days off, which could be considered a pattern of abusing the time off system.

Also in August 2012, Gregg mishandled a speeding ticket. After Gregg wrote the ticket, the driver explained that she "was being followed." Apparently, a man in dark clothing approached her vehicle at an intersection and asked her for money. Gregg later found the man, who turned out to be an individual that Gregg was familiar with because of numerous calls in the area about panhandling. Gregg asked the Fairway Police Department to contact the driver, who lived in Fairway, and let her know that Gregg

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wanted to void the speeding ticket. Gregg had Fairway police tell the driver to bring her copy of the ticket back to Gregg at the KUMC police desk so that he could void the ticket. Gregg did not tell his supervisor that he was going to void the ticket nor that he asked Fairway police to speak to the driver. Gregg never voided the ticket. The driver failed to appear in court on October 30, 2012. The court issued a warrant for her arrest. The driver received a letter on November 5, 2012, that a warrant had been issued for her. Police records e-mailed Gregg. Gregg called city prosecutors on November 6, 2012, and managed to get the warrant set aside and the case dismissed.

On November 8, 2012, Gregg received an unsatisfactory performance rating and was placed on a "special evaluation period," giving him from November 8, 2012, to May 8, 2013, to improve his job performance. James conducted the evaluation, covering the period from December 31, 2011, to November 8, 2012. James commented as follows: "Cpl. Gregg brought discredit on the department by failing to void a ticket resulting in a warrant being put out for a subject's arrest." James also noted that Gregg "placed blame on the violator placing the department in a liable situation."

James pointed to the department's attempts to address Gregg's performance in the form of a Report of Employee Guidance/Discipline (REGD). Specifically, James noted that Gregg "received three REGD and four training and guidance letters during this evaluation period." James also noted Gregg's failures to attend the driver's license hearing by conference call and to appear in court when subpoenaed.

Gregg also received an unsatisfactory performance rating for communication. James explained his rating for Gregg as follows: "Cpl. Gregg's reports are still returned for correction at a much higher rate than the department's average." James also documented Gregg's loss of baton, his failure to attend hearings and court dates, and his refusal to take responsibility for the ticket which resulted in a warrant being issued for the driver. James attached to the evaluation the REGDs associated with each incident. Each

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REGD specified the following: "EMPLOYEE IS HEREBY ADVISED THAT FAILURE TO SHOW IMPROVEMENT MAY BE GROUNDS FOR DISCIPLINARY ACTION."

Gregg appealed his unsatisfactory evaluation in December 2012.

KUMC did not implement a PIP until January 11, 2013. In the PIP, James outlined some ways that Gregg could achieve a satisfactory evaluation by the end of the special evaluation period. James set a plan of action for Gregg's report return rate and required Gregg to use a daily planner to ensure that he would not miss court hearings. James also required Gregg to read all the department's policies and procedures.

In January 2013, Gregg continued to make reporting errors on the job. An analysis of his reports for the second half of 2012 showed return rates of 30.4%, well above the department average of 12.6%. During a traffic stop in January 2013, Gregg took a driver's passport and failed to return it, requiring the driver to return to KUMC to retrieve the passport. One day, Gregg forgot to time out and another day he timed out twice. He forgot to log statistics on days when he was a supervisor. And he failed to write an information report on a vehicle stop where the driver refused a preliminary breathalyzer test. Gregg argued that the department never wrote information reports on those stops in the past, even though James indicated the department had always written reports on those type of stops.

On January 30, 2013, James gave Gregg another letter requiring Gregg to read all 10 articles of the Manual of Operations. After reading each article, Gregg was required to initial and date the letter and return it to James. Gregg read 7 out of 10 articles by the March 10, 2013 deadline and completed the last 3 articles shortly after the deadline.

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In February 2013, Gregg continued to have problems with timing out. He instructed an uninsured driver with a suspended license to drive home. Gregg did not know the location of a protected research laboratory even though, as James noted, "the lab has been there for years." Gregg asked dispatch to give the lab's location over the radio, which would breach the security protocols for the lab.

On March 7, 2013, James had a performance and progress review with Gregg. James told Gregg that he had very little improvement in his returned reports and that his errors in judgment persisted. When James did this progress check-in with Gregg, Gregg had two months left on his special evaluation period.

On April 6, 2013, Gregg's trainee arrested a driver for driving under the influence. When the driver started crying, Gregg uncuffed him and gave him a tissue. Shortly afterwards, Gregg's...