Harris v. Board of Public Utilities of Kansas City, Civ. A. No. 88-2003-V.

• Decision Date: 18 January 1991
• Docket Number: Civ. A. No. 88-2003-V.
• Citation: 757 F. Supp. 1185
• Court: U.S. District Court — District of Kansas
• Parties: Bill R. HARRIS, Plaintiff, v. BOARD OF PUBLIC UTILITIES OF the CITY OF KANSAS CITY, KANSAS; The City of Kansas City, Kansas; Tom Lynch, Cliff Nesselrode, Clarence Degraeves, Ana Riojas, and Joe Dick, individually and as members of the Board of Public Utilities; Eugene Miller and Terry W. Drake, Defendants.

757 F. Supp. 1185

Bill R. HARRIS, Plaintiff, v. BOARD OF PUBLIC UTILITIES OF the CITY OF KANSAS CITY, KANSAS; The City of Kansas City, Kansas; Tom Lynch, Cliff Nesselrode, Clarence Degraeves, Ana Riojas, and Joe Dick, individually and as members of the Board of Public Utilities; Eugene Miller and Terry W. Drake, Defendants.

Civ. A. No. 88-2003-V.

United States District Court, D. Kansas.

January 18, 1991.

COPYRIGHT MATERIAL OMITTED

John H. Fields, Kansas City, Kan., for plaintiff.

Daniel B. Denk, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., Kathryn Pruessner Peters, Burke, Williams, Sorensen & Gaar, Overland Park, Kan., Rodney L. Turner, Turner, Vader & Koch, Kansas City, Kan., Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, Kan., for defendants.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This is a civil rights and employment discrimination action brought pursuant to several legal theories under Title VII, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986. Plaintiff also asserts a state claim for wrongful discharge under the doctrine of pendent jurisdiction. Plaintiff seeks both legal and equitable relief. The case now comes before the court on defendants' joint motions for summary judgment pursuant to Fed.R. Civ.P. 56(b) (Docs. 65, 68 and 69). Plaintiff has responded and opposes defendants' motions (Doc. 84). For the reasons stated below, the motions are granted in part.

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The court's proper inquiry is "whether there is a need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact on its claim(s). This burden may be discharged by "showing," that is, pointing out to the district court, that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553. Fed.R.Civ.P. 56, however, imposes no requirement on the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. at 2552 (emphasis in original). Once the moving party has properly supported its motion for summary judgment the burden shifts to the nonmoving party: "a party opposing ... may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court reviews the evidence on summary judgment under the substantive law and based on the evidentiary burden that the party will face at trial on the particular claim. Id. at 254, 106 S.Ct. at 2513.

The pertinent facts, as established by the record of the case, appear as follows. Plaintiff, Bill R. Harris, a white male, was hired in August, 1983, by the Board of Public Utilities of the City of Kansas City, Kansas ("BPU"). The BPU hired plaintiff to manage its Human Resources Department, also known as its Personnel Department. Plaintiff did not sign a written contract of employment, nor was he informed that he had been hired for a definite term. Plaintiff concedes that he and defendants never discussed the duration of his employment.

As director of Human Resources, plaintiff's job duties included, among others, supervising employees in the department, establishing performance based interviewing, initiating a management by objective concept, rewriting job classifications for salaried exempt employees, reviewing job classifications for salaried exempt employees, reviewing performance review sheets, negotiating some labor contracts, and handling some arbitration cases at the hearing stage. During his tenure at BPU plaintiff's department consisted of between nine and thirteen employees.

As agreed, plaintiff commenced his employment with the BPU in August, 1983. At that time, plaintiff's supervisor was defendant Terry W. Drake, who was vice-president in charge of Administration. By March 30, 1984, plaintiff was reporting directly to defendant Gene Miller, who was general manager of the BPU. Eighteen months after plaintiff began working for the BPU, the BPU adopted a Personnel Code which delineated certain employee infractions and resulting penalties, including discharge. The Personnel Code also outlined a grievance procedure for disgruntled employees who were adversely affected by employment decisions.

Eventually, plaintiff became convinced that the BPU was failing to abide by various employment discrimination laws and guidelines. In particular, plaintiff opposed what he perceived to be a system of patronage hiring and the discriminatory treatment of certain minority employees. Plaintiff, at several different times, voiced his opposition to these practices. By the end of 1985 and early 1986, plaintiff's job classification had been lowered and he was excluded from quarterly management retreats in which he had previously participated.

On April 30, 1986, plaintiff received notice that he would be discharged effective on May 16, 1986, with salary and benefits to continue for three months thereafter. The notice of termination (prepared by defendant Miller) indicated that the reason therefor was a "lack of commitment" to the BPU:

... I have inquired of your plans to relocate your family to Kansas City, Kansas. Specifically, we have discussed the importance of your making a commitment to the BPU. In view of the immediate critical needs, and for continuing leadership in Human Resources, I again on April 18 1986 requested that you advise me of your future career plans. Yesterday you asked for further time (May 27) to respond.

The fact that a commitment from you requires such deliberations (in light of your 2½ years with the BPU) exemplifies your limbo status and likelihood of its continuance. Therefore, I have decided to make a change ...

Lack of commitment is not listed in the Personnel Code as an infraction meriting discharge. Following his discharge, plaintiff did not file a grievance with the BPU. It is undisputed that plaintiff received no pretermination hearing at which he could dispute the factual basis for his termination.

On August 26, 1986, plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff received his right to sue letter on October 30, 1987. Between the time of his discharge and the reception of this letter, others were made aware of his departure from the BPU. In disseminating information regarding plaintiff's departure, the BPU characterized plaintiff's termination as a resignation. The BPU reported to the EEOC, during its investigation of plaintiff's charge, that plaintiff had resigned. The BPU later recanted this statement. The BPU also released a statement to the press to the effect that plaintiff had resigned. Since his termination, plaintiff claims that he has been unable to obtain comparable full-time employment.

On January 5, 1988, plaintiff filed this action against the BPU, its board members, his supervisors, and the City of Kansas City, Kansas. Plaintiff brings his action in four counts. Count I seeks recovery under 42 U.S.C. § 1983, with allegations that defendants' conduct violated plaintiff's first amendment right of free speech and association, his fourteenth amendment right to equal protection of the law, his fourteenth amendment right to procedural and substantive due process in the deprivation of his property and liberty interests, and that such deprivations were in derogation of the clear public policy of the State of Kansas, as articulated in its reported court decisions and statutory law. Count II apparently alleges a 42 U.S.C. § 1983 claim that plaintiff was fired because of his refusal to participate in a patronage hiring program which allegedly constituted a violation of his first amendment right as a public employee. Count III is based in Title VII of the Civil Rights Act of 1964, as amended, and claims that plaintiff was discharged in retaliation for his opposition to defendants' racially discriminatory employment practices, 42 U.S.C. § 2000e-3(a). Count IV asserts that all of the alleged misconduct surrounding plaintiff's termination is actionable under 42 U.S.C. § 1981. Under each of these four counts, plaintiff seeks to recover both compensatory and, with the exception of Count III, punitive damages. We shall consider the substance of each of plaintiff's claims.

I. THE 42 U.S.C. § 1983 CLAIMS

A. Procedural Due Process

Plaintiff asserts that his discharge from the BPU violated his rights to procedural due process under the Fourteenth Amendment. The Fourteenth Amendment's guarantee of procedural due process applies when a constitutionally protected property or liberty interest is at stake. As the United States Supreme Court has long held:

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and

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