Hermsen v. City of Kan. City
| Decision Date | 10 March 2017 |
| Docket Number | No. 14–1096–CV–W–FJG,14–1096–CV–W–FJG |
| Citation | 241 F.Supp.3d 943 |
| Parties | Marissa D. HERMSEN, Plaintiff, v. CITY OF KANSAS CITY, MISSOURI, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Michael Anthony Williams, Williams Dirks Dameron LLC, Kansas City, MO, for Plaintiff.
Tara M. Kelly, City Attorney's Office, Kansas City, MO, for Defendants.
Pending before the Court is Defendants' Motion for Summary Judgment (Doc. No. 27).
Plaintiff was a paramedic employed by defendant City through May of 2014. In July of 2011, Plaintiff filed a lawsuit against the City under the Fair Labor Standards Act ("FLSA"), claiming that defendant failed to properly calculate overtime payments for paramedics and EMTs. Plaintiff claims in the present case that, beginning at the time she filed her FLSA case, defendants began to target her in retaliation, ultimately resulting in her termination. In the current suit, plaintiff brings two claims: Count I, FLSA Retaliation; and Count II, Wrongful Discharge.
Defendants City of Kansas City, Missouri ("City") and Paul Berardi ("Berardi") move for summary judgment on the following bases: (1) Plaintiff cannot satisfy the McDonnell–Douglas burden shifting analysis to show retaliation; (2) Plaintiff cannot sustain her wrongful discharge claims against the City due to sovereign immunity or against Defendant Berardi due to the lack of employer/employee relationship, official immunity, and qualified immunity; and (3) punitive and emotional distress damages are unavailable under the FLSA rubric. In her response, plaintiff withdraws her wrongful discharge claims in Count II; however, plaintiff maintains that questions of material fact remain for trial on her FLSA retaliation claims, and her claims for punitive damages and emotional distress damages are not precluded by the FLSA.
Hermsen was employed by Metropolitan Ambulance Services Trust ("MAST") from 2003 until 2010 when MAST merged with KCFD. Plaintiff was then employed as a paramedic with the City of Kansas City, Missouri from April 2010 through May of 2014.
Sometime before March 7, 2011, Hermsen spoke to Lisa Minardi, Councilman Ed Ford's Assistant, concerning her intention to blow the whistle on the City for FLSA violations. Lisa Minardi was married to Paul Ferguson, who worked at Hermsen's fire station. Hermsen gave Minardi a document titled, Violations of FLSA Committed by KCFD concerning Ambulance Personnel and the Inevitable Financial Liability to Kansas City ("Warning Paper"), to give to Councilman Ford. (Warning Paper, Ex. 21 to Doc. No. 31); (Hermsen Dep., Ex. 1 at 16:13–18:24). Hermsen told paramedic supervisors Scott Raak and Laura Sanchen; her partners, Andrew Hanchette and Chad Huismann; and Michael Cambiano, International Association Fire Fighters Local No. 42 ("Union") Administrator; that she was going to give the Warning Paper to Lisa Minardi. Between March 2011 and July 29, 2011, Hermsen was blamed in union meetings and elsewhere for starting an investigation into the legality of the 24–hour shift for paramedics and EMTs.
On July 29, 2011, Plaintiff became the named plaintiff in a FLSA action filed in the Western District of Missouri which sought damages for the City's failure to pay paramedics and EMTs appropriate overtime wages. A second named plaintiff, Andrea Armillio, joined the FLSA lawsuit on August 15, 2011. The command staff was disappointed about the filing of the FLSA suit. According to Dyer's deposition, the suit turned back six months of the work that had been done. Captain Wright sent correspondence and had conversations with Chief Dyer and others at the City indicating his belief that the 24–hour shift policy for EMS units did not violate the FLSA, and on October 28, 2011, the Union filed a Motion to Intervene in plaintiff's FLSA action. (Civil Docket for Case No. 4:11–cv–00753–BP, Ex. 27). Chief Dyer and Chief Berardi were heavily involved in the integration of MAST personnel, including the 24–hour shift that became the subject of Hermsen's FLSA lawsuit. (Dyer Dep., Ex. 17 at 69:14–24, and 72:10–73:11).
On September 24, 2012, Judge Beth Phillips granted in part Plaintiffs' Motion to Certify the Class in the lawsuit against the City, with Plaintiff serving as the class representative for paramedics and Andrea Armilio as the class representative for EMTs. On May 15, 2013, Plaintiff filed her Second Phase (liability) Discovery Requests on the City in the FLSA lawsuit which were returned December 19, 2013. On July 22, 2013, Chief Berardi was deposed in plaintiff's FLSA suit. Hermsen attended Chief Berardi's deposition. On or about January 8, 2014, Plaintiff filed a Motion for Partial Summary Judgment as to liability in the FLSA lawsuit. On or about April 7, 2014, Plaintiff moved for leave to file supplemental authority in the FLSA lawsuit that rejected the City's defense.
On June 25, 2014, the Court granted Plaintiff's Motion for Summary Judgment as to Liability in the FLSA lawsuit. (Civil Docket, No. 4:11–cv–00753, Ex. 27).
A second FLSA class action was brought for the purpose of including those class members entitled to relief but who failed to opt in to the first class action. The named plaintiff in the second FLSA lawsuit was Diana Frisbee. In all, 244 paramedics and EMTs received compensation under the two lawsuits. All but six of those 244 paramedics and EMTs are still employed by the City, have retired, died, or have voluntarily resigned from the fire department. Of the six that were terminated, two were terminated for misconduct; two abandoned their job and were terminated; one was unable to perform the physical requirements of the job; and one was terminated after a felony conviction yielding a three-year prison sentence.
When Plaintiff joined the fire department in 2010, Chief Richard Dyer was the fire chief. In July 2012, Chief Dyer retired. Defendant Berardi was appointed interim fire chief in August 2012, and in January 2013, Defendant Berardi became the fire chief.
The Fire Chief is primarily responsible for serving as the hearing officer in all disciplinary matters involving fire personnel and usually knows of all discipline administered. During predetermination hearings, those facing discipline are afforded the right to be represented by counsel and the Union, to present evidence, to call and cross-examine witnesses, and make opening and closing statements.1 An employee, if he or she has been demoted, suspended, or terminated, is able to appeal the predetermination hearing decision to the Human Resources Board. Ex. I, Kansas City Charter, § 901(b)(1). The Human Resources Board may administer oaths, compel the production of evidence, and compel the attendance of witnesses. Ex. I, § 907(c); Ex. J, Rules and Regulations of the Human Resources Board, §§ 9, 14. A hearing before the Human Resources Board is recorded by a court reporter and the hearing is conducted in accordance with the contested case rules of procedure set forth in Chapter 536 of the Missouri Revised Statutes. Ex. J, §§ 13, 16. Disciplined employees are able to appeal the decision of the Human Resources Board to the City Manager. Ex. I, § 907(f). The City Manager may affirm, change, modify or reverse decisions of the Human Resources Board.
The City's Whistleblower Protection Ordinance prohibits disciplinary action against City employees for reporting violations of law. (Ordinance No. 990311, Ex. 18). Chief Berardi is required to investigate all allegations of retaliation. The City also has to report allegations of harassment to the EEO office. Chief Berardi has never disciplined anyone for failing to report a complaint of discrimination, harassment or retaliation under the reporting requirement. The City's Discipline policy lists causes for disciplinary action that include, but are not limited to, offensive behavior, offensive language, and discrimination. Offensive conduct that is prohibited by includes "being boisterous towards your supervisor, using foul language in an aggressive manner, throwing things, refusing to follow an order ... being rude not only to your supervisor, but to a peer employee ..." It is also a violation of the disciplinary policy to file a false complaint. Disruptive conduct is also prohibited. The City's policy also prohibits harassment or intimidation that is recurrent in nature and/or having a detrimental effect on the employee's employment situation. The City has a zero-tolerance policy regarding threats or acts of violence and "any employee ... who makes a threat of physical violence ... will be dealt with immediately." (City of Kansas City Human Resources Rules & Policy Manual, Ex. 20 at Appendix I).
On June 6, 2011, plaintiff responded to a motor vehicle accident involving an elderly woman, who had been t-boned but exhibited no symptoms. Plaintiff photographed the car, allegedly to show the ER physician the mechanism of injury. Because of this incident, a supervisor argued with her at the scene. On or about June 15, 2011, Plaintiff was disciplined for failure to use proper titles and being disrespectful of her supervisor; failure to obey a lawful order of her superior; and taking photographs of the accident in violation of the Fire Department's General Administrative Guidelines. Ex. K, Resolution of Personnel Matter, ¶¶ 1–3. Plaintiff received a twelve-hour suspension for her actions on June 6, 2011. Ex. K, ¶ 5. The June 6, 2011 incident was the first time Hermsen was disciplined by KCFD.
On June 15, 2011, Plaintiff was involved in an altercation with a co-worker. Plaintiff asserted that her co-worker Wayne Ashurst had been rude to her for weeks prior and was the aggressor when he yelled at her while retrieving supplies "Get the f—out of my office," and they then...
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...emotional distress damages . . . may be recoverable for FLSA/ADEA claims for retaliation," citing Hermsen v. City of Kansas City, Mo., 241 F. Supp. 3d 943, 958-59 (W.D. Mo. 2017).8 Plaintiff further asserts the plain language of the applicable portion of the ADEA authorizes recovery for dam......
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