McCall v. Board of Com'Rs of County of Shawnee, Ks, 01-4140-RDR.

• Decision Date: 10 October 2003
• Docket Number: No. 01-4140-RDR.,01-4140-RDR.
• Citation: 291 F.Supp.2d 1216
• Parties: Brigette A. McCALL, Plaintiff, v. BOARD OF COMMISSIONERS OF COUNTY OF SHAWNEE, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

Page 1216

291 F.Supp.2d 1216

Brigette A. McCALL, Plaintiff, v. BOARD OF COMMISSIONERS OF COUNTY OF SHAWNEE, KANSAS, Defendant.

No. 01-4140-RDR.

United States District Court, D. Kansas.

October 10, 2003.

COPYRIGHT MATERIAL OMITTED

Ira Dennis Hawver, Ozawkie, KS, for Plaintiff.

J. Steven Pigg, Fisher, Patterson, Sayler & Smith-Topeka, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an employment discrimination action. Plaintiff, a former corrections officer for the Shawnee County Department of Corrections, brings several claims against the defendant Board of Commissioners of Shawnee County, Kansas. She asserts claims of sexual harassment, sexual discrimination, disability discrimination, age discrimination, retaliation for protected speech, deprivation of a property interest without due process, and intentional infliction of emotional distress. She brings these claims pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq. This matter is presently before the court upon defendant's motion for summary judgment.

I.

The court will provide a review of the facts to supply some background for the arguments made by the defendant. The court will provide a more detailed review of some of the facts as we address the arguments raised by the plaintiff and defendant.

Plaintiff was employed by the Shawnee County Sheriff's Department on January 16, 1981. She assumed a position on the jail staff on January 23, 1981. In August 1997, a meeting was held at the Ramada Inn with the Shawnee County Commissioners, various jail employees and the union present. Plaintiff expressed various complaints at that meeting.

Plaintiff's employment was terminated effective August 21, 1998. She was informed that she was being terminated because she had violated policy by writing a personal check to an inmate's mother in handling inmate property transactions through her personal account. Plaintiff appealed the termination. Her appeal was settled under the following agreement: In resolution of all grievances which Officer McCall now has pending against Shawnee County and the Department of Corrections, the parties agree to the following:

1. Officer McCall will be returned to her position as Correctional Specialist on September 22, 1998, with no loss in seniority;

2. All work time lost by Officer McCall since August 21, 1997 will be treated as leave without pay, and;

3. Any further similar misconduct by Officer McCall will result in her immediate termination.

Upon reinstatement, plaintiff was permitted to choose any shift of employment. She made the following statements to management: "I can't stand looking at you people," and she was selecting "third shift where I don't have to see you."

Plaintiff complains of the following incidents after reinstatement from her August 1998 termination: (1) she had to open doors in the new part of the jail and this caused her pain; (2) she was scheduled for Aikido training shortly before she was scheduled for carpal tunnel surgery in April 1999; (3) a jail policy that was in place for two months that restricted guards from taking food into cell areas; (4) she received a written reprimand on December 2, 1999 for broadcasting a confidential matter to the jail staff; (5) failure of management to properly respond to one of her complaints; and (6) refusal to accommodate a work restriction imposed by her psychiatrist on January 14, 2000.

Plaintiff appealed the reprimand she received on December 2, 1999. On December 6, 1999, plaintiff spoke with Mark L. Bennett, Jr., who had been appointed by the County Commission to investigate allegations of wrongdoing in the Department of Corrections. Her statement to Bennett was confidential. On December 10, 1999, a meeting was held to hear her appeal of the reprimand. She walked out of that meeting. The appeal was denied. Following that meeting, she took 22 days of sick and vacation leave. She returned to work on January 11, 2000. She worked three days from January 11th to January 13th, and then five more days from January 16th to January 20th. She ceased working permanently on January 20, 2000.

Plaintiff advised the County's Human Resources Director on June 12, 2000 that she was totally disabled and would be eligible for disability benefits through the Kansas Public Employees Retirement System (KPERS) as of July 20, 2000. On August 15, 2000, the Human Resources Department instituted a personnel status change form which placed plaintiff on inactive status. On September 8, 2000, plaintiff was approved for total disability benefits by KPERS, effective July 20, 2000. Plaintiff was awarded Social Security disability benefits on February 21, 2002. She had asserted in her request for disability benefits that she was unable to perform any job at the Department of Corrections.

On October 25, 2000, the Human Resources Department changed plaintiff's personnel status to "retirement" based upon "permanent disability." On December 11, 2000, Paul Wilson, the new director for the Department of Human Resources, notified plaintiff that her employment was terminated effective July 20, 2000, because the County had been notified that she had been approved for disability benefits effective July 20, 2000.

Plaintiff's employment with the County was governed by a collective bargaining agreement between the County and the Teamsters Local Union No. 696, which provided for grievance and arbitration procedures. Plaintiff never submitted any grievance or appeal from her notice of termination.

Plaintiff filed a document with the Kansas Human Rights Commission (KHRC) titled "You May File A Charge" on August 22, 1998. She also submitted an unverified, undated "Complaint Information Sheet." She further submitted a letter that was received by the KHRC on September 7, 1998. On December 2, 1998, the KHRC sent plaintiff a completed charge of discrimination against the defendant for allegedly terminating her on August 20, 1998 because of her sex, age and disability, with instructions to return the "SIGNED and NOTARIZED complaint" in an enclosed envelope. Plaintiff never signed or returned the complaint.

Plaintiff submitted another KHRC Complaint Information Sheet and a "You May File A Charge" form on February 13, 2001, which was received by the KHRC on February 27, 2001. On March 19, 2001, a KHRC intake specialist advised plaintiff by letter that the KHRC declined to process her complaint because it was untimely. Plaintiff has never received a right to sue letter from either the KHRC or the EEOC. Plaintiff filed the instant complaint in state court on August 27, 2001. The case was removed to this court on September 28, 2001.

II.

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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "material" if it is essential to the proper disposition of the claim. Id. Essentially, 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." Id. at 251-52, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct 2548. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. "Any evidence tending to show triable issues will be viewed in the light most favorable to the nonmoving party." Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 972 (10th Cir.1994) (citation omitted).

III.

In the pretrial order, plaintiff has specifically identified ten claims. They are as follows: (1) hostile work environment and discrimination based upon sex under Title VII; (2) hostile work environment and discrimination based upon sex under § 1983; (3) sex discrimination in her terminations in August 1998 and July 2000 under Title VII; (4) retaliation based upon exercise of First Amendment speech under § 1983; (5) retaliation for opposition to discrimination under Title VII and KAAD; (6) age discrimination, including hostile work environment, under ADEA and KAAD; (7) intentional infliction of emotional distress under state law; (8) hostile work environment, discrimination and retaliation based upon disability under ADA and KAAD; (9) hostile work environment and retaliation based upon handicap under Rehabilitation Act; and (10) violation of due process rights based upon Fourteenth Amendment under § 1983.

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