McDonald v. City of Wichita

• Decision Date: 05 January 2016
• Docket Number: Case No. 14-1020-KHV
• Parties: Mary McDonald, Plaintiff, v. City of Wichita, Kansas, and Gary Rebenstorf, Defendants.
• Court: U.S. District Court — District of Kansas

156 F.Supp.3d 1279

Mary McDonald, Plaintiff,

v.City of Wichita, Kansas, and Gary Rebenstorf, Defendants.

Case No. 14-1020-KHV

United States District Court, D. Kansas.

Signed January 5, 2016

Donald N. Peterson, II, Sean M. McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC, Joseph A. Schremmer, Depew Gillen Rathbun & McInteer, LC, Wichita, KS, for Plaintiff.

Derek S. Casey, Triplett, Woolf & Garretson, LLC, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

Kathryn H. Vratil, United States District Judge

Mary McDonald brings employment claims against the City of Wichita, Kansas and Gary Rebenstorf. Specifically, plaintiff alleges that Rebenstorf deprived her of First Amendment right to free speech and free association and denied her equal protection under the Fourteenth Amendment in violation of 42 U.S.C.§ 1983

. Plaintiff claims that the City discriminated against her on the basis of sex and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. , and the Kansas Act Against Discrimination (“KAAD”), K.S.A. § 44–1001 et seq . This matter is before the Court on Defendants' Motion For Summary Judgment (Doc. # 59) filed May 22, 2015. For reasons stated below, the Court finds that the motion should be sustained in part.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)

; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Hill v. Allstate Ins. Co. , 479 F.3d 735, 740 (10th Cir.2007). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

; Justice v. Crown Cork & Seal Co. , 527 F.3d 1080, 1085 (10th Cir.2008). Once the moving party meets the initial burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to the dispositive matters for which the nonmoving party carries the burden of proof. Nat'l Am. Ins. Co. v. Am. Re–Ins. Co. , 358 F.3d 736, 739 (10th Cir.2004) ; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As to these matters, the nonmoving party may not rest on the pleadings but must set forth specific facts. Fed. R. Civ. P. 56(e)(2)

; Matsushita , 475 U.S. at 586–87, 106 S.Ct. 1348 ; Justice , 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter , 500 F.3d 1113, 1120 (10th Cir.2007) ; see Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir.1996).

When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.–Pac. Consumer Prods., L.P. , 607 F.3d 1255, 1260 (10th Cir.2010)

; see Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby , 477 U.S. at 250–51, 106 S.Ct. 2505. Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the 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.

Facts

The following facts are uncontroverted or, where controverted, construed in a light most favorable to plaintiff.

The City of Wichita, Kansas, is a municipality in Sedgwick County, Kansas. The City has an internal Law Department with a Civil Division and a Criminal Division. The Civil Division staff provides legal advice to the City, drafts and reviews contracts, renders legal opinions and conducts civil litigation. The Criminal Division, known as the Prosecutors' Office, prosecutes criminal, traffic, domestic violence and environmental cases in municipal court, administers diversion and deferred judgment programs and assists citizens on a walk-in basis. Together, the two divisions employ approximately 26 individuals, including 13 attorneys. The City Attorney/Director of Law heads both divisions.

In 1976, the City hired Gary Rebenstorf as an attorney in the Law Department. From 1991 until he retired in 2014, he served as City Attorney/Director of Law.

In March of 2000, the City hired Mary McDonald to serve as Chief Prosecutor and supervisor of the Prosecutors' Office.¹ On March 2, 2012, the City eliminated the Chief Prosecutor position, and McDonald accepted a position as Assistant City Attorney I. On July 18, 2012, McDonald resigned from that position. During her tenure as Chief Prosecutor, McDonald performed her job well and received positive performance reviews.

City Policies

The City has a policy to “extend equal opportunity to qualified applicants and employees without regard to race, religion, color, sex, marital status, national origin, ancestry, disability, political affiliation, age, sexual orientation or other non-merit factors.” Stipulated Statement Of Facts (Doc. #56) filed May 12, 2015, at 2. City policy expressly prohibits discriminatory harassment, intimidation and insult, and requires every employee to report sexual harassment. It also requires all supervisory employees to investigate and take immediate corrective action on complaints of sexual harassment. The policy expressly prohibits retaliation against a person who files a complaint or participates in an investigation of a complaint.² All employees are required to cooperate in any investigation under this policy.

The City Council determines the budget for wages and salaries and fixes the compensation of all employees. Under city policy, the City Manager appoints and removes all city officers and employees and his or her decisions on employee matters are final. See Stipulated Facts at 3-4. City policy also provides that if the City must eliminate positions for budgetary or other reasons, the department director will identify the positions to be reduced, and the Human Resources Department will develop a ranked list of employees in the affected job classification. Based on this list, the department head will produce a “Lay-off Plan” for approval by the Human Resources Director and City Manager. Id. at 3.

Chronology Of Events

In October of 2009, Assistant City Attorney Jan Jarman filed an internal complaint of discrimination alleging that Rebenstorf had discriminated on the basis of gender when he denied her application for a promotion. In January of 2010, the Human Resources Department informed Jarman that it had found no evidence to support her allegations.

On February 6, 2010, City Manager Robert Layton emailed Rebenstorf his annual goals for Rebenstorf as head of the Law Department, as follows:

1. Review the office workflow to determine a method for expediting the legal review and opinion/advice process. This review should be completed by 7/1/10.

2. Review the work performed to date and research best practices from other cities to enhance the effectiveness of the diversion programs. This work should be completed by 12/1/10.

3. Develop a system for multiple staff reviews of legal advice provided to the Mayor and Council in an effort to improve accuracy. This system should be implemented by 3/1/10.

4. Review the organization of the office to determine if staff assignments are properly aligned with the legal needs of the City organization. Conduct a best practices review of other municipal law departments to obtain ideas for a possible restructuring. This work should be completed by 6/1/10.

5. Develop a continuing legal education program for City staff, perhaps through the use of seminars and lunch and learn sessions. This program should be coordinated with HR and should be implemented by 9/1/10.

Stipulated Facts, ¶ 22, citing Ex. 6 at KHRC 0371. On February 22, 2010, Rebenstorf agreed to accomplish these goals and stated that “this will be a good opportunity to review staff assignments, processes and procedures.” Stipulated Facts, ¶ 23, citing Ex. 36 at DEF001230.

On May 19, 2010, Layton sent a memorandum to all city departments heads regarding the budget process for 2011-2012, stating as follows:

Based on financial trends, the status quo is not affordable in the future;

The organization must be re-shaped, and at an accelerated pace.

The City's budget is $3 million out of balance in 2010; $7 million in 2011 ;

Management staff are tasked with creating strategies to transform and right size the organization;

The department heads are to challenge the current management structure; develop the right, presumably leaner structure going forward;

Each [d]epartment head team should convene and develop a prioritized list of right-sizing recommendations for their departments. Staff should consider cost recovery for revenue generating programs; and Each department should provide a complete report that includes the identification of lower priority services that could be discontinued; suggestions to restructure the organization to enhance efficiency; and recommendations to streamline management and/or administrative functions.

Time will be scheduled on June 1st and 2nd (of 2010) for [d]epartment managers to present their findings as part of the budget development process.

Stipulated Facts, ¶ 24.

On August 13, 2010, Rebenstorf sent an email to city prosecutors regarding Layton's directives, as follows:

the City Manager has challenged

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