Ney v. City of Hoisington, Kan.
| Decision Date | 22 February 2007 |
| Docket Number | No. 05-4059-JAR.,05-4059-JAR. |
| Citation | 508 F.Supp.2d 877 |
| Parties | Debra K. NEY, Plaintiff, v. CITY OF HOISINGTON, KANSAS, Hoisington Police Dept., Kenton Doze, and Allen Dinkel, Defendants. |
| Court | U.S. District Court — District of Kansas |
David O. Alegria, McCullough, Wareheim & Labunker, P.A., Topeka, KS, for Plaintiff.
Allen G. Glendenning, Watkins Calcara, Chtd., Great Bend, KS, for Defendants.
Plaintiff Debra Ney filed this action against her former employer, the City of Hoisington, Kansas and the Hoisington Police Department, along with her former supervisors, Kenton Doze and Allen Dinkel. Plaintiff asserts that she was unlawfully terminated from her position as a records clerk in retaliation for (1) exercising her rights under the Family Medical Leave Act ("FMLA"), and (2) whistleblowing under Kansas law. Plaintiff additionally alleges claims under 42 U.S.C. § 1983 based on violations of (1) equal protection, (2) procedural due process, and (3) substantive due process. Finally, plaintiff alleges a defamation claim under Kansas law. The Court now considers defendants' Motion for Summary Judgment (Doc. 66) on all claims. As explained more fully below, the Court grants defendants' motion on the federal claims and declines to exercise supplemental jurisdiction over the remaining state law claims.
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 as to any material fact and that the moving party is entitled to judgment as a matter of law."1 A fact is only material under this standard if a dispute over it would affect the outcome of the suit.2 An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party."3 The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law."4
The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact.5 "A movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim."6 The burden may be met by showing that there is no evidence to support the nonmoving party's case.7 If this initial burden is met, the nonmovant must then "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."8 When examining the underlying facts of the case, the Court is cognizant that all inferences must be viewed in the light most favorable to the nonmoving party and that it may not make credibility determinations or weigh the evidence.9
There are technical and evidentiary issues the Court must resolve before determining the material uncontroverted facts in this matter. In their reply memorandum, defendants object to (1) plaintiffs method of responding to defendants' statement of uncontroverted facts, and (2) plaintiffs reliance on her own affidavit for almost all facts recited in the response memorandum.10
In the initial summary judgment memorandum, defendants set forth in paragraph format their statement of uncontroverted facts and provide the Court with a specific citation to the record for each fact, in compliance with D. Kan. R. 56.1. In her response, plaintiff chose to controvert many of these statements of fact but failed to include any citations to the summary judgment record in support. After addressing many, but not all, of defendants' statements of fact, plaintiff then states that she "incorporates by reference herein, the uncontroverted facts set forth in her affidavit attached to this motion as Exhibit B."11 Defendants object that plaintiffs affidavit does not meet the personal knowledge requirement of Fed.R.Civ.P. 56 and should be disregarded.
The Court first admonishes plaintiffs counsel for failing to comply with the local rule for summary judgment responses, which requires:
(1) ... [A] section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed.
(2) if the party opposing summary judgment relies on any facts not contained in the movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above.12
Plaintiff spends eighty-six paragraphs of her response purporting to controvert defendants' statement of uncontroverted facts without any citation to the summary judgment record. The Tenth Circuit has held that merely placing evidence in the record on summary judgment without pointing the Court to it is insufficient: "it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without ... depending on the trial court to conduct it's own search of the record."13 This Court declines to conduct a fishing expedition through the thirteen pages of statements in plaintiffs affidavit to support the assertions made in her responses to defendants' statement of uncontroverted facts or any additional statement of uncontroverted fact. In line with D. Kan. R. 56.1, the Court will deem admitted for the purpose of summary judgment all facts that are not controverted by a readily identifiable portion of the record.
The Court next turns to the admissibility of plaintiffs affidavit, attached to her response as Exhibit B. Fed.R.Evid. 602 requires that a testifying witness "ha[ve] personal knowledge of the matter" testified to.14 Also, Fed.R.Civ.P. 56(e) requires that affidavits be made on personal knowledge and "Under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.'"15 Statements of "mere belief in an affidavit must be disregarded."16
Plaintiffs affidavit includes immaterial information, recitation of facts that she could not have actually perceived or observed, conclusory allegations, and hearsay. Some examples include plaintiffs attempts to assert the subjective thoughts of others as fact,17 assertions of others' suspected motives as fact,18 hearsay statements of other employees or of her supervisors,19 and assertions about the actions of others for which there is no indication that plaintiff actually perceived or observed.20 The Court will disregard all statements in plaintiffs response that are not supported by other portions of the record, or that could not represent information based on plaintiffs personal knowledge. The Court will only consider, for purposes of determining the uncontroverted evidence, those statements that plaintiff could have perceived or observed, and will construe the evidence in the light most favorable to plaintiff as the nonmoving party.
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to plaintiff. Plaintiff began working for the City of Hoisington ("City") in 1983. Two days a week she worked as a records clerk for the Hoisington Police Department and three days a week she functioned as the clerk of the City's municipal court. Plaintiff never signed an employment contract with the City. The Personnel Policies and Guidelines for the City ("Employee Manual") provides that it does not create contractual employment rights and that "[a]ll employees are considered to be at-will employees for the purposes of City employment."21 Nevertheless, former City Attorney Richard Boeckman and former City Manager Mary Jo Ray had told plaintiff that she was a "permanent employee."
In 1998, a co-worker of plaintiff found pornography on a computer that had previously been used by Chief of Police Phil Taylor and showed the pornography to plaintiff. Plaintiff reported this to Dan Simpson of the Barton County Sheriff's Department on April 27, 1998. Phil Taylor was suspended on April 27, 1998 pending an investigation into the matter and his employment was terminated by the City on November 2, 1998, which was the day he was arraigned on charges related to the pornography. Kenton Doze was made acting Chief of Police for a time after Taylor was suspended and then Jon Quinday was made Chief of Police. Subsequently, in 2000, Kenton Doze was made Chief of Police.
In 1999, plaintiff required a seven-month leave of absence from her job for medical reasons. Because of plaintiff's long employment history with the City, she desired to take this time as paid leave, as she had accumulated enough vacation and sick leave to do so. Plaintiff asserts that Dr. Robert Frayser and Dr. Eldean Kohrs "certified her as unable to work because of a serious medical condition." But plaintiff declined to complete FMLA paperwork provided to her by. the City because she was told that if she did take her leave under the FMLA, she could not opt to take advantage of her accrued vacation and sick leave. Plaintiff did not understand the FMLA forms sent to her during that time period due to the medications she was taking; therefore, plaintiff retained attorney Donald E. Reif, Jr. to assist her in obtaining her accrued paid leave. On August 12, 1999, Reif...
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