Owens v. City of Derby, Kan., Civ.No. 82-1199.
| Decision Date | 23 April 1984 |
| Docket Number | Civ.No. 82-1199. |
| Citation | 586 F. Supp. 37 |
| Parties | Tom OWENS, Plaintiff, v. The CITY OF DERBY, KANSAS, a municipal corporation, Ward R. Clements, Jr., City Manager, Donald G. Storck, Mayor, J.R. Haga, Chief of Police, Delbert Fowler, Police Lieutenant, and Ron Graham, Police Sargeant, Defendants. |
| Court | U.S. District Court — District of Kansas |
Eric A. Commer, Lyle W. Britt, Law Offices of Lyle W. Britt, Cht., Wichita, Kan., for plaintiff.
Bruce A. Swenson, Ratner, Mattox, Ratner, Barnes & Kinch, Eric E. Davis, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for defendants.
This civil rights complaint is before the court on plaintiff's motion for partial summary judgment, Dk. # 30, filed November 1, 1982, and defendants' motion for summary judgment, Dk. # 44, filed February 8, 1983. Plaintiff alleges he was discharged from his employment as a police officer in violation of 42 U.S.C. § 1983.
Summary judgment is appropriate if the pleadings, depositions and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Rule 56, Fed.R.Civ.P. The court must view the evidence in the light most favorable to the party opposing the motion. If the motion is made and supported as provided by Rule 56, an adverse party may not rest upon allegations or denials, but must come forward with specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P.
Based upon an extensive summary judgment record, the court finds:
1) Plaintiff did not have a protected property interest in his employment under the Fourteenth Amendment.
2) Plaintiff's discharge did not implicate a protected liberty interest.
3) Plaintiff's discharge did not violate plaintiff's First Amendment rights.
4) The individually named defendants, Ward R. Clements, Jr., Donald G. Storck and J.R. Haga, acted in good faith in discharging plaintiff.
Plaintiff was employed as a police officer by the City of Derby, Kansas, on October 13, 1981. On his first day of duty plaintiff signed a document entitled "Reserve and New Officer Orientation." The orientation form consisted of a set of regulation governing the conduct of officers. The first provision of the orientation form stated:
You are hired or appointed to this position with the understanding there will be a one year probationary period. If, in the opinions of your supervisors, and the agreement of the Chief of Police, that you need additional training or there is some doubt as to your capability as a police or reserve officer, you may be terminated at any time within this one year period without cause.
Plaintiff was also provided with the Derby Police Department Manual. The manual generally described terms of employment, duties and disciplinary procedures. The manual also described a one year probationary period for new employees and recited certain infractions for which an officer could be discharged. The manual further stated: "Members may be terminated for serious violations of the rules in the department manual and violations of Article II, Section B." (emphasis supplied). Under the terms of the manual, members of the department have the right to appeal disciplinary actions to an appeal board. The orientation form and manual are the official policy of the City of Derby.
The City of Derby has a mayor-council-city manager form of government. By ordinance the city manager is responsible for hiring and discharging all nonappointive employees of the City. The city manager delegated to the chief of police the authority to hire and discharge members of the police department.
Plaintiff was discharged four months after he was employed at the direction of the mayor in consultation with the city manager and chief of police. A letter of termination was prepared by the chief of police and tendered to plaintiff.
Plaintiff submitted a letter of appeal pursuant to the police department manual stating in substance that his discharge was politically motivated and was an effort to inhibit him in pursuing a grievance which he had previously filed. Plaintiff requested an appeal of his termination but the request was denied. Additional facts, as necessary, will be stated in the body of this opinion.
In order to claim entitlement to procedural due process afforded by the Fourteenth Amendment, a public employee must demonstrate a protected "property" interest in his employment. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). A property interest is more than a unilateral expectation, it must be based upon a legitimate claim of entitlement founded upon state law. Id. at 577, 92 S.Ct. at 2709. An employment contract providing for tenure, or an implied contract based on rules or mutually explicit understandings may support a claim of entitlement to a benefit. Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972).
Under Kansas law, employment is "at-will" unless there is an express, negotiated duration of employment. E.g., May v. Sante Fe Transportation Co., 189 Kan. 419, 370 P.2d 390 (1962). See generally G. Brown & M.K. Webb, Employment at Will: Emerging Protections for the Employee, 22 Washburn L.J. 491 (1983). Under the traditional concept of at-will employment, the employer is vested with the right to discharge an employee at any time and for any reason. Id. at 419, 370 P.2d 390.
Plaintiff claims a property interest under state law based upon the written policies of the defendants and based upon assurances which he received from the Chief of Police. The orientation form and policy manual are unilateral statements of the employer and do not give rise to an express or implied contract of employment under Kansas law. Johnson v. National Beef Packing Co., 220 Kan. 52, 54-55, 551 P.2d 779 (1976). Accordingly, plaintiff did not have an expectation of continuing employment based upon the written policies of the City. The Chief of Police was delegated the authority to hire plaintiff, but he was without authority to establish a definite duration of employment in contravention of the official policy of the City. Plaintiff was put on notice by the orientation form that he was subject to discharge without cause for a period of one year. Under these circumstances, the court does not find that plaintiff had an expectation of continuing employment. There has not been a showing of a governmental custom of granting tenure status to officers. The court has not been directed to any ordinance or statute governing tenure of Derby police officers. The court concludes that plaintiff was an at-will employee under state law. As such he did not have a property interest entitling him to a due process hearing.
The Fourteenth Amendment liberty interest of a public employee is implicated by discharge without an opportunity for a hearing when it is accompanied by conduct which impunes the good name, reputation, honor and integrity of the employee. Roth, supra, 408 U.S. at 572-73, 92 S.Ct. at 2706-07. However reputational damage standing alone is insufficient unless the discharge explicitly states the stigmatizing factor or implicitly ratifies some other stigmatizing allegation. McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.1981).
Assuming that plaintiff is able to present evidence of private discussions of plaintiff's discharge in a public restaurant,...
To continue reading
Request your trial
-
Polson v. Davis
...see also Childers v. Independent School District No. 1 of Bryan County, 676 F.2d 1338, 1341 (10th Cir.1982); Owens v. City of Derby, Kansas, 586 F.Supp. 37, 41 (D.Kan.1984). However, the first amendment's protection against retaliatory action does not apply unless the plaintiff's statements......
-
Wulf v. City of Wichita
...P.2d 1107 (Kan.Ct.App.1983); Brown v. Wyandot Mental Health Center, 688 P.2d 745 (Kan.Ct.App.1984).... See, e.g., Owens v. City of Derby, Kan., 586 F.Supp. 37 (D.Kan.1984) (the employment manual was a unilateral statement of company policy and did not give rise to an express or implied cont......
-
Peterson v. Unified School Dist. No. 418, Civ. A. No. 88-4077-0.
...the contract explicitly stated the stigmatizing factor or implicitly ratified some other stigmatizing allegation." Owens v. City of Derby, 586 F.Supp. 37, 40 (D.Kan.1984) (citing McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.1981)). We therefore grant defendant's motion for summary judgment......
-
Gomez v. CITY OF SHERIDAN BY AND THROUGH HERRING, Civ. A. No. 83-K-1545.
...were not implicated and the plaintiff was not entitled to a prior hearing complying with due process. See Owens v. City of Derby, Kan., 586 F.Supp. 37 (D.Kan.1984). Defendants claim, in their motion for summary judgment, that plaintiff also does not have a constitutionally protected liberty......