Polson v. Davis

Citation635 F. Supp. 1130
Decision Date25 April 1986
Docket NumberCiv. A. No. 84-2211.
PartiesMaureen POLSON, Plaintiff, v. Jerry DAVIS, in his individual and official capacity and as an employee of the City of Kansas City, Kansas, and the City of Kansas City, Kansas, Defendants.
CourtU.S. District Court — District of Kansas

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James L. Crabtree, Sheila M. Janicke, Crabtree, Easterday, Crabtree & Janicke, Overland Park, Kan., for plaintiff.

Annette Eslick, Asst. City Atty., Daniel B. Denk, McAnany, Vancleave & Phillips, Kansas City, Kan., for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

The defendants in this action have filed a motion for summary judgment as to virtually all aspects of plaintiff's second amended complaint. In this memorandum and order, we address each of the numerous legal grounds asserted in support of that motion.

Entry of summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering such a motion, we must examine all evidence in the light most favorable to the opposing party. Prochaska v. Marcoux, 632 F.2d 848, 850 (10th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 841 (1981). Where differing inferences could reasonably be drawn from conflicting affidavits and depositions, summary judgment should be denied. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, when the movant has properly supported his motion, the opponent's response must, by affidavit or otherwise, set forth specific facts showing that there is a genuine issue for trial. "If he does not so respond, summary judgment, if appropriate, shall be entered against him." Fed.R.Civ.P. 56(e). Where only partial summary judgment is appropriate, we may enter an order to that effect. Fed.R.Civ.P. 56(d).

Resolving all factual disputes in favor of plaintiff, the facts material to the resolution of this motion are as follows. On January 12, 1981, defendant Davis, as Director of Personnel for defendant City of Kansas City, Kansas, "the City" confirmed via letter that plaintiff had been hired as the City's "Employment Supervisor." The letter stated that plaintiff was to assume her duties as of January 19, 1981, and was to receive a salary of $18,000.00 per year.

The letter contained no information concerning any definite term of employment. Plaintiff contends, however, that she did receive defendant Davis' oral assurance that she would be employed for such a definite term. In an affidavit, plaintiff states that defendant Davis informed her of the duties she would be expected to perform. The affidavit then continues: "The term of employment agreed upon for me to accomplish these tasks was three years, with an open possibility of extension beyond that time." Through his own affidavit, defendant Davis denies that any such definite term of employment was ever discussed.

As agreed, plaintiff did commence her employment with the City on January 19, 1981. Eventually she became convinced that the City was failing to abide by various employment discrimination laws and guidelines. In particular, the City discriminated against its female employees on the basis of their sex. Plaintiff repeatedly objected to this discriminatory behavior. In response to her protests, defendants retaliated against plaintiff by subjecting her to unfavorable conditions of employment.

On May 20, 1983, plaintiff received formal notice of her termination. Although that was the last day on which she worked, her termination did not become effective until June 20, 1983. The notice of termination (prepared by defendant Davis) indicated that the reason therefor was "unprofessional conduct." That notice was placed in plaintiff's personnel file and in a separate personnel notebook. For purposes of this motion, of course, we must assume that this expressed reason for plaintiff's termination was (1) false, (2) a mere pretext for discrimination on the basis of plaintiff's sex, and (3) in retaliation for plaintiff's opposition to defendants' discriminatory employment practices. Plaintiff received no hearing at which she could dispute the factual basis for her termination.

Other persons were made aware of defendant Davis' comment regarding plaintiff's "unprofessional conduct." In the performance of their duties, at least three other City employees were informed of this comment. Defendant Davis also gave permission for the press to examine the personnel notebooks, including the notebook containing plaintiff's notice of termination. Finally, plaintiff herself revealed this comment to potential employers when directly asked why she left the City's employ. Plaintiff states that she chose to repeat this comment rather than be untruthful to her potential employers.

At some point, defendant Davis informed plaintiff that he would ruin her reputation and that she would never again function as a professional in the community. And indeed, since her termination, plaintiff has been unable to obtain a full-time professional position.

The City had apparently terminated the employment of other employees who had criticized its employment practices, and had also engaged in a pattern of sex discrimination. Plaintiff reports that a City ordinance required defendant Davis, as personnel director, to establish a grievance procedure for City employees, and that plaintiff participated in discussions regarding a plan to make that grievance procedure available to all employees. Plaintiff concedes, however, that such a plan was never officially adopted by the City council.

On May 16, 1984, plaintiff brought this action against both the City and defendant Davis. As stated in plaintiff's second amended complaint (and reiterated in the pre-trial order), plaintiff brings this action in seven counts. Count I seeks recovery under 42 U.S.C. § 1983, with allegations that defendants' conduct violated plaintiff's first amendment right to free speech, her fourteenth amendment right to equal protection of the laws, and her fourteenth amendment right to procedural due process in the deprivation of her property and liberty interests. Counts II, III, IV, V, and VI allege pendent state law claims, with waiver of sovereign immunity predicated upon the Kansas Tort Claims Act, K.S.A. 75-6101 to 75-6115. Substantively, these counts allege claims for defamation, wrongful discharge, outrage, intentional infliction of emotional distress, and negligent supervision, respectively. Count VII is based on Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and contains independent claims for discrimination on the basis of plaintiff's sex, 42 U.S.C. § 2000e-2(a), and retaliation on account of plaintiff's opposition to defendants' sexually discriminatory employment practices, 42 U.S.C. § 2000e-3(a). Under each of these seven counts, plaintiff seeks to recover both compensatory and, with the exception of Count VII, punitive damages.

I. Claims Based on Section 1983.
A. First Amendment Violation.

Plaintiff alleges that she was terminated in retaliation for her statements objecting to defendants' sexually discriminatory employment practices. It is now clear that "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); 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 can "be fairly characterized as constituting speech on a matter of public concern." Connick, 461 U.S. at 146, 103 S.Ct. at 1689. See also Pickering v. Board of Education, 391 U.S. 563, 571, 88 S.Ct. 1731, 1736, 20 L.Ed.2d 811 (1968); Owens, 586 F.Supp. at 41. To be protected, an employee's statements need not be communicated to the public; a public employee who arranges to communicate his views privately with his employer also enjoys first amendment protection. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415, 99 S.Ct. 693, 696, 58 L.Ed.2d 619 (1979).

Assuming an employee's statements do rise to the level of a public concern, the court must still balance "the interests of the employee, as a citizen, in commenting upon matters of public concern" against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Connick, 461 U.S. at 142, 103 S.Ct. at 1687 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). In each case, this balancing process must be conducted by the court. Connick, 461 U.S. at 150 & n. 10, 103 S.Ct. at 1691-92 & n. 10.

If this balance is found to weigh in favor of the employee, the employee still bears the burden of showing that his statements were a "substantial" or "motivating" factor in the unfavorable employment action. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Brown v. Reardon, 770 F.2d 896, 905 (10th Cir.1985); Childers, 676 F.2d at 1341. Should an employee meet this burden, the employer may still prevail if it meets the burden of showing, by a preponderance of the evidence, that it would have reached the same employment decision even in the absence of the protected statements. Doyle, 429 U.S. at 287, 97 S.Ct. at 576; Childers, 676 F.2d at 1341.

In the instant case, we have...

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