Scott v. City of Overland Park

• Decision Date: 11 September 1984
• Docket Number: Civ. A. No. 83-2219.
• Parties: Cindy S. SCOTT, Plaintiff, v. The CITY OF OVERLAND PARK, et al., Defendants.
• Court: U.S. District Court — District of Kansas

595 F. Supp. 520

Cindy S. SCOTT, Plaintiff, v. The CITY OF OVERLAND PARK, et al., Defendants.

Civ. A. No. 83-2219.

United States District Court, D. Kansas.

September 11, 1984.

COPYRIGHT MATERIAL OMITTED

Arthur E. Palmer, Harold S. Youngentob, Les E. Diehl of the firm of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, Kan., for plaintiff.

Donald C. Ramsay, Mark D. Hinderks of the firm of Weeks, Thomas & Lysaught, Kansas City, Kan., Phillip L. Harris, Neil R. Shortlidge, Overland Park, Kan., for defendant City of Overland Park.

Jack W.R. Headley, Karen M. Iverson of the firm of Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., Michael Norris of the firm of Lathrop, Koontz, Righter, Claggett & Norquist, Overland Park, Kan., Robert A. DeCoursey, Kansas City, Kan., for defendant Donald E. Pipes.

Mary Cracraft, John J. Yates of the firm of Gage & Tucker, Kansas City, Mo., Stephen A. Murphy, Phil M. Cartmell, Jr., R. Scott Beeler of the firm of Gage & Tucker, Overland Park, Kan., for defendant Myron Scafe.

MEMORANDUM AND ORDER

O'CONNOR, Chief Judge.

This matter is before the court on defendant Pipes' motion for summary judgment; defendants City of Overland Park, Pipes, and Scafe's motion for summary judgment; defendant Scafe's motion to dismiss the Title VII claim; defendants' motion to dismiss claims barred by the statute of limitations; and defendants' motion to dismiss plaintiff's claims of retaliation under Title VII.

Plaintiff is a police officer with the Overland Park Police Department. She has sued the City of Overland Park, Chief of Police Myron Scafe, and City Manager Donald E. Pipes for sex discrimination pursuant to 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1983 and 1985(3). She alleges that she has been sexually harassed, denied promotion and training, and retaliated against for filing an EEOC charge and this lawsuit.

Summary judgment may be granted when the court is satisfied 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." Fed.R. Civ.P. 56. Pleadings and documentary evidence are to be construed liberally in favor of the party opposing summary judgment. Harman v. Diversified Medical Investments Corp., 488 F.2d 111 (10th Cir.1973), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976). The movant must demonstrate beyond a reasonable doubt that he is entitled to summary judgment. Madison v. Deseret Livestock Co., 574 F.2d 1027 (10th Cir.1978); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33 (10th Cir.1975).

When considering a motion to dismiss, the factual allegations of the complaint must be taken as true, and all reasonable inferences must be indulged in favor of plaintiff. Mitchell v. King, 537 F.2d 385 (10th Cir.1976); Dewell v. Lawson, 489 F.2d 877 (10th Cir.1974). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Kennedy v. Meacham, 540 F.2d 1057 (10th Cir.1976); Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir.1973).

Defendant Pipes has moved for summary judgment on the basis that he has qualified good faith immunity and that he is not subject to suit on plaintiff's Title VII claim because he was not named in the charge. Defendant Pipes filed an affidavit in connection with his motion for summary judgment. Subsequently, he filed a motion for leave to file a corrected affidavit, along with the corrected affidavit. The motion for leave to file corrected affidavit is granted.

Defendant Pipes is the city manager of Overland Park, and in that capacity he has the ultimate authority for promotions in the police department. The City of Overland Park has an elaborate promotion procedure in which eligible candidates are given both a written and a psychological examination. The Civil Service Commission also rates the candidates' personnel files and conducts an interview. The candidates participate in an assessment center in which their behavior is analyzed, and they are given a score on this procedure. The Civil Service Commission rates the candidates at the end of this process, and gives final scores and ratings to the city manager. The chief of police also makes his recommendations to the city manager. The city manager conducts interviews of the candidates and, on the basis of all of this information, makes the final selections for promotion. Defendant Pipes claims that he acted in good faith in that he neither created the promotion process nor designed or administered the examinations.

Pipes' position is that he was "isolated from every phase of the promotion process until he received and acted upon the ranked list of final candidates." We are not persuaded by this argument. As city manager, defendant Pipes had the final authority to make promotions and, in fact, interviewed the candidates. He cannot insulate himself from liability merely by not participating in the examination process. He personally participated in the promotions. He interviewed the candidates and made his determination based not only on the Civil Service Commission rankings, but also on his subjective evaluation.

Defendant Pipes is not entitled to qualified immunity in this action. In the case of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court established the standard for qualified good faith immunity:

We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id. at 818, 102 S.Ct. at 2738.

Plaintiff has alleged causes of action against defendant Pipes pursuant to Title VII and 42 U.S.C. § 1983. Her Title VII claim is that she was discriminated against on the basis of her sex. Her § 1983 claim is that the defendants violated her constitutional rights under color of state law, specifically that they violated the Equal Protection Clause of the Fourteenth Amendment. The law regarding sex discrimination is clearly established. Furthermore, defendant Pipes, in his position as city manager and as the person who is in charge of administering the city's affirmative action plan, is in a position to know what the requirements of the law are in this area.

Defendant Pipes cites Davis v. Scherer, ___ U.S. ___, 104 S.Ct. 3012, 82 L.Ed.2d 139, for the proposition that he had reasonable grounds for not knowing that his actions violated clearly established standards of conduct in relation to plaintiff. In Davis, the plaintiff had allegedly been deprived of due process in connection with his termination from the police department. The Court found that although plaintiff clearly had a right to due process, the kind of hearing required to provide him due process was not clearly established. The situation here is vastly different. Plaintiff alleges that she was not promoted because of her sex. "The right to be free of invidious discrimination on the basis of sex certainly is clearly established, and no one who does not know about it can be called `reasonable' in contemplation of law." Goodwin v. Circuit Court of St. Louis County, Missouri, 729 F.2d 541, 546 (8th Cir.1984). See also Williams v. City of Montgomery, 742 F.2d 586, 589 n. 4 (11th Cir.1984).

Defendant Pipes is, however, entitled to summary judgment on plaintiff's claims of sexual harassment and retaliation. Pipes has presented evidence that he did not personally participate in, or have any knowledge of, any sexual harassment of plaintiff or any attempts at retaliation against her. Plaintiff has presented no evidence to the contrary. She cannot rest on bare allegations of pleadings and survive summary judgment. Therefore, Pipes is entitled to summary judgment on plaintiff's claims of sexual harassment and retaliation under 42 U.S.C. § 1983 and Title VII.

Defendant Pipes also claims that plaintiff can have no cause of action against him under Title VII because she did not name him in her charge. In Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir.1980), the Tenth Circuit established factors to be evaluated in determining whether or not a party should be dismissed for failure to name him in the administrative charge. These factors are:

(1) Whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;

(2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;

(3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;

(4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id. at 1311-12.

The administrative charge "must be liberally construed in order to accomplish the purposes of the Act, since such complaints are written by laymen not versed either in the technicalities of pleading or the jurisdictional requirements of the Act." Id. at 1311. In examining these factors we note that the role of Pipes as city manager could have been ascertained by the complainant at the time of the filing of the EEOC complaint, inasmuch as he actually interviewed the complainant for the promotion. Therefore, this factor weighs in favor of the defendant. However, the second and third factors weigh in favor of the plaintiff in that the city manager's interests are similar to those of the city and we cannot say that he was actually prejudiced in not being named in the charge. He had knowledge of the EEOC...