Spiess v. Fricke, 04-2458.
| Decision Date | 13 September 2005 |
| Docket Number | No. 04-2458.,04-2458. |
| Citation | 386 F.Supp.2d 1178 |
| Parties | Dale SPIESS, Plaintiff, v. Howard FRICKE, Dan Etzel, and Duane Goossen, Defendants. |
| Court | U.S. District Court — District of Kansas |
Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff.
Carol B. Bonebrake, Susan L. Mauch, Cosgrove, Webb & Oman, Topeka, KS, for Defendants.
Dale Spiess brings suit under 42 U.S.C. § 1983 against Howard Fricke, former Secretary of Administration for the State of Kansas; Dan Etzel, Fiscal Manager for the Division of Facilities Management; and Duane Goossen, Secretary of Administration for the State of Kansas. Plaintiff seeks damages from Fricke and Etzel in their personal capacities and injunctive relief from Goossen in his official capacity. Specifically, plaintiff claims that (1) Fricke terminated his employment in retaliation for his exercise of First Amendment rights to free speech; (2) Etzel failed to rehire him in retaliation for his exercise of First Amendment rights to free speech; and (3) Goossen should be required to reinstate him as Director of the Central Motor Pool. See Pretrial Order (Doc. # 45) at 9, entered on May 9, 2005. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. # 46) filed May 13, 2005, and Plaintiff's Motion For Leave To File A Surreply In Opposition To Defendants' Motion For Summary Judgment (Doc. # 54) filed July 25, 2004. For the reasons stated below, defendants' motion is sustained in part and overruled in part. Plaintiff's motion is sustained.
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 the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). 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." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
On January 21, 2000, the Kansas Department of Administration ("Department") hired plaintiff as Director of the Central Motor Pool ("CMP") or Motor Pool Manager, an unclassified at-will position. From January of 2002 until his termination on May 7, 2004, plaintiff reported to Joe Fritton, Deputy Director of Facilities Management, who reported to Keith Meyers, Director of Facilities Management. Meyers reported to Carol Foreman, Deputy Director of Administration, who served under Fricke, the Secretary of Administration from January of 2003 to August of 2004. Goossen replaced Fricke in August of 2004. Etzel, who reported to Meyers along with Fritton, was Fiscal Manager for DFM from January of 2001 to January of 2005.
After her election in November of 2002, Governor Kathleen Sebelius organized a "BEST" team of volunteers to evaluate government activities and find opportunities for greater efficiency. Within the DFM, the BEST team targeted the CMP — which managed vehicles that were permanently assigned, dispatched or rented to state agencies — as an area for change. On November 13, 2003, the Administration announced that it was disbanding the CMP dispatch-rental operation and reducing CMP duties to information tracking, tagging and registration, refueling, maintenance and repair and Van Pool operations.1 The Administration estimated that the change in CMP functions, along with the sale of dispatch vehicles and a moratorium on vehicle purchases, would save roughly $8.6 million.2 As a result of the reorganization, the Department laid off a number of employees. In early 2004, however, Fricke told Department employees that the major reorganization was complete and that the Department planned no more layoffs or department eliminations.
Plaintiff disagreed with the reorganization and questioned its future cost and true savings. He voiced his concerns to Fricke, Etzel, Meyers, Fritton and State Senator Dave Kerr, who was a member of the Kansas Legislative Post Audit Committee ("Post Audit Committee"). Plaintiff told Fricke that the reorganization would cost the State "tens and tens of thousands in additional dollars." Plaintiff's depo., p. 192, 6-8. Plaintiff also disagreed with Fricke on what costs the Administration used in calculating the "Motor Pool rate."3
Plaintiff complained to Etzel about a similar issue involving the Van Pool. Plaintiff objected that parking and some administrative expenses should be disregarded in determining whether the Van Pool was self-supporting. Plaintiff also believed that Van Pool depreciation funds, which the CMP used for capital upkeep on the vans, belonged to the fee-paying passengers and not the State. He felt that Van Pool funds were essentially owned by Van Pool passengers, and he therefore complained to Etzel about the possibility that Van Pool funds could be transferred to the State general fund. The Department took a different view, i.e. that the State had purchased the vans and the Van Pool was merely reimbursing the State for vans in use at that time.
In late 2003, Fritton (plaintiff's supervisor) and Caleb Asher (the Department Public Information Officer) anticipated an inquiry by the Post Audit Committee. They instructed plaintiff to refer all requests for information to the Secretary's office. Plaintiff disagreed with this instruction because he felt that he had a right to provide information without Department approval. On November 20, 2003, the Post Audit Committee instructed its audit agency, the Legislative Division of Post Audit ("Post Audit"), to determine whether the Department had considered all significant and relevant cost savings in changing the CMP functions. On November 26, 2003, plaintiff sent Fritton an email which indicated his intent to give Post Audit all requested information without Department approval. Fritton responded that pursuant to Department procedure, plaintiff should refer all inquiries to the Public Information Officer. Fritton stated that plaintiff could freely express concerns as a private individual, but he also told plaintiff "you know you probably signed your death warrant with this division."4 Spiess depo. at p. 111. At some point, Fritton also told plaintiff that he needed to be more of a "team member" in implementing the reorganization. Fritton depo., at 93, 1.1-11.
Six weeks later, on January 7, 2004, plaintiff received a voice-mail message from a staff member in Fricke's office, instructing him to provide all information which Post Audit requested. The instruction did not indicate whether Fricke knew of plaintiff's email exchange with Fritton.5
In January of 2004, the CMP began operating in its reduced role, which included maintenance and repair services. Meyers expected to have at least seven CMP employees working in the maintenance garage. On February 4, 2004, Meyers directed Fritton and Etzelto prepare a detailed list of continuing CMP functions. The list, which Meyers approved, included information tracking, operations and contract administration. On February 8, 2004, Meyers approved Etzel's recommendation that plaintiff and Sherry Rentfro, a classified civil servant employed as a Management Systems Analyst I, begin planning to implement the continuing CMP functions.
On February 9, 2004, Post Audit released its report, which contained information supplied by plaintiff and referred to him as its source.6 Department officials then met to discuss their response. Although Etzel was aware of plaintiff's cooperation with Post Audit, he did not discuss the matter at the meeting. None of the meeting participants (including Fricke and Etzel) referred to plaintiff or other CMP staff. Upon reviewing the report, however, Fricke had notice that plain...
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Spiess v. Meyers
...to hire him to fill the vacant position of Management Systems Analyst II in the Kansas Central Motor Pool. See Spiess v. Fricke, 386 F.Supp.2d 1178 (D.Kan.2005) ("Spiess I"). On September 13, 2005, the Court sustained in part defendants' motion for summary judgment.1 Subsequently, plaintiff......