Spiess v. Meyers

• Decision Date: 10 April 2007
• Docket Number: Civil Action No. 06-2175-KHV.
• Parties: Dale E. SPIESS, Plaintiff, v. Keith MEYERS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

483 F.Supp.2d 1082

Dale E. SPIESS, Plaintiff, v. Keith MEYERS, et al., Defendants.

Civil Action No. 06-2175-KHV.

United States District Court, D. Kansas.

April 10, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff.

Carol B. Bonebrake, Susan L. Mauch, Cosgrove, Webb & Oman, Patrick J. Hurley, Kansas Department of Administration/Legal, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Dale E. Spiess brings suit against Keith Meyers and Carol Foreman under 42 U.S.C. § 1983. Plaintiff alleges that defendants retaliated against him by declining to hire him because he exercised his right to free speech under the First Amendment. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. # 18) filed December 7, 2006 and Plaintiff's Motion For Leave To File A Surreply Memorandum In Opposition To Defendant's Motion For Summary Judgment (Doc. # 36) filed March 19, 2007. For reasons stated below, the Court overrules the motions.

Summary Judgment Standards

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 that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); 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, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets this 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 Sec., 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 his 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 parties 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.

Factual Background

The following material facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.

On September 16, 2004, plaintiff filed suit in this Court against Duane Goossen (Secretary of the Kansas Department of Administration ("KDA")), Howard Fricke (former Secretary of the KDA) and Dan Etzel (management-level KDA employee) alleging in part that defendants had retaliated against him in violation of the First Amendment by wrongfully failing 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 and Goossen entered into a settlement agreement which plaintiff signed on September 21, 2005, and Goossen signed on November 14, 2005.² See Settlement Agreement And Full And Final Release, attached as Exhibit 9 to defendants' Memorandum Of Law In Support Of Defendants' Motion For Summary Judgment ("Defendants' Memorandum") (Doc. # 19) filed December 7, 2006. The settlement agreement provides in pertinent part as follows:

2. Dismissal of Pending Lawsuit by Spiess

In consideration for the payment set forth above in paragraph 1, Spiess agrees that upon receipt of said payment, he will dismiss the pending lawsuit and authorize his counsel to sign a Stipulation of Dismissal and any other documents necessary to accomplish the dismissal.

3. Release and Discharge by Spiess In further consideration for the payment set forth above, Spiess, his family members, heirs, successors and assigns (hereinafter "Releasing Parties"), hereby agree to RELEASE AND FOREVER DISCHARGE Howard Fricke, Duane Goossen, the State of Kansas, and/or the Department of Administration of and from any and all claims, assertions, demands, damages, liabilities, actions, or causes of action of whatever kind or nature, whether now known, unknown, or unanticipated, whether now in existence or which may develop at some time in the future, which in any way arise out of, are connected to or related to Spiess' exercise of his right to free speech, or any other rights or claims that Spiess has or may have had against Howard Fricke, Duane Goossen, the State of Kansas and/or the Department of Administration, for acts or omissions related to his employment as Director of the Central Motor Pool, decisions concerning the Central Motor Pool and Van Pool and/or expressed in his pending lawsuit.

Spiess and other Releasing Parties waive any rights and claims against Howard Fricke, Duane Goossen, the State of Kansas and/or the Department of Administration that he might be able to assert under any city ordinance or state, federal or common law relating to employment, breach of contract, or discrimination in employment including but not limited to, discrimination related to disability, handicap, race, religion, sex, equal pay, national origin, creed, color, and retaliation discrimination, including but not limited to claims under ... all ... local, state, and federal laws which are meant to protect employment relationships and under which Spiess may have rights and claims with respect to the matters described in the immediately preceding paragraph.

4. Waiver of Rights for Unsuccessful Applications

In further consideration of the payment set forth above, Spiess and the other Releasing Parties hereby agree to waive any and all future rights or claims for wrongful failure to hire, retaliation, or any other cause of action arising out of unsuccessful applications for employment made by Spiess against the Kansas Department of Administration, Kansas Department of Commerce or any other State of Kansas agency where Howard Fricke might serve. This waiver applies to claims against the State of Kansas, the Kansas Department of Commerce, any other State of Kansas agency where Howard Fricke might serve, and any employees, representatives and agents of those agencies.

This waiver shall remain in force and effect during the entire Administration of Governor Kathleen Sebelius. * * *

8. Entire Agreement

This agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supercedes any prior agreements or understandings, written or oral.

9. Binding Agreement

This agreement shall be binding upon the parties hereto.

10. Law of Kansas

This agreement shall be construed, enforced and governed in all respects by the laws of the State of Kansas.

11. Acknowledgment

Spiess acknowledges that he has carefully read this Agreement, that he has been advised in writing by this Agreement to consult with an attorney, that he understands all of its provisions and effect of his action in executing it, and that his execution of this agreement is knowing and voluntary.

Id. On November 21, 2005, the parties filed a joint stipulation of dismissal, which the Court granted on November 28, 2005.

Here, plaintiff brings suit under Section 1983 against Keith Meyers and Carol Foreman in their individual capacities alleging retaliatory wrongful failure to hire in violation of the First Amendment. Specifically, the complaint alleges that plaintiff expressed an interest in applying for the vacant position of Management Systems Analyst II in the Kansas Central Motor Pool, that Meyers and Foreman knew of this interest, and that they participated in the decision not to hire plaintiff to fill that position. The complaint does not allege that plaintiff formally applied for the position, only that he expressed an interest in applying for the position. The record contains no evidence that plaintiff actually applied for the vacant position of Management Systems Analyst II.

Meyers is an employee of the Kansas Department of Commerce ("KDC"). On July 10, 2006, plaintiff obtained a summons which named Meyers and listed his address as "Keith Meyers, c/o KS Attorney General, Phill Kline, 120 SW 10th Ave., 2nd Floor, Topeka, KS 66612-1297." See Summons And Return Of Service, attached as Exhibit 7 to Defendants' Memorandum (Doc. # 19). The return of service indicates that plaintiff delivered the summons by certified mail to "Keith Meyers, Curtis State Office Bldg, 1000 SW Jackson, Ste 500, Topeka, KS 66612" on July 14, 2006, and that John K. Perkins...