Thayer v. City of Holton

• Decision Date: 29 August 2007
• Docket Number: No. 06-4028-RDR.,06-4028-RDR.
• Citation: 515 F.Supp.2d 1198
• Parties: Richard J. THAYER, Plaintiff, v. CITY OF HOLTON; Brad Mears; and David Lanning, Defendants.
• Court: U.S. District Court — District of Kansas

515 F.Supp.2d 1198

Richard J. THAYER, Plaintiff, v. CITY OF HOLTON; Brad Mears; and David Lanning, Defendants.

No. 06-4028-RDR.

United States District Court, D. Kansas.

August 29, 2007.

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Bradley L. Hemsley, Randall J. Forbes, Frieden & Forbes, Topeka, KS, for Plaintiff,

J. Steven Pigg, Terelle A. Mock, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

Plaintiff alleges that he was terminated from his position as a dispatcher in retaliation for the exercise of his First Amendment rights to freedom of speech and because of his age. Plaintiff brings this action against: the City of Holton; David Lanning, the Chief of Police of the City of Holton; and Brad Mears, the City Manager of the City of Holton. Plaintiff alleges a violation of 42 U.S.C. § 1983 and the Age Discrimination in Employment Act (ADEA), 28 U.S.C. § 621.

UNCONTROVERTED FACTS

Plaintiff was born in 1960. He began working for the City of Holton in 1985 as a dispatcher and held that position until September 7, 2005 when he was terminated against his will. When plaintiff was terminated, defendant Lanning was the Chief of Police and defendant Mears was the City Manager. Defendant Lanning had been Chief of Police since 2000. The City of Holton is a relatively small town. The Holton Police Department had seven police officers in 2005.

A female Holton resident named Rustie Miller tape-recorded two conversations she had with plaintiff. Plaintiff did not know the conversations were being recorded. The first recorded conversation occurred in June 2005. In the conversation, plaintiff referred to defendant Lanning as a "dumb college boy," a "dumb son-of-a-bitch," a "big shot," and a "know-it-all." He also accused defendant Lanning of searching for pornography on the Internet.

In late June 2005, Miller contacted defendant Lanning and played the tape of the June recorded conversation with plaintiff. Prior to this, defendant Lanning had dealt with complaints Miller had made to the police department about loud music, noise and speeding, as well as complaints about one of the City of Holton police officers, Officer Budde.

On July 5, 2005 defendant Lanning posted a memorandum in the police station which stated in part:

It has been brought to my attention that there have been derogatory conversations with some people within this community in reference to members of this agency. I cannot put into words how disappointing this is. Like any group, there will be disagreements and conflicts, however airing those issues with members of the public outside the department is unacceptable.

I would refer you to HPD General Order M1201-13. "Members shall support the policies, procedures, and orders, of the Holton Police Department and shall not criticize or ridicule the Department, its policies, procedures, orders, or PERSONNEL by speech, writing, or other expression where such interferes with the maintenance of discipline or otherwise undermines the morale and effectiveness of the Department".

Defendant Lanning did an evaluation of plaintiff for the year ending July 13, 2005. He discussed the evaluation with plaintiff. The evaluation states in part:

Has of late been involved in gossip and communications with individuals within the community about co-workers that negatively reflect on this agency. Personal opinions should be kept to one's self or addressed directly so those issues may be resolved for the benefit of the organization.

Under the title "Mutually Understood Goals" the evaluation states: "Will cease talking to members of the public about personnel issues with co-workers. Those issues that need to be addressed should be done through the chain of command."

The second conversation with plaintiff tape-recorded by Miller occurred on August 13, 2005. Plaintiff's wife was also present during the conversation. It was a rambling discourse. In part, it concerned: a claim Miller had made against the City; how Miller should proceed with the claim; whether she should settle; how the City would handle the claim; and how defendant Lanning and others might react to the claim and to Miller. During this talk, plaintiff referred to defendant Lanning as a "prick" and "dumber than a fucking ..." Plaintiff referred to defendant Mears as a "gutless piece of shit." Plaintiff also said that Marlin White, the Holton city attorney, was "worthless as tits on a boar hog." Plaintiff encouraged Miller to pursue the claim which regarded the alleged actions of Officer Budde, although he advised her not to go to the newspaper with it. To reiterate, plaintiff did not know that Miller was recording these comments or that she would reveal the contents of the conversation to anyone.

However, defendant Lanning was provided a tape of the second recorded conversation. After listening to the tape, defendant Lanning considered taking action against plaintiff. He consulted a book regarding the rights of police officers, and he consulted with defendant Mears and city attorney White. He was advised by city attorney White that he could fire plaintiff on the basis of plaintiff's recorded comments because those statements were not protected by the First Amendment.

On September 7, 2005 defendant Lanning met with plaintiff and gave him the choice of resigning or being terminated. Plaintiff refused to resign and was terminated. The city attorney wag present at the meeting. The letter of termination stated:

It has been brought to my attention that you were involved in a conversation with a member of the public on or about August 13, 2005. This conversation took place on the square area of Holton, which is a public place. During the conversation you were clearly critical of myself by saying "he's dumber than a fucking ..." You were critical of Mr. Mears by saying he was a "prick" and that he is "a gutless piece of shit." Also you were critical of Mr. White by saying he was "worthless as tits on a boar hog." However, most disturbing was that you encourage a person who was threatening legal action against the City of Holton and the Holton Police Department not to settle or enter into negotiations to resolve the matter by stating "Don't do it. I'd fucking hang tough. They need to be taught a lesson" in addition to other derogatory statements.

By involving yourself in this conversation you are in violation of HPD General Order M1201-8, Conduct unbecoming; HPD General Order M1201-13, Criticism of Policies and Procedures And/Orders; HPD General Order M1201-15.3, Dissemination of information; HPD General Order M1201-50, Holton Personnel Code.

Due to the serious nature of these violations and the fact that you had previously been counseled about making derogatory comments about the Holton Police Department and it's personnel in the past, I am at this time notifying you that it is my intention to terminate your employment with the City of Holton effective immediately. I have attached a copy of the City of Holton grievance procedure for your review. I am also including a copy of the transcript of the conversation.

A regulation governing the Holton Police Department provides that members of the department shall conduct themselves on duty and off duty in such a manner as to reflect most favorably on the Department. "Conduct unbecoming a police officer shall include that which brings the Department into disrepute or reflects discredit upon the officer as a member of the Department or that which impairs the operation or efficiency of the Department or member." General Order M1201-8.

Another regulation states that members of the department shall not criticize or ridicule the Department or its personnel by speech, writing or other expression "where such interferes with the maintenance of discipline or otherwise undermines the morale and effectiveness of the Department." General Order M1201-13.

Defendant Lanning believed that plaintiff had violated these regulations with his comments to Rustle Miller. Defendants also assert that plaintiff was subject to discipline under the personnel policies of the City of Holton which provide for disciplinary action against "[d]iscourteous or disruptive conduct or other offensive behavior in public, to the public or to employees and officers of the city."

Plaintiff filed a grievance with the City of Holton over his termination. The grievance did not allege age discrimination. The grievance was denied.

Plaintiff claims that defendant Lanning made a comment in June of 2005 that the department was "getting too many old-timers around here. Need to get rid of a few of them." Plaintiff stated that an "old-timer" was someone who had been with the department for a long time, regardless of their actual age. At the time of his termination, plaintiff had been with the department longer than all of the employees except one. Plaintiff, who was 45 years old when he was terminated, was replaced by a 40-year-old woman.

Officers must rely upon dispatchers for their personal safety. It is important for officers to be able to trust dispatchers and for dispatchers to be able to trust the officers because lives are at risk.

In the summer of 2005 plaintiff and his wife had numerous conversations with Rustie Miller which were instigated by Miller and during which she pleaded for their help. During these conversations, Miller would complain about being harassed by Officer Budde and being in fear of her life. Plaintiff and his wife advised Miller on numerous occasions to speak to defendant Lanning or defendant Mears or the city attorney or the mayor. Plaintiff also recommended that Miller seek legal counsel.

Rustie Miller made a complaint that Officer Budde had unholstered his weapon in order to scare Miller. Defendant Lanning had the complaint investigated. He received a written memorandum about the alleged incident from Officer Budde and spoke directly to Officer Budde...