Young v. Sedgwick County, Kan.

• Decision Date: 27 May 1987
• Docket Number: Civ. A. No. 86-1179-T.
• Citation: 660 F. Supp. 918
• Court: U.S. District Court — District of Kansas
• Parties: Dr. Margaret YOUNG, Plaintiff, v. SEDGWICK COUNTY, KANSAS, et al., Defendants.

660 F. Supp. 918

Dr. Margaret YOUNG, Plaintiff, v. SEDGWICK COUNTY, KANSAS, et al., Defendants.

Civ. A. No. 86-1179-T.

United States District Court, D. Kansas.

May 27, 1987.

COPYRIGHT MATERIAL OMITTED

Fred W. Phelps, Elizabeth M. Phelps, Phelps-Chartered, Topeka, Kan., for Dr. Margaret Young.

Edward L. Keeley, Crockett, Keeley & Gilhousen, Wichita, Kan., for Sedgwick County, Kan., Sedgwick County Bd. of County Com'rs and Timothy Witsman.

Michael R. Meacham, Wichita, Kan., for Michael R. Brand, Jeffrey D. Loane, Mary Ann Mamoth, and Joseph Cotton.

OPINION AND ORDER

THEIS, District Judge.

This is an action by a former employee of Sedgwick County, Kansas, against seven defendants for alleged employment discrimination under Title VII, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., 42 U.S.C. § 1983, and 42 U.S.C. § 1981. Dr. Margaret Young claims that she was discriminated against on the basis of sex, race and age, that she was retaliated against for complaining of such discrimination, and that her First Amendment rights were violated. The defendants deny Young's contentions and assert that her employment was terminated because of poor work performance. The case is presently before the Court on Sedgwick County's motion for summary judgment, Forest Tim Witsman's motion for summary judgment, the Sedgwick County Board of Commissioners' motion for summary judgment, Mary Ann Mammoth's and Joseph Cotton's motion for summary judgment, and Michael R. Brand's and Jeffery D. Loane's motion for partial summary judgment.

Plaintiff has moved for an order requiring the defendants to file a complete copy of the entire discovery record with the Clerk of the Court. Neither Rule 56 of the Federal Rules of Civil Procedure nor Rule 15(c) of the Rules of Practice of the United States District Court for the District of Kansas require that all discovery be filed any time a motion for summary judgment is filed. Mason v. Twenty-Sixth Judicial District of Kansas, No. 86-2103-S (D.Kan., unpublished, April 9, 1987). Local Rule 15(c) requires only that pertinent portions of the record which form the basis for the summary judgment motion accompany the motion as appendices or exhibits. Plaintiff's motion requesting all discovery to be filed shall be denied.

The Court is familiar with the standards governing consideration of motions for summary judgment. Summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of fact is "material" only when the dispute is over facts that might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly substantiated motion for summary judgment. Id. A party resisting a motion for summary judgment must do more than advance conclusory allegations; it must set forth specific facts showing that there is a genuine issue for trial. Dart Industries, Inc. v. Plunkett Co., 704 F.2d 496, 498 (10th Cir.1983). The court must consider the record in the light most favorable to the non-moving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). If the only issue remaining is one of law, summary judgment is appropriate. Union Pacific Land Resources Corp. v. Moench Investment Co., Ltd., 696 F.2d 88, 93 (10th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1776, 76 L.Ed.2d 348 (1983).

I. FOREST TIM WITSMAN

The following facts are uncontroverted. Forest Tim Witsman was the County Administrator during the period of Young's employment. At the time of Young's termination, Witsman duties included overseeing seven county bureaus which contained twenty-nine county departments, one of which was the Community Corrections Department where Young worked. Witsman was responsible for approximately 1,250 county employees.

Young was employed as an evaluator in the Community Corrections Department from September 8, 1983, to November 15, 1985. From the date of her hiring until February of 1985, Young's immediate supervisor was defendant Michael Brand, who was the Assistant Director of Community Corrections during that period. In February of 1985, Brand became the Director of the Department. In April of 1985, defendant Jeffery Loane was hired as Assistant Director. Loane was Young's immediate supervisor until her termination.

Although Sedgwick County Resolution No. 119-1985, adopted April 17, 1985, by the County Commission, gave the County Administrator the ultimate authority to employ, evaluate, discipline and terminate employees within the twenty-nine departments for which he was responsible, of necessity Witsman relied on bureau chiefs and department heads to discipline and terminate employees within their own departments. Witsman intervened only if he had information to believe the action taken was improper. Witsman signed the Personnel Resolution form documenting the end of Young's employment.

Witsman did not know Young. He was never Young's supervisor during her employment. Young never complained to Witsman about discrimination. Shortly after Young's termination, Witsman believes that Brand advised him that Brand had terminated Young for poor work performance. Witsman asked whether Brand had sufficient documentation and reason for terminating Young, to which Brand replied that he did. Witsman did not participate in the drafting of the letter by Brand informing Young of her termination, nor did he see it prior to this action. Brand did not advise Witsman of any allegations by Young of discrimination or improper conduct. Witsman does not remember anyone ever advising him that Young had made such charges.

The plaintiff alleges that Senator Norma Daniels presented Young's resume to Witsman at a gathering of local legislators in December of 1985, and that Witsman then shook his head from side to side. Witsman responds that although he talked to Senator Daniels, he never discussed Young with Senator Daniels. Witsman states that if he shook his head while talking to Senator Daniels, it was not in response to any statement concerning Young.

A. § 1983 and § 1981

Young contends that Witsman is liable under 42 U.S.C. § 1983 because he possessed final authority with respect to Young's termination and because he approved and ratified her termination. Both sides acknowledge that Witsman may not be held liable vicariously for the alleged constitutional violations of his subordinates. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Mclelland v. Facteau, 610 F.2d 693, 697 (10th Cir.1979), the Tenth Circuit held that "when the defendant is in a position of responsibility, knew or should have known of the misconduct, and yet failed to act to prevent future harm, liability accrues under § 1983."

Young refers to this Court's opinion in Wulf v. City of Wichita, 644 F.Supp. 1211, 1226 (D.Kan.1986), in which this Court found the defendant city manager to be liable under § 1983:

Wulf has established the personal liability of defendant Gene Denton. Denton testified that in his position as City Manager he was the final adjudicator of Wulf's rights. Denton ratified LaMunyon's decision to fire Wulf three times. From his initial knowledge of Wulf's termination to his final ratification of that termination, Denton chose not to require meaningful fact-finding. Even though he had been apprised of the allegations in Wulf's letter to the Attorney General. ... Denton not only acquiesced in, he directly ratified, LaMunyon's unconstitutional actions.

Contrary to Young's reading of the case, Wulf does not stand for the proposition that ratification of allegedly unconstitutional actions, without more, is sufficient to incur liability under § 1983. In Wulf the city manager had been apprised of the allegations that the police chief's actions were unconstitutional, and was involved at three separate junctures in Wulf's termination.

In the instant case, Witsman apparently had delegated the final authority to terminate employees to the department heads. His role in Young's termination was confined to signing the Personnel Resolution form documenting the end of her employment. When Brand advised Witsman that he was terminating Young for poor work performance, Witsman properly inquired whether there was sufficient cause and documentation for her termination. Young makes no supportable allegations that Witsman was or should have been aware of her complaints of discrimination. Knowing that someone will be fired and being in a position to prevent that firing, without knowing that the potential firing is in any way improper, is insufficient to impose liability under § 1983. Howard v. Topeka-Shawnee County Metropolitan Planning Commission, 578 F.Supp. 534, 541 (D.Kan.1983). Young makes some conclusory allegations with respect to whether Senator Daniels gave plaintiff's resume to Witsman. Even assuming all that Young represented in her deposition is true — that Senator Daniels was holding Young's resume when she spoke with Witsman, and that during the course of the conversation Witsman shook his head — this is insufficient to raise a material factual question as to Witsman's liability under § 1983, given that Young admitted she could not hear the conversation, and given Witsman's affidavit testimony that he and Senator Daniels did not discuss Young. The Court shall grant Witsman's motion for summary judgment with respect to Young's § 1983 claim. Young's § 1981 claim must be dismissed, since she has failed to...