Zinn v. McKune

• Decision Date: 06 December 1996
• Docket Number: No. 95-2429-JWL.,95-2429-JWL.
• Citation: 949 F.Supp. 1530
• Parties: Jerilyn ZINN, Plaintiff, v. David McKUNE, et al., Defendants.
• Court: U.S. District Court — District of Kansas

949 F.Supp. 1530

Jerilyn ZINN, Plaintiff, v. David McKUNE, et al., Defendants.

No. 95-2429-JWL.

United States District Court, D. Kansas.

December 6, 1996.

Bert S. Braud, Jane McQueeny, The Popham Law Firm, Kansas City, MO, for plaintiff Jerilyn Zinn.

John D. Tongier, Holbrook, Heaven & Fay, P.A., Merriam, KS, for defendant Prison Health Services, Inc.

Linden G. Appel, Kansas Department of Corrections, Topeka, KS, for defendants David McKune and State of Kansas Department of Corrections, Lansing Facility, Fritz Young.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction.

This employment discrimination case comes before the court on the defendants' motion (Doc. #52) to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed. R.Civ.Pro. 56. The plaintiff asserts (1) that she was retaliated against for engaging in activity protected under Title VII, (2) that she was retaliated against after "blowing the whistle" on what she perceived as improper use of state property, and (3) that her Fourteenth Amendment Equal Protection and Due Process rights were violated. The defendants argue, among other things, that the plaintiff's retaliation claims fail because they are not her employer and that the plaintiff's § 1983 claim fails because she was not deprived of any clearly established federal rights. For the reasons discussed below, the court grants the defendants' motion for summary judgment.

II. Facts.

The following facts are either uncontroverted or, if controverted, construed for the purposes of resolving this motion in the light most favorable to the plaintiff. On June 22, 1994, the Kansas Department of Corrections (KDC), a state agency, entered into a contract (Contract) with Prison Health Services, Inc. (PHS), a private corporation, which stated that PHS agreed to provide medical services for incarcerated individuals in the custody of the Kansas Secretary of Corrections. The Contract provided that if the KDC was dissatisfied with any PHS employee provided under the Contract, KDC could seek the person's removal if the problem causing KDC's dissatisfaction could not be resolved. Plaintiff's response, Exhibit D Art. IV ¶ B. Pursuant to the Contract, the plaintiff, a female nurse employed by PHS, was assigned to run the medical clinic at the Osawatomie Correctional Facility (OCF).

By virtue of the sensitive nature of penal institutions, KDC employees played a significant role concerning certain aspects of the plaintiff's employment. KDC employees patrolled, searched, audited, and coordinated access to the medical clinic in order to maintain security and safety. Ms. Phyllis Warder, a KDC employee supervised by PHS employees, oversaw the plaintiff's overall work performance and evaluations. The working relationship between the plaintiff and OCF staff members became strained as a result of certain contentious issues arising from the plaintiff scheduling a medical trip for inmates, a security breach of the medical clinic's refrigerator, safety checks of first aid kits, the protocol for medical examinations of inmates, inmates purportedly remaining in the medical clinic without a need for medical attention, and two incidents in which the plaintiff and a male inmate were observed in the medical clinic with the door locked and the blinds closed.

On November 30, 1994, Ms. Marilyn Belshe, the acting Unit Administrator for OCF, wrote a memorandum to Mr. Fritz Young, a Unit Administrator at OCF, concerning certain inmates improperly spending time at the medical clinic. On December 20, 1994, the plaintiff filed a KDOC EEO Discrimination Complaint against Ms. Belshe, Mr. Dennis Blanton, and Mr. Rick Courtney alleging the following,

Numerous complaints, written reports and co-worker gossip have resulted in an embarrassing waste of managerial time as well as a waste of professional care giving time. Complaints by those listed have further resulted in my being required to meet with my superiors on many occasions over the past eight months. All complaints have been invalid and without merit. The complaints have ranged from inappropriate placing of medical sharps to having sexual encounters with inmates in the clinic setting. These complaints are nothing more than a vindictive attempt to degrade my personal life, belittle my professional accomplishments and to impair me in my professional career.¹

Defendant's memorandum in support, Exhibit 11. During an internal investigation of this complaint conducted by Captain David Castello, the plaintiff provided information concerning her belief that state property was being misused by KDC employees. Specifically, the plaintiff asserted that inmates were using state property to make gifts for KDC employees.

After he completed his internal investigation, Captain Castello concluded that the allegations contained in the plaintiff's complaint were meritless. On January 19, 1995, Mr. Young sent a memorandum to his immediate supervisor, Mr. Rudolph Stupar, asserting that the plaintiff had ignored a January 4 directive concerning when inmates may be present in the medical clinic² and seeking his guidance on the matter. On February 1, 1995, Mr. Stupar sent a memorandum to PHS (Mr. Mark Boyd) requesting the plaintiff's immediate transfer based on the fact that she had "compromised security." Defendant's memorandum in support, Exhibit 24. As a result of OCF's request that the plaintiff be reassigned, PHS offered the plaintiff positions at the Wyandotte County Jail or the Lansing Correctional Facility Central Unit Clinic. The plaintiff made inquiries concerning both positions. However, the plaintiff would not accept the position at Lansing, which is over 100 miles from her home, because her medication for Behcet's Disease prevented her from driving over 30 minutes at a time. Similarly, the plaintiff would not accept the position at Wyandotte County Jail, which required her to go up and down stairs, because her doctor's directions concerning her recent diagnosis of Behcet's Disease severely curtailed how much she was permitted to walk, especially up and down stairs. On February 21, 1995, Mr. Young sent a memorandum to the OCF staff informing them that the plaintiff had been reassigned and that the plaintiff would no longer be allowed entry into the facility. Defendant's memorandum in support, Exhibit 25. That same day, PHS terminated the plaintiff because she declined both of her re-assignment options and refused to resign.

On April 3, 1995, the plaintiff filed a complaint against PHS with the EEOC and KHRC. The complaint stated, in pertinent part,

I worked for the above-named employer [PHS] for three years and my last job title was charge nurse. I was subjected to retaliation by this employer because of a complaint against a Correctional Officer who was harassing me because of my sex, female. I made a formal complaint about this harassment on December 20, 1994. I was discharged on February 21, 1995.

I believe I have been discriminated against based on my sex, female, ..., and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended....

Defendant's memorandum in support, Exhibit 29. This complaint does not assert that any of the defendants in this matter participated in PHS' decision to terminate the plaintiff or that they participated in a pattern or practice of discrimination against the plaintiff.

On September 27, 1995, the plaintiff filed this lawsuit against PHS, Mr. David McKune³, the KDC, and Mr. Young. On September 3, 1996, the plaintiff informed the court that she had settled her claims against PHS and requested that the court dismiss PHS, with prejudice, from her lawsuit. That same day, the court granted the plaintiff's request for dismissal, with prejudice, of her claims against PHS (Doc. # 51).

III. Summary judgment standard.⁴

When considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. Jones v. Unisys Corp., 54 F.3d 624, 628 (10th Cir.1995). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.Pro. 56(c); Anglemyer v. Hamilton County Hosp., 58 F.3d 533 (10th Cir.1995). If the moving party does not bear the burden of proof at trial, it must show "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

Once the movant meets these requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The non-movant may not merely rest on the pleadings to meet this burden. Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511. More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.

IV. Discussion.

A. Jurisdictional issues.

The defendants contend that the plaintiff's Title VII retaliation claim is barred because the plaintiff failed to exhaust her administrative remedies. In support of their argument, the defendants point to the fact that the plaintiff's EEOC complaint, dated April 3, 1995, does not assert that any of the defendants retaliated against her and thus, the plaintiff has not filed the requisite EEOC charge against them. The plaintiff responds that the defendants waived this argument by failing to include it in the Pretrial Order (Doc. # 47). The defendants reply that failure to exhaust Title...