McDonald v. City of Scranton et al, No. 5:2008cv04092 - Document 32 (D. Kan. 2009)
Court Description: ORDER granting 20 Motion for Summary Judgment. Signed by District Judge Richard D. Rogers on 8/31/09. See Order for Details. (meh)
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McDonald v. City of Scranton et al Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS STEPHEN P. McDONALD, Plaintiff, vs. Case No. 08-4092-RDR CITY OF SCRANTON, KANSAS; COUNCILMAN PHIL PARSONS; RAY LESTER, JR.; and GARY BURKDOLL, individually and in their official capacities, Defendants. MEMORANDUM AND ORDER Plaintiff is the former chief of police of the City of Scranton, Kansas. Plaintiff raises federal and state law claims arising end from Defendants the are the of City his of employment Scranton, as chief Kansas and of police. three city councilmen, Phil Parsons, Ray Lester, Jr., and Gary Burkdoll. This case is before the court upon defendants’ motion for summary judgment. After careful review, the court has determined that defendants are entitled to summary judgment as to plaintiff’s federal claims. The court declines to exercise supplemental jurisdiction over the remaining state law claims. Summary judgment standards Summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(c). The movant Dockets.Justia.com has the burden to “demonstrate an absence of a genuine issue of material fact given the relevant substantive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.) cert. denied, 506 U.S. 1013 (1992). The court reviews the evidence and draws all reasonable inferences in the light most favorable to the nonmovant. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995). Summary judgment shall be granted unless there is evidence upon which a reasonable jury could find for the nonmovant. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) cert. denied, 516 U.S. 1160 (1996). Conclusory allegations will not create a genuine issue of material fact defeating a summary judgment motion. White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995). Uncontroverted facts The City of Scranton, Kansas is a city of the third class operating under the mayor/council form of government. Under § 1- 30l of the city code, the mayor “by and with the consent of the [city] council” appoints the chief of police yearly at the first regular meeting in May. The chief of police holds the office until a successor has been appointed and qualified. The section specifically provides: APPOINTMENT. At the first regular meeting in May of each year the mayor, by and with the consent of the council, shall appoint a city clerk and city treasurer, and may appoint a . . . chief of police . . . Such officers shall hold their respective offices until their successors have been appointed and qualified. 2 Under § 1-303 of the code, a majority of all members of the city council may remove any appointed officer, but no officer or employee shall be removed for any reason until he or she has been given notice and afforded the opportunity for a hearing. Plaintiff was appointed chief of police of the City of Scranton on September 5, 2002. had not been reappointed. He replaced a chief of police who Plaintiff was not told or promised how long he would remain in the position. Plaintiff was reappointed chief of police on May 20, 2003, May 4, 2004, and May 3, 2005. These were one-year appointments. On May 16, 2006, the mayor recommended that plaintiff be reappointed as chief of police. failed on a 2 to 3 vote. A motion to approve reappointment The city council members who voted against plaintiff’s reappointment were Phil Parsons, Ray Lester, Jr., and Gary Burkdoll. Plaintiff was not present when the vote was taken. Plaintiff later joined the meeting and participated in an executive session. He was told that he had not been reappointed but that he was still chief of police. According to plaintiff, Phil Parsons stated that numerous complaints about plaintiff had been received and that plaintiff had not adapted to the small town mentality. During executive session and at any other time, the alleged complaints against plaintiff were not described to him and he received no other criticism regarding his performance. 3 Some people had complained that plaintiff attempted to enforce city nuisance ordinances. One citizen complained about plaintiff’s demeanor during a traffic stop. harassed by plaintiff. Another complained that he was Plaintiff had cited four city councilmen and the city’s mayor for nuisance code violations. Plaintiff believes he was not reappointed because he attempted to enforce the nuisance ordinances against city council members and others. The city council had instructed plaintiff to enforce the nuisance ordinances. He took an oath to equally enforce the laws. Plaintiff was given a merit pay increase two weeks before the vote against reappointment. Plaintiff received no disciplinary actions during his employment. Despite the vote against reappointment, plaintiff was still the chief of police until a new person was found and appointed as chief. After the city council’s vote against reappointment, a city council member told plaintiff not to be upset, that it would blow over, and that he was still chief of police. possible that the mayor, who was in Plaintiff knew it was favor of plaintiff’s reappointment, would not appoint a new chief of police and that plaintiff would serve in the position indefinitely. had kept her position for more than a year A city clerk without being reappointed. Not long after the May 16, 2006 vote against reappointment, 4 plaintiff accepted a position with the Sheriff of Osage County, Kansas. On May 23, 2006, plaintiff resignation to the mayor of Scranton. submitted a letter of The letter was drafted by plaintiff’s attorney and copied to the city council members and local newspapers. The letter described plaintiff’s resignation as “involuntary” and claimed that he was effectively terminated and removed from office without having been given notice and afforded an opportunity for a hearing. Plaintiff did not request a hearing to challenge the reasons stated in executive session for the vote against reappointment, and none was conducted. Although the City’s personnel manual provided plaintiff with the right to grieve the city council’s decision, he chose not to do so. Plaintiff contends that his letter of resignation, which alleged retaliatory and improper actions, should have prompted a hearing. No vote was taken to remove plaintiff as chief of police. Plaintiff has held various law enforcement jobs since leaving the chief of police job at Scranton. working full time as a police Administration in Topeka, Kansas. Plaintiff is currently officer for the Veterans He has had that position since September 6, 2006. Discharge or constructive discharge Defendants contend that summary judgment is warranted against all of plaintiff’s claims because plaintiff was not discharged or 5 constructively discharged from his position as chief of police. Plaintiff asserts that he was constructively discharged from the job. The Tenth Circuit set out the standards for a constructive discharge in E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 805-06 (10th Cir. 2007) (emphasis added): “Constructive discharge occurs when the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign.” Sandoval v. City of Boulder, 388 F.3d 1312, 1325 (10th Cir. 2004) (quotations omitted). In evaluating whether the employee’s working conditions would cause such a feeling in a reasonable person, “we apply an objective test under which neither the employee’s subjective views of the situation, nor her employer’s subjective intent . . . are relevant.” Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004). The plaintiff’s burden in a constructive discharge case is substantial and showing that the employer’s conduct meets the definition of “tangible employment action” or “adverse employment action” is “not necessarily sufficient to establish a constructive discharge because a constructive discharge requires a showing that the working conditions imposed by the employer are not only tangible or adverse, but intolerable.” Id. at 1270-71; see also Penn. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (“A hostile-environment constructive discharge claim entails something more [than conduct that amounts to actionable harassment]: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.”); Garrett v. HewlettPackard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (stating that “[t]he bar is quite high in such cases”). Importantly, in constructive discharge cases “[t]he question is not whether the employee’s resignation resulted from the employer’s actions, but whether the employee had any other reasonable choice but to resign in light of those actions.” Tran, 355 F.3d at 1270. Plaintiff does not disagree with this recitation of the 6 constructive discharge standards. Plaintiff summarizes his claim of constructive discharge on page 14 of his response to defendants’ summary judgment motion: Although McDonald knew pursuant to city ordinance he would remain as Chief of Police until a new Chief was appointed, it was not tolerable to continue [to] work in an environment that would not allow him to equally enforce the laws. It was not tolerable to work in an environment that falsely accused him of “numerous complaints” and expected preferential treatment as part of the “small town mentality.” It was not tolerable to continue to work in such an environment being aware you were going to be replaced without notice at some point. McDonald was compelled to resign and find work to support his family. McDonald was faced with continuing to work in a completely intolerable working environment which expected him to not enforce the laws equally until his successor was appointed. Such working conditions would easily be considered intolerable by a reasonable person. Doc. No. 30. The court disagrees with this position. A reasonable person would not find that plaintiff’s assertions, in the context of the uncontroverted facts, support a claim of constructive discharge. Plaintiff obviously believed that he was unfairly criticized or evaluated by the city council. a constructive discharge. This is not sufficient to show Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir. 1999); see also PVNF, 487 F.3d at 79496 & 805-06 (repeated sexually explicit and derogatory remarks is insufficient for constructive discharge). Plaintiff believed he lost the reappointment vote because he tried to enforce the law equally. The Tenth Circuit has held that victims of discriminatory acts may not necessarily have proof of a constructive discharge. 7 See Fischer v. Forestwood Co, Inc., 525 F.3d 972, 982 (10th Cir. 2008) (discriminatory treatment of plaintiff and others does not necessarily show constructive discharge). discrimination does not necessarily If being victimized by establish a constructive discharge, we believe an inference that one must enforce the law in a selective fashion also is not sufficient to prove a constructive discharge. The manner and means of enforcing the multitude of laws in this country is a constant source of debate. There is always disagreement within the law enforcement community and outside that community regarding how best to enforce the law. The court is not saying that plaintiff was right or wrong in his feelings that he was unfairly treated. The court is only saying that his disagreement with what he perceived to be the philosophy of the city council is not something which would make working conditions intolerable and thereby compel a resignation. See Exum v. United States Olympic Committee, 389 F.3d 1130, 1135-36 (10th Cir. 2004) (being given constructive an unethical discharge); order is not sufficient Yearous v. Niobrara County to prove Memorial Hospital, 128 F.3d 1351, 1357 (10th Cir.) cert. denied, 523 U.S. 1074 (1997) (same). Finally, the threat of being replaced “without notice at some point” is also insufficient to establish a constructive discharge. Parker v. Board of Regents, 981 F.2d 1159, 1162 (10th Cir. 1992) (offering an employee a choice between resignation and termination does not make resignation involuntary); 8 see also Lighton v. University of Utah, 209 F.3d 1213, 1222 (10th Cir. 2000) (resignation was not made involuntary when plaintiff was given choice of signing settlement agreement of sexual harassment charge or facing a disciplinary proceeding to adjudicate the charge which could possibly lead to termination). In summary, it may have been unpleasant for plaintiff to continue working as the chief of police when he felt that he was at serious risk of being replaced merely because he tried to equally enforce the nuisance codes. But, it was not objectively intolerable. Property interest Plaintiff contends that he had a property interest in continued employment as chief of police and that he was deprived of this property interest without the due process required by the Constitution. This argument fails because plaintiff resigned as chief of police. He did not lose the job because of the action of a governmental entity. Parker, 981 F.2d at 1162-63. Plaintiff’s contention also fails because, as an officer who had not been reappointed, plaintiff was serving as an at-will employee until a successor was appointed. Under Kansas law, public employment is considered terminable at will in the absence of an express or employment. implied contract covering the duration of the Crowley v. City of Burlingame, 352 F.Supp.2d 1176, 1181-82 (D.Kan. 2005). We agree with defendants that the relevant 9 sections of the city code do not support a specific duration of employment after the expiration of the appointed term. See Elam v. Williams, 753 F.Supp. 1530, 1537 (D.Kan. 1990) (serving until a successor is politically appointed is not a term of specific duration). Scranton Plaintiff cites Crowley for the proposition that the city ordinances created a appointed position of chief of police. property interest in the However, Crowley concerns different language in a different city’s code. It is distinguish- able on that basis. Plaintiff also cites Scranton’s city code § 1303(d), where it states: “No officer or employee shall be removed for any reason until he or she has been given notice and afforded the opportunity for a hearing.” provision in a statute or We reject this argument because a code which provides only for an opportunity for a hearing does not establish a property interest in a job. Moulton v. Vigo County, 150 F.3d 801, 805 (7th Cir. 1998) (a mere right to notice and a hearing before termination does not establish a property interest in a job); Lyznicki v. Board of Education, 707 F.2d 949, 952 (7th Cir. 1983) (same); Brown v. Board of Education, 928 P.2d 57, 67 (Kan. 1996) (applying Lyznicki holding to statute conferring a right to hearing to school administrators). Liberty interest Governmental action which defames an individual in the course of declining to rehire him can entitle the person to due process 10 protections. Board of Regents v. Roth, 408 U.S. 564, 573 (1972). Plaintiff claims that his liberty interest in his good name and reputation as it affects his interest in employment was damaged by city council statements that he was not being reappointed because of “numerous complaints” against him and that he had not grasped or adapted to the “small town mentality.” Doc. No. 30 at p. 16. To establish a liberty interest violation, plaintiff must demonstrate: 1) that statements were made which impugn his good name, reputation, honor or integrity; 2) that the statements were false; 3) that the statements occurred in the course of terminating plaintiff or foreclose other employment opportunities; and 4) that the statements were published. Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994) cert. denied, 514 U.S. 1015 (1995). The court determines whether a statement impugns a person’s good name, reputation, honor or integrity; or, in other words, whether it is “stigmatizing.” Palmer v. City of Monticello, 31 F.3d 1499, 1503 n. 2 (10th Cir. 1994). The statements in question do not impugn plaintiff’s good name, reputation, honor or integrity. “Numerous complaints” may be received because a police officer is doing his job. enforcement of the law usually makes someone unhappy. The actual There is nothing in the statement to indicate that the complaints were justified or that the complaints were relevant to plaintiff’s honesty, integrity or good name. 11 A failure to grasp the “small town mentality” also has nothing to do with a person’s good name, reputation, honor or integrity. Neither statement is “stigmatizing” for the purposes of liberty interest analysis. See Hicks v. City of Watonga, 942 F.2d 737, 746 (10th Cir. 1991) (charges must implicate dishonesty or immorality in order to state a constitutional claim); Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir. 1987) (complaints of neglect or dereliction of duty do not implicate liberty interest); Bailey v. Kirk, 777 F.2d 567, 572-73 (10th Cir. 1985) (discharge of police chief for failure to properly conduct an investigation is not stigmatizing); Brammer-Hoelter v. Twin Peaks Charter Academy, 81 F.Supp.2d 1090, 1095 (D.Colo. 2000) (reference to problems” and “just cause” bringing for school termination back “some and “unfortunate normalcy” are not stigmatizing); Jones v. City of Topeka, 764 F.Supp. 1423, 1431 (D.Kan. 1991) (liberty is not infringed by denigrating a public employee’s competence). The Tenth Circuit has also stated frequently that the concept of liberty employee: recognizes two particular interests of a public 1) the protection of his good name, reputation, honor and integrity, and 2) his freedom to take advantage of other employment opportunities. Miller v. City of Mission, 705 F.2d 368, 373 (10th Cir. 1983). In this case, it is undisputed that plaintiff had secured law enforcement employment before he resigned and has continued to maintain law enforcement employment. 12 His freedom to take advantage of other employment opportunities has not been infringed. For the above-stated reasons, the court shall grant summary judgment against plaintiff’s claimed violation of his liberty interest. Conspiracy Plaintiff alleges a conspiracy to violate his constitutional rights. For the above-stated reasons, plaintiff cannot establish that his constitutional rights were violated. Therefore, the conspiracy claim must be dismissed. Supplemental jurisdiction In addition to his federal claims, plaintiff asserts state law claims of illegal retaliatory discharge. The court may exercise supplemental law jurisdiction over state claims if they sufficiently relate to a pending claim over which the court has original jurisdiction. See 28 U.S.C. § 1367(a). The court need not exercise supplemental jurisdiction, however, and it may decline to do so if it has dismissed all the claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). shall plaintiff’s dismiss all of federal Here, the court claims and has no independent jurisdictional basis over plaintiff’s remaining state law claims. Under the similar doctrine of pendent jurisdiction, the Supreme Court indicated that the normal course for courts should be 13 to decline to decide state law claims. “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -will point toward declining to exercise jurisdiction over the remaining state law claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988). The Tenth Circuit echoed these comments in Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995): “[T]he most common response to a pretrial disposition of federal claims has been to dismiss the state law claim or claims without prejudice . . . . ‘Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.’” Quoting, Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Upon review of the factors recommended for the court’s consideration, the court shall decline to exercise supplemental jurisdiction over plaintiff’s state law claims. Those claims involve questions of state law which in the interests of comity should be decided by a state court. See Satterlee v. Allen Press, Inc., 455 F.Supp.2d 1236, 1257 (D.Kan. 2006) (declining to exercise supplemental jurisdiction over state law retaliation claim). Conclusion Consistent with the above-stated comments, defendants’ motion for summary judgment shall be granted. 14 IT IS SO ORDERED. Dated this 31st day of August, 2009 at Topeka, Kansas. s/Richard D. Rogers United States District Judge 15
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