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«IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS E. JEANNE DRAKE, ) ) Plaintiff, ) CIVIL ACTION ) v. ) No. 08-1362-MLB-KMH ) ARLIS JON ...»

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Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

E. JEANNE DRAKE, )

)

Plaintiff, ) CIVIL ACTION

)

v. ) No. 08-1362-MLB-KMH

)

ARLIS JON “A.J.” WUTHNOW, )

individually and as Sheriff of )

Harvey County, KS and the BOARD OF )

COUNTY COMMISSIONERS OF HARVEY )

COUNTY, KS, ) ) Defendants. ) )

MEMORANDUM AND ORDER

This case comes before the court on defendants’ motion for summary judgment. (Doc. 32). The motion has been fully briefed and is ripe for decision. (Docs. 33, 36, 40). Defendants’ motion is denied for the reasons herein.

Pursuant to 42 U.S.C. § 1983, plaintiff alleges that defendants:

1) violated plaintiff’s First Amendment right to association and free speech and 2) retaliated against her for filing the present lawsuit.

Plaintiff also claims deprivation of procedural due process under the Fourteenth Amendment.

I. FACTS A large portion of the parties’ statements of fact are controverted. All facts set forth are either uncontroverted, or, if controverted, taken in the light most favorable, along with all favorable inferences, to plaintiff. See Adler v. Wal-Mart Stores, Inc., 144 F.3d at 670 (10th Cir. 1998). The court will address the parties’ material controverted facts in the analyses below.

Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 2 of 32 In January 1994, Drake was hired by the Harvey County Seriff’s Office. On March 23, 2007, defendant Arlis Jon (A.J.) Wuthnow was appointed sheriff for Harvey County to fill Sheriff Bryon Motter’s unexpired term after Sheriff Motter retired. Drake was employed as an administrative aide for Sheriff Motter and continued in this position after Wuthnow’s appointment. Wuthnow adopted Sheriff Motter’s policies and procedures and wanted his employees to continue working in the same manner in which they had under Sheriff Motter.

Drake was responsible for making deposits, entering arrest warrant data into the national and Kansas databases, and filing warrants in the Harvey County jail. Drake’s personnel file contained no negative information. On January 11, 2008, Drake received an evaluation, signed by Wuthnow, that described her as a “‘cornerstone’

of the Harvey County Sheriff’s Office” and further stated:

Were it not for her “behind the scenes” work, much of the day to day activity in the office would cease to occur.

Jeanne is actually performing the work of 2 people and doing it with efficiency.

(Doc. 36 at 2).

A couple of weeks later, Wuthnow brought in his nominating petition for the 2008 primary and placed it on Drake’s desk. Wuthnow stated, “[Y]ou can be the first one to sign my petition.” Drake explained, “A.J., I can’t sign that, I have to work for whoever gets sheriff.” (Doc. 33 at 2). While Wuthnow did not say anything, Drake believed that Wuthnow was upset based upon how he removed the petition from Drake’s desk.

Later that day, Drake walked into Wuthnow’s office. Wuthnow asked, “[a]re you sure you don’t want to be the first one to sign [the

-2Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 3 of 32 petition]?” (Doc. 33 at 3). Again, Drake declined and walked out of his office. Drake told Undersheriff Tyner that she felt badly about not signing Wuthnow’s petition, but she needed to remain neutral in order to protect her job.

In June 2008, Wuthnow asked Drake if her sister was mad at him because Drake’s sister had placed a sign supporting the opposing candidate in her yard. At first, Drake thought Wuthnow was joking, but later believed he was actually upset based upon his facial expressions. Drake told Wuthnow that her sister would put one of his signs in her yard, but Wuthnow declined.

Approximately one month later, another woman accused Drake of calling her a “fucking bitch” and reported it to Undersheriff Tyner.

Undersheriff Tyner investigated the complaint. Drake denied making the statement. Undersheriff Tyner’s report was given to Wuthnow.

Drake received no warning or reprimand regarding this alleged statement.

On August 5, 2008, Wuthnow lost in the primary election. Drake voted for the opposing candidate. At no time during the campaign did Drake express any political beliefs or candidate preference to Wuthnow. Drake did not campaign for either candidate because she did not want to lose her job should Wuthnow lose the election.

A couple of days later, Drake asked Wuthnow why Undersheriff Tyner changed the lock on his door.

Wuthnow responded: “Because I can, and that’s none of your business.” Wuthnow said Tyner was tired of having things in his office disturbed by others and they did not know all who might have keys to the office. Plaintiff, who had a key, said, “Oh, I see, ok.” As she turned to leave, Wuthnow heard plaintiff say, “That’s stupid.”

-3Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 4 of 32 (Doc. 33 at 4). Drake denies that she said “[t]hat’s stupid.” Later that day, Drake was preparing to leave for vacation from August 8 through August 18. Wuthnow told Drake “to have a safe trip, be careful and asked if there was anything he could do to make it easier for her when she returned.” Drake asked Wuthnow to “keep her desk cleaned off and to take care of the mail.” (Doc. 33 at 5).





Wuthnow said that he would.

While Drake was on vacation, Wuthnow was in her office and found a note in Drake’s personal filing cabinet. Drake suspected that someone was going through her personal belongings. Drake wrote a note saying “NOTHING IN HERE is ANYBODY’S Business Don’t Make me get a lock for it.” (Doc. 33 at 5).

Wuthnow began to question Drake’s job performance and started investigating her work. Wuthnow opened Drake’s desk and found several checks that had not been deposited. Defendants contend that one of Drake’s job assignments was to make weekly deposits. Defendants assert that one check in the amount of $77,821.60 came in prior to Drake’s vacation. Drake controverts defendant’s statements of fact and states that she did not make deposits every week and further that some of the checks arrived while Drake was on vacation.

Wuthnow also discovered that arrest warrants were not timely entered into the Kansas Hot Files system. Drake states that several employees were responsible for entering in arrest warrants and further that the staff was behind on entering the warrants.

The Sheriff and Undersheriff knew they were behind on warrants and Jeanne begged for help to get them caught up. Before Jeanne left on vacation, Wuthnow told her to finish up the “hot file” warrants when she got back.

-4Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 5 of 32 (Doc. 36 at 6-7).

Additionally, Wuthnow began to think that Drake was interfering with his authority after two deputies told Wuthnow that Drake had made negative comments about him and others in the department. However, Drake denies making negative comments.1 While Drake was on vacation, Wuthnow called Undersheriff Tyner into his office and told Undersheriff Tyner that he was going to fire Drake. Undersheriff Tyner did not object.

On August 18, Drake returned to work after her vacation.

Wuthnow terminated her and stated that “he was terminating her because she was running her mouth at the jail and because she had never liked him.” “Wuthnow [also] told a supporter on his campaign committee...

that he decided to terminate Jeanne because she was ‘padding her timecards.’” (Doc. 36 at 7). Drake did not receive any notice or warning prior to her termination.

Drake immediately filed a Harvey County grievance, which stated:

“Fired on the spot By Sheriff no verbal or written warnings. Was told I ran my mouth at jail and haven’t liked the Sheriff since he took office. I have worked for the Sheriff for the past 15 months and made sure the office was functioning.” (Doc. 33 at 6).

On August 26, Wuthnow denied Drake’s grievance citing K.S.A. 19and Board of County Com'rs of County of Lincoln v. Nielander, 275 Drake denies making a negative comment to Officer Gonzales because she knew that Wuthnow and Officer Gonzales were friends.

Drake also responds that “the out-of-court statement allegedly made by Huntley are hearsay and not admissible for purposes of summary judgment.” (Doc. 36 at 7).

-5Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 6 of 32 Kan. 257, 62 P.3d 247 (2003).2 Wuthnow did not seek approval from defendant Board of County Commissioners of Harvey County, Kansas (“the Board”) prior to his denial based upon Nielander. Additionally, Wuthnow did not hold a hearing because he believed that Drake received a hearing when she was terminated.

The Board also reviewed Drake’s grievance and likewise decided not to hold a hearing based upon K.S.A. 19-805 and Nielander. The Board further concluded that it was without authority to overrule Wuthnow’s decision to terminate Drake based upon the holding in Nielander.

In September 2008, T. Walton, the Democratic Party nominee for Sheriff, told Drake that he was sorry that she had been fired. Drake asked Walton if she could have her job back in the event that he was elected. Walton was unaware of the Wuthnow’s reasons for terminating Drake and agreed to hire her.

On November 4, Walton was elected Harvey County Sheriff. Later that month, Drake contacted Walton at his home and asked about his plan to hire her. Prior to Drake’s visit, Walton had learned about Drake’s lawsuit from either the media or Drake herself. Walton indicated that he “was not concerned about the lawsuit because it did not involve his administration[ ]” and that he still planned to hire Drake. (Doc. 33 at 7).

During the transition period between administrations, Wuthnow explained to Walton the reasons he had fired Drake and the problems The Kansas Supreme Court held that “K.S.A. 19-805(d) does not give county commissioners the ability to supersede a sheriff's power to appoint, promote, demote, or dismiss his or her personnel.” Nielander, 62 P.3d at 254.

-6Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 7 of 32 with her job performance. “Walton [also] visited the Sheriff’s office a number of times and confirmed for himself that plaintiff had not properly processed a number of warrants.” (Doc. 33 at 8). This concerned Walton because he believed that the warrants needed to be properly entered into the databases.

Prior to taking office in January 2009, Walton met with Harvey County auditors after the Sheriff’s department operations were

audited. The auditors told Walton that:

some of the office operations for which [Drake] had been responsible were in bad shape. There had not been appropriate checks and balances to assure the proper performance of these operations, including the handling of financial matters, since Motter‘s administration.

Walton was committed to having good fiscal responsibility and did not want financial problems or issues during his administration.

* * * [Drake] had apparently been allowed to run the Sheriff‘s office operations pretty much as she saw fit without oversight, starting when Motter was Sheriff.

(Doc. 33 at 8).3 Some time after Walton met with the auditors, Drake called Walton to discuss her employment. Walton decided not to hire Drake and told her that he could not hire her because of the lawsuit.

II. SUMMARY JUDGMENT STANDARDS

The rules applicable to the resolution of this case, now at the summary judgment stage, are well-known and are only briefly outlined here. Federal Rule of Civil Procedure 56(c) directs the entry of Drake objects as to hearsay on the auditors’ statements. The court finds that defendants are not using the auditors’ statements for the truth of the matter asserted, but to show Walton’s belief and reasons for why he did not want to hire Drake after talking with Wuthnow and the auditors.

-7Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 8 of 32 summary judgment in favor of a party who "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

An issue is “genuine” if sufficient evidence exists so that a rational trier of fact could resolve the issue either way and an issue is “material” if under the substantive law it is essential to the proper disposition of the claim. Adamson v. Multi Community Diversified Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). When confronted with a fully briefed motion for summary judgment, the court must ultimately determine "whether there is the need for a trial–whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If so, the court cannot grant summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

III. ANALYSIS

When government officers abuse their power, suits against them allow those wronged an effective method of redress. See Anderson v.

Creighton, 483 U.S. 635, 638 (1987) (citing Harlowe v. Fitzgerald, 457 U.S. 800, 814 (1982)). Pursuant to 42 U.S.C. section 1983, any person who “under color of... [law]... subjects, or causes to be subjected,... any [person]... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” Section 1983 was enacted to provide protections to those persons wronged by the misuse of power. While the statute itself creates no substantive civil rights, it does provide an avenue through which civil rights can be redeemed. See

-8Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 9 of 32 Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995). To state a claim for relief in a section 1983 action, plaintiff must establish that she was (1) deprived of a right secured by the Constitution or laws of the United States and (2) that the alleged deprivation was committed under color of state law. See Am. Mfr’s. Mut. Ins. Co. v.



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