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-16Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 17 of 32 on August 18 and was immediately fired upon her return. The temporal proximity between Wuthnow’s defeat and Drake’s termination somewhat strengthens the causal connection. A reasonable jury could infer that Wuthnow was upset about not having Drake’s support, which contributed to his loss in the election. This inference, taken in consideration with Wuthnow’s reasons for Drake’s termination, see infra, and the numerous controverted facts, makes the free speech issue appropriate for a jury.

The court finds that Drake has set forth enough evidence to show that a reasonable jury could find that her speech was a substantial and motivating factor in Wuthow’s decision to terminate. Therefore, the burden shifts to defendants to show that Wuthnow would have fired Drake regardless of her speech. Defendants must provide a legitimate, non-retaliatory reason for Drake’s termination. Burns v. Board of Com'rs of County of Jackson, Kansas, 197 F. Supp.2d 1278, 1290 (D.

Kan. 2002).

On August 18, Wuthnow told Drake that he was terminating her because she ran her mouth at the jail and did not like him from the start. Drake denied making the statements and got up and walked out of Wuthnow’s office. (Doc. 40 at 3). Later, “Wuthnow told a supporter on his campaign committee... that he decided to terminate Jeanne because she was ‘padding her timecards.’” (Doc. 36 at 7). In defendants’ memorandum, Wuthnow provided the following reasons for

terminating Drake:

Just before plaintiff went on vacation, plaintiff unreasonably questioned Wuthnow’s decision to allow the Undersheriff to change the lock on his office door. Wuthnow heard plaintiff say that his explanation was “stupid.” SOF 17.

-17Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 18 of 32 While plaintiff was on vacation, Wuthnow found an odd sign in one of plaintiff’s drawers that caused him to wonder whether plaintiff was properly discharging her duties. SOF 19.

Upon investigation, Wuthnow discovered that plaintiff had not deposited checks when her documents indicated she had done so, including a check for $77,821.60 to pay for housing federal prisoners. Wuthnow believed that plaintiff received this check before plaintiff went on vacation and that she had failed to deposit it. SOFs 20-21.

Wuthnow discovered that plaintiff had failed to enter information into the arrest warrant data bases or otherwise properly process warrants, one of plaintiff’s most critical job responsibilities. SOFs 5, 22.

Other employees approached Wuthnow to report that plaintiff had been making disparaging or negative comments about him, the Undersheriff and others in the department. Wuthnow came to believe plaintiff was trying to undermine his authority.

SOF 23.

Wuthnow was also aware of other comments plaintiff had made about her co-workers and the recent incident in which a citizen had accused plaintiff of calling her a “fucking bitch.” SOF 12.

(Doc. 33 at 17-18).

Because defendants have provided legitimate, non-retaliatory reasons for Drake’s termination, Drake must show that a reasonable jury could find that defendants’ articulated reasons are pretextual.

Burns, 197 F. Supp.2d at 1290 (stating that “the plaintiff can avoid summary judgment only if he is able to show that a genuine dispute of material fact exists as to whether the defendant's articulated reason is pretextual[]”).

Drake responds that Wuthnow’s reasons are pretextual because they are inconsistent with the initial reasons Wuthnow gave Drake on August 18. “A plaintiff may show pretext by demonstrating ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a

-18Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 19 of 32 reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.’” Id.

Based upon the following reasons, the court finds that Drake has satisfied her burden such that a reasonable jury could find that Wuthnow’s proffered reasons are pretextual for terminating Drake because of her refusal and election. First, on August 18, Wuthnow told Drake that she did not like him from the start. Yet, in his deposition, Wuthnow stated that “[Drake] was actually very encouraging and told me she thought I’d make a good sheriff.” (Doc. 36-17 at 20).

On January 11, Drake received glowing remarks in her evaluation.

Undersheriff Tyner wrote the evaluation and Wuthnow signed off on it.

Undersheriff Tyner stated in his affidavit that “[a]t the time I did the evaluation I thought it was true and I still believe the evaluation was fair and accurate.” (Doc. 36-7 at 3). Wuthnow admits that he did not read the evaluation prior to signing it, but stated in his deposition that at the time, he would have agreed with it.

(Doc. 36-17 at 21-22). Wuthnow does not allege that Drake’s performance decreased during the time he was sheriff, but that he discovered errors in her work after he began investigating. While Wuthnow may have in fact only realized Drake’s errors while she was on vacation, and the court is not deciding one way or another, Wuthnow’s investigation began within days of losing the primary election. It is reasonable to infer that had there been as many problems with Drake’s job performance as detailed by Wuthnow in August

-19Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 20 of 32 2008, there would be evidence in Drakes’ personnel file.6 Other than the July 2008 incident where Drake called another employee a “fucking bitch,” there are no negative reports for insubordination or making personal phone calls and personal visits while on the clock. (Doc.

33-12 at 1). It is for the jury to decide whether or not Wuthnow’s investigation was in response to Drake’s alleged insubordination or pretext for retaliation as Drake contends.

The parties agree that there were other checks inside Drake’s desk that could have been deposited prior to Drake’s vacation.

However, the parties disagree as to whether Drake was supposed to make weekly deposits or use her discretion as to when a deposit should be made. The parties also dispute as to when the United States Treasury check for $77,821.60 came in and whether Drake was available to deposit the check prior to her vacation.

Additionally, Drake contends that Wuthnow knew the “hot file” warrants were not up to date prior to Drake leaving for vacation. In her affidavit, Drake stated Wuthnow knew she was behind on the warrants and that she begged for help to get caught up. (Doc. 36-2 at 3). Wuthnow told Drake that she could finish up the “hot file” warrants after she returned from vacation. Wuthnow does not deny that this exchange occurred, but responds that some of the warrants dated back long before Drake asked for help with the “hot-file” warrants prior to her vacation.

Because the facts supporting Wuthnow’s reasons are so heavily disputed, the court finds that summary judgment is not appropriate.

Wuthnow testified at his deposition that there was nothing negative in Drake’s personnel file. (Doc. 36-17 at 20).

-20Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 21 of 32 The parties’ explanations about what Wuthnow “found” or “discovered” when Drake was on vacation go back and forth. Defendants have presented no evidence as to Wuthnow’ allegation that Drake was making numerous personal phone calls and visits. A jury will need to decide which party is more credible and the weight to assign to each explanation. As such, Drake has met her burden to show Wuthnow violated her constitutional right to free speech.

Freedom of Association The First Amendment protects employees from being discharged based on “‘political beliefs, affiliation, or non-affiliation unless [her] work requires political allegiance.’” Gann v. Cline, 519 F.3d 1090, 1093 (10th Cir. 2008) (citations omitted).

Political patronage need not be the sole reason for an employee's discharge, it need only constitute a substantial or motivating factor. Once a plaintiff proves political patronage was a substantial or motivating factor behind [her] dismissal, the burden of persuasion shifts to the defendant to prove, as an affirmative defense, that the discharge would have occurred regardless of any discriminatory political motivation.

Id. (internal citations omitted).

The parties do not dispute that Drake’s action of declining to sign Wuthnow’s petition is protected under the First Amendment. See also Gann, 519 F.3d at 1094 (noting that an adverse employment action includes being “fired for failing to endorse or pledge allegiance to a particular political ideology[]”). Nor do the parties dispute that Drake’s employment was not subject to political allegiance. However, defendants contend that Drake’s refusal to support Wuthnow in the primary election had no bearing on Wuthnow’s decision to terminate Drake. Defendants further contend that Drake’s termination would have

-21Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 22 of 32 occurred regardless of Drake’s refusal to support Wuthnow.

Based upon the court’s findings on the issue of free speech, supra, the court finds that Drake has established sufficient evidence to show that a genuine issue of material facts exists such that a reasonable jury could conclude that Drake’s non-affiliation and lack of political support for Wuthnow’s campaign was a substantial or motivating factor in Wuthnow’s decision to terminate Drake. Likewise, the court finds that Drake has also shown a genuine issue of material fact exists as to whether Wuthnow’s reasons are pretextual.

Therefore, Drake has met her burden to show that defendants violated her First Amendment right of freedom of association.

b. Procedural Due Process Drake claims that defendants violated her Fourteenth Amendment right to procedural due process when she was denied a hearing following her termination. The court engages in a two-step inquiry

to determine whether an individual was denied procedural due process:

“(1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.” Riggins v.

Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009).

Property Interest “A public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process clause...” (Citations omitted). In order for employment to be a protected property interest, the employee must have a “legitimate claim of entitlement to it.” (Citations omitted). Whether there is a legitimate claim of entitlement is a question of state law.

Koopman v. Water Dist. No. 1 of Johnson County, Kan., 972 F.2d 1160,

-22Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 23 of 32 1164 (10th Cir. 1992).

Defendants contend that Drake was an at-will employee and therefore, had no property interest in her employment. The general rule in Kansas is that an employee is an at-will employee unless otherwise specified by contract or rule. Allegri v. Providence-St.

Margaret Health Center, 9 Kan. App. 2d 659, 663, 684 P.2d 1031, 1035 (1984) (“Kansas follows the general rule that ‘in the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged.’”).

“In Kansas, whether an implied contract exists which creates a property interest in employment normally is a question of fact for the jury.” Koopman, 972 F.2d at 1164 (citing Allegri, 684 P.2d at 1035;

Morriss v. Coleman Company, 241 Kan. 501, 738 P.2d 841 (1987)).

Sheriff Motter stated in his affidavit that:

5. When I was sheriff, I always told the employees of the HCSO that we had to show cause for their termination.

I was always under the impression that I had to show cause to terminate an employee (other than the undersheriff), and that is why the policy manual does not make the employment at will. I thought this was important not only for morale purposes, but was also told this was the law by our attorney.

6. I specifically provided a grievance procedure in the policy manual because I wanted employees to be able to grieve their treatment. Discipline under the policy was a progressive process. I wrote the policy manual as requiring the building of a case against an employee, documenting each step of discipline before a termination resulted.

7. Employees of the HCSO, other than the undersheriff, knew that they could not be terminated at will. They knew they had their job as long as they performed and I always thought this was good for morale at the Sheriff's Office.

Since they had to read and agree to abide by the policy manual when they were hired, we always considered that to be part of the employment agreement.

-23Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 24 of 32 (Doc. 36-9 at 2-3).

When Wuthnow became Sheriff, he told the employees that all of Sheriff Motter’s policies remained in effect. At his deposition, Wuthnow agreed with Drake’s counsel that the employees would assume that all of Sheriff Motter’s policies remained in effect unless Wuthnow changed them. This was Wuthnow’s intention by sending out the April 11, 2007, memo, which was signed by Drake on April 17. (Docs.

36-17 at 19, Doc. 33-5).

Sheriff Motter’s policy manual does not detail a definite term of employment. As such, “the duration of employment depends on the intention of the parties as determined by circumstances in each particular case.” Allegri, 684 P.2d at 1035.

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