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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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The court finds that a genuine issue of material fact exists as to whether Drake was an at-will employee or could not be terminated without just cause. Wuthnow states that he intended for the employees to be at-will employees, especially since Sheriff Motter provided him with the Nielander case. However, Wuthnow does not contend that he told the employees of his intent. Moreover, Sheriff Motter specifically told his employees that they could not be terminated without cause. Wuthnow adopted Sheriff Motter’s policies when he took office and had the employees acknowledge their notice and understanding of his adoption. While employed by Sheriff Motter, Drake knew that she would keep her job as long as she maintained her work performance. Drake believed that the terms of her employment continued when Wuthnow became sheriff. Therefore, the court finds that a reasonable jury could find that Wuthnow and Drake had an implied contract that she could not be terminated without cause, which

-24Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 25 of 32 created a property interest in her employment.

Due Process Protections Drake contends that she was terminated without warning or notice and any pretermination hearing, or lack thereof, was inadequate.

Drake further claims that Wuthnow failed to provide a post-termination hearing on Drake’s termination and grievance. The parties agree that the Harvey County Sheriff’s Manual “provide[s] for a pre-termination hearing and allows employees to file a grievance with the Sheriff.” (Doc. 33 at 9).

Procedural Due Process serves to protect an employee, who maintains a property interest in his or her employment, from termination based upon arbitrary reasons. See West v. Grand County, 967 F.2d 362, 367 (10th Cir. 1992) (“‘Without adequate due process protection, an employee... can never discover whether the reasons offered for her discharge are true-or are false and a mere subterfuge.’”). Pretermination and post-termination hearings are used

in this regard:

The standards for a pretermination hearing are not stringent because of the expectation that a more formal post-termination hearing will remedy any resulting deficiencies. “[T]he pretermination ‘hearing,’ though necessary, need not be elaborate.... ‘[T]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’” (Citations omitted). “[T]he pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” (Citations omitted).

Id. at 367 (citing Cleveland Board of Education v. Loudermill, 470

–  –  –

U.S. 532, 545-46 (1985)). A conversation or exit interview between the employee and his or her employer immediately prior to termination may be satisfy constitutional requirements when the employee has notice and the opportunity to respond. See, e.g., Powell v.

Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989) (stating that the essential requirements of due process are notice of the charges, an explanation of the evidence, and an opportunity to respond).

On the other hand, the post-termination hearing requires more formal due process protections “[b]ecause the post-termination hearing is where the definitive fact-finding occurs[.]” West, 967 F.2d at 369.

Although heavily dependent on the facts of each case, courts consider whether or not the post-termination hearing provided an opportunity to the employee to confront and cross-examine her accuser in the presence of the decision maker. Id.

On August 18, Wuthnow had Drake come into his office. Wuthnow explained that he was terminating Drake 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.

The court finds that Wuthnow’s meeting with Drake was adequate.

Wuthnow apprised Drake of his reasons for terminating her and gave Drake an opportunity to respond. Drake chose to end the meeting by walking out of Wuthnow’s office without hearing all that Wuthnow may, or may not, have said. Therefore, any fault for the brief, and possibly incomplete, pre-termination hearing is attributable to Drake as opposed to Wuthnow.

Immediately following her meeting with Wuthnow, Drake filed a Harvey County grievance. Wuthnow reviewed Drake’s grievance and

-26Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 27 of 32 denied it on August 26. Wuthnow cited K.S.A. 19-805 and Nielander for authority to fire employees without seeking permission from defendant the Board of County Commissioners of Harvey County, Kansas (“the Board”), and provided six reasons for Drake’s dismissal. (Doc. 33The Board reviewed Drake’s grievance and declined to hold a hearing based on Nielander.

It is undisputed that Drake received no post-termination hearing following her grievance. Wuthnow denied Drake’s grievance without a hearing and the Board declined to hold a hearing on Drake’s grievance.

While Drake received a pretermination hearing from Wuthnow, it was not before an impartial tribunal. See Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009) (“Impartiality of the tribunal is an essential element of due process.”). Therefore, the court finds that a reasonable jury could find that Drake had a property interest in her employment and further that she was denied the Due Process protections guaranteed under the Fourteenth Amendment.





2. Clearly Established Constitutional Right Wuthnow claims that even if Drake establishes constitutional violations, he is entitled to qualified immunity under the clearly established prong because “[i]t could never be argued that [Drake’s] entitlement to due process was clear or obvious in light of K.S.A. 19a) and Nielander, and that denying [Drake] a grievance hearing violated that right.”7 (Doc. 33 at 26).

The Tenth Circuit requires the contours of the right at issue to be sufficiently clear that a reasonable official would have understood Wuthnow limits his clearly established argument to Drake’s Due Process claim.

-27Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 28 of 32 that what he was doing violated a constitutional right that was clearly established at the time the alleged acts took place. See Cruz v. City of Laramie, 239 F.3d 1183, 1187 (10th Cir. 2001); Watson v.

University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996). This standard, however, must be used in a particularized manner8 because “[o]n a very general level, all constitutional rights are clearly established.” Horstkoetter, 159 F.3d at 1278. Were this level of particularity not required, Harlowe “would be transformed from a guarantee of immunity into a rule of pleading,” that would “destroy ‘the balance that [Supreme Court] cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties.’” Anderson, 483 U.S. at 639-40 (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).

A plaintiff’s burden at this stage has been described as “quite heavy,” as it is insufficient to simply allege a violation of a general legal principle. See Watson, 75 F.3d at 577. In order to discharge her burden, a plaintiff must do more than simply identify in the

Abstract

a clearly established right and allege that the defendants have violated it. See Baptiste, 147 F.3d at 1255. Rather, plaintiff must (1) articulate the constitutional right, (2) state, with specificity, the defendants’ conduct that has allegedly violated this right, and (3) demonstrate a substantial correspondence between the conduct in question and prior law establishing that the The Tenth Circuit “has held that for a right to be ‘particularized,’ there must ordinarily be a Supreme Court or Tenth Circuit decision on point, or ‘clearly established weight of authority’ from other courts.” Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995); see also Cruz, 239 F.3d at 1187; Horstkoetter, 159 F.3d at 1278.

-28Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 29 of 32 defendants’ actions were clearly prohibited. See id.; Romero, 45 F.3d at 1475. Unless such a showing is made, defendants prevail. See Romero, 45 F.3d at 1475.

The court finds that the right to procedural due process protections is clearly established under Tenth Circuit law.

Copelin-Brown v. New Mexico State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005) (“In general, a post-termination hearing is required.”). Nielander, a Kansas Supreme Court case, did not alter this right. The court acknowledges that Nielander’s interpreted K.S.A. 19-805(a) and held that a board of county commissioners may not usurp a sheriff’s hiring and firing decisions regarding sheriff employees. However, Nielander did not alter the due process protections guaranteed to an employee under the Fourteenth Amendment.

Specifically, Nielander did not remove Drake’s right to and Wuthnow’s obligation to provide an adequate post-termination hearing. Nielander does not remove Wuthnow’s authority over his employees, but gives him complete control, within the bounds of the law, concerning his firing decisions.

Drake presents sufficient evidence that a reasonable jury could find that she had a property interest in her employment and that she received no post-termination hearing. The court finds that the law requiring a post-termination hearing is clearly established.

Therefore, Wuthnow, in his individual capacity, is not entitled to qualified immunity and his motion for summary judgment on this issue is denied.

3. The Board Drake brings § 1983 claims against the Board, which are

-29Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 30 of 32 equivalent to claims against Harvey County itself. “To create liability against a local governmental body under Section 1983, [Drake] must show (1) a constitutional violation and (2) an official policy or custom which was the moving force behind the violation.” Moore, 470 F. Supp. 2d at 1254. The Board cannot be liable under the theory of vicarious liability or respondeat superior. Benhardt v.

Board of County Com'rs of County of Wyandotte, 9 F. Supp. 2d 1252, 1265 (D. Kan. 1998).

Drake has presented evidence as to the constitutional violation.

However, the Drake has not shown that the Board acted pursuant to any official policy or custom. The Board was not involved with Drake’s discharge. Nor was her discharge pursuant to any official policy or custom. While the Board declined to hold a hearing on Drake’s grievance, it was not pursuant to any policy or custom. The Board based its decision on the Nielander case.

It is undisputed that the Harvey County Sheriff Office has its own policy manual, which provides for a pre-termination hearing and a grievance procedure with the Sheriff. Drake asserts that Harvey County’s employment policies do not apply to her and therefore are not relevant. The Sheriff’s Manual controls the hiring and firing of Sheriff employees. Therefore, the court finds that Wuthnow’s failure to provide a post-termination hearing was not pursuant to the Board’s policy or custom.

Retaliation Drake also contends that the Board through the Harvey County Counselor, Greg Nye, retaliated against her for filing the present lawsuit. Walton decided not to hire Drake and told her that he could

-30Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 31 of 32 not hire her because of the lawsuit.

Defendants contend that Walton made this decision based upon the information he received from Wuthnow, the auditors, and his own perception concerning Drake's job performance. Drake's lawsuit did not bear on Wuthnow's decision.

Drake controverts defendants' statements that her lawsuit did not bear on Wuthnow's decision because "Walton specifically told [Drake] that he wanted to hire her but [Greg Nye, the county counselor,] would not let him do so until the lawsuit was over." (Doc. 36 at 9). While defendants deny that Nye told Walton not to rehire Drake, Walton admits that he told Drake that he could not hire her because of the lawsuit. Walton did not want to tell Drake the real reason he did not want to rehire her, i.e. he believed Drake did not adequately perform her job responsibilities while employed by Wuthnow.

Again, Drake does not point to any Harvey County policy or custom that was the driving force behind the retaliation. In the pretrial order, Drake does not allege that Wuthnow retaliated against her for filing the lawsuit, just the Board. Drake has not named Nye and/or Walton as defendants in this case and the Board cannot be vicariously liable for their actions. Therefore, the Board’s motion for summary judgment on Drake’s retaliation claim is granted.

IV. CONCLUSION

For the reasons stated more fully herein, defendants' motion for summary judgment (Doc. 32) is granted as to the Board and denied as to Wuthnow in his individual capacity.

A motion for reconsideration of this order is not encouraged.

The standards governing motions to reconsider are well established.

-31Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 32 of 32 A motion to reconsider is appropriate where the court has obviously misapprehended a party's position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of reasonable diligence. Revisiting the issues already addressed is not the purpose of a motion to reconsider and advancing new arguments or supporting facts which were otherwise available for presentation when the original motion was briefed or argued is inappropriate. Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan.

1992). Any such motion shall not exceed five pages and shall strictly comply with the standards enunciated by this court in Comeau. The response to any motion for reconsideration shall not exceed three pages. No reply shall be filed.

–  –  –

-32-



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