MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Plaintiff Max Seifert was removed from his volunteer position with the Wyandotte County Sheriff's Department in 2010, and alleges that the removal was retaliation for his testimony in a separate civil rights action. The defendants have moved for summary judgment on various grounds. For the reasons provided herein, the court finds that summary judgment should be granted.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
Seifert retired as a detective from the Kansas City, Kansas Police Department in December, 2005. He applied for and was granted a reserve commission by Wyandotte County Sheriff Leroy Green during December, 2005, which is an unpaid voluntary position under K.S.A. § 19-805a.
In June 2008, Seifert was hired by the Wyandotte County Sheriffs Department to work in the jail classifications department as a classification technician, a paid position.
While Seifert was working as a classification technician and before June 2009, he spent additional time conducting investigations as a reserve deputy, fulfilling his reserve commitment on top of his full-time job.
The Unified Government is a municipal corporation organized and existing under the Kansas law. Defendant Donald Ash was elected Sheriff of Wyandotte County in April, 2009. Sheriff Ash chose Larry Roland as Undersheriff, pursuant to K.S.A. 19-803.
In June 2009, Roland informed Seifert he could no longer work in investigations as a reserve deputy.
Seifert's reserve commission was revoked on April 13, 2010 when he was handed a memorandum signed by Undersheriff Roland stating that the decision to remove his reserve status was an "Administrative action."
The Barron Bowling Incident
While he was a detective with the KCKPD, Seifert investigated the 2003 incident in which Barron Bowling alleged he had been assaulted by federal DEA agents. Seifert subsequently testified at both the unsuccessful criminal prosecution of Bowling, and the later successful civil rights action brought by Bowling against the federal government.
The defendants submit that no documentary evidence exists that Seifert received a reserve commission from Sheriff Ash.
According to Rickey Whitby, shortly after he was promoted to Chief Deputy in April of 2009, he heard from Assistant United States Attorney Terra Morehead that the Sheriff's Office should not bother sending over files with Seifert's name on them because of Giglio issues. Whitby has testified that he reported Morehead's statement up the chain of command to Roland and Ash.
Roland has testified that he contacted Morehead, who confirmed Whitby's statement. She emailed a copy of a judicial decision, and remarked that Seifert had "bungled" investigations. Roland relayed this information to Sheriff Ash. Ash and Roland also spoke with District Attorney Jerome Gorman to determine whether Seifert had issues on case files to be sent to the District Attorney. From this Ash understood that Gorman also believed Seifert had Giglio issues.
In his Response, Plaintiff points to relatively insubstantial portions of Morehead's deposition. Thus, she testified that she did not recall talking to Whitby, but did recall that Roland had called her. She testified that it was possible some Sheriff's employees had attended training classes in which she used Seifert as an example of an officer who was not credible.
It is uncontroverted that Morehead emailed Roland on June 29, 2009 about her concerns with Seifert, including a copy of Judge Vratil's decision in United States v. Elam, No. 98-20037-KHV (D. Kan.1998), in which she sustained a defendant's motion to suppress after explicitly concluding that Seifert's testimony "lacks credibility."
Here is the order from the federal case. They have the hearing transcript on order and I'll forward that to you when we get it. I never knew about this ruling until I came over in 2002, but since I've been here, and before Max retired from KCKPD, we had several issues with him bungling investigations that he knew were going to be federal cases.
The plaintiff suggests that Morehead's testimony is false because she testified in her deposition that she did not give any explicit "advice" to the Sheriff's Department as to what to do with Seifert. But this acknowledgment is relatively minor; no one contends that the Assistant U.S. Attorney Morehead was in any position give specific or authoritative legal advice to the Wyandotte County Sheriff's Department. What is contended, and uncontroverted, is that Morehead told the Sheriff's Department in 2009 that Seifert had credibility problems under Giglio.
With respect to Gorman, the plaintiff similarly suggests that Roland and Ash's respective versions of events are "manufactured" and false, again because of relatively minor variations in the testimonies of Roland, Ash, and Gorman. As noted above, Roland and Ash testified that Gorman told them that his office also had Giglio issues with Seifert, saying that Gorman said he "can't use cases" from Seifert. In his deposition, Gorman was asked if he had said that he "would not take cases from Max Seifert." Gorman said, "I don't believe I used those terms, " but asked for what he did say, it was hardly favorable to Seifert:
I believe the words that I would have used is that as - from my reading of that case, that I believe that there is a Giglio issue there, and that I would have had to - to look at any case that they would have brought to me on a case-by-case decision knowing that I believe that there's a Giglio issue. I would have had to take that into concern - and I would have had to take that into consideration.
He further testified that "[i]f he was going to be a witness, I would have to disclose it [Judge Vratil's decision in Elam ] to the defense." Asked further about this concern, Gorman paraphrased the question as "are you saying I would I have hesitated in filing a case because of that?... It would have caused me concern, yeah."
More substantively, the plaintiff suggests that Roland and Ash's version of events is false by construing Gorman to indicate that he first learned of the Seifert Giglo problem in 2010, not 2009. This is a misconstruction of Gorman's testimony based on questions from counsel about a February 9, 2010 "cease and desist" letter from Seifert's attorney, demanding that Gorman should stop saying that Seifert was "Giglioed."
While Gorman testified that he first read the Elam decision after receiving the February 9, 2010 cease and desist letter, he does not testify that this was the first time he learned about potential Giglio problems with Seifert. To the contrary, Gorman testified that he received the letter after he had conducted a series of law enforcement training sessions with AUSA Morehead in which she described Seifert's Giglio problems. Gorman explicitly testified that he did not remember what year the training sessions began, but the uncontroverted testimony is that these sessions occurred in 2009.
During those [training session] conversations, Terra [Morehead] would bring up that officers have obtained or gotten Giglio issues in the past, and she mentioned that - I believe this would have been after Max was - had left the Kansas City, Kansas Police Department, because I think it was put that, you know, former Detective Seifert had a Giglio issue.
Gorman was asked directly if he had "any clue" about Seifert's credibility problem prior to 2010, and he indicated that he "had no direct knowledge of [the Elam decision] until then, " but clarified that he had heard talk of it before. (Gorman dep. at 27) (emphasis added). As noted earlier, it is ...