United States District Court, D. Kansas
MATTHEW B. MICHAELS, Plaintiff,
CITY OF McPHERSON, KANSAS, AND ROBERT McCLARTY, Defendants.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This matter is before the court on two motions: (1) plaintiff's motion for partial summary judgment (Doc. 72) on Counts I and VIII; and (2) defendants' motion for summary judgment (Doc. 74) on all remaining counts, including Counts I-IV and VIII, as described below.
In Count I, plaintiff Matthew B. Michaels brings a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment against defendant Robert McClarty, Chief of Police, and the City of McPherson, Kansas ("the City") for denial of due process of law and violation of his liberty interest for McClarty's statements in a Kansas Commission on Peace Officers' Standards and Training ("KS-CPOST") report and for defendants' failure to provide plaintiff with any pre-termination or post-termination name-clearing hearing. Count II is plaintiff's Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., interference claim against the City for its denial of plaintiff's FMLA leave request for May 17, 2012. In Count III, plaintiff brings a discrimination claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., alleging the City discriminated against him by basing his termination on his sleep apnea and by including reference to him "sleeping on duty" in the KS-CPOST report. In Count IV, plaintiff brings a defamation claim against McClarty and the City for McClarty's statements made to the City Commission. Plaintiff abandoned counts V-VII. ( See Doc. 70 at 32.) In Count VIII, plaintiff alleges that the City violated the Kansas Wage Payment Act ("KWPA"), Kan. Stat. Ann. § 44-313, et seq., by failing to pay plaintiff for his accrued vacation time.
I. Factual Background
Plaintiff was employed by the City as a police officer for almost nine years. The City Commission terminated plaintiff's employment at a City Commission meeting upon McClarty's recommendation. McClarty then submitted a report to the KS-CPOST stating the following reasons for plaintiff's termination: "Argumentative with Superiors, insubordination, conduct unbecoming an Officer, sleeping on duty, numerous other circumstances and situations where he was no longer viable to be a Police Officer." (Doc. 76-10 at 2.)
After plaintiff had three at-fault motor vehicle accidents while working the third shift from April 30, 2006, to July 2, 2007, former Police Chief Dennis Shaw placed plaintiff on a one-year evaluation on or about July 9, 2007. On August 18, 2010, plaintiff was suspended without pay for repeated violations of sleeping on the third shift. Plaintiff was later suspended for two days without pay and placed on probation for six months after he was observed asleep in his patrol car. After this incident, plaintiff sought medical attention and was diagnosed with obstructive sleep apnea. Plaintiff received medical treatment, and he had no further incidents of falling asleep while on duty. Plaintiff did not file grievances for any of the instances. On May 14, 2012, plaintiff was also issued a written warning for wearing the incorrect dress uniform pants for an All Schools Day Parade.
Although the court need not go into detail for the purposes of this motion, there is another incident in which a local high school student asked plaintiff if he could procure a fictitious offense report for a class project. Plaintiff asked several of his superiors for permission to provide the report, and was told no. The specifics of the conversations are in dispute, but defendants argue that plaintiff was "fishing for answers" regarding the report, which plaintiff denies.
Plaintiff's stepdaughter was diagnosed in 2009 with a permanent serious health condition. Plaintiff alleges he applied for FMLA leave on May 17-18, 2012,  to take his stepdaughter to Kansas City for a sleep-deprived electroencephalogram ("EEG") with check-in scheduled for 11:45 a.m. on May 18. Plaintiff and his wife were instructed to keep his stepdaughter awake until midnight on May 18 and wake her up at 4:00 a.m. Plaintiff applied for leave under a practice established under former Chief Shaw, which required plaintiff to request vacation leave and note the reason for leave on the Day(s) Off Request. Plaintiff submitted a Day(s) Off Request for May 17-18 and wrote "Hannah appt. KC EEG" on the form. Plaintiff's plan was to travel with his wife and their entire family to Olathe, Kansas, on May 17 to stay with a family member so they could follow the sleep protocol for the EEG. The City required employees to use accrued vacation leave for FMLA leave associated with a spouse or child.
McClarty, Shaw's successor, refused to grant leave on May 17 because of a mandatory departmental training. Plaintiff received approved Overtime Adjustment Hours, allowing him to leave the shift after the training was completed, anticipated to be at about 8:00 p.m. Plaintiff attended the training. During a break in the training, plaintiff complained to the McPherson County 911 Director Darren Frazier, who was conducting the training, that the training was taking too long. The training ran longer than anticipated, and afterward McClarty conducted a departmental meeting and gave out some commendations. McClarty then verbally reprimanded plaintiff for an incident that happened earlier in the day. Plaintiff complained to McClarty that he should have been released to leave for his stepdaughter's appointment. Plaintiff was not released to leave until approximately 11:00 p.m., after a written warning was prepared.
Plaintiff and his family left directly from the Law Enforcement Center and drove to Olathe, Kansas. Plaintiff drove and his wife kept his stepdaughter awake until midnight, when she let her go to sleep. They arrived in Olathe at around 1:45 a.m. on May 18. Plaintiff woke up his stepdaughter at 4:00 a.m. as required, and his stepdaughter made it to the appointment as planned. Plaintiff did not file a grievance regarding the leave denial. Plaintiff returned to work on May 21, 2012, and was suspended for two days without pay for "insubordination" and "conduct unbecoming an officer." Plaintiff did not file a grievance regarding the suspension.
Another disciplinary incident in dispute involves plaintiff's response to an order to retrieve video surveillance of a shoplifting incident at Walmart in which the suspect confessed. Plaintiff maintains he followed the necessary steps to retrieve the video, but he admits he said the requirement to retrieve the video was "stupid." He also asked superiors on two different occasions why it was necessary to obtain the video. McClarty was told that plaintiff was again "fishing for answers" after the video incident.
McClarty suspended plaintiff for two days for "insubordination" and "dereliction of duty" on July 11, 2012. McClarty told plaintiff that McClarty was going to go to the City Commission on July 16, 2012, to recommend his termination. Neither McClarty nor Assistant Chief Terry informed plaintiff of any procedure to challenge a termination. McClarty contends that he told plaintiff he could attend the City Commission meeting, but plaintiff argues that McClarty told him he should go ahead on his already-scheduled vacation. Terry then required plaintiff to turn in his equipment he was carrying or wearing and told him he could return the remainder of the City's property upon his return from vacation, if he was fired. Plaintiff was escorted from the Law Enforcement Center.
Plaintiff was terminated by the City Commission on July 16, 2012, solely based on McClarty's recommendation. Captain Martens gave plaintiff a copy of the written disciplinary action regarding his termination. Plaintiff submitted a written request for a grievance hearing to contest his termination on August 2, 2012. On August 16, 2012, the City Attorney told plaintiff he was not entitled to a grievance hearing because he was terminated by the City Commission and because his request was untimely. Plaintiff is now employed as a security guard at Hospira by U.S. Security Associates.
Plaintiff had approved vacation from July 13-23, 2012. Plaintiff alleges that he had already taken two days out his vacation out-of-state when he was notified that the City Commission terminated his employment and pay on July 16, 2012. Plaintiff alleges that the City terminated his vacation pay after the second day, causing him to forfeit five days of earned vacation pay and violating the KWPA. The City argues that plaintiff was discharged before taking any vacation.
II. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 ...