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Cory v. City of Basehor

United States District Court, D. Kansas

July 11, 2014

JASON C. CORY, Plaintiff,
v.
THE CITY OF BASEHOR, et al., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

Plaintiff Jason C. Cory filed his complaint in Leavenworth County District Court on July 5, 2012, alleging a variety of claims related to the termination of his employment as a police officer for the City of Basehor. The defendants removed the case to federal court on August 21, 2012. On January 29, 2014, the defendants filed their Motion for Summary Judgment, seeking judgment in their favor on all of Cory's claims.

In his response, Cory failed to refute the facts asserted by the defendants in their Motion.[1] The court deems these facts admitted, as they are not genuinely disputed.[2] The facts asserted by the defendants are all based on Cory's deposition transcript, Chief Martley's affidavit, and documents attached to their memorandum in support of the motion. The court lists the material facts below.

I. Uncontroverted Facts

Jason C. Cory is a resident of the City of Basehor in Leavenworth County. The City of Basehor is a Kansas municipality. Defendant Lloyd Martley is the Chief of Police for the City of Basehor. Defendant Robert Pierce is the Police Lieutenant for the City of Basehor.

In September of 2007, Cory secured employment as a police officer with the City of Basehor. Cory was unaware of any employment contract with the City and understood that he could quit his job as a police officer at any time. Chief Martley told Cory on several occasions that he could terminate Cory's employment for any reason. After beginning his employment with the City on September 9, 2007, Cory received a copy of the City's personnel documents, including the City of Basehor Employee Policy Handbook and Personnel Policies and Guidelines. The handbook states that "both the employee and the CITY OF BASEHOR have the right to terminate employment at will, with or without cause or advance notice." Dkt. 38, Exh. J, p. 17. The Personnel Policies and Guidelines states that "[t]hese policies and guidelines do not create contractual employment rights." Dkt. 34, Exh. 6, p. 1.

During his employment with the Basehor Police Department, Cory reported to his superiors what he perceived to be violations of the department's policies. He believed these violations reflected problems with safety and integrity in the department. Cory reported these issues as part of his standard operating procedure, and he considered the reports part of doing his job as a police officer.

Cory reported that other officers had unloaded shotguns located in patrol vehicles for emergency use. He reported that officers had placed shotguns into the trunks of police units rather than keeping them inside the passenger compartment where they would be accessible by the officer in an emergency. Cory reported functional problems with the cameras on patrol vehicles. He reported that the holsters provided by the department were incorrect for the officers' issued sidearms.

Cory reported that the tires on his patrol vehicle were bald. He emailed Martley and Pierce that his tires were in need of attention. Martley inspected the tires and determined the department could get more miles out of them. Citing budgetary concerns, Martley suggested that the tires be rotated. When Cory went to the shop, the maintenance worker said they could not be rotated. Martley then told Cory to replace his tires with four tires from the garage. After this, Cory did not report any further problems with the tires on his vehicle.

Cory also complained that officers went home or to the office and slept on the job instead of remaining on patrol, making them unavailable to provide backup. After receiving complaints from Cory and other officers, Chief Martley sent a department-wide memorandum addressing the issue.

Cory alleges that he found himself in the middle of a management conflict after Chief Martley told him not to pursue a criminal investigation for identify theft. In Martley's opinion, the facts reported by Cory did not constitute a crime. Cory reported this to Pierce, who told him to pursue the investigation behind Martley's back.

Cory overheard a private conversation between Martley and Pierce about whether and how officers should respond to an emergency call involving a child's asthma attack. Cory did not believe they knew anybody could hear their conversation. Cory complained to Martley that he believed the conversation had been inappropriate and that it was a conversation two supervisors should not be having.

On June 30, 2010, Pierce called Cory into Chief Martley's office. The two defendants wanted to talk to Cory about a report that he had improperly used city resources. Cory denied any improper use of city resources. Pierce thought Cory was being dishonest because his statements conflicted with what another city worker had said. Pierce raised his voice, and he and Cory reached to shut the door. Pierce's hand knocked Cory's hand out of the way. Cory backed up to the wall. Pierce brought his finger up close to Cory's face and thumped him on the chest twice. Cory was not hurt or offended by the action. Cory complained that Pierce's act constituted an assault on a law enforcement officer in the course of his duties under Kansas law.[3]

On July 1, 2010, Pierce prepared and signed a letter of reprimand addressed to Cory. The letter states that Cory violated a section of the Code of Conduct regarding courteous and respectful behavior toward superior ranked personnel. In the letter, Pierce warned that future violations of this or any other policy would result in progressive discipline against Cory.

On July 9, 2010, Martley met with Cory to discuss the incident. When the conversation ended, Martley noticed that Cory had been wearing a device to record their conversation. Cory wore the tape recorder in his shirt pocket and did not tell Martley or seek his permission to record the conversation. After realizing Cory had been recording the conversation, Marley suspended Cory indefinitely.

On July 15, 2010, the City of Basehor terminated Cory's employment. Martley felt he could no longer trust Cory as a member of the police force. He had never caught any other officer recording or attempting to record their private conversations. Martley believed that the loss of trust between the two would disrupt the efficient operation of the police department. Martley also terminated Cory for his inability to get along with co-workers.

II. Legal Standard for Summary Judgment

"A party may move for summary judgment, identifying each claim or defense- or the part of each claim or defense-on which summary judgment is sought." FED. R. CIV. P. 56(a). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact." Id. Summary judgment is proper when 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. 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 Hosp., 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 Nat. Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove [nonmovant'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) (alterations added).

III. Analysis

In his complaint, Cory made four claims: wrongful termination of employment, breach of employment contract, violation of civil rights under 42 U.S.C. ยง 1983 and intentional infliction of emotional distress. Cory asserted each claim against all defendants. The court analyzes each claim separately, starting with the breach of contract claim because other claims hinge on result of that analysis.

A. Breach of Employment Contract

Cory claims that the defendants breached his contract when they terminated his employment without following the proper procedures. Specifically, Cory alleges he was entitled to a written notice of misconduct, a meeting with the appropriate authority, an opportunity to refute the factual allegations against him, a final written decision and written notification of the facts to file a grievance. Cory argues he could only be terminated for "serious misconduct" according to his contract of employment and that he was terminated without any reasonable justification.

The defendants argue that no employment contract, explicit or implicit, ever existed between Cory and the City of Basehor. They argue that the documents Cory relies upon as establishing his contractual rights-the City's Employee Policy Handbook and Employee Discipline Policy-are insufficient to establish a contract. The defendants assert that Cory is an at-will employee and, as such, his termination requires no justification under Kansas law.

Kansas historically adheres to the employment-at-will doctrine, which holds that employees and employers may terminate an employment relationship at any time, for any reason, unless there is an express or implied contract governing the employment's duration. Campbell v. Husky Hogs, LLC, 292 Kan. 225, 227, 255 P.3d 1 (2011) (citing Morriss v. Coleman Co., 241 Kan. 501, 510, 738 P.2d 841 (1987)). In this case, Cory admitted in his deposition and in his response to this motion that he was never given an explicit employment contract. The court need only analyze whether an implied contract existed between the parties.

"An implied employment contract arises from facts and circumstances showing a mutual intent to contract." Inscho v. Exide Corp., 29 Kan. App.2d 892, 895-96 (2001). "Relevant factors to consider in deciding whether the parties had mutual intent to contract include: (1) written or oral negotiations; (2) the conduct of the parties from the commencement of the employment relationship; (3) the usages of the business; (4) the situation and objective of the parties giving rise to the relationship; (5) the nature of the employment; and (6) any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time employment commenced." Id.

Cory admits he did not negotiate for the procedures included in the personnel documents at issue. He also admits to being aware that he could quit at any time and that the department could terminate him for any reason. However, he maintains that the personnel documents establish an implied contract entitling him to certain protections.

"The Kansas Supreme Court has recognized the existence of an employment manual as one indicium of an implied contract, but a written personnel policy alone is not sufficient to establish an implied contract of employment.'" Brantley v. Unified Sch. Dist. No. 500, 405 Fed.App'x 327, 334 (10th Cir. 2010) (quoting Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 138, 815 P.2d 72 (1991)). "Rather, as a matter of law, plaintiffs must provide additional corroborating evidence before a court may conclude that a jury could find an implied contract." Id.

In Brantley v. Unified School District Number 500, 405 Fed.App'x 327 (10th Cir. 2010), the plaintiff challenged his demotion as a violation of due process. His employer, the school district, had in place an employee grievance process for employees to lodge complaints alleging violations, misapplications, or misinterpretations of regulations. Brantley, 405 Fed.App'x at 329-30. Additionally, the school district had adopted a set of written policies entitled "Administrative ...


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