United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
Plaintiff Firma Helget brings suit against her former employer, the City of Hays, Kansas and Hays Police Chief Donald Scheibler and City Manager Toby Dougherty. Under 42 U.S.C. § 1983, plaintiff claims that defendants terminated her employment in retaliation for exercising her First Amendment right to testify truthfully (Count I) and to speak out on a matter of public concern (Count II), and for conspiring to violate her First Amendment rights (Count III). Plaintiff also brings state law claims under Kansas common law for terminating her employment for giving truthful testimony and for speaking out on a matter of public concern. This matter comes before the Court on the Individual Defendants' Motion For Summary Judgment (Doc. #178), Defendant City Of Hays, Kansas' Motion For Summary Judgment (Doc. #185) and Plaintiff's Motion For Partial Summary Judgment (Doc. #181), all filed October 27, 2014. For reasons stated below, the Court finds that defendants' motions should be sustained in part and that plaintiff's motion should be overruled.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A "genuine" factual dispute is one "on which the jury could reasonably find for the plaintiff, " and requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S. at 252. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248.
The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving party meets the initial burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to the dispositive matters for which the nonmoving party carries the burden of proof. Nat'l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may not rest on the pleadings but must set forth specific facts. Fed.R.Civ.P. 56(e)(2); Matsushita, 475 U.S. at 586-87; Justice, 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter, 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).
When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 557 U.S. 557, 586 (2009). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). The doctrine of qualified immunity serves the goals of protecting officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 506 (1978).
When defendant asserts a qualified immunity defense at the summary judgment stage, the burden shifts to plaintiff to show that defendant violated a constitutional right and that the constitutional right was clearly established at the time of the alleged violation. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1204 (10th Cir. 2008). To satisfy this burden, plaintiff must show facts which, when viewed in the light most favorable to plaintiff, demonstrate that (1) defendant's conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If plaintiff does so, the burden shifts back to defendant to prove that no genuine issues of material fact exist and that defendant is entitled to judgment as a matter of law. See Olsen, 312 F.3d at 1312. If the record shows an unresolved issue of fact relevant to the qualified immunity analysis, the Court must deny the motion for summary judgment. See id.
The following material facts are either uncontroverted, or, where controverted, set forth alternatively in the light most favorable to each party.
From 1989 to 2012, Firma Helget worked as an administrative secretary for the City of Hays, Kansas. Beginning in 2012, Helget served as administrative secretary for Chief of Police Donald Scheibler and Assistant Chief of Police Brian Dawson. The City of Hays maintains two job descriptions for the position of administrative secretary. The descriptions are similar; each lists tasks which include preparing agendas and taking minutes for meetings, budget-related tasks and maintaining personnel files. See Docs. #186-8, 182-28. One of the descriptions states that "[t]his employee should possess... the ability to maintain confidentiality" and that the essential functions include "maintain[ing] confidential records and files." See Doc. #186-8. Plaintiff knew that her job required her to maintain confidentiality. Helget Dep. at 167, 138.
The City Personnel Manual provides that "disclosing confidential records or information unless directed to do so by a department head or supervisor" is cause for termination. Ex. H, CITY000884-85. The Manual also provides that "[u]nauthorized use of City time or equipment" is misconduct that is subject to disciplinary action. Ex. H, CITY000881-82. Plaintiff understood that she was responsible for reading and complying with the policies in the Manual.
On November 16, 2011, former Hays Police Department Officer Blaine Dryden filed a lawsuit in this Court against the City of Hays, City Manager Toby Dougherty and then-Chief of Police James Braun. See Case No. 11-CV-1354-KHV-KGS, Dryden v. City of Hays, et al. Under 42 U.S.C. § 1983, Dryden claimed that defendants had fired him in retaliation for union activities. His complaint alleged that in early December of 2010, the City had decided not to replace his worn-out ballistics vest. This allegation was relevant because the City claimed that it fired him for an incident which occurred in late December of 2010. Thus, the fact that the City decided in early December not to replace Dryden's ballistics vest supported his claim that the City's stated reason for firing him was a pretext.
Some time during 2011, Dryden's attorney, Denise Howard, contacted Helget regarding Dryden's lawsuit. In April of 2012, Howard spoke with plaintiff again. On April 22, 2012, plaintiff voluntarily executed an affidavit for Dryden's lawsuit against the City. The affidavit stated in relevant part as follows:
During the entirety of James Braun's tenure as Chief of Police, I was employed as the administrative secretary to the Chief and Assistant Chief of Police.
In November 2010 I was told to prepare a list of every officer [ ] due for a new ballistic vest in 2011. Pursuant to that request, I prepared a list which included Investigator Blaine Dryden.
When I presented the list to [A]ssistant Police Chief [Philip Hartzfield], he told me that the Department was going to hold off on ordering a vest for Blaine Dryden.
No other officer's name was removed from this list.
On December 6, 2010, I ordered new ballistic vests for every officer on the list except for Blaine Dryden.
Blaine Dryden was known by me and others in the Department to be an active member of the F.O.P. who would advocate on behalf of officers and other employees of the Department.
While pursuing my own grievance against the Department, Police Chief James Braun cautioned me about talking with Blaine Dryden.
During James Braun's tenure as Chief of Police, it was common for people to talk about how much longer they had to work before they could retire. In addition to Blaine Dryden, I heard Sergeant Dan Koerner and Investigator Bill Lovewell make such statements.
Doc. #186-7 (paragraph numbers omitted). Helget did not know why Assistant Police Chief Hartzfield told her to hold off on ordering Dryden's vest. Ex. C. at 139, 140, 156. She later testified that she believed that the affidavit revealed wrongdoing because in all of her years at the Police Department, she had never had an officer removed from the vest replacement list. Id. at 176.
Helget obtained the information in the Dryden affidavit solely through her employment with the City. Ex. C, Helget Dep. at 139-40. Plaintiff did not consult with anyone at the City before offering the information contained in the affidavit.
On April 27, 2012, Dryden filed plaintiff's affidavit as an exhibit in support of his response to the City's motion for summary judgment in his case.
On May 1, 2012, Scheibler and Dawson met with Helget to discuss her job performance. They counseled Helget about personal internet use at work and her overall demeanor. Doc. #182-2. During that meeting, Scheibler was not planning to fire Helget - rather, he said "there's going to be some documentation coming out of this and we're going to have to sit down and take a look through that." Id . Scheibler also told Helget that she was a "super" purchasing agent. Id . During spring of 2012, Dawson had been monitoring Helget's demeanor because of concerns about her interaction with staff. After the meeting on May 1, he did not record any observation about her being rude. On May 2, 2012, Dawson took note of plaintiff's "efforts to be more social." Id.
On May 9, 2012, Helget told Scheibler she was "considering" a job with Fort Hays State University ("FHSU"). Scheibler responded that he "appreciate[d]" the advance notice that Helget was considering the job because "you do a lot." Ex. B. Helget told him that she would not know for sure about the job with FHSU until July of 2012.
Scheibler testified that on May 10, 2012, he learned that plaintiff had signed an affidavit in the Dryden litigation. Doc.#186-5 at 104. On May 10, 2012, Peter Maharry, the City's attorney, sent a copy of the affidavit to Scheibler. Scheibler told Maharry that he was concerned about Helget having signed the affidavit and that Helget was listed as a potential witness for Dryden.
On May 10, 2012, Erin Giebler, the City's Human Resources Coordinator, sent a copy of the affidavit to Assistant City ...