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Newton v. The Unified Government of Wyandotte County and Kansas City

United States District Court, D. Kansas

June 26, 2018

Kecia Newton, Plaintiff,
v.
The Unified Government of Wyandotte County and Kansas City, Kansas, Defendant.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge

         Plaintiff filed this lawsuit against her former employer alleging that defendant terminated her employment on the basis of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In addition, plaintiff asserts a claim under 42 U.S.C. § 1983 for deprivation of a liberty interest without due process of law. This matter is presently before the court on defendant's motion for summary judgment (doc. 40). As will be explained, the motion is granted.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Plaintiff Kecia Newton is an African-American female. Defendant is a consolidated city-county government with all powers, functions and duties of a first-class city and county under the Kansas Constitution and statutes. In February 2008, plaintiff began her employment with defendant as a customer service representative in the 3-1-1 department. In late January 2013, plaintiff transferred to the position of administrative support specialist in defendant's Delinquent Real Estate Office. The primary responsibility of the Delinquent Real Estate Office is to coordinate the sale of tax delinquent properties through the Wyandotte County District Court and, in her position, plaintiff supported the tax sale process through the district court.

         By way of background, a property is eligible to be placed in a tax sale if the taxes on the property are three or more years delinquent. Employees known as “abstractors” in the Delinquent Real Estate Office apply pre-determined criteria to decide which properties go into a tax sale. They then conduct a title search on each property and prepare a report on the property, which is forwarded to an administrative specialist, who slots each property into the tax sale and assigns it a case number. The filing of a court petition initiates the formal tax sale process, which is followed by service on the property owners. Once a property has been placed in a tax sale, the owner has three options for getting it out: the owner can redeem the property by paying the taxes in full; the owner can pay half the taxes and enter into a payment plan for the remainder; or the owner can apply to the court for other relief, such as paying less than half the taxes and entering into a payment plan for the remainder. The properties in the tax sale are sold at public auction. If a property changes ownership, it remains in the tax sale until the court has taken it out or the new owner has entered into a payment plan with the Treasurer. Changes to the status of a property that is delinquent or in a tax sale are entered into a program known as CIC (short for CIC Tax Administration Solution).

         Plaintiff was responsible for slotting properties for tax sales, sending out notices to County citizens whose properties were in the sales, setting citizens' requests for a court hearing on a docket sheet, communicating with the judge about dates and times for court hearings, updating files in relation to the tax sales, and walking people down to the Treasurer's Office to schedule payment plans. In October 2014, plaintiff began receiving out-of-class pay for performing the duties of the vacant administrative coordinator's position. As an acting administrative coordinator, plaintiff handled legal paperwork, filed Sheriff's deeds, and was responsible for ensuring that notices were timely sent or published.

         According to defendant, plaintiff's ultimate termination arose out of plaintiff's acquisition of three specific properties in the tax sale process. The first property was a residential property owned by Robert Banks and the property was included in Tax Sale No. 331. In May 2014, Mr. Banks came to plaintiff's office and asked whether she knew anyone who would be interested in purchasing the property. Plaintiff offered to purchase the property and, on May 14, 2014, plaintiff paid Mr. Banks $300 for the property and Mr. Banks and his wife, an elderly couple, executed a Quit Claim deed in which they conveyed the property to plaintiff. Plaintiff then accessed the CIC program and, for the property in question, made the following entry: “Tax Sale Number 331/161-Remove. Pay agreement. Do not put in sale.” Plaintiff admits that when she made this entry, she had not entered into a pay agreement for the delinquent taxes and she never entered into a pay agreement at any time thereafter. Plaintiff further admits that she did not pay any taxes owed on the property and the property never went back into a tax sale while she owned it. In June 2015, plaintiff conveyed the property by Quit Claim deed to another individual for $5000. Plaintiff does not know of anyone else in the Delinquent Real Estate Office who had ever purchased a property from a citizen who came to the office seeking assistance. She did not ask anyone whether it was permissible for her to purchase property from County citizens.

         Around the same time that she conveyed the first property to another individual, plaintiff acquired a second property from a citizen who had come to her office. Doris Perez's residential property had gone through a tax sale but did not sell. In June 2015, Ms. Perez came to plaintiff's office and executed a Quit Claim deed conveying the property to plaintiff. Plaintiff paid Ms. Perez nothing for the property and she testified that Ms. Perez gave the property to her as a gift. Plaintiff had not met Ms. Perez prior to Ms. Perez coming to her office in June 2015. During the summer of 2015, plaintiff placed the property on the market for approximately $30, 000 and ultimately leased the property for $650 per month beginning October 1, 2015.[1]

         In mid-September 2015, plaintiff sent a letter to Marilyn Hopkins expressing an interest in purchasing Ms. Hopkins' residential property. In her letter, plaintiff told Ms. Hopkins that her property was behind on taxes and that it was “set to go into a tax sale.” Plaintiff indicated that she was willing to pay the delinquent taxes on the property, have it removed from tax sale eligibility and “get it out of the current owner's names.” Plaintiff testified at her deposition that the likelihood of the property going into a tax sale was “slim to none” and that she did not actually check to see if the property was scheduled to go into a tax sale prior to sending the letter to Ms. Hopkins. On September 22, 2015, plaintiff met Ms. Hopkins in Topeka, Kansas, where Ms. Hopkins executed a Quit Claim deed conveying the property to plaintiff. Plaintiff paid $1000 for the property and, the next month, conveyed the property to another individual for $1000. Plaintiff testified that she intended to renovate the property before selling it, but realized that the renovations required were too expensive, so she sold the property quickly without realizing a profit on it.

         On August 11, 2015, the police department was notified by defendant's Legislative Auditor's office that plaintiff was acquiring properties from citizens who had fallen behind on their taxes and whose properties had been set for auction.[2] The Wyandotte County District Attorney's Office requested that the police department's Internal Affairs unit investigate plaintiff's conduct and Detective Pamela Waldeck conducted that investigation.[3] In the course of her investigation, Detective Waldeck interviewed Mr. Banks, Ms. Perez and Ms. Hopkins as well as other employees in the Delinquent Real Estate Office. Based on her investigation, Detective Waldeck furnished the district attorney with an Affidavit for Application for Warrant and, on October 16, 2015, she and another detective met with plaintiff at plaintiff's office, which was located in the Wyandotte County Courthouse. Plaintiff declined to give a statement. She was then arrested and booked into the Wyandotte County Detention Center. Plaintiff was charged in Wyandotte County District Court with one count of computer crime and three counts of official misconduct, all arising out of plaintiff's acquisition of the three tax-delinquent properties. She was released on a $20, 000 bond. Following a preliminary hearing, plaintiff was bound over for trial on the charges.

         In a letter dated October 21, 2015, Brett Deichler, defendant's Director of Delinquent Real Estate/311 Operations, informed plaintiff that she was suspended without pay pending the resolution of the criminal charges filed against her and the completion of an internal administrative investigation. Renee Ramirez, defendant's Director of Human Resources, had assisted the police department with its investigation into plaintiff's conduct and Detective Waldeck provided Ms. Ramirez a copy of the investigative file concerning plaintiff's acquisition of the three properties so that Ms. Ramirez could determine independently whether any violations of defendant's policies and procedures had occurred. Detective Waldeck's investigation had also uncovered that plaintiff had been operating a credit counseling business out of her office in the Delinquent Real Estate Office. Ms. Ramirez's internal investigation focused primarily on whether and to what extent plaintiff was operating a private credit counseling business in defendant's workplace.

         On May 6, 2016, Ms. Ramirez sent a memorandum to Assistant County Administrators Melissa Mundt and Joe Connor in which she recommended the termination of plaintiff's employment for a variety of ethics and policy violations. On May 20, 2016, a Wyandotte County district judge dismissed the charges against plaintiff. The record is silent as to the reasons underlying that dismissal. On June 8, 2016, Dennis Laughlin, defendant's General Services Director, met with plaintiff in person and notified her that her employment was terminated. Mr. Laughlin provided plaintiff with a letter at that time indicating that defendant had terminated her employment based on multiple ethics and policy violations. In pertinent part, the letter stated as follows:

You used your official position in the Delinquent [Real Estate] Department to obtain title to properties scheduled for tax sale . . . at no cost or at a cost well below market value, then removed the properties or arranged to have them removed from the tax sale. You did not pay the delinquent taxes or enter into payment plans on any of these properties, deliberately circumventing the policy that requires payment of a portion of the taxes due or a court order and entry into a payment plan before property can be removed from a tax sale. . . . After acquiring the properties, you sold them or posted them for sale at prices far exceeding what you had paid for them. Further, you were dishonest with the property owners, who were elderly and vulnerable. You failed to inform the property owners of the established procedures for removing their properties from the tax sale, misled them into believing that their only recourse was to deed the properties to a third party, namely you, and falsely represented to them that you would pay the delinquent taxes owed on the properties.

         The letter further identified plaintiff's operation of a private credit counseling business in defendant's workplace during her working hours and her use of defendant's resources to do so. Finally, the letter indicated that a ...


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