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Appleby v. Board of County Commissioners of Douglas County, Kansas

United States District Court, D. Kansas

August 2, 2018

KYLE APPLEBY, Plaintiff,


          Daniel D. Crabtree, United States District Judge

         Plaintiff Kyle Appleby brings this lawsuit against defendant Board of County Commissioners of Douglas County, Kansas, asserting that defendant demoted him from his position with the Douglas County Sheriff's Office based on sex discrimination and as retaliation for sustaining a worker's compensation injury. Plaintiff asserts his sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. And he asserts his retaliation claim under the Kansas common law prohibiting retaliation based on worker's compensation injuries because it violates public policy.

         Defendant has filed a Motion for Summary Judgment, seeking summary judgment against both of plaintiff's claims. Doc. 58. Plaintiff has submitted an Opposition to defendant's motion. Doc. 68. And defendant has filed a Reply. Doc. 73. The matter thus is fully briefed, and after considering the parties' arguments, the court is prepared to rule. For reasons explained below, the court grants defendant's summary judgment motion in part and denies it in part.

         I. Uncontroverted Facts

         The following facts are either stipulated facts taken from the Pretrial Order (Doc. 55), or are uncontroverted and stated in the light most favorable to plaintiff as the non-moving party. Scott v. Harris, 550 U.S. 372, 379 (2007).

         Plaintiff works for the Douglas County Sheriff's Office (“DCSO”) as a Corrections Officer III. He is assigned to the Douglas County Corrections Facility. Plaintiff is male, and he holds himself out as gay.

         Plaintiff testified that he consistently has met or exceeded expectations in his Corrections Officer performance evaluations. In 2017, plaintiff was commended by his DCSO supervisor for his quick action to subdue an inmate.

         Plaintiff's Interactions with Sergeant Moffitt

         When plaintiff began his employment with the DCSO in 2006, Sergeant Moffitt was a Corrections Officer. Plaintiff worked on the same shift as Sergeant Moffitt. Plaintiff testified that throughout his career with the DCSO, Sergeant Moffitt treated him horribly. He bullied plaintiff and made mean comments to him. Plaintiff always had problems with Sergeant Moffitt.

         In 2012, Sergeant Moffitt subjected plaintiff to offensive comments about his masculinity several times. Sergeant Moffitt referred to plaintiff as “fag.” He also repeatedly said that plaintiff had “drag queen eyebrows.”

         Another DCSO employee, Master Deputy Darcie Holthaus, testified that she heard Sergeant Moffitt make negative comments about male homosexuality on many occasions while he was assigned to the Corrections Division. Master Deputy Holthaus knows of at least two openly gay lesbians who the DCSO employs. Master Deputy Holthaus never heard Sergeant Moffitt make negative comments to either of the two lesbians about their sexuality. Plaintiff complained to Master Deputy Holthaus about Sergeant Moffitt's treatment of him.

         Sergeant Moffitt never was plaintiff's direct supervisor during his employment with the DCSO. Yet, plaintiff testified that he had no choice but to follow Sergeant Moffitt's directions because he held the rank of Sergeant.

         Plaintiff testified that he never confronted Sergeant Moffitt about his offensive comments. Plaintiff also never reported Sergeant Moffitt's conduct to anyone in the DCSO or by using the mechanism in the Douglas County personnel policy.

         DCSO's Process for Deputy Promotion

         When the DCSO has an opening available for a Deputy position, it will announce that opening and accept applications from individuals seeking the position. The DCSO also requires applicants to take a written test and achieve a score of 70% or better on each section of the test.[1]If an applicant passes the written test, he proceeds to the interview stage. With internal candidates, the DCSO establishes a promotions board. The promotions board interviews each applicant, and the board members rank the applicants. The promotions board then makes a forced ranking, i.e., ranking the applicants collectively from best to worst.

         Sheriff Kenneth McGovern is the duly elected Sheriff of Douglas County, Kansas. He has held this position at all times relevant to this lawsuit. Sheriff McGovern has determined that the Lawrence Police Department Basic Recruit Academy (“Academy”) is the best available academy for potential Deputies to receive and complete the law enforcement officer training necessary to comply with state law. See Kan. Stat. Ann. §§ 74-5601, et seq. (Kansas Law Enforcement Training Act). For this reason, the DCSO uses the Academy for its potential Deputies to receive the required law enforcement training.

         The Academy only admits officers ranked as Deputies. Because of the Academy's requirement, the DCSO appoints successful applicants to the rank of Deputy but conditions the promotion on successfully completing the Academy.

         Plaintiff Applies for a Promotion to Deputy

         On September 13, 2013, the DCSO announced that it was seeking applications for an available Deputy position. Plaintiff then was employed by DCSO as a Corrections Officer. He applied for the open Deputy position. Six candidates, including plaintiff, took the written test on October 22 and 24, 2013. Plaintiff did not score 70% or higher on each section of the test. So he was not eligible to advance in the application process for that opening.

         On August 1, 2014, the DCSO announced another opening for a Deputy position. Plaintiff (who still was working as a Corrections Officer) applied for the position. On August 26 and 28, 2014, six candidates, including plaintiff, took the written test. Plaintiff scored a 70% or higher on each section of the test, making him eligible to advance in the application process.

         The DCSO eventually selected plaintiff for the promotion, along with Corrections Officers Haney and Weinmaster. On May 23, 2015, the DCSO promoted plaintiff to the rank of Deputy. Plaintiff understood that the Academy required him to hold the rank of Deputy before it would permit him to participate in its law enforcement training program. Plaintiff also understood that his promotion was contingent upon completing the Academy. But, in the meantime, plaintiff received the promotion and a corresponding pay increase.

         Plaintiff's Performance at the Academy

         On June 1, 2015, plaintiff began the Academy. The Academy had a structured curriculum that was expected to run about 25 weeks. The Academy's scheduled end date was November 13, 2015. The last week of the Academy is called officer survival week, sometimes referred to as hell week.

         On July 22, 2015, plaintiff sustained a back injury during defensive tactics training. He went to the County's healthcare provider, Prompt Care, Lawrence Occupational Services, and received medical treatment for his injury. A physician prescribed plaintiff light duty restrictions for one week, including no physical training and no lifting more than five pounds. Plaintiff missed the Academy's afternoon classes on July 22. But he returned to the Academy the next day.

         Sergeant Robert Murry with the Lawrence Police Department told DCSO Captain Buchholz and Undersheriff Martin about plaintiff's back injury on the day it happened. On July 26, 2015, plaintiff returned to Prompt Care, and he asked the physician to modify his medical restrictions to accommodate his training at the Academy. But instead, the physician increased his restrictions to include no running and no lifting more than 25 pounds. From July 26 to July 30, plaintiff was subject to these light duty restrictions.

         During the Academy, recruits took written and physical tests. Also, the Academy's instructors placed recruits into various real-life scenarios. Instructors graded the recruits' performance during the scenarios either as a pass or fail. Defendant has submitted grading sheets showing the various scenarios where instructors gave plaintiff a failing grade. Doc. 60-17 at 1- 20.

         Captain William Cory is employed by the Lawrence Police Department, and he has served as an instructor at the Academy. Captain Cory was present for three days of officer survival week when plaintiff attended the Academy. Captain Cory observed that plaintiff lacked a requisite level of physical fitness. He saw that plaintiff was struggling on the very first run, and “it didn't get better from there.” Doc. 60-7 at 4 (Cory Dep. 13:5-13). Captain Cory also watched plaintiff perform a scenario that involved recruits removing a subject from a restroom at a bar. Plaintiff was the secondary unit-or back unit-assigned to the scenario. Captain Cory saw that plaintiff was not engaging, meaning that he was not getting into the bathroom to assist his fellow recruits. Accordingly to Captain Cory, plaintiff did not demonstrate the skills necessary to take control of the situation presented by the scenario. Captain Cory testified that plaintiff's performance caused him to fear that plaintiff was a danger to himself, other officers, and the general public.

         Captain Cory wrote an Officer's Special Report, documenting his observations of plaintiff's performance at the Academy. Doc. 60-16 at 1-2. His Report opines that plaintiff was not functioning at the level required to work as an effective and safe Deputy. Id. Before he wrote the Officer's Special Report, Captain Cory did not know that plaintiff had injured his back during an earlier training at the Academy. Also, Captain Cory did not know that plaintiff is gay. Captain Cory always instructed trainers at the Academy to take good notes during officer survival week. And, if a recruit was having trouble with the training, Captain Cory instructed trainers to write a summary. He gave these instructions about any recruit-not specifically plaintiff.

         Officer Josh Guile is employed by the Lawrence Police Department. In 2015, Officer Guile was an Academy instructor, teaching vehicle stops. Officer Guile observed several scenarios where, he believed, plaintiff failed to perform properly. The first scenario involved a vehicle stop with drugs in the car. According to Officer Guile, plaintiff saw the drugs but didn't take any action. Plaintiff twice walked away from the vehicle, allowing the occupant role players to hide the drugs. Plaintiff appeared flustered, but he did not take any action until the backup unit arrived. Ultimately, plaintiff arrested the role players for possessing drugs, but he never collected the drugs as evidence. Plaintiff testified about this scenario. He explained that he saw the drugs, but did not take any action because he thought he should wait for back up to arrive. Plaintiff thought the Academy was a place to “mess up” and “make the wrong choice” but “[t]he whole point is to learn.” Doc. 69-2 at 28 (Appleby Dep. 107:5-108:4).

         In another scenario that Officer Guile observed, plaintiff was the primary officer responding to a vehicle stop. (The primary officer is the one taking the lead in the scenario.) The role players drove away quickly to execute a driver's switch. Plaintiff didn't see the driver switch. When the car stopped, plaintiff drew his firearm and ordered the driver to step out of the vehicle. The driver did so with his hands up, but plaintiff never followed up. Instead, plaintiff holstered his gun and stood next to the driver, not knowing whether the driver was armed. Plaintiff never patted down the driver. Also, he never placed him in handcuffs. Officer Guile described plaintiff's actions-i.e., failing to determine whether an individual involved in a car chase was carrying a weapon-as unsafe. Officer Guile thought plaintiff could have been hurt or killed.

         Officer Guile observed another scenario where plaintiff was the backing officer (i.e., the officer providing back-up to the primary officer). The primary officer was trying to arrest the role player on a warrant. But the two officers did not have control of the person, and a fight ensued. According to Officer Guile, plaintiff didn't use the proper defensive tactics to gain control. Plaintiff also didn't show a sense of urgency compared to the other recruit performing the scenario.

         In another scenario, Officer Guile observed plaintiff playing the role as the primary officer on a vehicle stop. The role player driver exited the car and immediately began shooting a weapon. According to Officer Guile, plaintiff did not get out of his vehicle quickly and didn't draw his firearm quickly. When plaintiff finally drew his firearm, the suspect already had emptied his weapon. Officer Guile testified that, in a real-world situation, the suspect would have shot plaintiff multiple times. Plaintiff testified that he does not recall Officer Guile discussing his criticisms of plaintiff's performance with him.

         Officer Guile testified that he would not have recommended plaintiff complete the Academy or move on to Deputy status. Officer Guile did not know that plaintiff had injured his back during a training at the Academy. But he noticed that plaintiff appeared to be in pain during one of the scenarios.

         Officer Kevin Henderson is employed by the Lawrence Police Department. He was an instructor at the Academy when plaintiff attended it. Officer Henderson taught car stops, and he personally observed plaintiff's performance in several scenarios. He authored an Officer's Special Report, criticizing plaintiff's performance at the Academy and opining that plaintiff's deficient skills presented a danger to himself, other officers, and the public. Doc. 60-19.

         In one scenario, Officer Henderson observed plaintiff perform a vehicle stop where the occupant had an outstanding warrant. While stopping the vehicle, plaintiff used the patrol car's public address system instead of the radio microphone to report the stop. It also took plaintiff several approaches to the stopped vehicle to gather necessary information-i.e., plaintiff returned to his patrol car several times without required information, thus requiring him to return to the stopped vehicle to get the appropriate information.

         In another scenario, Officer Henderson watched plaintiff perform a vehicle stop where the occupants left narcotics in plain view. Plaintiff never saw the narcotics, and the occupant eventually threw them out of the vehicle. Earlier in the Academy, plaintiff had received classroom training about this scenario. He received that training before performing the real-world scenario.

         Officer Henderson observed plaintiff perform another scenario involving a vehicle with several occupants leaving a bar. Plaintiff was the backing officer in this scenario. Officer Henderson watched plaintiff stand at the back of the vehicle without doing anything to assist the other recruits with the stop. When plaintiff attempted to handcuff one of the vehicle's occupants, he used the wrong technique. Plaintiff's poor handcuffing led the occupant role player to start a fight. The instructors had told role players not to fight the recruits if they used proper handcuffing techniques. According to Officer Henderson, instructors try to give as much feedback to all recruits-including plaintiff-about how they performed so that they can improve.

         In another scenario, Officer Henderson observed plaintiff perform a vehicle stop where he failed to call in the stop on his radio. Officer Henderson explained that not calling in a car stop is dangerous. Plaintiff also failed to separate the occupants of the vehicle when he was asking them for information. Officer Henderson explained that separation is important in a criminal investigation because people generally don't talk when they are around others.

         Officer Henderson watched plaintiff perform another scenario involving a car stop where the occupant had an outstanding warrant. On plaintiff's first approach to the vehicle, he failed to get the passenger's identification. So, plaintiff had to return to the vehicle to get that information. But then, the occupant got out of the vehicle and ran. Plaintiff pursued him and tried to use his baton, but Officer Henderson testified that plaintiff's baton strikes were ineffective because he was not using enough force.[2] Another recruit joined plaintiff and took down the subject. The other recruit then had to prompt plaintiff about the actions he should take.

         Over the various weeks that Officer Henderson conducted the vehicle stop training, he never saw any improvement in plaintiff's performance. Officer Henderson saw plaintiff continue to make the same mistakes. And he never saw plaintiff begin to grasp the tasks involved in a vehicle stop or recognize the dangers associated with them. Officer Henderson testified that he would not have felt comfortable with plaintiff serving as a Deputy.

         Officer Henderson testified that Captain Cory asked him to write a report about plaintiff's performance in the Academy. He did not ask Officer Henderson to write reports about any other recruits. But no one ever encouraged Officer Henderson to write a negative report about plaintiff. Officer Henderson did not know that plaintiff had injured his back during training at the Academy. Officer Henderson once heard ...

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