United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
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.
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.
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).
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.
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.
Interactions with Sergeant Moffitt
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
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
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.
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.
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.
Process for Deputy Promotion
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.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.
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.
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.
Applies for a Promotion to Deputy
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.
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
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.
Performance at the Academy
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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
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
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.
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.
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. Another recruit joined plaintiff and took
down the subject. The other recruit then had to prompt
plaintiff about the actions he should take.
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.
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 ...