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Zamora v. Unified Government of Wyandotte County and Kansas City

United States District Court, D. Kansas

November 15, 2019

FLORINDA ZAMORA, Plaintiff,
v.
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY AND KANSAS CITY, KANSAS, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Florinda Zamora (“Zamora”) brings this action against Defendant Unified Government of Wyandotte County and Kansas City, Kansas (the “UG”), alleging that the UG violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., when it terminated her employment at the Wyandotte County Juvenile Detention Center (“JDC”) in retaliation for reporting a coworker's inappropriate conduct toward a juvenile resident. This matter is now before the Court on the UG's Motion for Summary Judgment (Doc. 75). The motion is fully briefed, and the Court is prepared to rule. For the reasons set forth in depth below, the UG's motion is denied.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates “that there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”[1]In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] “There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”[3] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[4] A dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[5]

         The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.[6] In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.[7]

         Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[8] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[9] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[10] In setting forth these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”[11] To successfully oppose summary judgment, the nonmovant must bring forward “more than a mere scintilla of evidence” in support of his position.[12] A nonmovant “cannot create a genuine issue of material fact with unsupported, conclusory allegations.”[13] Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[14] When examining the underlying facts of this case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.[15]

         II. Factual Background

         A. Hearsay Objections to Zamora's Statements of Fact

         Before turning the parties' statements of fact, the Court will briefly address the UG's objections to two of Zamora's statements of fact. Summary judgment evidence need not be “submitted ‘in a form that would be admissible at trial.'”[16] But “the content or substance of the evidence must be admissible.”[17] Under Fed.R.Civ.P. 56(c)(2), a party may object on this basis-that the material “cannot be presented in a form that would be admissible in evidence.” Indeed, as the advisory committee notes to the 2010 Federal Rule amendments explain: “The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.”[18]

         The UG objects to Zamora's Statements of Fact 78 and 117 on the basis that they contain inadmissible hearsay, meaning a statement that the declarant does not make while testifying at the current trial or hearing and that a party offers to prove the truth of the matter asserted.[19]Hearsay is inadmissible except as provided by law, [20] and hearsay within hearsay is excluded unless each part of the combined statement conforms with an exclusion from or exception to the rule against hearsay.[21]

         Zamora's Statement of Fact 78 relies on the deposition testimony of Kansas City, Kansas Police Detective Vincent Kingston concerning statements made to him-during the course of his investigation of the events underlying this case-by JDC employee Ryan Schuler, about what was said to Schuler by another JDC employee, Kelsey Davis, concerning something Davis heard from a Sheriff's Office employee, Andrew Carver. Similarly, Zamora's Statement of Fact 117 refers to Davis's “testimony” about the “exact words” Zamora said about Davis to another of the Sheriff's Office employee, Daniel Anderson, which Anderson then repeated to Carver and Carver relayed to Davis. The source cited to support this fact is the deposition testimony of an investigating Sheriff's detective, Sherry Simpson, about Davis's unsworn statement to her. It is not entirely clear which portions of these statements of fact the UG objects to because the UG makes largely identical factual assertions in its own briefing.[22] It appears that the UG objects not to evidence offered to establish that these conversations occurred or even the general content of the conversations, but to evidence offered to prove the exact words that were said.

         While Fed.R.Civ.P. 56(c)(1)(A) permits Zamora to support her factual assertions at the summary judgment stage by citing to deposition testimony, [23] the content or substance of the deposition testimony must be otherwise admissible.[24] Zamora does not argue for the admissibility of the triple and quadruple hearsay statements contained within Kingston's and Simpson's deposition testimony, and the Court finds no exclusion or exception that applies for each level of hearsay.[25] Accordingly, while the Court does not omit facts relied upon by both parties, it does exclude hearsay statements in Zamora's Statements of Fact 78 and 117 to the extent that they are offered for the truth of the matter asserted.

         B. Uncontroverted Facts

         With the above rules of law and evidence in mind, the following material facts are either uncontroverted or, if controverted, construed in the light most favorable to Zamora.[26]

         1. Wyandotte County Juvenile Detention Center

         The UG is a municipality located in Wyandotte County, Kansas City, Kansas, and a recipient of federal financial assistance. The JDC is a division of the Wyandotte County Sheriff's Office (“Sheriff's Office”) within the UG. The JDC is licensed by the Kansas Department of Children and Family Services (“DCF”) as a child-care facility under Kansas law, and is subject to detailed regulations. DCF monitors the JDC's compliance with regulations and can revoke its license for failure to comply.

         The JDC is licensed to hold forty-eight juveniles, both male and female, from the ages of ten to seventeen. JDC residents are juvenile offenders facing criminal charges; many have behavioral problems and/or have been raised in difficult environments. Some residents have been abused, some are gang members, and many have a history of substance abuse. The JDC is a secure facility, and residents are not permitted to leave. All entrances and exits are under the exclusive control of the staff and are continuously monitored. Residents are housed in one of four pods, each with eight to sixteen rooms. The pods are locked and access is limited; at night, residents are required to be in their rooms and the doors are locked from the outside. There are security cameras throughout the facility, and monitors are set up in a control booth. JDC residents are supervised by juvenile care workers, also called juvenile detention officers. At least one juvenile detention officer is assigned to each pod at all times, and juvenile detention officers control the movements of residents and supervise them twenty-four hours per day.

         Don Ash is Sheriff of the Sheriff's Office and, by law, has charge and custody of the JDC. At all relevant times, Jeff Fewell, a Colonel in the Sheriff's Department and Warden of the JDC, was responsible for the custody, care, control, safety, and security of the juvenile residents of the JDC. He reported to Undersheriff Larry Roland and to Sheriff Ash. Terri Broadus, the JDC Administrator, was responsible for administering all operations of the JDC and reported to Fewell.

         Major Daniel Soptic, Lieutenant Colonel Robert Gunja, Detective Sherry Anderson-Simpson (“Simpson”), and Deputy Daniel Anderson were all employed by the Sheriff's Office in the roles indicated by their titles. Andrew Carver was a detective in the Sheriff's Office and, during the events underlying this action, was promoted to captain. Vincent Kingston was a detective in the Internal Affairs Division of the Kansas City, Kansas Police Department.

         Plaintiff Florinda Zamora was employed as a juvenile detention officer at the JDC, as were Kelsey Davis, Angela Garcia, Kathy Harrington, Peair Howard, Ryan Schuler, and Jaya Paden. During the time period at issue, Davis was engaged to Carver, and they are now married. Lieutenant Jelani Coppage was a shift supervisor at the JDC, overseeing juvenile detention officers. Adrienne Gilchrist was also a lieutenant at the JDC. Duane Olden was a JDC maintenance worker. Minors J.K., B.R., and N.C. were male residents at the JDC.

         2. Juvenile Detention Center School

         DCF regulations applicable to the JDC require that “[c]lassroom instruction . . . be provided on-site by teachers holding appropriate certification from the Kansas board of education, ” and that “[e]ducation services shall be coordinated with the local school district.”[27]In accordance with regulations, the JDC coordinates with the Kansas City, Kansas Unified School District No. 500 (“School District”) to provide educational services to JDC residents. The School District is provided with classroom space inside the JDC and, during the school year, the School District provides residents with six hours of instruction per day, from 7:00 am to 3:30 pm, excluding weekends and holidays.

         The School District independently administers and operates the school inside the JDC. The School District employs and assigns the principal, the teachers, and other support personnel. The School District determines the curriculum and monitors the students' progress, and provides all books, materials, and supplies. The JDC has no input into staffing or programming for the school, and the classrooms are separate from the pods where JDC residents live. However, as required by regulations, at least one juvenile detention officer is stationed in each classroom and directly observes classroom activity to provide support to the teacher. The juvenile detention officer's function is to provide security and to help insure order, not to assist with instruction.

         Neither the UG nor the Sheriff's Office has entered into a contract with the School District concerning the JDC school. The UG and the Sheriff's Office do not pay any funds to the School District for administering and operating the School, nor do the UG, the Sheriff's Office, or the JDC receive any payment from the School District for providing classroom space or security for the school. Like the UG, the School District is a recipient of federal financial assistance. The School District is subject to Title IX.

         3. Unified Government's Policies Regarding Sexual Harassment

         Per its Human Resources Guide, the UG “will not tolerate harassment of employees, ” including sexual harassment.[28] Sexual harassment is prohibited in the workplace and in any location that could be regarded as an extension of the workplace. The UG's policy states that sexual harassment may be “subtle and indirect, ” and includes conduct “between individuals in a hierarchal relationship” or conduct “aimed at coercing an individual to participate in an unwanted sexual relationship.”[29] Inappropriate behavior that constitutes sexual harassment can include a wide variety of conduct, including physical contact or touching of a sexual nature, flirtations, and unnecessary proximity to another person.

         The UG “encourages employees to report harassment before it becomes severe or pervasive. Even if harassment does not rise to the level of a violation of federal or state law, the Unified Government will take action to stop it.”[30] The UG acknowledges that “[i]t is unlawful to retaliate against an employee for filing a complaint of harassment or cooperating in an investigation of a complaint of harassment.”[31] Additionally, the UG states that it “will not tolerate retaliation against an individual who in good faith reports harassment or provides information related to a complaint of harassment.”[32]

         The JDC has a manual for juvenile residents that includes rules of conduct. Rule 5 states that physical contact is prohibited and that criminal charges could be filed for touching another resident or staff member in a sexual manner.

         4. Unified Government's Policy on the Disclosure of Confidential Information

         The JDC maintains a Release of Information policy. All juvenile detention officers are given a copy of this policy, and Zamora believes that she probably received a copy. The Release of Information policy states: “It is the policy of the Juvenile Detention Center to ensure that all juvenile records are safeguarded from unauthorized or improper disclosure.”[33] The policy further provides that “[a]ll juvenile case record information is confidential, ” and that “access to case records shall be limited to persons and agencies which can demonstrate that the information will serve a criminal justice purpose.”[34] “Juvenile case record information” includes all records maintained by the JDC on residents and the information in them.

         Under the Release of Information policy, “[a]ny disclosure of record material to unauthorized persons or agencies constitutes a [breach] of trust and is restricted by law.”[35] The policy specifies that only certain staff members are authorized to disclose case information, namely the JDC Administrator, Deputy Administrator, Juvenile Captain, Intake Lieutenant, and “[o]ther Staff Members upon receipt of written permission from the Administrator.”[36] The policy restricts access to juveniles' records and files to specified individuals and agencies. Those who have access to juveniles' records and files include “Juvenile Detention Center staff in the performance of authorized job duties.”[37]

         A copy of an incident report that concerns a JDC resident is placed in the resident's file. The report is considered confidential under the Release of Information policy, and the unauthorized release of the report or the information contained therein is a violation of the policy.

         5. First Investigation of Davis Uncovering Multiple Instances of Inappropriate Contact with a Juvenile Resident

         On May 25, 2016, Zamora was cleaning the windows in the control booth, which overlooks the pod where Davis was working. Harrington was also present in the control booth. Both Zamora and Harrington observed Davis walking with J.K., a seventeen-year-old male resident. Zamora observed J.K. walking on the left side of Davis with his right arm around her waist, and Davis with her left hand on J.K.'s right shoulder. Davis was talking to J.K., but Zamora could not hear what she was saying. Zamora believed that Davis's conduct toward J.K. was inappropriate because “it's jail, ” and “you don't walk around the pod like that.”[38] However, Zamora did not consider Davis's conduct with J.K. to be “sexual behavior, ” in that it was not “intercourse or . . . groping of parts, ”[39] and had never seen Davis behave that way before. The incident was captured on video.

         Zamora immediately informed her shift supervisor, Lieutenant Coppage, of what she had observed. Coppage responded, “You're right, you're right to report this, ”[40] and told Zamora to submit a written report. Both Zamora and Harrington submitted written reports on May 25 regarding the physical behavior between Davis and J.K. Zamora's report stated: “I officer Zamora Florinda . . . was cleaning the control booth with officer Kathy Harrington . . . in the booth and I observed resident [J.K.] with his arms around officer Kelsey Davis . . . waist walking and her hand on his shoulder.”[41] Harrington's written report on the same incident stated that Davis was “walking arm and arm with resident [J.K.].”[42] Harrington added that she was viewing Davis and J.K. on the control booth monitor and that Zamora-who was standing and looking down into the pod-had a better view of the situation.

         After Zamora completed her written report, she also told Broadus, the JDC Administrator, what she had seen. Broadus, like Coppage, agreed that the May 25, 2016 incident between Davis and J.K. needed to be reported. While the UG did not take any immediate steps in response to the May 25 incident, Zamora did see a change in Davis's behavior toward the residents. Zamora noted that Davis no longer went into residents' rooms and, while she would still sit and talk with residents, she no longer bent over tables while doing so. Rather, Davis would keep her distance from residents and appeared to have corrected her behavior.

         On July 14, 2016, Harrington submitted a report on a second incident involving Davis, J.K., and another JDC resident, B.R. Harrington reported that on June 28, 2016, she observed Davis alone in the pod with the two residents, and that Davis was

laying on the desk with her butt sticking out and resident B.R. was standing there looking at her. Resident J.K. was sitting on the phone stools talking to her, then Officer Kelsey Davis jumped on the desk and was laughing with J.K. he was touching her leg and holding her hand this is when I called Mr. Duane Olden . . ., because I wasn't able to get in touch with anyone else I felt I needed a witness to this, Mr. Duane Olden came to the control booth. To view the situation.[43]

         Olden also wrote a report about this incident, stating that he was called to the control room by Harrington to view activity in the pod and witnessed

K. Davis sitting on the edge of the desk with a black male resident sitting down on the telephone stool between the legs of the officer rubbing her up and down. As I observed this going on for about five minutes while another resident sat next to them both while this was going on. When the slider door opened Officer Davis immediately jumped off the desk and the resident turned around like nothing was going on.[44]

         Olden thought it was “really out of character for an employee to be interacting with a resident in that way.”[45] Zamora was not present during and did not observe the second incident involving Davis and J.K. Like the May 25 incident, the June 28 incident was recorded on video.

         At the time of the two foregoing incident reports, Davis was engaged to Carver, a detective in the Sheriff's Office who was normally responsible for investigating allegations of employee misconduct. Because of the relationship between Carver and Davis, Sheriff Ash decided to ask the Kansas City, Kansas Police Department's Internal Affairs Unit (“KCKPD Internal Affairs”) to investigate the allegations against Davis. Captain Soptic, who supervised the Sheriff's detectives, along with his supervisor, Lieutenant Colonel Gunja, told Carver that there was a complaint against his fiancée and that Carver would not be involved in the investigation. Soptic and Gunja did not go into the details of the allegations, apart from mentioning that there was a video showing Davis's conduct with two JDC residents and that it looked like “high school flirting.”[46] When Carver asked Soptic if he believed Davis was guilty and what he should do, Soptic encouraged him to “have those discussions with [Davis].”[47]

         Davis first found out about the investigation from Carver, who spoke to her about it before she was interviewed. Carver told Davis that there was a video of her conduct. On July 14, 2016, Broadus called Davis to advise her that an outside agency would be investigating allegations against her. Broadus told Davis that she could not give her any details about the allegations.

         At some point, Zamora told Deputy Anderson about the incident involving Davis and J.K. that she witnessed in May 2016. Anderson, who was close friends with Carver, worked in the Sheriff's Office and was assigned to patrol. Anderson did not work in the JDC and Zamora testified that she had never seem him there. Zamora recalled that Anderson responded, “I'm going to tell my buddy [Detective Carver]. That's his girlfriend.”[48] Zamora testified that she asked Anderson not to repeat what she had said about the May 2016 incident to Carver.

         Detective Kingston from KCKPD Internal Affairs was assigned to conduct the investigation into the reported incidents involving Davis, and that investigation officially began on July 18, 2016-more than fifty days after the first observed incident of Davis inappropriately touching a juvenile resident on May 25. On July 19, 2016, Kingston took a statement from Zamora in which she recounted what she had observed on May 25. Zamora also told Kingston that on a subsequent occasion, she and Schuler had observed Davis and J.K. sitting next to each other, with J.K.'s head resting on Davis's shoulder. Zamora did not report this additional incident when it occurred. Her account of this interaction between Davis and J.K. is consistent with Schuler's witness statement to Kingston; Schuler also stated his belief that Davis's actions on this occasion were inappropriate.

         Zamora further reported that if Davis was playing cards with J.K., she would lean across the table with “her rear end up in the air and just sit there and talk with him.”[49] Zamora told Kingston that she believed Davis's behavior was unusual because “you don't act like that with children.”[50] When Kingston asked her whether, based on her training and experience, she believed that Davis had used poor judgment, Zamora agreed that Davis had. However, Zamora also stated that she was unaware of any policy or training that addressed Davis's conduct with J.K. The UG concluded that Zamora truthfully reported the inappropriate physical contact between Davis and J.K.

         On August 5, 2016, Kingston took a statement from Davis. Davis denied having an inappropriate relationship with any of the residents. She stated that she and the other officers were encouraged to form relationships with the kids and that she would “horseplay around” with them.[51] When talking with Kingston about still photographs taken from the May 25 video, Davis denied allowing J.K. to grab her side or tickle her. However, when Kingston emphasized that her May 25 interactions with J.K. were captured on video, she stated that she could not recall that particular interaction and that she would have told J.K to stop if he was touching her in that manner.

         During additional questioning about the June 28 incident reported by Harrington and Olden, Davis denied allowing J.K. to touch her or touch her legs, but also stated that she could not remember everything about that encounter. She did ultimately recall that J.K. asked to see her engagement ring and that she let him look at it, and that she permitted J.K. strike her on the kneecap while she was explaining what reflexes are. Davis stated that she had allowed other residents to do the same. J.K. also tried to tie Davis's shoe. The video recording of the June 28 incident confirms that Davis did allow J.K. to touch her and to touch her leg. B.R. reported seeing Davis allow J.K. to touch her and stated that Davis treated J.K. more favorably than other residents.

         Davis indicated that she had never been told by a supervisor not to let the residents touch her, nor had she been given any training about appropriate versus inappropriate conduct with residents. Detective Kingston testified that he could not speak to policies and procedures at the JDC, but that Davis's interactions with J.K. “would seem to be inappropriate.”[52] He also testified that he believed that Davis “was not completely forthcoming” during the investigation.[53]

         On August 31, 2016-over three months after Davis was first observed interacting inappropriately with a juvenile resident-Kingston completed his investigation and prepared a report summarizing the results. Warden Fewell did not read Kingston's report, but viewed the video recording of Davis's conduct on May 25, 2016. Although Fewell testified that Davis should have been terminated if she lied to investigators, there is no evidence regarding whether Kingston shared his belief regarding Davis's truthfulness with his superiors.

         On October 11, 2016, Fewell suspended Davis for five working days without pay for engaging in horseplay and inappropriate conduct with juvenile offenders. Davis filed a grievance regarding her suspension. She asked that the five-day suspension be reversed, that a non-disciplinary counseling statement be issued, and that training be provided on policy and procedure “so there is no confusion on what the employer[']s expectations are.”[54]

         Sheriff Ash reviewed Kingston's report, and later testified in this case that he “did not see or read anything that indicated that [Davis] wasn't [truthful].”[55] Ash also held a hearing on Davis's grievance, during which Davis maintained that she had not received adequate training on physical contact with juveniles. Davis contended that the line between appropriate and inappropriate contact between juvenile detention officers and juvenile residents had been blurred, and stated that she wanted there to be a clear delineation and additional training for officers.

         Sheriff Ash concluded that Davis's conduct did not warrant a five-day suspension without pay, that Davis had demonstrated that training was not sufficient, and that they “needed to start with a written reprimand and training specific to address the alleged inappropriate behavior or conduct, and then work [their] way up from there in a progressive discipline manner rather than starting out with . . . a five-day suspension.”[56] Sheriff Ash reversed Davis's suspension and directed that she be issued a written reprimand and provided with additional training. Fewell issued the reprimand on October 31, 2016.

         6. Additional Reports of Inappropriate Conduct by Davis and Garcia Toward Juvenile Residents

         In addition to the three reports of inappropriate physical contact between Davis and a juvenile resident covered by Kingston's report, the UG had received a fourth report on August 6, 2016, one day after Kingston took a statement from Davis and several weeks before he completed his investigation. Jaya Paden, also a juvenile detention officer at the JDC, reported that one resident told her that Davis and Garcia were touching him and other juvenile residents inappropriately. Paden also reported that one resident told her that Davis and Garcia were allowing residents to touch them. Paden reported that the resident said, “it was more than touching going on.”[57] Paden reported that the resident also told her that Davis and Garcia were bringing in items for residents from outside the JDC, including men's body wash and candy.

         The UG admits that it is a violation of its policy for JDC staff and residents to touch one another. The UG also admits that it is a violation of both UG policy and state law for JDC staff to bring in outside items for juveniles. However, Fewell is not aware of the UG having conducted any investigation into Paden's allegations, nor has the UG produced any documents in this case reflecting that an investigation occurred. Paden's allegations are not addressed in Kingston's report.

         As the JDC Warden, Fewell would have knowledge of any disciplinary action against Davis or Garcia for engaging in inappropriate physical contact with minors or smuggling contraband into the facility. Fewell testified that he is not aware of whether Davis and Garcia were disciplined, nor has the UG produced documents reflecting that they were disciplined for this conduct.

         7. Second Investigation of Davis for Alleged Sexual Relationship with a Juvenile

         On November 9, 2016, Juvenile Detention Officer Howard reported to his supervisors that a JDC resident, N.C., had notified him that he ( N.C. ) had engaged in a sexual relationship with Davis after he was released from the JDC on a previous occasion. Howard also reported that N.C. told him that Davis had allowed N.C. to grope and touch her in a sexual manner while he was a JDC resident.

         It was Howard's report that prompted a second investigation into Davis. As a result of his report, the Sheriff's Office opened a criminal investigation into N.C. 's allegations. The second investigation was conducted not by KCKPD Internal Affairs, but by Simpson, a Sheriff's Office detective with fourteen years of experience. Carver, Davis's fiancé, was not involved in the investigation of the allegations in Howard's report, nor did Simpson ever discuss those allegations with him. However, Simpson was Carver's colleague and, at some point during the relevant events, became his subordinate when he was promoted to captain. Pursuant to UG policy requiring that a JDC staff member under investigation be removed from contact with residents, Davis was removed from the pods and assigned to the control booth, where she had no contact with residents. Howard was first interviewed on November 17, 2016; the narrative summary of that interview does not mention Zamora.

         On November 22, 2016, Garcia sent a written report to Simpson. In that report, Garcia stated that Davis informed her that “apparently Officer Florinda Zamora . . . told Adult Deputy Anderson that the dumb shit they said I did happened at your house.”[58] Garcia indicated that Anderson had told Carver what Zamora said, and that Carver in turn told Davis. Garcia also stated in her report that she had informed Lieutenant Gilchrist of what she had been told “because [she] did not think that the investigation should have been discussed amongst peers after reported, nor taken to discuss with other employees on the adult side.”[59] Gilchrist had advised her to type a report and send it to Simpson.

         On November 30, 2016, after receiving Garcia's report, Simpson interviewed Anderson. During his interview, Anderson told Simpson that he talked to Zamora “once every blue moon.”[60] Anderson stated that Zamora had told him that Davis had sex with a juvenile, possibly at Garcia's house, and that he believed Zamora had indicated that she had obtained this information from Garcia. Anderson also said that earlier, during the summer, Zamora had told him that she did not get along with Davis, and that Davis and Garcia were friends, hung out, and “always started stuff with her.”[61] Anderson said that on a separate occasion, Zamora had told him about a previous incident at the JDC involving a juvenile flirting with and touching Davis, and that Davis did not do anything about it. Anderson believed that the juvenile involved in the incident inside the JDC was the same individual with whom Davis was alleged to have had a sexual relationship outside the facility. Garcia was pulled into the criminal investigation when Anderson told Simpson what Zamora had said about the sexual encounter between Davis and a juvenile occurring at Garcia's home.

         Simpson interviewed Zamora later on November 30, 2016, following her interview of Anderson. When questioned, Zamora indicated that Howard had told her that N.C. stated that he had slept with Davis outside the JDC, and that she had told Howard that he had to report because they were mandated reporters. Zamora never saw Howard's report and did not assist him with it, nor did she ever witness any inappropriate contact between Davis and N.C. However, Zamora also told Simpson that N.C. told her in person that there was a rumor circulating about him sleeping with Davis. Zamora also told Simpson about her prior reports on Davis in the spring.

         Although Zamora testified that she personally did not believe the allegation that N.C. had sex with Davis, she did admit during questioning by Simpson that she told Anderson “what [ N.C. ] said to [her]” directly, specifically that there was a rumor circulating about N.C. “hooking up with Ms. Davis, having sex with Ms. Davis.”[62] Zamora told Simpson that when N.C. asked her if she had heard the rumor, she told him that she had not. Zamora stated that she did not know whether Davis and the minor had had sex at Garcia's house, but that it was “more of . . . an assumption” (one she testified to sharing with Anderson) that any encounter would have happened there, based on the fact that Davis and Garcia were close and frequently hung out together, and that N.C. had also mentioned hanging out at Garcia's home with Garcia's children.[63]

         At the time Zamora spoke with Anderson in the fall of 2016 about the allegations concerning N.C. and Davis, she was aware that Davis was engaged to Carver and that Anderson and Carver were friends. She also knew that there was a possibility that what she was telling Anderson would get back to Carver. Zamora did not tell Anderson that there was an investigation into Davis.

         The day after interviewing Zamora, Simpson interviewed N.C., who denied having any type of relationship or physical contact with Davis. N.C. also denied telling Howard that he and Davis were boyfriend and girlfriend or that they used to meet. Further, N.C. denied telling Zamora that he knew Garcia outside the JDC. Rather, he stated that his cousin went to school with Garcia's kids, so he had seen Garcia “at like football games, and they were like oh, how you doing.”[64] N.C. denied having been to Garcia's home. Regarding the allegations under investigation, N.C. stated that “this [was his] first time hearing about it, ” and that he was “shocked.”[65]

         On December 21, 2016, Simpson interviewed Davis. Davis denied having any type of relationship with N.C., including a sexual relationship or associating with him outside the JDC. She did state that other juvenile detention officers and residents knew about the allegation that she was having sex with N.C. Davis stated that Zamora had told Anderson about the allegation when she knew that Anderson was a close friend of Davis's fiancé. Davis stated that she believed Zamora either wanted to make herself look good to Anderson or was trying to break up Davis and Carver's relationship. Simpson testified that Davis was upset and crying during her interview. Simpson also testified that she believed Davis, even though she did not talk to the investigator of the May 2016 incident. Davis gave notice of her resignation on the same date she was interviewed, December 21, 2016, and her resignation was effective January 11, 2017.

         Sometime around January 3, 2017, Simpson transitioned the criminal investigation of Davis into an internal investigation of Zamora and Howard for “dishonesty, disclosing confidential information, harassment, interference with a criminal investigation, and failing to report.”[66] On January 4, 2017, Simpson conducted a follow-up interviews with both Zamora and Howard. In her summary of her interview of Howard, Simpson later stated that

Howard maintained that [N.C] had told him numerous times about his relationship with Davis. During the interview Howard stated multiple times that he never spoke to Zamora about the investigation or his report regarding [ N.C. ] and the sexual relationship with Officer Davis. When asked how Zamora knew about the investigation, Howard stated that [ N.C. ] told Zamora. Howard began telling us that one day he was working as a runner and Zamora was in the pod with him and he came in the pod and [ N.C. ] was talking to Zamora about the situation. He then stated that the only conversation he and Zamora had about what he had reported was that this kind of thing had happened before. . . . Later during the interview, Howard admitted that he and Zamora had conversations about [ N.C. ] and Davis but denied that it influenced his report.[67]

         However, Simpson testified that she believed Zamora “was probably truthful” when she stated that she had advised Howard to make a report regarding Davis and N.C. [68]

         Simpson completed her investigation and issued a report on January 12, 2017. In that report, Simpson “determined that the criminal investigation into Officer Kelsey Davis and Officer Angela Garcia was unfounded.”[69] She wrote that during the criminal investigation of Davis and Garcia, she “discovered several inconsistencies in the statements provided by Officer Howard and Officer Zamora that led [her] to believe they were being untruthful and had been dishonest during the investigation.”[70]

         With respect to Zamora, Simpson also concluded that she had made accusations about Davis having sex with N.C. at Garcia's home based on assumptions, and that she had disclosed confidential information about those allegations to Anderson. Simpson testified that Zamora

twice went to Daniel Anderson and told him that Kelsey Davis was first, flirting with this juvenile, then, next, having sex with the juvenile. Daniel Anderson was Andrew Carver's best friend. So she went to that person knowing that he was going to disclose to him, the guy that works in Internal Affairs and is his friend, this in order to try to hurt Davis. So honestly throughout this you can see that Zamora targeted Davis.[71]

         8. Termination of Zamora's Employment

         Simpson briefed Fewell on the results of her investigation of Davis and Garcia, and informed him that she believed that Zamora and Howard had not been truthful. Fewell also reviewed Simpson's investigative report and the transcripts of the interviews she conducted. In a January 18, 2017 memorandum to Sheriff Ash and Undersheriff Roland, Fewell “strongly” recommended that Zamora's employment “be terminated based upon potential liability, damage due to [her] poor judgment in spreading rumors and violating confidentiality.”[72] Specifically, Fewell's memorandum notes that the investigation revealed that Zamora had “discussed confidential information regarding this case and another case to Deputy Daniel Anderson, member outside chain of command. [Zamora] also lied to Detectives during questioning.”[73]

         At some point, Ash and Fewell had a conversation about Fewell's January 18, 2017 memorandum, and Ash authorized Fewell to proceed with the termination of Zamora's employment. On January 23, 2017, Fewell met with Zamora and informed her that she was fired. Fewell read Zamora a memorandum stating the following reasons for her termination:

A confidential internal affairs investigation was conducted regarding allegations Kelsey Davis had [an] inappropriate relationship with a juvenile in November, 2016. The investigation revealed you discussed confidential information regarding this case and another case to Deputy Daniel Anderson, member outside the chain of command. You also provided false information to Detectives during questioning.
The Internal Affairs investigation revealed:
Your misconduct violated K.S.A. 65-507, Records of Maternity Centers and Child Care Facilities; Confidentiality. Your allegations created two criminal investigations (Davis and Garcia) and established a hostile work environment based on innuendos.
Your misconduct violated the UG Human Resources Guide, effective 09-29-16, Rule 2, Falsifying UG Records, in that you provided a false written report during a [sic] Internal Affairs investigation.
Your misconduct violated the UG Human Resources Guide, effective 09-29-16, Rule 3, Dishonesty, in that you were not truthful during questioning during the Internal Affairs investigation.
Your misconduct violated the UG Human Resources Guide, effective 09-29-16, Rule 4, Unauthorized Disclosure of UG Records, in that you discussed details of a sensitive Internal Affairs investigation.[74]

         Zamora filed a grievance of her termination, which Sheriff Ash denied. Howard was also fired.

         Fewell testified that Zamora violated K.S.A. § 65-507 and improperly disclosed government records when discussing the allegations about Davis and N.C. with N.C., Howard, and Anderson. Although he testified that discussions about a juvenile among JDC staff do not generally violate § 65-507 when necessary for “operational awareness, ”[75] he also stated that such discussions could potentially violate the statute when staff members are “discussing confidential information among personnel that are not privy to such” because “it's protected information not to be openly discussed among peers at that level of command.”[76] Fewell testified that juvenile detention officers should report up the chain of command rather than discussing confidential information with each other.

         During the grievance hearing, Ash asked Zamora why she talked to Anderson. Zamora testified that she responded, “Anderson is my friend. I thought it would be all right to talk to Anderson.”[77] Zamora recalled that in response, Ash was “just, like, no.”[78] Zamora did not tell Anderson about the ongoing investigation into Davis, and Anderson told the UG that he did not know the name of the juvenile alleged to have been involved in a sexual relationship with Davis. However, it is undisputed that both Fewell and Ash believed that Zamora had told Anderson the name of the juvenile in question.

         Fewell further testified that Zamora was not truthful in three instances, including (1) telling Anderson that Davis had sexual relations with N.C. at Garcia's house; (2) claiming that she tried to report allegations involving a different juvenile possibly staying with a staff member; and (3) stating that N.C. asked her if she had heard the rumors involving him and Davis. Again, Anderson had told Simpson that he believed the information concerning a sexual relationship between Davis and N.C. had originated with Garcia.

         Simpson testified that she concluded Zamora had been untruthful due to N.C. 's denial of her account and inconsistencies between Zamora's and Howard's statements. However, Simpson did not talk to other JDC staff members to determine N.C. 's reputation for truthfulness. Rather, she relied upon her review of N.C. 's phone calls, video recordings of Howard and N.C. together in the pod, and N.C. 's “shocked” reaction to the allegations in determining that his denial was credible. Lieutenant Coppage testified that he believed N.C. had made up the rumor about a sexual relationship between him and Davis; however, Coppage believed Howard's statement that N.C. had told Howard about such a relationship. When Simpson asked Garcia if she believed Howard was the type of officer N.C. would confide in, Garcia answered that she did not believe so because Howard is black and N.C. has made it known among JDC residents and staff that he does not like black people. Additionally, Garcia stated in her interview that during a JDC training session, Broadus had once brought up the fact that N.C. was a liar.

         In her deposition, Zamora testified that she disagreed with the findings of the termination memorandum, but agreed that she was “fired for what they feel.”[79] She also testified that she was fired in retaliation for turning in Davis, a detective's wife, in her May 25, 2016 report. Zamora does not believe that she was terminated in connection with Howard's later report on Davis, because she was not involved in that report beyond telling Howard that he needed to report. Zamora does not know why, if she was terminated in retaliation for the May 2016 report, she was not fired until January of 2017. Zamora is not aware of any other JDC employee who has been terminated in retaliation for reporting child abuse or neglect, though Howard was also fired following the November 2016 investigation of Davis. Harrington continues to work at the JDC, and Olden worked there until a few months before his death in February 2018.

         Although Fewell testified that one of the reasons he decided to terminate Zamora was because she had submitted a false report to Simpson during the investigation, the UG now concedes that Zamora did not submit a false report. There is no UG policy stating that an employee shall be terminated for violating K.S.A. § 65-507, and the UG has never terminated anyone for violating that statute other than Zamora and Howard.

         9. Lack of Disciplinary Action as to Other UG Employees

         Davis and Carver were engaged before the first investigation into Davis began. As noted above, in the late spring or summer of 2016, Soptic and Gunja told Carver that there was a complaint against his fiancée, that there was a video of her conduct, and that Carver would not be involved in the investigation. Soptic and Gunja did not go into the details of the allegations, but encouraged Carver to speak with Davis about his concerns. Carver did so before Davis was interviewed, and while the UG was investigating the May 2016 incident involving Davis and J.K., Davis was discussing information about the investigation with Carver, as well as with her JDC co-worker, Schuler. The UG did not discipline Soptic, Gunja, or Carver for sharing information about J.K. outside the JDC.

         In addition, Anderson disclosed to Carver the later allegations regarding a sexual relationship between Davis and a former JDC resident, which Carver then repeated to Davis and Davis conveyed to Garcia. Although the UG denies that either Anderson or Carver stated the name of the juvenile in question, the UG admits that when Davis told Garcia what she had heard from Carver, Davis stated the identity of the minor, N.C. The UG admits that Davis disclosed details of a sensitive Internal Affairs investigation to Garcia.

         When asked during his deposition whether people who shared information about juveniles outside the JDC chain of command should be disciplined, Fewell responded, “Absolutely.”[80] The UG also testified that information and investigations involving juveniles are confidential and must remain within the JDC; such information remains confidential even after it has been improperly disclosed outside the JDC.

         The UG did not discipline Anderson, Carver, Davis, or Garcia for their disclosure of information relating to Davis's alleged sexual relationship with a former resident. In fact, during the course of the second investigation conducted by Simpson, Carver was promoted a rank and became Simpson's superior. Simpson knew that Carver had been discussing the allegations involving Davis and N.C. with others. In her deposition, Simpson testified to her belief that Anderson, who repeated the allegations to Carver, was not bound by the same confidentiality obligations as Zamora because he did not work at the JDC and had no way of knowing its rules and regulations.

         III. ...


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