Michaels v. McPherson, Kansas, City of et al

Filing 149

MEMORANDUM AND ORDER denying 136 Motion for Judgment. Signed by District Judge Monti L. Belot on 12/2/2014. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MATTHEW B. MICHAELS,
Plaintiff,
v.
CITY OF MCPHERSON, KANSAS,
Defendant.

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CIVIL ACTION
No.

13-1128-MLB

MEMORANDUM AND ORDER
Before the court is defendant’s motion for judgment as a matter
of law (Doc. 136), plaintiff’s response (Doc. 147), and defendant’s
reply (Doc. 148).
On October 14, 2014, the jury returned a verdict in plaintiff’s
favor on claims for deprivation of a liberty interest without due
process of law, employment discrimination under the Americans with
Disabilities Act (ADA), interference with Family Medical Leave Act
(FMLA) rights, and violation of rights under the Kansas Wage Payment
Act (KWPA). Judgment in the amount of $921,657.64 was entered in
plaintiff’s favor on October 15, 2014. (Doc. 129).
Defendant now moves for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b) or, alternatively, for a new
trial under Rule 59(a). The court will not restate the facts or
evidence here, as the parties are thoroughly familiar with the case.
I. Standards for Rule 50 and Rule 59 motions.
The standards governing a motion under Rule 50(b) were recently
set forth by the Tenth Circuit:
Judgment as a matter of law “is appropriate if,

after a party has presented its evidence, the
‘court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to
find for the party on that issue.’ ” Henry v.
Storey, 658 F.3d 1235, 1237–38 (10th Cir.2011)
(quoting
Fed.R.Civ.P.
50(a)(1)).
Stated
differently, it is “appropriate only if the
evidence points but one way and is susceptible to
no reasonable inferences which may support the
nonmoving
party's
position.”
Elm
Ridge
[Exploration, Inc., LLC v. Engle, 721 F.3d 1199]
at 1216 (internal quotation marks omitted). “We
draw all inferences from the evidence in favor of
the non-moving party, and do not weigh the
evidence or judge witness credibility.” Henry,
658 F.3d at 1238.
Crowell v. Denver Health and Hosp. Authority,

572 Fed.Appx. 650, 652

(10th Cir. 2014).
Under Federal Rule of Civil Procedure 59(a), by contrast, a
court may grant a new trial on all or some of the issues on motion of
a party “after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court.” Such
a motion is committed to the sound discretion of the trial court and
is granted with great caution. See United States v. Kelley, 929 F.2d
582, 586 (10th Cir. 1991). It is appropriate only where the claimed
error substantially and adversely affects the rights of a party. See
Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998).
II. Arguments.
1. Whether statements in the CPOST report impugned plaintiff’s
good name. The CPOST report written by Chief McClarty listed the
following reasons for plaintiff’s termination: "Argumentative with
Superiors, insubordination, conduct unbecoming an Officer, sleeping
on duty, numerous other circumstances and situations where he was no
longer viable to be a Police Officer.” Defendant contends that none

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of these statements were capable of stigmatizing plaintiff’s good name
and plaintiff therefore failed as a matter of law to show the
deprivation of a liberty interest. (Doc. 136 at pp. 5-8).
The Tenth Circuit recently summarized the law in this area:
“Where a person's good name, reputation, honor,
or integrity is at stake because of what the
government is doing to him, a protectible liberty
interest
may
be
implicated
that
requires
procedural due process in the form of a hearing
to clear his name.’ ” Gwinn v. Awmiller, 354 F.3d
1211, 1216 (10th Cir. 2004) (quoting Wisconsin v.
Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507,
27 L.Ed.2d 515 (1971)). “Damage to one's
reputation alone, however, is not enough to
implicate due process protections.” Id. The
plaintiff must demonstrate: (1) the government
made a statement about him or her that is
sufficiently derogatory to injure his or her
reputation, that is capable of being proved
false, and that he or she asserts is false, and
(2) the plaintiff experienced some governmentally
imposed burden that significantly altered [his
or] her status as a matter of state law. Id.
(quotation marks omitted).
Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1149 (10th Cir. 2014). See also McDonald v. Wise, 769 F.3d 1202,
1212 (10th Cir. 2014).
At least two of the reasons listed in the CPOST report satisfied
the threshold for a liberty interest claim. (As such the court need
not address the other statements). The assertions that plaintiff
engaged

in

“conduct

unbecoming

an

officer”

and

“numerous

other

circumstances where he was no longer viable to be a police officer”
were both sufficiently derogatory to call into question plaintiff’s
good name and reputation. An unexplained allegation of “conduct
unbecoming an officer” implied that plaintiff engaged in some sort of
immoral, dishonest or unseemly behavior. Cf. Swank v. Smart, 898 F.2d

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1247, 1258 (7th Cir. 1990) (“it can be argued that when someone is
dismissed for conduct unbecoming a policeman, if the department
informs any other police department to which the officer applies
concerning the ground on which he was fired, the effect will be to
exclude him from police work as effectively as if the department had
broadcast

lurid

charges

against

him

on

national

television.”).

Similarly, the “numerous other circumstances” assertion cast a shadow
on plaintiff’s professional reputation. The vagueness of the comment,
when viewed in context, only added to its ominous character and its
potential to injure plaintiff’s good name.

Cf. McDonald, 769 F.3d at

1212 (statement that plaintiff was terminated because of “allegations
of serious misconduct” supported claim). Contrary to defendant’s
assertion that the latter comment was merely an expression of opinion
that was not capable of being true or false, the comment itself
implied that plaintiff had engaged in conduct that rendered him unfit
to be a police officer. Cf. Hogan v. Winder, 762 F.3d 1096, 1106 (10th
Cir.

2014)

(at

common

law,

categories

of

defamation

included

statements imputing character showing unfitness for one’s profession).
The jury could have reasonably concluded that this comment was both
stigmatizing and without factual support -- i.e. it was false. For
example, one of the “other circumstances” cited by Chief McClarty at
trial was that plaintiff had worn police cargo pants to a community
event instead of regular uniform pants. When a supervisor pointed this
out to plaintiff, he offered to go home and change, but the supervisor
told plaintiff not to bother. A jury could reject as purely pretextual
Chief McClarty’s explanation at trial that this was a circumstance
showing plaintiff was “no longer viable to be a police officer.”
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2. Whether it was error to allow the jury to determine whether
the statements were stigmatizing. Defendant argues it was error to
submit this issue to the jury because, according to defendant, Melton
v. City of Oklahoma City, 928 F.2d 920 (10th Cir. 1991) (en banc)
holds that whether a statement is sufficiently stigmatizing is a
question of law for the court to decide. Doc. 136 at 10-11.
Melton did not forbid submission of the stigmatization issue to
a jury. Rather, it said the issue before it fell into the realm of
statements requiring an independent judicial examination to ensure
that First Amendment principles were protected. See Melton, 928 F.2d
at 928 (“we follow the mandate of Bose [Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485 (1984)] and make an independent
review of the record on the dispositive constitutional issue.”). This
type of review is necessary in cases involving the line between
constitutionally protected free speech and speech that may be lawfully
regulated. For example, “in cases involving the area of tension
between the First and Fourteenth Amendments on the one hand and state
defamation laws on the other, [the Supreme Court has] frequently had
occasion to review ‘the evidence in the ... record to determine
whether

it

could

constitutionally

support

a

judgment'

for

the

plaintiff.” Bose Corp. 466 U.S. at 510. Such judicial review does not
preclude submission of the issue to a jury; it means the court must
independently

review

the

evidence

to

ensure

that

the

jury’s

determination is consistent with constitutional principles. See e.g.
Melton, 928 F.2d at 927 (“Regarding certain largely factual questions
in some areas of the law, the stakes ... are too great to entrust them
finally to the judgment of the trier of fact.”) [quoting Bose]; Bose
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Corp., 466 U.S. at 511 (“The question whether the evidence in the
record in a defamation case is of the convincing clarity required to
strip the utterance of First Amendment protection is not merely a
question for the trier of fact.”).
Defendant

articulates

no

constitutional

infirmity

in

the

judgment and the court’s review shows none. Unlike the statements at
issue in Melton, there is no genuine question here about who was the
source of the stigmatizing statements. Moreover, to the extent Melton
requires this court to independently determine whether a finding of
stigmatization is consistent with constitutional principles, the court
concludes that it is. The evidence indicates that the two statements
discussed above were false. Under the evidence presented, the charge
of conduct unbecoming an officer -- which arose because plaintiff
complained about being denied leave to take his daughter to Kansas
City for medical tests -- was as specious and factually unsupported
as the assertion that his failure to wear the correct pants to the All
Schools Day event made him unfit to be a police officer.
Defendant also complains that the jury instructions and verdict
form did not require the jury to specify which statements were false
and so it is not possible to say whether the jury found in plaintiff’s
favor on a statement that was not stigmatizing. Plaintiff was not
required to show that all of the CPOST statements were false, however.
Moreover, the general nature of the jury’s verdict does not render it
infirm. Nothing in the record suggests that the jury’s verdict rests
upon an improper or unsupported basis.
3. Whether the jury instruction on publication was in error.
Defendant argues that Tenth Circuit precedent requires a showing that
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a statement was “made public” to satisfy the publication element.
Defendant argues the court’s instructions erroneously permitted a
finding of publication without this requirement.
In denying summary judgment on the publication element, Judge
Murguia cited case law from other circuits finding that the placement
of stigmatizing information in a personnel file that was subject to
disclosure or in a public record constitutes publication. See Doc. 85
at 8. As plaintiff points out, the availability and likely use of the
CPOST report by other law enforcement agencies in Kansas makes this
case comparable. Cf. Bishop v. Wood, 426 U.S. 341, 348 (1976)
(statements were not made public where they were communicated to
plaintiff in private). And Tenth Circuit case law, albeit unpublished,
likewise suggests that disclosure of stigmatizing information to
prospective employers may quality as publication. See e.g. Sanchez v.
Dubois,

291

Fed.Appx.

187,

191

(10th

Cir.

2008)1.

Given

the

substantial body of case law supporting this view, the court is not
persuaded that the instruction on publication constituted error.
4.

Whether

plaintiff

was

provided

adequate

due

process.

Defendant next contends plaintiff had constitutionally adequate due
process because he had a right to submit a written response to the
CPOST report. The court concludes, however, that the mere right to
submit a response to the CPOST report was not constitutionally
adequate under the circumstances.
1

Citing Brandt v. Bd. of Co-op. Educ. Svcs., Third Supervisory
Dist., Suffolk Co., New York, 820 F.2d 41, 44-45 (2nd Cir. 1987)
(“Courts of appeals for other circuits have similarly concluded that
the public disclosure requirement has been satisfied where the
stigmatizing charges are placed in the discharged employee’s personnel
file and are likely to be disclosed to prospective employers.”).
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The fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner. Mathews
v. Eldridge, 424 U.S. 319, 333 (1976). An adequate name-clearing
hearing “gives the plaintiff an opportunity to hear and answer
firsthand any stigmatizing charges, clearing his name of any false
statements made about him, and curing the injury to his reputation.”
McDonald v. Wise, 769 F.3d 1202, 1213 (10th Cir. 2014) (quoting
Patterson v. City of Utica, 370 F.3d 322 (2nd Cir. 2004)). In
evaluating the sufficiency of the process, the court must examine: (1)
the nature of the interest affected by the official action; (2) the
government’s interest; and (3) the risk of error and the effect, if
any, of additional safeguards. Id.
Under these factors the mere right to respond in writing to the
City’s asserted reasons for termination was not adequate to allow
plaintiff to effectively clear his name. In the circumstances of this
case plaintiff was at least entitled to have the City or some other
fact-finder hear plaintiff’s side of the story and determine whether
the stigmatizing allegations were true. As plaintiff points out, the
very purpose of a name-clearing hearing is to resolve the dispute
concerning

the

claimed

falsity

of

the

stigmatizing

reasons

for

termination. Plaintiff could not effectively vindicate his name or
reputation without a resolution of his claim that the statements made
about him were false. Cf. McDonald, 769 F.3d at 1214 (due process may
require hearing before governing body that discharged the plaintiff
or before an adequate substitute tribunal).
5. Whether the instruction stating that the jury must find that
“some or all of the statements were false” was improper. Defendant
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argues the instruction was error because in determining whether a
statement is truthful, “the court must view a publication in its
entirety.” Doc. 136 at 15 (citing Melton, 928 F.2d at 929).
Defendant does not assert that all of the statements in the
CPOST report must have been false in order to support a claim, nor
does defendant explain how the court’s instruction could have caused
the jury to find a false statement where there was none. Moreover,
defendant’s position is hindered rather than helped by reliance on
Melton’s admonition about considering statements in context. Cf.
Melton, 928 F.2d at 929. For example, the reference in the CPOST
report to plaintiff “sleeping on the job” was, standing alone, a true
statement. But in context it was misleading because it omitted the
fact that this conduct occurred long before plaintiff’s termination,
it resulted from a diagnosed medical condition, and the problem
disappeared

without

recurrence

once

plaintiff

obtained

medical

treatment. To include this fact in the CPOST report as a reason for
termination is misleading at best. And to give other prospective law
enforcement employers the impression that plaintiff was terminated
because his sleeping on the job rendered him unable at the time of
termination to perform the essential duties of a police officer was,
in context, a false representation. Defendant has shown no prejudice
or error with respect to the instruction.
6. Whether there was evidence of a municipal policy that caused
a deprivation of plaintiff’s constitutional rights. Defendant argues
there was no such evidence, although the basis for its argument is not
clear. Doc. 136 at 16-18. As near as the court can tell, defendant
argues that no city policy caused Chief McClarty’s statements in the
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CPOST report and the city did not ratify the chief’s statements
because the city assumed those statements to be true. Doc. 136 at 19.
In Palmer v. City of Monticello, 31 F.3d 1499 (10th Cir. 1994),
a chief of police asserted before a city commission that Palmer, a
city police officer, had falsified a speeding ticket. The commission
heard evidence on the matter and voted to terminate Palmer. The Tenth
Circuit concluded that the city commission had “adopted the accusation
against Palmer,” Palmer, 31 F.3d at 1503, n.2, and upheld a jury
verdict finding the city liable for deprivation of a liberty interest
without due process. More recently, the circuit reiterated that a
government employer may be required to hold a name-clearing hearing
“if it adopts or ratifies statements made by a third party.” Rogers
v. Alezopulos, 549 Fed.Appx. 771, 774-75 (10th Cir. 2013). In the
instant case, it is clear that the City of McPherson adopted Chief
McClarty’s stated reasons for plaintiff’s termination and thereby
caused or authorized the chief to state those reasons in the CPOST
report. Thereafter, due to a city policy or practice, plaintiff was
denied a due process right to have a name-clearing hearing. The
deprivation of this right to a hearing was in fact caused by a city
policy and therefore satisfies the requirements of Monell v. Dept. of
Social Svcs. Of City of New York, 436 U.S. 658 (1978). See McDonald,
769 F.3d at 1215 (city liable for mayor’s failure to provide nameclearing hearing).
7. Whether the city was aware

of

plaintiff’s

disability.

Defendant argues it cannot be liable under the ADA because neither
Chief McClarty nor the city commission was aware of plaintiff’s
disability. This argument, however, fails to view the evidence in the
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light most favorable to plaintiff. There was evidence from which the
jury could have reasonably concluded that McClarty was aware of
plaintiff’s condition. There was evidence that the prior chief as well
as Chief McClarty had knowledge of plaintiff’s asserted medical
condition,
treatment

his
of

resulting

the

symptoms,

symptoms.

Cf.

and

his

Robertson

successful

v.

Las

Animas

medical
County

Sheriff’s Dept., 500 F.3d 1185, 1196 (10th Cir. 2007) (genuine issue
of fact regarding whether defendants knew of disability). Despite his
knowledge that plaintiff had no such symptoms after obtaining medical
treatment, Chief McClarty recommended termination of plaintiff on
account of having slept on the job. The chief’s recommendation caused
the city to terminate plaintiff. This chain of events was sufficient
to establish a claim for discrimination on account of a disability.
See E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d
476, 487 (10th Cir. 2006) (a causal connection is required; the issue
is whether a biased subordinate’s recommendation caused the adverse
employment action).
8. Whether plaintiff was terminated for cause. Defendant argues
it is entitled to judgment on plaintiff’s claim under the Kansas Wage
Payment Act because plaintiff was terminated for cause. Doc. 136 at
23. The city’s assertion that the termination was for cause, however,
is not proof of that fact. The court instructed the jury that “‘for
cause’ means for fair reasons justifying termination and not for
arbitrary or discriminatory reasons.” The jury had a substantial
evidentiary basis for concluding that defendant’s stated reasons for
terminating

plaintiff

were

arbitrary

and

did

not

justify

the

dismissal. The jury’s additional finding of willfulness is supported
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by that same evidence. Viewing the evidence in the light most
favorable to plaintiff, the jury could conclude that the city’s
failure to pay plaintiff the wages he had earned was a purposefully
wrongful act.
9. Whether the city is entitled to judgment on the FMLA
interference claim. Defendant argues judgment should be entered in its
favor

on

plaintiff’s

FMLA

interference

claim

because

plaintiff

suffered no monetary damage from the city’s wrongful denial of FMLA
leave. Plaintiff concedes the lack of monetary loss, but argues this
does not warrant judgment in defendant’s favor. The court agrees.
Section 2617(a)(1)(B) makes an employer who violates the FMLA liable
“for

such

employment,

equitable

relief

reinstatement,

as

and

may

be

appropriate,

promotion.”

Even

including

absent

monetary

damage, the court concludes that plaintiff is entitled in these
circumstances

to

a

judgment

declaring

that

defendant’s

actions

violated his FMLA rights. Cf. 28 U.S.C. § 2201. Such an equitable
judgment, which serves to vindicate the purposes of the FMLA, entitles
plaintiff to a reasonable attorney’s fee and other costs. 29 U.S.C.
§ 2617.
III. Conclusion.
The court finds no grounds warranting judgment as a matter of
law in defendant’s favor or warranting a new trial. No prejudicial
error

has

been

shown,

and

the

jury’s

verdict

is

supported

by

substantial evidence. Accordingly, defendant’s motion for judgment as
a matter of law or for new trial (Doc. 136) is denied.
IT IS SO ORDERED.
Dated this 2nd

day of December 2014, at Wichita, Kansas.
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s/Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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