Hermsen v. City of Kansas City Missouri et al
ORDER granting in part and denying in part 27 motion for summary judgment. Defendants Motion for Summary Judgment is GRANTED IN PART as it relates to Count II, and DENIED IN PART in all other relevant aspects. Signed on 03/10/2017 by District Judge Fernando J. Gaitan, Jr. (Powers, Jo)
THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
MARISSA D. HERMSEN,
CITY OF KANSAS CITY, MISSOURI, et al.,
) No. 14-1096-CV-W-FJG
Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. No.
Plaintiff was a paramedic employed by defendant City through May of 2014. In July
of 2011, Plaintiff filed a lawsuit against the City under the Fair Labor Standards Act
(“FLSA”), claiming that defendant failed to properly calculate overtime payments for
paramedics and EMTs. Plaintiff claims in the present case that, beginning at the time she
filed her FLSA case, defendants began to target her in retaliation, ultimately resulting in
In the current suit, plaintiff brings two claims:
Count I, FLSA
Retaliation; and Count II, Wrongful Discharge.
Defendants City of Kansas City, Missouri (“City”) and Paul Berardi (“Berardi”)
move for summary judgment on the following bases: (1) Plaintiff cannot satisfy the
McDonnell-Douglas burden shifting analysis to show retaliation; (2) Plaintiff cannot
sustain her wrongful discharge claims against the City due to sovereign immunity or
against Defendant Berardi due to the lack of employer/employee relationship, official
immunity, and qualified immunity; and (3) punitive and emotional distress damages are
unavailable under the FLSA rubric. In her response, plaintiff withdraws her wrongful
discharge claims in Count II; however, plaintiff maintains that questions of material fact
remain for trial on her FLSA retaliation claims, and her claims for punitive damages and
emotional distress damages are not precluded by the FLSA.
Hermsen was employed by Metropolitan Ambulance Services Trust (“MAST”) from
2003 until 2010 when MAST merged with KCFD. Plaintiff was then employed as a
paramedic with the City of Kansas City, Missouri from April 2010 through May of 2014.
Sometime before March 7, 2011, Hermsen spoke to Lisa Minardi, Councilman Ed
Ford’s Assistant, concerning her intention to blow the whistle on the City for FLSA
violations. Lisa Minardi was married to Paul Ferguson, who worked at Hermsen’s fire
station. Hermsen gave Minardi a document titled, Violations of FLSA Committed by KCFD
concerning Ambulance Personnel and the Inevitable Financial Liability to Kansas City
(“Warning Paper”), to give to Councilman Ford. (Warning Paper, Ex. 21 to Doc. No. 31);
(Hermsen Dep., Ex. 1 at 16:13-18:24). Hermsen told paramedic supervisors Scott Raak
and Laura Sanchen; her partners, Andrew Hanchette and Chad Huismann; and Michael
Cambiano, International Association Fire Fighters Local No. 42 (“Union”) Administrator;
that she was going to give the Warning Paper to Lisa Minardi. Between March 2011 and
July 29, 2011, Hermsen was blamed in union meetings and elsewhere for starting an
investigation into the legality of the 24-hour shift for paramedics and EMTs.
On July 29, 2011, Plaintiff became the named plaintiff in a FLSA action filed in the
Western District of Missouri which sought damages for the City’s failure to pay
paramedics and EMTs appropriate overtime wages. A second named plaintiff, Andrea
Armillio, joined the FLSA lawsuit on August 15, 2011. The command staff was
disappointed about the filing of the FLSA suit. According to Dyer’s deposition, the suit
turned back six months of the work that had been done. Captain Wright sent
correspondence and had conversations with Chief Dyer and others at the City indicating
his belief that the 24-hour shift policy for EMS units did not violate the FLSA, and on
October 28, 2011, the Union filed a Motion to Intervene in plaintiff’s FLSA action. (Civil
Docket for Case No. 4:11-cv-00753-BP, Ex. 27). Chief Dyer and Chief Berardi were
heavily involved in the integration of MAST personnel, including the 24-hour shift that
became the subject of Hermsen’s FLSA lawsuit. (Dyer Dep., Ex. 17 at 69:14-24, and
On September 24, 2012, Judge Beth Phillips granted in part Plaintiffs’ Motion to
Certify the Class in the lawsuit against the City, with Plaintiff serving as the class
representative for paramedics and Andrea Armilio as the class representative for EMTs.
On May 15, 2013, Plaintiff filed her Second Phase (liability) Discovery Requests on the
City in the FLSA lawsuit which were returned December 19, 2013. On July 22, 2013,
Chief Berardi was deposed in plaintiff’s FLSA suit. Hermsen attended Chief Berardi’s
deposition. On or about January 8, 2014, Plaintiff filed a Motion for Partial Summary
Judgment as to liability in the FLSA lawsuit. On or about April 7, 2014, Plaintiff moved for
leave to file supplemental authority in the FLSA lawsuit that rejected the City’s defense.
On June 25, 2014, the Court granted Plaintiff’s Motion for Summary Judgment as to
Liability in the FLSA lawsuit. (Civil Docket, No. 4:11-cv-00753, Ex. 27).
A second FLSA class action was brought for the purpose of including those class
members entitled to relief but who failed to opt in to the first class action. The named
plaintiff in the second FLSA lawsuit was Diana Frisbee. In all, 244 paramedics and EMTs
received compensation under the two lawsuits. All but six of those 244 paramedics and
EMTs are still employed by the City, have retired, died, or have voluntarily resigned from
the fire department. Of the six that were terminated, two were terminated for misconduct;
two abandoned their job and were terminated; one was unable to perform the physical
requirements of the job; and one was terminated after a felony conviction yielding a
three-year prison sentence.
The Fire Department
When Plaintiff joined the fire department in 2010, Chief Richard Dyer was the fire
chief. In July 2012, Chief Dyer retired. Defendant Berardi was appointed interim fire
chief in August 2012, and in January 2013, Defendant Berardi became the fire chief.
Defendant City’s Disciplinary System
The Fire Chief is primarily responsible for serving as the hearing officer in all
disciplinary matters involving fire personnel and usually knows of all discipline
administered. During predetermination hearings, those facing discipline are afforded the
right to be represented by counsel and the Union, to present evidence, to call and
cross-examine witnesses, and make opening and closing statements.1 An employee, if
he or she has been demoted, suspended, or terminated, is able to appeal the
predetermination hearing decision to the Human Resources Board. Ex. I, Kansas City
Charter, § 901(b)(1). The Human Resources Board may administer oaths, compel the
production of evidence, and compel the attendance of witnesses. Ex. I, § 907(c); Ex. J,
Rules and Regulations of the Human Resources Board, §§ 9, 14. A hearing before the
Human Resources Board is recorded by a court reporter and the hearing is conducted in
accordance with the contested case rules of procedure set forth in Chapter 536 of the
Missouri Revised Statutes. Ex. J, §§ 13, 16. Disciplined employees are able to appeal the
decision of the Human Resources Board to the City Manager. Ex. I, § 907(f). The City
Manager may affirm, change, modify or reverse decisions of the Human Resources
Plaintiff argues that this is an overgeneralization, but none of her evidence in opposition
shows that this statement is not true. The Court does, however, take into consideration
plaintiff’s arguments and evidence that she may have been targeted for discipline
whereas other employees who engaged in similar conduct were not.
The City’s Whistleblower Protection Ordinance prohibits disciplinary action against
City employees for reporting violations of law. (Ordinance No. 990311, Ex. 18). Chief
Berardi is required to investigate all allegations of retaliation. The City also has to report
allegations of harassment to the EEO office. Chief Berardi has never disciplined anyone
for failing to report a complaint of discrimination, harassment or retaliation under the
reporting requirement. The City’s Discipline policy lists causes for disciplinary action that
include, but are not limited to, offensive behavior, offensive language, and discrimination.
Offensive conduct that is prohibited by includes “being boisterous towards your
supervisor, using foul language in an aggressive manner, throwing things, refusing to
follow an order . . . being rude not only to your supervisor, but to a peer employee …” It is
also a violation of the disciplinary policy to file a false complaint. Disruptive conduct is also
prohibited. The City’s policy also prohibits harassment or intimidation that is recurrent in
nature and/or having a detrimental effect on the employee’s employment situation. The
City has a zero-tolerance policy regarding threats or acts of violence and “any employee .
. . who makes a threat of physical violence . . . will be dealt with immediately.” (City of
Kansas City Human Resources Rules & Policy Manual, Ex. 20 at Appendix I).
Plaintiff’s Disciplinary History
After Notifying Councilman Ford, but Before Filing Lawsuit
On June 6, 2011, plaintiff responded to a motor vehicle accident involving an
elderly woman, who had been t-boned but exhibited no symptoms. Plaintiff photographed
the car, allegedly to show the ER physician the mechanism of injury. Because of this
incident, a supervisor argued with her at the scene. On or about June 15, 2011, Plaintiff
was disciplined for failure to use proper titles and being disrespectful of her supervisor;
failure to obey a lawful order of her superior; and taking photographs of the accident in
violation of the Fire Department’s General Administrative Guidelines. Ex. K, Resolution of
Personnel Matter, ¶¶ 1-3. Plaintiff received a twelve-hour suspension for her actions on
June 6, 2011. Ex. K, ¶ 5. The June 6, 2011 incident was the first time Hermsen was
disciplined by KCFD.
On June 15, 2011, Plaintiff was involved in an altercation with a co-worker.
Plaintiff asserted that her co-worker Wayne Ashurst had been rude to her for weeks prior
and was the aggressor when he yelled at her while retrieving supplies “Get the f--- out of
my office,” and they then exchanged words. Plaintiff’s Ex. 3. For her part in this matter,
plaintiff received a written reprimand. Ex. K, ¶ 6. With respect to this matter, Plaintiff
waived her rights to a predetermination hearing and other remedies that she may have
had available to her. Ex. K, ¶¶ 7, 8.2
On June 30, 2011, Plaintiff left the station she was assigned to in order to go home;
as a result, the ambulance she was stationed on missed a call. Ex. L, Human Resources
Board decision, Case No. 11-32, ¶ 2. Plaintiff asserted that she had received permission
from her direct supervisor, Paul Ferguson, on that date to tend to a personal matter. On
August 4, 2011, Plaintiff attended a predetermination hearing concerning the June 2011
absence from work. On August 25, 2011, Chief Dyer recommended in his
predetermination hearing report that Plaintiff be suspended for 24 hours. On September
1, 2011, Ms. Hermsen appealed the August 25, 2011 predetermination hearing report to
the Human Resources Board. On March 13, 2012, the Human Resources Board held its
hearing. The Human Resources Board ruled on May 8, 2012 that Plaintiff “did not properly
follow the Fire Department’s chain of command as set forth in the Fire Department’s
Rules.” Ex. L, p. 3 ¶ 4. The Human Resources Board, however, found that Plaintiff
“believed the captain of whom she asked permission to leave had the authority to grant
With respect to this statement of fact, plaintiff attempts to controvert by pointing out that
her union representative in this matter was ineffective. The Court does not believe that
plaintiff’s interactions with the union are relevant with respect to this fact, especially
considering that she was only given a reprimand.
her request.” Ex. L, p. 3, ¶ 2. The Human Resources Board overturned the suspension
recommended by Chief Dyer and, instead, reduced the suspension to a letter of
reprimand and counseling. Plaintiff received a letter of reprimand and counseling for this
incident on May 15, 2012. Plaintiff did not appeal the decision of the Human Resources
Board concerning the June 2011 absence to the City Manager.
After filing FLSA Action
On or about December 11, 2012, Plaintiff responded to a medical call in an
auditorium involving a female patient that fainted during a play. The following day, a
Battalion Chief filed a complaint against Plaintiff because she did not “run” down the aisle
to render aid. The City conducted a fact-finding into the complaint about the December 11
incident. Plaintiff was cleared of any wrongdoing and did not receive discipline for the
December 11, 2012 call.
On January 31, 2013, Plaintiff received an oral reprimand for failing to report an
accident to her supervisor and for failing to notify her supervisor of damage to City
property. Ex. P, Memorandum of Oral Reprimand. As described by plaintiff, during a huge
snow storm, Hermsen was riding in the ambulance with her partner, Andrea Armilio. Ms.
Armilio slid off the road and went up a curb. While waiting for the tow truck Armilio and
Hermsen got the ambulance off the curb. Hermsen and Armilio did not notice that snow
had knocked the running board loose until they returned to the station. They continued to
run calls for the next thirteen hours and the incident was verbally reported to a supervisor.
(Hearing of May 14, 2014, Ex. 6 at 109:7 – 110:23). Plaintiff did not appeal the oral
reprimand. Ex. E, ¶ 12.
On June 12, 2013, Plaintiff threw a water bottle at her supervisor, Brenda
Paikowski. Doc. 1, ¶ 32; Ex. Q, 8/5/13 Predetermination report, p. 1. Plaintiff
characterizes this incident as horseplay; however, plaintiff was investigated for
committing a “violent act”. On July 24, 2013, a predetermination hearing was held for the
water bottle incident. On August 5, 2013, Defendant Berardi issued a predetermination
hearing report that found Plaintiff “engag[ed] in offensive conduct toward another member
of the Department when, at the Eastwood facility on June 12, 2013, Hermsen threw an
object at Assistant Division Chief Brenda Paikowski which struck her on the leg.” Ex. Q, p.
4. In his report, Defendant Berardi recommended that Plaintiff receive a 26.6 hour
suspension, but that the suspension would be held in abeyance and shall not be served if
Plaintiff participates in an Employee Assistance Program for Anger Management. Ex. E, ¶
13; Ex. Q, p. 4-5. Plaintiff did not appeal the June 2013 water bottle incident to the Human
Resources Board. Ex. E, ¶ 14; Ex. O, 91:5-14. On January 21, 2014, Assistant Chief Pat
Reisenbichler emailed the EAP provider and asked “to delay the release of Marissa from
the EAP mandate,” despite the fact that Hermsen successfully completed EAP
counseling on December 9, 2013. (EAP Progress Report of January 21, 2014, Ex. 43);
(EAP Management Referral Update, Ex. 39).
On or about December 7, 2013, Plaintiff responded to a multi-vehicle fatality crash
at 12th and Hardesty. Doc. 1, ¶ 38. The scene was a chaotic mess with three paramedics
working on a deceased motorist while neglecting two other patients, and therefore
Hermsen grabbed one of the paramedics on the scene (Elizabeth Bechtold) to
communicate with her about the other patients. After Ms. Hermsen transported her
patient to Truman Medical Center (“Truman”) she saw Paramedic Jonathon Koen who
was visibly upset. (Email of Dec. 9, 2013, from Hermsen to Latta and David Dexter, Ex.
40). A Truman nurse approached Hermsen and informed her that Koen accused
Hermsen of putting her hands on a co-worker at the fatality accident scene. Hermsen
went to the Truman garage and asked Koen what was going on. Paramedic Koen yelled
at Ms. Hermsen, standing only inches from her face and said, “I saw what you did, fucking
jerking her around and grabbing her. You have no right to touch her or any other
co-worker. Don’t you ever let me see you lay a hand on anyone again or next time I’m
going to get involved and take care of it myself! She was my student last year and you
better not ever touch her again or it’s me you’re going to deal with.” Hermsen tried to
reason with Paramedic Koen, but he lunged at her forcing her back and trapped her
against the cement pillar in the garage and the ambulance. Plaintiff asserts that her
written complaint against Paramedic Jonathon Koen was the only pending complaint filed
immediately after the fatality accident. Plaintiff states she called Bechtold later that
evening, and Bechtold told her that she had no issue with her.
On February 5, 2014, charges were brought against Hermsen for interfering with
patient care and inappropriate conduct. After taking evidence on March 7, 2014,
Defendant Berardi concluded that “while PM Hermsen feels it was appropriate to grab
another employee to emphasize that she needed additional information about her patient,
or to guide that employee through a narrow passage at an emergency scene, PM
Bechtold, as well as other personnel on scene did not appreciate the gesture and felt it
was inappropriate.” Ex. R, 3/10/14 Predetermination Decision, p. 2. Plaintiff received a
written reprimand for grabbing PM Bechtold. Ex. R, p.2.
On February 17, 2014, plaintiff went to Station 18 and had a conversation with
Elizabeth Bechtold about the December 7, 2013 incident. Plaintiff and defendants dispute
whether plaintiff was told prior to this incident to refrain from speaking with those who
responded to the December 7, 2013 accident scene. While Hermsen spoke to Bechtold,
Paramedic Schimming came across the bay, shouted vulgarities and stepped about two
feet in front of Ms. Hermsen’s face in a threatening manner and demanded that Ms.
Hermsen leave the station. (Hearing of May 14, 2014, Ex. 6 at 33:24-34:4 and
134:6-135:4). On February 21, 2014, Ms. Hermsen learned that charges were filed
against her for engaging in offensive conduct and interfering with a witness due to her
conversation with Ms. Bechtold. (Fact Finding of Feb. 21, 2014, Ex. 45).
On March 17, 2014, Chief Berardi issued a Predetermination Hearing letter to
Hermsen charging her with hindering the effective performance of a municipal
government function and engaging in offensive conduct due to her questioning of
Bechtold on February 17, 2014. On April 11, 2014, Chief Berardi notified Hermsen that
she was immediately suspended without pay and would be terminated in seven days for
the charge of engaging in offensive conduct and hindering the effective performance of a
On April 14, 2014, Hermsen appealed Chief Berardi’s termination of her
employment to the HR Board. On May 14, 2014, the Human Resources Board conducted
a hearing into the February 2014 confrontation. Ex. S, Human Resources Board decision,
Case No. 14-06, p. 1. The Appeal before the City’s Board concerning Hermsen’s
termination included a charge for abuse or improper treatment of a person in custody and
conduct that was disruptive or caused deficiencies in the workplace. These two charges
were not included in Chief Berardi’s termination letter. The KCFD does not have arrest
capability. There were no inefficiencies that occurred due to Hermsen’s two minute
conversation with Elizabeth Bechtold.
On August 11, 2014, the HR Board upheld Hermsen’s termination. The Human
Resources Board found that “[p]rior to [Ms. Hermsen’s] predetermination hearing
regarding the December  incident, at which [Ms. Bechtold] would be called to
testify, [Ms. Hermsen] confronted [Ms. Bechtold] on February 17, 2014, at Fire Station 18
and demanded to talk about such incident. [Ms. Bechtold] told [Ms. Hermsen] that she did
not want to discuss the December incident but [Ms. Hermsen] continued to attempt to
engage [Ms. Bechtold] in a discussion of such incident.” Ex. S, p. 2, ¶ 2. As a result of
these findings, the Human Resources Board determined that Plaintiff violated Fire and
City rules “by her offensive behavior and by engaging in conduct intended to obstruct a
predetermination hearing when she knew, or should have known, that her actions were
inappropriate.” Ex. S, p. 3. As a result of its findings, the Human Resources Board held
that there was “sufficient evidence to support [Plaintiff’s] termination.” Ex. S, p. 3.
On August 18, 2014, Hermsen appealed the HR Board termination decision to City
Manager, Troy Schulte.3
Other Incidents of Alleged Retaliation
In 2011, after the filing of the FLSA lawsuit, Ms. Hermsen was followed home from
work by individuals in pick-up trucks that displayed KCFD stickers. Hermsen was warned
by Lesa Gonzalez that fire fighters were trying to kill her dog. Additionally, fire fighters
blocked Hermsen’s car in at the station. These incidents were reported to fire
administration Scott Raak, Laura Sanchen and Michael Cambiano.
On August 1, 2011 (three days after the FLSA suit was filed), Plaintiff’s counsel in
the underlying FLSA suit sent a letter to the City Attorney and Chief Dyer highlighting
seven negative comments (including publication of her home address) made about
Plaintiff on the website Tony’s Kansas City (which is not affiliated with the City of Kansas
City). Ex. T, 8/1/11 Ltr. from Hodgson. 4 Each of the comments was posted by
To the Court’s knowledge, the results of this appeal do not appear in the record.
These comments include:
“Marissa is full of shit. She should have been fired years ago because she is a
shitty medic who treats her pts like shit. Every time she fucks up she hides behind the
union and then as soon as her job is saved she talks shit on them until her next fuck up.”
“She lives at 565 Campbell Street, and she’s not a nigger?”
“Hey thanks for providing Marissa’s home address!”
“She must not have anything left with all the coke she buys to live in that rat hole.”
“Anonymous,” and plaintiff does not know if the posters were City employees. Chief Dyer
testified he did not investigate the comments because he knew of no way to track the
identities of anonymous posters on a third-party website, other than by using tools
available to the FBI and not the City. Ex. U, Dep. of Richard Dyer, 33:6-34:15. Chief Dyer
did not issue a department-wide bulletin concerning retaliation (nor did he take any
corrective action in response to the Tony’s Kansas City comments), as, in his experience,
“[t]hat is only likely to bring about problems for [the identified] employee.” Ex. U,
On August 27, 2011, a message reading “New EMS CREWS!! If you don’t like it
Leave or if you do like it leave” was found on the white board attached to the EMS locker.
Ex. V, 8/27/11 white board message. On August 30, 2011, a message reading “If you
don’t like it leave” was found on the white board attached to the EMS locker. Ex. V,
8/27/11 white board message. Chief Dyer agreed that the above-described comments
posted on the white board on the EMS locker violated Rule 11, which describes acts that
can result in disciplinary action, including termination. (Dyer Dep., Ex. 17 at 34:16-35:19);
(City Rule 11 Corrective Action, Ex. 29). Chief Berardi agreed that the comments on the
EMS locker warrant an investigation. (Berardi Dep., Ex. 19 at 47:6-11). Chief Dyer was
never made aware of the messages left on the white board on the locker and is
responsible for disciplinary actions that involve suspensions, demotions, and
terminations. (Dyer Dep., Ex. 17 at 10:8-21 and 34:20-35:19). Chief Berardi never
conducted an investigation into the comments. (Berardi Dep., Ex. 19 at 47:12-14).
“Here’s a photo of the cunt from a few years ago.”
“Looks like a lesbian from the photo.”
“I’d eat her pussy any day of the week!”
Ex. T, 8/1/11 Ltr. from Hodgson.
On September 16, 2011, it was reported to Chief Dyer that an icon reading
“Marissa Hermsen is a CUNT” existed on a computer at Station 35. Ex. W, 9/11 email
chain, KCMO_0005244. Chief Dyer had the computers removed from Station 35 and
reported the conduct to the City’s EEO office. The City conducted interviews and a
forensic analysis of the computer to determine who created the icon. The IT department
was able to determine that the offensive icon was created under the login identification of
Andrew Hanchette. However, Mr. Hanchette was logged onto five separate station’s
computers that day, and when questioned noted that he frequently forgot to log off of
computers he was signed on to. Additionally, Mr. Hanchette was on leave the date that
the icon was created and was one of the original reporters of the offensive icon. The City
did not discipline any parties for the creation of the offensive icon. No further reports of
offensive comments on City computers were made after Chief Dyer had the computers
removed from Station 35.
On January 31, 2012, Dispatcher Anne Lewis posted a negative comment about
Hermsen on the Union’s Facebook page, which is open to those who are captain and
Am I seriously the only one who has come to the reality that the issues with
EMS not getting OT is due to a certain pending lawsuit and on the very
sliiiiiim chance the dept loses . . . and I do mean slim . . . . the financial
liability behind that??? I mean come on!!! Hello …. They hire OT for
dynamics and suppression, but rarely, if EVER, for statics!!! Are dynamics
or suppression listed in the lawsuit!!! Nooooooo. I can draw you a picture if
that would be easier! You all have one person to thank for this and TRUST
ME that person now gets PLENTY of OT.
(Union Facebook Page, Ex. 30); (Hermsen Dep., Ex. 1 at 44:1-11). On February 6, 2012,
Hermsen made a formal complaint to her supervisor that Anne Lewis dispatched her to a
scene that was not secure:
My biggest concern of having her dispatch while I am working is, as you will
see in the Facebook post she made directly after the incident, she has
made it clear her opinion on the FLSA lawsuit I have filed against the City. I
believe she will again use her access to information and abuse her position
to retaliate against me due to the suit and her personal vendetta against
(Email of Feb. 6, 2012 from Hermsen to Brenda Paikowski, Ex. 31). Chief Dyer admitted
that he was aware of the information in Hermsen’s complaint about Ms. Lewis and no one
interviewed her. (Dyer Dep. Ex. 17 at 54:25-55:4 and 58:10-12).5
In February 2012, Captain Cashen got out of his pumper and started yelling
obscenities at Hermsen because he purportedly was upset that the police department
delayed patient care. (Hermsen Dep., Ex. 1 at 65:24-67:12). Captain Cashen had been
outspoken against Hermsen in social media and in Union meetings ever since she filed
the FLSA suit, but remains employed by the City. (Hermsen Dep., Ex. 1 at 69:20-70:6);
(Dyer Dep., Ex. 1 at 66:11-13). Captain Cashen may have been counseled regarding his
language, his body language, and his approach to the incident, but received no discipline
other than that. (Dyer Dep., Ex. 1 at 60:21-61:2, 65:3-8 and 66:11-16).
In 2014, KCFD employees Tara Hill, Katee Schimming, Tara Baugher, Katie
Zishka, Dave Clark, Rina Trowbridge and Captain Charlie Cashen all posted negative
comments about Hermsen on the Union’s Facebook page. (Hermsen Dep., Ex. 1 at
On March 10, 2014, Hermsen responded to a call involving an injured fire fighter
who was lying at the bottom of a ladder. ADC Paul Paikowski (who is the spouse of
Brenda Paikowski), stood uncomfortably close to Hermsen and later yelled, “When I ask
you a question you damn well better answer me.” Hermsen asked ADC Paikowski why he
was threatening her and he responded, “I’m warning you, give me attitude and it will be
the last thing you ever do.” Hermsen felt threatened by the actions of ADC Paikowski and
Plaintiff argues that even assuming the IT department could not track down posters to
Tony’s Kansas City, Chief Dyer’s inaction with respect to the Union’s Facebook page is
filed a complaint with fire administration and City HR reminding them that she was a class
action plaintiff and believed ADC Paikowski’s actions were retaliatory. Hermsen’s partner,
Mike Williams, was questioned about the incident and confirmed that ADC Paikowski
threatened Hermsen. On April 3, 2014, Hermsen sent an email to Kym Lewis, EEO
Manager, asking why her complaint of harassment and retaliation had not been
addressed. Lewis responded the following day and said the complaint for retaliation had
no merit. (Email of Apr. 3, 2014, from Hermsen to Kym Lewis, Ex. 51); (Email of Apr. 4,
2014 from Kym Lewis to Hermsen, Ex. 51).
Treatment of Other KCFD Employees
ADC Fennel, who was not the face of the FLSA complaint, was not terminated for
choking Division Chief Mark Mauer. (Hearing of May 14, 2014, Ex. 6 at 173:21-174:7);
instead, he was terminated as part of a progressive discipline process. Paramedic Koen,
who was not the face of the FLSA complaint, was not terminated, despite the fact that
both his partner and Hermsen filed complaints documenting abuse. (Vittori Complaint,
Ex. 41). (Berardi Dep., Ex. 19 at 67:14-68:20). Instead, at some point, Koen left his
employment with KCFD and was re-hired. (Berardi Dep., Ex. 19 at 65:7-9).
Summary judgment is appropriate if the movant demonstrates that there is no
genuine issue of material fact and that the movant is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The facts and inferences are
viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–90 (1986). The moving party must carry the
burden of establishing both the absence of a genuine issue of material fact and that such
party is entitled to judgment as a matter of law. Matsushita, 475 U.S. at 586–90.
A nonmoving party must establish more than “the mere existence of a scintilla of
evidence” in support of its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
The nonmovant must do more than simply show that there is
some metaphysical doubt as to the material facts, and must
come forward with specific facts showing that there is a
genuine issue for trial. Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citations
and quotations omitted).
A. Count I – FLSA Retaliation
Defendants argue they are entitled to summary judgment because plaintiff cannot
satisfy the McDonnell-Douglass burden shifting analysis. The FLSA makes it unlawful “to
discharge or in any other manner discriminate against any employee because such
employee has filed any complaint . . . under or related to this chapter.” 29 U.S.C. §
215(a)(3). The Eighth Circuit uses the familiar McDonnell-Douglas burden-shifting
analysis to analyze FLSA retaliation cases. See Grey v. City of Oak Grove, Mo., 396 F.3d
1031, 1034 (8th Cir. 2005). Therefore, plaintiff must first demonstrate a prima facie case
of retaliation. If she does so, the burden shifts to the defendants to articulate a
non-retaliatory reason for adverse employment actions. If the defendants succeed in so
doing, the burden shifts back to the plaintiff to show that the reasons articulated by the
defendants are pretext for retaliation. Id.
1. Prima Facie Showing of Retaliation
To establish a prima facie case of retaliation, a plaintiff must show that she
engaged in protected activity, that the defendant took an adverse employment action
against the plaintiff, and that there was a causal link between the protected activity and
the adverse employment action. Grey, 396 F.3d at 1034-35; Kipp v. Mo. Highway and
Transp. Comm’n, 280 F.3d 893, 896 (8th Cir. 2002). Here, there is no question that
plaintiff engaged in protected activity in complaining regarding FLSA violations. The
Court next turns to whether defendants took adverse employment action against the
Defendants argue that because the majority of adverse actions taken against
plaintiff6 occurred in the context of the City’s disciplinary process, which contains the
procedural formalities sufficient to be a contested case for Missouri Administrative
Procedures Act (“MAPA”) purposes. Thus, defendants argue that the factual and legal
conclusions resulting from these hearings are protected from re-litigation through
collateral estoppel. A “contested case” is a “proceeding before an agency in which legal
rights, duties or privileges of specific parties are required by law to be determined after
hearing.” Wheeler v. Bd. of Police Comm’rs of Kansas City, 918 S.W.2d 800, 804 n.2 (Mo.
App. 1996); RSMo. § 536.010. See also Kline v. Bd. of Parks & Recreation Comm’rs, 73
S.W.3d 63, 66 (Mo. App. 2002) (finding that the procedures of the City of Kansas City,
In the Complaint, plaintiff identifies the following adverse actions:
disciplining Ms. Hermsen for allegedly abandoning her post when she had
permission from her Captain to leave the station and let her dog out;
allowing rude and threatening messages about Ms. Hermsen to be posted
around the stations and on city blogs;
investigating Ms. Hermsen for failing to run down the aisle in a crowded
auditorium to render medical aid to a female patient;
disciplining Ms. Hermsen for playing a practical joke on a coworker and
classifying the minor incident as a violent act;
disciplining Ms. Hermsen for touching the arm of an inexperienced EMT and then
classifying the incident as “offensive conduct;” and
terminating Ms. Hermsen’s employment because she approached the
inexperienced EMT and asked her if she knew why she was being investigated for
touching Ms. Bechtold’s arm at the multi-vehicle fatality crash site.
Doc. No. 1, ¶ 60. The second and third of these resulted in no discipline against plaintiff.
Missouri, amount to a “contested case”). Under MAPA, a person aggrieved by such a
decision is entitled to judicial review only after exhaustion of administrative remedies.
RSMo. § 536.100.1; James v. City of Jennings, 735 S.W.2d 188, 190 (Mo. App. 1987).
Defendants argue that plaintiff did not exhaust her administrative remedies as to
her claims regarding (1) leaving her post in June 2011; (2) throwing the water bottle in
June 2013; (3) grabbing the arm of another paramedic in December 2013; and (4)
confronting the paramedic in February 2014. With respect to the June 2011 and February
2014 incidents, plaintiff appealed both to the Human Resources Board, and with respect
to the June 2011 incident the Board overturned the suspension that Plaintiff originally
received and permitted, instead, a letter of reprimand and counseling. Plaintiff did not
appeal this finding to the City Manager. With respect to the February 2014 confrontation,
the Board found that there was sufficient evidence to support plaintiff’s termination.
Although defendants argue that plaintiff did not appeal the Board’s decision to the City
Manager, plaintiff notes that an appeal was filed; however, the result of that appeal does
not appear in the record. In the case of the June 2013 water bottle incident (wherein she
received a stayed suspension pending successful completion of EAP) and the December
2013 touching at the scene incident (wherein she received only a reprimand), plaintiff did
not file an appeal with the Human Resources Board. Defendants therefore argue that
these disciplinary decisions are final administrative decisions not subject to collateral
In response, plaintiff first notes that written reprimands (such as what she received
in the 2011 post abandonment case, and 2013 offensive touching case) are not
appealable because they do not amount to a demotion, suspension or termination; thus,
plaintiff argues that those decisions should not have a preclusive effect. Furthermore,
with respect to the 2013 water bottle incident, plaintiff notes that the suspension was
stayed, and mandatory EAP counseling is not appealable because it does not involve a
demotion, suspension or termination.
The Court agrees with plaintiff that the City’s findings on the four above-mentioned
incidents should not be given preclusive effect, because those decisions were either not
appealable or the results of the appeal are not in the record. Furthermore, the Court
notes that for collateral estoppel to apply, the issues before the Court and the other
tribunal must be identical to the issues presented in the present action. See Oates v.
Safeco Ins. Co. of Am., 583 S.W.2d 713, 719 (Mo. banc 1979).
In the below
administrative proceedings, the City was not tasked with considering whether these
actions were part of a pattern of harassment and retaliation in response to plaintiff’s
complaints about FLSA violations. See, e.g., Tolefree v. City of Kansas City, 980 F.2d
1171 (8th Cir. en banc 1992) (finding, in case of a firefighter who alleged he was
discriminated against and terminated due to his race, the issue decided in the prior
litigation was not identical because the Board never considered any of the discrimination
or retaliation issues, id. at 1174). Therefore, this Court finds that the City’s previous
findings should not be given preclusive effect in the present matter.
2. Causal Link between Adverse Event and Protected Activity
Defendants also argue that plaintiffs’ alleged adverse employment actions do not
amount to a prima facie case of retaliation, arguing that (1) there is no temporal proximity
between plaintiff’s FLSA complaint and (a) the discipline for job abandonment in 2011,(b)
the complaint regarding how she provided aid to a patient at a theater production in
December 2012, (c) the June 2013 water bottle incident, (d) the December 2013
offensive touching at the scene of a motor vehicle accident, and (e) her termination for
interfering with the investigation of the offensive touching incident; and (2) with respect to
the comments made on Tony’s Kansas City, as well as the writing on a white board at
plaintiff’s station and the phrase “Marissa is a c—t” on the station computer, defendants
argue that (a) no one knows if the comments from Tony’s Kansas City came from City
personnel or not, and plaintiff cannot show that the harassment came from a
non-supervisory co-worker (see Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th
Cir. 1999), (b) no one knows who the comments on the white board were written by or
directed at, and therefore she cannot prove a causal link between these messages and
protected activity; and (c) with respect to the phrase on the station computer, Chief Dyer
had the computers removed and an investigation conducted, but the EEO office found
insufficient evidence to discipline any parties for creation of this content.
Plaintiff responds that viewing the history of this matter in the light most favorable
to Ms. Hermsen shows that questions of material fact exist as to whether her FLSA
complaint was a motivating factor in the defendants’ employment decisions. Plaintiff
asserts that, here, she submitted her warning paper to Lisa Minardi in March 2011.
Between March 2011 and July 29, 2011, Captain Wright announced at union meetings
that someone had complained about FLSA violations and was out to harm KCFD. In
June 2011, plaintiff was disciplined for the first time by KCFD for photographing a vehicle,
not providing her name fast enough at an accident scene, and exchanging words with
another employee (plaintiff asserts no one at KCPD had been discipline for a verbal
altercation since at least 1999). Then, on July 13, 2011, plaintiff was charged with
abandoning her post. On July 29, 2011, plaintiff filed her FLSA class action in federal
court. Three days after the filing of the FLSA complaint, derogatory comments were
published anonymously on Tony’s Kansas City. Although plaintiff’s attorneys reported
these comments to the City, Chief Dyer took no action to investigate the media posts
about Marissa Hermsen and did not tell employees to stop the harassment of Ms.
Hermsen. After the FLSA suit was filed, fire fighters left threatening messages on a white
board on the EMS supply locker instructing Ms. Hermsen to leave the department;
followed Ms. Hermsen home from work; threatened to kill her dog; and blocked her
vehicle in while parked at the station. Although plaintiff complained to fire administrators
about this conduct, Chief Dyer was never made aware of it. On or about August 25,
2011 (less than a month after the FLSA suit was filed), Chief Dyer ruled that Marissa
Hermsen was guilty as charged on the post abandonment and disciplined her by with an
oral and written reprimand and a suspension, which decision was later reversed by the
On or about September 16, 2011, Marissa Hermsen’s partner, Andrew
Hanchette, saw “Marissa Hermsen is a cunt” on the desktop at Station No. 35. Chief Dyer
did not disseminate any information or warnings to any fire fighter, EMT or paramedic
telling them not to post anything on the internal computers or boards that were derogatory
to Marissa Hermsen.
On January 31, 2012, Dispatcher Anne Lewis posted negative comments about
Marissa Hermsen and her FLSA suit on the Union Facebook page. Ms. Lewis later
dispatched Ms. Hermsen to a scene that was not secured. Ms. Hermsen filed a written
complaint about Ms. Lewis complaining of safety issues and retaliation, but Ms. Lewis
was not disciplined for her post about Ms. Hermsen. In February 2012, Captain Cashen
yelled obscenities at Marissa Hermsen, and had openly complained about Ms. Hermsen
on the Union Facebook page. No disciplinary action was taken against Captain Cashen
other than talking to him about his language and his body language. On or about June 13,
2013, Marissa Hermsen was investigated for engaging in a “violent act” for what she
believed was tossing a water bottle in jest at the feet of her supervisor. On or about
August 5, 2013, (14 days after Chief Berardi was deposed in the FLSA action, a
deposition attended by Hermsen) he found Marissa Hermsen guilty of engaging in
workplace violence for tossing a water bottle. Ms. Hermsen’s 26.6-hour suspension for
this incident was held in abeyance on the condition that she complete EAP counseling for
engaging in “workplace violence.”
On or about December 7, 2013, Marissa Hermsen had an encounter with
Paramedic Jonathon Koen and felt threatened. She filed a complaint about Mr. Koen’s
conduct that same day. Fire administrators initially wanted to dismiss Ms. Hermsen’s
complaint as an issue between union members. Jonathon Koen was never disciplined for
the aggressive manner in which he treated Ms. Hermsen. On or about December 13,
2013, Marissa Hermsen was investigated for her actions at a fatality motor vehicle
accident scene, despite the fact that no one had complained about her conduct. Ms.
Hermsen lightly grabbed the jacket of a paramedic who was working on a deceased
patient to obtain information about another victim and to have her hand there in case she
tripped on the equipment that covered the ground. On January 8, 2014, Marissa Hermsen
filed a motion for summary judgment in the FLSA suit. On January 21, 2014 (thirteen days
after summary judgment motion was filed) Assistant Chief Pat Reisenbichler emailed the
EAP provider and asked her to delay the release of Ms. Hermsen from the EAP mandate,
despite the fact that Marissa Hermsen concluded EAP counseling on December 9, 2013.
On February 5, 2014, (less than a month after the summary judgment motion was filed),
charges were brought against Marissa Hermsen for interfering with patient care and
engaging in offensive conduct regarding her treatment of Elizabeth Bechtold at the fatality
accident scene. On February 17, 2014, Ms. Hermsen spoke with Elizabeth Bechtold at
the fire station and was threatened by Katee Schimming during the process. On February
21, 2014, Marissa Hermsen was informed that charges of engaging in offensive conduct
and interfering with a witness were being brought against her for having a conversation
with Elizabeth Bechtold about the fatality accident. On April 11, 2014, Chief Berardi
immediately suspended Marissa Hermsen pending her termination of employment.
Although defendants argue that all plaintiff has done is list a laundry list of
complaints without linking those negative experiences to the FLSA case, the Court finds
that when the facts are taken in the light most favorable to plaintiff, plaintiff has sufficiently
established a causal link between the actions complained about and the FLSA case she
filed in 2011 and which was progressing throughout the time period where she has
alleged retaliation. Summary judgment, therefore, is DENIED as to defendants’
arguments that plaintiff cannot demonstrate a prima facie case of retaliation.
3. Are Defendants’ Non-Retaliatory Explanations for Events Pretextual?
Defendants note that the next step in the McDonnell-Douglas framework is to allow
the defendants to present a non-retaliatory explanation for their actions, which they have
done through providing the record of their hearings on each disciplinary event. Given
that defendants have provided non-retaliatory explanations for their actions, the burden
then shifts to plaintiff to show these reasons are pretextual.
“Pretext may be proved either ‘by persuading the court that a discriminatory [or
retaliatory] reason more likely motivated the employer or . . . by showing that the
employer’s proffered explanation is unworthy of credence.’” Schweiss v. Chrysler Motors
Corp., 987 F.2d 548, 549 (8th Cir. 1993) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981)). “An employee’s attempt to prove pretext or actual
discrimination requires more substantial evidence [than it takes to make a prima facie
case], however, because unlike evidence establishing the prima facie case, evidence of
pretext and discrimination is viewed in light of the employer's justification.” Sprenger v.
Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir. 2001).
Additionally, the burden is on a plaintiff to show “a genuine issue for trial about whether
the employer acted based on an intent to [retaliate] rather than on a good-faith belief that
the employee committed misconduct justifying termination.” Elam v. Regions Fin. Corp.,
601 F.3d 873, 880 (8th Cir. 2010) (internal quotation and citation omitted). However,
“[t]he standard for plaintiff to survive summary judgment require[s] only that plaintiff
adduce enough admissible evidence to raise genuine doubt as to the legitimacy of the
defendant’s motive, even if that evidence does not directly contradict or disprove
defendant’s articulated reasons for its actions.” O’Bryan v. KTIV Television, 64 F.3d 1188,
1192 (8th Cir. 1995). An employee need not “disprove the exact reason stated by
defendants for terminating him” at the summary judgment stage. Id.
Defendants argue that plaintiff has no proof of any other motivating reason for the
alleged retaliatory acts. Defendants further argue that plaintiff was not the only individual
fighting the City in the FLSA suit, as named in plaintiff’s suit was also plaintiff’s partner,
Andrea Armilio, and a second suit was filed by Diana Frisbee. The City notes it took no
disciplinary action against Armilio or Frisbee, and only two of the 244 individuals involved
in the lawsuit were terminated for a disciplinary event (plaintiff and one other). Plaintiff,
however, has produced evidence that suggests that defendants’ reasons for disciplining
her changed over time, and that even when no complaints had been filed against her, the
people investigating Hermsen’s complaints against others would turn their attention to her
behavior. Plaintiff has produced evidence that she was disciplined for conduct that
others were not, and terminated for conduct that no one else had been terminated for.
With respect to the other class members, plaintiff notes it would have been impossible for
defendants to terminate all the class members as it would result in a shortage of first
responders. Instead, plaintiff suggests there was a target on her back because she
brought the FLSA violations to light.
The Court finds that plaintiff has sufficiently demonstrated that questions of
material fact remain as to whether defendants’ stated motives were pretext for retaliation.
Accordingly, defendant’s motion for summary judgment as to Count I of the Complaint is
B. Count II.
As discussed previously, in response to defendants’ motion for summary
judgment, plaintiff indicates that she will abandon her claims in Count II because she
cannot demonstrate that the City does not have sovereign immunity, nor can she
demonstrate that defendant Berardi is not protected by official immunity. Accordingly,
defendants’ motion for summary judgment is GRANTED as to all claims presented in
C. Punitive Damages
Defendants argue that plaintiff is not entitled to punitive damages under the FLSA.
Defendants note that, in 1991, the Eastern District of Missouri made a finding, without
discussion in Waldermeyer v. ITT Consumer Fin. Corp, that “punitive damages are not
available under the FLSA.” 782 F.Supp. 86, 88 (E.D. Mo. 1991). Defendants further note
that the Eleventh Circuit, in Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir.
2000), looked at FLSA statutes to determine the meaning of “legal relief” available to
those that have been retaliated against under the FLSA. 29 U.S.C. § 216(b). In Snapp,
the Eleventh Circuit found that, with respect to the explicitly available damages under the
FLSA, each of the award types “is meant to compensate the plaintiff. Awards of unpaid
minimum wages, unpaid overtime compensation, employment, reinstatement, promotion,
and the payment of wages lost all attempt to put the plaintiff in the place she would have
been absent the employer’s misconduct.” Id. at 934 (emphasis added). The Eastern
District of Missouri has since followed the Snapp opinion, see Huang v. Gateway Hotel
Holdings, 520 F.Supp.2d 1137 (E.D. Mo. 2007).
However, as noted by plaintiff, courts are divided as to whether punitive damages
are available for FLSA retaliation. Courts finding punitive damages available include:
Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108, 111-12 (7th Cir. 1990);
and O’Brien v. DeKalb-Clinton Counties Ambulance Dist., No. 94-6121-CV-SJ-6, 1996
WL 565817 (W.D. Mo. June 24, 1996) (J. Whipple). While defendants argue that this
Court is free to choose between the various damages theories, the Court believes the
better course of action is to DENY defendants’ motion at this time, and determine at trial
whether plaintiff has made a submissible case for punitive damages.
D. Emotional Distress Damages
Defendants note that the Eighth Circuit has previously stated that emotional
distress damages are not available under the FLSA generally. See Fielder v. Indianhead
Truck Line, Inc., 670 F.2d 806, 810 (8th Cir.1982) (finding that the ADEA did not permit
compensation for pain and suffering because under the FLSA (a parallel statute to the
ADEA), “damages for pain and suffering have never been awarded.”). In response,
plaintiff cites to a case from the Western District of Missouri Court of Appeals.
Altenhofen v. Febricor, Inc., 81 S.W.3d 578 (Mo. Ct. App. 2002), finding damages for pain
and suffering to be awardable under the FLSA.
Although Missouri Court of Appeals decisions are not binding authority upon this
Court, this Court is persuaded that it should allow plaintiff’s emotional distress damages
to proceed. Altenhofen examines both Travis, 921 F.2d 108, and O’Brien, 1996 WL
565817, and finds those cases to allow both punitive damages and emotional distress
damages in FLSA retaliation cases. Furthermore, although defendants claim the Court
is bound by the Eighth Circuit’s decision in Fielder, this Court notes that in Fielder the
Eighth Circuit cites to the relief available to claimants under 29 U.S.C. §§ 206 and 207,
not the relief available under 29 U.S.C. § 215(a)(3), which is the applicable section for
FLSA retaliation claims.
Accordingly, the Court will DENY defendants’ motion for
summary judgment as to emotional distress damages.
Accordingly, for all the reasons stated herein, Defendants’ Motion for Summary
Judgment (Doc. No. 27) is GRANTED IN PART as it relates to Count II, and DENIED IN
PART in all other relevant aspects.
IT IS SO ORDERED.
/S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
Dated: March 10, 2017
Kansas City, Missouri
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