Oldridge v. Wichita, Kansas, City of

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

LANCE OLDRIDGE,

Plaintiff,

vs. Case No. 6:21-cv-1284-EFM-KGG

CITY OF WICHITA, KANSAS;

ROBERT LAYTON;

GORDON RAMSAY;

WANDA GIVENS;

JOSE SALCIDO; and

ANNA HATTER,

Defendant.

MEMORANDUM AND ORDER

Before the Court is Defendants’ Motion for Summary Judgment on each of Plaintiff Lance

Oldridge’s claims. Plaintiff has asserted claims for violations of the First and Fourteenth

Amendments under 42 U.S.C. § 1983 against all six Defendants and claims under Title VII and

the Kansas Act Against Discrimination (“KAAD”) against the City of Wichita. Each claim

revolves around Plaintiff’s termination from the Wichita Police Department following statements

he made to Sedgwick County District Attorney Marc Bennett and Sheriff Jeffrey Easter regarding

Chief Gordon Ramsay’s alleged perjury. The individual Defendants have asserted qualified

immunity as a defense to Plaintiff’s First Amendment claims, arguing that (1) there was no

violation of Plaintiff’s constitutional rights and (2) there was no law clearly establishing that their

actions violated a constitutional right. In a perplexing move, Defendants have limited their

arguments regarding Plaintiff’s Title VII, KAAD, and Equal Protection claims to contending that

Plaintiff has failed to state claims under Federal Rule of Civil Procedure Rule 12(b)(6) instead of

arguing under a summary judgment standard. Therefore, notwithstanding the title of Defendants’

Motion, the Court considers their Motion to be solely a motion to dismiss under Rule 12(b)(6) for

all claims except Plaintiff’s First Amendment Claims. For the reasons set forth below, the Court

grants Defendants’ Motion in part and denies it in part.

I. Factual and Procedural Background

Defendants argue against Plaintiff’s First Amendment retaliation claim under Rule 56’s

summary judgment standard. In contrast, Defendants posture their arguments regarding Plaintiff’s

remaining claims under Rule 12(b)(6)’s standard—i.e., failure to state a claim—instead. With that

in mind, the facts upon which the Court relies to resolve Plaintiff’s First Amendment claim are

those undisputed by the parties and supported by proper citations to the record. Regarding

Plaintiff’s Title VII, KAAD, and Equal Protection claims, the facts are taken from Plaintiff’s

Complaint and considered true for the purposes of this Order.

A. Uncontroverted facts relevant to Defendants’ argument under a summary judgment

standard

Plaintiff worked for the Wichita Police Department (“WPD”) from 1993 to April 2020,

serving as a detective for over 20 years of that time. Plaintiff was assigned to the Professional

Standards Bureau (“PSB”) from 2013 to October 2016. In 2014, while Plaintiff was still on the

PSB, he sent an email elucidating his concerns in light of the recent Ebola outbreak about a trip by

the Wichita City Council to Africa. Defendants do not address whether this email had anything to

do with Plaintiff’s eventual termination. In 2016, Plaintiff raised his voice to his supervisor and

secretly recorded their meeting resulting in his removal from the PSB and reassignment to the

WPD police academy.

In 2019, the Wichita Eagle published an article titled “Wichita Chief Concerned About

Police Shooting Investigations.” The article quoted from a deposition Chief Gordon Ramsay had

given in another case where Ramsay revealed his concerns in 2015 and 2016 that PSB officers had

asked leading questions and potentially contaminated ongoing criminal investigations. Although

not explicitly mentioned by the article, Ramsay specifically mentioned his concern with Plaintiff’s

leading questions, conflicts, and biased investigations in that same deposition. Furthermore,

Ramsay testified that he had responded by reassigning several officers, impliedly including

Plaintiff.

In response to the article, Ramsay issued a public statement wherein he claimed that the

officers he had reassigned in 2016, including Plaintiff, “committed no legal or WPD internal

violations.” It was this statement that sparked the current fire before this Court.

On July 24, 2019, Plaintiff delivered a packet of materials to Sedgwick County District

Attorney Marc Bennett (the “DA”). This packet contained various materials relating to Ramsay’s

deposition, the Wichita Eagle article, and Ramsay’s public statement. It also included a copy of

K.S.A. § 21-6103, which criminalizes false communications in certain circumstances. With the

packet, Plaintiff sent a cover letter asserting that Ramsay gave false testimony under oath, as

evidenced by the alleged discrepancy between the deposition and Ramsay’s public statement that

no officers had violated any internal WPD policies. He requested that the DA investigate

Ramsay’s allegedly criminal conduct, adding that he was willing to sign a criminal complaint

against Ramsay. After receiving a follow-up email from Plaintiff regarding Ramsay’s alleged

crimes, the DA responded via email, opining that Ramsay had not committed any crime.

According to the DA, Ramsay had merely set forth his opinions in both the deposition and the

public statement.

Apparently unsatisfied with this response, Plaintiff contacted Sheriff Jeffrey Easter to

request that the Sheriff’s Office investigate Ramsay’s alleged perjury. At that time, Plaintiff

informed the Sheriff that the DA had chosen not to investigate Plaintiff’s allegations. The Sheriff

contacted the DA regarding Plaintiff’s allegations. The DA responded, once again stating that in

his opinion Ramsay had not committed any crime. In agreement with the DA, the Sheriff informed

Plaintiff that Ramsay had not committed perjury and there would be no forthcoming investigation.

The Sheriff also contacted Ramsay to inform him of Plaintiff’s allegations.

After learning of Plaintiff’s statements to the DA and the Sheriff, Ramsay contacted

Deputy Chief Jose Salcido to inform him of the same. Salcido, Deputy Chief Anna Hatter, and

Deputy Chief Wanda Givens met with the DA to discuss Plaintiff’s allegations, eventually

deciding that Salcido and Givens would request a PSB investigation into Plaintiff based on his

statements to both the DA and the Sheriff.1 Ramsay acquiesced to their request as soon as he

received it.

On December 6, 2019, Plaintiff received a notice of the investigation listing the sole reason

for the investigation as Plaintiff’s alleged failure to inform the Sheriff of his prior communications

1 Although Hatter’s testimony at the arbitration hearing stated that she was only concerned with Plaintiff’s

statement to the Sheriff, the Court is not required to accept as true a defendant’s self-serving testimony proffered in

support of its motion for summary judgment. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151 (2000)

(“[T]he court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the

moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested

witnesses.”) (emphasis added). Regardless, this is irrelevant to the outcome of this case as Defendants do not argue

this point.

with the DA. Plaintiff immediately informed Givens that this was false, to no avail. Upon

initiating the investigation, Givens suspended Plaintiff with pay until it concluded. Givens also

confined Plaintiff to his residence during the workweek, which differed from past practice only

requiring suspended employees to be available via phone during work hours. The evidence

suggests that the investigation lasted over three months, with Plaintiff’s suspension lasting over

four months.

On December 9, 2019, Plaintiff provided documents to the PSB showing that he had told

the Sheriff of his prior conversations with the DA. That same day, Plaintiff filed a complaint about

Givens and Ramsay for retaliation and providing false testimony respectively. In response, Givens

filed a complaint against Plaintiff for racial discrimination.

Despite the basis for the investigation swiftly being proven false, the investigation did not

cease—rather, it was amended on December 16, 2019, to add a general allegation that Plaintiff

had engaged in conduct to discredit the WPD without regard to his obligations as an officer. On

March 30, 2020, Hatter recommended termination of Plaintiff in a memo to City Manager Brandon

Layton. In the memo, Hatter extensively discussed Plaintiff’s statements to the DA and the Sheriff

but stated that the reason for termination was Plaintiff’s derogatory and debasing statements about

Ramsay to his coworkers, untruthfulness, and breach of a prior confidentiality agreement. Layton

approved Plaintiff’s termination on April 19, 2020.

Plaintiff filed a grievance because of his termination, resulting in a four-day arbitration

hearing. Ultimately, the arbitrator found that Plaintiff had violated WPD policies, but termination

was unjustified in this context. Rather, the arbitrator recommended reinstatement with a lesser

penalty. Layton clearly disagreed, as he rejected the arbitrator’s recommendation and sustained

Plaintiff’s termination. A state court upheld Layton’s decision under the highly deferential agency

review standard, finding that it was supported by substantial evidence and neither arbitrary nor

capricious.

Plaintiff thereafter filed a complaint against Defendants in federal court, alleging claims

under the First and Fourteenth Amendments, Title VII, and the Kansas Act Against Discrimination

(“KAAD”). Even though discovery has yet to commence, Defendants have now moved for

summary judgment on all of Plaintiff’s claims, although as previously noted, the Court considers

Defendants’ Motion only as a motion to dismiss for all claims except Plaintiff’s First Amendment

claim.

B. Facts taken from Plaintiff’s Complaint relevant to Defendants’ argument under a

motion to dismiss standard

In 2018, Plaintiff’s wife, Sarah Oldridge, sent an email to the WPD at large, nominally

asking what the WPD did to eliminate bias from an anonymous survey used by the WPD in its

promotion procedures. This email was written in response to the WPD passing over Sarah, who

was fully qualified, for promotion in favor of an African American male. Furthermore, that man

was qualified only because he had provided false information on his application. Thereafter, the

City generated a new application to make the man’s answer to the previous application true under

the new form. The man received no other penalty.

On another occasion, Hatter signed a letter stating that WPD sergeant Kris Henderson, who

was also African American, had knowingly lied to PSB during an internal investigation. Hatter

believed this at the time. Within hours of signing the letter, Hatter claimed she changed her mind

and that Henderson had not lied. Hatter never provided any explanation for this abrupt change.

Henderson received no penalty and was soon promoted to Lieutenant.

Furthermore, a Hispanic officer set up fake email accounts to book tee times for fictional

golfers at public golf courses around Wichita in order to play through the course faster. Even

though such conduct was dishonest, the City failed to give the officer any penalty for dishonesty.

Instead, it gave him a low-level penalty for “poor judgment.”

Finally, Givens held a racially segregated meeting in 2020, inviting exclusively African

American officers to attend. After someone complained to City Council, they reached out to

Ramsay, who in turn asked Givens about it. Givens then filed a PSB report, thereby initiating an

investigation where the PSB conducted extensive email searches to find out who had notified City

Council of the meeting.

II. Legal Standard

A. Summary judgment

Summary judgment is appropriate if the moving party demonstrates that there is no genuine

issue as to any material fact, and the movant is entitled to judgment as a matter of law.2 A fact is

“material” when it is essential to the claim, and issues of fact are “genuine” if the proffered

evidence permits a reasonable jury to decide the issue in either party’s favor.3 The movant bears

the initial burden of proof and must show the lack of evidence on an essential element of the claim.4

The nonmovant must then bring forth specific facts showing a genuine issue for trial.5 These facts

must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits—

2 Fed. R. Civ. P. 56(a).

3 Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006) (citing Bennett v. Quark, Inc.,

258 F.3d 1220, 1224 (10th Cir. 2001)).

4 Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986)).

5 Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005) (citation omitted).

conclusory allegations alone cannot survive a motion for summary judgment.6 The court views

all evidence and reasonable inferences in the light most favorable to the non-moving party.7

B. Motion to dismiss

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the

plaintiff has failed to state a claim upon which relief can be granted.8 Upon such motion, the court

must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible

on its face.’ ”9 A claim is facially plausible if the plaintiff pleads facts sufficient for the court to

reasonably infer that the defendant is liable for the alleged misconduct.10 The plausibility standard

reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature

of claims as well the grounds on which each claim rests.11 Under Rule 12(b)(6), the court must

accept as true all factual allegations in the complaint, but need not afford such a presumption to

legal conclusions.12 Viewing the alleged facts “in the light most favorable to the nonmoving

party,”13 the court must decide whether the plaintiff’s allegations give rise to more than speculative

possibilities.14 If the allegations in the complaint are “so general that they encompass a wide swath

6 Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 670–71 (10th Cir. 1998)).

7 LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004) (citation omitted).

8 Fed. R. Civ. P. 12(b)(6).

9 Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

10 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

11 See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citations omitted); see also Fed. R. Civ.

P. 8(a)(2).

12 Iqbal, 556 U.S. at 678–79.

13 Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999).

14 See Iqbal, 556 U.S. at 678–79 (“The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” (citation omitted)).

of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line

from conceivable to plausible.’ ” 15

III. Analysis

A. Plaintiff’s First Amendment claim

Plaintiff asserts claims against all Defendants for violations of the First Amendment.

Section 1983 provides “that every person who acts under color of state law to deprive another of

constitutional rights shall be liable in a suit for damages.”16 Under the First Amendment, persons

have the right to “freedom of speech” and “to petition the Government for a redress of

grievances.”17 In broad terms, government employers violate the First Amendment if their

response to protected speech “would dissuade a reasonable person from exercising First

Amendment rights.”18

The individual Defendants, however, have asserted qualified immunity as an affirmative

defense. Qualified immunity prevents plaintiffs from recovering “damages against a government

official in his personal capacity” unless plaintiff meets a heightened burden.19 Specifically, the

burden is on the plaintiff “to show: (1) that the defendant’s actions violated a federal constitutional

15 Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

16 Bird v. W. Valley City, 832 F.3d 1188, 1207 (10th Cir. 2016) (brackets omitted); see also Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690 (1978) (summarizing 42 U.S.C. § 1983) (“[M]unicipalities and other local

government units [are] included among those persons to whom § 1983 applies.”).

17 U.S. Const. amend. I.

18 Hoke v. Swender, 421 F. Supp. 3d 1164, 1171 (D. Kan. 2019) (citing Lincoln v. Maketa, 880 F.3d 533, 540

(10th Cir. 2018)).

19 Lane v. Franks, 573 U.S. 228, 243 (2014).

or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s

unlawful conduct.”20 The Court is free to address these prongs in any order.21

1. There are genuine issues of material fact as to whether Defendants violated

Plaintiff’s First Amendment rights

Generally, to prevail on a First Amendment retaliation claim, a “plaintiff must show that

(a) he or she was engaged in constitutionally protected activity; (b) the defendant’s actions caused

the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to

engage in that activity; and (c) the defendant’s adverse action was substantially motivated as a

response to the plaintiff's exercise of constitutionally protected conduct.”22 Government

employees alleging retaliation by their employer, however, must meet a higher burden than a

normal person to show their speech is protected.23 This is because “[g]overnment employers, like

private employers, need a significant degree of control over their employees’ words and actions;

without it, there would be little chance for the efficient provision of public services.”24

Accordingly, the Supreme Court crafted a test to balance “the interests of the [employee],

as a citizen, in commenting upon matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its employees.”25

The Garcetti/Pickering test, as it is known by the Tenth Circuit, substitutes its own elements that

a plaintiff must meet to show First Amendment retaliation by a government employer, namely:

20 Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (further citation and quotations omitted).

21 Pearson v. Callahan, 555 U.S. 223, 236 (2009).

22 Van Deelen v. Johnson, 497 F.3d 1151, 1155–56 (10th Cir. 2007).

23 See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

24 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

25 Pickering, 391 U.S. at 568.

(1) whether the speech was made pursuant to an employee’s official duties; (2)

whether the speech was on a matter of public concern; (3) whether the

government’s interests, as employer, in promoting the efficiency of the public

service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether

the protected speech was a motivating factor in the adverse employment action; and

(5) whether the defendant would have reached the same employment decision in

the absence of the protected conduct.26

When analyzing each of these elements, the Court must address “the first three steps” as “questions

of law for the courts, and the last two [as] questions of fact.”27 Failure to meet even one of these

elements results in dismissal of the plaintiff’s claim.28

Defendants fail to point to a lack of evidence supporting Plaintiff’s allegations that steps

one, four, and five have been met in this case.29 Instead, Defendants solely argue elements two

and three; whether Plaintiff’s speech was on a matter of public concern and whether the WPD’s

interest in promoting its own efficiency outweighed Plaintiff’s free speech interest in this case.

a. Plaintiff’s speech was on a matter of public concern.

“Speech is on a matter of public concern if it involves a matter of interest to the

community.”30 “Speech involves a public concern when the speaker intends to bring to light actual

26 Helget v. City of Hays, 844 F.3d 1216, 1221 (10th Cir. 2017) (further citations and quotations omitted).

27 Id.

28 See id. at 1222 (“Because Helget’s claims can be resolved at the third step of the Garcetti/Pickering test,

we confine our review to that step.”).

29 The parties dispute who bears the burden on step five. The Tenth Circuit has unequivocally held that under

the Garcetti/Pickering analysis at summary judgment “the burden remains with the defendant” to prove that the

plaintiff would have been terminated anyway. Roberts v. Winder, 16 F.4th 1367, 1383 (10th Cir. 2021). In their initial

Motion, Defendants make no effort to carry its burden on this issue or steps one and four, thereby waiving any

arguments they may otherwise have.

30 Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1367 (10th Cir. 2015).

or potential wrongdoing or breach of public trust by a public official or to disclose any evidence

of corruption, impropriety, or other malfeasance within a governmental entity.”31

“Generally, the pursuit of criminal charges or allegations of serious misconduct are matters

of public interest and concern.”32 Furthermore, the Tenth Circuit has held in Meyer that the

plaintiff’s “attempt to report an alleged criminal offense was conduct protected by the First

Amendment.”33 “In contrast, speech regarding ‘internal personnel disputes’ ordinarily will not

involve a public concern.”34 Courts must “consider the motive of the speaker and whether the

speech is calculated to disclose misconduct or merely deals with personal disputes and grievances

unrelated to the public’s interest.”35

Here, the evidence shows that Plaintiff attempted to report that the City’s chief of police

had committed perjury. This entails a matter of public concern, as Plaintiff clearly alleged

impropriety and malfeasance by a high-ranking public official. Of course, Plaintiff may have been

motivated at least in part by his personal connection with Ramsay’s statements. However, Plaintiff

has consistently characterized his purpose in sharing Ramsay’s statements as disclosing

government wrongdoing, not airing personal disputes. Defendants cite to no evidence to the

31 Eisenhour v. Weber Cty., 744 F.3d 1220, 1228 (10th Cir. 2014) (brackets and internal quotation marks

omitted).

32 Johnson v. Unified Sch. Dist. 507, Haskell Cnty., 580 F. Supp. 3d 999, 1009 (D. Kan. 2022); Casey v. W.

Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1331 (10th Cir. 2007) (“As we have held many times, speech reporting

the illicit or improper activities of a government entity or its agents is obviously a matter of great public import.”);

Meyer v. Board of County Com’rs, 482 F.3d 1232, 1243, n.5 (10th Cir. 2007) (“We thus conclude that filing a criminal

complaint with law enforcement officials constitutes an exercise of the First Amendment right to petition the

government for the redress of grievances.”) (further citation and quotations omitted).

33 Meyer, 482 F.3d at 1243; see also Eisenhour, 744 F.3d at 1228 (considering protected speech to include

reports of “actual or potential wrongdoing” by public official) (emphasis added) (quotations and citation omitted).

34 Hawkins v. Bd. of Cnty. Commissioners of Coffey Cnty., 376 F. Supp. 3d 1200, 1213 (D. Kan. 2019)

(quoting Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988)).

35 Id. (further quotations omitted).

contrary. This characterization is further supported by his speech being made to the DA and the

Sheriff instead of private parties. Drawing all reasonable inferences in Plaintiff’s favor requires

the Court to find that Plaintiff’s speech was motivated to disclose misconduct. Furthermore,

Defendants cite to no case requiring the report of an actual, proven crime before a plaintiff’s

statement is on a matter of public concern.36 As Plaintiff points out, Defendants could have argued

as an affirmative defense that Plaintiff’s statements were reckless or deliberately false.37 They did

not. As the matter stands before the Court, Plaintiff’s statements to the DA and the Sheriff were

on a matter of public concern. Therefore, this element does not support Defendants’ Motion.

Finally, Plaintiff alleges that his termination was also made in response to his 2014 email

regarding his concern about the possibility of an Ebola outbreak after the City Council’s visit to

Africa. Defendants do not address this part of Plaintiff’s claim at all. Therefore, the Court assumes

that Defendants do not move for summary judgment regarding Plaintiff’s First Amendment claim

based on his 2014 email.

b. Plaintiff’s interest in free speech outweighs Defendants (lack of) interest in

efficiency

The third element of a First Amendment retaliation claim under Garcetti/Pickering requires

the Court to consider whether the WPD’s interest in promoting its efficiency outweighed Plaintiff’s

free speech interests. The main inquiry of this element is “whether the government had ‘an

adequate justification for treating the employee differently from any other member of the public’

36 Cf. Walter v. Morton, 33 F.3d 1240, 1243 (10th Cir. 1994) (“Mr. Walter claims he was retaliated against

for reporting his investigation of criminal conduct of the Chief of Police. Mr. Walter’s statements of perceived illegal

activities are matter of concern for the community.”) (emphasis added).

37 See Gertz v. Robert Welsh, Inc., 418 U.S. 323, 341 (1974)

based on the government’s needs as an employer.”38 Here, “[t]he only public employer interest

that outweighs the employee’s free speech interest is avoiding direct disruption, by the speech

itself, of the public employer’s internal operations and employment relationships.”39 Courts may

consider multiple factors in this analysis, including whether the statement: “[1] impairs discipline

by superiors or harmony among coworkers, [2] has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or [3] impedes the

performance of the speaker’s duties or interferes with the regular operation of the enterprise.”40

The Tenth Circuit has “long recognized that loyalty and confidence among employees is especially

important in a law enforcement setting.”41

Public employers, however, “need not show that the employee’s speech in fact disrupted

internal operations and employment relationships.”42 The public employer only must show “that

the speech could potentially” disrupt the employer’s operations, thereby outweighing the

employee’s free speech interest.43 In making this showing, the public employer must nevertheless

support its “reasonable prediction of disruption . . . by specific evidence.”44 The government’s

interest will be given little to no weight when “there is no evidence that [a plaintiff’s speech]

38 Lane, 573 U.S. at 237 (quoting Garcetti, 547 U.S. at 418).

39 Helget, 844 F.3d at 1222 (further citations and quotations omitted).

40 Rankin v. McPherson, 483 U.S. 378, 388 (1987).

41 Helget, 844 F.3d at 1222.

42 Id. (emphasis in original).

43 Id. (emphasis in original) (further citation and quotations omitted).

44 Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1279 (10th Cir. 2007) (further

citations and quotations omitted).

interfered with the efficient functioning of the office” nor “any danger that [the plaintiff] had

discredited the office by making the statement in public.”45

Here, Defendants have failed to perform any sort of factual analysis whatsoever in support

of their naked assertion that Plaintiff’s statements to the DA and the Sheriff would disrupt

efficiency in the WPD. Furthermore, Plaintiff’s statements were made privately to the DA and the

Sheriff. Defendants’ lack of evidence and factual analysis implies that the WPD suffered no

efficiency loss due to Plaintiff’s statements. Therefore, the Court gives no weight to the WPD’s

interest in efficiency as there is no evidence of how Plaintiff’s statements to the DA and Sheriff

disrupted or would disrupt that efficiency.

The Court gives at least some weight to Plaintiff’s speech to the DA and Sheriff. As

concluded above, Plaintiff’s statements that the Wichita chief of police committed perjury

involved matters of public concern, regardless of the validity or believability of those statements.

This alone entitles Plaintiff’s interest in his speech to some weight regardless of whether Ramsay

actually committed any wrongdoing.46 Since something is greater than nothing, Plaintiff interest

in his freedom of speech outweighs Defendants’ interest—or lack thereof, rather—in efficiency.

Because Plaintiff has shown that there are genuine issues of material fact as to each of the

Garcetti/Pickering elements, the Court holds that a reasonable jury could find that Plaintiff’s First

Amendment rights were violated by his termination.

45 Rankin, 483 U.S. at 389.

46 See, e.g., Lytle v. City of Haysville, 138 F.3d 857, 866 (10th Cir. 1998) (“[A] government employee’s

interest in whistleblowing is entitled to little weight if a reasonable person in his shoes would not have believed that

there was government corruption or wrongdoing.”) (emphasis added).

2. Because Plaintiff asserts First Amendment claims against each Defendant, the

Court must determine whether each Defendant individually violated Plaintiff’s First Amendment

rights under Garcetti/Pickering

Clearly stated under a normal First Amendment claim, yet only implied under the

Garcetti/Pickering elements, is whether the defendant at issue caused a government employee’s

First Amendment rights to be violated. In the present case, Plaintiff has brought his § 1983 First

Amendment retaliation claims against five individuals and one municipality. While similar, the

standards for proving causation differ slightly between the Defendants.

First, an individual government official who “subjects, or causes to be subjected, any

citizen . . . to the deprivation of any rights” is liable under § 1983. The “causes to be subjected”

test requires plaintiff to prove that the individual defendant “set in motion a series of events that

defendants knew or reasonably should have known would cause others to deprive the plaintiff of

his constitutional rights.”47 Borrowing causation principles from the realm of tort liability,48

“[d]efendants are liable for the harm proximately caused by their conduct.”49 “In other words,

they may be held liable if the further unlawful [conduct] would not have occurred but for their

conduct and if there were no unforeseeable intervening acts superseding their liability.”50

Concurrent causation by others “does not change the outcome.”51 Although “[c]ausation is

47 Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006) (further citation, quotations, and brackets omitted).

48 See Monroe v. Pape, 365 U.S. 167, 187 (1961) overruled in part on other grounds by Monell 436 U.S. 658

(“Section [1983] should be read against the background of tort liability that makes a man responsible for the natural

consequences of his actions.”).

49 Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012).

50 Id.

51 Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006).

generally a question of fact for the jury[,] . . . whether the plaintiff has presented sufficient

evidence of causation to defeat a motion for summary judgment is a legal question.”52

a. Hatter and Layton

Defendants allege that as to all Defendants—except Hatter and Layton—Plaintiff cannot

show causation as to Plaintiff’s adverse employment action, but concede that Hatter recommended

Plaintiff’s termination and Layton approved it, even over the contrary recommendation of the

arbitrator. While Defendants argue briefly for the first time in their Reply that Hatter

recommended Plaintiff for termination and Layton terminated Plaintiff for reasons other than

Plaintiff’s protected speech, the Court is not required to give any heed to arguments raised for the

first time in a reply.53 Regardless, this argument is more properly addressed under steps four and

five of the Garcetti/Pickering analysis—i.e., whether Plaintiff would have been fired even without

having made the statements to the DA and the Sheriff. As stated earlier, Defendants failed to

address steps four and five in their initial Motion, waiving any argument as to the true reasons for

Plaintiff’s discharge. Because a genuine issue of material fact exists as to the reasons for Plaintiff’s

discharge, a reasonable jury could find that Hatter and Layton violated Plaintiff’s First Amendment

rights by causing his termination.

52 Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 778 (10th Cir. 2013).

53 See Klima Well Serv., Inc. v. Hurley, 133 F. Supp. 3d 1297, 1302 n.2 (D. Kan. 2015) (“Arguments raised

for the first time in a reply brief are waived and will not be considered.”).

b. Givens and Salcido

Defendants’ main contention is that Givens and Salcido did not terminate Plaintiff or

recommend him for termination—therefore, they did not cause Plaintiff to suffer any adverse

employment action.54

The parties do not dispute that Givens was the one to request the investigation. Defendants

nowhere argue that Plaintiff would have been terminated anyway even if the investigation—

instigated directly in response to Plaintiff’s statements to the DA and Sheriff—had never occurred.

Conversely, Plaintiff has cited facts showing Givens’ refusal to terminate the investigation even

after the alleged basis, Plaintiff’s failure to inform the Sheriff of his previous communications with

the DA, had been proven false. Therefore, Plaintiff has established a genuine dispute of material

fact as to whether Givens set in motion a series of events that Givens knew would lead to Plaintiff’s

termination. Defendants make no contrary argument. Therefore, a reasonable jury could find that

Givens proximately caused Plaintiff’s rights to be violated under § 1983.

The same arguments apply to Salcido. Salcido requested investigation of Plaintiff because

of his protected speech to the DA and Sheriff. This itself does not constitute a clearly established

adverse employment action under the First Amendment. Even though Salcido did not directly

terminate Plaintiff nor suspend him, it was foreseeable that the investigation would lead to more

serious consequences which could constitute violations of Plaintiff’s First Amendment rights.

54 Defendants make no argument about whether the investigation and suspension constituted adverse

employment actions. Although the issue remains open as to whether these actions violated Plaintiff’s First

Amendment rights, the Court finds—as discussed in more detail below—that these do not constitute clearly

established adverse employment actions. Qualified immunity, accordingly, prevents these Plaintiff from recovering

against the individual Defendants for the investigation and suspension. Therefore, the Court need not address whether

they in fact violated Plaintiff’s constitutional rights in the first place. See Pearson, 555 U.S. at 241 (holding that courts

may address qualified immunity prongs in any order under the “general rule of constitutional avoidance”) (further

citations and quotations omitted).

Therefore, a reasonable jury could find that Salcido proximately caused a violation of Plaintiff’s

constitutional rights.55

c. Ramsay

Plaintiff argues that Ramsay is also liable for retaliation under a supervisor liability theory.

Much like the liability standard for municipalities, supervisors cannot be held liable under a

respondeat superior theory but only “for their own culpable involvement in the violation of a

person’s constitutional rights.”56 Thus:

In order to establish a § 1983 claim against a supervisor for the unconstitutional

acts of his subordinates, a plaintiff must first show the supervisor’s subordinates

violated the constitution. Then, a plaintiff must show an “affirmative link” between

the supervisor and the violation, namely the active participation or acquiescence of

the supervisor in the constitutional violation by the subordinates.57

Here, showing “mere negligence” on the part of the supervisor is not enough.58 Rather, the

supervisor must have “acted knowingly or with deliberate indifference that a constitutional

violation would occur.”59 This requires showing “a deliberate, intentional act by the supervisor to

violate constitutional rights.”60

Plaintiff’s theory here is that Ramsay, by “yielding” to Givens and Salcido’s request to

begin the investigation, acquiesced to the foreseeable violations of Plaintiff’s constitutional rights.

Furthermore, Plaintiff argues that the evidence shows that it was Ramsay who informed Givens,

55 Whether Givens’ and Salcido’s actions violated clearly established rights is discussed below under the

clearly established prong of qualified immunity.

56 Serna v. Colorado Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006).

57 Id.

58 Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997).

59 Dodds v. Richardson, 614 F.3d 1185, 1196 (10th Cir. 2010) (further citation and quotations omitted).

60 Id. (further citation and quotations omitted).

Salcido, and Hatter of Plaintiff’s speech, thereby backhandedly initiating the investigation. It is

undisputed that Ramsay was Givens and Salcido’s supervisor. Because their conduct under the

facts before this Court can be reasonably found to have caused a violation of Plaintiff’s

constitutional rights, Ramsay’s yielding to their request could result in supervisor liability only if

Ramsay had a culpable state of mind.

Obviously, Plaintiff cannot be expected to have direct evidence of Ramsay’s state of mind

because discovery has yet to take place. Nevertheless, Plaintiff presents no other evidence of

Ramsay’s state of mind, nor does he aver as to what evidence of such he might hope to find through

discovery. Of course, the evidence that Ramsay on his own initiative informed the Deputy Chiefs

of Plaintiff’s comments shows that he intended some consequence to come about. Intending some

consequence to Plaintiff for his speech without directing what it would entail is not sufficient to

show a deliberate, intentional act on the part of Ramsay. Therefore, Plaintiff has failed to meet his

burden of showing that a genuine issue of material fact exists as to whether Ramsay caused his

clearly established rights to be violated. Accordingly, the Court grants summary judgment as to

Plaintiff’s First Amendment claim against Ramsay.

d. The City

In addition to the individual defendants, Plaintiff has asserted a First Amendment

retaliation claim against the City of Wichita. Local governments “cannot be held liable under

§ 1983 solely because it employs a tortfeasor—or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” 61 Rather, the plaintiff must show that “the

unconstitutional actions of an employee were representative of an official policy or custom of the

61 Bird, 832 F.3d at 1207 (further citation and quotations omitted).

municipal institution, or were carried out by an official with final policy making authority with

respect to the challenged action.”62

Defendants do not dispute that Layton, as City Manager, had final policymaking authority

when it came to disciplining Plaintiff for his protected speech. Therefore, the City may be held

liable for Layton’s termination of Plaintiff in response to Plaintiff’s protected speech. Naturally,

the City is the only Defendant unable to assert qualified immunity. Therefore, the City may also

be liable for the adverse employment actions Plaintiff suffered in the form of the lengthy

investigation and suspension with house confinement. By failing to argue that the investigation

and suspension with pay do not constitute adverse employment actions, Defendants have waived

those argument for the purposes of this Order. Defendants do not argue nor point to an absence of

evidence in the record that the City had an official policy or custom of retaliating against persons

who spoke out against Ramsay or the WPD, as Plaintiff alleges. Therefore, Defendants essentially

admit that the City had a custom of retaliating against persons speaking ill of Ramsay and that the

City retaliated against Plaintiff pursuant to that custom. Accordingly, the Court denies summary

judgment on Plaintiff’s First Amendment retaliation claim against the City.

3. Only Defendants’ termination of Plaintiff in response to his protected speech

violates a clearly established constitutional right.

“A right is clearly established when every reasonable official would understand that what

he is doing violates that right.”63 “To be clearly established, ‘existing precedent must have placed

the statutory or constitutional question beyond debate.’ ”64 More specifically, clearly established

62 Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000).

63 Lincoln, 880 F.3d at 537 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (further citation,

quotations, and brackets omitted).

64 Knopf v. Williams, 884 F.3d 939, 944 (10th Cir. 2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

rights “cannot be defined at a high level of generality; instead, the key is whether the specific

conduct has been clearly established as a constitutional violation.”65 “In this circuit, to show that

a right is clearly established, the plaintiff must point to a Supreme Court or Tenth Circuit decision

on point, or the clearly established weight of authority from other courts must have found the law

to be as the plaintiff maintains.”66

The Tenth Circuit’s decision in Walter v. Morton67 recognized that discharge of a

government employee because he “reported criminal activities of the Chief of Police” violates a

clearly established constitutional right.68 In Walter, a policer officer, believing that his Chief of

Police had committed a crime, reported the alleged crime to the District Attorney’s office and the

Oklahoma State Bureau of Investigation.69 The plaintiff was subsequently discharged from the

police force.70 The Tenth Circuit held “[i]f [plaintiff] was discharged in retaliation to his report,

this would constitute a violation of a clearly established constitutional right.”71 Under this binding

precedent, Defendants’ termination of Plaintiff in response to his statements to the DA and the

Sheriff about Ramsay’s alleged perjury violated a clearly established constitutional right.72

65 Lincoln, 880 F.3d at 537.

66 Gutierrez, 841 F.3d at 900 (further citation and quotations omitted).

67 33 F.3d 1240 (10th Cir. 1994).

68 Id. at 1243.

69 Id. at 1241.

70 Id.

71 Id. at 1243.

72 Cf. Finley 2018 WL 3472816, at *9 (D. Kan. 2018) (“The Court concludes that Walter establishes the

necessary precedent to satisfy the ‘clearly established’ prong. As in Walter, this case involves a police officer

reporting a high-ranking law enforcement official’s suspected illegal activity, and a subsequent discharge allegedly

resulting from that report. To the extent differences exist between this case and Walter, such differences are

immaterial and do not change the result. Indeed, a case need not be directly on point if the ‘conduct is obviously

unlawful in light of existing precedent.’ ”) (quoting Lincoln, 880 F.3d at 537 (further citation and quotations omitted)).

Even so, Plaintiff has failed to meet his burden to show that the investigation and

suspension with pay constitute “clearly established” adverse employment actions under Supreme

Court or Tenth Circuit precedent or the clear weight of other circuits.73 Of course, the scope of

what constitutes retaliatory conduct is broader under the First Amendment than Title VII.74

Indeed, the Tenth Circuit has rejected the argument “that only adverse employment decisions, such

as termination, suspension, or transfer, in retaliation for constitutionally protected conduct are

illegal.”75 However, the Tenth Circuit itself has held that precedent as to whether “placement on

paid administrative leave [constitutes] a clearly established adverse employment action” does not

exist.76 Plaintiff fails to cite to any caselaw holding to the contrary.

Plaintiff makes a persuasive argument comparing Title VII “adverse employment actions”

to the present case, claiming that the First Amendment’s laxer standard must naturally include

Defendants’ investigation and suspension, along with the unprecedented home confinement.

However, Plaintiff’s burden is more taxing than merely being persuasive—he must show that the

fact that Defendants’ actions constituted adverse employment actions is beyond debate. This he

has failed to do. Indeed, Plaintiff’s argument is just that; an argument which would require this

Court to analyze the unique facts of this case and find in favor of Plaintiff. This is not the same as

73 See Lincoln, 880 F.3d 533, 541–42 (10th Cir. 2018) (addressing whether law has clearly established “paid

administrative leave” as an adverse employment action for the purpose of First Amendment retaliation claims).

74 See Baca v. Sklar, 398 F.3d 1210, 1220 (10th Cir. 2005) (“Although we have never delineated what actions

constitute ‘adverse employment actions’ in the First Amendment context, we have repeatedly concluded that a public

employer can violate an employee’s First Amendment rights by subjecting an employee to repercussions that would

not be actionable under Title VII.”).

75 Morfin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1437 n.3 (10th Cir. 1990).

76 Lincoln, 880 F.3d at 542.

showing that the law was clearly established so that Defendants knew the investigation and

suspension with house confinement would violate Plaintiff’s constitutional rights.

Therefore, to the extent Plaintiff’s First Amendment claims rely on the investigation and

suspension, the individual Defendants are entitled to qualified immunity. Notably, the only

adverse employment actions taken by Givens and Salcido were the investigation and suspension.

While an issue of fact as to whether it was reasonably foreseeable that these actions would lead to

a violation of Plaintiff’s clearly established rights, qualified immunity requires a plaintiff to prove

more than a reasonably foreseeable constitutional violation—rather, the plaintiff must prove that

“every reasonable official would have understood that what he is doing violates that [clearly

established] right.”77 Accordingly, Givens and Salcido did not violate Plaintiff’s clearly

established constitutional rights. Therefore, they are entitled to qualified immunity on Plaintiff’s

First Amendment retaliation claim.

In sum, only Plaintiff’s First Amendment retaliation claims against Hatter, Layton, and the

City remain. Plaintiff has failed to show under a qualified immunity analysis that Givens, Salcido,

and Ramsay violated a clearly established constitutional right. Therefore, Defendants’ Motion is

granted as to Plaintiff’s First Amendment claims against these individuals.

77 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (further citation, quotations, and brackets omitted) (emphasis

added).

B. Title VII and KAAD claims

Plaintiff has also asserted claims under Title VII and the KAAD against the City.78 Kansas

“[c]ourts analyze KAAD discrimination claims using the same analysis governing federal Title

VII.”79 The Court will address these claims together.

Plaintiff alleges two separate claims under Title VII: disparate treatment due to his race

and retaliation because of his wife’s 2018 email. It is worth noting the complete lack of legal

briefing on this issue by Defendants. In their initial Motion, Defendants’ entire argument is that

Plaintiff failed to meet Twombly’s and Iqbal’s pleading standards based on their reading of only

four sentences out of the entirety of Plaintiff’s Complaint. Defendants appear to have forgotten

that they chose to bring a motion for summary judgment at this point, not a motion to dismiss. As

Defendants solely argue under a Rule 12(b)(6) standard for Plaintiff’s Title VII claims, the Court

will construe Defendants’ Motion as a motion to dismiss regarding those claims.

Furthermore, “[a]rguments raised for the first time in a reply brief are waived and will not

be considered.”80 Therefore, the Court will not consider Defendants’ arguments raised for the first

time in their Reply—which are their only substantive arguments regarding this issue.

1. Disparate treatment

The Court finds that under Rule 12(b)(6), the standard argued by Defendants, Plaintiff’s

claim for disparate treatment is plausibly alleged. Under Rule 12(b)(6), the court must decide

78 Naturally, because “Title VII imposes no liability on individuals, the doctrine of qualified immunity is

irrelevant to plaintiff’s Title VII claims.” Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 255 (2d Cir. 2014) (further

citations and quotations omitted).

79 Mitchem v. Sleepcair, Inc., 2021 WL 4439406, at *5 (D. Kan. 2021) (citing Singh v. Cordle, 936 F.3d

1022, 1037, 1042 (10th Cir. 2019)).

80 Hurley, 133 F. Supp. 3d at 1302 n.2.

“whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its

face.’ ”81 When ruling on a motion to dismiss, there is no requirement as to where in the complaint

plaintiffs must allege the facts supporting their claim because courts must “consider the complaint

as a whole.”82

To establish a prima facie case of discrimination, a plaintiff must show that “the adverse

employment action occurred under circumstances which give rise to an inference of unlawful

discrimination.”83 The plaintiff’s burden at this stage is “not onerous.”84 The plaintiff may rely

on either direct allegations of intentional discrimination or the familiar McDonnell Douglas Corp.

v. Green85 analysis. Under McDonnell Douglas, a plaintiff must show “that (1) she is a member

of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the

position at issue, and (4) she was treated less favorably than others not in the protected class.”86

Once the plaintiff alleges sufficient facts in support of each element, the court presumes

discrimination.87

The Tenth Circuit liberally construes the phrase “adverse employment action” in

determining what conduct constitutes the same.88 Although termination and suspension without

81 Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

82 Lander v. Summit Cnty. Sch. Dist., 109 F. App’x 215, 217 (10th Cir. 2004).

83 Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (further citations and quotations omitted).

84 Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981).

85 411 U.S. 792 (1973).

86 Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

87 Notari v. Denver Water Dep’t, 971 F.2d 585, 589 (10th Cir.1992).

88 See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998).

pay almost always count as adverse employment actions,89 “[s]uch actions are not simply limited

to monetary losses in the form of wages or benefits.”90 Rather, they include practically all actions

except “those acts that merely have a de minimis impact upon an employee’s future job

opportunities.”91 Courts must “take a case-by-case approach” to determine what constitutes an

adverse employment action.92 For example, this Court in Owens v. Unified Government of

Wyandotte County/Kansas City93 held that a genuine issue of material fact existed as to whether

an “unnecessary and extensive investigation” qualified as an adverse employment action, even if

the investigation may have been “reasonably commenced.”94

However, “the presumptions in Title VII analysis that are valid when the plaintiff belongs

to a disfavored group are not necessarily justified when the plaintiff is a member of an historically

favored group.”95 Therefore, a “plaintiff who pursues a reverse discrimination claim, and seeks to

obtain the benefit of the McDonnell Douglas presumption, must, in lieu of showing that he belongs

to a protected group, establish background circumstances that support an inference that the

defendant is one of those unusual employers who discriminates against the majority.”96 Of course,

a plaintiff is not limited to the McDonnell Douglas analysis to prevail on a reverse discrimination

claim. The plaintiff remains free to allege “by direct evidence of discrimination or by indirect

89 See, e.g., Kester v. Shawnee Mission Unified Sch. Dist. No. 512, 2005 WL 4708214, at *13 (D. Kan. 2005)

(noting there was no dilemma as to whether termination and suspension constituted adverse employment actions).

90 Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004).

91 Id. at 1033.

92 Id.

93 2022 WL 2131117 (D. Kan. 2022).

94 Id. at *8.

95 Livingston v. Roadway Exp., Inc., 802 F.2d 1250, 1252 (10th Cir. 1986); see also Notari, 971 F.2d at 589

(defining such circumstances as a “reverse discrimination” claim).

96 Notari, 971 F.2d at 589.

evidence whose cumulative probative force, apart from the presumption’s operation, would suffice

under the controlling standard to support as a reasonable probability the inference that but for

plaintiff’s race” he would not have suffered the adverse employment action.97

Nowhere in his Complaint does Plaintiff allege direct evidence of reverse racial

discrimination by any of the Defendants. Therefore, Plaintiff must rely upon the McDonnell

Douglas analysis to allow the Court to presume discrimination. Since Plaintiff is Caucasian, which

is undisputedly a historically favored group, he must allege sufficient background circumstances

for the Court to infer, at least at this stage, that WPD discriminates against the majority. To make

this showing, Plaintiff alleges that the WPD via Givens hosted a racially segregated meeting

excluding non-African Americans. Plaintiff also alleges several instances where members of racial

minorities received little to no repercussions for dishonesty, impropriety, and misconduct from

Hatter. Viewing this evidence in the light most favorable to Plaintiff, sufficient background

circumstances for this Court to infer that the WPD is the rare employer who discriminates against

the majority. Accordingly, Plaintiff’s membership in a historically favored ethnic group is not

fatal to his case for purposes of this Motion.

Under the second element, Plaintiff alleges that he suffered three adverse employment

actions: an unnecessary and extensive investigation, suspension with pay along with an

unprecedented home confinement during that period, and termination. Defendants makes no

argument as to whether these each of these actions constitutes an adverse employment action for

97 Id. at 590 (further quotations and citation omitted).

the purpose of Title VII. Therefore, Defendants have waived any arguments as to this issue for

the purposes of this Motion.98

Regarding the third element, there is no dispute that Plaintiff was qualified for his position.

Finally, Plaintiff has alleged that members of racial minorities who engaged in dishonest

conduct, the basis for the initial investigation of and following suspension of Plaintiff, received

little to no penalty for such conduct. As alleged, this constitutes disparate treatment. Therefore,

under McDonnell Douglas, the Court must presume discrimination in this case. Accordingly,

Defendants’ Motion is denied regarding Plaintiff’s disparate treatment claim under Title VII.

2. Retaliation

In discussing Plaintiff’s retaliation claim, both sides appear to be competing for who can

give the shortest and least persuasive argument in favor of their position. Defendants win—just

barely—by not even addressing this claim except to make a bare-faced statement that Plaintiff’s

Complaint did not allege plausibly any violations of Title VII. Even so, Defendants are right.

Title VII also protects employees who have “opposed any practice made an unlawful

employment practice by [Title VII]” by outlawing retaliation against those employees by the

employer.99 A prima facie retaliation case under Title VII requires the plaintiff to allege: “(1) that

he engaged in protected opposition to discrimination, (2) that a reasonable employee would have

98 See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1232 (10th Cir. 2003) (“A party forfeits an issue it

does not support with legal authority or argument.”) (further citation and quotations omitted). To be sure, caselaw

from the District of Kansas suggests that (at least short) suspensions with pay need not constitute adverse employment

actions. See, e.g., Ross v. Pentair Flow Techs., Inc., 2021 WL 4134317, at *9 (D. Kan. 2021) (holding three-day

suspension with pay did not constitute adverse employment action). However, Defendants make no argument

concerning the pled adverse employment actions in this case, thereby relieving the Court of the necessity of performing

a factual analysis as to whether the months-long suspension here with the accompanying house confinement amounts

to an adverse employment action.

99 See Khalik, 671 F.3d at 1192 (quoting 42 U.S.C. § 2000e–3(a)).

found the challenged action materially adverse, and (3) that a causal connection existed between

the protected activity and the materially adverse action.”100 “Protected activity for the purposes of

Title VII retaliation includes either (1) participating in or initiating a Title VII proceeding or (2)

opposing discrimination made unlawful by Title VII .”101 The Supreme Court has held, however,

that a plaintiff need not show that he personally engaged in protected activity if “a close family

member” has done so when both the plaintiff and the family member work of the same

employer.102

The only “protected activity” under Title VII that Plaintiff alleges is his wife’s 2018 email

regarding promotion procedures at the WPD. This Court has already held that these emails did

not constitute protected activity.103 Without sufficiently alleging that he or a close family member

engaged in protected activity by opposing unlawful discrimination, Plaintiff’s Title VII retaliation

claim must fail as a matter of law. Therefore, Defendant’s Motion is granted as to this claim.

C. Equal Protection

Once again, Defendants claim that Plaintiff failed to meet the requisite pleading standards

under Rule 12(b)(6) without performing. So, once again, the Court will analyze Plaintiff’s claim

under a Rule 12(b)(6) standard, assuming as true all allegations in Plaintiff’s Complaint. Based

on Plaintiff’s own factual arguments, Plaintiff has indeed failed to state a cognizable claim for

violation of his Equal Protection rights.

100 Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir.2011) (alteration omitted).

101 Boese v. Fort Hays State Univ., 814 F.Supp.2d 1138, 1146 (D.Kan.2011).

102 Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174–75 (2011).

103 See Oldridge v. City of Wichita, 2022 WL 1471369, at *9 (D. Kan. 2022) (“The court finds that these

emails do not constitute protected activity as they cannot be read to complain about unlawful discrimination in

violation of Title VII.”).

“In racial discrimination suits, the elements of a plaintiff’s case are the same whether that

case is brought under §§ 1981 or 1983 or Title VII.”104 Therefore, allegations of direct

discrimination suffice or “the McDonnell Douglas framework can also be used to prove intentional

discrimination under § 1983” with Equal Protection claims.105 Unlike Plaintiff’s Title VII claims,

which were only asserted against the City, Plaintiff has brought his Equal Protection claims under

§ 1983 against each Defendant individually.

Defendants rightly point out that the organization of Plaintiff’s Complaint leaves it unclear

which specific facts Plaintiff relies upon to show that Defendants have violated his Equal

Protection rights. In his Response, Plaintiff clearly states that the only basis for his Equal

Protection claim is that Givens retaliated against Plaintiff because of his wife’s 2018 email.

Although unclear, it appears that Plaintiff means to allege retaliation under the Equal Protection

clause, not discrimination. Tenth Circuit law is clearly established that “a theory of liability for

retaliatory conduct does not come within § 1983.”106 Therefore, Plaintiff’s Equal Protections

claims, based on retaliatory conduct as Plaintiff argues, must be dismissed.

To summarize, Plaintiff has failed to allege claims for retaliation under Title VII and the

KAAD as well as any Equal Protection claim. However, Plaintiff has sufficiently pled his claim

for disparate treatment under Title VII. Furthermore, because a reasonable jury could find in favor

104 Carney v. City & Cty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (quoting Baca, 398 F.3d at 1218

n.3); see also Notari, 971 F.2d at 587) (“We emphasize that the basis of a § 1983 claim may be independent of Title

VII even if the claims arise from the same factual allegations and even if the conduct alleged in the § 1983 claim also

violates Title VII. For example, a § 1983 claim of racial discrimination is independent of a statutory disparate treatment

claim arising out of the same set of facts because the § 1983 claim is substantively grounded in the Equal Protection

Clause of the Fourteenth Amendment, whereas the disparate treatment claim flows from Title VII.”).

105 Bird, 832 F.3d at 1208.

106 See Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006), overruled in part on other grounds by

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006) (further citation, quotations, and brackets

omitted).

of Plaintiff regarding his First Amendment retaliation claim against Hatter, Layton, and the City,

the Court denies Defendants’ Motion as to those Defendants while granting it in regard to Ramsay,

Givens, and Salcido.

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc.

31) is GRANTED in part and DENIED in part.

IT IS SO ORDERED.

Dated this 30thth day of November, 2022.

ERIC F. MELGREN

CHIEF UNITED STATES DISTRICT JUDGE

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