Conge v. City of Olathe

551 P.3d 225

Brittany CONGE, Appellant,

v.CITY OF OLATHE, Appellee.

No. 126,979

Court of Appeals of Kansas.

Opinion Filed June 21, 2024

Syllabus By the Court

1.Summary judgment is appropriate in the district court when all the available evidence demonstrates that no genuine issue of material fact remains, entitling the moving party to judgment as a matter of law.

2. In ruling on a motion for summary judgment, a district court must resolve all facts and reasonable inferences from the evidence in favor of the party against whom judgment is sought.

3. The party opposing a motion for summary judgment must come forward with evidence that establishes a genuine dispute regarding a material fact. A factual dispute is not material unless it has legal force as to a controlling issue.

4. A party cannot avoid summary judgment based on speculation or the hope that something may develop later during discovery or at trial.

5. A person claiming retaliatory discharge for whistleblowing has the burden of establishing every element of the claim by clear and convincing evidence.

6. To establish a prima facie case of unlawful retaliatory discharge for whistleblowing, one must prove the following elements: (1) a reasonable person would conclude that the employer or the employee’s coworker was engaged in activity that violated rules, regulations, or the law pertaining to public health, safety, and welfare; (2) the employer knew about the reporting of the violation before discharging the employee; (3) the employer discharged the employee in retaliation for reporting the violation; and (4) the employee acted in good faith based on a legitimate concern about the wrongful activity.

7. If an employee can demonstrate a prima facie case of retaliatory discharge based on whistleblowing, the burden of proof shifts to the employer to come forward with evidence establishing that the employee was terminated for a legitimate nonretaliatory reason. If the employer is able to come forward with such evidence, the burden shifts back to the employee to come forward with evidence to show that the reason given by the employer for the termination of employment was pretextual.

8. Summary judgment is appropriate in a retaliatory discharge case when an employee fails to establish a prima facie case. It is also appropriate when the employer has come forward with evidence of a legitimate nonretaliatory reason for the termination and the employee fails to come forward with evidence establishing that the reason given was pretextual.

Appeal from Johnson District Court; K. Christopher Jayaram, judge. Submitted without oral argument.

Albert F. Kuhl, of Law Offices of Albert F. Kuhl, of Overland Park, for appellant.

Tara Eberline, of Foulston Siefkin LLP, of Overland Park, for appellee.

Before Bruns, P.J., Hill, J., and Mary E. Christopher, S.J.

Bruns, J.:

Brittany Conge appeals the district court’s decision to grant summary judgment in favor of the City of Olathe on her claim of retaliatory discharge. On appeal, Conge contends that the district court erred in granting the City summary judgment as a matter of law because she came forward with sufficient evidence to establish a prima facie case for retaliatory discharge. Conge also contends that despite the City coming forward with evidence establishing that she was terminated for violating the Olathe Police Department’s policy on dishonesty, the reason given by the City was pretextual. Based on our review of the record on appeal in light of Kansas law, we conclude that the district court’s granting of summary judgment in favor of the City was appropriate. Thus, we affirm.

Facts

Background Information

Conge was employed by the City of Olathe’s police department beginning in June 2014. As part of her onboarding with the police department, Conge received information about and acknowledged receipt of various City policies. Significantly, she received the police department’s policy manual that included specific policies on "Dishonest or Untruthfulness," "Information Technology Use," and "Protected Information."

The police department’s "Dishonest or Untruthfulness" policy states:

"Members shall not lie, omit information, give misleading information or half-truths, or falsify written or verbal communications in official reports or in their statements or actions with supervisors, another person, or organization when it is reasonable to expect that such information may be relied upon because of the member’s position or affiliation with this organization."

Likewise, the police department’s "Protected Information" policy provides that: "Members of the Olathe Police Department will adhere to all applicable laws, orders, regulations, use agreements and training related to the access, use, dissemination and release of protected information." In addition, the "Information Technology" policy provides that access to technology and resources provided by the police department "shall be strictly limited to department-related activities." The section on "OFF-DUTY USE" states that "[m]embers shall only use technology resources provided by the Department while on-duty or in conjunction with specific on-call assignments unless specifically authorized by a supervisor."

Besides the training that Conge received when she was hired, she annually completed the police department’s security awareness training. This training included the appropriate use of the Kansas Criminal Justice Information System (KCJIS) to conduct records checks. In particular, it included how to appropriately run a license plate check. As part of this training, Conge acknowledged that the use of information from KCJIS "must be necessary for work assignments to be completed or for proper dissemination and cannot be obtained for a personal desire to know."

The City has a zero-tolerance policy for dishonesty or untruthfulness for its officers. Likewise, the police department has a policy requiring the disclosure of evidence favorable to a defendant that is either exculpatory or impeaching the credibility of an officer involved in a case. These policies are based on the decisions of the United States Supreme Court in Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

In June 2017, Conge applied for and was selected to the police department’s hostage crisis negotiation team. The following year, she was selected for a rotation-based detective position. In February 2019, Conge received a permanent, detective position. It is undisputed that the Olathe Police Department is managed by a Chief of Police. At all times relevant to the issues presented in this appeal, Mike Butaud served as Chief of Police, and he was ultimately responsible for making the decision to terminate Conge’s employment.

Events Leading to Termination

The record reflects that Conge was involved in a romantic relationship with another officer of the Olathe Police Department—Detective Justin Leach—that ended in early October 2019. While off duty on October 20, 2019, Conge drove to Detective Leach’s residence around 3 a.m. and observed a vehicle in the driveway that she did not recognize. Conge called the police department and spoke with the on-duty officer—Kristoffer Ranaig—to ask him to run a KCJIS record check on the vehicle’s license plate. Although Officer Ranaig did not know it at the time, Conge did not have a work-related reason for her request.

Officer Ranaig then used the KCJIS system to run the license plate. After doing so, he notified Conge of the vehicle’s registered owner. Conge used this information to look up the registered owner on Facebook. She then exited her vehicle, rang Detective Leach’s doorbell, and engaged in a verbal confrontation with him at the front door of his residence. The incident was recorded on Detective Leach’s Ring doorbell, and the videos were subsequently provided to the police department.

Detective Leach closed the door to his residence while he retrieved a box of Conge’s personal items from his vehicle. After receiving her personal belongings, Conge returned to her vehicle and called Sergeant Kevin Domes who was on duty at the time. Sergeant Domes told Conge that she could come to the police station if she wanted to speak with him. At about 4 a.m., Conge arrived at the station to speak with Sergeant Domes. When she met with him, Sergeant Domes was working and wearing his police uniform. During their conversation, Conge told Sergeant Domes that she had run a record check on the vehicle parked in Detective Leach’s driveway by using her cell phone before looking at the registered owner’s profile on Facebook.

When Sergeant Domes questioned Conge about how she ran the record check using her cell phone, she told him she used her cell phone "all the time" for KCJIS purposes while working in the field. During an interview with internal affairs and again during her deposition in this case, Conge admitted that she told Sergeant Domes that she had "ran the tag"—referring to a KCJIS records search. Conge also admitted that she did not tell Sergeant Domes that she had called Officer Ranaig to run the tag for her.

Conge does not dispute that she has never run a KCJIS search on her cell phone as she had claimed when speaking to Sergeant Domes. Moreover, it is undisputed that she had not used her City-issued security token required to run a KCJIS search on a computer for several months. It is also undisputed that it is not possible to access the KCJIS database from cell phones.

After speaking with Conge on the morning of the incident, Officer Domes notified the on-duty Watch Commander, Captain Ryan Henson, about his conversation with her. At Captain Henson’s request—and before his shift ended—Sergeant Domes prepared a two-page memorandum describing his interaction with Conge. At the time Sergeant Domes wrote up his report, he simply believed that Conge had misused police department...