All Art Stephenson wanted was to go back to work. The Riley County Police Department said "No". Now Art has filed suit to get his job back.
In October 1999 Stephenson had a stroke and took medical leave until he and his doctor felt he could go back to work. The RCPD felt Stephenson was disabled and terminated his employment.
Here is the complaint filed December 6, 2001 in the U.S. District Court in Kansas City:
ARTHUR B. STEPHENSON, JR.
Plaintiff, vs. Case No.
RILEY COUNTY POLICE DEPARTMENT;
RILEY COUNTY LAW BOARD;
WILLIAM M. WATSON;
STEVE FRENCH; and,
WILLIAM E. KENNEDY III, Defendants.
COMPLAINT
As his Complaint herein, plaintiff states:
Introduction
1. This is an action by a Police Officer who worked over 20 years for the Riley County Police Department, for wrongful constructive and/or actual discharge due to plaintiff’s disability or perceived disability, contrary to the ADA and KAAD; wrongful retaliation for plaintiff asserting his rights as a disabled or perceived-to-be-disabled person, contrary to the ADA and KAAD; termination and violation of liberty interests without due process contrary to the Fourteenth Amendment which applies under 42 U.S.C. Section 1983; failure to give notice to plaintiff of his entitlement to continued health care coverage in violation of COBRA; and wrongful constructive and/or actual discharge contrary to public policy for having asserted complaints as a disabled or perceived-to-be-disabled person contrary to state tort law.
Parties
2. Plaintiff is a resident of Riley County, Kansas, and is a 20-year veteran Police Officer with the Riley County Police Department.
3. Defendant Riley County Police Department is the law enforcement agency serving the City of Manhattan and Riley County, Kansas, with offices located at 1001 S. Seth Child Road, Manhattan, Riley County, Kansas.
4. Defendant Riley County Law Board is the governing body of the Riley County Police Department.
5. Defendant Watson is the Director of the Riley County Police Department.
6. Defendant French is the Assistant Director of the Riley County Police Department.
7. Defendant Kennedy is the Riley County Attorney with offices located at Carnegie Building, 2d Floor, 105 courthouse Plaza, Manhattan, Riley County, Kansas.
8. The individual defendants are sued herein in their official and individual capacities.
9. At all times complained of herein the individual defendants acted under color of state law, cloaked with the authority of the government in the things complained of.
10. The acts complained of here all occurred pursuant to an official custom, policy, practice, procedure or usage of defendant agencies, in that the acts occurred pursuant to the decisions of key policy makers, and/or pursuant to a failure to properly train and supervise employees of the agencies, and/or pursuant to an informal practice actively in place with defendant agencies, and/or pursuant to the failure of the defendants to take preventive or corrective action upon learning of the acts of employees against and toward plaintiff.
Jurisdiction
11. This Court has jurisdiction pursuant to 28 U.S.C. Section 1331, 29 U.S.C. Sections 1161-1168 (COBRA), 42 U.S.C. Section 1983, which applies the Constitution to local bodies pursuant to the Fourteenth Amendment, 42 U.S.C. Sections 12101-12213 (ADA), K.S.A. 44-1001, et seq. (KAAD), and the general tort law of Kansas.
Factual Allegations
12. In March 1980 plaintiff became employed by the Riley County Police Department as a Police Officer. Plaintiff held that position, and performed his duties faithfully, competently and with skill and fidelity up to the date of his discharge.
13. In October 1999 plaintiff experienced an arteriovenous malformation, which caused him to be off work for several months. As a result, plaintiff became a disabled person and/or was perceived by defendants as being a disabled person as defined by the ADA and KAAD.
14. After his recovery of several months, plaintiff was willing and able to perform the essential functions of the position of Police Officer (including as a patrol officer, administrative officer, process server, and otherwise), with or without accommodation.
15. Plaintiff requested reasonable accommodation to perform the position of patrol officer, and this request for reasonable accommodation was denied.
16. Plaintiff requested reasonable accommodation to perform the position of process server, and this request for reasonable accommodation was denied.
17. Plaintiff requested the opportunity to demonstrate to defendants that he was able to perform the essential functions of his job, with or without accommodation. This request was repeatedly denied.
18. Because defendants perceived plaintiff as a disabled person, they made assumptions and reached sweeping conclusions about his ability to continue his work as a Police Officer, in any capacity, with the Riley County Police Department.
19. Plaintiff was able to perform the essential functions (those that bear more than a marginal relationship to the job at issue) of the position of process server. This is demonstrated by the fact that when he gained employment at another law enforcement agency to mitigate his financial loss, he in fact performed, and is to this date performing, the duties of a process server.
20. Plaintiff was able to perform the essential functions (those that bear more than a marginal relationship to the job at issue) of most, if not all, Police Officer positions within the Riley County Police Department. To the extent he was unable to perform any function of that job, a reasonable accommodation by defendants would have enabled him to perform those functions. Plaintiff requested reasonable accommodations, which were given no serious consideration because defendants perceived plaintiff to be unable to perform any job related to law enforcement whatsoever.
21. Plaintiff was subjected to repeated comments and doubts by defendants, reflecting an erroneous view by defendants that he was disabled and unable to perform the duties of any Police Officer or other law enforcement position.
22. On or about September 1, 2000, plaintiff was constructively discharged from his position by being disallowed to perform any duties with the Riley County Police Department.
23. On or about February 7, 2001, plaintiff was fully discharged, either constructively or directly, by defendants, because of his disability, and in retaliation for raising claims as a disabled or perceived-to-be-disabled person.
24. When plaintiff complained about the treatment he was receiving, informally and formally, including by a written grievance, defendants took adverse employment action against him, including constructively discharging him, ultimately fully discharging him, depriving him of the right to perform his duties as a Patrol Officer, depriving him of the right to demonstrate his ability to perform his duties as a Patrol Officer, creating a hostile work environment for plaintiff, and attempting to thwart his efforts to mitigate his financial damages through other employment.
25. After plaintiff was not allowed to work at the Riley County Police Department, he obtained employment with substantially less pay and benefits, requiring him to make a substantial and costly commute, with another law enforcement agency in Kansas. Defendants retaliated against plaintiff by attempting to interfere with that employment.
26. When plaintiff was discharged/constructively discharged on or about February 7, 2001, defendants failed to provide him with notice of his entitlement to elect to continue health care coverage, including information about the cost of continuing health care coverage, and the time frame within which he could opt to continue health care coverage, as COBRA requires.
27. When he was constructively discharged and/or directly discharged, at no time was plaintiff given notice or opportunity to be heard, and thus was deprived of due process before having his liberty taken from him, including his employment and his professional reputation related to his ability to function as a Police Officer.
28. Plaintiff specifically sought a hearing before the Riley County Law Board related to his termination, either constructive or direct, and defendant Kennedy specifically denied said request, with the full authority to deny the same.
29. Indeed, plaintiff was not even notified of his discharge, and instead had to learn it when his wife went to pick up medicine for him at a pharmacy and learned - for the first time - that his insurance had been canceled. Further, during the period of time from September 1, 2000, to the present date, defendants have acted inconsistently, leaving plaintiff in a state of limbo about their "official" position about his employment status. Yet he was removed from the payroll, taken off insurance, removed from an official roster, ordered in writing to return his weapon, and otherwise given clear indications that he was discharged. All of this occurred without any notice or opportunity to be heard.
30. In retaliating against plaintiff, defendants made contact with his new employer, and suggested that plaintiff was unable to perform the duties of a Police Officer, and specifically a process server function, and thus plaintiff was further deprived of his liberty interests related to his professional reputation and ability to perform his duties as a Police Officer, again without due process of law.
31. Plaintiff has exhausted his administrative remedies, filing a complaint with the Kansas Human Rights Commission and Equal Employment Opportunity Commission, which issued a notice of right to sue, signed and dated September 20, 2001.
Legal Theories
32. Defendants’ actions constitute a violation of the Americans with Disabilities Act (ADA).
33. Defendants’ actions constitute a violation of the Consolidated Omnibus Budget Reconciliation Act (COBRA).
34. Defendants’ actions constitute a violation of the Fourteenth Amendment, and thereby 42 U.S.C. Section 1983.
35. Defendants’ actions constitute a violation of the Kansas Act Against Discrimination (KAAD).
36. Defendants’ actions constitute a violation of the general tort law of Kansas, in that they constitute a wrongful discharge contrary to public policy on account of plaintiff asserting his rights under the ADA, KAAD and Constitution of the United States, and in that they constitute wrongful constructive discharge also contrary to public policy on account of plaintiff asserting his said rights.
Damages & Prayer
37. Plaintiff suffered actual damages as a result of the actions of defendants, including substantial lost pay and benefits, and mental and emotional pain and suffering, caused by the loss of employment and related benefits, the maltreatment related to his disability and/or perceived disability, and the stress and hardship created by the events complained of herein.
38. Plaintiff is also entitled to recover punitive damages of and from defendants on account of the calloused disregard for his rights as a tenured employee, and the unlawful motive with which defendants acted toward and against him.
39. Plaintiff is also entitled to equitable relief, including recovery of loss health care coverage benefits, reinstatement of health care coverage, and reinstatement to employment with defendants.
40. Plaintiff is also entitled to recover his fees and costs of suit herein.
41. Wherefore plaintiff prays for,
a. Actual damages in an amount in excess of $100,000.
b. Compensatory damages in an amount in excess of $100,000.
c. Punitive damages in an amount to be determined by the trier of facts.
d. Injunctive and equitable relief, including reinstatement of health care coverage, and reinstatement of employment.
e. Attorneys’ fees and costs of this suit.
f. Such other relief as the Court deems appropriate in law and equity.
Place of Trial
42. Plaintiff designates Kansas City, Kansas, as the place for trial herein.
Jury Trial
43. Plaintiff hereby demands and requests jury trial on all claims for which he is entitled to a trial by jury as raised herein.
Respectfully submitted,
Margie J. Phelps #10625
A SOLE PRACTITIONER
3734 SW 12th St.
Topeka, Kansas 66604
& Rebekah A. Phelps-Davis #13187
OF PHELPS-CHARTERED
1414 S.W. Topeka Blvd., P.O.Box 1886
Topeka, Kansas 66601-1886