Schalk v. Gallemore

718 F. Supp. 862, 107 A.L.R. Fed. 1, 1989 U.S. Dist. LEXIS 8790, 1989 WL 86157
CourtDistrict Court, D. Kansas
DecidedJuly 25, 1989
DocketNo. 88-1355-K
StatusPublished
Cited by1 cases

This text of 718 F. Supp. 862 (Schalk v. Gallemore) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schalk v. Gallemore, 718 F. Supp. 862, 107 A.L.R. Fed. 1, 1989 U.S. Dist. LEXIS 8790, 1989 WL 86157 (D. Kan. 1989).

Opinion

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

Plaintiff Melva A. Schalk brought this action pursuant to 42 U.S.C. § 1983 for [863]*863wrongful discharge. Plaintiff alleges violation of her First Amendment right of freedom of speech based upon defendant’s reliance on her memorandum of complaints in her discharge. Plaintiff additionally alleges violation of her freedom of association, and freedom to petition the government for redress of grievances. Defendant asserts that plaintiff has failed to establish violation of her First Amendment rights, and further, that the defendant is qualifiedly immune. The case is currently before the court on defendant’s motion for summary judgment.

The court heard oral argument on defendant’s motion on July 6,1989. At that time the court reserved ruling on the motion. After thoroughly examining the briefs and supporting documentation filed by the parties, the court is now prepared to rule. For the reasons discussed below, the court finds defendant’s motion for summary judgment should be granted.

Findings of Fact

Plaintiff Melva Schalk was employed as a part-time patient accounts clerk by St. Luke’s Hospital in Wellington, Kansas. Defendant James Gallemore was the hospital’s administrator, responsible for the day-to-day operations of the hospital.

St. Luke’s is a municipal hospital owned by the City of Wellington. The hospital is governed by a board of trustees. The members of the board are elected by the voters of Wellington. The agenda for board meetings was customarily prepared by the defendant. Individual board members, however, could request that certain items be put on the agenda. The board meetings were consistently open to the public. It is unclear from the record as to the policymaking powers of the board of trustees.

The hospital employee manual required job-related grievances to be resolved through the chain of command. More specifically, the employee is to file a formal complaint with the immediate supervisor, then proceed to the department head, then to an advisory committee, and finally to the administrator. The employee manual also provided immediate discipline if the employee divulged information relating to hospital business, employees, or a patient’s condition, beyond that necessary for the performance of his or her duties. The record indicates that the board of trustees had no specific policy concerning employees directly contacting board members about hospital matters.

Prior to the incident in dispute, plaintiff, on two occasions, presented board members with complaints about the administration of the hospital. Plaintiff was reprimanded on one of those occasions. It is unclear, however, as to the specific subject matter of plaintiff’s complaints and the reasons for her reprimand.

In November, 1985, plaintiff prepared a four-page memorandum outlining numerous complaints about the administration of the hospital. The memorandum was divided into complaints raised by fellow employees, and plaintiff’s personal complaints. The memorandum, however, does not identify her fellow employees who raised the majority of the complaints.

In response to defendant’s refusal to place plaintiff on the board’s agenda, plaintiff delivered the memorandum to the individual members of both the board of trustees and the City Council of Wellington. It appears that plaintiff did not request any board member to place her on the agenda. Further, plaintiff wished to present the complaints outside the presence of the defendant because plaintiff was afraid of losing her job.

The first two pages of the memorandum contained a list of employee complaints which included (1) whether kitchen employees pay for their own food; (2) why a relative of a supervisor consistently comes to work late without being disciplined; (3) why defendant has not resolved problems brought to defendant’s attention by fellow employees; (4) why defendant was not present during a tornado warning the previous year; and (5) why salaries have been doubled for certain employees. The other complaints ranged from why a certain amount of money is spent on teaching Lamaze classes, to why a certain employee is [864]*864allowed to leave the building to take her children to school.

The last two pages of the memorandum included plaintiffs own complaints. Those complaints include (1) why she has not received a raise; (2) why her supervisor has not told her of the location of a key to the change drawer; (3) why defendant did not intervene in a dispute between plaintiff and the supervisor of her daughter; (4) defendant’s reluctance to terminate a former employee for alleged falsification of time sheets; and (5) long coffee breaks resulting in one customer’s dissatisfaction with the collection department.

Plaintiff concludes her memorandum with direct appeals to the board members by suggesting that with board action employee morale would improve and much of the waste and inefficiency would be eliminated.

On December 4, 1985, defendant conducted an investigation of the complaints and assisted the board in formulating a response to the memorandum. The response indicated that most of the alleged problems did not exist and were based on misinformation. Additionally, the few problems which did exist were resolved by the respective departments.

On December 10, 1985, plaintiff was reprimanded by the defendant for presenting the memorandum to the board and city council members. This was due to defendant’s determination that the complaints should have been processed within the hospital. Subsequent to the reprimand, plaintiff was subjected to a counseling session. During this session, plaintiff was accused of making vicious and false statements about the hospital and its employees. Plaintiff was also informed that she would face termination if she talked directly with any board members about future hospital matters.

On or about August 16, 1986, plaintiff had an informal conversation with a board member at a local grocery store. At this time, plaintiff expressed her desire to meet with the board. Plaintiff’s affidavit provides that she wished to discuss a variety of complaints related to waste and inefficiency. The record is unclear as to the specifics of her new complaints.

On August 22, 1986, within hours of learning of plaintiff's conversation with the board member, plaintiff was terminated for insubordination. In his decision to terminate, defendant took into consideration plaintiff’s memorandum of November, 1985. Plaintiff’s termination was upheld by a grievance board and affirmed by the board of trustees.

A survey of local newspaper articles during late 1987 indicates concern among the city council members regarding the hospital’s inability to pay its utility bills. The news reports are filled with numerous opinions as to the cause of the hospital’s financial problems. The opinions included cutbacks in medicare payments due to low patient ratios, shorter patient stays due to long-term trends of people taking better care of themselves, and possible overstaff-ing.

Discussion

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

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Related

Melva A. Schalk v. James Gallemore
906 F.2d 491 (Tenth Circuit, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
718 F. Supp. 862, 107 A.L.R. Fed. 1, 1989 U.S. Dist. LEXIS 8790, 1989 WL 86157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schalk-v-gallemore-ksd-1989.