Two former Highway Patrol officers have settled their lawsuit against the state after claiming they were forced out after helping female employees defend themselves against sexual harassment and gender discrimination.
Former Majs. Scotf Harrington and Joshua Kellerman have settled their federal lawsuit against the Highway Patrol as well as Superintendent Herman Jones and Assistant Superintendent Jason De Vore as individuals.
The settlement agreement reinstated Kellerman effective March 23, 2022, to the rank of unclassified major retroactive to the date he was dismissed on July 23, 2020.
The settlement also reinstated Harrington to the rank of unclassified major effective Oct. 23, 2021, retroactive to the date of the termination on July 23, 2020.
The settlement gave the troopers back pay from the date of their reinstatement to the date they were dismissed in 2020.
The amount of backpay was not available on Wednesday.
“It’s been a long journey. It really has,” Harrington said in an interview.
“The individuals really were not held accountable,” Harrington said.
“This turned out to be a settlement, which is what we figured would happen all along,” Harrington said.
“It wasn’t about money. It was about holding them accountable.”
Harrington is now out of law enforcement, while Kellerman now works as a lieutenant for the Douglas County Sheriff’s Office.
“I don’t know that this is the type of thing I can ever completely put behind me,” Kellerman said in a text message.
“During my 17 years at the KHP, I built many friendships that I still have to this day.
“Now, I am very fortunate and thankful to be working for an agency with true leadership and integrity,” he said.
The settlement stipulates that the agreement does not constitute an admission to any violation of federal, state or local law, statute or regulation.
“The two majors were relieved of duty after numerous, long-standing performance concerns continued to persist and after repeated efforts were made to improve the quality of their work,” Highway Patrol Capt. Mitch Clark said in a statement.
“The settlement protects the best interest of the state and taxpayers by bringing an end to senseless litigation that would have otherwise wasted taxpayer dollars.” Clark said.
The court never ruled on the troopers’ harassment and discrimination claims in the case, which instead turned on a Supreme Court ruling in a related case that effectively gave them a legal advantage.
The settlement came after the state Supreme Court found in a separate case that the rank of major was a classified position, meaning that Harrington and Kellerman couldn’t be fired without being offered due process.
The court ruled in a separate case involving former Kansas Highway Patrol Superintendent Mark Bruce, who sued the governor in 2020.
He argued that his right to due process was violated when he was dismissed as superintendent without letting him return to work as a major, a classified position with the Kansas Highway Patrol.
In its defense against the lawsuit brought by Kellerman and Harrington, the Highway Patrol contended that the rank of major was not a classified position and that neither officer had a “property interest” in their positions.
Further, KHP contended that once demoted from the rank of major – as was the case for Kellerman – plaintiffs were subject to a six-month probationary period from which they could be dismissed without cause.
Kellerman was fired after he agreed to take a demotion to the rank of captain. Harrington resigned when faced with the choice being fired.
“Plaintiffs had no property interest in their positions as majors nor did they have a property
interest in any lower rank within the classified service. The rank of major is not within the
classified service,” the Highway Patrol argued.
However, the Supreme Court saw it differently.
“Ultimately, we hold that the plain language of the statute places KHP majors in the classified service, and this plain language interpretation is bolstered by traditional rules of statutory interpretation,” the court ruled.
The plaintiffs argued in court filings that a Supreme Court decision finding that a major is a “classified position” should work in their favor.
“If the Kansas Supreme Court concludes that the rank of major is a member of the classified service, then the plaintiffs have a property interest and a right to due process regarding their terminations,” the plaintiffs’ lawyers contended.
The Supreme Court ruling went beyond the scope of the original lawsuit brought by Harrington and Kellerman.
They accused the patrol of violating their civil rights for helping seven anonymous women, who according to the lawsuit faced unwanted sexual advances from Jones.
The lawsuit contended that from April 2019 to July 2020, Harrington and Kellerman received complaints from female employees about sexual harassment and gender discrimination.
The lawsuit argued that federal civil rights law protected them as they discussed the allegations with the Highway Patrol’s director of human resources, the Department of Administration and even three unnamed Kansas legislators, among others.
In 2020, Gov. Laura Kelly’s administration released summaries of two investigations – one done by a private law firm and another by the Department of Administration – into allegations of sexual harassment against Jones.
The summaries said the complaints generally alleged the superintendent “greeted employees by slapping their backs, shaking their hands, patting their shoulders, hugging, standing close to the employee, and sometimes making awkward comments that were not of a sexual nature.”
“The employees did not allege that the physical contact or comments were of a sexual nature,” the summary said.
“Col. Jones was interviewed and indicated that he did not know the physical nature of the greetings made the employees uncomfortable and would avoid such contact in the future.”
At the time the results of the investigation were revealed, the governor backed Jones’ appointment to lead the Highway Patrol and continues to support him now.
“I believed when I appointed him, that Col. Jones was the right man for the job and my belief has been reaffirmed. He has my full support,” Kelly said at the time.
The lawsuit claimed that the investigation by the Department of Administration “detailed many of the same occurrences of sexual harassment and discrimination that are alleged within this complaint.”
A summary of the department’s findings reported that “‘due to the extremely strong likelihood of bias against Col. Jones’ by the female employees making the complaints, it was difficult to wholly substantiate the allegations,” the lawsuit said.
